Touro 2019

EVIDENCE OUTLINE
General Principles
➢ The judge determines the admissibility of evidence
o trial judge is making a determination whether the trier of fact should be allowed to consider the ev-
idence
o evidence is inadmissible = jury will not hear an cannot consider this evidence
o evidence is admissible = the evidence may be considered by the jury
➢ One particular piece of evidence could give rise to multiple evidentiary issues
➢ Most of the federal rules of evidence are exclusionary rules
➢ NY has not adopted an evidence code
o The law is primarily common law with some statutory provisions and privileges in the CPLR
➢ FRE 101 – Scope
o The federal rules of evidence apply to federal court proceedings to the extent set forth in Rule 1101
▪ Primary application = federal district courts
➢ FRE 102 – Purpose and Construction
o The FRE shall be construed to secure fairness, to eliminate unjustifiable expense and delay, pro-
motion of growth and development of the law of evidence . . .
➢ FRE 1101 – Applicability of Rules
o (a) FRE apply in all federal courts (including appellate courts, magistrate courts, and bankruptcy
courts) – administrative agency hearings are NOT subject to the FRE
o (b) FRE apply the same way in civil cases and criminal cases
▪ unless rules states otherwise – sometimes special rule for criminal cases
▪ FRE applies the same way in jury cases and non jury cases
· Most of the time applied more strictly in a jury case, than a non jury case
o (c) Rule of privilege applies in ALL stages of all actions, cases, and proceedings
▪ privilege applies even in proceedings listed in (d)
o (d) – FRE inapplicable (exceptions):
▪ (1) preliminary questions of fact
· When the judge needs to decide a fact preliminary to admissibility of evidence (See
FRE 104(a)), the judge is not bound by the rules of evidence
o Although the judges questions will get answers that are not admissible under
the FRE, he can ask them to determine if he will admit the evidence
▪ (2) grand jury
· Criminal cases
o Grand jury is deciding whether to indict an individual
o Prosecutor can present evidence to the grand jury that would not be admissi-
ble under the FRE
▪ (3) Miscellaneous proceedings
· extradition or rendition
· preliminary examination in criminal cases
 o enough evidence to hold the D for further proceedings?
o motion for preliminary injunction
o administrative proceedings
o suppression
· granting or revoking probation
· issuance of arrest warrants or search warrants
· criminal summonses
· release on bail
· sentencing
· NOTE! – these are all pre-trial (besides sentencing)
o FRE apply at trial
o Major impact – hearsay is permitted!!!
➢ FRE 105 – Limited Admissibility (Limiting Instruction)
o Memorize - “When evidence which is admissible as to one party or for one purpose but not admis-
sible as to another party or for another purpose is admitted, the court, upon request, shall restrict
the evidence to its proper scope and instruct the jury accordingly”
o Notes on rule:
▪ Must make a request for a limiting instruction
· If no request, judge may give one anyway (not obligated to do so)
· However, if not requested, you cannot raise this issue on appeal
· The request must be specific and timely, in conformity with Rule 103(a)
▪ If attorney requests instruction, judge is obligated to instruct the jury that the evidence is
only admissible for X not Y.
▪ Timing of limiting instruction (judge discretion, either...)
· At the time the evidence is introduced, OR
o This choice is better
· Delay the limiting instruction until the end of the case, when the judge instructs the
jurors on the law
o Jurors are presumed to follow the judges instructions
o Application to 403
▪ Part of the court’s consideration in deciding whether to exclude evidence under 403 should
address an evaluation of the effectiveness of a limiting instruction
o NOTE! Limiting instructions may not be used in criminal trials when the D’s constitutional rights
are at issue – ex: the instruction cannot correct the admission of an involuntary confession

Relevance
➢ Relevance is the threshold standard
o For evidence to be admissible it must be relevant
➢ FRE 401 – Definition of “Relevant Evidence”
o Memorize – “Relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence”
o “Any tendency” = very lenient standard
▪ Has to be a logical relationship between evidence and fact of consequence

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 ▪ Standard = make a fact of consequence slightly more probable than not
o “Fact of consequence” = it matters, makes a difference
▪ Facts of consequence come from:
· Substantive law
o MOST come from substantive law
o What elements need to be proven?
· Witness credibility
o When a witness takes the stand, his credibility becomes a fact of conse-
quence
· Background evidence
o Background evidence of the controversy
▪ Ex: maps, charts, photographs, videotapes
o Want jury to have a real life view of the controversy between the parties
o Definition of relevance includes both direct and circumstantial evidence
▪ Direct Evidence
· Proves a fact of consequence by itself, do not need to draw any inferences
o Ex: “I saw D shoot the victim”
· Will always meet the definition of relevance
o However, might be excluded under 403
· If the direct evidence is oral, the only issue is whether the witness is credible
▪ Circumstantial Evidence
· Cannot by itself prove a fact of consequence, jury must draw inferences
o Ex: “I saw the D run from the scene of the crime with a gun”
▪ Need additional evidence that D was the one who in fact shot the
victim
· Circumstantial evidence is not always relevant because the logical connection is not
always clear
o The evidence may be too remote
o Ex: “I know D had a gun in his possession 2 months before the crime”
· Consciousness of guilt evidence
o Evidence that D fled from the scene of the crime, or changed his appearance
after the crime, or sought to kill an adverse witness
o This type of evidence leads to an inference that the D has a guilty mind or
guilty consciousness
▪ It is merely another inference to be drawn that the D committed the
crime a/k/a a piece of circumstantial evidence
▪ NOTE! Evidence may be direct about one fact and circumstantial about another
· Ex: “I saw D with a gun”
o direct with respect to the charge of weapons possession
o circumstantial with respect to the charge of murder
o For evidence to be relevant is does NOT have to be in dispute
o Evidence may be admitted on a conditional basis
▪ FRE 104(b) – Relevance conditioned on a fact
· Conditional relevance – evidence is admissible subject to connection
· The relevance of evidence X is conditioned on proof of fact Y

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 o Have to introduce Y first, to show that X will be relevant
o Lay a foundation
o The standard for review of relevance determinations by the appellate court = abuse of discretion
o Relevancy determinations must be contextual (determinations in context of all the other evidence
and facts of the case)
o Evidence might not be relevant because:
▪ The fact sought to be proved is of consequence, BUT there is not a sufficiently logical rela-
tionship - Kotsimpulos
▪ There is a sufficient logical relationship, but the fact is not of consequence – US v. Johnson
o Just because evidence is deemed relevant, does not mean it will be admissible, it may be excluded
under another exclusionary rule
o If evidence doesn’t serve any function, judge will exclude the evidence not on relevance grounds
(because it might be relevant) but on some other grounds (likely, FRE 403).
o Although evidence is not relevant at first, it might become relevant if D opens the door
▪ Ex: D charged with killing his wife
· D testifies that he was in grief after the accident and was a devoted spouse
· Evidence at issue – evidence that D had sexual affairs with another woman right af-
ter the accident – ADMISSIBLE
· Although this evidence is not originally relevant, it becomes relevant because the D
opened the door and will be admitted to rebut the testimony of D
o EXAMPLE:
▪ Δ convicted of stealing pork tenderloins. Δ argues that the meat found in his car was
planted and attempts to introduce evidence of a threat to fire him made to him by his man-
ager, to support the argument that meat was planted. INADMISSIBLE. The fact of conse-
quence was whether or not the meat was planted. Evidence of a threat being made is not a
logical connection that meat was planted or that it was planted by that individual. Evidence
must either prove planting or disprove planting. (State v. Kotsimpulos)
➢ FRE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
o All relevant evidence is admissible unless prohibited by some exclusionary rule (either in the FRE,
Constitution, Federal Rules of Criminal Procedure, etc.)
o Irrelevant evidence is not admissible, all relevant evidence will be admitted subject to specific
identified exceptions.
➢ FRE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
o Memorize – “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative evidence”
▪ Presumption of admissibility – NOT a straight balancing test
o Question to ask – Is the need for the evidence so strong, so as to outweigh the harm that could re-
sult from admission?
o Rationale
▪ Certain relevant evidence should not be admitted to the trier of fact where the admission
would result in an adverse effect upon the effectiveness or integrity of the fact finding
process.
o Unfair prejudice – danger of a verdict based on an improper basis

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 ▪ Doesn’t refer to any evidence that is prejudicial to a party’s case – damaging evidence is
inherently prejudicial to a D
▪ The rule deals with unfair prejudice
· Evidence might result in an improper, usually irrational, basis for a jury decision
· Usually entails appeals to the jury’s emotions
o Confusion of the issues or misleading the jury
▪ Exclusion is justified where the offered evidence would require the tier of fact to engage in
intricate, extraordinary or impossible mental gymnastics in order to comprehend the import
of the evidence to assess its weight
▪ If the jury is likely to give excessive or unwarranted weight to the evidence, it will be ex-
cluded under 403
▪ If evidence is too remote it may be excluded under 403
· Although it might be relevant, the more remote it is, the lower its probative value,
and more likely to be excluded under 403
▪ If there is an extremely confusing limiting instruction, the evidence might be excluded
▪ Mere possibility of confusion is not enough to exclude the evidence
▪ Scientific evidence might mislead or confuse the jurors
o Undue delay, waste of time, or needless presentation of cumulative evidence
▪ These three are very similar and usually grouped together
▪ General Rule – evidence may not be excluded solely to avoid delay
▪ 403 can be the basis for limiting: the number of witnesses to prove a fact, repetitious evi-
dence, as well as evidence which represents an inefficient use of the court’s time when
compared to its probative value
o Surprise
▪ Not included in the Rule
▪ McCormick & Prof.
· Testimony which results in surprise may be excluded if the surprise would require a
continuance causing undue delay or if surprise is coupled with the danger of preju-
dice and confusion of issues
▪ Wigmore & Weissenberger
· The granting of a continuance is the more appropriate remedy than exclusion of the
evidence
o The party opposing the admission of the evidence has the burden of proof
o Probative value = the strength of the evidence, how strong is the evidence for proving a particular
fact of consequence
▪ Probative probability = how probable is it that this piece of evidence will prove the fact of
consequence
▪ Probative value is contextual – must look at all the other evidence admitted in the case
o Limiting instruction applies to 403
▪ Where the use of a limiting instruction will not do anything, the evidence may be excluded
under 403
o When applying FRE 403, the judge should consider alternate means by which the fact could be
proven or established. If the fact can be established without the risk of prejudice, confusion, etc.
the trial court should compel use of alternate method of proof.
o EXAMPLE:

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 ▪ Δ at murder trial admits to killing wife but claims shooting was an accident. Prosecutor
wants to introduce photos of a murder scene during trial. Δ admits that they are relevant,
but objects to introduction of photos on grounds that the photos would unfairly prejudice
the jury. ADMISSIBLE. FRE 403 is not meant to “even out” the weight of evidence but
rather permits the judge to preserve fairness. Relevant evidence will be inherently prejudi-
cial. Photos were relevant to establish prosecutor’s proposition that shooting was not acci-
dental. (United States v. McRae)
➢ Old Chief v. United States (5-4 decision)
o D wanted to stipulate to the fact that he was a convicted felon to fall within a certain legal status
that was at issue in the case. P wanted to admitted evidence to prove this conviction
▪ The stipulation has no effect on the relevance of the evidence – doesn’t have to be a dis-
puted fact to be relevant
▪ However, the stipulation has an effect on the 403 evaluation
· Now, the probative value is much less
o Normally, the government is entitled to prove its case by evidence of its own choice and a D may
not stipulate or admit his way out of the full evidentiary force of the case
▪ BUT, in this particular case the evidence should have been excluded
▪ This case is unique, all the jury needed to know is that the D fell within a certain legal sta-
tus to fall within the statute
· D was willing to stipulate to the fact that he is a convicted felon
· The stipulation is virtually the same as the record of conviction would be
o The proof of the prior conviction doesn’t add any probative value
· On the other hand, if the prosecution introduces the record of the prior conviction
there is a substantial danger of unfair prejudice
o Might lead to the jury to think that D is a dangerous person and convict him
on the prior case as opposed to the present crime charged
o The probative value of the record of conviction was substantially outweighed by the unfair preju-
dice, given the Ds stipulation that he was convicted of a felony
o Holding limited to stipulations that deal with the Ds status, in ANY other circumstance, the prose-
cutor does not have to accept the stipulation.
▪ The prosecutor has a right to prove his case beyond a reasonable doubt by any way he de-
sires, to tell a “continuous story”
➢ Missing Witness Charge
o Failure to introduce evidence
o Missing Witness Charge = You may infer that if P had called X to the stand, his testimony would
be damaging to P
o Elements:
▪ Witness who has relevant evidence
▪ Potential witness is under control of a particular party to the litigation
▪ Party who has control has not given a valid excuse for not calling the witness
o NY courts favor the missing witness charge
o Federal courts have authority but are more reluctant to do so
➢ Adverse Inference Charge
o Spoliation – party destroys or allows the evidence to be destroyed

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 o Adverse Inference Charge = you may infer that if the evidence had been admitted it would have
been adverse to a particular party
▪ up to jury whether to draw the adverse inference or not
o Elements:
▪ Party has control over the evidence
▪ Does the party have an obligation to preserve the evidence
· When party knew or reasonably should have known that the evidence was relevant
to the case
▪ Fault on the party responsible for the destruction of the evidence
· Jurisdictional difference – might need intentional, gross negligence, or even just
negligence
➢ FRE 404(b) – Character Evidence Not Admissible to Prove Conduct – “Other crime, wrongs, or
acts”
o Memorize – “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith”
▪ It may however be admissible for other purposes, such as:
· Proof of motive, opportunity, intent (most common), preparation, plan, knowledge,
identity, absence of mistake or accident
· NOT an exclusive list
o Ex: other act to prove consciousness of guilt (US v. Van Metre)
▪ Upon request of the accused in a criminal case, the prosecution shall provide reasonable
notice in advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial.
o Applicable to all parties
▪ Therefore, the rule prevents the accused from introducing evidence of extrinsic good acts to
show action in conformity with the accused’s good character on the occasion in question.
o Intent
▪ Intent = an awareness of the criminality of an act and a desire to achieve the particular
criminal act
· Compare, knowledge = only an awareness of the criminality of the act
▪ In order to introduce other act evidence to prove intent:
· Ds intent must be an element of the crime, AND
o IF the prosecutor has already proved that the D engaged in the conduct, then
intent has already be proved and other act evidence will be inadmissible
· Ds conduct is ambiguous in relationship to the Ds intent
o When you look at the conduct, it is ambiguous what the Ds intent was
o Ex – having a TV in your trunk
· ALSO, need to prove a degree of similarity between the extrinsic act and the
charged act
o Motive
▪ The reason that nudges the will and prods the mind to indulge the criminal intent
▪ The act should demonstrate that the accused possesses a specific reason to commit the
crime charged
▪ Question of relevance and logic
o Plan

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 ▪ Defined as being a common plan or scheme
▪ Very narrow concept
· The D has engaged in two or more acts (a series of acts) that are so closely related
that realistically for the prosecutor to prove the crime in question the prosecutor has
to show other acts
o Usually linked by a specific goal
o Two events must be “inextricably related”
▪ Other act evidence to show plan, NOT admissible when:
· Offered to show plan to commit a criminal act
o This would be the same as other act evidence
· Offered to show plan to commit a particular type of crime (plan to be a drug dealer)
o This would be the same as other act evidence
▪ EXAMPLES:
· D charged with bank robbery, 3 weeks prior there is evidence that D stole janitors
keys – ADMISSIBLE
o Two acts are linked by a specific goal of accomplishing the bank robbery
o Theft of keys might also go to “opportunity” to rob the bank
· D charge with intent to sell drugs, evidence that D possessed drugs on 5 prior occa-
sions – INADMISSIBLE
o Too general, tends to show character or disposition
o Identity
▪ Becomes an issue when D says, “I am not the one who committed the crime”
▪ There is something unique about how the crime was committed
· Signature crime
▪ Evidence that the D has used a distinct method in prior crimes
· Admissible – likely that it is the same person
o Opportunity – entails the capacity to commit the crime
o Substantial similarity
▪ Not included in rule (but in sum and substance CDs)
▪ The other act must be substantially similar to the act in question
▪ The more similar they are, the higher the probative value and more likely that it will be ad-
mitted
o POLICY – if the jury hears evidence of prior acts, they might convict for the wrong reason, want
the D to be on trial for the crime charged, not prior acts
o 404(b) only applies to extrinsic evidence, “bad acts” evidence is NOT extrinsic, if it is:
▪ an uncharged offense which arose out of the same transaction or series of transactions as
the charged offense,
· both acts are part of a single criminal episode
▪ necessary to complete the story of the crime, or
▪ inextricably intertwined with the evidence regarding the charged offense
▪ NOTE! This evidence would be considered intrinsic
· Doesn’t trigger the 404(b) exclusionary rule
o Doctrine of Chances
▪ The more often an accident or infrequent incident occurs, the more likely it is that its subse-
quent reoccurrence is not accident or fortuitous

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 ▪ Where prior acts of apparent coincidence are similar, the repeated reoccurrence of such an
act takes on increasing relevance to support the proposition that there is an absence of mis-
take
o Not limited to criminal cases
▪ Civil – evidence of extrinsic acts may be offered to show that notice was provided to a D
that a dangerous condition or nuisance existed.
o Not limited to prior similar acts
▪ It could be evidence of similar conduct that occurred after the incident in question
▪ However, most often the evidence deals with prior acts
o Should give a limiting instruction (FRE 105) when admitting other act evidence
▪ “Cannot consider the evidence relating to D’s character but can consider the evidence to
another issue, such as D’s intent to commit the crime”
o Prosecutor (as the proponent) has the burden of proof
o For other act evidence to be admitted under one of the exceptions, the court must determine
whether the jury could reasonably find the conditional fact by a preponderance of the evidence, not
that the court itself find that the preponderance has been met.
▪ Don’t need a preliminary determination as to admissibility under 104(a).
o If the D is acquitted of a prior act, the prior act may still be admitted into evidence
▪ Reasoning – the acquittal only means that the prosecution wasn’t able to prove that the act
occurred beyond a reasonable doubt, it doesn’t mean that the act didn’t occur
▪ D cannot put forth evidence that he was actually acquitted – not relevant, many reasons
why D could have been acquitted
▪ NY – if D is in fact criminally charged and acquitted, then that is the end of it, cannot be
introduced in a subsequent case
· Fundamental fairness principal
o NY – Malino/Zackowitz Rule
▪ Other act evidence not admissible
▪ Collateral estoppel, if acquitted
o If D places his character into issue, the prosecutor may introduce prior acts on cross-examination
of a character witness, however a prosecutor may NOT introduce other act evidence in his case in
chief
▪ EXAMPLE: Δ on trial for transporting a stolen car over state lines. During trial, Δ
presents son as a direct witness of Δ purchasing car. Prosecutor on cross-examination in-
troduces evidence of Δ’s prior convictions for the same crime. INADMISSIBLE. Had the
Δ made his son a character witness, prosecutor could rebut using prior convictions, but a
prosecutor cannot make an eye witness a character witness when the Δ did not place his
character into question.
➢ FRE 413, 414, 415 – 404(b) does not apply to sexual offense and child molestation cases
o Evidence of other acts of sexual assault are admissible to prove the Ds character or disposition
▪ But still need to satisfy 401 and 403
o POLICY – make it easier for a P or prosecutor to prove their case
▪ importance of allegations of sexual assault and child molestation
▪ often difficult to prove the case
· Most of the time it comes down to one person
· One’s word against the other – “a swearing contest”

