EVIDENCE OUTLINE

Chapter 1:
Intro to Evidence Law and How to Succeed in Class

What is evidence?
◊ Information presented at trial

Shall we let it in?

◊ Truth
◊ Reliability
◊ Justice
◊ Fairness
◊ Don’t mislead the jury
◊ Social policies
◊ Efficiency

Who wrote the RULE?

◊ An advisory Committee and Congress

◊ In 1975, Congress enacts RULE.

◊ The RULEs are a Statute(Black Letter Law).

◊ Supreme Court can make new RULEs under its RULE making power.
Congress can participate as well.

◊ Restyled RULEs in 2011

◊ Legislative History is persuasive

Where do the RULEs apply?

◊ Federal Courts
o Court of appeals, district courts, court of claims, bankruptcy courts,
admiralty courts, maritime, criminal cases, contempt proceedings, and
in proceedings before U.S. magistrates
◊ Do not apply in state court unless they adopt the rules
o Does not apply in the court’s determination on a preliminary question
of fact governing admissibility
o Grand jury proceedings

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o Miscellaneous proceedings: sentencing, extradition, bail, and
probation
o Supreme Court
o Administrative agencies
o Preliminary hearings
o Arrest warrant, criminal summons, or search warrants
o sentencing
◊ A majority of the states have adopted evidence codes based on the RULEs.
◊ RULE does not apply to the U.S. Supreme Court

In grand jury proceedings…

◊ Only the privilege RULEs apply

During sentencing hearings…

◊ None of the RULE apply except for privilege

Curative instruction: when inadmissible evidence has inadvertently reached the

jury’s ears.

Limiting instruction: when the judge explains that the evidence may be used for
some purposes but not for other purposes.

Rule 103

◊ Appellate courts apply an abuse of discretion standard to most claims of

evidentiary error.

◊ Even if the appellate judges believe they would have decided the issue
differently at trial, they frequently defer to the trial judge’s decision.

◊ Rule 103 allows appellate judges to reverse a trial decision for evidentiary
error only if the error affected a substantial right of one of the parties.

◊ An evidentiary ruling affects a party’s substantial right only if there is a

reasonable probability that, if the judge had made the correct ruling, the
outcome of the case would have been different.

◊ Most evidentiary missteps constitute harmless error.

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◊ The substantial right standard applies even when an appellate court reviews
an evidentiary decision de novo.
Chapter 2 Key Concepts
● Oral testimony
● Real Evidence
● Documents
● Demonstrative Evidence
● Stipulations
● Judicial Notice
● Circumstantial Evidence

Standard of Review for Appellate Review on Questions for Evidence:

Must affect a substantial right of the defendant
Great deference is given to the trial judge

Types of Evidence
Evidence means testimony, writings, material objects, or other things presented to
the senses that are offered to prove the existence or nonexistence of a fact.
1. Eyewitness evidence
2. Real evidence
3. Direct evidence
4. Demonstrative evidence
5. Circumstantial evidence( evidence 🡪 inference 🡪 fact)

Six categories of Evidence

1. Oral Testimony – Three types of witnesses
o Fact witnesses
▪ Are people who perceived facts related to the lawsuit and
testify about those facts.
▪ Referred to as “eyewitnesses”
▪ Must have first-hand knowledge about the controversy in
question
o Expert witnesses
▪ Use specialized knowledge to interpret evidence or explain it to
the jury.
▪ Review documents or data compiled by others and apply their
expertise to secondhand information
o Character witnesses
▪ Do not testify about facts directly at issue in the lawsuit.

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▪ Offer information about the good or bad character of a party or
witness.
2. Real Evidence
o Is any physical evidence that a party claims played a direct role in the
controversy.
o All real evidence must be authenticated – the proponent must offer
some proof that the piece of physical evidence is what she claims it to
be.
o Real evidence is readily admissible than demonstrative evidence.
o Some real photographic or video evidence may be excluded if it is
unduly graphic or will provoke an unwanted emotional reaction
among jurors.
3. Documents
o Any type of writing or recording of information
o Examples: contracts, bills of sale, real estate leases, wills, faxes, e-
mails, tweets, text messages, blog posts, and computer printouts.
o Physical evidence that played a direct role in the controversy.
o The documents must be authenticated
▪ Some documents are self-authenticating.
o A witness may almost never testify orally about the contents of a
document.
o The document is required to be admitted unless all available copies
have been lost or destroyed.
4. Demonstrative Evidence
o Sometimes physical, but it is not an object that played a role in the
disputed events.
o Used to illustrate concepts or facts to the jury
o Examples: charts, tables, pictures, maps, and graphs. Power-Point
slides and computer simulations
o Issues: can misrepresent the true nature of what happened or the
demonstrative evidence may become overly dramatic or
theatrical(diverting the jury’s attention).
5. Stipulations
o When both parties agree on a fact, they can stipulate that the fact is
true for purposes of the litigation
o To introduce a stipulation as evidence, both parties must agree to its
exact language
6. Judicial Notice

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o If a fact is indisputably true, the trial judge can take judicial notice of
the fact.
o To support judicial notice, the fact must either be “generally known”
or “accurately and readily determined” by consulting an
unimpeachable source.

Circumstantial Evidence vs. Direct Evidence

Circumstantial Evidence
● Is any evidence that requires the jury to make an inference connecting the
evidence with a disputed fact.
● Is proof of a chain of facts and circumstances indicating the existence of a
fact.
Direct Evidence
● Is the testimony of a person who asserts or claims to have actual knowledge
of a fact, such as an eyewitness.

Chapter 3: Four W’s of the RULE: Why, Who, Where, When

1. Why?
a. To protect the jury from misleading information
b. To eliminate unnecessary delay and promote efficiency
c. To protect a social interest, such as a confidential relationship.
d. To ensure that evidence is sufficiently reliable.
2. Who?
a. Notes written by the Advisory Committee
b. Committee Reports and other legislative history from Congress
3. Where does the RULE apply?
a. RULE 101: Proceedings in United States courts(federal courts).
b. Does not apply to the U.S. Supreme Court
4. When?
a. Civil cases and proceedings, including bankruptcy, admiralty, and
maritime cases
b. Criminal cases and proceedings; and
c. Contempt proceedings
d. Only applies in the trial stage
5. These RULEs do not apply to the following:
a. Court’s determination on a preliminary question of fact governing
admissibility
b. Grand-jury proceedings; and
c. Miscellaneous proceedings such as:
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i. Extradition or rendition
ii. Issuing an arrest warranty, criminal summons, or search
warrant
iii. Preliminary examination in a criminal case;
iv. Sentencing;
v. Granting or revoking probation or supervised release; and
vi. Considering whether to release on bail
RULEs on Privilege:
● The RULEs on privilege apply to all stages of a case or proceeding.

Chapter 4: Structure of a Trial

1. Pretrial Motions
a. During the months before trial, the parties file motions on a variety of
subjects.
b. Called motions in limine – can either exclude an opponent’s piece of
evidence or secure permission to introduce a contested piece of
evidence
c. Motion to suppress – claiming that the opponent’s evidence was
illegally obtained
d. Motion for Summary Judgment – judges often use evidentiary rulings
when deciding these motions.

2. Opening and Closing Statements

a. Tells a compelling story
b. Reflects the evidence that will unfold during trial

3. Cases in Chief

4. Rebuttal and Rejoinder

5. Jury Instructions

Advantages to Motion in Limine “at the threshold”

1. Knowing ahead of time what evidence will be admitted and what will be
excluded can help an attorney plan trial strategy.
2. The attorneys can make more lengthy and sophisticated legal arguments
when submitting motions and responses.
3. Attorney can object to the motion in limine, before trial and not in front of a
jury.

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Case layout
1. Prosecutor/Pltf Opening Statement 🡪 Dfnt Opening Statement
2. Prosecutor/Pltf presents its case(all of the evidence – witness testimony, real
evidence, documents, and demonstrations)
3. Prosecutor/pltf closes 🡪 Dfnt moves for judgment as a matter of
law/judgment of acquittal
4. Dfnt presents its case
5. Pltf may present rebuttal evidence
6. Dfnt may respond to the rebuttal
7. Pltf’s Closing statements
8. Dfnt’s closing statement
9. Jury instructions
10.Jury deliberations
11.Verdict
12.Parties may file post-verdict motions
13.Parties may file appeals

Chapter 5: Raising and Resolving Evidentiary Objections

Chapter 6: Relevance
RULE 402: Evidence must be relevant and only relevant evidence is
admissible.
◊ If evidence is relevant then it is admissible unless a specific RULE, statute,
or constitutional provision bars its admissibility.
RULE 401: Test for Relevant Evidence
◊ Evidence is relevant if:
o It has any tendency to make a fact more or less probable than it be
would without the evidence; and
o The fact is “of consequence” in determining the action. (“relevant to
what” “relevant in relation to what?” “why does this matter”)
o The fact to which the evidence is directed need not be in dispute, it is
still relevant even if it addresses a matter that the opponent concedes.
o The evidence must still connect to legal issues involved in the case,
but the connection does not need to be as strong as the one connoted
by the word material.
o The fact to which the evidence is directed need not be in dispute. The
evidence is still relevant even if it addresses a matter that the
opponent concedes.

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o Irrelevant evidence sometimes becomes relevant to rebut claims made
by another party.

Admissibility v Sufficiency
The Law’s Compromise
◊ A trial should produce
◊ A “good enough” truth
◊ To justify imposing the verdict

First 3 steps to address any Evidence Q:

1. What is the evidence?
2. What is it offered to prove?
3. Does it do so?(how?)

Formulas for the Law’s Compromise

Criminal Case:
Beyond a reasonable doubt
Civil Case:
By a preponderance of evidence(more likely than not).

How do you know if a fact is “of consequence” to the case?

◊ Look at the pleadings
◊ Look at the governing law

Negative Evidence
Hindsight
Opening the Door
◊ Irrelevant evidence sometimes becomes relevant to rebut claims made by
another party.

Chapter 7:
RULE 403: Exclusion of Relevant Evidence Due to Prejudice, Confusion, or
Waste of Time
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 of one or more of the fol- lowing: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.
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◊ The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following:
o Unfair prejudice(undue tendency to suggest decision on an improper
basis, commonly, an emotional one),
o Confusing the issues,
o misleading the jury,
o Undue delay,
o wasting time,
o or needlessly presenting cumulative evidence
◊ Probative value is significantly outweighed by the unfair prejudice
o The rule has a firm tilt towards admissibility.
o For the judge to exclude relevant evidence, its unfair prejudice,
confusion, or delay must substantially outweigh its probative value
o If the probative value and unfair prejudice are evenly balanced, the
evidence must be admitted
o If the unfair prejudice somewhat outweighs the probative value, the
evidence must be admitted.

◊ What is unfair prejudice?

o Arouses emotion or irrational prejudice?
▪ If a photo or video shows only the effects of the crime, giving
no indication of how the crime occurred or who was
responsible, the possibility of unfair prejudice is more
substantial
▪ Judges are more likely to exclude evidence that triggers strong
emotional reactions
o The extent that the jury might overvalue the evidence
o How strong connection between evidence and case?
▪ Judges are more likely to admit evidence that is closely related
to essential elements of a case, even when that evidence is
highly emotional
o Alternatives?
▪ The judge is less likely to admit the challenged evidence if
alternative routes are available.
o Redaction?
▪ If a judge can redact prejudicial components of the evidence or
instruct the jury to refrain from improper uses of the evidence,
he/she will more likely admit the evidence
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Questions you ask in your 403 analysis:

1. Proper purpose?
2. Forbidden purpose?
3. Evidentiary alternative?

Bench Trial: You are unlikely to argue a 403

If you lose on a 403, then what do you do?

Rule 105 – ask the judge to instruct a limited instruction

Chapter 9
Policy Based Exclusions
◊ Each RULE promotes a socially valuable activity, like plea bargaining or
purchasing liability insurance.
◊ The evidence targeted by these RULEs tend to cause a high degree of unfair
prejudice while contributing little probative value
◊ Four of these RULEs exclude evidence only if a party offers the evidence for
the purpose of proving liability or fault. Judge may admit it if used for a
different purpose.
◊ These RULEs require attorneys to identify the purpose of the evidence they
and their opponents offer into evidence.
RULE 407: Subsequent Remedial Measures
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier in- jury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or • a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment
or—if disputed—proving ownership, control, or the feasibility of precautionary
measures.

● The RULE:
o When measures are taken that would have made an earlier injury or
harm less likely to occur, evidence of the subsequent measures is not
admissible to prove:
▪ Negligence;
▪ Culpable conduct;
▪ A defect in a product or its design; or
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▪ A need for a warning or instruction
o The court may admit this evidence for another purpose, such as:
▪ Impeachment or
▪ If disputed – proving ownership, control, or feasibility of
precautionary measures
o It encourages dfnts to make repairs promptly without worrying about
the effects of those repairs on pending litigation is an important social
policy
o This rule requires attorneys to identify the purpose of the evidence
they and their opponents offer into evidence.
o Juries may give too much weight to evidence of subsequent remedial
measures.
o Evidence of subsequent remedial measures often causes unfair
prejudice that substantially outweighs its probative value.
● Applies to subsequent remedial measures.
o Taking products off the market
o Issuing recalls
o Adding a warning label to a product
o Changing an existing label
o A policy change
o Firing or disciplining an employee who was responsible for the
disputed injury may count as a remedial measure
◊ Applies only to measures that are taken AFTER an earlier injury or harm.
◊ Excludes evidence of subsequent remedial measures only when one party
offers evidence of repairs made by another party in the lawsuit; does not
apply to repairs made by non-parties to the litigation.
◊ A remedial measure is unlikely to protect third parties from injury, but it
may mitigate harm suffered by the Pltf.
◊ Encourages defendants to make repairs promptly without worrying about the
effects of those repairs on pending litigation.
◊ Juries may give too much weight to evidence of subsequent remedial
measures.
◊ Evidence of subsequent remedial measures often causes unfair prejudice that
substantially outweighs its probative value.
◊ Pltf may use evidence of subsequent remedial measures to prove other facts
of consequence, such as the feasibility of repairs.
◊ If a dfnt claims that it did not own or control the instrument that injured the
Pltf, the Pltf may introduce evidence of subsequent remedial measures as

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evidence that the dfnt did own or control that instrument. Dfnt must first
deny that he owned or controlled the dangerous condition.
◊ A party may introduce evidence of subsequent remedial measures against a
party who disputes feasibility, when the party claims that it could not have
remedied a dangerous situation because of economic, physical, or other
constraints. The dfnt must first argue that there was no feasible way to make
conditions safer.
◊ Allows party to introduce evidence of subsequent remedial measures for the
purpose of impeachment by introducing evidence conflicting with a
witness’s testimony. A judge will most likely admit evidence when:
o A witness makes a specific representation that conflicts with the
subsequent remedial measure
o The witness makes an absolute declaration like the product was
perfectly safe
o The witness making the statement was personally involved in
implementing the remedial measure
◊ Rule 407 is not designed to shield dfnts from liability it targets only a
very specific situation in which pending litigation may discourage
remedial measures.
◊ If a judge admits evidence of subsequent remedial measures for a
purpose other than proving liability, the dfnt can request a limiting
instruction. The instruction will attempt to explain the permissible uses of
the subsequent remedial measure to the jury while restraining them from
using that evidence to establish liability.
◊ In its revised form, Rule 407 applies to any type of action regardless of
the underlying theory of recovery.
◊ Other purposes: impeachment
o A judge is most likely to admit the evidence when
(1) a witness makes a specific representation that conflicts with the
subsequent remedial measure,
(2) the witness makes an absolute declaration like the product was perfectly
safe
(3) the witness making the statement was personally involved in
implementing the remedial measure
◊ Limiting instruction:
o If the judge admits evidence of subsequent remedial measures for a
purpose other than proving liability, the dfnt can request a limiting
instruction.

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o The instruction will attempt to explain the permissible uses of the
subsequent remedial measures to the jury, while refraining them from
using that evidence to establish liability.

CHAPTER 10:
RULE 408: Compromise Offers and Negotiations
Rule 408. Compromise Offers and Negotiations
(a) PROHIBITED USES. Evidence of the following is not admissible—on behalf
of any party—either to prove or disprove the validity or amount of a disputed
claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to accept, or
offering to accept—a valuable consideration in compromising or attempting to
compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim
—except when offered in a criminal case and when the negotiations related to a
claim by a public office in the exercise of its regulatory, investigative, or
enforcement authority.
(b) EXCEPTIONS. The court may admit this evidence for another purpose, such as
proving a witness’s bias or prejudice, negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.
◊ The RULE:
o Prohibited Uses. Evidence of the following is not admissible—on
behalf of any party – either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or contradiction:
▪ Furnishing, promising, or offering – or accepting, promising to
accept, or offering to accept – a valuable consideration in
compromising or attempting to compromise the claim; and
▪ Conduct or a statement made during compromise negotiations
about the claim
o Exceptions: The court may admit this evidence for another purpose,
such as:
▪ Proving a witness’s bias or prejudice,
▪ Negating a contention of undue delay, or
▪ Proving an effort to obstruct a criminal investigation or
prosecution
◊ Offers and acceptances
o Encompasses offers, promises, acceptances, offers to accept, promises
to accept, and any consideration extended as part of the settlement

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◊ What is a claim?
o Arises once a complaint has been filed or when a party has hired an
attorney and threatened to sue
◊ Applies to settlement negotiations
◊ To prevent juror from interpreting settlement offers as conclusive evidence
of liability
◊ Protects settlement offers as well as statements made during settlement
discussions from admission at trial
◊ Policy justification:
o To ensure that parties are not inhibited from making offers or
statements during the settlement negotiation process
◊ A party cannot introduce any evidence of settlement offers or negotiating
statements, not even evidence of their own offers or statements
◊ If both parties agree that liability exists and also agree on the extend of
damages, then there is no dispute, no RULE 408 protection
o There must be dispute as to some aspect of the claim
◊ Excludes statements that try to prove the validity or amount of a claim, to
disapprove the validity or amount, and excludes witness testimony for
impeachment
◊ Parties may introduce evidence from compromise negotiations for any
purpose other than the explicitly prohibited ones.
o Where an individual makes a statement in the presence of government
agents, a subsequent admission in a criminal case is not unexpected
o To show a witness is bias
◊ Prosecutors and criminal dfnts are prohibited from introducing evidence of
civil settlement offers, promises, and acceptances in criminal proceedings.
◊ Prohibits settlement discussion from those who are no longer involved in the
case
◊ Parties cannot shelter preexisting evidence by discussing it during settlement
negotiations
◊ RULEs applies to criminal and civil cases
◊ Plea bargaining is not covered by 408
◊ In criminal trials, neither the prosecutor nor the accused may introduce
evidence from prior civil settlement negotiations for any of the purposes
prohibited by 408.
o Unless the settlement discussions were held during a civil regulatory,
investigative, or enforcement conduct by a government agency
◊ Parties can sometimes persuade the judge to exclude settlement evidence
under 403 even when 408 would have allowed the evidence.

