EVIDENCE-GRAHAM SPRING 2015

CHAPTER 1: STRUCTURE OF TRIAL

A. ORDER OF PROCEEDINGS:
Evidence: rules governing the admissibility of evidence at trial
Admissibility: must help ascertain truth
o Distortions in normal pattern (i.e. offering evidence in rebuttal which is merely cumulative of
s case in chief) do not make for ascertainment of truth & are NOT allowed
o Evidence dependent on upon other evidence may be allowed but it must be connected up
Voir dire: cross-examination of expert witnesses credentials/knowledge prior to testimony or
establishing the authenticity of documents before they become exhibits is acceptable
Jury Selection: done voir dire questioning jurors in open court.
o Usually done by judge but attorneys can submit questions
o Purposes of Questioning:
Provides opportunity to determine whether a prospective juror meets the statutory
requirement for jury service
Determines whether a prospective juror may be challenged for cause because he is
not able to impartially decide the issues submitted to the jury solely on the law and
evidence presented at trial
Provide the attorney an opportunity to acquire information for intelligent exercise of
peremptory challenges
Right of a party to excuse a prospective juror for any reason
Set number of peremptory challenges
Structure of Case:
o Opening Statements: followed by , but can wait until its case in chief
o s Case in Chief: assert a prima facie case facts sufficient to establish each element of the
claim asserted. Burden of production
o s Denials & Affirmative Defenses: produces evidence to deny, explain, disprove, etc. s
case. Introduce evidence to support affirmative defenses
o s rebuttal & s surrebuttal: can present its case in rebuttal. Scope is refutation of s
claims & rehabilitation of witness credibility.
Admissibility of evidence on rebuttal is at the discretion of the trial court
Surrebuttal: s rebuttal to s rebuttal used to address new points made in rebuttal
& rehabilitate witness credibility. Also called rejoinder.
o s Counterclaim: usually presented with s denials & affirmative defenses. s rebuttal
addresses s counterclaim
o Both sides close
o Reopening a case: done at the courts discretion.
Additional evidence should NOT be allowed absent a showing of diligence.
If reopening is denied, additional evidence sought to be introduced should be
disclosed in the form of an offer of proof to preserve possible error for review.
o Jury Instruction: judge instructs jury regarding the law to be applied to the facts
Federal Courts (some state courts): judges may fairly/impartially sum up the evidence
& comment to the jury upon the weight of the evidence & credibility of the witnesses
not commonly used
Jury is the ultimate arbitrator of facts

B. TYPES OF EVIDENCE:
Witness Testimony: most common type of evidence. Based on a competent witness personal
knowledge
Documentary
Real: production of an object, which had a direct or indirect part in the incident (i.e. murder
weapon). Gives trier of fact an opportunity to draw relevant firsthand sense impression.
Demonstrative: no probative value but serves as a visual aid to the jury in comprehending the verbal
testimony of a witness or other evidence (i.e. model)
Other: results of an experiment, transportation of trier of fact to location where incident took place,
etc.
C. PRELIMINARY QUESTIONS OF ADMISSIBILITY
RULE 104: PRELIMINARY QUESTIONS
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of
a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of subdivision (b). In making its
determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction
of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. Hearings on the admissibility of confessions shall in all cases be conducted
out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted
when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter,
become subject to cross-examination as to other issues in the case.
(e) Weight & Credibility. This rule does not limit the right of a party to introduce before the jury
evidence relevant to weight or credibility.
Rules of Evidence are administered by trial judges
R. 104(a): preliminary questions of fact as conditions precedent to admissibility of evidence, the
existence of privilege, or competency of witness, other than those involving relevancy conditioned
on fact are decided solely by the court.
O Goals of Rule: prevent confusion & protect against jurors unconsciously considering
inadmissible evidence that was struck from the record
O Court is NOT bound by Rules of Evidence expect those re: privilege (i.e. affidavits &
hearsay can be considered)
O Excluding evidence may be due to policy considerations have no immediate connection with
the weight and credibility OR may rest on policy considerations connected with or
overlapping weight and credibility.
Juries determine weight & credibility, not the admissibility of evidence
Admissibility is based on a more probably true than not true burden of persuasion
R. 104(b): when relevancy depends on the fulfillment of a condition of fact, a prima facie showing
of their existence is required before admitting evidence
O Court can only consider evidence jury will have (governed by Rules of Evidence)
O If condition is later shown to not be reasonably fulfilled (based on opponents evidence),
court should instruct jury to disregard the evidence.
R. 104(c): at the courts discretion to determine if admissibility of preliminary matter should be
heard before they jury. Court will act as justice requires.

Side bar conferences are acceptable

O Balancing Test: potential for prejudice v. trial concerns (waste of time hearing same
testimony twice & dislike by juries of being excluded)
O When admissibility of confessions is being discussed, it MUST be outside of the hearing of
the jury!
R. 104(d): accused is NOT subject to cross-examination when testifying on a preliminary matter.
O Testimony cant be used in case in chief but CAN BE USED to impeach if he testifies.
Illegally seized evidence can be used for impeachment purposes.
O

D. HEARING OF JURY; MOTIONS IN LIMINE

RULE 103: RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion
to strike appears of record, stating the specific ground of objection, if the specific
ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context
within which questions were asked.
Once the court make a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or offer of
proof to preserve a claim of error for appeal.
(b) Record to Offer & Ruling. The court may add any other of further statement which shows
the character of the evidence, the form in which it was offered, the objection made, and the
ruling thereon. It may direct the making of an offer in question and answer form
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so
as to prevent inadmissible evidence from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions in hearing of the jury.
(d) Plain Error. Nothing in this rule precludes taking notice of plain error affecting substantial
rights although they were not brought to the attention of the court.
R. 103(c): court will attempt to prevent inadmissible evidence form being suggested to jury (i.e.
meet in chambers, excuse jury, etc.)
o To avoid this concern, attorneys often seek motion in limine ruling as to the admissibility
of evidence in advance of its introduction at trial
Allows for advance planning
Prevents jury from being influenced by Objection
o At the courts discretion
o May be premature prior to trial when other evidence surfaces
R. 103(a)(2): dont need to renew objection or offer of proof to preserve a claim of error for appeal
(applies to definitive rulings)
o If ruling was not definitive, objection or offer of proof must be renewed at trial
o Losing party should clarify to make sure that ruling is definitive to preserve appeal
o Court can revisit a definitive ruling. If court changes its ruling, an objection or offer of proof
must be made at trial to preserve appeal
o Advance rulings are reviewed in light of the facts & circumstances before the trial court at
the time of the ruling
Material changes in facts/circumstances after ruling has been made must be brought
to the attention of the court

E. LIMITED ADMISSIBILITY
RULE 105: LIMITED ADMISSIBILITY: When evidence which is admissible as to one party or for one
purpose but not admissible 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.
Party seeking admission of evidence has the burden of advising the court as to the limited purpose
for which the evidence is admissible.
Instructions to the jury will be provided upon request or on the courts initiative limiting the scope of
the evidence to the specified purpose
O Opposing counsel rarely seeks cautionary instruction because it draws the jurys attention to
damning evidence but in doing so precludes raising the question on appeal
Evidence may still be excluded if the harm that is likely to result from the improper use of the
evidence by the jury outweighs the potential effectiveness of the limiting instruction
O Hard to ignore (limit) evidence for jurors
O Common practice: admit evidence for limited purpose & instruct the jury
F. JUDICIAL DISCRETION
Rules of Evidence sometimes explicitly provide for judicial discretion re: admissibility. Usually
discretion is allowed if used in a manner to ascertain the truth.
RULE 102: PURPOSE & CONSTRUCTION: These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay, and promotion of growth and
development of the law of evidence to the end that the truth may be ascertained and proceedings justly
determined.
RULE 403: EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR
WASTE OF TIME: Although the 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.
RULE 611(a): MODE & ORDER OF INTERROGATION & PRESENTATION: Control by court. The court
shall exercise reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.

CHAPTER 2: RELEVANCE & THE EXCLUSION OF RELEVANT EVIDENCE

A. RELEVANCE
RULE 401: DEFINITION OF RELEVANT EVIDENCE: Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable that it would be without the evidence.
o Encompasses direct & circumstantial evidence; evidence that affects the weight given to other
relevant evidence
Direct: evidence where the sole inference which must be made to establish a fact of
consequence is the truth of the matter asserted (I saw X shoot B)
Circumstantial: evidence offered to establish a fact of consequence where an inference in
addition to the truth of the matter is asserted (X fled the scene)
o Evidence is relevant when it possesses any tendency to establish a fact of consequence. Doesnt
have to deal with facts in dispute to be relevant (i.e. background information)
Relevancy sufficiency of evidence
Legally relevant information has a plus value (something more than a minimum of
probative value) rejected by Advisory Committee as being unworkable but incorporated
into R. 403.
o Fact of consequence describes a proposition which is in the case and the relevant describes
evidence which has a tendency to prove or disprove the proposition
Pleadings determine if a fact is of consequence
Fact of Consequence: (1) facts which comprise direct evidence of an element of a claim
or defense; (2) facts from whose establishment may be inferred facts amounting to
elements of claims or defenses; and (3) facts bearing circumstantially upon the evaluation
of the probative value to be given to other evidence in the case
RULE 402: RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
o INQUIRY: whether evidence is relevant depends upon it possessing any tendency to make a
fact of consequence more or less probable than it would be without the evidence in the light of
logic, experience, and accepted assumptions concerning human behavior.
B. EXCLUSION OF RELEVANT EVIDENCE
1.
PROBATIVE VALUE V. TRIAL CONCERNS
RULE 403: EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,
CONFUSION, OR WASTE OF TIME: Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Rarely used: heavy burden on the objecting party
Review of Exclusion: give the evidence its maximum reasonable probative force and
its minimum reasonable prejudicial value
Before excluding court should consider: (1) importance of the fact of consequent for
which the evidence is offered in the context of the litigation and (2) the strength &
length of the chain of inferences necessary to establish the fact of consequence

Unfair Prejudice: an undue tendency to suggest decision on an improper basis,

commonly but not necessarily an emotional one. (This is usually why evidence gets
excluded, as opposed to the consideration of timesee below)
Other improper basis: consideration of evidence by the jury for a purpose for
which it has not been admitted in spite of a limiting instruction not to do so.
Confusion & Misleading: evidence that might unduly distract the jury from the main
issues
Misleading: possibility of the jury incorrectly evaluating the probative value
of a particular item of evidence (overvaluing) for any reason other than the
emotion reaction associated with unfair prejudice (i.e. lie detector results, time
spent = significance, etc.)
Consideration of time: repetitious or time consuming evidence may be excluded if
considerations outweigh probative value
Cumulative: multiple people with the same evidence, for example45 17-year olds
testifying about what they saw on the school bus), also when the point itself, while
possibly significant, is not being disputed. Ex-calling an expert witness to talk about
handwriting when three other people have already confirmed the handwriting and its
not in dispute.
Surprise: NOT A GROUND FOR EXCLUSION other remedies (i.e. discovery
sanctions, granting a continuance) are availablesurprise is a big part of the criminal
justice system.
OFFER TO STIPULATE GENERALLY SPEAKING, YOU WANT TO SHOW, FOR EXAMPLE, THIS IS A
REALLY BAD PERSON AND EXPLAIN WHAT SOMEBODU ACTUALLY DID.
Old Chief v. United States (S.Ct. 1997): tried to stipulate that he had a past felony
conviction; wanted to introduce the crime he was convicted of instead of the existence of
the conviction.
HOLDING: prosecution is entitled to prove its case free from any defendants option to
stipulate the evidence away.
RATIONALE: evidence is powerful in the story telling function of the case. s shouldnt be
able to interrupt a persuasive element for their exclusive benefit
Particularity aids in proof & jurors may punish prosecutors if they fail to meet their
expectations re: proofthe jury wants to know where the gun is!
JUDICIAL DISCRETION
Courts employ R. 403 sparingly

2.

3.

CHAPTER 3: COMPETENCY OF LAY WITNESSES

A. GENERAL RULE OF COMPETENCY: AN OVERVIEW-ALMOST IMPOSSIBLE TO BE CONSIDERED
INCOMPETENT (EXCEPT FOR A BLIND PERSON SAYING HE/SHE SAW SOMETHING, FOR EXAMPLE)
RULE 601: GENERAL RULE OF COMPETENCY: Every person is competent to be a witness except
as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the rule of decision, the competency of
a witness shall be determined in accordance with State law.
O Competency: presence of those characteristics, or the absence of those disabilities, which
render a witness legally fit and qualified to give testimony in a court of justice
RULE 603: requires every witness declare that he will testify truthfully by oath or
affirmation
RULES 602: requires that the witness possess personal knowledge
Requirements: (1) the witness had the capacity to accurately perceive, record and recollect
impressions of facts (physical and mental capacity) at the time of the event, (2) the witness in
fact did perceive, record and can recollect impressions having any tendency to establish a
fact of consequence in the litigation (personal knowledge), (3) the witness declares that he
will tell the truth, understands the duty to tell the truth (oath or affirmation) as well as
understands the difference between the truth and a lie of fantasy, and (4) the witness
possesses the capacity to comprehend questions and express himself understandably where
necessary with aid of an interpreter (narration).
o Witness Competency: minimum ability to observe, record, recollect, and recount as well as
an understanding of the duty to tell the truth (you can be drunk or high on drugs)
Usually, jury allowed to judge credibility of a witness
Witness testimony can still be excluded even if witness meets this standard of
credibility if trial concerns of R. 403 outweigh probative value of testimony
Competent witnesses may be barred from testifying because of a claim of privilege
O Grounds for incompetency NOT RECOGNIZED: age, religious belief, mental incapacity,
color of skin, moral incapacity, conviction of a crime, martial relationship, connection with
the litigation as a party, attorney, or interested person
BUT, theses may be grounds to impeach a witness
1. MENTAL CAPACITY: PRELIMINARY HEARINGS; ORDERING OF PSYCHIATRIC EXAMINATIONS;
CHILDREN
O Mental deficiency affects only the weight of the testimony, not its admissibility
O Competency is decided by the court usually in pre-trial hearings
O Witnesses credibility can be challenged in cross-examination
O Child is presumed to be competent (18 USCA 3509(c))
2. ALCOHOL OR DRUG USE AS AFFECTING COMPETENCY
O Use of intoxicants or drug addiction does NOT make a witness incompetent
O Can be under the influence at the time of observing the event or testify under the influence
without being disqualified
3. DEAD MANS STATUTES: exclusion of an interested witness testimony concerning a conversation
and/or event which took place in the decedents or incompetents presence when offered against the
latters representative
O Rationale: where death/incompetency has closed the mouth of one party, the law seeks to
effect equality by closing the mouth of the other
Prevents living party from lying
O No federal Dead Mans Statute

CRITICISM: silencing a witness causes more miscarriages of justice than it prevents

4. OBJECTING AS TO COMPETENCY
o General disqualification: objection before any testimony is given
o Specific disqualification: objection need not be raised until after the witness is asked about
het barred event/conversation
Often resolved in advance via motion in limine
If possible, jury should not know of the objection
O

B. THE REQUIREMENT OF PERSONAL KNOWLEDGE

RULE 602: LACK OF PERSONAL KNOWLEDGE: A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the
witness own testimony. This rule is subject to the provisions of Rule 703, relating to opinion
testimony by expert witnesses.
O Personal knowledge may appear from the statement itself or be inferable from the
circumstances
Must be relevant knowledge
Court can look to content of the statement to be admitted when determining
sufficiency of evidence to support personal knowledge based on hearsay when
determining whether or not to admit statement
Absolute certainty of observation or of recollection is NOT required to establish
personal knowledge
O Court can refuse to permit a witness to testify that he perceived a materially matter just
because a witness could be wrong.
Not improbability but impossibility test only can be excluded if NO reasonable trier
of fact would believe the witness
C. OATH OR AFFIRMATION
RULE 603: OATH OR AFFIRMATION: Before testifying, every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation administered in a form calculated to
awaken the witness conscience and impress the witness mind with the duty to do so.
O Function of Oath & Affirmation:
Affect the conscience of the witness to impress his mind with the duty to speak the
truth
If the witness willfully falsifies his testimony, he may be then punished for perjury
O No moral capacity requirement
D. INTERPRETERS
RULE 604: INTERPRETERS: An interpreter is subject to the provisions of these rules relating to
qualification as an expert and administration of an oath or affirmation to make a true translation.
O True translation: interpreter communicate exactly what the witness is expressing in his
testimony
O In criminal proceedings, interpreter must interpret everything said the courtroom, whether by
witness, attorney or court

E. COMPETENCY OF JUDGE AS WITNESS

RULE 605: COMPETENCY OF JUDGE AS WITNESS: The judge presiding at the trial may not testify
in that trial as a witness. No objection need be made in order to preserve the point.
O Reason: testifying is destructive to courts image of impartiality
O Other Problems: (1) jury overvaluing his testimony, (2) ruling on objections to his testimony,
(3) conduct of cross-examination, (4) impossibility of impeachment, and (5) continuation of
the trial before the same judge
F. COMPETENCY OF JUROR AS WITNESS
RULE 606: COMPETENCY OF JUROR AS WITNESS:
(A) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of
the case in which the juror is sitting. If the juror is called to testify, the opposing party shall
be afforded an opportunity to object out of the presence of the jury.
(B) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict
or indictment, a juror ma not testify as to any matter or statement occurring during the
course of the jurys deliberations or to the effect of anything upon that or any other jurors
mind or emotions as influencing the juror to assent to or dissent from the verdict or
indictment or concerning the jurors mental processes in connection therewith. But a juror
may testify (1) whether any extraneous prejudicial information was improperly brought to
the jurys attention, (2) whether any outside influence was improperly brought to bear upon
any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A
jurors affidavit or evidence of any statement by the juror may not be received about which
the juror would be precluded from testifying.
1. COMPETENCY OF JUROR AS WITNESS AT TRIAL: jurors cannot testify as a witness before that jury
in the trial of the case in which the juror is sitting.
O Wont happen because jurors with knowledge of case will be excused during jury selection
process
2. COMPETENCY OF JUROR TO ATTACK VALIDITY OF VERDICT OR INDICTMENT: cant testify about
jury deliberation process
o McDonald v. Pless (S. Ct. 1915): prevents jurors from being harassed by defeated party in an
effort to secure from them evidence of facts which might establish misconduct sufficient to
set aside verdict. Allows freedom of discussion in deliberations.
Serves public policy concerns: (1) discouraging harassment of jurors by losing parties
eager to have the verdict set aside, (2) encouraging free and open discussion among
jurors, (3) reducing incentives for jury tampering, (4) promoting verdict finality, and
(5) maintaining the viability of the jury as a judicial decision-making body
o Juror can only attack the verdict on the grounds that prejudicial extraneous influences were
injected into the deliberation process
o Party seeking inquiry must make a showing of misconduct that would warrant reversal for a
hearing to be held
Verdict will be set aside if there is a reasonable possibility that influence/ information
affected it
Showing of reversible misconduct gives rise to a presumption of prejudice placing the
burden of proof on the victorious party to show harmlessness
Juror may testify regarding extraneous influence/information but NOT about its
impact

G. COMPETENCY & PROPRIETY OF LAWYER FOR A PARTY AS WITNESS AT TRIAL

lawyer can testify in favor of his client if the court allows it (sometimes in legal services cases)
Cannot testify if it would result in an improper conflict of interest:
o If there is likely to be substantial conflict between the testimony of the client and that of the
lawyer or a member of the lawyers firm, the representation is improper.
o If a lawyer is not allowed to act as advocate & witness by reason of conflict of interest, ABA
Model Rule 1.10 disqualifies the firm also
o Lawyer cant physically take possession of evidence
o You dont want to be the only person present when taking statements in case person
backtracks on what he/she said.
o You can represent an associate in your own firm, if necessary.
RULE 1.7: a lawyer shouldnt represent a client if the representation will be directly adverse to
another client without consent of clients and belief that representation will not adversely affect the
relationship with the other client.
RULE 1.9: lawyer cant represent another person in the same or substantially related matter in which
that persons interest are materially adverse to the interests of the form client unless the former client
consents or use information to disadvantage a former client.

CHAPTER 4: DIRECT EXAMINATION

A. MODE & ORDER OF INTERROGATION
1. AN OVERVIEW
O RULE 611: MODE & ORDER OF INTERROGATION & PRESENTATION
(A) Control by Court. The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.
(B) Scope of Cross-Examination. Cross-examination should be limited to the subject
matter of the direct examination and matters affecting the credibility of the witness.
The court may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination.
(C) Leading Question. Leading questions should not be used on direct examination of a
witness except as may be necessary to develop the witness testimony. Ordinarily
leading questions should be permitted on cross-examination. When a party calls a
hostile witness, an adverse party, or a witness identified with an adverse party,
interrogation may be by leading questions.
2. FORM OF TESTIMONY ON DIRECT; LEADING QUESTIONS
O Leading Questions: suggests an answer desired by the examiner
Yes/no questions are usually leading
Assuming facts not conceded or not yet in evidence is leading
O Party calling a witness must ask nonleading questions
O Effective objection to leading questions: requires foreclosing all further inquiry into the
subject, or permitting counsel to return to it only after an exploration of other matters have
reduced the effect of the communication of the answer to the witness
O Rarely sustained: rule against leading questions is lacking substance and operates merely to
create a false sense of spontaneity which the examiner might otherwise destroy by use of
leading questions
BUT, constant leading of witness makes a bad impression on jury
O Acceptable under R. 611(c) when used in direction examination:
When necessary to develop the witness testimony
Undisputed preliminary or inconsequential matters
A witness who is hostile or unwilling: demonstrates recalcitrance by giving
damaging testimony or by answering evasively or reluctantly
A child witness or adult with communication problems either physical or
mental (aka in child sex abuse case, can use leading questions to lead to the
specific things that someone did to a child)
A witness whose recollection is exhausted
A witness who is being impeached by the party calling the witness as provided
in Rule 607
A witness who is frightened, nervous, or upset while testifying, frequently a
child victim of sexual assault
A witness who is unresponsive or shows a lack of understanding
If leading question is regarding something significant in litigation, it is
inappropriate. (Goings v. United States)

When directed to a witness regarded as hostile as a matter of law

Hostile as a matter of law (Rule 611(c)(2)): adverse party, automatically
considered hostile so that leading questions are permitted on direct
examination without a prior in court showing that leading questions are
necessary for the orderly development of the witness testimony
If leading questions used on direct, can be used on redirect but limited to the
scope of the direction examination.
Reversals for abuse of discretion re: allowing leading questions are rare
Hostile in fact: During testimony the witness is uncooperative so declared hostile.

O
O

B. REFRESHING RECOLLECTION
1. GENERAL CONSIDERATIONS; USE OF LEADING QUESTIONS RULE 611(C)
o Allowed to refresh recollection on direct examination by using leading questions or showing
a writing
Only allowed if the witness says he cant recall
Must be done in compliance with R. 103(d).
Writing easily complies because it doesnt suggest defendants guilt in front of
jury. It allows witness to read to refresh memory.
Reduce oral statements to writing when necessary
o Acceptable leading questions suggest something that may have occurred without directly
stating what the event was
2. WRITINGS USED TO REFRESH MEMORY
O RULE 612: WRITING USED TO REFRESH MEMORY: Except as otherwise provided in
criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a
writing to refresh memory for the purposes of testifying, either
(1) While testifying, or
(2) Before testifying, if the court in its discretion determines it is necessary in the
interests of justice, an adverse party is entitled to have the writing produced at the
hearing, to inspect it, to cross-examine the witness thereon, and to introduce in
evidence those portions which relate to the testimony of the witness. If it is claimed
that the writing contains matters not related to the subject matter of the testimony the
court shall examine the writing in camera, exercise any portions not so related, and
order delivery of the remainder to the party entitled thereto. Any portion withheld
over objections shall be preserved and made available to the appellate court in the
event of an appeal. If a writing is not produced or delivered pursuant to order under
this rule, the court shall make any order justice requires, except that in criminal cases
when the prosecution elects not to comply, the order shall be one striking the
testimony or, if the court in its discretion determines that the interests of justice so
require, declaring a mistrial.
O Adverse party is entitled to writing used to refresh a witness testimony. Can challenge the
validity of the writing. Parts that should have been withheld are preserved for appeal.
Improper testimony must be struck from the record and if justice requires, a mistrial called.
Writing doesnt have to be admissible nor has to be prepared by witness
May result in witness testifying what he read instead of what he remembers hearsay
problem
Excise parts (in camera) that are not related to the subject matter of the witness
testimony
O Elements that must be shown to establish a foundation for refreshing memory:

Witness knows the facts, but has a memory lapse on the stand
Witness knows his report or other writing will jog his memory
Witness is given & reads the pertinent part of his report or other writing
Witness states his memory has now been refreshed
Witness now testifies to what he knows, without further aid of the report or other
writing
Cross-examination using writing can search for discrepancies to impeach the testimony of the
witness
May not get writing used to refresh recollection before trial unless judge determines
justice requires it
Admissibility: inspect of writing & its employment in cross-examination do not make the
document admissible on behalf of the proponent of the witness
You can even write out the answer and give it to witness to refresh their memory, but it
doesnt look good to the jury.
Traditional lawyer practice for medical experts/other experts: please feel free to consult
your records at any time during your testimony

o
o
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C. PRINCIPLE OF COMPLETENESS
1. REMAINDER OF OR RELATED WRITINGS & RECORDED STATEMENTS EMPLOYED AT TIME OF
INTRODUCTION
O RULE 106: REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS: When a
writing or recorded statement or part thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.
Principal of Completeness: a writing or recorded statement or a part thereof may be
so related to another that in fairness both should be considered together without
regard to whether the related writing or recorded statement is or is not contained in
the same document
Excludes oral statements
O Rationale: it avoids danger of mistaken or misleading first impression when matters are taken
out of context and it avoids the inadequate remedy of requiring the adverse party to wait until
a later point in the trial to repair
To be admitted statement must relate to the same subject matter and tend to deny,
explain, modify, etc. the writing already received
Adverse party must lay sufficient foundation which consists of specification of the
portion sought to be introduced and articulation of why in fairness such portion ought
to be considered contemporaneously
2. REMAINDER OF ORAL STATEMENTS, WRITING OR RECORDED STATEMENT EMPLOYED ON NEXT
EXAMINATION
o Use R. 106 to develop matter on cross-examination or in own case
o Can use inadmissible evidence to clarify statement made by opposition if not substantially
outweighed by trial concerns of R. 403.