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 o FRE 413 – Evidence of Similar Crimes in Sexual Assault Cases
▪ deals with admissibility of other act evidence in sexual assault cases
▪ 15 days notice
▪ disclose what W will testify to
o FRE 414 – Evidence of Similar Crimes in Child Molestation Cases
▪ deals with admissibility of other act evidence in criminal prosecutions of child molestation
o FRE 415 – Evidence of Similar Acts in CIVIL Cases Concerning Sexual Assault or Child
Molestation
▪ deals with admissibility of other act evidence in civil cases where there are allegations of
sexual assault or child molestation
o These rules are constitutional because they do not mandate admissibility, they are still subject to
401 and 403
▪ However, it sends a clear legislative intent to the trial judge that acts under these three rules
should be considered highly probative and usually admitted under 403.
o Notice
▪ Under these three rules the government must disclose the evidence to the D 15 days before
trial
o These 3 rules ONLY override 404(b)!!!
▪ Therefore, the other act evidence may be excluded on any other ground, such as relevancy,
403, hearsay, etc.
➢ FRE 404(a) – Character Evidence Generally – criminal cases ONLY
o “Evidence of a person’s character or trait of character is NOT admissible for the purpose of prov-
ing action in conformity therewith on a particular occasion, except:”
▪ (1) Character of accused
▪ (2) Character of alleged victim
▪ (3) Character of witness
· evidence of character of a witness is governed by rules 607, 608, and 609
o Rationale
▪ The law is not concerned with the type of person the individual is, the law is concerned
with whether this individual engaged in particular conduct on a particular occasion
▪ Character evidence has a low probative value and has a high potential for unfair prejudice
▪ Don’t want jurors making decisions solely on a Ds character
o character or disposition = the make up of an individual (internal)
▪ propensity to act a certain way
▪ honest or dishonest person
▪ violent or peaceful person
▪ humble or arrogant person
o NY – law abiding is specific enough to be a character trait
o When character evidence is offered to establish consequential facts, other than conforming con-
duct, the character evidence is admissible
▪ “Character in issue” – where character or a trait of character is an essential element of a
crime, claim or defense, character is in issue, and not excluded under 404(a) (as mandated
by the substantive law) – See 405(b)

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 ▪ Example – Evidence of a victim’s character may be relevant not by showing any conform-
ing conduct, BUT rather by showing that accused’s reasonable reaction to the character
trait known to the accused.
o Methods of proving character – See FRE 405
o If D testifies on his own behalf, then D becomes a witness, then he has placed his credibility at is-
sue, as well as his character – certain aspects of the accused’s character are now fair game, pur-
suant to Rules 608 & 609
o (a)(1) – Character of accused
▪ The D (the accused) may introduce evidence that he has a good character for a pertinent
trait to convince the jury that there is a reasonable doubt that he committed the crime in
question (most effective when the prosecutions case is based mainly on circumstantial evi-
dence)
· Then, the prosecutor can come back and seek to rebut that evidence of good charac-
ter with evidence of bad character
o The rebuttal of the character of D is limited to the trait or traits intro-
duced by the D, the D doesn’t open the door to any and all evidence of his
character
· “D opens the door”
o risky – prosecutor is now going to introduce evidence of Ds bad character
· The prosecutor may never introduce character evidence in his case in chief
o It is the Ds decision if he wants to make character an issue
o If he does, now the prosecutor can present his own witness to rebut Ds prof-
fer of good character with one of bad character
· Usually it is in the criminal Ds interest to keep the character trait narrow
o Then on rebuttal the prosecutor is limited to that narrow character trait
▪ The Government may prove a character trait of the of the accused, if the accused first intro-
duces “the same trait of character” in his alleged victim to prove the conduct of the victim
on a particular occasion (under 404(a)(2))
· Example – If a man accused of assault claims self-defense and offers evidence of
his alleged victim’s violent character, the prosecutor can respond with rebuttal evi-
dence to show the accused had a reputation for violence to show that he was actu-
ally the first aggressor.
▪ Rationale
· A criminal D should have every opportunity to disprove guilt
· When D introduces a character trait, the risk of prejudice is subject to the control of
the accused – D must engage in a cost/benefit analysis
o NOTE! – character evidence is admissible in civil cases (rule doesn’t apply to civil cases)
▪ “accused” = criminal D
▪ advisory committee notes & SEC v. Towers Financial
o (a)(2) – Character of the alleged victim
▪ applies only in a homicide prosecution
▪ If D introduces character evidence (reputation or opinion) that the victim has a character
for being a violent individual, then...
· the government can introduce evidence about the victim’s peaceful disposition
AND
· introduce character evidence that the D had a violent character.

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 · NOTE! especially risky for D to introduce character evidence of the victim
o D opens the door to rebuttal as to victim’s character AND the prosecution
can now introduce evidence of D’s bad character
▪ Rationale – the victim is dead, can’t get his testimony, need more information and evi-
dence
▪ Even if the accused offers no evidence about the character of the victim, he will still open
the door to allow the prosecution to offer such evidence if he raises a claim of self-defense
or offers evidence that the deceased was in fact the first aggressor
· Now, prosecution has a right to offer rebuttal evidence that the victim was a person
of peaceful character, even though D did not specifically make the victim’s charac-
ter an issue
▪ Criminal D who is asserting self defense, might be asserting two different types of defenses
· 1) I did what I did because the victim was the first aggressor
o Then, 404(a)(2) allows D to introduce character evidence as to reputation or
opinion about the victim
▪ Evidence that victim is a violent and quarrelsome person
o Once the D introduces character evidence, now the P may introduce evi-
dence that the victim had a peaceful character
o This is an exception to the rule
o NY – evidence not allowed
· 2) I did what I did because I had a reasonable apprehension of imminent serious
physical harm
o Then, D may introduce evidence that the victim has the character of being a
violent quarrelsome type individual provided (only if) the D knew of the
victims character or disposition of being a quarrelsome individual at the
time of the incident.
▪ If D didn’t know about the victim’s character at the time he used
force, then this evidence would not be relevant when D makes this
type of self defense argument
▪ Shows reasonableness of believing that you are in imminent serious
physical harm
o NY – evidence allowed (same as FRE)
EXAMPLES:
· D seeks to introduce evidence that on a prior occasion, the victim engaged in an act
of violence
o NOT ADMISSIBLE for proving that victim was the first aggressor (#1
above)
▪ This evidence would only be proving character (prohibited by
404(b))
▪ Character can only be proven by a character witness who testifies to
reputation or opinion
▪ NO specific acts
o ADMISSIBLE for proving that D had a reasonable apprehension of immi-
nent serious harm (#2 above)
▪ Can ONLY be used for the second type of self defense claim

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 · In the first one, the only possible thing the specific act can
show is character or disposition – therefore, prohibited by
404(b)
▪ Specific act is relevant to the substantive law of self-defense
▪ P cannot introduce D’s bad character but he can in example #1
· STILL HAVE TO TAKE 403 INTO ACCOUNT
➢ FRE 405 – Methods of Proving Character
o (a) Reputation or opinion
▪ testimony as to reputation or opinion ONLY
▪ NO SPECIFIC ACTS
▪ On cross examination, inquiry is allowed into relevant specific instances of conduct (en-
gaged in by the D) – as long as the bad acts pertain to the relevant character trait and there
is a good faith basis for asking the question (factual support for asking the question)
· P can ask if the witness has heard any negative information in the community about
the D
o Prove character by calling a witness, called a character witness
▪ NY & common law – testify to reputation only
▪ FRE – reputation AND opinion
· Rationale – sometimes it was a close call by looking at reputation only
o Reputation = the collective opinion of the community
o Opinion = the witness’ personal view of the D
▪ Embraces both expert and lay opinion as to a person’s traits
o The proponent must “lay a foundation” (set up a background)
▪ Establishing certain prerequisites before the evidence in question may be admissible
▪ The witness needs to be in a position to give an opinion or reputation evidence
▪ Example:
· Do you know D?
· How long have you known her?
· Do you know what people in the community say about her?
o Good faith basis = (need a good faith basis on cross to ask about specific instances of conduct)
▪ evidentiary support for the question AND
▪ question must be asked about the Ds conduct that the community is likely to know about
o When the D makes the decision to introduce evidence of good character, it is risky
▪ P can put on their own character witness to rebut Ds witness, AND
▪ P can bring out the fact that D engaged in specific acts of conduct
o Character evidence must be a character trait that is relevant to the crime that is charged
▪ very similar to the definition of relevance – See FRE 401
▪ Examples:
· Peaceableness in a prosecution for a crime of violence
· Honesty for a theft charge
· Truthfulness for perjury or fraud
· Law abiding IS a permissible trait – always pertinent
▪ Examples of impertinent traits:
· Character as a good family man and a kind person in a prosecution for illegally
bringing an alien into the country

13
 ·Character for bravery and attention to duty in a prosecution for mail fraud and per-
jury
o Guilt-assuming hypotheticals
▪ NOT allowed on cross-examination
▪ Cannot ask “would your opinion of D change if he were guilty” or “are you aware that the
D is guilty of the crimes charged”
o Questions of prior arrests:
▪ Testimony of prior arrests may NOT be introduced to show wrongdoing (but can be admit-
ted for intent, plan motive, etc. – 404(b))
· An arrest is not probative of wrongdoing
· Many individuals who are innocent get arrested
· An arrest is only a type of acquisition
▪ However, a prior arrest is a permissible question on cross of character witness, but it must
relate to some crime that is similar to a particular character trait
· An arrest can impact on a persons reputation
o (b) Specific instances of conduct
▪ where character or a trait of character of a person is an essential element of a charge, claim,
or defense, proof may also be made of specific instances of that person’s conduct
· essential element = alters the rights and liabilities of the parties under the substan-
tive law
· Example:
o An assertion of damage to reputation in a libel case makes the P’s character
an issue under the substantive law
o Character isn’t an essential element in an overwhelming majority of civil cases
▪ substantive law doesn’t usually care about character
▪ examples when character is relevant under substantive law
· custody contest
o court concerned with character of individual
· car accident where the driver was not the owner of the car
o allegation is of entrustment to an incompetent person
· defamation
o character is relevant in terms of damages
o if defense is truth – substantive law cares about the character of the P
o Character isn’t an essential element in an overwhelming majority of criminal cases
▪ Normally not an issue, substantive criminal law isn’t concerned with what type of person
the D is, only concerned if the D engaged in the conduct alleged
▪ One situation where substantive criminal law is concerned with character
· When D alleges entrapment as a defense
· Defense will be unsuccessful if it is shown that the D was predisposed to engage in
the conduct at this specific time no matter what
o the fact that the drug agent offered the drugs for sale, doesn’t matter, D was
going to buy them anyway
➢ FRE 412 – Rape Shield Rule
o Intended to be a model rape shield statute

14
o Purpose – try to reconcile competing interests & try to encourage victims to come forward and re-
port sexual crimes
▪ Interests of victim – privacy, save embarrassment
▪ Criminal D – fair opportunity to present a defense
o (a)(2) evidence of the victim’s sexual predisposition (character) is NOT admissible
o (a)(1) evidence that the victim engaged in other sexual behavior is NOT admissible (other act evi-
dence)
o (b) Exceptions– specific evidence is admissible if... (AND has to pass through 401 and 403)
▪ (1)(A) physical evidence – evidence consists of sexual conduct between the victim and
someone other than the D in order to show that someone other than the D was the source of
the semen, source of victim’s physical injuries, or source of other physical evidence (hair)
· To show IDENTITY
· Has to be physical evidence (any physical evidence)
▪ (1)(B) victim’s past behavior – evidence of specific other sexual acts between the victim
and the D may be admissible to prove that the victim consented.
· To show CONSENT
o Statements by the alleged victim expressing an intent or desire to engage in
sexual contact with the accused would qualify for this exception
▪ (1)(C) constitutional violation – if the excluded evidence would violate the constitutional
rights of the D
· DUE PROCESS
· D needs a fair trial – need opportunity to introduce certain evidence
o Comes up most often with impeachment – need opportunity to show that the
alleged victim was biased or prejudiced
· Trial judge should be alerted to the fact that the evidence is so significant, that even
though it doesn’t fit in the first two categories, the D might be denied a fair trial
· Ex: evidence – victims other sexual acts with respect to her credibility
o D needs fair opportunity to attack credibility
▪ (2) – CIVIL cases
· same exclusionary rule, character evidence not admissible
· two possible exceptions:
o reputation only admissible if placed in controversy by the victim = (civil
P)
▪ P can introduce evidence of her good sexual reputation
▪ D can rebut, only if P puts sexual reputation at issue
o Evidence of other sexual conduct of P (the victim) - proponent (the D)
must show that the probative value of evidence substantially outweighs the
danger of harm to the victim and unfair prejudice to any party
▪ DIFFERENT from 403
· Titled towards inadmissibility (harder to get evidence in)
o Reverse 403 test – 403 presumes admissibility
· Requires the proponent of the evidence to demonstrate ad-
missibility, rather than the opponent of the evidence to justify
exclusion
o (c) Procedure to determine admissibility

15
 ▪ designed to protect privacy interest of victim
▪ 4 steps:
· D filed pre-trial motion 14 days before trial, unless good cause
· Must notify all the parties and the victim
· Before admission, there is an in camera hearing with all parties present
· All papers and records are sealed
o EVIDENCE IS NOT AUTOMATICALLY ADMISSIBLE, STILL SUBJECT TO 403
o Rape shield laws must be applied and construed to uphold the D’s constitutional rights
▪ Confrontation Clause (“CC”) – “In all criminal prosecutions the accused shall enjoy the
right…to be confronted with the witnesses against him” (6th Amendment)
▪ Summit v. State:
· D wanted to introduce evidence a prior sexual experience with the victim
o This is evidence is introduced solely to attack the witness’ credibility
o ADMISSIBLE for the limited purpose of attacking credibility
o D’s evidence shows that the victim had knowledge of the sexual act because
she engaged in them in the past
▪ Smith v. State:
· Testimony of ten witnesses, regarding alleged past false accusations by the victim
of sexual misconduct by men other than the D
· The evidence doesn’t involve the victim’s past sexual conduct, but rather the vic-
tim’s propensity to make false statements regarding sexual misconduct
o Therefore, not barred by rape-shield law
· Evidence attacks credibility – used for impeachment purposes
➢ FRE 406 – Habit; Routine Practice
o Evidence of habit or routine practice of an organization is admissible and relevant to prove con-
duct in conformity with the habit or routine practice
o Rule of admissibility
▪ NOT an exclusionary rule
▪ Doesn’t mean that all evidence of ones habit or routine practice is automatically admissible
· Still have to take 403 into account
o Habit = a regular response to a recurring set of substantially similar circumstances
▪ The doing of the habitual act may become semi-automatic
▪ Non-volitional acts
▪ Habitual acts have an almost instinctive quality
o Habit v. Character evidence:
▪ Character is general
· Examples – person is honest, or peaceful, etc.
▪ Habit is specific
· Habit – try to single out a specific set of circumstances where the person is always a
careful person
Examples:
· Walking down a stairway 2 steps at time
· Patronizing a particular pub after each day’s work
· Driving car without a seatbelt
· Never using a turning signal

16
 ▪ If the evidence doesn’t rise to the level of habit evidence, it will likely be considered
character or other act evidence
o Method of proving habit evidence:
▪ Courts are flexible – not specified in Rule 406
▪ Factors to determine if the evidence is habit evidence:
· How many situations
· Were the conditions substantially similar
· Period of time
▪ Habit evidence is admissible whether or not corroborated
· The testimony of one witness may be sufficient to prove habit
▪ Habit evidence may be admissible regardless of the presence of an eyewitness
▪ A specific stimulus and a corresponding response must be identified
· It is not enough to say that somebody drinks habitually because there is no stimulus
that can be associated with a semi-automatic response
▪ To testify to habit evidence, the witness needs personal knowledge of the occurrence of the
habit
o Evidence of business custom or routine practice offered to prove conforming conduct is generally
admissible
o Applies in civil and criminal cases
➢ FRE 407 – Subsequent Remedial Measures
o “When, after an injury or harm allegedly caused by an event, measures are taken that, if taken pre-
viously, would have made the injury or harm less likely to occur, evidence of the subsequent reme-
dial measures is NOT admissible to prove negligence, culpable conduct, a defect in a product, a
defect in a product’s design, or a need for a warning or instruction”
▪ In short – evidence of remedial measure is not admissible to show negligence, product li-
ability, or other culpable conduct
▪ NOTE! 407 applies to products liability cases
o Exceptions – evidence of subsequent measures are admissible when offered for another purpose
such as:
▪ Proving ownership
▪ Control
▪ Feasibility of precautionary measures (2 definitions):
· Not possible of being done – impossible
· It was possible, but it wasn’t workable
· NOTE! Courts are reluctant to admit evidence under the feasibility exception be-
cause it comes very close to negligence
▪ Impeachment
▪ 407 doesn’t apply to remedial measures taken by third parties
▪ NOTE! THE EXCEPTIONS ONLY APPLY IF THE ISSUE IS CONTROVERTED!
· Also, the exceptions only apply if the remedial action is probative of the contro-
verted consequential facts
▪ A subsequent remedial measure may be offered to directly contradict and impeach the cred-
ibility of a witness where the witness has testified as to the condition of the instrumentality
of the injury

17
 ▪ NOTE! If evidence is admitted under one of these exceptions, then you need a limiting in-
struction to tell the jury that the evidence cannot be considered for the issue of the Ds negli-
gence.
o POLICY
▪ Social policy of encouraging Ds to engage in remedial measures
· if you engage in the remedial measure, it wont be used against you
▪ the remedial measure is not particularly probative on wrongdoing on behalf of the D be-
cause the D may well have engaged in the remedial measure to be a more prudent measure
· may have just learned from experience
o Remedial measure = anything that occurs after the P’s injury which if it had occurred earlier would
have made the injury less likely to have occurred
▪ Examples: repair, design change, firing an employee, changing company rules and/or pro-
cedures, changing warnings on products, car manufacturer issues a recall
▪ Post-accident tests, analyses or studies are NOT considered subsequent remedial measures,
and therefore are admissible, if relevant
o The remedial measure must be subsequent to the accident, therefore, evidence of a design change
effected after manufacture but before the accident is NOT barred by Rule 407.
o If the remedial measure is ordered by the government, 407 does NOT apply
▪ Rationale doesn’t extend to this case – wouldn’t discourage people from taking subsequent
remedial measures
▪ Therefore, the subsequent remedial measure can be used to prove negligence, but only if
the subsequent remedial measure was ordered by the government
o NY Rule in products liability cases:
▪ Draws a distinction between 2 types of claims:
· Design defect
o Reasonable manufacturer wouldn’t have designed the product in this manner
o Substantially similar to negligence
o HERE, 407 applies
· Manufacturer defect
o There was an unintended abnormality in the manufacturing process
o The 407 exclusionary principal doesn’t apply
▪ True, strict liability claim – liability without fault
o Rationale
▪ Strict liability is intended to make it easier for the P to recover
▪ The evidence of the remedial measure that the P is introducing may
help the jury understand how the manufacturing defect came about
▪ Evidence of a subsequent remedial measure, not admissible in design defect, but is ad-
missible in a manufacturer defect case
· Admissible in manufacturer defect even to show negligence
➢ FRE 408 – Compromise and Offers to Compromise
o Evidence of settlement or offer to settle is NOT admissible to prove liability
o Broken down into 4 sentences
▪ 1) evidence of settlement (or compromise) or an offer to settle a claim that is disputed ei-
ther to validity or amount is not admissible when introduced for liability for the claim
· Evidence of:

