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INTRODUCTION .............................................................................................................................................................. 3
Exclusionary Rules: 3 principles ........................................................................................................................................ 3
Procedural Rules ................................................................................................................................................................ 3
Presentation of Evidence ................................................................................................................................................. 3
Process of Proof.............................................................................................................................................................. 3
Role of Court .................................................................................................................................................................. 3
Objections: Rule 103 ..................................................................................................................................................... 4
Presentation of Evidence: BURDENS OF PROOF ......................................................................................................... 5
I. PRESUMPTIONS ......................................................................................................................................................... 5
Dealing with Presumption Problems: 3 Situations............................................................................................................ 5
JUDICIAL NOTICE .......................................................................................................................................................... 7
Applying Judicial Notice in the Real World .................................................................................................................... 8
USE OF STIPULATIONS .................................................................................................................................................. 9
RELEVANCY ................................................................................................................................................................... 9
Legal Relevancy ............................................................................................................................................................. 9
LOGICAL RELEVANCY ............................................................................................................................................ 10
RULE 403 ........................................................................................................................................................................ 13
Applying Rule 403........................................................................................................................................................ 13
Rules of Thumb ............................................................................................................................................................ 13
Non-testimonial Proof................................................................................................................................................... 15
WRAP UP of 403 ......................................................................................................................................................... 16
Resolving Relevancy Objections ................................................................................................................................... 16
COMPETENCY OF WITNESSES [Rules 601, 602-607, 401, 403]................................................................................ 17
RULES OF WITNESS COMPETENCY ....................................................................................................................... 17
Personal Knowledge requirement .................................................................................................................................. 17
Testimonial Qualities .................................................................................................................................................... 17
Age .............................................................................................................................................................................. 18
Rule 603- OATH or AFFIRMATION ............................................................................................................................... 18
Miscellaneous Rules ..................................................................................................................................................... 18
EXAMINATION OF WITNESSES ............................................................................................................................... 19
DIRECT EXAMINATION ........................................................................................................................................... 19
Four basic rules for direct examination .......................................................................................................................... 19
Limitations ................................................................................................................................................................... 20
CROSS EXAMINATION (you dont HAVE to cross examine) ..................................................................................... 20
Ways to Impeach a Witnesss Credibility .......................................................................................................................... 21
Showing the Witness is Mistaken .................................................................................................................................. 21
Showing the Witness is a Liar ....................................................................................................................................... 22
I. Partisan feelings; Bias interests and motive.......................................................................................................... 22
Showing the Witness Is a Liar By Prior Acts (this person is a liar in general) ............................................................. 23
Showing the Witness is a Liar by CONVICTIONS (Rule 609) ................................................................................... 26
Showing the Witness is a Liar by the Character Witness for Untruthfulness ............................................................... 29
Showing Witness is a Liar by INCONSISTENT STATEMENTS .............................................................................. 30
801 HEARSAY ............................................................................................................................................................... 33
Definition of Declarant 801(b)- ..................................................................................................................................... 34
Definition of Statement 801(c)- A statement is: ............................................................................................................ 34
Non-assertive Verbal Statements ............................................................................................................................... 35
Nonassertive, non verbal conduct .............................................................................................................................. 35
NONTRUTH PURPOSES- NOT HEARSAY ............................................................................................................... 37
IMPEACHMENT: coming in for credibility and is a non-truth purpose ..................................................................... 37
EFFECT ON HEARER ............................................................................................................................................. 38
DECLARANTS STATE OF MIND ......................................................................................................................... 39
INDEPENDENT LEGAL SIGNIFICANCE .............................................................................................................. 39
Miscellaneous Hearsay Rules ........................................................................................................................................ 40
EXCEPTIONS TO THE HEARSAY RULE ..................................................................................................................... 41
I. Rule 801(d)(1)- Prior Statements By a Witness .................................................................................................... 41
801(d)(1)(a)- Inconsistent statements ......................................................................................................................... 41
Rule 801(d)(1)(b)-Prior consistent statements (triggered by conduct of cross examining atty) ..................................... 42
Rule 801(d)(1)(c)- Identification (NY doesnt allow) ................................................................................................. 43
II. Rule 801(d)(2): Admissions by party-opponent (partys own words are used against them) .................................. 44
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801(d)(2)(a) Partys Own Statement ................................................................................................................. 44
801(d)(2)(b) Adoptive admissions .................................................................................................................... 45
801(d)(2)(c) Speaking Agent Exception ........................................................................................................... 45
801(d)(2)(d) Employee Exception (NY doesnt follow) .................................................................................... 46
801(d)(2)(e) Co-conspirator Exception (DONT NEED TO KNOW FOR THE FINAL) ................................... 47
III. RULE 803- HEARSAY EXCEPTIONS: Availability of Declarant Immaterial .................................................... 47
Excited Utterance- 803(2) ......................................................................................................................................... 48
Present Sense Impression- 803(1) .............................................................................................................................. 49
State of Mind Exception- 803(3) ............................................................................................................................... 50
Statements made for purposes of medical diagnosis or treatment- 801(4) ................................................................... 51
Past Recorded Recollection: 803(5) .......................................................................................................................... 52
Business Records Exception- 803(6) ......................................................................................................................... 53
Public Records Exception- 803(8) (govt records could also get in under 803(6)) ....................................................... 56
Learned Treatises- 803(18) ........................................................................................................................................ 57
RULE 804: HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE .................................................................. 58
Prior (former) testimony-804(b)(1) ............................................................................................................................ 58
Dying Declaration- 804(b)(2) .................................................................................................................................... 59
Family History- 804(b)(4) ......................................................................................................................................... 61
The Residual (Catch All) Exception- Rule 807 .............................................................................................................. 61
DOUBLE HEARSAY Rule 805 ................................................................................................................................. 61
Rule 806- Attacking and Supporting Credibility of Declarant ........................................................................................ 62
RULE 404- CHARACTER EVIDENCE RULE ................................................................................................................ 62
Exceptions to the Character Evidence Rule ................................................................................................................... 63
404(a)(1)- Character of accused. Applies only in criminal cases. ............................................................................... 63
Rule 404(a)(2) Character of Victim. ......................................................................................................................... 65
Whats not included in the Character Evidence Rule? ................................................................................................ 65
Character Evidence Rule in Civil Cases ..................................................................................................................... 67
HABIT EVIDENCE- RULE 406 ...................................................................................................................................... 68
Miscellaneous Rules: Where offer of proof is excluded although its relevant as a matter of policy ................................... 70
Rule 407: Subsequent Remedial Measures ................................................................................................................... 70
Rule 408 Offer of settlement is not admissible to show liability where statement is made when fault is disputed. ........... 70
Rule 409 ....................................................................................................................................................................... 71
Rule 410- Inadmissibility of Pleas ................................................................................................................................. 71
Rule 411- Insurance ...................................................................................................................................................... 71
AUTHENTIFICATION- RULE 901, 902 ...................................................................................................................... 71
The Murder Weapon ..................................................................................................................................................... 72
Drugs ........................................................................................................................................................................... 72
Photos .......................................................................................................................................................................... 72
Letter Written By Defendant ......................................................................................................................................... 73
Tape Recordings ........................................................................................................................................................... 73
Identifying the Defendants voice- 901(b)(5) ................................................................................................................. 73
Telephone Conversations- 901(b)(6) ............................................................................................................................. 73
Blood Alcohol Results .................................................................................................................................................. 74
Certificate of Conviction ............................................................................................................................................... 74
Deed- Ancient Documents ............................................................................................................................................ 74
Radar- Must show process or system produces an accurate result - 901(b)(9): ............................................................ 75
Rule 902: SELF AUTHENTICATING DOCUMENTS .................................................................................................... 75
902(4)- Certified copies of public records...................................................................................................................... 75
902(5)- Official Publications ......................................................................................................................................... 75
BEST EVIDENCE RULE ................................................................................................................................................ 76
Exceptions: ................................................................................................................................................................... 76
OPINION TESTIMONY- lay witnesses ............................................................................................................................ 78
EXPERT TESTIMONY ................................................................................................................................................... 79
Rule 702: Qualifications (case dependent) .................................................................................................................. 80
Showing the appropriateness of expert testimony .......................................................................................................... 80
Basis for expert testimony- Rule 703 (we dont want speculative opinions) .................................................................... 81
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EVIDENCE:

INTRODUCTION
Exclusionary Rules: 3 principles
Relevance Only relevant evidence is admissible at trial. (cornerstone)
Reliability- Even if evidence is relevant, it still must meet a minimum standard of reliability. Rule
of expert testimony, hearsay rule, and personal knowledge rule ensure reliability.
Policy- Even though evidence is relevant and reliable, some policy may keep it out. Truth may be
secondary in these cases.
Procedural Rules
Fairness- open the door policy: if you venture into an area, the other side gets to go there too.
Automatic right to cross-examination.
Presentation of Evidence
(1) Non-testimonial not from the mouth of the witness
a. Documentary evidence writing, contract
b. Real evidence- the murder weapon
c. Demonstrative evidence- photograph
Testimonial Evidence presented by a witness
a. Is evidence relevant?
b. Is witness competent to testify?
c. Is evidence barred by the hearsay rule?
d. Is evidence barred by privilege?
e. Is evidence barred by the best evidence rule?
(2) Direct (eyewitness testimony) v. Circumstantial Evidence (John heard 3 gunshots, turned
around and saw D standing there with a gun. An inference can be drawn)
Circumstantial Evidence must have been inferred by the witness.
(3) Substantive (P has B.O.P.- its the case in chief) v. Impeachment Evidence (evidence that
defeats the other sides evidence)
Substantive Evidence is to establish a cause of action for a specific factual purpose.
Impeachment Evidence no specific factual purpose. Can be used by defendants benefit to
show reasonable doubt to contradict the opposing side.
(4) Admissibility (question for court) v. Weight (question for jury)
a. Admissibility of evidence - Can the juror hear the evid, will the judge allow jury to hear it.
b. Weight of evid: the way a jury decides the amount of weight the jury should give to an evid.
Process of Proof
(1) Plaintiffs case in chief direct, cross, redirect, recross of witness
(2) Defendants case in chief to disprove Ps CIC. D can introduce affirmative defenses.
(3) Plaintiffs right of rebuttal
(4) Defendant has right to rejoinder to counter rebuttal
Examination of Witnesses
Direct Examination
Cross
Redirect
Recross
Role of Court
Rule 611(a): Trial court has power to regulate the trial.
An objection actively creates the role of the court.
Onus is on the lawyer to call Ws. Exception is Rule 614 gives power to the judge to call
witnesses to ensure justice. Judge must do this in a neutral fashion.
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Objections: Rule 103
Rules are not self-executing. Burden is on lawyer to make objections or else evidence will
come in. If you dont raise the objection, you lose all right to appeal that the court erred.
Opposing side: Must put an offer of proof when evidence is kept out. State what the witness
would have testified outside of jury, to preserve for appellate review based on erroneous
evidentiary ruling. If no basis given or untimely, then not preserve because no objection in trial.
2 components
(1) Objection must be done in timely fashion. Its timely when the ground for objection
becomes apparent: from the question or from the answer. Note: If W answers before you
get to object, can make a motion to strike the testimony.
(2) Must state specific grounds for why youre objecting. I object is a general objection and
doesnt comply with Rule 103.
Rationale: Give judge an idea where youre coming from and alert the adversary to give
him an opportunity to reformulate the question.
Rationale: a reason must be stated with specific objection to let the judge know and give the
opposing side the chance to correct (to get to the truth).
If your objection is overruled, youve preserved it on appeal. [Rule 103 Preservation Doctrine]
The lawyer needs to protect the record. Non-compliance with Rule 103 means either no
objection at all, not timely, general objection, or stating wrong basis.
There is one exception where the court can reverse without an objection:
Rule 103(d) Plain Error Rule: Error screws your client so badly that everybody knows its
wrong. Even though no objection was made, well reverse in the interest of justice. D shouldnt
go to jail because of bad lawyering. VERY LIMITED
Rule 103C is to prevent inadmissible evidence.
Alternatives to objections in court (Advance Ruling)
1. Make a motion in limine (A pre-trial motion) to exclude the evidence before the trial.
Judge able to sit down and research, making a good decision (advance ruling).
Example: If you anticipate that the defense is introducing medical records and you want to
keep them out because you think the blood test was improperly done, make the motion before
trial and ask the judge to rule in advance.
2. Bench Conferences: Are alternatives to open court objections.
Offers of Proof
If the judge sustains the objection and the evidence is kept out, then the side that wants it in must
make and offer of proof to preserve the point for later appellate review. See Rule 103(a)(2)- You must
put forth what the evidence wouldve shown.
Preliminary Questions: Rule 104 (Judge must rule)
Judge can dismiss the jury and hold a mini hearing to resolve an issue. Court is not bound by the
rules of evidence in this determination.
Rule 104(a)(2)
Objection based on factual disputes between lawyers; judge decides the factual dispute by
Preliminary Conference outside of jury. Judge may hear anything at PC hearing.
Rule 104(b) Conditional relevancy.

Your adversary ask improper question, do you object?
Only object when it hurts because you may lose creditability.
Opening the Door If adversary opens the door, you may use that opening for your
advantage.
Appeals Process: Review of Evidentiary Rulings:
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Can only appeal from final judgments. You must wait until a judgment is entered. Exception:
Rulings against prosecutor cannot be appealed when there is an acquittal. You dont have an
appeal if the guy is acquitted (double jeopardy)
Exception: Rule 103(d) Plain error exception rule
Must show it was a proper objection in compliance with Rule 103.
Must show that the ruling harmed your case is a substantial fashion, i.e. that is was prejudicial
error, must show harm. Harmless error does not count.
Argue that ruling was wrong. Appellate court uses abuse of discretion review. You must show
that it was really wrong!
Presentation of Evidence: BURDENS OF PROOF
(1) Burden of Production
Obligation to put forth evidence. Ex. P has BOP to prove all evidence by a preponderance of
the evidence in the negligence case.
Based on substantive law.
Enough proof that a reasonable jury could find for your side based on the establishment of all of
the elements prima facie case (preponderance of the evidence).
(2) Burden of Persuasion
Is my case better than theirs, based on the sufficiency of the evidence. Issue for jury to resolve.
Its up to the lawyer to call witnesses who establish your burden of production and persuasion.
Based on substantive law.
Jury will decide on the weight of the evidence.
Alternatives to Evidence
Law of Presumptions
Judicial Notice
Use of Stipulations
I. PRESUMPTIONS
Rule of law which provides that if you prove a set of facts, another set of facts will be taken as
established.
Rule 301: Any presumption in federal court is governed by federal presumptions
Rule 302: When you are in federal court, apply federal presumptions.
Presumptions: procedural devices that act in lieu of evid. They come from fed and state law.
Presumptions are usually tied up with substantive law.
Basic idea: if you prove the basic facts, the law will presume the event and the jury MUST
accept the presumed event unless the other side shows it didnt happen.
Examples: Federal mail presumption= you represent the insurance co. that cancelled Ps policy.
Ins. co, sent out cancellation notice. Then P gets injured. P sues ins. co. The law says that
cancellation policies arent effective until received. BOP is on ins. co, to show the insured received
the notice. You can prove this with the presumption that a letter thats properly posted and dropped
in a box is always received.
Presumption about missing persons= If someone hasnt been heard from, the presumption is that
the person is dead.
NY car ownership presumption= Anytime a person is in someone elses car, theres a
presumption that they have permission to drive the car.
Federal Discrimination presumption (Burdine)= You have to prove that your client was
discriminated on the basis of sex. If you prove certain facts exist, then that will give rise to the
presumption that she was discriminated against.
Dealing with Presumption Problems: 3 Situations
Proponent establishes all basic facts about the presumption and theres no contrary proof of
basic or presumed fact.
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Example: Ins. co, has proof from mail co. that the letter to John Smith was postmarked. This
means it was received. If there is no contrary proof as to the presumed fact, presumed fact is
taken as gospel and accepted by the jury.
RESULT: Shifting the burden of going forward to the other side.
Example: You leave you car with a parking attendant. You come back and the car is destroyed.
Bailment presumption: if you deliver personal property in good condition and you get it back
destroyed, theres a presumption that bailee is responsible. If car co. does nothing to challenge
the presumed fact, then the jury must accept this fact. (Its tantamount to a direct verdict)
Example: Sex discrimination (Burdine)
Woman didnt get the job but shes qualified. She sues for sex discrimination under Title VII.
The establishment of prima facie case creates a presumption that the employer unlawfully
discriminated against the employee. P just has to do to meet the burden is testify to these four
facts: (1)shes a minority, (2)shes qualified, (3)she got rejected, and that (4)a male got the job.
If the trier of fact believes Ps evidence and the employer is silent, the court must enter
judgment for the P because no issue of fact remains.
Rationale for presumption: Policy. It puts onus on the employer since hes in the best position
to show why he discriminated. This relieves P from any obligation to find additional evidence.
When basic facts are challenged
What happens if theres doubt about the basic facts?
Jury gets the charge: you are to determine if P has established basic facts. If yes, you must
take the presumption. If not, you must find for D. Suppose the company shows that the
female employee is not qualified. If you find that she has a PHD, then you must find for P.
POINT: Jury determines the basic facts once the facts are controverted.
Example: P is a harpsichordist. She drops it off with Atlas moving co. Now theres a crack.
How doe P meet her burden? She relies on the bailment presumption. I gave it to them in
great condition. Atlas controverts Ps testimony with Keenans deposition. Keenan says it
was cracked before shipment. Who do you believe? Keenan or Plaintiff? The jury decides the
question. Jury instruction: If you find that harpsichord was undamaged, then you must find for
P. If you find it was damaged before shipment, you must find for D.
POINT: Ds lawyer should challenge the basic facts!
When basic facts are not disputed.
When D puts in evidence controverting the presumed fact (i.e. discrimination).
Note: With the mail case, you need to rebut with more than just a denial of the facts.120

Burdine example: in this situation, youre going right to the presumed fact. Yes, its true that
shes qualified but we didnt hire for some other reason. The burden shifts to D to rebut the
presumption, but D must have legally sufficient evidence (i.e. a legitimate, non-discriminatory
reason: ex. We had someone else who was even more qualified) If D rebuts the presumed fact,
the presumption raised by the prima facie case is rebutted. Now the presumption disappears
from the case. This is called the Thayer theory or bursting bubble theory. Once you
introduce proof to counter the presumption, it disappears. Now the presumption is an
inference but the jury doesnt have to find for you. Now P must attack the basic facts
(challenge what D said about the more qualified person) Ds evidence has no raised a
question of fact for the jury.
Note: In reality with these discrimination cases, its still a presumption case even if D
introduces evidence to rebut.
Inference = logical proposition that jury may reach.
Presumptions and Criminal Cases
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Rule: Presumptions are only permissive not mandatory in criminal cases. The trier of fact is free
to credit or reject the inference. Mandatory presumptions in criminal cases are against due process.
Example: Hitchhiker is in a car with 3 others. Car has 3 pounds of cocaine. Trooper stops them.
NY law gives rise to presumption that anyone in that car possesses the cocaine. This presumption
is permissive. Jury can still believe the hitchhiker.

JUDICIAL NOTICE
Definition: Process by which the court accepts certain facts as established without demanding an
evidentiary showing of support at trial.
Ex. Have to prove that Balston Spudd is the county seat of Saratoga. Its like a presumption,
but it cant be rebutted. It must be accepted as fact once the court takes judicial notice.
Rationale: Some things are truisms.
Ex. 12 months in a year. Pataki is the governor of NY. You cant establish to the contrary.
RULE 201: What facts can be judicially noticed?
201(a) Ajudicated facts- Judicial notice encompasses essential facts of a case. The who, what,
where, why of the case. Any fact that you have to prove at trial.
201 says that is must be a fact that is not subject to reasonable dispute.
201(b): 2 Categories of undisputable facts
[1] GENERALLY KNOWN
Its a fact that is generally known because its a visible, open fact (notoriety)
It need not be universally known: Ex. Sponslor is the dean of ALS. The rule tries to prevent
a fact from being judicially noticed just because theres an ignorant few.
Virgin Islands case: Judge applied own private knowledge in this case. (he knew that a jury
member was happy to serve on the jury for $) Just because the judge knows it is not enough.
It must be a fact thats known in the community.
It cant be known by one person, but it doesnt have to be universally known.
Exs of generally known: The sun rises. Bush is President of the U.S. Schoharie is west of Alb.
Suppose you have to prove that NY is discriminating against women in teaching positions and
that women are stuck in elementary schools. Caufield: Court took judicial notice that
historically in NY, most elementary schools in NY were composed of women. Judicial
notice spares you the burden of digging up evidence.
Further examples of what courts have taken Judicial notice of:
Democratic Party is in control in St. Louis
Postal workers go on vacation during Christmas (thats why SSI checks are late)
The KKK is a white supremacy organization whose policies are implemented by acts of
terror and intimidation.
HYPO: Youre trying a 2
nd
hand smoke case. In your clients workplace, smoking was
permitted. By inhaling the smoke, she got cancer. Can you take judicial notice that
inhalation of smoke causes cancer? No. not generally known.
HYPO: Your client has been bitten by a German Shepherd. Can you take judicial notice of
German shepherds being viscous? What about pitbulls? Where do you draw the line?
HYPO: Food poisoning case. Your client is a restaurant. Someone who ate pastrami got
ecoli. Your client says it was cooked at 98 degrees and all the bacteria is killed in that temp.
Under 201(b) it could be judicially noticed but should it be? Probably not. It hasnt reached
that level of notoriety. Dont bet on judicial notice.
HYPO: Getting from downtown Troy to Albany. Can you take judicial notice that you
cant get there in 15 minutes?

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[2] Capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
This is talking about a fact memorialized in a source thats deemed accurate.

Example: On October 2, 1990, there was 2 inches of rain in Albany. All you have to do is
show that this source is accurate.
HYPO: Custody dispute. What day was Fathers Day in 1996. You go to a calendar. This
is a source that is deemed accurate.
HYPO: Precipitation. You can show what the weather was 5 years ago by going to the
national weather service.
HYPO: Robbery case. Witness says that he saw the robber but is was 10PM. National
Weather Service says there was full moon that night. Its an accurate source
HYPO: You have to show that 3 years ago, the Grateful Dead was here in Albany on
August 14. Research the Times from that date. The newspaper is accurate.
Note: You can also use this to describe the KKK. You can show the judge the Britannica.
POINT: It boils down to whether the source was accurate.
HYPO: You need to prove that the Grateful Dead was here on Aug. 14 and the only source
you can find is Metroland. Is Metroland accurate?
In practice, once you can show people use the source and it has been there for a while, it is
usually deemed as accurate. Rule 201(b)(2) can be used to prove some obscure things.
Note: When you have disputes, its not readily accurate.

201(g): Make sure you consider Judicial notice. It is very broad and the effect is significant.
In a civil action, they are conclusive. Judge must tell the jury to accept the fact. It prevents
adversary from showing evidence to the contrary.
In criminal cases, its permissive not conclusive. Cts shall instruct the jury that it may but is not
required to take judicial notice.
Example: Jones is charged with illegally intercepting phone conversations. Judge tells jury to take
judicial notice that Bell South is in interstate commerce. 5
th
cir. reverses. Its unconstitutional to
tell the jury to accept this.

Applying Judicial Notice in the Real World
HYPO: You must prove that on July 4, 1991, the sun set at 8:30 pm.
201(e) Your honor, I ask you to take judicial notice of this fact. Heres there printout from the
Albany Times Union. Now you have established a basis. Now the judge has to hear you.
201(f) : It can be done at any time. But adversary is given a chance to respond.
Ex. You bring in a book that says a pitbull is viscous. Adversary brings in a book that says a
pitbull is not viscous. Now its a jury question.
Note on generally noticed facts- 201(b) recognizes that the source can be counsels oral
representation. Court will accept that its generally known that Sponslor is the dean.

Variation HYPO: Robbery occurred on 9/23/96. Ds alibi is that he was home watching NY Jets on
Wednesday night, the 23
rd
. As prosecutor, how do you rebut this? Its generally known that football
games are not played on Wed night- theyre played on Mont. Go into newspaper archives, the TV page
and show theres no game on this date. Defeat his alibi by taking judicial notice of the schedules.
As Def counsel, you could argue that the newspaper is not accurate. There are always last minute
changes by the network. But then the court might ask the defense counsel more. D may argue that he
was watching a tape of the game. Or even if hes watching the game live, D could argue that he had
some satellite dish thats not picked up by the newspaper.
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Kingston kidnapping case: A man was kidnapped from Kingston and found dead in S.I. Fed offense
kidnapping (crossing state lines) is punishable by the death penalty. In state kidnapping is punished by
25-life. US Atty wants to make this a death penalty case. He wants to who that this a fed case by
saying that you can get from Kingston to S.I by going through NJ. Can you ask the judge to take
judicial notice of the fact that the fastest route from Kingston to SI is through NJ?
{note this isnt generally known, but is there a source? Maps, AAA . Once you get a memorialization
of what you want, the only question is whether its an accurate source.}
Is AAA accurate? Think about what the defense lawyer who doesnt want the fact judicially noticed.
How do you convince the court not to take judicial notice?
Show source is inaccurate
Show source is disputable (try to get another tripticket)

POINT: You want to put in evidence thats hard to rebut. Thats what judicial notice can do. In a civil
case, once judge instructs the jury, thats it. D lawyer should fight like hell not to take judicial notice.

Rule: You dont make evidentiary objections against judicial notice.
Example: P sues D for injuries from a car accident. P wants to show the intersection wasnt slippery.
P asks the court to take judicial notice that it didnt rain and the pavement was dry. P introduces a copy
of the official weather bureau. D makes a hearsay and authentication objection. This is not a proper
objection. Note: Make sure you understand what is being judicially noticed. You could argue no rain
to the jury and make the inferencethat its dry. But you cant get judicial notice that it didnt rain
AND the pavement was dry.

USE OF STIPULATIONS
As a pretrial order, parties can agree to specific facts so they dont have to be proven at trial.
Example: You are defense counsel. You dont want jury to know your client had 40 drinks. You
will want to accept the stipulations that he had a few drinks. Prosecutor will not want to accept the
stipulations. He will want to get a live witness to say how much D drank!
Stipulations are not mandatory. They are optional.