D. EXCLUSION & SEPARATION OF WITNESSES-RULE 615THE RULE (ORDINARY RULE DOES EXCLUSION
AND SEPARATION, SO YOU CANT TALK TO OTHER WITNESS OUTSIDE OF COURTROOM) BUT YOU CAN USE
TRANSCRIPT TO PREPARE A WITNESS. HOWEVER, THIS IS DEBATABLE. YOU CAN READ IT TO THE
WITNESS, TALK TO THE WITNESS ABOUT IT, BUT JUST DONT LET THE PERSON ACTUALLY READ IT. YOU
CAN ONLY TALK TO WITNESS DURING CROSS EXAMINATION IF ITS THE CRIMINAL DEFENDANT AND THE
DISCUSSION IS DURING A LARGE BREAK/RECESS.
RULE 615: EXCLUSION OF WITNESSES: At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its
own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an
officer or employee of a party which is not a natural person designated as its representative by its
attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of
the partys cause, or (4) person authorized by statute to be present.
O Witnesses who hear other witnesses testimony can tailor their testimony to the other
witnesses
O Separation prevents improper influence during the trial
O Nondiscretionary at the request of a party or sua sponte
O Rule excludes: expert witnesses, partner of a minor child, victim of crime, rebuttal witnesses,
etc.
A party who is a natural person
An officer or employee of a party which is not a natural person designated as its
representative by its attorney which includes an investigative agent of the government
A person whose presence is shown by the part to be essential to the presentation of
the cause
A person authorized by statute to be present
O Court can also authorize separation outside of courtroom
O If rule is violated, remedy is determined at courts discretion but could include a mistrial,
hold witness in contempt, etc.

CHAPTER 5: HEARSAY
A. THE HEARSAY RULE
1. AN OVERVIEW
O RULE 802: HEARSAY RULE: 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 Hearsay: testimony in court or written evidence of a statement made out of court. The
statement is offered as an assertion to show the truth of matters asserted therein and thus
resting for its value upon the credibility of the out of court asserter.
Excluded because the trier of fact cant assess the accuracy of the statement
Factors considered when evaluating witness: perception, memory, narration and
sincerity
Conditions to prevent hearsay: testify (1) under oath, (2) in the personal presence of
the trier of fact, (3) subject to cross-examination
Cant always happen and usually court will approve of some evidence
(hearsay) rather than no evidence at all
O Solutions to Hearsay Dilemma:
Abolish the rules against hearsay and admit all hearsay: be used only for unavailable
declarants
Admit hearsay possessing sufficient probative force, but with procedural safeguards:
Use balancing test of weighing the probative force of evidence against het
possibility of prejudice, waste of time and the availability of more satisfactory
evidence
Safeguards: notice of intent to use hearsay and free comment of the judge re:
weight of evidence
Rejected: too much judicial discretion
Revise the present system of class exceptions
2. THE DEFINITION OF HEARSAY
o RULE 801(a)(b)(c): DEFINITION OF HEARSAY
o 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
Assertion: includes both matters directly expressed and matters necessarily
implicitly being asserted
(b)
Declarant. A declarant is a person who makes a statement.
Personal knowledge of declarant is limited to the perception of what person X
said they say
(c)
Hearsay. 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 4 Risks in Evaluating Witness Testimony:
Perception in the sense of capacity and actuality of the observation by means of any
of the senses
Recordation and recollection (memory)
Narration (ambiguity)
Sincerity (fabrication)
o Problem with hearsay: inability to conduct cross-examination. Function of cross:

(D )

Fear of the exposure of falsehoods on cross promotes truth telling

Provides opportunity to expose faults in the perception and memory of the witness
o Evaluating Hearsay: applies to all statements not made at the trial or hearing and thus not
made subject to contemporaneous cross-examination before a trier of fact
Magnitude of hearsay risks bears upon whether the hearsay statement is felt
sufficiently trustworthy to be admitted pursuant to an exception to the rule against
hearsay
Implied assertions are hearsay
Presence/absence of a party against whom an extrajudicial statement is offered has no
bearing upon either its status as hearsay or its admissibility
(A )
NONVERBAL CONDUCT INTENDED AS AN ASSERTION: not hearsay
Person acts without intending to communicate a belief removes sincerity &
veracity concerns
Problem: accuracy of the actors perception & recollection is untested by
cross-examination
Consider probative value of statement before admitting it into evidence
(B )
NONVERBAL CONDUCT NOT INTENDED AS AN ASSERTION: not hearsay
(C )
ORAL OR WRITTEN CONDUCT NOT INTENDED AS AN ASSERTION: not hearsay
STATEMENTS OFFERED OTHER THAN TO PROVE THE TRUTH OF THE MATTER
ASSERTED; VERBAL ACT; CHARACTERIZING ACT; EFFECT ON LISTENER;
IMPEACHMENT: NOT hearsay
When making a statement is the relevant fact, hearsay is NOT involved
Verbal act: may have independent legal significance or gives rise to legal
consequences
Characterizing act: operate legal acts are assertions which relate to and character a
particular act
Effect on Listener: statement being offer for the purpose of showing the probable
state of mind of the listener
Impeachment: prior statements of a witness inconsistent with the witness in-court
testimony offered solely to impeach
3. PROBLEM AREAS IN DEFINING HEARSAY
(A )
CIRCUMSTANTIAL EVIDENCE: often admitted although hearsay
Whether evidence is direct or circumstantial is irrelevant in determining whether
the evidence falls within the rule against hearsay
Mechanical Traces: frequently relevant as circumstantial evidence looking
backwards to show that some act was done or not done (i.e. fingerprints,
fragments, tags, etc.)
To be admissible, the relevancy of the mechanical trace cannot derive
from the truth of the statement itself.
Character of an Establishment: not hearsay when the character of an
establishment is sought to be proved by evidence of statements made in
connection with activities taking place on the premises.
Personal Knowledge of Independently Established Facts: statements are offered
into evidence to prove personal knowledge of the declarant as to the truth of the
matter asserted when the truth of the matter asserted is firmly established by
independent evidence.
Used to establish a person was at a particular location at a particular time

Bridges v. State (Wis. 1945):

O FACTS: child abused; testimony she made to her mother & police
re: the appearance of the house and the room where the abuse took
place were admitted to prove her personal knowledge prior to
discovery.
O HOLDING: admission of evidence did not violation prohibitions
on hearsay (R. 807 allows it)
O RATIONALE: extrajudicial assertions showed her knowledge but
could not be deemed to prove facts asserted thereby more
evidence needed.
Risks of Hearsay:
O She could have made up the description
O She may have in good faith provided a description of a house
where she had been on an occasion not connected with the assault
O She may have described a house that was suggested to her earlier
by police or someone else as the house to where shed been taken
Circumstantial Use of Utterances to Show State of Mind: declaration which only
impliedly, indirectly or inferentially indicate the state of mind or feeling of the
declarant are not hearsay.
Risks of Hearsay present: sincerity & narration
(B )
BASIS FOR NONASSERTED INFERENCE OF IMPLIED ASSERTION
If a statement is offered as a basis for inferring something other than the truth of
the matter asserted, the statement is excluded from the definition of hearsay.
Reduced sincerity risk
When a statement is offered to infer the declarants state of mind from which a
given fact in the form of an opinion or otherwise is inferred, because the truth of
the matter asserted must be assumed in order for the nonasserted inference to be
drawn, the statement is hearsay.
Sincerity risk is still present
Reliance on implied assertions necessarily entails reliance on memory &
perception but does NOT raise questions of sincerity.
Dependent on: perception, recordation/recollection, and narration of declarant if it
is merely a formality (saying hi) and could be hearsay
Can be admitted to show state of mind of another
4. INTERPRETING THE DEFINITION OF HEARSAY
O Attempts to expand definition of hearsay result of trying to get relevant evidence admitted
R. 807 has largely remedied this problem
O Hearsay: statement offered in evidence other than one made by the declarant while testifying
at the trial or hearing, to the extent relevance depends upon (1) the truth of the matter
asserted or (2) the declarants belief in the truth or falsity of the matter asserted.
B. PRIOR STATEMENT BY WITNESS
Acceptable to cross-examine a witness about previous out of court statements because they are no
longer hearsay since the witness is under oath, demeanor & cross
o If witness adopts statements hearsay
o If witness denies statements = hearsay
Courtroom elements bring in the fear of perjury

2.

3.

Witnesses previous statements cant be used as substantive evidence

Some prior statements, under R. 801(d)(1)(B) are not considered hearsay
1. PRIOR INCONSISTENT STATEMENTS
o RULE 801(d)(1): PRIOR STATEMENT BY WITNESS:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is
(A) inconsistent with the declarants testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding, or in
a deposition, or
Statements that are NOT hearsay prior statement by a witness subject to cross at
trial when the statement is inconsistent with declarants testimony.
NOT hearsay when the previous statement was given under oath & subject to the
penalty of perjury
Rationale: no dispute as to whether the prior statement was made and the formal
proceeding sand oath provide firm additional assurance of the reliability of the prior
statement
Previous statements not meeting R. 801(d)(1) standards may be used to impeach a
witness
PRIOR CONSISTENT STATEMENTS
o RULE 801(d)(1)(B): DEFINITIONS:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is
(B) consistent with the declarants testimony and is offered to rebut an express
or implied charge against the declarant of recent fabrication or improper
influence or motive,
o A statement is NOT hearsay if the declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is consistent with the
declarants testimony and is offered to rebut an express or implied charge against he
declarant of recent fabrication or improper influence or motive.
o Proof of consistency is valueless just repeating same story
Fear of admitting consistent statement is the creation of a mini trial
o Admissible to:
Rebut charge of recent fabrication, improper influence or motive (admitted into
substantive evidence)
Modify a fragment introduced by opposing part to purposes of impeachment
(admitted to corroborate evidence)
PRIOR IDENTIFICATION OF A PERSONA AFTER PERCEIVING HIM
o RULE 801(d)(1)(C): DEFINITIONS:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is
(C) one of identification of a person made after perceiving the person;
o A statement is NOT hearsay if the declarant testifies at trial or hearing and is subject to crossexamination concerning the statement and the statement is one of identification of a person
made after perceiving the person.

o Courtroom identification is unconvincing but is allowed to permit introduction of more

meaningful identification made by a witness when memory was fresher and there had been
less opportunity for influence to be exerted upon him
o Cross examination requirement
o Prior identification can be used as evidence even if witness cannot make a proper in court
identification
Inability is subject to cross
Lack of recollection itself impeaches the probative force of the prior statement of
identification
C. ADMISSION BY PARTY-OPPONENT
1. AN OVERVIEW
o Statement of a party-opponent offered into evidence by an adverse party to prove the truth of
the matter asserted is hearsay but is universally admitted into substantive evidence
Result of the adversarial system: no need to cross-examine but adversary may use
against him anything which he has said or done
Statement is usually damaging to opposing party
Opinions are admitted and admissibility does NOT depend upon whether the
declarant is unavailable, available or actually testifies.
2. STATEMENTS OF PARTY MADE IN INDIVIDUAL CAPACITY
(A )
AN OVERVIEW
RULE 801(d)(2)(A): STATEMENTS WHICH ARE NOT HEARSAY: ADMISSION BY
PARTY-OPPONENT:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission by Party-Opponent. The statement is offered against a
party and is (A) the partys own statement, in either an individual
or a representative capacity, or
A statement is NOT hearsay if the statement is offered against a party and is the
partys own statement, in either an individual or representative capacity.
No requirement of mental capacity of defendant is imposed, need to be a matter
which the party had personal knowledge, may contain opinions or conclusions of
law, may be offered whether party is available, unavailable, or actually testifies.
(B )
PLEA OF GUILTY
Offender admitted facts constituting guilt does NOT prove that essential facts
have been previously found to exist
Result: facts admitted by the party by entering a plea of guilty (facts essential to
sustain the conviction) may be admitted against him by a party-opponent as an
evidentiary as distinguished from a judicial admission
Exclusion of convictions of minor offenses of under 1 year because motivation to
defend is minimal or nonexistent same applies to guilty plea (inadmissible under
R. 801(d)(2)(A)
(C )
STATEMENTS OF PARTY MADE IN A REPRESENTATIVE CAPACITY
Statement made if representative capacity is admissible without reference to
whether the individual was acting in a representative capacity when making the
statement
(D )
PERSONS IN PRIVITY OR JOINTLY INTERESTED

 Common Law: statements made by a person in privity with a party were

receivable in evidence as an admission of the party and an admission by one
jointly interested is receivable against others similarly interested.
TODAY: considerations of privity and joint interest neither furnish criteria of
credibility nor aid in the evaluation of testimony usually admitted through
another exception such as representative capacity
3. MANIFESTATION OF ADOPTION OR BELIEF IN TRUTH OF STATEMENT
O RULE 801(d)(2)(B): STATEMENT WHICH ARE NOT HEARSAY: ADMISSION BY PARTYOPPONENT:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission of Party-Opponent. The statement is offered against a party and is
(B) a statement of which the party has manifested an adoption or belief in its
truth, or
O A statement is NOT hearsay if the statement is offered against a party and is a statement of
which the party has manifested an adoption or belief of which the party has manifested an
adoption or belief in its truth
O Words or Conduct: party adopts belief/truth of a statement only if it appears that the person
understood and demonstrably assented to its truth
Burden of proof on proponent to show that adoption was intended, a mere statement
that another person had made a particular statement is insufficient.
O Silence: manifestation of belief in truth of a statement may occur by silence
Inquiry: whether a reasonable person would have denied under the circumstances,
with answer not lending themselves readily to mechanical formulation.
Problems with silence as admissions:
Affords unusual opportunity to manufacture evidence
Explaining reasons for silence may violation privilege against selfincrimination
4. VICARIOUS ADMISSIONS
O RULE 801(d)(2)(C) & (D): STATEMENT WHICH ARE NOT HEARSAY: ADMISSION BY
PARTY-OPPONENT:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission of Party-Opponent. The statement is offered against a party and is
(C) a statement by a person authorized by the party to make a statement
concerning the subject, or (D) a statement by the partys agent or servant
concerning a matter within the scope of the agency or employment, made
during the existence of the relationship, orThe contents of the statement
shall be considered but are not alone sufficient to establish the declarants
authority under subdivision (C), the agency or employment relationship and
scope thereof under subdivision (D), or the existence of the conspiracy and
the participation therein of the declarant and the party against whom the
statement is offered under subdivision (E).
O A statement is NOT hearsay if the statement is offered against a party is a statement by a
person authorized by the party to make a statement concerning the subject or is the partys
servant or agent.
(A )
STATEMENT BY PERSONS AUTHORIZED TO SPEAK
Express or implied authority must be established at trial
Content of statement is considered but is NOT sufficient to establish authority

(B )

STATEMENT BY AGENT OR SERVANT CONCERNING MATTER WITHIN SCOPE OF HIS

AGENCY OR EMPLOYMENT
A statement of an agent or servant concerning a matter within the scope of his
employment, made during the existence of the relationship, is an admission of his
employer
Alone, statement is insufficient
Used to apply agency rules but difficulties arose from agents rare
authorization to make damaging statements on behalf of principals
Requirement of authority to speak is removed by rule
Government employees are apparently not considered agents or servants of a
party-opponent for purposes of admission rules
Attorney has authority to make judicial admissions for client
(C )
THE REQUIREMENT OF PERSONAL KNOWLEDGE
Rules should still require personal knowledge because the mere fact that the agent
heard it and repeated it does not remove any of the dangers against which the
hearsay rule has traditionally guarded.
Allows rumors to be admitted indiscriminately
If the statement is based on an unidentified source it may not be admitted due to
inadequate foundation for personal knowledge
5. STATEMENTS BY COCONSPIRATOR
O RULE 801(d)(2)(E): STATEMENTS WHICH ARE NOT HEARSAY: ADMISSION BY PARTYOPPONENT:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission of Party-Opponent. The statement is offered against a party and is
(E) a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy. The contents of the statement shall be
considered but are not alone sufficient to establish the declarants authority
under subdivision (C), the agency or employment relationship and scope
thereof under subdivision (D), or the existence of the conspiracy and the
participation therein of the declarant and the party against whom the
statement is offered under subdivision (E).
O A statement is NOT hearsay if the statement is offered against a party and is a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy.
O Historical Development: must establish both the conspiracy and s + declarants
participation in the conspiracy.
Must be independently established
Sufficiency of foundation are questions for the court
O Bourjaily v. US (1987): determining the admissibility of a statement of a coconspirator is
solely a matter for the court, Rule 104(a), and that the court in making its determination must
apply the more probably true than not true standard of proof
Content of the coconspirators statement itself may be considered
R. 801(d)(2)(E) codifies Bourjaily
O In furtherance: made to induce enlistment, further participation, action, reassure members,
etc.
Does NOT have to be in the presence of or refer to
Exception ends when conspiracy ends or fails

Order of Proof: usually evidence of the conspiracy and s connection with it (at the time
evidence independent of the coconspirator statement) should be admitted prior to the
coconspirators statement BUT can admit the coconspirators statement subject to it begin
connected up later through introduction of sufficient evidence
Court must determine whether government has established the requisite foundation to
be more probably true than not true
Bourjaily eases the governments burden
Crime of conspiracy itself may be submitted to the jury only if the evidence viewed in
the light most favorable to the government, could be accepted by a reasonablyminded jury as adequate to support a conclusion that appellant was guilty of
conspiracy beyond reasonable doubt.
6. JUDICIAL & EVIDENTIARY ADMISSIONS
O Judicial: binding upon the party making it.
May not be controverted at trial or on appeal of the same case.
Not evidence at all withdraw facts from contention
O Evidentiary: may be controverted or explained by the party
Usually includes party statements adverse to their cause
O

D. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

1. AN OVERVIEW:
O R. 803: exceptions which are not affected by the availability, actual testimony or
unavailability of the declarant
Some statements are so trustworthy that declarant need to testify
O R. 804: exceptions which require that the declarant be unavailable before the hearsay
statement may be admitted.
Better to have some evidence introduced that to deprive the fact finder of the
evidence altogether
O Must still meet all other evidentiary rules (i.e. relevance, personal knowledge)
2. PRESENT SENSE IMPRESSION; EXCITED UTTERANCE
O RULE 803(1) & (2): PRESENT SENSE IMPRESSION & EXCITED UTTERANCE: The following
are not excluded by the hearsay rule, even though the declarant is available as a witness:
(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.
(2) Excited Utterance. A statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or condition.
O NOT excluded by hearsay rule, even though the declarant is available as a witness: (1)
present sense impression describing or explaining an event or condition made while the
declarant was perceiving the event or immediately thereafter (2) excited utterance relating to
a startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition
Present Sense Impression: allowed because reduced likelihood of deliberation or
conscious misrepresentation
Personal knowledge still required
Existence of condition or event
Excited Utterance: allowed because excitement caused by the event temporarily chills
the capacity for reflection thus producing statements free of conscious fabrication

 Trustworthy because there is not time to consider self-interest in manipulating

facts
Requirements: (1) occurrence of an event or condition sufficiently startling to
produce a spontaneous and unreflecting statement; (2) absence of time to
fabricate; and (3) statement relating to the startling even or condition.
Can be an opinion
Timing: duration of the state of excitement depending on nature of event, age
and condition of declarant, presence/absence of self-interest, etc.
Court should hesitate before admitting evidence of unidentified bystanders
statements
3. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION; INTENT AS PROOF OF DOING
ACT INTENDED; STATEMENT AS PROOF OF FACT REMEMBERED OR BELIEVED; WILL CASES
O RULE 803(3): THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION; INTENT
AS PROOF OF DOING ACT INTENDED; STATEMENT AS PROOF OF FACT REMEMBERED OR
BELIEVED; WILL CASES: The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the
declarants then existing state of mind, emotion, sensation, or physical 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 declarants
will.
O A statement is NOT excluded by hearsay rule it the statement of the declarants then existing
stand of mind, emotion, sensation, or physical condition, 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 declarants will.
O Then existing: broadened by inference of continuity in time
Facts introduced to establish state of mind cannot be used for the truth of the
factual matter asserted.
Use limiting instructions to restrict the jurys consideration of facts.
O Intent as proof of doing act intended: admissible at common law
Admissibility: persons who intend to act are morel likely to do the act than are
persons without the intent. Evidence of intent is relevant.
Weaknesses: (1) trustworthiness of the declarant and (2) the possibility of
change of mind or supervening events to defeat the plan.
Mutual Life Insurance Co. v. Hillmon (S.Ct. 1892):
Approved introduction of a statement of intent of declarant to infer not
only the declarants future act but the future act of another
Limitations: a declaration of intention is admissible to show that the
declarant did the intended act, but CANNOT be safely accepted as
evidence of what another probably did.
Only admissible if intent establishes declarants future conduct
O Statement as proof of fact remembered or believed: declarations of memory are
inadmissible as admission would undermine the hearsay rules. Distinction between
future acts and memory must remain.

Will Cases: a statement of opinion or belief is admissible to prove the facts

remembered or believed if it relates to the execution, revocation, identification, or
terms of the declarants will.
4. STATEMENTS FOR PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT
O RULE 803(4): STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT: The
following are not excluded by the hearsay rule, even though the declarant is available as a
witness:
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for
purposes of medical diagnosis or treatment and describing medical 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 diagnosis or
treatment.
O Statements of medical diagnosis or treatment describing medical history, symptoms, pains, etc.
are NOT excluded by hearsay rule
O Must be made for purposes of medical diagnosis or treatment
O Desire for proper treatment outweighs motive to lie
O Examining & treating physicians: rule eliminates distinction between doctors
O Examining: doctor hired solely to testify. Decreased reliability because motive to lie
is increase when doctor isnt actually treating patient
O Jury cannot distinguish between facts admitted for the truth and those admitted solely
as forming the bases of an expert witnesss opinion
O Statements of Causation: admissible only to cause or external source of the injury insofar as
reasonably pertinent to medical diagnosis or treatment
O These are NOT statements of fault
O Child sex abuse: doctors statements of childs identification of abuser (if family member) are
admissible as pertinent to diagnosis or treatment of emotional and psychological injuries
O Doctor must explain that identity is important in diagnosis and treatment
O Statement to lay witness: statements of medical history or past/present symptoms, pain or
sensations, made to lay witnesses, are not admissible unless made for purposes of medical
diagnosis or treatment.
5. RECORDED RECOLLECTION
O RULE 803(5): RECORDED RECOLLECTION: The following are not excluded by the hearsay
rule, even though the declarant is available as a witness:
(5) Recorded Recollection. A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable the
witness to testify fully and accurately shown to have been made or adopted by the
witness when the matter was fresh in the witness memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless offered by an adverse
party.
O A memo or record concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and accurately, shown to have
been made or adopted by the witness when the matter was fresh in the witness memory and to
reflect that knowledge correctly. May be read into evidence but may not be received as an
exhibit.
O Must show witness used to have personal knowledge
O Writing must have been prepared or recognized as correct at a time close enough to
the event to insure accuracy
O

Testify to:
O The fact that he remembers making an accurate recording of the event in question
which he no longer sufficiently remembers, that he routinely makes accurate records
of this kind
O If the witness has entirely forgotten the exact situation in which the recording was
made, that he is confident from the circumstances that eh would not have written or
adopted such description of the facts unless that description truly described his
observations at the time.
O Elements:
O Exhibit is relevant
O Witness has no full or accurate present recollection of the facts
O Witness had firsthand knowledge of facts when they occurred
O Witness made a record of the events at or near the time the facts occurred
O Record was accurate and complete when made
O Record is in the same condition now as when made
O Can be read into evidence but not admitted unless offered by adverse party
6. RECORDS OF REGULARLY CONDUCTED ACTIVITY; BUSINESS RECORDS
O RULE 803(6): RECORDS OF REGULARLY CONDUCTED ACTIVITY: The following are not
excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at
or near the time by, or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted activity, and if it was the regular practice
of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with Rule 902(11), Rule 902(12), or a
statute permitting certification, unless the source of information or the method of
circumstances of preparation indicate lack of trustworthiness. The term business
as used in this paragraph includes, business, institution, association, profession,
occupation, and callings of every kind, whether or not conducted for profit.
O A memo, report, record, etc. of acts, events, conditions made at or near the time by a person
with knowledge can be admitted into evidence.
O Overview: business records are admissible because the are reliable and necessary
O Reliable: need to be accurate for a business to use their records effectively and to
meet reporting requirements
O Custodian or other qualified witness can testify to accuracy of records
O Lack of Trustworthiness: admissibility of business records favored
O Not admitted when source of information or the method or circumstances of
preparation indicate lack of trustworthiness
O Review on Appeal: motivation of informant
O Absence of routineness raises lack of motivation to be accurate
Records might be self-serving grounds for exclusion without additional
showing of bias
O Doctors reports or accident reports are considered routine
O Excluded if the sources of information or other circumstances indicate lack of
trustworthiness.
O Regularly conducted activity; at or near the time: record must be made at or near the time by,
or from information transmitted by, a person within the business with first-hand knowledge
O

