Evidence - Casey.fall.2009 Arkansa

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EVIDENCE OUTLINE
CASEY – FALL 2009
I. Types of Courtroom Evidence

A. Types of Evidence
1. Evidence
i) Evidence = testimony, writings, material objects, or other things presented to the sense that
are offered to prove the existence or nonexistence of a fact.
ii) Evidence includes all of the information given to the trier of fact during trial, except for the
questions and statements made by the attorneys and judges.
iii) Evidence is divided into 6 different categories
2. Oral Testimony
i) Fact Witnesses
a) People who perceived facts related to the lawsuit and testify about those facts.
ii) Expert Witnesses
a) People who use specialized knowledge to interpret evidence or explain it to the jury.
iii) Character Witnesses
a) People who offer information about the good or bad character of a party or witness.
3. Real Evidence
i) Real Evidence = any physical evidence that a party claims played a direct role in the
controversy.
ii) All real evidence must be authenticated – the proponent must offer some proof that the
piece of physical evidence is what she claims it to be.
4. Documents
i) Documentary evidence encompasses any type of writing or recording of information.
ii) Documents must be authenticated to ensure that they are what the proponent claims them
to be.
iii) Some writings are self-authenticating.
5. Demonstrative Evidence
i) Parties create demonstrative evidence to illustrate concepts or facts to the jury.
ii) Charts, tables, pictures, maps, graphs, PowerPoint slides and computer simulations are
common types of demonstrative evidence.
6. Stipulations
i) To introduce a stipulation as evidence, both parties must agree to its exact language.
7. Judicial Notice
i) If a fact is indisputably true, the trial judge can taken judicial notice of the fact.
ii) To support judicial notice, the fact must either be generally known or capable of accurate
and ready determination by consulting an unimpeachable source.
iii) If a photo, video, or audiotape depicts the events of a controversy directly, it constitutes real
evidence.
B. Circumstantial Evidence
1. Circumstantial Evidence = any evidence that requires the jury to make an inference connecting the
evidence with a disputed fact.
2. The distinction b/w circumstantial and direct evidence has no legal effect.
II. Federal Rules of Evidence: Why, Who, Where, When

A. Why?
1. Evidentiary Rules Exclude Evidence
i) To protect the jury from misleading information
ii) To eliminate unnecessary delay and promote efficiency
iii) To protect a social interest, such as a confidential relationship
iv) To ensure that evidence is sufficiently reliable
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B. Who?
1. The Federal Rules of Evidence come from 2 different sources:
i) Notes written by the Advisory Committee
a) Offers a nutshell explanation of the rules
ii) Committee Reports and other legislative history from Congress
C. Where?
1. Rule 101: Scope
i) These rules govern proceedings in the courts of the United States, before the U.S.
bankruptcy judges, and U.S. magistrate judges to the extent and with the exceptions stated in
Rule 1101.
2. Rule 1101
i) The rules apply to all federal district courts and courts of appeals.
ii) The rules do not apply to the U.S. Supreme Court.
iii) Agencies are free to adopt the FRE if they choose.
iv) A provision of the Internal Revenue Code directs that court to apply the FRE in certain
proceedings.
D. When?
1. Rule 1101(b)
i) The FRE govern civil and criminal trials, and admiralty and maritime cases.
ii) The FRE apply only to the trial.
iii) Exempts a court’s exercise of summary contempt power from the FRE.
2. Rule 1101(c): Applicability of Rules – Rule of Privilege
i) The rule with respect to privileges applies to all stages of all actions, cases and
proceedings.
3. Rule 1101(d): Applicability of Rules – Rules Inapplicable
i) The rules (other than with respect to privileges) do not apply in the following situations:
a) Preliminary Questions of Fact
(1) The determination of questions of fact preliminary to admissibility of
evidence when the issue is to be determined by the court under rule 104.
b) Grand Jury
c) Misc. Proceedings
(1) Proceedings for extradition or rendition
(2) Preliminary examinations in criminal case
(3) Sentencing, or granting or revoking probation
(4) Issuance of warrants for arrest, criminal summonses, and search warrants
(5) And proceedings with respect to release on bail or otherwise.
III. Structure of a Trial

A. In the Courtroom
1. Pretrial Motions
i) Motions in Limine
a) Focus on whether or not info is admissible under the FRE
b) “In Limine” is Latin phrase meaning “at the threshold” signaling the pretrial nature of
the motions.
ii) Motion to Suppress
a) Claiming the opponent’s evidence was illegally obtained
iii) Motion for Summary Judgment
a) Argue that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
2. Jury Selection
3. Opening Statements
i) An effective opening statement:
a) Tells a compelling story, and
b) Reflects the evidence that will unfold during the trial.
4. π’s/Prosecutor’s Case-in-Chief
5. Δ’s Case-in-Chief or Case-in-Defense
6. π’s/Prosecutor’s Case-in-Rebuttal
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7. Δ’s Case-in-Rebuttal or Case-in-Rejoinder

8. Further Rebuttal and Rejoinder
9. Closing Statements
10. Instructing the Jury
11. Deliberation
12. Verdict
IV. Raising and Resolving Evidentiary Objections

A. Disputing and Defending Evidence
1. Raising Objections
i) Rule 103: Rulings on Evidence
a) Error may not be predicated upon a ruling which admits or excludes evidence
unless
(1) In case the ruling is one admitting evidence, a timely objection or motion to
strike appears of record, stating the specific ground of objection, if the specific
ground was not apparent from the context.
ii) The rule establishes 2 mechanisms for disputing evidence at trial:
a) By objection and by motion to strike
(1) Motion to strike occurs after disputed evidence has already entered the
record
(2) Both formats claim that evidence is inadmissible.
iii) Requires parties to challenge evidence in a timely manner
a) Lawyers must object to evidence as soon as the ground for objection is known or
reasonably should be known
b) If a trial attorney fails to object promptly, an appellate court will not consider the
evidentiary challenge.
iv) Requires trial lawyers to state a specific ground for any objection
a) If a trial attorneys fails to offer a specific ground for an objection, an appellate court
will not consider the evidentiary challenge
b) Requires attorneys to designate the portion of a document or witness’s testimony to
which they object.
(1) If the entire document or testimony is objectionable, the atty can object to
the whole.
(2) If just one part of the evidence is inadmissible, the atty must specify that
portion.
2. Defending Evidence
i) Rule 103(a): Rulings on Evidence
a) Error may not be predicated upon a ruling which admits or excludes evidence
unless
(1) In case the ruling is one excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent from the context within
which questions were asked.
ii) When one party objects to introduction of evidence, the opponent makes an offer of proof to
show the judge what the evidence entails.
iii) A formal offer of proof is unnecessary if the substance of the evidence is apparent from the
context within which questions were asked.
3. Maintaining Objections
i) Rule 103(a): Rulings on Evidence
a) Once the court makes a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or offer of proof
to preserve a claim of error for appeal.
ii) Rule 103 abolishes the need for exceptions.
a) Once trial counsel has made a specific and timely objection, and the judge has
overruled the objection, the issue is preserved for appeal.
4. Shielding the Jury
i) Rule 103(c): Rulings on Evidence
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a) In jury cases, proceedings shall be conducted, to the extent practicable, so as to

prevent inadmissible evidence from being suggested to the jury by means, such as
making statements or offers of proof or asking questions in the hearing of the jury.
ii) Requires the parties to contest evidentiary issues in a manner that shields the jury, as much
as possible, from hearing about inadmissible evidence.
B. Response by the Judge
1. Definitions
i) Sustain
a) If the judge agrees with an evidentiary objection
ii) Overrule
a) If the judge disagrees with the objection
iii) Curative Instruction
a) If inadmissible evidence has inadvertently reached the jury’s ears, the judge tells
the jury to disregard evidence, sometimes explaining why the evidence is misleading or
inappropriate to consider.
iv) Limiting Instruction
a) When evidence is admitted for specific, limited purposes, the judge gives the jury
an instruction to explain that the evidence may be used for some purpose but not for
others.
2. Rule 105: Limited Admissibility
i) When evidence which is admissible as to one party or for one purpose but not admissible
as to another party or for another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scopie and instruct the jury accordingly.
C. On Appeal
1. Intro
i) Appellate courts rarely reverse trial decisions based on evidentiary issues alone.
a) Appellate courts apply an abuse of discretion standard to most claims of evidentiary
error.
b) Rule 103 allows appellate judges to reverse a trial decision for evidentiary error only
if the error affected a “substantial right” of one of the parties.
2. Rule 103: Rulings on Evidence
i) Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected.
ii) Nothing in this rule precludes taking notice of plain errors affecting substantial rights
although they were not brought to the attention of the court.
3. An evidentiary ruling affects a party’s substantial right only if there is a reasonable probability that, if
the judge had made the correct ruling, the jury would have reached a different verdict.
i) Under Rule 103, most evidentiary missteps constitute harmless error.
ii) The substantial right standard applies even when an appellate court reviews an evidentiary
decision de novo.
V. Relevance
A. The Rules
1. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
i) All relevant evidence is admissible, expect as otherwise provided
a) By the Constitution of the U.S.
b) By Act of Congress
c) By the FRE, or
d) By other rules prescribed by the Supreme Court pursuant to statutory authority.
ii) Evidence which is not relevant is not admissible.
2. Rule 401: Definition of ‘Relevant Evidence’
i) “Relevant Evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.
3. “Any Tendency” to Make a Fact “More Probable or Less Probable”
i) “More Probable or Less Probable” indicates that an individual piece of evidence can be
relevant even if it does not conclusively establish any fact on its own.
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ii) A piece of evidence is relevant as long as it makes some fact of consequence “more
probable” or “less probable.”
4. Must Be a Fact “of Consequence”
i) The fact itself must be related to the cause of action, a fact that matters to someone who is
trying to establish a fact that is “of consequence” to the lawsuit.
ii) The evidence must connect legal issues involved in the case, but the connection does not
need to be as strong as the one connoted by the word “material”
iii) The FRE usually exclude evidence used to show that a person has a propensity to act in a
particular way.
B. In the Courtroom
1. Controversy and Consequence
i) Evidence is relevant even if it addresses a matter that the opponent concedes.
ii) Allows parties to introduce direct evidence of damaging facts, despite an opponent’s
attempts to minimize the impact of the facts by conceding them.
2. Unrelated Misdeeds
i) Courts occasionally conclude that evidence is too far removed from the parties’ dispute in
time, place, or other respects to satisfy Rule 401.
3. Negative Evidence
i) Judges frequently reject negative evidence.
4. Hindsight
i) Courts try to eliminate the effect of hindsight on a jury’s decision.
5. Opening the Door
i) Irrelevant evidence sometimes becomes relevant to rebut claims made by another party.
ii) A lawyer must consider carefully whether evidence is sufficiently important to outweigh the
possibility of opening the door to undesirable opposing evidence.
6. Case-by-Case Determination
i) Questions of relevance under Rules 401 and 402 are determined in the context of the facts
and arguments in a particular case.
ii) Courts generally should not create broad per se rules governing the relevance of whole
categories of evidence.
VI. Prejudice, Confusion, or Waste of Time

