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Evidence Fall 2014 Prof. Johnson

Rule/Case

Rule Language

Notes

103:
Preserving
Claim/Error

(a) May make claim of error only if:

(1) ADMITS evidence and party on the record
(A) Timely objection or move to strike
(B) States specific grounds
(2) EXCLUDES evidence, party informs court of substance via
offer of proof UNLESS apparent from context . . .
(b) Once objection is raised and judge rules definitively- NO need
to re-raise the objection . . .
(d) As practicable, the court must conduct a jury trial so that
inadmissible evidence is not suggested to the jury by any means
(e) If plan error is obvious court can take notice, even if it was not
preserved properly
If the court admits evidence that is admissible against a party or
for a purpose (but not against another party or for another purpose)
the court, on timely request, must restrict the evidence to its proper
scope + instruct jury accordingly.

* Any party affected by the ruling

can challenge as long as a party
objected on record at trial
* In order to have an erroneous
evidentiary ruling reversed:
1. Proper objection was made on
the record
2. Meets standard of review
typically abuse of discretion
3. Affected a substantial right of a
party not harmless error

105: Limiting
Evidence

* Limiting instructions can be

given

Relevancy
401: Test for
relevance

402: General
admissibility
of rel.
evidence
403:
Excluding
Relevant
Evidence for
Prejudice

Old Chief v.
United States
Other
Relevancy
Consideration
s

Evidence is relevant if:

(a) Any tendency to make a fact more or less probable than
without the evidence AND
(b) The fact is of consequence in determining the action
ACN: Relevancy is not an inherent characteristic of any item of
evidence but exists only as a relation between an item of evidence
and a matter properly provable in the case.
Relevant evidence admissible unless barred by: (1) US
Constitution; (2) Federal Statute; (3) FRE; (4) Other SCOTUS
Rules. Irrelevant evidence is not admissible

* VERY lenient standard

* STILL must be a fact of
consequence
* Logical relevancy concerns the
inferential chain between the
evidentiary fact which seeks to be
admitted and a fact of consequence

The court MAY exclude relevant evidence if its probative value is

substantially outweighed by a danger in one of more of:
Unfair prejudice
Confusing the issues, misleading the jury
Undue delay or needlessly presenting cumulative evidence
ACN: Surprise alone is not ground for exclusion.
- Unfair prejudice within its context means an undue tendency
to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.
** Each piece of evidence/each evid. statement should be viewed
in isolation E should not be viewed as a bundle (all in or all out)

Seven Factors to consider:

1) Extent E will arouse emotions or
irrational prejudice
2) Potential overvaluing
3) Strength of connection between
E & elements of case
4) Can facts be proved another way
5) Can prejudice or harm be
reduced once the E is in (LI)
6) Need for E (dispute/other E)
7) Strength of inferential chain
connecting EF to FC
Extraneous detail like this tends
to confirm the accuracy of the
memory and the truthfulness of the
speaker.
Case by Case: SCOTUS says no
per se relevancy rules

Evidence is not irrelevant because the fact is not in dispute

(stipulated) - fact is still of consequence and still made more or
less probable therefore litigants may introduce evidence of very
damaging facts even if the other side stipulates to it (kind of gun)
Unrelated Misdeeds: Courts will occasionally find that evidence
is too far removed from the parties dispute in time, place, or other
respects (e.g.: old or different discrimination is not relevant.)
Some courts find all bias persuasive, though.
Negative Evidence: Judges frequently reject proving a negative
that lack of evidence proves something but a court/judge may be

Opening the Door: Irrelevant

evidence may sometimes become
relevant to rebut claims made by

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persuaded that this is a legitimate piece of evidence.

another party

Competency
601: Comp. to
stand trial

Every person is competent to be a witness unless these rules

provide otherwise. . .
NO explicit qualifications, but by negative implication (602/3):
1. Appreciate the duty to tell the truth flipside of having to take
oath or affirmation
2. Have a minimal capacity to observe, recall, and communicate
flipside of personal knowledge requirement

605: Judge as
a witness
606: Juror as a
witness

Presiding judge may not testify as a witness at the trial. A party

need not object to preserve the issue.
Juror may not testify as a witness before other jurors. If called to
testify, court must allow party to object outside jury presence.

Competency is the default rule:

there must be another rule holding
the witness incompetent to prevent
testimony
*In a civil case, state law governs
the witnesss competency
regarding a claim or defense for
which state law supplies the rule.
Applies to judges clerk as well
*Lawyers MUST object to
preserve this though

Personal Knowledge, Truthfulness, Authenticity

602: Need for
personal
knowledge

901:
Authenticating
Evidence

603: Oath
604:
Interpreter
902: Evidence
that is selfauthenticating

A witness may testify to a matter only if evidence is introduced

sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness own testimony.
ACN: [FRE 602] does not govern the situation of a witness who
testifies to a hearsay statement as such, if he has personal
knowledge of the making of the statement. This rule would,
however, prevent him from testifying to the subject matter of the
hearsay statement, as he has no personal knowledge of it.
(a) Requires the proponent of real, demonstrative, or documentary
evidence to lay a foundation by showing that the evidence is what
its proponent claims.
(b) Examples (non-exhaustive list) of satisfying evidence:
(1) Witness w/ knowledge testim.
(2) Nonexpert opinion about handwriting (based on familiaritynot knowledge for litigation)
(3) Comparison by expert/ Trier of Fact
(4) Distinctive characteristics
(5) Opinion about a voice
(6) Evidence about a phone convo
(7) Evidence about public records
(8) Evidence about ancient documents or data compilations
(9) Evidence re: process or system
(10) Methods provided by statute

Witness must give oath or affirmation to testify truthfully.

Interpreter must be qualified & must give 603 oath.
The following documents are self authenticating:
(1) Domestic Public docs that are sealed and signed
(2) Domestic Pub docs NOT sealed, but signed and certified
(3) Foreign Public docs, (4) Certified copies of public records
(5) Official Publications, (6) Newspapers and periodicals
(7) Trade Inscriptions, (8) Acknowledged documents

Doesnt apply to experts under

FRE 703.

* DO NOT have to prove that

beyond a reasonable doubt the
evidence is genuine just that
there is evidence sufficient to allow
a reasonable FF to find by
preponderance of evidence that it is
what the proponent claims it is
*Handwriting: 1) Author: FRE
901(b)(1); 2) Person who saw the
person author: FRE 901(b)(1)
3) Expert handwriting through
comparison FRE 901(b)(3)
4) ToF may compare handwriting
to identify it FRE 901(b)(3)
5) A lay person familiar with the
handwriting: FRE 901(b)(2)
*Photo/Video: fair & accurate
representation
*Emails: 901(b)(4)
*No particular format needed
*COMPREHENSIVE LIST
nothing not found in this list is
self-authenticating

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903:Subscribi
ng Witnesss
Testimony

(9) Commercial Paper and related documents

(10) Presumptions under a federal statute
(11) Certified domestic records of a regularly conducted activity
(12) Certified foreign records of a regularly conducted activity
Subscribing witnesss testimony is necessary to authenticate a
writing only if required by the law of the jurisdiction that governs
its validity

Overturns CL which always req.

subscribing witness to appear in
court

Examination of Witnesses
611: Mode and
Order of
Examining
Witnesses and
Presenting
Evidence
611(a):
Control by
the Court
611(b): Limits
on scope of X
614: Courts
Calling or
Examining a
Witness
615:
Excluding
Witnesses

612: Writing
Used to
Refresh a
Witnesss
Memory

Court should exercise reasonable control over mode and order

of examining witnesses so as to:
(1) Make procedures effective for determining the truth; (2)
avoid wasting time; (3) protect witnesses from harassment or
undue embarrassment
(b) Cross should not go beyond the subject matter of direct AND
matters effecting the witnesss credibility
(c) No leading Qs on direct, except as necessary. Can allow:
(1) on cross or (2) hostile witness, adverse party or a witness
identified with an adverse party
*611 Objections: Argumentative, Speculation, Asked &
Answered, Assumes Facts not in Evidence, Beyond the Scope,
Calls for Narrative/Speculation, Compound question, Harassing
the Witness, Improper characterization, Vague, Non-Responsive
(a) Court may call a witness on its own or at a partys request.
Each party is entitled to X-Ex
(b) Court may ex a witness regardless of who calls the witness
(a)

At a partys request the court MUST exclude witnesses from the

courtroom so they cannot hear other witnesses testimony OR court
can do it on its own. Cannot exclude the following:
(a) Party who is a natural person
(b) Officer or employee of a party that is not a natural person, but
designated as party rep by attorney
(c) Person whose presence a party shows to be essential to their
claim or defense
(d) Person authorized by statute to be present
** Judge does NOT have discretion here; the request MUST be
approved except for the instances in a-d.
(a) Rule gives an adverse party certain options when a witness
uses a writing to refresh memory:
(1) While testifying
(2) Before testifying if court thinks justice requires it
(b) Adverse part is entitled to:
Have writing produced at hearing
Inspect it
Cross-examine witness about it
Intro into evidence any portion that relates to the witnesss
testimony
Producing party claims that writing includes unrelated matter,
court can review and delete unrelated portion.
(c) Writing not produced or delivered as ordered- court may issue
any appropriate order (in a crim case maybe mistrial)

To develop the witnesss testimony:

4 common contexts where
leading ?s are ok
1) Establish pedigree info
2) Direct attention to relevant
place and time
3) Help a witness who is hesitant,
confused or has trouble
recalling
4) Hostile witness
* Questions concerning a witness
credibility ARE ALWAYS
ALLOWED ON CROSS
* Party may object to the court
calling a witness either at the time
OR next opportunity when the jury
is not present
* In a criminal case, where the
state is the party, often party
representative role is filled by the
case investigator
*(d): Crime Victims Statutes hold
that they must be allowed to be
present in courtroom unless the
court receives clear + convincing
evidence, determines that
testimony by vicd be materially
altered if the victim heard other
testimony at that proceeding.
Allows writing into evidence that
would not otherwise be admissible
Steps to follow:
1) Establish witness doesnt recall
Q answer
2) Describe writing you wish to
use, ask if it would refresh
3) Show writing to witness
4) Ask whether memory is
refreshed (take back)
Make sure copy given to opposing
counsel

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106:
Remainder of
or Related
Writings

Party intros all or part of a writing or recorded statement, adverse

party may req. intro at that time of any other part or any other
writing or recorded statement that in fairness ought to be
considered at the same time
- Majority: only affects order of otherwise admissible evidence
- Minority: can affect admissibility itself

*CONTEXT Rule of
Completeness
*Still a narrow rule; if not for
context cant come in

Impeaching Witnesses

Types of
Impeachment

1. Prior inconsistent statement

2. Contradiction (witness is wrong didnt just change story)
3. Bias/Interest
4. Sensory/Mental Incapacity
5. Character for Truthfulness
In impeachment strategies (), 1-4 are offensive, 6-10 defensive

607: Who
May Impeach
613:
Witnesss
Prior
Statements

Collateral
Matter

Any party that called the witness may attack the witnesss
credibility
(a) When examining a witness about their prior statements,
(1) need not show or disclose content to the witness
(2) on request MUST show to adverse party attorney
(b) Extrinsic evidence of a witnesss prior inconsistent statement
is admissible only
If witness if witness is given an opportunity to explain or
deny the statement and an adverse party is given an
opportunity to examine the witness about it OR
Justice so requires
Rules 403 & 611 prohibit extrinsic evidence on a prior inconsistent
statement on a purely collateral matter
- Evidence of a collateral matter is relevant to the trial solely
because it impeaches the witness in other words, it concerns no
fact of consequence and only concerns problems with the witness
credibility
- Facts which would have been independently relevant regardless
of the contradiction are not collateral.

1. Rebut evidence
2. Complete story
3. Clarify testimony
4. Intro expert testimony
5. Show impaired recollection
6. Demonstrate inconsistency
7. Show bias
8. Attack character for truth.
9. Exclude evidence under rules
10. 403 Exclusion
CL said only adverse witness
* Judges usually exclude prior
consistent statements under 401-3
unless theres a real probative
value.
* Judges generally exclude
impeachment on purely collateral
matters (see below)
* Offered only to impeach not for
truth, brings a LI with it
1. Is this the type of impeachment
evidence to which the rule applies?
(Must be either prior inconsistent
or contradiction evidence)
2. Is this evidence extrinsic or
intrinsic? (Must be extrinsic)
3. Does this evidence concern
collateral or non-collateral matters
(Must concern collateral matters)

Character Evidence (To Impeach & Otherwise)

Sorting
Conduct

404(a):
Character
Evidence

608(b): Permits X-Ex about specific instances of non-conviction

misconduct if probative of character for untruthfulness.
609(a)(1): Makes the admissibility of conviction depend mostly
on its seriousness (but crimes relationship to character for
untruthfulness still matters).
609(a)(2): Makes prior conviction admissible per se if the court
can readily determine that establishing the elements of the crime
required provingor the witnesss admittingan act of
dishonesty or false statement.
(a) Character Evidence (NO PROPENSITY ARGUMENTS)
1) Prohibited Use: not permissible to prove that on a particular
occasion the person acted in accordance with the character trait.
BAD inference argument, almost always never ok, UNLESS
2) Exceptions for Criminal s:

Character categories:
1. Proof of a witnesss propensity
to lie or tell the truth
2. Proof of conduct by propensity
3. Proof of character or reputation
as elements
4. Proof of other acts for nonpropensity purposes
Exceptions in (a)(2) apply only to
criminal prosecutions
- Applies to good or bad character
- Applies to any person- witness/
party/never appeared in court

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404(b):
Character
Evidence

405: Methods
of Proving
Character

406: Habit;
Routine
Practice
608: Witnesss
Character for
Truthfulness
or
Untruthfulness

A) D offers evidence of Ds pertinent trait, IF admitted P may

offer evidence to rebut
B) D may offer evidence of alleged victims pertinent trait
(subject to 412), IF admitted prosecutor may (i) offer evidence to
rebut AND (ii) offer evidence of Ds same trait
C) Homicide case: P may offer evidence of victims
peacefulness to rebut claim victim was first aggressor
3) Exceptions for a witness: Evidence of witnesss character may
be admitted under 607, 608, 609
(b) Crimes wrong or Other Acts
1) Evidence of a crime, wrong or other act is NOT admissible to
prove a persons character to show on a particular occasion the
person acted in accordance with character
2) May be admissible for another purpose, such as proving motive,
opportunity, intent, prep, plan, knowledge, ID, absence of mistake
or lack of request. IF D requests, P must:
A) Provide reasonable notice of the general nature of any such
evidence that P intends to offer AND
B) Does so before trial or during trial if the court (for good
reason) lacks pretrial notice

Limits 404, both for evidence against Defendant or victims.

(a) By reputation or opinion:
When Admissible- evidence of character or character trait can be
proved by testimony about a reputation in the form of an opinion.
On Cross the court may allow inquiry into specific instances (to
counter opinion)
(b) When character or a character trait is an essential element of a
charge, claim, or defense the trait MAY be proven by relevant
specific instances of the persons conduct
Typical cases where character is an element: defamation, child
custody, entrapment, negligent entrustment civil claims.
For 405b Simply ask: is it relevant? If so, is it being used to show
propensity to commit a single act in question? If yes, then
inadmissible. If not, then it is admissible under (b) because overall
character is the issue rather than propensity to act.
Evidence of a persons habit or an organizations routine practice
may be admitted to prove that on a particular occasion the person
or organization acted in accordance with the habit or routine
practice. The court MAY admit this evidence regardless of
whether it is corroborated or whether there was an eyewitness.
(a) Witnesss credibility may be attacked or supported by
testimony about witnesss reputation for having a character for
truthfulness or untruthfulness OR testimony in the form of an
opinion about character.
(b) Except for a criminal conviction under Rule 609, extrinsic
evidence is NOT admissible to prove specific instances of a
fact witnesss conduct in order to attack or support the fact
witnesss character for truthfulness. MAY allow inquiries

- Meant to focus on disputed

actions not character of the parties
- Prosecutions ability to X-ex
with specific acts discourages
utilizing (a)(2) (open the door)

Often used to show motive

(previous crime/act motivated
charged crime); plan (prior act part
of a larger scheme); identity
(participants in prior bad
acts/crimes able to identify or
signature elements); opportunity
(E that enjoyed access to the
protected place or special tools on
another occasion); knowledge (E
that had knowledge of a
particular fact thats an element of
the crime); intent (E that had
necessary intent); preparation,
lack of accident, complete story
1. Must lay a foundation for
testimony
2. On X-Ex for specific instances
of character trait, counsel doing it
must have a good faith belief that
the incident actually occurred
3. FRE 403 applies to all this E
Can only come in if used for a
non-propensity inference
It an element to charge/claim/
defense, then specific instances can
come in under 405(b) and
reputation or opinion testimony
can come in under 405(a)
3 Factors to Distinguish Habit:
1) Specificity of the conduct
2) Distinctiveness of the situation
producing the conduct
3) Regularity of the conduct
* Under (a), this is ONLY
ADMISSIBLE- after the witnesss
character for truthfulness has been
attacked
* Middle/majority reading: rule
encompasses not just deception but
also behavior seeking personal
advantage by taking from others in

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about specifics on cross if probative of the character for

truthfulness or untruthfulness of:
(1) The fact witness
(2) Character witness who has testified about the fact
witnesss character
609:
Impeachment
by Evidence
of Criminal
Conviction

610: Religious
Beliefs

(a) Following rules apply to attacking character for truthfulness

by evidence of criminal conviction:
1) Crime was punishable by death or imprisonment for more than
one year. Evidence:
(A) Must be admitted, subject to 403: in a civil case or crim
case witness is NOT the
(B) Crim case where witness IS the if probative value
outweighs prejudicial effect
2) Must be admitted if the court can readily determine that an
element of the crime is proving a dishonest act or false statement
(b) More than 10 years have assed since conviction or release
from confinement (whichever later) ONLY IF:
1) Probative value substantially outweighs prejudicial AND
2) Proponent gives adverse party advance notice so they have time
to contest its use
(c) Conviction NOT admissible if:
1) Subject of pardon, annulment or certificate of rehab IF based on
finding that person has been rehabilitated and NOT convicted of a
later crime punishable by death or 1+ year imprisonment
2) Subject of pardon, annulment or certificate of rehab IF based on
finding of innocence
(d) Evidence of juvenile adjudication ONLY if: (1) crim case;
(2) witness is NOT the ; (3) adult conviction would be
admissible to attack adults credibility; (4) necessary to fairly
determine guilt of innocence
***To impeach under 609 he MUST take the stand!!!!!!!
Evidence of a witnesss religious beliefs or opinions is not
admissible to attack or support the witnesss credibility

violation of their rights (theft

usually counts)
*For bias/motive/impaired
perception, you can ALWAYS
bring in extrinsic evidence, just not
character for truthfulness
* Convictions come in under 609
ONLY to suggest that the witness
has an untruthful character it is
NOT to be used for a propensity
purpose (LI)
*Factors under (a)(1)(B):
1. Impeachment value of crime (if
relates to honesty more probative)
2. Timing of prior conviction (if
occurred long ago less probative)
3. Similarity Between Prior and
Charged (when prior crime is
similar to the charged one, the
likelihood of prejudice is high)
4. Importance of s Testimony (if
is likely to forego testifying
because of criminal convictions,
that will weigh on the prejudice)
5. Centrality of credibility (if this
is essentially a he said/she said,
then the probative value will be
greater we want the testimony to
come in with full context)
* Satisfies other rules- admissible
even if appeal is pending. (E of
pending appeal is also admissible.)
* Does not preclude ALL
evidence of religious beliefs OK
if relevant to motive, bias, etc.