RELEVANCY
Basic Rules
1. Rule 401- Relevant evid means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.
2. Rule 402- All relevant is admissible (beware-exceptions)

2 Components
(1) Legal Relevancy
(2) Logical Relevancy (probative)

3 Questions you must ask:
(1) For what purpose am I offering this evidence?
(2) Is the purpose legally provable?
(3) If yes, ask yourself if this evidence is logically relevant.

Legal Relevancy
How do you determine if evidence is legally relevant?
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Look at the substantive law of the case.
For negligence, you need proximate cause. Substantive law tells you what you dont have to prove.
POINT: Know the substantive law governing your case.
Make sure your purpose is legally provable under the controlling law.

Ex: EE injured while working a machine and he loses a few fingers. He sues ER for damaged fingers.
You represent ER who says his fingers were sliced off because he was eating pizza while working. ER
would want this in for contributory negligence. Can you introduce this? No. Workers Comp. Law
says that the employees inattentiveness makes no difference. If youre injured, youre compensated-
evidence that he was negligent is kept out. It is of no consequence to the case. The substantive law has
made this decision. We compensate employees for their injuries and thats the end of it.

Example: D is on trial extortion using interstate commerce. D threatened to reveal facts to injure
someones reputation unless they paid him. D wants to introduce evidence that what he said was true.
Court rules that this evidence is legally irrelevant. Truth is no defense to extortion b/c substantive law
says it is not a defense. Even if the facts are true, you cant just use it to try to extort $ from someone.

HYPO: D is charged with vandalizing a car. At time of incident, he says Im going to get you, you
called my mom a SOB DA wants this in because it shows motive. Motive is always legally provable
and relevant in a criminal case. Now defense wants to offer to show provocation. Yes I wanted to get
him. The guy called my mom an SOB. Is this legally provable? Is this a defense? No. Crim law says
that mere provocation is not a D. Exception: extreme emotional disturbance in an intentional murder.
Point: The same evidence can be used by both prosecution and defense. The difference is the purpose
and the substantive law.
Rule: Always know your purpose and then make sure your purpose is provable.

LOGICAL RELEVANCY
Once you establish your evidence is legally relevant, you need to establish logical relevancy.
RULE 401: TENDENCY (any tendency at all). D had a fist fight a month ago. 2 weeks later he
makes a death threat. Now someone is dead. Is this logically relevant? Is there a tendency that the
threat would establish he actually committed the act? How do you show the threat means he had a
tendency to commit the murder?
RULE: Evidence that you offer need not conclusively prove the fact. You just need a tendency. Its a
very loose standard.
Rule 401/402 talk about a sense of common sense and experience. Theres no formula of when
offered evidence has a tendency to make the existence of the fact to be more or less probable.
X--------------------------Y
You need to establish Y but you only have X. Whats the basis of making the leap from X to Y? How
do we bridge the gap? EVIDENTIAL HYPOTHESIS (a link based on human nature). Theres an
acceptable intermediate premise about the ways of the world or human nature. The evidential
hypothesis is a premise of how people act. Premises come from your own life and common experience.
Explanation given about the connection b/t the offered evid and the thing you want to est.

Example: Im in an auto accident. I didnt have my glasses on. They want to show I was
breaking the rules of the road. How do you get from no glasses to accident? Whats the
evidentiary hypothesis? No glasses- you cant see well.
Example: I have 5 shots of Johnny Walker. 1 hours later Im in an accident. Premise: If
you drink a lot of alcohol, then youre inattentive.
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Example: I make a threat. I later kill someone. Evid. Hypo.= People who make threats carry
them out. Remember that the test is a tendency. Its up to the jury to decide whether youll
carry it out.

Question: Cam you ask the judge to take judicial notice of the fact that if you drink 5 shots of vodka
youre inattentive? Remember the test is whether its generally known. The opposing counsel can
bring in contrary evidence to show that alcohol effects everyone differently so you dont want to rely
on judicial notice but you can try. If the judge doesnt take judicial notice, then show a tendency. The
tendency and factual premise is on indisputable but thats ok. It doesnt have to be conclusory.

Example: Bank robbery. Proof is that D has been out of a job for 6 months. Hes found with
$5000 in his pocket. Whats your premise if youre the DA? Evid. Hypo: Someone who just
robbed a bank would have $5000 in his pocket. Premise: people who are out of work dont
carry around $5,000.

Note: Its very difficult to keep out offered evidence on the ground that its not logically relevant
because you would have to show that there is no tendency at all.

The guilty flee: D is charged with bank robber. DA wants to offer evidence that when police
were at his door, he fled. This is legally relevant. Is this logically relevant? Evid. Hypo: The
guilty flee. If you have done something, you flee from the police. Its not conclusive but all
you need is a tendency that when you are guilty of something, you have a tendency to flee.
Note: once the evidence comes in, D must explain it away.

HYPO: D is on trial for murder, victim is husband of Wife. Hes charged with killing Ws
husband. Prosecutions evidence= love letter written by D to W. What purpose is this? How
does this est his guilt? Evid Hypo: You are relying on circumstantial evid. H is standing in the
way of D and Ws relationship. This shows that the perpetrator wants a relationship with the
wife. If someone writes you a love letter, they want something in return. When you love
someone, you want a monogamous relationship. He probably wants W exclusively so its not
irrational to say that you will kill someone who is in the way. Theres at least a tendency.
Result: Now we have a circumstantial case of murder.
Deductive reasoning: We send love letters because we like them; we want a monogamous
relationship; if we want a monogamous relationship, other people get in the way; kill the person
thats in the way! This case would go to the jury!!

Developing You Evidentiary Hypothesis
McQueeney: P claims he fell on a dock. D thinks hes a faker and P says there may be an
eyewitness. W testifies in his deposition that he saw P slip and fall. But D later finds out that
W was not even on the ship; he was on another ship- hence, W lied. This is enough to impeach
his credibility and have the jury discard it but P decides he doesnt want to use him as a witness
anymore. But now D knows that a witness that P provided perjured himself.
X----------------------------Y
Liar P wasnt injured how do you get from X to Y?
Purpose for evid= to show P suborned perjury. D wanted to argue that subornation was evid of
how weak Ps case was. Evid. Hypo: If you encourage lying, shows you have a weak case.

Note: The standard of review will be abuse of discretion. For evidentiary rulings.
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Q: Does the inference always follow? Remember you dont need conclusive. It just needs to
be more probable than not.
Result: Evid is admissible. Jury will decide. Theyll hear the testimony and decide if hes
suborned perjury. If yes, he must be a faker.

LaFroscia: LaFroscia is a mechanic who goes to Europe on his honeymoon. He brings a
buggy to Europe and they find tons of marijuana in the car. D says hes innocent- he doesnt
know how it got there. Prosecutor must establish knowledge. He denies having knowledge.
Prosecutions evidence: he carries a criminal lawyers business card in his wallet.
X-----------------------------Y
Bus. Card knowledge
Evid. Hypo: If you have a business card in your wallet, you probably know that youre going to
be in trouble. Its not conclusive, but all you need is a tendency. Little reason for this mechanic
to take a crim attys card on his honeymoon. Once this comes in, he has to explain it away.
Q: Is guilt really built on logic when they convict him on a business card? Suppose LaFroscia
is an importer/exporter and he has the card. It all depends on the circumstances.

HYPO: Car collision. Both drivers killed. Whos at fault. 30 miles before the accident, a
motorist says D was going 70 mph. This is the only proof you have that D was speeding. Evid.
Hypo: If he did it 23 minutes earlier, hes probably still going this fast at the time of the
accident. Once a speeder always a speeder. [Under 401, theres a tendency, but note that 403
may still keep it out]
Facts that would strengthen the inference: the guy is driving a red car with a z racing stripe.
People with racing cars drive fast.
Point: Its relational. Look at the time and circumstances. Isnt this the guy whos the type to
speed (compare with Hutters mother driving a Plymouth)

HYPO: P is injured when a piece of concrete falls on his car. 4 boys are seen running away 6
blocks from the scene. How do you make the argument that b/c kids are running away, they
threw the cement?
Evid. Hypo: the guilty flee. Kids get into these situations and dont want to be caught. Theyre
running away. They must have deliberately thrown the cement in the street.
Note: What if it was 3 girls running away or 3 people grandmas age? See the relational
concept.

HYPO: You want to prove that the cop was drinking on the job.
Proof #1- there was a full can of beer in the cupholder
Obviously youre drinking, you didnt get a chance to finish. (strongest inference of all 3).
Proof #2- theres an empty can
Who goes around with an empty can of beer? Theres an inference you just drank it.
Proof #3 - theres a full can
People rarely buy one can of beer-usually 6 packs. He must have drank the other 5. Are
you willing to throw him off the police force for this? Most judges wont let this in.
In each situation, theres a tendency. It would come in and the jury would weigh it.

HYPO: 12 kids are murdered. Duane Williams is charged with murdering 1 of the children in
Atlanta. Over the course of the year during his detention, no other children are murdered.
Prosecutor wants to show- since we got our man, the murders stopped. (another explanation-
maybe the other killer fled) But just because there are innocent explanations doesnt preclude
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its use. Having said this do you really want to send someone to the death chamber on this type
of proof? This is where Rule 403 comes in.

RULE 403
Always ask yourself these questions (1-3 are 401, 402):
(1) What purpose is the evidence serving?
(2) Is the purpose legally provable?
(3) Is evidence logically provable?
(4) If its relevant, can 403 keep it out?
Evid may be excluded if probative value (logical value) is outweighed by unfair prejudice.
Suggests that we have to now take into account how STRONG is the tendency
When theres a danger of jury misusing the evidence or being inflamed by the evidence, that
evidence can be excluded even if its relevant.
Note: On every hypothetical weve done, theres a probably 403 issue. Its done on a case by case
basis. Keep in mind that the standard is unfair prejudice not just prejudice. Note that all evidence
is going to be prejudicial to one side but the test is unfair prejudice.
Ex. P slips and falls in Price Chopper. D argues contributory negligence. P saw the milk. This
is a good defense. Its legally provable. But what if D wants to introduce that P is a child
beater. Ps attorney argues that its irrelevant. Assuming that she is a child beater, how does it
show shes negligent? D must come up with evid. Hypo: Its well known that child beaters are
careless in their life. Judge can let it in because theres a tendency, but when youre convinced
relevancy is very slight, argue 403. Theres unfair prejudice: People hate child beatersthe
jury will punish P and disregard all other evid.

Applying Rule 403
Ballou (HO4): Car accident. One driver is killed. Wrongful death action brought. D argues the
accident wasnt our fault- Decedent (P) was drunk and contributorily negligent. To prove that that they
introduce hospital blood tests. Tests say he has high alcohol level. Evid. Hypo: You cant pay
attention when you are impaired by alcohol. Impairment means you drive carelessly. This passes the
tendency test, but P counsel argues 403 because the test would unfairly prejudice the client.
HELD: Evid of intoxication can come in. This evid is adverse but thats not enough to exclude it.
Prejudice is not unfair because Ps intoxication is a legitimate ground for finding contributory neg. 403,
prejudice must be UNFAIR, all evid is prejudicial or its not material (but its not necessarily unfair)
Unfair Prejudice: Tendency to suggest a decision on an improper basis (commonly an emotional one)

ANALYSIS
Whats the probative value? i.e. how strong is the tendency? The stronger the tendency the better your
argument will be. (12 beers & a bottle of scotch- 10 on the tendency scale)
Unfair prejudice?
(a) identify prejudice
(b) Is there a possibility of misuse? Emotional? Is it going to excite the jury?
(c) 1-10 scale. (Jury will make decision taking fact that P was drinking)
Balancing
Does danger outweigh probative value? The danger of prejudice in Ballou is slight. Potential for
unfair prejudice does not substantially outweigh probative value.

Rules of Thumb
The stronger your evidentiary hypothesis (logical argument) , the more difficult it is to
exclude the evidence under 403. (If balancing test is equal, 403 loses)
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The lower the probative value, the weaker the hypothesis, the easier it is to exclude (if
potential prejudice outweighs)
Rule 403 is the most important evidentiary rule because it can keep out any evidence that is
offered. Defense counsels most important ruleits the best way to keep things out.

Consider the supermarket hypo: Proof= youre a child beater, therefore youre negligent.
The probative value is around 2. Theres not much of a tendency. If you want to keep this out,
you must identify the
Prejudiceno one likes child beaters. Then ask if it leads the jury emotionally? Whats the
possibility of the jury overreacting?
1-10 Balancing test- I know it when I see it. You know that people hate child beaters. Probative
value of hypothesis is so low, its going to be balanced out.

HYPO: Youre leaving the LS parking lot. You strike a car. Q: Were you negligent? Car you hit
stopped suddenly. In your car is an issue of Playboy. Ps lawyer wants to introduce evidence that you
had the magazine because theres a tendency that you were reading the magazine and got distracted.
Ds atty would want to keep it out b/c jury would think youre a scumbag. Note: If you are Ps atty,
you want to select elderly women for the jury because they dont like smut. What if its TIME instead
of Playboy? What if its a woman instead of a guy? Point=its relational.
Dont forget that you dont get to 403 unless you pass 401 (tendency)

The element of NEED
Old Chief: D is charged with assault using a deadly weapon and violating a law which prohibits people
with prior convictions from possessing firearms. Old Chiefs lawyer doesnt want the jury to know that
he has prior felony convictions. He wants to stipulate to the fact that he has a prior felony so the
prosecution wont be able to get out the full force of his prior conviction. D argues that failure to
stipulate is a violation of 403.
Rule: Does proponent really need the evidence? When you look at prejudice, also ask it theres an
alternative? Supreme Court says there is an alternative. The jury doesnt need to know the specifics
of the prior conviction. There is no reason why the government couldnt have taken the stipulation. If
D is going to stipulate, then you dont need evidence of it. It doesnt have to come in.

Compare Parr (HO 1c) D was charged with interstate transportation of kiddie porn. D denied having
knowledge of transported material. D says hell concede that the material is pornographic. Prosecutor
wont stipulate. He wants a full case and he wants the jury to see the details of the film.
HELD: Prosecutor has every right to reject a stipulation. D shouldnt be able to tell the prosecutor
what to do. After Old Chief, is this still good law? Yes. Old Chiefs holding is limited. When it has
to do with a prior conviction, theres no reason why the prosecutor cant take a stipulation. Parr is still
good law when it comes to other facts.
Note: If Parr came out today, the judge would ask if he really needs the evidence.
Note: The prosecutor has the right to put on a case, to show the crime in its entire context. Jury should
be able to see the big picture, but its a matter of crossing the line.
Point: You dont want to reversed on appeal. (start from the jury selection to paint the picture of guilt)

Other 403 Concerns
1. Misleading the jury: operates the same as unfair prejudice. Ensures jury will decide on reason.
2. Confusion of the issues: Ct is concerned that if you let evidence in, it will open up all other
issues. Ct has the power to prevent excursions into side issues
(ex. P slips in supermarket. Evidence that shes a child abuser confuses the issues)
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3. Cumulative evidence
You may have 10 eyewitnesses at the intersection of New Scotland. Judge will allow you to have 2
or 3 but not 10. This is to move the trial along.

HYPO: D is on trial for attempted sodomy on a 10 year old boy. D is a 52-year-old attorney. D denies
it. No medical testimony, no evidence. Prosecutions proof: D had the book Joy of Sex in his living
room. Theory: This guy is a sex fiend and hes acting out now.
2
nd
proof: D and his wife sleep in separate beds. Theory: This is unnatural. An unnatural person
would commit sodomy.
3
rd
proof: Ds son masturbated in a field 3 years earlier. Theory: the whole family is perverted.
All this evidence sets up the guy as strange. Does this stuff have probative value? Assuming theres a
tendency, isnt the prejudice substantial? On appeal, the court said this stuff was too inflammatory.

HYPO: The Battered Wife, Woman is beaten to death. Husband says its an accident. Prosecution
wants to put evidence that wife had gone to a battered womens shelter 2 years earlier. Evid. Hypo: If
a woman has been beaten by her husband, she goes to a shelter. He mustve beaten the hell out of her.
We know that most battered women dont leave so for her to leave it mustve been extremely serious.
What does this do to Ds alibi? It shows intent.
Is there probative value? theres certainly a tendency.
Is it prejudicial? Jurors dont like people that abuse their wives. This is a close call because 2
years passed. Some judges think that the intent is still there. (see Character Evidence Rule)
Question: In light of Old Chief, is there any alternative way to show that he mustve meant to kill her?

HYPO: D is on trial for murdering an elderly woman. Prosecution wants to put proof that D has the
tops of womens stockings. Why? The top part of the victims stockings were torn off. Prosecution
says: there are tops missing from the victim and D has tops of stockings; this guy has the need for tops
of womens stockings. Prosecution puts in circumstantial evidence to paint a picture of guilt. (we have
a ring, fingerprints and stockings) Admissible? Wouldnt jury think this guy is a weirdo? Court says
its probative. Evidence came in and D went to the death chamber.

HYPO: ISSUE: The need of $
1. Woman charged with possession of cocaine with intent to sell, she denies intent to sell. DA wants
to show that shes going through a divorce and is having problems paying bills. Admissible? What
are the chances that a woman will do this to pay bills? Best chance of coming in.
2. D is a 45 year old male charged with stock fraud. Prosecution wants to put proof that house which
is worth $400,000 is being foreclosed. Admissible? Some chance of coming in.
3. 25 year old woman charged with burglary. Prosecution wants to put in evidence that shes on
welfare. Admissible? Is it unfair to penalize someone based on status? No chance.
Most courts say that evidence will come in with the first 2 because it shows a motive (need for money).
But a court wont let the welfare evidence in. The problem is status association implicit with welfare.

Non-testimonial Proof
Same rules apply. You must show relevance.
Example: Murder weapon, photo of crime scene. Why relevant? Its demonstrative.
Note: You may not be able to put autopsy photos in.
Rule: You must show relevance with demonstrative evidence.
Stevens: D is on trial for murder of a young woman. Prosecution puts 2 sets of photos. A photo of
her when shes alive and one of when shes dead at the crime scene.
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Prosecutor wants a live picture to show the jury what she looks like. It puts a face with the crime.
Jury can see who theyre dealing with. But is this picture relevant? You need a provable purpose.
You need it to be logically relevant.
Court of appeals held: Its not necessary for the jury to see it. Merely because it satisfies the jurys
desire to see a face, thats not good enough. Court says its not relevant, but maybe its too
prejudicial. Unless theres a legal need for it, a photo of the victim is not admissible. The court
doesnt want the jury to be numbed by a picture of the victim at her best.
But what about the picture afterwards showing the stab wounds, etc? A coroner may already testify
but a picture is worth 1000 words.
Note: The Court will always permit you to show photos of the crime scene unless its too
prejudicial. It helps the jury assess the testimony. Jury is entitled to see the wounds that are
inflicted, but what if the pictures are too graphic? Go to Rule 403. Example: Trial judge didnt let
photos in where victim has 165 stab wounds.

Whether or not its prejudicial is a question of degree. After Old Chief, ask if theres an
alternative? People v. Wood: Gruesome photos shouldnt be excluded merely because they
portray a gruesome spectacle. Dissent: Photos serve no purpose except arousing jury emotions.
Example: Murder of woman via the bed posts. Prosecution brings the whole bed in. Point:
make sure theres a purpose. Purpose here: this is the murder weapon!

WRAP UP of 403
Rule 105: Authorizes trial judges upon request to tell the jury not to use evidence. When evidence
comes in over objection, the other party may ask for the limiting instruction. Ask judge to give the
jury instructions for its limited purpose.
Example: D has a criminal record. Proof may come in. TC tells jury: I instruct you to use this
testimony for credibility purposes. Dont use testimony for once a criminal always a criminal.
Idea: Minimize prejudice. Its reversible error if the judge doesnt give the instruction.
Problems
1. Will the jury listen to him?
2. Tactical issue: It now emphasizes the evidence. Counsel may not want jury to have the
suggestion. Limiting instructions tend to stay in a jurys mind.
3. Legal issue: Suppose you make a 403 argument and its rejected. Then you ask the court to
give the jury a limiting instruction. Does the limiting instruction mean you waive your 403
argument on appeal? No. Attorney can still argue 403 on appeal.

Resolving Relevancy Objections
Rule 104: Straight relevancy objections are governed by 104(a). The trial judge is the sole arbiter of
issues of relevancy.
3 step procedure:
1. Objection
2. Proponent offer evidentiary hypothesis
3. Objecting side says its prejudicial
The trial judge doesnt need to take judicial notice. He doesnt need proof. He can just rule on it.
Note: Thats why you should make an in liminine motion.
104(a)(b)= the judge isnt bound by the rules of evidence.
Rule 104(b)- Conditional Relevancy
When relevance is conditioned on another fact. Many times evidence isnt relevant until other
evidence is in.
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Ex: Slip and fall in Price Chopper. Basic rule: Theres liability if theres a dangerous condition
and the owner had notice of it. You represent P and call a W. W says she heard the store clerk yell
that theres a spill on the vegetable aisle. This means- the EE gave notice to the management.
ISSUE: Was it heard? Just because the employee uttered it doesnt mean it was heard. Its
conditionally relevant upon the fact that is was heard. So you need witness #2 to say that he was
standing next to the manager when he went to the vegetable aisle.
Conditional relevancy is all about connecting up. If its not connected, judge will strike the
testimony of Witness #1.

COMPETENCY OF WITNESSES [Rules 601, 602-607, 401, 403]
A competent witness is one who is permitted to be called as a witness, take oath, and testify.
An incompetent witness is not permitted to take the oath and testify.
Rule 601: All witnesses are presumed to be competent. 2
nd
sentence provides that when youre in
federal court on a diversity basis state competency rule will also govern. The following are
preserved under the federal rules:
1. Dead Mans statute: If you sue a decedent, cant testify as to conversations you had w/ him.
2. Divorce Law: NY prohibits a spouse to testify about adultery committed by another spouse. It
must come from another witness.

RULES OF WITNESS COMPETENCY
1. Witness must have personal knowledge (602)
2. Witness must have capacity (testimonial qualities, the ones in bold, a-d)
a. Capacity to perceive
b. Capacity to recall
c. Capacity to understand the difference between truth and falsity.
d. Capacity to communicate
3. Witness must take the oath or affirmation (603)

Personal Knowledge requirement
The substance of the testimony must be perceived by the witness (smell, hear, see)
Reading about it is not personal knowledge. Must be personal, not 2
nd
hand.
Unlike the other rules of competency, theres no presumption of personal knowledge. When you
call a witness, you must lay the foundation that the witness had personal knowledge.
Note: Itll raise an objection if you dont lay personal knowledge (do it step by step)
The rule is one of convenience. You dont need other W to show personal knowledge, can be Ws
own testimony.
How much evidence must be shown? Any evidence to support a finding.
Ex: Woman has questionable capacity because she didnt have her glasses on. But shes no
incompetent. Jury just wont believe her b/c she made an assumption.
This is a Rule 104 [conditional relevancy] determination. For the jury to accept her testimony, they
have to decide whether she actually saw what she said she saw.
Its difficult to exclude a witness for lack of personal knowledge. You exclude only when its
impossible to make the claimed observation. You dont need 100% certainty, so long as the witness
isnt guessing. I believe is sufficient to support a finding.

Testimonial Qualities
Only will arise when ones capacity is impaired (i.e. someone whos severely brain damaged or a
young child) Note: There is no minimum age or IQ level.
Mental impairment- Leading case is Lightly.
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Lightly is on trial for assaulting a prison inmate. He calls McDuffy. At trial McDuffy was ruled
incompetent because hes adjudicated criminally insane and theres evidence that he hallucinates a
lot. Trial judge says hes incompetent. Lightly appeals.
Q#1 Who has the burden? Every witness is presumed competent to testify. Burden is on opposing
party to show McDuffy is incompetent. Prosecution must put in proof of mental impairment.
There is proof in that hes criminally insane but the court rules that just because youve been
considered insane doesnt mean youre incompetent. Question is whether you have the
mental capacity to testify. Mere status is not enough.
RULE: It must be shown that by reason of criminal insanity, you lack mental capacity.
Note: The govt shouldve put a shrink on the stand to say he doesnt have the ability to testify.
But youll need a lot of medical proof. Showing low IQ alone wont prove mental impairment.
Mental impairment situations are reserved for people who have real mental problems and alcoholics
and drug addicts arent prohibited from testifying
Note: Lightly called McDuffys physician to the stand and had him testify to McDuffys ability to
perceive, recall, etc. Atty didnt have to do this. The DA has the burden under the presumption.
Who makes this determination? 104(a). The court makes it.

Age
Rule: As long as the judge is satisfied by the voire dire that the child understands her obligation
to tell the truth and knows the difference between truth and falsehood, shes competent.
Result: A six year old is presumed competent to testify. Its up to the other side to show that the
child lacks testimonial qualities (Ricketts) (see Voire Dire HO)
Note: The voire dire is done by the lawyer who calls the child witness and its done in the
presence of the judge (and jury). Basic purpose is to show that child has requisite brain matter-
recall, relate, truth and falsity. Basic questions are asked.
What age triggers the voire dire? Most courts say 9, but there are exceptions.
The judge rules on competency, not the jury, but this is done in the presence of the jury
because they have to decide if the witness is credible.

Rule 603- OATH or AFFIRMATION
Purpose: To strike fear into the witness. Its reversible error if the witness is not sworn in. By taking
an oath you are now subjecting yourself to perjury
Affirmation: lots of atheists dont swear to God so Modern Law allows an affirmation.
Fowler: Any type of commitment you make to the court that you will tell the truth is sufficient.
Example: I promise to tell the truth. (see p. 531)
Note: I am a truthful man. I would not tell a lie was not deemed sufficient under Fowler.

Miscellaneous Rules
Rule 604: Interpreters- Capacity to communicate is mandatory. Courts are bound to provide
interpreters. We wont penalize someone because they dont speak English.
Rule 605: Judge cant be a witness
Rule 606a: Juror cant be a witness.
Rule 606b: Witness (juror) may not testify about how a jury reached its verdict. The way the jury
reached its verdict cannot be inquired into. Even discrimination and threats of violence. We want the
jury to be final. Exception: External factors- i.e. new facts the jury finds on its own.
Tanner: Jury was snorting coke during the trial. D is convicted. SC says we cant get into it. There
are cases where an all white jury convicts a black. Nothing can be done about it.
Rule 615: Exclusion of Ws. W must wait outside before they testify. We dont want witnesses to hear
the other witnesss testimony. Exception: if someone is crucial to the case (e.g. an expert, a spouse)
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Rule 615 is mandatory. If W ignores it, theyll be ruled incompetent. The W cant talk to other Ws.