A. The Rule
1. Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
i) Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of
a) Unfair prejudice, confusion of the issues, or misleading the jury, or by
b) considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
2. “May”
i) A judge may or may not exclude evidence under Rule 403
ii) Appellate courts rarely reverse Rule 403 rulings
3. “Substantially Outweighed”
i) For the judge to exclude relevant evidence, its unfair prejudice, confusion, or delay must
“substantially” outweigh is probative value.
4. “Unfair”
i) Unfairly prejudicial evidence lures the fact finder into declaring guilt or liability on a ground
different from proof specific to the offense charged.
ii) Unfairness in this context means that the evidence will tempt the jury to decide the case on
grounds different from those the law demands.
B. In the Courtroom
1. 5 factors frequently influence a judge’s decision when applying Rule 403:
i) To extent which the evidence will arouse emotions or irrational prejudices among the jurors.
Judges are more likely to exclude evidence that triggers strong emotional reactions.
ii) The extent to which the jury might overvalue the evidence- that is, takes a piece of evidence
which is only slightly relevant and gives it undue weight.
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iii) The strength of connection b/w the evidence and the elements of the case. Judges are
more likely to admit evidence that is closely related to essential elements of a case, even when
that evidence is highly emotional.
iv) Whether the advocate can prove the same facts through less prejudicial or confusing
means. If alternative routes are available, the judge is likely to admit the challenged evidence.
v) Whether it would be possible to reduce prejudice or other harm once the evidence is
introduced. If the judge can redact prejudicial components of the evidence or instruct the jury to
refrain from improper use of the evidence, he will be more likely to admit the evidence.
2. Damaging Evidence
i) Rule 403 permit exclusion of evidence that is unfair only in the sense that it inflames the
jury’s passions or otherwise introduces an improper basis for decision. Evidence that strongly
supports the position of one party and damages the other is not unfair, it is just persuasive.
3. Videos and Photos
i) If a photo or video shows only the effects of the crime, giving no indication of how the crime
occurred or who was responsible, the possibility of unfair prejudice is more substantial.
ii) Courts will almost always admit some photos of the victim to illustrate elements of the
crime, but will exclude photos that greatly increase emotional reactions without adding new
information.
4. Socially Undesirable Behavior
i) Parties sometimes attempt to introduce evidence of an opponent’s unconventional lifestyle,
hoping that the jurors’ biases will lead them to view the opponent negatively.
a) Judges exclude some of these attempts under Rule 402, because the evidence
simply isn’t relevant.
b) Other times, lifestyle evidence may have some bearing on issues in the case,
especially given the broad definition of relevance under Rule 401.
ii) Courts are very sensitive to the prejudicial impact of evidence that a party has expressed
racist attitudes.
a) Where the evidence relates directly to the crime or other litigated issue, courts will
admit it.
5. Flight
i) Courts carefully analyze the circumstances surrounding flight in judging admissibility.
6. Stipulations
i) Facts related to an element of a crime or civil claim are “of consequence” even if the parties
do not actually dispute the element.
ii) The presence of a stipulation may affect the balance of the unfair prejudice and probative
value under Rule 403.
iii) Rule 403’s balancing test
a) Evaluate unfair prejudice and probative value in the context of the full evidentiary
record
b) With respect to most elements of a crime, the prosecution can choose to present
detailed evidence rather than accepting a Δ’s offer to stipulate.
7. Waste of Time, Undue Delay, and Needless Duplication
i) The rule empowers trial judges to exclude evidence that would waste time, cause undue
delay, or needlessly duplicate other evidence.
ii) The waste of time or confusion cause by introducing lengthy additional documents can
substantially outweigh any probative value of the information.
VII. Subsequent Remedial Measures

A. Intro & Policy
1. Rules 407 to 411 furthers 2 goals:
i) Each rule promotes a socially valuable activity, like plea-bargaining or purchasing liability
insurance, by protecting those who engage in that activity from evidence that might be used
against them.
ii) The evidence targeted by these rules tends to cause a high degree of unfair prejudice, while
contributing little probative value. The rules apply Rule 403’s balancing approach to exclude
particular categories of evidence.
B. Rule 407: Subsequent Remedial Measures

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1. When, after an injury or harm allegedly caused by an event, measures are taken that, if taken
previously, would have made the injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove
i) Negligence
ii) Culpable conduct
iii) Defect in a product
iv) Defect in a product’s design, or
v) Need for a warning or instruction.
2. This rule does not require the exclusion of evidence of subsequent measures when offered for
another purpose, such as
i) Proving ownership, control, or feasibility of precautionary measures, if controverted, or
ii) Impeachment.
C. In the Courtroom
1. What is a “Measure”?
i) Rule 407 bars evidence of “measures that if taken previously, would have made the injury
or harm less likely to occur.”
ii) Actions that would have made the injury or harm less likely to occur are remedial.
iii) Δ doesn’t have to change a product or dangerous condition directly to engage in remedial
measure.
a) Taking products off the market or issuing recalls are also measures that fall within
Rule 407.
b) A policy change may also constitute a “measure” under Rule 407.
c) Firing or disciplining an employee who was responsible for the disputed injury may
count as a remedial measure.
2. When is a Remedial Measure “Subsequent”?
i) The rule shields only measures taken after the injury itself.
ii) Parties injured after the 1st injured π may be able to rely upon evidence that is unavailable
to the initial π.
3. Negligence, Strict Liability, and Other Mental States
i) A remedial measure is unlikely to protect 3rd parties from injury, but it may mitigate harm
suffered by the π
ii) FRE 407 applies to any type of action regardless of the underlying theory of recovery,
including strict liability.
4. Remedial Measures by Non-Parties
i) Central policy behind the rule, to encourage prompt remedial measures, applies only when
1 party seeks to introduce evidence of a measure carried out by another party.
a) Non-parties have no fear of implicitly admitting liability, so they do not need
incentive of FRE 407.
ii) Most federal courts have held that Rule 407 only excludes evidence of subsequent remedial
measures undertaken by a party to the lawsuit.
5. Other Purposes: Ownership or Control
i) If a Δ claims that it did not own or control the instrument that injured the π, the π may
introduce evidence of subsequent remedial measures, not to prove that the original condition of
the instrument was unreasonably dangerous, but as evidence that the Δ did own or control that
instrument, b/c few people fix items that don’t belong to them.
6. Other Purposes: Feasibility
i) Rule 407 specifically permits a party to introduce evidence of subsequent remedial
measures against a party who controverts feasibility.
a) A party disputes feasibility when it claims that it could not have remedied a
dangerous situation b/c of economic, physical, or other constraints.
b) Evidence that the party did subsequently remedy the danger is strong evidence that
the change was feasible.
c) When the product has many marketplace equivalents, πs can readily use the
conduct or products of other individuals to show feasibility.
7. “If Controverted”
i) The π cannot introduce evidence of subsequent remedial measures to prove ownership or
control unless the Δ somehow denies that she owned or controlled the dangerous condition.
ii) The π cannot use the Δs design change to prove feasibility unless the Δ has argued that
there was no feasible way to make the conditions safer.
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8. Other Purposes: Impeachment

i) Rule 407 allows a party to introduce evidence of subsequent remedial measures for the
purpose of impeachment.
ii) Trial judges look for a closer fit b/w the remedial measure and the testimony it is supposed
to impeach. A judge is most likely to admit the evidence when:
a) A witness makes a specific representation that conflicts with the subsequent
remedial measure
b) The witness makes and absolute declaration like the product was perfectly safe,
and/or
c) The witness making the statement was personally involved in implementing the
remedial measure.
iii) One strategy is to avoid calling witnesses who were directly involved in remedial measures,
because they are particularly vulnerable to impeachment.
iv) Another strategy is for defense witnesses to limit their testimony to general statements
about safety.
D. Rules 105 & 403: Limiting Instructions and Unfair Prejudice
1. If the judge admits evidence of subsequent remedial measures for a purpose other than proving
liability, the Δ can request a limiting instruction.
i) The instruction will attempt to explain the permissible uses of the subsequent remedial
measures to the jury, while restraining them from using that evidence to establish liability.
VIII. Settlements and Offers to Compromise

A. Intro & Policy
1. The primary rationale behind Rule 408 is policy justification: to ensure that parties are not inhibited
from making offers or statements during the settlement negotiation process.
B. The Rule
1. Broadest Reach: What is Excluded?
i) Rule 408: Compromise and Offers to Compromise
a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party,
when offered to prove liability for, invalidity of, or amount of a claim that was disputed
as to validity or amount, or to impeach through a prior inconsistent statement or
contradiction:
(1) Furnishing or offering or promising to furnish-or accepting or offering or
promising to accept—a valuable consideration in compromising or attempting to
compromise the claim; and
(2) Conduct or statements made in compromise negotiations regarding the
claim.
ii) Rule 408 applies to all parties.
a) A party cannot introduce any evidence of settlement offers or negotiating
statements, not even evidence of their own offers or statements.
iii) It encompasses all offers, promises, acceptances, offers to accept, promises to accept, and
any consideration extended as part of the settlement.
iv) The rule protects all conduct or statements made in compromise negotiations, not just the
operative offers and acceptances.
2. Limits on Rule 408: What is Still Admissible?
a) Evidence of the following is not admissible on behalf of any party, when offered to
prove liability for, invalidity of, or amount of a claim that was disputed as to validity or
amount, or to impeach through a prior inconsistent statement or contradiction.
ii) For Rule 408 to apply, the disagreement b/w parties must have matured into a “claim.”
iii) Rule 408 requires that the parties dispute some aspect of the claim.
a) The claim must be disputed as to validity or amount.
b) If both parties initially agree that liability exists and also agree on the extent of
damages, Rule 408 doesn’t shield discussions they hold on other matters.
iv) Statements or conduct must occur during compromise negotiations or while compromising
or attempting to compromise the claim.
v) Excludes statements and conduct made during compromise negotiations only when a party
offers that evidence for 1 of 3 purposes.
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a) To prove liability or non-liability

