1.

INTRODUCTION
a. Why Rules of Evidence?
i. Presumption and preference of neutral, ignorant fact
finders
ii. Conservation of Judicial Resources ensure fairness and
neutrality
iii. Manage the adversarial process and prevent abuse by
either party
iv. Distrust of juries
v. Concern for accuracy of the result
vi. Preservation of values other than truth-seeking, (i.e. 5th
amendment)
vii. Create record of appeal (pleadings, record of proceedings,
exhibits, docket entries, judgment)
b. FRE 1101: Applicability of the Rules
i. Tells when FRE apply and when they dont
c. Fundamentals of the Courtroom and Presentation of evidence
i. Stages of an American Trial
1. Pre-Trial motions
a. Motions in limine (can be written or oral)
i. Can exclude evidence or get judge to rule
on anticipated evidentiary issue
2. Jury Selection
3. Opening Statements
a. Must be phrased as not to be argumentative
b. Only things you could reasonably expect to be
admitted into evidence
c. Not required, but bad practice not to make one
4. Presentation of evidence
a. Order
i. Plaintiff/Prosecution case in chief
1. Call & Swear witnesses
2. Direct Examination
3. Cross examination by defense
ii. Defense Case in chief
iii. Plaintiff/Prosecution rebuttal
b. No limit, but most judges wont let it go past
this
5. Trial Motions
a. Made both at the end of Plaintiff/Prosecution
case, and at the close of evidence
b. Includes motions that relate to the sufficiency
of evidence
6. Closing Arguments
7. Jury Instructions

ii.

iii.
iv.

v.
vi.

vii.
viii.

8. Jury Deliberations
9. Verdict
10.
Judgment
11.
Appeal
Different main kinds of evidence
1. Witness Testimony
a. Live
b. Recorded
c. Transcript
2. Real or Physical evidence
a. Tangible things directly involved in the
transactions or events in litigation
3. Demonstrative Evidence
a. Tangible proof that in some way makes graphic
the point to be proved
How evidence is introduced
1. Primarily through oral testimony
2. Can also be introduced through exhibits
Evidence v. Non-Evidence within the parties cases
1. What lawyers say is not evidence, except that a
question and answer together make up an item of
evidence
2. If witness blurts out an answer to a question as to
which an objection is sustained, it is not evidence.
3. Any completed question and answer that the judge
instructs the jury to disregard is not evidence.
4. Any exhibit not admitted into evidence by ruling of
the court is not evidence.
5. Any statements by the court (except judicial notice),
jurors, court reporters, or spectators are not
evidence.
Ways to resolve evidence issues
1. Motions in Limine
2. Objections
Failing to object constitutes waiver to the right to appeal
the issue
1. Except when for a mistaken trial court decision that
amounted to plain error affecting substantial rights
General categories of objections
1. Objections to substance (substantive objections)
2. Objections to form (formal objections)
Formal Objections (FRE 611: Mode and Order of Examining
Witness and Presenting Evidence)
1. Ambiguous question
a. FRE 611(a)

b. Answer is not going to be clear based on the

way the question was asked, cannot know what
the witness understood the question to mean
2. Argumentative question
a. FRE 611(a)
b. Ensures that counsel are polite and witnesses
are not intimidated
3. Asked and Answered
a. FRE 611(a)
4. Assumes facts not in evidence
a. Objection when the question assumes certain
facts have been established, when, in fact,
they havent
b. FRE 611(a)
5. Compound Question
a. FRE 611(a)
6. Confusing
a. FRE 611(a)
7. Harassing the Witness
a. Similar to argumentative protects from
bullying counsel
b. FRE 611(a)
8. Leading Question
a. If it calls for yes or no, may be leading
b. Question that suggests the correct answer
9. Beyond the scope of Direct
a. FRE 611(b)
10.
Narrative Question
a. Sets up the witness to ramble
b. FRE 611(a)
11.
Unintelligible question
a. FRE 611(a)
b. Variation of confusing question
12.
Repetitious Question
a. FRE 611(a)
ix. Direct v. Cross Examinatnio
1. Leading Questions
a. Strong presumption that you should not lead in
direct examination
i. FRE 611(c)
1. Develop witness testimony can
differ by court, but usually
includes: getting the ball rolling at
beginning of testimony (setting the
stage), witnesses may get
stuck/lose train of thought,
3

sometimes need to make subject

matter transitions
2. Adverse party = civil cases
calling defense, calling defenses
witnesses
3. Hostile Judge must declare
witness hostile under the rules
2. Beyond the scope of the direct
3. Burdens of Proof and Presumptions
a. Civil Cases
i. Burden of Productiona party runs the
risk of losing automatically if she does
not offer sufficient evidence to enable a
reasonable person to find in her favor.
ii. Burden of Persuasiona party can win
only if the evidence persuades the trier
of the existence of the facts that she
needs in order to prevail.
b. Criminal Cases
i. Due process clauses of 5th and 14th
amendments require the to prove
beyond a reasonable doubt every
element in the crime charged against the
accused, in state and federal court.

2. WITNESS COMPETENCE
a. What makes a witness
i. Must be human
ii. Desirable, theoretical characteristics
1. Generally, Sensory Impairment will not disqualify a
witness
2. Sensory Deprivation does not usually completely
disqualify a witness
3. Impaired Interpretations competency will typically
depend on the circumstances
4. Mental Handicaps it depends on the severity of the
handicap, the nature of the handicap, and the nature
of the thing to which the person is being asked to
testify
5. Memory Generally, a total absence of memory will
remove someones competence
6. Communication wont typically disqualify
7. Summary:
a. PERCEIVE reality accurately
b. INTERPRET what is perceived
c. REMEMBER what was perceived
d. COMMUNICATE perception and interpretation
iii. Problems presented even if witness meets all 4 theoretical
criteria
1. No assurance that witness will choose to tell the
truth
a. Factors that might move a witness to be honest
include
i. Fear
1. Punishment by the government
2. Religious beliefs
ii. Socialization
1. Telling the truth is the right thing
to do
2. Good Character
b. The theory is that an oath puts the witness on
notice of his legal obligations and risk of
punishment for perjury
iv. In sum, two broad considerations at work in competence
rules
1. Consideration of capacity 4 theoretical
considerations
2. Consideration of disposition to tell the truth
b. Modern Rules on Competence
i. Witnesses must take and be able to understand an oath

1. Need not make reference to god

2. Can be an oath or affirmation
3. Religious considerations can no longer be a reason to
declare a witness incompetent
4. Convicted felons are no longer considered
incompetent to testify
a. Adverse party can use prior convictions to
impeach the witness
5. Parties were formerly considered incompetent to
testify, but are no longer so
a. Dead Mans Statutes
i. Limits testimony abut transactions with
deceased persons
ii. In the most extreme form, these statutes
can bar testimony as to any fact
occurring prior to the others death (even
if the fact could not be personally
disputed by the deceased if living)
iii. No Federal rule about them, but last
sentence of FRE 601 is an effort to
preserve states statutes
1. state law governs the witnesss
competency regarding a claim or
defense for which state law
provides the rule of decision
6. Spouses used to be considered incompetent. Now,
there is privilege.
ii. What rules in the FRE govern competence?
1. Missouri has NO evidence rules or code
a. FRE are still immensely persuasive
2. FRE 601: Witnesses
a. Every person is competent to be a witness
unless these rules provide otherwise
i. But in civil cases, state law governs the
witness competency regarding a claim or
defense for which state law supplied the
rule of decision
3. FRE 602: Need for Personal Knowledge
a. A person may testify to a matter only if
evidence is introduced sufficient to support a
finding that the witness has personal
knowledge of the matter
i. Can consist of witnesss own testimony
ii. Sometimes competence is not all or
nothing (Blind people)

iii. Have to look carefully at what it is that

the witness is being asked to testify
about, and evaluate as to whether they
have personal knowledge of that
iv. Usually addressed by preliminary
questioning that brings out how the
witness happened to perceive the
relevant acts, events, or conditions,
before the witness is asked to describe
them
4. FRE 603: Oath or Affirmation to Testify Truthfullt
a. Before testifying, a witness must give an oath
or affirmation to testify truthfully
i. Must be in a form designed to impress
that duty on the witness
c. When is a witness incompetent under the FRE
i. U.S. v. Lightly
1. Facts: Inmate McKinley got stabbed. Two inmates
(McDuffie and Lightly) were involved. Lightly said he
rounded the corner and saw McDuffie attacking
McKinley and Lightly got cut in the process of
breaking it up. McDuffie would have testified to the
same thing except the trial court wouldnt let him
testify because he was found criminally insane and
incompetent to stand trial.
2. Holding: While witness (McDuffie) was incompetent
to stand trial and declared criminally insane, he was
still competent to testify.
3. Reasoning: Rules about insanity and competence to
stand trial protect different interests than rules about
witness competence
4. Rule: Every person is presumed competent to testify
(FRE 601) unless it can be shown that the witness
a. Does not have person knowledge of matters
about which he is to testify (FRE 602)
b. That he does not have the capacity to recall
(Maybe FRE 602 personal knowledge,
implied), OR
c. That he does not understand the duty to testify
truthfully (FRE 603)
ii. Notes on Personal knowledge requirement
1. Its a competency rule
2. Suggests that witness competence is not necessarily
all or nothing
3. More complicated than face value
iii. Notes on Oath Requirement
7

