EVIDENCE OUTLINE

Reasons for the rules of evidence:

1) Conserve resources; judicial economy
2) Promote accuracy
3) Mistrust of juries
a. Can only legally consider certain information
4) Constitutional principals – fairness
5) Serve other external substantive policies

2 overall guiding principals leading to the rules:

1) In general, the admissibility of evidence is favored
a. When the drafters weren’t sure over something, they erred on the side of
admissibility.
b. Gave the trial courts a lot of discretion.
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FRE: 401, 402, 403

(Relevance)
 § 401. Definition
o Requires that evidence:
 1) makes a fact at issue either more or less probable, and
 Doesn’t matter how much it effects probabilities, just that it must
do so in some manner.
 2) is of consequence under the substantive law of the case,
 helps to prove or disprove an element of the charge, claim or
defense
 Relevance is directly controlled by the pleadings of each party; they
control what elements are at issue.
 Under Federal Rules, relevance does not depend on whether a fact
is disputed.
 § 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
o All relevant information is admissible
 Self explanatory
o Except as otherwise provided by . . .
 Sets out the ways that relevant information can be rejected and leaves
door open for others
 § 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or
Waste of Time (i.e. the Balancing Test)
o Relevant evidence should be excluded when it probative force is “substantially
outweighed” by such considerations as wastefulness, jury confusion or unfair
prejudice.
 Undue delay,
 Overly cumulative evidence,
 Confusion of issues
 Misleading
  Unfair prejudice; not just prejudice.
o Rule favors admissibility;
 “Substantially Outweighed”
o Probative force/value = the extent to which the evidence effects the weight of the
argument.

Note – Background information (i.e. testimony, charts, maps, photos, etc.) is routinely admitted
as relevant, because it helps aid the juries understanding of other relevant evidence.
 Also, the accused is more likely to be allowed to present cumulative evidence because of
constitutional right to present a complete defense.

Old Chief v. United States

 When a party concedes a consequential fact that his opponent’s proffered evidence tends
to prove, this concession doesn’t render the evidence irrelevant.
 Rule
o Prosecutor ordinarily has the right to choose the evidence they want to prove their
case, but
o Facts of the case required a limited departure from that rule when one or more of
the counterweights in 403 substanitally outweigh the probative value of that
evidence
 i.e. prejudice was likely to occur from the trier’s likely misuse of
evidence.
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FRE: 404, 405

(Character Evidence – Methods of Proving Character)
 Purpose is the most important determinant in the admissibility of character evidence

Rule 404. Character Evidence Not Admissable to Prove Conduct; Exceptions; Other
Crimes
 404(a) Circumstantial Use of Character
o Character evidence is normally not admissible to prove action in conformity with
that character trait
 Character evidence is evidence which says something general about
someone and carries with it an ethical or moral statement.
 A form of “propensity evidence.”
 Propensity to act in a certain way.
o Exceptions
 (1)
 If D opens the door, prosecution can rebut that trait, or
 if D offers evidence of victims character under 404(a)(2),
prosecution can rebut the same.
 (2)
 D can offer evidence of pertinent character trait of victim and then
prosecution can rebut it; or
  prosecution can offer evidence of a character trait of peacefulness
of victim if D alleges the victim was the aggressor
o only in homicide case
 (3)
 Evidence of a witnesses character under Rules 607, 608 or 609.
o Impeachment
 (4)
 Evidence of other crimes, wrongs or acts, which are normally not
admissible, may be admissible to prove MIMIC.
o Motive, Identity, Opportunity, Intent or Common
plan/scheme.
o See next § 404(b).
 404(b) (MIMIC)
o Allows “evidence of collateral crimes, wrongs or acts” to prove element of crime
accused, like:
 Motive
 Identity
 Mistake or Accident, absence of
 Intent
 Common plan/scheme
 Usually used when the other crime and the charged crime are
“connected” in some way, not that they are similar types of crimes.
 Cannot be used to show that they commonly do a certain type of
crime because they have been convicted of previous crimes.
o Not an exclusive list, but this is a good pneumonic device when studying for the
bar.
 List also includes: Opportunity, Preparation, Knowledge, Capacity, etc.
o The burden of proof for MIMIC evidence, trial court must find that the jury could
reasonably find by a “preponderance of the evidence” that the act occurred and
that it was the defendant who did it.
 Must show evidence of collateral event sufficient “to support a finding” of
its existence.
 Huddleston v. U.S.
 Should show that other crime was committed and
 was committed by the Defendant
 Prior acquittal does not necessarily mean that the evidence is inadmissible.
 “Doctrine of Chances”
 Many accused crimes may allow trier to infer it is objectively
probably that so many accidencts would befall the accused.
o See Lilly p. 96-99.
o All of this is subject to the rule 403 balancing test.
 Factors that weigh on admissibility:
 Ample other evidence on this issue making other crimes evidence
unnecessary,
 Inflammatory nature of past crime likely to unduly influence jury,
 Collateral crime bears close resemblance to crime charged.
  Acquittal of collateral crime
 Defensive claims of the accused.

Rule 405. Methods of Proving Character

 405(a)
o Restricts the kind of evidence that may be used to prove character.
 1) Opinion witness,
 witness must be sufficiently acquainted with the subject to be able
to form a reliable opinion about their character.
 Testifies as to their opinion of whether or not they possess the
trait.
 2) Reputation witness,
 Witness needs to have knowledge of the general reputation in the
community.
o you don’t necessarily need to know them;
 Community must be sufficient for a reputation to develop and be
known.
 Testifies as to whether or not they have a reputation for the trait.
o Evidence of specific instances of conduct is normally disallowed.
 405(b)
o In cases where character or a trait of character is an element of the charge, claim
or defense, specific instances of conduct may be testified to.
 Not very frequent in civil cases.
 i.e. defamation, negligent hiring of employee, parental negligence
in a custody case, etc.
o When allowed to prove character, there are two relevance questions:
1) Is the character evidence probative of the character trait alleged?
2) Is the alleged character trait a consequential proposition or probative of
some consequential proposition?

General Rule – In Civil cases, character evidence of any type may never be used to prove
conduct on a particular occasion
 Not worth the time consumed, distraction of trier and potential prejudice.
 Few exceptions in cases where civil case involves conduct also criminal in nature.

Exceptions to the 404(a) that character evidence is not admissible to prove conduct (defendant is
always the one to open the door).
 Defendant’s good character
 Defendant’s bad character (in prosecutions rebuttal)
 Victim’s bad character
 Victim’s good character (in prosecutions rebuttal)
 Defendant’s bad character same as victim (in prosecutions rebuttal of the same trait)
 Victim’s peaceable character by prosecution
 Impeachment (Rule 608/609)
Michelson v. US
 Prosecution attempts to rebut D’s character for law abiding and honesty on cross.
 Court gives broad discretion to trial judges to allow questioning on anything relevant to
law abiding and honest traits once door is opened.

NOTE - Defendants cannot ask questions about specific instances.

- Could be a big waste of time.
- Could be very misleading by pulling out specific instances which might not have
happened very often.

Rules of prosecutions Rebuttle

- Must be related to pertinent trait
- To rebut with its own witnesses, prosecution is limited to reputation or opinion evidence
- On cross examination of D’s witness, the prosecution may ask specific instances
o Specific instances must however be based on the good faith belief of the
prosecution that the instance had occurred,
o and could still be excluded under Rule 403 balancing.

Moral: a defendant should be careful before offering evidence about how good they are or
pointing fingers at others.

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FRE: 404, 405 (See above); 412, 413, 414, 415

(Special Rules: Cases Involving Sexual Misconduct)

Exceptions to General Rule in Rules 413, 414, 415

 Previous commission of another sexual offense
 Previous commission of another child molestation offense.

 Rule 412 (“Rape Sheild” provision)

o Rule 412 is an exclusionary rule, used to keep evidence out which would
normally come in under Rule 404(a)(2), which allows evidence of a pertinent trait
of a crime victim.
 i.e. evidence used to show that the victim’s other sexual behavior or the
victim’s sexual predisposition.
o Excludes specific instance evidence of victims alleged sexual character; except
 In Criminal Cases
 To prove the source of semen or injury
 To prove a prior sexual history with the accused,
o By Defendant - to show consent
o By prosecution – for any relevant purpose.
 Evidence will come in if constitutionally required
 Civil cases
 If otherwise admissible under the rules, and
 Probative value “substantially outweighs” danger of harm or
 prejudice.
 Reputation only admissible if placed in controversy by alleged
victim.
 Some procedural notice rules.
o See Olden v. Kentucky
 Example of Rules of evidence yielding to constitutional principals.
 Sixth Amendment rights are denied by failing to allow D to confront
witnesses against him.
 There was a consent issue and he had a right to explore that,
regardless of the harm to the victim.
 Court said that the trial courts balance was wrong, and although it
won’t always be the situation, it was in this case.
o The method of proof of any of these things is specific instances, not reputation or
opinion.
o Exceptions for civil cases:
 If the probative value substantially outweighs the danger of harm to the
victim and unfair prejudice to any party.
 If any of the exceptions are going to be made in 412, the hearing is held in
camera.
 Rules 413-15 (“Sexual Predisposition” provisions)
o Exceptions to the ban on propensity evidence of past conduct, makes evidence
admissible in considering its bearing on any matter relevant.
 Huddleston standard: don’t need to show actual conviction.
o Rule 413
 Sexual Assault prosecutions
 “Sexual Assault”
 Any nonconsensual sexual contact b/w D and V,
 any violent act toward V where D derived sexual pleasure or
gratification, and
 Any attempt or conspiracy to engage in prohibited sexual behavior.
o Rule 414
 Child Molestation prosecutions
 Same as 413, but limited to persons below the age of 14.
o Rule 415
 Sexual Assault or Child Molestation Civil Cases
 Exception to the Rules.
o Maryland does not have analogous provisions to the Federal Rules 413-15.
 However we have a narrower version in the common law which makes
past sex crimes by the same defendant against the same victim admissible.
 Rule 404(b) –
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FRE: 104, 406