b) To establish the amount of damages, or
c) To impeach a witness’s testimony through a prior inconsistent statement.
vi) Critical question to ask in evaluating admissibility under Rule 408: What is the party trying to
prove by offering the evidence?
3. More Limiting Language
a) Evidence of the following is not admissible
(1) Conduct or statements made in compromise negotiations re: the claim,
except when offered in a criminal case and the negotiations related to a claim
by a public office or agency in the exercise of regulatory, investigative, or
enforcement authority.
b) Permitted Uses. This rule does not require exclusion if the evidence is offered for
purposes not prohibited by sub (a). Examples of permissible purposes include:
(1) Proving a witness’s bias or prejudice
(2) Negating a contention of undue delay; and
(3) Proving an effort to obstruct a criminal investigation or prosecution.
ii) Under most circumstances, neither the prosecutor nor the accused may rely during a
criminal trial on evidence from civil settlement negotiations.
iii) When the civil settlement discussions occurred in a civil proceeding that involved a
government agency exercising its regulatory, investigative, or enforcement authority, the
prosecutor and Δ may introduce evidence from those negotiations in a subsequent criminal
case.
iv) Prosecutors and criminal Δs are prohibited from introducing evidence of civil settlement
offers, promises and acceptances in criminal proceedings, even if those occurred when
negotiating with a gov. agency exercising its regulatory power
a) But the prosecutor and criminal Δ can introduce evidence of other statements made
during settlement discussions related to the regulatory enforcement action.
C. In the Courtroom
1. What is a “Claim”?
i) A claim arises once a complaint has been filed.
ii) Most judges also agree that a claim arises once a party has hired and attorney and
threatened to sue.
2. When do “Compromise Negotiations” Occur?
i) Some of the factors that judges consider when deciding whether a statement occurred
during compromise negotiations:
a) Whether the statement was unilateral or occurred during bilateral discussions
b) Whether either party made a concrete offer
c) Whether attorneys were involved in the discussion, and
d) Whether the parties used phrases like – w/o prejudice.
3. Settlements with 3rd Parties
i) Rule 408 applies to all settlement discussions, even those conducted by parties who are no
longer involved in the case.
ii) If 2 πs sue a Δ, and the Δ settles with 1 of them, the remaining π cannot introduce the
settlement as evidence of the Δ’s liability.
iii) Evidence of 3rd party settlements is likely to confuse or unfairly prejudice the jury.
4. Other Purposes
i) The rule permits use of evidence from settlement discussions for other purposes. A party
may use evidence of settlement discussions to counter an argument that they delayed in
pursuing their claim.
ii) Courts have allowed parties to offer statements from settlement from settlement
negotiations to support a claim that an opposing party engaged in frivolous or vexatious
litigation.
5. Bias
i) One of the most common “other” purposes claimed by parties under Rule 408 is showing
that a witness is biased.
6. Impeachment: Inconsistency v. Bias
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i) Rule 408 allows parties to use settlement evidence for the 1st type of impeachment (bias),
but not the 2nd (inconsistency)
ii) Specifically prohibits the use of settlements or settlement negotiations to impeach a witness
through a prior inconsistent statement or contradiction.
7. Preexisting Evidence
i) This rule does not require the exclusion of any evidence otherwise discoverable merely b/c
it is presented in the course of compromise negotiations.
8. Criminal Cases
i) Any criminal settlement negotiations are not covered by Rule 408.
ii) In most criminal trials, neither the prosecutor nor the accused may introduce evidence from
prior civil settlement negotiations for any of the purposes prohibited by Rule 408
a) Exception for settlement discussions conducted as part of a civil regulatory,
investigative or enforcement action conducted by a government agency.
b) These are quasi-criminal proceedings, and the rule allows parties to introduce
evidence from these settlement discussions in a subsequent criminal prosecution.
D. Rule 403
1. No other rule trumps Rule 408 to guarantee admission.
2. When Rule 408 allows introductions of evidence, however, a judge may still determine under Rule
403 that admitting the evidence would cause unfair prejudice substantially outweighing any probative
value.
IX. Medical Expenses

A. Rule 409: Payment of Medical and Similar Expenses
1. Evidence of furnishing or offering or promising to pay medical hospital, or similar expenses
occasioned by an injury is not admissible to prove liability for the injury.
i) If a party offers evidence of medical payments to prove some other fact of consequence,
the evidence is admissible.
B. In the Courtroom
1. Furnishing, Offering, Promising
i) Rule 409 bars admission of offers and promises to pay medical expenses and actual
payments of those expenses.
2. Medical, Hospital, or Similar Expenses
i) “Similar Expenses” includes fees for all kinds of medical treatment and physical
rehabilitation.
ii) The rule does not cover offers to pay lost wages, to repair an auto, or to compensate injured
party for other types of economic or property damage.
3. To Prove Liability
i) Rule 409 only excludes evidence if it is offered to prove liability for the injury.
C. Rule 403
1. Rule 403’s balancing test serves as a back-up to Rule 409.
2. Rule 403 cannot rescue evidence that another rule has rejected.
3. When evidence passes Rule 409, Rule 403 operates as a final check on the fairness of admitting
the evidence.
X. Criminal Plea Bargaining

A. The Rule
1. Opening Language
i) Rule 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements
a) Except as otherwise provided in this rule, evidence of the following is not, in any
civil or criminal proceeding, admissible against the Δ who made the plea or was a
participant in the please discussions.
ii) The rule excludes the admission of evidence from civil and criminal trials.
iii) The rule precludes this evidence only when introduced against the person who, as a
criminal Δ, participated in the plea bargaining process.
iv) The rule prohibits any party from introducing evidence against the Δ who participated in the
plea bargaining but allows the Δ to introduce evidence from that process against others.
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2. Prohibitions
a) Evidence of the following is not admissible:
(1) A plea of guilty which was later withdrawn
(2) A plea of nolo contendere
(3) Any statement made in the course of any proceedings under Rule 11 of the
Fed. R. Crim. P. or comparable state procedure re: either of the foregoing
pleas; or
(4) Any statement made in the course of plea discussions with an attorney for
the prosecuting authority which do not result in a plea of guilty or which result in
a plea of guilty later withdrawn
ii) Protects guilty pleas that a Δ withdraws
iii) Shields plea of nolo contendere or “no contest”
iv) Protects statements made during a plea bargaining process if that process produced either
a withdrawn guilty plea or a plea of nolo contendere
a) All statements that the Δ made as part of the plea negotiation process or during the
aborted court appearance are also inadmissible against that Δ
v) Shields statements made during plea bargaining when no guilty plea results
a) Limits its protection to plea discussions that occur with an attorney for the
prosecuting authority
b) Protects statements made during plea bargaining, but only when the bargaining
produces a withdrawn plea or no plea
vi) Plea Discussions: Δ attorney present, specificity in “offers”
vii) Evidence that 410 Does and Does Not Protect
a) Plea Type:
(1) Accepted Nolo Contendere
(i) Plea Admissible?
(a) No – 410(2)
(ii) Statements during Bargaining Admissible?
(a) No – 410(3)
(iii) Statements during Plea-Related Court Admissible?
(a) No – 410(3)
(2) Withdrawn Guilty Plea
(a) No – 410(1)
(a) No – 410(3) & (4)
(a) No – 410(3)
(3) Accepted Guilty Plea
(a) Yes
(a) Yes
(a) Yes
(4) No Plea
(a) N/a
(a) No – 410(4)
(a) N/a
3. Exceptions
a) Such a statement is admissible
(1) In any proceeding wherein
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(i) Another statement made in the course of the same plea or plea
discussions has been introduced and
(ii) The statement ought in fairness be considered contemporaneously
with it, or
(2) in a criminal proceeding from perjury or false statement if
(i) the statement was made by the Δ
(ii) on the record and
(iii) in the presence of counsel
ii) The gov. may introduce some statements otherwise protected by the rule when necessary
to prosecute a Δ for perjury or false statement.
a) For this exception to apply, the Δ must have made a statement “under oath, on the
record and in the presence of counsel.”
B. In the Courtroom
1. What are “Plea Discussions”?
i) A plea discussion is one that occurs with an attorney for the prosecuting authority.
a) A suspect who volunteers an immediate confession to the arresting police officer, is
not engaged in plea discussions.
ii) Majority jx use a two-tiered approach to analyze ambiguous situations. Plea discussions
occurs if:
a) The Δ displayed “an actual subjective expectation to negotiate a plea” and
b) That expectation was “reasonable given the totality of the objective circumstances.”
2. Sentencing
i) Fed. R. of Evidence does not apply to sentencing proceedings.
ii) Prosecutors frequently introduce statements from plea bargaining sessions to inform the
court’s sentencing decision, and judges consider that evidence when calculating a sentence.
3. Waiver
i) Many waivers now allow the gov. to introduce statements made during plea bargaining even
if the Δ does not take the stand at trial.
ii) Letter from Δ sent to prosecutor, which admits guilt, is still considered part of the plea
negotiations if he has a reasonable expectation.
iii) If the Δ discusses the plea negotiations with another person, that person can be called to
the witness to testify.
C. Rule 403
1. Rule 410 only bars plea bargaining evidence that is offered against a Δ, courts often invoke Rule
403 to exclude similar evidence offered against the prosecution.
2. Δs may invoke Rule 403 when Rule 410 fails to exclude evidence offered against them.
XI. Liability Insurance

A. Rule 411: Liability Insurance
1. Evidence that a person was or was not insured against liability is not admissible upon the issue
whether the person acted negligently or otherwise wrongfully.
2. This rule does not require the exclusion of evidence of insurance against liability when offered for
another purpose, such as
i) Proof of agency, ownership, or control, or
ii) Bias or prejudice of a witness.
B. In the Courtroom
1. What is Liability Insurance?
i) The rule only excludes evidence of liability insurance.
ii) Health ins, disability ins, life ins, and others fall outside the liability category.
iii) Courts are split over whether indemnity agreements qualify as liability insurance under Rule
411.
a) Under an indemnity agreement, one party agrees to reimburse another party for
damages if a specified form of liability arises.
2. For What Purpose is the Evidence Offered?
i) Rule 411 only precludes evidence of liability insurance if it is offered to prove fault.
ii) Permitted purposes: proof of agency, ownership, or control, and bias or prejudice of a
witness.
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iii) Any purpose other than proof of liability is permissible under Rule 411.
C. Rule 403
1. Even when evidence is admissible under Rule 411, the judge may exclude that evidence under
Rule 403.
2. Evidence of insurance can be prejudicial and its probative value is often slight.
XII. Putting a Witness on the Stand

A. Competence: Who Can Testify?
1. The Basic Rule: Everyone is Competent
i) Rule 601: General Rule of Competency
a) Every person is competent to be a witness except as otherwise provided in these
rules.
2. State Law
i) Rule 601: General Rule of Competency
a) However, in civil actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision, the competency of a
witness shall be determined in accordance with State law.
3. Can the Judge Testify?
i) Rule 605: Competency of Judge as Witness
a) The judge presiding at the trial may not testify in that trial as a witness
b) No objection need be made in order to preserve the point.
ii) Rule 605 also prohibits the judge from offering commentary from the bench that amounts to
testimony.
iii) Prohibits the judges from reporting evidence related to experiments they have conducted or
visits they have made to a site related to the case.
iv) Prohibition also applies to the judge’s law clerks and other employees.
4. What About Jurors?
i) Rule 606: Competency of Juror as Witness
a) A member of the jury may not testify as a witness before that jury in the trial of the
case in which the juror is sitting.
b) If the juror is called so to testify, the opposing part shall be afforded an opportunity
to object out of the presence of the jury.
B. Personal Knowledge
1. The Basic Rule
i) Observe, Remember, Relate & Oath
ii) Rule 602: Lack of Personal Knowledge
a) A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter
2. Establishing Personal Knowledge
i) Rule 602: Lack of Personal Knowledge
a) Evidence to prove personal knowledge may, but need not, consist of the witness’
own testimony.
3. Experts and Personal Knowledge
i) Rule 602: Lack of Personal Knowledge
a) This rule is subject to the provisions of rule 703, relating to opinion testimony by
expert witnesses
C. Oaths and Affirmations
1. Rule 603: Oath or Affirmation
i) Before testifying, every witness shall be required to declare that the witness will testify
truthfully, by oath or affirmation administered in a form calculated to awaken the witness’
conscience and impress the witness’ mind with the duty to do so.
D. Interpreters
1. Rule 604: Interpreters
i) An interpreter is subject to the provisions of these rules relating to qualification as an expert
and the administration of an oath or affirmation to make a true translation.
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XIII. Examining Witnesses