18
 o (1) furnishing or offering or promising to furnish, OR
o (2) accepting or offering or promising to accept
▪ a valuable consideration in compromising or attempting to compro-
mise a claim which was disputed is NOT admissible
▪ 2) evidence of conduct or statements made in compromise negotiations is likewise not ad-
missible
· want to establish an atmosphere in which parties are able to discuss and negotiate
the possibility of settlement without the fear of any statements that are made could
be used against you.
▪ 3) Rule doesn’t apply to evidence otherwise discoverable merely because it is pre-
sented in the course of compromise negotiations
· distinguish between 2 types of documents
o prepared during negotiation settlements
o pre-existing documents
▪ rule applies here
▪ 4) Rule doesn’t apply when evidence is offered for another purpose (something besides lia-
bility), such as:
· Proving bias or prejudice of a witness
· negativing a contention of undue delay
· Proving an effort to obstruct a criminal investigation or prosecution
▪ NOTE! Exclusionary rules in #1 & 2 only apply when there is a DISPUTE
· Exclusionary rule cannot be invoked where settlement discussion relate to an
amount that is admittedly due
· Also, liability for the claim must be contested for the exclusionary rule to apply
o Rationale
▪ settlement of offer to settle is not probative of wrongful conduct
· may be motivated by other reasons
▪ Policy – encourages people to settle the claim
o Evidence of a compromise or settlement with a third party is NOT admissible to establish the va-
lidity of the claim, but IS admissible to prove possible bias and goes to the witness’ credibility
o Application of 408 in criminal cases
▪ Majority – evidence in a criminal case that an accused settled or attempted to settle a re-
lated civil case IS admissible
▪ 2d Cir – if the criminal D admits criminal liability in civil settlement negotiations, the ad-
mission of guilt is NOT admissible against the D in the criminal trial
o EXAMPLES:
▪ Δ calls a witness to the stand. Plaintiff wants to introduce evidence that the witness had set-
tles with the Δ for injuries arising out of the same accident to show that the witness is bi-
ased. PERMISSIBLE, but not automatically admitted, FRE 403 analysis and limiting in-
struction.
▪ A party may claim that the other side was delaying, the response would be that negotiations
were taking place. You can admit that negotiations were taking place without revealing the
content of the negotiations.
➢ FRE 409 – Payment of Medical and Similar Expenses
o Evidence of furnishing of offering or promising to pay medical, hospital, or similar expenses occa-
sioned by an injury is not admissible to prove liability for the injury

19
 o Rationale
▪ Sort of a good Samaritan rule
▪ Law is seeking to encourage individuals to act from humane impulses
o Rule only applies when the evidence is offered to prove liability, the evidence may be admissible if
offered for another purpose, as long as it is relevant
▪ Such as control, identity, responsibility, etc.
o Need a dispute
o Third parties are likewise covered under 409
o Only the offer or payment is covered by the rule, any statements made surrounding the offer or
payment are admissible
▪ Sometimes a certain part of a statement may be admissible but others will not
· “I was at fault, sorry, I will pay you $100”
· the “at fault” statement will be admissible, the payment statement will not be
o Doesn’t cover a situation where a car accident and P says “don’t worry I will pay the towing ex-
penses”
▪ This evidence would be admissible
▪ Doesn’t cover all humane gestures
· Only covers medical and similar expenses
o Motivation of party offering to pay is not part of the rule
▪ Insurance companies may often pay the hospital expenses to prevent the injuries from be-
coming aggravated, and then they will be liable for a greater amount
▪ Rule still applies
➢ Rule 410 – Inadmissibility of Pleas, Plea Discussions, and Related Statements
o Statements made by a criminal D during plea bargaining may not be introduced against the D dur-
ing trial to prove criminal liability
o Rationale – seek to encourage the settlement of criminal cases
▪ D should be able to speak during plea bargaining without fear of it being used against him
▪ Criminal corollary to FRE 408
o Usual scenario & application of the rule
▪ plea bargaining breaks down, no plea, the statements made by the criminal D are not ad-
missible against that individual who made the statements
o Applies in both criminal and civil cases
o Only applies when the plea bargaining is between the P and the D
▪ 3 scenarios when 410 will apply even though the statements were made to someone other
than the Prosecutor (ex: DEA agent) (US v. Greene)
· Actual authority – express
o If the DEA agent had authority delegated to him from the prosecutor then
Rule 410 exclusionary would apply
· Apparent authority – implied
o Not express but gave the agent the impression that he would have the ability
to engaged in plea bargaining negotiations
· Misrepresentation
o DEA agent represented to D that he had authority to enter into negotiations,
even though he didn’t
o Possibility – not sure if this would suffice for the exclusionary rule to apply

20
 o Uncertain part of the law of evidence
o NEED more – check with rule itself
o A criminal D can waive his rights under Rule 410 (US v. Mezzanatto)
▪ As long as the waiver is voluntary and intelligent and your attorney was present
▪ Implication – certain constitutional rights are waiveable
▪ Implication – when there are plea bargaining discussions, Prosecutors will now say that
they will only enter plea negotiations if the D agrees to waive protection under Rule 410
o Situations where the plea negotiations result in a guilty plea:
▪ This guilty plea is admissible in subsequent suits that are relevant
▪ Guilty plea = admission of guilt
· Admits all the facts and elements that are relevant to the crime to which the D is en-
tering plea
▪ Courts are sometimes hesitant to allow a guilty plea into evidence for a traffic violation
· Probably just made out of convenience
▪ If guilty plea is withdrawn, the original plea is inadmissible in subsequent suits
▪ Plea of nolo contendere
· Plea in which the D admits guilt for purposes of this case only
· Not admissible against the D in any subsequent criminal or civil litigation
o If you are being prosecuted for perjury, the rule does NOT apply
➢ FRE 411 – Liability Insurance
o Evidence that a party was covered by liability insurance, or not covered by liability insurance, is
not admissible for the purpose of proving the parties negligence or wrongful conduct
o Rule doesn’t exclude evidence when offered for another purpose, such as:
▪ Proof of agency
· Employment relationship
▪ Ownership or control
· You claim you didn’t own the property, but you took out a liability insurance policy
on the property
▪ Bias or prejudice of a witness
· Evidence to prove that the witness is employed by the insurance company that rep-
resents the D
· EXAMPLE:
o Δ calls a witness to the stand to impeach the testimony given by the P’s ex-
pert witness. Plaintiff wants to cross-examine the witness and show that
witness works for the insurance company that covers the Δ to prove that wit-
ness is biased. PERMISSIBLE. Subject to FRE 403 and a limiting instruc-
tion.
o The rule only specifies liability insurance, however, it also encompasses offers to show that P was
covered by health, disability, or accident insurance – collateral source rule
o Rationale
▪ Fact that D is covered is not probative to the fact that D was engaged in wrongful conduct
▪ Law of evidence is trying to avoid the jury from rendering a verdict on an improper basis
· Just let the insurance company pay, we don’t care if D was negligent or not, P was
injured should just recover

21
 · ALSO, prevent awarding huge damages because the insurance company is just go-
ing to pay for it
o Usually comes about in a negligence claim against the D
▪ P wants to show that D is covered by liability insurance
▪ D’s liability insurance is not admissible to show negligence
o If the evidence of liability insurance comes out accidentally, the judge will:
▪ If bad faith – declare a mistrial
▪ If no bad faith – instruct the jury to disregard the information
o Evidence does NOT need to be in dispute
▪ However, it if it isn’t in dispute, then its probative value is lower and it may be excluded
under 403

Objections, Offers of Proof, and Rulings

➢ FRE 103 – Rulings on Evidence
o (a)(1) Objections to admission of evidence
▪ For objection to be proper, it must be timely
· Timely = objection has to be made as soon as the basis for the objection becomes
apparent
· Documentary evidence – objection must be made when the evidence is sought to be
introduced
· Oral testimony – objection must be made right after the question is asked, before
the witness answers the question
o But there are some cases in which the basis for the objection is not apparent
until the witness answers the question
▪ In these cases, it is a timely objection to object after the answer is
given, because this is the time when the basis for the objection be-
comes apparent
▪ Also must state the specific ground for the objection
· Example – Objection! Hearsay, or leading question, or other act evidence, etc.
· Want the judge to have the information to evaluate the basis of the objection
· Also give opposing counsel an opportunity to challenge the objection
o (a)(2) Objections for the exclusion of evidence
▪ Must make an offer of proof which is making a making a record of the substance of the evi-
dence that the proponent is seeking to introduce
· This is the evidence I would have introduced
· Also set for the basis for the admission of the evidence
o Purpose – create a record that can be considered on appeal
▪ Where to do the offer of proof (timing):
· (c) Rule gives trial judge discretion as to where the offer of proof may occur, except
wherever possible it should take place away from the jurors
o Either at side bar or chambers
o If evidence involved is a confession which is claimed to be involuntary –
MUST be considered outside the presence of the jury

22
 ▪ To preserve the issue for appeal it is NOT necessary to renew your basis of the objection at
trial, as long as the judge makes a definitive ruling
· If it is tentative or contingent, then the evidentiary objection must be renewed at
trial to preserve the objection for appeal.
o Might depend upon the context of the trial and the other evidence admitted
during trial
· In practice – you should always renew the objection!!!
▪ How is the offer of proof made?
· Rule is silent, courts are flexible
· If evidence that has been excluded is a witnesses testimony, the proponent has to
make a record of the substance of what the witness would have testified to had he
been allowed to testify
o Could be in the form of a written statement or affidavit, counsel’s written or
oral statement, questioning the witness outside the presence of the jury on
the record
· Proponents obligation is to make a record of the substance of the witness’ testi-
mony that is being excluded
o Otherwise the appellate court will not be able to evaluate the correctness of
the trial courts determination.
· Ground that is stated at the trial court is the ONLY one that can be raised on appeal
o (d) Plain error – Exception to the principal that you must object properly
▪ Plain error = obvious error & serious error, effects a substantial right of a party
· In order to prevent a serious miscarriage of justice
▪ Even though there was no objection at trial (even if there was an objection but it wasn’t
proper) the evidentiary issue may be considered on appeal if the claim of evidentiary error
constitutes plain error
▪ On appeal, appellate counsel will argue that the issue should be considered under the plain
error doctrine if there was no objection at trial
➢ In order to contest the trial judge’s failure to give a limiting instruction it must be requested and must be
requested timely
o A timely objection is usually at the time when the evidence objected to is deemed admissible
o Judge has discretion as to when to give the instruction
➢ Motion in limine – “at the threshold”
o Procedural devise that allows a party to request from the trial judge a ruling on the admissibility of
the evidence before the outset of the trial
▪ Can be made during the trial but before this evidence comes up
o May be a motion to admit or exclude evidence
o An overruled motion in limine does not preserve the error, a trial objection is required
o If the motion is granted, the party against whom the exclusion operates must make an offer of porrf
in order to preserve error.
o Not in FRE
▪ But part of the practice of federal court judges
o Judges like this motion – judicial economy and deciding it in a setting that is more relaxed
o Only works for evidentiary issues that can be forecasted early on
➢ Standards of review

23
 o Most evidentiary rulings by the trial judge are based on an abuse of discretion standard on appeal
▪ Whenever the trial judge has discretion, this is the standard
▪ Tough standard for appellant to overcome
o Appellant might argue that the error came about as an erroneous legal ruling, as opposed to dis-
cretion by the judge
▪ Error as a matter of law
▪ IF SO, appellate court can review the objections de novo
o Most evidentiary decisions are viewed as decisions involving exercises of discretion
o Even if you convince the appellate court that there was an evidentiary error, appellate court needs
to determine if the error was prejudicial or whether it was harmless error
▪ Did the error effect a substantial right of the appellant?
▪ Harmless error vs. prejudicial error
· What is the likelihood that the result would have been different if this error had no
occurred?
▪ Can be harmless if there is plenty of other evidence, and D would have been found guilty
anyway
▪ Harmless error doctrine
· A way that the appellate court can acknowledge an error but still affirm the judg-
ment below
▪ Even a constitutional error can be harmless
· Example: Admissibility of involuntary confession
o Can have a case where it was erroneously admitted into evidence, but there
is overwhelming evidence of Ds guilt that the error was harmless error be-
yond a reasonable doubt.
· However, it was a structural error it CANNOT constitute harmless error
o Infect the entire structure of the trial
o Examples:
▪ Bias judge
▪ Total denial of right to counsel
▪ Failure of judge to give a reasonable doubt instruction to the jury
o So basic to a fair trial – can never be harmless
o Automatically prejudicial
o NOTE! Some procedural rules are different in NY than federal courts

Rule Against Hearsay

➢ HEARSAY = any statement that was made out of court that is sought to be introduced in court for the
purpose of the truth of the fact asserted in the statement
➢ FRE 802 – Hearsay Rule
o Hearsay is not admissible except as provided by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress
o Rationale for the rule:
▪ The inability of the opposing party to cross-examine the individual who made the out of
court statement at the time the out of court statement was made

24
 ▪ Out of court statements are not reliable
▪ Jury cannot observe the persons demeanor
➢ FRE 801 – Definitions:
o (a) Statement – a statement is:
▪ (1) an oral or written assertion OR
▪ (2) nonverbal conduct of a person, if it is intended by the person as an assertion
o (b) Declarant – a declarant is a person who makes a statement
▪ the rule against hearsay focuses on the declarant, not the witness
o (c) Hearsay – Is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.
o (d) Statements which are not hearsay = exemptions
➢ Hearsay has 3 elements:
o 1) Out of court statement
▪ any statement, other than one made by the witness on the stand
o 2) Declarant must have intended to make an assertion
▪ this element usually isn’t a problem
▪ 3 problem areas, see infra
o 3) Offered into evidence for the purpose of the truth of the fact asserted
▪ May be offered merely to prove that the statement was made, not the truth of the fact as-
serted, then it isn’t hearsay and admissible if it is relevant
➢ Hearsay Analysis:
o Is it an out of court statement?
▪ An be written or oral assertion, or conduct which is intended to be an assertion
o Is the statement being introduced to prove the truth of the fact asserted?
o Is it relevant?
o Is there an exception or exemption?
o Apply FRE 403
➢ Element 3 – Offered into evidence for the purpose of the truth of the fact asserted
o If the out of court statement is sought to be introduced not for the truth asserted, but to prove that
the out of court statement was made, then it is excluded from hearsay and is admissible, only if it
is relevant
▪ Merely to prove that the words were uttered
▪ The key is relevance – is the mere making of the statement, apart from its truth, relevant?
o Appropriate to give a limiting instruction
▪ Limit it to the mere fact that the statement was made, NOT the truth of the statement
o EXAMPLE:
▪ P sued the D for defamation. P says that the D made an out of court statement that de-
famed her. P calls a witness and is prepared to testify that the witness heard the D say
that P stole 3 books from the library
· D objects – hearsay
· P – defamation case – an element of the cause of action is to show that the D pub-
lished a statement.
o The mere making of the statement, apart from its truth, is relevant
o The substantive law makes this statement relevant

25
 o If an out of court statement is inadmissible under the rule of hearsay if given directly, it remains
inadmissible if the party attempts to introduce it indirectly (have the jury learn about the state-
ment indirectly)
▪ Court isn’t going to allow attempts to get around hearsay when the statement is not ad-
missible under hearsay
▪ P will ask the question in a certain way to avoid hearsay, but in essence the answer will
have to include inadmissible hearsay
· Indirectly it gets the message to the jury
▪ EXAMPLE
· Q – P asks witness what did Moore tell you about the robbery?
· A – Witness says, “Moore told me that D was involved in the robbery”
o HEARSAY! – inadmissible
· Q – P asks witness, “As a result of what Moore told you, what if anything did you
do?”
· A – Witness says, “I arrested D”
o Still HEARSAY
▪ The actual answer is not hearsay, but the court will treat it as
hearsay and exclude it
▪ In substance the person is testifying that Moore told me D was in-
volved in the robbery that is why I arrested him
➢ Categories of statements, which DO NOT come within the definition of hearsay:
o Doctrine of Verbal Acts
▪ The words are equivalent to conduct
· A verbalization (statement) that is treated by the law as if it was conduct
▪ Don’t care about the truth, the substantive law makes the mere fact that the words were
uttered important
· It cannot be offered to prove the truth of the fact asserted
▪ The mere fact that an individual makes a statement might be relevant under the
substantive law, and therefore is admissible
· Examples:
o Breach of K
▪ Witness testifies that he heard the offeree say “I accept”
o Offer to engage in prostitution
o Verbally exchanging marriage vows
o Defamation case
▪ Witness testifies to having heard declarant speak the defamatory
remark
o Criminal extortion, bribery, or fraud
o Police officers commands
o Solicitation of a person to commit murder
▪ Limiting instruction required
o Doctrine of Verbal Parts of Acts
▪ Conduct when looked at in isolation is ambiguous (unclear what it means)
▪ Substantive law says what gives the ambiguous conduct legal significance is the words
that accompany the language

26
 · Verbalization that is part of the conduct is what gives it legal significance
▪ When a party engages in conduct of ambiguous legal significance, introduce the state-
ment accompanying the act to clear up the ambiguity of the act because absent the utter-
ing of these words sought to be introduce, the act has no clear meaning
▪ Example:
· Give money to someone = ambiguous conduct
· But also say, “this is a gift” = legal significance
o Statement has independent legal significance
o Don’t care about truth of it, just the mere making of the statement is rele-
vant under the substantive law
▪ Limiting instruction required
o Impeachment by prior inconsistent statements
▪ Proponent of evidence states in an objection:
· “I am not seeking to introduce the statement to prove the truth of the out of court
statement. I am just seeking to introduce it because the making of the inconsistent
out of court statement is pertinent to the question of credibility of the witness.”
▪ Sole purpose is to show that the witness testified one way at trial but said the opposite
outside of trial
· Not trying to prove the truth of the statement, just showing that the witness made
an inconsistent statement outside of court, goes to witness’ credibility
· The inconsistency of the statements made by the witness, makes to statement rele-
vant to the witness’ credibility
o Mere making of the statement proves state of mind of the person who heard the statement
▪ Must determine relevance – does the substantive law care about the state of mind of the
person who heard the out of court statement?
▪ Example:
· D on trial for murder wants to introduce evidence that prior to him killing his
wife, someone told him his wife was cheating on him.
· This goes to the state of mind of the D – the substantive law cares about the Ds
state of mind
o Could possibly be convicted of manslaughter, rather than homicide
▪ Evidence is admissible because the evidence is introduced to show the D had knowledge
of things that would destroy his mental equilibrium thus satisfying the requirement called
for by the substantive law of manslaughter
· Ds state of mind is relevant to the criminal case
▪ Usually comes up in negligence cases that raises the issue of whether the D was on notice
or warned of a particular condition
· Mere making of the statement might be relevant as to notice
· Proves state of mind of individual who was put on notice
· Example:
o P slips on a wet floor in a store owned by D.
o In a personal injury action P calls his witness to the stand to testify
▪ W – “I heard the janitor tell D the floor is wet 10 minutes before P
slipped”
o Substantive law cares about whether the D was on notice or not

27
 ▪ NOT admissible to prove that the floor was actually wet – this is
inadmissible hearsay
▪ Limiting instruction required
o Proves state of mind of the declarant when the state of mind of the declarant is relevant
(state of mind of the person who made the statement)
▪ The statement is relevant outside from the truth of the fact asserted because the
declarant’s competence is at issue and the statement goes to the declarant’s competence
▪ Example:
· Will contest case where opponents of the will of deceased claims the deceased
was not competent when making his will.
o The opponents of the will (also the proponents of the evidence) seek the
testimony of a witness who testifies that she heard the declarant (de-
ceased) state he was the Emperor of Japan while he was writing his will
o The deceased declarant’s state of mind at the time he made his will is
relevant to the probate litigation because the substantive law of wills re-
quires sound mind of a person executing a will.
· Civil case – person might be committed to a mental hospital
o The individuals state of mind is relevant to show that he is crazy
· Criminal kidnapping case
o Government seeks to introduce information gained in statements given by
the victim of the kidnapping
o The statements are descriptions of the house of the D
▪ The information is sought to be introduced to show the state of
mind of the victim
▪ If she has the information, then she must have been present in the
D’s home
o Still have to show relevance
▪ State of mind of the declarant is not enough
▪ It will only be relevant if there is other evidence introduced
(maybe a video or cop’s testimony) to establish the description of
the particular premises.
▪ Proponent of evidence must still prove relevancy
o When declarant is not a person
▪ When the declarant is an animal or an electronic device, there is NO hearsay problem
· The declarant MUST be a person
▪ Example:
· Can introduce evidence of a dog barking
· Radar gun said 85 mph
➢ Element 2 – Declarant must have intended to make an assertion
o Usually not a problem – when we speak we intend to make assertions
Areas of Concern:
o Doctrine of Implied Assertions
▪ Out of court statements introduced to prove what the declarant impliedly believed,
NOT to prove the truth of the fact asserted