EXAMINATION OF WITNESSES

Rule 611 is the basic rule for examining Ws. Provides guidelines for cts control, the scope of cross
examination, and leading witnesses.
611a: Ct. controls interrogation
DIRECT EXAMINATION
There are 3 stages involved in questioning a witness:

1. Accreditation: Ask Ws name, where he lives, where he works, etc. You want to give the jury a
reason to believe this guy. Theres a huge difference between a law professor and Joe the bum.
Point: Give jurors something to relate to. 611 allows you some room to go into background.

2. Foundation: Establish grounds for personal knowledge. Direct Ws attention to the night in
question and what he was doing at that time.

3. Substantive questions: Get W to testify that the light was red.

Four basic rules for direct examination
1. Do not use narrative questions. [for lay witnesses] (allows W to talk at infinitum)
Dont ask the witness what happened? It gives too much opportunity for a witness to give
inadmissible evidence. Exception= with an experienced witness like a police officer, you can ask:
tell me about your investigation.

2. Ask short, focused questions calling for specific answers.
Who, what, where, when, etc. Each question that you ask should incorporate the answer of another
so jury can pick things up if they miss it the first time.

3. Do not use leading questions [611(c)] (generally the answer to these is yes or no)
Any question that suggests the answer you want to the W is leading. We want neutral questions (to
get at what the W knows). Example: What color was the light? Not: John, was the light red?
Exceptions: Leading questions may be used on direct examination in the following situations-
a. When its necessary to develop the testimony of the difficult W (ex. Timid or child witness)
b. When witness is hostile or adverse
When hes not aligned with your side. (ex. D doctor in a malpractice case)
Theory for exception: W is not open to suggestion. W wont answer the way you want them to.
c. Basic preliminary questions
Example: Your name is John Smith, isnt it? No harm, no foul. Just gets things going.

4. Use Refreshing Recollections Doctrine [612]
Context: Often, Ws will forget an important fact. Make sure you review testimony with the W.
When a witness forgets something you ask, it is permissible to review (via a conversation, a
writing, etc.) in order to trigger Ws memory.
Baker: Criminal case, D says he didnt commit the crime. On the day of the investigation, one
witness said to the police officer that D wasnt involved. Now the officer doesnt remember. His
recollections need to be refreshed.
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Rule: You can use anything to prod the memory of the witness. (e.g. scent, song, food,
deposition) You dont have to show the witness something that is admitted into evidence. It
can be a ham sandwich.

Limitations
a. Show witness something that will prod the Ws memory.
b. The statement is not read aloud. The jury doesnt see it.
c. When you use a writing, you must disclose the writing to the other side.
Example: Car accident. How fast was the red car going? I dont remember. Let me show
you Plaintiffs exhibit #1 (thats the witnesss deposition) Is your memory refreshed? Yes, it
was going 75 mph. Now you must show this deposition to the other side. Rule 612 is a
safeguard against the attorney-just in case he threatens the witness.
d. Show that the witness has exhausted memory. If the witness answers no or nothing else
was said there is no memory to recollect.
Ex: K dispute over whether parties agreed has a K to deliver widgets at 5:00 on September 1.
D claims its 12. P claims its 5. You put the President of the company on the stand and ask:
Do you recall anything said about the delivery time? If he says nothing was said about the
delivery time, theres no memory to refresh. At this point, could try a leading question as long
as you have something to back it up, preferably in writing.

Note: When youre questioning a police officer, he probably wont remember all the details. Same
thing with a doctor. Theyll be permitted to sit on the witness stand and read the report they wrote
up at the time. This is only for memory recollection purposes.

What if your key witness tells you the wrong answer? Make sure you ask them, are you sure about
that? Its very important to sit with your witness the night before.

CROSS EXAMINATION (you dont HAVE to cross examine)

1. Most cross examination is impeachment. (discredit, not to be believed) This is also destructive
cross examination. Cross examination can be constructive by using it to est facts for your case.
2. Phantom Cross examination
Use when the witness is solid. you talked to the prosecutor last night and you went through the
questions she was going to ask you right? Just raise the possibility of doubt.

IMPEACHMENT
1. Attach the witness
2. Attack the testimony
The right to cross exam is protected by 3 sources: (6
th
amendment, Rule 607[may impeach your
own W], and the Due process clause in civil cases)

Rule 611 and Rule 612 govern cross examination
(1) Subject Matter
a. Cross examination is limited to the subject matter of the direct. We dont want the adversary
to interfere w/ the orderly presentation of proof.
b. You can get into anything that effects the credibility of the witness but you must show that the
matter inquired into goes to credibility. You need to show relevance. Ask yourself if it shows
that this person may be lying?
c. Rule 612: Adversary has the right to see any documents shown to the witness.
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Julian: If you show the witness anything before he testifies, what you show has to be turned to
the other side and can be subject to cross exam. This applies even if it is protected by work
product or attorney client privilege.
POINT: If you dont want the adversary to see it, dont show it to your witness. By showing it
to the witness, you waive the privilege.
What is not admissible:
Rule 610: Religious beliefs cannot be inquired into for the purposes of establishing
credibility. It doesnt mean they cant be gotten into when indicating something else.
(2) Form
Under Rule 611, leading questions may be used. Rationale: The witness is presumably hostile and
not easily swayed.
(3) Basic Methods of Cross Examination
Must have a good faith basis w/ respect to underlying assumption doesnt have to be proof posititve
Ways to Impeach a Witnesss Credibility
I. Show that they are mistaken: show some impairment in capacity
II. Show that they are a liar

Showing the Witness is Mistaken
(1) Show he didnt PERCEIVE accurately (611b: credibility)
Impairment (of capacity)- How good is your vision? Did you have your glasses on at the times of
the accident? Maybe you could show they were hallucinating.
Lack of Attention- How could you have gotten this detail?
Unexpected Event- If no one expected it, and youre shocked, this effects your recollection and
ability to perceive. Example: naked student.
(2) Show he didnt REMEMBER accurately
Show that they were intoxicated
Show that time has passed by. The longer time goes by, the more likely theres suggestion by
others.

HYPO: You represent D. W says light was red against your client. He is an honest guy. Could show
hes mistaken. Rule 611 is the legal basis for this b/c he testified to it on direct and goes to credibility.
HYPO: There was a woman at 1 in the morning who says she saw the light. On cross examination,
you want to show it was difficult to see:
Isnt it true that it was raining at 1am?
Isnt it true that it was hard to see through the rain? You want to raise doubt and questions of
credibility in the jurys mind.

Procedurally:
Rule 611(a) says that you need a good faith basis for your questions. You cant have a fishing
expedition. Example: If you know for a fact that the Witness was in Valentines that night, you can
ask him about how much he had to drink.
Example: An attorney heard W was dealing drugs that night. This is some basis for questioning.

Impeachment by Extrinsic Evidence

Situation: If you know the witness was drinking and theres no way he couldve known what color the
light was, what can you do? OR if you know that the W is going to lie, are you limited to impeachment
simply by cross examining the witness? No.

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Impeachment by extrinsic evidence is governed by Rule 608(b). This means impeachment by
evidence other than the witnesss own words.
You can impeach by getting another witness in.
We dont want the W to stonewall

HYPO: P vs. D (civil action) Witness 1 testifies for P that the light was red. You ask witness if he
was drinking and he says no. Witness 2 says that he was blind drunk that night. This is permissible.
KEY: You must wait until its your turn. You cant call W 2 unless W 1 is done. If the jury finds that
W 1 is in no condition to see the light, then theyll disregard the testimony. If you know that the W 1 is
going to lie, you dont have to cross examine him, you can just bring W 2 in when its your turn.
Must wait for W1 to testify, cant preempt credibility issue
Expert Witnesses as extrinsic evidence
Example: W wears glasses but wasnt wearing them at the time of the accident. Can you call Witness
1s eye doctor? Yes. This is also extrinsic evidence. You arent stuck with the witnesss denial.
Note: When witness is mentally impaired, you can ask for a court ordered mental exam. The
impairment can go to show that witness is mistaken.
You can subpoena medical records.
Experimental psychologists have testified that memory diminishes exponentially, stress causes
inaccuracies in perception recall, etc.
Can have the testify of mental history up to 5 years ago b/c the evid is not yet stale
Example: Witness 1 testifies and says D killed him. He saw D 50 feet away. You bring in things that
affect perception. You call in an expert in eyewitness testimony. Can you ask the expert what factor
lead to misidentification? Dowling court says yes you can.
This all goes to challenging a Ws testimony. POINT: You have a lot of opportunity to go after a W.

Showing the Witness is a Liar
(1) Show witness is biased; as a result theyre lying
(2) Impeachment by showing untruthful character
(a) Prior bad acts that relate to truthfulness (lying on employment applications) (Rule 608b)
(b) Past convictions (Rule 609)
theory: If you lied before, youd lie on the stand
(c) Character witness for untruthfulness. (Rule 608a)
(3) Show that he made inconsistent statements.

I. Partisan feelings; Bias interests and motive
Bias- A relationship between a party and a witness which might lead the witness to slant his testimony
in favor of or against a party.

You want to show that the witness has a motive to lie. Example: Witness is married to the
plaintiff.
The following are all permissible questions:
a. Isnt it true that you are having an affair with defendants wife?
b. Will you tell us what hourly rate you charge for testifying in cases such as this one?
c. Isnt it true that my client rebuffed your homosexual advances?

Point: Its natural for people to want to get revenge. It doesnt mean that they will but jury is permitted
to consider it. Jurors really latch on to this because its something they do too!

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Abel: Illustration of showing witness is a liar by showing hes biased. Ehli is the government key
witness who implicates Abel. Government rests. Abels witness is Mills. Mills testifies that Ehli is a
liar. Mills testifies that Ehli intended to implicate Abel (D) falsely b/c of a plea bargain agreement.
Government rebuttal: Ehli is called back to the stand to attack Mills. Basis: Mills and Abel are
members of the Aryan Brotherhood in prison== they stick together. They lie cheat, steal.
Result: Mills is lying because theyre part of the same gang.
Membership in the same gang represents a bias.
Theres no rule that governs bias but the court says its implicit in Rule 401. (Relevant evidence
has a tendency). As long as something is relevant to biased interest and motive, itll be permitted.
Proof of bias is almost always relevant. The jury is entitled to assess all the evidence that effects
the credibility of the witness.
611(b) matters of credibility also plays to showing of bias
If a trial judge doesnt permit you to inquire into that relationship that may lead to bias, its a
violation of the 6
th
amendment. See Davis.

Procedural aspects: The cross examiner is permitted to go into detail about the Aryan Brotherhood.
Theyll lie and cheat to protect one another. Its ok to get into detail to who what the organization does.
Suppose that D is a member of the NY Militia and then D takes that stand to testify. Can you
bring in proof of the NY militia to go towards credibility? Yes. The way you use bias is so
important that counsel is given a lot of room. Theres no abuse of discretion in permitting it.

Extrinsic Evidence to Show Bias
What happens if Mills denies that hes in the Aryan Brotherhood? Youre not limited to his testimony.
You can bring in extrinsic evidence to prove bias. Its just like perception. You can get other
witnesses to testify that Mils and Abel are part of the same organization.
Tactical concern: It may not be the greatest idea to use Ehli as the impeachment witness. You may not
want someone thats already been torn apart on cross.

Evidence of Plea Deals to Show Bias
Often the DAs key witness is involved in other crimes. In fed cases, the govt and the W will enter a
plea deal. The govt may promise leniency in return for his testimony. Plea is fair game for cross. It
can be proof that youre lying. The other side has a right to know what kind of a deal was made.

403 Limits to Cross Examination
If the Cross gets too prejudicial, the ct will balance the probative value and the prejudicial value. 403
always limits cross examination. Judge has broad discretion to determine how far inquiry may go

HYPO: (HO# 9)
A surgeon is accused of negligence. Basis: He performed surgery while drunk. P calls the waitress
from the bar. Waitress says doctor was drinking martinis. D attorney has to discredit the witness on
cross exam. Cross examiner asks questions and gets answers that show how busy the restaurant is at
lunchtime. Waitress is doing a lot of tables. Inference= she may have misperceived. She cant be sure
the surgeon was drinking beer. Raises an issue on whether or not she perceived accurately. Note the
last question- he stiffed her on a tip. This indicates a motive for revenge. This is biased interest! The
seeds of doubt are created.

Showing the Witness Is a Liar By Prior Acts (this person is a liar in general)

Note: Prior acts dont have to be a crime.
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HYPO: Accident at corner of New Scotland. You represent P. D says he didnt run a red light.
1. You find that D was a rapist. (doesnt go to truthfulness)
2. He once admitted to defacing synagogues. (doesnt go to truthfulness)
3. DWIs (doesnt go to truthfulness)
4. Hes bounced several checks (false representation)
5. He lied on his resume and employment application. (false representation)
6. Cheats in golf (can go either way- taking credit for something you didnt do doesnt go to
truthfulness but cheating on an exam does-people may regard it as dishonest)
7. Robbery/ mugging (most courts say doesnt go to truthfulnessits an act of violence)
8. Stealing (can go either way- some courts say its perceived as dishonest- stealing from an employer
is perceived as dishonest)

Note: None of this stuff is relevant. Being a rapist doesnt go to being a poor driver. But you can use
it to show credibility. [Rule 611(b)]
****IF YOU CANT DO IT SUBSTANTIVELY, ALWAYS ASK IF YOU CAN DO IT
THROUGH IMPEACHMENT**

Isnt a person who lies on a resume a person who will lie on the stand?
Under 611 (b), anything you did in your life that affect credibility is fair game.
611(b) is now limited by Rule 608(b). Rule 608(b) says that you can only inquire into a prior
act if it relates to truthfulness or untruthfulness.
Theory: if youve been truthful once before, you might lie on the stand. The jury should be
allowed to assess it.
The act must relate to truthfulness. The past rape conviction does not go to truthfulness. The jury
will NOT be allowed to consider this.

Simmons: Classically, what we are looking at is a lie. All past lies classically relate to
truthfulness. The guard lied about taking the second lie detector test and passing it. His prior act
was his statement (he never took it) and it is now fair game. This is a classic lie. Does this mean
any white lie counts? Theoretically yes. Any lie can come back to haunt you. But this is limited
by 403. When it gets too petty or remote, well disregard it.

Truthfulness has now been expanded to include what people perceive as dishonest. If it
reflects adversely on a mans honesty and integrity you can inquire into it.
Varhol: Mr.Varhol only got $237 in workmans comp. damages. Why? It came out on cross that
he used stolen tickets. He argues that stolen tickets is not an act involving truthfulness because its
not a lie.
Acts involving fraud or deceit clearly raise doubt on a witness reliability for telling the truth.
Note: Acts of violence do not go to truthfulness and cannot be inquired into. (robbing banks,
committing murder)
Possession of stolen good falls into a gray area but court looks at how the public views it. It reflects
adversely on a mans integrity. Varhol loses.
TEST: BEFORE YOU INQUIRE INTO PAST ACTS, YOU HAVE TO:
1. ASK WHETHER ITS A LIE.
2. ASK WHETHER IS REFLECTS ON HIS HONESTY OR WHETHER PEOPLE PERCEIVE IT TO REFLECT ON
HONESTY.

Note: People perceive both stealing and cheating as a dishonest act.

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Drug use is out under 608b. (doesnt go to truthfulness)
Cheating on spouse is out. (doesnt go to truthfulness) Clinton cant be asked whether he had an
affair on cross exam, but you can ask him if he lied.
Use of false name/aliases is permitted (false representation)
Persuading ineligible voters (akin to false representation, also reflects badly on honesty)
False info. on bank loan (false representation)

Note: This stuff can still be excluded because its subject to 403. The judge can give the jury a limiting
instruction and tell them to only to use this evid to assess credibility. But the jury may not listen!!

RULE: Prior bad acts may not be proved by EXTRINSIC EVIDENCE.
What happens if the witness denies that they committed the act? (First thing court will look at is if you
have a good faith basis for inquiring into prior bad acts)
Can you bring in extrinsic evidence to say he lied on the resume? No. Rule 608(b) does not allow
extrinsic evidence. You are bound by the witnesss answer.
Policy rationale: Court doesnt want to get into collateral issues. We dont want to confuse the jury.
Its an automatic 403 rule. Its true that the witness may still be prosecuted for perjury but that doesnt
happen often in civil cases.

Example: Little boy injured when he walks into a glass door. D argues that mom pushed him into it.
Mom testifies. Shes cross examined. They ask her questions about lying to get more welfare checks.
She lied about how many children she has. Ds attorney brings in a confession of judgment with her
signature on it. Jury thinks moms a liar and rules against her. Court of appeals reverses. You cannot
bring in extrinsic evidence.

Example: Stevens is on trial for robbery. He says that he works at a store to support his mother. DA
asks him, isnt it true that your mother is dead? DA brings in evidence of the death certificate to
impeach him. This is improper impeachment. No extrinsic evidence on prior bad acts. (note: you
could still go after him for perjury).
Problem: Doesnt this encourage a witness to lie? They know they can lie and get away with it.
What can the lawyer do in response?
**Ask the witness: Is it a fact that so long as you feel your testimony cannot be contradicted by
extrinsic evidence, you feel sir, that you have a free reign to lie?

Consider this situation (KNOW YOUR PURPOSE):
Im cross examining the witness. Isnt it true that you were drinking heavily at Valentines?
Objection- 608(b) doesnt go to truthfulness. You as the attorney should argue that the PURPOSE is
PERCEPTION. Just because its objectionable on one ground doesnt mean that its objectionable on
all grounds. You can still show that the Ws perceptive powers are impaired.
Isnt it true that you beat up a priest last night? Objection- acts of violence cant be inquired into
under 608(b). But attorney should know his purpose. maybe this goes to bias. Search for an
admissible avenue, look for a basis of impeachment that is not under 608b.

Ethical consideration with bringing out prior bad acts: You dont have to bring the bad acts out. Its all
about what you can do, now what you have to do. (jury might think youre scummy if you bring out
dirt about an old lady)

Note: Prior bad acts under 608(b) should be analyzed under the Alexander factors below. The
balancing test of 403 implicitly applies.
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Result: Always ask the witness if theres something in their background that falls under
609(a)(1) or 608(b).
Showing the Witness is a Liar by CONVICTIONS (Rule 609)
If W has been convicted of a crime, you can expose it to the jury b/c 608 doesnt come into play w/ a
conviction

Rule 609 is broken down into 2 categories:
1. 609(a)(1): Were looking at serious crimes (punishable by death or prison for over a year). This
applies to any felony, even if it doesnt inherently relate to truthfulness. Does not include
misdemeanors. Key= what the maximum sentence is.

2. 609(a)(2): conviction of a crime related to dishonesty or false statement, regardless of whether
its a felony or misdemeanor.

Note: A misdemeanor conviction for assault cannot be inquired into under 609(a)(1) or (2) because
its not a felony and its not a misdemeanor that involves truthfulness.

****Evidence admitted under 609(a)(1) is subject to 403 balancing. Decision must be made based
on the prejudicial value. We dont want the jury to think once a criminal always a criminal.

Note the distinction between the accused and other witnesses.
1. If someone other than the accused is the witness, the test is whether prejudicial value
substantially outweighs the probative value (or credibility)

2. If the accused is the witness, then the test is simple balancing test. Whether the prejudicial
value just outweighs the probative value (no substantially outweighs requirement). ????
(its easier to exclude prior convictions when the accused testifies because he faces a unique
risk of prejudice. Theres a fear that jury will misuse it for purposes other than
impeachment.) Burden is on the prosecution to show that the probative value outweighs the
prejudice to D.

*Evid admitted under 609(a)(2) is not subject to 403 balancing. (only rule thats not subject to 403)
Result: If you have been convicted of a crime that foes to dishonesty or fraud, it will be gotten into.
(example: lying on a notary application) Remember this includes what people perceive to be
dishonest. Crime must relate directly to fraud or deceit.

STRATEGY: See if the crime fits in under 609(a)(2) since the court has no discretion to keep out
evidence of convictions that relate to dishonest/ false statement. Then try 609(a)(1)- any felony. (but
you will now be subject to 403)

Using the 403 Gordon factors (used to determine whether impeachment evid should be barred by 403)
1. The impeachment value of the prior crime
(does crime really relate to the truth? E.g. DWI doesnt relate to truthfulness)
2. Look at the conviction in light of defendants prior history and background
(when was the crime committed? Is it an aberration or a sordid past?)
3. Similarity between the past crime and the charged crime
(The more similarity, the more possibility of prejudice, and more likely it will be kept out)
4. The importance of the defendants testimony (balance factor 4 and 5)
(we want to encourage D to take the stand)
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5. The centrality of the defendants credibility
(we think the jury should see all the warts)
Note: prosecutor has burden of showing credibility. You dont have to show substantially
outweighed. Just show probative value outweighs prejudicial value.

Example (Groves): D is charged with drug possession and possession of a firearm. D has a prior
conviction of aggravated assault based on use of a knife.
1. The nature of the crime bears little on credibility. Little impeachment value.
2. This happened 8 years ago.
3. Similarity? Not really. She had used a knife. Theres a big difference between a knife and a gun
but the court says this is going to be excluded because theres still a danger that the jury will
evaluate and convict improperly.
4. Ds credibility is central to the case.

NOTE: Each case is decided on an ad hoc basis.

Note: There will be no balancing test for misdemeanors because they will either be inadmissible
or automatically come in if they relate to dishonesty.

Example: D is charged with the murder of his girlfriends son. At trial, he had a prior record of
statutory rape. D moves to exclude because it has nothing to do with credibility.
Ruling: Judge thinks it goes to credibility, it was only 3 years ago, jury is entitled to hear the
background of D. Jury convicts.
POINT: 403 was written to protect D, but its not there to sanitize him. Jury has the right to have a
comprehensive view of the trustworthiness of D as a witness. The presumption is that all crimes go to
credibility. It depends on how the judge perceives it.

Looking at Other Witnesses
Judges are reluctant to exclude convictions of prosecutions witnesses. Reason: 6
th
amendment
confrontation rights.

Apply the same 403 test.
What about when all Ds witnesses have been convicted of robber?
In Libscomb, the defense attorney makes a motion to exclude because of the danger of misuse by
the jury- guilt by association! The judge sets that this was proper cross examination.

Rule 609(b)- Time Limitation= 10 years
Rule: If the conviction or release from prison is more than 10 years ago, the presumption is that the
crime cant be used. To rebut this presumption, the party who wants to use it must show that in the
interests of justice, he really NEEDS it.

The 10 year period starts from the date of conviction or the date of release from prison, whichever is
later. (so if youre convicted 12 years ago but served 2 years in jail, the 10 years starts running from
the release date- 10 years ok)

Note: There is also a 10 years limitation on 608(b) prior bad acts. Passing bad check 30 years ago
cant come in. (remember courts also use the 403 remoteness prong of the balancing test for bad acts.)

Miscellaneous 609 rules
28
609(c): Pardons, annulments=not admissible.
609(d): Juvenile ajudications = generally not admissible. Theory: You were a kid. Juvenile records
are sealed. Exceptions: In a criminal case, evidence of juvenile ajudications can come out for
witnesses other than the accused, Note the protection of the accused!!
609(e); the fact that its on appeal DOES NOT bar the conviction


Prior convictions and extrinsic evidence
Rule: Theoretically, you can bring in extrinsic evidence of prior convictions. However, most
courts only permit the certificate of conviction. (its an exception to the hearsay rule)

Rule: If you want to preserve a ruling under 609(a) you must take the stand.
Luce case: (rejected in NY) D mad a motion in limine and the judge denied it. D didnt take the stand
because he was deterred by the pre-trial ruling. Argument: Court erred in denying the motion.
Supreme Court held: You didnt preserve the issue on appeal because you did not take the stand.
Essence: If youre dissatisfied with the ruling regarding a prior conviction, in order to get those
preserved for appeal, you have to take the witness stand. The objection is not enough.

Practical Strategy
If you represent the defendant and he has prior convictions, you may want to bring these things out on
direct. 607 says credibility may be attacked by any party. Juries like to be told things.
If conviction is brought up on direct after arguing in a motion in limine you give up your ability to
raise error of the motion in limine on appeal (rejected by NY)
Example: D is on trial for assault. He has 5 prior convictions. A motion to exclude is made.
On cross examination, the DA proposes to ask him about the following prior convictions:

1. 6 months earlier he falsified a motel register. (misdemeanor)
First ask: Is it a 609(a)(2) crime? If it is, you cant make a prejudice argument. Judge must let this
in. ANY crime relating to fraud or deceit can come in.
2. Sale of drugs 2 years ago. (punishable by up to 6 years)
Were not under 609(a)(2). Go through Alexander factors. Alexander says that robbery and drug
dealing both go to credibility and can come in. The crime occurred only 2 years ago and he has 4
other past convictions. There is no similarity. Hes on trial for assault, not drug sale. Credibility
will be important. Result: Most judges would say this can be cross examined.
3. Grand Larceny 4 years ago. Its not an (a)(2) crime. Its an (a)(1) crime. Its a crime high on the
list of credibility. Crimes are not similar, not prejudicial. Hes got a history of recent crimes.
Result: It can come in. The more crimes you have, the court will look at the cumulative effect.
But on the other hand, D shouldnt be allowed to hide behind a criminal record.
4. Armed assault 8 years ago. Seems to go to credibility but Groves doesnt think so. Hes got a
history. But now we have similarity. Its the most prejudicial. Defendant doesnt want this one in
and prosecutor doesnt want to be reversed. Compromise- le the prosecution have the first 3 but
exclude the 4
th
. Jury will get the message.
5. Forging a bank application 12 years ago. He was released on September 1, 1985. He was charged
with current assault August 1, 1995. The trial starts on October 1, 1995. The 10 year period starts
running on September 1, 1985. Problem is where does it end? If you end at Oct. 1, 1995, it falls
outside this 10 year period. You wont be able to get this in on cross.

Problem 8C, p,620: 2 convictions. (1) Manslaughter, (2) Forgery. As the prosecuting attorney, you
argue that you want to use prior convictions for showing credibility of the witness. The forgery will be
29
heard. Theres nothing that can be done about it. Manslaughter? Does jury really need to hear this?
Were dealing with other witnesses. Apply 403 Alexander factors. Consider remoteness (7 years ago)
and danger of prejudice. This guy has been convicted of murder. The problem could go both ways.
But prosecutor will argue that the jury should be able to hear this.