A. Direct Examination
1. Leading Questions
i) Rule 611: Mode and Order of Interrogation and Presentation
a) Leading questions should not be used on the direct examination of a witness except
as may be necessary to develop the witness’ testimony
2. Permissible Leading on Direct
i) 4 contexts in which judges most often allow attorneys to lead witnesses on direct
examination:
a) To establish pedigree information
b) To direct a witness’ attention to a relevant place and time
c) To help a witness who is hesitant, confused, or has trouble recalling
d) Hostile witnesses
ii) Rule 611: Mode and Order of Interrogation and Presentation
a) When a party calls a hostile witness, an adverse party, or a witness identified with
an adverse party, interrogation may be by leading questions.
iii) Other Rule 611 Objections
a) The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to
(1) Make the interrogation and presentation effective for the ascertainment of
the truth
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue embarrassment.
B. Cross-Examination
1. Cross-Examination differs from direct examination in 2 important ways
i) Leading questions are allowed but
ii) The cross-examiner may ask questions only about issues covered during the direct
examination.
a) Cannot ask questions “beyond the scope”
2. Leading Questions on Cross
i) Rule 611(c)
a) Ordinarily leading questions should be permitted on cross-examination.
ii) If the π calls the Δ for a witness, the judge will not allow the Δ’s lawyer to use leading
questions as freely on cross-examination.
3. Beyond the Scope
i) Rule 611(b)
a) Cross-examination should be limited to the subject matter of the direct examination
and matters affecting the credibility of the witness. The court may, in the exercise of
discretion, permit inquiry into additional matters as if on direct examination.
ii) Questions related to impeachment are always fair game on cross-examination.
C. Redirect Examination
1. An opponent may use redirect to rehabilitate that witness.
2. Judges are more tolerant of leading questions on redirect examination than on direct.
3. Redirect examination must focus on matters raised during cross-examination.
D. Miscellaneous Issues
1. Rule 614 authorizes the judge to call her own witnesses and to interrogate witnesses called by
parties. Judges rarely call their own witnesses.
2. Rule 614: Calling and interrogation of Witnesses by Court
i) The court may, on its own motion or at the suggestion of a party, call witnesses, and all
parties are entitled to cross-examine witnesses called.
ii) The court may interrogate witnesses, whether called by itself or by a party.
iii) Objections to calling of witnesses by the court or to interrogation by it may be made at the
time or at the next available opportunity when the jury is not present.
3. Rule 615: Exclusion of Witnesses
i) At the request of a party the court shall order witnesses excluded so that they cannot hear
the testimony of other witnesses, and it may make the order of its own motion.
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ii) This rule does not authorize exclusion of:

a) A party who is a natural person, or
b) An officer or employee of a party which is not a natural person designated as its
representative by its attorney, or
c) A person whose presence is shown by a party to be essential to the presentation of
the party’s cause, or
d) A person authorized by statute to be present.
iii) Exceptions to the rule:
a) Parties to the case
b) Expert witnesses
XIV. Refreshing a Witness’ Memory

A. Intro & Policy
1. If a witness recalls the general outlines of an incident by it having trouble reciting details, the judge
may allow the lawyer to lead the witness on direct examination.
2. Rule 612 allows an attorney to refresh a witness’s recollection with a document or other item.
i) Any document can be used, as long as the witness states that it will help her remember the
necessary information.
3. Whatever kind of writing is used, the witness must first state that
i) She does not remember the answer to the questions being asked; and
ii) Seeing the writing will refresh her recollection
B. The Rule
1. Rule 612: Writing Used to Refresh Memory
i) If a witness uses a writing to refresh memory for the purpose of testifying, either
a) While testifying or
b) Before testifying if the court in its discretion determines it is necessary in the
interests of justice.
ii) An adverse party is entitled
a) To have the writing produced at the hearing
b) To inspect it
c) To cross-examine the witness thereon, and
d) To introduce in evidence those portions which relate to the testimony of the witness.
iii) If it is claimed that the writing contains matters not related to the subject matter of the
testimony the court shall examine the writing in camera, excise any portions not so related, and
order delivery of the remained to the party entitled thereto. Any portion withheld over objections
shall be preserved and made available to the appellate court in the event of an appeal.
iv) If a writing is not produced or delivered pursuant to order under this rule, the court shall
make any order justice requires, except that in criminal cases when the prosecution elects not
to comply, the order shall be one striking the testimony or, if the court in its discretion
determines that the interests of justice so require, declaring a mistrial.
v) Except as otherwise provided in criminal proceedings by section 3500 of title 18, U.S.C.
2. The adverse party may introduce a writing used for refreshment into evidence even if the writing
would not otherwise be admissible.
i) Rule 612 trumps other rules of evidence when an adverse party invokes it, the rule gives
the adverse party the right to introduce the writing for limited purpose of assessing the
witnesses credibility.
C. In the Courtroom
1. Method of Refreshing Recollection
i) In order to use a writing to refresh a witness’s recollection, the atty should follow 4 steps:
a) Establish the witness does not recall the answer to a question
b) Describe the writing she wishes to use to refresh the witness’s recollection and ask
if that writing would refresh the witness’s recollection
c) Show the writing to the witness. The witness will examine the writing and put it
aside, and testify from her refreshed recollection.
d) Before or during the process, the atty must be sure to give the opposing counsel a
copy of the writing.
2. Testifying from Original Memory
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i) If the witness refreshes memory from a credible source, and the refreshed portions of
testimony are brief, opposing counsel usually does not challenge the witness.
3. What Type of Writing?
i) Rule 612 does not limit the type of writing a witness may use to refresh recollection.
ii) The writing does not have to be a writing at all, it can be audiotapes, photographs and other
media.
4. Adverse Parties
i) If a party refreshes a witness’s recollection on direct examination, then other parties may
invoke Rule 612 for cross-examination.
a) Allows any party who did not initiate the refreshment of a witness’s recollection to
claim the rule’s protection.
5. Effect of Introducing the Writing
i) If the adverse party does choose to admit the writing into evidence, courts have held that—
unless the writing is admissible on other grounds—the jury may use the writing only to assess
the witness’s credibility.
XV. Impeaching Witnesses

A. A Toolbox of Ten Tactics
1. Exclude the Evidence Through a Specialized Rule
i) Potential grounds for exclusion include relevance, competence, person knowledge, medical
expenses, insurance, subsequent remedial measures, hearsay, bad acts, and unsupported
opinion.
2. Claim Unfair Prejudice, Confusion or Delay
i) Rule 403 gives the trial judge discretion to exclude evidence based on prejudice, confusion,
delay, or related grounds.
3. Complete the Story
i) Sometimes additional info reduces or eliminates the negative effect of testimony.
4. Clarify the Ambiguous Testimony
i) Cross-examination is particularly useful to clarify the words used by a witness on direct
examination.
5. Show Impairment of Perception or Recollection
i) A lawyer may try to show that an opponent’s witness perceived an event incorrectly or
recalls it inaccurately.
6. Demonstrate Inconsistencies
i) Opposing counsel may try to undermine a witness’s testimony by showing that the
testimony by showing that the testimony is internally inconsistent or contradicts earlier
statements made by the witness.
7. Rebut the Evidence
i) A party may introduce evidence that contradicts a witness’s testimony.
8. Show Bias
i) Demonstrating a witness’s bias is essential to the truth-seeking function of a trial, so the
evidentiary rules make special exceptions to accommodate proof of bias.
9. Attack the Witness’s Character for Truthfulness
i) Trial attys sometimes try to discredit a witness by showing that the witness is a generally
untruthful person.
10. Introduce Expert Testimony About Evidence
i) Expert testimony can aid several techniques.
B. Which witnesses?
1. Rule 607: Who May Impeach
i) The credibility of a witness may be attacked by any party, including the party calling the
witness.
XVI. Using Prior Statements to Impeach Witnesses

A. Intro & Policy
1. Extrinsic Evidence –
i) any evidence other than testimony from the witness currently on the stand
2. Collateral Matter –
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i) relevant to the case solely because it impeaches a witness

3. Judges use their discretion under Rules 403 and 611 to prohibit extrinsic evidence of a prior
inconsistent statement on a purely collateral matter.
i) Evidence of this nature causes delay and confusion that substantially outweighs its
probative value (Rule 403) and disrupts the orderly presentation of evidence (Rule 611).
4. The rules allow parties to present extrinsic evidence of prior inconsistent statements related to non-
collateral matters.
5. On cross-examination, non-extrinsic evidence may be used to probe collateral and non-collateral
matters.
6.
Non-Extrinsic Evidence Extrinsic Evidence
Non-Collateral Cross-Exam – Allowed. Allowed subjected to Rule 613
Matter
Collateral Cross-Exam – Allowed, subject Prohibited under Rules 403 and
Matter to some outer limits under 611.
Rules 403 and 611
B. The Rules
1. Disclosing the Prior Statement
i) Rule 613(a): Prior Statements of Witnesses
a) Examining witnesses concerning prior statement. In examining a witness
concerning a prior statement made by the witness, whether written or not,
(1) The statement need not be shown nor its contents disclosed to the witness
at that time,
(2) But on request the same shall be shown or disclosed to opposing counsel.
2. Procedural Constraints on Extrinsic Evidence
i) Rule 613(b)
a) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of
a prior inconsistent statement by a witness is not admissible unless
(1) The witness is afforded an opportunity to explain or deny the same
(2) And the opposite part is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require…
3. Substantive Constraints on Using Extrinsic Evidence
i) Judges give parties considerable freedom to ask witnesses about prior inconsistent
statements.
ii) If a party wants to introduce extrinsic evidence of a prior inconsistent evidence of a prior
inconsistent statement, judges are more restrictive.
iii) Judges usually exclude extrinsic evidence of a prior inconsistent statement that relates
solely to a collateral matter.
C. In the Courtroom
1. Inconsistent Statements
i) Judges usually allow parties to cross-examine witnesses only on their inconsistent
statements, not on consistent ones.
2. Prior Consistent Statements for Rehabilitation
i) Prior consistent statements are most likely to assist the fact finder, warranting admission
under Rules 402 and 403, when parties use them to rehabilitate a witness who has been
discredited on cross-examination.
3. Showing the Statement to the Witness
i) Judges sometimes exercise their general authority under Rule 611 to require a cross-
examining attorney to show the statement to the witness.
4. When Is an Issue Collateral?

i) If an inconsistency relates solely to a collateral issue, then the potential for prejudice, delay,
or confusion substantially outweighs the probative value of admitting extrinsic evidence of the
previous statement.
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XVII. Revealing Character on Cross-Examination