1. U.S. v. Fowler p. 492

a. Facts: Fowler, a gravestone salesman, stopped
filing his income taxes. He didnt get caught for
about 20 years. At trial, the court wouldnt let
him testify because he wouldnt take an oath
and wouldnt agree to submit to cross.
b. Issue: Could he testify without an
oath/affirmation?
c. Holding: NO
d. Reasoning: It is not a witness right to testify.
They must meet the oath/affirmation
requirements and know they could be subject
to penalty of perjury.
2. MUST swear or affirm that he or she will tell the truth
3. Form of the oath or affirmation is not fixed, and need
not include any reference to a deity
a. Must, however, be sufficient enough to arouse
in the witness of the necessity of telling the
truth
iv. Child Testimony
1. Ricketts v. Delaware NOT a correct statement of the
law
a. Court ruled that the child was incompetent to
testify because, although she didnt
understand the concept of perjury, she knew
the difference between truth and falsehood,
which was the oly test of competency
i. Sloppy consideration of competence,
particularly in the case of a small child
ii. Hardly the only consideration, especially
with very small children
b. Knowledge of truth and falsity doesnt correlate
with ability to perceive, interpret, remember,
and communicate
2. Difference between truth and falsehood is actually a
subjective analysis
a. Rickets test doesnt really address that issue at
all
3. Modern policy is typically more in favor of letting
children testify and allowing the adversary to deal
with the issues
v. Lawyers as witnesses
1. FRE does not prohibit lawyers from testifying
2. Testimony by an attorney who is acting as counsel
violates the rules of PR, unless it falls into a rare,
narrow category
8

a. Testimony will relate solely to an uncontested

matter
b. The testimony will relate solely to a matter of
formality and there is no reason to believe that
substantial evidence will be offered in
opposition of the testimony
c. The testimony will relate solely to the nature
and value of legal services rendered in the
case by the lawyer or his firm
d. As to any matter, if refusal would work a
substantial hardship on the client because of
the distinctive value of the lawyer or his firm as
counsel in the particular case
vi. Judges as witnesses
1. FRE 605: Judges Competency as a Witness
a. One of the federal grounds for incompetency
b. Does not prohibit from calling a judge as a
witness in another trial or hearing, even posttrial proceeding in the same case
2. FRE 614 (Courts Calling or Examining a Witness)
allows the court to question witnesses

3. RELEVANCE
I.

Logical Relevance v. Pragmatic Relevance

a. Logical Relevance
i. FRE imposes limits on
1. Substance of evidence
2. Form of evidence
ii. Fundamental Substantive limitation on the substance of
evidence is the rules on relevance
1. FRE 401: Relevancy and its limits
a. Includes common law relevance and
materiality
2. FRE 402: General Admissibility of Relevant Evidence
a. Relevance is a necessary, if not sufficient,
condition for admission
iii. When thinking about relevance, dont get ahead of yourself
when considering probability - What exactly does this
testimony tend to prove at its most basic level?
iv. Evidential Hypothesis
1. What fact is proponent trying to prove?
2. How is the fact the proponent seeks to prove
material to the case?
a. Common Law: materiality; FRE 401(b)
3. How does the proffered evidence make that fact
more or less probable?
a. Common law relevance; FRE 401(a)
v. Distinguishing evidence from facts (for relevance purposes)
1. Evidence is information (testimony or exhibits) that
party seeks to introduce in the court
2. Facts are events or conditions (usually relating to the
world outside the courtroom) that evidence is
introduced to prove
vi. Facts sought to be proven may be relevant because they
are a part of a chain of inference tending to prove another
fact
1. Context determines strength of the inference
2. Judges function is to impose some sort of screening
(though being reasonably permissive to persuasive
arguments) as to what evidence is admitted
vii. Consciousness of Guilt
1. Remember, sometimes one fact is material only
insofar as it is part of a chain of inference leading to
another fact
a. For example: Is defendants flight of
consequence to the action?

10

i. Only if flight tends to prove

consciousness of gild
b. Is defendants consciousness of guilt of
consequence to the determination of the
action
i. Only if we assume that one who believes
himself to be guilty is more likely to be
guilty.
ii. There could be other reasons for a
defendant to run
2. Flight evidence, generally
a. What do you need to know to admit flight
evidence?
i. The conduct was really flight, as opposed
to another conduct
ii. That flight under these particular
circumstances indicates consciousness of
guilt
iii. That the guild of which the defendant is
conscious is guilt of the crime of which
he is charged in this case
iv. That consciousness of guilt under
circumstances of this case supports an
inference of actual guilt
b. This is difficult, requires a lot of speculation
i. Judges are reluctant to admit in many
circumstances
viii. Old Chief v. United States
1. Documentary record of conviction of assault causing
serious bodily injury was relevant evidence in making
s status (as a previously convicted felon) more
probable than it would have been without the
evidence. Further, stipulation does not make relevant
evidence irrelevant.
2. Evidence of prior conviction while relevant, was more
prejudicial than probative because evidence of a gun
crime or one similar to other charges in a pending
case present the unfair prejudice risk that it will
distort the jurys thinking by propensity reasoning. It
was enough that stipulated to being a felon
(compare effect alternative methods of proof of the
same facts)
ix. Summary
1. Two parts of relevance: material and relevant
2. Always ask the three questions
a. Differentiate evidence from facts
11

3. General Observations
a. Standard of relevance under 401 is quite low
b. Remember that each piece of proffered
evidence need not, by itself, prove any
material fact
4. The question is whether the proffered evidence,
alone or in combination with other evidence, makes a
material fact more or less likely.
b. Pragmatic Relevance
i. FRE 403: Excluding Relevant Evidence for Prejudice,
Confusion, Waste of Time, or Other Reasons
1. Grants Judge discretion for admittance
2. More prejudicial than probative
3. Balancing test
a. Probative value v. 403 factors
ii. Applying 403
1. Relevance v. Probative value
a. Probative value = strength/logical force of the
piece of relevant evidence
iii. Details of 403
1. Undue Delay, wasting time, or needlessly presenting
cumulative evidence
a. You have some discretion to determine the
point at which the advocate is trying to prove a
point that has essentially been proven
2. Unfair Prejudice
a. It is NOT merely an increased likelihood that
the party objecting to the evidence will lose the
case.
i. Focus is not on just a disadvantage, but
the unfairness of that disadvantage.
b. It is a disadvantage stemming from some
distortion of the factfinders ability
i. For example
1. Propensity thinking
2. Bias
3. Passion
iv. State v. Chapple
1. Photographs of murder victim should not have been
admitted because they were more prejudicial than
probative. The fact that the victim was killed (shot in
the head), the medical cause of his death, and what
was done with his body after death was not in
controversy. This inflames the jury because the jury
will be morally outraged and rational processes will

12

II.

be suspended or altered at the horribleness of the

crime, thus convicting the person in front of them.
v. Summary of 403
1. Favors admissibility of relevant evidence, even if
prejudicial, confusing, or duplicative
2. Grants judges discretion to exclude relevant
evidence if probative value is substantially
outweighed by unfair prejudice, confusion, or
duplication
3. Analyze evidence sought to be excluded under 403
very carefully to place it in the right category
4. Particularly in the case of allegedly unfairly
prejudicial evidence, compare its effect to alternative
methods of proof if the same fact (Old Chief)
5. Remember: There must be evidence of all elements.
Evidence must take form of testimony, exhibit, or
stipulation.. And judges rarely force parties to
stipulate.
vi. FRE 105 - Limiting evidence that is not admissible against
other parties or for other purposes
1. Problem of Completeness
vii. FRE 106 Remainder of or Related writings or recorded
statements
c. Mathematical Proofs
i. People v. Collins
1. We do allow probability evidence, frequently actually
(e.g. DNA evidence)
a. Challenge is trying to deconstruct the
underlying analysis or deconstructing the
statistical analysis
i. Judges are going to be cautious
1. Might confuse the jury
2. Judges dont understand it
3. Particularly if it is going to distort
the factfinding process
Circumstantial Evidence and Probabilistic Analysis
a. Direct v. Circumstantial Evidence
i. Direct
1. Direct assertion of the fact we are trying to prove
ii. Circumstantial
1. Describes a circumstance, which, together with other
evidence, can form a chain of evidence that allow the
trier of fact to come to a conclusion
iii. No difference in value in the law between direct and
circumstantial no difference in admissibility

13

III.