(Conditional Relevance and Habit)
 Conditionally relevant – when the relevance of proffered evidence depends upon a
related fact that must be supported by other evidence.
Rule 104. Preliminary Questions
(a) Questions of admissibility generally
- Most preliminary questions fall under this category.
- Judge decides whether:
o Witness is qualified to testify,
o Existance of a privilege,
o Evidence should be admissible.
- “Preponderance of the Evidence” standard
- Concerned with findings of fact that pertain to the applicability of an exclusionary rule of
evidence.
o NOTE - Court may consider evidence that may not be suitable for a jury, except
for those with respect to privileges.
(b) Relevancy Conditioned on fact
- Here, the judge decides whether there is evidence sufficient to support a finding of these
facts; and
o Probative value standard
- Jury decides whether the conditional or connected facts are actually proven from the
other evidence.
o Whatever standard governs the case

According to (b), the prosecution or defense may show information that is conditionally relevant
upon other unshown evidence.
- If it is never shown, than the jury is supposed to ignore it and not be prejudiced by it.

Note
 All evidence is subject to simple relevance tests
o Requires “some probative value”
 Only when evidence is conditionally relevant, does it need to meet the higher standard
o Requires “preponderance test”

Circumstantial evidence is not inferior to direct evidence.

Rule 406. Habit, Routine, Practice

- Shows routine and normal practices and reflexive conduct;
o i.e. a specific, repeated response to a particular situation.
o Do not necessarily carry moral overtones like character evidence.
- Looked upon more favorably and more probative than character evidence.
- Usual means of establishing a foundation of habit is through the presentation of witnesses
who have observed the actor’s consistent behavior over a significant time period.
o This is weakened by variable conduct.

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FRE: 407-412
(Specific Exclusions for Policy Reasons)
NOTE - We have previously studied rules that exclude certain types of evidence, with
exceptions.
- The following rules are normally admissible types of evidence, but exceptions are made
making the evidence inadmissible for policy reasons.

Rule 407. Subsequent Remedial Measures

- Remedial measures taken after an event that has caused harm or injury.
o i.e. repairs, design changes, now or amended safety regulations, warnings to
users, product recalls, new or amended instructions, disciplinary action, closing
the site of injury, etc.
- Policy
o To encourage fixing dangerous or hazardous problems.
- Only excludes remedial actions take “after” the issue, not ones taken before.
o Doesn’t exclude remedial measures taken by 3rd parties.
- Never come in to show liability.
o Exceptions
 To show ownership, if controverted
 To show control, if controverted
 To show the feasibility of precautionary measures, if controverted
 Usually only comes out if the defendant first claims that the
precautionary measures were not at all feasible,
 but not if they are just saying it was reasonably safe.
 Impeachment.
 To impeach testimony that place was not hazardous or completely
safe.
o All subject to Rule 403 balancing.

- Tuer v. McDonald
o Doctor changed amount of medicine given to patients after one died.
 We want doctors to learn from their mistkes
o Doctor made an informed judgment call based on concern that other med would
make patient bleed to death.
 Would be different if they said the patient would definitely have bled to
death otherwise.
 then it would probably be admissible to impeach his statement.
o Doctor did not lie, he really thought the procedure would be unsafe,

Rule 408. Compromise and Offers to Compromise (settlement)

- Evidence of the following is inadmissible to prove liability for, invalidity of, or amount
of disputed claim, or to impeach through prior inconsistent statements:
o Offers to compromise or accepting consideration for settling a claim.
o Conduct or statements made in compromise negotiation, except
 Criminal case, offered by D against government agency
- Examples of permitted uses:
 o Proving a witness’s bias or prejudice;
o Negating a contention of undue delay; and
o Proving an effort to obstruct a criminal investigation by prosecution
- Policy
oWe want to encourage settlements and pleas.
oPeople would not make settlement offers or be candid if they believed that it
would be admissible.
o There are many other reasons for offering to settle or making statements during
negotiations.
 Settling does not mean liability or guilt.
- NOTES
o Protects offers of compromise and compromises that were agreed to but not
implemented.
o Protects settlement activity b/w a party and a third person
o Protects evidence of “conduct or statements made in compromise negotiations”
o Only protects conduct made in effort to resolve claims that are “disputed as to
validity or amount”
 Can’t admit to a certain degree of liability and then invoke.
o Don’t get to immunize otherwise discoverable evidence just by talking about it in
a settlement.
 i.e. Otherwise discoverable material.

Rule 409. Payment of Medical and Similar Expenses.

- Protects offers to pay for medical or similar expenses after injury.
- Policy
o We want to encourage people to help out like in Rule 408;
- Narrower than 408
o Collateral statements made in connection with the offer to pay are not excluded;
o i.e. statements relating to fault.
- Broader than 408
o Does not require that the claim or amount be in dispute.

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

- Keeps out evidence of statements made in connection with withdrawn guilty pleas, nole
contendere pleas, statements made during the course of those proceedings
o Except
 i. cases where another statement from those proceedings are admitted and
the other statement should fairly be admitted,
 ii. Criminal perjury or false statement proceedings if made by defendant
under oath
- Renders inadmissible evidence of “any statement made in the course of plea discussions
with an attorney for the prosecuting authority which don’t result in [an unwithdrawn]
plea of guilty.”
- Policy
o To promote candor and productiveness in the plea discussion process.
 - Mezzanato
o Prosecutor says that the defendant must waive his 410 protections before they will
even agree to talk pleas with him.
 D then lied his ass off after agreeing to talk during plea discussion.
o Prosecutor uses the statements during the settlement to impeach his testimony on
the stand.
o Supreme Court said that evidentiary rules are “presumptively waivable.”
 D gave a voluntary waiver when he agreed to be honest and allow that
information to contradict him if he didn’t.
-

Rule 411. Liability Insurance

 Prohibits evidence that person was or was not insured against liability when it is offered
as bearing on whether the person acted negligently or otherwise wrongfully.
 Main application is to prevent evidence of insurance coverage.
 Policy
 We want to encourage people to buy insurance, and if it is admissible, people
will be discouraged from buying insurance.
 Jury’s may award merely because the party has insurance coverage.
 Not prohibited if offered for some other reason.

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FRE: 607-610
(Introduction to Impeachment)

Impeachment – an attack on the credibility of a witness.

 Principal thrust is to show that witness is wrong or mistaken,
 Not necessarily lying.

Extrinsic Evidence – Evidence that is adduced other than by questions during cross-examination.
 i.e. by calling witnesses or introducing documents.
 Extrinsic evidence may or may not be admissible?
 Depends on the method of impeachment being used.
 See other relevant rules _____ .

Rule 607. Who may Impeach?

 A witness may be impeached by any party, including their own side.

Methods of Impeachment:
1) Defect in mental or sensory capacity
2) Character for Truthfulness – FRE 608(a)
3) Conduct probative for untruthfulness – FRE 608(b)
4) Prior Convictions – FRE 609
5) Bias, interest, and motive
6) Impeachment by contradiction
 7) Prior Inconsistent Statements – FRE 613

o First 5 methods cast doubt on the witness’ word in general.

o The final 2 methods focus on particular errors or falsehoods in the witness’ testimony

1) Defect in Mental or Sensory capacity

- Generally not a character issue, but basically saying someone might just not be able to
know.
o i.e. mistaken or blind or hard of hearing, etc.
- Sensory
o Generally extrinsic evidence is permitted unless the witness admits to it during
cross-examination
- Mental
o Judge may order examination by physician.
o Three considerations
 Nexus b/w alleged mental condition and accuracy
 Importance of witness’ testimony, and
 Time involved in receiving psychiatric evidence.

Rule 608: Evidence of Character and Conduct of Witness

2) 608(a) Opinion and reputation of character

 Credibility may be attacked or supported by opinion or reputation evidence, but
 It may only refer to character for “truthfulness or untruthfulness”, and
 Evidence of “truthfulness” is only admissible after it has been attacked by
opinion or reputation evidence or otherwise.
3) 608(b) Specific Instances of Conduct
 Forbids extrinsic evidence of prior conduct that relates to the witness’ character for
truthfulness or untruthfulness
 i.e. no other witnesses or documents
 Must take the witness' answer at face value
 Must have a good faith basis for believing that the event inquired into actually occurred.
 Attorney must take reasonable steps to confirm its past existance
 Gives court the discretion to allow inquiry on cross-examination into specific instances
concerning
 The witness’ character for truthfulness, or
 The character for truthfulness of another witness as to which the witness being
cross examined has testified.
 Judge has considerable discretion.
 Giving of testimony by accused or other witness does not waive the accused’s or the
witness’ privilege against self-incrimination when examined with respect to matters that
relate only to character for truthfulness.