Memorialization must all occur (1) in the course of a regularly conducted business
activity and (2) it must be the regular practice of that business activity to make a
report.
O Business duty to record; multiple level hearsay: records must be made by a person with
knowledge or from information transmitted by a person with knowledge. All persons
furnishing and recording information must be under a duty to do so.
O Opinions & diagnosis: can be admissible in additional to factual entries.
O Custodian or other qualified witness: testify as person familiar with the business and its mode
of operation identifying the record and establishing that it is a record in fact made at or near the
time in the regular course of a regularly conducted business activity, made by or from
information transmitted by a person within the business with knowledge
O Personal Knowledge: dont need to identify person with first-hand knowledge
O Elements:
O Record is relevant
O Record is a memo, report, record or data compilation in any form
O Witness is the custodian or other qualified witness
O Record was made by a person with knowledge of he facts or was made from
information transmitted by a person with knowledge of the facts
O Records was made at or near the time of the acts, events, conditions, opinions, or
diagnoses appearing on it
O Records was made as a part of the regular practice of the at business activity
O Record was kept in the course of a regularly conducted business activity.
O Certification alternative: can be established by certification that complies with R. 902(11) or
(12).
O Records generated by outside agents; incorporated or verified records:
O Custodian can lay foundation for records now in the possession of a successor entity
O Includes computer records prepared by outside agents of the business
O Relationship to other rules: overlaps R. 803(8) public records
7. ABSENCE OF ENTRY IN RECORDS OF REGULAR CONDUCTED ACTIVITY
O RULE 803(7): ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY:
The following are not excluded by the hearsay rule, even though the declarant is available as
a witness:
(7) Absence of Entry in Records Kept in Accordance with Provisions of Paragraph (6).
Evidence that a matter is not included in the memorandum reports, records, or data
compilations, in any form, kept in accordance with the provisions of paragraph (6),
to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind
of which a memorandum, report, record, or data compilation was regularly made and
preserved, unless the sources of information or other circumstances indicate lack of
trustworthiness.
O Failure to record or include a matter which would ordinarily be included in a record of a
regularly conducted business activity offered to prove the non-occurrence or nonexistence of
the matter constitutes a hearsay exception.
8. PUBLIC RECORDS & REPORTS
O RULE 803(8): PUBLIC RECORDS & REPORTS: The following are not excluded by the
hearsay rule, even though the declarant is available as a witness:
(8) Public Records & Reports. Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth (A) the activities of the office or
agency, or (B) matters observed pursuant to duty imposed by law as to which matters
O

there was a duty to report, excluding, however, in criminal cases matters observed by
police officers and other law enforcement personnel, or (C) in civil actions and
proceedings and against eh Government in criminal cases, factual findings resulting
from an investigation made pursuant to authority granted by law, unless the sources
of information or other circumstances indicate lack of trustworthiness.
O Records of public offices or agencies setting forth agency activities, matters observed pursuant
to duty imposed by law as to which there was a duty to report or in civil actions and
proceedings and against Government in criminal cases are NOT hearsay and admissible.
O Overview: exception based upon the assumption that public officers will perform their duties,
that they lack motive to falsify, and that public inspection to which many such records are
subject will disclose inaccuracies.
O Serves the public convenience and saves public funds
O Must be done in compliance with official duty
O Rule 803(8)(A): exception for records prepared by public offices or agencies dealing with
official activities of the office or agency reasonably necessary for the performance of the duties
of the office.
O Rule 803(8)(B): exceptions for records in any form setting forth matters observed pursuant to
duty imposed by law as to which matters there was a duty to report, excluding, in criminal
cases, matters observed by police officers.
O Officers observations as crime scene or during apprehension are hearsay because they
arent as reliable due to the adversarial nature
O Routine police reports are NOT hearsay
O Rule 803(8)(C): exception for admission in civil actions and proceedings and against the
government in criminal cases of factual findings resulting form an investigation made pursuant
to authority granted by law.
O Factors to assess trustworthiness of investigation:
Timeliness of the investigation
Special skill or experience of the official
Whether a hearing was held and the level at which conducted
Possible motivation problems
O Factual findings are admissible if the investigative report is reliable (includes
evaluative reports)
O Reliability: whether the facts, data, or opinions taken as a whole are of a type
reasonably relied upon by experts in the particular field in forming opinions or
inference upon the subject
O Against the criminal defendants: government reports cant be used against a defendant in a
criminal proceeding.
O Laboratory Reports: will admit forensic lab report if person who conducted report will testify
to report findings.
9. RECORDS OF VITAL STATISTICS
O RULE 803(9): RECORDS OF VITAL STATISTICS: The following are not excluded by the
hearsay rule, even though the declarant is available as a witness:
(9) Records of Vital Statistics. Records or data compilations in any form, of births, fetal
deaths, deaths, or marriages, if the report thereof was made to a public office
pursuant to requirements of law.
O Records of births, fetal deaths, deaths, marriages, etc. made to a public office pursuant to the
requirements of law are NOT hearsay
O Reports can be made by other persons (i.e. doctors)

Public officer creating record must be required by to law to create the record
O Exception based on belief that professionals reporting information have no motive to
misrepresent
O Information like cause of death is subject to R. 803(8)(B) & (C)
10. ABSENCE OF PUBLIC RECORD OR ENTRY
O RULE 803(10): ABSENCE OF PUBLIC RECORD OR ENTRY: The following are not excluded
by the hearsay rule, even though the declarant is available as a witness:
(10) Absence of Public Record or Entry. To prove the absence of a record, report,
statement, or data compilation, in any form, or the nonoccurrence or nonexistence of
a matter of which a record, report, statement or data compilation, in any form, was
regularly made and preserved by a public office or agency, evidence in the form of a
certification in accordance with Rule 902, or testimony, that diligent search failed to
disclose the record, report, statement, or data compilation, or entry.
O Evidence that a diligent search failed to disclose the record is admissible as a hearsay exception
to prove the absence of a record or the nonoccurrence or nonexistence of a matter of which
record was regularly made and preserved by a public office or agency.
11. RECORDS OF RELIGIOUS ORGANIZATIONS (16, 17, 18, 22 ARE ON EXAM)
O RULE 803(11): RECORDS OF RELIGIOUS ORGANIZATIONS: The following are not excluded
by the hearsay rule, even though the declarant is available as a witness:
(11) Records of Religious Organizations. Statements of births, marriages, divorces,
deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts
of personal or family history, contained in a regularly kept record of a religious
organization.
O Statements contained in regularly kept records of a religious organization concerning maters
such as birth, marriage, divorce, death, legitimacy, etc. are NOT hearsay.
O Rationale: unlikely individuals will fabricate information to be used in solemn religious
ceremony, church lacks personal interest and has a duty to make a record
O Can be used to establish relevant dates and relationships
12. MARRIAGE, BAPTISMAL & SIMILAR CERTIFICATES
O RULE 803(12): MARRIAGE, BAPTISMAL, & SIMILAR CERTIFICATES: The following are not
excluded by the hearsay rule, even though the declarant is available as a witness:
(12) Marriage, Baptismal, & Similar Certificates. Statements of fact contained in a
certificate that the maker performed a marriage or other ceremony or administered a
sacrament, made by a clergyman, public official, or other person authorized by the
rules or practices of a religious organization or by law to perform the act certified,
and purporting to have been issued at the time of the act or within a reasonable time
thereafter.
O Statements of fact contained in certificate that the maker performed a marriage or other
ceremony or administered a sacrament are admissible provided person was authorized to
conduct act.
O Must be issued at time of act
O Rationale: religious organization is unlikely to fabricate such an occasion
O When the certificate is offered, it must be accompanied by proof that the act which the
certificate relates is one which the maker of the certificate was authorized to perform.
13. FAMILY RECORDS
O RULE 803(13): FAMILY RECORDS: The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
O

(13) Family Records. Statements of fact concerning personal or family history

contained in family Bibles, genealogies, charts, engravings or rings, inscriptions on
family portraits, engravings on urns, crypts, or tombstones, or the like.
O Statements of fact concerning personal or family history (i.e. family bible) are NOT hearsay.
O Admissible statements: births, marriages, divorces, deaths, legitimacy, ancestry,
relationships by blood or marriage
O Logic: family wouldnt allow an untruthful entry or inscription to be made or to
remain without protest
O Sufficiently authenticated but may be further authenticated by establishing handwriting,
signature, etc.
14. RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY
O RULE 803(14): RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY: The
following are not excluded by the hearsay rule, even though the declarant is available as a
witness:
(14) Records of Documents Affecting an Interest in Property. The record of a
document purporting to establish or affect an interest in property, as proof of the
content of the original recorded document and its execution and delivery by each
person by whom it purports to have been executed, if the record is a record of a pubic
office and an applicable statute authorizes the recording of documents of that kind in
that office.
O Record of a document purporting to establish or affect an interest in property is admissible
under a hearsay exception.
O Admission of a record of a title document to prove contents of document and
execution/delivery date
O Record must be of a public office
15. STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY
O RULE 803(15): STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY: The
following are not excluded by the hearsay rule, even though the declarant is available as a
witness:
(15) Statements in Documents Affecting an Interest in Property. A statement contained
in a document purporting to establish or affect an interest in property if the matter
stated was relevant to the purpose of the document, unless dealings with the property
since the document was made have been inconsistent with the truth of the statement
or the purport of the document.
O Circumstances under which documents purporting to establish or affect an interest in property
are executed will normally guarantee the trustworthiness of recitals of fact relevant to the
purpose of the document, thereby a hearsay exception exists
16. STATEMENTS IN ANCIENT DOCUMENTS
O RULE 803(16): STATEMENTS IN ANCIENT DOCUMENTS: The following are not excluded by
the hearsay rule, even though the declarant is available as a witness:
(16) Statements in Ancient Documents. Statements in a document in existence twenty
years or more the authenticity of which is established.
O Statements in a document in existence 20 years or more whose authenticity is established
constitute a hearsay exception
O Authenticity is established pursuant to R. 901(b)(8) showing: (1) its condition creates
no suspicion concerning its authenticity, (2) it was in a place where it would be likely
to be if authentic, and (3) it has been in existence 20 years or more at the time it is
offered.

Reduced common law period from 30 to 20 years & applies to all issues instead of being
limited to property disputes
O Logic: document was probably created prior to the existence of any motive to falsify arising
from the present litigation & written form reduces possibility of error in transmission
17. MARKET REPORTS, COMMERCIAL PUBLICATIONS; MORTALITY TABLES
O RULE 803(17): MARKET REPORTS, COMMERCIAL PUBLICATIONS: The following are not
excluded by the hearsay rule, even though the declarant is available as a witness:
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists
directories, or other published compilations, generally used and relied upon by the
public or by persons in particular occupations.
O Market quotations, tabulation, lists, etc. generally used and relied upon by the public or by
persons in particular occupations constitute a hearsay exception
O Based on the high reliability of these documents, necessity requires the exception & there lacks
a motive to deceive
18. LEARNED TREATISES
O RULE 803(18): LEARNED TREATISES: The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:
(18) Learned Treatises. To the extent called to the attention of an expert witness upon
cross-examination or relied upon by the expert witness in direct examination,
statements contained in published treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or art, established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or by judicial
notice. If admitted, the statement may be read into evidence but may not be received
as exhibits.
O To the extent called to the attention of an expert witness upon cross-examination or reasonably
relied upon by an expert witness on direct examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the witness or by other
expert testimony or by judicial notice are admissible as a hearsay exception.
O Statements used to impeach an experts testimony can later be used to as substantive evidence
O Can also be admitted for the truth of their content when relied on by experts
O Read into evidence but NOT brought into the jury room prevents jurors from
overvaluing evidence
O Burden of establishing that the authority is reliable is on the offering party (low standard of
proof)
19. REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY
O RULE 803(19): REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY: The following
are not excluded by the hearsay rule, even though the declarant is available as a witness:
(19) Reputation Concerning Personal or Family History. Reputation among members
of a persons family by blood, adoption, or marriage, or among a persons associates,
or in the community, concerning a persons birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, marriage, ancestry, or other similar fact
of his personal of family history.
O Hearsay exception for reputation concerning personal or family history (i.e. blood relatives,
adoption, marriage, death records, etc.)
O Witnesses called to testify to reputation must be shown to be among the particular group and to
be familiar with the reputation
20. REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY
O

RULE 803(20): REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY: The

following are not excluded by the hearsay rule, even though the declarant is available as a
witness:
(20) Reputation Concerning Boundaries or General History. Reputation in a
community, arising before ht controversy, as to boundaries of or customs affecting
lands in the community, and reputation as to events of general history important to
the community or State or nation in which located.
O Reputation in a community, arising before the controversy, as to boundaries of or customs
affecting lands in the community, and reputation as to events of general history important to
community in which located is are admissible as a hearsay exception
21. REPUTATION AS TO CHARACTER
O RULE 803(21): REPUTATION AS TO CHARACTER: The following are not excluded by the
hearsay rule, even though the declarant is available as a witness:
(21) Reputation as to Character. Reputation of a persons character among associates
or in the community.
O Evidence of reputation of a persons character among associates or in the community is
admissible as a hearsay exception (has limits)
O May be used to prove a fact of consequence when character is in issue or to establish a
pertinent trait of character of the accused or victim
22. JUDGMENT OF PREVIOUS CONVICTION
O RULE 803(22): JUDGMENT OF PREVIOUS CONVICTION: The following are not excluded by
the hearsay rule, even though the declarant is available as a witness:
(22) Judgment of Previous Conviction. Evidence of a final judgment, entered after a
trial or upon a plea of guilty 9but not upon a plea of nolo contendere), adjudging a
person guilty of a crime punishable by death or imprisonment in excess of one year,
to prove any fact essential to sustain the judgment, but not including, when offered by
the Government in a criminal prosecution for purposes other than impeachment,
judgments against person other than the accused. The pendency of an appeal may be
shown but does not affect admissibility.
O Evidence of final judgment or upon a lea of guilty, adjudging a person guilty of a felony is
admissible as a hearsay exception to prove any fact essential to sustain the judgment but not
when offered by the prosecution in a criminal case for purposes other than impeachment or
judgments against person other than the accused.
O Pendency of an appeal does NOT effect admissibility
O Limited to crimes punishable by death or imprisonment in excess of one year
O Nolo contendere pleas are inadmissible
O Assumption: jury will give it substantial effect unless defendant offers a satisfactory
explanation
O Accused may rebut evidence
O Kirby v. United States (1899): it is improper to allow the introduction of evidence of the
conviction of thieves (alleged accomplices) in a separate non-related proceeding, and that such
evidence violated the accuseds constitutional right of confrontation of witnesses.
O Violates presumption of innocence
23. JUDGMENT AS TO PERSONAL, FAMILY OR GENERAL HISTORY, OR BOUNDARIES
O RULE 803(23): JUDGMENT AS TO PERSONAL, FAMILY OR GENERAL HISTORY, OR
BOUNDARIES: The following are not excluded by the hearsay rule, even though the declarant
is available as a witness:
O

(23) Judgment as to Person, Family, or General History, or Boundaries. Judgments

as proof of matters of personal, family or general history, or boundaries, essential to
the judgment, if the same would be provable by evidence of reputation.
O Prior judgment as proof of matters of personal, family or general history, or boundaries,
essential to the judgment to the extent the foregoing would be provable by reputation evidences
is a hearsay exception
O Prior judgment considered at least as trustworthy as reputation evidence
24. OTHER EXCEPTIONS: found in R. 807
E. HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE
1. AN OVERVIEW: statement meeting the requirements of the particular exception is not equal in
quality to the testimony of declarant at trial
O Hierarchy: testimony given on the stand in person is preferred over hearsay and hearsay is
preferred over complete loss of the evidence of the declarant
O Unavailability of testimony unavailability of witness
O Self-serving hearsay statements are still admissible
O Witness inferences are admissible if the witness is unavailable to testify because the jury
cannot draw the inferences it would be able to otherwise from the witness testimony at trial
2. DEFINITION OF UNAVAILABLE
O RULE 804(a): DEFINITIONS OF UNAVAILABILITY:
(a) Definitions of Unavailability. Unavailability as a witness includes situations in
which the declarant(1) Is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarants statement; or
(2) Persists in refusing to testify concerning the subject matter of the declarants
statement despite an order of the court to do so; or
(3) Testifies to a lack of memory of the subject matter of the declarants
statement; or
(4) Is unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of a statement has been unable
to procure the declarants attendance (or in the case of a hearsay exception
under subdivision (b)(2), (3), or (4), the declarants attendance or testimony)
by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness from attending or
testifying.
O May conflict with the confrontation clause
O Child sexual abuse cases allow state to protect child witness from the trauma of
testifying by using closed circuit tv that permits the child to testify absent face-to-face
confrontation (Coy v. Iowa)
O Court must find: (1) procedure is necessary to protect the welfare of the child and (2)
find that the child would be traumatized by testifying in the defendants presence.
O Illness under R. 804(a)(4): the duration of the illness need only be in probability such that with
regard to the importance of the testimony the trial cannot be postponed
O Trial court should consider option of granting a continuance
O Declarant is unavailable if his presence cannot be secured by process or other reasonable
means under R. 804(a)(5)

Criminal proceedings: government must make a good faith effort to obtain the
presence of the witness at trial going beyond the mere showing of an inability to
compel appearance by subpoena before prior testimony may be introduced as a
substitute for testimony
O Prosecution must take reasonable measure to procure witness
O Burden of showing unavailability: on the party offering the statement
3. FORMER TESTIMONY
O RULE 804(b)(1): FORMER TESTIMONY:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
(1) Former Testimony. 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 proceeding, 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.
O 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 proceeding is
admissible as a hearsay exception if the witness is unavailable and the predecessor in interest
had an opportunity and similar motive to develop the testimony be direct, cross or redirect
examination.
O Preference for personal appearance because the trier of fact can assess the witness demeanor
O Adequate opportunity: conduct direct, redirect or cross-examination
O Tactical decision: if you dont develop testimony when you had the opportunity to,
you assume the risk the witness will be unavailable at trial (allows one-sided report to
be admissible)
O Same party or in civil action predecessor in interest: mutuality is not required
O Criminal: admissibility of testimony against a party to a prior hearing
O Civil: admissibility of testimony against a party to the former suit or someone in
privity
O Predecessor in interest = privity = community of interest opportunity & similar
motive
O Similar motive to develop testimony: exists when the issue at the prior hearing and at the
current hearing are substantially similar
O Doesnt require the form of the proceeding, theory of case, or relief sought to be the
same
O Adequacy of opportunity to cross-examine; preliminary hearing; deposition; suppression
hearing: tactical analysis
O Focus on opportunity to conduct cross, not the practical considerations (lack of
discovery, waiting until trial, etc.)
O Failure to cross-examine may lead to exclusion on grounds of misleading the jury or
unfair prejudice
O Offense against a child: childs testimony may be taken on closed circuit television provided
the court finds the child is unable to testify in open court in the presence of the defendant
because (1) fear, (2) substantial likelihood the child would suffer emotional trauma, (3) child
suffers a mental or other infirmity, or (4) conduct by defendant cause the child to be unable to
continue to testify
4. STATEMENT UNDER BELIEF OF IMPENDING DEATH
O

RULE 804(b)(2): STATEMENT UNDER BELIEF OF IMPENDING DEATH:

(B) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
(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 declarants death was imminent, concerning the cause or circumstances of
what the declarant believed to be impending death.
O Basis is quasi-religious: less likely to lie when dying
O Must believe death is imminent shown by circumstantial evidence (i.e. extent of injury,
doctors prognosis, etc.)
O Must have capacities required to establish personal knowledge perceive, record,
recollect & narrate.
O Generally admissible in civil actions but are only admissible in criminal actions for homicide
O Declarant has to be the victim of the homicide for the statement to be admissible
O Limitation in criminal prosecutions to homicide is based on reliability risk of
statements
5. STATEMENT AGAINST INTEREST
O RULE 804(b)(3): STATEMENT AGAINST INTEREST:
(B) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
(3) Statement Against Interest. A statement which was at the time of its making so far
contrary to the declarants pecuniary or proprietary interest, or so far tended to
subject the declarant to civil of 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 he believe 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 indicate the
trustworthiness of the statement.
O Statement made to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement
O Basis: people dont make false statements damaging themselves
O Common law requirements: (1) declarant be unavailable, (2) declaration was against his
proprietary or pecuniary interest when made, (3) declarant had personal knowledge of the fact
declared, and (4) declarant had no probable motive to falsify
O Doesnt have to be a confession of guilt
O Must subject declarant to criminal or civil liability
O Inculpatory Statement: implicates both the declarant and defendant in criminal activity and is
admitted against defendant
O Collateral: inculpatory material is not found in the portion of the statement directly
against he declarants interest, but appears instead in another portion of the statement
O Non-collateral: facts inculpating the defendant are found in the portion of the
statement directly against the declarants interest
O Exculpatory Statement: declaration against the declarants interest, which indicate that the
defendant is not responsible for crime charged. Approaches:
Wigmore: statement may be accepted, not merely as to the specific fact against
interest, but also as to every fact contained in the same statement
Accuracy & sincerity risks satisfied
O

McCormick: collateral statements of neutral character are admissible but, collateral

statements of self-serving character should be excluded
Jefferson: neither collateral neutral nor collateral self-serving statements would be
admissible
Unreliable
Williamson v. United States (1994): non-self-inculpatory collateral statements are not
admissible because the fact that part of the statement is true doesnt make all of the statement
true.
O Hard to administer because so broad
Lilly v. Virginia (1999): admission of custodial statements to law enforcement personnel
against penal interest (oral statements) that incriminate another person should ordinarily be
found to have violated the confrontation clause when admitted against such other person in a
criminal case. Evidence is presumptively unreliable.
O Limits ability to point finger at another
Crawford v. Washington: a testimonial statement is not admissible under the confrontation
clause if the out of court declarant doesnt testify at the criminal trial subject to crossexamination unless the criminal defendant had a prior opportunity for cross-examination.
O Historical Analysis: basis for confrontation clause:
Directed to make ex parte examinations as evidence against the accused in
criminal trials inadmissible
Framers wouldnt have allowed admission of testimonial statements of a
witness who didnt appear at trial unless he was unavailable to testify and the
defendant had had a prior opportunity for cross-examination
O Requirements: unavailability and prior opportunity to cross-examine
Davis v. Washington: testimonial & nontestimonial
O Testimonial: any statement made to or elicited by a police officer, other law
enforcement personnel, or a judicial officer under circumstances objectively
indicating at the time made that the primary purpose to which the statement will be
used by the government is to establish or prove past events potentially relevant to
later criminal prosecution
Inadmissible under the Confrontation Clause must testify at trial
O Nontestimonial: when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency
Emergency: protection of the police, third parties and victims from immediate
further attack; assistance from medical personnel, etc.; and hazardous
materials
Corroborating circumstances indicating trustworthiness:
O Timing & circumstance under which the statement was made
O Declarants motive in making the statement & whether there was a reason for the
declarant to lie
O Whether the declarant repeated the statement & did so consistently, even under
different circumstances
O Party or parties to whom the statement was made
O Relationship between the declarant and the opponent of the evidence
O Nature and strength of independent evidence relevant to the conduct in question
O Witness credibility is NOT a factor!!!