A. The Rule
1. Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.
i) Character Evidence Generally. Evidence of a person’s character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a particular occasion,
except
a) Character of a Witness. Evidence of the character of a witness, as provided in
Rules 607, 608 & 609.
2. Rule 608: Evidence of Character and Conduct of Witness
i) Specific instances of conduct. Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ character for truthfulness… may not be proved
by extrinsic evidence. They may however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1)
concerning the witness’ character for truthfulness or untruthfulness
B. In the Courtroom
1. Probative of Truthfulness or Untruthfulness
i) Many actions, although immoral or illegal, are not related to truthfulness.
ii) Examples include using a false name, lying on employment or loan application, and failing
to file tax returns.
iii) Some things that have been prohibited asking about murder, drug use, sexual proclivities,
and driving over the speed limit.
a) Some courts have allowed inquiry into drug trafficking as conduct establishing
untruthfulness.
2. Good Faith Belief
i) Before asking a witness about a specific incident suggesting untruthfulness, an attorney
must have a good faith belief that the incident occurred.
a) A good faith belief is one that rests on some evidence, even if the evidence would
not be admissible in court.
3. Judicial Discretion
i) Rule 403 authorizes judges to exclude evidence when its unfair prejudice substantially
outweighs its probative value, and Rule 611 allows the court to “exercise reasonable control
over the mode of interrogating witnesses to protect witnesses from harassment or undue
embarrassment.”
ii) Rule 608(b) permitting cross-examination on specific instances of a witness’s conduct only
“in the discretion of the court.”
4. Extrinsic Evidence
i) Rule 608(b) permits attorneys to cross-examine witnesses about acts that demonstrate a
character for untruthfulness.
a) The cross-examiner must accept whatever answer the witness gives.
XVIII. Using Criminal Convictions to Impeach Witnesses

A. The Rules
1. Opening Provision
i) Rule 609: Impeachment by Evidence of Conviction of Crime
a) General Rule. For the purpose of attacking the character for truthfulness of a
witness.
ii) Rule 609 applies only when a party uses a criminal conviction for a particular purpose: to
suggest that a witness has an untruthful character.
iii) When a party does rely on Rule 609 to introduce evidence of a prior conviction, the jury may
consider that conviction only to assess the witness’s character for truthfulness.
a) If the witness is also a party in the case, the jury should not use the conviction as
evidence of guilt or liability.
2. 3 Rules for 3 Categories
i) Felony Convictions/Any Witness Except an Accused
a) Rule 609:
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(1) For the purpose of attacking the character for truthfulness of a witness,
(i) Evidence that a witness other than an accused has been convicted
of a crime shall be admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of 1 year under the
law under which the witness was convicted.
b) Prior felony convictions are generally admissible to impeach witnesses other than
criminal Δs.
(1) The judge retains the discretion under Rule 403 to exclude a conviction if a
party persuades the judge that the conviction’s unfair prejudice will substantially
its probative value.
ii) Felony Convictions/Criminal Accused
a) Rule 609:
(1) For the purpose of attacking the character for truthfulness of a witness,
(i) Evidence that an accused has been convicted of such a crime shall
be admitted if the court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to the accused
b) Prior felony convictions are admissible against a criminal Δ who takes the stand but
only if the judge makes a distinctive finding that probative value outweighs prejudicial
effect.
(1) Standard weighs only the prejudicial effect of the evidence on the accuse,
not any other types of prejudicial effect.
(2) Excludes evidence whenever prejudicial effect equals or exceeds probative
value, not only when prejudicial effect substantially outweighs probative value.
(3) Places the burden on the prosecutor to demonstrate that probative value
outweighs prejudicial effect so that evidence of a prior conviction should be
admitted.
When Prejudicial Effect… Rule 403 Rule 609(a)(1)

Is less than probative value Admits the evidence Admits the evidence
Equals probative value Admits the evidence Excludes the evidence
Somewhat outweighs Admits the evidence Excludes the evidence
probative value
Substantially outweighs Excludes the evidence Excludes the evidence
probative value
iii) Crime of Dishonesty or False Statement/Any Witness

a) Rule 609:
(1) For the purpose of attacking the character for truthfulness of a witness
(i) Evidence that any witness has been convicted of a crime shall be
admitted regardless of the punishment, if it readily can be determined
that establishing the elements of the crime required proof or admission
of an act of dishonesty or false statement by the witness
3. Time Limits
i) Rule 609:
a) Evidence of a conviction under this rule is not admissible if a period of more than
ten years has elapsed since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is the later date, unless the
court determines, in the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs its prejudicial
effect.
b) However, evidence of a conviction more than 10 years old, is not admissible unless
the proponent gives the adverse party sufficient advance written notice of intent to use
such evidence to provide the adverse party with a fair opportunity to contest the use of
such evidence.
(1) 3 barriers to using convictions that are more than 10 years old:
(i) The party seeking to use the conviction must give adverse party
advance written notice
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(ii) The judge must find specific facts and circumstance supporting the
convictions probative value
(iii) The judge must determine in the interests of justice, that the
probative value of the conviction substantially outweighs its prejudicial
effect.
When Prejudicial Rule 403 Rule 609(a)(1) Rule 609(b)

Effect… [conviction less than [conviction more
10 y/o] than 10 y/o]
Is substantially less than Admits the Admits the evidence Admits the evidence
probative value evidence
Is somewhat less than Admits the Admits the evidence Excludes the
probative value evidence evidence
Equals probative value Admits the Excludes the Excludes the
evidence evidence evidence
Somewhat outweighs Admits the Excludes the Excludes the
probative value evidence evidence evidence
Substantially outweighs Excludes the Excludes the Excludes the
probative value evidence evidence evidence
4. Pardons, Annulments & Certificates of Rehabilitation

i) Rule 609:
a) Evidence of a conviction is not admissible if:
(1) The conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been convicted
of a subsequent crime that was punishable by death or imprisonment in excess
of 1 year, or
(2) The conviction has been the subject of a pardon, annulment, or other
equivalent procedure based on a finding of innocence
5. Juvenile Adjudications
i) Rule 609:
a) Evidence of juvenile adjudications is generally not admissible under this rule.
b) The court may, in a criminal case allow evidence of a juvenile adjudication of a
witness other than the accused if conviction of the offense would be admissible to
attack the credibility of an adult and the court is satisfied that admission in evidence is
necessary for a fair determination of the issue of guilt or innocence
6. Pendency of an Appeal
i) Rule 609:
a) The pendency of an appeal therefrom does not render evidence of a conviction
admissible. Evidence of the pendency of an appeal is admissible.
B. In the Courtroom
1. Defining Felonies
i) Felonies = crimes punishable by death or imprisonment in excess of 1 year.
ii) Witness does not need to receive such a sentence for impeachment to occur.
2. Special Balancing Test for Accused
i) Rule 609 creates a special balancing test to determine when prior felony convictions are
admissible to impeach a criminal Δ who takes the stand.
ii) 5 factors – some factors that affect the probative value of the prior conviction, others relate
to its prejudicial impact:
a) Impeachment value of the former crime
(1) A crime that relates to truth telling has more probative value than one that
does not.
b) Time of the prior conviction and subsequent criminality
(1) Convictions that occurred long ago have less probative value, unless they
are part of a pattern of criminality
c) Similarity between the prior crime and the charged one
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(1) When the prior crime is similar to the charged one, the likelihood of
prejudice is particularly high, b/c the jury may use the prior conviction not just to
judge credibility but to reason that the Δ has a tendency to commit this type of
crime
d) Importance of the Δs testimony
(1) The risk that a Δ will forego testifying should always count as an element
prejudice. In some case, that testimony may be particularly important to help
the Δ present his case.
e) Centrality of credibility
(1) If guilt turns on a swearing match b/w the Δ and the prosecution’s
witnesses, the prosecutor’s interest in impeaching the Δ is higher and the jury
may have greater need of that testimony.
3. Crimes of Dishonesty and False Statement
i) Rule 609(a)(2) admits prior conviction for crimes of dishonesty or false statement, even if
they were misdemeanors and without any consideration of undue prejudice.
ii) Dishonesty or false statement must be an element of the crime.
4. Time Limits
i) Presumption against allowing impeachment with crimes that are more than 10 years old.
ii) 10 year limit to the date of conviction or the release of the witness from the confinement
imposed by that conviction whichever is later.
5. Limiting Instructions
i) Courts admit evidence of prior convictions under Rule 609 for a limited purpose: to suggest
that a witness has an untruthful character.
XIX. Opinion or Reputation Evidence of Untruthful Character

A. Intro & Policy
1. Rule 608 only allows general opinion or reputation evidence of character, not testimony giving
specific instances of conduct related to a witness’s truthfulness or deceit
2. A party may introduce evidence of a witness’s truthful character only after that character has been
attacked.
B. The Rule
1. Rule 608: Evidence of Character and Conduct of Witness
i) Opinion and reputation evidence of character. The credibility of a witness may be attacked
or supported by evidence in the form of opinion or reputation, but subject to these limitations:
a) The evidence may refer only to character for truthfulness or untruthfulness, and
b) Evidence of truthful character is admissible only after the character of the witness
for truthfulness has been attacked by opinion or reputation evidence or otherwise.
2. 3 Limits:
i) Evidence must be in the form of opinion or reputation only
ii) Evidence must relate to the witness’s character for truthfulness or untruthfulness
iii) Testimony about a witness’s character for truthfulness can only be elicited after his
character has been attacked.
C. In the Courtroom
1. Opinion or Reputation Evidence
i) When a character witness offers an opinion about a fact witness’s character for truthfulness,
the attorney will first lay a foundation by showing that the character witness knows the fact
witness well enough to have formed an opinion about the fact witness’s truthful or untruthful
nature.
ii) Rule does not allow parties to ask character witnesses questions on direct examination that
focus on specific examples of a fact witness’s untruthfulness.
iii) Parties are allowed to cross-examine fact witnesses about incidents that might reveal
untruthfulness, and they may present character witnesses who offer opinion or reputation
evidence about the fact witness’s truthfulness, but they may not elicit specific details from the
character witnesses on direct examination.
2. Character for Truthfulness and Untruthfulness
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i) When examining a character witness under Rule 608(a), parties must limit their inquiry to
the witness’s character for truthfulness or untruthfulness.
3. Limited Purpose
i) Evidence of untruthful character admitted under Rule 608(a) is admissible only to assess
the credibility of the witness’s courtroom testimony.
4. When has a Character been Attacked?
i) Rule 608(a)(2) allows parties to bolster a fact witness’s credibility with evidence of a truthful
character, but only after the witness’s character for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
ii) Rule 608(a)(2) allows a party to call a positive character witness only when a fact witness’s
character for truthfulness has been attacked.
5. Applicable Only to Witnesses
i) Rule 608(a) only admits evidence related to a witness’s character.
ii) If an individual does not testify in court, parties cannot rely upon Rule 608 to attack the
person’s credibility.
XX. Cross-Examining the Character Witness

A. Intro & Policy
1. A character witness offered under Rule 608(a), may not give specific examples of the fact witness’s
untruthful behavior.
2. Apart from introducing evidence of criminal convictions, the party may not offer extrinsic evidence,
such as docs or testimony from other witnesses that shows specific instances of a fact witness’s
untruthfulness.
3. Once a fact witness’s character for truthfulness has been attacked, a party may introduce evidence
to show the witness’s truthful character. The evidence may take the following forms:
i) Specific incidents suggesting a character for truthfulness, elicited from the fact witness on
redirect examination
ii) Any extenuating circumstances related to the convictions, also elicited from the fact witness
on redirect examination
iii) Opinion or reputation evidence suggesting a character for truthfulness, offered by a rebuttal
character witness.
4. The rule allows parties to ask character witnesses on cross-examination about specific incidents of
a fact witness’s behavior.
i) Although the party who calls a character witness may not ask the witness questions about
specific incidents on direct examination, an opposing party may ask about specifics on cross-
examination.
ii) A cross-examiner cannot ask these questions on cross-examination unless she has a good
faith basis for believing that the specific acts occurred.
B. The Rule
1. Rule 608(b): Evidence of Character and Conduct of Witness
i) Specific instances of conduct. Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ character for truthfulness, other than conviction
of crime as provided in Rule 609, may not be provide by extrinsic evidence. They may,
however, in the discretion of the court, if the probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness.
a) Concerning the character for truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has testified.
2. An attorney may not ask a character witness about specifics of a fact witness’s conduct on direct
examination, but opposing counsel may ask the character witness those specifics on cross-examination.
C. In the Courtroom
1. Cross-Examination of the Character Witness
i) Extrinsic Evidence
a) Parties may cross-examine character witnesses about a fact witness’s specific
conduct, but they may not offer extrinsic evidence of that conduct.
b) Just as when a party cross-examines a fact witness on specifics, the cross-
examiner must accept the character witness’s denial.
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XXI. Religious Beliefs and Impeachment