 During cross-examination of a character witness, the examiner is entitled to test how

well informed the character witness is and to reveal the standard she is using when she
 portrays the subjects character.
o Reputation witness
 Cross must ask “have you heard” questions
o Opinion
 Cross must ask “did you know” questions

4) Rule 609. Prior Criminal Convictions

 General Rule
o Evidence that a witness, “other than the accused” has committed a crime shall
be admitted
 Subject to Rule 403 balancing,
 If Crime was punishable by death or imprisonment > 1 year under the
law under which they were convicted; and
o Evidence that “the accused” convicted shall be admitted if the court
determines probative value outweighs prejudicial effect;
 If Crime was punishable by death or imprisonment > 1 year under the
law under which they were convicted; and
o Any crime involving dishonesty or false statement shall be admitted
regardless.
 Applies to civil or criminal trial
 Time Limit
o Not admissible if 10 years ha passed since conviction or release, whichever is
later, unless
 Interest of justice and
 Probative value “substantially outweighs” prejudice
o Must give sufficient notice
 Juvenile Adjudications
o Generally not admissible, unless
o Criminal case
 Witness other than the accused, if
 Conviction would be admissible to attack credibility of an adult, and
 Necessary for fair determination of guilt or innocence.
 Appeal does not render evidence inadmissible.

Notes
 Different levels of balancing for Defendant witnesses and regular witnesses.
o Except for crimes of false statement or dishonesty
 Judge has no discretion in these.

Proving the Prior Coviction

 Prior conviction can be proved by
o asking witness to admit the prior conviction, or
o introducing a certified copy of the prior judgment.
 Defendant opens door to this type of impeachment just by taking the stand.
o If they don’t want this to come in, they have the option of not taking the stand.
  Rationale is that this is someone who doesn’t respect our societies rules for honesty and
truthfulness, and cannot be trusted to do so on the stand.

Differences b/w felonies and crimes of dishonesty and false statement

 Felonies
o Uses the 403 balancing test for witnesses and for the accused, the probative value
must outweigh the prejudice.
 Crimes of dishonesty or falsity
o Automatically admissible
o Pretty narrow category of crimes (perjury, false statement, false pretenses,
embezzlement, forgery, etc)
 Courts split on whether crimes of theft fall within this category

Major 609 exceptions

 10 year rule (609b)
1. If 10 years has passed since date of conviction or release from confinement;
unless
2. Notice is given and probative value is high
3. Doesn’t matter if it is felony or crime of dishonesty
 Juvenile convictions (609d)
1. Never come in during civil cases or against a defendant;
2. and only come in against a witness if it would be admissible as against an adult
and necessary for fair determination

Luce v. United States

 If the accused declines to testify, because the judge has made an in limine ruling that it
will open the door for prior conviction, the accused waives their right to appeal the in
limine ruling.
a. On the other hand, if they do testify, they can appeal the ruling.

5) Bias, interest and motive ex.

Bias- a variety of mental attitudes that may incline a witness to give misleading or false
testimony
 Generally signifies a witness’s interest in the outcome of a trial
 Examiner on cross does not have to take witness’ answer as true, but can introduce
extrinsic evidence.
Hypo
 D: bank robbery
 W1: accomplice for prosecution "D did it"
 W2: impeach accomplice for D: "W1 said he would lie to get a good deal"
 W1 by pros.: "we are all members of secret society who lie for each other."

Facts you can infer from this fact pattern

 all liars: credibility of witnesses is bad (probably cannot come in)
  bias: W2 is biased in favor of D
 due to D's membership à more likely to have done crime (probably not admissible)

United States v. Abel

 Probative force of testimony on the issue of a witness’ possible bias is justifiable.
 Unless blocked by an exclusionary rule, evidence of bias should be admissible as
relevant information.

Rule 610: Religious Beliefs or Opinions

Evidence of beliefs or opinions is not admissible if related to religion and used for the purpose
for showing that their beliefs or opinions makes their nature or credibility suspect.
- Follows rationale behind the first amendment freedoms of religion.
- Examples
o Tax fraud case, cannot bring in evidence of heathenistic or cult religion and
beliefs.
 Compare with
o Accountant witness in tax fraud case is part of a religion that believes that the
defendant is the messiah.
 This goes to show motive or untruthfulness or bias, so therefore this would
probably be admissible under 403 balancing.

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FRE: 613, 801(d)(1)(a), 801(d)(1)(b)

(Impeachment by Contradiction and with Prior Statements)

Why do you want to bring in prior “consistent” statements?

- 2 purposes
o To show credibility
o To show the truthfulness of the prior statement
 Unlike prior “inconsistent” statements; there are not requirements that the
previous statements be under oath, etc.
- There is a requirement that the truthfulness of the witness had previously been attacked.

6) Impeachment by Contradiction
Bringing in evidence to show that the witness is incorrect.

No particular rule governing, the common law does provide limits.

- Cannot bring in extrinsic evidence to impeach by contradiction in a collateral matter.
o Really a time and resource saving rule
- Extrinsic evidence must be to the point and independently admissible.

7) Prior Inconsistent Statements – FRE 613

 (a) Examining as to prior inconsistent statement
o Statement doesn’t have to be shown or contents disclosed to the witness at that
time, but must show it to opposing counsel if they ask you to.
  (b) Extrinsic Evidence of prior Inconsistent statement
o Generally not admissible, unless
 Witness is afforded a chance to explain or deny, and
 Opposite party is given a chance to interrogate the witness, or
 Interests of justice otherwise require.

Prior inconsistent statement

- Collateral matter = cannot bring in extrinsic evidence
o Have to take witnesses answer at their word
- Non-Collateral matter = can bring in extrinsic evidence
o Can prove witness wrong.
- Bringing in evidence for truth of a previous statement (Hearsay)
o Bringing in inconsistent statement to show that the prior statement was actually
true because it was made at an earlier, easier to remember time.
o 801(d)(1)(a) governs situations on which evidence of prior inconsistent statement
can be brought in for its truth
- Usually must give witness a chance to explain or deny the inconsistency.
o Doesn’t say when it has to be, just that they must have the opportunity
o Exception
 Party admissions don’t require a chance to explain or deny.

Rule 801(d) Statements which are not Hearsay

801(d)(1). Prior Statement by Witness

 If the declarant testifies at the trial or hearing and is subject to cross concerning the
statement, and the statement is:
o (a) inconsistent w/ declarants testimony and given under oath, or
o (b) consistent w/ declarants testimony and offered to rebut an express or implied
charge of recent fabrication, improper influence or improper motive.

 Also deals with inconsistent statements by witnesses.

- This is the situation where the statements are used for their truth, instead of to prove
that the witness is lying.
- But it cannot come in for this purpose unless it meets certain criteria; i.e.
o Given under oath at a previous court hearing, deposition, etc.
o Identification of a person
o Etc.

Tome v. United States

 Child gave testimony about the father assaulting the child, which the Defense claimed
were put in the child’s head by the mother.
 Whether out-of-court consistent statements made after the alleged fabrication, or after
the alleged improper influence or motive arose, are admissible under 801(d)(1)(b).
a. The Rule permits the introduction of a declarant's consistent out-of-court
statements to rebut a charge of recent fabrication or improper influence or motive
only when those statements were made before the charged recent fabrication or
 improper influence or motive. These conditions of admissibility were not
established here.
 Unless the consistent statement was made before the alleged bribery or improper motive,
than it cannot be shown as a prior consistent statement.
 Rule
a. A prior consistent statement must predate the alleged corrupting influence or
purported fabrication.
b. The judge must determine whether a prior consistent statement predated the time
at which a fabrication was allegedly conceived or some motive or improper
influence attached.

Curative Admissibility
 “Opening the Door” or “Curative Admissibility”
o When one party introduces evidence that, if left unanswered, would mislead the
jury, the opposing party is entitled to meet the evidence with rebuttal
“inadmissible” evidence.
 The party who first introduced the inadmissible line of proof, although not objected to, is
said to have waived any objection to her opponents “inadmissible” rebuttal evidence.
 When curative evidence is admitted, it “renders harmless” the initial erroneously
admitted line of proof.
o Stops appeal.

NOTE
 Cross examiner is allowed to question witness’s credibility, even if they introduce new
topics. Why?
o Witness competency/credibility is always at issue during trial.
o Central purpose of cross is to weaken or negate the testimony given during direct.
 However, the cross-examiner cannot interrupt the opponents presentation of witnesses by
calling their own “impeachment” witnesses or introducing documentary evidence.
o They must wait until their own evidentiary presentation to bring in this extrinsic
evidence.