6. STATEMENT OF PERSONAL OR FAMILY HISTORY

O RULE 804(b)(4): STATEMENT OF PERSONAL OR FAMILY HISTORY:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
(4) Statement of Personal or Family History. (A) A statement concerning the
declarants own birth, adoption, marriage, divorce, legitimacy, relationship by
blood, adoption or marriage, ancestry, or other similar fact of personal or family
history, even though declarant had no means of acquiring personal knowledge of
the matter stated; or (B) a statement concerning the foregoing matters, and death
also, of another person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the others family as
to be likely to have accurate information concerning the matter declared.
O Weight: consider when the statement was made, who made the statement, if the person is alive
(relaxed from common law to allow admission)
O Personal knowledge satisfied if unavailable declarant is a member of the family and thus in a
position to be familiar with the matter
7. OTHER EXCEPTIONS
O RULE 804(b)(5): found in Rule 807 Residual Exception
8. FORFEITURE BY WRONGDOING
O RULE 804(b)(6): FORFEITURE BY WRONGDOING:
(B) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
(6) Forfeiture by Wrongdoing. A statement offered against a party that has engaged
or acquiesced in wrongdoing that was intended to, and did, procure
unavailability of the declarant as a witness.
O Actions taken to threaten witness from testifying or to provide favorable testimony
results in a forfeiture of right to object to admission of hearsay evidence on
confrontation clause grounds
O All conduct that is intended to procure the unavailability of a witness
Response to witness intimidation
Difficult to prove
F. HEARSAY WITHIN HEARSAY:
RULE 805: HEARSAY WITHIN HEARSAY: Hearsay include within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule
provided in these rules.
O Example: statement of declarant is hearsay but falls within an exception (i.e. excited utterance),
which is recorded in a business document that is hearsay but falls within a hearsay acceptance.
Still admissible because the link in the chain falls under sufficient assurances
Statements of then existing state of mind can provide implicit statements of another persons then
existing state of mind admitted less frequently than business records, dying declaration, excited
utterance, etc.
G. ATTACKING & SUPPORTING CREDIBILITY OF DECLARANT
RULE 806: ATTACKING & SUPPORTING CREDIBILITY OF DECLARANT: When a hearsay statement, or
a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of
the declarant may be attacked, and if attacked may be supported, by any evidence which would be
admissible for those purposes if declarant had testified as a witness. Evidence of a statement of conduct

by the declarant at any time, inconsistent with the declarants hearsay statement, is not subject to any
requirement that the declarant may have been afforded an opportunity to deny or explain. If the party
against whom a hearsay statement has been admitted calls the declarant as a witness, the party is
entitled to examine the declarant on the statement as if under cross-examination.
Credibility of a declarant may be attacked by any evidence, which would be admissible for that purpose
if the declarant had testified as a witness.
O Includes: bias, interest, coercion, corruption, prior convictions, evidence of character,
inconsistent statements, etc.
Credibility can also be rehabilitated as if witness were available
O Witness doesnt have the right to deny or explain inconsistent statements allows opposition to
impeach testimony of witnesses they never had the opportunity to cross-examine
O Prior inconsistent statement may be introduced to attack credibility without reference to:
O Whether the prior inconsistent statement or conduct occurred prior to or after the
statement admitted into evidence
O Whether the prior statement admitted into evidence was made at a prior hearing or
deposition
Can call out of court declarant to examine him as if under cross-examination

H. RESIDUAL EXCEPTION
RULE 807: RESIDUAL EXCEPTION: A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more
probative one the point for which it is offered than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purpose of these rules and ht interests of justice will
best be served by admission of the statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known to the adverse party sufficiently in advance
of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the
proponents intention of offer the statement and the particulars of it, including the name and address of
the declarant.
Hearsay exception permitting introduction of hearsay statements possessing circumstantial guarantees of
trustworthiness equivalent to those present with respect to the 23 exceptions contained in R. 803 and the
5 exceptions in R. 804.
O Must notify adverse party of the intention to admit a statement under this provision as well was
the particulars of the statement
O Used rarely under exceptional circumstances
Requirements that must be satisfied before statement is admitted
1. Equivalent trustworthiness: must be as trustworthy as statements admitted under hearsay
exceptions. Factors:
Declarants partiality
Presence or absence of time to fabricate
Suggestiveness brought on by the use of leading questions
Whether the declarant has ever recanted or reaffirmed the statement
2. Necessity: necessary in the sense of being more probative on the point for which offered than
any other evidence which the proponent my reasonably procure
3. Material fact: relevant & of substantial importance
4. Satisfaction of purpose of rules: serves the interest of justice by admission
5. Notice: provide notice to adverse party (often via continuance)
Catch all for hearsay statements that dont fit into other exceptions

Crawford v. Washington (2004): testimonial statement is not admissible under the confrontation clause if
the out of court declarant does not testify at the criminal trial subject to cross-examination unless the
criminal defendant had prior opportunity for cross-examination.
O Grand jury testimony is never admissible (violates confrontation clause)

I. THE CONFRONTATION CLAUSE

SIXTH AMENDMENT: in all criminal prosecutions, the accused shall enjoy the right to be confronted
with witnesses against him.
Two Types:
O Cases involving the admission of out of court statements
O Cases involving restrictions imposed by law or by the trial court on the scope or extent of
cross-examination face to face with the accused
Face to face confrontation is required
O Exception: child abuse cases where closed circuit tv may be used. Necessity due to the severe
emotional distress a child would suffer
Attempt to eliminate conflict between confrontation clause and hearsay exceptions
O Prior inconsistent statements are admissible
Ohio v. Roberts (1980): Hearsay rules & confrontation clause protect the same values
O When a hearsay declarant is not present for cross-examination, the confrontation clause
normally requires a showing that he is unavailable. Even then, his statement is admissible only
if it bears adequate indicia of reliability. Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception.
O NOT a radical change
Altering Roberts:
O United States v. Inadi (1986): Considerations of reliability and necessity, benefit, and burden
all support its conclusion that the confrontation clause does NOT mandate an initial showing of
unavailability of the declarant before a statement of a coconspirator a be received in evidence.
O White v. Illinois (1992): Roberts stands for the proposition that unavailability analysis is a
necessary part of Confrontation Clause inquiry only when the challenged out of court
statements were made in the course of a prior judicial proceeding.
O Bourjaily v. United States (1987): coconspirator exception to the hearsay rule is firmly enough
rooted in our jurisprudence that, under this Courts holding in Roberts, a court need not
independently inquire into the reliability of such statements.
O Coconspirator exception is long standing (fails to address core of Roberts requirement
of indicia of reliability)
O Determined statement was reliability without ever examining the reliability of the
statement of the coconspirator
O Lilly v. Virginia (1999): admission of custodial statements to law enforcement personnel
against penal interest of an unavailable declarant that incriminate another person should
ordinarily be found to violate the confrontation clause when admitted against such other person
in a criminal case
O Statements of a codefendant
O Presumptively unreliable BUT fact focused examination sometimes allows in
statements prohibited by Lilly if they meet Roberts particularized guarantee of
trustworthiness.
O RULE: Statements falling within ANY traditional common law firmly rooted hearsay
exception are sufficiently reliable on their face to be admitted against the accused and that the

imposition of a requirement of unavailability by the confrontation clause exists only when the
challenged out of court statement was made in the course of a prior judicial proceeding.
Crawford v. Washington (2004): testimonial statements are not admissible under the confrontation
clause unless declarant is subject to cross at trial or defendant has a prior opportunity for crossexamination. Historical analysis:
O Principal evil which the confrontation clause was directed to solve was the civil-law mode of
criminal procedure (ex part examinations)
O Framers wouldnt have allowed admission of testimonial evidence unless declarant was
unavailable and defendant had opportunity to cross
O Unavailability & cross REQUIRED!!
O Did NOT define testimonial
Davis v. Washington (2006): movement away from Crawford & distinction between testimonial & nontestimonial:
O Non-Testimonial: statements made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.
O Emergency: protection of police, third parties or victims from immediate further
attack
O Testimonial: statements when the circumstances objectively indicate that there is no such
ongoing emergency, and the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.
O Includes statements volunteered to government officials
Roberts still governs the admissibility of non-testimonial statements. However, Davis opines that
confrontation clause only applies to testimonial hearsay statements.

CHAPTER 6: AUTHENTICATION & IDENTIFICATION

A. GENERAL PROVISION

RULE 901(a) & (b): GENERAL PROVISION:

(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 quest is what its proponent claims.
(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:
O Proof can be may by either direct or circumstantial evidence
O Documents & real evidence once authenticated must be offered into evidence
O TEST: whether the proponent has present sufficient evidence to support a rational jury
finding that the letter is genuine or the photograph is accurate
Process to admit document into evidence:
O Keep evidence out of the sight of the jury until ready to use
O When ready, the proponent should first request that the item be marked for identification
O Hand exhibit to opposing attorney for inspection
O Hand exhibit to witness
O Ask witness to identify the article & lay foundation including authenticity
O Formally offer into evidence
When an item is offered into evidence, the court may permit counsel to conduct a limited crossexamination (voir dire) on the foundation offered.
O Light most favorable to proponent
O Trier of fact determines whether to allow exhibit into evidence
Authentication can be established before trial by pleading, by a request to admit, by stipulation, by
deposition, by interrogatory, or as a result of an agreement reached at pretrial conference
May still be excluded for other reason (i.e. lack of relevancy)
B. ILLUSTRATIVE TESTIMONIAL FOUNDATIONS
1. TESTIMONY OF WITNESS WITH KNOWLEDGE
O RULE 901(b)(1): TESTIMONY OF WITNESS WITH KNOWLEDGE:
(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 quest is what its proponent claims.
(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:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is
claimed to be.
O Uniqueness: personal knowledge: acquired through five senses
Testify that item is the same item & is in the same condition
When distinctive appearance, can be established by testimony of one person
O Chain of Custody: consists of testimony of continuous possession by each individual having
possession, together with testimony by each that the object remained in substantially the same
condition during its presence in his possession
All possibilities of alteration, substitution, etc. need not be eliminated but there must be
support that alternation, substitution is improbable

More authenticity is at issue, greater then need to negate the possibility of alteration,
substitution, etc.
Reasonable probability no change occurred
O Sample: necessary to establish that the sample is representative of the mass
NON-EXPERT OPINION ON HANDWRITING
O RULE 901(b)(2): NON-EXPERT OPINION ON HANDWRITING:
(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 quest is what its proponent claims.
(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:

2.

(2) Non-Expert Opinion on Handwriting. Non-expert opinion as to the genuineness

of handwriting, based upon familiarity not acquired for purposes of the litigation.
Familiarity: witness has seen the person write or has seen writings purporting to be those
of the person in question under circumstances indicating their genuineness
Governed by R. 602 & R. 104(b): reasonably jury viewing the evidence most
favorably to the proponent could believe that the witness has sufficient familiarity
to identify the handwriting (identification is accurate)
Can testify in less than absolute terms (i.e. I think this is Xs writing)
Limited time to become familiar deals with weight which testimony should be
given
Lay witnesses cant make comparisons between disputed specimens and exemplar
(exclusively left to experts)
3.
COMPARISON BY TRIER OR EXPERT WITNESS
O RULE 901(b)(3): COMPARISON BY TRIER OR EXPERT WITNESS:
(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 quest is what its proponent claims.
(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:
(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by
expert witnesses with specimens which have been authenticated.
O Can make decisions as to authenticity upon a comparison between the questioned piece of
evidence and an exemplar the authenticity of which has been sufficiently established
Used: ballistics, handwriting, fingerprints, DNA, typewriting, tread marks, shoe prints,
bite marks, etc.
O Exemplar admitted for purposes of comparison if evidence sufficient to support a finding by a
reasonable jury of genuineness has been introduced
Circumstantial or direct evidence
Demonstrate similarities graphically
O Can test experts ability to compare to determine weight jury should give testimony (showing
some genuine & fake signatures and making him select the genuine ones)
4. DISTINCTIVE CHARACTERISTICS & THE LIKE
O RULE 901(b)(4): DISTINCTIVE CHARACTERISTICS & THE LIKE:

(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 quest is what its proponent claims.
(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:
(4) Distinctive Characteristics and the Like. Appearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances.
O Reply Doctrine: once a letter, email, fax, telegram, or telephone call is shown to have been
mailed, sent or made, a letter, email, fax, telegram or telephone call shown by its contents to be
in reply is authenticated without more
5. VOICE IDENTIFICATION
O RULE 901(b)(5): VOICE IDENTIFICATION:
(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 quest is what its proponent claims.
(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:
(5) Voice Identification. Identification of a voice, whether heard firsthand or through
mechanical or electronic transmission or recording, by opinion based upon
hearing the voice at any time under circumstances connecting it with the alleged
speaker.
O Familiarity is required but can be gained before or after hearing the voice to be identified
Includes: first-hand, mechanical or electronic transmission or recording, based on hearing
voice at any time
Reasonableness Standard: whether a reasonable jury viewing the evidence most favorable
to the proponent could believe that the witness has sufficient familiarity to identify the
voice and thus that the purported identification is accurate.
O Self-incrimination: defendant can be compelled to speak without violating his privilege against
self-incrimination
O Sound recordings: authenticated when a proper foundation is laid, including identification of
the speakers
Person who participated or heard entire conversation and can identify the speakers may
testify to accuracy of recording
If no person participate or heard conversation, lay foundation by showing: (1) capability
of the device for recording, (2) competency of the operator, (3) proper operation of the
device, (4) preservation of the recording with no changes, additions or deletions, along
with (5) identification of the speakers to authenticate
Must not be barred by an eavesdropping statute
Must be played in open court for judge & jury
O Transcripts: may be used to assist in listening to the tape but the tape NOT the transcript is
evidence
Use stipulated transcript or each party can submit transcript if it is to be used in jury
deliberations
6. TELEPHONE CONVERSATIONS
O RULE 901(b)(6): TELEPHONE CONVERSATIONS:

(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 quest is what its proponent claims.
(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:
(6) Telephone Conversations. Telephone conversations, by evidence that a call was
made to the number assigned at the time by the telephone company to a
particular person or business, if (A) in the case of a person, circumstances,
including self-identification, show the person answering to be the one called, or
(B) in the case of a business, the call was made to a place of business and the
conversation related to business reasonably transacted over the telephone.
O Communications by telephone dont authenticate themselves
O Caller-ID can be used to authenticate source of incoming calls
7. PUBLIC RECORDS OR REPORTS
O RULE 901(b)(7): PUBLIC RECORDS OR REPORTS:
(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 quest is what its proponent claims.
(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:
(7) Public Records or Reports. Evidence that a writing authorized by law to be
recorded or filed in fact recorded or filed in a public office, or a purported public
report, report, statement, or data compilation, in any form, is from the public
office where items of this nature are kept.
O Applies to local, state, federal and foreign writings & records
O Must introduce evidence sufficient to support a finding that the recorded or filed writing, or
public record is from the public office where such items are kept
O Duplicate of public record authorized by law to be recorded may be used in place of an original
8. ANCIENT DOCUMENTS OR DATA COMPILATION
O RULE 901(b)(8): ANCIENT DOCUMENTS OR DATA COMPILATION:
(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 quest is what its proponent claims.
(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:
(8) Ancient Documents or Data Compilation. Evidence that a document or data
compilation, in any form, (A) is in such condition as to create no suspicion
concerning its authenticity, (B) was in a place where it, if authentic, would likely
be, and (C) has been in existence 20 years or more at the time it is offered
O Expands common law rule which was limited to real property documents
9. PROCESS OR SYSTEM; COMPUTER RECORDS, FAXED DOCUMENTS, E-MAIL, WEBSITE
O RULE 901(b)(9): PROCESS SYSTEM:
(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 quest is what its proponent claims.

(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:
(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.
Usually admitted without challenge but can use experts to establish reliability and
accuracy
O Computer Records: computers are used regularly in the course of business for records
(extension of Rule 803(6) & 803(8)).
O Faxed Documents: authenticity varies depending on whether proponent is seeking to establish
that a particular document was sent and received or whether the faxed document was sent by a
particular person or entity and received by other
O Email & Website: may be authenticated by reply doctrine, distinctive characteristics, chain of
custody, or process or system
10. METHODS PROVIDED BY STATUTE OR RULE
O RULE 901(b)(10): METHODS PROVIDED BY STATUTE OR RULE:
(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 quest is what its proponent claims.
(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:
(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
Supreme Court pursuant to statutory authority.
O Other rules (i.e. FRAP, FRCP, etc.) are not intended to be superseded
C. SELF-AUTHENTICATION
RULE 902: SELF-AUTHENTICATION: Extrinsic evidence of authenticity as a precedent to
admissibility is not required with respect to the following:
Sufficient along to support a finding by a reasonable jury that the item is what it purports to be.
O Rationale: likelihood of fabrication/error is so slight in comparison with the time and expense
involved in authentication that extrinsic evidence isnt required
O Evidence of non-authenticity may be introduced
O Contents of an item will still have to meet other requirements such as rule against hearsay
Limited hearsay exception as to question of authenticity
Item MUST be produced
1. DOMESTIC PUBLIC DOCUMENTS UNDER SEAL
O RULE 902(1): DOMESTIC PUBLIC DOCUMENTS UNDER SEAL: Extrinsic evidence of
authenticity as a precedent to admissibility is not required with respect to the following: (1)
Domestic Public Document Under Seal. A document bearing a seal purporting to be that of
the US, or of any State, district, Commonwealth, territory, or insular possession thereof, or the
Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision,
department, officer, or agency thereof, and a signature purporting to be an attestation or
execution.
O Rationale: forgery is a crime and that detection is fairly easy & certain.
2. DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL

RULE 902(2): DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL: Extrinsic evidence of
authenticity as a precedent to admissibility is not required with respect to the following: (2)
Domestic Public Documents Not Under Seal. A document purporting to bear the signature in
the official capacity of an officer or employee of any entity included in paragraph (1) hereof,
having no seal, if a public officer having a seal and having official duties in the district or
political subdivision of the officer or employee certifies under seal that the signer has the
official capacity and that the signature is genuine.
O Limited to persons possessing a seal as an attribute of office and is thus believed to reduce risk
of fabrication
FOREIGN PUBLIC DOCUMENTS
O RULE 902(3): FOREIGN PUBLIC DOCUMENTS: Extrinsic evidence of authenticity as a
precedent to admissibility is not required with respect to the following: (3) Foreign Public
Documents. A document purporting to be executed or attested in an official capacity by a
person authorized by the laws of a foreign country to make the execution or attestation, and
accompanied by a final certification as to the genuineness of the signature and official position
(A) of the executing or attesting person, or (B) of any foreign official whose certificate of
genuineness of signature and official position relates to the execution or attestation or is in a
chain of certificates of genuineness of signature and official position relating to the execution
or attestation. A final certification may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent of the United States, or a diplomatic or
consular official of a foreign country assigned or accredited to the United States. if
reasonable opportunity has been give to all parties to investigate the authenticity and accuracy
of official documents, the court may, for good cause shown, order that they be treated as
presumptively authentic without final certification or permit them to be evidence by an attested
summary with or without final certification.
CERTIFIED COPIES OF PUBLIC RECORDS
O RULE 902(4): CERTIFIED COPIES OF PUBLIC RECORDS: Extrinsic evidence of authenticity as
a precedent to admissibility is not required with respect to the following: (4) Certified Copies
of Public Records. A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public office,
including data compilations in any form, certified as correct by the custodian or other person
authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of
this rule or complying with an Act of Congress or rule prescribed by the Supreme Court
pursuant to statutory authority.
O Rationale: considerations of inconvenience and danger of loss or damage in removing a public
record from its usual place of keeping justify the rule
O Custodian prepares certificate stating he has custody of original and the copy is true and
correct.
Assumed to be trustworthy because official report. No other testimony is need to
authenticate record
O Only applies to official records prevents internal records or documents without a seal from
being introduced into evidence
OFFICIAL PUBLICATIONS
O RULE 902(5): OFFICIAL PUBLICATIONS: Extrinsic evidence of authenticity as a precedent to
admissibility is not required with respect to the following: (5) Official Publications. Books,
pamphlets, or other publications purporting to be issued by a public authority.
O Doesnt confer admissibility upon the contents of all official publications but simply
establishes authenticity
NEWSPAPERS & PERIODICALS
O

3.

4.

5.

6.

RULE 902(6): NEWSPAPERS & PERIODICALS: Extrinsic evidence of authenticity as a

precedent to admissibility is not required with respect to the following: (6) Printed materials
purporting to be newspapers or periodicals.
Includes notices & advertisements with respect to the fact that they were inserted by
authority of the person purporting to have inserted them
Articles are hearsay if offered for their truth
O Risk of forgery is extremely low
7. TRADE INSCRIPTIONS & THE LIKE
O RULE 902(7): TRADE INSCRIPTIONS & THE LIKE: Extrinsic evidence of authenticity as a
precedent to admissibility is not required with respect to the following: (7) Trade Inscriptions
& the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control or origin.
O Rationale: day-to-day reliance by members of the public that inscriptions are correct lead to
unlikelihood of fabrication
Trademark infringement involves serious penalties
8. ACKNOWLEDGED DOCUMENTS
O RULE 902(8): ACKNOWLEDGED DOCUMENTS: Extrinsic evidence of authenticity as a
precedent to admissibility is not required with respect to the following: (8) Acknowledged
Documents. Documents accompanied by a certificate of acknowledgement executed in the
manner provided by law by a notary public or other officer authorized by law to take
acknowledgments.
O Requirements: person executing the document in question has:
Come before a public official or a notary public authorized to take an acknowledgment
That his identity was known to the said official or notary or he produced sufficient
documents of identification, and
That he stated to the official or notary that he executed the document of his own free will
9. COMMERCIAL PAPER & RELATED DOCUMENTS
O RULE 902(9): COMMERCIAL PAPER & RELATED DOCUMENTS: Extrinsic evidence of
authenticity as a precedent to admissibility is not required with respect to the following: (9)
Commercial Paper and Related Documents. Commercial paper, signatures thereon, and
documents relating thereto to the extent provided by general commercial law.
O UCC rules govern this topic
10. PRESUMPTIONS UNDER ACTS OF CONGRESS
O RULE 902(10): PRESUMPTIONS UNDER ACTS OF CONGRESS: Extrinsic evidence of
authenticity as a precedent to admissibility is not required with respect to the following: (10)
Presumptions Under Acts of Congress. Any signature, document, or other matter declared by
Act of Congress to be presumptively or prima facie genuine or authentic.
11. CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY
O RULE 902(11): CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY:
Extrinsic evidence of authenticity as a precedent to admissibility is not required with respect to
the following:
(1) Certified Documents Records of Regularly Conducted Activity. The original or duplicate
of a domestic record of regularly conducted activity, that would be admissible under Rule
803(6), if accompanied by a written declaration of its custodian or other qualified
person, in a manner complying with any Act of Congress or rule prescribed by the
Supreme Court pursuant to statutory authority, certifying that the record
(A) Was made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of those matters;
O

(B) Was kept in the court of regularly conducted activity; and

(C) Was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide
written notice of that intention to all adverse parties, and must make the record and
declaration available for inspection sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to challenge them.
12. CERTIFIED FOREIGN RECORDS OF REGULARLY CONDUCTED ACTIVITY
O RULE 902(12): CERTIFIED FOREIGN RECORDS OF REGULAR CONDUCTED ACTIVITY:
Extrinsic evidence of authenticity as a precedent to admissibility is not required with respect to
the following:
(12)
Certified foreign records of regularly conducted activity. In a civil case, the
original or a duplicate of a foreign record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a written declaration by its custodian or
other qualified person certifying that the record
(A) Was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of those matters;
(B) Was kept in the course of the regularly conducted activity; and
(C) Was made by the regularly conducted activity as a regular practice is selfauthenticating.
The declaration must be signed in a manner that, if falsely made, would subject the
maker to criminal penalty under the laws of the country where the declaration is signed.
A party intending to offer a record into evidence under this paragraph must provide
written notice of that intention to all adverse parties, and must make the record and
declaration available for inspection sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to challenge them.
D. SUBSCRIBING WITNESS TESTIMONY UNNECESSARY
RULE 903: SUBSCRIBING WITNESS TESTIMONY UNNECESSARY: The testimony of a subscribing
witness is not necessary to authenticate a writing unless require by the laws of the jurisdiction
whose laws govern the validity of the writing.
Subscribing Witness: person who at the request or with the consent of the maker places his name on
the document for the purposes of making thereby an implied or expressed statement that the
document was known by him to have been executed by the purported maker

CHAPTER 7: THE ORIGINAL WRITING RULE

A. INTRODUCTION
Production of original writing when contents of an item are sought to be proved
O Secondary evidence will only be allowed if theres a reason the original cannot be produced
O Duplicates can be produced
Limited to writings, recordings, and photographs
Purpose: secure the most reliable information as to the contents of a writing, recording
B. NATURE OF AN ORIGINAL
RULE 1001: DEFINITIONS:
(1) Writings & Recordings. Writings and recordings consist of letters, words, or numbers,
or their equivalent, set down by handwriting, typewriting, printing, photostating,
photocopying, magnetic impulse, mechanical or electronic recording, or other form of data
compilation.
(2) Photographs. Photographs include still photographs, x-ray films, video tapes, and motion
pictures.
(3) Original. An original of writing or recording is the writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing it. An
original of a photograph includes the negative or any print therefrom. If data are stored
in a computer or similar device, any printout or other output readable by sight, shown to
reflect the data accurately, is an original.
(4) Duplicate. A duplicate is a counterpart produced by the same impression as the original,
or from the same matrix, or by means of photography, including enlargements and
miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by
other equivalent techniques which accurately reproduces the original.
Intent of Parties: parties intent governs what is considered an original
O Copies can be originals if it is the intent of the parties for them to be originals
O All counterparts are originals
O Conduct by a party may confer the status of an original upon a writing, recording, or
photograph original produced as a copy, for what is a copy for one purpose may be an
original for another
Business & Public Records: any writing created by business for use of operations is an original i.e.
a copy of a copy of a copy may be an original depending upon use of the copy within the business
itself in relation to the fact for which offered to prove
Faxes & Emails: treated as if it was a letter
C. DUPLICATES
Duplicate is NOT a counterpart because person executing or issuing it doesnt intend it to have the
effect of an original
Identical original
D. REQUIREMENT OF ORIGINAL
RULE 1002: REQUIREMENT OF ORIGINAL: To prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as otherwise provide
in these rules or by Act of Congress.

1. CONTENT SOUGHT TO BE PROVED: happening/transaction itself assumes the form of writing,

recording, or photograph, proof of the happening necessarily involves the contents of the writing,
recording, or photograph
O Rationale: small variations may be of importance
O Applies only to the terms of the document, and not to any other facts about the document
Presumption favoring production because testimony about a document cannot go very far
without referring to its terms
Contentious issue
O Can use personal knowledge to avoid original writing rule but if entire knowledge comes from
writing, original writing rule applies
2. FORMER TESTIMONY & DEPOSITIONS
O Admissible if testimony if promptly recorded to reflect accuracy of statements
O Original Writing Rule is NOT applicable because the writing proves the occurrence of the
happening rather than the contents of the transcript.
O Includes testimony: from first hand observer from memory, after refreshing recollection with a
memo or personal notes by the official stenographers notes, or deposition.
3. DOCUMENT SPEAKS FOR ITSELF
O Once admitted, must be published to jury, sometimes by a witness reading the exhibit to the
jury
O Opposing counsel may object that the document speaks for itself to prevent undue emphasis
the exhibit may receive from being read in a particular fashion by the witness
4. CROSS-EXAMINATION ON WRITING
O Witness who admits to having written cannot then be cross-examined as to its contents because
the writing is the best evidence of the contents
O If writing is introduced as a contradiction, questioning may occur not to establish the contents
but to test the memory and veracity of the witness
5. PHOTOGRAPHS
O Original photograph includes the negative or any print from the negative
O Original Writing Rule applies to photographs only when the contents of the photo possess
independent probative value rather than being merely illustrative of a witness testimony as to
matters observed
Seldom applies to ordinary photographs
O Witness adopts picture as his testimony but if no witness can adopt testimony (surveillance
camera), contents must be proven to be admissible
6. CHATTELS BEARING INSCRIPTION
O No set rule on admissibility at the courts discretion.
E. ADMISSIBILITY OF DUPLICATES
RULE 1003: ADMISSIBILITY OF DUPLICATES: A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.
Rule used for convenience of parties but it there is a genuine question regarding authenticity, the
original must be produced.
O If the original is unavailable, the duplicate may only be received as secondary evidence
F. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
RULE 1004: ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS: The original is not required,
and other evidence of the contents of a writing, recording, or photograph is admissible if

1.

2.

3.

4.