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◊ Can prosecutor introduce evidence related to a civil settlement to show
guilt?
o Generally, no
◊ Except for statements made during settlement talks with a government
agency exercising regulatory, investigative, or enforcement authority.
o Admissible in any subsequent criminal proceeding.
◊ Factors that judges consider when deciding whether a statement occurred
during compromise negotiations:
1. Whether the statement was unilateral or occurred during bilateral
discussions
2. Whether either party made a concrete offer
3. Whether attorneys were involved in the discussions
4. Whether the parties used phrases(“like without prejudice”) that are
commonly used during settlement discussions
◊ Settlement with Third Parties:
o Rule 408 applies to all settlement discussions, even those conducted
by parties who are no longer involved in the case.
◊ Criminal Trials:
o Any criminal settlement negotiations(plea bargaining) are not covered
by 408.

CHAPTER 11:
RULE 409: Offers to pay Medical and Similar Expenses
Rule 409. Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or
similar expenses resulting from an injury is not admissible to prove liability for the
injury.

● Applies to offers to pay medical expenses or actual payment of medical

expenses
● The RULE excludes evidence of offers to pay medical expenses, as well as
payment of those expenses, when offered to prove liability.
● Encourages individuals and organizations to pay medical expenses for
people who have been injured.
● Does not exclude other statements that were made at the same time of the
offer.
● If the party offers evidence of medical payments to prove some other fact of
consequence, the evidence is admissible.

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● Does not apply to payments for property damage, lost wages, or other
expenses.
● Judge may exclude the evidence under 403

CHAPTR 12:
RULE 410: Pleas, Plea Discussions, and Related Statements
Rule 410. Pleas, Plea Discussions, and Related Statements
(a) PROHIBITED USES. In a civil or criminal case, evidence of the following is
not admissible against the defendant who made the plea or participated in the plea
discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those
pleas under Federal Rule of Criminal Procedure 11 or a comparable state
procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a later-
withdrawn guilty plea.
(b) EXCEPTIONS. The court may admit a statement described in Rule 410(a)(3)
or (4):
(1) in any proceeding in which another statement made during the same plea
or plea discussions has been introduced, if in fairness the statements ought to be
considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant
made the statement under oath, on the record, and with counsel present.
● The RULE:
o (A) Prohibited Uses. In a civil or criminal case, evidence of the
following is not admissible against the dfnt who made the plea or
participated in the plea discussions
● Applies to plea bargaining
● Precludes some evidence of offers to plead guilty, as well as statements
made during plea bargaining.
● Does not exclude evidence of final guilty plea as a result of a plea bargain.
● Can the prosecutor introduce any statements from the plea bargaining?
o No
● Can the prosecutor bring in withdrawn guilty pleas?
o No
● Can dfnt introduce prosecutor’s statements?
o Does not prevent the dfnt from introducing the prosecutor’s statement

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o The RULE protects the accused
o The prosecutor can then retaliate by bringing in statements – in all
fairness
● When does plea bargain occur?
o Not with Officers
o At the scene of the arrest with officers? No.
o Subjective expectation?
o Objective expectation?
● Factors Suggesting Plea Negotiation
o Involvement of prosecutor
o Involvement of defense attorney
o Charges already filed
o Are specific terms discussed?
o Has gov expressed interest in the dfnt’s offer?
● Waiver
o Most US Attorneys require Waiver of 410 before discussing plea!
o Allows Gov to enforce Dfnt’s promises to cooperate.

RULE 411: Liability Insurance

Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to
prove whether the person acted negligently or otherwise wrongfully. But the court
may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice or proving agency, ownership, or control.

● The RULE:
o Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise
wrongfully. But the court may admit this evidence for another
purpose, such as
▪ Proving a witness’s bias or prejudice or
▪ Proving agency, ownership, or control
● Applies to liability insurance

CHAPTER 14: PUTTING A WITNESS ON THE STAND

At Common Law, people not competent to testify
1. Atheists
2. Convicted criminals

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3. Mentally impaired
4. Children
5. Interested parties

RULE 601: Competency to Testify

Rule 601. Competency 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 witness’s competency regarding a claim
or defense for which state law supplies the rule of decision.
◊ Every person is competent to be a witness. Unless these RULEs provide
otherwise.
1. Judge cannot testify.
2. Judge’s clerk cannot testify.
3. The jury sitting on that case cannot testify.
4. In a civil case, state law governs the witness’s competency regarding a
claim or defense for which state law governs

RULE 605:
Rule 605. Judge’s Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party need not
object to preserve the issue.
◊ The presiding judge may not testify as a witness at trial.

RULE 606:
Rule 606. Juror’s Competency as a Witness
(a) AT THE TRIAL. A juror may not testify as a witness before the other jurors at
the trial. If a juror is called to testify, the court must give a party an opportunity to
object outside the jury’s presence.
(b) DURING AN INQUIRY INTO THE VALIDITY OF A VERDICT OR IN-
DICTMENT.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of
a verdict or indictment, a juror may not testify about any statement made or
incident that occurred during the jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment. The court may not receive a juror’s affidavit or evidence of a
juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly

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brought to the jury’s attention;
(B) an outside influence was improperly brought to bear
on any juror; or
(C) a mistake was made in entering the verdict on the
verdict form.

◊ A juror may not testify as a witness before the other jurors at the trial.
◊ Exception:
o Only when there is an inquiry into the validity of the verdict.
o Jury may testify about improper extraneous prejudicial information or
outside influence or mistake in entering verdict on verdict form.
o Cannot discuss the deliberations INSIDE the jury room

Attorneys may be a witness in a case, but it is against Ethics and Professional

Responsibility problem.

Are there any basic capacities a witness should have?

Four capacities every witness should have:
1. Narration
2. Understand the importance of telling the Truth
3. Memory
4. Perception

RULE 602:
Rule 602. Need for Personal Knowledge
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’s own testimony. This rule
does not apply to a witness’s expert testimony under Rule 703.
◊ If lay witness, then must have personal knowledge.

RULE 603: Oath or Affirmation to Testify Truthfully

Rule 603. Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It
must be in a form designed to impress that duty on the witness’s conscience.
◊ Requirement of an Oath
◊ Before testifying, a witness must give an oath or affirmation to testify
truthfully.
◊ A solemn undertaking to tell the truth.

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RULE 611: Mode and Order Examining Witnesses and Presenting Evidence
RULE 611. Mode and Order of Examining Witnesses and Presenting
Evidence
(a) CONTROL BY THE COURT; PURPOSES. The court should exercise
reasonable control over the mode and order of examining witnesses and presenting
evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) SCOPE OF CROSS-EXAMINATION. Cross-examination should not go
beyond the subject matter of the direct examination and matters affecting the
witness’s credibility. The court may allow inquiry into additional matters as if on
direct examination.
(c) LEADING QUESTIONS. Leading questions should not be used on direct
examination except as necessary to develop the witness’s testimony. Ordinarily,
the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified
with an adverse party.
◊ The court should exercise reasonable control over the mode and order of
examining witnesses.
Cross:
◊ Can only speak about what happened on direct
◊ Credibility

Common 611 Objections: Mode and Order of Examining Witnesses

Direct Exam:
◊ Introduce the witness to the jurors
◊ Lay the foundation: establish personal knowledge
◊ Allow witness to tell story
◊ Can give leading questions when:
o Developing the witness’s testimony
o For a hostile witness or adverse party
◊ Leading is putting words into the witness’s mouth

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 EVIDENCE OUTLINE
Goals of Cross:
◊ Obtain useful details
◊ Discredit the witness
◊ Tell a different story
◊ Do not harm
◊ Limited to the subject matter of direct
◊ Attack credibility on things beyond direct

1. Argumentative
◊ Attorney is drawing inferences or making conclusions that should be
reserved for closing argument. These questions may constitute as
harassing the witness, but not necessarily.
2. Asked and Answered
◊ The attorney already asked that question and the witness has already
answered.

3. Assumes a Fact not in Evidence

◊ These questions include a factual assertion that is imbedded into the
question.

4. Beyond the Scope:

◊ Cross-examination topic is beyond the scope of direct, or Redirect is
beyond the scope of cross

5. Calls for Narrative

◊ The question is too broad, the witness will tell a story instead of
answering a specific question.

6. Calls for Speculation

◊ The question asks the witness what other people may have been
thinking or what might have been happening beyond the realm of the
witness’s perception.

7. Compound Question
◊ The question tries to elicit more than one fact at a time.

8. Harassing/Badgering the Witness

◊ The lawyer is asking the same question repeatedly in different ways,
insulting the witness for no purpose, or arguing with the witness about
his answer.
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 EVIDENCE OUTLINE

9. Improper Characterization of Testimony/Misstates the Testimony

◊ The attorney is pretending to repeat testimony back to the witness as
the basis for the next question, but is altering the testimony.

10. Leading Question

◊ The attorney is asking a question that suggests a specific answer.

11. Non-responsive Answer

◊ This usually occurs on cross-examination. The attorney who asked the
question can object to the witness’s answer as non-responsive, ask the
judge to strike that answer, and force the witness to answer the
question posed.

12. Vague
◊ The question does not give enough detail to allow the witness to
respond properly OR a term in the question has an unclear meaning.

Child Witness:
◊ If a very young child is witness, ask:
o Does the child understand what it means to tell the truth; and
o Is the child capable of observing and relating events

Dead Man’s Statutes

◊ A statute that prevents a party who sues a decedent’s estate from
testifying as a witness.
◊ Fairness – not fair to let the claimant testify against the estate, because
the dead cannot rebut
◊ Not in the federal RULEs – only applies in diversity suits

CHAPTER 16: RERULESHING A WITNESS’S MEMORY

RULE 614:
Rule 614. Court’s Calling or Examining a Witness
(a) CALLING. The court may call a witness on its own or at a party’s request.
Each party is entitled to cross-examine the witness.
(b) EXAMINING. The court may examine a witness regardless of
who calls the witness.
(c) OBJECTIONS. A party may object to the court’s calling or examining a
witness either at that time or at the next opportunity when the jury is not present.

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 EVIDENCE OUTLINE

◊ Allows the judge to call his/her own witness

◊ Judge may question a witness
◊ Must object as soon as jury not present

RULE 615: Sequestering Witnesses

Rule 615. Excluding Witnesses
At a party’s request, the court must order witnesses excluded so that they cannot
hear other witnesses’ testimony. Or the court may do so on its own. But this rule
does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being
designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s
claim or defense; or
(d) a person authorized by statute to be present.
◊ Why?
o To prevent them from changing their testimony
o They cannot be in the courtroom while other witnesses testify
◊ Except:
o Parties to the lawsuit
o Representative of a corporation or organizational party; or
o Witness essential for preparation(like psychologist)
o Victims can be present

Rule 612. Writing Used to Refresh a Witness’s Memory

(a) SCOPE. This rule gives an adverse party certain options when a witness uses a
writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have
those options.
(b) ADVERSE PARTY’S OPTIONS; DELETING UNRELATED MATTER.
Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is
entitled to have the writing produced at the hearing, to inspect it, to cross-examine
the witness about it, and to introduce in evidence any portion that relates to the
witness’s testimony. If the producing party claims that the writing includes un-
related matter, the court must examine the writing in camera, delete any unrelated
portion, and order that the rest be delivered to the adverse party. Any portion
deleted over objection must be preserved for the record.

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 EVIDENCE OUTLINE
(c) FAILURE TO PRODUCE OR DELIVER THE WRITING. If a writing is not
produced or is not delivered as ordered, the court may issue any appropriate order.
But if the prosecution does not comply in a criminal case, the court must strike the
witness’s testimony or—if justice so requires—declare a mistrial.

Refreshing Recollection
Witnesses may refresh recollection from
● Personal notes
● Pictures
● Any writing
When you use a writing to refresh:
The adverse party can introduce the writing as evidence.

CHAPTER 16
Refreshing Recollection Steps:
1. Witness says she can’t recall
2. identify memory jogger and ask witness if that might refresh their memory
3. show memory jogger to opposing counsel
4. show memory jogger to the witness
5. take the memory jogger away
6. ask witness: did that refresh your memory?

Tactics to deal with damaging evidence:

1. use the RULEs to exclude evidence
2. rebut with your own evidence
3. complete the story
4. clarify ambiguous testimony
5. impeach the witness

CHAPTER 17
Impeachment
Attacking the credibility of the witness
Attacking the truth of what the witness said or the accuracy of their statement

Pitfalls of Impeachment:
Forgetting to use leading questions on cross-examination

Who can impeach a witness?

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 EVIDENCE OUTLINE
Rule 607. Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s
credibility.

Main Methods of Impeachment

1. Bias(getting paid by the other side, related to the other party, plea deal)
2. Defects in Perception
3. Prior Inconsistent Statements( yesterday, traffic light was red and today,
traffic light is green)
4. Untruthful Character of Witness
a. Prior bad acts
b. Prior convictions
c. Character witness testifies re: bad character for truthfulness

RULE 613: Witness’s Prior Statement

Rule 613. Witness’s Prior Statement
(a) SHOWING OR DISCLOSING THE STATEMENT DURING EXAMINA-
TION. When examining a witness about the witness’s prior statement, a party need
not show it or disclose its contents to the witness. But the party must, on request,
show it or disclose its contents to an adverse party’s attorney.
(b) EXTRINSIC EVIDENCE OF A PRIOR INCONSISTENT STATEMENT.
Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if
the 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 if justice so
requires. This subdivision (b) does not apply to an opposing party’s statement
under Rule 801(d)(2).

(a) showing or disclosing the statement during examination

When examining a witness about the witness’s prior statement,
◊ A party need not show it or disclosure its contents to the witness
◊ But the party must, on request, show it or disclose its contents to an adverse
party’s attorney

RULE 607:

A prosecutor cannot call a witness to the stand primarily for the purpose of using
impeachment to get otherwise inadmissible evidence before the jury.

If prosecutor might do that, then judge should hold a Voir Dire exam away from
the jury.
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 EVIDENCE OUTLINE

The Collateral Matter Rule when impeaching a witness.

Q: when can you introduce extrinsic evidence to impeach a witness?
A: only if it is not collateral.
If collateral 🡪 cannot bring extrinsic evidence(anything outside the mouth of this
witness)

Not allowed to use Extrinsic Proof(evidence of stuff outside of what the witness
experienced) to prove collateral matters

The test of collateralness:

Could the fact as to which error is predicated have been shown in evidence for any
purpose independently of the contradiction.

Judge may allow you to ask questions about the contradictory matter, but not
allowed to bring in extrinsic evidence.

Q:
When can you introduce extrinsic evidence to impeach a witness?
*if it is not collateral

You can use extrinsic evidence when impeachment is for things like…
Non-Collateral:
Bias
Defects In Perception
Interest
Mental incapacity

Why allow extrinsic evidence for these things?

It is not collateral.

The Collateral Matter Rule

◊ When the impeachment is about something collateral(something essential to
the case).

Impeachment
◊ Attacking a witness’s truthfulness or lack of accuracy

4 Main Methods of Impeachment

1. Bias
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 EVIDENCE OUTLINE
2. Defects in Perception
3. Prior Inconsistent Statements
4. Untruthful Character of Witness
a. Prior bad acts;
b. Prior convictions
c. Character witness testifies re: character for truthfulness

Suggest Witness has Untruthful Character

◊ Consider 404 and 408

FRE 404(a)(1)
(a) CHARACTER EVIDENCE.
(1) Prohibited Uses. Evidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person acted in accordance
with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s
trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character
may be admitted under Rules 607, 608, and 609.
(b) CRIMES, WRONGS, OR OTHER ACTS.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On
request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good cause, excuses lack of
pretrial notice.

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 EVIDENCE OUTLINE
Prohibited Uses
1. Evidence of a person’s character or character trait is not admissible to prove
that on a particular occasion the person acted in accordance with the
character or trait.
2. Can’t use character evidence to show action in conformity with character
3. The EXCEPTIONS
a. Evidence of a witness’s character may be admitted under 607,608, and
609
b. Bias
c. Defects in Perception
d. Prior Inconsistent Statements
i. Prior bad acts
ii. Prior conviction
iii. Character
e. Exception in 609
i. You can impeach a witness by showing untruthful character of
the witness
1. Prior bad acts
a. Misconduct that did not result in a conviction, and
b. That reflects on the truthfulness of the witness
2. Prior convictions
a. Felony Conviction
b. Conviction of a crime involving dishonesty
i. Different balancing test depending on
whether the witness is the accused or not
3. Bad character for truthfulness
a. Testimony from a character witness in the form of
reputation or opinion
b. That the other witness has a bad character for
truthfulness

Rule 608(b): Specific Instances of Conduct

◊ No extrinsic evidence is admissible to prove specific instances of conduct

How do you impeach with prior bad acts? 608(b)

1. On cross-ex
2. Ask about specific conduct
3. That suggests untruthfulness(lying on job application)

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 EVIDENCE OUTLINE
Impeaching a Witness

What kind of conviction?

More than 10 years old? If more than 10 years old 🡪 notice to the other party
Who is the witness being impeached? Is it the dfnt or regular witnesss?

Rule 609 Applies to Two Types of Conviction

Types of crimes of Falsehood or Dishonesty:

Must have a dishonest element:
Perjury
Fraud
Forgery
Embezzlement

Crime of dishonesty conviction for witness:

Must come in on impeachment
Is there a balancing test? No.
Judge does not have 403 discretion for these convictions of crimes of dishonesty

Prior Felony Convictions:

Different balancing test

Felony or misdemeanor crimes of dishonesty – they are coming in!