Problem 8B, p. 617: D is charged with robbing a bank. Situation where both the defendant and the
witnesses have been convicted of bank robbery in the past. Remember there are two standards, one for
the defendant and one for other witnesses. You can argue that Ds conviction shouldnt come in
because its too similar. Prosecution will argue that jury should be able to hear it. D argues: jury will
assume its guilt by association. Libscomb says this argument doesnt work. Compromise: Exclude
with respect to D. Let in with respect to Ds witnesses.

Problem 8E, p.623: D falsified his federal income tax return. Prosecutor want to bring out the details
on cross examination. Result: seems like this guy is a liar, jury is entitled to hear it. Some courts
would exclude, some wouldnt. If there are no prior convictions, you can get into these prior acts under
608(b). You just need lies for it to get to the jury under 608(b) so maybe judge should allow these
when they are convictions.

Showing the Witness is a Liar by the Character Witness for Untruthfulness
Rule 608(a) lets you bring in a character witness for untruthfulness.

Situation: You represent P. Key witness for D is W. W, isnt it true that you lied to Peter when you
sold him a car? No. I didnt. Simmons says that youre stuck with the Ws answer, but you can call
Pete on rebuttal/ You cant ask Pete if defendant lied because that would be violating the no extrinsic
evidence rule but you can ask him his opinion.
Pete, so you know W?
Yes. Hes a car salesman.
Do you have an opinion of whether hes a truthful person?
Yes. Hes a liar.
Pete is permitted to testify about his reputation. You are getting around the extrinsic evidence rule.
The character witness is the conscience of the community. When we have an opinion or reputation
witness, they are speaking collectively.

The character witness needs to have personal knowledge.
For reputation testimony, you just need knowledge of the reputation.
For opinion testimony, just lay the foundation of personal knowledge (i.e. show he resides in the same
community)
Rule: The basis of the opinion or reputation may not be gotten into. The cross examiner cannot
ask why he thinks the witness is a liar. You are just allowed to put the opinion out there. Rationale: If
you get into the basis, you get into collateral issues.

Note: This is an effective technique when you have the right witness. Be careful with the character
witness you use. If your character witness is a thug, then he can be torn apart on cross exam. You
want to use someone like Bishop Hubbard (stature is important) as your character witness.
Example:
Witness 1 testifies= I saw defendant blow away the plaintiff.
Defendants witness is the bishop.
Bishop, do you know Witness 1?
Yes. Hes a member of the parish.
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Do you have an opinion with respect to Witness 1?
Yes. Hed a liar.
Would you believe Witness 1 under oath?
No.

How to overcome the terseness of character witness testimony:
Elaborate on the foundation. Ask lots of questions to build personal knowledge.
Tie it together with Rule 608(b). If youre sure the witness is lying, you can get a character witness
in. Witness did you have a dealing with John Smith 10 years ago? Then you call John Smith.
Can you use an expert? Generally no. You cannot call an expert W because truthfulness is an
inherent jury determination. Credibility of a W is for the jury to decide (remember that they do
permit expert testimony as to perception, etc)

Showing Witness is a Liar by INCONSISTENT STATEMENTS
2 types of inconsistent statements:
1. Contradiction by facts
2. Contradiction by prior inconsistent statements

Can be used anytime the W makes any inconsistent prior statement (oral or in writing) either as to the
conclusion or details of the event, anything that doesnt match up is a prior inconsistent statement
Situation: W testifies that the light was red. You have a prior statement that said the light was green
immediately after the accident. Attorney can bring this out on cross. If witness says one thing on one
occasion and one thing on another occasion, its contradiction by inconsistency.

Consider the following testimony.
I have 20/20 vision (perception)
I do not know Plaintiff (bias)
I was coming home from church (collateral)
I stopped at Burger King on New Scotland (collateral)
Light was red for defendant

Suppose you have proof that the witness needs glasses, that the witness is dating the plaintiff and that
the Burger King was closed at the time of the accident.

I. Contradiction by Fact
You can show the testimony is contradicted by the facts through cross examination.
Anything a W testifies to on direct (subject to 403) is fair game on cross. (opening the door)

Example: W, isnt it true that you wear glasses and are blind as a bat without them? You can
inquire into this on cross exam under 611(b) because W raised it on direct. Its also fair under 611(b)
because it goes to perception. Ask questions about relationship too.
Why do this? If hes lying about these things, hes also lying that the light was red.

Drake case (HO 10): D is on trial for wire fraud. He denies it. D testified that he had a psychology
degree on direct. On Cross examination, prosecution now ask, Isnt it true that you never got a degree
from college? As she goes through this, it looks like hes a liar. She tears him apart. This is perfectly
acceptable cross examination; its not extrinsic evidence because everything she is cross examining was
testified to on direct.

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Problem: What do you do with the witness that lies? Can you introduce extrinsic evidence? You can
use extrinsic evidence to show bias but not to show bad acts relating to untruthfulness.

Result: You can bring in the opthamologist to show that he cant see because it goes to perception.
You can bring in the witnesss girlfriend to say the witness know Plaintiff.

Rule: You can introduce extrinsic evidence to show that what the witness said on direct was
false as long as its not collateral. Simmons
Whats not collateral?
1. Goes to fact at issue (tends to prove a substantive point)
2. Perception
3. Matters relating to biased interest and motive.

******Everything else is considered collateral********
You are barred from introducing extrinsic evidence on collateral issues.
Note: Coming home from church and stopping at Burger King are collateral because they have
nothing to do with perception, bias, or fact at issue. You wouldnt be allowed to introduce evidence
that the Burger King was closed on the day of the accident.

This is clearly aligned with 608(b). When it comes to impeachment, you cant use extrinsic
evidence to prove collateral facts.

II. Contradiction by Prior Inconsistent Statement-Rule 613
613 permits (dont have to tell the W this inadvance):
1) Reinforce what the person said (pin down the W)
2) Make sure the statement was made (pin down the W)
3) Confront the W w/ impeaching evid

Situation: Where you want to contradict a prior statement made before trial thats inconsistent with
Ws testimony at trial.
The same rules apply. You can cross examine on any prior inconsistent statement they made
as long as they raise it on direct. [Rule 613]
Anything a W says on direct is fair game for cross b/c W opened the door (subject to 403)

RULE: As long as it relates to the fact at issue, partisan feelings (bias, interest, motive), or
perception, you can introduce extrinsic evidence regarding the prior inconsistent statement.

Note: If you have a written statement, you must show it to their attorney. But if they made a
prior statement, it can be cross examined.

Example: W testifies for P. W says light was green for P. W made 2 prior statements: (1) she told
the cop that the light was red and (2) she wrote a letter to the insurance company saying
it was red. (these statements are hearsay)

You can ask W: You told the cop the light was red, didnt you? and then show her
the prior inconsistent statement and ask her read it aloud. Although you cant
introduce these statements into evidence for their substantive value, you can
introduce them to impeach the witnesss testimony.

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If W denies making the statements, you can introduce extrinsic evidence by bringing in
the cop to testify. (you dont have to tell the witness about the prior inconsistent
statement until cross)

The I dont recall witness
Situation: Cross examiner asks Isnt it a fact that you told Officer Jones that the light was green? I
dont recall.
Rule: When a witness says I dont recall, you can still treat it as a contradiction. You can still bring
in extrinsic evidence and call Officer Jones.

The turncoat witness: (Webster)
Situation: When your own witness turns on you and says a whole different story.
Rule 607: The credibility of a witness may be attacked by any party, including the party calling
the witness. Result: Even if your own witness gives damaging testimony, its permissible to impeach
the testimony.

Ask: Didnt you tell me this? If yes, then fine. If they deny it, you can bring in another person to
testify as to the prior inconsistent statement.

Test: If the prosecutor acts in good faith and was truly surprised and unaware that witness is
going to change his testimony, then well allow him to impeach his witness. However, if the
prosecutor knows that the witness will change his testimony, he cannot impeach. Key factor=
prosecutors knowledge.
Note: When a turncoat witness says I dont recall, try to refresh recollections. You cannot
impeach him by using prior inconsistent statements in this situation. Webster says theres no
affirmative damage to trigger impeachment by prior inconsistent statements.

Practical Note:
1. Make sure you know all the prior statements of a witness.
2. Although you can call another witness for oral testimony (officer Jones), a written statement from
the witness is always better.
3. Prior statements in writing are usable as an exception to the hearsay rule and as a result as
substantive evidence.

REHABILITATIN
G THE WITNESS
Situation: Once your witness has been impeached, you can try to repair the credibility of your witness.
1. In situations where you now damaging stuff will be brought out on cross, think about bringing it out
on direct to reduce the effect on the jury.
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2. Redirect your witness: Allow the witness to explain herself after she has been damaged by cross
examination. Cross has opened the door, so witness will be given the opportunity to explain it
away.
Example: Bias. Would you lie for your cousin? No. Why? I respect the oath.
3. Use a character witness for truthfulness. Rule 608(a)
Limitation: Evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation or otherwise.
You can only call W2 after W1 has been savaged on cross.

Medical Therapy case: A broad reading is given to or otherwise language. Rule: Any
impeachment technique will trigger 608(a). (prior bad acts, prior convictions, biased interest and
motive, contradiction, prior inconsistent statements, anything that shows youre a liar!)

Example: Once the W has testified and been ripped apart on cross, you can no call Bishop Hubbard
as the repairing W. Same limits are placed on the W for truthfulness as for the W for untruthfulness.

Note: You cant call the bishop before impeachment. You cant do advanced bolstering of your
witnesss credibility. This is a reaction rule!

Risks:
1. If you call W2 to repair W1, remember W2 is a witness and can be cross examined for any
warts so chose your witness carefully (Bishop Hubbard over Joe the Thug)
2. Under Rule 608(b)(2), the opposing counsel can cross examine W2 about things he doesnt
know about W1. W2, did you know that W1 lied on his resume? The resume stuff comes out
a second time with respect to the character witness. This says that maybe W2 doesnt have very
much knowledge about W1. Now the character witnesss opinion seems based on limited
information. Do you still think that hes an honest person?
Note that a cross examiner wouldnt necessarily do this because theres the right of redirect.
Bishop, weve heard you say hes a truthful person. Why do you think hes truthful? Let
me count the ways Now the door is open. You are barred from inquiring into basis on direct
because you can only give the opinion or reputation. But once its brought out on cross, the
doors are open on redirect!!

4. Cross examine the impeaching witness
Situation: D testifies. You represent D. P puts Smith on the stand, who (under 608(a)) says D is a
liar. Remember you can cross examine Smith about Ds own truthful acts.
Did you know that D was commended for honesty at the bank he was working for?

Door was opened for untruthfulness so D is allowed to defend his character for truthfulness (even
via extrinsic evidence)

801 HEARSAY
Ensures integrity of the process and reinforces 601 b/c we want personal knowledge

Risks that the Hearsay Rule guards against
Errors of perception
Errors in remembering
Error in narration
Insincerity/ Lies
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What the Hearsay Rule protects
1. Oath
2. Demeanor Evidence - witness must take the stand and be seen by the jury.
3. Cross Examination to bring out flaws in perception for jury to assess.

Hutters Definition- Witness is repeating a statement* made by a declarant* which was originally
made out of court and the statement is now offered to prove or as proof of facts to be decided by the
jury.

4 basic elements
1. Witness must be repeating a statement
2. made by a declarant.
What did John tell you? What did you read? (encyclopedia is declarant)
3. Originally made out of court.
3. To prove the truth of the matter asserted. Witness testifies: X said ABC. You want the
jury to accept ABC as the truth.

Buzzwords:
W takes the stand and on Direct hes asked:
1. What did X tell you?
2. What did you read? ALL POTENTIAL HEARSAY!
3. What did you hear?
4. What did you say?
Note: You can avoid a hearsay problem by asking W to testify to what he saw.

Definition of Declarant 801(b)- A declarant is a person who makes a statement.
Example: W takes that stand and says X told me________ X is the declarant.

The W and declarant are different people here. W has no personal knowledge. Only X does.

The Witness and the declarant can also be the same person. Its still hearsay if the witness
is repeating a statement she made out of the courtroom.

Ex: Belle wants to testify: I saw what happened. I was interviewed by Kojak. I told Kojak that
I saw her fall out the window. The fact that she can be cross examined is irrelevant. Its still
hearsay. The W cant testify to what she said earlier. Shes a declarant, making a statement,
and its made out of ct as proof of facts therein. Belle can only testify to what she saw.
Rationale: A witness may be lying. W is not permitted to bolster her own testimony.

Definition of Statement 801(c)- 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.
Covers something spoken, written, or conduct ( W pointing to a person)
An assertion is a positive declaration. Youre conveying information. Just because its oral,
doesnt mean its statement and doesnt mean it invokes the hearsay rule. Example: Did you
get the stuff?

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Problem 3A, p.119: Higgins is charged with bank robbery. Prosecution calls W to testify to what 3
people said to him.
1. That Plaintalk said: Higgins did it. Declarant is Plaintalk. Statement is oral and assertive.
2. That Sirchev said, Higgins went out of here carrying moneybags. Hearsay rule invoked. Its
an assertion.
3. That Oblique said, they ought to put Higgins in jail for this, and throw away the key. Is this
conveying info.? Yes, its an opinion.
Note: Were not concerned about the relevancy for purposes of hearsay.

Non-assertive Verbal Statements

An assertion is one that conveys information.

Car accident. Allegation of negligence. D ran the red light. W takes the stand and says:
1. I heard someone yell, Oh my God. Watch out for the red car.
2. I heard someone else say, Why did you run the red light?

Lewis: Drug case. Cop testifies that the person on the other end of the phone said: Did you get the
stuff? Implicit in this question is the assertion that this guy owns the drugs. However, Lewis case rules
that assertions can only be declarative statements. Assertion cannot be questions. A question is
outside the hearsay rule. Lewis Judge is hung up on form but whats the purpose here? The truth.
Suppose the cop said the person on the other end of the phone said I mailed the drugs to you. The
cop is trying to establish the truth, that he received the drugs. If cop testified to this it wouldve been
hearsay. The asking of a assertive question is not hearsay

Under Lewis, Oh my God, Watch out for the red car, and Why did the red car run the red light
are not assertions. They would be admissible and not hearsay. But if youre Defense, wouldnt you
want to cross examine them? Lewis Judge says that you dont have to cross. Its faulty rationale but
good law. The statement is still used for the truth.

Hutters view: When a nondeclarative statement is the functional equivalent of a declarative
statement, its an assertion. Dont get hung up on form!
Look at the form of the statement, is it an exclamation, question, imperative
Only declaratory statements qualify as hearsay
Example: et tu Brute? It conveys- and you too? My faithful friend, you betrayed me too? According
to Lewis, its not hearsay.
Example: Hutter has drugs in his front yard. [hearsay]
Did you know Hutter has drugs in his front yard? [not hearsay] FAULTY
Note: Your fallback if the judge overrules your hearsay objection is Rule 403- danger of misuse. I
cant cross examine the declarant. This is confusion of the issues for the jury.

Nonassertive, non verbal conduct

Nonverbal conduct is only hearsay if it is intended to convey information.
Cleary Assertive:
Example: Cop hears a shot and runs to the scene. He sees one person lying blood and another person
standing there. Cop asks: who shot that guy? W points to someone across the street. At trial, W is
not available to testify. Cop takes the stand. Cop cannot testify that W pointed to D because its
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hearsay. The nonverbal conduct of pointing was intended to convey his perception of what he
saw. Intended as an assertion.
Not Assertive:
Example: You have to prove that at 2:00 in NYC it was raining. Put W on the stand. Could you tell
that it was raining? No, but when I looked down from the 15
th
floor, I saw people holding umbrellas.
This is not hearsay because W is testifying as to what other people were doing and their behavior was
not intended as an assertion. They are not intending to convey information. Theres no positive
declaration. Theyre just trying to keep dry.

Example: You have to prove that the apartment occupied by your client has no hear. Your client says
hes freezing. You call W, the nosy neighbor who looks into your clients apartment.
W, what did you see? I saw the Plaintiff and his friends wearing heavy coats and parkas. Whats
the inference? No heat. This is not hearsay because they are not trying to assert something. Theyre
not trying to tell the world that the landlord gave them no heat. They are just trying to keep warm.
Result: Not hearsay. Its reliable. No need to cross examine. Hearsay risks not present.

Example: You have to prove your client died at 11:59. Reason: Life insurance policy only pays out if
Decedent died before 12. You call a Nurse to the stand. Nurse were you at the hospital?
Did you pass by Room 201? Yes. I passed by at 11:59. What did you see? I saw the doctor
pull the sheet over the guys head.
Inference? Hes dead. Is it hearsay? If the doctor is trying to convey a message to the world that the
guy in 201 is dead? If hes just trying to assert something to himself, and pull the sheet out of respect
for the dead, then its not hearsay and the witness can testify to it.

Example: Auto accident at 4 way intersection. P is going West and D is going North. Theres a
collision. Ps family claims D ran the red light. D says I didnt run the red light. D calls W who was
standing at the intersection. W testifies that at the time of the crash he was looking at the cars to make
sure it was safe to cross. He saw Xs truck driving South into the intersection. If W is allowed to
testify then the inference will be drawn that if the truck was in the intersection, he mustve had a green
light and D mustve had a green light too!! (Traffic lights run North/South and East/West) Evidence is
relevant because you only go into an intersection when the light is green. [any tendency] This is not
hearsay because the nonverbal conduct of the truck driver (going into the intersection) is not intended
to convey that the light was green.

Note: Wouldnt we still want to cross examine the driver to see if he wasnt jus trying to beat
the red light? Or wouldnt we want to cross examine the doctor who put the sheet over the
guys head. Isnt there still risk of error? Even if its not considered hearsay, Rule 403 can
keep it out if prejudice is great.

Burden of Proof: If its an ambiguous case, well presume its not assertive and resolve it in favor
of admissibility. The burden of proof will be on the party trying to keep it out to show that it is
intended as an assertive hearsay. In the dead man hypo, counsel would have to show that doctor meant
to convey to the entire world that the guy is dead.

Note: Imperfections of the hearsay rule. Consider the following hypo:
A manufacturer wants to prove that the plane was safe.
1. In WWII, before a pilot gets on the plane, he walks around the plane because of superstition.
Reliability means nothing. Hes not looking for something. Hes not intending to assert
anything. Hes not trying to send a message. Result: Its not hearsay.
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2. In Korean War, now the pilot walks around to see if the plane was safe. Its still not hearsay
because its not intended as an assertion to the world. (conveying to self)
3. In Vietnam War, when the pilot walks around, its a signal that planes are going to take off.
Now its hearsay and would be excluded. Its reliable but the hearsay rule excludes it
because hes intending to assert. Hes the most reliable of the 3 situations because he has
the experience of 2 wars under his belt, yet this statement is inadmissible.

Introduction to overcoming hearsay
Kojak (witness) and Agnes (declarant)
Kojak testifies: Agnes said David pushed Clare out the window. Note whose testimonial
qualities are at stake? Agnes the declarant. We want to make sure shes telling the truth.
The statement is coming in for its truth. It coincides with the matter to be proved. This is hearsay.

Example: Ajax Handout. A letter was left on the xerox machine. Presumably David has read it.
Im going to have the baby and sue you for support. The prosecutor doesnt want to introduce
this to prove the truth of the matter asserted therein. What does it establish? Motive to kill Clare.
If you want the letter to come in to establish for the truth (that shes pregnant), then its hearsay.
We dont really need to cross examine Clare. We dont care if the statement is true. We only care
that the statement was said, therefore its not hearsay. Its coming in for MOTIVE, a non-truth
purpose. If we want to establish motive, we just need to know that David heard it. Clares
credibility is not at issue.
Note: Now the only issue is relevance. Its conditionally relevant if David actually read the letter.
Since it was on the xerox in an open office David probably read it.

Detrich: D is accused of smuggling heroine into the US. Hes alleged to have smuggled it in a suit
he brought back from India. Defense: I didnt know that heroine was sewed in the suit. Prosecutor
must establish knowledge. Ds explanation- When I was in India, a friend told me to take a
wedding suit to Dawood. Dawood was getting married. D wants to get in a statement that
Dawood made to the investigator at the airport: Im getting married in August.
If you want the statement in for the truth that hes really getting married, its hearsay.
But if you want the statement in just to show Ds state of mind (he innocently agreed to take the
suit) then its not hearsay. (Dawoods credibility isnt at issue) The truth of the statement is
irrelevant.
POINT: KNOW YOUR PURPOSE (when a statement comes in for truth its hearsay)
When the contents of what is said are not in contention then it is nontruth and not hearsay
Note: If the statement isnt hearsay, then the only issue is whether its relevant.

NONTRUTH PURPOSES- NOT HEARSAY
1. IMPEACHMENT
2. EFFECT ON HEARER
3. DECLARANTS STATE OF MIND
4. INDEPENDENT LEGAL SIGNIFICANCE

IMPEACHMENT: coming in for credibility and is a non-truth purpose
Ex: Intersection collision. Bystander testifies that the blue car ran the red light. But now on cross, the
defense attorney wants to ask him: Didnt you tell Officer Smith the light was green for the blue car?
Declarant is the witness in this situation.
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Purpose== if you want this in to prove that the light was actually green, its hearsay because its
coming in for the truth. The declarants testimonial qualities at the time of the incident would need to
be cross examined.
But if you want the statement in to impeach the witness by prior inconsistent statements, this is
admissible. The statement is just coming in to show the witness is blowing hot and cold, its not
coming in for the truth. Whether shes telling the truth makes no difference.

Test: Who do you want to cross examine?
Is it necessary to cross examine the declarant?
Is it sufficient to cross examine W?
If the person you want to cross examine is on the stand, its not hearsay.
If the person you want to cross examine is the declarant, its hearsay.

EFFECT ON HEARER
Problem 3F, p.140: Tort law is the governing substantive law.
P has been severely burned after following Joe Forrest into the field. Joe says to him: Im Joe Forrest,
Im from the gas company, can you show me where the leak is? Joe lights a cigarette and P is burned.
P sues the company for negligence. Ps attorney wants to minimize Ps contributory negligence. How
do you establish that Joe is employed by the gas company? P cant testify to what Joe said to prove the
truth of the matter asserted therein (i.e. agency relationship). But P can testify to the out of court
statement to show effect on the hearer. The truth of the statement is irrelevant. Its coming in to
show it was said or made, and that plaintiff reasonably in response to Joes representation. Result: Its
not hearsay. Key is what is the purpose

Example: P develops cancerpohbia after a dermatologist tells her youre going to get cancer
because you got too much radiation. P sues the sues the radiologist for physical and emotional harm.
It turns out the dermatologist was wrong but she still thinks she has cancer.
At trial, dermatologist is dead. P is asked: What did the dermatologist tell you? Not hearsay,
because the statement is not introduced for the truth (that P would get cancer), but rather to
prove that the statement was made, heard, and P acted reasonably in response to it.
(1) Its not necessary to cross examine the declarant (radiologist), we dont care if he was wrong. (2)
They key is to cross examine W (plaintiff). She is the one who heard the statement.

Example: D is involved in an accident on New Scotland. Allegation- Ds brakes are bad. He
shouldve known. W takes the stand for P and says: I was with D at Joes Mobil. The mechanic
(declarant) said to D, your brakes are bad. This cant come in to establish the truth. Youd want to
cross examine the mecahnic.
P wants to show that D had knowledgeof the bad brakes. Its coming in for a different purpose-
coming in to show it was said. Relevance=Effect on Hearer. You can cross examine the W on
whether he heard the statement correctly. Knowledge of bad brakes might be neg in itself. Its
sufficient to cross examine W. If afraid the statement could be misused, get a jury instruction.

Example: Criminal case. Cop takes the stand. Informant told me that D was dealing drugs. This
cannot be used as proof that D was dealing drugs. But you can argue that its coming in to prove why
the police officer arrested the D. It shows probably cause for the arrest. EFFECT ON THE HEARER.
Note that if this comes in, one can argue its so close to coming in for the truth. Opposing counsel
might argue 403- danger of jury misuse.

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Point: Statements can have 2 purposes. As long as you can show a good purpose, you can avoid
the hearsay rule. Just because there is a truth purpose, doesnt mean its hearsay.

DECLARANTS STATE OF MIND

Example: D is on trial for murder. He raises the insanity defense. Witness testifies: D said that hes
the pope, Purpose of the statement isnt to show that its the truth. Purpose is to show his state of
mindhes crazy. Whats relevant is that the statement was said. Anyone who goes around saying
hes the pope must be crazy. Now the key is : Is this statement relevant.

Example: Father is trying to get custody of his daughter, Tracy. The governing law is best interests of
the child. Father argues its in her best interests to get out her moms house because Tracy lives in fear
of her stepfather. If she is fearful, it may not be in her best interests. Father brings in the foster mother
who testifies: Tracy said to me: Hell kill my mommy just like he killed my brother. This statement
is coming in because Tracy believes that the stepdad is going to kill her mother. This goes to her state
of mind. You can infer that shes fearful and its not good to keep her there. The foster mother (W)
can be cross examined to see whether shes lying.
Rule: If the statement shows the mental state regardless of the truth of the statement, then its not
hearsay.

Problem 3H, p. 142
Anna is killed when run over by a bus. Husband brings an actin against the bus company for loss of
consortium. He argues that hes deprived of a loving relationship. The Defense (bus co.) wants to
show to get in Annas will that says Ira is a selfish bum who treated me like shit, all he deserves is
$1. Theory is that if wife didnt like husband, theres no loss of consortium.
Purpose: Not to show that its the truth that Husband was an asshole, but to show state of mind. She
believes hes a jerk and she doesnt treat him with love and affection. So theres no loss of consortium.
Result: Statement is admissible to show her state of mind. Her state of mind is relevant to show that
their relationship is bad and that theres no level.

INDEPENDENT LEGAL SIGNIFICANCE
Rule: Sometimes the mere utterance of words can be legally significant and creates rights and
liabilities. (from substantive law)

Example: Ill pay you 500 bucks for that car. In contract law this is an offer.
Example: Did you hear what Mr. Jones said?
What did he say?
Ill buy that car for $500.
Its coming in for the truth but how would you ever prove contract if the hearsay rule barred it? This
creates an exception. Its relevant because it was said.

Sometimes the mere writing of words gives rise to liability.
Example: Defamation case. Hutter sues D because D said to other people: Hutter is a crook.
The making of defaming statements gives rise to liability for defamation. The real purpose is to show
the statement was made. It has independent legal significance.