(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available judicial process or
procedure; or
(3) Original in Possession of Opponent. At a time when an original was under the control of
the party against whom offered, that party was put on notice, by the pleadings or otherwise,
that the contents would be a subject of proof at the hearing, and that party does not produce
the original tat the hearing; or
(4) Collateral Matters. The writing, recording, or photograph is not closely related to a
controlling issue.
O Preliminary matter for the court
O Other evidentiary rules (except privilege) do not apply
ORIGINAL LOST OR DESTROYED
O Proof of loss/destruction shown by testimony in open court of a failure to locate after diligent
search or personal knowledge of destruction
O Destruction must not have been fraudulent i.e. must be within the course of ordinary business
practices.
ORIGINAL IN POSSESSION OF THIRD PERSON NOT OBTAINABLE
O Must show that the third party cannot be subpoenaed to produce the original at trial and that no
other judicial proceeding can compel production
O Dont need to show any additional efforts to secure the original
ORIGINAL IN POSSESSION OF OPPONENT; NOTICE TO PRODUCE
O Detention by Opponent: (a) possession, or control, by the opponent; (b) demand, or notice,
made to him by the proponent, signifying that the document will be needed; and (c) failure, or
refusal, by the opponent to produce them in court
O Notice to produce: pleadings can provide notice but formal written notice should also be
provided
Doesnt compel production but failing to produce document allows proponent to
introduce secondary evidence regarding the contents
COLLATERAL MATTERS
O Original isnt required when the contents arent closely related to controlling issue
O Factors to determine if document is collateral: (1) the centrality of the exhibit to the principal
issues of the litigation; (2) the complexity of the relevant features of the writing, recording, or
photograph; and (3) the existence of a genuine dispute as to its contents.

G. NO DEGREES OF SECONDARY EVIDENCE

English Approach: imposes no degrees of secondary evidence
O Adopted by Federal Rules of Evidence
American Approach: requires production of the most reliable secondary evidence available
H. PUBLIC RECORDS
RULE 1005: PUBLIC RECORDS: The contents of an official record, or of a document authorized to
be recorded or filed and actually recorded or filed, including data compilations in any form, if
otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or
testified to be correct by a witness who has compared it with the original. If a copy which complies
with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of
the contents may be given.
O No need to explain failure to produce original

Compared copy = duplicate

Secondary evidence can only be introduced if certified/compared copy is unavailable
Purpose: avoid risk of loss/damage to public record
O

I. SUMMARIES
RULE 1006: SUMMARIES: The contents of voluminous writings, recordings, or photographs which
cannot conveniently be examined in court may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made available for examination or copying, or
both, by other parties at reasonable time and place. The court may order that they be produced in
court.
O Necessary to meet demands of trial
O Sufficient foundation for accuracy usually laid by expert preparer
Originals of records to be summarized must be provided to opposing counsel
Rule doesnt apply to entire report. Only applies to charts, summaries, calculations
J. TESTIMONY OR WRITTEN ADMISSION OF PARTY
RULE 1007: TESTIMONY OR WRITTEN ADMISSION OF PARTY: Contents of writings, recordings, or
photographs may be proved by the testimony or deposition of the party against whom offered or that
partys written admission, without accounting for the nonproduction of the original.
O Dont have to show unavailability of original
O Oral admissions excluded
K. FUNCTIONS OF COURT & JURY
RULE 1008: FUNCTIONS OF COURT & JURY: When the admissibility of other evidence of contents
of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition
of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine
in accordance with the provisions of rule 104. However, when an issues is raised (a) whether the
asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at
the trial is the original, or (c) whether the other evidence of contents correctly reflects the contents,
the issue is for the trier of fact to determine as in the case of other issues of fact.
O Judge: facts concerning the administration of the Original Writing Rule
O Jury: factual determinations concerning the merits of the controversy

CHAPTER 8: OPINIONS & EXPERT TESTIMONY

A. INTRODUCTION
Common Law: witness should state facts rather than opinions and that opinions on ultimate issues
should not be allowed
O Relaxed by Federal Rules of Evidence
Opinions admissible if they will be of assistance to the trier of fact
B. OPINION TESTIMONY OF LAY WITNESSES
RULE 701: OPINION TESTIMONY BY LAY WITNESSES: If the witness is not testifying as an expert,
the witness testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding
of the witness testimony of the determination of the fact in issue, and (c) not based on scientific,
technical or other specialized knowledge within the scope of Rule 702.
Witness must lay foundation establishing personal knowledge
Inference must be rationally based (i.e. what a person could normally observe based on the facts)
O Must lay a foundation of personal knowledge
O Inference must be rationally based on witnesses perception
Lay v. expert testimony:
O Lay: testimony results from a process of reasoning familiar in everyday life
Must be based on common knowledge
Absolute certainty is not required
Testify using an opinion when:
An expression of witness personal knowledge could be conveyed in no other
form
A witness formed an accurate total impression, although unable to account for all
the details upon which it was based
An accounting of details alone would not accurately convey the total impression
received by the witness
O Expert: results from a process of reasoning which can be mastered only by specialists in the field

Collective Fact Doctrine: witness opinion is based on perceived facts; the opinion is a type of
inference that lay persons commonly and reliably draw; and the lay witness cannot verbalize all the
underlying sensory data supporting the opinion

Skilled Lay Observer: lay opinions about a persons voice, handwriting, or sanity
O This NOT an expert opinion: lay person is using capacities of identification common to ordinary
people but is required to have a specific experience in her background
C. TESTIMONY BY EXPERTS
1. GENERAL REQUIREMENTS
O RULE 702: TESTIMONY BY EXPERTS: If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training or education, may
testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of the case.
(A)
AN OVERVIEW
Preliminary Issues: proponent of expert has burden of establishing

 Whether the witness called is properly qualified to give the testimony

sought
Will the witness assist the trier of fact (be helpful) in understanding the
evidence or determine a fact at issue
Sufficient assurance of trustworthiness of experts explanative theory
produces correct result to warrant jury acceptance
Includes scientific, technical, and specialized knowledge
Experts must be distinguished from lay witnesses
Testify to reasonable certainty
(B )
QUALIFICATIONS OF EXPERTS
Court determines is an expert is qualified by considering knowledge, skill,
experience, training or education
Degree isnt a perquisite to be qualified
Inquiry: will testimony be helpful
Determination of qualification made at courts discretion
(C)
COMPENSATION OF EXPERTS; CONTINGENT FEES; COMPELLING TESTIMONY AT
TRIAL
Experts arent paid for their testimony; paid for their time
May be compelled to testify at trial by a part, whether as to observed facts or in
the form of an expert opinion if previously formed, without payment or
compensation other than ordinary witness fees.
(D)
ASSIST THE TRIER OF FACT; COMMON KNOWLEDGE
Common Law: expert testimony is admissible only when the factual issue is one
which jurors couldnt determine without technical help
TODAY: whether the witness offered as experts have any peculiar knowledge or
experience, not common to the world, which renders their opinions founded on
such knowledge or experience any aid to the court of the jury in determining the
question at issue.
2. BASES OF OPINION TESTIMONY BY EXPERTS
O RULE 703: BASES OF OPINION TESTIMONY BY EXPERTS: The facts or data in the
particular case upon which an expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing. If of a type reasonably relied upon
by experts in the particular filed in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence in order for the opinion or inference to be
admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by
the proponent of the opinion of inference unless the court determines that their probative
value in assisting the jury to evaluate the experts opinion substantially outweighs their
prejudicial effect.
O Bases of Opinion:
(1) on firsthand observation of facts, data, or opinions perceived by him before trial
(2) on facts, data or opinions presented at trial as by the familiar hypothetical question
or by having the expert attend the trail and hear the testimony establishing the facts,
data, and opinions relied on
(3) on facts, data or opinions presented to the expert outside of the court other than by
his own direct perception
O Opinion must be based on facts, data, opinions reasonably relied upon by experts in the field
(ensures trustworthiness)

Opinion not in evidence, even if inadmissible, may form the basis of experts opinion
if reasonably relied upon by experts in the field
Balance probative value of facts, data, opinions in assisting the jury evaluate the
experts opinion or inference v. risk of prejudice resulting from jurys potential
misuse of facts for substantive purposes
Cross-examination will disclose some of these facts but cant be used to get
inadmissible evidence in through the back door of the trial (fruit of poisonous
tree still applies)
Consider effectiveness (lack thereof) of limiting instructions
O Reliance is reasonably only if the facts, data or opinions possess trustworthiness in excess of
that possessed by the ordinary hearsay statement
Circumstantial guarantees of trustworthiness can be admitted
O Rule operates as another exception to the rule against hearsay
3. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
O
RULE 705: DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION: The
expert may testify in terms of opinion or inference and give reasons therefore without first
testifying to the underlying facts or data, unless the court requires otherwise. The expert
may in any event be required to disclose the underlying facts or data on cross-examination.
(A)
DISCLOSURE ON DIRECT EXAMINATION
Usually disclose the foundation of the experts opinion for the jurys
understanding
Inadequate basis for opinion may lead to the opinion being struck
If it appears opinion lacks adequate foundation, court may require expert to offer
proof or permit a voir dire examination into the matter
(B )
DISCRETIONARY USE OF HYPOTHETICAL QUESTION
Eliminates hypothetical requirement
If hypo is used it should only include facts as are supported by the evidence, and
only the basic facts needed to be assumed in the hypotheses. If a question omits a
material fact, rational opinion will still be held incompetent.
Must be evidentiary basis for each fact included in the hypothetical question
(C)
DISCLOSURE ON CROSS-EXAMINATION
Burden on the cross-examiner to be informed about the subject matter in order to
bring out underlying facts in a manner to expose any weaknesses inherent in the
experts opinion
Discovery provides cross-examiner with knowledge of experts opinion and bases.
Coupled with own experts opinion, counsel attempts to discredit opposing partys
expert
Instead of using hypo, change key assumed facts to alter opinion
Underlying sources of expert opinion (if hearsay) are permissible on crossexamination
Impeaching Expert: with learned treatise admissible as substantive evidence (i.e.
Greys Anatomy)
Exploring financial bias: (1) financial interest in the case at hand by reason
of remuneration for services, (2) continued employment by a party, or (3)
fact of prior testimony for same party or attorney
Relevant Factors: (1) amount of previous compensation from the same
party, (2) relationship between the experts income from testifying on

behalf of a party or a category of party and total income of the expert, (3)
mere fact of prior testimony most frequently on behalf of other persons or
entities similarly situated
Scope of cross-examination within the discretion of court
4. OPINION ON ULTIMATE ISSUE
(A)
GENERAL PROVISION
RULE 704: OPINION ON ULTIMATE ISSUE: (a) Except as provided by subdivision
(b), testimony in the form of an opinion of inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of
fact.
Common law excluded this testimony too restrictive and influenced
how party presented case
Opinion on ultimate issue doesnt invade jurys province because trier of fact is
not required to accept opinion of witness
Opinion must be helpful to be admitted. Factors to be considered: (1) when an
expression of the witness knowledge can be conveyed in no other form, (3)
where an accurate, total impression was formed by a witness who is unable to
account for all the details upon which it was based, or (3) where an accounting of
details by itself alone cannot accurately convey the total impression held by the
witness
Expert shouldnt testify to legal conclusion at issue (i.e. saying party is negligent
doesnt help jury explain what facts lead to conclusion)
(B )
MENTAL STATE OR CONDITION
RULE 704(b): No expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an opinion of inference as
to whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of fact alone.
Expert may not testify that defendant did/did not have the mental state or
condition constituting an element of the crime charged or of a defense thereto.
Eliminates experts giving contradictory testimony without clearly guiding
jury
Can testify to having mental disease BUT NOT to being unable to
appreciate the nature and quality or the wrongfulness of his acts (ultimate
issue)
5. GATEKEEPING UNDER DAUBERT/KUMHO/RULE 702: DETERMINING RELIABLE
O
Courts have gatekeeping function in determining whether every experts testimony
(scientific, technical, or specialized knowledge) is reliable. Inquiry:
Testimony is based upon sufficient facts or date
Testimony is the product of reliable principles and methods
Witness has applied the principles and methods reliably to the facts of the case
(A)
HISTORICAL DEVELOPMENT; FRYE & DAUBERT
Factors used when considering scientific evidence offered substantively: (1)
reliability of the underlying scientific principle, (2) reliability of the technique or
process that applies the principle, (3) condition of any instrumentation used in the
process, (4) adherence to proper procedure, (5) qualifications of the person who
performs the test, and (6) qualifications of the person who interprets the results

Frye v. United States (1923): method must be sufficiently established to have

gained general acceptance in the particular field in which it belongs
Only applied to criminal cases and made expert testimony pass the laugh
test
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993): Frye general acceptance
test was overruled in the adopt of the Federal Rules of Evidence
Gatekeeping function of the courts still exists
Factors used to assess explanative theories: (1) testability, (2) peer review
including publication, (3) potential error rate, (4) existence and
maintenance of standards controlling the techniques operation, (5) general
acceptance
Rule 702 inquiry should be flexible but applies to ALL cases
Daubert has been problematic:
Only discusses scientific evidence; excludes technical or specialized
knowledge
When applied, it is more stringent than the Frye test
Lead to inconsistent results
Doesnt work well with social science testimony
Avoidance Approaches:
Personal Knowledge: as long as the witness has person knowledge of the
factual basis for his opinion not acquired for purposes of litigation, no
matter the composition of the factual basis, such as reliance on business
records and industry experience, the witness may testify as a lay witness
Products Liability: an expert testifying as to whether a product is
defectively designed is not subject to Daubert gatekeeping if the experts
testimony is based upon general scientific principles and years of practical
experience because such an experts testimony is not based on any
particular methodology or technique
Frye is still used in some state courts. Applies to:
New or novel explanative theories: limitation assumes that traditional
explanative theories have been generally accepted
If theory uses technology that creates appearance of accurate result, then
court must assess trustworthiness of procedure through application of
general acceptance test
If theory is pure opinion, the trier of fact can hear the argument
THE KUMHO CLARIFICATION
Extends application to technical and specialized knowledge (in addition to
scientific)
In determining reliability: court may look at one or more Daubert factors
Daubert goal of flexibility is achieved through Kumho
DEFINING RELIABLE; THE SUPREME COURT
Competing Definitions: Daubert addresses both definitions.
Explanative theory actual works: requires the trial court to determine that
the explanative theory works
Meriting confidence, worthy of dependence or reliance: requires trial court
determine only that there exists sufficient assurances that the explanative
theory works to warrant acceptance

(B )

(C)

General Electric v. Joiner: conclusions and methodology are not entirely distinct
from one another
DEFINING RELIABLE; TRIAL & APPELLATE COURTS
Hard to determine whether explanative theory works turns judges into amateur
experts
Judges prefer to have sufficient assurances of trustworthiness
SUFFICIENT ASSURANCES OF TRUSTWORTHINESS
Proof that explanative theory, as actually applied, possesses adequate
particularized earmarks of trustworthiness
Earmarks: (1) adheres to the same standards for intellectual rigor demanded in the
experts professional work, (2) conforms to applicable professional standards
employed outside the courtroom, (3) possesses the aura of proper expert
methodology, or (4) is soundly grounded in the principles and methodology of the
particular field
APPLYING RULE 702
Combine 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 witness
has applied the principles and methods reliably to the facts of the case into one
requirement
Avoids problems in analysis which may arise if each of the three requirements is
treated as separate
INQUIRY: has the explanative theory as actually applied to the facts, data, or
opinions sufficiently established to exist been shown to possess sufficient
assurances of trustworthiness to warrant jury acceptance that a correct result was
produced?

(D)

(E )

(F)

(G)

CURRENT STATUS
Gatekeeping Role: prevent trier of fact from relying upon expert testimony that
doesnt warrant acceptance, not to decide which explanative theories produce the
correct results
Role: determine if sufficient assurances of trustworthiness have been established
to warrant jury acceptance of experts theory
6. SUBJECTS OF EXPERT TESTIMONY
O
Flexible test after Kumho: deals with several theories like lie detectors, fingerprints,
DNA, ballistics, etc.
O
Waste of time to challenge most experts since may rely on widely accepted theories to
establish opinion
O
Rule 403 considerations: helpfulness, common knowledge, trial concerns and assessment
of experts knowledge, skill, experience are other considerations
O
Expert cant testify as to mental state of defendant
7. COURT APPOINTED EXPERTS
O
RULE 706: COURT APPOINTED EXPERTS:
(A) Appointment. The court may on its own motion or on the motion of any party enter
an order to show cause why expert witnesses should not be appointed, and may
request the parties to submit nominations. The court may appoint any expert
witnesses of its own selection. An expert witness shall not be appointed shall be
informed of the witness duties by the court in writing, a copy of which shall be filed
with the clerk, or at a conference in which the parties shall have opportunity to
participate. A witness so appointed shall advise the parties of the witness findings, if

(A)

(B )

any; the witness deposition may be taken by any party; and the witness may be
called to testify by the court or any party. The witness shall be subject to crossexamination by each party, including a party calling the witness.
(B) Compensation. Expert witnesses so appointed are entitled to reasonable
compensation in whatever sum the court may allow. The compensation thus fixed is
payable form funds which may be provided by law in criminal cases and civil actions
and proceedings involving just compensation under the fifth amendment. In other
civil actions and proceedings the compensation shall be paid by the parties in such
proportion and at such time as the court directs, and thereafter charged in like
manner as other costs.
(C) Disclosure of Appointment. In the exercise of its discretion, the court may authorize
disclosure to the jury of the fact that the court appointed the expert witness.
(D) Parties Expert of Own Selection. Nothing in this rule limits the parties in calling
expert witnesses of their own selection.
POLICY CONSIDERATIONS
Concerns addressed in rule:
A litigant may be unable to procure the assistance of an expert because he
cant afford one or cannot locate an expert willing to testify
A party will on his own produce the best witness and not the best expert in
the sense of being the most qualified
The jury may be helpless to decide which of two explanative theories
presented by competing experts is correct
The use of an impartial expert promotes settlement of claims
Experts may not testify properly (bought testimony)
Experts usually persuasive but may not be telling the full truth
Problems:
Almost everyone is an expert
Dont have to disclose factual foundation of opinion
FRE favor party offering the expert
Cross-examination is only way to discredit expert difficult considering
experts knowledge of subject matter and experience testifying
Better, neutral experts may be used in trial due to court appointment
Counter: No truly impartial expert and may undermine adversarial system
because court appointed experts may acquire an aura of infallibility to
which they are not entitled
PROCEDURAL REQUIREMENTS
At the motion of either party or on its own iniative, the court may state why an
expert shouldnt be appoint and request parties submit nominations re: expert
Expert must consent to testifying and tell parties of his findings
Expert is entitled to reasonable compensation to be paid by the parties (civil
actions)
Court can disclose that expert was court-appointed
Concern that too much weight will be given to court-appointed experts
testimony
Jury should know expert is impartial
Experts rarely court appointed because it presents a risk to the adversial system

Obvious who court expert is even if not disclosed (called by the court, not
a party)
Instructions to jury reveal that expert has no financial stake in the outcome
and was independently selected
Court shouldnt appoint an expert if a party already has one

CHAPTER 9: CHARACTER, HABIT & ROUTINE PRACTICE

A. HABIT & ROUTINE PRACTICE
O
RULE 406: HABIT; ROUTINE PRACTICE: Evidence of the habit of a person or of the
routine practice of an organization, whether corroborated or not and regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular
occasion was in conformity with that habit or routine practice.
1. AN OVERVIEW
O
Hard to distinguish between habit & character:
Character: sum of ones habits generalized description of ones disposition (i.e.
honesty, peacefulness, etc.)
Habit: ones regular response to a repeated specific situation (i.e. semi-automatic
response to a stimulus)
O
Evidence of a persons character is inadmissible for proving that he acted in conformity
with his character on a particular occasion. BUT habit is admissible because the extreme
regularity of the event gives it probative force.
Habit doesnt need to be corroborated to be admissible
2. HABIT OF AN INDIVIDUAL
O
Habit testimony of an individual is admissible to prove that his conduct on a particular
occasion was in conformity with that habit
O
Courts reluctant to allow habit testimony because it is closely related to character
testimony which is inadmissible. Examples:
Evidence of intemperate habits is generally excluded when offered as proof of
drunkenness in accident cases
Evidence of other assaults is inadmissible to prove the instant one
Testimony as to the religious habits of the accused, offer as proof that he was home
observing Sabbath rather than out obtaining money through larceny is inadmissible.
BUT, where he would sit is admissible as habit
BUT, evidence of routine business activities usually admitted
O
Must show sufficient pattern of repeated responses to establish habit
Evidence that a person had on one or more times acted in a particular manner is
insufficient to establish a habit
3. ROUTINE PRACTICE OF AN ORGANIZATION
o Reliance within business community on routine practices
Practices are not voluntary and do not have character/habit distinction problem
present in individual acts (sanctions for non-compliance)
o Evidence of routine business practices is admissible
o Used to have to corroborate practice with witness testimony but removed by Rule 406
because hard to meet (high turnover jobs, little recollection, etc.)
4. METHOD OF PROOF OF HABIT OR ROUTINE PRACTICE
o Proposed Rule: habit or routine practice may be proved by testimony in the form of an
opinion or by specific instances of conduct sufficient in number to warrant a finding that the
habit existed or that the practice was routine.
Rejected: method of proof should be left to the courts to deal with on a case-by-case
basis
o Subject to Rule 403 analysis: evidence of habit must be sufficiently strong to outweigh
prejudice and other 403 trial concerns to be admitted
Witness testimony to personal knowledge of habit or practice is admissible

B. EVIDENCE OF CHARACTER

RULE 404: CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS;

OTHER CRIMES:
(A) Character Evidence Generally. Evidence of a persons character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a particular
occasion except:
(1) Character of Accused. In a criminal case, evidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the same, or if evidence of a
trait of character of the alleged victim of the crime is offered by an accused and
admitted under Rule 404(a)(2), evidence of the same trait of character of the accused
offered by the prosecution;
(2) Character of Alleged Victim. In a criminal case, and subject to the limitations
imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim
of the crime offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the alleged victim offered by the
prosecution in a homicide case to rebut evidence that the alleged victim was the first
aggressor; and
(3) Character of Witness. Evidence of the character of a witness as provide in Rules 607,
608, and 609.
(B) 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, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case 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.