Sexual Assault & Rape Shield

412: Sex
Offense Cases:
The Victims
Sexual
Behavior or
Predisposition
(Rape Shield)

a) This E is NOT admissible in a civil or criminal proceeding

involving sex misconduct:
1) E offered to prove V engaged in other sexual behavior
2) E offered to provide Vs sexual predisposition
b) EXCEPTIONS
1) Crim Cases: Court may admit this E in a crim case:
(A) Specific instances of Vs sexual behavior IF offered to
prove someone other than the D was the source of the semen,
injury or other physical evidence
(B) Specific instances of the Vs sexual behavior with
respect to the person accused of sexual misconduct
Offered to prove consent
Offered by the prosecutor
(C) E if exclusion would violate s constitutional rights
2) Civil Cases: Court may admit evidence offered to prove
Vs sexual behavior or sexual predisposition if its probative value

* Court may admit evidence of a

Vs reputation ONLY if the V has
placed it in controversy
* Does NOT block evidence of
past alleged false claims
*If plan to offer, counsel must
submit motion at least14 days from
trial & notify V
* E may go towards evidence of
pertinent traits under 404(a)(2)(B),
but excluded under 412
* Only applies with the person
against whom the evidence is
offered can reasonably be
characterized as the victim of
alleged sexual misconduct

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413: Similar
Crimes in SexAssault Cases

414: Similar
Crimes in
Child
Molestation
Cases

substantially outweighs the danger

of harm to any victim AND
unfair prejudice to any party
ACN: DOES apply to Title VII sexual harassment cases
a) Permitted Uses: In a crim case where is accused of sex
assault, court may admit any evidence that committed any other
sex assault. E may be considered on any relevant matter
b) Special disclosure procedures- must give notice
c) Effect on Other Rules: Does not limit the admission or
consideration of evidence under any other rule. (Do not overrule
hearsay or privilege and preserves application of 403)
d) Def. Sex assault- focus on physical rather than verbal conduct
a) Permitted Uses: In a crim case where in accused of child
molestation, court may admit any evidence that the committed
any other child molestation. Evidence may be considered on any
matter to which it is relevant.
b) Special disclosure procedures- must give notice
c) Does not limit the admission or consideration of evidence under
any other rule. (Do not overrule hearsay or privilege and preserves
application of 403)
d) Defines Child molestation- person BELOW the age of 14

415: Similar
Acts in Civil
Cases
Involving
SA/CM

a) Permitted Uses: In a civil case involving a claim for relief based

on alleged SA or CM court may admit evidence that the party
committed any other SA or CM. Evidence considered as provided
under 413 and 414
b) Same notice provision as 413 & 414

104:
Preliminary
Questions

a) Court MUST decide any prelim question about whether a

witness is qualified, a privilege exists or evidence is admissible.
In so deciding, the court is not bound by evidence rules (they
can look at everything) EXCEPT those on privilege.
b) When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that
the fact does exist. The court may admit the proposed evidence on
the condition that the proof be introduced later
c) Court must conduct any hearing on a prelim question so the jury
cannot hear it if:
(1) Hearing involves admitting a confession
(2) in a crim case is a witness and so requests it
(3) Justice so requires
d) By testifying on a prelim question, in a crim case does not
become subject to cross on other issues
*Does not limit a partys right to introduce before the jury E that is
relevant to the weight and credibility of other evidence.
* Facts always subject to FRE 104(b): 1) Personal Knowledge 2)
Authentication 3) Prior Acts (Huddleston)

(broadly defined, though - no

requirement that the misconduct be
alleged in the pleadings.)
413/414 do NOT require that the
prior act resulted in criminal
charges or conviction ANY
conduct which constitutes SA/CM
is admissible regardless of whether
formal charges were ever brought
* Propensity OK: Overrides
404(a)(1) general bar
* Courts sometimes admit this
evidence under a 404(b) theory of
intent, knowledge, motive, or
common plan/scheme
* 403 for 413-415: 1. Length of
time since the other acts
2. Reliability of the witness
testifying about the other acts
3. Similarity of the other acts to
those charged
4. Whether the government could
make similar points with less
prejudicial evidence
* Refers back to 413 & 414 and
applies language to civil cases

Preliminary Questions
* Rule does not limit the partys
right to intro evidence before the
jury, evidence that is relevant to the
weight or credibility of other
evidence.
* Judge is default decision maker
* Relevance is not just 401/402:
relevance exists in the application
of other rules too (E.g.: 413
admission of past SA allegations;
602 - if parties contest that a
witness actually saw the events,
judge can review and determine if
testimony will be admitted.
* Rules offers no guidance on
which party bears burden of proof;
Judges usually designate party
offering proof as having burden
* ALWAYS apply 403 balancing

Hearsay
801: Hearsay

Hearsay means a statement that:

Suspicious of hearsay because:

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802: Rule
against
Hearsay
801:
Statements not
hearsay
(offered w/
104 LI)
801(d)(1):
Statements
NOT hearsay
(Prior
statement)

801(d)(2):
Statements
NOT hearsay
(opposing
party
statement)

Adoption,
Authorization
& Agency

1) Declarant DOES NOT make while testifying at the current trial

or hearing AND
2) A party offers in evidence to prove the truth of the matter
asserted in the statement
* Statement includes oral or written assertion or nonverbal conduct
if declarant intended it to be an assertion
* Implied assertion: (Maj) is not hearsay when offered to prove
something declarant didnt intend; (Min) is hearsay when offered
to prove something implied by the statement, if probative value
flows from declarants belief
Hearsay is NOT admissible unless any of the following provides
otherwise: (1) a federal statute; (2) these rules; (3) other rules
prescribed by Supreme Court
1. Effect on the listener (subsequent actions)
2. Prior inconsistent statement (to impeach only)
3. Legally operative language (e.g. acceptance of contract)
4. Circum. E of state of mind (NOT direct evidence 803(3))

1. Perception
2. Memory
3. Clarity
4. Sincerity
*Incorporates 602 (assumes
declarant has personal knowledge)
*801(d)(1): requires that the
witness be placed on the stand,
under oath, and respond willingly
to questions (X-Ex)
* A judge determines whether its
hearsay/whether it falls under an
exception under 104(a)
5. Knowledge of speaker (about a
certain fact)
6. Notice (for med mal)
7. Publication (for defamation)

(1) A declarant witnesss prior statement (Declarant testifies + is

subject to cross-examination about a prior statement)
(A) is inconsistent with the declarants testimony and was given
under penalty of perjury at a trial, hearing or other proceeding or
in a deposition
(B) is consistent with the declarants testimony and is offered to
rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in
so testifying.
(C) Identifies a person as someone declarant perceived earlier

*There are almost always hearsay

purposes involved in non-hearsay
statements, and if thats the case
(e.g. motive having an affair)
need 403 balancing
*(1)(B): must be to rebut lyingTIMING is important here (before
the motive to lie happened)
*Prior statements under this rule
are admissible as substantive (not
just to impeach/corroborate)
* 801(d)(2) even bring in
statements by the party-opponent
where that party has NO
PERSONAL KNOWLEDGE of
what the statement was
* If opinion was the statement of a
party opponent, the opinion rule
does not matter
* Can include adoption or agency
* For crim w/ priors, pros admits
statement; if they take stand to
rebut/explain, impeached w/ priors
BUT if they do not take the stand,
then statement goes un-rebutted
For Co-Conspir. under (E)
1. Statement made by Co-con
2. Statement occs in furtherance
of the conspiracy
3. Statement occur During the
Conspiracy
* Agency includes
INDEPENDENT
CONTRACTORS

(2) The statement is offered against an opposing party and:

(A) Was made by party in individual or representative capacity;
(B) The party manifested that it adopted or believed to be true;
(C) Was made by a person whom the party authorized to make a
statement on the subject;
(D) Was made by the partys agent or employee on a matter
within the scope of that relationship and while it existed; or
(E) Was made by the partys coconspirator during and in
furtherance of the conspiracy.
The statement must be considered but does not by itself establish
the declarants authority under (C); the existence or scope of the
relationship under (D); or the existence of the conspiracy or
participation in it under (E).
*SOME rules against apologies/condolences
* For (E): Declarants statement does not by itself est. a conspiracy
or participation in a conspiracy (judges 104(a) rule)
- If co-conspir. are working together to conceal the crimes, then
the conspiracy is still active

Partys may adopt a statement by (1) signing a document, (2)

silence - if a reasonable person would have spoke + personal
Agency: Test: was statement concerning a matter within the
scope of the agency or employment.

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Govt
Officials as
Party Op
Doyle
Multiple
Parties

Confrontatio
n
Clause

803:
Exceptions to
hearsay rule
803(1):
Present Sense
Impression
803(2):
Excited
Utterance

803(3): Then
existing
mental/

Authorization: party authorized to make statement on s behalf

Majority: in a criminal prosecution government employees are
not considered servants of a party-opponent for the purposes of the
admissions rule.
Cannot use post-Miranda silence at trial
* If a party offers a statement against a co-plaintiff or co- , 801(d)
(2) allows this evidence, but post-2011 must be introduced against
opposing party?
* Spillover in civil, redact/LI; in criminal CC analysis
Good chart pg. 729. Steps: 1. Is statement testimonial? 2. If no,
no confrontation problem. If yes, is declarant available for
cross? 3. If yes, bring him in. 4. If no, prosecution must
establish that declarant is unavailable (w/gf effort to make
available) AND that D had prior opportunity to cross examine
to admit.
Bruton: out of court statement of a co- offered against that co-
in a joint trial is inadmissible. This applies ONLY to explicit link
Crawford: applies to non-testimonial hearsay; if hearsay is
testimonial only OK if declarant is available as a witness or if
had opportunity to cross declarant.
- If subject to privilege, declarant is unavailable
- For prior-cross, same motive maybe not necessary
(opportunity at prior hearing is enough says scotus)
- Testimonial: sworn statements @ grand juries, pretrial
hearings, trial, affidavits, depos, confessions, police inter., lab
reports if prepared for lit. Must look at primary purpose: was it
to lead to a criminal investigation or for another primary reason (to
respond to an ongoing emergency for instance)?
- NOT testimonial: ds own statements, business records,
statements between private individuals (incl. those made in
furtherance of conspir), statements used NOT for the truth of the
matter asserted (for non-hearsay reasons); statement to law
enforcement primarily for emergency assistance.
--if not targeting a specific individual in lab tests or tests are not
highly formalized, then might not be testimonial.
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness
A statement describing or explaining an event or condition made
while or immediately after the declarant perceived it.
* Must be while event unfolds or immediately afterwards (usually
contemporaneous)
* Written statements- can qualify IFF no analysis (or redacted)
A statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.
*Written not excluded per se, but less likely to be admitted
*Timing Subjective: how long for individual to recover (context)
* Can move beyond description to analysis or interpretation
A statement of the declarants then-existing state of mind (e.g.
motive, intent, or plan) or emotional, sensory, or physical
condition (e.g. mental feeling, pain, or bodily health), but not

Minority: statement of the govt

prosecutor falls within the partyopponent rule.
801(d)(2) only requires a statement
be introduced v. a party, meaning
that the statement is contrary to a
partys position at trial
* Cannot blank out names alone
* Applies ONLY to D in crim case
* Crawford does not apply if
statement is non-testimonial,
offered for non-hearsay, statement
is s own, declarant appears for
cross at trial, had prior
opportunity to cross or statement
falls under (1) exception for
forfeiture by wrongdoing or (2)
exception for dying declaration
* Lab report is testimonial if
made under circums that lead an
objective witness reasonably to
believe that [it] would be available
for use at a later trial.
* was statement just made to get
help in an emergency? Nontestimonial b/c primary purpose
isnt to establish facts for a crim
investigation.

* Apply whether or not declarant is

available to testify
* Depends on reliability not need
* Witness didnt have to perceive
event only hear PSI (no time to lie
or formulate crucial here)
* Applies ONLY to description,
NOT ANALYSIS
* Must speak while excited by a
startling event (Subjective)
* Look to the individual persons
known responses
* Must relate to the startling event
* Much broader than PSI
1. Timing Rqmt: must concern a
then existing event or condition
2. Content Rqmt: must concern

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physical/
emotional
cond.

*FWD/BACK
distinction
Mutual Life
Insurance v.
Hillmon

803(4): For
Medical Diag.

803(4): For
Sexual/
Domestic
Abuse

803(5):
Recorded
Recollection

including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the validity or terms of
the declarants will.
*Not permitted: Using declarants state of mind to look backward
(drawing inferences about events that produced state of mind)
*Permitted: Using declarants state of mind to look forward
(drawing inferences about events produced by the state of mind)

declarants OWN state of mind,

emotion, sensation, or physical
condition
3. Purpose LIMITATION: Cant be
used as basis for an inference of
the happening of the event which
produced the state of mind

(Insurance wants to introduce letters showing man planned to

travel with Hillmon): SCOTUS admitted to demonstrate Walters
state of mind. Uncontroversial as it relates to Walter and some
evidence that his body could have been the one found, because it
indicates he planned to travel to the area. Also held admissible
parts of the letter about travelling with the husband.
(A) Is made for and is reasonably pertinent to medical
diagnosis or treatment; and
(B) Describes medical history; past or present symptoms or
sensations; their inception; or their general cause.
(ONLY applies: (1) accounts of medical history, (2) descriptions
of past or present symptoms/sensations, and (3) Reports about
inception of the condition or its general cause.
* Inception/cause does NOT include blame (e.g. who shot you)
*Esp. in psychiatrist diagnosis, keep in mind the separate
LAYERS of hearsay
*ANYONE can be declarant (esp if patient cant speak)
*ANYONE can be audience (need not be medical professional)
Courts have begun to hold that IDENTITY IS PERTINENT b/c:
1) Treatment of a person for regular abuse includes the separation
of the person from their abuser
2) Effective psychological treatment requires doc to know who
caused the abuse (sexual/domestic abuse generates emotional or
psychological damage unique dependent on the )
3) Also: for STD purposes it matters who victim had sex with
A record that: (A) is on a matter the witness once knew about but
now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh
in the witnesss memory; and
(C) accurately reflects the witnesss knowledge.
If admitted, the record may be read into evidence but may be
received as an exhibit only if offered by an adverse party.

ACN: intends that rule be

construed to limit the doctrine so
as to render statements of intent by
a declarant admissible only to
prove HIS future conduct and not
the conduct of another person
1. Purpose rqmt: must be made
for purposes of medical diagnosis
or treatment.
2. Content limitation: must
describe medical history,
symptoms, pain or sensations, or
the inception/character of the cause
or external source thereof insofar
as reasonably pertinent to
diagnosis or treatment.
*NO TIMING RQMT

* Related to 612 (refreshing witness memory) but allows the

writing itself under certain circumstances. Some courts say must
first attempt to refresh memory.
* A witness need not claim complete memory loss but foundation
must be laid to show that the witness forgot IMPORTANT details.
This rule also applies to turncoat witnesses (feigned memory
recollection), BUT laying the PROPER foundation will be very
difficult

* Only SOME courts admit it;

often limited it to cases of CHILD
sex abuse a very few courts have
included domestic abuse, but in
limited cases involving very
traumatic abuse (or eventual death)
SIX requirements of 803(5):
1. Out of court S MUST appear in
a record (memo/report/video/etc)
2. Testifying witness in court must
have made record OR saw record
and agreed that it was true (adopt)
3. Witness must testify he once
knew about info from record and
the he made or adopted the record
when she possessed that info
(personal knowledge rqmt)
4. Witness mustve made/adopted
record when it was fresh in their
mind (not contemp/immediate)
5. Witness must testify that at the
time she made/adopted the record,
she knew that it accurately
reflected the knowledge she had
6. Witness must no longer recall
the information WELL ENOUGH

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to testify fully and accurately

805: Hearsay
w/in hearsay
803(6):
Record of
Regularly
Conducted
Act.

803(8): Public
Records

Ministerial
Purposes

Beech
Aircraft Corp.
v. Rainey

Hearsay within hearsay is not excluded by the rule against hearsay

if each part of the combined statements conforms with an
exception to the rule.
A record of an act, event, condition, opinion, or diagnosis if:
(A) Record was made at or near the time by or from
information transmitted by someone with knowledge;
(B) The record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling;
(C) Making the record was a regular practice of that activity;
(D) All conditions are shown by the testimony of the custodian or
another qualified witness, or by certification that complies w/ Rule
902(11) or (12) or w/ statute permitting certification; and
(E) Opponent does not show that the source of information or
method/circumstances of prep indicate a lack of trustworthiness.
* Examine each statement to make sure the info originated from a
member of the organization if it did not, then a separate hearsay
exception must be identified
* 902(11) + (12) provide an alt - instead of testifying in live court,
a qualified witness may submit a certificate giving the information
required by 803(6)
Trustworthiness Factors (ACN)
1) Timeliness of the Investigation
2) Special skill/experience of investigating officer
3) If hearing was held by the public agency prior to report
4) If agency motivation is suspect (e.g., rpt made in anticipation of
litigation)
A record or statement of a public office if: (A) it sets out:
(i) the offices activities;
(ii) a matter observed while under a legal duty to report, but
not including, in a criminal case, a matter observed by lawenforcement personnel; or
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
(B): Opponent does not show that the possible source of the info
or other circumstances indicate lack of trustworthiness.
Courts have exception to 803(8)(A)(ii) distinguishing between
police rpts created for adversarial purposes and those created for
non-adversarial, ministerial purposes (e.g. documenting
immigrants, calibrating breathalyzer, etc.)
Oates: 803(8) precludes entry of public records under business
records exception 803(6)
* Routine, ministerial police records are usually admissible under
either:
- A special judge made exception for ministerial records (in
jurisdictions that follow Oates)
-The business records exception (in jurisdictions that dont
follow Oates)
Investigation must have been legally authorized (investigator
mustve been performing a public function)
- 3P statements are hearsay w/in hearsay, but conclusions in a
govt officials report can be based (in part) on 3P states and still

Regular business/ regularly kept

record - Each participant in the
making of the record was acting in
the regular course of business.
Contemporaneity - Record was
made at or near the time of
occurrence.
Knowledge - Record was made by
or from information transmitted
bysomeone with knowledge.
Foundation - Foundation may be
supplied by custodian or other
qualified witness.
Trustworthiness - Court may
inquire if source of info or method
of prep indicate a lack of
trustworthiness (often applied to
records prepared in anticipation of
litigation)

* MUST be under a duty to report

Excluded: report that exceeds an
agencys authority; info reported to
a public agency by a third party;
observations made by law
enforcement personnel when
offered in a CRIMINAL CASE
- (not excluded in civil cases)
The business records exception is
available for police records that (1)
are particularly trustworthy and (2)
that satisfy the exceptions
routinization element. Thisand
not the existence of a special nontextual ministerial exception to
the restrictions imposed by FRE
803(8)(B)is what best explains
the admissibility of law
enforcement records involving
routine, non-adversarial matters.
* The factual findings from a
legally authorized investigation
exception is broader it prevents
the introduction of records from

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803 (other
exceptions)

803(22): Prior
conviction

804(a):
Unavailability

EJ
Requirements
of Former
Testimony

804(b)(1):
Exceptions if
declarant is
unavailable
804(b)(2):
Exceptions if
declarant is
unavailable

come in as a factual finding because they are CONCLUSIONS

- BUT fact findings from a crim investigation offered against a
in a criminal case are EXCLUDED
9: A record of a birth, death, or marriage, if reported to a public
office in accordance with a legal duty.
10: Absence of a public record
11: Statement of religious organization
12: Rec. of marriage/baptism type ceremony
13: Family records
14: Record of property interest
15: Statement in document affecting property interest
16: Statement in ancient document (20+ years old)
17: Market reports (relied on by public or particular occupations)
Evidence of a final judgment of conviction if:
(A) Judgment was entered after a trial or guilty plea
(B) Conviction for a crime punishable by death or >1 yr prison
(C) E is admitted to prove any fact essential to the judgment; and
(D) When offered by prosecutor in a criminal case for a purpose
other than impeachment, the judgment was against the .
(a) Criteria for being unavailable: A declarant is considered to
be unavailable as a witness if the declarant:
1) Exempted from testifying b/c a privilege applies
2) Refuses to testify despite a court order to do so;
3) Testifies to not remembering the subject matter;
4) Cannot be present b/c of death or then existing infirmity,
physical illness or mental illness; or
5) Is absent and the statements proponent has not been able, by
process or other reasonable means, to procure
(A) declarants attendance under 804(b)(1) or (6); or
(B) the declarants attendance or testimony under Rule
804(b)(2), (3) or (4).
*** This does not apply if the statements proponent procured or
wrongfully caused the declarants unavailability as a witness in
order to prevent the declarant from attending or testifying.
1. Declarant must be unavailable according to 804(a)
2. Prior testimony must have occurred at a 1) trial 2) hearing 3)
lawful deposition this makes sure that testimony was under oath,
in a formal setting, and produced a formal transcript
3. The opposing party in the prior trial or other proceeding must
have had the opportunity to question that declarant
4. The opposing partys motive in questioning the declarant in the
prior trial or hearing or deposition must have been SIMILAR to
the motive the opposing party in the current trial
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether current proceeding or a different one; and
(B) is now offered against a party who had opportunity and
similar motive to develop it by direct, cross-, or redirect ex.
(2) Statement Under the Belief of Imminent Death: statement that
the declarant, while believing the declarants death to be imminent,
made about its cause or circumstances.
* In a prosecution for homicide or in a civil case ONLY
* Declarant need not have died for the testimony to be admitted

any legally authorized

investigation including, e.g. social
work investigations (only CRIM)
18: Statement in a treatise,
periodical, etc.
19: Reputation among family re:
family history
20: Reputation in community
21: Reputation among associates
re: persons behavior
23: Judgment admitted to prove
history if essential to judgment and
proved by reputation evidence
*(A): but not a nolo contendere
plea;
* The pendency of an appeal may
be shown but does not affect
admissibility.
* A witness who lacks memory
real OR feigned is unavailable
under 804(a) the court DOES
NOT NEED to find that the
witness actually lost their memory
* (5): declarant refuses & is
outside courts jurisdiction party
must use any reasonable means to
persuade the declarant to come to
court, including offering to pay the
travel expenses
Pref. when unavailable: (1) Live
testimony; (2) 804(b)(1) former
testimony; (3) FRE 804(b)(2), (b)
(3), or (b)(4)
* In criminal cases, the opposing
party in the prior trial must be the
SAME PARTY as the opposing
party in this trial