Example: Wills. I bequeath $1 to Ira. This isnt hearsay. Its an enforceable bequest.
Example: Real estate K. Im selling Blackacre for 1 million. Real estate law says its enforceable.

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Example: The state accuses the massage parlor of being a House of Prostitution. An under cover
officer testifies: Debra told me.(statements insinuating sex for sale) Does she really mean these
things? It doesnt matter because her words in of themselves are acts of solicitation under the criminal
code. Solicitation for prostitution is a violation of the law itself.

POINT: Know your substantive law and know your purpose.

Strategy: How to get in Xs out of court statement
1. argue what X said is non-assertive language or conduct.
2. Argue that its not declarative, its interrogatory. Its not a statement.
3. Argue its coming in for a non-truth purpose.
You have to make sure the non truth purpose is relevant.

Miscellaneous Hearsay Rules:
1. Non-complaint evidence (others never said anything)
Rule: Generally evidence of noncomplaint is not hearsay (therefore admissible)
Example: You represent Capital Deli. Case is brought for food poisoning. You want to show that
the food isnt bad. You find out they served 35 pastrami sandwiches Wednesday nigh and no one
else complained. P mustve gotten sick somewhere else. Testimony:
We had not other complaints. This is relevant and does not present a hearsay problem.

Example: Wrongful death case. Kid died in motel room from carbon monoxide poisoning. D
wants to put manager on the stand who will testify that the motel never had any other complaints.
Silence is an equivalent to satisfaction. This was admissible: not hearsay. Case established the
general rule that silence is not an assertion (therefore not hearsay).
Hutter argues: How can evidence that no one else complained be relevant? You cant smell carbon
monoxide. Ps attorney shouldve argue 403 to keep it out.

2. Only people present hearsay problems 801a.
e.g. watch time, speed radar, dog barking while sniffing luggage do not present hearsay problems.
These things are admissible because its not from a person. Machine speak doesnt present a
hearsay problem.

3. Toleration of obvious things
A court will tolerate things that are obviously hearsay but are common sense. This includes name,
birth, marital status, age.

4. Indirect hearsay
Example: Did you have a conversation with the informant?
What did you do after the conversation?
I arrested the Defendant.
Is this hearsay? The inference is conveyed- informant mustve said that D has drugs. Thats why
officer arrests him. This is indirect hearsay. Prosecutors call this the end run around the hearsay
rule. Even if the exact words arent said, its still a hearsay problem. The hearsay rule still has to
apply because the informants credibility is at issue.

Bent (NY): D is accused of murdering his wife. Prosecution calls the neighbor. Neighbor, did
you have a conversation the night your wife disappeared? Objection. But counselor was allowed
to pursue. What did you say to her? I said to her, Id get the hell out here if I were you.
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Inference: Wife conveyed something bad about D to the neighbor. Why else would the neighbor
say this?
HELD: Prosecutor cant do this. Under Check, you cant run around the hearsay rule by saying
you had a conversation.

5. Verbal Markers
Example: A gun is found in a brief case. Brief case has luggage tag that says Bill Snow.
Counselor objects- the tag is hearsay. Snow argues that its not even his suitcase and hes been
framed.
HELD: When you have verbal markers which serve as identification tags, it doesnt present a
hearsay problem. Someone can always testify to an identification tag.
This is called the mechanical trace rule.
e.g. model of a car, name on a book, clothing tags, dunkin donuts mug, luggage tags.
6. Jury Misuse of impeaching Evid
If you know in advance W will turn, the P may not impeach b/c the danger of hearsay
and jury misuse is too great here

EXCEPTIONS TO THE HEARSAY RULE
Introductory note: Judge will decide on the elements of an exception. Elements are established under
Rule 104(a). The judge doesnt follow rules of evidence in deciding the elements.

Remember: To meet your burden of proof, you need affirmative proof. Impeaching your witness will
not get you there, so now you need to get those prior statements in. They are hearsay but look for an
exception.

I. Rule 801(d)(1)- Prior Statements By a Witness

801(d)(1)(a)- Inconsistent statements
Requirements:
(1) Declarant who made prior statement must testify at trial (declarant=witness) (common for all 801d)
(2) Witness must be subject to cross examination regarding the prior statement (common for all 801d)
Problems arise when:
a. W dies right after direct: not admissible
b. W takes the 5
th
amendment
c. W doesnt recall making statement (Owen case says no memory doesnt prevent cross)
(3) Statement must be inconsistent with the present trial testimony
a. Statements dont have to be diametrically opposed to be inconsistent. There can be omissions
and additions that make it inconsistent. Additions/omissions make a statement more or less
complete.
b. Inconsistency can be established if Witness says I dont recall. [suppose first time W said
the light was red.] (law doesnt let people off the hook for not being able to recall.) Ws ability
to recall is determines by the judge at a 104(a) hearing.

(4) Must show that statement oral or written was given under oath
(5) Must be subject to penalty of perjury at a trial, hearing, deposition, or other proceeding.


Consider these statements:
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Auto accident case. The Witness said it was red 7 different times. Ws prior statements. Are they
admissible?
1. To the police officer No. Not a hearing. (not under oath)
2. Plaintiffs attorney No. Not a hearing.
3. Insurance claims (affidavit style) No. Not a hearing.
4. Grand jury Yes. Its an other proceeding. (under oath)
5. EBT (deposition) Yes. Explicitly mentioned.
6. DMV hearing Yes. Hearing.
7. Criminal trial Yes. Hearing.

Note: Notarized documents do no count as other proceedings for purposes of this rule because its
not under oath.
However, a sworn statement at the police precinct has been held to fall into the other proceeding
category.
Example: Smith case. A woman files an assault complaint with the police that her spouse beat
her up. At trial, she identifies her attacker as another guy because she has 2
nd
thoughts about
prosecuting her husband. Prosecutor has no case not. But the prosecutor looks at the arrest-
she signed a sworn statement under oath before a notary. Under Washington law, that sworn
statement was made under oath under the course of a proceeding. Her statement is considered
inconsistent and admissible as an exception to the hearsay rule. Result: Jury rejects her
testimony and accepts her sworn statement.
Note: This rule is very useful in domestic violence cases.

Note: In the Webster case, the witness made oral statements. If they put the witness in the grand jury,
it would suffice for the exception.
Practical points: Civil cases- depose all witnesses to memorialize testimony.
Criminal cases- put the witness in the grand jury to freeze the testimony.

Rule 801(d)(1)(b)-Prior consistent statements (triggered by conduct of cross examining atty)
Requirements:
1. W (declarant) has testified
2. W (declarant) must be subject to cross examination on the statement
3. Offered to rebut a recent implied or express charge of fabrication or improper influence.*
Isnt it a fact that you are testifying that the light is red because the D paid you $500?
4. The charge of fabrication is brought out on cross examination (must be done by the advesary)
5. The prior consistent statement must be made BEFORE the basis for the charge of fabrication
arose. Tome
(theory: its just as likely that the prior consistent statement is made up. Theyre lying now just
like they lied at trial)
Example: Witness is testifying for P that the light was red.
The prior consistent statement is made.
Then the Witness marries the Plaintiff.
Prior consistent statement is made BEFORE the marriage. Theres no influence at that time and
hes not lying. This can come in. However, if the accident happens, then the marriage happens,
then the prior consistent statement is made, this cant come in.
Example: Isnt it true that you spoke with your lawyer last night? This triggers all the prior
consistent statements to come in.
Example: Youre the plaintiffs mother arent you? (the mother came before the prior consistent
statement-this doesnt trigger the rule: its like getting married and then making the statement)
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Note: You might be able to get around the Tome decision if you argue that its a nontruth purpose.
Argue its not hearsay to begin with. Its relevant because it was said. Purpose= rehabilitation.
This will be tempered with 403.

*KEY: The prior consistent statement can only come in if its offered to rebut a charge of
fabrication. (Theory: Fairness rule. By cross examination, youve opened the door by charging him
with fabrication. The slimy charge can be rebutted on redirect. The statement can be used for the truth.)
Note: There is no oath requirement. (any of the 7 statements from the above hypo can come in if
you dont need the oath or the hearing requirement)

Note: witness, youve been convicted of 5 felony perjury offenses, havent you? This is not a charge
of fabrication. Fabrication means youre accusing the witness of lying.

It can be an express or implied charge of recent fabrication.
Example: You had a conversation with Plaintiffs lawyer didnt you? And now youre saying
the light was red?
Example: Youre plaintiffs lover arent you? Implication-you made up a story because of
your relationship. This is proper cross examination but it opens up the door.

Rule 801(d)(1)(c)- Identification (NY doesnt allow)
Requirements:
W must take the stand and testify
W must be subject to cross examination.
One of identification made after perceiving the person.

Note: Generally, any time theres been a prior identification, its admissible. (no condition of
when it was made)

Example: W takes the stand: D did it. I saw him.
W, did you view the line up?
Yes. I picked D out of the lineup.
This is hearsay since its coming in for the truth but the exception permits the witness to testify. to
this.
Rule: Anyone (3
rd
person) can testify to the Ws prior identification as long as the W also testified.
1. So long as declarant takes the stand AND
2. is subject to cross

Example: W testifies that D mugged me. Cop testifies. Was a lineup conducted? What did the
witness do? She picked D as the mugger. If the witness is unable to make an in court identification
and doesnt remember the lineup, you can bring in the cop to testify as to what happened at the lineup.

This is all fine. A third party can testify as long as the identifier also takes the stand.
Rule: A witness can also testify that she identified him by a sketch.
Pointing is also an exception.

Example: X picks out Ds photo in a robbery investigation. At trial, X confirms prior ID and point out
D as person who had robber her. Prior ID from photo is admissible. D might make a 403 argument
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since the presence of Ds photo in a mugbook indicated that D has past criminal record and it could
prejudice D.

II. Rule 801(d)(2): Admissions by party-opponent (partys own words are used against them)
**Statement must be offered against a party**

Theory for admissibility: Out of court statements come in because theres no need to cross examine
declarant since people dont make inculpating statements about themselves unless theyre true.
Note: When you talk about an admission, it need not be contrary to ones own interest. The only
limitation on 801(d)(2) is that it must be relevant. Example: D wants to get a loan from the bank and he
makes $250,000. He writes down that he makes 25K on the loan application and is gotten for tax fraud. The
statement he made wasnt harmful to him but that doesnt matter.

5 categories of admissions
Partys own statement. (classic admission)
Statement which the party has manifested adoption or belief
Statement by person authorized by the party to make a statement (agent)
Statement by the partys employeeif employee is acting within the scope of employment
Co-conspirators- statement by one admissible against all co-conspirators

801(d)(2)(a) Partys Own Statement
Example: D tells cop, I ran the red light. D is a party. Statement is introduced against D.

Only statement against the partys interest can come in.
D says: Im not drunk. Youre overreacting. This cant come in. We dont want people to create
statements and to prevent this it must be against ones own interests (self-serving)

Note: Admissions must be made by the party and introduced against the party.
Example: D is charged with DWI. Hes out with his spouse. Spouse tells officer: He shouldnt
have been behind the wheel; he was dead drunk. Police officer cannot testify to this. It has to be
spoken by the party.

Rule: Lack of personal knowledge at time statement was made doesnt preclude admissibility because
you spoke at your own peril!!
Example: Dog bite cases. You own a dog and your neighbor says the dog bit his kid. You didnt
see this happen but you say Im sorry he bit your son. This statement is admissible. Now you
have to explain this away to the jury.

Rule: Speaking in conclusory terms is admissible.
Example: Damn, I was negligent again. It was all my fault. The fact that you spoke in legal
terms is admissible against you.

Rule: Even what you admit in a drunken stupor or in your sleep may be admitted against you!!

Pleas of Guilt
Example: D runs a red light. He gets a ticket from the cop. D checks the guilty box on the ticket
and pays the fine. This is an admission of guilt. At the civil trial where P sues D for reckless
driving, this can be introduced against D. D is estopped from denying it. Admissible

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New York: If you dont plea guilty and youre convicted in traffic court, the conviction isnt
admissible in the civil action. Collateral estoppel effect is not given to traffic court convictions.
Point: Dont ever plea guilty because it may harm you later in the civil action. (The plea of guilty
will be admissible and establish negligence)

801(d)(2)(b) Adoptive admissions
Situation: statement is made by another person.
Example: D is having a conversation with the witness. W says: you fool, you ran the red light.
D replies Yes, I did. Yes I did (under 801(d)(2)(A)is an admission but its meaningless unless
Ws statement comes in. Under 801(d)(2)(b), this statement becomes Ds statement by adoption.

Note: The whole thing comes in with a combination of 2 statements. Hes liable because its the
equivalent of an admission. Its like saying I ran the red light. However, if you say No, I
didnt none of it comes in.

In order to adopt:
Must have heard it
Must have personal knowledge

Rule: Silence is taken as an adoption unless it would be unreasonable for you to say something.
Example: D is on trial for bank robbery. D, girlfriend, and witness are in a hotel room. Witness sees
D wearing diamond rings. The girlfriend says: Hey, you havent seen anything. We have sacks of
money in the back. D says NOTHING. Did D adopt the girlfriends statement?
Test: What would a reasonable person have done? A reasonable person would have denied it. He
didnt, therefore he adopted it.

Example: Girlfriend says to D, while in the back of the squad car: you idiot. I told you wed never
get away with it. D says nothing. In these circumstances, silence would be reasonable. It wouldve
been unreasonable for D to start an argument in the cop car. Therefore, the silence is not taken as
adoption of the statement. Its inadmissible.
Note: This is a Rule 104 court determination. Its up to the court to decide whether a reasonable
person would deny it. If a reasonable person wouldve said something and you didnt, the youve
adopted it.
POINT: When someone accuses you of something, you have to do something affirmative!!

Problem: You can create incidents with this exception.

801(d)(2)(c) Speaking Agent Exception

Rule covers express authority and implied authority.
When you have someone in an official position, that person has authority to speak in the law of
agency. Agency law says that a manager, president has authority implicit in the position.
Theory: Its admissible because what they say is reliable.

Example: CEO says to spokesperson for the corporation: I want you to go in and tell them was fixed
the car. Spokesperson says we fixed the car. This is admissible against the party. Its an agency
relationship. (express authority)
Example: CEO of corporation says we will be responsible for any injuries. This can be used against
the corp. even though the CEO isnt authorized to say this. (implied)
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Note: The rule governs statements made to outsiders and statements made internally. The CFO
making a statement to the junior accountant is admissible too. This exception covers any statements
made by those with speaking authority.

Attorneys are deemed as speaking agents for their clients. Once they sign the retainer agreement,
theres implied authority. The fact that the attorney did not authorize the attorney to speak makes
no difference.

Example: P lost his fingers using a snowblower. It looks like an improper design case. You write
a letter to the manufacturer asking them to settle out of court. You go to trial and it turns out the
client lost his fingers differently. The pre-trial story is different. Manufacturer wants the letter to
come in to show that client changed his story. Letter is admissible even though client didnt
authorize the attorney to write it!!
Example: Matter that gives rise to criminal and civil liability. What the attorney says in the civil
action will be admissible in the criminal action. This extends to pleadings.

Basically, every statement a atty makes (except settlement negotiations) is admissible under the
speaking agent exception.

801(d)(2)(d) Employee Exception (NY doesnt follow)
Rule: Any statement made by an employee within the scope of his employment is admissible against
the employer, if made during the existence of the employment relationship.
Note: The statement is admissible whether there is authority or not. (difference between speaking
agent exception and this exception.)
There need not be any authority at all to make the statement. If a corporation tells employees: Dont
talk to anyone and an employee goes to the press and spills the beans, is it admissible? Under
agency law, employee has no authority but 801(d)(2)(d) says anything the employee says
concerning their employment will be admissible against the employer. N The only limitation is that
the statement must be made during the employment relationship.
Theory: The employee would never lie.

You must show (1)employment and (2) statement was made concerning the employment

Example: CDTA bus plows into P. The busdriver comes and says I shouldnt have had that 3
rd

martini at lunch. This is admissible against CDTA because it concerns his job and its made within
the scope of his Ement. (Note that the statement wouldnt be admissible if the employee was fired)
Note: The statement doesnt have to be made during the employment (9-5 hours), it just needs to be
made concerning the employment.

Example: Busdriver says: My God. Looks like the mechanics screwed up on the brakes again. Does
this statement concerning the brakework concern his employment? No. The statement must match
up with the employees responsibilities. Hes a busdriver. He knows nothing about the brakework.
His employment is strictly bus driving, not another aspect of the business.
[note that 801(d)(2)(c) and 801(d)(2)(d) go together).

Sophie the Wolf case: The Wolf was at Poos home (Poos is an employee of the Wildlife Ranch). A
child next door has been badly mawled and the wolf is found hovering over the child. P sues Poos and
Wildlife Ranch. Three different statements are made:
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(1) Written note- Sophie bit the child. {Poos to President}
(2) Oral statement- Sophie bit the child. {Poos to President}
(3) Corporate minutes- Sophie bit the child. {Poos not there}

Note: The written note and the oral statement come in against Poos against 801(d)(2)(a). (his personal
statement/admission- the fact that he had no personal knowledge is irrelevant)

Wildlife Ranchs liability: P argues this is an 801(d)(2)(d) case. [Might also wants to argue
801(d)(2)(c) because Mr. Poos had authority to make such determinations- always check (d)(2)(c)in
trying to get employee statements in). Mr. Poos is an employee of Wildlife and this statement
concerns a matter within his employment. Result: Admissible.
Rule: Absence of personal knowledge of an employee is irrelevant. It will not preclude its
admissibility. Lack of personal knowledge is a question of weight for the jury to decide.

Corporate minutes: They cant come in against Poos because he had nothing to do with this
meeting, however they can come in against Wildlife under 801(d)(2)(c). The records mad during
the meeting will be admissible because that person had the authority to do it. (The secretary taking
down the minutes has authority, directors have authority to include this statement) Note: If the
court thinks that the corporate minutes are too unreliable, they can use 403 balancing to keep it out.

801(d)(2)(e) Co-conspirator Exception (DONT NEED TO KNOW FOR THE FINAL)
Rule: A statement made by a co-conspirator about or in furtherance of the conspiracy is admissible
against all the conspirators.
Example: (Bourjaily) Bourjaily is tried on drug selling. He is charged with conspiracy with Lenardo
and Lenardo already pled guilty. The DEA agent takes the stand: I spoke with Lenardo. Lenardo said
I have a friend who will be with me. Can the DEA agent testify to what Lenardo said to get
Bourjaily?

Requirements
There must be a conspiracy
Must show declarant and the person are part of it.
Must show statement was made during the course of conspiracy
Must show statement was made in furtherance of the conspiracy

HELD: The statement is admissible against Bourjaily just as if he said it. Proof that Lenardo and
Bourjaily are co-conspirators is from Lenardos statement. Problems with this exception- it could be a
set up since we dont know whos telling the truth. We dont need to cross examine Lenardo on his
statement because of this exception.
Note: This exception is great for going after organized crime.
Q: Can you use the statement itself as proof of the conspiracy? Bourjaily says you can use the
statement itself but thats bootstrapping. This has been amended.
Rule: The statement alone is not enough. If you want to get the statement in, you can but you need
additional proof. (e.g. that Lenardo and Bourjaily were seen on a street corner).

III. RULE 803- HEARSAY EXCEPTIONS: Availability of Declarant Immaterial
Doesnt matter if D is available or unavailable as a W
24 exceptions: Key- the declarant who made the out of court statement need not testify at trial. He
doesnt have to be available for cross examination. W testifying need not be a party/ can be anyone.

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Note:
1. With 803, Declarant must have personal knowledge. This can be shown by (1) statement itself or
(2) other factors.
2. Also ask yourself about 403. What if the statement is not reliable after all.
3. Rule 806 permits you to impeach the hearsay declarant even though he has not taken the stand.
After the statement comes in, 806 will let you cross examine the declarant just as if he was on the
witness stand.

Excited Utterance- 803(2)
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. (not necessarily immediately after the event)
Example: Accident. Someone heard the scream, :Oh my God, the truck was speeding! 4 or 5 other
people heard this statement. Can these people testify? Yes. This is a classic excited utterance. The
declarant has said the statement, and you would want to cross examine this declarants credibility but
under this exception, theres no need to cross examine.
Theory: When people witness an exciting event, what they say must be the truth. Theres no time to
lie or forget!!
Requirements:
(1) Exciting event or condition. (in the eye of the beholder)
(something out of the ordinary and totally unexpected- robbery, car crash)
(2) Made while declarant was under the stress of excitement and caused by it.
Question: When is the person still under the stress of excitement? Its not a pure question of time.
Iron Shell: Little girl spoke of rape in response to police questioning 2 hours later and this was
considered a startling and under the stress of excitement. Note that 14 hours later has been
considered as startling too!
Factors for determining whether declarant was still under the stress of excitement when the
statement was made:
1. Nature of event
2. Was it truly startling
3. Were you involved or were you a bystander
4. Nature of the person (young girl, old man)
5. Lapse of time

This is a classic 104(a) determination. The court must decide if the statement was made under
excitement. In Iron Shell, the young girl was sexually assaulted and almost 2 hours later she talked
to the police and said He did it. She was cool, calm and collected by this time and she made the
statement when interrogated by the officer but this is balanced with the nature of the attack and the
court finds a startling event.
Note: Ordinarily a victim of a crime talking shortly afterwards is an excited utterance. Law
enforcement is tailored to this exception.

(3) Statement must relate to the startling event.
Focus on the permissible subject matter of the event. Relating is meant to be broader than
just describing or explaining. It covers editorial description.
Example: Why did the car not stop. It mustve been going too fast.
OJ Simpson case: Nicoles 911 phonecall. Help me. Hes at the door. Hes going to get me.
Hes done it before. Can the 911 operator testify to what Nicole said? Yes. Its an excited
utterance- its made under the stress of excitement. Hes done it before comes in too as an
editorial description.
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Note: With the excited utterance exception, theres no need that declarant be identified. You just have
to establish the above 3 elements.

Note: An excited utterance can also be in writing.

How to establish the elements for an excited utterance
1. The statement itself can establish the startling event. (oh my God!.classic excited utterance)
All you need to do is show that declarant had personal knowledge. You can show this by the
statement itself.
2. Any other circumstantial evidence to show that the statement was caused by the startling event.
Witness can say: I saw D. She was trembling This establishes excitement.

Example: Husband comes home from work early and tells wife: I had chest pains a few minutes ago
while working out on the Chase. Later he dies. Wife wants to show he died of a work related injury
and her only proof is his statement. She wants the statement to come in for the truth so its hearsay.
Go through the elements of the exception: Its a startling event, the statement is made under the stress
of excitement, the statement is made relating to the startling event.
Laying foundation facts: Note the wife has no knowledge of any of this. But the statement itself
establishes the foundation requirement. Its permissible bootstrapping. A good lawyer will want
corroborating proof, like he came home early and his blood pressure was high.

Present Sense Impression- 803(1)
A statement describing or explaining an event or condition made while the declarant was perceiving
the event or condition, or immediately thereafter.

Unlike excited utterance exception, the event doesnt have to be exciting. But the statement must
be made while perceiving the event or immediately thereafter.
The statement must describe or explain.

Example: 911 anonymous phone call. Im looking out my front window. There are 3 white males
outside the jewelry store. I think theyre up to no good. 10 minutes later, a robbery occurs at that
jewelry store. 10 blocks from the store, police see 3 white males on the street. Can the phone call be
introduced? Note this isnt an excited utterance because shes not agitated. This is a classic present
sense impression. Shes making the statement while shes describing it.
THEORY: People dont lie about what they are observing.

This is a very broad exception! You dont need an exciting event.

Example: A woman is killed in her apartment and the super is charged with her death. The
prosecutions key witness is her best friend. She testifies: I called the victim on the day of her death.
She said to meI have to go, the supers at the door. Admissible? The event is the super showing up
and shes describing the event. This statement is now admissible for the truth (to show the super was at
the apartment at the time of death). Note: This exception might result in perjury. How do we know
that the victim didnt just make up this story to get off the phone with her bestfriend.

Ex: Auto accident. D is driving a blue car, and runs P off the road. P says he didnt see D till last
minute. Ps friend was in the backseat, half asleep. Ps friend says to P: theres a blue car weaving.
Can P testify to what the friend said? Yes, under 803(1), hes describing what hes perceiving.
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Example: Coleman. Coleman is charged with his girlfriends murder. His defense is I didnt mean to
stab her. DA offers into evidence the victims phone call to mom shortly before death. Colemans
not letting me leave. Hes going to kill me. Is this admissible as proof of intent to murder? This
seems like a classic excited utterance but the court says that its a present sense impression.
NOTE: If a situation is not exciting, you can always fall back on 803(1)- present sense impression.
This is very broad. All you need is the declarant observing something shes perceiving.

Only limit on the present sense impression exception is the TIME FRAME. The statement must
be made while perceiving or immediately thereafter. Cts dont allow more than 3 or 4 minutes.

State of Mind Exception- 803(3)
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.

**This exception covers how you feel physically and emotionally.**

4 Basic Uses:
(1) To prove the declarants then existing physical condition

Example: I really have a pain in my stomach. It must have been that sandwich I has last night.
Only the pain part is covered by the state of mind exception. Any further editorialization is not
covered. (But look to 803(4) statements for purposes of medical diagnosis to get the second
sentence in. Or maybe you could try excited utterance or present sense impression)
803(3) only covers what you feel.

Example: Witness testifies: D said, I hate the victim. I want to kill him. This is state of mind
but its also an admission.

Rule: The only limitation on the state of mind exception is that it must be the present existing
state of mind. (Last night when I was home, I got a pain in my stomach. This is past pain and
you cant testify to it. This exception only covers PRESENT pain.)

Note: This rule permits the corroboration of pain. Anyone who heard you gripe about pain
can testify to it. (P is involved in a personal injury action and has a sprained neck. Call a witness
to testify that- I spoke to P a day after the accident. He said his neck hurts terribly.

(2) Prove Declarants subsequent conduct.

Example: Im going to Ithaca on Saturday is admissible to prove that I was in Ithaca Saturday.
This is a statement of intent.

Example- Hillman: Hillman disappears. Theres a body found in Crooked Creek and Wife says
its her husbands. The insurance company thinks that its all a scam and its really Walters body.
Ins. co. wants to introduce letters that Walter wrote to his wife that say: Dear, Im going to
Crooked Creek. Walter is never seen again.
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HELD: The letters show Walters intent. The statement is admissible to prove that he went to
Crooked Creek. Theory: people dont lie about what theyre going to do.