1. In fact, circumstantial evidence is often better than

direct evidence
Character Evidence and Sexual History
a. FRE 401, 404, and 405
b. Character: behavioral disposition inclinations (innate features)
c. Social function of character judgment
i. Serves a predictive function
ii. Decides how to order future relations
iii. Increased socialization with good character and less with
bad character
d. Character evidence goes toward propensity
e. FRE dictates that we shouldnt consider character because
i. Probative worth of character evidence is hard to assess
ii. Character evidence can be prejudicial
1. Jurors may misuse character evidence by
a. Overvaluing inference from character to
behavior OR
b. Convicting despite the evidence because
defendant is a bad guy
iii. Ability to judge character isnt reliable
f. FRE 404: Character Evidence, Crimes or Other Acts
i. Begins with general rule prohibiting the use of character
evidence to prove propensity
1. Followed by exceptions permitting character
evidence to prove propensity in certain situations
a. FRE 412 exception (rape shield rule)
g. FRE 405 Methods of Proving Character
i. FRE 405(b) is used rarely character itself is VERY rarely
an element to a claim, defense, etc.
h. Opinion evidence v. reputation evidence
i. Opinion: I think that the person has the trait in question
ii. Reputation: I heard that this person has the trait in
question
i. Summary of 404(a)
i. If defendant introduces evidence of OWN GOOD character,
prosecution can introduce evidence of defendants bad
character
ii. If defendant introduces evidence of victims pertinent trait,
prosecution can introduce evidence to rebut it and
introduce evidence of defendants pertinent trait
iii. Be cautious of what actions one side takes that may allow
the other side to take action
iv. Assume testimony about opinion of parties character
what foundation?
1. How do you know the party, how well do you know
them, etc basis for their opinion
14

IV.

v. Assume testimony about reputation foundation?

1. Establish that there is a community and that the
witness is privy to information about reputation
2. Establish that witness is familiar with community that
party is member of and that witness is privy to
information about the person
Prior Acts and Habit Evidence
a. FRE 404(b)
i. General rule in the law is that we should not use a persons
tendencies to determine whether they acted a certain way
on a given occasion
ii. Applicable to both civil and criminal cases
iii. Ban on propensity inferences
1. Exceptions are a product of our tendency to actually
think this way in real life.
iv. List in 404(b) is not exclusive, rather it is illustrative.
1. In theory, the non-exclusivity of the list is true but,
in practice, it is actually comprehensive enough that
in fact it is exclusive.
v. Notice requirement
1. Triggered only by defense request
b. What does government have to show to get evidence before a
jury?
i. Evidence is probative of a material issue other than
character
ii. Judge decides whether government has proven that
preponderance
c. Once jury hears evidence, what happens? Jury determines by
preponderance that act occurred and the Defendant was the
actor.
i. Who has burden, what if it isnt met?
1. Proponent of evidence generally has the burden to
prove by preponderance of evidence
2. If it isnt met issue of corrective/limiting instruction
is needed
d. (Huddleston Test Balancing 404(b) and 403) In reviewing the
admission of other crimes or acts as evidence, court should
consider whether
i. Evidence was introduced for a proper purpose (not
propensity)
ii. Evidence was relevant for that purpose
iii. Probative value of evidence was outweighed by risk of
unfair prejudice
iv. Judge gave limiting instruction, if requested.
e. FRE 406: Habit; Routine practice

15

V.

i. Assumption that we can distinguish between habit and

character
ii. Habit doesnt have a moral component
iii. Habit is a regular practice of meeting a particular kind of
situation with a certain type of conduct, or a reflex
behavior in a specific set of circumstances. Evidence of
habit or custom is relevant to an issue of behavior on a
specific occasion because it tends to prove that the
behavior on such occasion conformed to the habit or
custom.
Remedial Measures
a. FRE 407, 408, and 410
i. FRE 407: Subsequent Remedial Measures
1. Rule is read to interpret that an earlier injury or
harm relates to the injury or harm at issue in this
case
2. Protection from two logical fallacies
a. Post Hoc, ergo Propter Hoc
i. Because event A happened before event
B, therefore A caused B
b. Because the world gets wiser as it gets older,
therefore it was foolish before
3. Exclusionary rule applies to both negligence and
products liability cases
4. Timing:
a. Need to take careful account of the sequence
in which these things happen
ii. Tuer v. McDonald
1. may not admit remedial measure as impeachment
because did not argue that restarting Heparin was
not feasible. Further, subsequent remedial measure
evidence is not ordinarily admissible for
impeachment if it is offered for simple contradiction
of a s witness testimony
iii. FRE 408: Compromise Offers and Negotiations
1. 408(a)(2): The Criminal Case exception
2. (a)(1) designed to ensure that settlements and
offers and counteroffers leading to them are not
admissible in civil or criminal cases.
3. (a)(2) Designed to ensure that statements of fact
between private parties in negotiations to settle
private disputes are not admissible in criminal cases
iv. FRE 410: Pleas, Plea Discussions, and Related Statements
1. Statements by ones lawyer can be admitted
b. Evidence of Sexual History:

16

i. FRE 412: Sex Offense cases: Victims sexual behavior or

predisposition
1. The evidence may be considered on any matter to
which it is relevant
ii. FRE 413: Similar Crimes in Sexual-Assault Cases
iii. FRE 414: Similar Crimes in Child-Molestation Cases
iv. FRE 415: Similar Acts in Civil Cases Involving Sexual
Assault or Child Molestation

17

4. HEARSAY
I.

Defining Hearsay
a. Just because something is hearsay, doesnt mean its
inadmissible Has to meet FRE 802/803 exception
i. FRE 802: The rule against hearsay
ii. Simply because you can survive a hearsay objection by
invoking 803 doesnt mean the statement is going to be
admissible. All it means is that its going to survive a
hearsay objection. It may be inadmissible on other
grounds, such as irrelevance, prejudice, privilege, etc.
iii. ALSO Do not fall into the error of thinking that when you
are dealing with a hearsay problem that you can only find
one answer, one exclusion into which the statement may
fall. You may be ble to use a whole host of exceptions to try
to bring in the statement under a number of exceptions or
definitional carve-outs
b. 3 steps to understanding Hearsay
i. Understanding why we have hearsay (policy behind
hearsay)
1. No oath for out of court statements (unless
deposition/affidavit)
2. Absence of demeanor evidence
3. No cross-examination
ii. Understand what hearsay IS and what it is NOT
iii. Understand all 29 exceptions to the prohibition against
hearsay
c. FRE 801: Definitions that apply to this article: Exclusions from
Hearsay
i. What is hearsay? 801(c)
1. Always be on the alert the instant someone tries to
introduce a statement made at any other time
besides this trial
2. Shorthand: hearsay is an out of court statement
introduced to prove the truth of the matter asserted
3. 3 requirements
a. Statement (defined in FRE 801(a))
i. Verbal assertions of fact, whether oral or
written
ii. Statements do not always take the form
of declarative sentences; questions can
contain assertions of fact
iii. Verbal expressions should not be
construed hyper-literally. Law looks to a
speakers meaning
iv. Assertive nonverbal conduct

18

1. For nonverbal conduct to be a

statement, it must be intended, by
the declarant, as an assertion
a. Requires examination of the
state of mind of the declarant
2. Test for gauging if conduct is a
statement under hearsay rules
a. Does the conduct expressly
or impliedly convey an
assertion (claim about the
truth) about some relevant
fact?
b. If it does, did the person
(actor = declarant_ intend it
as an assertion?
b. Made at some time/place before trial
c. Made for truth of the matter asserted
i. Must compare the perspectives of the
proponent and the declarant.
ii. Key to determining truth of the matter
asserted:
1. Figure out what proponent of
statement is trying to prove by
offering the statement in evidence
2. Figure out what facts declarant is
asserting in the statement
3. If 1 and 2 match, in that achieving
proponents purpose depends on
proving that the matter asserted by
declarant in the statement is true,
then the statement is hearsay
d. Keep straight the different entities:
i. Proponent: party that wants to introduce alleged statement
ii. Witness: Person who testifies/sits on the witness stand
iii. Declarant: Person who made the out of court statement
e. Wright v. Doe
i. Doctrinally Defective. The writers competency can only be
inferred from the letters thus the letters are hearsay. Under
the FRE, non-assertive conduct is not hearsay!
1. Must figure out supposed declarant
2. Then figure out what conduct is it being asserted to
prove
3. Third figure out whether the actor intended to
convey that statement (If he didnt intend it then it
isnt hearsay)
f. U.S. v. Check
19

II.

i. asked cop witness Without telling us what informant

said to you, what did you say to him? calls for hearsay.
g. Most common non-hearsay purposes (not exclusive list_
i. Impeachment
ii. Verbal Acts
1. Legally operative language and is not hearsay
because it is not offered as an assertion. (Causes a
legal change)
a. Legally operative language is not hearsay
when it is offered to prove the existence of the
legal relationship that it creates. However, an
assertion contained in a legally operative
statement is hearsay if offered for the truth of
the matter asserted and offered for some
purpose other than establishing the existence
of the legal power, right or duty created by the
statement.
iii. Effect on listener or reader
iv. Verbal objects
1. If you have things that have identifying marks on
them, there is an implicit statement on the object
v. Circumstantial evidence of state of mind
vi. Circumstantial evidence of memory or belief
Separating Hearsay from Non-Hearsay
a. FRE 801(d) Statements that are NOT hearsay (Definitional
Carve-outs)
i. A declarant-witnesss prior statement
1. (A) Inconsistent with declarants testimony
2. (B) Prior Consistent Statement
a. Three Factors
i. Witness must be cross-examinable at
trial about the statement
ii. Must be consistent with his testimony
iii. Must be offered to rebut a charge of
recent fabrication or improper influence
or motive
1. Prior statement does not have to
be in any special place or
proceedings
2. Thus, depends on what the
opponent does
3. (C) Identifies a person declarant perceived earlier
ii. An opposing partys statement
1. Analytical Steps
a. Figure out who the parties are
b. Identify the declarant
20

2.
3.