*** In a civil case its ok so long as

predecessor in interest had
opportunity and similar motive
** That a [dying] declaration was
made in response to questions,
even leading questions, does not
affect its admissibility.
* 104(a) determination about state

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* Content MUST concern cause/circum. of the declarants death

(not an excuse to let in a dying mans confessions)
**** MUST MEET PERSONAL KNOWLEDGE RQMT
804(b)(3):
Exceptions if
declarant is
unavailable

Mixed
Statements
804(b)(3)
804(b)(4):
Exceptions if
declarant is
unavailable
804(b)(6):
Exceptions if
declarant is
unavailable

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarants position would have
made only if the person believed it to be true because, when made,
it was so contrary to the declarants proprietary or pecuniary
interest or had so great a tendency to invalidate the declarants
claim against someone else or to expose the declarant to civil or
criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as one
that tends to expose the declarant to criminal liability.
* When decl speaks to a 1) police officer 2) in court 3) or in other
contexts related to law enforcement, tough to tell whether the
statement is sufficiently against interest to satisfy 804(b)(3)
* Reputational, physical harm, or less of respect ARE NOT
interests recognized by 804(3)
* Statement admitting wrongdoing but minimizes the declarants
role while blaming others often inadmissible, but maybe (?)
Williamson: judges must redact collateral statements; only
inculpatory can be admitted (if not self-inculpatory MUST be
redacted)
(4) Statement of Personal or Family History. A statement about:
(A) declarants own birth . . .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
(6) A statement offered against a party that wrongfully caused or
acquiesced in wrongfully causing decls unavailability and did so
intending to cause that result.
*Intent goes to unavailability not the wrongdoing

807: Residual
Exception

(a) Under the following circumstances, a hearsay statement is not

excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in Rule 803 or 804:
(1) Statement has equivalent circumstantial guarantees of
trustworthiness;
(2) It is offered as evidence of a material fact (relevance)
(3) 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
(4) Admitting it will best serve the purposes of these rules and the
interests of justice.
(b) Notice. The statement is admissible only if, before the trial or
hearing, proponent gives adverse party reasonable notice of the
intent to offer the statement and its particulars, including the
declarants name and address.

of mind of the declarant and how

INEVITABLE and IMMINENT
** May also come in under PSI,
EU, Med Diag.
1. Declarant must be unavailable
2. Statement must be against decls
interest when made declarant
must believe its against interest
3. Statement must be a) contract to
a proprietary or pecuniary interest;
b) render a claim invalid; c) expose
the declarant to liability
4. OBJECTIVE standard governswould reasonable person in the
decls position have believed it was
true when they said it (gen circum
into account, not personal)
5. ANY statement that exposes the
declarant to CRIMINAL liability is
ADMISSIBLE in a criminal case if
corroborating circum indicate the
statements trustworthiness (3P)

(B) another person concerning any

of these facts, as well as death, if
the declarant was related to the
person by blood, adoption, etc.
1. Conduct element: Need not be
criminal, but must be improper
2. Result element: Caused witness
unavailability
3. Culpability: must intend to
make him unavailable, not random
consequence of the wrongdoing
Not specifically covered (1):
Maj: near miss evidence (that
which just falls outside of the
hearsay exception) comes in AS
LONG AS otherwise trustworthy
Min: near miss evidence should
be interpreted as having been
excluded for a reason and therefore
should be excluded
(2): Circum gar. of trust; consider
1. Statement was made under oath
2. Declarant had first-hand
knowledge of facts in the statement
3. Declarant ever recanted
4. If other evidence corroborates
- Some courts will not consider

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806:
Credibility

When a hearsay statement has been admitted in evidence, the

declarants credibility may be attacked and then supported by any
evidence that would be admissible for those purposes if the
declarant had testified as a witness.
* The court may admit evidence of the declarants inconsistent
statement or conduct, regardless of when it occurred or whether
the declarant had an opportunity to explain or deny it
* If adverse party calls the declarant as a witness, the party may
examine the declarant on the statement as if on cross.

701: Lay
Witness
Opinion

If a witness is not testifying as an expert, testimony in the form of

an opinion is limited to one that is:
(a) rationally based on the witness perception (pers. knowledge) ;
(b) helpful to clearly understanding the witness testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702

Frey &
Daubert

Frye: If generally accepted among members of the field, expert

testimony is allowed
Daubert: Court must consider reliability of scientific testimony
themselves, relying on (one or more or other reasons):
1) If theory has been tested (cont )
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) Experts knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue
(b) Testimony is based on sufficient facts and date (Daubert)
(c) Testimony is product of reliable principles/methods (Daubert)
(d) Expert has reliably applied the principles and methods to the
facts of the case (Daubert)
- Also, often look to whether the expert developed the scientific
or technical testimony ONLY for use in litigation
FLOWCHART 1. Is evidence given by expert (by knowledge,
skill, experience, training, or education) based on sci, technical, or
other specialized knowledge? Yes, rule 702 applies. 2. Judge is
gatekeeper, ask: are principles/methods used reliable? Use Daubert
criteria above. 3. Has the technique been reliably applied here? 4.
Does evidence fit the facts and help the fact finder? 5. Is evidence
excludable under 403 balancing (probative v prejudice) 6. Expert
evidence admissible if clears all hurdles.
--may base opinion on fact/data they have been made aware of OR
personally observed.
--An expert witness may base an opinion on inadmissible evidence

extrinsic guarantees, most do

5. Whether that corroborating
evidence is subject to cross
6. If other evidence undermines or
contradicts the statement
7. If declarant had any incentive to
lie when making the statement.
1. Applies to all hearsay statements
EXCEPT statements admitted for
non-hearsay purposes or as party
opponent (many courts allow
anyway parties can impeach
themselves)
2. Allows evid. of bias, prej,
interest, inconsistent state, lacks
personal knowledge or capacity,
and reputation/prior convictions

Lay Opinion + Expert Testimony

702: Expert
Testimony

703: Bases for

Expert Opinion

1. Must be rationally based (not

speculative or rest on hearsay)
2. Opinion must help FF (if adding
details and facts, more helpful)
- ACN: Helpful =/= necessary
3. Not based on scientific or
technical knowledge (reasoning
familiar in everyday life)
2) If subject to peer review
3) Techniques error rate
4) Existence of standards
5) If generally accepted
1. Witness must qualify as an
expert by knowledge, skill,
experience, training, or education
2. Expert is testifying on
scientific, technical, or other
specialized knowledge
3. Expert testimony must HELP
the trier of fact
4. The testimony must rest on
sufficient facts or data
5. The testimony must be the
product of reliable principles and
methods
6. The witness must have reliably
applied the principles and methods
to the case Court is not deciding
who is right just making sure all of
this material is reliable/defensible
- If relies on non-testim. no problem
-if witness/declarant there, no conf. clause
problem.
- If all hypo no problem

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as long as experts in the field would reasonably rely on those

kinds of facts. IF based on inadmissible fact/data, then can
disclose those fact/data only if probative value to help jury
outweighs prejudice.
In other words, it might be that the expert can consider
inadmissible hearsay and base his opinion on it and give his
opinion (which is far less convincing if not backed up by facts),
but to discuss the actual inadmissible fact/date, he must clear the
balancing hurdle OR might be required to divulge on crossexamination (rule 705).
BUT scotus has muddied this and said that there is no meaningful
distinction between disclosing hearsay for evaluating expert
opinion and admitting it for the truth asserted. So how do you
balance? Can you give an opinion based on inadmissible hearsay?
This might be conf. clause problem. Who knows.

- If non hypo, testimonial tricky

INTRODUCTION:
Types of Evidence:
(1) Oral Testimony: take oath to testify truthfully and responds to questions from attorneys
- Fact Witnesses: perceived related facts and testify about them
- Expert Witness: Uses specialized knowledge to interpret evidence or explain it to the jury
- Character Witness: Offer info about the good or bad character of a party witness
(2) Real Evidence: physical evidence that a party claims played a direct role in the controversy
- Must be authenticated
(3) Documents: Any type of writing or recording of information
- Technology expanding type of docs- faxes, emails and computer printouts
- Most are a subset of real evidence
(4) Demonstrative evidence: parties create demonstrative evidence to illustrate concepts or facts to the jury
- Charts, tables, pictures, maps and graphs are common types
- Ppts and computer simulations becoming more common
- Stipulation: both parties agree on a fact and stipulate as true for the purpose of litigation
- Both parties must agree to its exact language
(5) Judicial Notice: Indisputably true & trial judge takes notice
- Ex: Boston is in the State of MA
- Must be generally known or accurately and readily determined via an unimpeachable source
(6) Photographs & Videos: not their own category either real evidence or demonstrative evidence-MUST LOOK AT PURPOSE
- Real: depicts the event directly
- Demo: parties create to illustrate a point (truly and accurately depics?)
- Circumstantial: any evidence that requires the jury to make an inference
The 4 Ws of Federal Rules of Evidence:
WHY do courts follow rules of evidence? They are generous- give parties as much leeway as possible, but we need to protect the jury from
misleading info, to eliminate unnecessary delay, and promote efficiency, to protect social interest (confidential info) and ensure all evidence is
reliable
WHO wrote the Federal Rules of Evidence? 60s S.Ct set up advisory committee to create rules (judges, profs)
- Enacted by congress in 1975- post Watergate
- 1993- SCOTUS appointed ongoing advisory committee to oversee changes
- 2010- stylistic revision submitted, took effect December 2011
WHERE do the FRE apply?
Rule 101: Scope. The rules govern Proceedings in the courts of the United States and before the U.S. bankruptcy judges and U.S. magistrate Judges
to the extent and with the exceptions stated in rule 1101
- Does NOT apply to S.Ct, but they use sometimes for proceedings (rarely hold proceedings requiring evidentiary proof)
- Applies to tax courts, but not most agencies (Agencies can adopt if they want)
- Only applies to Fed cts, but most states adopted some version. IL still uses CL but FRE persuasive
WHEN do the FRE apply?
Rule 1101 Applicability of Rules:
(b) Cases and Proceedings: Rules apply in:
- Civil cases and proceedings, including bankruptcy, admiralty & maritime

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- Crim cases and proceedings
- Contempt proceedings, except those in which court may act summarily
(c) Privileges ALWAYS apply: the rule WRT privileges applies in all stages of all actions, cases, proceedings.
(d) Rules inapplicable. The rules (other than privileges) do not apply in the following situations (1) preliminary questions of fact (2) grand Juries
(3) misc. proceedings (extradition/renditions, crim prelim exam, arrest/search warrants, crim summons, sentencing, granting/revoking probation,
considering bail/release)
Policy Determinations for Rule Applicability
- In grand jury only witnesses and prosecutor speak, no judge or
- If applied in pre/post trial proceedings (warrants, searches, sentencing) nothing would ever get done.
- Does not apply to prelim factual determinations where judge decides if admissible
Raising and Resolving Evidentiary Objections
If no objection evidence comes in & you cannot address the issue on appeal (103)
Rule 103: Rulings on Evidence
(a) Preserving a Claim of Error: May make claim of error ONLY IF
(1) ADMITS evidence and party on the record
(A) Timely objection or move to strike
(B) States specific grounds
(2) Excludes evidence, party informs court of substance via offer of proof UNLESS apparent from context
(b) Once objection is raised and judge rules definitively- no need to re-raise the objection
(d) To the extent practicable, court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means
(e) If plan error is obvious court can take notice, even if it was not preserved properly
Judicial Responses to Objections:

Sustain: agree with objection and exclude

Overrule: disagree with objection and admit

Redact: eliminate portions of the document violating a rule

Direct attorneys to avoid certain topics during examination

Curative instruction: tells jury to disregard evidence and explain why

Admit for limited purpose

Rule 105: Limiting Evidence that is NOT Admissible Against Other Parties or for Other Purposes
Court must instruct jury on the restricted uses of certain evidence admitted for a limited purpose.
On Appeal:
- Apply abuse of discretion standard
- Gives trial judge discretion to admit or exclude
- Trial judge most familiar with evidence, trial and juror reactions
- Can overrule only if the error affected a substantial right of one of the parties
- Must show reasonable probability that if the judge made correct ruling the outcome would be different
- MOST missteps are harmless error
- Substantial right even applies when review is taken de novo
- When trial judge misinterprets a FRE or applies wrong standard at trial
- Plain Error must show that it was clear and obvious under current law, effects substantial rights and would seriously affect fairness,
integrity or public reputation of judicial proceedings if left uncorrected
LOGICAL RELEVANCE
Relevance is a fundamental rule of evidence: (a) Limits time (b) focuses jurors on important facts. ONLY relevant evidence is admissible.
Rule 401: Test for Relevance
Evidence is relevant if:
(a) Any tendency to make a fact more or less probable than without the evidence AND
(b) The fact is of consequence in determining the action
Notes on Rule 401
- Even if needle moves only a little bit it IS relevant
- Does not have to conclusively establish any fact on its own (VERY lenient standard)
- MUST be a fact of consequence
- Related to cause of action, a fact that matters to someone who is trying the case
- Can depend on the legal theory underlying a case
- Approach/arguments of each party will determine relevance

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- Look at different aspects of relevancy- may be admitted for 1 purpose even if inadmissible for another
Rule 402: General Admissibility of Relevant Evidence:
Relevant evidence admissible unless barred by US Constitution, Federal Statute, FRE, other SCOTUS Rules
***Irrelevant evidence is not admissible
Applications of 401 & 402 in Specific Courtroom Aspects: FOR DETERMINING LOGICAL RELEVANCE ONLY!!!!!!! Might still be inadmissible on
other grounds even if logically relevant.
--FRE usually exclude evidence to show that a person has a propensity to act in a certain way.
- conceded facts: FRE doesnt prohibit intro of evidence to prove conceded facts. Doesnt matter if a fact is disputed or not!! BUT CA Rules of
Evidence define relevant evidence as having a tendency to prove or disprove a DISPUTED fact that is of consequence
- Unrelated misdeeds: attempt to influence the jury by introducing evidence that an opposing party has engaged in illegal or immoral behavior. Courts
occasionally conclude that this evidence is too far removed from the parties dispute in time, place or other respects to satisfy rule 401
- Negative Evidence: Judges typically reject evidence that something didnt happen, but maybe w/ advocacy
- Ex: bank accounts dont show large sums of money not a drug dealer (does have SOME tendency!)
- Hindsight: What was real vs. what was perceived
- Perception matters- NOT reality (e.g. police officer thinks grabbing for gun and shoots. Turns out no gun on perp, but this is not
admissible evidence because what officer perceived is the issueto determine if he acted reasonably).
- Reality could matter if credibility is at stake (officer says he saw a shiny object and shot. But there was no shiny object on perp).
- Opening the Door: Irrelevant becomes relevant to rebut claims by another party
- Case-by-Case Determinations: SCOTUS stressed determinations are determined in the context of the facts and arguments in a particular case
- Courts shouldnt create board per se rule
- The more inferential steps used, the less probative the value BUT for circumstantial evidence to have probative value, its not necessary that the
evidence render the fact more probable than not (must make the existence more probable than without the evidence (a brick is not a wall)
- Probative value cannot factor in credibility of it; only that if believed it has probative value
--judge wont buy introducing evidence to make party more sympathetic to jury. This is illegitimate.
--Old Chief case: dont have to strip all of the details from the evidence for it to be admissible: (dont have to just say: he was convicted of a
previously qualifying felony in the past. You can name the felony. Or can say what kind of gun was found, dont have to just say we found a
firearm. Extraneous detail tends to confirm accuracy of witness and his/her credibility.) old chief doesnt really tell us about what is logically
relevant: it tells us something about the form in which otherwise relevant evidence may be introduced. Think about how it will be applied during
trial: for example: don case on page 6 examples: would we expect the officer to testify without being able to explain why he was at the persons
house? No. he needs to be able to explain that he was there on a domestic violence call, even if its not intuitively logically relevant to the charge of
drug possession.
PRAGMATIC RELEVANCE
Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Reasons
The court MAY exclude relevant evidence if its probative value is substantially outweighed by a danger in one of more of the following:
- Unfair prejudice
- Confusing the issues, misleading the jury
- Undue delay, wasting time or needlessly presenting cumulative evidence
Rule 403 Notes: May: judges have considerable discretion under Rule 403
- Judges differ in how they apply Rule 403
- Individual analysis makes fact similarities and distinguishing very important
- SCOTUS recently stressed 403 should be applied on case by case basis
- Appellate courts rarely reverse 403 rulings
- Substantially outweighed: Firm tilt towards admissibility
- If probative value and unfair prejudice are equal Admitted
- Unfair: lures fact finder into declaring guilt/liability on ground dif from proof specific to offense charged
- Often though not necessarily an emotional basis (ACN)
- Appellate standard of review for 403 exclusions/inclusions is clear abuse of discretion
Five Factors Frequently Used to Influence A Judges Decision Under Rule 403:
1) Extent evidence will arouse emotions or irrational prejudice
2) Potential overvaluing
3) Strength of connection between evidence & elements of case
4) Can facts be proved another way?
5) Can prejudice or harm be reduced once the E is introduced?
403 Considerations: Damaging evidence: Evidence that strongly supports the position of one party and damages the other is not unfair, its just
persuasive.
- Only permits exclusion when it inflames jurys passion or introduces an improper basis for decision
- Videos/Photos: often display more than just the details; deliver an emotional punch that verbal testimony cant
- Parties try to make their cases as visual as possible

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- Shows only effect of the crime with no indication of how it was committed or who was responsible, possibility of unfair prejudice is more
substantial
- Judge decides if emotional reaction will cause jurors to overlook exonerating evidence
- Socially undesirable Behavior: Parties try to intro evidence of opponents unconventional lifestyle hoping bias will lead to negative view of
opponent.
- Case by case- look at whether lifestyle is of consequence
- Flight: What value does a suspect fleeing shortly after crime or learning police suspicion have on him/her?
- Travel has innocent and guilty purposes (innocent BUT could flee because fear unfair treatment)
- Stipulations: Presence of a stipulation may impact the probative vs. unfair prejudice balance under 403
- Old Chief: (1) Availability of alternative evidence, including stipulations, affects 403 balance;
(2) WRT most elements of a crime, prosecution can choose to present detailed evidence rather than accepting a s stipulations
(3) Calculus differs in the context of felon in possession
- Probative value of introducing prior crime details is low, but prejudicial high
- Details are not part of narrative
- Undue Delay, wasting time and cumulative evidence: empowers trial judges to exclude evidence that would waste time, cause undue delay or
needlessly duplicate evidence
- Bench Trials: 403 worries about unfair prejudice or confusion to the fact finder, but in this case the judge ruling is the fact finder (only useful for
waste of time or cumulative)
-Opening the door: Prof hesitant about this term. Says its overused. Sometimes attorneys think it means that when the other side is unethical, you can
be too. But, in such cases you should go to judge instead.
-----it really refers to a party, after evidence is excluded typically, uses questions (or theories/accusations) or testimony that reopens the door so that
evidence should then be admitted because not being able to use the evidence by the other party is substantially prejudicial.
2 ways of opening the door: party As introduction of a particular piece of evidence, e, might open the door to the introduction by party b of:1.
Evidence designed to counter the legitimate probative value of e OR 2. Evidence that is responsive to unfair prejudice engendered by e.

Calculating Prejudicial Impact

Shortness of juror attention
Fair v. unfair prejudice
Tendency to evoke emotional juror reaction
Tendency to lure jury into forbidden inference
Effect of limiting instruction

Calculating Probative Value

Strength of inferential chain connecting Evidentiary Fact to
Fact of Consequence
Need for evidence
o Degree to which issue is disputed
o Availability of other evidence

PUTTING A WITNESS ON THE STAND & PUTTING EXHIBITS INTO EVIDENCE

Competence
Rule 601: Competence to Testify in General: Every person is competent to be a witness unless these rules provide otherwise.
- BUT in a civil case, state law governs the witnesss competency regarding a claim or defense for which state law supplies the rule of
decision
Rule 605: Judges Competency as a Witness
Presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
- Applies to the judges clerk as well
Rule 606: Jurors Competency as a Witness
(a) A juror may not testify as a witness before the other jurors at the trial. If called to testify, court must give a party an opportunity to object
outside the jurys presence.
Lawyers?