28
 ·Proponent seeks to introduce the statement to show what the declarant implicitly
believed
· Declarant did not intend to make an assertion that D was a drug dealer or bookie,
but implicitly, through the statement, this is what declarant impliedly believed
▪ Examples (frequently in gambling and drug cases):
· Officers searching an alleged betting establishing of D answered a ringing phone
where the callers placed bets unknowingly to the officers
o In a criminal gambling prosecution against D, the government seeks to in-
troduce the statements of the callers to show they believed they were call-
ing a betting establishment
· Officer’s executing a search warrant at a suspected drug dealer’s house (D’s
home)
o Officers answer the ringing phone and the caller asks, “did your suppliers
get the stuff yet.”
o The P now seeks to introduce the statement to show the caller’s implicit
belief that he could call C to purchase drugs
▪ Still have to show that the declarant’s implicit belief is relevant (has to pass through 401
and 403)
· Rationale – if the evidence is an implied belief and the declarant did not intend to
make a statement about his belief, the likelihood he will fabricate a belief is slim
▪ Common law rejects this because there is no opportunity for cross, however FRE over-
ruled the common law (US v. Zeni)
o Conduct
▪ Will constitute inadmissible hearsay, when it is intended as an assertion
▪ Examples (when conduct is an assertion):
· Nodding your head or pointing your finger
▪ Examples (when conduct is NOT an assertion):
· Bring car to repair shop to get brakes fixed
· Is this an assertion?
o No, it is only conduct
o Silence
▪ Silence is only hearsay when it is intended as an assertion
▪ Example:
· P, allegedly purchased a defective product manufactured by D
· D seeks to introduce evidence that D has never received a complaint on the prod-
uct P claims is defective
o P objects to the admission of evidence
o OVERRULED – silence is only hearsay when it is intended to be an asser-
tion
➢ Confrontation Clause (“CC”)
o “In all criminal prosecutions the accused shall enjoy the right…to be confronted with the wit-
nesses against him”
o ONLY applies in criminal prosecutions and only protects the criminal D
▪ CC doesn’t provide any protection for the prosecution
o 2 major protections for criminal Ds (3 elements of the CC):

29
 ▪ (1) Face to face confrontation
· If someone makes a statement to use against ∆, the ∆ should have the right to con-
front the person who made the statement
· Physical confrontation – “eye ball to eye ball” confrontation
· Theory is that will more likely to get truthful
· Right to cross examine
o To those who make statements against a ∆
o Securing an adequate opportunity to cross examine adverse witnesses
▪ (2) statement is reliable because it is made under oath
o FRE 801(d)(1)(C) – Hearsay Exemption – Prior statement by witness / Statement of Identi-
fication
▪ Hearsay Exemption, where the declarant, who is the identifier, is a witness in court and is
subject to cross examination on the issue of the witnesses/declarant’s out of court identi-
fication
· Statements of prior identification
▪ 4 Elements
· (1) Out of court statement of identification of a person
o can be a live ID (lineup, eyewitness, etc.) OR from looking at a photo
· (2) After the declarant perceived the individual engaged in the conduct,
· (3) Provided the declarant testifies at trial, and
· (4) The declarant is subject to cross examination concerning the out of court state-
ment of identification
o CC requires cross-examination
o If witness claims he doesn’t remember, this is okay, there was still cross
▪ Applies in criminal and civil cases
▪ NOTE! Making a correct in court identification is not required (not part of the rule)
▪ Rationale
· Out of court statements are more likely to be reliable and the declarant is a wit-
ness on the stand and is subject to cross examination, making it even more reli-
able
· Out of Court identification is likely to be more reliable, because:
o It was closer in time to the event
▪ In court identifications are made under pressure circumstances
o Analysis for CC
▪ First, look to see whether the out of court statement fits within one or more hearsay ex-
ceptions or exemptions
· If out of court statement doesn’t fit into a hearsay exception or exemption, then it
is inadmissible, not need to conduct a CC analysis
▪ If there is a hearsay exception or exemption, then must deal with CC
o “right to be confronted with the witness him”
▪ When the prosecutor seeks to introduce into evidence an out of court statement, the CC is
NOT violated if:
· the prosecutor produces the declarant in court AND
· makes the declarant available for cross examination
▪ Cross-examination doesn’t have to be effective, just need an opportunity to cross
· As long as the prosecutor puts the witness on the stand, the CC is satisfied

30
 ·Even if:
o Witness cannot remember
o D had no prior opportunity for cross when witness made the out of court
statement, but D does have an opportunity only now at trial
▪ CC NOT satisfied if:
· The witness is produced at trial by the prosecutor and witness invokes his 5th
Amendment rights
· there is NO opportunity for cross and the CC is violated
o Crawford v. Washington:
▪ If out of court statement is testimonial, then under the CC the statement will only be ad-
missible if:
· Declarant is unavailable to testify at trial, AND
· Criminal D had a prior opportunity to cross the declarant at the time the declarant
made the testimonial out of court statement
o Example – prior trial, deposition, etc.
▪ Rationale
· Best instrument that the law of evidence has for testing the reliability is cross-ex-
amination
▪ Testimonial = declarant would expect the statement to be used at trial
· Examples of testimonial statements:
o Former testimony at a former judicial proceeding
▪ All made under oath – grand jury, preliminary hearing, former trial
▪ However, there was no opportunity to cross
o Affidavits
o Statements made to law enforcement officers at police interrogations that
an individual knows are reasonably likely to be used at trial
· Examples of statements which are NOT testimonial:
o Casual statements
o Business records
▪ Unless the government requires the individuals to prepare them
(then they might be testimonial, because the person would reason-
ably expect them to be used at trial)
o 911 calls
▪ 911 calls, are out of court statements but usually covered under a
hearsay exception (either excited utterance or present sense im-
pression)
▪ 911 calls can be testimonial if the declarant is responding to a list
of question from a 911 operator (this is similar to a police interro-
gation)
· NY says that 911 calls are testimonial
▪ Parts of the call may be testimonial while others are not
▪ When the out of court statement is NOT testimonial, there are 3 possibilities:
· Criminal Ds do not have any protection under the CC
· SCOTUS will formulate a new rule, OR
· White v. Illinois is still good law (Prof says most likely this one)

31
 o The prosecutor may introduce the declarant’s out of court statement if the
declarant is unavailable by convincing the court that the out of court state-
ment is sufficiently reliable
o Proof of reliability (if out of court statement is NOT testimonial)
▪ Show that the out of court statement comes within a firmly rooted
hearsay exception, OR
· Firmly rooted = has its roots in common law
▪ Show that the out of court statement bears sufficient indicia of
trustworthiness under the particular circumstances
▪ Analysis:
· Is declarant available to testify?
o If yes, then CC is satisfied
· If no, is the out of court statement testimonial?
o If yes, use Crawford test
o If no, use White test
▪ Crawford test is triggered if:
· Out of court statement made by declarant
· Sought to be introduced into evidence by the prosecutor against the criminal D at
trial
· The out of court statement sought to be introduced is testimonial in nature, AND
· The prosecutor has not produced the declarant to testify at trial.
o Any time an out of court statement is attempted to admitted into evidence, the D has a poten-
tial argument that the statement violates hearsay AND that it violates the CC
▪ KEEP the hearsay issue and CC issue separate
· Deal with hearsay issue first, then CC
· Even if there is a hearsay exception, the CC might still be violated, and therefore,
the evidence will be excluded
o Other Confrontation Clause issues:
▪ Prosecution v. two or more criminal Ds jointly (Maryland v. Gray)
· Homicide prosecution against 2 criminal Ds
· Cop obtained a confession from D1 which implicated D2 in the homicide
o When prosecutor seeks to introduce D1’s confession against D1
▪ No CC issue – D1 made the statement, ridiculous to say he must be
able to cross himself
o When prosecutor seeks to introduce D1’s confession against D2
▪ CC issue – out of court statement intended to be introduced against
D2
· If you have a case of joint Ds and a P admits the confession of D1 that impli-
cates D2, D2’s rights are violated even if the trial judge gives a limiting instruc-
tion
o Limiting instruction is not likely to work
· Solutions:
o When police officer is testifying, he should say D1 said he did the crime
with “deleted”

32
 ▪ Redaction is a potential remedy, but has to be done in a way that
doesn’t send a message to the jury that “deleted” doesn’t refer to
D2
o Separate trials
▪ In court testimony
· Cases involved charges against Ds dealing with abuse of young children
o Criminal Ds argue that they have a right to face to face physical confronta-
tion of the witness under the CC
▪ However, for the victim to physically confront the D, it may cause
physical and psychological harm to the victim
o The right to face to face physical confrontation is preferred under the CC
because the rationale is that we will get in the generality of cases more ac-
curate and more reliable testimony in a criminal case if a witness has to
face the criminal D
o BUT, that right to face to face confrontation is not an absolute right, it will
give way, if the state makes a sufficient showing
▪ Prosecution must show specifically, by evidence, that this specific
child will be likely to be harmed if the victim has to physically
face the D in the courtroom.
· Need specific finding relating the this particular victim
o Solutions:
▪ One way shield – D can see victim, but victim can’t see D
▪ Video tape outside the presence of the D
▪ Two court room video system
· Court room 1 – victim giving testimony – P and defense at-
torney present
· Court room 2 – judge, jury, and criminal D
· Issue – when the trial judge limits the amount or duration of cross-examination
o This is fine under the CC
o Right to cross is a right of reasonable cross, not unlimited cross
▪ But cannot preclude all cross, can only reasonably limit it
➢ FRE 804 – Hearsay Exceptions; Declarant Unavailable
o Exception only applies if the declarant is unavailable to testify
o (a) – Definition
▪ “unavailability as a witness” = testimony is unavailable
· just want to get the declarant’s testimony, don’t care about anything else
▪ Different categories of unavailability of a witness
· Proponent is able to get the declarant in court BUT cannot get his testimony
o (1) exempted on the ground of privilege
o (2) declarant refuses to testify
▪ even if court orders declarant to testify
o (3) lack of memory
▪ even if the witness is lying
· declarant is physically unavailable
o (4) death or disability

33
 o (5) declarant is alive, we have attempted to subpoena him, but unable to
procure the attendance of the declarant at trial as a witness
▪ A declarant is NOT unavailable as a witness if any of the above are due to the wrongdo-
ing of the proponent
· proponent cannot engage in misconduct that renders the declarant unavailable
o Declarant must be unavailable after a good faith effort
o (b)(1) – Former Testimony Exception:
▪ “Testimony given as a witness at another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the course of the same or another pro-
ceeding, if the party against whom the testimony is now offered, or in a civil action or
proceeding, a predecessor in interest, had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination”
· only applies when the declarant in unavailable
· judicial proceeding encompasses a quasi-judicial proceeding such as administra-
tive proceedings
▪ Any testimony given other than by a witness on the stand at the current trial
· a witness who testified at some other trial (criminal hearing or deposition)
▪ Out of court statements = not in the court of the present trial
▪ Rationale
· Necessity – the declarant is not available to testify as a witness
· Trustworthiness – the declarant was under oath, subject to cross at the prior pro-
ceeding, and likely to have a transcript
o You don’t have an opportunity to cross-examine the declarant now, be-
cause the declarant is not on the stand, but you did have it in the prior pro-
ceeding
· There is an out of court statement, but under the circumstances we think that the
out of court statement is sufficiently reliable
▪ Elements:
· Declarant must be unavailable
o See 804(a), supra
· Out of court statement had to have been made under oath at some type of judicial
proceeding
· The party against whom the former testimony is sought to be introduced must
have had in the prior proceeding an adequate opportunity and similar motive to
cross-examine the declarant
o Focus is on the party against whom the out of court statements are sought
to be introduced
o Most courts will lump adequate opportunity and similar motive together
and look to see whether the issues in the two cases are substantially the
same
o Adequate Opportunity
▪ Whether there was an adequate opportunity to cross requires an
evaluation as to what actually took place in the prior proceeding
· Was there really an adequate opportunity to cross?
· Just need an opportunity, don’t need an actual cross-ex-
amination

34
 o Similar motive
▪ The motivation that D had to cross the witness in the prior case is
similar to the motive that would have existed if D had the opportu-
nity to cross in the present case
· Doesn’t look at actualities, but hypotheticals
▪ If party made a tactical decision not to cross, doesn’t mean that
there wasn’t a similar motive
o Need an adequate opportunity and similar motive to cross-examine OR di-
rect examination
▪ If the D introduces a witness who winds up testifying against him,
the testimony will be admitted, even though there wasn’t a cross,
but there was a direct – former testimony exception applies
▪ “Predecessor in interest”
· A party in the prior proceeding who stands in the shoes of the present party and
had the adequate opportunity and similar motive, similar to the motive of the
party in the present proceeding
· When the issues are substantially the same, there is a high probability that the
party in the prior proceeding will be a predecessor in interest
· The predecessor in interest (not being the same party) is applicable, only in civil
cases
· Civil Cases
o Former testimony may be introduced against a party who was not a party
to the first lawsuit
o All the parties can be different from the two cases BUT it has to be proven
that there was a predecessor in interest in the prior proceeding who had a
motive and opportunity to cross
· Criminal Cases
o The criminal D has to be a party in both the prior case and the present case
AND there must have been an adequate opportunity and similar motive to
cross
▪ Crawford’s application to the Former Testimony exception:
· Out of court statements which fall under the former testimony exception are testi-
monial, therefore, proponent must show:
o That the declarant is unavailable, AND
o That the D had an prior opportunity to cross the declarant
· OR, the prosecutor can satisfy the CC by presenting the declarant as a witness
· If the former testimony exception is satisfied then the CC is satisfied
o However, an adequate opportunity under the CC may require more (such
as an attorney present)
▪ Might need something more under former testimony hearsay ex-
ception
▪ Former Testimony and Grand Jury Proceedings:
· Grand jury testimony can NOT satisfy the former testimony exception
· However, P may argue that this testimony comes under some other hearsay ex-
ception
o CC still comes into play

35
 ·Under Crawford might be able to overcome hearsay problem by an exception
besides the former testimony exception, but cannot overcome the CC
➢ FRE 805 – Hearsay within Hearsay
o “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the com-
bined statements conforms within an exception to the hearsay rule provided in these rules”
o Application to Former Testimony exception:
▪ Two out of court statements
· For each out of court statement the proponent needs to demonstrate a hearsay ex-
emption or exception
▪ First case
· Dr. Smith– as part of investigation I spoke to Jones and he told me that his family
was suffering from asbestos
o What Jones said is hearsay
▪ Second case
· When Dr. Smith’s testimony is sought to be introduced there is a double hearsay
issue
o Dr. Smith’s testimony about asbestos – one level of hearsay
o Dr. Smith’s testimony about what Jones said – another level of hearsay
· Need a hearsay exemption or exception for BOTH hearsay problems
o Dr. S – asbestos – former testimony
o Dr. S – about Jones - ??
➢ FRE 801(d)(2) – Statements Which are not Hearsay – Admission by party-proponent
o An admission is a statement made by a party to the litigation that is sought to introduced into
evidence against the party who made the statement
▪ MUST be a party to the litigation who it is being offered against
· Focus – who is making the out of court statement?
· Distinguishing between statements made by parties and non-parties
o Rationale
▪ Theory with admissions, is not reliability, it is based upon a concept that says if a party
makes an out of court statement, that is relevant to the litigation, the party is not in a posi-
tion to complain about the admissibility of that statement against him
· Adversary process, you made the statement, not in a position to object to it
· If there were questions with reliability issues, judge can exclude under 403
· Theory isn’t reliability because:
o No requirement that the declarant (who is a party to the litigation) has to
have personal knowledge
o Parties may be making self-serving statements
o Premised on a theory similar to estoppel
o Required by the rule:
▪ The statement has to be made by a party to the litigation
▪ The statement MUST be introduced by the opposing party
· Rule doesn’t authorize the P to introduce his own out of court statements
▪ Admission may be written or oral
o What is not required by the rule:

36
 ▪ No requirement that the statement made by the declarant be against the declarant’s inter-
est
▪ Declarant need not have personal knowledge of the subject of the statement
▪ The admission may state an opinion
▪ The declarant need not be a witness in order to introduce the admission into evidence
o In a criminal case, statements made by the victim cannot be considered admissions, because the
victim is not a party to the litigation
o FRE 801(d)(2)(B) – Admission by adoption
▪ “The statement is offered against a party and is a statement of which the party has mani-
fested an adoption or belief in its truth”
· when an out of court statement made by a third party, who is not a party to the lit-
igation, is attributable to a party through either an express or implied adoption
o the OCS is made by a third party!!
▪ Statement must be reasonably attributable to the party against whom the statement is be-
ing offered
· Unequivocally attributable to a party
▪ Can adopt a statement 3 ways:
· Expressly – verbal
· Conduct
o Nodding your head – conduct by assertion = out of court statement
· Silence
o Creates the biggest problem, because silence is ambiguous
▪ Silence – courts use a reasonable person test
· Whether a reasonable person in the parties position under the same circumstances
would have objected to the statement if it was untrue
o If yes, then the silence is an adoption – failure to object indicates that the
party agrees with the statement
o If no, silence is NOT an adoption
· Whether silence will be considered an admission, courts look at 3 factors:
o Party must understand the statements
o Free from emotional or physical impediment that would prevent the indi-
vidual from objecting
▪ People v. Green – wife made a statement that D had the victim
killed, D remained silent.
· However, the wife had a gun and they were in the midst of
an argument and wife made a previous threat
· Emotional and physical impediment
· Therefore, silence was not an adoption
o Reasonable person would have objected if the statement was untrue
· Courts draw a distinction between silence in the context of a face-to-face com-
pared to silence in a written communication
o Face-to-face
▪ More likely to be deemed that silence is an adoption
▪ Look at context of situation
o Written communication

37
 ▪ More likely NOT to be deemed an adoption
▪ Courts are looking for something more than a simple failure to re-
spond to the writing
· Otherwise one party can manufacture evidence against an-
other party
▪ If the party responds to the letter and objects to 2 out of 3 state-
ments in the letter, might be deemed by the court that you adopted
the 3rd by your silence
· Pre-arrest silence – as long as it is not induced by government action, it may be
used against you
· Post-arrest silence – if accused has been read his Miranda warnings, silence may
not be used against the accused
o However, if the Miranda warnings have not been given, silence of an ac-
cused after arrest may be used if otherwise relevant and admissible
· NY Law
o Doesn’t distinguish between post and pre Miranda.
o Once arrest, the accused’s silence can never be used against him or be an
admission
· More on Miranda warnings.... and the like – From Marc Cohen day
· Silence in a civil case is more likely to be deemed an admission then silence in a
criminal case
· The probative value of silence is very low, take into account in a 403 evaluation
o FRE 801(d)(2)(C) & (D) – Vicarious Admissions
▪ Common law & NY – employee’s OCS is admissible only against the employer only if it
is shown that the employee had speaking authority (authority to make a statements con-
cerning a particular subject)
· FRE broadened the narrow common law – employees normally do not have
speaking authority, too many statements were being excluded
▪ FRE gives proponent two options to admit these vicarious admissions
▪ (C) – “a statement by a person authorized by the party to make a statement concerning
the subject” (speaking authority)
· codification of common law
· need to lay a foundation that declarant had express or implied speaking authority
to make the declarations on behalf of the party opponent
· substantive law of agency governs whether or not there is speaking authority
▪ (D) a statement by the party’s agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the relationship
· as long as the employee makes a statement concerning the subject matter of the
employment, even though he didn’t have speaking authority, the statement is ad-
missible as an admission against the employer
▪ Statement has to be made during the existence of the employment relationship
· Rationale – protect the employer against possible damaging statements being
made by disgruntled employees
· EX – accident with bus driver, bus driver reports the accident, his employer says,
“you are fired” Bus driver then tells cop that the bus always had faulty breaks
o INADMISSIBLE – not employed at the time the statement was made