Rule 806. Impeaching a Hearsay Declarant

 Allows the credibility of a hearsay declarant to be attacked by the same impeachment
techniques that are available to discredit a testifying witness.
o Exception in practice, ex.
 If the hearsay Defendant is unavailable as a witness, she cannot be asked
about prior bad acts during cross examination, so extrinsic evidence is
ordinarily inadmissible.

Abusing Impeachment
 Counsel may not call a witness for the purpose of eliciting testimony he does not want
the jury to believe (i.e. unfavorable testimony to his case) and then to introduce the
witness’s prior statement which he does want the jury to believe.
Rehabilitating a Witness
 Generally a party cannot bolster a witness’ character unless the character has been
attacked.
 As such, in impeachment of perception or memory, rebuttal evidence of good character
is not admissible
 In cases of bias, prior inconsistent statements and contradiction, the trial judge decides
whether the evidence strikes at the witnesses character for truthfulness and then make a
judgment whether the opposing party should be allowed to rehabilitate it.
________________________________________________________________________

FRE: 103-106, 611

(Making a Record)


Rue 103. Rulings on the Record

 Error may only be predicated upon a ruling which admist or excludes evidence which
affects a substantial right,
 In the case of admitted evidence
o A timely objection or motion to strike must be made on the record, stating the
grounds for objection, if not apparent
 In the case of a ruling excluding evidence
o The substance of the evidence was made known or apparent from the context
 Once the court makes a definitive ruling at or before trial, a party need not renew an
objection to preserve a claim for appeal.

- 2 basic ground rules for getting appellate reviews

o 1. Litigants have the responsibility for raising errors at trial
 Must make objections if evidence is admitted that you don’t want in
 If the court is excluding evidence that you want admitted, you must make
an offer of proof.
 Informal ways to do so explaining what would have been offered if
allowed.
 Formal way is to do the examination on the record without the jury
present or counsels signed statement about proposed testimony.
o 2. Case will only be overturned if they effect a substantial right of the parties.
 Eg. Constitutional rights
- 3 categories of error
o 1. Harmless error – error that did not effect a litigants substantial rights
 Does not require reveral
o 2. Reversible error – error affecting substantial rights, but
 effects substantial rights if there is a substantial likelihood that the error
effected the outcome of the case; it must have been preserved on appeal
for the appellate court to overturn.
o 3. Plain error – reversible error of such magnitude that even if it was not
preserved,
 it can be overturned on appeal.
Rule 104. Preliminary Questions
 See above in outline

Rule 105
 When evidence is limitedly admissible, the court should give the jury a limiting
instruction to the jury.

Rule 611
 Cross examination should be limited to the subject matter of direct and matters affecting
the credibility of a witness.
o The court may however permit additional inquiry into other matters as if on
direct.
 Leading questions should not be used on direct except as necessary to develop
testimony.
o Or on cross or if the witness is hostile

________________________________________________________________________

FRE: 901, 902, 903

(Authentication)

Two types of evidence:

1) Witness testimony
 Rule 602. Lack of Personal Knowledge
i. Before a witness can testify to a matter, evidence sufficient to support a
finding that the witness has personal knowledge of the matter must be
introduced.
2) Exhibits
 Demonstrative Evidence
i. Either need a stipulation or testimony that the proffered evidence is a fair
and accurate representation of whatever it displays.
1. Usually witness must have personal familiarity.

Exhibits must be authenticated before they are allowed in as evidence.

 2 types of exhibits
o Real evidence – actual items that were present or important to the actual events
taking place
 i.e. gun, bullet, letters, brooch, coroners report
o Demonstrative evidence – used to explain and demonstrate
 i.e. diagrams, maps, charts

Rule 901. Requirement of Authentication or Identification

 (a) General provisions
o Trial counsel is required to authenticate or identify the evidence, and lay a
foundation, in order to have the evidence be admissible.
  Only relevant if you can show that it is sufficient to support a finding that
the matter in question is what its proponent claims.
o Judges job is to screen the authenticating evidence in order to determine whether
the evidence supporting authentication, if believed, is sufficient to allow it
rationally to conclude that the proffered evidence is genuine.
 i.e. Could reasonably find.
o After that, the jury (fact finder) makes the decision of whether it actually is
authentic.
 (b) Illustrations of ways to authenticate or identify evidence: Extrinsic Evidence
o Examples are not inclusive, but just general ideas of things that are always
admissible.
 1) Testimony of a Witness with Knowledge
 2) Nonexpert opinion on handwriting
 based on familiarity
 3) Comparison by trier or expert witness
 Comparison w/ other specimens which have already been
authenticated.
 4) Distinctive characteristics and the like
 5) Voice Identification
 6) Telephone Conversation
 _______ .
 7) Public Records or Reports
 From the public office where items of the nature are kept
 8) Ancient Documents or Data Compilation
 Not suspicious and over 20 years old
 9) Process or system
 Evidence describing the process and showing that it produces
accurate results.
 10) Methods provided by statute or rule
 Important is that the counsel must first lay the foundation before the evidence can just be
admitted, whether it would be relevant or not.
o It must be shown that it is likely what it is said it is.
o (9) often has a witness or computer expert testifying that the process or computer

Rule 902. Self Authentication

 12 categories of documents that are self authenticating because they have sufficient
indicia of genuineness.
o Domestic Public Documents under seal
o Domestic Public Documents not under seal
o Foreign public documents
o Certified copies of public records
o Official publications
o Periodicals and Newspapers
o Trade inscriptions and the like
o Acknowledged Documents
 o Commercial Papers and related documents
o Presumptions under Act of Congress
o Certified domestic records of regularly conducted activity
o Certified foreign records of regularly conducted activity
 This is a closed list, not examples.

Rule 903.
 Don’t necessarily need subscribing witness to authenticate a writing.

________________________________________________________________________

FRE: 1001 – 1008

(Best Evidence Rule)

Best Evidence Rules

Rule 1001. Definitions

Writings and Recordings
 letters, words or numbers, or their equivalents
 set down in writing, print, etc., or other data compilation
Photographs
 still photos, x-rays, videos and motion pictures
Original
 The original or any counterpart intended to have the same effect by the person issuing or
executing.
o Includes
o For photos: negatives or any print there from
o For data compilations: any printout, readable by sight, and shown to reflect the
data accurately.
Duplicate
 Self explanatory

Rule 1002. Requirement of Original

Comes into play when you are trying “to prove the contents of a writing, recording or photo.”
 Requires the original to be provided, unless an exception applies.
Only applies to writings, recordings and photographs.
 And must be trying to prove the content of the evidence.

Rule 1003. Admissibility of Duplicates

Biggest exception to the “originality” requirement is under Rule 1003, which allows you to use a
duplicate in lieu of the original, unless
 Authenticity of the original is in question or unfairness would result.

Rule 1004. Admissibility of Other Evidence of Contents

Lays out more exceptions to need for original:
1) Lost or destroyed
  Unless there is bad faith
2) Unobtainable by judicial process,
3) Opponent has possession and will not produce it, or
4) It is about a collateral matter.

Rule 1005. Public Records



Rule 1006. _________

Best evidence objection usually comes up when there is a witness talking about what was in a
document or contract, that is not being introduced into evidence.
 Party will object that there is better evidence to be used.

Ex. from Paul Newman movie is where Witness is testifying as to what she wrote on the form.
 Have to let the document speak for itself.
 Issue is that Newman never admitted into evidence and then had her talking about it.
o Should have entered the document and then asked her questions about it.

Note
 Often a writing merely recites or records a perceivable event or condition such as
marriage, payment of money, or utterances of certain words.
o In these situations, proponent wishing to prove the underlying event need not use
a writing, but can use testimony of witnesses with first-hand knowledge.
o However, if they wish to make the proof by use of the writing, the Best evidence
rule applies.
 Party who the evidence is offered against has the responsibility of challenging the
evidence.

Rule 1008. Functions of the Court and Jury

 Gives more control to the jury to decide issues of fact relating to whether the evidence
ever existed, whether another is the original or whether other evidence of contents
correctly reflects the contents.
o More power to jury and less to judge than Rule 104(a)

________________________________________________________________________

FRE: 801 – 806 and FRE 801(a) –(c) (with commentary)

(Introduction to Hearsay)

Hearsay – An out-of-court statement, made in court, for the truth of the matter asserted.
1. Is there an assertion?
2. Was it made outside of testimony at the trial or hearing?
3. If so, is it offered for the truth?
Statement – an oral or written assertion, or non-verbal conduct of a person, intended as an
assertion.

Crux of the Hearsay definition is that a person makes a statement when hey assert something,
either through the use of words or conduct that is intended as a substitute for words.
 Hearsay is limited to people, not machines or devices.
 It is also limited to statements that make an assertion.

Principal of Relevance constrains the purpose for which an out-of-court statement can be offered,
whether or not it is hearsay.

Potential dangers to testimonial accuracy if hearsay is admitted are:

 Defects in perception
 Defects in memory
 Defects in sincerity
 Defects in narration or transmission

Assumption is that cross examination of the declarant can reveal these infirmities, but cross
examination of the person who heard the declarant say it cannot.

Keep in Mind, Classification as hearsay doesn’t necessarily mean it will be excluded.