(3) Proving someone elses conduct

Example: Im going to Ithaca to meet with my frat brother, Joe. This is admissible to prove that
Joe was in Ithaca.

Example: Pheaster- Pheaster is charged with the murder of Aydell. One of Aydells friends
testifies: Aydell told me he was going to meet Pheaster in the parking lot. Pheaster is charged
with murdering Aydell. Basis: Pheaster and Aydell met in the parking lot and Pheaster killed him.
Phester says: I didnt kill him; I didnt even know him. Is Aydells statement admissible to prove
that Pheaster was there? Yes. Its reliable. Its a statement of Aydells intent and an implicit
statement of Pheasters intent.
Note: Many courts dont follow this approach because theses statements are too unreliable.
Theres a possibility that Aydell made up the whole thing and was just saying this stuff to
impress his friends.
This rule can permit lies to come in.

Rule: You cant testify to a statement of memory or belief to prove the fact remembered.
Example: OJ trial. Kato takes the stand and says: she told me: OJ is going to kill me. This is
coming in for the truth. Can Kato testify as to what Nicole said? No. You cannot testify as to belief.
This purpose is excluded as a matter of law from 803(3).

Example: Shepherd is accused of killing his wife. Witness says: The wife said: my husband
poisoned me. This is inadmissible. Its a statement of belief. This statement couldve been made to
get back at the husband. Policy- as a matter of law, its too prejudicial so it cant come in under 803(3).
(Maybe you could try excited utterances, dying declaration)

Distinction between State of Mind Non-hearsay and state of mind exception under 803(3);
If its coming in for the truth, use 803(3) exception.
If its coming in to show the statement was made (but actual truth of statement was irrelevant) use the
non-truth purpose avenue.
ALWAYS ASK: Do you want it in to show statement was made or do you want it in for the truth of the
statement?

Role of 403: Probative value vs. Prejudicial value:
403 is applicable if the exception applies, but theres an issue of the evids reliability. If you can point
to evid suggesting lack of reliability of the statement, may be able to keep it out under 403.


Statements made for purposes of medical diagnosis or treatment- 801(4)
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.

This covers past and present feelings. (Dr. my stomach hurts now or stomach hurt last week.)

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Example: Doctor, did you have a conversation with P? Yes. P told me that she had a pain in her
stomach that started after she ate that pastrami sandwich. [803(3) state of mind doesnt cover this]
803(4) does cover this.
Theory: When you speak to get medical treatment, youre not going to lie to your doctor. You want
the disease to go away.

Rule: Statements that describe past, present pain, and sources thereof can come in so long as its
reasonably pertinent to treatment.
Ex: How did you break your leg? I was hit by a truck. Doctor would want to know how
this injury occurred. He needs to know it for medical diagnosis. But what if patient says: The
truck was going 75 mph. This is not admissible. Dr.s dont need to know this for treatment.
They dont need to know all the specifics. Usually doctors just need the general cause.
Statements as to fault will usually not qualify for admission under this exception.
e.g. a statement made by a patient that he was shot would be admissible but not a statement that he was
shot by a white man. (not reasonably pertinent to treatment)

Key: Does the Dr need to know? If you want to get the statement in, you have to prove that the Dr
needed to know it for treatment. P would do this by calling expert Ws. Expert can lay a foundation.

Rule: Statements dont have to be made to a doctor or health care professional.
Focus on why statement was made not who it was made to.
Example: I says to my mom: My stomach is killing me. Mustve been that pizza I ate. Mom can
testify to this. Mom will get that info. to the doctor or the hospital.

Rule: Statements of medical history can come in for purposes of medical treatment.
Example: When you go to a doctors office, they ask you what happened to you.
Doctor, what did Hutter tell you about how he felt? Can the doctor testify to all the history you gave
him? Yes. P can testify to how he felt and the doctor can corroborate.
Testifying physicians: Even if a physician examines P for the purposes of trial, he can still testify to
the history P gives him.

Past Recorded Recollection: 803(5)
A memorandum or record concerning a matter about which a witness once had knowledge but now
has insufficient recollection
Requires the availability of the declarant (only exception like this in 803)
Example: D is charged with burglarizing Ps apartment. P calls the cops and insurance carrier. It goes
to trial 1 years later. Prosecutor asks P: What was taken? P replies I dont remember.
Prosecutor shows P Peoples Exhibit A. What do you do when refreshing recollections doesnt
work? Can Ps own notes about what was taken come in? Yes.

Requirements:
Declarant must be the witness who once had knowledge of the matter
The witness lacks present recollection of what he wrote down
The statement accurately reflects knowledge he once had.
He made or adopted the statement
{note: when the verifying witness has not prepared the report, but merely examined it and found it
accurate, he has adopted the report and it is therefore admissible.}
The record was made while the matter was still fresh in his mind.
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{this is far less strict than 803(1). A record made a day later is ok. Example- doctors note after the
operation within 24 hours is fine.}

Example: D has made an incriminating statement to W (after he shot V). W gives a written statement
to cops the day after the arrest. Because its a writing, its hearsay so hopefully you can refresh
recollections. But if this doesnt work, you have to try to get the statement itself into evidence by
resorting to past recollections recorded.

Note: The witness must take the stand and testify to this past statement. W2 cant take the stand and
testify to W1s statement.

Must lay foundation that W perceived the event and doesnt remember all the details and made
statement when fresh in his mind. Judge makes a 104(a) determination.

HYPO: Homeowner, What was stolen? I dont remember.
Did you make a list? Yes.
When did you make the list? As soon as I got home.
Did the list reflect accurately what was missing? Yes.
Did you remember what you wrote on the list? No.

This is all admissible under this exception. Diaries and a cops notetaking from an investigation are all
situations within 803(5). Notes can be utilized!!
CAVEAT: second sentence. If admitted, the record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
Result: The jury cannot see the past recollection recorded.

Business Records Exception- 803(6)
This exception covers anything recorded during the scope of business.
(unlike 803(5) the availability of the person who made the record is unimportant)
Note: The exception is broad. It covers storage of info. on disks, notes on a sheet of paper, any format.
The record can be created by a business, institution, association, etc. The exception covers church
records, hospital records, bookmaker records
The record may contain events, conditions, opinions, diagnosis.

Example: Cops opinion on paper is admissible.
Example: Diagnosis: In my opinion, the patient will never walk again because he was hit by this bus.

Requirements for admissibility of the record:
(1) Record must be made at or near the time of the event
(2) Record must be made in the course of regularly conducted business.
(3) Regular practice of the business is to make a record or to record the event.
Example: Hospital record is made 5 minutes after medications are given. Its a regular practice of
the hospital to record that event.
(4) Record was:
a. made by one with personal knowledge OR
b. made by one who receives the information from one with personal knowledge and a duty
to transmit OR
i. person transmitting the info must be in a relationship w/ the recorder
c. another hearsay exception that covers the information (double hearsay)
54

Example: Auto accident. Police officer investigates. Bystander tells cop The blue car ran the red
light. The record was made at or near time of the event. Police department is a business, its a regular
practice, the cop doesnt have personal knowledge. But does he receive the info. from someone who
has personal knowledge and a duty to transmit? No. The bystander had no duty to transmit this
information to the cop. Result: Inadmissible.

Note: There is a 403 limitation in the rule. (unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness) If a court gets the feel that the record
is phony, then they can exclude it.

Laying the foundation
You can lay a foundation by the testimony of a person who oversees the records OR other qualified
witnesses.
The maker of the record does not have to testify. Someone else can testify to the procedures of how
a company works. The person who lays the foundation does not have to have personal
knowledge of the event.
All you need is a person whos familiar with the way records are made. If a Nurse who made the
record is gone, you can bring in the custodian if he knows its the regular course of business of
AMC to make the records. You can discern from the record itself that the Nurse had personal
knowledge.

Petrocelli case:
Facts: Petrocelli claims that Doctor Gallison committed malpractice with the hernia operation. The
Doctor severed the nerve during the operation. Doctor G. says: I didnt sever the nerve. Ps first
witness is his wife. Wife testifies: The Doctor told me: I botched up the operation. (This is hearsay
but its admissible as an admission.) Expert 1 agrees that the nerve was injured but hes not very
qualified and he didnt examine P. This was a weak case so P tried to get in evidence of Dr. Schwartzs
examination after the second operation.
2 business records at issue:
(1) Record prepared by Dr. Schwartz. the nerve was severed.
P argues that Dr. Schwartz had personal knowledge that the nerve was severed. Its his opinion and
it ought to come in.
Note: Just because something is in a medical record, dont assume its the opinion of the Dr.
The Court is unwilling to find that this is Dr. Schwartzs opinion because there is nothing but a bare
conclusory sentence. If you want a record to come in, you must make sure that there are a lot
of findings prefacing the conclusion to show that the doctor really thought this!! To be
admissible, the notation has to represent either the opinions of the doctors who made the notations
OR the diagnosis of some other person with knowledge (a colleague) who reported to the maker of
the record as part of the professional routine. If entries are merely what Petrocelli told the doctor,
its not admissible because Petrocelli does not have a DUTY to TRANSMIT.

Business duty comes from someone associated with the business (e.g. a nurse). Theres no
reliability from an outsider.

Key Question: What the SOURCE of the entry? The source must have a duty to transmit.
Patients are not part of the regular business routine. Since Petrocelli could be the source of the
info, the 4
th
prong of the analysis is not satisfied.

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Note: 803(4) statements made for purposes of medical diagnosis is an exception that couldve been
used in the Petrocelli case. The statement may have been admissible under patient history.
Double Hearsay problem: To get a statement in, you might need 2 hearsay exceptions. This
record has 2 statements. Petrocelli to Schwartz (803(4)- to admit the patient history) and Schwartz
to record (803(6)- to admit the hospital record). You need a combination of these two exceptions.
{Petrocelli didnt argue 803(4) at trial because it wouldve revealed to the jury who the source of the information was
and it would appear self serving to the jury)

HYPO: Friend says to Nurse he drank a lot, Nurse to chart. Source of info is outside the
business chain. This is a separate statement so you need to look for another exception. 803(4)- The
statement doesnt have to be made by the patient, as long as the purpose of the statement is for
medical diagnosis. This is admissible using 2 hearsay exceptions- 803(4) and 803(6).
Once youre out of the business chain, you cant rely on 803(6).
Always ask yourself what the source of information is.

Consider these 4 entries from Albany Medical Center:
Entry 1: Nurse takes vital signs and records it. She has personal knowledge. If the nurse takes the
temperature and tells the intern to record the patients temperature, this rule covers it.
Entry 2: Doctor tells nurse to record physical symptoms. Nurse writes down that patient was
moaning. Nurse doesnt have personal knowledge but doctor does.
Entry 3: Friend comes into emergency room and tells nurse: He had several drinks. Nurse has a
duty to write down things that have to do with a medical condition. This is pertinent to diagnosis
but it doesnt mean its admissible. Its still an outsider relaying the information he doesnt have
a duty to transmit.
Once you have someone outside the business, you have a Petrocelli problem. Result: inadmissible
up to this point. Its not reliable.
Entry 4: EMT tells nurse: Theres alcohol on his breath. Nurse writes it down. The EMT is
employed by Guilderland town, not Albany Med. But hes part of the usual business routine! He
doesnt have to be employed by Albany Med. Theres reliability from the EMT. EMT is under a
duty to ensure the accurate transfer of info. EMT to Nurse. Nurse to chart. (admissible)
Note: You must go entry by entry. You cant just get the whole record in.

HYPO: CDTA bus runs over your client. As part of their routine, CDTA sends out an investigation
team to the scene of the accident. Investigation teams report says the pedestrian was at fault when
he walked in front of the bus. The bus driver no longer works there. CDTA wants to admit it under
803(6).
(1) Diagram of the accident scene. This is admissible since its the directors own observations.
(2) Bus driver tells the Investigator: I was only going 5mph. This guy came out of nowhere. The
Investigator records it. Investigator has no personal knowledge but the bus driver does and he
has a duty to his employer to cooperate with the investigation.
(3) Witness tells investigator, The bus driver was going too fast. Investigator records.
Admissible? No. Witness is outside the business duty. He has no duty to cooperate with the
investigation. Not admissible as a business record but is there another exception that covers it?
Maybe excited utterance.
(4) Investigator takes a statement from the plaintiff. P says to the investigator: I never looked and
now Im paying for it. Theres no duty on the Ps part. Not admissible under Business records
but it is admissible under 801(d)(2)(1)= its an admission.
Suppose the statement was I stopped, looked, and listened, he still ran me over. This isnt
admissible as an admission because it must be offered AGAINST a party.
56

Key factor in keeping out a business record: if its made with an eye out for litigation. If the
source lacks trustworthiness, its inadmissible.
Example: If the bus driver says he was going 5mph, hes covering his ass. He knows theres going to
be litigation. This may be a factor for exclusion. Were not saying the bus driver is lying. Were
talking about the circumstances under which the statement was made.

Public Records Exception- 803(8) (govt records could also get in under 803(6))
Any type of record made by any government official of any government agency is generally
admissible. (e.g. Births, marriages, deaths, weather, events, factfinding investigations)
Encompasses any government==state, county, town, any municipal agency.

NOTE: States---- Police reports = Business Record Exception
Federal ---- Police reports = Public Records Exception

Three categories of admissible public records:
(1) General documents describing activities of the office or agency.
(2) Matters observed by public officials pursuant to duty(most come under this)(can be a 1 time only
report)
(3) Factual Findings (if government conducts an investigation after the accident, that report is now
admissible) opinions, conclusions, inferences drawn from the facts are included
Its only admissible in civil cases or against the govt in crim cases. Not admissible against
defendants in criminal cases.
Example: (Baker) Note that the approach is similar to Business Records.
Auto accident. State trooper investigates and writes up a report. Party wants to introduce report.
Admissible? Police reports are public records under Baker. (NY, use biz records exception)
3 entries: Which party had right of way?
Entry 1: Observations by the state trooper. Skid marks, etc. This is admissible because its a matter
observed pursuant to duty. He has personal knowledge.
Entry 2: Officer concludes: Plaintiffs car ran the red light. This conclusion is based on his
analysis of the investigation. Baker says this is admissible as factual finding.
Rule: When the govt investigates and makes conclusions, it is considered a factual finding.
Beech case: Death of navy pilot. Navy investigators conclude- pilot error. Ps family claim negligence
of the manufacturer. The manufacturer wants to admit the agency official report that indicates pilot error
as the most probable cause of the accident. Supreme Court agrees with Baker. Factual findings are to
be broadly construed. Presumption: Factual findings are accurate and reliable!
**If you want to keep a record out, you must show that the record is untrustworthy. The
burden is on the adversary to show untrustworthiness.** Adversary must show several factors:
1. Nature of investigation
2. Skills involved
3. What is entailed
4. How long it lasted

In Baker, P has to prove now that the government agency did a sloppy investigation. He has
burden of showing report was improperly prepared. (note that the report covers any government
agencythe report of the village elevator inspector is admissible).

HYPO: Products liability. If you have a report from the government traffic commission who
did a report of Audi steering and the reports says steering was defective, to establish a prima
57
facie case, all you have to do is introduce the report into evidence. Proponent doesnt have to
show report was properly done. This is a major benefit to litigants. Result: Youll need to
have a mini hearing on admissibility under 104(a).
Point: Government reports are great for auto accident and products liability cases. If you
can get the report, you can win. Now all you have to do is establish causation. You just have to
get that report certified you dont even have to lay a foundation for it to be admitted.

Entry 3: Slabach Officer
Officer Record Admissible?
Use same analysis as Business Records exception. Whats the source of the record? Is he outside
the business chain? Yes. So look for another exception. 801(d)(1)(b) prior consistent statement.
Slabach was already savaged on cross. His prior consistent statement may now be introduced.

Exceptions to the admissibility of public records
Matters observed by a police officer in a criminal case are not admissible. If Baker was a
criminal case, the report would be inadmissible.
Factual findings are not admissible against a defendant in a criminal case. Theory: Police
officers lie. We dont want D to be convicted based on this report. This is done to protect
confrontation rights. D ought to be able to cross examine.

Who is included in other law enforcement personnel?
803(8)(b) excludes matters observed by police officers and other law enforcement personnel in
criminal cases.
Oates: Drug prosecution for heroine possession. White powder must be shown to be heroine.
Prosecution has to lay a foundation and needs to show chain of custody. It goes to the chemist.
Chemist says its pure heroine and writes up the report. Chemist doesnt wind up testifying.
Prosecution uses 803(8)(c) to get the record in as a factual finding.
HELD: A chemist is a law enforcement personnel. That report is not admissible. Result: Chemist
would have to testify.
803(b) and (c) RULE: Police and law enforcement reports are not admissible against Ds in
criminal cases.
Note: If the chemist is testifying and doesnt remember, you could try past recollections recorded.

Note: Always think 803(8) when you have a government agency. Conclusion, fact findings, and other
peoples statements subject to Business records 4
th
prong analysis will be admissible.

Learned Treatises- 803(18)
Under Federal Rules, you can use a learned treatise.
Example: Medical malpractice case. Williams Obstetrics treatise can be used as a substantive
evidence on your direct case.
2 requirements:
(1) You need to use it in conjunction with an expert
{you can use it in conjunction with cross examination}
(2) Show its a reliable authority. {Ask the doctor if he considers this to be reliable}

Example: Article by oncologist at Harvard. Hes too expensive to get as a witness. So you try to get a
doctor from across the street. Doctor, in forming your opinion, did you consult any materials? I
read the article in the New England Journal of Medicine by Dr. Strum. Dr. Strum stated that
This article comes in conjunction with the expert witness.
58

The treatise can be used to contradict the expert.
In NY, cannot use a treatise for substantive evidence. You can only use it for cross examination
purposes and then you can only use it if your doctor acknowledges it as a reliable source.

RULE 804: HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

Must show that declarant is unavailable under 804.

Note: An affidavit is the most common way to show your client is unavailable. Im sick as a dog. I
cant get out of bed.

(1) Exempted by privilege
5
th
amendment, attorney/client, husband/wife. (Declarant takes the stand and claims a privilege)
(2) Persistent Refusal to Testify
Threat of contempt is there. (fear of being killed)
(3) Testifies to lack of memory
I dont recall. (you may be able to use prior recollection recorded if hes there)
(4) Illness, death
Witness can put in his own affidavit.
(5) Unavoidable Absence
Witness is absent from hearing and the proponent of Ws statement has been unable to procure
witnesss testimony by process. (e.g. W is beyond subpoena power of court)
You must always make a reasonable effort and subpoena the witness. (get them out in advance)
o Requires simply more than one or 2 attempts
Note: A witness is NOT unavailable if his unavailability is due to some wrongdoing. (you cant
procure absence of the declarant)

Categories of hearsay exceptions under 804(b)

Prior (former) testimony-804(b)(1)
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.

You can read in the witnesss testimony from a prior deposition.

Classic situation: W1 testifies at first trial. D is convicted. W1 dies by the time appeal comes around.
W1s transcript can be admitted as long as there was an opportunity to cross in the prior proceeding.
Note: You would rely on 2 hearsay exceptions to get the transcript in. The former testimony
exception authorizes receipt of the transcript as proof of what he asserts. The public records exception
of 803(8) authorizes receipt of the transcript as proof of words uttered by the witness.

HYPO: D is charged with murder. At the first trial, hes convicted. The conviction is reversed. It
goes back for a new trial. Key prosecution witness is the former girlfriend and she testifies that he
always carries around a gun. Defense attorney was horrible and there was a pitiful cross examination.
They cant find this witness when the appeal comes around. Result: Her transcript from the prior trial
59
is admissible even though the cross examination was pitiful because there was still an opportunity to
cross. The incompetency of the cross exam doesnt automatically preclude admissibility. All you can
do is argue 403.
It doesnt matter that youre the new attorney on the case. Youre stuck with what went down below.

Note: Rule also applies to depositions. You take depositions to freeze the testimony. You also take
the deposition in case a witness dies. Most attys dont put effort in the depositions. Can come back to
haunt you. Result: Must prepare for a deposition like youre preparing for a trial. Put in 100% effort.

Grand Jury testimony
Rule 801(d)(1)(a) allows grand jury testimony when it is prior consistent but not now.
Example: Mob case. Government subpoenas A and B to implicate D. They instead testify at Grand
Jury that D is innocent. D is convicted anyway. Now on appeal, D wants to use A and Bs grand jury
testimony against the government. If party against whom youre offering it had an opportunity to cross
then its admissible. BUT-
Grand jury testimony is not admissible for prior testimony because there is no opportunity for
cross examination.

Example: DMV v. Defendant. At the DMV hearing, the police officer testifies. Suppose theres a
fatal car crash. You represent D. A civil case and a criminal case also result. At the DMV hearing, the
officer concludes that D was drunk. Then the personal injury case and the criminal case starts. Police
officer has moved. Can his testimony from the DMV be used against your client? Yes. The Rule
encompasses proceedings in different matters. This can come in if theres an opportunity or similar
motive to cross. Defense Counsel in that DMV case had an opportunity to cross examine the police
officer. Result: this comes in with the civil and criminal case.
Key the other side (party against whom its offered) must have the opportunity and motive.

Example: Auto accident. Driver and passenger injured. They bring 2 separate lawsuits.
P1 testifies against D in his action. P2 then brings his action. Even though its 2 separate actions, what
P1 testifies in the first case is admissible in the second case against the defendant because of the same
motive and opportunity.
Suppose P1 sues Driver 1 and P2 sues the other motorist, Driver 2. D2 isnt a party to the prior lawsuit.
Therefore the testimony cant come in.

Dying Declaration- 804(b)(2)

Declarant must be unavailable. Declarant doesnt have to actually died. This exception covers
statements made under the belief that death is impending.
Requirement #1
Foundation requirement: Must show that statement was made on impending death.
A police officer testifying says he goes up to the dying person and the person says x Thats
enough circumstantial evidence.

Example: D got me.
Just need to show unavailability- declarant doesnt have to be dead.

**In criminal cases, the rule is only applicable in cases of homicide.**
Example: Delvarmo got me. But then the person recovers and sues for assault. The
statement cant come in. Its only useable in homocide.
60

**The Dying declaration is available in all civil actions.**

Example: The only witness in the suit is a cop. Delvarmo got me. As a result, the church will never
get the money I embezzled. If church sues the estate, the church cant get this other part in under
dying declaration. Requirement #2: The exception embraces only those statements concerning
the cause and circumstances of impending death. It might be admissible as an admission under
807. (Or maybe you could use excited utterancedeclarant doesnt have to be unavailable)

Statements Against Interest- 804(b)(3)

This looks like an admission. But compare with 801(d)(2)- this is an admission by a party
introduced against that party.
When a statement is offered by a party look to admissions, but this rule (804(b)(3)) governs
people who are not parties.
Only applies when statement is made by a person who is not a party to the suit and must be
contrary to declarants pecuniary or proprietary interests.
Questions: Will it be relevant to the lawsuit?

Example: Auto accident. P v. D (car dealership). P wants to offer proof of a statement of employee of
D. Employee told me: I screwed up the brake job. Problem- the statement is made after the
employee was fired. Is the statement admissible against the defendant?
1
st
to think of is statement made by an agent. 801(d)(2)(d) doesnt apply because hes been fired.
Suppose employee is now dead. Employees statement is against the declarants (employees)
pecuniary and proprietary interest. This comes in because the statement is subjecting the declarant to
criminal or civil liability.

Example: Criminal case. You must prove possession of stolen property. Elements: (1) stolen, (2) D
knew it, (3) possession. D argues he didnt know it was stolen. Declarant says to 3
rd
party: D told me
he has the stuff I stole. This comes in to establish the element of knowledge. Its against the
declarants interest because hes implicating himself and subjecting himself to liability in a later suit.
This statement could be used as an admission.

Example: Williamson. Williamson is charged with drug possession. Proof against him comes in by
statement of Harris. Harris arrested for coke possession. Harris says: The coke I had belonged to D. I
just had it. The police officer now testifies to what Harris said.
1) I have coke.
2) Its Williamsons
Q: Is this statement admissible against Williamson? Supreme Court says no.

Rule: All parts of the admitted statement must be against the speakers interest. The other
sections arent reliable. Theory: Harris isnt lying when he says he has the coke but when he says its
Williamsons, he could be lying.
Note: This is an exception of limited utility. If youre just trying to establish an element of a case (e.g.
that the brakes are bad), its good for that.

HYPO: Wife gets a call in the middle of the night. A woman says: Ive had an affair with your
husband for 2 years, I have AIDS. Wife brings an AIDS phobia case. Its hearsay but is it admissible
under an exception? In NY law, best bet is declaration against persons interest. You must find out
61
who this person is. Detective found womans name. Is a name sufficient for declaration against
interests? Court was willing to let it in.

Family History- 804(b)(4)

Forfeiture By Wrongdoing- 804(b)(5) (DONT NEED TO KNOW FOR FINAL)
Covers situations where witness is given a statement before trial. Ex. Grand jury testimony.
-If declarant is unavailable at trial because of threats or intimidation or the witness is killed, this
exception allows the statement to come in.
Problem: Proving the intimidation was linked with the defendant.
Example: Gang member in jail. Civilian witnesses are threatened by other gang members. Do you
have to show defendant ordered the intimidation? Commentators say as long as you can link up the
intimidation with the defendant, it may be enough.

The Residual (Catch All) Exception- Rule 807
Catch all exception permits hearsay to come in if it has the RING OF VERACITY.
Requirements
(1) Statement offered as evidence of material fact
(2) More probative on the point for which its offered than any other evidence
(3) Interests of justice will best be served.
(4) You must give notice to the other side.

Dorian case: A 4 year old girl tells the social worker through a series of interviews that she was
sexually assaulted. The only exception these statements can come under is Rule 807. No 4 year old
girl is that precocious to invent something like this. In describing her assault to her counselor, it rings
true.

Analysis:
1. Is it hearsay?
2. Is there an exception?
3. If no, can you fit it under 807?

Courts have expanded this exception to include:
1. Grand Jury testimony
its not prior testimony since theres no opportunity to cross. Suppose witness is dead.
Several courts say that a witness will not lie in a grand jury because of the oath and the fear of
God. It rings true.
2. Diaries
Victim writes in her diary: he beat me up again. I dont know if hell do it again. I still
love him.
3. Affidavits, letters, handwritten notes

The only things that are kept out are the things that are so self-serving.
Example: A DWI defendants diary entry- I wasnt drunk.