4.
5.

c. Identify the proponent

d. Determine whether the declarant is a partyopponent of the proponent
(A) Made by party
(B) Party manifested that he adopted
a. Adoptive admission situation in which the
statement is one which someone other than
the party himself said something, but the party
adopted it in one way or another
b. Tacit admission the person against whom the
admission is sought is aware of the statement
being made and does nothing to disavow it, but
also does not expressly endorse it
i. When is silence a tacit admission?
1. At a minimum, it should be made
to appear that (a) the party heard
the statement, (b) the matter
asserted was within his knowledge,
and (c) the occasion and nature of
the statement where such that he
would likely have replied if he did
not mean to accept what was said
2. Even if these conditions are
satisfied, the statement should be
excluded if it appears that (d) the
party did not understand the
statement or its significance, (e)
some physical or psychological
factor explains the lack of reply, (f)
the speaker was someone whom
the party would likely ignore, or (g)
the silence came in response to the
questioning or comments by a law
enforcement officer during
custodial interrogation after
Miranda was or should have been
given
(C) Authorized speaker
(D) Employee
a. Four requirements for employees:
i. Statement must be offered against a
party
ii. Declarant must be an agent or employee
of the party against whom the statement
is offered

21

iii. The subject matter of the statement

must be within the scope of the agency
or employment relationship
iv. The statement must be made during the
existence of the agency or masterservant relationship
6. (E) Co-conspirator
a. During and in furtherance of the conspiracy
b. Practical matter is that once state has evidence
that conspiracy exists evidence from any coconspirator can be admitted against the others
i. Person against whom the evidence will
be admitted doesnt have to have been
present when the statement was made,
know the declarant exists (so long as the
declarant and person are both members
of the conspiracy), and doesnt have to
even know the statement was made
c. Three requirements
i. Co-Venturer: The declarant conspired
with the person against whom the
statement is offered
ii. Pendency: The statement was made
during the conspiracy
iii. Furtherance: The statement somehow
furthered the ends of the conspiracy
(Loosely interpreted)
d. Not limited to criminal cases
i. Doesnt have to be charged with
conspiracy
e. Points to remember
i. A co-conspirator statement is not
hearsay
ii. The co-conspirator rule is not limited to
criminal cases
iii. Doesnt have to be a charge of the case
iv. All that is necessary is proof of three
requirements
b. State v. Smith
i. Statements made to police officers or federal agents are
typically not admitted under this rule because they are not
proceedings (typically more formal with presiding officer or
opposing counsel)
c. Tome v. U.S.

22

III.

i. Since the rule speaks in terms of a response to improper

influence or motive, it matters when that motive or
influence happened
1. Statement -> influence -> testimony = OK
2. Influence -> statement -> testimony = NOT ok
d. Bruton v. U.S.
i. The government should not have the windfall of having the
jury be influenced by evidence against a which, as a
matter of law, they should not consider but which they
cannot put out of their minds. A co-defendant confessed
that and I committed the robbery and should not be
admitted because a jury could not ignore that statement
even though judge gave limiting instruction.
e. U.S. v. Hoosier
i. s girlfriend said to another, with present, you should
have seen the money we had in the hotel and spoke of
sacks of money. The occasion and nature of the
statement was such that he would have likely have replied
if he did not mean to accept what was said.
f. Bourjaily v. U.S.
i. Burden of proof of predicate facts (FRE 104):
Preponderance of evidence
ii. Rule
1. Abandons anti-bootstrapping law (that judge couldnt
consider co-conspirator statement in determining
conspiracy)
2. Alleged co-conspirator statements may be
considered in deciding whether a conspiracy existed
3. The contents of the statement shall be considered,
but are not alone sufficient
g. FRE 805: Hearsay within Hearsay
i. Not excluded IF each part conforms with an exception to
the rule
h. FRE 806: Attacking and Supporting the Declarants Credibility
FRE 803: Exceptions to the rule against hearsay regardless of
whether the declarant is available as a witness
a. State of Mind
i. (1) Present Sense Impression
1. Key is immediacy immediate is a subjective
determination made on a case-by-case basis in the
court. In other words, whether a statement was
made immediately depends on the circumstances
2. Nuttall v. Reading Co
a. Present Sense Impression includes all senses,
not just sight

23

b. Wifes account of what her husband said during

and immediately following the telephone
conversation between him and employer
should be admitted into evidence because his
statement, I feel sick is a present sense
impression and his response Why are you
forcing me to come to work the way I feel? is a
present sense impression after immediately
hearing employer say he must come in.
ii. (2) Excited Utterance
1. Key is excitement there is a time component here
as well. It doesnt say the statement has to be made
contemporaneous with the condition, but it does
have an implicit time condition that the statement
cant have been made so long after the exciting
event that the declarant has had time to calm down
2. U.S. v. Arnold
a. With statements made after the event, some
time later, usually see arguments concerning
i. Demeanor of the declarant
ii. Type of event was such that a reasonable
person would remain in a state of
excitement for the period thereafter
iii. Immediacy means after the starting
event and well within the traumatic
range of it. Time is not required and
excited utterance exception may be
based solely on testimony that the
declarant still appeared nervous or
distraught and that there was a
reasonable basis for continuing to be
emotionally upset.
b. Three elements
i. There must be an event startling enough
to cause nervous excitement
ii. The statement must be made before
there is time to contrive or misrepresent
iii. The statement must be made while the
person is under the stress of the
excitement caused by the event
iii. (3) Then-Existing Mental, Emotional, or Physical Condition
1. This exception is applicable in four instances
a. To prove declarants physical condition at the
time the statement was made
i. Person who testifies to statement can be
anyone, not just medical professional
24

ii. Judge does not make determination of

admissibility
iii. Statement must be of the physical
condition of the declarant AT THE TIME of
the out of court statement
b. To prove the declarants mental or emotional
condition at the time of the statement was
made
c. To prove the declarants conduct after the
statement was made (Hillmon exception)
i. Mutual Life Insurance v. Hillmon
1. Letters were admissible to show
intention of writer at the time of
writing them, indicating that he
was with Mr. Hillmon on a certain
day.
d. To prove facts concerning the declarants will
2. Subsequent Conduct the parentheticals in the rule
include many things that are forward looking
(motive, intent, or plan)
3. U.S. v. Pheaster
a. Allowed for evidence of sons plans to meet
to get free weed. Under Hillmon doctrine, the
state of mind of the declarant is used
inferentially to prove other matters, which are
at issue (does not require that state of mind of
the declarant be an actual issue).
b. Court upheld the Hillmon Doctrine
b. Statements for Purpose of Medical Treatment
i. (4) Statement Made for Medical Diagnosis or Treatment
1. Essential Components of the Rule
a. Declarants motive why is declarant making
statement he or she is making?
i. For this exception to apply, motive must
be to get diagnosis or treatment
b. Statements relevance statement must be at
least broadly relevant to the purpose for which
the statement is made
i. Statements of fault or accusations of
fault not typically germane to medical
diagnosis or treatment
c. Statements content statement must describe
medical history, past medical symptoms or
sensations, exceptions to those medical
symptoms or sensations, or at least, their
general cause.
25

2. Things to remember
a. Rule allows in statements for purposes of
obtaining treatment and statements for
purposes of obtaining a diagnosis
b. Allows in statements about symptoms and
statements about the general cause of the
condition complained of
i. Many courts have interpreted the
limitation on statements about cause
that they be reasonably pertinent to
diagnosis or treatment very broadly
(Blake v. State)
ii. However, they CAN observe statements
as to fault would not ordinarily qualify
under this rule, thus a patients
statements that he was struck by an
automobile would qualify, but not his
statement that the car was driven
through a red light
c. Statements dont have to be made to a doctor
but can be made to broad medical personnel,
or any medical care personnel
3. Blake v. State
a. Two part test
i. (1) The declarants motive in making the
statement is consistent with the
purposes of promoting treatment or
diagnosis and
ii. (2) The content of the statement is
reasonably relied on by a physician in
treatment or diagnosis.
b. Court found statements made to doctor by
child victim regarding D forcibly subjecting her
to sexual intercourse was admissible.
c. Past Recollection Recorded, Business and Public Records, Learned
Treatises
i. (5) Recorded Recollection
1. Present Recollection Refreshed
a. Witness is not testifying straight from the
document
b. Would it refresh your recollection? when
witness is having trouble remembering
c. Things to remember
i. Not expressly authorized by a particular
rule of evidence a survivor of common
law evidence
26