38
 ▪ Personal knowledge is NOT required (it is irrelevant, statement can be an opinion)
▪ Rationale
· Adversary system will bring out the truth, lack of personal knowledge is irrele-
vant
▪ Statements made to third parties can be admissions as well
· Doesn’t have to be made to employer or principal
▪ STILL need to pass through 403
· Admissions usually survive 403 – FRE contemplate generous admissibility for ad-
missions
▪ Issue – If a OCS is admissible as an admission, can the party against whom it was admit-
ted seek to explain it or controvert it?
· General Rule – admissions are evidential – can introduce evidence to contradict
· Exceptions – conclusive admissions (formal judicial admissions) – NO evidence
to contradict
o statements in the pleadings – complaint, answer or reply
▪ when pleadings are amended or superceded:
· the amended or superceded pleading is conclusive
· the statements in the prior pleading are evidential
· a pleading in one case, when sought to be introduced in the
other case, it is not a former judicial admission, it is evi-
dential
o statements made in response to a pre-trial discovery devise called a notice
to admit
▪ Parties responses to other parties pre-trial devices (ex: deposition,
interrogatory) are admissible, but are evidential
o facts that are stipulated to, either in open court in writing
o plea of guilty
o FRE 801(d)(2)(E) – Coconspirator
▪ “A statement by a coconspirator of a party during the course of and in furtherance of the
conspiracy”
▪ Elements (proponent must prove by a preponderance of the evidence)
· There was a conspiracy
· Conspiracy was between the declarant and the D
· OCS was made in the course (during) the conspiracy AND the OCS must be
made in furtherance of the conspiracy
▪ “In Furtherance”
· Broad rule – any OCS that in someway can be viewed as helping the conspiracy
along
· Examples:
o flow of information between or among the co-conspirators, statements at-
tempting to keep the conspiracy secretive, damage control, or statements
to recruit new members
▪ Timeframe
· If before the conspiracy commenced, the OCS will not satisfy this hearsay exemp-
tion
o Weisenberger states that these are admissible – p. 443

39
 ·If during, then it is admissible
·If after the goal of the conspiracy is reached, then it doesn’t come within the ex-
emption
▪ NOTE! Unavailability of the declarant is NOT an element
▪ Need to establish the foundational facts by a preponderance of the evidence
▪ FRE 104(a) – Preliminary Question of Admissibility
· Judge can take into account evidence that would not be admissible at trial
· Judge can also take into account the OCS that is at issue in determining whether
to admit the OCS into evidence
o 801(d)(2) - “The contents of the statement shall be considered but are not
alone sufficient to establish the declarant’s authority”
o OCS itself is not sufficient by itself, need other pieces of evidence
▪ The P does not have to allege conspiracy in the indictment for this exemption to apply
(also, don’t have to charge D with committed a conspiracy)
▪ Applicable in criminal and civil cases
▪ Even if OCS do not satisfy this exception, they might still be admissible
· If not offered for their truth – non hearsay 801(c)
· Failure to deny a statement made outside the conspiracy but in the party’s pres-
ence may qualify as an admission – 801(d)(2)(B)
· Post conspiracy declaration against interest – 804(b)(3)
▪ Possible CC violation (Crawford)
· We don’t know if OCS which satisfy the co-conspirator are testimonial or not
· Most likely not testimonial
· The whole idea of a conspiracy is secrecy, not likely that the declarant reasonably
believed that the statement could be usable in a judicial proceeding
· If OCS satisfies the hearsay exemption, then (CC analysis)
o If not testimonial, it satisfies the CC (under White v. Illinois) because it is
a firmly rooted hearsay exemption
o If it is testimonial, then we must do a Crawford analysis (W must be un-
available and D had a prior opportunity to cross when the statement was
made)
➢ FRE 804 – Hearsay Exception - Declarant Unavailable
o 804(b)(3) – Statement against interest
▪ “A statement which was at the time of its making so far contrary to the declarants pecu-
niary or proprietary interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that a reasonable
person in the declarants position would not have made the statement unless believing it to
be true. A statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances clearly indi-
cate the trustworthiness of the statement”
▪ Elements
· Declarant must be unavailable
· At the time it was made, the OCS must have been contrary to the declarant’s pe-
cuniary, propriety, or penal interest
o Common law – limited to pecuniary or propriety interest
o FRE – adds penal

40
 o Reasonable person test
▪ A reasonable person wouldn’t have made the statement unless the
statement were true
· Need personal knowledge of the fact being asserted
o Read into the rule
· Declarant had no probable motive to make a false statement
o Read into the rule
o Sometimes people do make these statements, because they have a motiva-
tion to make a false statement
▪ Help someone out
▪ Gain favor with someone else
▪ People generally don’t make statements that are contrary to their interest unless they are
true, but some people do make these statements if not true
· This is a schizophrenic hearsay exemption
▪ Rationale
· The ramifications of making a statement is so contrary to the declarants interest
that he would not make the statement unless it was true
▪ Admissibility requires a balancing of competing interests
· The disserving statements must outweigh the self-serving statements to be admit-
ted under this exception
▪ Problems that arise in criminal cases
· A declaration against interest sought to be introduced by the D
o Introducing someone else’s OCS against the declarant’s penal interest
o D is attempting to show that the declarant committed the crime not the D
o There is reason to be suspicious about this class of declaration against in-
terests, 2 reasons
▪ May come from a friend or relative in an effort to get the D off the
hook
· “It wasn’t the D, it was me”
▪ The statements are made by individuals who are incarcerated to
curry favor
▪ For this reason, the last sentence in the Rule was added
· “A statement tending to expose the declarant to criminal li-
ability and offered to exculpate the accused is not admissi-
ble unless corroborating circumstances clearly indicate
the trustworthiness of the statement”
▪ Message to the trial judge to be careful and weary of these state-
ments
· If the P is introducing the declaration against penal interest against the D
o The corroboration requirement does not apply (only applies when the D is
admitted these statements)
o Some courts require corroboration here also – to ensure reliability, may be
a misreading of the rule
▪ The judge should only allow the statement that are against the declarant disinterest
(Williamson v. US)
· Statements not against his penal interest should not be allowed

41
 · The statements should be separated, parts of it admissible and other parts not
▪ Doctrine of Admissions v. Declarations against Interest
· Who is the declarant?
o Declaration against interest – could be anyone
o Admission – must be a party
· Availability
o Declaration against interest – Declarant must be unavailable
o Admission – no requirement
▪ High probably that declarant is available
· Must the statement be against interests
o Not a requirement of admissions
· Personal Knowledge
o Not a requirement of admissions
· No probable motive
o Not a requirement of admissions
o FRE 804(b)(2) – Statement under belief of impending death
▪ “In a prosecution for homicide or in a civil action or proceeding, a statement made by a
declarant while believing that the declarant’s death was imminent, concerning the cause
or circumstances of what the declarant believed to be impending death”
▪ Elements:
· Declarant is unavailable
· Statement made by the declarant must be made at a particular point in time when
the declarant believed that death was imminent
· OCS concerning the cause or circumstances of what declarant believes to be im-
pending death
▪ Common law – exception only applies in homicide cases
▪ FRE – applies in civil and homicide (NOT other criminal cases)
▪ Rationale
· Theory of the OCS’s reliability – statements made under these circumstances are
likely to be reliable
· Someone who believes that death is imminent is unlikely to make a misstatement
or lie (no motives to lie)
▪ Usually comes about in:
· Crime scene statements
· ER statements
· Deathbed statements
▪ Declarant doesn’t have to die for the exception to apply (just as to believe that death is
imminent)
▪ State v. Quintana:
· Fear or even the belief that illness will end in death is NOT enough
· There must be a settled hopeless expectation that death is near, and what is said
must have been spoken in the hush of impending death
· Declarant doesn’t have to say, “I know I’m dying” – can imply from other things
he has said
· Decedent does not have to be told that he is dying, can be obvious from the cir-
cumstances

42
 ·
NO requirement that there is an abandonment of all hope of recovery
o Modern medical science can work wonders
▪ 911 call
· Rational inference that the declarant believed death was imminent
· However, if the declarant asks for an ambulance, there is an argument to be made
that the declarant didn’t believe death was imminent and instead hoped for recov-
ery
▪ CC Issue
· Dying declaration is a firmly rooted hearsay exception
o Therefore, if not testimonial then it satisfies the CC
· If police are asking questions, an argument can be made that it is testimonial, if so
a Crawford analysis must be conducted
➢ FRE 803 – Hearsay Exceptions; Availability of Declarant Immaterial
o 803(1) – Present sense impression
▪ “A statement describing or explaining an event or condition made while the declarant
was perceiving the event or condition, or immediately thereafter”
· declarant must actually perceive (can be seeing or hearing) the transaction
· declarant doesn’t have to participate in the event (but the further removed he his,
greater suspicion of untrustworthiness)
▪ Elements:
· Timing – the statement must be made while the declarant was observing the event
or immediately thereafter
o If immediately thereafter, must be sufficiently soon that there was no time
for reflection
· Content – must describe or explain (characterizing) the event
o ex: car was going fast
· NOTE! Do NOT need a startling event
o This distinguishes this exception from 803(2)
▪ Called the “what’s happening” hearsay exception
· Declarant is observing an event, and while he is observing the event or immedi-
ately thereafter, the declarant makes a statement that describes or explains what is
taking place
▪ Rationale = reliability
· Little chance that someone is going to lie or fabricate the statement
· If a declarant is observing an event and describes what he is observing, that de-
scription is likely to be reliable
o Rationale doesn’t extent to other statements the declarant might make (ex
– “driver of van is the cheapest person ever”)
▪ NY – time frame is narrow, only enough time to get out the words to make the OCS
· Can’t have time to think about it
· Skeptical about this exception
o Extremely strict to time lapse AND requires other corroborating evidence
as to what took place for this hearsay exception to apply
▪ Content is also narrow
· Must describe or explain what is taking place

43
 · EX – that guy never takes care of his van’s brakes – CANNOT satisfy the excep-
tion
o 803(2) – Excited Utterance
▪ “A statement relating to a startling event or condition made while the declarant was un-
der the stress of excitement caused by the event or condition”
· declarant doesn’t have to participate in the event
▪ Elements:
· Startling or unusual nature of the event
· Stressful event that produces a state of stress in the declarant
· Makes a statement that relates to the event
▪ Subjective standard!!
▪ Rationale
· No opportunity to fabricate the statement
▪ Firmly rooted hearsay exception
▪ OCS statements might overlap with the excited utterance and the present sense, however,
there are differences between the two:
· Nature of the event
o Present sense – no requirement that the event be of a particular type
o Excited utterance – event has to be unusual
· Time frame
o Present sense – during the event or immediately thereafter
o Excited utterance – no time frame, but person must be under stress, may
last longer than the event or immediately thereafter
· Content
o Present sense – statement that describes or explains the event
o Excited utterance – broader – statement only has to relate to the event
· Therefore, in some senses, present sense is broader, but in others the excited utter-
ance is broader
▪ The declarant does not have to be a participant to the event, he can be a bystander
▪ Open issue – can this exception be satisfied by a statement that is in response to a ques-
tion?
▪ Time lapse
· Statements doesn’t have to be made during the event or immediately thereafter,
but it does have to be made when the declarant is under the stress of the event
o Ex – one week after the accident, the declarant looked at a photo, she then
became under stress, and stated, “he killed me” – ADMISSIBLE
· The longer the time lapse between the event and the declarants making of the
statement, the less likely it is that declarant is still under the stress of the event
o 803(3) Then existing mental, emotional, or physical condition
▪ “A statement of the declarant’s then existing state of mind, emotion, sensation, or physi-
cal condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to prove the fact remembered
or believed unless it relates to the execution, revocation, identification, or terms of
declarant’s will.”
▪ Rule doesn’t require that the statement be made to a medical physician
▪ “then existing”

44
 ·
▪ Really 2 hearsay exceptions in one:
· Declarant’s physical condition (pain, physical symptoms, etc.)
o Statement must be contemporaneous with the physical sensation or con-
dition
o Declarant’s statement about he feels physically about this time
▪ has to be a statement about the declarants own physical condition
and has to be present physical condition
· “I had pain in my knee two days ago” – rule doesn’t apply
· “I have pain in my knee now” – rule applies
o “I have pain in my knee now from the b ball game we played yesterday”
▪ part of it is within the hearsay exception, but the b ball part isn’t
(the cause leading up the pain)
· maybe some other hearsay exception (but not this one)
▪ self-diagnostic statements or ones to the external source of an in-
ternal condition are not covered by this rule
· Ex – “X broke my arm” or “That food made me ill”
o Rationale
▪ If declarant makes a statement about how he feels at the time the
statement was made, we think, because of the contemporaneous re-
lationship between the statement and the declarant’s present physi-
cal condition, we think it is likely to be sufficiently reliable
▪ Might be a problem with self-serving statements
· Declarant’s mental state (state of mind)
o “I’m happy” – comes within the exception
o “I’m going to the park” – allowed
▪ state of mind and intent
o ASK – what is in the declarant’s mind when he made the statement?
o Rationale = reliability
▪ when declarants make statements as to their present state of mind
or feelings or intent, we think that because of the contemporaneous
relationship between the statement and the declarant’s present
mental state, we think it is likely to be sufficiently reliable
▪ intent is often a difficult fact to be proven at trial
· may make sense to loosen the evidentiary requirements
o Might be relevant because the substantive law cares about the mental state
▪ wrongful death
· claim brought by surviving spouse against the tortfeasor
· relevant because substantive makes them relevant
▪ murder – did D have intent to kill the victim
▪ gifts – donative intent
▪ punitive damages
▪ Alienation of affection
▪ Hillmon Doctrine
· Allows for the use of statements of plan or intent to show that the planned or in-
tended act was undertaken

45
 · When an individual expresses intent to do something in the future, it is relevant
circumstantial evidence that he acted in accordance with that intent
o Applies even when the substantive law does not care about intent
· Theory of relevance
o One who expresses an intent to do something is more likely to engaged in
the conduct than one who didn’t express that intention
· Example
o If X doing Y is at issue, you may introduce evidence of X’s intent to do Y.
X is accused of committing a murder in Florida, but X lives in New York.
A witness testifies to X stating that she intended to go to Florida. X intent
to go to Florida is not relevant, but X being in Florida is relevant because
it places her in the vicinity of the crime.
o “I plan to go to work tomorrow”
o “I plan to murder X”
o “I don’t intend to fulfill my obligations under the K”
· ISSUE – Does Hillmon doctrine encompass the admissibility of declarant’s state-
ment of intention to do something in the future with a third person?
o Ex – “ I intend to go out with Victoria tonight”
o Common law – encompasses conduct with a third person
o FRE – not sure
▪ AC notes – Hillmon doctrine survives the enactment of the FRE
▪ Legislative history – congressional intent to limit the Hillmon doc-
trine to the conduct of the declarant
o 2d Cir. & NY – Middle ground
▪ Declarant’s expression of intent to engage in conduct in the future
with a third person is relevant and admissible to prove the conduct
of the third person, but only if the proponent offers corroborating
evidence that the third person engaged in the particular conduct.
▪ Prof likes this position
· Hillmon doctrine only covers statements that look forward, take place in the fu-
ture, NOT statements that look to the past
o “Last week I went on a camping trip” – inadmissible
o Rationale – if we didn’t honor that distinction that would be the end of the
rule against hearsay
o 803(4) – Statements for purposes of medical diagnosis or treatment
▪ “Statements made for purposes of medical diagnosis or treatment and describing medi-
cal history, or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to diag-
nosis or treatment”
· not limited to present physical condition, can be past symptoms or pain
▪ KEY is the purpose for which the statement was made
▪ TWO PART test
· Subjective – judge will determine subjectively did the declarant intend to impart
this information for the purpose of obtaining medical treatment or diagnosis

46
 · Objective – is this the type of information that medical personal reasonably rely
upon in making medical treatment and diagnostic decisions
o Must be reasonably pertinent to the treatment or diagnosis sought
▪ Rationale
· Not going to lie, because declarant has self-motivation to providing reliable infor-
mation (want the best treatment)
▪ Common law – hearsay exception only encompassed statements for medical treatment
▪ FRE – covers statements made solely to obtain treatment and diagnosis
· Can be used in present litigation or contemplated litigation
▪ Rule is NOT limited to statements made to a physician (although easiest application)
· Can be made to a friend, relative, or psychiatrist (not limited to physical condi-
tions)
▪ Parent can make the statement on behalf of the child
▪ Rule doesn’t cover statements of fault or guilty – they are not reasonably pertinent to di-
agnosis or treatment
▪ Can be multiple levels of hearsay – injured party makes statement to relative, relative
then makes statement to the nurse
· 2 hearsay statements – need an exception for both (can be the same exception)
▪ Rule doesn’t cover statements made from the doctor to the patient (only patient  doc-
tor) – one way rule
▪ The identity of a 3rd person is normally not admissible under this exception
· However, if this information is the type that a physician reasonably relies upon in
making medical determinations, then it may be admissible
· Ex – domestic disturbance cases
▪ Example – person goes to physician seeking treatment or diagnosis
· Person says I have a pain in my leg
· If Dr. says, “How did this come about”
o Hit by a truck, by X who was driving 90 mph on the Triboro bridge
· Admissible?
o Is the statement made for the purpose of obtaining medical treatment?,
Part is
▪ Hit by a truck in a car, going fast
▪ BUT, don’t care that X was driving and that it was on the Triboro
bridge
o 803(6) Records of regularly conducted activity
▪ Business records hearsay exception
▪ “business” includes business, institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit (very broad)
▪ “record”
· data compilation (computer generated records are within the scope of the rule)
· includes a narration of opinions or diagnoses
o business records rule may include hospital records or the records of a
physician
▪ “in any form” – don’t care about the format
· includes records of an entity engaged in an illegal business (dealing drugs)
▪ Personal diaries, shopping lists, reminder notes, checking accounts, etc. are not included

47
▪ Proponent must lay a foundation (call a W) – foundation W doesn’t have to have first
hand knowledge
· W must testify that he is sufficiently familiar with the operation of the business
and with the circumstances of the record’s preparation, maintenance and retrieval,
that he can reasonably testify on the basis of this knowledge that the record is
what it purports to be and that it was made in the regular course of business
· Foundation can also be established through an affidavit – record can be self-au-
thenticating – see authentication rules below FRE 902
▪ Elements:
· The record must be made and maintained in the regular course of business
· The information contained on the record has to come from an individual who has
personal knowledge of the particular transaction and a business duty to make the
record
o We don’t care how many people are involved in the record producing and
maintaining process as long as the flow of information starts with an in-
dividual who has personal knowledge
▪ Each transmittal of information must occur pursuant to a business
duty to transmit
▪ Chain of reliability
o Example – Bystander to accident gives police officer account of the acci-
dent
▪ INADMISSIBLE – Bystander did not have a business duty to re-
port the information (Lutz rule – NY)
· This breaks the chain of reliability
· If one police officer told another, then it would be admissi-
ble because the police officer had a business duty to trans-
mit
· Making of record has to be in a timely fashion
o Made at or near the time of the transaction
o Doesn’t have to be made immediately after the transaction, but has to be
close
▪ Want an insurance of reliability – if the record is produced too far
in the distant future in relation to the event, then we thinking
maybe it isn’t reliable
· Judge could exclude the record if the sources of information or method of prepa-
ration show a lack of trustworthiness
o Can satisfy all the other elements, but the judge can still exclude it
o To determine trustworthiness, the judge may look to timeliness, investiga-
tion procedure, skills and experience of investigator, the motivation of the
investigators
o Proviso was placed here to get the judge’s attention
▪ Want the judge to take into account whether there is something
about the sources of information or the way it was prepared that
the record is not trustworthy
o Can also possibly exclude record under 403