FRE do not restrict the lawyers who represent the parties

Ethical rules discourage lawyers from testifying in cases which they represent a party
Personal Knowledge Requirement
Rule 602: Need for Personal Knowledge (THRESHOLD STD): Witness may testify to a matter ONLY if evidence is introduced to support a
finding (preponderance of evidence standard) that the witness has personal knowledge of the matter.
- Evidence to prove personal knowledge may be witnesss own testimony.
- Does NOT apply to experts under FRE 703.
602 Notes: Witnesses cannot speculate about matters beyond their knowledge
- Attorneys cant ask witnesses to guess at the motives or thoughts or another person
- Does NOT limit witnesses to eyewitness accounts Circumstantial evidence can also be relevant
- Prevents testimony about events witnesses hear about from others but did not observe
- Can use 602 to restrict generous 601 competence
- Lacks ability to comprehend event, remember it and describe it to others (insufficient PK)
- Unless it was physically impossible for witness to have been where she claimed- testimony is gen sufficient

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Rule 603: Oath or Affirmation to Testify Truthfully
Witness must give oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witnesss conscience.
603 Notes: Witness lacks ability to understand truth or appreciate seriousness then the judge may find them incapable of taking the oath or
affirmation - MINIMUM STANDARD OF COMPETENCY
- Refusal to take oath results in exclusion of testimony
- Doesnt require particular form or magic words
Rule 604: Interpreter
Interpreter must be qualified and must give an oath or affirmation to make a true translation.
Authentication
Important Functions of Authentication
1. Necessary to establish relevance
2. Offers the jury some assurance that a piece of evidence is genuine
3. Places evidence in the proper context
Two objectives NOT served by authentication
1. Does not guarantee the identity or genuineness of any evidence (either party can challenge authenticity)
2. Does not establish compliance with other evidentiary rules (must authenticate and satisfy hearsay objections)
Rule 901: Authenticating or Identifying Evidence
(a) Proponent of evidence must produce evidence sufficient to support a finding that the item is what the proponent claims it is
(b) Examples (not a complete list) of satisfying evidence:
(1) Testimony of witness with knowledge
(2) Non-expert opinion about handwriting (based on familiarity- not knowledge gained for litigation)
(3) Comparison by expert witness or trier of fact
(4) Distinctive characteristics and the like
(5) Opinion about a voice
(6) Evidence about a phone convo
(7) Evidence about public records
(8) Evidence about ancient documents or data compilations
(9) Evidence about a process or system
(10) Methods provided by statute or rule
Rule 901 Notes
- Threshold is very low- sufficient to support a finding
- Some reasonable jury could find evidence authentic ADMIT
- Authenticity = Evidence is what the proponent claims it is
Rule 902: Evidence that is Self-Authenticating
The following documents are self-authenticating (fully exhaustive list!):
(1) Domestic Public docs that are sealed and signed
(2) Domestic Public docs that are NOT sealed, but signed and certified
(3) Foreign Public docs
(4) Certified copies of public records
(5) Official Publications
(6) Newspapers and periodicals
(7) Trade Inscriptions and the Like
(8) Acknowledged documents
(9) Commercial Paper and related documents
(10) Presumptions under a federal statute
(11) Certified domestic records of a regularly conducted activity
(12) Certified foreign records of a regularly conducted activity
**If a document does not fall into one of these categories it is NOT self-authenticating**
Rule 903: Subscribing Witnesss Testimony
Subscribing witnesss testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity
General Principles Governing Authentication
1) Distinctive Features: frequently authenticate this way, ID-ing a distinctive characteristic of the evidence
2) Chain of Custody: call series of witnesses, each describing how they obtained + passed on to the next person
3) Handwriting: Five ways to prove
- Person who authored note or signature may ID as their own (901(b)(1) Person w/ know)
- Someone who saw the act of writing may ID person (901(b)(1) Person w/ know)

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- Expert witness may ID writing by comparing to verified piece (901(b)(3))
- Trier of fact compares samples same way an expert does (901(b)(3))
- Lay person familiar with anothers handwriting can ID in court (901(b)(2))
- Family members, coworkers, long time friends
- Familiarity must develop outside litigation (cant testify if studied writing for trial, eg police officer who found the note)
- Demo that author has exclusive access
4) Voice Identification (phone convo ids): Any witness familiar with a persons voice may ID in court (901(b)(5))
- Can be solely based on knowledge in connection with litigation
5) Photos and Videos: Must show fair and accurate representation of underlying scene at relevant time. Does the video/photo depict the actual scene?
Not doctored, etc.
- Call any person familiar with the underlying scene to testify that the photo or video is accurate
- Photographer or videographer can also authenticate
6) Emails
- Email address alone may not suffice to authenticate email
- 901(b)(4): appearance, contents, substance, internal patterns, and other distinctive characteristics of the item taken together with all the
circumstances
7) Public Records: under 902 some will self authenticate
8) Newspapers and Periodicals: self authenticating under 902(6)
9) Business Records: 902(11) & 902(12)(civil only) allow for self authentication (Crim can authenticate foreign records under 18 U.S.C. 3505)
10) Websites:
- Govt owned: many courts accept as self-authenticating under 902(5)
- Some allow print out with domain name and date
- Testimony from websites sponsor
- Affidavit or testimony from person who created internet printout
11) Evidence to Support a Finding
- Proponent only needs to offer enough for a reasonable jury to conclude the evidence is genuine
- can still poke holes and question validity
12) Admissions and Stipulations
Examining Witnesses
Rule 611: Mode and Order of Examining Witnesses and Presenting Evidence
(d) Court should exercise reasonable control over mode and order of examining witnesses so as to:
(1) Make procedures effective for determining the truth
(2) Avoid wasting time
(3) Protect witnesses from harassment or undue embarrassment
(e) Cross should not go beyond the subject matter of direct AND matters effecting the witnesss credibility
(f) No leading Qs on direct, except as necessary (cross, hostile/adverse, as necessary on direct)
----beyond subject matter (scope)basically means no new theories/stories/narratives can be brought up during cross-examination. These can be
brought up later during Ds case (call the same witness and do your own direct examination). Want each side to tell its own story in a unified fashion.
Dont want to confuse jury, etc.

Objection
Argumentative
Asked and answered
Assume fact not in evidence
Beyond the Scope
Calls for narrative
Calls for speculation

Compound question
Harassing/badgering the witness
Improper characterization of
testimony/misstates testimony

Leading Question

Common 611 Objections: good examples on page 190!!!!!

Description
Attorney is drawing inference or making conclusions that should be reserved for closing argument. May
also be harassing the witness.
Attorney has already asked and witness has answered
Questions include a factual assertion that it is imbedded into the question.
Cross examination topic is beyond the scope of direct OR redirect is beyond the scope of cross
Question is too broad and the witness will tell a story and not answer a specific question
Question asks the witness what other people may have been happening beyond the realm of witnesss
perception. Can sometimes be rephrased so that it is clear that they are asking for info that the witness
personally perceived.
- Based on 602 (personal knowledge) and 611 (calls for speculation).
Tried to elicit more than one fact at a time
Lawyer is asking the same question repeatedly in different way, insulting the witness for no purpose or
arguing with the witness about his answer
Attorney is pretending to repeat testimony back to the witness as the basis for the next question, but is
altering the statement. Attorney may use a more powerful word or change the facts themselves. This
affects the witnesss testimony and can make it difficult for the jury to remember the original testimony.
Misstatement may occur immediately or later in the trial, when it will be harder for the judge and
opposing counsel to detect.
Attorney is asking a question suggesting a specific answer

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Non-responsive answer
Vague

Usually occurs on cross, Attorney who asks question can object to the witnesss answer as nonresponsive, ask just to strike answer and force witness to answer the question asked
Question does not give enough detail to allow the witness to respond properly OR term in the Q has an
unclear meaning

Miscellaneous Issues:
Rule 614: Courts Calling or Examining Witnesses
a. Court may call a witness on its own or at a partys request. Each party is entitled to cross-examine.
b. Court may examine a witness regardless of who calls the witness
c. Party may object to court calling a witness either at the time OR next opportunity when jury is not present
Rule 615: Excluding Witnesses
At a partys request the court MUST exclude witnesses from the courtroom so they cannot hear other witnesses testimony OR court can do it on its
own. Cannot exclude the following:
a. Party who is a natural person
b. Officer or employee of a party that is not a natural person, but designated as party rep by attorney
c. Person whose presence a party shows to be essential to their claim or defense (usually just experts)
d. Person authorized by statute to be present (there are victims rights statutes that allow for victims (including some family) to be present unless
being present would materially affect their testimony as a witness).
Important aspects of 615
- Can be invoked by either party
- Rule gives the judge no discretion: once request is made MUST be granted
- Exceptions for several categories of witness. Two particularly important
- Parties to the case ALWAYS allowed to watch - Essential parties- experts gather info
Refreshing a Witnesss Memory
Rule 612: Writing Used to Refresh a Witnesss Memory
Rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) While testifying
(2) Before testifying if court thinks justice requires party to have these options
(b) Adverse part is entitled to:

Have writing produced at hearing

Inspect it

Cross-examine witness about it

Intro into evidence any portion that relates to the witnesss testimony

Producing party claims that writing includes unrelated matter, court can review, in camera, and delete unrelated portion (but it remains
preserved for the record).
(c) Writing not produced or delivered as ordered- court may issue any appropriate order. Crim case and prosecution doesnt comply- strike testimony
or declare mistrial
Process:
1) Establish witness doesnt know answer to question
2) Describe writing and ask if it would refresh recollection
3) Show writing to witness (dont need to authenticate, because not coming in as evidence)
4) Ask whether it has refreshed memory
5) Once refreshed, take it back (refresher not meant for witness to read from doc- hearsay/602 objections)
6) During process or before give copy to opposing counsel
612 Notes:
- May introduce writing used to refresh into evidence even if the writing would not otherwise be admissible
- Adverse party has a right to introduce into evidence relevant portions of the report for the purpose of assessing credibility even if the report is not
admissible for other purposes
- Can use voir dire to reveal how much witness actually remembers as opposed to parroting of document
- Subject to 602: no personal knowledge
- Type of writing not limited- very liberal interpretation (judges have allowed media/tapes/photos)
- Two practical limits on creativity when refreshing
(1) Jurys perception - Doc selection is important - Newspaper or 3 rd party doc wont impress jury
(2) Opposing counsels 612 rights
- Can request to see docs used for review before testifying
- Court limits: no fishing expedition. Natural for witness to review case related docs before taking the stand
- Adverse parties: any party who DID NOT initiate the witness refresh to claim the rules protection
- When adverse party admits under 412- jury can only use to assess credibility

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Completing the Story
Rule 106: Remainder of or Related Writings or Recorded Statements
Party intros all or part of a writing or recorded statement, adverse party may req. intro at that time of any other part or any other writing or recorded
statement that in fairness ought to be considered at the same time
---applies even if the writing or recording isnt entered into evidence and a witness is simply giving oral testimony about it.
Rule 106 Notes
- Introduce qualifying portions immediately
- Some hold lose privilege if not done at the time incomplete is admitted
- Others read as a rule of admissibility- 106 is an avenue for admitting a doc that is not otherwise be admissible (Rule 403 would restrict if it
would cause unfair prejudice, confusion or delay)
- Applies only to writings and recorded statements
- May apply to portions OR entire docs/recordings when necessary to understand context of another doc offered
- Fairness: admits docs/portions that in fairness ought to be considered at the same time as those offered
- Flexible standard trial court has discretion
- Oral statements not included
- Can use 403 or 611(a) to admit
- Some courts have extended 106 to oral testimony because of 611(a)s reasonable control
IMPEACHING WITNESSES
- Not designed to prove what happened, just that the witness should not be believed
- Ten tactics used by trial attorneys to combat damaging testimony
A. Offensive Techniques
(1) Rebut the Evidence: show what the witness is saying is factually not true, impossible
(2) Complete the story: might be other facts witness not offering, bring out during cross
(3) Clarify ambiguous testimony: cross lets you clarify terms.
(4) Expert Testimony: have someone come in and say under these conditions, no way this happened
B. Defensive Techniques
(5) Show Impairment of Perception or Recollection: show witness perceived event incorrectly or is recalling incorrectly, maybe they didnt have
glasses on or were drunk
(6) Demonstrate Inconsistencies: show testimony is inconsistent. Have another witness say witness told them something different previously OR
internal consistencies with witnesses prior inconsistent statement (613)
(7) Show Bias: Show witness has ulterior motives for testifying
411: allows evidence of liability insurance when insurance establishes bias
407: allows subsequent remedial measures
409: medical expenses
(8) Attack the Witnesss Character for Truthfulness liar or committed crimes (FRE limits)
608: Witnesss Character for Truthfulness or Untruthfulness
609: Impeachment by Evidence of Criminal Conduct
C. Appeal to the Judge
(9) Exclude evidence through a specialized rule: object, keep it out
(10) Claim unfair prejudice, confusion or delay- rule 403 objection, trial judges discretion
Rule 607: Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witnesss credibility
607 Notes:
- Allows impeachment of own witness- but court will limit this if it looks like gamesmanship
[I]t would be an abuse of FRE 607 for the prosecution to call a witness that it knew would not give it useful evidence, just so it could
introduce a hearsay statement against the . [Webster (Posner)]
Rule 613: Witnesss Prior Statements
a) When examining a witness about their prior statements
- Need not show or disclose content to the witness
- On request MUST show or disclose to the adverse partys attorney
b) Extrinsic evidence (anything other than testimony of the witness) of a witnesss prior inconsistent statement is admissible only if witness is given
an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it OR Justice so requires
613 Notes
- Required disclosure gives opponent a chance to raise evidentiary objects and prepare to rehab the witness
- No right before impeachment begins- cannot prep witness unless already knows about impeachment material from own investigation
- Can choose to show witness the impeachment document or evidence before or after impeaching (strategy)
- (b) is easy to satisfy: (1) lawyer introduces while witness is on the stand during cross and they can explain. Opposing attorney can ask questions
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- Problem when prior statement evidence is introduced after witness left the stand
- Does not require laying any particular foundation before introducing extrinsic proof of a witnesss prior inconsistent statement
- Justice so requires- hesitant to apply
- Most common: witness unavailable, before intro of inconsistent statement (still unlikely)
- 613 admits for credibility- not to prove content (judge will typically give limiting instructions
- Truth of the matter may violate hearsay- need independent means of admitting
Prior Inconsistent Statements
- Demonstrate that the witness made inconsistent statements at different times
- Rules 403 & 611 prohibit extrinsic evidence on a prior inconsistent statement on a purely collateral matter
- Extrinsic: any evidence other than testimony from the witness currently on the stand
- Minority rule: if witness can authenticate document it will be admitted
- Collateral: relevant to the case solely because it impeaches the witness (area for effective advocacy)
- 611(a) judicial discretion over mode of examining witnesses to avoid wasting time, etc.
MT Supreme Court: 3 Non-Collateral Facts
- Facts directly relevant to substantive issue
- Facts to impeach or disqualify on grounds other than contradiction or inconsistent statements
- Any part of account which as part of human experience just cant be right

Non-Collateral
Matter
Collateral Matter

Non-Extrinsic Evidence

Extrinsic Evidence

Cross examiner asks W Didnt you tell your friend

Sharon that Fred Hit Betty? Admitted
Cross asks Wilma Didnt you tell police that you
drove to the golf course that day?
Admitted: Subject to 403 and 611.

Sharon testifies that Wilma told her Fred Hit Betty

Admitted: subject to 613 procedures
Police officer testifies that Wilma told him she drove to the
golf course.
Excluded: under 403 & 611

- Prior Consistent Statements typically not admitted

- Adds little to the trial- doesnt discredit OR add new information
- Limited rehab circumstances judges will allow it
- Turns on 402 (relevance) and 403 (balance prejudice and time)
- Witness Denials
- If collateral issues cant introduce extrinsic evidence- stuck with witness answer
- Can read from a document- this at least hints to the jury that the witness is lying
Contradiction
- Present evidence or testimony in opposition to what the witness has testified to
- Subject to same limitation as inconsistent statements: cannot introduce extrinsic evidence to contradict a collateral matter
Bias or Interest
- Demonstrate that the witness has some alternative motivation for providing their current testimony
- Can use extrinsic evidence to impeach NEVER seen as collateral
- Permissible under Rule 401: Logical Relevance
- Demonstrates that the witness is not entirely believable
- 401 admits evidence that has ANY tendency to make something more or less likely
Sensory or Mental Incapacity - Show something impairs their ability to testify accurately
- Can use extrinsic evidence to impeach NEVER seen as collateral
Character or Truthfulness
- Different set of rules apply- Rules 607 & 608
- General Prohibition on Character Evidence
Rule 404: Character Evidence - Crimes or Other Acts
(a) Character Evidence (NO PROPENSITY ARGUMENTS)
1. Prohibited Use: not permissible to prove that on a particular occasion the person acted in accordance with the character trait (2.
exceptions for Crim s)
3. Exceptions for a witness: Evidence of witnesss character may be admitted under 607, 608, 609
Rule 608: A Witnesss Character for Truthfulness or Untruthfulness
(b) Extrinsic evidence is NOT admissible to prove specific instances of a fact witnesss conduct in order to attack or support the fact witnesss
character for truthfulness. MAY allow inquiries about specifics on cross if probative of the character for truthfulness or untruthfulness of:
1) The fact witness
2) Character witness who has testified about the fact witnesss character

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608(b) Notes:
- Party may ask about specific instances of conduct on cross to suggest untruthful character
- Questions must be limited to actions that are probative of the witnesses character for truthfulness or untruthfulness. Cant probe for info about
being a drunk or a messy or lazy
- Only requires attorney has a good faith belief the specific incident occurred
- Judge has discretion to prevent questions on cross about character for truthfulness (uses may allow ?s)
- After offer of proof- if witness is not supporting assertions and there is no allowable evidence to support questions judge will likely exclude
- 608(b) bars proof by extrinsic evidence- must accept whatever answer the witness give
Rule 609: Impeachment by Evidence of a Criminal Conviction
(a) Following rules apply to attacking character for truthfulness by evidence of criminal conviction:
(1) Crime was punishable by death or imprisonment for more than one year. Evidence:

Must be admitted, subject to 403: in a civil case or crim case witness is NOT the

Crim case where witness IS the if probative value outweighs prejudicial effect
(2) Must be admitted (regardless of punishment) if the court can readily determine that an element of the crime is proving a dishonest act or
false statement
(b) More than 10 years have passed since conviction or release from confinement (whichever later) ONLY IF:
(1) Probative value substantially outweighs prejudicial effect AND
(2) Proponent gives adverse party advance notice so they have time to contest its use
(c) Conviction NOT admissible if:
(1) subject of pardon, annulment or certificate of rehab IF based on finding that person has been rehabilitated and NOT convicted of a later
crime punishable by death or 1+ year imprisonment
(2) subject of pardon, annulment or certificate of rehab IF based on finding of innocence
(d) Evidence of juvenile adjudication ONLY if:
crim case
witness is NOT the
adult conviction would be admissible to attack adults credibility
necessary to fairly determine guilt of innocence
(e) Satisfies other rules- admissible even if appeal is pending. Evidence of pending appeal is also admissible
609 Notes:
- Only applies when a criminal conviction is used to suggest a witness has an untruthful character
- Jury may consider evidence ONLY to assess for truthfulness (limiting instructions- 403 balancing)
- Under 609(a)(1)(A): past convictions are generally admissible to impeach non-crim witnesses (403 tho)
- 609(a)(1)(B) makes it harder to introduce against criminal witnesses
- Probative value must outweigh prejudicial effect
- Differs from 403 test:
- Weighs prejudicial to only, not anyone else
- Burden on prosecutor to demo probative value outweighs prejudice
- Balancing test favors exclusion
Situation
Rule 403
Rule 609(a)(1)(B)
Prejudice < Probative
Admits
Admits
Prejudice = Probative
Admits
Excludes
Prejudice > (somewhat) Probative
Admit
Exclude
Prejudice > (substantially) Probative
Exclude
Exclude
***609(a)(2) requires no balancing if an element is dishonesty or false statement automatically admitted
- Ex: perjury, fraud, embezzlement (violent crimes & robbery/theft/drug use dont qualify)
Time limits- more than 10 years- reverse 403 balance (even more than 609(a) for criminal s)
- Probative value must substantially outweigh prejudicial effect
- Presumption against admission
5 Factors often used for 609(a)(1)(b)
(1) Impeachment value of former crime (truth telling crimes = more probative)
(2) Timing of prior conviction and subsequent criminality (long ago are less probative, unless part of a pattern)
(3) Similarity between prior crime and charged one (more similar = more prejudicial)
(4) Importance of the s testimony (Risk that will forego testifying even if important)
(5) Centrality of credibility (if He said-She said between and Pr. witnesses, credibility of is more important and impeachment is of greater
need)
Situation
Prejudice < (somewhat) Probative