Different Balancing Tests depending on Who is the Witness

Regular witness or criminal dfnt

Regular Witness:
Want to impeach them for a felony
Subject to 403
Must be admitted subject to 403
Unless its probative value is substantially outweighed by unfair prejudice

Balancing test when criminal dfnt is the witness:

Prior conviction must be admitted if
The probative value of admitting this evidence substantially outweighs its
prejudicial effect to that dfnt
THE more similar 🡪 less chance the judge will let it in!

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 EVIDENCE OUTLINE
Impeachment on Cross-Ex
Why does Jimmy Stewart begin his cross-examination by asking Duke why Duke
is currently in jail?
FRE 609 issues
Window peeping? No

Impeaching with Prior Convictions:

1. What should you do if you worry that your client might be impeached with a
prior conviction?
2. Should you tell them not to take the stand?
3. Motion in limine

Issues to Keep in Mind when dealing with impeachment for prior convictions:
1. Who is on the stand?
a. Regular witness or the dfnt
2. What kind of convictions is it?
a. felony or misdemeanor?
3. Is it a crime of dishonesty?
a. do the elements require a showing of dishonesty?
4. How old?
a. released more than 10 years ago.
5. Was there a pardon?
a. juvenile crime

Admit Juvenile Conviction for theft?

a. NO!

Dfnt has conviction for assault.

a. adult conviction for assault
b. convicted 9 years ago
c. suspended sentence
d. no pardon
Yes, if probative value outweighs prejudicial effect to that dfnt
403 is for regular witnesses

What factors should judge weigh?

For admission:
Differs from charged crime
Importance of D’s testimony
Centrality of Credibility
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 EVIDENCE OUTLINE
Against Admission:
Assault is weakly probative
Relatively long ago(7 years)

Convicted of Embezzlement(crime of dishonesty)

1. crime with an element of untruthfulness

D has convicted for Disorderly Conduct(Public Drunkness)

1. No, does not involve truthfulness

Defense Attorney:
Can you impeach Prosecutor’s witness?
1. felony assault
2. two years ago
3. served one year in prison
Yes, subject to Rule 403

CHARACTER EVIDENCE(Rule 404/Rule 405)

What are character traits?

◊ Elements of one’s disposition
◊ Such as honesty, temperance,
◊ Truthful/liar/peaceable/violent/reckless/careful

Prohibited Uses:
◊ Evidence of a person’s character or character trait is not admissible to
show…
◊ Showing action in conformity with character is forbidden

Jury Prejudice
◊ Give too much weight as evidence of guilty.
◊ Let’s punish him for uncharged acts

Waste of Time
◊ On collateral matters

What is it being offered to prove? Always ask that question.

Character Evidence as an Element of a Crime:

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 EVIDENCE OUTLINE
◊ Where character is an element of the crime/claim/defense then character
evidence is permitted

Most Common Types of Cases:

◊ Child custody
◊ Defamation(Libel[printed] or Slander)
◊ Entrapment
◊ Negligent Entrustment(character of whom you entrust something to)

If character is at issue, can use:

1. Any form of evidence
2. Specific acts
3. Reputation
4. Opinion
5. Anything

Can introduce any type of evidence in which character is an element, as long as it

adheres to 403.
Can Cross-Examination & use extrinsic evidence to counter the witness

Exceptions that only apply in criminal trial:

Character of defendant in criminal trial

Character of the witness in criminal trial

“The Mercy Rule” allows a criminal defendant to offer evidence of his or her

good character as a defense to criminal charges

Exception in criminal case:

1. The dfnt may offer evidence of the dfnt’s pertinent trait, and if the evidence
is admitted, the prosecutor may offer evidence to rebut it;
2. Subject to limitations in Rule 412(Rape Shield), a dfnt may offer evidence of
an alleged victim’s pertinent trait, and if the evidence is admitted, the
prosecutor may:
a. Offer evidence to rebut it; and
b. Offer evidence of the dfnt’s pertinent trait
3. In a homicide case, the prosecutor may offer evidence of victim’s trait of
peacefulness, but only used to rebut that the victim was the first aggressor.

Applies only to criminal cases

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 EVIDENCE OUTLINE
Allows defendant to introduce evidence about(Dfnt must open the door)
◊ His own character OR
◊ The victim’s character
Character trait must be pertinent

Who has to open the door? The Dfnt has to open the door when he introduces
evidence of his own pertinent trait of character, prosecution cannot open that door
first

Once D opens the door.

◊ Prosecutors can fight back in 3 ways

Victim’s Character:
1. Offered by the D, says victim was the first aggressor
2. Offered by the Prosecutor to rebut character evidence of the victim

EXAM TIP:
Is the character evidence in the RIGHT FORM? Look at 405.

Character evidence comes in 3 different forms:

1. Opinion
◊ Witness has to know the dfnt enough to give their opinion
2. Reputation(testimony from someone in the same community)
3. Specific Acts
Generally limited to Reputation testimony and Opinion, unless character is an
element in the case

What other purposes?

Such as:
1. Motive
2. Opportunity
3. Intent
4. Preparation
5. Plan
6. Knowledge
7. Identity
8. Absence of mistake or lack of accident

404(b) Modus Operandi(Signature Crime)

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 EVIDENCE OUTLINE
◊ Earmark crimes
◊ Identity, by itself, should NOT be a ticket to admission.
◊ Identity is an inference that flows from one or more of the other theories of
admissibility, e.g.:

McCormick’s Doctrine of Chances

◊ What are the chances that one man would have three wives that one ma
◊ Not offered to show propensity(give jury limited instruction)
◊ So, jury may infer that the pattern did not occur by chance.
◊ Coincidences can happen, so…
◊ The jury can decide whether a series of incidents was coincidence or not.
o Based on the number of Acts
o Their Unusual Nature
o And their similarities

What should OC do when they do:

◊ Argue FRE 403
◊ Instruct judge to give a limiting instruction

Habit Evidence
◊ Evidence of a person’s habit or an organization’s routine
◊ Habit is not character(very narrow, very specific)
◊ Habit can be used
o To show someone acted in conformity with their habit on a particular
occasion(putting on seatbelt)
◊ Habit is specific
o One’s regular response

Federal Rape Shield Statutes

◊ At common law, what kind of evidence could a dfnt introduce about the rape
victim’s character
◊ The victim’s character for chastity
◊ Myths:
o Consent with one partner is worthy evidence of consent with another
o And an unchaste woman is not worthy of belief

412
Rape shield laws rejects these premises and generally prohibits the use of evidence
about the victim’s unchaste character

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 EVIDENCE OUTLINE
◊ Reputation and sexual behavior
◊ For the forbidden purpose of the inference of consent

Other uses of prior sexual conduct:

◊ Criminal cases. The court may admit the following evidence in a criminal
case
o If offered to prove that someone other than the dfnt was the source of
semen, injury, or other physical evidence
o Evidence of specific instances of a victim’s sexual behavior with
respect to the person accused of the sexual misconduct, if offered by
the dfnt to prove consent or if offered by the prosecutor
o Evidence whose exclusion would violate the constitution

Complainant previously made a false rape claim

◊ Admit, because exclusion would violate the dfnt’s constitutional rights(right
to put on a full case/Due Process)

Evidence that sally is on birth control.

◊ No

Rape shield statutes applicable in:

◊ Both civil and criminal cases

Balancing test in 403 is in reverse – in Civil

◊ If probative value substantially outweighs the danger of harm.
◊ Evidence of victim’s other sexual behavior or sexual predisposition excluded
unless the prove value substantially outweighs the danger of harm.

Rules 413-14:
Congress Gets Tough on Crime

Rule 413 – Similar Crimes in Sexual Assault Case

A. Permitted Uses
In a criminal case in which a dfnt is accused of a sexual assault, the court may
admit evidence that the dfnt
It is propensity evidence.
Prosecutor can show past sex crimes, and basically argue, D did it before, he must
have done it again.”
Free to use propensity when it is about the dfnt.

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 EVIDENCE OUTLINE
◊ People have special propensities to commit sexual assaults or child
molestations.
◊ Sexual assaults and child molestations are harder than other crimes to prove.

Very broadly drafted

◊ Do you need a prior conviction? No
◊ Is there a time limit on old evidence? No
◊ Is hearsay ok? Yes
◊ Can judge still do a 403 balancing for unfair prejudice?
◊ Rule say “may admit” (doesn’t say may admit subject to 403 balancing),
but…
◊ Legislative history and cases suggest 403 still applies.

Evidence of Dfnt’s Bad Acts and Character

413-14: Sexual Propensity
404(a)(2): Reply to mercy evidence
404(b): Non-propensity purpose
406: Habit
608(b): X-exam on truthfulness
608(a): Character of W’s truthfulness
609: criminal convictions
611: Cross-examine to contradict

Evidence of Victim’s Bad Acts and Character

412: Rape Shield Rule
404(a)(2) Mercy evidence
404(b) Non-propensity purpose
406: Habit
608(b) Cross Exam on truthfulness
608(a) Character witness truthfulness
609: criminal convictions
611: Cross examine to contradict

104(a) Preliminary Questions

The court must decide preliminary question about whether:
◊ A witness is qualified
◊ A privilege exits, or
◊ Evidence is admissible
◊ In so deciding

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 EVIDENCE OUTLINE
104(b)
Relevance that depends on a fact
When the relevance of evidence depends on whether a fact exists, proof

Conditional Relevance
Relevance conditioned on some other fact.
Jury decides this(subject to judge’s gatekeeping.)
Often relates to
Personal knowledge
Credibility

Definition of Hearsay: 801

Hearsay means a statement that:
1. The 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:
◊ Written statement
◊ Spoken statement
◊ Conduct can be a statement, if the person intended it as an assertion

If the person intended it(the oral assertion, the writing, or the conduct) as an
assertion.

801:
Implied assertions are not hearsay under the FREs.

K-9 dog’s bark

◊ Not statement because it must be made by a person

Declarant means the person who made the statement.

Can a machine make a statement:

Not a person

Is an email a statement?
It is not an automated one 🡪 No
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 EVIDENCE OUTLINE
If there is a human being behind the writing 🡪 hearsay potential

Is a recorded voice message a statement? Yes

Statement Formula:
Declarant(person) + Assertion(intentional communication)

Some other purposes(not for truth of the words)

1. Effect on the Listener
2. State of Mind of Speaker
3. Legally Operative Language(Verbal Acts)
4. Miscellaneous(any other argument that the words are not being used for)

1. Effect on Listener
P offers statement made by an unidentified person in the operating room during
surgery “the sponge count came out wrong.”

2. State of Mind of Speaker

Child’s out of court statement, “Daddy tried to kill me.”
If offered to show child’s fear of his father, for purpose of showing it would not be
in the best interest of the child to give custody to the father.

3. Legally Operative Language(Verbal Acts) – when said, something legal happens

– speaking of the words create something
Words that create new legal relationship
1. Rights
2. Duties
3. Powers
4. Privileges, or
5. Other relationship

Legally operative language is not offered for what it says, it is offered for what it
proves.

What crimes are committed by words?

1. Perjury
2. Offering to sell contraband
3. Threatening harm to others
4. Extortion
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 EVIDENCE OUTLINE
5. Solicitation for prostitution
When you speak the word 🡪 it is a crime

Words that have legal significance simply by the fact of being uttered
1. Defamation(libel & Slander)
2. Contract(offer, acceptance, terms)
3. Testamentary intent

What is the proponent trying to prove by offering the statement into evidence? If
she is trying to prove that the content of the out-of-court statement is true, then it is
hearsay.

If we only care about the fact that the out-of-court statement was made, not the
truth of its content, then the statement is not hearsay.

Declarant can make statements either orally or in writing. Declarants can also
make statements through actions.

Whether the declarant intended to communicate information through that conduct.

Rule 801(d): Exemptions:

◊ Prior statement by witness – Not hearsay
◊ Statement of opposing party – Not hearsay

Rule 804: Declarant Unavailable:

◊ Former testimony
◊ Statement under the belief of imminent death(“dying declaration”)
◊ Statement against interest
◊ Statement of personal or family history
◊ Statement offered against a party that wrongfully caused the declarant’s
unavailability (“forfeiture by wrongdoing”)

Rule 807: Residual Exception:

◊ Other statements having equivalent circumstantial guarantees of
trustworthiness, when admission will serve the interests of justice

Rule 803: Availability of Declarant Varies:

◊ Present sense impression
◊ Excited Utterance
◊ Then-existing mental, emotional, or physical condition
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 EVIDENCE OUTLINE
◊ Statement made for medical diagnosis or treatment
◊ Recorded Recollection
◊ Records of a Regularly conducted activity
◊ Absence of a record of a regularly conducted activity
◊ Public records
◊ Public records of vital statistics
◊ Absence of a public record
◊ Records of religious organizations concerning personal or family history
◊ Certificates of marriage, baptism, and similar ceremonies
◊ Family records
◊ Records of documents that affect an interest in property
◊ Statements in ancient documents
◊ Market reports and similar commercial publications
◊ Statements in learned treatises, periodicals, or pamphlets
◊ Reputations concerning boundaries or general history
◊ Reputation concerning character
◊ Judgment of a previous conviction
◊ Judgments involving personal, family, or general history, or a boundary

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written assertion,
or nonverbal conduct, if the person intended it as an assertion.
FEDERAL RULES OF EVIDENCE
Rule 802
(b) DECLARANT. ‘‘Declarant’’ means the person who made the statement.
(c) HEARSAY. ‘‘Hearsay’’ means a statement that:
(1) the declarant does not make while testifying at the cur-
rent trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
(d) STATEMENTS THAT ARE NOT HEARSAY. A statement that
meets the following conditions is not hearsay:

Example: A commercial ship sinks at sea, with no survivors to explain the loss. A
lawsuit disputes the seaworthiness of the ship at the time it left port. The party
claiming seaworthiness offers evidence that the ship’s captain inspected the ship,
then sailed off in it with his wife and children on board. Is this hearsay?
The captain’s conduct was not hearsay because he did not intend to assert anything
to anyone when he set sail with his family.

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 EVIDENCE OUTLINE
Audiotapes:
They contain verbal assertions by human actors.

Photographs and Videotapes:

Photographs and videotapes do not portray human assertions.

Machine Readouts:
Information conveyed by a machine usually is not a statement. When a watch
reveals the time and a thermometer indicates the temperature, no human has made
an assertion. Polygraph machines, breathalyzers, and radar guns do not make
statements.

Hypo:
To show that the declarant offered the proponent $3,000 a truckload for Boba Fett
action figures,
The proponent offers into evidence the de

Not hearsay! Legally operative language

◊ Offered for what it does

Midterm Review:
What type of case?

Who is on the stand?

What is the charge?

Leading Chapter 15 – leading questions are sometimes allowed on direct for

background on the witness/refresh the recollection of the witness/hostile witnesses

When is leading allowed on direct examination?

It is fine to recollect with someone else’s document – rule 12 – refreshing

recollection

NOT Hearsay because effect on the listener – “ and isn’t it true that if you are
convicted of this crime your employer has told you that you will be fired from the
job”

Cross: Ask whatever was within the scope of direct and impeachment
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 EVIDENCE OUTLINE

Three Ways NOT to be Hearsay:

a) Doesn’t fit the definition in 801
i) Not a statement
ii) Not made out of court
iii) Not offered for the truth of the matter
b) It is exempt:
i) Certain prior statements by a witness and statements by a party opponent
c) There are exceptions:
i) 803, 804, and 807

Two Types of EXEMPTIONS:

(d) STATEMENTS THAT ARE NOT HEARSAY. A statement that
meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) 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; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on
another ground; or
(C) identifies a person as someone the declarant perceived earlier.

801(d)(1)
Certain kinds of prior statements by a witness are non-hearsay
1. Prior inconsistent statement
2. Prior consistent statement
3. Prior identification

If the witness claims privilege 🡪 unavailable 🡪 prior inconsistent statement cannot

be brought in

Witnesses who take the stand and claim lack of memory are still subject to cross-
examination.

A witness who gives a detailed statement at one time and then claims failed
memory at another time may appear inherently unreliable to the jury.

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 EVIDENCE OUTLINE
Most courts treat memory loss, real or feigned as inconsistent with a witness’s
prior detailed statements, paving the way for counsel to introduce those statements.

Interrogations conducted by the police and other investigators are not proceedings.
Even if a witness makes a formal statement under oath to the police, that statement
is not admissible.
801(d)(2)
1. Must be at trial
2. The witness must be capable of being crossed

Prior Inconsistent Statement Elements

1. Witness testifies and is cross-examinable concerning the prior statement
2. Prior statement must be inconsistent with his present testimony
3. Prior statement must have been made subject to penalty of perjury in a prior
proceeding or deposition

801(d)(B)
Prior Consistent Statement Elements
Does not have to have been made under oath(watch the timing of the prior
consistent statement).

When was this prior consistent made?

Look for a prior consistent statement made BEFORE any motive to lie may have
arisen.

These statements are admissible only if the witness’s credibility has been attacked
and the prior statement helps to rehabilitate that credibility

Prior ID
Declarant-Witness’s Prior Statement
The declarant testifies at trial
The declarant must be at the trial for cross
Prior ID of a person

Usually used when the identity of the perpetrator is a disputed issue: The
prosecutor will ask the witness the identity of the perpetrator in the court and then
elicit testimony about the witness’s earlier identification to bolster the in-court
identification.

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 EVIDENCE OUTLINE
The testimony is permitted regardless of whether the witness is able to repeat the
identification in court.

Rule 613 Rule 801(d)(1)(a)

Any prior inconsistent statement Prior inconsistent statement must have
related to a fact of consequence is been made under penalty of perjury
admissible and at trial, hearing, or other
proceeding, or deposition
Statement is admissible only to Party may rely upon the statement to
impeach the witness’s credibility prove the truth of the matters asserted
Judge will instruct the jury to use the No limiting instruction
prior statement only to access
credibility

Admitting Prior Statements Under Rule 801(d)(1)

Prior statement must have been made by a witness at the current proceeding

Witness must be subject to cross-examination

◊ Witnesses with real or feigned memory loss are subject to cross
◊ Witnesses who assert a blanket privilege are not subject to cross
◊ Witnesses who claim privilege selectively may be subject to cross

Prior Inconsistent Prior Consistent Identification: 801(d)(1)

Statement: 801(d)(1)(a) Statement: 801(d)(b) (c)
◊ Memory failure ◊ Witness’s ◊ Must be an
constitutes credibility must be identification of a
inconsistency attacked person
◊ Statement must ◊ Statement must be ◊ Prior statement
have been given probative for admitted for the
under penalty of rehabilitation truth of the matter
perjury at a ◊ If offered under
hearing, 801(d)(b)(i), prior
deposition, or statement must
other proceeding have been made
◊ Grand jury before the motive
hearings count as to fabricate or
proceedings; improper influence
police began
interrogations do ◊ Statements are
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 EVIDENCE OUTLINE
not admitted for the
◊ Statements are truth of the matter
admitted for the
truth of the matter

What differences when using prior inconsistent statement

1. To impeach vs hearsay exemption

Rule 613: Any prior inconsistent statement can be used to impeach. Extrinsic
evidence only allowed if the prior inconsistent statement is relevant NOT just to
impeach, but also relevant to some other fact in consequence. Even if extrinsic is
allowed, the statement is still only admissible to impeach.