48
 · NOTE! Once all these elements are satisfied the burden is on opponent to show
that the records are not reliable (presumption that it is reliable)
▪ Rationale
· Reliability – all of these things combined – likely that the record is reliable
· The records are produced and kept in a routine fashion, increases likelihood of re-
liability
· Likely the business relies on its own records to make business decisions
· Records may also be audited and check by outside sources
▪ When information isn’t transmitted pursuant to a duty to transmit, the exception may be
satisfied if the proponent shows that the business entity has some regular system for veri-
fying the information
· OR we can show that another hearsay exception applies
▪ If the report was prepared in anticipation of litigation, it can still come with the business
records rule, but the judge should be skeptical and demanding in determining its trustwor-
thiness
o 803(7) Absence of entry in records kept in accordance with the provisions of (6)
▪ Can prove nonoccurrence of an event by showing that the record satisfied the business
record rule and record fails to contain a transaction that would ordinarily be expected to
be on the record if the transaction occurred
· Proving a negative
▪ Introducing record to show that something didn’t occur because it isn’t in the record
· If the transaction did occur, it is one that is reasonably likely to appear on the
record
▪ Same requirements as 803(6)
o 803(8) Public records and reports
▪ Exception to hearsay rule applicable to records and reports prepared and maintained by
public officers and agencies
▪ Rationale – governmental records are sufficiently reliable
· Government officials normally carry out their official responsibilities in a good
faith and competent manner
▪ Governmental records may be more reliable than actual testimony
▪ 3 separate exceptions:
· Records, reports, statements, or data compilations, in any form of public offices
or agencies, setting forth:
· (A) “the activities of the office or agency” (itself)
o admits records of a public officer or agency to prove its activities
o no requirement of personal knowledge, business duty to transit, regular
course of business, etc.
o Ex – accounting records of governmental agencies, dockets and journal
entries of courts, certificates of title, registry, death and birth certificates,
etc.
o Caveat – where the focus of a particular record is external to the function-
ing of the agency (such as activities or conduct of certain citizens), it
should not be admitted under this exception
▪ If external, have to admit it under (B) or (C)
o CC is also applicable here

49
 · (B) “matters observed pursuant to duty imposed by law as to which mattes there
was a duty to report, excluding, however, in criminal cases matters observed by
police officers and other law enforcement personnel, or”
o foundation requirements (from Weisenbergger, not Prof)
▪ governmental employee or agent who supplies the information
must have first hand knowledge of the event of condition described
in the report
▪ the source must be under a legal duty to report the information
▪ the official agency must have a legal obligation to prepare and
maintain the record, as the term “duty” implies
o matters observed and reported pursuant to a legal duty – some official had
an obligation to observe and report based on personal information
▪ example – official at tollbooth who makes a tabulation of cars that
pass by – required to do this
· the record he makes come within this subdivision
▪ EX – records of armed forces, records of state agencies, police re-
ports, hospital records, etc.
▪ police officer who observes an accident – same
o police officer’s report is admissible in civil case BUT NOT criminal case
▪ in criminal cases, the D may introduce the report against the gov-
ernment, but the prosecution cannot introduce it against the D
· concerned about the CC – only applies when the report is
introduced against the D
· (C) “in civil actions and proceedings and against the Government in criminal
cases, factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information of other circumstances indicate
lack of trustworthiness”
o Governmental investigatory reports carried out pursuant to legal authority
o Unless the circumstances indicate a lack of trustworthiness
o Factors for trustworthiness:
▪ timeliness of investigation
▪ procedures followed
▪ is there a motivation to misrepresent
▪ skills and experience of the investigators
➢ FRE 807 – Residual Exception
o catchall exception
o If proponent is seeking to introduce a OCS and it does not met a specific hearsay exception in
803 or 804, judge has authority to admit the OCS into evidence if he determines that:
▪ The OCS is as reliable and as trustworthy as a OCS that comes within the hearsay excep-
tions
▪ The OCS is the most probative evidence to prove the particular point
o gives judge flexibility when it comes to decision of whether to allow OCS
o legislative history – the use of the exception was intended to be very rare
▪ doesn’t work out this way, courts use it often

50
 Witness Competence
➢ A competent W has the following characteristics:
o Ability to perceive
o Ability to remember
o Ability to communicate
o Sense of the obligation to tell the truth
➢ Common law – certain classes of people are not competent
o convicted felons, parties to the litigation, and spouses
➢ Under FRE – most people are considered competent Ws
o Put them on the stand, bring up on cross-examination any competency or credibility issues
o Let the jury evaluate the strength of the witnesses testimony
➢ Judge determines whether a W is competent or not
o Judge’s competence decisions are given great deference on appeal
➢ FRE 601 – General Rule of Competence
o “Every person is competent to be a W except as otherwise provided in these rules”
▪ very few automatic disqualifications
o In civil cases (mostly diversity cases), the same state law that governs the merits of the contro-
versy will govern the question of witness competence
▪ In federal question cases the FRE determine W competence
o Children Witnesses, must be:
▪ Capable of observing and recollecting facts
▪ Capable of narrating those facts
▪ Does the child have the moral obligation to tell the truth
o The trial judge determines competency
▪ Determination is made by asking the child certain questions that generally are unrelated
to the issues to be testified to at trial
➢ FRE 602 – Lack of Personal Knowledge
o “A witness may not testify to a matter unless evidence is introduced sufficient to support a find-
ing that the witness has personal knowledge of the matter. Evidence to prove personal knowl-
edge may, but need not, consist of the witness’ own testimony.”
o This rule deals with lay or fact Ws ONLY (not experts)
▪ Rules are different for experts – not always required to have personal knowledge
o This rule sometimes overlaps with the rule against hearsay
o Ex – P alleges that prison guard stole his medication. D puts a nurse as the W. The W (nurse)
doesn’t have personal knowledge he is only testifying based on a report she read – W IS NOT
ALLOWED (Kemp v. Balboa)
➢ FRE 603 – Oath or Affirmation
o Oath = expression of responsibility to give truthful testimony to God
o Affirmation = deletes the sense of responsibility to God
o All testimony must be sworn
▪ Unless the objection is waived due to a failure to object in a timely manner (US v. Odom
– objection must be made when the individual is presented as a W)
o NY – all testimony must be sworn, unless:
▪ § 60.20 – applies only in criminal cases

51
 ·If there is a W that is under the age of 9, and the W is incapable of taking an
oath of affirmation because he doesn’t understand the nature of the oath, the
court has the authority to allow the W to give unsworn testimony provided
the court is satisfied that the W possess sufficient intelligence and capacity to
give testimony
o applies to mental disabilities also
▪ provision – while the unsworn testimony may be received, a criminal conviction may
not be based entirely on such unsworn testimony
· need other evidence that points to the guilt of the D
➢ FRE 605 – Competency of Judge as W
o The judge may not be a W in the case over which he is presiding
o The point can be raised on appeal, even though there was no objection at trial
o Rationale – jurors may overvalue his testimony
▪ Judge needs to be neutral
o Rule prohibits the judge from testifying ONLY on the trial that he is presiding
▪ Doesn’t prevent him from being a W at some other case
➢ FRE 606 – Competency of Juror as W
o (a) At the trial
▪ member of jury may not testify as a W before that jury in the trial of the case in which the
juror is sitting
▪ the objection must be made
o (b) Inquiry into validity of verdict or indictment
▪ comes up post-verdict
· if it comes up during trial, then 606(b) doesn’t apply, but the judge can replace the
juror
▪ prevents jurors from being harassed and questioned – they are not competent as Ws
▪ General rule – jurors may not give testimony for the purpose of impeaching their own
verdicts
· Cannot testify to the internal deliberations of the jurors
o Ex – juror discussions during deliberations, jurors evaluation of the evi-
dence, jurors emotion reaction, understanding or lack of understanding of
the jury instructions, even physical threats by one juror against another
(some courts have held this infringes the Ds right to a fair trial)
o Tanner – jurors drinking alcohol and doing drugs during trial = internal
o AC – quotation verdict not allowed – amount of damages
o Rationale:
▪ Furthers finality of verdicts
▪ Protects the privacy interests of the jurors
· Exception – external influences
o The jurors may be permitted to testify to some outside (extraneous) influ-
ence that is brought to bear on the jurors
o Ex – one or more jurors brought in newspaper account of trial into deliber-
ations, some outside threat against the jurors, attempt to bribe a juror, ju-
rors were watching TV shows about the case, juror conducted his own in-
vestigation

52
 o Rationale
▪ there are important legal interest in promoting finality and protect-
ing jurors, BUT there is a more important interest in trying to in-
sure that jury verdicts are based solely on the evidence presented
at trial
▪ Jurors CAN testify to correct a mistake in the money damages awarded
· Ex – jury decides a verdict of $500,000, but when written down, two zeros are
missing. The jurors may testify that they intended to give $500,000.
o It is part of the internal workings BUT this testimony is allowed because
the jurors are not testifying in a way to attack or impeach the verdict, only
testifying for correcting a mistake
➢ Attorneys as Ws – FRE are silent
o No absolute rule that would prevent an attorney from being a W even in the case that the attorney
is litigating
o Two critical points:
▪ rule of professional responsibility – if the attorney knows that he or she is likely to be
needed as a W then the attorney should refrain from providing representation in the case
▪ trial judges generally do not like for attorneys to have two roles – likes one or the other
· If attorney is called as a W, the chances are the judge are not going to let the attor-
ney testify as a W or alternatively he can disqualify the attorney from represent-
ing the client in this case
o Not an absolute right to have the counsel of your choice
➢ Hypnosis (Rock v. Arkansas):
o Facts:
▪ D charged with killing her husband
▪ D was placed under hypnosis
· Now she remembers what happened, at the time of the gun went off, her hand was
not on the trigger
o Holding (3 categories of law):
▪ Group 1 – Arkansas rule (and NY) – if W placed under hypnosis – W may testify ONLY
to what was recalled prior to the hypnosis
· Cannot testify to things she remembered after hypnosis
· Rationale – Hypnosis is not sufficiently scientifically reliable
Problems with hypnosis
o Hypnotic examine might suggest answers to the patient
o Answers might be given to please the examiner
o Some individuals as a result of having been placed under hypnosis are so
firm in his position, that the individual is not subject to meaningful cross-
examination
▪ Group 2 - that if a W is placed under hypnosis, then W is NOT competent and cannot
testify
▪ Group 3 - (2d Cir.) – no absolute rule that would prevent an individual who has been
placed under hypnosis to what he recalls as a result of the hypnosis, however before al-
lowing such testimony the trial judge must use procedures that attempt to determine
whether this recollection that the W claims to have is not the result of suggestibility and
seek to ensure that W is subject to meaningful cross

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 · Some courts require that the hypnosis be tape recorded
o Absolute bar to testimony is unconstitutional (group 2), BUT can have a case by case determi-
nation
▪ Doesn’t mean that the judge has to allow all post hypnosis memories
o Decision is limited to when the criminal D is testifying, as a W
▪ Seem to also encompass criminal defense Ws
▪ Just as the D has the right to testify on her own behalf, D has a right to call Ws on her
own behalf
· Right to use the compulsory process – subpoena people to testify
▪ NO application for P’s Ws and civil cases
➢ Dead Man’s Statutes
o Rule of competency
o NY - § 45:19 – Civil Practice laws
o Provision that applies only in civil cases
o No provision in the FRE
▪ BUT, in diversity cases in federal court, federal courts are required to use the same state
law for determining issues of W competence that the court uses to determine the merits of
the case
· Once you decide to use NY law, you have to use it throughout
o Elements:??
▪ Must be a civil case
▪ A person who is interested in a transaction
· Someone who has a legal interest, fiscal, or proprietary interest in the litigation
· Transaction means a volitional act (NOT a car accident – Farley v. Collins)
o NY statute specifies what transactions are included
▪ Is incompetent to testify to a personal transaction or communication with the deceased
· Rule of W competence
▪ When the testimony is sought to be offered against the estate of the deceased, successors
of interest, etc.
o Theory / Rationale
▪ Two parties to a transaction and one is deceased, there is too much of a danger that the
survivor may give fraudulent or fabricated false testimony

Direct Examination
➢ FRE 611 – Mode and Order of Interrogation and Presentation
o (a) – Control by court
▪ The court shall exercise reasonable control over the mode and order of interrogating Ws
and presenting evidence as to
· 1) make the interrogation and presentation effective for the ascertainment of the
truth
· 2) avoid needless consumption of time, and
· 3) protect W form harassment or undue embarrassment
o (b) – Scope of cross-examination – (see below)
o (c) – Leading Questions
▪ General prohibition to the use of leading questions on direct examination

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 ▪ Leading question = question that suggests the desired answer
· If you look at the question, under the circumstances (the wording as well as the
gestures and tone), would an ordinary person reach the conclusion that the attor-
ney desires a particular answer
· Ex – “the light was red, wasn’t it?” = leading question
o Easy to fix – “what color was the light?”
· Questions that assume facts that are in controversy = leading question
o Ex – what was the P doing when the D beat up his cousin?
o If there was a factual dispute as to whether D in fact beat up his cousin
then this is a leading question
▪ Rationale – direct examination, the assumption is that this is a suggestible set of circum-
stances
· Atmosphere of comfort
· Danger that the attorney might ask a question in a way that suggests to the W a
specific answer
· The law wants the Ws testimony, not the attorneys
▪ Exceptions (on direct examination) – rationale no longer applies
· Leading questions may be allowed when the question will be helpful in trying to
develop the Ws testimony
o specifically, preliminary and inconsequential questions
▪ ex – you are Jane Doe, right?
▪ trying to get the W comfortable
o some Ws might need assistance
▪ ex – W who is having memory difficulties, nervous W, mental de-
fect, young children, elderly Ws, etc.
· Party calls the adverse party as a W, OR someone who is closely related to the
opposing party (close friend, family, agent, etc.)
o makes sense to allow leading question – not a conformable, suggestible
situation - danger of suggestibility not there (rationale doesn’t extend)
· W is a hostile W
o Someone by his testimony as indicated a certain defiance
o If W is declared a hostile W then you can ask leading questions
▪ Cross-examination – leading questions are ordinarily permitted
▪ Use of leading questions rarely leads to reversals, it is usually harmless error
➢ Memory Difficulties
o The law of evidence has two potential devises to assist Ws who are having problem remember-
ing
▪ As well as the use of leading questions
o FRE 612 – Present recollection Refreshed [or revived]
▪ Attorney can show the W some sort of writing (can also be something other than a writ-
ing, just something to refresh memory) and the W says, “oh, now I remember”
· Ws memory has been refreshed or revived
▪ Writing that was used is an aid or assistance – NOT evidence
▪ Opposing counsel is entitled to 3 procedural protections:
· Have the writing produced and have the opportunity to inspect it

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 o The writing might be too suggestive
· Opportunity to cross examine the W using the document
o In order to point out discrepancies between the testimony and what is on
the document
o OR, the Ws testimony too closely follows the document – therefore, she
doesn’t remember it, she was just reading it
· Seek to introduce the writing into evidence, so the jury can engage in its own
comparison
· NOTE! This might occur at two different points of time
o At the trial itself, OR
o Prior to the trial
· If document was used at trial, these 3 procedural protections are an absolute right
o BUT if they were used in an attempt to refresh recollection of W prior to
trial (outside the court), then the 3 procedural protections are not absolute
rights, they are matters of discretion for the judge
o FRE 803(5) – Past recollection recorded
▪ Hearsay exception
▪ Authorizes the introduction of past recorded hearsay statements where the W at trial no
longer adequately remembers the substance of the writing
▪ Elements:
· Subject matter of the document – W knew it then, but...??
· Don’t have sufficient recollection now to testify fully and accurately
o Not a requirement that the W have no recollection, requirement is insuffi-
cient recollection to testify
· Document was made [or adopted] (can be someone else’s document) close in time
to the event
o Not immediately, but close – timeliness – to ensure reliability
· W says that when she made the document, it was accurate
o W must participate in preparing the prior statement, otherwise it should be
excluded
▪ Elements add up to a case where there is necessity and sufficient indicia of reliability of
the documents
· Also need prior first hand knowledge
▪ Document is supplementing the Ws testimony
· The document itself is the evidence
▪ If the writing meets the hearsay exception, you may read the document to the jury
· Cannot introduce it into evidence as an exhibit, don’t want the document going to
the jury room, jury might over analyze it or give it undue weight – want to treat it
the same as oral testimony
· However, the opponent, if he chooses can have the document submitted into evi-
dence (now the jury has it in their possession)

Opinion Testimony
➢ Lay Witness Opinions

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o Common law & NY – W can only testify to facts, not opinion
▪ Don’t want the W to draw inferences or conclusions, this is the jury’s role
▪ Exception – can give opinion if it is the only way to describe the incident
o FRE 701 – Opinion Testimony by Lay Witness
▪ If the W is not testifying as an expert, the W’s testimony in the form of opinions or infer-
ences is limited to those opinions or inferences which are:
· (a) rationally based on the perception of the W (personal knowledge),
o Gov’t of Virgin Islands v. Knight – eyewitness testimony should be al-
lowed because he was present – had personal knowledge
· (b) helpful to a clear understanding of the W’s testimony or the determination of a
fact in issue, AND
o must be helpful to the trier of fact
· (c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702
o this was added in an amendment in 2000
o to distinguish between lay and expert opinions
▪ don’t want the lawyer to get expert testimony from a lay W
o Common Law – Ultimate Issue Rule
▪ Ws, lay and expert, may not give an opinion on the ultimate issue in the case
· The determination of the ultimate issue is for the jury to decide, don’t want Ws
taking over the functions of the jury
▪ Ex – W cannot say, “I think the D was negligent”
o FRE 704(a) – Opinions on Ultimate Issue (overturned the common law)
▪ General Rule – testimony in the form of opinion, lay and expert, is not objectionable be-
cause it embraces the ultimate issue to be decided by the trier of fact
▪ (b) – retains the common law ultimate issue rule with respect to the mental state of the
criminal D (either for an element of crime or defense)
· Intent – to make it harder to win on an insanity defense
o Def of insanity (US v. Thigpen) = D must prove that a severe mental dis-
ease or defect resulting in the D not being able to appreciate the nature and
quality of his acts
· So the defense cannot have a W say that the D meets the insanity defense, and the
prosecutor may not have a W say that the D is not insane.
o The expert may state that generally people with this mental condition can-
not appreciate the nature of their conduct, but they may not “thinly veil a
hypothetical.”
▪ The expert cannot give a specific conclusion that this D could not
appreciate the nature of her conduct.
· Expert can state the medical aspects of D’s condition (type of mental disease,
symptoms, or how the disease may have affected the behavior of the D)
· But, expert cannot testify that as result of the defect the D is unable to appreciate
the nature or quality or wrongfulness of his actions
o This is a legal conclusion and the ultimate issue in the case
▪ Allowed to give opinion testimony on the ultimate issue in the case, unless it deals with
the mental state of the criminal D

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 · However, the opinion must still satisfy 701 and 702 (must assist the trier of fact)
▪ Case law – draws a distinction between opinion testimony based on a ultimate question of
fact and ultimate question of law
· If it is on a ultimate question of fact, then it is more likely that it will assist the
jury
o Ex – I think D was speeding
· If on an ultimate issue of law, then it is more likely that it will NOT assist the trier
of fact
o Ex – I think D was guilty of negligence
o Theory – this is the responsibility of the judge to determine the law and in-
struct the jury on the law
▪ May not assist the trier of fact, if it is too speculative or tentative
· However, also cannot demand that Ws testify with certainty, some hesitancy is
okay
▪ May not assist the trier of fact, if it is about a legal concept that hasn’t been defined by
the attorney
· “I think the deceased had sufficient capacity to make the will”
o the concept of capacity to make a will, must be defined by the attorney
o otherwise, it is no held to the jury, because they don’t know what suffi-
cient capacity to make a will is
➢ FRE 702 – Testimony by Experts
o Expert testimony is permitted if scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue
o Qualified as an expert by knowledge, skill, experience, training, or education
▪ Can qualify as an expert by self-learning (= knowledge)
▪ Anyone can be an expert; career criminal, carpenter for 30 years, etc.
o Expert may testify in the form of opinion if
▪ (1) the testimony is based upon sufficient facts or data
▪ (2) the testimony is the product of reliable principles and methods, AND
▪ (3) the W has applied the principles and methods reliable to the facts of the case
o Expert testimony must assist the trier of fact
▪ Most important concept
▪ If expert is well-qualified, highly likely will assist trier of fact
▪ The expert’s testimony must be about a subject or issue that is beyond the knowledge of
an average juror in order to assist the trier of fact
▪ Judge often uses 403 in determining whether the testimony will assist the trier of fact
▪ If expert’s opinion is on an ultimate issue of fact, then it will assist the trier of fact
▪ If expert’s opinion is on an ultimate issue of law, then it will NOT assist the trier of fact
o Expert testimony on an ultimate issue of mental state of criminal D (see supra 704(b))
➢ FRE 703 – Bases of Opinion Testimony by Experts
o May give testimony and opinions even though it is not based on the experts personal knowledge
o Expert testimony may be based on:
▪ (1) firsthand perceptions,
▪ (2) may be based on facts presented at hearing, or
▪ (3) may be based on facts presented to expert before the hearing.