Rule 403
Admits

609(a)(1)(B)
Admits

Rule 609(b)
Admits

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Prejudice < (substantially) Probative
Prejudice = Probative
Prejudice > (somewhat) Probative
Prejudice > (substantially) Probative

Admits
Admits
Admit
Exclude

Admits
Excludes
Exclude
Exclude

Excludes
Excludes
Exclude
Exclude

Pardons, Annulments, and Certificates of Rehab (609(c))

Yes Prior inadmissible to impeach
Yes Was pardoning based on innocence?
No Prior admissible to impeach
Witness Convicted
of subsequent felony?
No Prior conviction NOT admissible to impeach
***Juvenile convictions are NEVER admissible against the accused in a criminal case
- 609(d) recognizes a limited exception: offered to impeach a non- criminal witness AND evidence is necessary to fairly determine the
guilt or innocence
Type of Conviction
Misdemeanor, no dishonesty
Pardoned/annulled b/c innocence
Crime pardoned/rehabed and has no additional felonies
Juvenile Crime
Crime for which witness was released from
confinement (or convicted if no confinement) more
than 10 years ago
Felony for that DID NOT involve dishonest act or false
statement

Rule 609 Summary Chart

Type of Witness
Outcome
ANY
EXCLUDED
ANY
EXCLUDED
ANY
EXCLUDED
in Crim Case
EXCLUDED
Anyone other than
Admitted ONLY when would be admitted against adult &
necessary to determine guilt or innocence
in crim Case
Apply balancing test- probative value must SUBSTANTIALLY
ANY
OUTWEIGH prejudice (favors exclusion)
in Crim Case
Non in crim

Felony or misdemeanor involving a dishonest act or

false statement that was (a) committed as an adult (b)
for which confinement ended ten years ago or less

Admit if more prob than prej (less stringent than 10+ year
conviction, but still opposite of 403)
ADMITTED
Automatically ADMITTED
-no special balancing
-no application of 403

Rule 608: A Witnesss Character for Truthfulness or Untruthfulness

(a) - Witnesss credibility may be attacked or supported by testimony about witnesss reputation for having a character for truthfulness or
untruthfulness OR testimony in the form of an opinion about character. ONLY ADMISSIBLE- after the witnesss character for truthfulness has been
attacked
3 Important Caveats to 608(a)
1) Only allows general reputation or opinion evidence
- NO testimony about specific instances of conduct related to truthfulness or deceit
2) Only present on reputation or character for truthfulness or untruthfulness
3) Only introduce evidence of TRUTHFUL character after the character has been attacked
608 Notes:
- Character witness offers opinion about fact witnesss character for truthfulness.
- Attorney lays foundation that character witness knows fact witness well enough to form opinion
- Next character witness will state the reputation
- 608(a) prohibits next logical question, can you give me a specific example
- ONLY truthful or untruthful reputation- nothing about being lazy, cheap, fat, etc.
- Only to assess credibility- NOT for truth of the matter asserted (hearsay)
- Issue when the witness is the (403 balancing)
- Character for truthfulness only allowed when character has been attacked
- Character witness called to testify about untruthful reputation under 608(a)
- Witness is asked about specific acts of untruthfulness on cross under 608(b)
- Evidence of crim conviction introduced under 609
- Differentiate between character and credibility

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- Pointing out inconsistencies in testimony is NOT about character
- ONLY applies to witnesses
- If a person doesnt testify cant attack their credibility
--human polygraph testimony I believe she is telling the truth, is not admissible.
Rule 608: A Witnesss Character for Truthfulness or Untruthfulness
(b) Extrinsic evidence is NOT admissible to prove specific instances of a fact witnesss conduct in order to attack or support the fact witnesss
character for truthfulness. MAY allow inquiries about specifics on cross if probative of the character for truthfulness or untruthfulness of:
(2) character witness who has testified about the fact witnesss character
608(b)(2) notes
- Can ask about specific instances on cross (must have good faith basis to believe it actually happened, court has discretion to exclude)
- Cannot offer extrinsic evidence to prove specific incident: stick with the witnesss response
- Still demonstrates something to jury: character witness doesnt know fact witness as well as they claim
- Cross-examiner is entitled to test the basis of the character witnesss opinion or recital of reputation
- Even if the attorney KNOWS the witness knows nothing about the incident, can still ask about it: Isnt it true that this person actually turned in
$10,000 that he found on side of the road?
-Especially powerful when a witness is called to testify about TRUTHFUL character
- On cross, opposition can bring in specific instances of untruthfulness
- Much less likely to present character witnesses who testify about truthfulness
--after cross-examination brings up a specific instance, can re-direct bring up another specific instance to impeach the other specific instance
testimony? Courts are split on this.
Rule 610: Religious Beliefs or Opinions
Evidence of a witnesss religious beliefs/opinions is not admissible to attack or support the witnesss credibility
Rule 610 Notes:
- Does not preclude religious beliefs when they are relevant to matters such as bias, damages, or motive
- Especially for prosecutions for religious hate crimes
CHARACTER EVIDENCE
- Generally, evidence of a persons character (or trait) is not admissible to prove that on a given occasion the person acted in conformity with that
character (EXCEPTIONS below)
- Admissibility depends on what the proponent is trying to prove and the type of inferences relied upon
Character to show propensity: No (except SA/CM)
Character in issue: Yes
Victims Traits: Yes (usually self defense) must be reputation/opinion NOT specific instance
Other crimes/bad acts: Generally no, but to show MO/identity/knowledge/etc.
Favorable Evidence of s Character: Yes in criminal IFF pertinent to crime (rep/op ONLY)
Habit/Routine Business Practice: Yes
Character traits: internal reside within a person

How people act in particular situations

Cant see- infer from actions

Use reputation and actions to prove in court

Reputation: external; what other people think about an individual

Built on actions
Categories of Character Evidence
1. Proof of a witnesss propensity to lie or tell the truth
- Under limited circum 608 & 609 allow intro of evidence to a witnesss character for untruthfulness
Desired Inference chain:
**Untruthful reputation/crime of dishonesty witness has untruthful character person w/ untruthful character has tendency to lie witness lied
on stand.
2. Proof of conduct by propensity
- Argue that people act in other ways that are consistent with other character traits (unrelated to truthfulness)
Desired inference chain:
** Violent acts violent character tendency to assault assaulted victim
- Propensity inferences are common (risk that jury will base verdict on propensity, not specific evidence)
- Rule 404(a)(1) broadly prohibits propensity argument
- Exceptions in (a)(2) apply only to criminal prosecutions

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- Applies to good or bad character
- Applies to any person- whether witness/party/never appeared in court (meant to focus on disputed actions, not the character of the parties)
Rule 404: Character Evidence: Crimes or Other Acts
(a) Character Evidence (NO PROPENSITY ARGUMENTS)
(1) Prohibited Use: not permissible to prove that on a particular occasion the person acted in accordance with the character trait
(2) Exceptions for Criminal s:
(A)
D offers evidence of Ds pertinent trait, IF admitted P may offer evidence to rebut
(B)
D may offer evidence of alleged victims pertinent trait (subj to 412), IF admitted prosecutor may
(i)
offer evidence to rebut AND
(ii)
offer evidence of Ds same trait
(C)
In homicide case, P may offer evidence of victims peacefulness to rebut first aggressor claim
Character Evidence in Crim Trial Admissibility Under 404(a)(2)
Type of Evidence
When can offer
Pertinent (relevant) trait of
Anytime
the
Alleged victims trait of
peacefulness
Other personality trait of the
victim

n/a- wouldnt intro this

evidence
Anytime

When prosecution may offer

Can rebut s intro of pertinent trait
If offers evidence of victims pertinent trait, prosecution can
intro evidence of s similar trait
In a homicide case when claims victim was the first aggressor
1)
2)

If offers evidence, can rebut (must comply with 412- Rape Shield)

What is a pertinent character trait? - Examples

(1) is peaceful (violent crime)
(2) is honest (fraud case)
(3) is averse to risk and gambling (gambling)
NON-EX: court excluded evidence of a Dr.s excellent patient skills in case for false Medicare claims
- Some courts say pertinence is the same as 401s relevance, some apply harsher standard
- Appellate courts give trial judges broad discretion
What is a matching trait? - Must be the same- prosecutor may not delve into other traits even if pertinent
- Ex: claimed he was deeply devoted to family. Court properly admitted prosecution evidence that he got along poorly with his family. Excluded
evidence that he tended to take things that didnt belong to him
Opening the Door:
- Prosecutions ability to cross-examine with specific acts discourages utilizing 404(a)(2).
- Risk devastating cross everyone has blemishes
- Peculiar: gives least persuasive evidence then gives P opportunity to counter with very persuasive
- Reflects the laws general dislike of character evidence to shower propensity
- doesnt have to use this evidence
Proof of character or reputation as element of the claim
- Some crimes, civil claims or defenses require proof of character or reputation to establish an element
- Ex: Defamation requires showing injury to reputation
- Not expressly allowed- but 401 & 402 (relevance) make specific authorization unnecessary
- Need another bar; 404(a) only bars character evidence when used to suggest a person acted consistent with their character on a
particular occasion
- Rule 405 gives permissible ways to prove character as an element
Rule 405: Methods of Proving Character
(a) By reputation of opinion: WHEN ADMISSIBLE- evidence of character or character trait can be proved by testimony about a reputation in the
form of an opinion. ON CROSS, the court may allow inquiry into specific instances (to counter opinion)
(b) When character or a character trait is an essential element of a charge, claim, or defense the trait MAY BE proven by relevant specific instances
of the persons conduct
405 Notes:
- 608 governs witness propensity to lie or tell the truth, 405 governs when 404 allows propensity in crim trials
- Requires foundation for opinion or reputation testimony
(1) Establish witness knows person (can use this to bring in positive info that might be barred)
(2) Witness then offers brief opinion or reputation report about character
- Like 608, opponent can ask about specific incidents cross

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- 405(a) bars the use of extrinsic evidence to prove events on cross - only requires good faith belief that it is true
- Can use hearsay and other weaker forms of evidence
- Evidence establishing good faith is NEVER showed to the jury
- Specific acts must be relevant to the character trait described by the witness
- 405(a) only allows opinion- nothing specific
- Testimony of the absence of specific acts is the same as testimony of specific act
- 405(b) allows introduction of specific incidents during case in chief if character is an element of the claim
- Can also prove under 405(b) using extrinsic evidence
- Other rules (403) may still prohibit the intro of evidence
- Character includes almost any personality trait, honestly, recklessness, aggressiveness, passive, peaceable, etc.
When is character an element?
- Defamation: truth of statements about character
- Child custody: deciding which party is a good parent
- Entrapment: requires proof didnt have predisposition to commit the crime
- Negligent entrustment: injured P must proof carelessly entrusted dangerous instrument to person they had reason to know would misuse the
instrument
- Parties in crim trial may present rebuttal character witnesses- in additional to cross examining opposing party character witnesses
Proof of other acts for non-propensity purposes
- Individual actions can support many different inferences about character traits, mental states or circumstances
Rule 404: (b) Crimes wrong or Other Acts
(1) Evidence of a crime, wrong or other act is NOT admissible to prove a persons character to show on a particular occasion the person acted
in accordance with character
(2) May be admissible for another purpose, such as proving motive, opportunity, intent, prep, plan, knowledge, ID, absence of mistake or lack
of request. IF D requests, P must:
(A) Provide reasonable notice of the general nature of any such evidence that P intends to offer AND do so before trial- or during trial
if the court (for good reason) lacks pretrial notice
404(b) Notes: - Cant use 404(b) as run around of 404(a)(1) cant introduce specific acts, proving character when it is really a propensity argument
- Acts MAY be admissible judicial discretion (403 balancing)
- Nine examples are NOT an exclusive list
- Applies to criminal and civil cases
- Potency of evidence makes notice requirement fair and gives an opportunity to prepare
- 404(b) might be unnecessary since (a) bars character ONLY when used for propensity (may be used for other)
- Alerts what is admissible- as opposed to what is excluded
- Need not have led to conviction (in fedl courts, doesnt even have to be by preponderance of the evidence)
- If acquitted, determine whether there is substantial evidence of his guilt
- May be used to exclude evidence proffered BY defendant as well (to show someone else did it)
404(b) is used for:

Motive: argues previous crime or bad act admissible because motivated charged crime

Plan: show that prior bad act part of a larger scheme

Identity: participants in prior bad acts/crimes able to identify the OR signature elements
o Also modus operandi so similar that its extremely unlikely to be 2 different criminals

Opportunity: evidence that enjoyed access to the protected place or special tools on another occasion

Knowledge: evidence that a had knowledge of a particular fact that is an element of the crime

Intent: evidence possessed the intent necessary to commit a crime

Doctrine of chances: eliminates the element of innocent intent (didnt get the rest, look up online or in class powerpoint)

Context: e.g. testifying about gunshot, was there because 911 call for domestic abuse

Preparation: evidence s acts were included in preparation for the crime charged

Any Other Non-Propensity Purposes in the Rule

o Preparation: overlaps with plan, knowledge and opportunity
o Absence of mistake & lack of accident: overlap with intent, motive and knowledge

Other uses of prior acts (complete the story)

Subsequent Crimes, Wrongs, and Acts: rule imposes no time constraints on evidence
o Unless timing effects relevance- prior and subsequent acts are admissible under 404(b)

Character related evidence is admissible in civil cases if proponent IDs a non-propensity purpose

Good Acts: 404(b) applies to good and bad acts

Standard: NOT beyond reasonable doubt OR preponderance only that the jury could reasonably find hat the other crime was committed
by D.
Rule 403 & Rule 404(b)

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Evidence under 404(b) has two purposes: (1) permissible & (2) propensity
Limiting Instructions: Judge admits under 404(b) gives limiting instructions: Jury should only use the evidence of another crime, wrong,
or act for the purpose for which the evidence was admitted not to draw inferences about character or propensity to act within that
character.

Rule 406 adds another permissible purpose for non-propensity character uses - habit
Habit: specific repeated responses to a particular situation or stimulus
Why admissible?
- Tends to be morally neutral- less chance or unfair prejudice
- (More important) higher probative value than propensity
Distinguish HABIT from propensity: look at three factors
1. Specificity of the conduct
- Yes: habit of wearing a seatbelt while driving
- No: Habit of being a safe driver generally
2. Distinctiveness of the situation producing the conduct
- Yes: Train conductor failed to blow whistle when approaching residential area
- No: Not repeated, varied unsafe conduct in range of situations
3. Regularity of the conduct
- Yes: Rode in car with , 10-20 times per year, for the last 20 years & another witness who rode with him a dozen times in the last 18
months
- No: 9 violations over 30 year period
Rule 406: Habit; Routine Practice
Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization
acted in accordance with the habit or routine practice. The court MAY admit this evidence regardless of whether it is corroborated or whether there
was an eyewitness.
406 Notes:
- Routine practice = organizations habit
- Standard procedures for dealing with a particular situation
- Courts more willing to accept routine practice from corp because the corporate world prefers standards
- Evidence is admitted and up to fact finder to evaluate and decide whether to believe (credibility determination)
- Silent about the process (courts usually allow opinion/specific instance testimony - spec instance more typical)
- Habit evidence is deemed sufficient to establish that a witness performed a disputed habit- no other substantiation needed (again goes to credibility)
- Ex: Testimony from a nurse that it is the practice (habit/custom) to warn all patients of the risks of a particular procedure, prior to the
performance of the procedure. Dont have to remember the particular instance.
SEXUALLY BASED OFFENSES (Rape Shield Law & Propensity) 412 415
Rule 412: The Rape Shield Law
- Restricts the kind of evidence that can be introduced in sexual assault cases (where D is charged with sex crime)
- Prohibits almost all evidence of an alleged victims prior sexual encounters or reputation
- 412 necessary because 404(a)(2)(B) gives s the opportunity to introduce pertinent traits of the victim
- 404(b) also allows admission when used to prove a relevant fact
Rational: (a) Victims sexual reputation and prior sex history are not relevant to prove consent on a particular occasion; (b) this type of evidence is
usually unduly prejudicial; (c) effective prosecution of sexual offenders necessary to encourage victims to come forward
Rule 412: Sex Offense Cases: The Victims Sexual Behavior or Predisposition
(a) The following evidence is NOT admissible in a civil or criminal proceeding involving sex misconduct:
(1) Evidence offered to prove the vic engaged in other sexual behavior
(2) Evidence offered to prove a vics sexual predisposition
(b) EXCEPTIONS
(1) Crim Cases: Court may admit the following evidence in a crim case:
(A) Specific instances of vics sexual behavior IF offered to prove someone other than was the source of the semen, injury or other physical
evidence
(B) Specific instances of the vics sexual behavior WRT the person accused of sexual misconduct

Offered to prove consent

Offered by the prosecutor

(C) Evidence whose exclusion would violate Ds constitutional rights
(2) Civil Cases: Court may admit evidence offered to prove a vics sexual behavior or sexual predisposition if its probative value substantially
outweighs the danger

of harm to any victim AND

unfair prejudice to any party

***Court may admit evidence of a vics reputation ONLY if the vic has placed it in controversy

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412 Notes:
- STILL subject to 404s bar on propensity, rule against hearsay, 403
- Applies to civil and criminal proceedings
- Only applies in trials involving alleged sexual misconduct - cant use to exclude evidence in other types of cases BUT charge doesnt have to be a
sex crime (Ex: Kidnapping where prosecutor intended to molest victim)
- Prohibits general character and reputation AND specific acts
- Broadly bars evidence regardless of the purpose
- Rule gives a narrow exceptions:
- 412(b): sexual behavior in (b)(1)(B) has been interpreted broadly - can include sexual statements
- 412(b)(1)(C) Catchall Exception (usually admitted when vic has made false accusations in the past)
- Doesnt override other rules- if violates others then out (ALWAYS subject to 403)
- Civil cases important points
- Subject to all other rules - apply reverse 403 balancing- probative substantially outweighs prejudice
- Danger is weighed to victim, as well as any party (victim doesnt have to be a party)
- ONLY admitted when victim has opened the door by presenting reputation
- 412(c) is procedural
- Party to offer must give notice to: (a) court (b) opposing counsel (c) alleged victim > 14d before trial
- Court must hold secret sealed proceeding, involving both parties and the victim to determine admissibility
Propensity in Sexual Assault and Child Molestation Cases
Exception to 404(a) propensity ban formulated in 1995 by Congress - allows intro of s other sexual misdeeds without identifying a non-propensity
purpose under 404(b) (applies 403- NO SPECIAL BALANCING)
Arguments by supporters
- Sexual predators possess a distinctive disposition- makes evidence more probative
- Cases of sexual assault/child molestation are particularly hard to prove (turn on credibility of the vic and )
Objections
- 404(b) already allows admission of evidence if proves anything other than propensity
- Increases danger that a will be convicted for past deeds
- Rules dont require conviction- therefore intro of evidence could create a series of distracting mini-trials
Rule 413: Similar Crimes in Sexual Assault Cases
(a) Permitted Uses: In a crim case where in accused of sex assault, court may admit any evidence that the committed any other sex assault.
Evidence may be considered on any matter to which it is relevant.
(b) Special disclosure procedures- must give notice
(c) Effect on Other Rules: Does not limit the admission or consideration of evidence under any other rule. (Do not overrule hearsay or privilege and
preserves application of 403)
(d) Defines sex assault- focuses on physical rather than verbal conduct
Rule 414: Similar Crimes in Child-Molestation Cases
(a) Permitted Uses: In a crim case where in accused of child molestation, court may admit any evidence that committed any other child
molestation. Evidence may be considered on any matter to which it is relevant.
(b) Special disclosure procedures- must give notice
(c) Effect on Other Rules: Does not limit the admission or consideration of evidence under any other rule. (Do not overrule hearsay or privilege and
preserves application of 403)
(d) Defines Child molestation- person BELOW the age of 14
413 & 414 Notes
- Only apply in criminal trials where is charged with sexual assault or child molestation
- Mirror Image Rule: Evidence must be exact same as charged (sexual assault or molestation)
- Evidence is admissible for ANY relevant purpose- even propensity
- Overrides 404(a)(1)s general bar but preserves Rule 403 application
- No time limit- judicial discretion (403 balancing - big factor: how long ago)
Rule 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses: In a civil case involving a claim for relief based on alleged SA or CM court may admit evidence that party committed any other
SA or CM. Evidence considered as provided under 413 and 414
(b) Same notice provision as 413 & 414
(c) Acknowledges application of other FRE
415 Note: No time limit- judicial discretion (403 balancing)
403 Factors to Consider under 413-415:
1) Length of time that has passed since the other acts
2) Reliability of the witness testifying about the other acts