A. The Rule
1. Rule 610: Religious Beliefs or Opinions
i) Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for
the purpose of showing that by reason of their nature the witness’s credibility is impaired or
enhanced
2. In the Courtroom
i) Rule 610 bars evidence of religious beliefs only when offered to attack or buttress a
witness’s credibility.
ii) The rule does not preclude evidence of religious beliefs when they are relevant to other
matters, such as bias, damages or motive.
XXII. Rule of Completeness

A. The Rule
1. Rule 106: Remainder of or Related Writings or Recorded Statements
i) When a writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.
2. Rule 106 allows a party to introduce qualifying portions of a writing or recorded statement as soon
as the opponent offers the first portion.
3. Applies only to writings and recorded statements, it does not apply to other forms of evidence, such
as oral conversations, photos, and physical objects.
4. May use the rule to introduce whole writings or recordings when necessary to understand another
document offered by the opponent.
5. Uses a fairness principle: it admits portions of writings or recorded statements that “ought in fairness
to be considered contemporaneously with” those offered by an opponent.
B. In the Courtroom
1. Oral Statements
i) Courts sometimes invoke other rules to create a similar completeness principle for other
evidence
ii) Some courts use Rue 403 to admit missing portions of an oral statement when necessary to
avoid unfair prejudice or confusion.
a) Other courts use Rule 611(a) which gives the trial judge power to control the
presentation of evidence.
2. Timing or Admissibility
i) When Rule 106 applies, allows a party to introduce portions of a writing or recorded
statement as soon as the opponent offers the initial piece of evidence.
XXIII. Character Evidence and the Rules

A. Character, Reputation, & Actions
1. Character traits are internal; they reside within a person
2. Reputation is external; it reflects what other people think about an individual
3. Since reputation often corresponds to character, a party can use that evidence to argue that the
witness has an untruthful nature.
i) In the courtroom, reputation and specific acts often appear as circumstantial evidence of
character.
B. Four Categories of “Character Evidence”

1. Proof of a Witness’s Propensity to Lie or Tell the Truth
i) Under some circumstance, Rules 608 and 609 allow parties to introduce evidence related to
a witness’s character for untruthfulness
a) Based on this evidence, the party asks the jury to make this chain of inferences:
(1) This witness has an untruthful character
(2) A person with an untruthful character has a tendency to lie
(3) Therefore, this witness lied on the stand.
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ii) Parties usually use evidence of a dishonest reputation or a criminal conviction to suggest an
untruthful character, so the chain of inferences has 4 links:
a) This witness has a reputation for untruthfulness. Alternatively, this person has
committed a crime that involves dishonesty.
b) Someone with a reputation for untruthfulness (or who has committed a crime of
dishonesty) probably has an untruthful character.
c) A person with an untruthful character has a tendency to lie.
d) Therefore, this witness lied on the stand.
iii) Evidence depends on the notion of propensity.
a) Propensity reasoning from character evidence consists of 2 steps:
(1) An assumption that someone with a particular character tends to act in a
particular way, and
(2) A conclusion that the person acted consistently with the that tendency on a
particular occasion.
2. Proof of Conduct by Propensity
i) Depends on the concept of propensity
ii) Rule 404(a) bars most attempts to prove conduct by propensity
iii) The use of evidence to suggest a witness’s character for truthfulness or untruthfulness is
itself an exception to the general rule against use of evidence to show propensity.
3. Proof of Character or Reputation as Elements
i) A party may offer evidence of character or reputation for reasons that do not depend on an
inference of propensity.
ii) Legal claims or defenses that require proof of character or reputation to establish an
element are rare, but do exist.
iii) When parties offer evidence of character or reputation to establish an element, Rule 405
allows that evidence.
4. Proof of Other Acts for Non-Propensity Purposes
i) Evidence of a person’s actions, can establish facts other than character and can support
inferences other than one based on propensity.
ii) When parties offer evidence of an action for a purpose other than to prove character and a
propensity to act in a particular way, Rule 404(b) often allows that evidence.
XXIV. Evidence to Prove Character as an Element

A. Policy
1. When character is an element of a crime, claim, or defense, then all evidence related to that
character is central to the case.
B. The Rule
1. Rule 404(a) only prohibits character evidence when it is used to suggest that a person acted
consistently with their character one a particular occasion.
2. Rule 405 outlines the permissible way to prove character as an elements of a crime, claim, or
defense.
3. Rule 405: Methods of Proving Character
i) Reputation or opinion. In all cases in which evidence of character or a trait of character of a
person is admissible, proof may be made by testimony as to reputation or by testimony in the
form of an opinion.
a) On cross-examination, inquiry is allowable into relevant specific instances of
conduct.
ii) In cases in which character or a trait of character of a person is an essential element of a
charge, claim, or defense, proof may also be made of specific instances of that person’s
conduct.
4. Rule 405(b) explicitly confirms that specific instances of conduct are admissible to prove character
as an element of a crime, claim or defense.
5. Rule 405 makes clear that parties may prove character through specific actions, as well as through
more general reputation or opinion testimony, when character is a disputed element of the case.
C. In the Courtroom
1. Foundation for Opinion or Reputation Testimony
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i) The foundation required for opinion or reputation testimony offered under Rule 405(a) the
examining attorney must 1st establish that the witness knows the person whose character is at
issue or knows that person’s reputation.
a) After establishing that knowledge, the witness will offer a brief opinion or reputation
report about the person’s character.
2. Good Faith Belief for Cross-Examination on Specifics
i) If a party uses opinion or reputation testimony to show a character trait, Rule 405(a) allows
the opponent to cross-examine the witness about specific incidents related to that character
trait.
a) The cross-examiner must have a good faith belief that the incidents actually
occurred.
3. Proof of Specific Incidents
i) When character is at issue in the case, the parties need not limit themselves to general
statements of opinion or reputation.
a) Nor are they limited to probing specific acts on cross-examination; they can
introduce the latter evidence in their case-in-chief through direct examination of their
own witnesses.
4. Relationship to Rule 403 and Other Rules
i) Even though Rules 404 and 405 do not bar character evidence used to prove an element,
another rule may still prohibit the proffered piece of evidence.
ii) Rule 403 limits a party’s ability to offer character evidence.
iii) Even when character is a centrally disputed element of the case, a judge may exclude
some types of character evidence b/c the danger of confusion, delay, or unfair prejudice
substantially outweighs any probative value.
5. What is “Character”?
i) Character seems to include almost any personality trait, including honesty, mendacity,
cautiousness, recklessness, aggressiveness, and passivity or peaceableness.
6. When is Character an “Element”?
i) Most difficult issue is determining whether character truly is an element of the controversy.
a) 4 Categories of cases account for almost every lawsuit in which character is an
element:
(1) Defamation
(2) Child custody
(3) Criminal cases re: Entrapment
(4) Negligent entrustment claims
XXV. Using Character Evidence to Prove Propensity

A. Intro & Policy
1. Character evidence offered to show propensity does not prove an elements of the case directly
i) The evidence suggests that, b/c a person has a tendency to act in a particular way, the
person was more likely to have committed a particular act on a specific occasion.
2. Allowing parties to introduce character evidence and make propensity arguments based on that
evidence would run a serious risk of compromising this fundamental principle of justice.
3. Rule 404(a) broadly prohibits the use of character evidence when offered to show propensity.
i) The basic principle of Rule 404(a) declares that parties may not use character evidence to
prove that, b/c a person had a propensity to act in a certain way, the person was more likely to
have acted in that way on a particular occasion.
B. The Rule
1. Rule 404(a): Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
i) Character evidence generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion.
2. If the evidence is being offered to prove “action in conformity with [the character trait] on a particular
action,” it is being offered as propensity evidence and will almost always be barred.
C. In the Courtroom
1. Good Character and Bad
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i) Rule 404(a) bars evidence of both bad and good character if that evidence is offered to
prove that a person acted consistently with their character on a particular occasion.
2. Any Person
i) Rule 404(a) bars the use of character evidence to prove the propensity of any person to act
in a particular way.
a) Prohibition applies even to people who never appear in the courtroom.
XXVI. Character Evidence to Show Propensity in Criminal Prosecutions

A. Intro & Policy
1. 2 exceptions to the “no propensity” rule apply only to criminal prosecutions.
2. Δ can testify about his own character
3. If a criminal Δ believes that proof of his good character, or of an alleged victim’s bad one, would
help defend his innocence, then the mercy rule weighs in favor of the Δ presenting the evidence.
B. The Rule
1. Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
i) Character evidence generally. In a criminal case, evidence of a pertinent trait of character
offered
a) By an accused, or
b) By the prosecution to rebut the same, or
c) If evidence of a trait of character of the alleged victim of the crime is offered by an
accused and admitted under Rule 404(a)(2), evidence of the same trait of character of
the accused offered by the prosecution;
ii) Character of alleged victim. In a criminal case, and subject to the limitations imposed by
Rule 412,
a) Evidence of a pertinent trait of character of the alleged victim of the crime offered by
an accused, or
b) By the prosecution to rebut the same, or
c) Evidence of a character trait of peacefulness of the alleged victim by the
prosecution in a homicide case to rebut evidence that the alleged victim was the 1st
aggressor.
2. 4 key points about provisions to rule:
i) Exceptions to the no-propensity rule apply only in criminal cases
ii) Exceptions allow only proof of “pertinent” character traits.
iii) Subsections of Rule 404(a) allow proof about both the Δ’s character and the alleged victim’s
character
iv) Subsections distinguish between when the Δ may introduce these types of evidence and
when the prosecutor may do so.
3. Character Evidence Admissible to Prove Propensity in Criminal Trials – Rule 404(a)
Type of Character When May the When May the Prosecution Offer this
Evidence Accused Offer this Evidence?
Evidence
Pertinent Trait of the Any time To rebut character evidence of the same
Accused trait offered by the accuse, OR to match
character evidence that the accused
offers about the alleged victim
Trait of Peacefulness N/a; accused would Homicide: To rebut any evidence that
of Alleged Victim not introduce this alleged victim was 1st aggressor
evidence
Other Cases: To rebut character evidence
that the victim was not peaceful
Other Pertinent Trait of Any time, unless Only to rebut evidence of the same trait
Alleged Victim barred by Rule 412 offered by the accused.
(rape shield)
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4. Accused has considerable freedom to introduce character evidence about herself or the alleged
victim
i) The only limits on Δs ability to introduce character evidence are
a) The evidence must relate to a “pertinent” character trait, and
b) The evidence must comply with Rule 412, the rape shield law
5. The prosecutor may introduce character evidence about herself, the prosecutor may rebut that
evidence with proof that the Δ lacks that trait or holds an opposite one.
i) If the Δ offers character evidence about herself, the prosecutor may rebut that evidence with
proof that the Δ lacks the trait or holds and opposite one.
ii) If the Δ introduces character evidence about the alleged victim, the prosecutor may rebut
that evidence by showing that the victim lacked that trait or held the opposite one.
a) Prosecutor may also introduce evidence that the Δ held the trait that the Δ attributes
to the victim.
iii) In a homicide case the prosecutor may offer evidence that the deceased victim was a
peaceful person in response to any evidence that the deceased was the 1st aggressor.
a) Prosecutor does not have to wait for the accused to introduce character evidence,
the government may response to any evidence that the deceased attacked 1st.
6. Character Evidence Admissible to Prove Propensity in Criminal Trials – How the Prosecutor Case
Respond
If the accused… Then the prosecutor can:

Introduces evidence of his on Introduce evidence of the Δs bad character for the same
good character… character trait
Introduces evidence of the Introduce evidence of the victim’s good character for the
victim’s bad character… same character trait AND evidence of the Δs bad character
for the same character trait.
Introduces evidence that the Introduce evidence of the victim’s peaceful character.
victim in a homicide was the 1st
aggressor…
C. In the Courtroom
1. Pertinence
i) Character evidence admitted must be “pertinent” to the crime or defense.
ii) Examples of pertinent character traits include:
a) Δs peaceful character in a prosecution charging assault, battery, homicide, or other
violent acts
b) Δs honest character in a prosecution for fraud, or
c) Δs aversion to risk and gambling in a gambling prosecution.
iii) Many courts say that the pertinent standard is the same as Rule 401’s definition of
relevance
2. Matching Traits
i) When the prosecution introduce character evidence under the exceptions in Rule 404(a), it
must offer evidence on traits that match those raised by the Δ
3. Homicide Cases
i) In most trials, the prosecution can introduce character evidence to show propensity only
after the Δ has done so
ii) Rule 404(a)(2) loosens this restrictions slightly in homicide prosecutions
XXVII. Methods of Proving Propensity in Criminal Cases

A. Intro & Policy
1. Proof of a Witness’s Propensity to Lie or Tell the Truth
i) Parties can attempt to show a witness’s truthful or untruthful nature in 3 different ways:
a) 608(b) – allows parties to cross-examine witnesses about conduct that suggests a
truthful or untruthful character.
(1) The questioner must accept the witness’s answer
(2) The cross-examiner cannot introduce extrinsic evidence proving the
conduct occurred.
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b) 608(a) – allows parties to offer reputation or opinion testimony about a witness’s

truthful or untruthful character.
(1) The party offering the testimony cannot ask the character witness to cite
specific examples of conduct supporting her opinion, but the opponent may
inquire about them on cross-exam.
(2) Neither side may offer any extrinsic evidence of conduct asked about on
cross-exam.
c) 609 – allows parties to introduce extrinsic evidence of some prior criminal
convictions to suggest a witness’s character for untruthfulness.
2. Proof of Character or Reputation as Elements
i) Rule 405 allows parties to present both opinion/reputation testimony and extrinsic evidence
of specific instances of conduct related to character
ii) The opposing party may also ask about specific instances of conduct during cross-exam
iii) Prosecutor cannot introduce evidence of the ∆’s prior criminal convictions unless the ∆ took
the stand as a witness.
a) ∆s providing evidence of their good character risk devastating cross-exams in which
the prosecution asks the character witness about specific instances of misconduct.
(1) If a ∆ does not want to open the door to cross-exam on particular instances
of misconduct, he can forego presenting character witnesses.
B. The Rule
1. Rule 405 outlines the methods of proving character traits at trial.
2. Rule 405: Methods of Proving Character
i) Reputation or Opinion. In all cases in which evidence of character or a trait of character of
a person is admissible, proof may be made by testimony as to reputation or by testimony in the
form of an opinion. On cross-exam, inquiry is allowable into relevant specific instances of
conduct.
3. It allows proof of specific acts to show specific acts to show character, but only when character is an
element.
C. In the Courtroom
1. Laying a Foundation
i) An atty examining a character witness must lay a foundation showing that the witness has
sufficient knowledge to offer an opinion about character or reputation.
2. Cross-Examination on Specific Acts
i) Parties in criminal cases run a serious risk if they call a character witness to testify about a
∆s or victim’s good character.
ii) On cross-exam, the opposing party may decimate that witness by asking questions related
to specific bad acts.
3. Relevant Acts
i) Although 405 allows attys to cross-examine character witnesses about specific acts, the
examiners may ask only about acts that are relevant to the character trait described by the
witness.
a) Limit reflects 611(b)’s restriction of cross-exam to subjects raise on direct exam.
4. Good Faith Belief
i) A cross-examiner cannot ask a character witness about speculative or imaginary acts
a) The atty must have a good faith belief that the incidents occurred.
5. Extrinsic Evidence
i) A party who cross-examines a character witness about specific conduct under Rule 405(a)
must accept the witness’s response.
a) Cross-examiner cannot introduce extrinsic evidence.
ii) Courts prevents parties from staying too far from the main controversy by disputing the
existence of prior acts.
iii) Under unusual circumstances, when a mistaken inference of bad behavior would be highly
prejudicial, the judge might allow the affected party to introduce extrinsic evidence disproving
the incident.
i) When parties cross-examine character witnesses, the judge will attempt to explain
distinction to jurors that the act itself is not relevant to the case, only the fact of the witness’s
knowledge is relevant.
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7. Rebuttal Witnesses
i) Parties in criminal case may present rebuttal character witnesses.
a) The character witnesses testify that the ∆ or victim has a character trait contrary to
one present by another character witness.
ii) A rebuttal character witness is treated exactly the same as any other character witness.
a) The party calling the witness can ask only about opinion or reputation, not about
specific act.
b) The opponent may ask about specific acts on cross-exam to test the witness’s
knowledge, but she cannot prove these specific acts with extrinsic evidence
c) The cross-examiner is stuck with the witness’s answer.
XXVIII. Other Crimes, Wrongs, or Acts

A. Intro & Policy
1. Rule 409 bars evidence of an offer to pay medical expenses if a party presents that evidence to
show liability.
2. Rule 404(a) – a party may introduce “character evidence” for any purpose other than to prove that a
person acted consistently with their character on a particular occasion.
B. The Rule
1. Rule 404(b): Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
i) Other crimes, wrongs, or acts. Evidence of other crime, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith.
ii) It may, however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence or mistake or accident, provided that
a) upon request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any such evidence it intends to
introduce at trial.
2. Character evidence is not admissible to prove that a person act “in conformity” with their character.
i) A party may not evade this prohibition by introducing evidence of specific acts that prove
character, which in turn is used to show propensity.
3. Evidence of other acts may be admissible for other purposes.
i) A judge may exclude evidence under 403 if it’s unfair prejudice, potential for confusion, or
other negative qualities substantially outweighs its probative value.
4. Applies to criminal and civil
5. Requires prosecution to provide reasonable notice in criminal trials of its intent to introduce
evidence of prior crimes or other acts in the manner sanction by the rule
6. Evidence of conduct related to character may be admissible to prove motive, opportunity, intent,
preparation, and other facts in Rule 404(b).
i) If a party can find any use of character evidence other than one that relies upon propensity
reasoning, she has a chance of admitting the evidence.
C. In the Courtroom
1. Intro
i) The rule allows parties to introduce evidence that delivers 2 separate blows
a) The evidence accomplishes its stated purpose, to prove identity, intent, motive, or a
similar fact.
b) Assuming that the evidence shows a prior act that is bad or immoral, the jury may
develop a negative view of the person.
ii) Judges tend to construe the “other purposes” in Rule 404(b) rather broadly.
2. Motive
i) A prosecutor sometimes argues that a previous crime or other bad act is admissible b/c it
motivated the charged crime.
3. Plan
i) Another prior act that is to show a common plan or scheme
4. Identity
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i) Signature elements of a crime may allow a prosecutor to prove identity by introducing

evidence of the ∆s other crimes or bad acts.
ii) If a charged crime has an unusual feature, and if the ∆ has engaged in other acts
incorporating that feature, then these common characteristics tend to show the ∆s identity as
the perpetrator of the charged crime.
iii) Determining whether the features of one crime are similar enough to those of another to
constitute proof of identity requires judges to scrutinize the facts closely.
iv) The “identity” prong of 404(b) works only if 2 conditions are met:
a) Identity must be at issue, and
b) There must be strong similarities b/w the charged and other crimes.
5. Opportunity
i) Commission of a crime sometimes requires a particular opportunity, such as access to a
protected place or to special tools.
ii) The “other occasion” might consist of a prior crime or bade act, leading to an objection that
the evidence violates 404(a).
a) But as long as the evidence establishes a needed opportunity, it avoids the
propensity inference forbidden by the latter rule.
6. Knowledge
i) As long as the other act evidence proves a relevant fact w/o using the propensity inference,
the evidence is admissible regardless of what it is called.
a) Prosecutors often city “knowledge” as a purpose for introducing evidence of other
crimes or bad acts when knowledge of a particular fact is an element of the crime.
(1) Evidence of another crime sometimes demonstrates that the ∆ possessed
the knowledge.
7. Intent
i) Evidence of other crimes, wrongs, or acts may also be admissible to prove that a ∆
possessed the intent necessary to commit a crime.
ii) The use of prior acts to prove intent, despite the presence of propensity inference, is
particularly well established in drug cases.
iii) To prove a ∆s intent to distribute illegal narcotics, rather than mere possession of the drug,
prosecutors frequently rely upon evidence that the ∆ sold narcotics on previous occasions.
8. Any Other Non-Propensity Purpose
i) “Preparation” overlaps with plan, knowledge, and opportunity, while “absence of mistake”
and “absence of accident” both overlap with intent, motive, and knowledge.
ii) The rule offers a non-exclusive list of permissible purposes for evidence of other crimes,
wrongs, or acts.
a) As long as the litigant can come up with a purpose that is relevant to the case and
avoids the propensity inference, the evidence is not barred by Rule 404.
9. Subsequent Crimes, Wrongs, and Acts
i) Most of the “other acts” offered as evidence as evidence under 404(b) occur before the
charged crime.
ii) Unless the timing of the actions affects their relevance, both prior and subsequent acts are
admissible under 404(b)
10. Civil Cases
i) The majority of cases arising under404 are criminal, but the rule applies to civil and criminal
actions.
ii) The court’s current position with respect to the admissibility of prior acts to show intent, in
civil and criminal cases:
a) Judges rather freely admit this type of evidence seems to rely upon a forbidden
propensity inference.
11. Good Acts
i) 404 applies to bad and good acts
ii) Litigants sometimes refer to evidence of good accts as a “reverse 404(b)” use/
iii) 404 treats evidence of good and bad acts identically,
a) They are admissible to prove any relevant fact other than one that requires
propensity reasoning
12. Rule 403
i) Evidence that litigants offer under 404(b) is relevant for at least 2 purposes:
a) 1 permissible purpose (knowledge, intent, motive, etc) and
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b) 1 inadmissible purpose (propensity)