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 o Experts opinion need NOT be based on admissible evidence
▪ May be based on inadmissible evidence, as long as the experts opinion is based upon in-
formation or data that is of a type reasonably relied upon by other experts in the particular
field
o Intent – enable experts to testify in court in a manner that replicates the way they function out of
court
▪ Should allow the expert to rely on the same information in court and out of court
o Problem – this rule became a potentially indirect way for the proponent to get before the jury ev-
idence that would be otherwise inadmissible (in 2000, the rule was amended to remedy this prob-
lem)
▪ If the information or data relied upon is inadmissible, the inadmissible information or
data shall not be disclosed to the jury, unless the court finds that its probative value in as-
sisting the jury in evaluating the opinion for the jury substantially outweighs its danger of
prejudicial effect
· Reverse 403 – presumes inadmissibility
▪ If the judge determines that the jury may learn about this inadmissible information, the
judge should give the jury a limiting instruction
· Jury is consider this info for one purpose only – for the purpose of assessing the
opinion given by the expert
➢ FRE 705 – Disclosure of Facts or Data Underlying Expert Opinion
o The expert may testify in terms of opinion or inference without laying a foundation
o May have to disclose the underlying facts or data on cross-examination
➢ FRE 803(18) – Learned treatises (hearsay exception)
o Common law (& NY)
▪ If expert gives an opinion on the stand, the opposing party can attempt to impeach the ex-
perts opinion by showing that the expert’s opinion is inconsistent with a position taken in
a “learned treatise”
· Concept is broad of what a treatise is – can be an article
o FRE changed common law
▪ Learned treatise may be admissible not only on cross-examination to attack the position
of the expert, but may be admissible on the direct examination of the expert
· Expert can rely upon the treatise on direct examination
o Elements:
▪ Requires that the learned treatise be shown to the trial judge to be sufficiently authorita-
tive
· Zwack – both Ws acknowledged the authoritative nature of the treatise
▪ Learned treatise must be used in conjunction with (while) the expert W is on the stand
testifying
· NEED an expert on the stand, on direct and cross
o Rationale
▪ Expert is on the stand, he can explain the meaning of the information contained in the
treatise to the jury
· Clear up any misunderstandings
o If the learned treatise meets the two elements, the proponent may only read the treatise, cannot
submit it into evidence
▪ The treatise itself is not introduced as a physical exhibit – doesn’t go to the jury

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 ▪ Rationale – don’t want the jurors looking through the treatise or overvaluing the treatise
· Information in written form has an aura of authority to it
➢ Scientific Testimony
o Expert scientific testimony is a double-edged sword
▪ Can provide helpful evidence, but might be too helpful – jury might overvalue it
o Frye test for admissibility of scientific testimony = general acceptance in the scientific com-
munity (common law & NY)
o Daubert test for admissibility of scientific testimony = relevance and reliability more flexible
test (FRE)
▪ Judge is the gatekeeper – must determine whether it is relevant and reliable
▪ Factors for reliability (not an exclusive list):
· Has the particular scientific process been tested or is it subject to being tested
· Has the scientific process been subject to peer review and publication
· Do we know the error rate
· Has it gained general acceptance
o Frye test isn’t totally irrelevant, but it is not dispositive, it is merely a fac-
tor
· Has the scientific evidence been produced for the purpose of litigation?
o If it has, it will create suspicion
o Post-Daubert issues
▪ Daubert applies to ALL expert testimony, not only scientific (Kumho)
▪ Evidence that has been found to satisfy the Frye test, have been found to satisfy the
Daubert test, examples:
· Fingerprint analysis, handwriting analysis, ballistics, radar, DNA,
▪ The results of a polygraph test are generally not admissible under either Daubert or
Frye
▪ Ws who are placed under hypnosis
· Some courts take the position that the recollection that is claimed was enhanced,
is not sufficiently reliable
· Other courts hold that it is reliable
▪ Radar – satisfies both tests, no need for a case-by-case analysis, usually just admitted
➢ FRE 201 – Judicial Notice
o Applies whenever there is a issue of fact where there is no reasonable dispute
▪ So well known, no need for evidence
▪ EX – many individuals travel on the LIE everyday
o (b) 2 categories:
▪ Generally known within the territorial jurisdiction of the court
· issue is not what the judge happens to know personally, it is something that is
generally known by all
· Can possibly be judicial notice in one jurisdiction but not the other
▪ Capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned
· may have certain facts that we cannot say that people in the particular jurisdiction
generally know this fact, BUT we can say there is some readily reliable source for
which this fact can be determined
o the source is not in dispute

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 · commonly called – almanac facts
o EX – calendar – question of what day of week it was
▪ Population and location of cities
▪ Names of different public officials
o Doesn’t mean that everything in the almanac is proper for judicial notice
▪ Ex – account of WW II
· Dates of when things happen will be allowed, but an ac-
count that was more subjective, such as why certain events
took place (which nation was a wrongdoer) this is not the
proper subject for judicial notice
o Procedural aspects of judicial notice
▪ (c) A court may take judicial notice of a fact, whether or not requested by a party
▪ (d) if the parties have been the court the necessary information, the judge must take judi-
cial notice
▪ (f) may to be taken at any time of the proceeding
· on appeal, the appellate court has the authority to review the propriety of the
judge’s taking or refusing to take judicial notice, but the appellate court can take
judicial notice for the first time on appeal, even for the purpose of reversing the
court below
▪ (g) jury instructions are different in civil and criminal cases
· civil – the judge is to tell the jury, you must find the fact that the judge has judi-
cially noticed
· criminal – the judge will tell the jury, you may find the fact the judge has judi-
cially noticed
· Rationale
o Designed to ensure that the taking of judicial notice doesn’t interfere with
the Ds right to a trial by jury
o Scientific evidence
▪ At a certain point, we might say that a particular scientific process, like radar, the court
can judicially notice the scientific reliability of radar
▪ Two questions:
· The general reliability of the scientific process
o Radar has been well established to be sufficiently scientifically reliable
o Same as DNA testing
· How was the scientific process used in this particular instance
o What type of equipment was used in this instance, was it in good working
order, who used the equipment, how was it used, experience of officer
o This can be put to the test, in any given instance
o This is how to contest it

Cross-Examination
➢ Cross examination is regarded as the best vehicle that the law of evidence has for determining whether
the W is giving truthful testimony
➢ It is a right under the FRE

61
 o and in criminal trials, a right granted by the Const. – CC
➢ FRE 611(b) – Scope of Cross
o Limited to the subject matter of the direct AND the credibility of the W
▪ Cross examiner may attempt to impeach the credibility of the W
o “Subject matter of direct” – broad, flexible concept
▪ trial judge will figure it out in his own mind – discretion
▪ the subject matter of direct and cross should be same
▪ not a mandatory rule
· trial judge may broaden the scope, in discretion, into matter as if it is on direct ex-
amination (Lis v. Robert Packer Hospital)
· If judge allows new matter to be brought out, we have to give an opportunity of
opposing counsel to cross (really re-direct)
o If new matter is again brought out, then we need re-cross
o Have to preserve cross examination
o Rationale – promotes orderly presentation of testimony

Impeaching Credibility
➢ 7 methods to impeach credibility:
o W has disability in one or more of the attributes to being a competent W
o Bias or interest of W
o Conviction – W was convicted of prior crime
o Showing W engaged in act of moral turpitude
o W has bad character for truth and veracity
o Prior inconsistent statements
o Specific contradiction
➢ Not all these methods are explicitly covered by the FRE, but are recognized by courts
o There are both vital and collateral impeachment methods:
▪ Vital – extrinsic proof allowed
▪ Collateral – no extrinsic evidence, have to take the answer the W gives (can press the is-
sue a little, but cannot introduce any additional evidence)
➢ 2 ways to impeach:
o W is on the stand, cross examiner might ask questions of the W
▪ Ex – isn’t it true that you were convicted of a felon 3 years ago
o Cross examiner may impeach credibility by introducing other evidence
▪ Ex – document or transcript, even the testimony of a second W
▪ When the law of evidence allows this type of evidence to used to impeach the credibility
of the W, in addition to asking the question to the W on the stand – it is called extrinsic
evidence
➢ FRE 607 – Who May Impeach
o “The credibility of a witness may be attacked by any party, including the party calling the W”
o Therefore, you can impeach your own W if he gives testimony contrary to what you believed he
would testify to

62
 ▪ However, purpose of impeachment CANNOT be to admit otherwise inadmissible evi-
dence
▪ Under 607, many courts do not allow a party to impeach the credibility of its own W by a
prior inconsistent statement when the judge comes to the conclusion that the proponent is
attempting to engage in a subterfuge to avoid the rule against hearsay (US v. Webster)
▪
o FRE abolishes the common law voucher rule – if you call a W you cannot impeach him
➢ Method 1 – W has disability in one or more of the attributes to being a competent W – VITAL
o Allow cross examiner to impeach credibility of W, by showing that the W has some disability re-
lating to one or more of the 4 attributes to be a competent W
▪ Ex – alcohol problem, drug addiction, mental disability, physical disability (hearing or
seeing), recollection problems
o Broad method of impeachment
o VITAL method
▪ Goes right to question of whether person has competence to be a W
▪ MAY be able to introduce extrinsic evidence (not unlimited extrinsic evidence though, it
is regulated by FRE 403)
➢ Method 2 – Bias or motive to favor one party or another (interest / hostility) – VITAL
o W is predisposed to favor one party over another party
o Broad method of impeachment
o bias may come about due to some relationship (friends, family, etc.)
▪ could be a financial interest
▪ W may have struck a deal with the prosecutor
· Defense attorney should be able to bring out this bias
▪ May be hostility due to some personal feud
o NOT in the FRE
▪ But SC has held that the FRE did not intend to overturn this long standing method for im-
peaching the credibility of a W
o VITAL method
➢ Method 3 – Showing that the W was convicted of a crime in the past – VITAL
o FRE 609 – Impeachment by Evidence of Conviction of Crime
o 3 different categories of convictions:
▪ Certain crimes for which individuals may be convicted of that have as their elements an
element of dishonesty, deceit, or false statement (crimen falsi)
· Ex – perjury, false statement, criminal fraud, embezzlement
o Not bank robbery (US v. Bracken)
· Goes right to the heart of credibility – close nexus
· ALWAYS usable to impeach
o doesn’t matter if it is criminal or civil, if it is the P or D W, felony or mis-
demeanor
o 403 is NOT applicable
▪ Convictions for other felonies
· “other” = convictions for serious crimes (felonies) but do not have an element of
false statement or deceit
o if there was deceit, it would be in the first category

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 · If W is criminal D, special provision to protect criminal D
o If D testifies on his own behalf and P seeks to impeach credibility with an-
other felony, P has to convince judge that the probative value of the
other felony, outweighs the prejudicial effect
▪ Reverse 403 – presumes inadmissibility
▪ Burden on proponent
▪ Rationale – giving special protection to criminal D, in recognition
of his precarious position of deciding whether to testify in his own
behalf
▪ 5 part balancing test:
· the impeachment value of the prior crime
· the point in time of the conviction and the W’s subsequent
history
o more recent, the more likely it is probative
o 10 year rule  if conviction is more than 10 years
old it is deemed too stale – not absolute rule, but
very persuasive
· the similar between the past crime and the charged crime
o greater danger that jury would engage in think-
ing that connects the past and present crimes
· the importance of the D’s testimony
o when we want to encourage D to testify, then we
should not allow a prior conviction to impeach
· the centrality of the credibility issue
o when the credibility is more important, then we
should allow prior conviction to impeach
o State v. Roy – conviction of taking indecent liberties (felony) – burden on
P to satisfy the reverse 403 test
· If W is prosecution W or W in civil cases
o Subject to normal rule 403
o Presume admissibility of other felony to impeach
▪ Misdemeanors for which there is no element of false statement or deceit
· A W who has been convicted of a misdemeanor, no element of false statement,
NOT USABLE TO IMPEACH
o Misdemeanor is relatively insignificant
· Convictions below the grade of misdemeanor (traffic violation) are also not use-
able
· Adjudications of delinquency
o Normally not usable (maybe in an extreme case)
· Arrest
o Only a conviction, not an arrest under Rule 609 (arrest is just a charge)
▪ NOTE! Need to give a limiting instruction if evidence is admitted, to limit the evidence
to issues of credibility

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 ▪ NOTE! If conviction is usable, the evidence should be limited to the record of convic-
tion (nature of crime, when and where convicted, and the sentenced imposed – NOT de-
tails)
o D faces a tough choice in testifying or not
▪ If he doesn’t testify then the jury will not hear his account of what happened
▪ If he does testify then his credibility can be impeached by prior convictions that he
doesn’t want the jury to hear about
o NY – helps the D out a little
▪ Gives D the right to obtain from judge a pre trial ruling as to the admissibility of convic-
tions to impeach credibility if he chooses to testify (Sandoval ruling)
· D can contest Sandoval ruling on appeal
▪ Federal court – no right to a pretrial determination, but federal courts do use a motion in
limine (judge has discretion whether to make a ruling)
· United States v. Luce – If D doesn’t testify at trial, then D on appeal, may not con-
test the pre-trial ruling concerning the admissibility of prior convictions to im-
peach
➢ Method 4 – In the past the W engaged in an immoral or wrongful act – COLLATERAL
o The wrongful or immoral act must be probative of the issue of credibility (needs to be a close re-
lationship between the two)
o FRE 608(b) – Specific instances of conduct
▪ “Specific instances of the conduct of a witness, for the purpose of attacking or supporting
the witness’ credibility…may not be proved by extrinsic evidence. It may be inquired
into on cross-examination of the witness.”
▪ May inquire on cross, in the discretion of the court , if probative of truthfulness or un-
truthfulness
· (1) concerning the Ws’ character for truthfulness or untruthfulness, or
· (2) concerning the character for truthfulness or untruthfulness of another W as to
which character for the W being cross-examined has testified.
o US v. Gustafson:
▪ D invokes his 5th A right when asked about his possession of stolen property
▪ Cross- examiner must have a good faith basis for asking about prior acts
o EXAMPLE:
▪ D was questioned during cross examination about several prior acts that involved posses-
sion of stolen property. The D plead the 5th. The court ordered him to answer which he
did. REVERSED. When a prosecutor asks a D about a prior act when there is no convic-
tion, it may be reversed absent a showing of probative value.
o TEST: Questions dealing with prior bad acts without a conviction must be asked with good
faith (prosecutor must have credible knowledge that the event occurred), the court must decide
if the probative value outweighs the prejudicial effect (FRE 403), and the misconduct must re-
late to truthfulness or untruthfulness.
o Collateral method
▪ Doesn’t mean that cross-examiner must accept witness’ answer – cross-examiner may
press the issue (ex. Remember you are under oath) until Judge says no more
o 5th Amendment privilege against self incrimination can be invoked
▪ If its the type of conduct that can be the basis of a prosecution or provide evidence in a
criminal prosecution, W on cross claim raise the 5th

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➢ Method 5 – W has bad character for truth and veracity – VITAL
o FRE 608(a) – Opinion and reputation evidence of character
▪ The credibility of a witness may be attacked or supported by evidence in the form of
opinion or reputation.
· (1) Evidence may ONLY refer to character for truthfulness or untruthfulness and
· (2) Evidence of truthful character is admissible only after the character of the wit-
ness for truthfulness has been attacked by opinion or reputation.
o Therefore, The proponent may not accredit the W’s character until the
opponent discredits the W’s character
o Difficulty arises because not every impeachment attack on a Ws credibil-
ity is an attack on character
▪ Ex – prior convictions or prior immoral acts – character
▪ Ex – bias – goes to character of truth and veracity
▪ Ex – bias designed to show that the Ps W is in fact the cousin of
the P
· Impeachment attack on Ws credibility, BUT NOT a attack
on the Ws character
▪ Ex – W has bad memory – not an attack on character
▪ Ex – prior inconsistent statement
· Depends what the cross examiner is implied in bringing out
the prior inconsistent statement
o Character is proven in the form of reputation or opinion
o Cross examiner must call a second W, who is a character W
▪ Will be permitted to testify the 1st W has bad character
o Allows for extrinsic evidence, but only a specific type
▪ Reputation or opinion
▪ May not specify the specific acts engaged in by the W
o Need to lay a foundation
▪ W must testify that he is in a position to testify to the other W’s character
o Criminal Case – When D testifies on his own behalf he becomes a W, D hasn’t placed his char-
acter in issue, but he has placed his credibility in issue
▪ One way of attacking credibility is to show that W has bad character for truth and verac-
ity
▪ Opens to door to attacks on credibility only
· However, essentially opens the door to character evidence, because this is one
way of impeaching credibility
· But the character evidence must relate to the W’s truthfulness
▪ Judge should give a limiting instruction
➢ Method 6 – Showing that the W has made a prior inconsistent statement – VITAL & COLLATERAL
o W testifies at trial that the light was red, attorney then seeks to impeach his credibility by show-
ing on a prior occasion the W said that the light was green.
o Can be an inconsistent oral or written statement
▪ Or silence (an omission) – State v. Hines
▪ Test for when omission or silence is an inconsistent statement – would it have been natu-
ral for the person to make the assertion in question?