________________________________________________________________________

FRE: 801(a)-(c)
(Utterances/Conduct That Are Not Hearsay)

Categories of Statements that are not offered for their truth and thus, not hearsay
1. Words of Independent Legal Significance (a.k.a. Verbal Acts)
 A statement that is instrumental in creating or shifting a legal relationship.
2. Used to Prove Fact That Words Were Spoken to Show Knowledge or Awareness
 Declarant’s statement reveals their knowledge or a fact or condition;
 If the knowledge is consequential in a subsequent lawsuit, it is admissible for
nonhearsay purpose.
i. Not proving that because they said it, it was true, but to show that they
said it even though it wasn’t necessarily true.
3. Offered to Show Effect on Listener’s State of Mind
 Purpose of the proffered statement is to show the probably effect on the state of
mind of another person who heard (or read) it.
i. i.e. out of court statements where someone was threatened or warned, that
are used to show that there should have been or was an effect on the
listener.
4. Statement of Declarant which Constitutes Circumstantial Evidence
 Key is that it is circumstantial
 Statements in which an implied proposition bubbles close to the surface
i. Ex. 1
 1. Husband telling wife “your stupid slut sister is out getting run
through again”
a. Could be used to prove his dislike for the sister,
b. Couldn’t be used to prove she was out or that she is a slut.
2. USE 403 balancing if issues are both in trial.
ii. Ex. 2
1. i.e. Mentally impaired person saying “I’m Elvis”
a. Not hearsay, not being offered for its truth.
2. NOT a mentally impaired person saying “I think I’m Elvis”
a. This second one would come in under an exception, but if it
is being submitted as direct evidence of their mental state,
it is hearsay.
5. Statements revealing knowledge derived from a particular source.
 Shows that someone had knowledge which can be inferred to have been gained
only by access to that knowledge.
6. Non-assertive conduct
 Key is that the declarant did not actually intend to be making an insertion.
i. Innate responses.
 Someone describing another person(s) conduct is subject to the infirmities of not
being able to be cross examined.
i. Drafters of the Federal rules made an exception, but that was and is still
hearsay at Common Law.
7. Silence
 Falls generally within non-assertive conduct that may have probative value to
show an event did or did not exist.
8. Impeachment
 See above in outline for Rules 801(d)(1)(A)-(B).
 801(d)(1)(c)
i. If the declarant testifies at the trial or hearing and is subject to cross
examination concerning the statement and the statement is
1. one of identification of a person, made after perceiving the person.
ii. Than it is not hearsay.
9. Verbal Objects
 Words associated with an object that help identify it.
 i.e. trademarks and such being used to show that the product is from where it says
it is.

** Differences of when to raise 602 knowledge objection or when to raise 801 hearsay
objection**
 If the witness who didn’t see the event quotes someone else about it, it is hearsay.
 If the witness who didn’t see the event talks about the event, it is lack of knowledge.

Implied Assertion
- Intended messages
o “I may have body odor, but at least I didn’t rob a bank!”
o Federal courts have held that this is hearsay.
 - Unintended messages
o Evidence in a drug trial that many people called a phone number and asked “how
much for a kilo of cocaine?”
o Because they were not intending to assert that the answerer was a drug dealer, the
Federal courts have held this non hearsay.

Rule 805. Hearsay within Hearsay

 Allows for “multiple hearsay” or “double hearsay” if it meets an exception for all of its
parts.
o If there is a chain connecting each hearsay declarant, each statement is admissible
if each out-of-court statement falls under a different exception or exclusion.
 Rule 403 provides judges with discretion to exclude multiple hearsay if the statements
are found to be so unreliable that their probative value is substantially outweighed by the
danger of prejudice and confusion..
________________________________________________________________________

FRE: 801(a)-(c), 805

(Hearsay or Non-Hearsay Review Problems)

Do Hearsay_Review_Questions.doc ( 38400 Bytes )

________________________________________________________________________

FRE: 801(d)
(Hearsay Exemptions)

[[ See Handout: Foundational Elements Hearsay Exemptions – FRE 801(d)]]

*No agency exception in hearsay (d)(2) extended to spouses.

________________________________________________________________________

FRE: 803(1)-803(4)
(Hearsay Exceptions)

Exceptions – Even if hearsay is admissible under one of exceptions, evidence may not be
admissible under another Federal Rule.
 To get statement in under an exception only have to meet one exception/requirement of a
rule.
 Availability of the declarant is immaterial
 Under 104(a), judge determines whether the proponed has established by a
preponderance of the evidence that the 803 exception has been met.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

[[SEE HANDOUT: Foundational Elements Rule 803 1-3]]

Rule 803(1) Present Sense Impression
 OCS must be made while declarant is perceiving an event or condition, or immediately
thereafter.;
 OCS must describe or explain the thing being perceived.

Rule 803(2) Excited Utterance

 Sufficiently startling event;
 OCS declarant sufficiently startled by event (reflection and reasoning blocked);
 OCS made while declarant remained under stress of excitement caused by event;
 OCS must relate to startling event.

Rule 803(3) State of Mind

 OCS must be statement of declarant’s own state of mind, emotion, sensation, or physical
condition;
 OCS must reflect state of mind, emotion, sensation, or physical condition existing at the
time the statement is made;
 Forward looking statements:
o when used as evidence of future conduct, statement is admissible only as evidence
of delcarant’s future conduct, not as evidence of future conduct of another;
 Backward looking statements:
o must be statements relating to execution, revocation, identification, or terms of
declarant’s will.

Mutual Life v. Hilmon

 Joint conduct problem
1. Statement offered to prove the future intended conduct of a person other than the
declarant who was also engaged in the intended conduct.

Shepard v. United States

 Statement by poisoned wife that “Dr. Shepard has poisoned me.”
 No 803(3) application because it was backwards looking, not a present sense impression,
and
 Not 804(b)(2) dying declaration because she didn’t believe death was imminent.
 Plus there was very prejudicial tones because she could not be cross examined.

Rule 803(4)
Must show:
1. The declarant believed that the Out of Court Statement would result in medical diagnosis
or treatment.
2. A doctor would reasonably rely upon the Out of Court Statement in diagnosis or treating
a patient.

Central requirement is that the statement in question be made for purposes of medical diagnosis
or treatment”, including:
 Medical history,
  past or present symptoms,
 and external cause of the patients condition relevant to diagnosis or treatment.
i. The actual diagnosis is not admissible under this exception, only
statements made for the diagnosis.

________________________________________________________________________

FRE: 803(5), 803(6), 803(7), 803(8), 612

(Hearsay Exceptions for Documentary Evidence and Misc. Exceptions)

Difference b/w Recorded Recollections and Present Recollection Refreshing.

 803(5). Recorded Past Recollection
o Recorded instrument of memory which can actually be read into evidence, but
may not be received into evidence unless offered by an adverse party.
 Rule 612. Refreshed Present Recollection
o Is there anything that would refresh your recollection??
o Can be anything that refreshes their memory, but that thing does not come into
evidence.

[[See Handout: Foundational Elements for Hearsay Documentary Exceptions]]

Relationship b/w 803(6) and 803(8)

Rule 803(6). Records of regularly conducted activities (“Business Records” exception)

 1. The OCS is a record that was made in the course of a regularly conducted business
activity.
 2. Made at or near the time of the event recorded.
 3. Record was made by someone with either
o (a) personal knowledge of the recording, or
o (b) based the record on information provided by someone who both had personal
knowledge and provided the information in the regular course of the particular
activity involved.
 RESTRICTIONS: A business record can be excluded if it is not trustworthy.
 Includes things like:
o Hospitals, charities, fire departments, public utilities, etc.
 Could be public or private businesses
o Also includes medical diagnosis entries that record “acts, events, conditions,
opinions, or diagnosis. . .”
 Important to realize that judge has great discretion in balancing the interests of fairness
and justice in letting these records in.
 Laying a Foundation
o Show all the things above, can do so by written certification of the custodian or
other qualified person.

Rule 803(8). Public Records and Reports

 Almost identical to the requirements under 803(6), except
 o No requirement that a record be created soon after the event that it records.
o Nor does it need to be made as part of a regular, systematic routine.
 Three types of entries specifically noted in the rule.
o (1) “Activities” of the office or agency;
 i.e. payroll, personnel, inventories, disbursements, and internal or office
operations.
o (2) “Matters observed” pursuant to a duty imposed by law; excluding however,
observations of law enforcement in criminal cases;
 i.e. field observations of police, NOAA’s weather condition observations,
induction of officer’s observations that an inductee refused to take the
required oath, safety inspectors citation of safety violation, INS officers
report that he deported someone, etc.
o (3) In civil actions or proceedings and criminal cases against the Government,
“factual findings resulting from an investigation” made pursuant to authority
granted by law.
 i.e. investigative reports by the army or report of the Bureau of Mines
detailing the probable cause of an explosion.
 The words “factual findings” is not confined to facts, but also opinions or
conclusions or reasonable inferences drawn from observable evidence.

NOTE – Special Criminal case protections for the accused under 803(8) may or may not be able
to be admitted under 803(6)
 Although jurisdictions are split on whether or not this can be done, a safe test is to look at
the Adversarial/Non-Adversarial nature of the report and then decide.