1. Implicit in rule 612(a)

ii. In theory, the thing used to refresh
causes a dormant memory to revive
iii. Virtually anything can be used to refresh
recollection
1. Usually a writing or an image
but nothing in the rules specifies
what it can and cannot be
iv. The thing used to refresh recollection is
not necessarily admitted into evidence
1. BUT 612 requires that opponent be
able to inspect, cross-examine
regarding, and introduce relevant
portions
v. Almost never admitted into evidence
1. Witness is supposed to, before
testifying, put the thing down/look
away
2. Cannot read into evidence
3. Only person who gets to see it is
the witness
vi. Exception (612)
1. Opponent may be able to introduce
refreshing thing under certain
circumstances, but not the
proponent
2. Past Recollection Recorded
a. Record is defined broadly not just writing, but
essentially any recording of information
b. Four requirements
i. Witness lacks present recollection of the
matter (at the time of testimony)
ii. Statements accurately reflects
knowledge witness once had
iii. Witness either made statement himself,
or adopted statement of another
iv. If these requirements are satisfied, prior
statement admitted as substantive
evidence (absent objection on some
other non-hearsay ground)
c. Ohio v. Scott
i. The statement consisted of facts of which
the witness has firsthand knowledge; the
written statement was the original
memorandum made near the time of the
event while the witness has a clear and
27

accurate memory of it; the witness

lacked a present recollection of the words
used by in the conversation; and the
witness stated that the memorandum
was accurate.
ii.
ii. (6) Records of a Regularly Conducted Activity Business
Records Exception
1. When must the record be made?
a. At or near the time of the events or conditions
or observations that it is recording
2. What sources of information are permissible?
a. Record made by or from information
transmitted by someone with knowledge
3. Palmer v. Hoffman, Lewis v. baker
a. Investigative reports are always at least a little
bit suspect
4. DOESNT cover Government activity
5. Petrocelli v .Gallison
a. Petrocelli v. Gallison- FRE 803(6) requires that
information in a business record be
transmitted by a person with knowledge and
there was an absence of information about how
these doctors got this information about a
surgery that happened in a different hospital
six months ago.
6. Someone with knowledge v. Custodian of Records
a. Someone with knowledge: maker of record, and
perhaps person who conveyed information to
maker of record (would be the declarant)
b. Custodian: Witness (testifies about the record)
custodian can also be maker, which would
make him declarant
7. Things required
a. Testimony from custodian or other qualified
witness (or certification through 902) lays
foundation for
b. Record (memorandum, report, record, or data
compilation in any form) of
c. An act, event, condition, opinion, or diagnosis
d. Made at or near the time of events it concerns
e. By someone with knowledge of those events or
transmitted by such a person
f. If kept in the course of regularly conducted
business, etc.

28

iii.
iv.

v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.

g. And if making the record was a regular practice

of that activity
h. Unless the source of information or the method
or circumstances of preparation indicate a lack
of trustworthiness
8. Norcon v. Kotowski
a. Investigative memo containing hearsay
statements admissible regardless because this
was a regularly conducted business activity
and all hearsay statements within the
document were made by party opponents
(response to hearsay within hearsay).
(7) Absence of a Record of a Regularly Conducted Activity
(8) Public Records
1. Civil Case: always allowed, Criminal Case only when
brought in by defendant
2. Baker v. Elcona Homes
a. established four factors to consider when
assessing lack of trustworthiness: (1)
Timeliness of the investigation (2) Special skill
or experience of the official (3) Whether a
hearing was held and the level at which it was
conducted (4) Possible motivational problems
3. 4 factors
a. Timeliness
b. Special Skill
c. Whether there was a hearing
d. Possible Motivational Problems
(9) Public Records of Vital Statistics
1. Birth, Death, marriage, etc.
(10) Absence of a Public Record
(11) Records of Religious Organizations Concerning
Personal or Family History
(12) Certificates of Marriage, Baptism, and Similar
Ceremonies
(13) Family Records
(14) Records of Documents that affect an interest in
property
1. Common records of clerk and recorder
(15) Statements in documents that affect an interest in
property
(16) Statements in ancient documents
(17) Market Reports and Similar Commercial Publications
(18) Statements in Learned Treatises, periodicals, or
pamphlets

29

IV.

1. Trick is establishing authoritativeness of treatise you

want to use
a. Expert testimony
b. Other Expert
c. Judicial Notice
2. Can only be read into evidence, not received
d. Other Exceptions
i. (19) Reputation Concerning personal or family history
ii. (20) Reputation concerning boundaries or general history
iii. (21) Reputation concerning character
iv. (22) Judgment of a previous conviction
v. (23) Judgments involving personal, family, or general
history, or a boundary
FRE 804: Statements from Unavailable Witnesses
a. Former Testimony
i. Must be opportunity for cross by person against whom
statement is offered
ii. Cross must be close to the same functional equivalent if
witness was here now in this case
iii. Must share similar motive in cross-examination as current
party
iv. Usually introduced by transcript from former proceeding
but this presents double hearsay (court reporter says
witness says)
1. This is addressed by (8) (transcript is public record)
v. Opportunity and similar motive
1. Lloyd v. American Export
a. Outlier stretch because previous party wasnt
really a predecessor in interest with current
party
b. Court found sufficient community of interest
shared by the Coast Guard in its hearing and
subsequent civil trial, regardless of not
having opportunity to cross, because both
issues involved who started the fight.
2. Should try to establish same facts in the past and
there should be some kind of legal relationship
between the party that crossed in the past and the
party now
b. Dying Declarations
i. Declarant must believe death is imminent
1. Must establish declarant was conscious, and believed
he or she was going to die quickly
a. Declarant does not have to actually die
ii. Statement must be about the cause or circumstances of
imminent death
30

V.

c. Declarations against Interest

i. Matter of theory: pay attention not only to the words of the
declaration but the circumstances under which it was made
1. Motivation of the speaker in THAT setting (context
matters)
ii. Williamson v. U.S.
1. One must look at not the entire statement, but must
parse out the particular pieces and that there are
pieces of the statement, which are not selfinculpatory, or even if they are self-inculpatory,
provide benefits for declarant, and those pieces dont
really fit those pieces shouldnt be admitted.
a. Only the pieces of the statement which are
plainly of the sort one would not make unless
he or she knew to be true because they are
purely bad for the speaker.
d. Statements of Personal or Family History
e. Statements against a Party that Wrongfully Caused Declarants
Unavailability
i. Giles v. California
1. Court did not allow for testimonial statement by
victim to be admitted. Court held that they must
consider the intent of the when applying the
forfeiture doctrine and determine if the intended to
make the witness unavailable to testify. Here the
intended to kill the victim, not to make her
unavailable to testify. Thus, still had a right to
confront her, admission of victims statements would
violate confrontation clause.
a. Difference between knowledge and
purposefulness. Here, required purposefulness.
2.
ii. Melendez-Diaz v. Massachusetts
iii. Williams v. Illinois
iv. Bullcoming v. New Mexico
Residual Exception
a. Key requirement for admission: equivalent circumstantial
guarantees of trustworthiness
b. Analysis
i. Statement not specifically covered by 803 or 804
ii. Has equivalent circumstantial guarantees of
trustworthiness as the exceptions recognized under
803/804, AND
1. Statement is offered as evidence of material fact,
AND

31

VI.

a. Materiality not just the relevance standard,

must be very important to case
2. Statement is more probative than any other evidence
which proponent can obtain through reasonable
efforts, AND
3. General purposes of these rules and the interests of
justice will best be served by admission of the
statement into evidence
c. State v. Weaver
i. Trustworthiness factors, in general
1. Declarants propensity to tell the truth
2. Whether declarants statements were under oath
3. Personal knowledge of declarant
4. Time lapse between incident and declarants
statement
5. Motivations of declarant for making statement
6. Corroboration
7. Reaffirmation or recantation by declarant
8. Credibility of reporting witness
9. Availability of declarant for cross
ii. Trustworthiness, from district court
1. Witnesses to statement very credible
2. Declarant available to testify
3. Statement made shortly after incident
4. Declarant reporting first hand knowledge
5. Statement unambiguous and explicit
6. Statement in response to open-ended question, not
interrogation
7. Statement made to more than one person
8. Statement similar to account given at other times
9. Statement corroborated by medical evidence
iii. Bottom line: 807 is for evidence that is so critical for the
jury to hear, and let the adversaries sort out to the jury
whether to believe or not
Hearsay and the Confrontation Clause
a. Analyzing Hearsay re. Confrontation Clause
i. Is it testimonial?
1. No? Confrontation clause does not bar admission
2. Yes?
a. Barred if
i. Defendant is currently unavailable for
cross, and
ii. No prior cross examination, or
opportunity for such cross
b. Otherwise, Confrontation Clause does not bar
admission
32