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3) Similarity of the other acts to those charged
4) Whether the government could make similar points with less prejudicial evidence
PRELIMINARY QUESTIONS 104
- Admissibility depends on questions of law Judge decides & jurors play no role in this process
- Admissibility depends on contested facts
Rule 104
- Establishes a process for resolving disputed issues relating to admissibility
- Most prelim questions are assigned to the judge (ALL legal, or factual disputes if relevance is at issue)
- Judge asks whether enough evidence exists that a reasonable jury COULD resolve in a manner that makes the evidence relevant (low
standard)
Factual disputes not effecting relevance - process:
(1) Judge reviews evidence from both parties
(2) Resolves credibility issues
(3) Decides the factual question- uses 104(b) evidence to support a finding evidence
- Bourjaily: simple preponderance standard applies to all preliminary factual issues resolved under 104
Rule 104: Preliminary Questions
(a) The court MUST decide any prelim question about whether a witness is qualified, a privilege exists or evidence is admissible. In so deciding,
the court is not bound by evidence rules (they can look at everything) EXCEPT those on privilege.
(b) When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does
exist. The court may admit the proposed evidence on the condition that the proof be introduced later
(c) Court must conduct any hearing on a prelim question so the jury cannot hear it if:
- Hearing involves admitting a confession
- in a crim case is a witness and so requests it
- Justice so requires
(d) By testifying on a prelim question, in a crim case does not become subject to cross on other issues
(e) Rule does not limit the partys right to intro evidence before the jury, evidence that is relevant to the weight or credibility of other evidence.
104 Notes:
- Judge is default decision maker
- FRE doesnt apply to prelim determinations (judge can look at anything to determine admissibility)
- Privilege still applies (ie: doctor/patient, attorney/client, spousal)
- Relevance is not just 401/402: relevance exists in the application of other rules too (Ex: 602 requires personal knowledge. If parties contest that a
witness actually saw the events, judge can review and determine if testimony will be admitted.)
- Rules offers no guidance on which party bears burden of proof (usually party offering proof as having burden)
- Judges always apply 403 balancing
HEARSAY AND EXCEPTIONS
Rule 801: Definitions that Apply to This Article; Exclusions from Hearsay
(b) Declarant means the person who made the statement
(c) Hearsay means a statement that:
(1) Declarant DOES NOT make while testifying at the current trial or hearing AND
(2) A party offers in evidence to prove the truth of the matter asserted in the statement
Rule 802: The Rule Against Hearsay
Hearsay is NOT admissible unless a fedl statute, FRE, or other SCOTUS rule provides otherwise:
Reasons to be suspicious of hearsay: Perception, Memory, Clarity, and Sincerity

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Why worried about out of court statements and not testimony?
- Witnesses available for cross examination
- Can explore dangerous areas via cross and clear up and address issues during direct/redirect
- Gives jury the chance to evaluate the witness
- Witness is under oath- gives statement more weight (hearsay- witness only swears to the truth of what they HEARD, it doesnt put
firsthand reporter on the stand)
Rule 602 Issues
- 602 only allows testimony only about things they know personally (silently incorporated by 801(b): assumes the statement made by the declarant
based on personal knowledge)
- Hearsay is an issue because instead if testifying about what they perceived, the witness is testifying about a prior statement made by someone with
personal knowledge
Truth of the Matter Asserted
- If a litigant offers for the truth of the matter asserted it is inadmissible
- Ask: Do we care about content or simply that the statement was made?
- Non-Hearsay Uses of an Out of Court Statement
(1) Prove Effects on the listener
- Doesnt have to be true just make them think it was
(2) Impeach with inconsistency
- Witnesss out of court statement different that in court statement
- Different then admitting for truth under inconsistent statement exception
(3) Prove a verbal act (legally operative language) hear a verbal contract (I accept, etc).
(4) Circumstantial evidence of state of mind
(5) Knowledge of the speaker
(6) Notice
(7) Publication
- Defamation- demonstrate that a statement was made and at least one other person heard or read it.
- Dont care about the truth- only that it was made
Limitations
- Admissions under non-hearsay may require LI because can be used for hearsay purpose
- Do a 403 balancing if hearsay purpose might overwhelm non-hearsay
Rule 801: Definitions that Apply to This Article; Exclusions from Hearsay
(a) Statement means: a persons oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. (questions are
assertions (eg does he have any drugs?)
801(a) Notes:
- Applies to both written and oral communications
- Assertive behaviors are statements subject to the hearsay rule (e.g. nodding head to answer yes)
- Conduct that is NOT a statement:
- E.g. S testifies that she noticed D reach into his pocket, take out his phone and beginning speaking at 2pm. Ss testimony offered to
demonstrate event took place at 2pm. D did not intend to communicate any meaning through statement, so this was not an out of court statement.
- E.g. A walks in on her brother crying. Offers as testimony to show debt collection agency caused him emotional stress. Tears were not
intended to communicate facts to others; he started crying before A entered the room. Evidence is circumstantial evidence of mental distress.
Implied Assertion Analysis (example: police officer answers phone in keiths home after arresting him, person says does keith have any drugs?)
(1) How far removed was the implied assertion (ie keith is a drug dealer) from what the declarant meant to say/convey (ie does keith have drugs)?
-the Closer the gap= more like hearsay
- Examine intent: what is the person trying to say
(2) Does utterance have a performance aspect or mere chatter? (chatter=more like hearsay)
(3) Is statement offered merely to prove declarants mental state?
- Or instead is it offered to prove a fact the declarant remembered or believed?
- Majority Rule: A statement doesnt qualify as hearsay when offered to prove something declarant didnt actually intend. (ie in case above with
drugs, it is not hearsay)
- Minority Rule: statement qualifies as hearsay when offered to prove something implied by the statement, if probative value flows from declarants
belief as to the matter (Wright)
Other media
- Audiotapes: assertions on tape are statements; analogous to a witness repeating out of court assertion
- Photos & Videotapes: Depends on what they portray. Most DO NOT portray human assertions; usually depict physical objects or non-assertive
human conduct
- Security cameras: Produce a video, do not report an assertion
- Crime Scene photos: do not portray an assertion- document the scene
- Do these look like present sense impressions?
- Machine Readouts: Information conveyed by a machine not hearsay

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- Ex: Watch giving time or thermostat giving temperature
- Complex devices such as polygraph or radar gun use automated processes to report info
- Telephone or email do convey human messages. So they are assertions.
Indirect hearsay: cant just take out the hearsay and then move forward with testimony to imply what the hearsay was going to say. See #14 on pg 49.
Court said cant do this; skirting hearsay rule.
Hearsay Exceptions: 801 807
Admissible Hearsay Generally
- Why admit some hearsay? (1) Some statements are more reliable than others
- Some circumstances boost reliability
- All exceptions rest in part on some indicia of reliability
(2) Some statements are more needed than others
- Murder victims declaration only pronouncement on the issue
- Balance of admissibility- especially is circumstances suggest is more reliable
4 Categories of Exceptions
Rule 801(d): Apply for prior statements by a witness, statements made by opposing parties
Rule 804: Apply only if the declarant is unavailable to testify (relies heavily on the need for the statement)
Rule 803: (largest category- 23 exceptions) Apply whether or not declarant is available to testify (depends substantially on reliability rather than
need)
Rule 807: Residual exception that allows courts to admit statements that fall outside the 30 exceptions but have similar guarantees of trustworthiness
(used infrequently)
Hearsay exceptions determined by the judge
- Rule 104 assigns prelim fact questions to the judge- jury only determines relevance
- Party offering the evidence must persuade the judge by a preponderance of the evidence that there is an exception
- Sixth Amendment
- Right to be confronted with the witnesses against him - courts have struggled to determine when the exceptions violate the 6 th
Amendment
- Crawford v. Washington: Confrontation Clause
Rule 801: Definitions that Apply to this Article; Exclusions from Hearsay
(d) A statement that meets the following conditions is NOT hearsay
(1) A declarant witnesss prior statement if declarant testifies & is subject to cross-examination:
(A) is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing or other proceeding or in a
deposition
(B) is consistent with the declarants testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it
or acted from a recent improper influence or motive in so testifying.
(C) Identifies a person as someone the declarant perceived earlier
Why does this exist?
*(d)(1)(A): inconsistent ensures evidence is particularly useful, made under penalty or perjury at proceeding ensures reliability
*(d)(1)(B): consistent reliability less of an issue- witness will confirm, must be to rebut lying- TIMING is important here (before the motive to lie
happened)
*(d)(1)(C) out of court IDs more reliable than in court, occur closer in time, trial ID is heavily influenced- is there (want to cross thoughbecause memory and ID psychology can be probed)
Subject to Cross Requirement
- Witness on the stand but claims no memory; are they available for cross?
- 801(d)(1) requires that witness be placed on the stand, under oath, and respond willingly to questions
- This is satisfied even if witness no longer remembers
- Opposing counsel has ample opportunity to on cross to explore the gaps and potential unreliability of testimony
- Courts dont hold people feigning memory loss as unwilling- subject to cross, attorney to expose
- Real memory loss?
- On stand + oath and a willingness to answer questions satisfies cross requirement
- Privilege Assertions
- Blanket privilege asserted: NOT subject to cross
- Witnesses claim selective privilege: may be subject to cross
- Inconsistency
- Typical- initial cooperation with the government and now alter testimony
- Difficult: evasive answers given in court or testimony of no memory
- Admit- available for cross
- Jury can eval demeanor and make a determination
- Proceeding - Prior inconsistent ONLY admissible under oath at a proceeding
- Other Proceedings (grand jury, etc. no particular criteria, but audience + transcript prob OK)

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- Timing of Prior Consistent
- Only admissible if prior inconsistent statement made before motive to lie or improper influence arose
- Must argue and determine when the motive occurred
- Out of Court ID
- Declarant can testify as long as (1) witness that is (2) subject to cross
- Person who witnessed the ID can also testify (police)
Prior Inconsistent Statement to Impeach (613) v. For truth of Matter Asserted (801(d)(1)(A)
Rule 613
Rule 801(d)(1)(A)
Any prior inconsistent statement related to a fact of
Prior inconsistent statement must have been made under penalty of perjury at a
consequence is admissible
trial, hearing, other proceeding or deposition
Statement admissible only to impeach
Party may rely on the statement for the truth of the matter
Limiting instruction
No limiting instruction
Present Sense impressions & Excited Utterances 803(1) & 803(2)
Rule 803: Exceptions to the Rule against Hearsay
******Regardless of Whether the Declarant is Available as A witness
803: The following are not excluded by the rule against hearsay regardless of whether the declarant is available as a witness:
(1) Present Sense Impression: a statement: A statement describing or explaining an event or condition, made while or immediately after the
declarant perceived it
(2) Excited Utterance: A statement relating to a startling event or condition made while the declarant was under the stress of excitement that it
caused
Generally
- Witness didnt have to perceive event only hear PSI or EU
- Special indicia of reliability
- PSI- lacks time to formulate a lie
- EU- response to a startling event has little opportunity to concoct falsehood
- Under stress a person can generate spontaneous reactions that are false rather than true
- Jurors are free to evaluate the information and the circumstances
- Foundation is important for admission
- FRE doesnt apply to initial determinations- proponent can use the statement it self to prove EU or PSI if content demonstrates (104
question to JUDGE)
PSI Proponents introduce:
(1) Declarants in course testimony affirming she made the statement as the event was perceived
(2) Testimony from other witness that the declarant made statements while the event unfolded
EU proponents introduce
(1) Declarants in court testimony affirming they were excited
(2) Testimony from witnesses who perceived the declarant and can testify to:
- Mannerisms and tone of voice when he made the statement (ex: crying)
- The time elapsed between the provoking incident and the statement (should be real quick)
- Declarants relationship to the provocation (ex: bystander vs. personal involvement)
- Sometimes declarants age, prior experiences and other characteristics effecting excitement
- Evidence of how traumatic or exciting the event that provoked the statement really was
Present Sense Impressions - describes an event as it unfolds
- Only to descriptions or explanations- NO ANALYSIS
- Simple records are not analysis (ex: recording the codes of the turkeys)
- Must be made while perceiving or immediately after (courts split on whether it needs to be contemporaneous, 7th circuit requires it to be
contemporaneousie inventorying pot numbers #3 on pg 53 wouldnt be admissible because not contemporaneous, but rather probably in prep to be
used for litigation)
- Usually no more than a few seconds, never more than a few minutes of leeway
- Analyze the time gap - if declarant spent time searching for a way to communicate prob OK
- But could argue that the witness had time to modify or some details were changed in their mind
- Written statements- can qualify as long as no analysis just documenting
Excited Utterance - excited person responding to a startling event
- Must speak while excited by a startling event
- Subjective standard- was the particular declarant excited
- How to evaluate? Physical, vocal inflection, individual persons known responses (again, subjective)
- Must relate to the startling event
- Can move beyond description to analysis or interpretation MUCH broader allowance than PSI
- How long does excitement last? Context matters.
- Subjective: how long does it take the individual to recover?
- EU in writing? No absolute bar- but weighs against admission

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- Time to write implies opportunity for reflective thought
- Look at the totality of the circumstances
State of Mind 803(3)
Rule 803(3): Then existing mental, emotional, or physical condition:
A statement of the declarants then existing state of mind (such as motive, intent or plan) OR emotional, sensory, or physical condition (such as
mental feeling, pain or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to
the validity or terms of the declarants will.
State of Mind Concerns
- Contemporaneous expression of an internal state is analogous to the immediate reporting of an external event
- Cannot suffer from faulty memory CURRENT
- Low risk or misperception (can fool yourself about feelings, but no one else explains them more accurately)
- Secondhand reports about expressed state of mind also have diminished insincerity - no reflection (like PSI)
- Greater risk of deception- describing internal, can formulate a lie
- Clarity- internal feelings are subjective - Slight pain to one person is searing pain to another
- Without cross cant pin down exact range of feelings
*** Despite concerns- 803(3) accepts declarants state of mind expressions
Elements of the Rule
(1) TIMING: then existing = must be contemporaneous - I was miserable last night DOES NOT COUNT
(2) CONTENT REQ: 4 BROAD types of internal states- must be about declarants state of mind
a. Emotional condition
b. Sensory condition
c. Physical condition
d. State of mind
(3) PURPOSE: Statements of Memory or Belief- cant be used as inference about what produced state of mind
- Not admissible under exception when offered to prove fact remembered or believed
- I believe Diana is the person who pulled the trigger - admissible to show at that moment
declarant believes Diana pulled trigger; NOT admissible to say she pulled trigger.
- Necessary to avoid semantic games - witnesses could couch everything as an I believe statement
- Can be used to look forward and draw inferences of how people acted because of their state of mind
- Always look for ways in intro fear as forward looking. (ie: b/c of fear wouldnt have gone with the )
- Cannot be used to look backward and draw inferences of what caused the feeling (usually fear)
What is State of Mind?
- Do not over apply- most things people say are not reports about mental state
- Internal vs. external description distinction (Im excited because I won v. I won)
**NOTE**: Make sure to evaluate the entire statement. Some pieces may need to be redacted
Circumstantial Evidence of Mental State
- External facts are sometimes admissible to prove state of mind
- These statements are not hearsay not going to the truth of the matter asserted NOT 803(3)
I think, I believe, I remember
- Usually introduce statements about external factors or events
- Look at purpose
a. Truth of the matter = hearsay and not coming in unless falls under another exception
b. That the declarant had a thought or feeling at a particular time then ok
- Memories and beliefs are often relevant and can come in as evidence of state of mind
Looking Back
- Only current state of mind statements
- Current mental state can be circumstantial evidence of prior mental condition
- 803(3) allows parties to introduce hearsay expressions about then-existing mental states to help prove subsequent thoughts or acts - circumstantial
evidence to prove acted consistently with the expressed plan
- Mutual Life Insurance v. Hillmon: Case questioning whether deceased was Hillmon or travel companion Walter. SCOTUS admitted letters Walter
wrote indicating plans to travel w/ Hillmon.
- Uncontroversial as it relates to travelling with the husband.
- Concerns: plans change + not available for cross on the specificity and extent of the plans
- Status of the Hillmon Doctrine:
- 803(3) does not expressly address using state of mind to prove actions of another person, but does not overrule or limit (Advisory
Committee notes = Hillmon is alive and well)
- House report on 803(3) intends that it be construed to limit the doctrine so as to render statements of intent by a declarant admissible only
to prove HIS future conduct and not the conduct of another person

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Medical Treatment 803(4)
Rule 803(4): Statement made for medical diagnosis or treatment: A statement that:
(A) is made for and is reasonably pertinent to medical diagnosis or treatment; AND
(B) Describes medical history; part/present symptoms/sensations; their inception; or their general cause
Elements of the Rule
Purpose: Made for medical diagnosis or treatment (purpose requirement)
- Subjective eval: was the patient actually seeking medical treatment or diagnosis
Content: Reasonably pertinent to diagnosis (content limit)
- Objective counterpart of diagnosis/treatment analysis
- Broad discretion to doctors- assume if they solicit information from patient it is pertinent
- Statement must describe medical history or past or present symptoms, pain or sensations or the
inception or general character of the cause . . . insofar as reasonably pertinent to diagnosis
*Must fit into one of 3 categories
(1) Accounts of medical history
(2) Descriptions of past or present symptoms or sensations
(3) Reports about the inception of the condition or its general cause
*Rule does not deal with contemporaneity
Who is the declarant?
- Usually the patient
- Sometimes applies to family members who bring patient in for medical care
- Courts assume family members trying to help-statements admissible IFF they meet other requirements
- Causes issues if the family member is the cause of the ailment
Who is the audience?
- Usually a doctor or medical professional, BUT rule does NOT require this
- Can be made to anyone as long as trying to get a diagnosis or treatment (Ex: A tells B I have been
vomiting all day. I have a headache. I need to see a doctor. = ADMISSIBLE because seeking help.)
- Farther we get from doctor/patient relationship the harder it is to fulfill the subjective req.
Diagnosis or Treatment
- Allows statements to doctors made purely for diagnostic purposes
- Admits statements made to doctors consulted purely to prepare for litigation
- Med mal the plaintiff almost always gets a non-treating physicians diagnosis to support the claim
- Statements made by victims to the doctor to gather evidence for prosecution
- As long as statements pertinent to diagnosis
- Statements can be self-serving can exaggerate injuries (Civil Cases)
Cause and Source vs. Fault and Blame
- 803(4) admits statements regarding inception or general cause of the injury when pertinent to medical care
- Blaming specific individuals or attributing a degree or fault is usually NOT relevant to medical care
***Exception: Blaming the factory because there was asbestos in the wall. Location is pertinent.
Psychologists and Psychiatrists
- No defensible line between physical and psychological conditions
- Adequate treatment for psych may include knowing details not pertinent to physical treatment
- General cause and blame are often tough to separate for psych
Medical Treatment for Domestic or Sexual Abuse
- Often statements to doctors are incredibly important b/c victims refuse to testify
- Child sexual abuse courts have blurred identity line, finding perpetrators ID pertinent to treatment and admissible under 803(4) (limited number of
courts- limited to sex abuse)
(1) Treatment of a patient suffering regular ongoing abuse may include separation from abuser
(2) Effective psych treatment of an abuse victim may require the doctor to know who caused the abuse
- Some courts include particularly traumatic spousal abuse in child abuse exception
Recorded Recollection 803(5)
Rule 803(5): Recoded Recollection: A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully
and accurately;
(B) Was made or adopted by the witness when the matter was fresh in the witnesss memory
(C) Accurately reflects the witnesss knowledge
*If admitted the record may be read into evidence and received as an exhibit only if offered by an adverse party

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Six Elements of an Admissible Record
(1) Must appear in a record (memorandum, report or data compilation (101(b)(4)))
(2) Witness must be declarant or a person who saw the record and agreed it was true (adoption OK)
(3) Witness must testify that she once knew about the info and made or adopted when they had the knowledge
(4) Must have made or adopted when the knowledge was fresh (more liberal than at or near the time)
(5) At the time the record was adopted witness knew it accurately reflected knowledge she had
(6) Witness must no longer recall info in the record
Introducing the evidence
- Jury gives documents greater weight so witness reads into evidence to make it oral testimony
- Adverse party can introduce the document as an exhibit
Insufficient recollection
- Enforced to prevent parties from circumventing hearsay rule + bolstering testimony with previous statements
- Can also apply when the witness feigns memory loss
- Made or Adopted - witness does not have to have made the document himself, so long as approved content when knowledge was fresh and affirms
at trial that the doc was accurate when it was adopted = admissible
Freshness - Does not require contemporaneous note taking - courts have allowed large time gaps (15 months) as long as declarant genuinely
remembered the information at the time it was recorded
Beyond Writings - Judges construed rules reference to record broadly to include audiotapes and other media
Need Arises When
What Witness Does
Types of Evidence
Who Can Introduce as
exhibit
Hearsay Relationship

Rule 612: Refreshing Memory

Witness cannot recall details of an event or other
matter or which she once had personal knowledge
Views evidence (usually writing) to jog memory,
testifies w/o further reference
Any evidence that will help a witness remember; the
witness need not have created or adopted the material
Only adverse party (party that did not call witness)
Witness testifies directly from memory after
refreshment, so no hearsay issue. If adverse party
introduces writing into evidence, admissible only on
credibility. For the jury to consider the writing for the
truth of the matter asserted it must fall within the
hearsay exception.