Rule 803(7). Absence of entry in records kept in accordance with the provisions of
paragraph (6)
 Judge has great power like under 803(6) in the interests of justice.

Rule 803(10). Absence of public record or entry

 Same as 803(7), except note
o Written certification by a public officer that they conducted a diligent search and
didn’t find the records is a public entry and therefore admissible for its truth under
the section.

Miscellaneous 803 exceptions

 803(16). Ancient Documents
o Statements in a document which has been in existence 20 years or more, that has
been authenticated.
 See 901(b)(8) for requirements of authenticating ancient documents.
 803(18). Learned Treaties
o Statements in professional or scholarly publications; provided that the work is
established as a reliable authority by testimony or admission of the witness or
other expert testimony or judicial notice.
 Note – they are read into evidence, but are not received as exhibits.
 Also, it must be in conjunction with an experts interpretation or comment
 upon the treatise.
 803(22). Judgment of a Previous Conviction
o Evidence of final judgment or plea of guilty, of a crime punishable by a year or
more, to prove any fact essential to sustain the judgment; but
 Not including judgments against persons other than the accused when
offered by the Government in a criminal prosecution for other than
impeachment puposes.
 See Impeachment Rules.
 803(9). Records of Vital Statistics
o Must contain statistics pertaining to “births, fetal deaths, deaths or marriages”
which were reported to a public office pursuant to a legal duty to do so.
 803(17). Market reports, commercial publications
o Self explanatory; must be relied upon by the public or by persons in particular
occupations.
 803(19). Reputation concerning personal or family history
o Reputation either:
 Within the family,
 Within the community, or
 Among associates familiar with the reputation concerning persons whose
relationship is in question,
o To prove a persons “birth, adoption, marriage, divorce, death, legitimacy,
relationship by blood, or marriage, ancestry, or other similar factual personal
family history.”

**NOTE**
Ways to get at someone’s reputation
 608(a) – reputation for truthfulness, violence, peacefulness, etc.
 404 – Defendant opens the door to reputation evidence
These are the things we discussed earlier, and although we didn’t say they were hearsay at the
time, they are.
 As such, 803(21) is the standard exception to get in all those kinds of evidence.
 Without this rule, it is all just inadmissible character evidence.

________________________________________________________________________

FRE: 804
(Hearsay Exceptions under FRE 804)

[[SEE HANDOUT ON RULE 804. EXCEPTIONS]]

804 Hearsay Exceptions: Unavailability Required

Must meet both part (a) and part (b)

 Not like 803 where all you needed to do was meet the exception;
 Here you must be: unavailable and meet the exception.
Remember, if you have a statement by the declarant who is the party against you, you can just
get it in as a party admission under 801(d)(2).

804(b)(4). Statements against interest

 Hardest part about statements against interest is deciding whether it was against their
interest at the time it was made.
o “Reasonable person” standard
 Three types of interests a statement can be against to fit the exception:
o Pecuniary (money), proprietary (property), and penal (criminal).

Williamson v. United States

 Part (b) is the issue:
o Wasn’t a party admission, because the conspiracy was no longer being furthered
after Harris was arrested.
o Arguments that the statement was against Harris’s interest:
 Statement inculpates him in drug conspiracy;
o Arguments that the statement was not against Harris’s interest:
 This statement is probably being made to get leniency if not immunity;
 Court found that you “must look at each particular aspect and sentence of the narrative
and decide whether that part is inculpatory.”
 Supreme Court also says that neutral statements do not come in; they must be inculpatory
to the declarant.

Rule 804 exceptions that can only be used when the witness is unavailable.

 804(b)(1) Former Testimony Exception

o Criminal Case
 Declarant must be unavailable, and
 the OCS must have been given by the declarant as a witness under oath at
a prior legal proceeding.
 Party against whom the hearsay is offered must have been a party to the
prior proceeding,
 Had the opportunity to cross and
 The same motives to Cross.
o Civil
 Has the same requirements, except they don’t need the exact party to the
former proceeding, but someone with a similar interest who had the
opportunity and motive as the party to whom is now being brought
against.
o Note
 The rule only requires an the opportunity to develop testimony in the
previous trial
 Look to at the motives of the previous parties.
 Modern functional approach favors admissibility.
 804(b)(2) Dying Declarations
o Declarant is unavailable
 o Declarant believed they were about to die at the time it was made
o OCS concerns the cause or circumstance of impending death
o And is offered in a civil case or homicide prosecution

Rule 804(b)(6): Forfeiture by Wrongdoing exception

1. A party engaged or acquiesced in wrongdoing that was intended to and did procure the
unavailability of the declarant as a testifying witness.
2. The OCS is offered against that party.

Ex. 1
 Defendant pays the Plaintiff’s witness to be out of the country at the time they were
supposed to testify.
o The hearsay statement of the police officer about the witness’s prior statement is
admissible because of the Defendant’s wrongdoing.
 One situation that you see this a lot is in domestic violence cases.

Brothers Keeper Clip ex.

 Lymans statement to prosecutor that:
o Delbert said that there are things wrong with the brother and that they should kill
him so he doesn’t suffer and how it should be done.
o Lyman says that shooting him would be too messy.
o “It was decided that they should choke him.”
 Williamson shows that we will only let in things that go against the declarants interest.
o At this point Lyman was already speaking to the police and had a good motive to
implicate his brother Delbert.
 These are not against Lyman’s interest; but Delberts.
o Argument that those statements are not really against his interest.
 There is another argument that he is making himself culpable because he would be part of
the conspiracy.

________________________________________________________________________

FRE: 807
(Crawford v. Washington and the Residual Hearsay Rule )

Rule 807: Residual Exception

Exception was put into the Rules in 1997 for 2 reasons

1. Recognition that there were reliable hearsay statements out there which did not fit under
803 or 804
2. Recognition by the drafters that they were not omniscient, and could not foresee every
possible situation that may occur in the future.
a. This gives judges leeway.

807. Residual Exception

Foundational Elements
  Hearsay statement not specifically covered by 803 or 804, but
 Equivalent circumstantial guarantees of trustworthiness, and
a. Offered as evidence of material fact
b. More probative on the point for which it is offered than any other evidence which
could reasonably be procured.
c. General purpose of the rules and interests of justice would be served by
admission;
 However,
a. Other side must be given advance notice so as to provide them with a fair
opportunity to prepare to meet it, the proponents intention and particulars of it.
 Factors the judge should take into account:
a. Probable reliability of the proffered Rule 807 evidence,
b. The Predicted reliability of “other evidence,” and
c. Inconvenience, time, and expense associated with securing evidence from an
alternative source.
 Next step is to look at factors or circumstances that reduce hearsay dangers:
a. Time lapse b/w the event and the declaration (e.g., present sense impression),
b. The declarant’s mental state (e.g., excited utterance; dying declaration),
c. Declarant’s probable motive to be truthful or deceitful (e.g., declaration against
interest),
d. Reliance by others on the declarant’s statement (e.g., business record),
e. Likelihood of a false statement being detected (e.g., public record),
f. Superior knowledge (a declarant’s mental or bodily condition), and
g. Whether the declaration is recorded (e.g., recorded recollection).

“Near-Miss” exception
 Says that near misses of a recognized exception should not be included under the 807
residual exception. (minority view)
a. i.e. meets 3 of 4 of the requirements of 804(3), but misses the last, so keep it out
because it doesn’t meet a proper exception.
 Other courts do the opposite and say because it is a near-miss, it is more reliable.
(majority view)
a. Most courts reject it

Crawford, Davis and Hammond

Crawford v. Washington
 Previous test was the Roberts Doctrine, which was to distinguish firmly rooted hearsay
exceptions from more recent ones.
o Firmly rooted had greater guarantees of trustworthiness.
 Court embarked on fresh issues related to the confrontation clause and hearsay.
 Court held that hearsay statements which are testimonial in nature cannot be brought in
against the defendant; unless declarant is unavailable and accused had a prior opportunity
to cross-examine the witness.
o It is not actually defined in Crawford, but the court does mention three
possibilities.
  What is testimonial?
o 1) Testimonial declarations are directed to proving a fact;
o 2) They are characterized by structure and a certain degree of formality;
 As opposed to a casual remark or a spontaneous or excited utterance;
o 3) Finally, they are directed at government official or bodies .
 General Test of whether a statement is testimonial is whether it is made in circumstances
associated with an anticipated criminal prosecution.
o Only applies to hearsay statements in criminal cases, where the Defendant has had
no previous opportunity to cross examine.

Davis (911 call of DV victim) & Hammons (Wife talking to police who responded to the scene)
 In both cases, for whatever reason, these women refuse to testify at trial.
o Natural response would be to bring out the 911 call or interviews.
 Yet in Davis, the statements were admitted; but
o Because it was an emergency situation where the operator was trying to help.
o Not trying to gather up evidence.
 In Hammons, the statements were not.
o This was a Sir Walter Raleigh situation where the state is out gathering up
evidence against the Defendant for their investigation.
o Very testimonial

The earlier case we discussed, Williamson, would not survive under Crawford analysis.
 Crawford will take precedence over all of the previous cases, so it must be kept in mind.

Still a lot of pending issues after Davis and Hammons.