b. Sixth Amendment
i. In all criminal prosecutions, the accused shall enjoy the
right to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his
favor; and to have the Assistance of Counsel for his
defense
1. All three above rights fit together to create the
confrontation of the clause. Subpoena power and
assistance of counsel assist the defendant with the
ability to fulfill the right of confrontation.
ii. REMEMBER the confrontation clause applies only in
CRIMINAL cases.
c. Ohio v. Roberts
i. Hearsay is not barred by the Confrontation Clause if
1. Declarant is unavailable, and
2. The out of court statement is sufficiently reliable
d. Crawford v. Washington
i. Three possible definitions of witnesses
1. People who would testify at trial
a. No good because prosecutor could just choose
who testified so Confrontation clause would be
satisfied
2. All persons making statements
a. No good because hearsay would be abolished
3. Something in-between: Testimonial witnesses
ii. Holding: Confrontation clause only covers testimonial
statements.
e. Rule:
i. If declarant is currently unavailable for cross-examination,
and
ii. No prior cross-examination, or opportunity for cross,
iii. Then the testimony is barred under the confrontation
clause.
f. Suggested factors for determining whether something is
testimonial:
i. Indicia of formality = it looks like testimony
ii. Use to which statement expected to be put
1. What was the purpose of making the statement?
g. Davis v. Washington The Emergency Dpoctrine
i. Court seems to think emergency is important in
determining whether something is testimonial or not
ii. Holding: Statements are non-testimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the
33

circumstances objectively indicate that there is no such

ongoing emergency and primary purpose is to be used for
a later criminal prosecution.
h. Michigan v. Bryant
i. Primary purpose
1. The relevant inquiry is not the subjective or actual
purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable
participants would have had, as ascertained from
that individuals statements and actions

34

5. JUDICIAL NOTICE
I.

FRE 201: Judicial Notice of Adjudicative Facts

a. Adjudicative Facts
i. Facts normally decided by a jury in a jury trial, or those
that would have to be proven by evidence if judicial notice
were not taken
ii. FRE 201 expressly limits itself to adjudicative facts
b. Evaluative Facts
i. Matters of common knowledge or understanding used to
assess other evidence rarely mentioned, or even
consciously thought of
c. Legislative Facts
i. Knowledge about the world or society the court brings to
common law judging process
1. Legislative History
2. Science
3. Sociology
4. Politics
5. History
d. Law
i. Foreign or domestic, State v. Federal

35

6. DIRECT AND CROSS EXAMINATION

I.

II.
III.

IV.

Three basic, broad objectives of Cross-Examination

a. Drawing out facts or details that are helpful to your client that
didnt get brought out on direct Filling in the Picture
b. Show that witness is mistaken witness is doing his or her best
to answer questions in good faith, but may not remember, may
not have seen, etc.
i. Relates to competence Ability to perceive the physical
workd Ability to process what they perceived Ability to
communicate to the court what they perceived
ii. Once witness is over competence threshold, defects in
perception, process, and communication are grounds fro
Cross
c. Witness is Lying
FRE 607: Who may impeach a witness
a. Any party
FRE 611: Mode and Order of Examining Witnesses and Presenting
Evidence
a. Scope of Cross Examination
i. Should not go beyond
1. Subject matter of direct examination, and
2. Matters affecting the witnesss credibility.
Form of Questions
a. Leading questions leading questions should not be used on
direct, except as necessary to develop the witnesss testimony.
Ordinarily, the court should allow leading questions
i. On cross examination, and
ii. When a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party

36

7. IMPEACHMENT
I.

II.

Introduction
a. Five ways to impeach a witness
i. Showing that a witness has some bias, animus, motivation,
or corruption that might lead him to fabricate or shade his
testimony to help or hurt one of the parties
ii. Showing a defect in sensory or mental capacity (perception
or memory) that undercut his testimony
iii. Showing that he is, by disposition, untruthful
1. Cross-examining the target witness about nonconviction misconduct casting doubt on his honesty
2. Cross-examining him about certain kinds of
convictions
3. Testimony by a character witness that a target
witness is untruthful
iv. Showing that the witness has made a prior inconsistent
statement (meaning one that conflicts with his current
testimony)
v. Contradicting the witness showing that he is just plain
wrong on one or another point in his testimony
Non-Specific Impeachment
a. For Bias
i. U.S. v. Abel
1. Showing bias is a proper way to impeach credibility
under 607 and 611
b. Sensory and Mental Capacity
i. The attacking party may seek to show that a witness had
only a brief chance to see or hear what she described in
her testimony, or that she labors under defects in sensory
capacity that may affect her observation, or that human
perceptive processes work in ways suggesting that her
testimony is not as persuasive as it seems
ii. Williams v. State- an attacking party may show that
witness was under the influence of drugs or alcohol at the
time of the events or even during trial
c. By evidence of character for truthfulness
i. 404(a)(3) has an exception to the general rule against
character evidence which permits this kind of
impeachment
1. You can introduce evidence of the character of a
witness to prove that he acted in conformity
therewith on a particular occasion
ii. 608 and 609 tell you how and when you can
1. 608: A witnesss Character for Truthfulness or
Untruthfulness

37

III.

a. 608(B) Cross examination on unconvicted

misconduct can impeach a witness by asking
about prior conduct that would suggest he is a
liar, but you cant ask about whether hes
violent, racist, rude, etc.
i. Use of aliases
ii. General disregard for oaths
iii. Instances of financial dishonesty
b. Extrinsic Evidence: Outside evidence other
than witnesss own testimony
2. 609: Impeachment by evidence of a criminal
conviction
iii. U.S. v. Manske
1. Bias impeachment = extrinsic evidence is admissible
(Able)
d. Prior Convictions
i. Not limited to subject matter of the crime
1. Primary limitation on offenses is on offense
seriousness
a. Primary dividing line is between felonies and
misdemeanors
ii. Factors in admitting criminal defendants conviction
1. Nature of the conviction
2. Its recency or remoteness
3. Whether it is similar to the charged offense
4. Whether defendants record is otherwise clean
a. Convictions are more probative if they show a
continuing pattern rather than isolated
instances
5. The importance of credibility issues
6. The importance of getting the defendants own
testimony
Specific Impeachment
a. FRE 613: Witnesss prior Statement
b. U.S. v. Webster
i. However, had no indication of bad faith when she called
witness to stand. asked if she could voir dire witness
because she was unsure how witness would testify,
objected. Then had the right to impeach by prior
inconsistent statement.
c. Impeachment with illegally obtained evidence
i. Ds testimony: A progression
1. Walder v. US ok to impeach with illegally seized
evidence Ds assertion on direct that he never sold
drugs

38

2. BUT court contrasted case with Agnello v. US where

govt asked defendant about prior drug use on cross
3. Harris v. NY ok to impeach Ds denial on direct of
drug sale with statement obtained after defective
Miranda
4. Oregon v .Hass ok to impeach defendant with
statement given after D asked for, but was refused, a
lawyer
5. US v. Havens ok to impeach with illegally seized
evidence defendants statement on cross
examination denying crime
ii. Limitations on impeachment exception
1. Defense witnesses may not be impeached with
illegally eized evidence or with defendants illegally
obtained statements (james v. Illinois)
2. Immunized testimony may not be used to impeach
defendant (NJ v. Portash)
3. Involuntary or coerced statements (as distinct rom
statements obtained in technical violation of
Miranda) may not be used to impeach a D (Mincey v.
Arizona)
d. Impeachment by Contradiction
i. Witness makes statements, other party calls other
witnesses that makes opposite statement
ii. Has two effects substantive evidence, but also impeaches
first
iii. Not explicitly mentioned in the rules

39

8. CHARACTER EVIDENCE
I.
II.
III.
IV.

V.

VI.

VII.

FRE 403
a. In all character evidence analysis, dont forget to check with 403
so prejudicial as to bar admission
FRE 404: Character Evidence, Crimes or Other Acts
FRE 405: Methods of Proving Character
Civil Cases
a. FRE 404 generally inadmissible to show conformity with that
character
i. Exception: If character is an essential element of the claim,
action or defense, then permissible
b. Key: In civil cases, if character is an essential element, then
reputation, opinion, and specific acts are all permissible
c. Red Flags for civil cases regarding character evidence
i. Defamation case: Plaintiffs character is at issue
ii. Child custody: Both parents character as fit parents
iii. Negligent entrustment: entrustees character
iv. Negligent Hiring: Employees character
v. Catchall cases involving deceit, fraud, or
misrepresentation by the defendant
d. Important to ask: Whose character is at issue?
Criminal Cases
a. FRE 404(a)(1) & (2)
i. Prosecutor cannot introduce character evidence in case-inchief, must wait for defendant to open the door
ii. Conformity evidence is generally not admitted
iii. (a)(1): Defendant can present his own character for
innocence of crime charged by reputation or opinion
evidence, but then also opens the door for prosecution to
rebut with evidence inconsistent of defendants character
of innocence of the crime charged
iv. (a)(2): Defendant may present reputation or opinion
evidence of victims bad character, but then prosecutor
can rebut with evidence either of victims good character
or defendants bad character
Past Acts FRE 404(b)
a. Past acts are permitted for purposes other than to show
character
i. MIMIC (Pneumonic)
1. M: Motive
2. I: Intent
3. M: (absence of) Mistake
4. I: Identity
5. C: Common scheme or plan
Ways to bring in character evidence - 405

40

VIII.

a. Reputation
i. If a witness is going to present reputation evidence, he
must know
1. The reputation of the person
2. The relevant community to contextualize the
reputation
a. Example: To comment on reckless drivers
reputation as such, must have seen him drive
b. Opinion
i. To present opinion evidence, a witness needs sufficient
information of the individual to give an opinion
c. Specific Acts
Keep in Mind:
a. Rape Shield Laws
b. Evidence of Similar Crimes/Acts in Sexual Assault or Child
Molestation cases
i. FRE 413/414

41

9. REPAIRING CREDIBILITY/REHABILITATION OF
WITNESS
I.
II.

III.