Rule 801(d)(1)(A): Must be a prior inconsistent statement made under penalty of

perjury, under oath, at trial, hearing, proceeding, or deposition. Extrinsic evidence
can be used to prove statement, AND the statement is admissible for any
purpose(including the truth of the matter asserted).

1. Statement 🡪 If not 🡪 not hearsay and admissible on hearsay grounds

2. Made out of court 🡪 if not 🡪 not hearsay and admissible on hearsay grounds

Midterm Review:
Go to Maite Rodriguez – Section II of evidence – need two papers(can keep those
two) –printout showing which answers you got right and which wrong and handout
topics to study for specific wrong answers
You can review the questions

What kind of case is it?

Who is letting it in?
What purpose are they bringing it in for?

4 Strategic Questions to Ask

(1) Is this a Civil or Criminal Case
(2) What is it?(what is the contested evidence)
(3) What is it offered to prove?
Forbidden purpose?
(4) How does it prove that?

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 EVIDENCE OUTLINE
Questions majority of studens got wrong:
5. dfnt’s house is destroyed by fire and she is charged with arson. To prove that the
dfnt had a motive to burn down the house, the prosecutor offers evidence that the
dfnt had fully insured the house and its contents
Yes, motive

9. two people injured. One gives the other a new skateboard. The other sues for
negligence, and at trial, one testify that Antonio gave her a brand new skateboard
the day after the event. Antonio objects.

15. a dfnt is on trial for attempted fraud. The state charges that the dfnt switches a
price tag from a cloth coat to a more expensive fur-trimmed coat and then
presented the latter for purchase at the cash register.

The dfnt has testified in her own behalf that someone else must have switched the
tag.
Prosecutor asks whether the dfnt was convicted on two prior occasions of
misdemeanor fraud of a try

Can impeach for crime of dishonesty and shows that this is her modus operandi

Impeaching the character witness shows you don’t really know the dfnt as well as
you thought you did.

Modus Operandi = this is her style

Bar Exam= “should the court admit this evidence”

403 is usually not the right answer

400s = social policy rules

Why have exceptions to the Hearsay rule?

◊ Reliability
o Something about the circumstances of a particular type of exception
◊ Necessity
o The declarant is not available
◊ Where are the hearsay exceptions:
o FRE 803
o FRE 804

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 EVIDENCE OUTLINE
o FRE 807
◊ 10 Main Exceptions
o Present Sense Impression
o Excited Utterance
o State of Mind
o Medical diagnosis or Treatment
o Past Recollection Recorded
o Business Records
o Public Records
o Former testimony
o Dying declaration
o Declaration against interest
▪ Plus the catchall exception, and
▪ Plus statement of opposing party(technically, exemption)

Present Sense Impression

Rule 803. Exceptions to the Rule Against Hearsay—Regardless of
Whether the Declarant Is Available as a Witness
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 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.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant’s 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 declarant’s
will.

◊ A statement describing or explaining an event or condition, made while or

immediately after the declarant perceived it. Describes the event as it
unfolds.
◊ If any length of time passes between experiencing something and then later
talking about it🡪 No, not present sense impression.
◊ Stating/describing something while you are perceiving it.

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 EVIDENCE OUTLINE
◊ Example, witness is saying: the announcer said, “the batter swings and it’s a
strike.”
◊ Are any hearsay dangers lessened?
o Accuracy
▪ Declarant isn’t relying on memory.
o Sincerity
▪ It’s hard to lie quickly.
◊ The statement describes the event + while it is being perceived
◊ “Got to go. Sam, just called in.”
◊ “Right after that, I heard a loud noise like a gunshot.” 🡪 not hearsay

Present Sense Impression vs Excited Utterance(803)(2)

◊ A statement relating to a startling event or condition made while the
declarant was under the stress of excitement that it caused.
◊ Declarant spoke while excited by an event + statement they made relates to
the event
◊ There was a startling event + statement made while declarant still under
stress of startling event;
◊ Statement relates to the startling event
◊ Timing: as long as they are under the factor

Comparing Excited Utterance and Present Sense Impression

o Accuracy
▪ Declarant isn’t relying on memory.
o Sincerity
▪ It’s hard to lie quickly.
911 calls
◊ Tone of voice?
◊ Time between incident and phone call?
◊ How traumatic is the incident?

803(3)
Presently Existing State of Mind(Or state of body or state of emotion)
◊ State of Mind
◊ State of Body
◊ State of Emotion
Your own states of being
◊ Running commentary on how you think you are doing on the inside.
◊ Statement

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 EVIDENCE OUTLINE
◊ About the speaker’s
◊ Presently existing state
Rational
◊ There are no perception or memory danger

State of mind:
I’m hungry…
Not covered:
“Because I only had salad for lunch”

“I’m angry”! “because Tim stole my money”! No!

If not presently look, but looking BEFORE🡪 hearsay

“my head hurt yesterday.”

It is past looking!

Future conduct with someone? Third Party Hillmon Problem

Insurance case.
Whose body? Hillmon’s or Walters?

Statement about a 3rd Party?

“Yesterday, I visited Crooked Creek with Hillmon.”

Most courts require some independent corroboration that either:

◊ Declarant actually went; or
◊ 3rd party actually went

FRE 803: State of Mind

● Not backwards looking

Rule 8033) allows a declarant’s out of court statement about her current state of
mind, mental condition, or physical condition to be admitted for the truth of the
matter asserted.
State of mind includes only the declarant’s subjective feeling, not references to
external facts that prompted those feelings.

Parties may use the declarant’s state of mind as circumstantial evidence of the
declarant’s prior or subsequent actions. In the famous case Hillmon, the Supreme
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 EVIDENCE OUTLINE
Court allowed a party to use a declarant’s state of mind to prove subsequent
actions by another person.
Two State of Mind Arguments
● Not offered for the truth
● Used circumstantially to

Hearsay Exception State of Mind(Body)

If using the truth of the words 🡪 hearsay 🡪 use 803

FRE 803(4) – Hearsay Exception – Medical treatment (declarant does not need to
be available)
The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness…
(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
i. medical history;
ii. past or present symptoms or sensations;
iii. their inception; or their general cause.
This provision admits out-of-court statements made to obtain medical diagnosis or
treatment.
A party may introduce these states for the truth of the matter asserted.

The rationale sometimes applies to family members who bring their children,
spouses, parents, and other relatives for medical care – especially if the person
needing treatment is too sick to speak for himself.

The rule allows parties to admit statements made to doctors who they consulted
purely to prepare for litigation.

A patient may even obtain this type of diagnosis after the condition has been
treated and cured by other doctors. Even if the doctor did not treat the patient and
simply diagnosed her condition, the doctor’s testimony is admissible.

Application of the rule to medical treatment of psychological injuries can

encompass a large number of statements. These statements are just as reliable and
just as necessary for treatment as descriptions of physical injuries.

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 EVIDENCE OUTLINE
In cases of child abuse, some courts have found the perpetrator’s identity pertinent
to treatment and were found admissible on one of two grounds: (1) some courts
have held that treatment of a patient suffering regular ongoing abuse may include
separation of the patient from the abuser and (2) appropriate psychological
treatment of that patient may depend on whether the attacker was a husband, boss,
friend, or other.

Courts have observed that sexual abuse of a child by a family member generates
emotional and psychological problems uniquely tied to the particular family
relationship. Two federal circuits and some states have used similar reasoning to
admit statements made by adults who identify an alleged domestic abuser while
seeking medical treatment. Those who support this application note that health care
workers cannot adequately treat child abuse or domestic violence without
knowledge of the abuser’s identity.

The language in the rule embraces statements made to anyone, not just a medical
professional, so long as the declarant made the statement for the purposes of
medical diagnosis or treatment. Husband tells wife, “I have been sick for hours, I
need help getting to a doctor.” The husband’s statement is admissible, even though
the wife is not a doctor, the statement made to her was to enlist her help in securing
medical care. Statements to hospital attendants, ambulance drivers, or even
members of the family might be included.

First: Statement must be made for a medical diagnosis or treatment. This

requirement is subjective; the patient must actually be seeking medical care.

Second: The statements must be reasonably pertinent to diagnosis or treatment.

Third: The statements must either (1) accounts of medical history, (2) descriptions
of past or present symptoms or sensations, or (3) reports about the inception of the
condition or its general cause

Statement for Diagnosis or Treatment(no time limit)(excludes statements that

blame a particular person or organization for causing the condition)
● Only statements that the patient is making or on the patient’s behalf
● Statements made for medical diagnosis
● Statement trying to get some medical diagnosis
● Covers history of the pain, not just present
● Limited instructions for statements that are too specific
● Even from medical professionals that will testify at personal trial
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● Statement identifying abuser to a physician by child sexually abused by
family member are admissible.

Rationale: An individual seeking medical diagnosis or treatment has a strong self-

interest in reporting symptoms honestly and precisely. He is relying upon the
listener to provide needed medical care.

FRE 803(5)Past Recollection Recorded: Requires that the Declarant be available as

a witness
Three ways a witness testifies using memories:
Rule 803(5)
Recorded 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
witness’s memory; and
(C) accurately reflects the witness’s knowledge
If admitted, the record may be read into evidence but may be received as an exhibit
only if offered by an adverse party

Insufficient Recollection: Allows evidence of recorded recollections only when a

witness lacks sufficient memory to testify fully and accurately.

The witness must adopt the statements or they cannot be admitted.

The witness must have created the record while the event was fresh in his memory.
First: The out-of-court statement must appear in a “record”. Record being a
memorandum, report, or data compilation. Judges have allowed audiotapes and
other media. The declarant must have memorialized the recollection in some way.

Second, the witness testifying in court must either be the declarant who made the
record or a person who saw the record and agreed that it was true( the person
adopted the record as true).

Third: The declarant/witness must testify that she once knew about the information
contained in the record, and that she made or adopted the record when she had that
knowledge.

Fourth: The witness must have made or adopted the record at a time when her
knowledge was fresh.
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Fifth: the witness must testify that at the time she made or adopted the record, she
knew that it accurately reflected the knowledge that she had.

Finally: the witness must no longer recall the information contained in the record
well enough to testify fully and accurately( hearsay is necessary and direct
testimony is not available).

The party with the recorded recollection is NOT to introduce the document directly
into evidence as an exhibit, unless the opposing party asks for the document to be
introduced as an exhibit.

● Straight from memory

o Witness takes the stand and testifies from his present memory
● Present recollection refreshed
o Witness takes the stand
o Lawyer asks a question and the witness says he does not remember
o The lawyer then shows W a document to jog her memory
o Lawyer asks, do you remember now
o Lawyer is not trying to introduce it into evidence, but OC can have it
placed into evidence
● Past recollection recorded
o A record that:
▪ Is a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately
▪ Was made or adopted by the witness when the matter was
● Six Foundation Elements for Past Recollection Recorded
o Record
o Witness made or adopted that record
o Witness once had personal knowledge
o Witness made or adopted the record when that knowledge was fresh
o Witness testifies that info was accurate
o Witness has forgotten

Rule 612: Refreshing Memory Rule 803(5): Recorded Recollection

Need Arises When: Witness cannot Need Arises when: Witness cannot
recall details of an event or other recall details of an event or other
matter of which she once had personal matter of which she once had personal
knowledge knowledge.
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 EVIDENCE OUTLINE
What witness does: Looks at What witness does: reads into record
evidence(usually a writing) to jog information from a document or other
memory, then testifies orally without record
referring further to evidence
What type of Evidence: Any writing or What type of document or other record:
other evidence that will help witness One that the witness made or adopted
remember; the witness need not have when the matter was fresh in the
created or adopted the material witness’s memory. Record must
correctly reflect witness’s personal
knowledge at time it was recorded.
Who may introduce evidence used to Who may introduce recorded
refresh into evidence: only adverse recollection: only adverse party (i.e.
party (i.e., party that did not call party that did not call witness)
witness)
Relationship to hearsay: Witness Relationship to Hearsay: Statements
testifies directly from memory after contained in the record are admitted as
refreshment, so there is no hearsay an exception to the hearsay rule. The
issue. If adverse party introduces jury may consider the content of the
writing into evidence, it is admissible document or other record, as read into
only on the issue of credibility. For the the trial record by the witness, for the
jury to consider the writing for the truth truth of the matters asserted.
of the matter asserted, it must fall
within a hearsay exception.

Double Hearsay: Multiple Levels of Hearsay:

FRE 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
● If either of the layers fails to satisfy an exception, the entire statement is
inadmissible to prove the truth of the matter asserted by the original
declarant.

Hearsay Exceptions:
● Business Records
● Public Records
● Learned Treatises

Why have an exception for Business Records?

Rationale:
Tend to be more trustworthy
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FRE 803(6): Records of a Regularly Conducted Activity

Records of a Regularly Conducted Activity: A record of an act, event, condition,
opinion or diagnosis if:
(A) the 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, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule 902(11) or
(12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness

● A record of an act, event, condition, opinion, or diagnosis, if

o The record was made at or near the time by or from information
transmitted by someone with knowledge
o The record was kept in the course of a regularly conducted activity of
a business, organization, occupation, or calling, whether or not for
profit
o Making the record was a regular practice of that activity
o All these conditions are shown by the testimony of the custodian or
another qualified witness

◊ Admits nearly every document that an organization generates in the ordinary

course of business

◊ Business includes any type of organization or association, whether or not

conducted for profit.

First: Applies to any record, such as a memorandum, report, or data compilation.

The information does not have to be a fact; it could be a conclusion, analysis, or
opinion as long as the document complies with the other conditions.

Second: The information must have been recorded by a person with personal
knowledge of the data or a person who received that information from someone
else in the organization with personal knowledge. The information needs to have
been recorded within a reasonable time.

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 EVIDENCE OUTLINE
a. the person who lays this foundation does not have to be the person who
made the record
b. the witness does not have to know exactly who made the record as long as
the witness knows the organization’s recordkeeping practices.
c. even a person from outside of the organization can lay the appropriate
foundation for business records

d. the rule allows a custodian or other qualified witness to provide a written

statement certifying the foundational requirements for a business record, rather
than testifying live. The written certification must provide the same information
that the witness would offer through live testimony.

Third: The organization must have made the record in the course of a regularly
conducted business activity, and the organization must have a regular practice of
keeping such records.

Fourth: A qualified witness must introduce the record into evidence. This witness
often is the document’s custodian, the person who maintains the record for the
organization.

Fifth: A business record is not admissible if the source of the information or the
method or circumstances of preparation indicate a lack of trustworthiness. The
opponent of evidence offered as a business record bears the burden of showing that
the record lacks trustworthiness.
a. Courts usually apply this caveat to business records prepared in
anticipation of litigation.
b. Courts continue to find that documents prepared in anticipation of
litigation are too untrustworthy to qualify as business records, even if the party
hires a third party to investigate the accident and prepare a report.

Rationale: (1) organizations generate most of these documents according to well

established routine practices. The organization’s procedures are likely to reduce
mistakes in documentation and to detect those that do occur; (2) organizations
reply upon documents like these to make important decisions.

Business Records
1. Need a business
2. Need records
3. You need a qualified witness to lay the foundation
4. then you lay the foundation
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 EVIDENCE OUTLINE
a. made by a person with knowledge
b. at or near the time
c. in the course of a regularly conducted business activity
d. it was the business’s regular practice to make the record
e. You rebut any showing that circumstances indicate lack of trustworthiness

Absence of a record of a regularly conducted activity: 803(7)

Does the source of the information have a business duty to be accurate?

Be alert for outsider statements inside of business records*
Examine business records carefully for the source of each statement contained in
the record.

Lack of trustworthiness
Reports prepared in anticipation of litigation.

What is the purpose of the accident report? Litigation

Report is Dripping with a motivation to falsify

Scrutinize them for trustworthiness

Tips for Business Records:

● Need a record made in regular course of business
● Make sure the person who was source of the knowledge had a business duty
to make the report.
o Witness who is not employee of business has no duty to report.
o If INTERNAL accident report 🡪 determine if it is trustworthy

Public Records:
803(8) Public Records: A record or statement of a public office if:
(A) It sets out:
(1) the office’s activities;
(2) a matter observed while under a legal duty to report, but not including, in
a criminal case, a matter observed by law-enforcement personnel; or
(3) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation, and

(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.

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 EVIDENCE OUTLINE
Applies only to matters the agency has a duty to report. Reports that exceed an
agency’s authority do not fall within the exception. Excludes information that third
parties observe and report to agencies. Excludes information from outsiders.

Rationale:
1. Courts assume that public officials perform their duties properly, knowing that
they are under an obligation to the public to make accurate and honest
observations.

2. Public officials are neutral gatherers of information, they usually do not have an
incentive to exaggerate or alter the information that they record.

Government officials are considered trustworthy

● The legal duty to be accurate
● Necessity because public officials might handle many manners and they may
forget important facts

Business Records v. Public Records

● Many public records are business records.
● Public records can cover matters that are not recorded regularly.
● Public records are more easily placed into evidence than business records
● There is no need for a sponsoring witness if it is a certified record
● What about the source of the information?
● Factual findings in a public record can be based on report of someone not
part of the public agency

Public Records Exception 803(8)

Three types of public records
First type –Part A(i)
Record of a public office’s activities
Applies in both civil and criminal cases
Any party can take advantage of this
A. Agency Records

Second Type
Why the restriction
Congress was concerned that PRE would replace live witness testimony.

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Third Type:
Factual findings from a legally authorized investigation
Cannot be used against the accused
Dfnt can use them, ONLY the dfnt can use it
Can be used in civil case – a police report recording observations about the scene
of a crime would be admissible in a civil lawsuit, but not in a criminal case
And can be used against the prosecution in criminal case

Subjective reports made by a law enforcement official in an on-the-scene

investigation, which lack sufficient guarantees of trustworthiness because they are
made in an adversary setting and likely to be used in litigation. The prosecution
can introduce records based on observations by other public officials, such as
weather conditions recorded by the National Weather Service.