 See power point slide show.

Crawford and Child Testimony

Maryland v. Craig (1990): Supreme Court upheld statute that permitted child to testify outside
defendant’s presence by use of one-way closed-circuit TV; so long as it is necessary to avoid
“more than de menimis” emotion distress to the witness.
 Reasoning: “a state’s interest in the physical and psychological well-being of child abuse
victims may be sufficiently important to outweigh, at least in some cases, a defendant’s
right to face his accusers in court.”

Since Crawford there has been a circuit split on whether a D’s confrontation rights may be
abridged even if the trauma would not “impair the child’s ability to communicate.” Is emotional
distress by itself sufficient to justify denial of confrontation, or must the trauma impair the
witness’s ability to testify?
 Some hold that the government must show that confrontation would impair the witness’s
ability to testify.
 Some do not require such a showing.

What is testimonial and what is not?

  California court said that when there is some formality and procedure that is being used
and it there is primary purpose on declarant and recipient it is probably testimonial
evidence.
o Testimony of sheriff who came to scene of rape was inadmissable, but statement
of boy who was raped to a doctor was admissible.
o The court did however hold that it was harmless error to admit the

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________________________________________________________________________

FRE: 601-606, 701

(Witness Competency and Lay Opinion)

Rule 601. General Rule of Competency

 Rule has 2 features:
o 1. General rule that everyone is competent to testify; unless prohibited by another
federal rule.
o 2. Deferral to state’s procedural law should be had when a federal court is
deciding a state substantive issue.
 Most people are eligible to testify, with some exceptions.
 One exception in this rule that varies by state is where in civil trials and there are special
state statutes that apply.

Rule 602. Lack of Personal Knowledge

 Witness may not testify unless evidence is introduced to support a finding that they have
personal knowledge of the matter.
o May consist of the witnesses own testimony.
 Rule subject to provisions of 703.

Rule 603. Oath or Affirmation

 Every witness has to take the oath to testify truthfully.

Rule 604. Interpreters

 Interpreters must take the oath too.

Rule 605 – Competency of Judges as witnesses

 Judge presiding over the trial may not testify as a witness.
 Attorney’s may not testify either

Rule 606 – Jurors Competency

 (a) At the trial –
o Members of the jury may not testify as a witness in the trial in which they are a
sitting juror.
o If the juror is called to testify, opposing party shall be given an opportunity to
object.
 (b) Inquiry into validity of verdict or indictment
 o Jurors may not testify as to matters or statements occurring during deliberations or
about anything affecting their or any other juror’s mind or emotions in making
their decision.
o A juror may testify about:
 (1) whether extraneous prejudicial information was improperly brought to
the jury’s attention,
 (2) whether any outside influence was improperly brought to bear on any
juror, or
 (3) whether there was a mistake in entering the verdict.
 Draws a distinction b/w testimony about outside influences and inside influences.
o Cannot testify to internal matters, but can testify to external matters.
 Important to remember that this only applies to “juror” testimony.

We don’t ask jurors to check personal knowledge, feelings, or experiences at the door.
 We merely require that they not get any extraneous information.

**Keep an eye out for constitutional principals which may or may not take precedence over the
rules of evidence.**

Rule 701. Opinion Testimony by Lay Witness

 Lay witnesses are not allowed to give opinion testimony.
o They are confined to factual statements.
 If the witness testimony is in the form of opinion or inferences, it is limited to those
which are
o (a) rationally based on the perception of the witness, and
o (b) helpful to a clear understanding of the witness’ testimony or determination of
a fact in issue, and
o (c) not based on scientific, technical or other specialized knowledge under 702.

Example of questionable testimony.

 i.e. “He was DRUNK”
o This could be shown in other ways like testifying to how many drinks he had,
how was his speech, how was his walking.
 But 701 provides exceptions to get things like this in.
 No set list of what things will or will not fall under this test, but it is pretty open.
 General idea is that facts are preferred, but opinions are ok.
 Trial judges have discretion.
o The more inference laden and conclusive a witness’s statement is, the more likely
it is to be his opinion.
o Judge should balance considerations against how helpful the testimony is.

Tanner v. United States

 Rule 606(b) prevented juror testimony on issues of drug use and other crazy shit that
went on in the jury room;
o It was not considered “extraneous prejudicial information” or “outside influence”
 Other protections of a competent jury were enough to protect, but we want to protect the
 sanctity of jurors minds and opinions.

[[ SEE MEG: WITNESS COMPETENCY HANDOUT ]]

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FRE: 702-706, 201

(Expert Witnesses and Judicial Notice)

** Read Advisory Committee notes on 702 carefully**

702. Expert Opinion

 Scientific, technical or other specialized knowledge;
 Which must assist the trier of fact in understanding evidence or determining a fact in
issue;
 The witness must be qualified as an expert by;
o Knowledge,
o Skill,
o Experience,
o Training, or
o Education;
 If so, witness can give opinion testimony if:
o The opinion is supported by sufficient facts or data; and
o The opinion is based on reliable principals and methods;
o Which they have reliably applied to the facts of the case.

Normally we leave it to the jury to decide facts, but we make an exception for experts who are
testifying to facts to assist them.
 Judge has discretion in deciding whether the expert’s testimony is qualified as specialized
or technical; and if it is helpful will usually let it come in.

After you have built up your expert’s qualifications, opposing counsel can voir dire the expert to
try to cast doubt upon their qualification as an expert.

In general, you see the court telling the expert that they can’t tell the jury what finding of fact
conclusion they are supposed to reach.
 Very fine line b/w what is an element and what is not.

Cases
 Frye: “general acceptance” in the particular field in which it belongs.
o Minority of state’s still use this test.
 Daubert: “evaluate the scientific method and application of method to the facts of the
case.”
o Focus for determining if evidence is “scientific” is on the principles embraced and
the methodology employed;
 Not on the conclusions generated
 o General acceptance is now a factor, but not the only factor.
 There are several other factors which weigh in on whether the principals
are reliable.
 Testability of the expert’s hypothesis,
 Peer review,
 Potential Rate of Error
 Careful Standards and Controls
 Acceptance by other technicians in the field
 Replication of results
 Whether the scientific or technical evidence was developed
especially for litigation,
 Whether alternative explanations are adequately addressed and
accounted for, and
 Depth of the expert’s knowledge and experience
 Etc.
o Places heavy responsibility on the judge in their “gatekeeping” role.
 Can use a 403 balancing test.
 Kumho: extended the Daubert approach to all types of expertise, not just scientific.
o “Technical or other specialized knowledge” should be judged under a Daubert
standard; however
 Some of the factors will change or have different weight.
 Scheffer v. United States
o Supreme Court case Scheffer says that criminal defendants do not have a right to
introduce a polygraph test showing that they didn’t lie or do the crime.
 Doesn’t mean that they can’t, just means that it is up to the states to decide
whether or not it should come in.
o Courts still struggle with this and other issues under 702.

In the end, assuming the topic that the expert will testify in is appropriate, the judge must make 4
related inquiries when deciding whether to admit the testimony of an expert proffered to share
scientific, technical or other specialized knowledge.
1. Judge must be satisfied that the witness has the necessary expertise;
2. The principles, data, scientific laws, or studies that underlie the expert’s testimony must
be sound;
3. The methodology or application of these principles must be acceptable; and
4. The expert’s conclusions or inferences must have sufficient probative value on the issue
before the court to be helpful.

Specific Types of Evidence

 DNA
o Generally accepted, but be careful of testing samples and whether the defendant is
a member of a discrete or insular group, when all suspects also come from the
group.
 Polygraph Tests
o Many courts are split on the issue, the majority holds polygraph tests “per se”
inadmissible, but the trend is starting to change towards admissibility.
  Syndrome Testimony
o Courts generally allow this type of testimony for:
 Battered Spouse syndrome
 Child sexual abuse syndrome
 Rape syndrome

Reasons why identifications/line-ups can be wrong

 Bad conditions
 Bad memory
 Filling in details that may not correspond
 Procedures that are used
o Person conducting exam should always inform that the person may not be among
the group
o Want the guys around them to be similar in appearance

Rule 703. Bases of Opinion or Testimony by Experts

 Facts or data, which the expert bases an opinion on, can be those perceived or made
known “at or before” the hearing.
 Experts can rely on:
1. Firsthand knowledge or observations or examinations
2. Facts learned prior to trial by studying medical records or consulting with others;
3. Facts or data learned at trial (i.e. admitted evidence)
4. Facts or data not admitted into evidence if of a type reasonably relied upon by
experts in the field.
5. The use of hypothetical situations on the stand.
 Don’t need to be admissible as evidence in order for the expert to rely upon them in
making their opinion or inference.
o i.e. Expert opinion may be based on hearsay or other inadmissible evidence.
 But, if the facts or data are otherwise inadmissible, they shall not be disclosed to the jury
by the proponent of the opinion or inference; unless court determines probative value
“substantially outweighs prejudicial effect.”
o Substantially outweighs is a stringent test which takes into consideration 2
factors:
 1) How much will the jury be aided if the inadmissible underlying facts
are revealed.
 2) What is the likelihood of the jury improperly using the underlying
materials not only to evaluate the expert’s opinion, but also for the truth of
the assertions contained within them.