Rule 803(5) Recorded Recollections

Witness cannot recall details of an event or other
matter or which she once had personal knowledge
Reads into record information from a document or
other record
One made or adopted when matter was fresh in
the witnesss memory. Record must correctly reflect
witnesss knowledge at the time it was recorded
Only adverse party (party that did not call witness)
Statements contained in the record are admitted as an
exception to the hearsay rule. The jury may consider
the content of the document or other record as read
into the trial record by the witness for the truth of the
matter asserted.

Layers of Hearsay 805

Rule 805: Hearsay Within Hearsay
Hearsay within hearsay is NOT excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
- Must lay foundation for the first out of court statement in the chain
- This can be difficult- courtroom witness usually lacks information about early declarants
- Only hearsay when offered for truth of the matter asserted- other purpose hearsay
Business Records 803(6)
Rule 803(6): Records of Regularly Conducted Activity: A record of an act, event, condition, opinion or diagnosis if: (A) Record was made at or
near the time by or from info transmitted by someone w/ knowledge;
(B) The record was kept in the course of regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) Making the record was the regular practice of that activity;
(D) All these conditions are shown by the testimony of the custodian or other qualified witness or by a certification that complies with Rule 902(11)
or (12) or with a statute permitting certification; and
(E) Neither the source nor the method or circumstances of preparation indicate a lack of trustworthiness
Why allow these docs?
- Organizations generate these docs according to well-established practices (likely to detect/reduce mistakes)
- Rely upon these docs to make important decisions (strong incentive to exercise care and honesty in these docs)
- More needed - document thousands of pieces of info- coming from different EEs (cant call EACH one)
Elements
1. Record
- Expansively defined by 101(b)(4)- memo, report or data compilation
- May contain information about acts, events, conditions, opinions or diagnosis

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- Does not have to be a fact- can be a conclusion as long as complies with all other conditions
2. Personal knowledge
- Of the data OR received from someone with PK
- Recorded at or near the time- not as strict as PSI (reasonable time- depends on the organization)
3. Course of Regular Business & a regular practice of the business
- Routines increase accuracy
- Ad hoc documents dont have reliability or eliminate hearsay concerns
4. Qualified witness introduces into evidence
- Person who maintains the record
- Very broad interpretation
- Can be certified if no live witness
5. Source of info or method lacks trustworthiness (reports that look self-serving)
803(6) Notes:
- Business is defined very broadly - admissible b/c conducted in the course of decls business
- Custodian or witness must testify that:
- Record was kept in the regular course of business; and
- Record was a regular practice; and
- Record was made by someone with PK of the recorded info and from info transmitted by person w/ PK
**Does not have to be the docs record keeper. Can be witness who knows the record keeping practices**
- Lack of trustworthiness:
- Palmer v. Hoffman: company obtained statement from an engineer after accident. This was standard practice.
- Employees post-accident statement lacks the reliability of other business docs. Primary utility is
litigation NOT railroading
- Insiders vs. Outsiders - 803(6) applies ONLY to information transported between insiders. Does not apply to customers or third parties who provide
info to the organization (double hearsay)
Public Records 803(8)
Rule 803(8): Public Records: A record or statement of a public office if:
(A) It sets out:
(i) The offices activities
(ii) A matter observed while under a legal duty to report, BUT NOT INCLUDING, in a criminal case, a matter observed by lawenforcement personnel; or
(iii) In a civil case or v. the govt in a criminal case factual findings from a legal authorized investigation
(B) Neither the source of the info nor other circumstances indicate a lack of trustworthiness
Elements
- Section (A)(i): all activities of the public office (e.g. record of money spent)
- Section (A)(ii): matters observed
- Only matters the agency has a duty to report (excludes 3P observations and reports)
- Excludes all records or observations made by law enforcement when offered in a crim case
a. Law enforcement has a strong interest in conviction
b. 6th amendment guarantees the right to confront witnesses against them
- Section (A)(iii): factual findings from a legally authorized investigation
- Not admissible AGAINST in crim case
- Fact-finding interp. broadly to include opinions/conclusions of investigator + underlying facts
- Must be legally authorized - Enhanced reliability because performing an official function.
Law Enforcement & Criminal s
- Police reports admissible in Civil NOT criminal (police have strong interest in convictions)
- (A)(ii) protects v. observations by law enforcement. OK for observations by other public officials
- Police records are admissible when made in a non-adversarial setting (e.g. deportation warrant)
- Melendez-Diaz: attorneys pressing courts to abandon the ministerial task distinction
Lack of Trustworthiness Caveat - 4 Factors to Consider
(1) Timeliness of the investigation
(2) Special skill or experience of the official conducting the investigation
(3) Whether a hearing was held by the public agency prior to the report being made
(4) Whether the motivation of the public agency is suspect
- In anticipation of litigation one factor does not necessarily preclude
Factual findings
- Ambiguous terms
- Length of skid marks- clearly yes
- Conclusion of shooting review board that it complied with guidelines = not clear

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- SCOTUS Clarification: interpret broadly to include all facts, opinions and conclusions found in the report of an investigation
Hearsay within hearsay
- Unless another hearsay exception admits those statements- redacted what is not police or government observation (look for I observed statements)
- Investigators and others can rely on third party statements to generate opinions and conclusions
**Document that falls under 803(6) & 803(8) must meet latters admission requirements
Unavailability 804(a)
Rule 804: Exceptions to the Rule Against Hearsay- When the Declarant in Unavailable as a Witness
(a) Criteria for being unavailable: A declarant is considered to be unavailable as a witness if the declarant:
(1) Exempted from testifying because the court rules that a privilege applies
(2) Refuses to testify about the subject matter despite a court order to do so;
(3) Testifies to not remembering the subject matter;
(4) Cannot be present because of death or then existing infirmity, physical illness or mental illness; or
(5) Is absent from the trial or hearing and the statements proponent has not been able, by process or other reasonable means, to procure
(A) declarants attendance in the case of hearsay exception under 804(b)(1) or (6); or
(B) declarants attendance or testimony, if hearsay exception under Rule 804(b)(2), (3) or (4).
**But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in
order to prevent the declarant from attending or testifying.
Types of unavailability
(1) Privilege: witness invokes AND court agrees
- Attorney/client, spousal, 5th Amendment
- Requires calling to the stand and the witness invoking
(2) Refusal to testify: witnesses refuses, despite court order
- Judge can hold the witness in contempt and impose penalty
- Party who called uncooperative witness doesnt have to suffer
(3) Lack of Memory: witness claims he doesnt have memory of previous statement
- Must call to the stand- they testify they have no memory
-Does not require finding of actual memory loss
- Crucial factor not unavailability of witness, it is the unavailability of his testimony
(4) Death, Physical Illness, Mental Illness: Unavailable if dead or so injured that they cannot testify
- Dead- introduce death certificate
- Other illness: documentary evidence or live testimony to demonstrate condition
- Judge can postpone trial until health improves
(5) Absence: party shows they tried to find the declarant and were unable to do so
- Outside jurisdiction not enough. Party must show they used reasonable means to persuade to attend
- Proponent must show reasonable attempt to get depo is declarant will not attend the trial
- Party must make good faith genuine effort to procure attendance
(6) Wrongdoing: cannot be cause of non attendance because of wrongdoing
Former Testimony 804(b)(1)
Rule 804(b): The exceptions: The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former
testimony: Testimony that:
(A) Was given as a witness t a trial, hearing or lawful deposition, whether given during the current proceeding or a different one; and
(B) Now offered against a party who had- or in a civil case, whose predecessor in interest had- an opportunity and similar motive to
develop it by direct, cross-, or redirect examination
Elements
(1) Unavailable (See 804(a))
(2) Given at a trial, hearing or deposition (ensures made under oath and in a formal setting + formal transcript)
- Doesnt need to be part of the same lawsuit
(3) Opposing party must have had opportunity to question the declarant
- Doesnt have to have taken advantage of the opportunity
- Doesnt have to have been cross-exam -> could have been their witness first
(4) Motive in questioning must have been similar to the motive the opposing party would have had in cross
a. Why are you questioning? Is the scope the same?
b. Difference between pretrial suppression and actual trial questioning
c. BUT: if witness brings something up at an earlier proceeding, question until judge shuts it down (outside the scope). MINORITY
RULE: could be used later against you and be told had the chance to cross
d. 4 Factors (Fact specific inquiry)
1. Type of proceeding
2. Trial strategy
3. Potential penalty or financial stakes
4. Number of issues and parties

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(5) Parties
- Crim case: must be the SAME parties in both cases.
- Improper to force the to rely on someone elses cross, even if identical motives
- Civil: predecessor in interest (looser standard)
- Common law privity but more expansive
- Look at the similarity of issues and the purpose for which the prior testimony was offered
- Virtually the same as the motive analysis
- did a previous party have similar motive to develop the testimony about the same material fact? Then they are a
predecessor in interest.

Declarant:
Content:
Context of Prior
Statement:

Comparison to Rule 801(d)(1)(A)

Prior Inconsistent - 801(d)(1)(A)
Former Testimony - 804(b)(1)
1) Must testify at current trial or hearing
Must be unavailable
2) Must be subject to cross concerning the
statement
Inconsistent with current statement
Any content
1) Given under penalty of perjury
1) Given as a witness, implying under penalty of perjury
2) Made at any prior trial, hearing, other
2) Made during a trial, hearing or deposition at which the current
proceeding or deposition
opponent (or in a civil case the predecessor in interest) had an
opportunity and similar motive to develop the testimony

Dying Declarations 804(b)(2)

Rule 804(b): (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant,
while believing the declarants death to be imminent, made about its cause of circumstances.
Elements
(1) Applies only if unavailable (See 804(a))
(2) Only applies to homicide and civil cases (crim s right to confront witness)
(3) Declarant must believe death is imminent
- Subjective requirement- look to state of mind- FACTORS
a. Statements by the declarant
b. Statements made by medical personnel and others to the declarant
c. Nature and extent of the wounds or illness
d. Length of time between the statement and the declarants death.
e. Opinion of medical personnel who treated the declarant about the declarants health
- Dont actually have to die- just believe it is coming
- probably doesnt need to be spontaneous, thus being questioned by police is ok.
(4) Content of the statement must concern the cause or circumstances of the declarants death
*** Many dying declarations can also be admitted as excited utterances (803(2)), state of mind (803(3)), statements about medical treatment (803(4))
and forfeiture by wrongdoing (804(6))
---mere suspicions are not enough: guy writes down name of guy with blood after being car-bombed, but he is merely speculating and likely didnt
actually see the guy pull the trigger on the bomb. This is not enough. But, if he was stabbed/shot and likely saw the person and writes the persons
name, then it is ok.
Statement Against Interest 804(b)(3)
Rule 804(b): The exceptions: The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness
(3) Statement Against Interest: A statement that (A) a reasonable person in the declarants position would have made only if the person believed it
to be true because when made it:

was so contrary to the declarants proprietary or pecuniary interest or

had so great a tendency to invalidate the declarants claim against someone else or

to expose the declarant to civil or criminal liability and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose
the declarant to criminal liability
Aspects
(1) Declarant is unavailable to testify
(2) Against interest when made
- Harmful at time even if ends up being innocuous counts
- Innocuous at the time and becomes incriminating- does not count
- Subjective inquiry- what did the declarant think at the time?
- Ex: if SOL has run, declarant cannot face liability. Still admitted against him if he doesnt know
(3) 3 ways to be against interest
(a) Contrary to proprietary or pecuniary interest
(b) Invalidate claim against someone else

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(c) Expose to civil or crim liability
(4) Objective standard for deciding whether the statement was sufficiently against the declarants interest
- Would a reasonable person in the declarants position have made the statement?
- Judge takes into account general circumstances, not person idiosyncrasies
- Holistic inquiry- what competing motivations exist
(5) Statement exposing to crim liability in a crim case only admissible with indicia of reliability
Against Interest
- So contrary that a reasonable person in the declarants position would have made it only if believed to be true
- Ex: confession of liability or apology to non-law enforcement
- Law enforcement context is different
- Tough to tell if against interest what if declarant got grant of immunity
Other interests
- Rule only recognizes proprietary or pecuniary
- Others (family, physical) make statements validity more persuasive
- Confess, but implicate someone else and get more lenient sentence doesnt seem against interest
Statements
Statement is literally a sentence. This exception does not allow admission of non-self-inculpatory statements, even if they are within a broad narrative
that is generally self-inculpatory. Need to break down long narratives into small statements.
Thus, Mixed Statements
- Dont admit as a narrative- courts must admit only portions that were against interest (redact extra info)
- Can still look at context to determine whether something is against penal interest
Trustworthiness- examine the following factors
(1) Whether declarant pled guilty before making the statement or was still subject to prosecution
(2) Declarants motive in making the statement and whether there was a reason for declarant to lie
(3) Party or parties to whom the statement was made
(4) Relationship of declarant to the accused
(5) Nature and strength of independent evidence relevant to conduct
Forfeiture By Wrong Doing 804(b)(6)
Rule 804(b): The exceptions: The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness
(6) Statement Offered Against a Party That Wrongfully Caused the Declarants Unavailability. A statement offered against a party that
wrongfully caused- or acquiesced in wrongfully causing- the declarants unavailability as a witness and did no intending that result
Elements
(1) Party must have wrongfully caused or acquiesced in the witnesss unavailability
- Book says- does not apply to parties who use legit means to dissuade from testifying (EJ says no!)
(2) Opposing party must have intended to make witness unavailable
- Unintended consequence of an action then this section does not apply
- Wrongdoing must have caused unavailability
(3) How do you wrongfully cause?
- Doesnt have to be a criminal act
- Must be improper
- Coercion, undue influence or pressure to silence testimony and impede truth finding function of trials
(4) Acquiescing to Wrongful Acts - Doesnt need to commit act personally
- Bare knowledge of plot to kill and failure to give warning to authorities is enough satisfy
(5) Intent - Requires intent to make unavailable
- Acts wrongfully with the intent to silence a witness in one case carries over to the next
(6) Can apply to intimidation even if no charges have been filed yet
(7) Mixed motives ok (Ex: entered to rob, saw people were home and murdered to make sure no witnesses)
Statements of a Party Opponent 801(d)(2)
Rule 801(d): A statement that meets the following conditions is NOT hearsay
(2) An opposing partys statement: The statement is offered against an opposing party and
(A) was made by the party in an individual or representative capacity
(B) is one the party manifested that it adopted or believed to be true
(C) was made by a person whom the party authorized to make a statement on the subject
(D) made by partys agent or employee on a matter within the scope of that relationship and while it existed
801(d)(2) Notes:
- Opponents - Parties cannot offer evidence of self-serving statements
- Statements - Any statement- does NOT need to be incriminating on its face
- Personal Knowledge - Allows even if opposing party didnt know what they were talking about

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- 805 - Even if multiple layers of hearsay- statement comes in
- Party can make 403-argument (ACN: generous treatment of this avenue of admissibility)
- Partys Availability Immaterial
- Adoption
- By signing a document - doesnt need to be opposing partys statement
- Silence (Circumstances such that a reasonable person would speak up rather than remain silent)
- Standards:
c. Whether circumstances as a whole show that lack of denial is so unnatural as to support an inference that the un-denied
statement was true
d. Silence in presence of law enforcement must be interpreted w/ care- Miranda issues
i. Pre-Miranda: must specifically invoke for silence to be treated as exercising rights. Dont specifically invoke,
silence can be used against you.
ii. Post-Miranda: cant use silence against at all
- Agents (e.g. attorneys) - someone authorized to act for a party on a particular matter
- Exemption covers statements to insiders and outsiders
- Employees and Independent Contractors distinction not as important under this rule look at scope
of work/relationship
- Authorized speakers
- Assertions made by an individual that a party authorizes to speak outside classic agency relationship
- Ex: Letter of recommendation
- Criminal s - Creates a dilemma for s with prior convictions:
- Take stand and clarify BUT then risk impeachment
- Relationship to Conditional Relevance- Rule 104
- Must show adoption under 104(a)- preponderance of evidence
- Judge threshold - jury could decide opposing party didnt adopt BUT they still heard the statement
*Statements by Opposing Parties in the Context of Multiple Parties (801(d)(2))
- Party opponent raises two problems when a case involves multiple plaintiffs/s
- When a party attempts to introduce an out of court statement made by a party on the same side of litigation
United States v. Palow: Co-s Court finds PO when offered against co- or co-plaintiff.
- Courts allow in statements against party and contrary to partys position at trial, but not those that help them. Must be against a party - Policy
hold them responsible for their words
- As long as interests are sufficiently diverse and their statements are adverse to the other side, its allowed as PO
* Spill over effect against one party (basically when they incriminate themselves and other people at same time)
- In criminal cases HAVE to deal with 6th amendment rights. Limiting instructions not sufficient UNLESS declarant ends up taking the stand.
- Issues arise when co- incriminating himself and others.
- Bruton v. United States: Evans and Bruton accused of armed robbery, and Evans confessed incriminating Bruton as well. SCOTUS: in criminal
case limiting instructions NOT Sufficient if declarant does not take stand.
Per Se rule when statement directly implicates another guy, balancing ALWAYS comes out in favor of keeping it out if they dont take
stand (as opposed to civil where limiting usually enough)
- Will allow in if statement has (1) another exception, (2) does not directly implicate the , or can be (3) redacted, will allow in. Court can
also sever the trial or just exclude it.
- The statement can be admissible if the other adopted it (Wickliffe v. Duckworth).
- Admitting s Out of Court Statement in the Presence of Co-s
Question: Is the statement independently admissible against other s?
Good chart on page 665. Did the Co- adopt the statement? Did they authorize the declarant- to speak for them? Was the declarant their agent?
IF YES Statement is admissible against all s; no redactions or special instructions necessary.
Civil Case Statement admissible v. who made it (redaction/judge special instruction)
IF NO
Decl Takes Stand Statement admissible (can cross, no CC/Bruton issue)
Criminal Case
Decl Does Not Take Stand If possible redact; if not, sever trials
- Redactions: Must be careful (Gray v. Maryland) numerical symmetry = inferences; cannot inform jury the statement has been redacted.
Guidelines:
(1) Statements explicitly name co- and implicate him on its face violate Bruton. Inadmissible.
(2) Statements that simply replace names w/ blanks make it obvious; violate Bruton by tempting jury.
(3) Statements that dont explicitly refer to co- and contain no obvious omissions satisfy Bruton. Can probably use substituted pronouns
(someone else, we, etc). cant use numerical symmetry (ie 4 Ds, cant say all four of us did such and such; use we instead).