The Advisory Committee’s note lists factors that a court should consider in
determining whether a public record of an investigation is trustworthy:
1. the timeliness of the investigation
2. the 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;
and
4. whether the motivation of the public agency is suspect – for example – whether
the report was made in anticipation of litigation by a public agency that has a stake
in the litigation.

Conclusions, inferences, and opinions are admissible when contained in the report
of a public investigation. But if a report repeats the statement of a third party, the
third party statement is hearsay within hearsay; it must satisfy another hearsay
exception.

Examples of Factual Findings:

Administrative findings

Routine vs. Nonadversarial

Parking ticket?
● Past recollection recorded?
● Present sense impression?
● Business record?
● Public record?

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o Some courts will be willing to listen to an argument that this type of
evidence is objective, non-adversarial, routine, administerial, etc and
should come in

A few Miscellaneous 803 Exceptions:

Can bring in absence of a record to prove that something does not exist.

Rule 803(7) and 803(10): Absence of Business Records or Public Records

No hearsay exception is necessary to admit the absence of a business or public
record, because silence usually does not constitute a statement.

Example: The observation that the household did not all 911 is a fact that a litigant
could introduce as some evidence that the household encountered no emergency
that evening, but it is not an assertion about anything.

Rule 803(7) Absence of a Record of a Regularly Conducted Activity. Evidence

that a matter is not included in a record described if:
(A) the evidence is admitted to prove that the mater did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information
or other circumstances indicate a lack of trustworthiness

Rule 803(10) Absence of a Public Record. Testimony—or a certification under

Rule 902—that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a
record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification
provides written notice of that intent at least 14 days before trial, and the defendant
does not object in writing within 7 days of receiving the notice—unless the court
sets a different time for the notice or the objection.

First, the party may call a witness to testify that a diligent search was made and no
record was found.
Second, the party may present a certified document from the agency, pursuant to
Rule 902, attesting that a diligent search failed to yield the particular document.

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The prosecutor must provide notice to the dfnt before offering certification of an
absent record. This gives the dfnt an opportunity to demand that the official who
prepared the certificate testify in person.

Rule 803(16): Statements in Ancient Documents

A statement in a document that was prepared before Jan 1, 1998, and whose
authenticity is established.

First: Document must have been created before Jan 1, 1998.

Second: The party offering the document must establish its authenticity.

Rule 803(17): Market Reports and Similar Commercial Publications

Market quotations, lists, directories, or other compilations that are generally relied
on by the public or by persons in particular occupations.

First: The document must be of market quotations, lists, directories, or other

compilations
Second: Must show that it is generally relied on by the public or by persons in
particular occupations

803(18): Statements in Learned Treatises, Periodicals, or Pamphlets

A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-
examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission
or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an
exhibit.

First: A party cannot simply introduce the treatise itself, a learned treatise is always
connected to an expert witness in the courtroom.

Second: The treatise may be read into evidence but not received as an exhibit

Third: The proponent of a learned treatise must establish that the treatise is a
reliable authority.
a. the expert witness relying upon his knowledge may confirm that the
treatise is a reliable authority in the field
b. another expert witness may establish that fact
c. the judge may take judicial notice
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NEW Rule 803(16): Statements in Ancient Documents

● A statement in a document
● That was prepared before Jan 1, 1998
● And whose authenticity is established

Market Reports and Similar Commercial Publications

● Stock Market Report
● Data compilation

Greatest Hits of Hearsay: 803

1. Present Sense Impression
2. Excited Utterance
3. State of Mind
4. Medical Diagnosis or Treatment
5. Past Recollection Recorded
6. Business Records
7. Public Records
Does not require unavailability

Greatest Hits of Hearsay: 804(applies only if the declarant is unavailable)

Require Unavailability
Must show unavailability of declarant—their testimony is unavailable
804(b)(1) Former Testimony
2. Dying declaration
a. you have to believe that you are dying
b. statement must concern circumstances/cause of the death
c. must be unavailable, but the person does not have to have actually died
d. in a prosecution for homicide case or in a civil case
3. Statement against interest
4. Statement of family history
5. Forfeiture by wrongdoing

Rule 804: Criteria for being unavailable

(a) CRITERIA FOR BEING UNAVAILABLE. A declarant is considered to be
unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s
statement 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;
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(4) cannot be present or testify at the trial or hearing because of death or a then-
existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent
the declarant from attending or testifying.

1. Privilege:
Witness is declared unavailable when they invoke a privilege.

To show unavailability, a party usually must call the declarant to the stand and
question her.

If the declarant asserts a privilege and the judge agrees that the privilege applies,
then the declarant is unavailable.

2. Refusal to Testify:
Witnesses who refuse to testify despite a court order are unavailable for the
purposes of that rule.

3. Lack of Memory:
Witness must testify that he has absolutely no recollection of the subject matter.
Lack of memory of the details is not sufficient to show unavailability.

4. Death, Physical Illness, Mental Illness:

◊ The declarant is unavailable if dead or physically or mentally ill that she
cannot testify at the proceeding and there is little likelihood of recovery
within a reasonable time.
◊ If mentally unable to testify, the proponent must introduce documentary
evidence or live testimony to show the declarant’s condition.

5. Absence
If a party shows that she tried to find the declarant and bring him to the hearing,
but was unavailable to do so.

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The proponent must use reasonable means to take the declarant’s deposition if the
declarant will not attend the trial.

Whether the memory loss is real or feigned, the witness is unavailable to testify
about the desired subject matter.

Unavailability means:
1. due to asserting a privilege(attny-client, spousal privilege)
2. refusal to testify – plead the 5th
3. lack of memory(real or feigned)
4. Death or Illness
5. Absence

Is the unavailability the fault of the proponent?

1. Cannot use wrongdoing to procure unavailability
2. Must make good faith efforts to get this witness’s testimony
3. may have to take witness’s deposition

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 at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
(B) is 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.

In civil cases, the courts have been willing to admit prior testimony as long as a
party in the prior proceeding had a motive to develop the declarant’s testimony that
is similar to the motives of the current opposing party.

Driver hits 2 pedestrians, Polly and Anne. Polly sues driver. Driver has mechanic
Mike testify that the brakes were not good. Case went to trial. Anne goes to sue
Driver. Even after diligent search, driver cannot find Mike. Driver can use the
testimony of Mike because the two pedestrians are predecessor in interest in
respect to Mike’s testimony.

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A party’s motive to cross-examine witnesses during a pretrial hearing may differ
significantly from its motives at trial.

In criminal cases, attorneys have a plausible argument that their motives during a
pretrial hearing are not sufficiently similar to those at trial.

Many courts point to four factors when determining whether an opposing party had
a similar motive to develop a witness’s testimony in the prior proceeding:
1. the type of proceeding in which the testimony was given
2. trial strategy
3. the potential penalties or financial stakes, and
4. the number of issues and parties

Against the Same Party in Criminal Cases

◊ The rule supports admission of prior testimony only if the opposing party’s
own counsel had an opportunity to cross-examine the witness at the prior
proceeding.
◊ No predecessors in interest or other substitute cross-examiners in criminal
cases
◊ The opposing party must have appeared in the prior proceeding and had an
opportunity to develop the witness’s testimony
◊ Because dfnts have a right to confront witnesses against him and cannot be
forced to rely on someone else’s cross-ex, in fairness, the prosecution gets a
chance to cross-examine.
Courts have not interpreted the rule to its common law meaning of privity. Instead,
the court looks to the similarity of issues between the prior case and the current
case and the purpose for which the prior testimony was given.

Prior Inconsistent Former Testimony

Statements by Witness 804(b)(1)
801(d)(1)(a)
Declarant Must testify at current Must be unavailable
hearing or trial

Must be subject to cross

examination concerning
the statement
Content of Statement Inconsistent with current Any content
testimony
Context of Prior Must have been given Must have been given as
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Statement under penalty of Perjury a witness, which implies
that it was under penalty
Made at any prior trial, of perjury
hearing, other
proceeding, or deposition Made during a trial,
hearing, or deposition at
which the current
opponent(or, in a civil
case, a predecessor in
interest) had an
opportunity and similar
motive to develop the
testimony

If the stakes in the previous proceeding were different than in the current one, the
opposing party might not have cross-examined the witness in the same manner that
the party would employ at the current hearing.

Former Testimony Exception: 804(b)(1)

Rationale:
1. Was given as a witness at a trial/hearing/deposition
2. is now offered against a party who had, in a civil case, whose predecessor in
interest

Declarant must be unavailable

1. Was a prior statement given at a trial/hearing/deposition
2. The opponent had an opportunity to develop testimony/they had an
OPPORTUNITY to cross-examination
3. The opponent had a similar motive to develop testimony

Exam Tip:
Ask whether civil or Criminal Case

In Homicide Cases:

Statement Against Interest – 804(b)(3)

Declarant has to be unavailable:

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(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the
person believed it to be true be- cause, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone
else or to expose the declarant to civil or criminal liability; and
(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.

First: declarant must be unavailable

Second: the statement must be against the party’s interest when made
Third: contrary to her proprietary or pecuniary interest, render invalid a claim she
has against another person, or expose the declarant to civil or criminal liability
Fourth: the trial judge will ask whether a reasonable person in the declarant’s
position would have falsely made the incriminating statement.
Fifth: Any statement that exposes the declarant to criminal liability is admissible in
a criminal case only when corroborating circumstances clearly indicate the
statement’s trustworthiness.
◊ A statement that:
◊ A reasonable person in the declarant’s position would have made only if the
person would have believed it to be true because, when made,
◊ It was so contrary to the declarant’s proprietary or pecuniary interest or
◊ Had so great a tendency to invalidate the declarant’s claim against someone
else or
◊ To expose the declarant to civil or criminal liability
◊ Is supported by corroborating circumstances that clearly indicate its
trustworthiness if it is offered in a criminal case as one that tens to expose
the declarant to criminal liability

Statement admitting guilt and implicating another made while in custody, may well
be motivated by a desire to curry favor with the authorities and hence fail to
qualify as against interest.

When a declarant admits guilt in a way that minimizes his role and blames others,
it often is possible for the court to redact the latter statements.
Statement against interest
1. declarant is unavailable
2. statement was against interest
3. at the time it was made
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4. corroboration for statements against penal interest when offered in criminal case.

Against Interest:
ONLY three types of Interests
1. Pecuniary or proprietary interest
a. financial interest, or
b. property interests
2. civil or criminal liability
a. tort or contract interests
b. penal interest/statements that exposes declarant to criminal liability-
requires corroboration

3. render invalid a crime

AND
No reasonable person would have made the statement if it were not true

What about statements that reference a third party?

Hypo: Snitch
Little fish is arrested for stealing.
Little Fish cuts a deal.
Little Fish secretly tapes talks with medium fish(bigger criminal).
Medium Fish describes crimes committed with Big Fish.

Exculpatory Statements in Criminal Trials

“The dfnt didn’t steal the money, I did.”

Deciding on Corroboration:
◊ Judge decides whether corroboration suffices
◊ Wide Range of factors
o Is declarant trustworthy?
o Is statement true?
◊ Reluctant to admit these statements

Suicide notes are not DYING declarations.

◊ No corroboration
◊ Not reliable enough

What about blame-shifting statements?

Blame shifting statements made by an accomplice…
◊ Six members of the U.S. Supreme Court decided that
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◊ 804(b)(c) applies only to
◊ Declarations that are individually self-incriminatory
◊ Whether a statement is self-inculpatory or not can only be determined by
viewing it in context.

Rule 804(b)(6)
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability. A statement offered against a party that wrongfully caused—or
acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and
did so intending that result.

The exception admits out-of-court statements offered against a party who engaged
or acquiesced in wrongdoing that intentionally caused a witness’s unavailability.

If a party uses physical threats or other wrongful behavior to prevent a witness

from testifying, the witness’s hearsay statements will come in.
Statement Offered Against a Party that wrongfully caused the Declarant’s
Unavailability
◊ A statement offered against a party that wrongfully caused—or acquiesced
in wrongfully causing—the declarant’s unavailability as a witness, and did
so intending that result.
◊ Persuasion is fine
◊ Crying and pleading to not testify against you is NOT wrongful.

1. Declarant must be unavailable

2. Other party engaged or acquiesced in wrongdoing
3. Intended to cause unavailability
4. wrongfully caused unavailability

How to make a witness unavailable through wrongdoing?

1. threaten
2. intimidate
3. bribe
4. kill

The rule does not require a proponent to show that the opposing party personally
committed the wrongful act or even caused another to commit those acts. The
proponent only needs to show that the opposing party acquiesced in the improper
behavior.
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If the opposing party is a member of a conspiracy, the opposing party need not
know about the wrongful act, so long as the court determines that the wrongful act
was part of the conspiracy. Conspiracy liability is sufficient to constitute
acquiescence.

The proponent must prove that the opposing party acted with the intent of making
a potential witness unavailable. A husband who kills his wife for insurance
proceeds did not have the intent to prevent her testimony, this rule would not
apply.

A defense attorney can discourage a declarant from testifying by informing the

alleged victim that she has a right to invoke the spousal privilege if she does not
want to testify against her husband.

A prosecutor can deter a defense witness from testifying by threatening to use the
testimony against him in future criminal prosecution.

A large corporate dfnt can transfer an employee with damaging knowledge to an

overseas office, so that a Pltf with limited resources would be unable to track her
down and bring her to testify.

Tricky Spots:
1. persuasion and begging aren’t wrongdoing
2. opposing party must specifically intent to make declarant unavailable
3. courts construe acquiescence broadly

Rule 804(b)(2): Dying Declaration

(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 declarant’s death
to be imminent, made about its cause or circumstances.

Rationale: Judges assumed a person would not go to meet their maker with a lie on
their lips; dying person has little incentive to lie, because they cannot gain anything
from that deception; there is an appeal from words identifying the person’s killer.
Flaws: Perception, memory, and clarity may be less reliable during the moments
before death than at other times.
Requirements: Dying declarations are ONLY permitted in:
1. Declarant must be unavailable to testify( the declarant does not actually have to
die)
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2. Can only be used in civil cases and homicide prosecution
3. Only admissible if the statement concerns the cause or circumstances of the
death
4. the declarant must believe that the death is imminent(the declarant must
sincerely and subjectively believe death is near)

Dying Declaration and Other Exceptions:

Many dying declarations are also admissible under other hearsay exceptions, such
as excited utterance, state of mind, statements to obtain medical treatment, and
forfeiture.
Statement of Personal or Family History
804(b)(4)
◊ Declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood, adoption, or marriage, or similar facts of personal or
family history
◊ Another person concerning any

Elements
◊ Unavailability

Who makes the statement?

1. declarant’s own statement
2. close family or relative
3.

Rule 807: “Near-Miss” Rule

(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 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(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, the
proponent gives an adverse party reasonable notice of the intent to offer the
statement and its particulars, including the declarant’s name and address, so that
the party has a fair opportunity to meet it.
1. Statement must not be covered by hearsay exceptions in Rule 803 or 804
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2. Must have circumstantial guarantees of trustworthiness
3. Must offer evidence of a material fact
4. The statement must be more probative of the information it conveys than any
other evidence that the proponent can obtain through reasonable efforts.
5. Proponent must inform opposing counsel of her intent to use the statement, the
details of the statement, and the name and address of the declarant.

FRE 807:
Catchall or Residual exception:
Some evidence may be reliable even though it doesn’t fit neatly into an exception.
Under the following circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not

Old Rule:
The statement has equivalent circumstantial guarantees of trustworthiness
2. it is offered as evidence of a material fact
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

NEW Rule:
The statement is supported by sufficient guarantees of trustworthiness—after
considering the totality of circumstances under which it was made and evidence, if
any, corroborating the statement

Elements of 907 Catchall:

1. must not be admissible under exception in 803 or 804
2. sufficient guarantees of trustworthiness
3. more probative than any other evidence
So, usually the declarant is unavailable, otherwise, her in trial testimony
would be more probative
4. Notice requirement

Near-Miss Argument(minority view)

Cannot use the Catchall Exception, if th evidence is a near-miss

The majority view:

Go ahead and use the catchall

Even if the evidence is a near miss

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Ways not to be hearsay:

1. Doesn’t fit 801’s definition
a. not a statement
b. not made out of court
c. not offered for the truth of the matter asserted
2. exempt from hearsay
a. witness’s prior statements by a witness
b. admissions
3. the Exceptions:

Statement of a Party Opponent

◊ Any statement
◊ Of a party
◊ Offered by an opponent
◊ Is nonhearsay

Examples:
“a civil dfn offers deposition testimony of the pltf.” Exempt
“ a prosecutor offers the testimony of the dfnt.” Exempt
“a civil pltf offers a diary entry written by the dfnt.” Exempt
“ the prosecutor calls the dfnt’s gf to testify about what the dfnt told her about the
crime.” Exempt
“ a civil pltf offers emails sent by the CEO of the dfnt corporation.”
“a civil dfnt plays a video of the Pltf makin statements to a news reporter after the
incident.” Exempt
“prosecutor offers letters written by the dfnt to his family members while the dfnt
was in jail.” Exempt
◊ Statement can be an opinion
◊ Does not have to be against interest.
◊ Person making the statement does not have to have personal knowledge.

Declarant does not need personal knowledge.

Rationale:
◊ Adversarial process
◊ You said it, so explain it
◊ There is also no requirement that the party that said the statement be there.

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◊ You said it, you are responsible for the statement
◊ Cannot object that your own statement is unreliable

Declaration Against Interest or Statement of Opposing Party?