RULE 405: METHODS OF PROVING CHARCTER:

(A) Reputation of Opinion. In all cases in which evidence of character or a trait of character of
a person is admissible, proof may be made by testimony as to reputation or by testimony in
the form of an opinion. On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
(B) Specific Instances of Conduct. In cases in which character or a trait of character is an
essential element of a charge, claim, or defense, proof may also be made of specific instances
of that persons conduct.
1. AN OVERVIEW
O Character v. Reputation:
Character: nature of a person, disposition in general or in respect to specific trait
Reputation: community estimate of person
O Grotesque Structure: balance probative values against countervailing dangers of prejudice,
distraction, etc. using several doctrines and distinctions
O Ways character evidence is used:
Character may itself be an essential element in the case under the applicable rule of
substantive law (always admissible)
Introduced as circumstantial evidence for the purpose of establishing that a person
acted in conformity with character of a particular occasion (rarely admissible)
Testimony re: witness character for truthfulness may be offered to impair or enhance
the credibility of the witness testifying at trial (rarely admissible)

Character evidence to impeach witness:

Admissible at common law
Reputation evidence is used
Defendant must offer proof of good character before the prosecution can introduce
bad character as proof of guilt
O Purpose for which evidence of character is offered:
Prove the character of person where the question of what the character is or was, is
one of the ultimate issues in the case
Prove the character of a man as circumstantial evidence of what his acts (and
accompanying state of mind) probably were
O Manner of Proof:
Testimony as to the conduct of the person in question as reflecting his character
Testimony of a witness as to his opinion of the persons character based on
observation
Testimony as to his reputation
O Circumstantial Use of Character: in all cases in which evidence of character or trait of a
person is admissible for purpose of proving conformity, proof may be made by testimony as
to reputation or by testimony in the form of opinion; evidence of specific instances of
conduct is not admissible
O Character evidence is not admissible for the purpose of showing that a person acted in
conformity therewith on a particular occasion (Rule 404)
Prejudicial bad man inference
Guilt/innocence should be determined strictly on the basis of evidence for THAT
crime (problem with admitting rap sheet)
Exceptions in Rules 412-415 (sexual assault)
Can be admitted as proof of motive, intent, opportunity
O When character is acceptable:
Accused may introduce evidence of good character. Prosecution may introduce
evidence to rebut with evidence of bad character
Accused may introduce evidence of the character of the victim (in support of selfdefense claim) and the prosecution may introduce similar evidence in rebuttal of the
character evidence
Character of witness may be considered in evaluating credibility
O Problem with Character Evidence: slightly probative and very prejudicial permits the trier
of fact to reward the good man and punish the bad man for their respective characters.
2. CIRCUMSTANTIAL USE: when the inference suggest is that a persons character or trait of character
tends to make it more probable that the person acted or is acting consistently with the character than
it would be without such evidence
(A)
CIVIL CASES
Circumstantial evidence cant be used in civil cases unless used to impeach or
support the character of truthfulness of a witness
(B )
CRIMINAL CASES
(I) CHARACTER EVIDENCE OF THE ACCUSED
Prosecution cant introduce evidence of accused character only
defendant can bring character up
Avoids jury from overvaluing character evidence
Conviction of the basis of alleged crime ONLY
O

 When accused brings up character, prosecution can rebut character (occurs

when defendant attack victims character)
Character evidence can only be offered in the form of reputation or
opinion testimony
Accused doesnt need to testify to introduce evidence of his character
(II) CHARACTER EVIDENCE OF THE ALLEGED VICTIM
Character of victim can only be introduced by accused or rebutted by
prosecution. May be introduced when:
Defendant wants to show victim was dangerous, resulting in his
conduct
Defendant wants to show victim was first aggressor
3. METHOD OF PROOF OF CHARACTER
O RULE 405(a): Reputation or Opinion. In all cases in which evidence of character or a trait
of character of a person is admissible, proof may be made by testimony as to reputation or
by testimony in the form of an opinion. On cross-examination, inquiry is allowable into
relevant specific instances of conduct.
O Character shown through reputation or opinion is limited to relevant trait(s)
Reputation in community in which accused lives, works or goes to school
Limited to reputation or opinion at the time of the alleged act
O Court can limit the number of character witnesses
O Cross-examine witness bases of opinion of reputation standard knows or has heard of
reputation
Opinions formed by observation
Reputation formed on what witness has heard inquiry into the accuracy of
hearing/reporting
O Evidence of specific instances of conduct
Prosecutor must show basis for admission of rumors and CANNOT introduce
extrinsic evidence
Leading questions acceptable on cross-examination and witness can have his own
character impeached
4. CHARACTER AS AN ELEMENT
O RULE 405(b): Specific Instances of Conduct. In cases in which character of 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 persons conduct.
O When character is an element of the crime, reputation, opinion and specific instances of
character can be introduced in prosecutions case in chief
C. OTHER CRIMES, WRONGS, OR ACTS
RULE 404(b): Other Crimes, Wrongs, or Acts. 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,
preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall prove reasonable notice in advance
of trial, or during trail if the court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
Adimissible for another purpose: cant be introduced to show disposition or propensity to commit
crimes but can be admitted to show:

1. MOTIVE: an emotional state of mind that prompts a person to act in a particular way or an incentive
for certain volitional activity
O Evidence is introduced to show the emotion from which the act may be inferred
O Not an element of crime but an element of identity or intent
2. OPPORTUNITY: physical present, within a proper range of time and place, forms one step on the way
to the belief that he did it (limited number of persons could have done it)
O Shows few people had the opportunity
O Closely linked to capacity which can be used to establish identity which serves to
discriminate between the defendant and other persons who the had opportunity to commit the
crime
3. INTENT: state of mind which negatives accident, inadvertence or casualty
O Intent is an ultimate issue in the cause
O Exception read broadly to cover any required mental element of crime (malice, knowledge,
absence of mistake, accident, duress, or intoxication)
O When intent to commit an act is an element of a crime, prior activity showing a willingness
to commit that act may be probative.
4. PREPARATION: rarely ultimate issue in case usually used to show intent
5. PLAN: implies preparation and the working out of particulars time, place, manner, means, etc.
6. KNOWLEDGE: issue in litigation when the defendant claims that he was unaware that the crime was
taking place
O Knowledge may be relevant to prove some element of the crime other than state of mind
(drugs knowing possession)
O Can introduce prior similar offenses to establish knowledge does NOT go to character but
instead to law of probabilities
7. IDENTITY : may be used by inference to establish other elements of the crime
o Modus Operandi: proving other crimes by the accused by identical method unusual and
distinctive device signature like
Character evidence-like because establishes character to commit other crimes
Evidence must be sufficiently idiosyncratic to satisfy R. 404(b) but does NOT need to
be identical
o Elements establishing signature: geographic location, unusual quality of the crime, skill
necessary to commit the acts, use of a distinctive device
Weight given is based on uniqueness of element
Elements can be considered together to establish a signature
8. ABSENCE OF MISTAKE OR ACCIDENT: permits the use of other crimes to prove intent
o Based on probability: how likely is it that the defendant would have made the same mistake
or have been involved in the same fortuitous act on more than one occasion
o Doctrine of Chances: the more often an accident or infrequent incident occurs, the more
likely it is that its subsequent reoccurrence is not accidental or fortuitous.
Applies to coincidence
o Difference between common design & modus operandi:
Common design: larger criminal scheme of which the crime charged is only a portion
Relevant to show the motive for the crime charged
Modus Operandi: method of working referring to a pattern of criminal behavior so
distinctive that separate crimes are recognizable as the handiwork of the same
wrongdoer
Relevant to show that the accused is the perpetrator of the crime

o Rule 403: evidence subject to balancing test (probative value in light of potential to
prejudice) to avoid bad man inference
Considerations in balancing: strength of evidence, necessity of evidence, probative
value of evidence, & probative effectiveness of limiting instructions
Balancing at the courts discretion (SOR: abuse of discretion)
o Offer to Stipulate: prosecution is entitled to prove its case free from the defendants option to
stipulated the evidence away (all admissible evidence can be used against the defendant)
o Limiting Instruction: must be given to tell jury that they are not to consider the evidence as
going to the character of the accused in order to show action in conformity therewith but only
as going to the particular other purpose for which the crimes, wrongs, or acts evidence has
been received such as motive, intent
o Notice: prosecution must given notice of evidence it intends to introduce at trial
o Outside presence of jury: discussion of prior acts should be outside of the jurys presence to
prevent prejudice if not admitted
Government can introduce evidence of another crime, wrong, or act during its case in
chief unless either the parties have affirmatively taken the issue out of the case
(stipulation), the evidence is relevant solely to the question of specified intent and
intent is not an element, or the crime is one of general intent and such intent is clearly
inferable from the nature of the act.
D. VICTIMS PAST SEXUAL BEHAVIOR OR SEXUAL DISPOSITION
RULE 412: SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIMS PAST SEXUAL BEHAVIOR
OR ALLEGED SEXUAL PREDISPOSITION:
(A) Evidence Generally Inadmissible. The following evidence is not admissible in any civil or
criminal proceeding involving alleged sexual misconduct except as provided in subdivisions
(b) and (c):
(1) evidence offered to prove that any alleged victim engaged in other sexual behavior;
and
(2) evidence offered to prove any alleged victims sexual predisposition.
(B) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible
under these rules:
(A) Evidence of specific instances of sexual behavior by the alleged victim offered
to prove that a person other than the accused was the source of semen, injury
or other physical evidence;
(B) Evidence of specific instances of sexual behavior by the alleged victim with
respect to the person accused of the sexual misconduct offered by the accused
to prove consent or by the prosecution; and
(C) Evidence the exclusion of which would violate the constitutional rights of the
defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition
of any alleged victim is admissible if it is otherwise admissible under these rules and
its probative value substantially outweighs the danger of harm to any victim and of
unfair prejudice to any part. Evidence of an alleged victims reputation is admissible
only if it has been placed in controversy by the alleged victim.
(C) Procedure to Determine Admissibility.
(1) A party intending to offer evidence under subdivision (b) must:
(A) File a written motion at least 14 days before trial specifically describing the
evidence and stating the purpose for which it is offered unless the court, for

good cause requires a different time for filing or permits filing during trial;
and
(B) Serve the motion on all parties and notify the alleged victim or, when
appropriate, the alleged victims guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera
and afford the victim and parties a right to attend and be heard. The motion, related
papers, and the record of the hearing must be sealed and remain under seal unless
the court orders otherwise.
O Purpose: protect the privacy of an alleged rape victim form unwarranted public intrusion, and
to make the prosecution of rape cases more effective and equitable for rape victims.
Encourages victims to come forward.
O Rule applies to civil cases to provide relief for victims (criminal punishes)
Applies to all cases of sexual misconduct victim/accused doesnt have to be a
party to the action
No requirement that misconduct be alleged in pleadings for R. 412 to apply (applies
to sexual harassment but not defamation)
Accused does not mean there is a criminal charge pending
Rule 412(a): excluded information: past sexual behavior (all activities that involve actual physical
conduct), all other evidence relating to an alleged victim of sexual misconduct that is offered to
prove a sexual predisposition, evidence relating to victims dress, speech or lifestyle
Rule 412(b)(1): past sexual behavior is inadmissible unless used to suggest that another person is the
source of the trauma, semen, etc., to prove consent, or to respect the accused Constitutional rights
O Constitutional rights only apply to sexual conduct, not reputation or opinion
Rule 412(b)(2): in civil cases balancing test employed proponent of the evidence, whether plaintiff
or defendant, convinces the court that the probative value of the proffered evidence substantially
outweighs the danger of harm to any victim and of unfair prejudice to any party.
O Similar to Rule 403 with exceptions: proponent must demonstrate admissibility rather than
making opponent justify exclusion. Probative value must substantially outweigh the specific
dangers. These dangers include harm to victim.
Rule 412(c): motion for admissibility of evidence must be filed 14 days before trial or with good
cause thereafter.
O Before admitting evidence, court must hold a hearing in camera where alleged victim and
any party must be afforded the right to present and an opportunity to be heard.
O Record of hearing kept under seal
O Normal discovery rules still apply but court can protect victim (confidentiality)
Unfair Prejudice: evidence of other sexual behavior may raise danger of confusion of issues and
distract jury in prejudicial, emotional manner

E. SIMILAR ACTS & CRIMES IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES
Rules 413, 414, and 415 provide exception in cases charging sexual abuse or child molestation to
permit admissibility of specific instances of conduct to show depraved character (lustful disposition)
for further inference that the accused acted in conformity therewith in the current matter.
Serves compelling public interest in admitting all significant evidence that will illumine the
credibility of the charge and any denial by the defense.
O Admitted other instances undermines consent defense
Rule puts uncharged sexual offenses on the same footing as other types of relevant evidence that are
not subject to special exclusionary rule. Presumption in favor of admissibility

No time limits placed on admission of uncharged sexual offenses

RULE 413: EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES

(a)
In a criminal case in which the defendant is accused of an offense of sexual assault,
evidence of the defendants commission of another offense or offenses of sexual assault in
admissible, and my be considered for its bearing on any matter to which it is relevant.
(b)
In a case in which the Government intends to offer evidence under this rule, the attorney
for the Government shall disclose the evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony that is expected to be offered,
at least fifteen days before the scheduled date of trial or at such later time as the court
may allow for good cause.
(c)
This rule shall not be construed to limit the admission of consideration of the evidence
under any other rule.
(d)
For purposes of this rule and Rule 415, offense of sexual assault means a crime under
Federal law or the law of a State (as defined in section 513 of title 18, United States
Code) that involved
(1)
Any conduct proscribed by chapter 109A of title 18, United States Cod;
(2)
Contact, without consent, between any part of the defendants body or an
object and the genitals of anus of another person;
(3)
Contact, without consent, between the genitals or anus of the defendant
any part of another persons body;
(4)
Deriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on another person; or
(5)
An attempt or conspiracy to engage in conduct described in paragraphs
(1)-(4).
Factors considered when admitting evidence under Rule 413: (1) the similarity of the prior acts to
the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of
the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the
evidence beyond the testimonies already offered at trial.
RULE 414: EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES
(a)
In a criminal case in which the defendant is accused of an offense of child molestation,
evidence of the defendants commission of another offense or offenses of child
molestation is admissible, and may be considered for its bearing on any matter to which
it is relevant.
(b)
In a case in which the Government intends to offered evidence under this rule, the
attorney for the Government shall disclose the evidence to the defendant, including
statements of witnesses or a summary of the substance of any testimony that is expected
to be offered, at least fifteen days before the scheduled date of trial or at such alter time
as the court may allow for good cause.
(c)
This rule shall not be construed to limit the admissibility or consideration of evidence
under any other rule.
(d)
For purposes of this rule and Rule 415, child means a person below the age of
fourteen, and offense of child molestation means a crime under Federal law or the law
of a State (as defined in section 513 of title 18, United States Code) that involved
(1)
Any conduct proscribed by chapter 109A of title 18, United States Code,
that was committed in relation to a child;
(2)
Any conduct proscribed by chapter 110 of title 18, United States Code;
(3)
Contact between any part of the defendants body or an object and the
genitals of anus of a child;
O

(4)

Contact between the genitals or anus of the defendant any part of the body
of a child;
(5)
Deriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on a child; or
(6)
An attempt or conspiracy to engage in conduct described in paragraphs
(1)-(5)
RULE 415: EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR
CHILD MOLESTATION
(a)
In a civil case in which a claim for damages or other relief is predicated on a partys
alleged commission of conduct constituting an offense of sexual assault or child
molestation, evidence of that partys commission of another offense or offenses of sexual
assault or child molestation is admissible and may be considered as provided in Rule 413
and Rule 414 of these rules.
(b)
A party who intends to offere evidence under this Rule shall disclose the evidence ot the
party against whom it will be offered, including statements of witnesses or a summary of
the substance of any testimony that is expected to be offered, at least fifteen days before
the scheduled date of trial or at such later time as the court may allow for good cause.
(c)
This rule shall not be construed to limit admission or consideration of evidence under
any other rule.

CHAPTER 10: REAL & DEMONSTRATIVE EVIDENCE

A. AN OVERVIEW
Demonstrative Evidence: all evidence form which the trier of fact may derive a relevant firsthand
sense impression in contradistinction to the conventional presentation of oral testimony and
introduction of documentary exhibits
O Examples: models, maps, charts, photos, demonstrations
O Also called illustrative evidence
Real Evidence: production of an object which usually but not always had a direct part in the incident
(i.e. murder weapon)
O Significance: opportunity to draw a relevant first hand sense impression
Concern that jury overvalues demonstrative & real evidence
O Usually admitted anyway
Stipulation: can stipulate to avoid use of evidence but prosecution has right to present case in any
way they would like so it may refuse to stipulate
O Moral force of evidence: indefinable something extra in the minds of the jury that
accompanies actually seeing an exhibit
O Seeing is believing
B. RELEVANCY
Can be direct or circumstantial evidence
If its appearance or other physical characteristics render a fact of consequence more or less probable,
the demonstrative or real evidence is relevant.
C. REAL EVIDENCE
1. AUTHENTICATION
O Conditional Relevancy: relevancy of an item depends on the existence of conditions of fact
Foundation must be established: evidence has been introduced sufficient to permit a
reasonable juror to find that the matter in question is what its proponent claims
O Object must be the same object is similar condition
Samples must be representative
Chain of Custody: requires testimony of continuous possession by each individual
having possession, together with testimony by each that the object remained in
substantially the same condition during its presence in his possession
Police use identifying marks (i.e. Exhibit 1)
All possibility of alteration/substitution need not be eliminated
O When object is unique, personal knowledge can establish authenticity
O Opposing counsel may conduct voir dire on foundation
O Evidence will be admitted when it is sufficient to support a finding by a reasonable juror that
the item in question is what its proponent claims
2. TRIAL CONCERNS
O Seeing is believing likelihood to overvalue evidence creating unfair prejudice, danger of
misleading the jury or confusion of the issues
O Normally admitted
3. SPECIFIC APPLICATIONS
(A) TANGIBLE OBJECTS: almost always admissible for explanative value & impressions derived
from the object

Should be in the same condition if probative value depends on conditions being

unchanged
(B) INSTRUMENTALITIES OF CRIME: instruments used in the commission of a crime and offered
to prove the accused committed the crime must be connected up both with the accused and
the crime
If connected to the accused, prosecution only needs to show the instrument is suitable
for the alleged crime
(C) EXHIBITING PERSONAL INJURIES: exhibition of physical injuries before the jury is
permitted even when shocking
(D) BODILY DEMONSTRATIONS: usually not permitted because performance of certain acts or
manipulation by doctor may cause emotional responses, pain, feigning and is difficult to
cross examine

D. DEMONSTRATIVE EVIDENCE
1. INTRODUCTION
O No probative value
O Serves as visual aid to witness as he explains his testimony and to the jury in comprehending
the verbal testimony of a witness
Enhances the probative value of witness testimony
Must be relevant to be admissible must also be sufficiently explanatory or
illustrative of relevant testimony in the case to be of potential help to the trier of fact
Line of demarcation falls between explanation of testimony, which is entirely proper,
and the reduction of testimony to graphic form in such manner as to create the
possibility of undue emphasis.
O Must accurately portray items
O Doesnt have to be formally offered into evidence
2. SPECIFIC APPLICATIONS
(A) PHOTOGRAPHS, MOTION PICTURES, & VIDEOTAPES:
Still Photograph: sufficient foundation is laid for still photograph by testimony of any
person with personal knowledge at the time relevant to the issues of the subject
matter depicted in the photo sufficient to support a finding that the photo is a fair and
accurate representation.
Photographer is not required
Complete similarity of conditions is not required; change in conditions can be
overcome if representation is still helpful
When eyewitness testimony is unavailable, chain of custody together with
evidence establishing proper operation of the process or system is sufficient
Enlarged, color, slow motion, and computer enhanced: permitted at discretion of
court
Motion Pictures & Videotapes: admissible under same standards as still photographs
Posed Photographs: frowned upon because they may mislead the trier of fact overemphasized and likely to only represent one partys view of the incident
Illustrative v. Substantive:
Illustrative: still photographs, motion pictures, videotapes: witness adopts the
picture as his testimony or uses the picture to illustrate his testimony
Illustrative cant be admitted into jury room, whereas substantive can
Photos are more detailed than witness memory or oral testimony

 Substantive: when the contents of the photo are clearly sought to be proved
(i.e. x-rays, automatic photography of bank robbery, etc.)
X-rays: different foundation proof required because cant be seen by untrained eye
compare what witness saw through fluoroscope, proper working condition of x-ray
machine, experience of witness
Personal Injuries: photos of injury can be admitted to extent that the injury itself can
be exhibited
Within the courts discretion to admit photos of injury
Can be admitted despite likelihood of emotional reaction
Criminal Prosecutions: photos can be used to prove facts surrounding the crime
(existence of crime, location of wounds, persons identity, etc.) even if gruesome
Can NOT be admitted if the gruesome nature of the wounds was caused by
autopsy or ER procedure
Accused cannot stipulate out of the use of the photos
Hearsay: photos are not ordinarily hearsay
BUT, if the image depicted is a person making an oral or written assertion, or
performing nonverbal conduct intended as an assertion, such depiction is
hearsay when offered to prove the truth of the matter asserted
Rule 403: not likely to be excluded on unfair prejudice alone. Most likely excluded if
probative value is slight
(B) COMPUTER ANIMATIONS: admissible if Rule 403 is satisfied
(C) TANGIBLE ITEMS: offered to make evidence more understandable
E. COURTROOM & OUT OF COURT DEMONSTRATIONS
At the courts discretion for explanatory purposes, but not emotional ones.
F. EXPERIMENTS
Provide adversary with opportunity to observe experiment
In court experiments rare due to limitations in courtroom (expeditious proceedings)
G. VIEW BY TRIER OF FACT
Within the discretion of the trial judge; alternatives: testimony, diagrams, photos, videotape
Can still do views if changed conditions, as long as changes are explained
Problems: control by trial judge over jury and by the reviewing court of the trial court
View is not evidence

CHAPTER 11: CROSS-EXAMINATION, IMPEACHMENT, & REFUTATION

A. CROSS-EXAMINATION
1. AN OVERVIEW
RULE 611: MODE & ORDER OF INTERROGATION AND PRESENTATION
(A) Control by Court. The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.
(B) Scope of Cross-Examination. Cross-examination should be limited to the subject
matter of the direct examination and matters affecting the credibility of the witness.
The court may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination.
(C) Leading Questions. Leading questions should not be used on the direct examination
of a witness except as may be necessary to develop the witness testimony. Ordinarily
leading questions should be permitted on cross-examination. When a party calls a
hostile witness, an adverse party, or a witness identified with an adverse party,
interrogation may be by leading questions.
Cross-Examination: right of a party to propound questions to a witness called to testify by an
adverse party to test and challenged the accuracy, sincerity, and completeness of testimony
given by the witness on direct examination and to develop relevant testimony of the witness
favorable to the cross-examiner.
Essential requirement of a fair trial safeguards the truth & makes witness tell full
story
Modes of impeachment, prior conviction, untrustworthy partiality, prior inconsistent
statements
Limited to the subject matter of the direct testimony to protect against embarrassment
Criminal defendants who testify are subject to cross
Waiver of privilege against self-incrimination?
Subject to Rule 104(d)
RULE 104(d): Testimony by accused. The accused does not, by testifying upon a preliminary
matter, become subject to cross-examination as to other issues in the case.
2. MODE & ORDER OF INTERROGATION AND PRESENTATION
(A) SCOPE & EXTENT
RULE 611(b): Scope of Cross-Examination. Cross-examination should be limited to
the subject matter of the direct examination and matters affecting the credibility of
the witness. The court may, in the exercise of discretion, permit inquiry into
additional mattes as if on direct examination.
Common law approaches (prior to FRE)
Wide Open Rule: cross-examiner is free to examine the witness regarding
credibility and any subject relevant to the litigation, without regard to whether
the subject relates solely to cross-examiners own case in chief
Restrictive Rule: scope of cross-examination is limited to the subject matter of
the witness direct examination, plus matters bearing on credibility of the
witness
FRE adopts the restrictive rule

 Purpose of limitations: orderly presentation of the case by having each side

introduce the evidence upon which it relies in support of those matters for
which it has the burden of production during presentation of its case in chief
Allows presentation of facts in a persuasive and uninterrupted manner
BUT, rule is liberally interpreted by courts
Can ask for permission to exceed the scope of cross (for convenience of witness) inquiry beyond direct must be conducted as direct examination and the party that
originally called the witness can cross-examine the witness with regard to the scope
of direct.
Rule 611(b) is suggestive and NOT mandatory
Extent of cross is at the courts discretion
Restrict the scope of cross after the defendant has had an opportunity to confront the
witness
Effective cross is what is required by the Confrontation Clause. This is NOT
cross-examination that is effective in whatever way the defense wishes.
Subject to abuse of discretion standard of review.
(B) LEADING QUESTIONS
RULE 611(c): Leading Questions. Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop the witness
testimony. Ordinarily leading question should be permitted on cross-examination.
When a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
Leading questions are allowed on cross-examination unless the witness called was a
hostile witness (leading questions then used on direct but prohibited on cross)
B. IMPEACHMENT
1. AN OVERVIEW
(A) COMPONENTS OF CREDIBILITY: circumstantial evidence is relevant to challenge witness
credibility and can be employed by either party.
RULE 607: WHO MAY IMPEACH: The credibility of a witness may be attacked by any
party, including the party calling the witness.
Challenging personal knowledge perception, recordation, recollection, narration &
sincerity
Modes of Impeachment:
Reputation for truth & veracity
Prior acts of misconduct probative of untruthfulness
Prior convictions
Untrustworthy partiality
Contradiction by other evidence including conduct of the witness
Self-contradiction with one own prior inconsistent statement
Assessing credibility: content of the testimony on direct & answers to cross as well as
demeanor of the witness
Non-Collateral Attacks:
Can cross examination to challenge a witness mental capacity
Drug/alcohol use at the time of the event. BUT, courts split on admissibility
of proof of drug addiction and usually prohibit evidence of chronic
alcoholism.

Cross encompasses name, address, occupation, etc. that can be used for investigation
and to attack credibility
If witness is in danger, court can evaluate information in camera
If witness is in the witness protection program, former address, name, etc. will
be used in open court but new information is not required
Defendant who is testifying is subject to impeachment via cross-examination.
(B) COLLATERAL & NON-COLLATERAL MATTERS
Extrinsic evidence (evidence offered other than through the witness himself, in
contradiction) is restricted due to consideration of confusion of issues, unfair
prejudice, misleading jury, etc.
If collateral, testimony stands cross-examiner must take the witness answer
If non-collateral, extrinsic evidence may be introduced and depending upon
the particular impeachment involved sometimes must be introduced, disputing
the witness testimony on direct examination or denial of truth of the facts
asserted in a cross-question.
Test re: whether matter is collateral if the answer of a witness is a matter which you
would be allowed (independently) on your part to prove in evidence, if it have such a
connection with the issue that you would be allowed to give in evidence, then it is a
matter on which you may contradict himnon-collateral.
Non-collateral matters:
Untrustworthy partiality: bias, interest, corruption, or coercion
Alcohol & drug use
Deficient mental capacity
Want of capacity, opportunity, or absence of actual acquisition and retention of
personal knowledge
Impeachment of character for truthfulness by prior conviction
Collateral matters: impeachment of character for truthfulness by specific instances of
conduct
Relevancy inquiry: if matter is collateral and irrelevant except to contradict witness
credibility, then it is inadmissible. If the matter is collateral and relevant to fact of
consequence, then extrinsic evidence is admissible.
Door Opening: extrinsic evidence concerning a collateral matter may be admitted.
Usually arises when government seeks to introduce evidence on rebuttal to contradict
specific factual assertions raised during the direct examination of the criminal
defendant.
(C) GOOD FAITH BASIS: required only when the cross-examiner is effectively asserting in the
form of a question the truth of a factual statement included within the question. This lays the
foundation to impeach by prior inconsistent statement.
2. MODES OF IMPEACHMENT
(A) PRIOR INCONSISTENT STATEMENTS
RULE 613: PRIOR STATEMENTS OF WITNESSES
(A) Examining Witness Concerning Prior Statement. In 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 that
time, but no request the same shall be shown or disclosed to opposing
counsel.