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o FRE 613 – Prior Statements of Ws
▪ (a) “While examining a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its contents disclosed to the
witness at the time, but on request the same shall be shown or disclosed to opposing
counsel.”
▪ (b) “Extrinsic evidence of a prior inconsistent statement by a W is not admissible unless
the W is afforded an opportunity to explain or deny the same and the opposite party is af-
forded an opportunity to interrogate the W thereon, or the interests of justice otherwise
require. This provision does not apply to admissions of a party-opponent as defined in
rule 801(d)(2)”
o Rationale
▪ Individuals who describe a particular transaction in a consistent manner are likely to be
more believable than individuals who give inconsistent testimony
o Hybrid Method – sometimes vital, sometimes collateral
▪ Depends upon the importance of the Ws testimony on which the cross examiner is seek-
ing to introduce the inconsistent statement
· If it is central to the case and the cross examiner wants to impeach the Ws credi-
bility with a prior inconsistent statement, the judge will say this is vital, allow the
cross examiner to use extrinsic evidence (= show the prior inconsistent statement
by introducing a document or calling a second W who will testify to the inconsis-
tent statement)
o VITAL
· If the testimony sought to be impeach is not central to the case, but tangential,
judge will say you can ask the W about making the statement, but if he denied it
you cannot introduce extrinsic evidence
o COLLATERAL
o Common law & NY
▪ Rule of politeness – give the W an opportunity to explain the inconsistency and details of
the inconsistent statements
▪ Don’t want to surprise the W
o FRE – don’t have to lay a foundation
o Hearsay Aspect:
▪ There is often a hearsay problem because we are dealing with a OCS that the cross-exam-
iner is seeking to introduce into evidence
▪ If the OCS is only being used in order to impeach the credibility of the W, then the
hearsay problem goes away because the OCS is only used for the purpose that the
statement was made (not for the truth of the fact asserted)
· Relevance of the mere making of the statement is relevant on the question of the
Ws credibility
· NEED a limiting instruction
o Can only use the statement for the Ws credibility
▪ FRE Rule 801(d)(1)(A) – hearsay exemption
· IF the inconsistent statement was made under oath at some type of judicial or
quasi judicial proceeding (trial, hearing, or deposition), then it can be used for
ALL purposes, not just to impeach the credibility
o Even as substantive evidence

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 ▪ But must be offered in conjunction with the impeachment of the W
o US v. Castro-Ayon – made a prior proceeding (immigration proceeding) so
it is exempted from the rule against hearsay
· Rule doesn’t require an opportunity for cross examination
o The rule explicitly was designed to allow prior inconsistent statements
made before the grand jury to be used for all purposes, not just impeach-
ment, even though we know at grand jury there is no right for cross
o There is an opportunity to cross examine the W now, even though there
wasn’t one previously
▪ Rule only applies when there is a W is on the stand
· NOTE! Prior inconsistent statements, not conforming to 801(d)(1)(A), are still
available for impeachment purposes ONLY (can’t be substantive evidence)
o Need a limiting instruction
o When the prior inconsistent statement conforms with the rule it serves a
dual purpose:
▪ Can impeach and can be used as substantive evidence
▪ Therefore, no limiting instruction is necessary
o Can only be used as substantive evidence when it satisfies this hearsay
exception.
· Usually no CC issue
· The W who made the prior inconsistent statement must be present to testify
o Obviously because you are impeaching his credibility with the prior incon-
sistent statement
· Unlike former testimony exception, this exemption applies to grand jury proceed-
ings
· DON’T need a limiting instruction, because the prior inconsistent statement that
was made under oath is admissible for all purposes
· Rationale
o If it was made under oath at one of these proceedings, there is likely to be
a transcript available and there is an indicia of reliability
· If the statement is in a letter or given to a police officer, doesn’t come within this
exemption
o Not in an affidavit either, not made in a proceeding
o Grand jury – YES
o General Rule – cannot show that a W made a prior consistent statement
▪ Law of evidence says that the fact that an individual makes the same statement more than
once does not make the statement more believable or if it does maybe only slightly so,
but not sufficiently so to take up the time of the court in allowing the proponent to intro-
duce the prior consistent statements
· The mere fact that the W made a consistent statement in the past doesn’t mat-
ter, cannot introduce it into evidence
▪ FRE 801(d)(1)(B) – hearsay exemption
· proponent may introduce the prior consistent statement into evidence when on
cross, the cross examiner has charged that the W’s testimony was the result or
product of a motive to falsify and the consistent statement was made prior to the
motive to falsify (Thome v. US)

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 o must make the statement before motive to fabricate
· hearsay exception is conditioned on whether the opponent opens the door by at-
tempting to impeach the W (charging him with a motive to falsify)
o a showing of a lapse in memory is not sufficient
· Elements
o Cross examiner charges that the Ws testimony on direct was the product of
a motive to falsify
o Consistent statement must have been made prior to the time the motive to
falsify existed
▪ Rationale
· proponent is basically saying that the motivation theory doesn’t work because
prior to the motive to fabricate, the witness said the same thing.
▪ Example: auto accident.
· Car collides with Thompson Trucking truck. Assistant with trucker, Adams. Ac-
cident occurred in 1997. Trial is in 1999. Δ Truck calls Adams as witness during
trial who testifies that the Car swerved and hit Truck. Plaintiff during cross ex-
amination asks about Adams’ recent promotion in August of 1999. Car is imply-
ing a bribe. Truck introduces a statement made to p.o. in September 1999. IN-
ADMISSIBLE. Statement was not made prior to the motive to fabricate. If pro-
ponent introduces a statement made in June 1999, ADMISSIBLE because it was
made prior to the motive to fabricate. Temporal requirement.
➢ Method 7 – Specific Contradiction
o Fairly broad method
o Issue – whether the cross examiner may introduce extrinsic evidence in order to specifically con-
tradict the testimony that the W gave on direct?
▪ NOT to show that an inconsistent statement was made, just to show that the facts testified
to by the W simply did not occur or were incorrectly stated
o Well-recognized, long standing method
o Not in FRE
▪ Doesn’t mean it doesn’t apply in federal court (similar to bias)
o Extrinsic evidence allowed?
▪ Some courts use 403 to resolve whether the cross examiner may introduce extrinsic evi-
dence
· Ask – what is the probative value of this evidence & what is the danger of confu-
sion or misleading the jury
▪ Other courts say that it depends upon whether the fact that is sought to be specifically
contradicted is essential to the case or collateral to it
· If essential, more likely to allow extrinsic evidence

Real and Demonstrative Proof

➢ Physical Objects, 2 categories:
o Real evidence
▪ the actual object itself that was involved in the transaction
▪ Ex – ax, gun, knife, etc.

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 o Demonstrative evidence
▪ physical objects that demonstrate or illustrate the thing itself
▪ ex – photo, model, video, chart, map, etc.
➢ Real Evidence
o Not in the FRE – judges normally use FRE 403 and authentication and identification rules (FRE
901) to determine admissibility
o Real evidence has high probative value – jury can evaluate with its own eyes, not depending
upon the credibility or accuracy of someone else’s testimony
o Can be used to illustrate the effect of a physical condition
▪ Ex – arm injury – pain is so severe, can’t raise arm
▪ Courts are more reluctant to admit this evidence, because there is a chance that the person
is faking it
· But that doesn’t mean that it is never admissible
o Roles within the judiciary system (US v. Johnson):
▪ Role of Proponent – P must introduce sufficient evidence so that a reasonable jury could
find that this object is what it purports to be
▪ Role of Judge – decides whether sufficient evidence was presented so that a reasonable
jury could find that the object is what it purports to be
▪ Role of Jury – decides if the object is what it purports to be
o When numerous people handle the evidence (US v. Olson):
▪ There is a danger of possible tampering or exchanging the evidence
▪ Law of evidence says that the proponent of the real evidence has to trace the chain of cus-
tody in attempt to show it wasn’t tampered with or exchanged.
· Introduce evidence to account for each custody of the evidence in order to con-
vince judge that there was no realistic possibility that tampering or exchange oc-
curred
· Don’t need to show absolute certainty – not realistic
▪ TEST: A reasonable certainty/probability that this real evidence is what it purports to be
and that this evidence was not tampered with or exchanged (lenient standard)
o Jury View:
▪ If the physical evidence cannot come to the court room, the trier of fact can go to the
physical evidence (a field trip)
▪ Trial judges have inherent authority to allow a jury view, whether criminal or civil case
· Even though no specific statute allowing jury views, inherent/automatic authority
▪ Bottom line  matter of discretion of trial judge – should consider the factors that are
prominent under 403
· How important is the jury view to the jurors
· Is there an alternate way to get this evidence to jury (photograph, video, etc.)
· Has the location or object changed in some way since the event in question (dan-
ger of misleading the jurors)
▪ Not favored by judges
· Time consuming, disrupts flow, has to policed and supervised
· NY – judge must attend, attorneys and parties have right to attend
▪ NY – in a criminal case, if the jurors engage in an unauthorized viewing, it is inherently
prejudicial error
· Cannot be harmless error

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 · CIVIL case – not automatically reversible error, can be harmless
▪ Procedural Effect:
· Original view – jury view is not itself evidence – only a type of aid or assistance
to helping jurors understand testimony in the case
· More recent decisions reject that notion and consider the jury view evidence (Prof
agrees with this position)
➢ Demonstrative Evidence
o Not the object itself, but objects that demonstrate the thing itself (ex – chart, photo, etc.)
o Experiments:
▪ Can be in court or out of court (in court is time consuming and confusing to jurors)
▪ Rule 403 matter –trying to asses probative value and countervailing factors
▪ KEY focus – was the experiment performed under conditions that were substantially
similar to the conditions that existed during the event in question (US v. Fusco)
· The more substantially similar the experiment is to the event in question, the
higher the probative value, and vice versa
o Reenactments:
▪ Party trying to reenact what took place
▪ KEY – does the reenactment fairly depict what took place in the actual event
· Jurors could be seriously misled if not
· 403 issue
▪ Judge may ask to see the reenactment outside the jury, before ruling on its admissibility
o Still Photographs:
▪ Must lay a foundation, need a W who can:
· Identify what is on the photo, and
· Be in a position to testify that what is depicted is accurate
o Reason it is important, is because photos have the potential to distort, due
to angle, lighting conditions, etc.
· NOTE! Foundation W can be the person who took the photo, but doesn’t have to
be
o Personal knowledge?
▪ Issues with photos:
· Problem of Changed Conditions – Object changes from the time the picture was
taken and now (Ex – a lake – higher water level)
o Not automatically inadmissible
o Rule 403 issue
▪ Lowers the probative value of the photo and increase the danger to
mislead
▪ Look at (factors):
· Extent of change
· Importance of the change
· Gruesome photos
o US v. McRae
▪ Photo was gruesome but so was the crime
▪ Mere fact that a photo might be gruesome is not going to lead to
automatic exclusion of photo

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 o Rule 403 issue
o Photo is likely to be excluded if the only purpose to introduce the photo is
the provoke an emotional reaction on behalf of the jury
o Video Tapes:
▪ Often a question of relevance – is the videotape relevant to the issues being litigated
▪ Rule 403 issue as well – possible distortion – lowers probative value and increase danger
to mislead the jury
▪ Traditional foundation:
· Testimony identifying what is depicted on the tape, AND
· The video tape is a fair and accurate portrayal of what it purports to depict
▪ Alternative foundation (Silent W Rule) (Fisher v. State):
· The evidence speaks for itself
· It is substantive evidence of what it portrays independent of a sponsoring W
· Ex – Fisher – evidence – video tape of a theft
o P introduced testimony of store owner who testified as to how the tape
was made, where recorder was set up and how it was stored and checked
and that he had custody of the videotape at all times
▪ If it is only a partial depiction, then this becomes an issue that must be taken into consid-
eration under 403
▪ Video tape of experiment (see also supra) (US v. Fusco):
· P was injured in car accident and sues GM
· Evidence issue – admissibility of video tape of an experiment
· Conditions must be substantially similar
o Here they were not
· 403 issue
o how is the jury going to weigh and value it
▪ if it is an attempt to recreate the accident, then it should be ex-
cluded because it was not substantially similar conditions
▪ If, on the other hand, that the jurors would only see it to explain the
scientific principles then it is okay
o HERE, court said the risk of misunderstanding and confusion is too great,
need to exclude the tape

Authentication and Identification (Documents and Voice ID)

➢ Document has been signed – the proponent must authentic the handwriting
o Proponent has burden to prove its authenticity
➢ Authentication – showing that the handwriting is genuine, not a forgery or a fake
➢ Conditional relevance
o only relevant if it is what it purports to be
o condition is authenticity
➢ Normally, when the proponent seeks to introduce documentary evidence, the proponent has the burden
of producing sufficient evidence that would allow a reasonably jury to find that the document is authen-
tic
o judge decides if proponent has met this burden

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 o IF yes, then the judge gives the issue to the jury and the jury makes the ultimate determination as
to whether to document is authentic
▪ Whether the document is authentic – Issue of fact for the jury
o IF judge finds that a reasonable jury cannot find it authentic, he will exclude it
➢ Judge can ONLY rely on admissible evidence
o Because the jury can only rely on admissible evidence
o Different than 104(a) (can consider inadmissible evidence)
o Not determining admissibility of evidence, it is a matter of conditional relevance under 104(b)
➢ FRE 901 – requirement of Authentication or Identification
o (a) General Provision – “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.”
o (b) Illustrations – “By way of illustration only, and not by way of limitation, the following are
examples of authentication or identification conforming with the requirements of this rule”
▪ this list is illustrative, NOT exclusive
▪ (1) Testimony of W with knowledge
· anyone who saw the individual who signed a document can testify to it in court
(including the person who actually signed it)
· Is the person who witnessed the signing required to testify in order to authenti-
cate?
o called an attesting or subscribing W
o General rule – NO
▪ The fact that there was an attesting W, doesn’t mean that he has to
be called
▪ Proponent can use any permissible method to authenticate the sig-
nature
o Exception – FRE 903
▪ If the law of the jurisdiction that governs the validity of the docu-
ment requires that a attesting W be called to testify, then the propo-
nent must call those Ws
▪ Ex – NY – general rule – to admit a will into evidence during pro-
bate, the proponent must call 2 attesting Ws
▪ (2) Nonexpert opinion on handwriting
· Anyone who is familiar with X’s handwriting can give a opinion as to its authen-
ticity
o EX - “based on my familiarity with X’s handwriting, I think this is it”
▪ W has a mental image of what X’s handwriting looks like (testify-
ing based on this mental image)
o Fairly unreliable testimony, but still permitted
o Proviso – the familiarity that the W has, cannot be familiarly attained for
the purpose of litigation
▪ (3) Comparison by trier or expert W
· Sample (called an exemplar) of X’s handwriting on another document
· First need evidence that in fact the sample was signed by X (parties should be
able to stipulate to this)

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 · May be authenticated by testimony that the signature on the writing in question
was signed by the same person who signed the sample
o need somebody to make a comparison
· Who can make the comparison?
o Handwriting expert
o The jurors (just submit the two samples to the jury and let them decide)
o NO lay W (cannot add anything to what the jurors can do)
· NY – jurors can make the comparison for fingerprint evidence
▪ (4) Distinctive characteristics and the like
· need to show there is something distinctive about the document and it must be ac-
companied by circumstantial evidence
· Solicited reply doctrine
· A disputed document can be authenticated by evidence that it was written in re-
sponse to a prior communication to the alleged author.
· Ex. W on stand testifies that he called John Smith and asked if he had any infor-
mation about pink elephants. Three days later, there was a letter concerning pink
elephants signed by x.
o This is distinctive because it deals with pink elephants
▪ (5) Voice Identification
· Authentication and identification go together
· Audio tapes, video tapes, and telephone calls
o video tape might have a audio component
· In order to identify voice (foundation):
o W’s familiarity with X’s voice
▪ If proponent is familiar with person’s voice can testify, “I was fa-
miliar with X, I spoke to her on the phone”
o Something distinctive about conversation may serve as sufficient evi-
dence – (ex - W on stand testifies that he wrote a letter a John inquiring
about availability of purchasing pink elephants – later, received a phone
call from someone claiming to be John and told him about the pink ele-
phants)
▪ the distinctive nature of the contents of the conversation together
with the other circumstances (writing of letter inquiring for this in-
formation) may be sufficient evidence for voice identification
o High probability  if witness on stand testifies, “I looked up Jane’s
phone # and I placed a call to that # and the individual who answered
identified herself as Jane Smith – high probability that no fabrication took
place
· NOTE! Doesn’t have to be at the time of the conversation, may have gained the
familiarity afterwards
o Rule states, “any time” – before or after the conversation
· Audio Tapes
o Proponent has to lay a foundation = Showing that the audio tapes are both
authentic and showing that they are accurate
▪ Evidence as to how these tapes where made, what equipment, etc.
· Hearsay problem

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 o If statements made by D, then statements become admissions, no problem
o If not, then we need a hearsay exception or exemption or else it will be in-
admissible hearsay
· Specific issues:
o Sometimes part of the tape might in inaudible
▪ Defense might argue part of the tapes are inaudible and therefore
should be excluded from evidence
▪ Becomes a 403 issue
· inaudibility lowers probative value
· Also some danger for misleading the jury
▪ If part is inaudible, doesn’t mean the whole tape should be ex-
cluded
o Government may go through an enhancement or filtration process to take
out background noise
▪ Becomes a 403 issue
o Composite audio tapes
▪ Audio tape has 30 min of conversations on day 1, 1 hour on day 2,
3 hours on day 3, etc.
· P is picking the conversations he wants the jury to hear
▪ D will argue this creates distortion
· One audio tape, selectively, picking out conversations over
the course of time psychologically feels more sinister, all of
the conversations combined
▪ 403 issue
o could be a fight as to what was said on the tape
▪ D says it was one thing, P says it was another
▪ This is a question of fact for the jury
o Judge has discretion to allow the jurors to use a transcript of what is con-
tained on the audio tape
▪ Used to help the jurors
▪ Problem – must give an limiting instruction
▪ If there is a conflict between audio tape and transcript, governed by
what you hear on the tape
▪ BUT, The transcript isn’t evidence
▪ (6) Telephone Conversations
· a call was made to a number received from the phone book
· in case of a person, show that the person who we are trying to identify answered
the phone OR
· in case of a business, call was made to the business and the conversation related to
business reasonably transacted over the telephone
▪ (7) Public records or reports
· “Evidence that a writing authorized by law to be recorded or field and in fact
recorded or field in a public office . . . is from the public officer where items of
this nature are kept”
▪ (8) Ancient documents or data compilation
· Deals with older documents that are hard to authenticate in the normal way

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 · How old does the document have to be for the rule to apply?
o Common law – 30 years
o FRE – 20 years
· Components:
o Document was in existence for at least 20 years at the time offered into ev-
idence
o No suspicions as to the authenticity of the document (looking at it on its
face)
o Document comes from a place that a genuine document is likely to come
from (ex – business file)
o Hearsay exception also – if you satisfy these 3, you satisfy the hearsay ex-
ception (FRE 803(16))
▪ (9) Process or system
· “Evidence describing a process or system used to produce a result and showing
that the process or system produces an accurate result”
▪ (10) Methods provided by statute or rule
· “Any method of authentication or identification provided by Act of Congress or
by other rules prescribed by the SC pursuant to statutory authority”
➢ FRE 902 – Self-Authentication
o The probability of being a fake is so small that the law of evidence says that the proponent can
introduce the document into evidence without first introducing sufficient evidence as to its au-
thenticity
▪ Relieved of the normally initial burden
▪ No more condition precedent
o Documents are self-authenticating
o Doesn’t prohibit opposing counsel to show with other evidence that the document is not authen-
tic
▪ If so, then proponent will be put to the burden of showing sufficient evidence as to its au-
thenticity
o The fact that document is set forth in the rule, doesn’t mean that the document is admissible
▪ Only means if it is otherwise admissible, proponent is relived of initial burden
▪ Has to be relevant, pass 403, hearsay
o Rationale
▪ Chances of it being a fake or forgery are very small
o Examples of categories of evidence that fall under this rule:
▪ Certified copies of records on file in a public office (such as a deed on file with the
county clerk)—(public or business record)
▪ Official Publication (such as a pamphlet of regulations from the EPA)
▪ Newspapers or periodicals (notice or motion for foreclosure in the Brooklyn Gazette)
▪ Trade Inscriptions or signs, tags or labels affixed in the course of business indicating
ownership or control (bottle of Mountain Dew—you bring the bottle to court—the in-
scription proves itself.)
▪ An acknowledgement document—a document in which the author has appeared before a
notary public to acknowledge that she is in fact the author of the document. The notary

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 public then adds a written certification on the face of the writing indicating that the au-
thor has acknowledged her authorship.
▪ Commercial paper—specifically, signatures on commercial paper as provided by the
UCC.

Original Documents Rule

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