DOUBLE HEARSAY Rule 805
W takes the stand and says: X told me that Y told him that D committed the murder.
Theres 2 statements- (1) Y to X (2) X to W.
YXW
62

You must consider each link separately. If on link is not admissible, the whole statement is not
admissible. Everyone involved in the statement must fit an exception.

Example: A hospital record includes the patients age. The source of the info is the Wife.
Wife Nurse. Nurse record.
The hospital record would qualify as a regular entry under business records. However,
the Wifes statement to the Nurse isnt covered by business records because she is not part of
the business routine. (no duty to transmit). However, he statement qualifies as a statement for
the purposes of medical diagnosis. Result: Each link of the chain is admissible.

Rule 806- Attacking and Supporting Credibility of Declarant
When hearsay is admissible, jury will hear what declarant said. You can impeach that hearsay
declarant as if hes on the witness stand w/ any outside evid.

X told me he saw D shoot the victim.

If you have proof that X is a convicted felon, you can bring that in after the witness is finished. You
can impeach Xs credibility even though hes not there.

Note: If its not hearsay, its admissible if its relevant.
If its hearsay, look for an exception.

RULE 404- CHARACTER EVIDENCE RULE

Evidence of a persons character (specific acts committed in past, opinion, etc.) is NOT admissible
for purposes of proving action in conformity.
Character- ones feature, trait, quality of ones person.
404(a) says that any means to prove conformity is inadmissible.

Policy: We have this rule because of fear of jury misuse. Zackowitz situation- Evidence that D has
guns in his house is inadmissible to show that hes a walkin time bomb and must be the murderer. D
shouldnt have to defend his entire life. Its logical and probative but kept out.
Note: Any time you hear evidence about what your client did, there may be a 404 problem.
As a matter of law this type of evid is precluded from being let in, when the proof is to show
conformity
Ex: D is charged with murdering V. D claims self defense. Self defense requires that V was the
aggressor and D was in rsbl fear for his life so he acted accrodingly. D takes the stand: no crim record.
D testifies that V told him the day before that V was going to get D. Is that evidence admissible?

Consider three broad rules:
RELEVANCE? Purpose- show self defense. Inference is that when V told D he was going to get him,
D believed V was put in reasonable fear.
HEARSAY? V tolf me. Its being introduced for its truth, but 803(3) applies [then existing state of
mind exception]
CHARACTER EVIDENCE? Offered to prove he acted in conformity? If D introduced this statement
to show conformity, its barred by 404(a). But, D didnt articulate a purpose showing conformity.
He introduced Vs statement to show belief that V was the aggressor and that D was in fear of V.
Purpose is to show self defense.
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Example: Personal injury auto accident, You represent P. D is accused of inattentiveness. You have
his best friend whos willing to testify. Best friend says hes a terrible driver. DMV records say hes
received 25 moving violations. This is relevant but inadmissible character evidence.

Example: William Kennedy Smith on trial for rape. He said it was consent. 3 other women in 3
different cities are willing to testify that this guy raped them. This is inadmissible.

Example: OJ case. Prosecutors main point: He bear the living hell out of Nicole all the time. Once
an abuser always an abuser, This is inadmissible character evidence.

Example: 3 robberies. Each robber wore a Hilary Clinton mask. Now theres a 4
th
robbery. Same
mask. Can you introduce the other 3 robberies to prove the 4
th
? Not under 404. Policy keeps it out.
(But you can introduce it for the purpose of identity) Suppose we have 3 convictions. Is this
admissible to show he did the 4
th
? No.
{Note: Hilary Clinton mask robberies can come into prove identity- see infra.}

Note the difference between impermissible character evidence and IMPEACHMENT.
If D takes the stand and says he didnt commit the robbery, and on cross examination, prosecutor says:
You were convicted of 3 prior bank robberies werent you? this is impeachment.
Rule 609(a)(1) Prior convictions are permissible for impeachment.
609 says when you are impeaching, you can bring prior acts in to show hes a liar. Its admissible.
404 says: When youre using it as substantive evidence of conformity, its not admissible. However,
404 cannot block impeachment material.

Note: This is why we have a limit on 609. We use the Alexander balancing test because of jury misuse.
Well exclude if prior act is too similar. This is consistent with Rule 404.

Note: If a prior conviction is coming in for impeachment purposes, a limiting instruction needs to be
given to the jury. You may only use the prior 3 bank robberies to assess the credibility of the D. You
may not use it for: Once a robber, always a robber.
It all depends on the purpose. Result: If you represent D, do you put him on the stand. If he
doesnt take the stand, the jury will never hear about the bank robberies. If D takes the stand, the
robberies will come in during cross examination. {Remember 609s balancing test}

Problem 4A, p.466. Don is on trial for assault. The prosecutor calls Coach Jones as a witness to testify
that Don is prone to violence. Don objects that the testimony is irrelevant. This is an improper
objection. Its not irrelevant. Its just barred by the character evidence rule which prohibits character
evidence to prove action in conformity. This applies to both civil and criminal cases.

Exceptions to the Character Evidence Rule

404(a)(1)- Character of accused. Applies only in criminal cases.

Don is allowed to call Reverend Gram during his case in chief to testify that Don is a peaceful, non-
violent person. 404(a)(1) permits what is prohibited on the part of prosecutors.
Result: The accused is allowed to open the door and put in character evidence.
D can use conformity for exculpatory purposes but prosecution cant use it to show blame.

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Most jurisdictions hold that once you put in good character evidence, you can get a jury charge. The
accused is entitled to an acquittal charge. Good character evidence alone may create a reasonable
doubt as to guilt.
Result: If you get someone well respected in the community (e.g. Bishop Hubbard), then its a
powerful tool.

Limitations:
(1) It must be relevant to the crime to which youre charged. The character trait testified to and the
element of the crime must match.
If youre charged with murder and Bishop Hubbard testifies In my opinion hes an honest
person thats not relevant. If he testifies hes peaceful then its relevant.
o Trait must be relevant to the crime charged
(2) Manner in which you prove character witness testimony
404(a)(1) method of proof is governed by Rule 405. 405 is a procedural arm.
405 states that in all cases where character evidence is admissible, its limited to opinion or
reputation. You cannot testify to specific acts!
Reverand Gram cant state the reasons OR basis for his opinion. (like 609) All he can do is
say that hes a peaceful, nonviolent person.

HYPO: Tax fraud case. Hutters client is the senior accountant. Jills client is the junior
accountant. Jill calls a nun as her character witness to testify that hes an honest person. (An
honest wouldnt defraud the government).

(3) If you open the door, the prosecution can rebut.
Example: Rev. Gram testifies. On rebuttal, prosecution can bring in Coach Jones to testify
hes not peaceful. Hes a mean SOB. What theyre precluded from doing on direct, they can
now do!! Note how this undercuts the basic notion of Rule 404.

Example: Ds been convicted of perjury 2 times already. (note theres no balancing because
hes a liar). Bishop Hubbard testifies: Hes peaceful. But now prosecution can rebut.
Note: Rebuttal is limited to the trait that the Bishop testified to.
Prosecution can now bring in a character witness to say: Hes a violent person. In practice,
make sure the D doesnt have this sort of background.

(4) Youre limited to the crime
Law abiding is permissible and covers any charge.
Michaelson (HO 15): Michaelson is charged with bribing an IRS agent. His defense: The
agent came on to me. Michaelson calls a character witness that testifies that he has a reputation
for honesty and truthfulness and being a law abiding citizen.
Then the witness is cross examined: Did you ever hear that D violated the trademark law in
1920? Did you ever hear the D was arrested for stealing property 20 years ago? These
questions are permitted under Rule 405(a), second sentence.
On cross examination, inquiry is allowable into relevant specific instances of conduct.
Michaelsons witness said he was law abiding and honest. He can be cross examined on these
traits. (also remember that cross is limited to the scope of direct)
Inquiry as to an arrest is permissible because it effects reputation.
Theory: If witness says he knows that D violated the trademark law, prosecution can say,
and you still think hes an honest person? or if he doesnt know about it, it shows he
has incomplete knowledge. Its a win/win situation.
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Note: This allows arrests that happened 20 years ago. Result: Make sure your client doesnt
have these things in his background when you put on a character witness.

Problem 5A: Reverend testifies that Don is peaceful. On cross exam, Reverend did you know
Don was convicted of perjury? This is impermissible. Perjury has nothing to do with
peacefulness. If Reverand testifies that Don is law abiding then you can ask about perjury.

Rule 404(a)(2) Character of Victim.
This is limited to criminal cases where D raises the defense of self defense.
The Defendant in a criminal case who claims self defense can introduce evidence of a pertinent
character trait of the victim of the crime. Again, this is limited to opinion/ reputation.

Example: D is accused of murder. Defendant raises self defense. Elements of proof:
1. Show youre not the agressor
2. Reasonable fear for your life.
To show that the victim was the aggressor, D can call the police chief to say that the victim was
always picking fights with people.

Note: 404(a)(2) is subject to Rape Shield statute (412- in a rape case, lack of chasteness is
inadmissible. D cant bring in evidence that she had a reputation of being easy)

Note on similar assault cases: P sues D for assault and battery. (civil suit) D was just convicted in
a criminal case. D cannot bring in Rev. Gram to testify that hes a peaceful person because its not
permissible in civil cases. Rule 404(a)(1) talks about the accused. D in a civil case is not the
accused.
Result: Inadmissible in a civil case.

Note: 404(a)1 Whenever D takes the stand in his own defense, it doesnt automatically open the
door. You can only put your character at issue if you affirmatively interject it by calling a
character witness. (or if D himself says hes a peaceful person). Note that exaggerating ones
peacefulness may open the door.

Whats not included in the Character Evidence Rule?
(1) IMPEACHMENT EVIDENCE (youre not doing it for conformity, youre doing it doe credibility)

(2) In some civil cases, you need to show character in order to prove substantive elements of a case.
(a) Custody of a child- Character, in the sense of being a good parent is at issue.
(b) Negligent Entrustment- Giving a gun to a 10 year old kid. Substantive law says youre
negligent. P has to prove that D was by disposition careless to prevail on that point that D
shouldnt have entrusted the gun to him.
(c) Defamation- When the defense is that the statements are true, character is at issue. If a
basketball player sues the newspaper for reporting that he shaves points for $, and this
happens to be true, evidence can come in of point-shaving in particular games.

(3) OPENING THE DOOR
Auto accident. P says: D ran the red light. I obey every traffic sign. I am very safe. {note you
can object because this is character evidence but P has now opened the door. You know P is a liar
and a bad driver, and now you can show to the contrary.

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(4) 404(B) SECOND SENTENCE
You cant use prior acts to prove conformity but you can use it for other reasons.
Character evidence may be admissible for other purposes such as proof of motive,
opportunity, plan, intent, preparation, knowledge, identity, or absence of mistake or
accident
MOPIP KIA
Example: Evidence that OJ is a wife beater can could have come in under 404(b) second sentence
if Marcia Clark could say its proof of intent.
Example: William Kennedy Smith. Evidence of 3 prior rapes is inadmissible to show once rapist
always a rapist. But this can be admissible as proof of intent also.

Point: Know your purpose!! The Character Evidence Rule just bars the conformity purpose.
Beechum case: Beechum is a postal worker. Hes charged with stealing a silver dollar from the
mail. Hes a thief. His defense: I had it but I intended to return it. It dropped out of the envelope.
Prosecutor must show that he intended to keep it. They want to put in proof that at the time of
arrest, he had credit cards that werent in his name. The fact that he had these credit cards tends to
show that hes a thief. Prosecutor argues: 2
nd
sentence of 404(b): He never intended to return the
silver dollar just like he never intended to return the credit cards.
It is admissible to prove that he intended to keep the silver dollar.
Its still conformity, but its conformity with respect to one of the issues, not all (intent).
The narrower the purpose, the more admissible it is. Give jury a limiting instruction if youre
worried about jury misuse.
Note: DA doesnt have to prove that he stole the credit cards with reasonable doubt.

Huddleson case: D is charged with stealing video tapes. His defense- I didnt know they were
stolen. Prosecution wants to show that prior to this, he was selling stolen TVs and other appliances.
Looks like this guy is a thief. This is inadmissible for conformity. But it is admissible for
knowledge. He knew that the TVs and appliances were stolen, he mustve known that the VHS
tapes were stolen. The evidence will go to the jury to be heard.

Note: A prosecutor can get prior acts and crimes in on its direct case using 404(b) 2
nd

sentence.

Example: D is on trial for possession and sale of drugs. Charge: Possession with intent to sell
cocaine. Defense: I was just using. I didnt intend to sell it. At time D is arrested, there are
unregistered sawed off shotguns in Ds house. DA argues: People involved in a drug trade are in a
dangerous profession. D has these weapons to protect himself.
Evidentiary hypothesis: Possession of guns gives rise to intent to sell.

Ex: A teacher was charged with committing sodomy on an 8
th
grader. This teacher has a spotless
record. He says kid is making it up. The police snoop around and they find 5 other kids that say
what happened to him also happened to me. Cant say once a sodomizer always a sodomizer.
DAs theory: This is to prove a PLAN- its his Modus Operendi. (not to prove propensity)

What you must show in order to use 404(b)(2
nd
sentence)
(1) Identify what element the prior act goes to: Motive, intent, opportunity, knowledge
(2) Show theres an issue regarding that element.
Show that Defendant denied having the intent or knowledge
(3) Show past conduct was relevant to the specific element
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Use evidentiary hypothesis. William Kennedy Smith. These acts show his MO. He lacked
consent before, he lacked it this time. He did this 4 times already. OJ. It shows motive and
opportunity. She didnt learn the last time, Ill teach her this time.
(4) Show D committed these crimes by a preponderance of the evidence.
These prior acts are being proven in the context of the present charge. In the sodomy case,
all the other kids came in to testify. You dont need to prove prior acts beyond a reasonable
doubt. Its a 104(a) determination (conditional). The judge decides whether there is enough
for a jury to reasonably conclude that D committed the prior acts.
**Jury instruction: If you find D committed those other acts, you may find that D had intent,
motive, plan, knowledge
(5) Rule 403: must show that its not unfairly prejudicial
Courts must hear the 403 argument. D can argue that the jury instruction wont work. Its
unfairly prejudicial.

HYPO: 3 Bank robberies. D is a 511 white male, portly, scar on his face.
W1 says: Im not sure but hes 6 feet and white
W2 says: I took my glasses off. I think he was chubby.
W3 says: I just got a quick look. Hes 62 with a scar on his face.

None of the witnesses can positively identify D. Take the best witness. (W3) Try to indite the
Defendant for Robbery C and then bring in proof of Robbery A and B. Proof of acts is
admissible on the specific element of identity. You only need to show by preponderance of
the evidence that D committed Robbery A and B.
Remember what you need to do: (1) show the element thats in dispute, (2) show its
disputed, (3) show relevancy [modus operendi- a mask], (4) show D did it, (5) chance of
403 prejudice. {Note that the similarity of the prior crimes wont harm you under the 403
analysis because probative value outweighs prejudicial value.}

Suppose the jury acquits on Robbery C. Suppose prosecution wants to convict on Robbery A
instead. Can you bring in W3s testimony on Robbery C? Yes!! Acquittal just means the
people failed to show beyond a reasonable doubt.
Note: In the Beechum case, if D was acquitted for the VHS tapes, the DA could get him on the
stolen credit cards.

Character Evidence Rule in Civil Cases
Example: Auto accident. D ran a red light at New Scotland and Holland. You represent P. D argues
he didnt run the red light.
W1 testifies- at Kenwood, D ran a red light.
W2 testifies- at Manning, D ran a red light.
W3 testifies- at Academy, D ran a red light.
Within 15 minutes, he ran 3 red lights. This is 404(a) & (b)-Character evidence. Since he ran red
lights before, he ran this one.
Can this evidence come in under 404(b)(2
nd
sentence)? NO. This is a civil case. Intent is not an
element of negligence. Intent isnt admissible in a civil case. (except for recklessness)
Remember these all happened within 15 minutes. A series of incidents occurred in a short period. Jury
should be entitled to see the big picture. Cases will allow this to come in. Point: Civil cases do the
same thing as criminal cases. These purposes arent exclusive. Theyre illustrative. Note: If you
represent D, argue Zackowitz.

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Note: 404(b) is not limited to the character of the person in a lawsuit. If your client is charged
with rape and someone else is the Pinehill rapist, you can use 404(b) to show that someone else did it.
Its for anyone, as long as its relevant.

HABIT EVIDENCE- RULE 406

Evidence of habit is admissible to prove conformity.
Applies in both criminal and civil cases.
Habit- Ones regular response to a specific situation. Its automatic, you do it without thinking.

Habit evidence is more probative than character evidence.
To get prior conduct in, dont use the word character. Package character and make it HABIT.

The key to establish habit is testimony.
This is a 104(b) conditional relevancy issue. If jury can find that its a habit, then they can find that he
acted in conformity with.

Example: Testimony that plaintiff had been in the habit of crossing Main Street in returning from
church at the point east of the crosswalk, was admissible as proof that she was not in the crosswalk
when struck by a car.

Example: I drive with D everyday on New Scotland. He always runs the red light at Kenwood and
Manning. Thats enough to show habit. You dont need to be with that person every time. (2 days a
week is sufficient) Does running 3 red lights in itself establish habit? Probably not. What you need is
testimony from the guy who rides with him 2 days a week.

Example: P is injured while crossing railroad tracks. P claims the engineer didnt stop sson enough.
Defense claims that P was lying down drunk passed out on the tracks. D had no chance to stop in time.
(contributory negligence)

W1: Joe the bartender testifies that he was with him that night and saw P knock down 6 boilermakers.
Purpose: Show that P was intoxicated and therefore inattentive.
Relevent: Goes to Ps contributory negligence. Attentiveness is pure relevancy.
Not barred by character evidence rule: Not coming in to show that P was a regular drunk, just
that he was drunk at the time of the accident.
W2: D wants to introduce evidence that P has 4 prior convictions for intoxication. D wants it in to
show that he must really be a drunk this time. This is barred under 404. Also, 4 or 5 prior convictions
is not enough to establish habit.

W3: D wants to bring in Ps co-worker to testify that every Friday night, P goes to the bar and drinks 5
boilermakers within one hour.
Purpose: To show that P had a habit of going to the bar on Friday night and drinking.
Therefore he must have gone there on the day of the accident and had 5 drinks.

Result: Habit evidence rule allows this proof to come in even if the eyewitness was not there
with him on the night in question. Jury can infer that P was drunk on the day in question
because that is what he usually does.

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W4: P brings in his son. Son says his dad always told him to stop, look, and listen before crossing
the train tracks. Is this habit evidence? Yes. He has a habit of lecturing his son. This now goes to the
jury and the jury will weigh it and decide if the sons lying.

Point: The end run around character evidence rule is to label it as habit.

Example: You represent a P whose house burned down. Ins. co. is saying P intentionally started the
fire. You want to show P is a smoker and fell asleep smoking in bed. Can his wife testify to how he
smokes in bed and falls asleep? Yes. Thats a habit.

Problem 5N, p.501: P claims hes injured while inserting a defective can of Freon. D argues that
theres nothing wrong with the can. D presents testimony of co-worker- I often see him heating the
car. (this is product misuse- its a dangerous practice)
Can he testify to often? Is that enough to show habit. Yes, this is an issue of conditional relevancy.
If jury finds a habit, then they can find he acted in conformity with the habit.

Q: How many times is enough to show habit?
Note if your witness says six thats probably not going to be enough.
Point: Get your witness to say the word often to establish a habit.

Habit also applies to corporations:
Example: Woman assaulted at the Holiday Inn. Claim: front door wasnt secure. Holiday Inn claims
that the door was secure. Key issue: Did they bolt the door? The security man no longer works at the
Holiday Inn. How can D establish that the door was locked?
The manager can testify that its the custom of the hotel to bolt the door at 12pm. Its a security
requirement.
Rule: If an organization has a policy and enforces it, the view is that employees will follow
through. This creates a factual issue that the door was bolted.
Point: Corporations should publish policy procedures. They should make sure its enforced. The only
way to defeat policy is to show in many instances, they didnt do it. All it does is create a jury
question. It prevents a directed verdict against Holiday Inn.

Example: Mailing presumption. Ins. co. can rely on presumption that mail was received. Ins. co. can
bring in the office manager to say that the cancellation notice was placed in an envelope and taken to
the mailroom. These are the standard procedures.

Requirements for Incidents of Similar Circumstances
1. Similar Accidents
Example: Rollovers on Exit 24. Trucks are always rolling over on this intersection. They put in
warning signs that say slow down. You are an injured truck driver. Can you sue the state arguing that
there were 10 similar accidents prior to yours? Court have held:
Similar accidents dont establish negligence per se. They establish noticeof a dangerous condition.
A reasonable person would check it out. If they ignore it, then maybe its negligence.

Key to introducing similar accidents is similar circumstances. Must show that all prior accidents
involve similar weather conditions.
Example: Woman slips and falls on a sidewalk. 2 years prior to the accident, 10 other people fell on
the same sidewalk. Need to show similar conditions of weather and that the road was identical
condition when the others fell.
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Note: A party can introduce evidence of an ABSENCE of a prior occurrence to show lack of
similar situations. Example: P slips and falls in front of ALS. ALS can introduce evidence that no one
has ever complained about falling in the past.

2. Replicating the accident in court:
What is your purpose? Purpose must be that a dangerous situation was present
You can recreate the accident and display it to the jury as long as circumstances are similar to the
proof coming in at trial. You need to show a substantial similarity between the test
conducted and the actual conditions.

Example: Young girl burned while in her tent camping. Manufacturer says tent that its impossible
that the tent burned. Ps used expert to recreate the accident showing a few ambers hitting the tent
cause it to burst in flames.

Ex: Mr. Chows restaurant is the hottest restaurant in NYC. NY Times put in a bad review and no one
goes anymore. Mr. Chow sues NY Times for defamation. At trial, Mr. Chow brings in the chef to
show how good the food is. Result: Inadmissible. The conditions must be the same. Circumstances in
recreation do not accurately reflect actual circumstances. These are completely different circumstances.

Miscellaneous Rules: Where offer of proof is excluded although its relevant as a matter of policy

Rule 407: Subsequent Remedial Measures
Any action taken after an accident is excluded when introduced to show fault.
Example: Someone is injured on your stairs. The next day you put carpet on the stairs. 406 says
subsequent conduct cannot come in. Excluded on policy basis: If people knew that repairs after
an accident would be held against them in a court of law, they wouldnt repair anything.
Example: TWA explosion. Theyre now re-doing the wiring. Can P use it to show somethings
wrong with the plane? No.
Example: CDTA bus driver gets in an accident. Can P put in proof that CDTA fired him
afterwards? No.
Example: Withdrawing IUDs from the market after women are injured. Not admissible.

Exception: When theres a purpose other than negligence, its admissible. You want to put in
evidence that D shoveled the sidewalk. D argues its not his sidewalk. Evidence of subsequent
measures wont be excluded when offered for another purpose such as proving ownership, control,
or feasibility of precautionary measures

Rule 408 Offer of settlement is not admissible to show liability where statement is made when fault
is disputed.
You get in an auto accident. You say its not your fault. You tell the other guy, lets just settle
this out of court for $1500. Guy says no and sues you. What you offer to pay is not
admissible to prove your negligence.
Policy: We want to encourage people to negotiate and settle. This stuff cant be admissible to
show fault.
Key factor: There must actually be a claim in dispute.
Ex: Youre leaving class and run over someone. You say to the, sorry its all my fault,
Ill give you $15,000. This is admissible because theres no dispute. Unilateral offers
to pay are not within this exception. (Point- never unilaterally concede anything)
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Example: Negotiations. Its true my client was drunk and mightve avoided the
accident. But your client was more drunk. The other attorney cant say this is an
admission. Anything you say about your client during negotiations is inadmissible.
Exception: If it comes in for other purposes like impeachment, its admissible. But it
cant come in to show negligence.

Rule 409
Offers to pay hospital expenses are not admissible to prove liability for the injury.
Example: You run over somebody. You tell him youll pay for hospital expenses and
thats all you say. This is not admissible to prove negligence. Policy: We want to
enourage the good samaritan.
But what if you say: Ill offer to pay, its all my fault. Rule 409 doesnt cover Its all
my fault. It only covers the payment.
Point: If you want to pay, just pay and shut up. It will be admissible to establish other
purposes (just like the exception in 407 and 408.)

Rule 410- Inadmissibility of Pleas
Plea bargaining statements by the accused are excludable.
2 parts:
1. Your client enters a plea of guilty
Judge goes through plea allocution before he takes the plea. Suppose plea is vacated and D
stands trial. Can prosecution enter plea into evidence? NO. Its never admissible except for
the 2 exceptions.

2. 410(4): Any statements made in the course of plea discussion that dont result in the plea of
guilty are not admissible. (This rule is the equivalent of the civil settlement)
Note: This is for the prosecuting authority. Any negotiations for a plea should be made in
front of the prosecutor because he cant use it against you. However, any deals you cut with
law enforcement can come in.
Point: If youre going to admit something about your client, say it in formal negotiations in
front of the prosecutor.

Rule 411- Insurance
Presence or lack of liability insurance cannot come in.

AUTHENTIFICATION- RULE 901, 902
Nontestimonial Proof, must look at:
1. Relevant?
2. Hearsay?
3. Authentic?
4. Best Evid?
Must lay a foundation that what youre introducing is what you say it is!

The requirement of authentification or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what it purports to
be.

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Note: Nontestimonial proof presents some relevancy problems. You also have potential hearsay
problems. Radar is real evidence and not a hearsay problem. Neither are drugs and photos. Tape
could present problems unless its an admission.

Under Article IX, with any non-testimonial proof, you must show that evidence is what it is
purported to be. Most documents dont speak for themselves. (you have to prove D wrote the letter)
Authentification is a condition precedent to admissibility to admissibility along with relevance and
hearsay.
You have the affirmative burden to show that the evidence is what it purports to be.
Standard: evidence sufficient/ preponderance. This is a 104(b) conditional relevancy
determination. Judge must decide if jury will think its what it purports to be. Judge says theres
enough evid to find its genuine, but well leave it to the jury to determine if it is in fact genuine.