(I)
(II)

(III)

(IV)
(V)

(B) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic

evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the same and
the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interest of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Impeachment by prior inconsistent statement brings truthfulness of witness into
question
Can be admitted substantively if it satisfies hearsay requirements, otherwise
only admitted to impair the witness credibility
PRIOR DISCLOSURE OF CONTENT: Notice is not required (Queen Carolines Case
rule abandoned) if allowed to see the writing, the ability to test the witness veracity
would be reduced
REQUIREMENT OF INCONSISTENCY: no requirement that the prior statement must be
directly contradictory. Any inconsistency that would discredit the witness is
acceptable
Omission from a prior statement of fact that would be reasonably expected to
be included or failure to respond to a statement as adoption of a third partys
statement
Lack of recollection: prior statement is not on its face inconsistent
FOUNDATION REQUIREMENT: directing the attention of the witness to the time,
place, and circumstances of the statement, along with the content of the statement.
Establishing a Foundation:
Pin down the witness in-court testimony by having him repeat clearly
on cross the same testimony given on direct
Establish the witness knowledge of the circumstances surrounding his
making of the prior statement
Establish that the making of the out of court statement was closer in
time to the event related and accordingly that the witness memory was
then fresher and better than now at trial
Establish facts surrounding the making of the prior statement relating
to its truthfulness (i.e. made under oath, business record, etc.), as well
as eliciting from the witness that he was telling the truth at the time
Establish the authority of the statement itself in the sense of
confirming that the statement was in fact made
Content of alleged prior inconsistent statement must be presented to the
witness with particularity
On redirect, witness can explain or modify inconsistent statement
Foundational requirements still in place but order relaxed
GOOD FAITH BASIS: is required. Cant insinuate that prior inconsistent statement
exists if it does not.
EXTRINSIC EVIDENCE:
If prior inconsistent statement is collateral, it CANNOT be proved via
extrinsic evidence. However, if prior inconsistent statement is non-collateral,
it MUST be proved by extrinsic evidence
Extrinsic evidence is rarely offered where witness admits to making a noncollateral inconsistent statement
Redirect when witness admits to making statement

 Leading questions permitted

(VI)
LIMITING INSTRUCTION: required when statement is admitted only to impeach the
witness credibility
When inconsistent statement is particularly damaging, the court must sua
sponte issue a limiting instruction to avoid plain error. In all other situations,
a party must request the limiting instruction.
(VII)
REQUIRING A FOUNDATION ON CROSS-EXAMINATION: no foundational requirement
(sequential requirement), although foundation is usually established
In response to proposed Rule 801(d)(1)(a) (giving substantive effect to all
prior inconsistent statements) and perceived lawyer incompetence.
Substantive effect was NOT adopted by Congress
Foundation requirement places prior statement in juxtaposition to the trial
testimony of the witness sought to be impeached and reduces the likelihood
that extrinsic evidence will be necessary
Rule drafted to allow extrinsic evidence to be admitted before witness could
accept or deny statement because it was to be admitted substantively (still
allowed)
(VIII)
USE OF SUPPRESSED STATEMENTS & ILLEGALLY SEIZED EVIDENCE TO IMPEACH:
statements obtained in violation of Miranda or product of illegal search & seizure are
admissible to impeach.
(B) CONTRADICTION BY OTHER EVIDENCE: witness may be contradicted by evidence
introduced by any party but the contradiction must not relate to a collateral matter which
would result in a waste of time or may confuse the jury.
(C) UNTRUSTWORTHY PARTIALITY: matters which may reasonably be expected to color the
testimony of a witness or cause him to testify falsely
Types of Partiality:
Bias: all varieties of hostility or prejudice against he opponent personally or of
favor of the proponent personally
Interest: specific inclination which is apt to be produced by the relation
between the witness and the cause at issue in the litigation
Corruption: conscious false intent which is inferrible from giving or taking a
bribe or from expressions of a general unscrupulousness for the case in hand
Coercion: any form of mental, emotional, or physical duress or compulsion
that overcomes a witness duty to tell the truth
Established by evidence (1) relating tot eh circumstances of the witness situation or
(2) relating to the conduct or statements of the witness himself
Criminal Defendant: defendant has right to cross-examine to disclose witness
motivation to testify
Wide latitude given to defendant to establish partiality of witness subject to
courts discretion and consideration of trial concerns
Can ask if favorable government action to the witness was provided for
testimony without good faith basis (unless if the form of an assertion masked
as a question)
Collateral-Non-Collateral: matters are not considered collateral and can be proved by
extrinsic evidence
Foundation on Cross-Examination: extrinsic evidence may be introduced if witness is
given the opportunity to deny or explain

(D) CONVICTION OF A CRIME

RULE 609: IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule. For the purpose of attacking the character for truthfulness of a
witness
(1) Evidence that a witness other than an accused has been convicted of a
crime shall be admitted, subject to rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the
law under which the witness was convicted, and evidence that an
accused has been convicted of such a crime shall be admitted if the
court determines that the probative value of admitting this evidence
outweighs its prejudicial effect to the accused; and
(2) Evidence that any witness has been convicted of a crime shall be
admitted regardless of the punishment, if it readily can be determined
that establishing the elements of the crime required proof or admission
of an act of dishonesty or false statement by the witness.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the conviction or
of the release of the witness from confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interest of
justice, that the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect. However,
evidence of a conviction more than 10 years old as calculated herein, is not
admissible unless the proponent gives to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse party with
a fair opportunity to contest the use of such evidence.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a
conviction is not admissible under this rule if (1) the conviction has been the
subject of a pardon, annulment, certificate of rehabilitation, or other
equivalent procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent crime that
was punishable by death or imprisonment in excess of one year, or (2) the
conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not
admissible under this rule. The court may, however, in a criminal case allow
evidence of a juvenile adjudication of a witness other than the accused if
conviction of the offense would be admissible to attack the credibility of an
adult and the court is satisfied that admission in evidence is necessary for a
fair determination of the issue of guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not render
evidence of a conviction inadmissible. Evidence of the pendency of an appeal
is admissible.
(I)
THE DILEMMA: character of a witness is relevant but trial concerns are significant
Prior convictions used to show that the witness has bad character and has been
willing to disregard laws and therefore is likely to disregard the oath and lie
when testifying (inference)
Criminal record attacks character for truthfulness
Jury usually wants to know about a witness criminal record (over-valued)

(II)

Character for truthfulness is NOT the same as character for being law abiding
and is inadmissible as evidence that defendant acted in conformity with
character
Want to avoid the bad man inference: (1) infers that since he previously
committed a crime, he must have also committed this crime or (2) since the
defendant has been convicted of an offense, he probably has committed other
offenses for which he has never been apprehended
Defendant is only being tried for current crime and on that evidence
alone
Jury more likely to convict on less proof than they would otherwise
demand
Limiting instructions are ineffective
Defendant does NOT have to testify but its likely that jury will conclude that
silence is a sign of guilt and drawn inferences against him. But, when he
testifies, the door is opened and prior convictions can be introduced to
impeach him.
THE RESOLUTION: prior convictions are admissible if they are a felony or involve
dishonesty or false statements and have occurred within the last ten years
Punishable: punishment that might have been imposed, not that was actually
imposed
Dishonesty & false statements are admissible despite being misdemeanors and
balancing probative value and prejudicial effect is not required
When balancing test is used, burden is on the party who seeks to introduce the
conviction
(A) CRIMES PUNISHABLE BY DEATH OF IMPRISONMENT IN EXCESS OF ONE
YEAR
Government has to establish that the probative value is greater than the
likelihood of prejudice.
Conviction may be admitted DISCRETIONARY
Factors to be considered: (1) nature of the prior crime, (2) length of the
defendants criminal record, (3) defendants age and circumstances, (4)
likelihood that the defendant would not testify, (5) nearness or
remoteness of the prior crime, (6) defendants subsequent career, (7)
whether the prior crime was similar to the one charged, (8) centrality
of the issue of credibility, and (9) need for defendants testimony
Standard of Review: Abuse of Discretion
(B) CRIMES OF DISHONESTY OR FALSE STATEMENT

Balancing is not required because

conviction establishes untruthfulness

Dishonesty or False Statement:

crime which involves some element of deceit, untruthfulness, of
falsification bearing on the accuseds propensity to testify truthfully

Prior Conviction admissible if an

element required dishonesty/false statement to be found by the trier of
fact
(C) CONVICTION AS TO WHICH MORE THAN TEN YEARS HAS ELAPSED

When defendant is testifying, the

probative value must substantially outweigh the prejudicial effect.

Balancing test applied to all witness

& all crimes including dishonesty

If conviction is more than 10 years

ago, must give party notice and allow them to contest its use
(III)
PROCEDURAL CONSIDERATIONS
Method of Establishing: either elicited from witness or established by public
record
Witness can be questioned on matters appearing in the public record
It is at the courts discretion whether it will allow the witness the
opportunity to explain or mitigate the prior conviction
Any explanation of a witness is subject to cross
Can show guilty plea (inference: defendant would own up to this crime
too) or pendency of appeal
Often prior convictions addressed on direct examination to limit
prejudicial effect
Timing of Ruling: appropriate for motion in limine but court can rule on
admission of prior conviction at any time
Preserving error for appeal: if defendant introduces prior conviction, he
waives his right to challenge it on appeal. Defendant must testify to preserve
error.
Limiting Instructions: can be immediately given (precaution) or given at the
end of the trial
(IV)
THE MERE FACT METHOD: alternative to the balancing test (not accepted in
federal courts)
Ask witness if theyve been convicted. If he denies, produce record of
conviction. If he admits, no additional information of the crime will be
introduced.
Brevity reduces likelihood of improper use
Limits risk of prejudice when previous crime is similar to current crime
Proper balance between societal interest and due process rights
Eliminates unconscious bias
(V)
EFFECT OF A PARDON, ANNULMENT, OR CERTIFICATE OF REHABILITATION:
inadmissible when rehabilitation has been found or witness has been found innocent.
This does not encompass certificates showing sentence has been satisfied, pardons not
based on innocence, release, etc.
(VI)
JUVENILE ADJUDICATIONS: not admissible to attack the credibility of witness
Exceptions: can cross-examine juvenile record fi the conviction would be
admissible to attack credibility of an adult and its admission in evidence is
necessary for fair determination of guilt or innocence
Ad hoc factual determination of the court
(VII)
PENDENCY OF APPEAL: does NOT bar the introduction of the conviction but
pendency of appeal is admissible as well.
(E) PRIOR MISCONDUCT
RULE 608(b)(1): EVIDENCE OF CHARACTER & CONDUCT OF WITNESS: Specific
instances of conduct. Specific instances of conduct of a witness, for the purpose of
attacking or support the witness character for truthfulness, other than conviction of
a crime as provided in rule 609, may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if probative of truthfulness or untruthfulness,

be inquired into on cross-examination of the witness (1) concerning the witness
character for truthfulness or untruthfulness, or
The giving of testimony, whether by an accused or by any other witness privilege
against self-incrimination when examined with respect to matters that related only to
character for truthfulness.
Can inquiry into offenses that didnt result in convictions
Whether instance is probative of character for untruthfulness also consider the
effectiveness of a limiting instruction and the remoteness of the crime
Court can alter motion in limine ruling at any time for any reason
Anticipatory disclosure of conduct probative of truthfulness waives right to assert
error on appeal
Only applies to cross-examination and is limited to inquiry about he misconduct itself
No reference to consequences of the act
Specific instances are collateral no extrinsic evidence can be offered
Examination on character for truthfulness does NOT waive privilege against selfincrimination
(F) CHARACTER OF WITNESS FOR UNTRUTHFULNESS & TRUTHFULNESS
RULE 608: EVIDENCE OF CHARACTER & CONDUCT OF WITNESS:
(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, but subject to these limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness
has been attacked by opinion or reputation evidence or otherwise.
(B )
Specific instances of conduct. Specific instances of conduct of a
witness, for the purpose of attacking or support the witness character for
truthfulness, other than conviction of a crime as provided in rule 609, may not
be proved by extrinsic evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness character for
truthfulness or untruthfulness or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
(I)
AN OVERVIEW
Policy: want to encourage witnesses to testify so try not to be over intrusive
Cant use extrinsic evidence to attack character for truthfulness
Must have good faith basis for inquiry using specific instances
(II)
WHEN PERMITTED
Character for truthfulness can be attacked by any testifying witness
When witness character for truthfulness has been attacked by means of
opinion or reputation testimony, his character for truthfulness may then be
supported but only by opinion or reputation testimony.
Character must be attacked first for character for truthfulness to be introduced
(III)
BASIS & CONTENT
Form: Do you know the reputation for truthfulness of X?
Must be at or near the time of the trial

If character witness say X has a good reputation, cross-examiner

may impeach character using specific instances of untruthfulness and
ask would knowledge of this conduct change your opinion of X?
Cant ask about current charge
Basis: discussed reputation, heard about X, etc.
Character witness must have personal knowledge
With whom did you discuss, when, where, etc. to establish basis
Good Faith Basis: specific instances used to impeach must have actually
occurred (knowledge of an underlying event)
Limiting Instruction: REQUIRED instructing jury that they are to consider
any incidents brought out in cross-examination only for purpose of assessing
the witness standard of opinion of the character trait at issue of the defendant.
Extrinsic Evidence: inadmissible. Specific instances of conduct can only be
brought out on cross-examination.
Rule 403: rule applies to cross-examination
(IV)
CROSS-EXAMINATION OF CHARACTER WITNESS AS TO SPECIFIC ACTS OF
CONDUCT OF PRINCIPAL WITNESS
(G) RELIGIOUS BELIEFS OR OPINIONS
RULE 610: RELIGIOUS BELIEFS OR OPINIONS: Evidence of the beliefs or opinions
of a witness on matters of religion is not admissible for the purpose of showing that
by reason of their nature the witness credibility is impaired or enhanced.
Religion cant be used to enhance/impair credibility it is NOT probative
Rule 610 is NOT a privilege it cant be waived, does not need to be claimed,
etc.
3. IMPEACHMENT OF A PARTYS OWN WITNESS
O RULE 607: WHO MAY IMPEACH: The credibility of a witness may be attacked by any party,
including the party calling the witness
O Common law: couldnt impeach your own witness
Problematic: favors adversary in unfair way
Before FRE, allowed impeachment when (1) surprise AND (2) affirmative damage
Not hearsay if the prior inconsistent statement was under oath (could be introduced
substantively)
Today, can attack credibility of own witness if (1) surprise OR (2) affirmative damage
Cant be impeached if witness does not say something damaging
Alternative: Rule 403 balancing
May not actually be allowed by Rule 607
Unpredictable
Time consuming & minimally effective
O Primary Purpose or Mere Subterfuge: if the witness testimony is help in establishing any fact
of consequence significant in the context of the litigation, the witness may be impeached as
to nay other matter testified to by means of a prior inconsistent statement including matters
the witness now simply claims not to recall

C. REFUTATION
1. REDIRECT

O
O
O

Function: meet new facts or rehabilitate a witness with respect to impeaching matter brought
out on cross through the introduction of evidence tending to refute or shed light upon
evidence developed in cross-examination
Can use leading questions
Cant be asked if direct testimony is true or asked to repeat direct testimony
Court can allow development of new issues at its discretion

2. RECROSS
O Function: meet new factual matters or rehabilitate a witness with respect to matters of
credibility brought out for the first time during redirect examination
O Cant repeat cross-examination
O Scope of recross is at the courts discretion
3. REBUTTAL & SURREBUTTAL
o Function: presentation of evidence in refutation of evidence presented by an opponent during
his last opportunity to offer evidence
Rebuttal: limited to non-collateral matters after defendants case in chief
Surrebuttal: limited to new issues brought up in rebuttal
Allows prosecution to impeach defendants witnesses
Leading questions acceptable

CHAPTER 12: RELEVANT EVIDENCE & SOCIAL POLICY

A. INTRODUCTION
Rules to encourage socially desirable conduct.
B. SUBSEQUENT REMEDIAL MEASURES
RULE 407: SUBSEQUENT REMEDIAL MEASURES: When, after an injury or harm allegedly caused
by an event, measures are taken than, if taken previously, would have made the injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable
conduct, a defect in product, a defect in a products design, or a need for a warning or instruction.
This rule does not require the exclusion of evidence of subsequent measures when offered for
another purpose, such as proving ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.
O Rationale for Rule:
Remedial measure may be motivated by a desire to exercise the highest care and thus
not be an admission of negligence or culpable conduct
Remedying condition is only an acknowledgement that the condition could
have caused the injury. Capacity negligence
Ensures non-repetition of injurious condition
Remedial action in response to governmental regulation is not
admissible
Jury is likely to overvalue remedial action
Dont want to discourage remedial action
For Consideration: Measures that were taken prior to accident, remedial actions taken by a person
not party to the litigation, post occurrence tests and reports, etc.
Evidence of remedial action can be offered if used for another purpose (i.e. not to establish
negligence, but to prove ownership)
O If admitted trial concerns (Rule 403) should be considered and a limiting instruction offered
O THIS IS OCCURS FREQUENTLY! Policy considerations greatly compromised
Impeachment: remedial action can be used to impeach witness the common law concern still exists
O Prohibited at common law
O Impeachment exception undermines rule but is required when defense witness claims the
product was the safest or most reasonable
Defendant will take remedial action with or without rule to protect himself from future
injuries/lawsuits
C. COMPROMISE & OFFERS TO COMPROMISE
RULE 408: COMPROMISE & OFFERS TO COMPROMISE
(a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party, when
offered to prove liability for, invalidity of, or amount of a claim that was disputed as to
validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) Furnishing or offering or promising to furnish or accepting or offering or
promising to accept a valuable consideration in compromising or attempting to
compromise the claim; and
(2) Conduct or statements made in compromise negotiations regarding the claim, except
when offered in a criminal case and the negotiations related to a claim by a public
office or agency in the exercise of regulatory, investigative or enforcement authority.

(b) Permitted Uses. This rule does not require exclusion if the evidenced is offered for purposes
not prohibited by subdivision (a). Examples of permissible purposes include proving a
witnesss bias or prejudice; negating a contention of undue delay; and proving an effort to
obstruct a criminal investigation or prosecution.
Compromises are NOT admissible as to liability
Party may not be admitting liability but simply attempting to buy peace
Relevancy depends on the amount of the settlement
Afraid jury will overvalue the settlement offer
Want to encourage compromise and negotiations
Inadmissible: liability & amount in dispute
Accepted offer (but not a full settlement) is admissible
Facts in settlement are not admissible
Exceptions: admissible in criminal case or claims by public agency in exercise of regulatory power
Discoverable information cannot be protected by this rule
Proof that party received payment may be used to impeach witness. Rules 403 & 105 apply.
o Conduct or statements made in negotiations are inadmissible to impeach

D. PAYMENT OF MEDICAL & SIMILAR EXPENSES

RULE 409: PAYMENT OF MEDICAL & SIMILAR EXPENSES: Evidence of furnishing or offering or
promising to pay medical, hospital, or similar expenses occasioned by an injury, is not admissible to
prove liability for the injury.
Statement is relevant but exception is offered to encourage assistance to injured.
O Inadmissible to prove liability but may be admitted to prove other relevant fact of
consequence subject to Rule 403.
Statements or conduct not a part of the offer, promise or payment itself are NOT precluded form
being introduced into evidence by Rule 409.
E. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, & RELATED STATEMENTS
RULE 410: INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS & RELATED STATEMENTS: Except as
otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) A plea of guilty which was later withdrawn;
(2) A plea of nolo contendere;
(3) Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of
Criminal Procedure or comparable state procedure regarding either of the foregoing pleas;
or
(4) Any statement made in the course of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result in a plea of guilty later
withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in
the course of the same plea or plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or
false statement if the statement was made by the defendant under oath, on the record and in the
presence of counsel.
o Purpose: promotion of disposition of criminal cases by plea bargaining
o Open, honest communication required to plea bargain
o All statements made in the course of plea bargaining are inadmissible

Not limited to statements of the defendant himself includes defense counsel &
government
Limited to parties of the action non-party witness may be impeached by plea
Plea Bargaining: discussion wherein a defendant seeks to obtain concessions form the government in
return for a plea quid pro quo process
o Accused must be attempting to strike a deal must exhibit a reasonable subject expectation
that plea negotiations are in progress
Hope to obtain leniency is insufficient must have a discussion seeking concessions
for plea to occur if not, then statement is a confession
Court will evaluate reasonableness on the totality of the circumstances: did
prosecution give defendant reason to believe they were plea bargaining?
Effectiveness of counsel?
o Can bargain for concessions as to a third party
Admissibility of Statements: plea statements are inadmissible against a defendant substantively or to
impeach
o May be admissible if accused waives protection of Rule 410
o Admissible in criminal proceeding for perjury if the statement was made under oath, on the
record, and in the presence of counsel
o Admissible if another statement is used in a proceeding and additional statements ought to be
considered for fairness reasons
o Guilty plea not withdrawn can be used in subsequent actions since it admits all pleaded
matters
Nolo Contendere: inadmissible whether withdrawn or not
o Constitutes admission only for the purposes of the criminal matter at hand
o Encourage disposition of criminal cases without trial
Law Enforcement Personnel: plea negotiations may only occur between counsel for defense and
government counsel this EXCLUDES police officers
o Cops can negotiate when given power by a government attorney
o Statements freely given to officers may still be admissible
o Police negotiation does NOT result in compelled exclusion
BUT, defendants perception on ability to accept a plea govern officers actual
authority isnt dispositive
Government cant manipulate accused into admitting something in what they
reasonably believed was a plea negotiation and later use it against the accused

F. LIABILITY INSURANCE
RULE 411: LIABILITY INSURANCE: Evidence that a person was or was not insured against liability
is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This
rule does not require the exclusion of evidence of insurance against liability when offered for
another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Insurance does not establish fault but can be used to establish ownership, control, agency, etc.
Rationale: dont want to encourage the jury to share the wealth
Inadvertent disclosure will not result in a mistrial
o Court will strike testimony and instruct the jury to disregard it.
o Most people are aware that individuals carry insurance
Discretionary whether opinions of insurance companies can be asked on voir dire

CHAPTER 13: PRIVILEGES

A. INTRODUCTION
RULE 501: GENERAL RULE: Except as otherwise required by the Constitution of the United States
or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory
authority, the privilege of a witness, person, government, State, or political subdivision thereof shall
be governed by the principles of common law as they may be interpreted by the courts of the United
States in the light of reason and experience. However, in civil actions and proceedings, with respect
to an element of a claim or defense as to which State law supplies the rule of decision, the privilege
of a witness, person, government, State or political subdivision thereof shall be determined in
accordance with State law.
Privilege excludes relevant information to protect relationships valued by society
O Communications must be in confidence
O Privileges may result in shielding the truth must be asserted to a fact of consequence
Privilege rules are continually developed by the courts
O State laws govern
O Reluctant to add privileges
O NOTE: doctor-patient & accountant-client privileges DO NOT exist!
Factors to be Considered when Claiming Privilege (journalists) :
O Materiality or necessity to the case of the information allegedly privileged
O Attempts of the side seeking the information to obtain it form sources other than journalists
O Whether information sought is in fact available from other sources
Person asserting the privilege has the burden of showing facts which give rise to the privilege
Standards do NOT have the force of law but are generally followed
B. REQUIRED REPORTS PRIVILEGED BY STATUTE
STANDARD 502: REQUIRED REPORTS PRIVILEGED BY STATUTE NOT ENACTED: A person,
corporation, association, or other organization or entity, either public or private, making a return or
report required by law to be made has a privilege to refuse to disclose and to prevent any other
person from disclosing the return or report, if the law requiring it to be made so provides. A public
officer or agency to whom a return or report is required by law to be made has a privilege to refuse
to disclose the return or report if the law requiring it to be made so provides. No privilege exists
under this rule in actions involving perjury, false statements, fraud in the return or report, or other
failure to comply with the law in question.
O Purpose of Rule: encourage compliance with the statute, preserve confidentiality, and
forestall violating privilege against self-incrimination
Public gain outweighs the loss of prosecution
O Purpose of Reporting Statutes:
Encouragement: encourage citizens to accurately report self-damaging information
Housekeeping: aid in governments housekeeping (i.e. preserve from loss, avoid
inconvenience, etc.)
If federal law provides the rule of decision, state privilege law need not be followed
C. LAWYER-CLIENT
STANDARD 503: LAWYER-CLIENT PRIVILEGE NOT ENACTED:
(a) Definitions. As used in this rule:

(1) A client is a person, public officer, or corporation, association, or other

organization or entity, either public or private, who is rendered professional legal
services by a lawyer, or who consults a lawyer with a view of obtaining professional
legal services from him.
(2) A lawyer is a person authorized, or reasonably believed by the client to be
authorized, to practice law in any state or nation.
(3) A representative of the lawyer is one employed to assist the lawyer in the rendition
of professional legal services.
(4) A communication is confidential if not intended to be disclosed to third persons
other than those to whom disclosure is in furtherance of the rendition of professional
legal services to the client or those reasonably necessary for the transmission of the
communication.
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client, (1) between himself or
his representative and his lawyer or his lawyers representative, or (2) between his lawyer
and the lawyers representative, or (3) by him or his lawyer to a lawyer representing another
in a matter of common interest, of (4) between representatives of the client or between the
client and a representative of the client, or (5) between lawyers representing the client.
(c) Who May Claim Privilege. The privilege may be claimed by the client, his guardian or
conservator, the personal representative of a deceased client, or the successor, trustee, or
similar representative of a corporation, association, or other organization, whether or not in
existence. The person who was the alwyer at the time of the communication may claim the
privilege but only on behalf of the client. His authority to do so is presumed in the absence
of evidence to the contrary.
(d) Exceptions. There is not privilege under this rule:
(1) Furtherance of Crime or Fraud. If the services of the lawyer were sought or obtained
to enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud; or
(2) Claimants Through Same Deceased Client. As to a communication relevant to an
issue between parties who claim through the same deceased client, regardless of
whether the claims are by testate or intestate succession or by inter vivos transaction;
or
(3) Breach of Duty by Lawyer or Client. As to a communication relevant to an issue of
breach of duty by the lawyer to his client or by the client to his lawyer; or
(4) Document Attesting by Lawyer. As to a communication relevant to an issue
concerning an attested document to which lawyer is an attesting witness; or
(5) Joint Clients. As to a communication relevant to a matter of common interest
between two or more clients if the communication was made by any of them to a
lawyer retained or consulted in common, when offered in an action between any of
the clients.
1. AN OVERVIEW
O Privilege to refuse disclosure of confidential communications made for the purpose of
facilitating the rendition of legal services
Includes lawyers representatives
O Purpose: encourage clients to make full disclosure to their attorneys
O Burden: party asserting the privilege bears the burden of establishing that the communication
was protected
2. NATURE OF RELATIONSHIP

Party must be contemplating rendition of legal services

Previous conversations do not become privileged when shared with attorney
O Expansion of privilege for joint defense:
Protects confidential communications from forced disclosure between parties when
participating in joint defense
Sharing information with parties engaged in joint defense does not waive privilege
REPRESENTATIVE OF LAWYER
o Representative: one employed to assist the lawyer in the rendition of legal services includes
experts
ONLY non-testifying experts
Testifying experts must disclose information
o Privilege includes those the client reasonably believe are authorized to practice law
o Fact that client has hired lawyer, lawyers address, etc. are not confidential
ORGANIZATION OR CORPORATE CLIENT
o Representative of the client:
Control Group Test: those who have authority to obtain professional legal services or
act on the advice rendered thereto
Subject Matter Test: an employee of the corporation if: (1) the communication was
made for the purpose of obtaining legal advice, (2) the employee making the
communication did so at the request of a superior, (3) the superior made the request
so that the corporation could obtain legal advice, (4) the subject matter of the
communication was in the scope of the employees corporate duties, (5) the
communication is not disseminated beyond those person who need to know its
contents.
o Control has been abandoned
o Any privilege rating to communications made by a person while associated with the
corporation belongs to the corporation. The person cannot prevent the corporation from
waiving its privilege
MATTERS INTENDED TO BE DISCLOSED
O Communication must be confidential to assert privilege i.e. intended to not be disclosed
PRESENCE OF OTHER PERSONS
O Eavesdropper doesnt destroy privilege unless the client had knowledge or should have
known of his presence
O Privilege is waived when third parties are present or when groups consult a lawyer together
DOCUMENTS
O Documents are included but not if simply forwarded to attorney
CLAIMING THE PRIVILEGE
O Belongs to client but can be asserted by client, attorney, guardian, representative, etc.
O Lasts after the attorney-client relationship is terminated
O Can be claimed even if client is not a party to an action
SITUATIONS WHERE INAPPLICABLE; WAIVER: limited to illegal activities, breach of duty, or other
relevant matters. Privilege survives the death of the client.
O

3.