IV.

V.
VI.
VII.

Mostly means explaining

If you anticipate an impeachment of your witness, can you bring those
facts out yourself?
a. You can defuse impeachment by asking damaging questions,
yourself
b. You cant bolster your witnesss credibility before credibility has
been attacked, though
c. You can do this on redirect, not direct
Permissible on direct
a. For any party to adduce testimony by his expert to the effect that
he is being paid for his services
b. For the calling party to bring out that its witness has been
convicted of crimes
c. For the prosecutor to bring out that its witness entered into a
plea bargain
d. For the calling party to bring out a connection or affinity that she
has with the witness, such as personal or business relationships,
which are obvious grounds of bias that the other side would likely
raise
Evidence of good character:
a. FRE 608(a)
b. U.S. v. Medical Therapy Sciences
i. Attack doesnt have to use character or use character
witnesses. The thrust of questions must only raise
questions about the witnesss veracity
ii. P was allowed to call character witness to bolster another
Ps witnesss credibility. Court said it was OK to anticipate
to some degree
Prior Consistent Statements
a. FRE 801(d)(1)(B)
FRE 806
Forbidden Attacks
a. FRE 610: Religious Beliefs or Opinions

42

10. OPINION TESTIMONY

I.

II.

III.

Opinion on Ultimate Issue

a. FRE 704: Opinion on an ultimate Issue
i. Common law objection regarding ultimate issues is
essentially abolished
Opinion testimony of lay witnesses
a. FRE 701: Opinion testimony by lay witness
i. Lay witness may give opinion testimony when it is
rationally based on perception and helpful to the trier
of fact in understanding his testimony or determining a fact
in issue
b. FRE 602: still must have personal knowledge
Opinion testimony of expert witnesses
a. FRE 702: Testimony by expert witnesses
i. IF clause modifies not only scientific, but also technical
knowledge
b. Who can be qualified as an expert?
i. From looking at rule, standard is pretty broad
ii. Knowledge, skill, experience, training, or education
1. Not necessarily a degree
iii. An individual meets this standard as long as their expertise
is going to help the trier of fact
1. Assist trier of fact does the subject of an experts
testimony have to be beyond the understanding of
an ordinary juror to assist the trier of fact and thus
be admissible under 702?
a. Common law, and some modern courts: Yes
b. Majority: NO
iv. Take Away: Anyone who has sufficient experiences
c. When can an expert testify?
i. His knowledge will assist the trier of fact to understand the
evidence or determine a fact in issue, and
ii. The testimony is based upon sufficient facts or data, and is
the product of reliable principles and methods, and the
witness has applied the principles and methods reliably to
the facts of the case
d. In order to get someone to testify as an expert, you must do a
formal Dance ask witness a series of questions that lays
foundation of expertise, and then ask court to qualify as expert
and allow witness to testify. Judge asks opposing counsel for
objections or questions on qualifications of expertise. Judge
makes ruling
i. Normal Order of presentation of Expert Testimony
1. Educational Backgrounds, including degree and
certificate or license to practice

43

2. Experience, such as employment or practice in the

area, and
3. Familiarity with the subject in suit
e. FRE 703: Bases of an Experts Opinion Testimony
i. May rely on
1. His own observations
2. Information made known to the expert by others
3. Facts learned at trial
4. Facts learned before trial (Outside Data)
ii. These facts need not be admissible if they are of a type
upon which experts in the field reasonably rely in forming
opinions
f. FRE 705: Disclosing the facts or data underlying an experts
opinion
g. Tests
i. Frye Test
1. Evidence must be generally accepted in the
pertinent scientific community
a. Key is general acceptance
b. There must be some passage of time to allow
for acceptance
2. Frye could not support FRE
ii. Daubert Test
1. Reliability:
a. Can the theory or technique be (and has it
been) tested?
b. Has the theory or technique been subjected to
peer review and publication?
c. What is the known or potential error rate of,
and are there standards controlling, the
particular scientific technique in issue?
d. Has the theory or technique been generally
accepted by the relevant component of the
scientific community?
2. Fit
a. Really about whether a particular method or
approach is really appropriate for this particular
problem
3. Kumbo Tire
a. Extended Daubert standard to all expert
testimony presenting technical or specialized
material.
b. The Daubert list of factors is applied flexibly.

44

11. AUTHENTICATION/FOUNDATIONS OF EVIDENCE

I.
II.
III.
IV.

V.

VI.
VII.

Laying the foundation: laying a factual foundation for oral testimony or

physical evidence
Authentication: proving an item is what the proponent says it is
FRE 901: Authenticating Or Identifying Evidence
Summary
a. Laying the foundation is a broad term covering introduction of a
variety of preliminary evidence that must be introduced before
other evidence can be admitted.
i. Examples
1. Facts showing genuineness of exhibit
(authentication)
2. Facts showing that proffered evidence is not subject
to hearsay or other objection
3. Facts showing personal knowledge
4. Facts showing relevance
b. Authentication is a question for the judge
Three types of evidence requiring authentication
a. Real evidence
i. Pieces of the real world brought into the courtroom
ii. 3 basic methods of authenticating real evidence
1. Unique Evidence: Establishing that the thing we are
trying to introduce is unique/one of a kind
2. Fungible Evidence: Chain of Custody
3. Fungible Evidence rendered unique: Marking or
changing the object in some recognizable way
b. Documentary Evidence
i. Sometimes, this is also real evidence
ii. 901(b) has illustrative ways to authenticate (not a
complete list)
c. Demonstrative Evidence
Opposing party can introduce evidence against authentication
902 provides a list of self-authenticating evidence

45

12. REAL EVIDENCE AND DEMONSTRATIVE EXHIBITS

I.

II.

Real Evidence
a. Pieces of the real world brought into the courtroom
b. Has one inherent limitation control over it is limited (it is what it
is)
Demonstrative Evidence
a. Visual representation of something outside the courtroom that
you can use inside the courtroom you get to make it yourself
(with limitations, obviously)
b. When using demonstrative evidence
i. Recognize that you are shaping the chain of events
ii. Where possible, use visual aids (and dont forget the other
senses if you have the opportunity to use them)
iii. Recognize that one of your roles is a teacher and your
jurors are students - use demonstrative evidence to help
jurors learn
iv. Remember a trial is a play, not just a conversation.
Demonstrative evidence stimulates movement
v. The trial is not a dispassionate process
c. Basics
i. Remember sight lines were you place things and people
so the jury can see them
ii. When you create demonstrative evidence, consider what
the other side is going to use
iii. Juries typically get all the real exhibits, but typically also
get the demonstrative evidence
1. Can use demonstrative evidence as preserved
testimony as witnesses mark on exhibits
2. Can use diagrams to both prove the consistency and
inconsistency of witnesses

46

13. PRIVILEGES
I.
II.
III.

Justification
a. To protect special relationships/protect privacy
FRE 501: Privilege, in General
Attorney-Client Privilege
a. What does it cover? (Wigmores Formula)
i. Where legal advice of any kind is sought
1. Not other professional services
ii. From a Lawyer in his capacity as such
1. Person seeking legal advice from lawyer acting as
lawyer in providing the advice
iii. The communications relating to that purpose
(communications about seeking of legal advice)
1. Things or physical observations are not privileged
2. Communications relating to anything other than legal
advice arent necessarily protected
iv. Made in confidence
1. Not communications made in public, loud enough to
be heard
2. Even communications accidentally disclosed may not
be privileged
v. By the client
1. What lawyer says to client is protected as derivative
of what client says
vi. Are instantly permanently protected
1. Privilege belongs to client, not lawyer, so only client
can allow disclosure
2. Privilege applies FOREVER (Even if client is dead)
vii. From disclosure by himself or legal advisor
1. ONLY client can disclose privileged matters or allow
attorney to disclose privileged matters
viii. Except if protection is waived
b. Legal advice v. Non-legal advice
i. Maybe legal advice
1. Tax advice
a. Matters for inclusion on return no
b. Tax planning yes
ii. Not legal advice
1. Advising clients of court dates and other ministerial
matters
2. Accounting
3. Business agent/negotiator
4. Investigator
5. Business Partner
6. Acting as scrivener