Three main distinctions:
1. Does the Statement have to be Against Interest?
a. statement of opposing party need not be against interest when it was made
2. statement against interest
a. must be against interest when made
3. Is unavailability required?
a. for statement against interest(804) requires unavailability
b. statement of opposing party does not require the party to be available
4. which kind has to be offered by a Party against Opposing Party
a. Admissions
b. are admissible only when offered by an opposing party against the other
party

5 Categories of Opposing Party’s Statements – Exempt from Hearsay

1. Party’s own statements
2. Adoptive statements ( a statement the party has adopted)(someone else’s
statement that a party has adopted)
a. implied statements
b. tacit statement
c. admissions by silence
d. you can adopt a statement by signing a document that someone else
prepared
e. gestures communicate an adoptive statement
3. authorized statement on the subject
a. party must have authorized the person to speak on the subject
4. statement by agent or employee (concerning matter within scope of
employment)
a. party authorized to speak
5. statement by co-conspirator (made during or in furtherance of a co-conspiracy)

Opposing Party – two limits

1. Declarant must be a party(not the victim, the victim is not a party in a criminal
case)
2. statement must be offered against the party/declarant

Adoptive Admissions
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◊ Does every statement
◊ Made in the dfnt’s presence
◊ Qualify as an adoptive admission

Preliminary Fact Questions

◊ D must have actually heard and understood the statement
◊ D would have denied it if not true
◊ D was not under arrest

Post arrest silence:

◊ What if dfnt has received miranda warning
◊ Then prosecutor cannot use D’s silence against him during trial

Authorized Statements
◊ When is one person authorized to act for another
◊ Lawyer negotiating a contract for her client
◊ Broker selling property
◊ Corporate officer signing agreements for the company

5 Categories FRE 801(d)(2)

(2) An Opposing Party’s 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) was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy.

The party cannot introduce evidence of their own statements under this rule—they
can only offer evidence of an opponent’s statements.

There is no requirement that the party had personal knowledge of the matter when
speaking.

Signing a document equates to adopting its contents.

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An individual’s silence can constitute an adoptive admission, being that a
reasonable person would speak up rather than remain silent.

Independent contractors who perform discrete services for an employer without the
same degree of supervision as an in-house employee, sometimes qualify as agents
of the employer under the hearsay rules. Statements by these agents are admissible
against the person or company employing them as long as those statements are
within the scope of their agency relationship.

1. Party’s own statement

2. adoptive statement (a statement the party has adopted)
3. Authorized Statements ( statement by person authorized by party to make
statements on the subject)
4. statement by Agent or employee (concerning matter within scope of
employment)
a. while they were in an employee/agent
b. was made by the party’s agent or employee on a matter within the scope
of that relationship and while the relationship existed.
5. statements by a co-conspirator(made during a conspiracy and in furtherance of a
conspiracy).
Elements:
1) declarant and dfnt conspired,
2) the statement was made during a conspiracy, and
3) the statement is in furtherance of the venture

Statements that are not in furtherance:

◊ Then likely idle chatter and is not coming in
◊ At that point, not relevant
◊ A late joining co-conspirator takes the conspiracy as he finds it!
◊ Statements by other co-conspirators made before D joined
◊ Are admissible against him

Cover up statements are not in furtherance of a conspiracy.

When someone is arrested, then conspiracy is over.

Keep it going statements are in furtherance.

Opposing Party Statement and the problem with multiple parties

Two or more parties on the same side

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◊ Some courts allow one dfnt to introduce out-of-court statements made by
another party o the same side of the litigation
◊ Only allows the statement to be used against party who made the statement.
Courts will use a limiting instruction to redact the out-of-court statement or
to exclude the statement under 403.

801(d)(2) allows admission of statement against a party.

A party may not introduce her own statement

Confrontation Clause and Hearsay pg 758-762

The Sixth Amendment of the Constitution gives criminal dfnts a right to confront
witnesses against them.

1. The prosecutor may introduce nontestimonial hearsay as long as those

statements comply with the hearsay rules.

2. The prosecution may introduce testimonial testimony if the statements comply

with hearsay rules, and the declarant is available as a witness, to give the dfnt a
chance to cross-examine the declarant about the prior testimonial statement.

3. if the hearsay statement is testimonial and the declarant is unavailable at trial,

the prosecutor may offer the statement only if the declarant had a prior opportunity
to cross-examine the declarant.

Questions to consider:
1. Is the proferred statement testimonial?
2. Is the declarant available for cross-examination
3. If the statement is testimonial and the declarant is not currently available for
cross-examination, can the prosecutor establish both that the declarant is
unavailable and that the dfnt had a prior opportunity to cross-examine that
declarant?

Testimonial vs Nontestimonial:
Confrontation Clause does not apply to civil cases or evidence offered by the
accused against the Government
Testimonial:
◊ Statements that resemble a witness’s in-court testimony.
◊ Is a solemn declaration or affirmation made for the purpose of establishing
or proving some fact.

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◊ Sworn statements that occur before grand juries, at pretrial hearings, during
trial, and at post-trial proceedings are testimonial
◊ Statements made in response to interrogations by law enforcement officers
fall within testimonial statements
◊ A conspirator’s stationhouse confession does not further any conspiracy, it
would be considered testimonial.
◊ Store’s documents used for shoplifting offenses to report crimes and aid
prosecution, FRE already excludes this type of business record because these
documents are created for litigation and are deemed to lack trustworthiness.
◊ Testimonial statements may occur at a crime scene, shortly after a crime
occurs, a crime victim does not need to visit a police station for the
statement to be testimonial(describing past events).
◊ Laboratory certificates are testimonial statements requiring cross-
examination.
◊ Blood Alcohol Report is testimonial(an analyst who did not sign the
certificate or personally perform or observe the performance of the reported
test could not satisfy the dfnt’s confrontation rights.
◊ Evidence is testimonial when it has the primary purpose of accusing a
targeted individual of engaging in criminal conduct(the DNA analyst did not
generate the rape swab with a target individual). If the DNA swab was
notarized without a specific accused individual, then it would be testimonial,
because a highly formalized report prepared under circumstances which
would lead an objective witness reasonably to believe that it would be
available for use at a later trial is testimonial, even if it does not accuse a
targeted individual.

Nontestimonial:
◊ Business Records(created for the administration of business, not created to
prove some fact at trial)
◊ Statements made in furtherance of a conspiracy are nontestimonial, because
they are made to advance criminal endeavor, not made to be used at trial.The
Sixth Amendment allows introduction of coconspirator statements against
all members of the conspiracy, even if the speaker is not available for cross-
examination. However, a conspirator’s stationhouse confession does not
further any conspiracy, it would be considered testimonial.
◊ A dfnt’s own statements are not testimonial.
◊ If a statement is not offered for its truth, then it does not testify to anything
and the dfnt has no constitutional right to cross-examine the declarant.

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◊ If a person’s interaction with the police is to enable police assistance to meet
an ongoing emergency, then the statement is nontestimonial(describing the
events as they happen, facing an ongoing emergency, threat was ongoing).

Dying Declaration & the Sixth Amendment

◊ The Supreme Court has suggested in dicta that dying declaration is exempt
from the Sixth Amendment.

If a co-dfnt cannot cross the other co-defendant because that co-dfnt did not take
the stand, then the first co-dfnt’s Sixth Amendment right to confront their accusers
is violated.

When the government tries co-dfnts jointy and the dfnt who made the out-of-court
statement fails to take the stand at trial:
1. one dfnt who explicitly names the other is a violation of the Sixth Amendment
right to Confrontation
2. A statement that simply replaces the co-dfnt’s name with blanks or other
obvious marks of deletion also violates Bruton.

801(d)(2(e)
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy.
Allows a litigant to introduce statement of one coconspirator against any other
member of the conspiracy, as long as the statement was made during the course of
the conspiracy and to further the joint enterprise.

A conspiracy:
The declarant and the party against whom the statement is offered were members
of a common venture. The declarant and defendant must have agreed to use their
joint efforts in some way to reach a common goal.

A conspirator who speaks in furtherance of a conspiracy communicates on behalf

of all members of the enterprise, just as an agent speaks on behalf of her principal.

Courts have held that an arrest ends a conspiracy. Post-arrest statements usually are
inadmissible against coconspirators.

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Coconspirators are accountable for statements made by any member of the
conspiracy, one coconspirator cannot claim that another coconspirator’s statement
is unreliable.

1. The statement must be made by a coconspirator—most cases of criminal activity

involving more than one individual
2. statement must be in furtherance of the conspiracy
3. Statement must occur during the conspiracy—not before and not after

FRE 806: Attacking and Supporting the Declarant’s Credibility

When a hearsay statement—or a statement described in Rule 801(d)(2)(C), (D), or
(E)—has been admitted in evidence, the declarant’s 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
declarant’s 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.

Can impeach a hearsay declarant!

When a hearsay statement has been admitted into evidence, the declarant’s
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 declarant’s inconsistent statement or conduct, regardless
of when it occurred or whether the declarant had an opportunity to ex- plain or
deny it. If the party against whom the statement was ad- mitted calls the declarant
as a witness, the party may examine the declarant on the statement as if on cross-
examination.

Hearsay and the Confrontation Clause:

A criminal dfnt has the right to cross-examine any person who makes a testimonial
statement against him.
Criminal defendants have the right to confront witnesses against them. Only
applies to CRIMINAL cases. A right founded under the Sixth Amendment.
Criminal = applies only to criminal cases
Accused = protects accused and not prosecutor
Confronted= ability to cross-examine
Witnesses = people who give testimonial evidence

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1. The prosecutor may introduce nontestimonial hearsay as long as the statements
comply with a hearsay exception.

2. The prosecutor may introduce testimonial hearsay if the statements comply with
the hearsay rules, and the declarant is available as a witness. The dfnt has a chance
to cross-examine the declarant about the prior testimony.

3. If the hearsay statement is testimonial and the declarant is unavailable at trial,

the prosecutor may offer the statement only if the dfnt had a prior opportunity to
cross-examine the declarant.

Even if hearsay fits an exception, a criminal dfnt has one last argument to keep it
out:
Object on confrontation clause grounds

What should a judge do balancing hHearsay vs Confrontation Clause:

◊ “Witness Against”
◊ Maybe all hearsay declarants whose statements are offered

◊ Are witnesses against

◊ So, D has right to confront and cross-examine them

◊ Should always let it in if it fits an exception

◊ Ohio v. Roberts

The NEW rule for confrontation clause

◊ Overruled Ohio v. Roberts
◊ Supreme Court bans uncross-examined testimonial statements by
unavailable declarants(dfnt did not have a right to cross-examine the
unavailable declarant)

What is testimonial?
◊ Formal proceeding/solemnity
◊ Government involvement
◊ Statement made to prove a fact related to a crime

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◊ Statement that declarant reasonably would expect to be used
prosecutorially
◊ Statements to police during interrogation are testimonial

Some hearsay exceptions that are NOT testimonial:

◊ Dfnt’s Own Statements
◊ Dying Declarations
◊ Forfeiture
◊ Business Records
◊ Statements that are not offered for their truth

Crawford Test:
In a criminal trial
Testimonial hearsay is barred by the 6th Amendment
Unless both:
1. Declarant is unavailable
AND
2. Dfnt had a prior opportunity to cross-ex the declarant

Sixth Amendment and Hearsay Five Principles:

1. All evidence must satisfy the FRE.
2. Sixth Amendment applies only to evidence offered against the accused.
3. if the statement is non-testimonial, it satisfies the Sixth Amendment
4. If a statement is testimonial, the accused must have a chance to cross-examine
the declarant
5. If the accused can’t examine at trial, then the prosecutor must establish
a. unavailability and
b. prior opportunity to examine

If ongoing testimony on a 911 call 🡪 not testimonial

If there is no ongoing emergency and police continue to interrogate to establish
past events for prosecution 🡪 then it is testimonial

Sixth Amendment Key Issues:

1. what statements are testimonial?
2. What is unavailability

Lap Report Hypo:

◊ Prosecution for sale of cocaine
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Judicial Notice – FRE 201

Rule 201. Judicial Notice of Adjudicative Facts
(a) SCOPE. This rule governs judicial notice of an adjudicative fact only, not a
legislative fact.
(b) KINDS OF FACTS THAT MAY BE JUDICIALLY NOTICED. The court
may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(c) TAKING NOTICE. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the
court is supplied with the necessary information.
(d) TIMING. The court may take judicial notice at any stage of
the proceeding.
(e) OPPORTUNITY TO BE HEARD. On timely request, a party is entitled to be
heard on the propriety of taking judicial notice and the nature of the fact to be
noticed. If the court takes judicial notice before notifying a party, the party, on
request, is still entitled to be heard.
(f) INSTRUCTING THE JURY. In a civil case, the court must instruct the jury to
accept the noticed fact as conclusive. In a criminal case, the court must instruct the
jury that it may or may not accept the noticed fact as conclusive.

When a party offers a source to show that it is easily verifiable, the source does not
have to be admissible. Parties can rely on books, public records, business records,
and other types of hearsay without showing that the source fits into an exception.

Judicial Notice on Appeal:

Judicial notice can be taken at any stage of the proceeding, even while the case is
on appeal.

Judicial Notice and Stipulations:

If both parties agree on a fact, the parties can make a stipulation that the fact is
true. Just must accept stipulated facts as true in a civil case and not required to do
so in a criminal case.

◊ Lay Witness Testimony

o Eyewitness Accuracy Issues
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◊ Daubert and Scientific Evidence

Judicial Notice
◊ Time-saver
◊ Save your neck rule

FRE 201(b)
Kinds of facts that may be judicially noticed
The court may judicially notice a fact that is not subject to reasonable dispute
because it…
1) generally known within the trial court’s territorial jurisdiction(e.g. “Mission
Street in San Francisco is in a business district”)
Or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned – Facts capable of accurate and ready determination (e.g.
“Jan 4th 1999 was a Sunday”)
(e.g. “Freezing point of water is 32 degrees Fahrenheit”).

Who asks for judicial notice?

◊ Any party can ask for it
◊ At any stage
◊ Also, the judge herself can take judicial notice, suspante

Effect of Judicial Notice

In a civil case – the judicial notice is binding
Judge instructs the jury that the judicial notice is binding

Criminal case – not binding

Judge instructs the jury that it may take the fact as conclusive but not required to.

Is FDIC status of X Bank a proper subject for judicial notice?

Yes, it can be accurately and readily determined

Even appellate judges can take judicial notice.

You have to give the judge something to work with when requesting judicial
notice.

If the prosecutor supplies the bank’s listing on the FDIC website, the judge under
201(c)…
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3. must take judicial notice if the judge agrees that the site’s accuracy cannot
reasonably be questioned.

If the judge takes judicial notice of FDIC status in this criminal case, the jury…
May find that the bank is FDIC insured

Judicial Notice on Appeal:

◊ Court can take judicial notice on appeal.
◊ But not of a fact necessary to support a criminal conviction

Lay Witness Testimony and Expert Opinion

Lay Witnesses:

Can a lay witness give his opinion?

Rule 701 – Opinions 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 the witness’s perception;
(b) helpful to clearly understanding the witness’s 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.

Judges are more likely to admit lay opinions that illuminate a key issue than ones
related to a more tangential matter.

Laying a Foundation: Before a lay witness gives an opinion based on particular

knowledge, he must lay a foundation establishing that he has the information
required to form the opinion.

Lay witnesses may include qualitative descriptions of distance, size, or brightness,

as well as the expressions on people’s faces.

Experts Giving Lay Opinions

Any witness with personal knowledge of an event to give a lay opinion related to
that event. Experts may give lay opinions just like any other witness.
Lay witness can give an opinion if
1. it is rationally based on her perceptions
2. it is helpful
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3. not based on scientific, technical, or specialized knowledge

Such as, “I smelled smoke.”

Emotion: “he seemed angry”
Speed: “car was going at least 75 MPH”
Intoxication: “ he was drunk”

Lay witness can testify to the smell.

“the driver had a real guilty look, like he was afraid he was going to lose his
license or get sued.”
Improper speculation
Improper Opinion testimony

It is okay for a lay witness to testify about apparent emotion “afraid”

“car was hit and it was worth $5,000

Need expert witness
Improper lay witness
Lay witness can describe physical damage

Eyewitnesses and Reliability

Eyewitness testimony is powerful!
Jurors believe eye witnesses

How does memory and perception work?

3 Steps of the process of memory:

1. Acquisition – you perceive an event and enter it in memory.
2. Retention – the time between perceiving the event, and your recalling of it
3. Retrieval – you recall information relating to the event

Factors that effect memory acquisition:

1. extreme stress
2. violence
3. length of time of the encounter
4. bias
If stress is too low 🡪 not good observer because you are not paying sufficient
attention
If stress is too high 🡪 you are not a good observer
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A moderate amount of stress is optimal for perception and concentration.
Weapon focus – a type of stress factor
When you are concerned for your personal safety 🡪 you tend to focus all of your
attention on whatever most directly affects your safety: the weapon
Result: incomplete and inability to pay attention

Bias or stereotypes
Cross-racial identification
People tend to be sloppier when identifying someone of a different race
Result: Higher rate of false positive identifications

Factors that affect Retention:

Time “Forgetting Curve” Memory declines over time. However, it does not decline
evenly!
After the initial fade, there is a greater likelihood of confabulation(filling in or
altering the memory)

External Information

Factors that affect accuracy:

Type of identification procedure;
Method of Questioning
Questioner’s nonverbal cues
Identification factors can be suggestive

Lineup – witness looks at line of people who resemble the witness’ description
Showup – witness is shown one person who may be the suspect
Photo Spread – witness looks at a group of photos of people who fit the description

Unconscious transfer:
Witness may remember seeing someone from an earlier photo spread or lineup and
mistake that feeling of recognition for a feeling of recognizing the right suspect(the
face will seem familiar to the witness).

The more confident the eyewitness is, the more likely the jury will believe him.

There is no correlation between confidence and accuracy.

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In fact, witnesses who are questioned repeatedly become more and more confident
in their story regardless of accuracy

Juries do not know about many of these problems? Bring in an expert in eye
witness identification

Expert testimony is admissible if it will help the trier of fact

Strategies to let Jurors know about reliability problems?

Offer expert testimony
Use cross-examination to attempt to impeach
Ask judge to add to jury instructions

Argument to exclude expert testimony on the unreliabliliy of eyewitness evidence

What subjects are appropriate for expert testimony?

Scientific Evidence and the Daubert Test:

Is handwriting analysis scientific?
Is evidence about astrology scientific?
Is lie detector evidence scientific? Courts do not like them.
How about evidence about a psychic?
Is fingerprint evidence scientific?

1. Must be peer reviewed

2. Generally accepted in the field – Frye test
3. Is it reliable? What is the error rate?

Judge is the gatekeeper—keeps out the “junk science”

◊ The expert must use reliable principles and methods.
◊ The expert must have reliably applied the theory in this case
◊ The expert must be qualified

702 requires scientific validity

Scientific and knowledge

Rule 702. Testimony by Expert Witnesses

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:

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(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.