4.

5.
6.

7.
8.

9.

D. PSYCHOTHERAPIST-PATIENT & PHYSICIAN-PATIENT PRIVILEGE

STANDARD 504: PSYCHOTHERAPIST-PATIENT PRIVILEGE NOT ENACTED:
(a) Definitions.
(1) A patient is a person who consults or is examined or interviewed by a
psychotherapist

(2) A psychotherapist is (A) a person authorized to practice medicine in any state or

nation, or reasonably believed by the patient so to be, while engaged in the diagnosis
or treatment of a mental or emotional condition, including drug addiction, or (B) a
person licensed or certified as a psychologist under the laws of any state or nation,
while similarly engaged.
(3) A communication is confidential if not intended to be disclosed to third persons
other than those present to further the interest of the patient in the consultation,
examination, or interview, or persons reasonably necessary for the transmission of
the communication, or persons who are participating in the diagnosis and treatment
under the direction of the psychotherapist, including members of the patients family.
(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications, made for the purposes of
diagnosis or treatment of his mental or emotional condition, including drug addiction,
among himself, his psychotherapist, or persons who are participating in the diagnosis or
treatment under the direction of ht psychotherapist, including members of the patients
family.
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, by his guardian
or conservator, or by the personal representative of a deceased patient. The person who was
the psychotherapist may claim the privilege but only on behalf of the patient. His authority
so to do is presumed in the absence of evidence to the contrary.
(d) Exceptions.
(1) Proceedings for Hospitalization. There is no privilege under this rule for
communications relevant to an issue in proceedings to hospitalize the patient for
mental illness, if the psychotherapist in the course of diagnosis or treatment has
determined that the patient is in need of hospitalization.
(2) Examination by Order of Judge. If the judge orders an examination of the mental or
emotional condition of the patient, communications made in the course thereof are
not privileged under this rule with respect to the particular purpose for which the
examination is ordered unless the judge orders otherwise.
(3) Condition an Element of Claim or Defense. There is no privilege under this rule as
to communications relevant to an issue of the mental or emotional condition of the
patient in any proceeding in which he relies upon the condition as an element of his
claim or defense, or, after the patients death, in any proceeding in which any party
relies upon the condition as an element of his claim or defense.
NOT A PHYSICIAN-PATIENTE PRIVILEGE!!!
O No privilege because: (1) it would suppress the best source of proof, (2) it would encourage
one-sided testimony, and (3) it is against the grain of justice
O State rules of decision state privileges which may included doctor-patient but the number
of exceptions make the privilege hollow
O Essentially eliminated in 1938 by FRCP 35 court ordered examinations
Special need to maintain confidentiality in psychotherapy people wouldnt get help otherwise
O Identity may be confidential

E. HUSBAND-WIFE PRIVILEGES
STANDARD 505: HUSBAND-WIFE PRIVILEGE NOT ENACTED:
(a) General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent
his spouse form testifying against him.

(b) Who May Claim the Privilege. The privilege may be claimed by the accused or by the
spouse on his behalf. The authority of the spouse to do so is presumed in the absence of
evidence to the contrary.
(c) Exceptions. There is no privilege under this rule (1) in proceedings in which one spouse is
charged with a crime against he person or property of the other or of a child of either, or
with a crime against he person or property of a third person committed in the course of
committing a crime against the other, or (2) as to matters occurring prior to the marriage, or
(3) in proceeding in which a spouse is charged with importing an alien for prostitution or
other immoral purpose in violation of 8 U.S.C. 1328, with transporting a female interstate
commerce for immoral purposes or other offense in violation of 18 U.S.C. 2421-2424, or
with violation of other similar statutes.
Rule does not compel spouse to testify, nor foreclose spouse from testifying
1. TESTIMONIAL
O Holder of privilege is the testifying spouse
Both spouses do not need to consent for one to use or refuse to invoke the privilege
Scope: right to refuse to answer questions which tend to incriminate the nontestifying spouse
O Purpose: foster family peace without frustrating justice
O Privilege ends if the marriage is terminated, a sham or invalid
2. CONFIDENTIAL COMMUNICATION
O Covers confidential communications between spouses and survives the termination of the
marriage
Rationale: every person needs one person to communicate with fully
EXCEPTION: joint crimes communication between spouses to engage is crime is
not privileged
O Requirements: valid marriage sham, permanently separate spouses, etc.
F. COMMUNICATIONS TO CLERGYMEN
STANDARD 506: COMMUNICATIONS TO CLERGYMEN NOT ENACTED:
(a)
Definitions. As used in this rule:
(1) A clergyman is a minister, priest, rabbi, or other similar functionary of a religious
organization, or an individual reasonably believed so to be by the person consulting
him.
(2) A communication is confidential if made privately and not intended for further
disclosure except to other persons present in furtherance of the purpose of the
communication.
(b)
General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent
another from disclosing a confidential communication by the person to a clergyman in his
professional character as spiritual adviser.
(c)
Who May Claim the Privilege. The privilege may be claimed by the person, by his
guardian or conservator, or by his personal representative if he is deceased. The clergyman
may claim the privilege on behalf of the person. His authority so to do is presumed in the
absence of evidence to the contrary.

Person making the communication is the holder of the privilege

O Communication must be made under circumstances reflecting an intent to be confidential
O Must relate to clergyman in capacity as spiritual counselor

Includes: marriage counseling, personality counseling, and other counseling

G. POLITICAL VOTE
STANDARD 507: POLITICAL VOTE NOT ENACTED: Every person has a privilege to refuse to
disclose the tenor of his vote at a political election conducted by secret ballot unless the vote was
cast illegally.
Secrecy is important to voting which is essential to our democratic society social policy
H. TRADE SECRETS
STANDARD 508: TRADE SECRETS NOT ENACTED: A person has a privilege, which may be
claimed by him or his agent or employee, to refuse to disclose and to prevent other persons form
disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal
fraud or otherwise work injustice. When disclose is directed, the judge shall take such protective
measure as the interests of the holder of the privilege and of the parties and the furtherance of
justice may require.
Trade secret: any formula, pattern, device or compilation of information which is used in ones
business, and which gives him an opportunity to obtain an advantage over competitors who do not
know or use it
Balance competing interests:
O Done in camera to protect privilege if it is upheld
O If privilege cannot be claimed, court should take other protective measures (i.e. give info to
opposing counsel but not his client)
Privilege cannot be claimed to cover fraud or if injustice would result
I. SECRETS OF STATE & OTHER OFFICIAL INFORMATION
STANDARD 509: SECRETS OF STATE & OTHER OFFICIAL INFORMATION NOT ENACTED:
(a) Definitions.
(1) Secret of State. A secret of state is a governmental secret relating to the national
defense or the international relations of the United States.
(2) Official Information. Official information is information within the custody or
control of a department or agency of the government the disclosure of which is shown
to be contrary to the public interest and which consists of: (A) intragovernmental
opinions or recommendations submitted for consideration in the performance of
decisional or policymaking functions, or (B) subject to the provisions of 18 U.S.C.
3500, investigatory files compiled for law enforcement purposes and not otherwise
available, or (C) information within the custody or control of a governmental
department or agency whether initiated within the department or agency or acquired
by it in its exercise of its official responsibilities and not otherwise available to the
public pursuant to 5 U.S.C. 552.
(b) General Rule of Privilege. The government has a privilege to refuse to give evidence and to
prevent any person from giving evidence upon a showing of reasonable likelihood of danger
that the evidence will disclose a secret of state or official information, as defined in this rule.
(c) Procedures. The privilege for secrets of state may be claimed only by the chief officer of the
government agency or department administering the subject matter which the secret
information sought concerns, but the privilege for official information may be asserted by
any attorney representing the government. The required showing may be made in whole or
in part in the form of a written statement. The judge may hear the matter in chambers, but
all counsel are entitled to inspect the claim and showing and to be heard thereon, except
that, in the case of secrets of state, the judge upon motion of the government, may permit the
government to make the required showing in the above form in camera. If the judge sustains

the privilege upon a showing in camera, the entire text of the governments statements shall
be sealed and preserved in the courts records in the event of appeal. In the case of privilege
claimed for official information the court may require examination in camera of the
information itself. The judge may take any protective measure which the interests of the
government and the furtherance of justice may require.
(d) Notice of Government. If the circumstances of the case indicate a substantial possibility that
a claim of privilege would be appropriate but has not been made because of oversight or
lack of knowledge, the judge shall give or cause notice to be given to the officer entitled to
claim the privilege and shall stay further proceedings a reasonable time to afford
opportunity to assert a claim of privilege.
(e) Effect of Sustaining Claim. If a claim of privilege is sustained in a proceeding to which the
government is a party and it appears that another party is thereby deprived of material
evidence, the judge shall make any further orders which the interests of justice require,
including striking the testimony of a witness, declaring a mistrial, finding against the
government upon an issue as to which the evidence is relevant, or dismissing the action.
State secrets: (1) matters of military or diplomatic significance, (2) matters relating to policy
decision making and investigations, (3) information reported to the government protected from
disclosure by statute, and (4) communications between the President and his advisors.
O In camera inspections when FOIA is invoked

J. IDENTITY OF INFORMER
STANDARD 510: IDENTITY OF INFORMER NOT ENACTED:
(a) Rule of Privilege. The government or a state or subdivision thereof has a privilege to refuse
to disclose the identity of a person who has furnished information relating to or assisting in
an investigation of a possible violation of law to a law enforcement officer or member of a
legislative committed or its staff conducting an investigation
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the
government, regardless of whether the information was furnished to an officer of the
government or of a state or subdivision thereof. The privilege ma be claimed by an
appropriate representative of a state or subdivision if the information was furnished to an
officer thereof, except that in criminal cases the privilege shall not be allowed if the
government objects.
(c) Exceptions.
(1) Voluntary Disclosure; Informer a Witness. No privilege exists under this rule if the
identity of the informer or his interest in the subject matter of his communication has
been disclosed to those who would have cause to resent the communication by a
holder of the privilege or by the informers own action, or if the informer appears as
a witness for the government.
(2) Testimony on Merits. If it appears from the evidence in the case or from other
showing by a party that an informer may be able to give testimony necessary to a fair
determination of the issue of gilt or innocence in a criminal case or of a material
issue on the merits in a civil case to which the government is party, and the
government invokes the privilege, the judge shall give the government an opportunity
to show in camera facts relevant to determining whether the informer can, in fact,
supply that testimony. The showing will ordinarily be in the form of affidavits, but he
judge may direct that testimony be taken if he finds that the matter cannot be resolved
satisfactorily upon affidavit. If the judge fins that there is a reasonable probability
that the informer can give the testimony, and the government elects not to disclose his
identity, the judge on motion of the defendant in a criminal case shall dismiss the

charges to which the testimony would relate, and the judge may do so on his own
motion. In civil cases, he may make any order that justice requires. Evidence
submitted to the judge shall be sealed and preserved to be made available to the
appellate court in the event of an appeal, and the contents shall not otherwise be
revealed without consent of the government. All counsel and parties shall be
permitted to be present at every stage of proceedings under this subdivision except a
showing in camera, at which no counsel or party shall be permitted to be present.
(3) Legality of Obtaining Evidence. If information from an informer is relied upon to
establish the legality of the means by which evidence was obtained and the judge is
not satisfied that the information was received form an informer reasonably believed
to be reliable or credible, he may require the identity of the informer to be disclosed.
The judge shall, on request of the government, direct that the disclosure be mad in
camera. All counsel and parties concerned with the issue of legality shall be
permitted to be present at every stage of proceedings under this subdivision except a
disclosure in camera, at which no counsel or party shall be permitted to be present.
If disclosure of the identity of the informer is made in camera, the record thereof shall
be sealed and preserved to be made available to the appellate court in the event of an
appeal, and the contents shall not otherwise be revealed without consent of the
government.
1. TESTIMONY ON MERITS
O Anonymity needed to encourage individuals to cooperate with the police
Protects informer
Increases likelihood police can use informer again in the future
O Identity of the informer is not relevant to the issues in the case
O Privilege belongs to and is claimed by the government or a government representative
Privilege ends when the identity of the informer is disclosed and ONLY extends to the
identity of the informer, not the content of his statements
When privilege is claimed, government must show facts supporting privilege in
camera (no attorneys or parties allowed significant burden on the court)
O Court will balance the value of public interest and the free flow of information against the
necessity of the accused to prepare his defense
O Disclosure is required when the informant is either a participant or the only non-participant
eyewitness to the crime other than the accused and government agents
Rule generally favors withholding the identity of informants
Defendant bears the burden of establishing the necessity for disclosure of the identity
of the informant
Charges will be dismissed if the government wont disclose the identity upon court
order
O Government must inform defense when they plan to call an informer as a defense witness
because prior statements may be used for impeachment purposes
2. LEGALITY OF OBTAINING EVIDENCE
O When informant information is the basis of a search warrant, identity may be require to be
disclosed to show sound basis for warrant
O Disclosure occurs in camera without counsel or parties - at discretion of court
K. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
STANDARD 511: WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE NOT ENACTED: A
person upon whom these rules confer a privilege against disclosure of the confidential matter or

communication waives the privilege if he or his predecessor while holder of the privilege voluntarily
discloses or consents to disclosure of any significant part of the matter or communication. This rule
does not apply if the disclosure is itself a privileged communication.
Waiver: voluntary disclosure or consent
O Intent is not required
O Failure to assert privilege at trial is a waiver
Voluntary disclosure applies to all communications of the same subject matter and cannot be restored

L. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM

PRIVILEGE
STANDARD 512: PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT
OPPORTUNITY TO CLAIM PRIVILEGE NOT ENACTED: Evidence of a statement or other
disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure
was (a) compelled erroneously or (b) made without opportunity to claim the privilege.
M. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION
STANDARD 513: COMMENT UPON OR INFERENCE FORM CLAIM OR PRIVILEGE; INSTRUCTION
NOT ENACTED:
(a) Comment or Inference Not Permitted. The claim of a privilege, whether in the present
proceeding or upon a prior occasion, is not a proper subject of comment by judge or
counsel. No inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of the Jury. In jury cases, proceedings shall be
conducted, to the extent practicable, so as to facilitate the making of claims of privilege
without the knowledge of the jury.
(c) Jury Instruction. Upon request, any party against whom the jury might draw an adverse
inference from a claim of privilege is entitled to an instruction that no inference may be
drawn therefrom.
Cant comment on a persons use of privilege supports policy reasons behind privileges

CHAPTER 14: BURDEN OF PROOF & PRESUMPTIONS

A. BURDEN IN CIVIL CASES
1. ALLOCATING THE ELEMENTS
O Plaintiff bears burden of proving elements of a claim for relief
O Defendant must establish affirmative defenses
O Considerations on who bears burdens:
Caution & convenience
Policy
Fairness
Probabilities
2. BURDEN OF PROOF
O Burdens of: (1) pleading, (2) production, and (3) persuasion
(A )
BURDEN OF PRODUCTION
Produce enough evidence to establish a prima facie case court could find for
burdened party
Without a prima facie case the court must find for the defendant
Opposing party doesnt have to produce anything but it is harmful if it chooses not to
refute the pleaded claims. Burden shifts when accused as to refute plaintiffs claims.
(B )
BURDEN OF PERSUASION
The burden of persuasion, unlike the burden of producing evidence, never shifts as a
result of the introduction of evidence
However, applicable federal or state law provides for shifting the burden of
persuasion in civil matters in connection with a presumption
In the usual civil case, satisfaction of the burden of persuasion requires that the trier
of fact find that the existence of the proposition to be proved is more probably true
than not true
B. PRESUMPTIONS IN CIVIL CASES
RULE 301: PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS & PROCEEDINGS: In all civil actions
and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption
imposes on the party against whom it is directed the burden of going forward with evidence to rebut
or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk
of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
DEFINITION AND NATURE
o A presumption shifts the burden of producing evidence, and may assign the burden of persuasion
as well
o Some presumptions are created to correct an imbalance resulting from one partys superior
access to the proof
o Generally, the most important consideration in the creation of presumptions is probability
o Today, it is almost universally agreed that a presumption may be defined as a rule of law which
requires that the existence of a fact (presumed fact) be taken as established when another fact or
other facts (basic facts) are established, unless and until a certain specified condition is fulfilled
TWO COMPETING APPROACHES
o Thayers bursting bubble theory: when the basic facts are established, the presumed fact
must be taken as established unless and until the opponent introduces evidence sufficient to
support a finding by a reasonable trier of fact of the nonexistence of the presumed fact

It is a procedural device that shifts the burden of producing evidence

Under this theory, only the burden of production shifts; the burden of persuasion never
shifts
The jury should never be instructed in terms of a presumption, but can be instructed as to
an inference
o Morgans shifting burden of persuasion theory: provides that if the basic facts are established,
the jury is instructed that it must find the presumed fact unless and until the opponent persuades
the trier of fact that the nonexistence of fact is more probably true than not true
Both the burden of production and persuasion are shifted to the opponent
Rule 301 adopted the Thayer approach, however
INFERENCES AND PERMISSIVE PRESUMPTIONS
o An inference is a conclusion as to the existence of a particular fact reached by considering other
facts in the usual course of human reasoning
The fact finder may draw a deduction, but is not required to as a matter of law, unlike for
a presumption
PRIMA FACIE EVIDENCE
o Clarity would be enhanced by employing the term prima facie case solely to indicate satisfaction
of a burden of production as to all elements of the claim for relief and the term prima facie
evidence as satisfying the burden of production as to a particular element of a claim for relief or
a particular fact having a lesser offense
CONCLUSIVE AND IRREBUTTABLE PRESUMPTIONS
o A so-called presumption which cannot be rebutted by evidence is not a presumption but a rule of
substantive law
PRESUMPTIONS AS EVIDENCE
o It is now universally recognized that a presumption is a rule of law for the handling of evidence,
not a species of evidence
CONFLICTING PRESUMPTIONS
o If policy considerations are of equal weight, both presumptions are then disregarded
ATTACK BY REBUTTING BASIC FACTS OR PRESUMED FACT
o Two methods of attack are open to the party against whom a presumption is invoked
He may introduce evidence tending to disprove the existence of the basic facts on which
the presumption depends, or he may offer evidence tending to disprove the presumed fact
itself
IF THE PRESUMPTION IS FOUND TO HAVE BEEN REBUTTED, THE BUBBLE HAS BURST
INSTRUCTING THE JURY
o The presumption should not be mentioned to the trier of fact but can be instructed as to the
procedural effects of the presumption
STATUTORY AND COMMON LAW PRESUMPTIONS
o Examples of presumptions include official actions, common carriers, mailings, acts of Congress,
UCC
CONSTITUTIONALITY
o Its constitutional as long as there is a rational connection exists between the basic facts and the
presumed fact

C. APPLICABILITY OF STATE LAW IN CIVIL ACTIONS & PROCEEDINGS

RULE 302: APPLICABILITY OF STATE LAW IN CIVIL ACTIONS & PROCEEDINGS: In civil actions
and proceedings, the effect of a presumption respecting a fact which is an element of a claim or

defense as to which State law supplies the rule of decision is determined in accordance with State
law.
The Erie doctrine applies, whatever the ground for federal jurisdiction to any issue or claim which
has its source in state law

D. BURDENS IN CRIMINAL CASES

1. ALLOCATING THE ELEMENTS: Insanity is one example of an affirmative defense in which the
defendant bears the burden of persuasion by clear and convincing evidence
2. BURDEN OF PROOF
(A) BURDEN OF PRODUCTION: the prosecution has the burden of showing each element beyond
a reasonable doubt
(B) BURDEN OF PERSUASION: it rests on the government; one can be convicted solely on
circumstantial evidence
E. PRESUMPTIONS IN CRIMINAL CASES
STANDARD 303: PRESUMPTIONS IN CRIMINAL CASES NOT ENACTED:
(a) Scope. Except as otherwise provided by Act of Congress, in criminal cases, presumptions
against an accused, recognized at common law or created by statute, including statutory
provisions that certain facts are prima facie evidence of other facts or of guilt, are governed
by this rule.
(b) Submission to Jury. The judge is not authorized to direct eh jury to find a presumed fact
against the accused. When the presumed fact establishes guilt or is an element of the offense
or negatives a defense, the judge may submit the question of guilt or of the existence of the
presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole,
including the evidence of the basic facts, could find guilt or the presumed fact beyond a
reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted
to the jury if the basic facts are supported by substantial evidence, or are otherwise
established, unless the evidence as a whole negatives the existence of the presumed fact.
(c) Instructing the Jury. Whenever the existence of a presumed fact against the accused is
submitted to the jury, the judge shall give an instruction that the law declares that the jury
may regard the basic facts as sufficient evidence of the presumed fact but does not require it
to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or
negatives a defense, the judge shall instruct the jury that its existence must, on all the
evidence, be proved beyond a reasonable doubt.
If there is a presumed fact establish or negating guilt and is one of the elements of the offense, the
court may submit the question of guilt to the jury but only if a reasonable juror taking the evidence
as a whole could find guilt beyond a reasonable doubt
o Under no circumstances is the judge permitted to direct the jury to find a presumed fact
against an accused
A presumption as employed in criminal matters corresponds to inference in civil matters
In the criminal law, presumptions are used to encourage the jury to find certain facts with respect to
which no direct evidence is presented, solely because other facts have been proved
O If there is a presumed fact establish or negating guilt and is one of the elements of the
offense, the court may submit the question of guilt to the jury but only if a reasonable juror
taking the evidence as a whole could find guilt beyond a reasonable doubt
Under no circumstances is the judge permitted to direct the jury to find a presumed
fact against an accused
O A presumption as employed in criminal matters corresponds to inference in civil matters

In the criminal law, presumptions are used to encourage the jury to find certain facts
with respect to which no direct evidence is presented, solely because other facts have
been proved

CHAPTER 15: JUDICIAL NOTICE

A. AN INTRODUCTION
1. RULE 201: JUDICIAL NOTICE OF ADJUDICATIVE FACTS:
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with
the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be
heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In a civil action or proceeding, the court shall instruct the jury to accept as
conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury
that it may, but is not required to, accept as conclusive any fact judicial noticed.

Judicial notice is founded on the assumption that certain factual determinations are not
subject to reasonable dispute and thus may be appropriately resolved other than by the production of
evidence before the trier of act at trial
o It means merely that a matter is taken as true without the offering of evidence by the party
who should ordinarily have done so
o Adjudicative facts are the who, what, when, where, why, and how
o A high decree of indisputability is an essential prerequisite for adjudicative facts to be
judicially noticed
o The line between adjudicative facts and legislative facts is not always easy to determine
B. ADJUDICATIVE FACTS
1. MATTERS GENERALLY KNOWN: udicial notice has been taken, e.g., that the Ohio River is
navigable, that lethal voltages of electricity are present in television sets, and that vast amounts of
purchases are made by credit card
2. ACCURATE AND READY DETERMINATION
o Acts, records, and personnel of court are given judicial notice
o Certain geographic facts are given judicial notice
o Other facts given judicial notice include:
Published compilations
Statistical facts
Historical facts
Government matters and public records
Religious facts
Political facts
Business, corporate and financial facts
Scientific principles and authoritative treatises
3. PROCEDURAL ASPECTS: basic considerations of procedural fairness demand an opportunity to be
heard on the propriety of taking judicial notice and the tenor of the matter noticed

4. COMMON KNOWLEDGE OF TRIER OF FACT: jurors are properly instructed that they may consider
the evidence in light of their experiences in the affairs of life and their common knowledge of the
natural tendencies and inclinations of human beings
5. ESTABLISHMENT OF INCONTROVERTIBLE MATTERS OTHER THAN BY JUDICIAL NOTICE
O An allegation in a pleading which is expressly admitted in an opposing pleading or which is
not denied is conclusively established for purposes of the case
O Facts are also conclusively established if agreed to in a stipulation entered into at any time,
including as part of the pre-trial conference
C. LAW & LEGISLATIVE FACTS
1. ASCERTAINING THE APPROPRIATE LAW: Federal courts are obligated to judicially notice the
statutes and case law of the various states
2. FACTUAL BASIS OF JUDICIAL RULES: One way in which facts enter most significantly into the
judicial process is in the formulation of the rules of law themselves by courts
3. FACTUAL ASPECTS OF LEGISLATION: Judicial notice is taken by the court in determining the
constitutionality of legislative enactments as applied to particular cases