47

c. People v. Meredith
i. Whenever s attorney removes or alters evidence (in this
case wallet), the statutory privilege does not bar revelation
of the original location or condition of the evidence in
question.
d. Unprivileged information
i. Crime-Fraud Exception
ii. Privileged communications where privilege waived
iii. Statements of the client in presence of third parties
iv. Personal observations of attorney, including those of
physical condition
v. Information obtained from third parties
vi. Attorney notice to client of court dates
vii. Physical evidence
e. Communicative Intermediaries
i. U.S. v. Kovel
1. Attorney client privilege does cover other service
because attorney went out to get his service because
attorney felt it was necessary
2. Regarding Accountants: Depends on who hired them
and when
f. Joint Clients and Pooled Defenses
i. Generally
1. If parties are represented by same attorney and have
congruent interests, and outside parties sues joint
clients, privilege applies
a. Privilege sustained against outsiders because
clients have same interests
2. If parties separate and no longer have congruent
interests, privilege no longer applies
a. Once partnership ends, privilege ends
3. If parties with separate attorneys consult to defend
lawsuit together (pooled defense), privilege applies
g. Attorney Client general rule:
i. Communications made in presence of outsider (not
communicative intermediary/co-defendant/counsel for codefendant) are NOT privileged
ii. Communications to lawyer made with understanding that
they would be later disclosed are NOT privileged
iii. Authorized disclosure of privileged material to ONE
outsider may render that material not privileged to ALL
outsiders
h. Leaks and Eavesdroppers
i. Suburban Sew n Sweep v. Swiss Bernia

48

1. Relevant consideration is intent of defendants to

maintain confidentiality of the documents as
manifested in precautions
a. Two considerations
i. Effect on uninhibited consultation
between attorney and client of not
allowing privilege
ii. Ability of the parties to the
communication to protect against
disclosure
i. Waiver
i. Client is holder of privilege and attorney is presumptively
authorized to assert, NOT WAIVE, privilege
1. Must obtain client permission for express waiver
2. Negligent disclosure may waive where unpermitted
intentional waiver would not
ii. Burden of proving privilege exists rests on party asserting
it
iii. FRE 502: Attorney-Client privilege and work product:
Limitations on Waiver
1. Disclosure of privileged matter, intentionally or
inadvertently, doesnt waive privilege as related to
matter
2. Inadvertent disclosure waives privilege when
adequate precautions werent taken
3. Non-waiver agreement regarding discovery binds
THIRD PARTIES
j. Corporate Attorney-Client privilege
i. Attorney client privilege extends to corporations
1. Previous tests
a. Control Group Test
b. Subject Matter or Scope of Employment Test
c. Diversified Indurtries Test
2. Upjohn v. U.S. (Modern Test)
a. Communications were made by corporate
employees to corporate counsel
i. For the purpose of enabling counsel to
provide legal advice to the corporation
and
ii. The employees were aware that this was
the purpose of the communication
b. Communications made at request of
employees corporate superiors
c. Communications concerning matters within the
scope of the employees corporate duties, and

49

d. Communications were treated as confidential

throughout, having been gathered in private
interviews and memorialized in notes and
memoranda that were not generally circulated
within the corporation and were not shown to
outsiders
k. Work-Product Doctrine
i. Covers materials prepared for litigation
ii. NOT a privilege
iii. 3 basic principles
1. Material collected by counsel in the course of
preparation for possible litigation (or during actual
litigation) is protected from disclosure in discovery
2. Protection is qualified in that the adversary may
obtain discovery by showing sufficient need for the
material
3. Materials that would reveal the attorneys thinking,
theories, analysis, mental impressions, beliefs,
strategies, etc. will receive the greatest (and perhaps
near absolute) protection
iv. Burden of establishing the application of the doctrine to
requested materials rests on the party asserting the
doctrines protection
v. FRCP 26(b)(3) = work product doctrine
1. (3) Trial preparation: Materials
a. Documents and tangible things. Ordinarily, a
party may not discover document and tangible
things that are prepared in anticipation of
litigation or for any trial by or for another party
or its representative (including the other
partys attorney, consultant, surety,
indemnitor, insurer, or agent). But subject to
rule 26(b)(4) (experts), those materials may be
discovered if
i. They are otherwise discoverable under
rule 26(b)(1) and
ii. The party shows that it has substantial
need for the material to prepare its case
and cannot, without undue hardship,
obtain their substantial equivalent by
other means.
b. Protection against disclosure. If the court
orders discovery of those materials, it must
protect against disclosure of the mental
impressions, conclusion, opinion, or legal

50

theories of a partys attorney or other

representative concerning litigation.
vi. FRE 612 may create loophole around work product or way
to circumvent it
1. Will trump work product doctrine
l. Exceptions to the attorney-client privilege
i. Client identity
1. In Re Osterhoudt:
a. Clients identity, and amount, form, and date of
fees is not privileged
2. Baird v. Koerner
a. Clients identity was covered by privilege
because identity of client would have revealed
that client told lawyer he didnt pay his taxes
since the lawyer sent in unpaid taxes. The
court found privilege applied if disclosing
identity would (a) reveal the legal advice that
the lawyer had given, (b) constitute the last
link in a chain of incriminating evidence, or (c)
reveal confidential statements or
communications by the client himself.
b. The identity of a client is not within the
protection of privilege
i. Possible Exceptions
1. Identity privileged if disclosure
would amount to acknowledgement
of guilt on offense for which
attorneys services were retained
2. Identity privileged if disclosure
would be tantamount to disclosing
a confidential communication
a. Better and more commonly
applied rule
3. Identity privileged if disclosure
would constitute last link in an
existing chain of evidence likely to
lead to the clients indictment
ii. Future Crime or Fraud
1. U.S. v. Zolin
a. In Camera Review No one sees it except
judge/staff
b. Three questions
i. Per FRE 104 and 1101(c), is district court
barred from review of allegedly private
material in camera to see if privilege
applies?
51

IV.

1. No
ii. Must the party opposing the privilege
make a preliminary showing of the
inapplicability of the privilege to get in
camera review?
1. Yes
iii. If so, what is require
1. Facutal basis sufficient to support
good faith belief
2. Standard for crime-fraud exception
a. Party claiming privilege must show by
preponderance that requirements of privilege
are met
b. Party opposing privilege can rebut claim of
privilege with showing by preponderance that
the crime-fraud exception applies
Marital Privileges
a. Two marital privileges
i. Spousal testimonial privilege
1. Type of case: Criminal only (at least in federal courts)
2. By whom called: Spouse may testify for his or her
spouse. Privilege can only be invoked when
prosecution calls defendants spouse as a witness.
3. Whose privilege: In federal court, the privilege
belongs to the testifying spouse (trammel v. US), who
therefore may testify over the defendant/spouses
objection. In some states, either spouse may object.
a. Testifying spouse can assert privilege. If spouse
decides to testify, the defendant cannot
prevent testimony by claiming privilege.
4. Subject matter: Everything. Statements,
observations, conduct, etc.
5. Time limits: Privilege only exists during the duration
of the marriage. However, it covers things that
happened before the marriage.
6. Limitations:
a. Does not apply to persons living together, or to
sham marriages. Must be legally recognized
marriage, including common law marriage.
i. If the state recognizes your marriage,
youre covered. EXCEPT sham marriages.
b. Does not apply in cases where defendant
spouse is charged with committing an offense
against the person or property of the testifying
spouse or another person residing in the
household of either.
52

c. Generally held not to apply where spouses are

joint participants in crime about which
testimony is sought.
ii. Marital Confidences privilege
1. Type of case: Criminal only (at least in federal courts)
2. By whom called: Spouse may testify for his or her
spouse. Privilege can only be invoked when
prosecution calls defendants spouse as a witness.
3. Whose privilege: In federal court, the privilege
belongs to the testifying spouse (trammel v. US), who
therefore may testify over the defendant/spouses
objection. In some states, either spouse may object.
a. Testifying spouse can assert privilege. If spouse
decides to testify, the defendant cannot
prevent testimony by claiming privilege.
4. Subject matter: Everything. Statements,
observations, conduct, etc.
5. Time limits: Privilege only exists during the duration
of the marriage. However, it covers things that
happened before the marriage.
6. Limitations:
a. Does not apply to persons living together, or to
sham marriages. Must be legally recognized
marriage, including common law marriage.
i. If the state recognizes your marriage,
youre covered. EXCEPT sham marriages.
b. Does not apply in cases where defendant
spouse is charged with committing an offense
against the person or property of the testifying
spouse or another person residing in the
household of either.
c. Generally held not to apply where spouses are
joint participants in crime about which
testimony is sought.
b. U.S. v. Montgomery
i. Both Spouses are holders of privilege

53