Not about the sufficiency of the data (702); but the “source of the data.”

Rule 704. Opinion on Ultimate Issue

 Expert can give their opinion as provided by the other rules, even if it goes to the ultimate
issue of the case to be decided by the trier of fact;
 Except they cannot testify in criminal cases with respect to whether the defendant had a
 mental state or condition constituting an element of the crime or a defense thereto..
 i.e. situations where there is an insanity defense in a criminal case or other
mental element

Rule 705. Disclosure of Facts or Data Underlying the Opinion

 Disclosure of the underlying facts or data used by the expert to reach the basis of their
opinion need not precede the opinion or inferences given, but
o The court can require them to do so, and
o When the expert is cross-examined it can be brought in by the opposing party.

Rule 706 - Court appointed Experts

 Court can appoint an expert, but usually they only do it when the judge is having trouble
understanding and issue.
o Never really happens in cases of indigent clients who need experts for their case.

Rule 201. Judicial Notice of Adjudicative Facts

 Judicially noted fact must be one not subject to reasonable dispute; and
 2 types of facts which are capable of being judicially noticed:
o 1) Generally known facts,
 within the territorial jurisdiction of the court,
o 2) Capable of accurate and ready determination
 By resort to sources whose accuracy cannot reasonably be disputed.
 Discretionary notice
o Court can take judicial notice on its own initiative.
 Mandatory notice
o It must take judicial notice if a party requests and makes a showing of the
necessary information.
 But either party gets a chance to rebut the propriety of taking judicial notice and the tenor
of the matter noticed.
o (e) Opportunity to be heard - Court holds a 104(a) hearing and decides whether or
not evidence is subject to a reasonable dispute…
o If they decide it is not subject to reasonable dispute, than the party it has decided
against has lost 104(a) hearing and the court judicially notices the fact, and losing
party is done.
 May be noticed at any stage of the proceeding.
 Civil vs. Criminal contexts
o In a civil case the jury will be instructed that the judicially noticed fact is true.
o In criminal cases the court will instruct the jury that it may take the judicially
noticed fact to be true, but that it doesn’t have to.
 (Not so in criminal cases – the jury is the sole trier of fact regarding
whether or not the government has proven its case.)
 Note – this Rule only applies to Adjudicative Facts, the facts that collectively make up
the litigated event.
o “Legislative Facts” are related to the disputed transaction, but only in the sense
that they constitute the context or background in which the case at hand arose and
will be resolved.
  i.e. explicit determinations about the environment or background.
 Courts, especially appellate courts, will and can take judicial notice of legislative facts
o The standard the courts use is not the “beyond-reasonable-dispute” standard.
o Instead, they use a less stringent standard of probability (i.e. more likely than not).

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FRE: 501
Attorney-Client Privilege & Marital/Spousal Privilege

Rule 501: Privilege (General Rule)

Except as otherwise provided . . . the privilege of a witness, person, government, State or
political subdivision thereof, shall be governed by the principles of common law as they may be
interpreted by the courts of the U.S. in the light of reason and experience.
 However, in civil actions and proceedings, with respect to an element of a claim or
defense as to which State law applies the rule of decision, the privilege of a witness,
person, government, State or political subdivision thereof shall be determined in
accordance with State law.
o i.e. Erie doctrine application to diversity cases.

General principles of privilege:

 The right to claim a privilege belongs exclusively to the person or persons for whom the
privilege was created – the holder(s).
o Nonetheless, the privilege may sometimes be claimed by a person who asserts the
privilege on behalf of the holder, for the holders benefit.
o i.e. an agent or representative.
o And in other circumstances, the judge may be allowed to invoke the privilege on
the absent holder’s behalf.
 Apply both during discovery and trial
 Most protect only confidential “communications;”
o They do not insulate from discovery or disclosure at the trial events or facts that
are the subject of these communications
 Cost of recognizing a privilege is that it may deny to the trier of fact key information
about the facts of the case.
o On appeal, a judges erroneous denial of a privilege to a witness besides the
defendant will not cause reversal for the Defendant; but
o The erroneous grant of a privilege to other than the Defendant is grounds for
reversal.
 Privileges may be waived.
o Either expressly or by implication.
 All privileges have exceptions – situations in which they do not apply.
o (Ex. Pending death/bodily harm through subsequent crimes)
 Rationale is to promote policies completely separate from the “truth” scheme of a trial.
1) Promote full and frank discussion.
2) Protect certain relationships and help them flourish.
3) Promote values of adversary system.
 4) Protects privacy (the dignitary value in privacy).

Attorney-Client Privilege
 Recognized in every state as a privilege to protect “communications” between and
attorney and his client(s).
o Includes communications among and between various representatives of each
attorney and client.
o One qualifies as a “representative” only if engaged to assist the lawyer in the
rendition of professional legal services.
 Must be either communicating to the lawyer or the client (or their representatives) for the
purpose of assisting the lawyer in delivering legal services.
 Availability of privilege does not depend on the payment of legal fees.
o Key factor is the purpose of the consultation.
 Privilege does not apply to letters, documents, or other inscribed items that were not
prepared for the purpose of facilitating legal services.
 Protection of a client’s identity can be justified under the privilege, but is not usually.
 Scope of the Privilege for Corporate Clients
o “Subject-Matter test” is prevailing view and federal view
o Privilege can be waived only by management,
o On a proper factual showing, sometimes the board of directors can lose control of
the privilege.
 i.e. shareholder derivative suits.
 “Crime-Fraud” exception
o Applies if the client is going to commit future harm.
 When several clients retain a lawyer
o Both/all clients hold the privilege against outsiders,
 Most courts allow each client to control the waiver of their own
communication to the extent that it does not reveal the content of the non-
waiving parties confidential communications.
o Against each other, the privilege is lost.

Spousal Privilege

[[ See Spousal Privilege handout ]]

Most states have an exception to Trammel in domestic abuse cases.

 Maryland has the one free slap rule, where abused spouse has one opportunity to testify,
but must after that.

Note – Rule 505 proposed privilege is not accurate of the common law.
 All others are.
Exam
o 40 multiple choice questions
o 1.8 a piece
o 8 essay questions (all part of one fact pattern)
o About 13 minutes per
o Issue spotting and applying the law to the facts
o Don’t give a treatise on evidence law, just argue facts and make a prediction.
o 5 of the MC will come from CALI questions
o Read the questions and answers very carefully!!!

Major Areas & Themes

If you see out of court statements, think hearsay.
o Is it being offered for its truth
o Does it fall under exceptions or exemptions
o Distinguish between unavailability and

Character Evidence and Impeachment

o Three categories where it can come in
o If character is at issue
o Certain types admissible to impeach
o General bar against propensity, except under certain circumstances
 If D opens door
 To rebut
 Element of crime
o If it is admissible, how can/may you prove it
o Through opinion and reputation
o Specific instances
o Extrinsic evidence

If you see a document, start thinking authenticity, best evidence rule and hearsay problems.

________________________________________________________________________
________________________________________________________________________
Practice Exam

1)
o B
o 403, prejudice vs. probative value test

2)
o D
o This is propensity evidence, which cannot be admitted to show that D has a propensity to
kill
o 404. Generally not admissible to show conduct in conformity with action.
o Note – others could be excluded, but the question asks which most clearly should be
excluded.

3)
o B
o It can’t come in for its truth, because it is hearsay.
o It can come in as a prior inconsistent statement to impeach the witness.

4)
o C
o This is just hearsay. Can’t bring prior consistent statements if it meets the requirements of
Tome.

5)
o B
o Issues have to be the same in the former testimony and Brian would have no motive to
question her.
o 804(b) Must have had an opportunity and similar motive to develop testimony
under cross or redirect.

6)
o D
o Based on Rule 806
o Nadine’s is admissible because of present sense impression
o 806 makes clear that you can attack the character of a hearsay declarant,
o Carl is attacking Paula through Nadines testimony as to what Paula said.
o Note - It is not coming in as character evidence, it is coming in to impeach.

7)
o D
o Best evidence rule requires that the contract be brought in,
o There are no exceptions that fit
8)
o D
o This is not hearsay, because it is not being offered for the truth of the matter asserted, just
to show the act.
o It is the act of verbal significance.

9)
o D
o Because it is habit
o A is hearsay w/ no exception
o B & C are forms of character evidence which don’t come in Civil cases unless
character is at issue.

10)
o D
o Crimes that don’t directly relate to truthfulness need extra requirements, which this does
not meet, and even after that there is a balancing test, which this would not meet.

Essay Question
(a) Facts and communications
a. Court should sustain the objection
(b) Under 608, they can try to get in specific instances to impeach her character for
truthfulness.
a. The questioner must take Pats answer, they cannot offer extrinsic evidence if they
don’t like it.
(c) They cannot offer extrinsic evidence, so this stuff cannot come in.
a.
(d) This could potentially come in for impeachment as to her dishonesty, as long as the
co worker has a good idea of her reputation
a. Laziness would be inadmissible character evidence.
(e) Were debating notice
a. Won’t come in through business records or truth,
b. But there is a non hearsay purpose.