Experts who possess practical skills, such as auto mechanics, plumbers, and
electricians, also develop their knowledge through apprenticeships, hands-on
training, and years on the job. These experiences suffice to qualify experts in many
fields.
Old Federal Test – Frye Test
Is it generally accepted in the scientific or technical field?

What’s good about that test? Pretty bright line

Problem with frye – brand new evidence will be excluded because not yet
generally accepted in the scientific or technical field

Daubert’s Five Factors:

1. Whether the theory or technique has been tested
2. Whether it has been subjected to peer review and publication
3. what is the rate of error?
4. the existence of standards controlling the technique’s application
5. whether the theory or technique has been generally accepted in the relevant
scientific community

These factors are not exclusive and judges should consider any factor illuminating
the reliability of expert testimony.

Frye v Daubert:
Frye Rule allows scientists and other experts to set the bounds of reliability within
their fields. Courts admitted expert testimony based on whether the expert’s
approach had gained “general acceptance” within the field.

Daubert Rule shifts the gatekeeping role to judges. The trial judge now decides
whether an expert’s approach is sufficiently reliable to present to the jury. In
making that decision, the judge relies upon a variety of factors that include, but are
not limited to general acceptance.

Daubert’s gatekeeping applies to ALL types of expert testimony.

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Rule 702: The Pathway through the Expert Evidence Gate

1. Is the evidence based on scientific, technical, or other specialized knowledge 🡪

are the principles and methods supporting the evidence reliable(prior testing of the
technique or theory, peer review and publication, error rate, controlling standards,
general acceptance) 🡪 has the technique been reliably applied 🡪 does the evidence
fit the facts of the case? Will it help the fact finder 🡪 Is the evidence excludable
under 4-3? Do unfair prejudice, confusion, or potential to mislead jury
substantially outweigh probative value? 🡪 proffered evidence that clears these
hurdles is an appropriate subject for expert testimony.

Expert Testimony:
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…

On direct: pedigree type leading questions are permissible

Does not need to have a special degree

The expert testimony must be helpful by assisting the trier of fact.

Personal knowledge is not required to be an expert.

Relevant Questions to Consider:

1. Is the evidence reliable, both in its underlying principles and its application to
the case?
2. Does the evidence fit the case and help the trier of fact?
3. Even if the evidence satisfies these requirements, does the danger of unfair
prejudice, confusion, or misleading the jury substantially outweigh the probative
value?

702: What kind of facts can the expert use in reaching an opinion?

Rule 703: Bases of Opinion Testimony by Experts

An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed in trial
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.
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Can an expert rely on facts not yet in evidence? Yes
Can an expert rely on hearsay? Yes

Rule 704: Opinion on the Ultimate Issue

Rule 704. Opinion on an Ultimate Issue
(a) IN GENERAL—NOT AUTOMATICALLY OBJECTIONABLE. An opin- ion
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

Courts restrain experts from testifying explicitly that the dfnt possessed a particular
mental state, but they allow experts to testify that circumstances were consistent
with that state.

Can an expert testify on the ultimate issue?

Yes, except no expert testimony on the mental state of a criminal dfnt.

704(b) Hinckley Amendment

In a criminal case, an expert witness must not state an opinion about whether the
dfnt did or did not have a mental state or condition that constitutes an element of
the crime charged or a defense. Those matters are for the trier of fact alone.

When can you use expert testimony?

When it can help the trier of fact.

Make sure you qualify the witness as an expert.

Lay a foundation to qualify the witness as an expert.

How do you bring out the expert’s opinion? Is there any particular order you must
follow? No, they can give their opinion and explain why

Applying Daubert and Expert Testimony

Patient v. Manufacturer of Knee Implant

Patient has a knee replacement.
Surgeon used implant manufactured by Zimmer company.
Patient has complications, has to have a different implant.

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Patient sues Zimmer for product liability, claims that sterilization process on the
implant caused the problems.

There are websites to find experts.

Daubert Standard for Reliability

◊ Can the theory be tested?
◊ Has it been subjected to peer review and publication?
◊ Is there a known error rate?
◊ Are there standards controlling technique’s operation?
◊ Has the theory been generally accepted?

He connected no tests of the Zimmer implant.

Nor did he do any studies of gamma irradiation and polyethylene generally.
He did not describe any studies done by others.

Court of appeals reversed, saying trial court shouldn’t have admitted the testimony.
Why? See Daubert test

Expert’s method is a theory that the principles of basic polymer science show that
gamma irradiation causes…

Qualifying Experts:
Rule 702: Testimony by Expert Witnesses
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 expert must be qualified before offering evidence about scientific, technical,
or other specialized knowledge.
2. The witness may establish her qualifications by pointing to a number of different
factors: her knowledge, skill, experience, training, or education

How to qualify an Expert:

1. The attorney who called the expert lays a foundation for the witness’s expertise
by asking questions about the witness’s credentials and qualifications. The attorney
may use leading questions to do so. After laying the foundation, the attorney can
move to certify the witness as an expert.
2. after an attorney finishes laying this foundation and moves for expert
certification, most judges allow opposing counsel to void dire the witness. The
opposing counsel has a chance to ask the witness questions in order to test his
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credentials. These questions allow opposing counsel to probe the witness’s
credentials in order to establish that the witness lacks sufficient qualifications to
testify as an expert. Voir dire gives opposing counsel an opportunity to make a
preemptive cross-examination of the witness’s credentials. Opposing counsel
shows the jury gaps in the witness’s expertise.
3. In the third stage, the judge rules on the motion to certify the witness.

Bases of Expert Opinion:

1. If the expert’s testimony requires knowledge of the trial testimony, then the
expert may remain in the courtroom even if the judge excludes other witnesses.
2. Experts are the only witnesses who can certify documents as learned treatises.
3. Experts can give more than just commonsense opinions, they may state
conclusions based on their special training or experience.
4. Experts, unlike lay witnesses, do not have to based their opinions exclusively on
personal observations. Experts may rely on a wide range of data, including
information such as hearsay evidence that is not admissible in court. The expert
may even reveal inadmissible evidence to the jury.

Rule 703: Bases of an Expert’s Opinion Testimony:

Rule 703. Bases of an Expert’s Opinion Testimony
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 ex- perts 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 out- weighs their prejudicial effect.
◊ An expert may based an opinion on facts or data in the case that the expert
has been made aware of or personally observed.
o The expert may learn these facts by reviewing data before trial or by
listening to other witnesses during the trial itself.
◊ If experts in the particular field would reasonably rely on those kind 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.

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o The default rule is that an expert may not disclose inadmissible
information to the jury
o The court may allow the expert to disclose the otherwise inadmissible
evidence if the probative value of that evidence would substantially
outweigh its prejudicial effect
The judge may independently assess the reasonableness of data informing an
expert opinion.

The expert must testify that other experts reasonably rely on the type of evidence
supporting her opinion, and the judge must agree that the reliance is reasonable.

Rule 705: Disclosing the Facts or Data Underlying an Expert’s Opinion

Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion
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.
◊ 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
o An expert may state a conclusion first, capturing and focusing the
jury’s attention.
o An expert can offer an opinion, even if the evidence supporting the
opinion is inadmissible.

Hypothetical Questions:
Experts are permitted to respond to hypothetical questions
Hypotheticals are subject to abuse, because sometimes attorneys insert facts into
the hypothetical that have not been proven. By linking an unproven fact with a
series of proven facts might mislead the jury into thinking that all of the assumed
facts have been proven. Hypotheticals may not assume facts that are not in
evidence. Additionally, some attorneys use a long hypothetical as an opportunity to
sum up the case.

Rule 706
Rule 706. Court-Appointed Expert Witnesses
(a) APPOINTMENT PROCESS. On a party’s motion or on its own, the court may
order the parties to show cause why expert wit- nesses should not be appointed and
may ask the parties to submit nominations. The court may appoint any expert that

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the parties agree on and any of its own choosing. But the court may only ap- point
someone who consents to act.
(b) EXPERT’S ROLE. The court must inform the expert of the expert’s duties. The
court may do so in writing and have a copy filed with the clerk or may do so orally
at a conference in which the parties have an opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes; (2) may be deposed
by any party;
(3) may be called to testify by the court or any party; and (4) may be cross-
examined by any party, including the party
that called the expert.
(c) COMPENSATION. The expert is entitled to a reasonable compensation, as set
by the court. The compensation is payable as follows:
(1) in a criminal case or in a civil case involving just compensation under the Fifth
Amendment, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the
court directs—and the compensation is then charged like other costs.
(d) DISCLOSING THE APPOINTMENT TO THE JURY. The court may
authorize disclosure to the jury that the court appointed the expert.
(e) PARTIES’ CHOICE OF THEIR OWN EXPERTS. This rule does not limit a
party in calling its own experts.

Attorney-Client Privilege:
The Sixth Amendment recognizes the right of criminal dfnts to “The Assistance of
Counsel”. Effective legal representation requires open and honest communication
between the lawyer and the client. The attorney can only represent the client if she
knows as many facts as possible about the case.

1. Professional obligation: Must keep the client’s information confidential, the

attorney is prohibited from disclosing to any person information that a client wants
to keep confidential.

2, Evidentiary privilege: Prevents an attorney from offering testimony or other

evidence about confidential client communications, covers only confidential
communication made to obtain legal services.

Who holds the privilege?

The client holds the privilege, because the privilege protects the client, not the
lawyer.
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Rule 503(Not Enacted): Lawyer-Client Privilege

(b) General Rule of Privilege
A client has a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of facilitating the
rendition of professional legal services to the client.
(c) The privilege may be claimed by the client … the person who was the lawyer at
the time of the communication may claim the privilege but only on behalf of the
client. His authority to do so is presumed in the absence of evidence to the
contrary.
(d) EXCEPTIONS: There is no privilege under this rule:
(1) Furtherance of crime or fraud:
If the services of the lawyer were sought or obtained to enable or aid anyone
to commit or plan to commit what the client knew or reasonably should have
known to be a crime or fraud
(3) Breach of duty by lawyer or client:
As to a communication relevant to an issue of breach of duty by the lawyer
to his client or by the client to his lawyer
(5) Joint Clients
As to communication relevant to a matter of common interest between two
or more clients if the communication was made by any of them to a lawyer
retained or consulted in common, when offered in an action between any of the
clients

When does the privilege apply?

The privilege prevents disclosure of privileged information in any context. The
privilege applies at trial, but it also applies to grand jury proceedings, pretrial
hearings, and every other stage of litigation.

Inadvertently disclosing confidential information:

If a client or attorney inadvertently discloses information covered by the privilege
during a federal proceeding, the disclosure does not waive the privilege if the
holder of the privilege does both
a) took reasonable steps to prevent disclosure and 2) took reasonable steps to
rectify the error

Intentionally disclosing confidential information:

If the attorney or client intentionally discloses some privileged information in a
federal proceeding, other privileged information remain protected unless a) they

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concern the same subject matter and b) the communications ought in fairness to be
considered together

Five factors:
1. Client or client’s representative
2. An attorney or her representative
3. A communication between those two parties
4. Confidentiality of the communication, and
5. A purpose of facilitating professional legal services to the client

Who is a client?
Any individual or entity who obtains legal services from a lawyer or consults about
obtaining those services. Government agencies, corporations, and nonprofit
organizations may all become clients.

Determining whether a corporate employee is a client:

UpJohn Factors:
1. employee speak about matters within the scope of her duties
2. treating the communication as confidential
3. other employees could not provide that information to counsel
4. Provided the information to counsel in order to help the company secure legal
advice
5. the managers knew the purpose for supplying the information

Control Group jurisdictions for determining when a corporate employee is a client:

Only corporate officers authorized to act on advice given by the company’s
attorney.

Who is an attorney?
A lawyer is any person who is authorized to practice law or who the client
reasonably believes is authorized to practice law.

What is a communication?
Communication may be written or oral. Communications also include assertive
acts like pointing a finger or nodding a head.

A client cannot hide information, documents, or objects by communicating them to

an attorney. If the client has possession of a preexisting letter or document that is
incriminating, the client cannot give the document to an attorney and claim that it

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is now privileged. Any writings which came into existence independent of the
attorney-client interactions are not privileged.

Attorneys have an affirmative duty as officers of the court to disclose any

contraband or physical evidence of a crime that comes to their possession.

When is communication confidential?

Communications lost their confidentiality if they occur in the presence of people
who fall outside of the privilege.

Purpose:
The purpose must be law related rather than business, accounting, politics, or
policy matters.

Crime-Fraud Exception:
No privilege when the client asks the attorney to carry out ongoing crimes or seeks
advice on how to commit future crimes. This exception applies if: (1) the client is
committing or intending to commit a fraud or crime and (2) the attorney-client
communications are in furtherance of that alleged crime or fraud.

Waiver: An attorney ay not waive the attorney-client privilege without the client’s
permission. Since the client holds the privilege, only the client may decide to
waive the privilege. Often, a client waives the privilege by sharing a significant
part of the confidential communication with a third party. An opponent may use
the communication in court.

In order to waive the privilege, the client must reveal the content of her
communications with a lawyer, not merely the same facts she told the lawyer.

Corporate Waiver:
The corporation as a entity decides whether to waive the privilege.
When a corporate attorney seeks information from employees, the attorney must
make clear that the employee will have no say over whether the corporation
releases the information to others.

Work-Product Privilege:
Protects all work that either the attorney or client does independently to prepare for
trial.

Limits on Work Product Protection:

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1. the privilege only protects documents or objects prepared in anticipation of
litigation.
2. when work product consists solely of facts about the dispute, the privilege is
qualified. An opposing party may obtain access to this type of work product by
demonstrating that he has a substantial need for the materials to prepare its case
and cannot, without undue hardship obtain their substantial equivalent by other
means.

However, when the work product consists of mental impressions, conclusions,

opinions, or legal theories of a party’s attorney or other representative concerning
the litigation, the privilege is nearly absolute.

Waiver of work product to a client:

Some courts have held that a client may demand disclosure of work product that
the attorney created on the client’s behalf.

The attorney-client privilege is absolute, rather than qualified. A party may not
overcome the privilege by proving a strong need for the protected information.

Old Common Law: If heard by evesdroppers, then no privilege

New Common Law: If reasonable steps were taken to keep conversation a secret,
then privilege applies.

The success of these relationships requires that the confidences exchanged not to
be betrayed, and society values the relationships highly enough to allow the
exclusion of the testimony.

Priest-Penitent Relationship
The rule of reason

Where are the privileges in the FRE? Not in there, the FREs do not list any
privileges

Rule 501: Privileges

Rule 501. Privilege in General
The common law—as interpreted by United States courts in the light of reason and
experience—governs a claim of privilege unless any of the following provides
otherwise:
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• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.

Federal Privileges:
1. Right against self-incrimination, guaranteed by the Fifth Amendment of the
Constitution
2. Attorney-client privilege
3. Spousal privilege—testimonial privilege and confidential communications
4. Psychotherapist-patient privilege
5. Executive privilege – advice given to high-level government decision makers
6. Clergy-communicant privilege – communications with members of the clergy
for the purpose of obtaining spiritual advice

NOT privileges:
1. Report’s privilege
2. physician-patient privilege

The common law – as interpreted by the U.S. courts in the light of reason and
experience – governs a claim of privilege unless any of the following provisions
provides otherwise;

But in a civil case, state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision

When a federal court applies the substantive law of a state, it must apply the state’s
privilege rules as well.

When might a federal court apply state substantive law?

Example: Personal injury diversity case (federal

When might a federal court apply federal substantive law?

Example: when a Federal court tries a federal antitrust case(then, the court must
apply general federal common law on privileges)

Major privileges:
1. Attorney-Client
2. Spouses
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a. spousal immunity or confidential marital communications
3. Psychotherapist-patient
NO doctor-patient privilege

Psychotherapist-Patient privilege:
Extended to licensed social workers administering psychotherapy

Hypo:
Psychologist notices a cut on murderer’s hand.
Called to testify to the cut.
Permissible – no communication

Hypo:
statements made in a group.
Member of the group testifies about the statement at the criminal trial.
Privileged – because group therapy needs a group

A patient tells her therapy that she plans to kill an enemy, and asks the therapist for
help with her anger.
Privileged?
“The Danger to Others” Exception - Menendez brothers case

Some states hold that where the therapist reasonably believes a patient may be
dangerous then that nullifies the privilege.

Spousal Privileges: 2 Types

1. Adverse Spousal Testimony/Spousal Immunity/Testimonial Privilege:
a. only applies in criminal cases
b. Owned by the witness spouse(federal cases)
c. gives complete protection from adverse testimony by spouse
d. only applies if parties are married at time of trial
e. witness spouse owns the privilege

◊ Arises only when a spouse is a criminal defendant or is a target of grand jury

proceedings.
◊ This privilege does not apply in civil proceedings.
◊ Applicable only during the life of the marriage.

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◊ Once the marriage ends, the gov can compel either spouse to testify against
the other at a criminal trial about what happened during the marriage.
◊ The gov cannot force one spouse to describe acts that the other engaged in
before the wedding.
◊ The testimonial privilege shields any information that one spouse might
offer against the other.
◊ The witness spouse controls this privilege.
◊ The privilege does not arise when one spouse commits a crime against
another spouse.
◊ Does not cover a crime against a child
◊ Does not apply when both spouses are engaged in criminal activity

2. Confidential Marital Communications

a. civil or criminal
b. “owned” by either spouse
c. only protects confidential communications made during marriage
d. privilege is eternal survives death or divorce

Rationale:
To protect the peace and harmony of an existing marriage.

A spouse may choose to testify against the Dfnt spouse, over the latter’s objection.
The testifying spouse owns the privilege

Confidential Marital Communications: This privilege protects against disclosure of

—
◊ Confidential communications
◊ Made by one spouse to another
◊ During the marriage
◊ Not non-Communicative Conduct
◊ Made in confidence(no outsiders)
◊ Made during the marriage(survives divorce/survives death)
◊ Applies in civil and criminal cases
◊ Either Spouse can invoke this privilege

EXCEPTIONS:
◊ Crime by one spouse against another spouse – no martial privilege
◊ Lawsuit by one spouse against other spouse – no marital privilege
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◊ Child custody battles – no marital privilege
Does the wife have to describe her husband’s actions at trial?
No, testimonial privilege applies

Can the wife answer if she wants to do so?