The Murder Weapon
D is charged with assaulting victim with an ax. DA wants to put in the ax. Why? The jury expects
it. Good graphic way of proving your case. Keep in mind the dramatic impact of it. Is this the
ax? How do you know I was there when he swung it. You can pass the ax around to the jury.
All you need is for someone with personal knowledge to say I was there.
**even if the guy says Im pretty sure thats the ax, this is admissible. The judge does the initial
screening. Now it goes to the jury.

Situations where the weapon is missing:
Example: Beer bottle in bar brawl. If the bottle is broken, you can enter a similar bottle into evidence
(it doesnt have to be the exact weapon)

Drugs
At time of arrest, D has 5 envelopes of narcotic substance.
Chain of custody problem. When you are introducing evidence that can be tampered with, you
must show chain of custody. Show from time it was seized until trial, there was no possibility of it
being tampered with.
Example: Beat cop arrests D. Does search and find white substance. Cop takes it to the station,
puts it in the bag, gives it to the person responsible for holding it. Beat cop must say it was in his
possession the whole time. Next step: Chemist.
Do you recognize this substance? Yes. Thats what was given to me.
Did anyone else have it? No one else had it.
What did you do after? I took it back to the property clerk.
Note: Every change in possession must be accounted for to show theres no tampering.

Example: 2 kids coming back from prom killed by drunk driver. Sheriff takes the guys blood
alcohol level. Sheriff goes home for the weekend and puts the blood alcohol test in his
refridgerator. Driver is prosecuted for vehicular manslaughter. DA wants to put the blood alcohol
test into evidence. Objection : Chain of custody. HELD: Insufficient chain of custody.
Possibility of evidence being tampered with (kids couldve opened the fridge and poured gin in it.)
You dont have to show actual tampering. Its the mere potential.

Photos
Photographer from the state police comes in and takes pictures. At trial photographer isnt
available.
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You dont need the photographer. Put on a witness whos familiar with the object
photographed. Ask the witness: Is this a fair and accurate representation of the object/ crime
scene?
This is 901(b)(1)testimony of witness with personal knowledge. Its someone who is familiar
with it. You have the same situation with the body. The coroner took the pictures at the time of
the investigation. But at trial you can question the police officer who was at the crime scene.
This includes diagrams made by a W
Letter Written By Defendant
Threatening letter signed by Defendant to victim. Victim. No one screws me and gets away with it.
If its written by D, its admissible as an admission.
You must authenticate it. This comes into play with anything written introduced against the party
youre claiming wrote it.

Ways to authenticate a writing:

(1) 901(b)(2): Have someone testify who is familiar with Ds handwriting prior to trial.
Call Defendants mother. Mom, is this your sons handwriting? Yes. How do you know? He
wrote me letters in college.
(2) You can use expert testimony [901(b)(3)] if no one knows its his writing.
D must give a handwriting sample (this isnt a 5
th
amendment violation) Expert must compare with
specimens which have been authenticated. FBI may have the D sit down and write for hours or you
can get tax returns.
(3) 901(b)(4): Even if you cant prove that its his writing, you can show stylistic patterns such as
spelling errors to authenticate the writing.

Note: You need to do this in every instance where theres a writing. You must even authenticate
signatures. 901(b)(3) even permits you to give the specimen to the jury to compare.

Tape Recordings
Cops have wired Ds cellmate. D says to informant- I killed this guy Cell mate/ informant can testify
to this because its an admission. But DA wants to introduce the tape instead of having him testify.
How do you introduce the tape? The tape is Ds voice on it but how do you authenticate the voice?

Show the tape recorder worked
Make sure theres no admission or deletions (i.e. no tampering)
Show the voice is Ds voice

Identifying the Defendants voice- 901(b)(5)
Identification of a voice, whether heard firsthand 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.

Must ask the person who heard D speak if he recognizes Ds voice. Make sure you get someone who is
familiar with his voice. (just like with his handwriting)
The Defendant can give a voice exemplar right in court so the person testifying can compare.
Identification can be based on hearing at any time. (note theres no 5
th
amendment violation)

Telephone Conversations- 901(b)(6)
3 situations:
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(1) 901(b)(6) You make a call to someone (D).
Example: Hello, Id like to speak to John Defendant. Yes, thats me. What took you so long?
Im guilty as hell.
Sergeant needs to lay a foundation:
a. Caller/ sergeant needs to testify that he called the number assigned to D in the phonebook; and
b. D answered the phone and I identified himself as John.
When you call the number assigned in a phone book, and the person who picks up identifies
himself, thats reliable.
Rule Self identification plus making the call to an assigned number is enough.

(2) 901(b)(5) You received a call.
Example: Phone rings at the precinct. This is D. Please come get me before I do something.
Can the desk sergeant testify to this? How does the sergeant know its the D?
Rule: Self identification is not enough. See 901(b)(5)- Identification of a voice.
Sergeant would have to compare and hear the voice again in the courtroom. This would get to
the jury and the jury can do whatever it wants. 10
th
cir. says that hearing a voice one other time is
sufficient familiarity.
901 (b)(4) May also be able to identify Ds voice through distinctive characteristics. If whats
disclosed during the conversation points to the D, and details are given that only D couldve known
about, that would be sufficient.


(3) You call a business. How do you authenticate in a contract action?
Example: You call up Sounds Great, Inc. and want a speaker. The person who picks up on the
other end tells you that the speakers are being sold for $100. You have to establish a contract.
Must show the person who made the offer is someone associated with the store.
901(b)(6)(b): show that the call was made to a place of business and the conversation related to
business reasonably transacted over the phone.
All you have to do is say you called the number assigned and someone answered and you
had a conversation related to the business. I picked up the yellow pages. I saw Sounds Great.
I dialed the number. Someone picked up the phone and we had a conversation relating to
business. This authenticates the conversation. I have a contract.
Now Sounds Great has the burden. Note this leaves open the possibility of forgery.

Blood Alcohol Results
Test results are relevant. They are admissible over a hearsay objection because of the business records
exception. You still need authentication. Theoretically, you have to call the hospital. 901(b)(1):
You need to call a witness whos familiar with the record. This is part of your 803(6) foundation.
(In NY the record is self authenticating as long as its certified)
Practically, the trial judge may have you stipulate to it.

Certificate of Conviction
Admissible as a public record under 902(4). (self authenticating)

Deed- Ancient Documents
901(b)(8): If a document is 20 years old or more, it may be authenticated solely on that.
Example: Deed. Deed isnt recorded properly but its been on file at county clerks office for 22 years.
Theory: If a document is more than 20 years old, it must be valid. If it was forged, it wouldve been
found out already. Note this section creates a lot of fraud.
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Radar- Must show process or system produces an accurate result - 901(b)(9):
Example: What was the radar reading? No hearsay problem. Its an authentification problem.
5 things to keep in mind:
Show the machine is reliable.
[radar works, breathalizer is accurate. You can usually establish reliability by judicial notice that
the radar gun produces radar]
Show that the technician or officer is qualified to operate the machine.
Has the officer has experience or training?
Show on the day in question that the machine was in proper operating condition.
Ex. Officers radar gun will be calibrated to show machine is working.
Note: A certificate of calibration is admissible as a business record.
Show machine in question was properly used.
Note: In the event that the judge tosses the radar result, the officer can still give his opinion.
Officer can still show hes familiar with it.
Show there are no extraneous factors that could produce an erroneous result or skewed result.
Show nothing intervened. No high wind, no 18 wheeler went by.
Note: If you need to show that the speed limit is 55mph, the sign is not hearsay because its a
mechanical trace/ verbal marker.
Note: If one step is ommitted, the radar reading will not come in.

Rule 902: SELF AUTHENTICATING DOCUMENTS
Some documents speak for themselves.

902(4)- Certified copies of public records
Use this rule anytime there is a public record (county, state, federal)
Example: National Traffic Safety Commission Report.
If you get a report and get it certified with a stamp thats enough.
803 (8) says a public record is admissible as a hearsay exception.
You can also just get a photocopy as long as its certified. The original stays in the office.
Examples: DMV records, license records.

902(5)- Official Publications
Example: Document produced by the Department of Health. Show that it has the Dept. of Health seal
on it and that will be enough.

902(6)- Periodicals and Newspapers (DONT NEED TO KNOW)
Note: In a defamation action, the newspaper is not hearsay because it has independent legal
significance.
The Times Union logo is enough.

902(7)- Trade Inscriptions and the like
Example: A can of Diet Pepsi. If you sue Pepsi, you dont have to show that its bottled by Pepsi. The
trademark of the can indicates that its made by Pepsi. The can speaks for itself. Its up to Pepsi to
show the trademark is phony.

902(10)- Some documents are declared by Congress to be presumptively authentic.

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BEST EVIDENCE RULE
1. Rule 1002 requires that when youre proving the contents of a writing,* recording, or photograph,
you must produce the original writing unless an exception applies. This is to prevent fraud and guard
against a faulty memory.
Exceptions: 1) 1003 (allows duplicates)
2) 1004
3) 1005

2. You cannot establish the contents of a writing by oral testimony when the writing is available.
(exceptions)

3. When proving a transaction which is evidenced by a writing, you do not have to
introduce the writing.

Note: Rule 1001 Writings and recordings consists handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic recording, or other form of data
compilation.
Rule 1001(2): includes photographs, x-ray films, video tapes, and motion pictures.

Example: When you sue for breach of contract, you must offer the original Contract. We dont want
people to lie about the terms. What did the contract say? Objection you cant establish the
writing by testimony.

Defining a writing, recording, or photo
Example: Duffy is charged with transporting a stolen car in interstate commerce. They find a suitcase
in the car with a white shirt inside it. The initials DUF are on the shirt. Legitimate inference: its
Duffys shirt. FBI testifies that he found a shirt.
Prosecutor asks: What did the shirt say on it? objection, best evidence, he needs to produce the
original shirt.
Inscribed Chattel Rule: When theres an inscription on a chattel, you dont need to bring the chattel
to court.
HELD: Anytime theres a writing or insignia inscribed on an object, that doesnt produce a Best
Evidence problem.
Example: Youre run over by a CDTA bus. You cant bring the bus into the courtroom, you dont
have to.

Exceptions:
1. Rule 1003-A duplicate* [1004] is admissible to the same extent as an original. (xeroxed copy)
Modern technology ensures accuracy.
This means all the copies can be used:
As long as theres no question about the authenticity of the original.
As long as it is not unfair to admit the duplicate.

2. Rule 1004- When an original is lost or destroyed, you dont have to introduce it.
Then you can prove it by any means available.
Oral testimony can be used.
If you dont have the original and youre suing on a contract, the law lets you prove the
existence of the contract as long as you can show the original is lost by no fault of your
own. If its reasons you have NO control over, then well let you prove the writing otherwise.
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[you should always keep a copy of the contract] If you lost the document in bad faith, then you
dont get the benefit of the exception.

3. Rule 1005-Public Records
Relates closely to 902(4) and 803(8)- public records. Any copy of a public record so long as its
certified is admissible.
Example: DMV abstract of someones driving record is admissible.
Remember with documents:
Relevant 3. Authentic
No hearsay problem 4. Original (contract) unless exception

Example: Drug Prosecution. A conversation between the D and the government informant has been
taped. At trial, the government calls the informant to testify to the contents of the conversation.
[What did D say to you?] Ds object, best evidence rule- produce the tape. Result: The rule says
that the original must be produced when proving the contents of the writing. Hes just trying to prove
the contents of the conversation. The fact that a conversation is recorded does not invoke the best
evidence rule. Prosecutor has a choice to produce the tape or have testimony.
The mere fact that the conversation is memorialized is irrelevant. The conversation exists apart
from the tape.

Ex: Farmer seeks to prove the chickens have Leukosis by testifying to the substance of a vets report.
What did the report say? In this situation, lawyer is trying to prove the contents of the writing.
Result: You must produce the report. Its a best evidence problem. The report creates a hearsay
problem. Maybe it could get in with the business records exception.
Note: Its all in the way you ask the question. If in the drug example above, the question was, what
did the tape say? then that would be a best evidence problem. Now youre proving the contents of the
tape.

Example: Prosecution for interstate transportation of obscene films. The police officer who viewed the
films takes the stand. Officer what did you see? This is a best evidence problem because officer is
asked to account all he saw. You must produce the tape because they are more preferable.
Always ask: What is it that youre trying to prove?

Example: You take 3 shirts and 3 dresses to the dry cleaners. You get a receipt and when you go back
a week later, you only get back 2 shirts and 2 dresses. You sue but you lose the receipt.
What did you drop off? Objection hes trying to produce contents of the receipt. Does this fall on
the side of the tape recording or Leukosis? Its like the tape recording. Youre trying to prove the
contents of the transaction. No best evidence is raised if you ask the question as What did you drop
off at the dry cleaners?
There is a best evidence problem if you ask the question like this: What did the receipt say?

Rule: Even if theres a writing that evidences the transaction, you dont have to produce
it if the transaction exists on its own.

Note: Introduction of the receipt will raise a hearsay objection. But you can argue that its an
admission because the dry cleaners gave it to you. You can also show that the receipt was lost
but Rule 1004 says you must make an effort to look for it.

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Example: Eviction for nonpayment of rent. Tenant testifies that he paid the rent in cash. Landlord
says I always provides a receipt when people give me cash. Now the tenant doesnt have the receipt.
Can the tenant testify that he gave him cash? Best evidence problem? No. Youre not proving
contents of a writing. Youre just proving a transaction.
Suppose you represent the landlord. Landlord, did you give him the receipt? I dont remember.
Landlord, do you have a custom or practice for when people pay you?
Yes. I give them a receipt. This is admissible under 406. (habit; routine practice of business)
Note: When youre sued for not paying the rent, you can testify that you paid. How do you
introduce the cancelled check? Is it even hearsay? Is there independent legal significance?
Yes. This is a transaction. Theres an endorsement on the back of the check.
If you want the check in for the writing, it can come in to prove the transaction.

Example: In a personal injury action, the doctor testifies that the X-ray taken of Ps leg revealed a
fracture. The X-ray is not offered into evidence.
Doctor, whats your opinion? What did you base your opinion on? X-rays.
Must you introduce the X-rays? No. Rule 703- basis of opinion testimony by experts. Hes not
proving contents of a writing. Hes showing what he relied on for his opinion.

OPINION TESTIMONY- lay witnesses

Rule 701 governs opinion testimony by lay witnesses.
Note: In common law, you can only testify to facts. Problem was that it may be impossible to describe
someone in words. 701 liberalizes the common law rule. Witness can now give opinions and draw
conclusions. However, it does reflect a preference for facts.

Requirements
(1) Opinions must be rationally based on ones perception.
(2) Showing its helpful to the jury.

Rationally based- means you have personal knowledge. The inference drawn must be a rational one.
It cant be a guess. You must have a basis to give the opinion.
Example: Auto accident. The P testifies. I the other driver bouncing up and down in his seat and
singing. It looked like he was listening to rock music. Is this conclusion rationally based? Under
701, its permissible to testify to this. This inference is one of relevancy and common experience.
When youre bopping up and down in a car, youre listening to music.

Helpful
Leading case Kruger: Auto accident. W takes stand. I saw both cars. He testifies to speed,
difference in space between the cars. Did the operator have time to stop the car?
Why do we want the testimony in? Juries like to be helped. It may be helpful to get the opinion of
someone so involved in the case.
Problem: When we talk about helpfulness, we dont want the jury to hear something that they can
conclude themselves. But sometimes, theres no way to verbalize all the underlying facts than to
give the conclusion, therefore the opinion is helpful. (Jury can relate to whether a person is
described as happy or sad.)
If W cannot verbalize all the underlying facts by itself, then it is helpful. Even if W does
verbalize all the facts, but its still not accurately conveyed, it should still come in.
Note: Kruger says we wont let it in but other courts disagree.

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HYPO: DWI case. W takes the stand. I was at the bar with D. D had blood shot eyes and couldnt
walk straight. You want the jury to infer that he was totally drunk.

D was drunk and was going 134 mph.
If D were sober, he couldve stopped.
Ds brakes worked properly.

(1) Most courts allow the witness to give descriptions like he looked drunk or he looked sick.
Anytime a witness is giving an opinion and describing a persons state, or a scene, its ok.
Examples: weight, size, form, age, value, quantity, identity, velocity, etc. (see p. 689). These
things can all be testified to but make sure the foundation is there.
Can W testify that the car was going 134 mph? No. Most lay witnesses could only testify that
a car was going up to 80 mph. Its too difficult for a lay witness to gage that a car is going 134
mphIts too unfamiliar. [note that a police officer could because hes trained]

HYPO: P wants to put testimony from W that the motorcycle was going 45 mph in a 35 miles
zone. In NY, Rule 701 says you can testify to 45mph. But make sure you satisfy the foundation
requirement. If W is familiar with motorcycles, then thats sufficient foundation.

(2) If D were sober, he could have stopped. See Kruger analysis.
Is there a foundation? Is it rationally based or is it a guess? Is it helpful?
These opinion testimonies have been approved by the courts:
1. Employment discrimination case. Ive been in this office for 15 years. Weve had Hispanics
work here before. Not one got above entry level. I knew 10 Hispanics that applied for the job
and didnt get it.
A court permitted this opinion because the view was that is was not a guess. The stronger the
foundation the less likely a court should exclude it as a guess.
2. D was involved in gathering and transporting stolen farm equipment. He has 50 new John
Deere tractors and he has no crop. Why does he have all this brand new equipment?
Is he guessing or is this rationally based on his perception? In the witnesss opinion, this guy is
a thief. Court held this admissible.

Courts give a lot of leeway as long as its not a guess. if D were sober, he couldve stopped
would come in.

Problem 9A, p.690: D is charged with firebombing a car. Girlfriend testifies and gives her opinion.
It was my impression that that he was involved in the bombing. This is rationally based because the
girlfriend and boyfriend have known each for years and now out of the blue hes talking about fire
bombing cars. Its helpful because the jury may not be able to get the picture without her conclusion.
Court held this permissible under 701.
Note: But if this was excluded, it wouldnt be reversed. A lot of discretion is given to the trial court. In
the same vein, if an appeals court said it was error to let it in, under Rule 403 they would have to show
harmful error, and thats hard.

Bottom line: You can do a lot with lay witnesses. Drawing conclusions on events will generally
be found as helpful and not just speculation.

EXPERT TESTIMONY

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3 Reasons Why You Want Expert Testimony
Its necessary as a matter of law. (med mal cases- you lose without it)
Its necessary for you to win. (toxic torts- necessary as a practical matter)
Because it will enhance your case.

Note: Common Law was very strict. Expert couldnt testify unless the juror had no knowledge.
Federal Rules liberalizes the use of expert testimony.
Now you can use an expert if it will be helpful to the jury.

5 Step Approach to Whether Expert Testimony Will Be Permitted
(1) Witness must be qualified. (Rule 702)
(2) Expert testimony must be appropriate subject matter. (Make sure its helpful under 702)
(3) Make sure theres a proper basis for the opinion. (Rule 703)
The methodology must also be reliable.
(4) Make sure the form of the question is proper. (Rule 704)
(5) Is expert testimony barred by Rule 403?

Rule 702: Qualifications (case dependent)
Note: If you can get an expert to testify that the motorcycle is going 134 mph, youll be able to do it.
KEY: Witness must have special knowledge.
Knowledge can come from education or experience. You can use Joe the mechanic. You dont
need to PhD from M.I.T.
Rule doesnt address how much education and experience. At a minimum, you must show some
familiarity.

Example: Drug case. Issue is whether D was importing domestic or foreign marijuana (penalty is more
severe for foreign dope). The government calls an expert. The expert has no PhD, no law enforcement
experience. His expertise is that he smoked a hell of a lot of dope and he can tell the difference
between foreign and domestic dope. Court said this was sufficient.
All you need is someone whos familiar with it and been involved.
Note: D can also put on a certified toxicologist who says you cant tell where dope comes from by
smoking it. Both testimonies go to the jury.

Example: Enu case. Dr. Enu is a urologist. P claimed that Dr. Enu was negligent. Dr. Enu called 5
expert urologists that testified that no doctor couldve discovered what was wrong. P puts on a doctor
who had one 3 month rotation during medical school and one course in urology. Court said this guy
could testify. It meets the minimum threshold. (Me doctor rule- a doctor can testify to anything)

Point: 702 standard is very liberal. Lack of substantial experience will go to the weight for the
jury to decide.

Practical Concerns: Qualifications of an expert is a 104(a) issue for the court. You must elicit the
foundation from the expert. Ask him where he got his degree from, where he interned, etc. If your
doctor doesnt have the greatest credentials and the other sides expert is from Harvard, you may want
to stipulate. The other side will never want to accept the stipulation because credentials effect the
weight of the testimony. A Court will permit you get into qualifications, but dont go overboard.

Showing the appropriateness of expert testimony
As long as the testimony assists the trier of fact.
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Standard = helpfulness (lenient standard)
If its an area beyond the jurys understanding, its appropriate. (e.g. 134mph)

What about when its not beyond the jurys understanding?
HYPO: playground incident. Your client is a 7 year old 2
nd
grader who gets hurt during recess. One
of the other kids pushes your client off the slide and he breaks his leg. You want to sue the school for
negligenceinadequate supervision. Theres only 1 teacher supervising 35 kids. Does a jury know
what a reasonable school wouldve done? They can probably decide the case on these facts alone. But
if youre a careful lawyer, you may want to get a professor of education from the University to testify
that you need 1 teacher for every 15 kids. Most federal courts would allow expert testimony to show
that you need 1 teacher for every 15 kids.

Rule: Just because the jury knows something about the subject does not preclude the use of
expert testimony. The only time expert testimony wont be admissible is if the jury knows
everything about a subject. (RARE)
Note: even if the jury has a lot of knowledge, expert testimony is still admissible.

Example: D is eyeballed as the bank robber. D calls a professor whos studied misidentification. Hes
an expert with respect to factors leading to faulty identification such as poor lighting, unfamiliarity,
etc This expert can testify under 702. The fields of knowledge which may be drawn upon are not
limited to the scientific and technical but extend to specialized knowledge.

More Examples:
You can bring in a postal worker to explain more about the mail.
Arson. Homeowner is heavily in debt. Inference: He wants to burn down his house to collect on
insurance. Arson expert can testify to tell tale signs of arson.
Discrimination. Someone who studies work patterns can testify.
DEA agent can testify to the tell tale signs of a drug ring. He can describe heroin on the street.
Some courts will go that extra step and let experts testify to what should havebeen done.
Example: Bank robbery on L.I. Police Department puts up road blocks on Merrick Rd. to stop
D. To avoid the road block, Ds car goes on the sidewalk and hits someone. P sues Nassau
County for setting up the road block negligently. P called an expert, a former police chief, who
said that the preferable view in the U.S. when you do a roadblock, you set it up in a V.
NY held: Expert testimony is appropriate to show that road block was improper AND they
SHOULD HAVE done what others are doing.

Basis for expert testimony- Rule 703 (we dont want speculative opinions)
703 permits 3 ways you can prove expert testimony has a proper basis.
(1) Personal/ Firsthand knowledge
I examined the P. In my view, the injury is permanent.
(2) Information expert learns at trial by way of:
(a) expert sitting in court and absorbing testimony (rare)
(b) hypothetical questions (common)
Dr., assuming all these fact, in your opinion, will this woman ever be normal again? It is
permissible for you to give the expert facts.
(3) Even if expert has no personal knowledge, he can base this opinion on data reasonably relied
upon by experts in the particular field.
If its data relied on by other people, it can come ineven if its based on hearsay.
Rule 703 legitmizes the way experts work.
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Example: ER room. Surgeon relies on the nurses, the X-rays, other doctors to base his form his
own opinion and come up with a diagnosis. The reports and opinions that the doctor relied on
to form his opinion do not need to be admitted into evidence.
Note: If a doctor relies on the New England Journal of Medicine, he can testify to what the
article said. Its not hearsay because theres a nontruth purpose => Basis of opinion.

Example: Stevens is killed flying a Beechcroft plane. Wife sues. Beechcraft argues pilot error.
An expert says: the cause was pilot error. The basis for his opinion was speaking to the
decedents neighbors, co-workers, local bartender, etc. Expert testifies that based on what they
told him, this guy has major personal problems and he could not focus properly. He never
shouldve gone in that plane. This opinion is based on hearsay but the 3
rd
Circuit let it in.
Theory: Experts rely on this in real life so we can rely on it in a courtroom. We must trust the
experts.

Note: Should ask 2 questions to see if its reasonably relied upon.
(1) Is data itself reliable to experts in the field?
(2) Is it then reasonable to rely on this data?
Key: Other courts question if the data was reliable. We dont care if you have 30 years of
experience, you should not rely on what just one person says.
2
nd
sentence states that facts which expert relies on shall not be disclosed to the jury unless deemed
necessary by the judge

You must make sure the methodology (i.e. reasoning) employed by the expert in reaching his
opinion is reliable.

Daubert: DES case. Experts argue contrary to all other findings. The ingestion of DES will cause
birth defects. This was based on rat experiments. The question in Daubert: Whats your methodology
in reaching your conclusion?
Note: In Joyner the expert testimony was inadmissible because the methodology employed was too
unreliable since the studies on mice were too far removed. (forcing rats to ingest huge amounts of DES
that women would never ingest).
You must show that the methodology used is reliable. (can produce accurate result/opinion)
This can be done by showing that your methodology has:
(1) Been tested before
(2) Been subject to peer review and publication

You no longer have to prove that the work is generally accepted by the majority of the scientific
community. (Frye standard abolished by the Federal Rules)
Daubert establishes a generally reliable standard. The testimony must be relevant (i.e. helpful)
and reliable. The Daubert standard is more likely to admit expert testimony.
Daubert says that that judges should act as gatekeepers to make sure junk science doesnt enter
their courtroom.
Unanswered question: Does Daubert apply when were talking about nonscientific expert
testimony such as a tire blowout?

Rule 704
704(a): An Expert can even give an opinion on an issue that the jury must resolve. The ultimate
issue rule is abolished.
Limitations:
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Expert do you have an opinion that D is guilty as sin? Yes. D is guilty.
This is not helpful and not admissible.
Expert, do you believe that the D acted negligently?
Expert can testify to this.
704(b): Prohibits experts from testifying in insanity cases. You can only testify to factual findings.
He cant testify that In my opinion, D is insane.
Also cant testify to whether D has the requisite mens rea for the crime.

Lastly, even despite all this, 403 can keep things out.