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Hearsay Exception: Statements of Co-Conspirators - 801(d)(2)(E)
- Many crimes involved 2+ who leave behind paper trail/oral statements, to prosecute this well, needs to be admissible v. all conspirators otherwise a
single crime would seem divided up and confusing.
Policy estoppel, want them held responsible for what they say, and co-conspirator who speaks in furtherance of conspiracy speaks for entire group
of people involved
--doesnt need to be a real conspiracy, or be charged with conspiracy. Think joint enterprise and its also available in civil cases.
Rule 801(d): A statement that meets the following conditions is NOT hearsay
(2) An opposing partys statement: The statement is offered against an opposing party and
(E) Was made by the partys coconspirator during and in furtherance of the conspiracy
Elements
(1) Must be co-conspirator.
- Defined more broadly than legal definition for conviction. Co-conspirator does not need to be on trial
- Just need two people and a common venture
(2) In furtherance of the conspiracy
- Advances underlying joint enterprise and speaks for all of the participants
- The conspiracy MUST still be going on. Once they are caught, it has ended.
- Confessions to police are NOT admissible against co-conspirator and neither is a bragging fool
(3) During the conspiracy
- Before and after statements are not admissible
- More narrow than PO. Harder to decide when it ends, but general rule is statements made at time of arrest or interrogation not in course of
conspiracy
Policy-> statements for conspiracy admissible b/c they have similar interests, common goal. Once arrested = competing interests, blame other. Can
only use them if they are turncoat conspirator and you put him on the stand as prosecutor.
United states v. Haddad: arrest of two co-conspirators that does not stop conspiracy; can make their statements admissible. In jail, co-cons agreed to
call dealer and be recorded (told dealer deal was off and they didnt need coke). Dealers statements were admissible against co-s during trial b/c
dealer thought conspiracy was still going on. He was still working for common goal.
Cover-up can be included OR excluded in conspiracy, depending on circumstances.
United States v. Honken: A charged with murder. B charged with conspiracy to help dispose of body. In jail B tried to get C to convince prisonerserving life to take blame and gave him a map of where bodies were. C was informant, and cops tried to use map against A saying it part of same
conspiracy. Map can be used against B, but NOT against A b/c conspiracy (murder and covering up bodies) had ended. This was new conspiracy
C.f. United States v. Franklin: co-s testimony was D told him to stop by and he would give him bag of money (from bank robbery) so that he
could hide it. Admissible b/c cover-up was part of conspiracy, robbing of bank requires dispersing and hiding $$.
- Discussing plan to kill witness is NOT part of same conspiracy and not in furtherance of conspiracy. That is over, this is whole new conspiracy
going on between maybe the same parties, maybe not.
- In conspiracy, it does not matter if one was acquitted.
Rule the judge will decide conspiracy under 104(a).
- They decide if conspiracy existed, if the statement was made in the course of and furtherance of conspiracy.
- This is decided by preponderance of evidence. Only situation under 104(a) where judge may use statement to consider if admissible but statement
CANT be all government has.
Residual Exception - 807
- Drafters wanted judges to have discretion to allow in hearsay that does not fall under category so they created 807, residual exception. Flexibility
for statements that are trustworthy and are best evidence available
Rule 807 Residual Exception:
(a) In general: Under the following circumstances a hearsay statement is not excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in Rule 803 and 804.
(1) The statement has equivalent circumstantial guarantees of trustworthiness
(2) Is offered as evidence of a material fact
(3) It is more probative on the point for which it s offered than any other evidence that the proponent can obtain through reasonable
efforts; and
(4) Admitting it will best serve the purposes of these rules and the interests of justice
(b) Notice: The statement is only admissible if before the trial or hearing the proponent gives an adverse party reasonable notice of the intent to
offer the statement and its particulars, including declarants name and address, to that the party has a fair opportunity to meet it
Elements
(1) Admissible under 807 if it is not specifically covered by 803/804

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- Near Miss Problem.
- Majority: something that just misses admissibility under a hearsay rule could get through 807
- Minority: Hearsay rules have specific requirements and if they are NOT met something SHOULD NOT get in. Most natural reading of
807 includes only statements that are not covered by other hearsay rules, and these near misses ARE covered, just dont make it.
Easterbrook new sort of trustworthiness that drafters of rule did not anticipate, if near miss does not come in
(2) Circumstantial guarantees of trustworthiness - Consider:
(a) Was it made under oath
(b) Did they have firsthand knowledge of statement
(c) Did they ever recant statement
(d) Is there evidence that corroborates statement
(e) Was corroborating evidence subject to cross examination
(f) Did D have incentive to lie when making statement.
(3) Must offer evidence of material fact, basically covered by 403, but some courts have slightly higher standard
(4) Must be more probative than any other evidence that proponent could procure through reasonable efforts.
(5) Judge must find statement consistent with general purpose hearsay exceptions in interest of justice.
(6) Must notify other party sufficiently in advance that you plan on evoking rule
807 Cases
FTC v. Amy Travel Servies: sold vacation packages for $300 but ended up paying over $1000. FTC sued Amy Travel and wanted to submit
affidavits by dissatisfied customers. Court allowed them in under 807 saying under oath, personal knowledge, and national scam would have been
impossible to get all witnesses.
Dallas v. Community assurance: clock tower collapsed - insurance would not pay saying bad construction. They introduced charred pieces,
insurance co. wanted newspaper from 1901 that said there had been a fire in bldg. Paper ancient documents, but article based on hearsay. Courts
allowed it in under 807 b/c there was no one else to testify to fire, everyone dead, and had paper lied about fire, there would have been uproar
United State v. Weaver: Shaken baby conviction. wants new trial b/c 3 women say mom said it wasnt her. Could get it in through prior and
inconsistent statements, but not for truth and limiting instruction
807: (1) existence of circumstantial guarantee of trustworthiness (same as 803 and 804). Mother had no reason to tell people her child was already
hurt. ALMOST statement against interest but declarant must be unavailable but mom is, just says something else. Also, not DIRECTLY
incriminating herself so it MIGHT not be enough.
(2) Ladies were reliable, no ulterior motives, old women who meet for coffee and there are three of them.
- State rebutted w/ refreshed memory when they spoke together, had been exposed to media BUT they would take stand and be crossexamined, odds are you can take care of that in court.
(3) The biggest worry we have is when they are NOT available to testify
(4) The statement was made shortly after incident
(5) The women had firsthand knowledge of the statement
(6) The statement was in response to an open-ended question
(7) Corroborated by medical evidence showing a contusion that otherwise was unexplainable
(8) NEEDED not a lot of evidence - process of elimination. Mother said it was not her and so it must be , there is no witness to abuse, so you
need something (happens a lot with child abuse)
(9) Notice
Attacking a Declarants Credibility 806
806 allows you to impeach declarant in any way you can impeach a witness who take stand. You show they have bias, incapacity, reputation for
dishonestly, convicted for crime, etc. Generally YOU CANT impeach someone unless they take stand. Can also rehab them after impeachment
Rule 806: Attacking and Supporting the Declarants Credibility
When a hearsay statement- or a statement described in Rule 801(d)(2)(c), (D) or (E)- has been admitted in evidence, the declarants credibility may
be attacked and then supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
- The court may admit evidence of the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it.
- If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on
cross-examination.
Elements
- Applies to all hearsay exceptions and statements under 801(d)(2)(C), (D), or (E)
- Agents of PO and co-conspirators and spokesman of a PO even though it is not defined as hearsay
- IT DOES NOT include statements that are not for the truth of the matter asserted, prior statements by witness, and statements made or
adopted by the opponent
- Court said cant impeach if declarants statement was not for truth. All that matters is what the person on the stand and P
overheard, not declarants testimony.

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- Impeaching Yourself: Courts read this to include it even if the rule does not say that. Practically you should allow it in. The senate left it out
BECAUSE they assumed you would not want to attack your OWN credibility, but if you want to you should be able to.
806 Notes:
- They may attack by introducing evidence that would be admissible if declarant had testified including
(a) Bias, interest, prejudice
(b) inconsistent statements (613),
(c) lack of personal knowledge (602)
(d) lack of capacity to testify truthfully (603)
(e) reputation or opinion evidence that declarant is untruthful through character witness (608)
(f) any criminal conviction (609).
(g) Courts have struggled with 608(b) (allows showing of untruthful character) b/c extrinsic evidence is NOT allowed generally, it is
HARD when they dont take the stand b/c witness can lie w/o extrinsic to impeach or might not know SO some courts ALLOW extrinsic to show
they committed specific acts under 608(b) even if it is prohibited for a live witness (e.g. 2nd Cir. allows in extrinsic information about dishonest acts)
- Party may rehab the hearsay declarant once their credibility has been attacked
- When you introduce declarants inconsistent statements and they are in court, they can explain themselves, but in this case they cant. Rule says its
okay that they cant b/c impossible.
- Allows party to impeach hearsay declarant just as 607 would allow you to impeach witness. Party who presents witness usually wont want to
impeach them, but they may do so if the witness surprises them or if they wanted to impeach them to soften the blow rather than allow it to come out
on cross.
- Sometimes parties want to use this rule to avoid cross, so opposing party CAN call declarant to stand if they want to as adverse witness with leading
questions
The Sixth Amendment and Hearsay The Confrontation Clause
Confrontation Clause: testimonial statements of witnesses absent from trial have been admitted only where declarant is unavailable and only where
D has had a prior opportunity to cross examine.
**Only applies to prosecution in criminal cases
- Old ruleOhio v. Roberts stated that if statements bears adequate finding of reliability, and firmly rooted in hearsay exception and bears
particularized guarantee of trustworthiness = admissible.
- New rule Crawford v. Washington: Playing video statement of witness who DOES NOT TESTIFY violates 6A guarantee in all criminal
prosecutions, the accused shall enjoy the right to be confronted with the witness against him. Audio was inadmissible b/c testimonial statement
and no chance to cross.
- Confrontation clause CLEARLY meant to exclude testimony statements like accomplice liability confessions implicating accused.
Crawford Rule: a criminal s sixth amendment to be confronted with the witnesses against him is a right to cross-examine people who make
testimonial statements against him.
POST CRAWFORD ANALYSIS
1. What is testimonial?
- Solemn declaration or affirmation made for the purpose of establishing or proving some fact
- Made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial
- Primary purpose of creating an out of court sub for trial testimony
- Primary purpose is to establish or prove past events potentially relevant to later criminal prosecutions
2. Crawford wont preclude the introduction of an out of court statement if:
- Non-testimonial (statements among private parties)
- Business Records (most are non-testimonial: look at whether they were prepared for litigation - then wouldnt come in under exception anyway)
- Statements during police question
- Look at the primary purpose of the questioning
- Non testimonial when helping police meet an ongoing emergency
- Testimonial: primary purpose is interrogation to establish or prove facts relevant to later crim prosecution
- Whose perspective?
- Examine both the declarant and the police officer
- Not looking at subjective purpose always objective circumstances
- Lab Report
- Melendez-Diaz v. MA - Lab reports are usually testimonial, if prepared in anticipation of litigation
- Williams v. IL - Is the DNA profile from the swab testimonial or non-testimonial?
- Court says non-testimonial even though clearly taken in anticipation of trial

4 justices: not targeted because no idea who the suspect was so not testimonial

1 justice (Thomas): formality test

4 Justices: Formal doesnt matter- looks like MD

- So now what? Testimonial IF:
(1) Report has primary purpose of accusing a targeted individual engaging in criminal conduct
(2) It satisfies both the Melendez Diaz test AND Justice Thomass formality test

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- Offered for a nonhearsay purpose
- Impeach with inconsistent statement
- Effect on the listener
- Legally operative language
- Circumstantial evidence of declarants state of mind
- Statement is the s own
- Can include Ds own statements
- Also statements adopted by the or made by an agent of the OR an employee
- Ex: Maid makes statement about clothes she washed within the scope of her employment
- Statements of co-conspirators
- Declarant appears for Cross-examination at trial (they may then CONFRONT_
- Declarant is unavailable and the had a prior opportunity to cross-examine
- Douglas v. Alabama: Opportunity for deferred cross not sufficient - declarant refused to answer ?s
- Nelson v. ONeil: Opportunity for deferred cross was sufficient - declarant denied making statement.
- United States v. Owens: Opportunity for deferred cross was sufficient - declarant couldnt remember
the underlying events.
- Examine whether the cross was sufficient motive requirement

Similar motive should be required, hearsay exception demands it

SCOTUS has suggested that motive similarity is NOT required for confrontation clause
- Preliminary hearing vs. Trial (motives to develop testimony are the same, no SCOTUS app yet)
- Statement satisfies a framing-era common law exception (e.g. dying declaration, forfeiture by wrongdoing)
- Crawford v. Washington: Declining to decide whether the Sixth Amendment incorporates an exception for testimonial dying
declarations, but acknowledging historical basis for exception.
- Giles v. California: Acknowledging historical exception for declarations made by a speaker who was both on the brink of death and
aware that he was dying.
Lay Opinion Testimony 701
Rule 701: Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) Rationally based on witnesss perception
(b) Helpful to clearly understand the witnesss testimony or to determining a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the scope of rule 702
What is an opinion? Any conceivable statement, no matter however seemingly specific, detailed, and factual, is in some measure the product of
inference as well as observation and memory.
- The distinction between fact and opinion is one of degree, not of kind.
- Along this continuum, the more fact-like description is preferred to the more opinion-like.
- This preference is implemented by the requirement that inferences be helpful.
- Rule 701 applies to all evidence
- Judges not enforcing parties have incentive to include most relevant evidence and detailed data
Requirements
(I) Rationally based on witnesss perception
(1) - 3 types of perception:
(a) Directly see and contemporaneous experience it to develop an opinion: admitted (easy case)
(b) Put together opinion from interviewing and reading about the experiences of others: excluded- this is what experts do (easy
case)
(c) Someone recorded the experience and witness watches/listens, experiences in that way and then forms opinion: Different from
reconstruction courts are split on this
A- This is ok- as long as looking at or listening to media
B- Not ok- perception must be contemporaneous (Courts concerned with non-participants coming in later to render an
opinion for the sake of trial)
C- Sometimes ok
(2) Must lay foundation establishing information required to form an opinion
(3) Rationally related cannot be speculative
(4) Misc.
- Drivers will be allowed to testify about approximate speed of cars on the road
- Owners of items will be able to testify to the cost of their belongings
(II) Must HELP the fact finder
(1) Opinions help a lay witness convey factual impression
(2) Must put jury in a better vantage point to understand
- Whole of the observations with opinion may be greater than the sum of the parts

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(III) Must be Non-technical
(1) Lay opinion testimony results from a process of reasoning familiar in everyday life.
(2) Witnesses who could testify as experts COULD give lay opinion
- Rules allow anyone with personal knowledge of an event to give lay opinion
- Cannot stray into giving an expert opinion until first qualified as an expert
Daubert v. Merrell Dow Pharmaceuticals
Daubert Requirements for Expert testimony: the court evaluates for itself the reliability of the general principles underlying the experts conclusion
(instead of just deferring to the relevant community of experts (Frye))
- Not limitless, trial judge MUST make sure relevant and reliable.
- Reliable must derive from scientific method supported by appropriate validation good grounds based on what is known.
- The judge will consider: (not complete list, illustrative)

(1) if it has been tested

(2) if peer reviewed or publication

(3) known potential rate of error

(4) general acceptance

- 403 also plays a role.
- Relevant must assist the trier of fact, FIT, helpful
- The court to evaluates for itself the reliability of the experts case-specific application of her disciplines general principles (instead of just
deferring to the expert herself)
- Look at the methods of this particular test on these facts, and not just the actual test.
- Dauberts requirements apply to every kind of expert testimony whether grounded in scientific knowledge or just grounded in
technical or other specialized knowledge.
WHY limit experts? Because juries put a lot of weight in their testimony.
- Formed based on FRE 702, and than congress rewrote the rules to fit Daubert better making the JUDGE the GATEKEEPER
Expert Testimony 702
Rule 702: Testimony by Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) the experts scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue
(2) the testimony is based on sufficient facts or data
(3) the testimony is the product of reliable principles and methods; AND
(4) the expert has reliably applied the principles and methods to the facts of the case
Requirements:
(1) Witness must qualify
- The notion that Daubert requires particular credentials for an expert is radically unsound Anyone with relevant expertise enabling
him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness.
(2) Offer scientific, technical or other specialized knowledge
(3) Must help the trier of fact
- Cannot offer evidence, regardless of validity, if approach doesnt fit the facts of the case
- Stricter that mere relevance no complex testimony on tangential issues
- Greater risk that jury will give too much weight to inconsequential issues
- Expert testimony that doesnt relate to issue in the case is not relevant and therefore not helpful.
- Helpfulness vs. Reliability
- Reliability = is there a solid foundation
- Helpfulness = does it get the job done? Does it get us to our goal?
- Gaps in the testimony or lacking essential information excluded
(4) Testimony must rest on sufficient facts or data
(5) Two reliability hurdles
(a) Reliable principles and methods
- Especially important when probing and evaluating new and novel perspectives
(b) Reliable application to the facts of the case - must fit THIS case
New and Novel Ideas
- Look at whether the expert developed an idiosyncratic approach specifically for the litigated controversy OR as part of a broader program of
research
3-step analysis
- Is the evidence reliable, both in its underlying principles and its application to the case?
- Does the evidence fit the case and help the trier of fact?
- Even if the evidence satisfies these requirements, does the danger of unfair prejudice, confusion or misleading the jury substantially outweigh the
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Bases of Expert Testimony 703
Rule 703: An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the
particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion
to be admitted.
-- But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in
helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
1. On what evidence may the expert rely in formulating her opinion?
- She can conduct tests, talk to witnesses, etc. She is NOT confined to what she heard in court.
- Being made aware of suggests hearsay - facts need not be admissible in court.
2. Are there limits to what facts may be relied on?
- YES. Must be in accordance with what experts in a particular field would reasonably rely on.
- Reasonable reliance has two components:
1) Experts in the witness field must in fact rely on that type of evidence
2) That reliance must be reasonable
3. When is otherwise inadmissible evidence admissible to explain experts opinion?
- 705 says you can talk about conclusion before explaining underlying data! The opponent (NOT proponent) of the evidence can draw out
the bases for opinion on cross.
- May only introduce (by proponent) IFF it meets the reverse 403 test
- We are worried the jury will use it for its TRUTH, not its effect in shaping expert opinion
- If underlying data is admissible separately he can say it
4. Does this violate the confrontation clause?
- Is the underlying data admissible? Under Williams NO.
- Is expert opinion admissible? Under Williams not clear, but problematic at the very least.
Notes:
Does 703 require that the data relied on by the expert be of a kind that other experts actually rely on?
- Should it be that: (1) experts MUST rely on the evidence; (2) reliance must be reasonable.
- 703 incorporates Daubert shouldnt matter whether other experts in field rely on it!
- Frye is the one that cares about other experts use in the field
- 703 language is whether experts would (not DID)
Whats the relationship b/t reasonable reliance requirement in FRE 703 and the requirement in 702 that the experts opinion be based on adequate
data?
- Do we rely on 702 or 703? Analyze the data under 702 NOT 703!
Does the reasonable reliance requirement apply only where the underlying data would be inadmissible at trial under the evidence rules?
- That would suggest that its ok for experts to rely on crap data (separate issue on admissibility and reliability; they are not tied together
conditionally).
**We always assumed that when we offer hearsay to prove a non-hearsay point (why expert came to the opinion that he did) Williams changed
that (no meaningful distinction between disclosing an out-of-court statement so that the FF may evaluate the experts opinion and disclosing it for its
truth.)
- That means for hearsay theres NO balancing test necessary! If its hearsay its out!!!
Rule 705. Disclosing the Facts or Data Underlying an Experts Opinion
705: Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or
data. But the expert may be required to disclose those facts or data on cross-examination.
- Rule 705 allows for an expert to offer an opinion without first recounting all of the underlying data it allows for an expert to state a bare
conclusion
- Importantly, since Rule 703 allows an expert to offer an opinion based on inadmissible evidence, Rule 705 allows for that opinion to be stated
without substantiation
- Rule 705 then allows for the party opposing the expert to force the expert to reveal the inadmissible facts or data on cross-examination
Opinions on the Ultimate Issue 704
704: (a) In General Not Automatically Objectionable (old objection no longer exists). An opinion is not objectionable just because it embraces an
ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged or of a defense.
704 Notes
What counts as an opinion on an ultimate issue?
- Expert opinions on accuseds mental state

- Opinions couched in terms of inadequately legal criteria

- Additional limitations on polygraphs, eyewitnesses, probabilistic evidence
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-Judges will often allow experts to come right up to the line under 704(b), though they often dont want them to
use the exact same language which will be in the jury instruction, etc.
-Also, here, courts will usually not allow experts to testify explicitly that the defendant possessed a particular
mental state, but will allow experts to testify that defendants acted consistent with that mental state
-Probability and DNA evidence is admissible, even though it may tend to strongly suggest the ultimate issue
BUT courts struggle with how best to present this evidence in a way which is not misleading
-Eyewitnesses courts have become tolerant of testimony which discusses the reliability of eyewitnesses and
shows that they may not be as infallible as always thought HOWEVER, courts limit this testimony in two
ways: 1) expert can only generally speak about shortcoming on eyewitness testimony, not this eyewitness in
particular 2) usually only allowed when specific circumstances suggest that eyewitness identification is less
liable than usual
-Polygraphs have historically been excluded however, courts have now increasingly allowed this evidence
into evidence

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