Yes, if she wants to because the witness owns the privilege

The marriage ends before trial: Can the wide assert the testimonial privilege and
refuse to testify?
NO! No longer married
Yes, either spouse may prevent waiver

Husband says incriminating statements to wife. They divorce. She is called to

testify on what he said.
She cannot testify, even if she wants to because confidential marital
communications

The Marital Communications Privilege:

◊ Protects communication between two spouses.
◊ Applies to all stages of all judicial proceedings—both civil and criminal
◊ Protection even after marriage ends
◊ Both spouses control the communication privilege
◊ Protects only communication that occur during the life of the marriage—
spouse can divulge confidences before the wedding
◊ Protects communication that one spouse makes to the other in confidence—
presence of a third party defeats the privilege
◊ Covers communication between the spouses—not conduct observed

Spousal Testimonial Marital Communications

Privilege Privilege
Does the privilege apply No, just in grand jury Yes
in civil proceedings? investigations or criminal
prosecutions of the
spouse
Does the privilege Yes No, just confidential
protect actions and communications
observations?
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Does the privilege apply yes No
to communications or
events that occurred
before the marriage?
Does the privilege No Yes
survive end of the
marriage?
Who may waive the Only the witness spouse; Both spouses must
privilege? the target spouse may not consent to waiver
prevent testimony
Are there exceptions? Yes, for intra-family Yes, for intra-family
crimes and jointly crimes and jointly
committed crimes committed crimes

Attorney-client privilege
◊ The client has the right to prevent disclosure
◊ Of confidential communications between attorney and client
◊ Relating to their professional relationship
◊ Attorney + client + confidential communication

Rationale:
Want clients to know what they disclose is confidential

Utilitarian Rationale
◊ The privilege encourages clients to confide in lawyers
◊ So lawyers can provide full advice (Bentham said this is crazy)

The Attorney-as-Honorable-Person Rationale

◊ Attorney should be a gentleman and not snitch on client

Elements of Attny-Client Privilege at Federal Common Law

◊ Attorney + client + confidential communication

Attorney:
Lawyer ( or someone client reasonably believes is lawyer) who renders
professional legal services.

Client:

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Seeks professional legal services
Money does not need to exchange hand

Confidential Communication:
No 3rd parties
(Unless person necessary to help communication. Interpreter, paralegal assisting
lawyer, etc.)

Attny-Client Privilege (Woodruff)

1. Holder is or sought to become a client
2. Person to whom communication was made
a. is member of the bar(or his subordinate) and
b. in connection with this communication, is acting as a lawyer
3. Communication relates to a fact of which attny was informed
a. by his client
b. without any strangers present
c. for purpose of securing either
i. an opinion on law or
ii. legal services or
iii. assistance in some legal proceeding, and
iv. not for the purpose of committing a crime or tort and
4. privilege has not been waived

EXCEPTIONS:
Crime/Fraud Exception:
No privilege if communication involves attorney assisting client in ongoing or
future crime or fraud

More Exceptions:
When client sues attorney or attorney sues client

Exceptions:
Joint Clients:
If joint clients are now suing each other, privilege may be inapplicable.

HYPOS:
On behalf of a client, the attorney interviews a witness who saw the accident. NOT
privileged/witness is not a client

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Later, the attny is called to testify then fine

Attorney talks to a client and witness at the same time. Is what the client says
protected?

What if the witness is the client’s mother?

If child – guardian might need to be there 🡪 privileged

If client brings interpreter 🡪 privileged

If client brings a friend 🡪 not privileged, not confidential

HYPO:
Client sends attorney her business records, along with a cover letter explaining
them. The letter is an attorney client privilege. Business records is not privileged.

HYPO:
You are the attorney. A friend calls you and says, “don’t tell anyone, but I’m
depressed and I want to kill myself.” Later, he does kill himself.

Corporate Clients:
Who holds the privilege when the client is a corporation? Uphohn v. U.S.A
The Supreme Court rejects the old “control group” test.
No specific new rule, gave factors

1. The communications made by the employees to the lawyers must be for the
purpose of getting legal advice.
2. The communications concerned matters within the scope of the employee’s
corporate duties, and
3. the employees were aware they were being questioned so the corporation could
get legal advice
4. instructions from chairman that communications were considered highly
confidential and were kept confidential.

FRE 502 Waiver

Governs waiver and attorney-client work product

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Two types of Waivers:
Intentional and accidental Disclosure

What can you do if accidental disclosure?

The privilege-holder may take back the information
IF, the privilege holder took reasonable steps to prevent disclosure
AND the privilege holder promptly took reasonable steps to rectify

When a waiver is intentional:

The party must disclose other communications or information concerning the same
subject
That ought to be considered in fairness – rule of completeness

HYPO: Pltf hires a document production company to help.

Company accidentially hands over to the Dfnt a large number of privileged
documents
When P discovers the mistake, they notify D immediately.

What result under FRE 502?

D has to destroy the documents because disclosure was purely a mechanical
mistake byy the document production company.

Attny/Client Privilege at federal common law:

Are you doing everything to be done to keep it confidential?

Modern Cases:
Take reasonable steps to keep conversation confidential, then unknown
eavesdroppers won’t cause the privilege to be waived.

Authentication: FRE 901

To satisfy the environment of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims it is.

Show that a thing is what you say it is. Must lay proper foundation.

A purported signature or recitation of authorship is not enough.

901(b)
1. Testimony of a witness with knowledge
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2. Nonexpert Opinion about handwriting
3. Comparison by an Expert Witness or the Trier of Fact
4.Distinctive Characteristics and the Like

Judge determines whether a reasonable jury could find the thing to be authentic,
not whether it is in fact authentic.

How can you authenticate a photograph?

1. the photographer can testify that he took the photo
2. one of the people in the photo can testify the photo accurately shows the events
3. someone that saw the photo being taken

“testimony of a witness with knowledge”

Can the photo be authenticated by someone who was not present when it was
taken?
-Yes, depends on what it is being offered to prove.

HYPO:
P offers a photo of the intersection where the accident occurred? Does the
photographer have to be there?
No, just need testimony by someone familiar with the location in the photo.
Must testify that the photo is a fair, accurate, and true depiction of the scene or
thing.

If there has been a change in condition, the witness must identify what was not
there.

Authenticating Social Media Post:

1. The tangible download, and
a. offer evidence to show that this record you give the Court accurately
reflects a statement that exists on the internet
b. have a witness testify that she was online at a particular time, that she
visited a specific website, and she downloaded the information

2. The content expressed in that download.

a. to show a printout accurately reflects a message that appeared in social
media
b. Distinctive characteristics and the Like
c. witness who saw him make the post
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How do you authenticate an online newspaper article?

902(6)

FRE 101(b)(6)
Writings can include electronically stored information
A reference

Trade descriptions are self-authenticating

Burden of Production
◊ The party with the burden of production must produce evidence
◊ The burden may shift during trial
◊ If evidence is so strong that, if unrebutted, the jury would have to fnd in your
favor
◊ Then the burden shifts to opposing party

Burden of Persuasion
◊ Burden to convince the trier of fac with regard to a particular issue
◊ The judge will instruct the jury that,
◊ If they can’t decide
◊ They must decide against the party with the burden of persuasion
◊ Burden of persuasion does not shift

Civil Case
◊ Must prove the case by the preponderance of the evidence
◊ More probable than not
◊ Preponderance of the evidence equals tipping the scales

Criminal Case
◊ Beyond a reasonable doubt

Clear and Convincing Evidence:

◊ Clear and convincing evidence
◊ For cases such as:
◊ Fraud
◊ Civil commitment;
◊ Termination of Parental Rights
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◊ Deportation and Denaturalization

Presumptions:
◊ Once you prove fact X,
◊ Then fact Y is presumed to be established
◊ Once you prove the foundational fact,
◊ Then the judge/jury is required to find the presumed fact

Example:
Mailing a letter presumption
◊ It’s a presumption—
◊ If you show you mailed a letter properly(right postage, dropped it in a U.S.
mailbox)
◊ Then we assumed the letter arrived

Paternity Presumption
A child born within wedlock is presumed to be the biological child of that husband.

Example:
◊ Person missing 7 years
◊ Presumed to be dead

What happens if there is counterproof?

What if you prove the foundational fact,
But then—
The other side offers counterproof of the presumed fact

Presumptions and the Bursting Bubble

FRE 301:
The Federal Rules follow the bursting bubble approach
Once the party with the initial burden of producing evidence raises a presumption,
Then the Burden of Production shifts to the other side

Presumptions and the Bursting Bubble

If the other side presents its own evidence, and satisfies the burden

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Article X: Best Evidence Rule
Rule 1001: Best Evidence Rule
(A) A “writing” consists of letters, words, numbers or their equivalent set down in
any form.
(B) A “recording” consists of letters, words, numbers, or their equivalent recorded
in any manner.
(C) A “photograph” means a photographic image or its equivalent stored in any
form
(D) An original of a writing or recording means
i. the writing or recording itself; or
ii. any counterpart intended to have the same effect by the person who
executed or issued it
iii. for electronically stored information, original means any printout or other
output readable by sight if it accurately reflects the information
iv. An original of a photograph includes the negative or a print from it
(E) A duplicate means a counterpart produced by a mechanical, photographic,
chemical, electronic, or other equivalent process or technique that accurately
reproduces the original.

For electronically stored information – a screenshot of the email stored on the

sender’s computer, a screenshot of the copy of the recipient’s computer, and
printouts of either version all may qualify as originals of the email.

The core of the best evidence rule is that if a party wants to prove the contents of a
document, then the party should produce the document itself.

If a proponent attempts to prove a fact that exists independently of any documents,

then the party does not have to use a document to prove that fact.

When the content of a writing is at issue 🡪 Best Evidence problem

In proving the terms of a writing…
Where such terms are material,
The original must be produced
Unless it is shown to be unavailable for some reason other than the serious fault of
the proponent

Rationale:

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First: The content of a writing, recording, or photograph is more detailed and
difficult to describe than most events or objects that witnesses relate in the
courtroom.

Second: Writings. Recordings, and photographs are easy to produce

Third: The rule reduces opportunities for fraud or distortion.

Rule 1002: Requirements of the Original

An original writing, recording, or photograph is required in order to prove its
content unless the rules or a federal statute provides otherwise.

An original is required to prove its content.

First category: the writing, recording, or photograph has independent legal

significance.

Second category: A party seeks to prove the content of a writing, recording, or

photograph, the party chooses an item falling in one of those categories as a
convenient option for proving some fact.

The only difference between the categories is that parties who offer evidence
falling in the first category must introduce a writing, recording, or photograph.
They cannot escape the best evidence rule by introducing a different type of
evidence. Parties offering evidence that falls in the second category have a choice.
They may avoid the best evidence rule by choosing a different type of evidence.

When the best evidence rule applies, its default principle requires the party to
produce the original writing, recording, or photograph.

Rule 1003: Admissibility of Duplicates

A duplicate is admissible to the same extend as the original unless
a. a genuine question is raised about the original’s authenticity; or
b. the circumstances make it unfair to admit the duplicate

Rule 1004: Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing,
recording, or photograph is admissible if:

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(a) all the originals are lost or destroyed, and not by the proponent acting in bad
faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the
original; was at that time put on notice, by pleadings or otherwise, that the original
would be a subject of proof at the trial or hearing; and fails to produce it at the trial
or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling
issue.

The original is: 1) lost or destroyed, or 2) not obtainable, or 3) in possession of the

opponent, who is on notice by the pleadings or otherwise, or 4) collateral

Rule 1005: Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record—or of a
document that was recorded or filed in a public office as authorized by law—if
these conditions are met: the record or document is otherwise admissible; and the
copy is certified as correct in accordance with Rule 902(4) or is testified to be
correct by a witness who has compared it with the original. If no such copy can be
obtained by reasonable diligence, then the proponent may use other evidence to
prove the content.

Rule 1006:
The proponent may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently
examined in court. The proponent must make the originals or duplicates available
for examination or copying, or both, by other parties at a reasonable time and
place. And the court may order the proponent to produce them in court.

Rule 1007: Testimony or Statement of a Party to Prove Content

The proponent may prove the content of a writing, recording, or photograph by the
testimony, deposition, or written statement of the party against whom the evidence
is offered. The proponent need not account for the original.

Unsown oral statements DO NOT satisfy Rule 1007.

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Rule 1008: Functions of the Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled the factual
conditions for admitting other evidence of the content of a writing, recording, or
photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in
accordance with Rule 104(b)—any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.

Four Types of Presumptions:

1. Permissive Inferences
a. a permissive inference merely gives the jury an option.
b. the judge simply instructs the jury that it may infer one fact from another
c. if a litigant intentionally destroyed evidence after a claim was filed, the
judge may instruct the jurors: “you may infer that the evidence would have been
unfavorable to that litigant.

2. Presumptions that Shift the Burden of Production:

a. Shifts the burden of producing evidence from one party to another.

When a party responds to a burden-of-production shifting presumption by offering

evidence that disputes the presumed fact, the new evidence destroys the
presumption and eliminates it from the case, this is called bursting-bubble
presumption.

A bursting-bubble presumption requires an opponent to produce evidence rebutting

the presumption, but it does not shift the burden of proof to the opponent.

3. Presumptions That Shift the Burden of prove

a. These presumptions arise once a party introduces sufficient evidence of
facts needed to invoke the presumption.
b. These presumptions require the opponent to respond to the presumed fact
by producing evidence in response.
c. They require the opposing party to carry the burden of proof in
overcoming the presumed fact.

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4. Conclusive Presumptions:
a. sometimes called irrebuttable presumptions, requires the fact finder to
draw a particular inference.

Rule 301: Presumptions in Civil Cases Generally

In a civil case, unless a federal statute or these rules provide otherwise, the party
against whom a presumption is directed has the burden of producing evidence to
rebut the presumption. But this rule does not shift the burden of persuasion, which
remains on the party who had it originally.

This rule controls only when no other state or federal rule defines the operation of
a presumption.

In diversity cases, judges look to state law to determine the effect of a

presumption.

Rule 302: Applying State Law to Presumptions in Civil Cases

In a civil case, state law governs the effect of a presumption regarding a claim or
defense for which state law supplies the rule of decision.

Rule 606. Juror’s Competency as a Witness

(a) AT THE TRIAL. A juror may not testify as a witness before the other jurors at
the trial. If a juror is called to testify, the court must give a party an opportunity to
object outside the jury’s pres- ence.
(b) DURING AN INQUIRY INTO THE VALIDITY OF A VERDICT OR
INDICTMENT.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of
a verdict or indictment, a juror may not testify about any statement made or
incident that occurred during the jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment. The court may not receive a juror’s affidavit or evidence of a
juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly
brought to the jury’s attention;
(B) an outside influence was improperly brought to bear
on any juror; or
(C) a mistake was made in entering the verdict on the
verdict form.
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Ways to Peek Into the Black Box:

606(b) only bars juror statements raised after the verdict
606(b) bars only juror testimony
606(b) allows testimony about outside influences or extraneous prejudicial info
606(b) allows testimony about clerical errors

A juror is not competent to testify in the trial of the case in which the juror is
sitting.

What if there is an inquiry into validity of the verdict:

A juror may testify about—
◊ Extraneous prejudicial information
◊ Outside influence, or
◊ Mistake in entering a verdict on the verdict form

Outside v. Inside
◊ Generally, it is okay for a juror to testify about outside influences
◊ Jurors cannot testify about deliberations inside of the jury room

Why black box about jury deliberations?

◊ Legitimacy
◊ Finality
◊ Efficiency
◊ Protect Jurors

After verdict has been entered

Tanner Case:
Dfnt were convicted of mail fraud.
They moved for a new trial based on juror misconduct.

Can jurors testify after the trial about alcohol or drug use:
Supreme Court held:
No, this was an internal matter and barred by FRE 606(b)

Alcohol and drug use by jurors is no more an outside influence than a virus, poorly
prepared food, or a lack of sleep.

Tanner Case:
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◊ Be careful during Voir Dire
◊ Keep eyes on Jury

Hypo:
Jury sends note to Judge to eliminate juror #9 for being disruptive:
◊ Can the judge act on the jury’s note?
o Yes

Latest Supreme Court case: Juror Racial Bias

Pena-Rodriguez v. Colorado
◊ In a criminal case in which dfnt was found guilty, 6th Amendment guarantee
of a fair and impartial jury will override FRE 606(b)
◊ When a juror’s statement indicates he acted out of racial stereotypes or
animus.

EVIDENCE REVIEW:
100 Multiple Choice

Know two cases and their names:

Daubert and Crawford(hearsay v. confrontation clause)

Do the 4 CALI lessons

Do those online quizzes

Do the online mini-videos(merrittevidence.com)

Do the bootcamp multiple choice questions

Hornbooks for specific questions

Review Diego’s Evidence Questions

Evidence Study Resources

STU law library Online: Digital Library: Emmanuel Crunchtime

Three Keys to Every Evidence Problem:

1. What is it?
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a. Is it a witness testimony?
i. who is this witness?
1. lay witness?
a. personal knowledge?
b. opinion?
c. competent?
d. privileged?
2. Expert witness?
a. qualified?
b. opinion?(but mental state in criminal case)
3. Is the witness a party?
a. statements by party-opponents are easily admissible
4. Is the witness the defendant in a criminal case?
a. Mercy Rule
b. witness issues
a. impeachment?
b. is the testimony hearsay?
b. is it a document?
i. hearsay?
ii. authentication?
iii. Best evidence rule?
1. when the contents of a particular document is at issue
iv. Confrontation Clause Issue?
1. 6th amendment right in criminal trial
c. Is it real evidence?
i. Authentication
a. does it fairly and accurately represent the subject
d. Is it demonstrative evidence?
2. What is it offered to prove?
a. relevant?
b. Is it unfairly prejudicial?
c. is it offered for impeachment purposes?
d. offered for forbidden purpose?
i. hearsay
ii. character evidence
iii. subsequent remedial measures
iv. settlement negotiations
v. plea bargains
vi. insurance
3. Is it a civil or criminal case?
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a. civil cases
i. if character is at issue in the civil case
i. entrapment
ii. demation
iii. libel
ii. diversity case?
i. if yes, the state law of privilege, presumptions, and
competence applies
b. Criminal Cases
i. right of confrontation(applies in 6th Amendment)
ii. Mercy Rule
iii. Certain hearsay exceptions
1. Dying declaration only applies in homicide and in any civil
case
iv. hearsay exception for statement of party opponent
1. co-conspirators

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