ii) In deciding whether the unfair prejudice of the propensity inference substantially outweighs
the probative value of the permissible purpose, the trial judge will turn to 403.
i) When a judge admits evidence under 404(b), he or she gives a limiting instruction to the
jury.
XXIX. Habit
A. Intro & Policy
1. Rule 406 allows use of other acts to prove an individual’s habit or an organization’s routine practice.
2. Habit refers to specific, repeated responses to a particular situation or stimulus.
i) Means that an individual who is placed in a particular situation will respond over and over
again with the same specific behavior.
3. Habit evidence tends to be morally neutral.
4. Habit evidence is admissible in that this evidence has a higher probative value than propensity
evidence.
5. To distinguish habit from propensity, focus on 3 factors:
i) Specificity of the conduct
ii) Distinctiveness of the situation producing the conduct
iii) Regularity of the conduct
6. Very specific conduct that arises regularly in an identifiable context is most likely to constitute habit.
B. The Rule
1. Rule 406: Habit; Routine Practice
i) Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that
the conduct of the person or organization on a particular occasion was in conformity with the
habit or routine practice.
2. Habit and routine practice are not defined.
3. Allows admission of habit evidence whether corroborated or not and regardless of the presence of
an eyewitnesses
i) A person can testify about her own habit even if no one else has ever seen her act in that
way.
ii) The existence of habit is a question of credibility.
4. Courts allow attys to prove habit through opinion testimony and specific instances of conduct.
C. In the Courtroom
1. Not Just Admissible, But Possibly Sufficient
i) Fact finders may accept uncorroborated habit evidence as conclusive even when the
disputed actions are not as routine as lab testing or regular machine maintenance.
ii) Habit may be all that is needed to prove beyond a reasonable double that a person acted a
certain way on a certain occasion.
2. Routine Practice of an Organization
i) Routine practice is the organizational equivalent of personal habit.
ii) If a litigant can show that an organization always (or frequently) acts a certain way under
designated circumstances, then a court will accept that practice as evidence that the
organization acted that way on a particular occasion.
XXX. Rape Shield Law

A. Intro & Policy
1. The rules try to preclude evidence of sexual reputation and prior sexual acts when that evidence
aims primarily at tarnishing the alleged victim’s character.
2. Rules allow Δs to offer exonerating evidence when used for a proper purpose.
B. The Rule
1. General Prohibition
i) Rule 412: Sex Offense Case
a) The following evidence is not admissible in any civil or criminal proceeding involving
alleged sexual misconduct except as provided in subdivisions (b) and (c):
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(1) Evidence offered to prove that any alleged victim engaged in other sexual
behavior
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
ii) The rule encompasses both civil and criminal proceedings.
iii) The rule applies only to trial “involving alleged sexual misconduct”
iv) Bars both types of evidence that rape Δs previously offered to show propensity: it prohibits
evidence both of specific acts (“other sexual behavior”) and of reputation or general character
(“sexual predisposition”)
v) Broadly bars evidence of sexual behavior or predisposition regardless of the purpose for
which a litigant offers that evidence.
2. The Exceptions
i) Criminal Cases
a) Rule 412: Sex Offense Cases
(1) Exceptions. In a criminal case, the following evidence is admissible, if
otherwise admissible under these rules:
(i) Evidence of specific instances of sexual behavior by the alleged
victim offered to prove that a person other than the accused was the
course of semen, injury or other physical evidence
(ii) Evidence of specific instances of sexual behavior by the alleged
victim with respect to the person accused of the sexual misconduct
(a) Offered by the accused to prove consent or
(b) By the prosecution, and
(iii) evidence the exclusion of which would violate the constitutional
rights of the Δ
b) Allows proof of a complainant’s prior sexual conduct when that evidence suggests
that someone other than the accused was responsible for semen or other physical
evidence.
c) Admits evidence of prior sexual encounters b/w the complainant and Δ.
(1) The Δ may offer this kind of evidence for just 1 purpose, to prove consent,
but the prosecutor may offer this evidence for any purpose.
d) Allows the prosecutor to offer evidence of prior sexual encounters b/w the Δ and
complainant for any purpose.
(1) The prosecutor can offer evidence of other non-consensual encounters in
order to show Δs motive, intent, identity, or any other relevant fact.
e) Allows evidence of sexual acts or reputation in criminal cases if excluding them
would violate the constitutional rights of the Δ.
ii) Civil Cases
a) Single exception for civil cases, allowing introduction of an alleged victim’s sexual
acts or reputation under these circumstances:
b) The Rule 412: Sex Offense Cases – Exceptions
(1) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise admissible
under these rules and its probative value substantially outweighs the danger
(i) Of harm to any victim and
(ii) Of unfair prejudice to any party
(2) Evidence of an alleged victim’s reputation is admissible only if it has been
placed in controversy by the alleged victim.
c) Cannot offer evidence of an alleged victim’s sexual acts or reputation to prove
propensity.
d) Evidence of sexual acts or sexual predisposition faces a reverse 403 test in civil
cases:
(1) The evidence is admissible only if its probative value substantially
outweighs the unfair prejudice to any party.
e) Court weighs the danger to the alleged victim, whether or not she is a party to the
litigation.
(1) The judge is to weigh the harm to any victim as well as the unfair prejudice
to any party.
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f) Reputation evidence is admissible in civil cases involving alleged sexual

misconduct only if the alleged victim has opened the door by presenting evidence of her
own reputation.
3. Procedure
i) 2 step procedure for determining the admissibility of any evidence of an alleged victim’s
sexual activity or reputation:
a) A party intending to offer this evidence must give notice to the court, opposing
counsel, and the alleged victim 14 days before trial.
b) The court must hold a sealed proceeding involving both parties and the alleged
victim in order to determine whether the evidence is admissible.
C. In the Courtroom
1. Physical Evidence
i) Allows ∆ to introduce evidence of victim’s sexual acts when relevant to show that another
person was the source of semen, injury, or other physical evidence.
2. What is “Sexual Behavior” Under 412(b)(1)(B)?
i) The 2nd exception for criminal cases allows ∆ to admit evidence of specific instances of
sexual behavior b/w the complainant and the ∆ to prove consent.
a) Sexual behavior includes any kind of intimate contact b/w the complainant and the
∆
ii) The exception even covers statements that the complaint made about the ∆.
3. The “Catchall” Exception
i) Criminal ∆s most often invoke the catchall exception to show that the alleged victim has
made prior false claims of sexual assault.
ii) Defense attorneys also attempt to use the catchall exception by arguing that the
complainant manufactured a rape claim to protect an existing intimate relationship.
iii) Courts tend to stretch the catchall provision to protect the ∆s rights.
iv) Most courts reject evidence of the alleged victim’s promiscuous reputation to prove that the
∆ reasonably believed that she consented to the sexual contact.
4. Civil Cases
i) When civil π complains about sexual assault, ∆s may try to offer evidence of the πs sexual
history and reputation for purposes similar to those in criminal cases.
ii) 412 applies to civil, but gives judges somewhat greater discretion to admit the contested
evidence.
iii) 412’s exception for civil cases allows the judge to admit evidence if its probative value
substantially outweighs both any unfair prejudice to the parties and harm to the alleged victim.
iv) 412 applies to sexual harassment suits even when the π claims no sexual assault or other
physical contact.
a) Reverse 403 standard highlights the low probative value of most evidence related
to a πs sexual conduct in sexual harassment cases.
5. Gender and Sexual Orientation
i) 412 applies regardless of the alleged victim’s gender or sexual orientation.
6. State Rules
i) Broad Prohibition with Specific Exceptions
a) Most states have adopted rape shield laws that follow the federal pattern of
generally prohibiting evidence of prior sexual conduct or sexual reputation, then listing
specific instances in which evidence can be admitted.
b) The exceptions vary from state to state but include provisions such as:
(1) Evidence of prior sexual conduct b/w the complainant and the accused
(2) Evidence of an alternative source of semen, pregnancy, or injury
(3) Evidence of a pattern of prior sexual conduct by the complainant
(4) Evidence of bias or motive to fabricate the sexual assault
(5) Evidence offered to prove that the accused had a reasonable but mistaken
belief in the complainant’s consent
(6) Evidence of prior false accusations of sexual assault by the complainant
(7) Evidence of prior prostitution.
ii) Barring Evidence Offered for a Specific Purpose
a) Several states’ laws use more traditional structure for evidentiary rules:
(1) They bar evidence of sexual reputation or conduct only if it is offered for a
specific purpose.
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(i) 2 most common prohibited purposes are:

(a) To prove the alleged victim’s consent
(b) To attack the alleged victim’s credibility
iii) Judicial Discretion
a) 9 states have no codified rape shield law, but give courts broad discretion to admit
or preclude any evidence of the victim’s prior sexual conduct or sexual reputation.
XXXI. Propensity in Sexual Assault and Child Molestation Cases

A. Intro & Policy
1. 413 allows prosecutors to introduce evidence of other sexual assaults committed by the ∆ and to
use that evidence for any purpose, including to suggest that evidence for any purpose, including to
suggest that the ∆ has a propensity to commit sexual assaults
B. The Rules
1. Rule 413/414: Evidence of Similar Crimes in Sexual Assault [Child Molestation] Cases
i) In a criminal case in which the ∆ is accused of an offense of sexual assault [child
molestation], evidence of the ∆s commission of another offense or offenses of sexual assault is
admissible, and may be considered for its bearing on any matter to which it is relevant.
a) This rule shall not be construes to limit the admission or consideration of evidence
under any other rule.
ii) Rules apply only to criminal cases in which the ∆ is charged with either sexual assault or
child molestation.
iii) Each rule allows admission of a single type of evidence:
a) Evidence showing that the ∆ committed another offense of sexual assault or child
molestation.
iv) Evidence is admissible for any relevant purpose, including propensity.
v) Although 413 and 414 supersede 404 general propensity bar, they do not override other
rules such as hearsay and privilege.
a) The judge must decide whether the unfair prejudicial effect of Rule 413/414
evidence substantially outweighs its probative value.
vi) 414 defines a child as a person below the age of 14 y/o.
2. Rule 415: Evidence of Similar Acts in Civil Cases Re: Sexual Assault or Child Molestation
i) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged
commission of conduct constituting an offense of sexual assault or child molestation, evidence
of that party’s commission of another offense or offenses of sexual assault or child molestation
is admissible and may be considered as provided in 413 and 414.
ii) Rule 415 allows the π in a civil case involving sexual assault or child molestation to
introduce other similar conduct of the ∆ to prove propensity or any other relevant fact
C. In the Courtroom
1. Prior Crime Need Not Be Proven
i) Any conduct that constitutes an offense of sexual assault or of child molestation is
admissible under these rules, regardless of whether formal charges were ever brought for the
prior conduct.
ii) 413-415 have no time limit, but a judge may exclude conduct that occurred many years ago
under 403.
2. Rule 403
i) 3 Factors that courts consider when applying 403 to evidence admitted under 413-415 are
similar to one we have studied in other contexts. Courts consider:
a) The length of time that has passed since the other acts
b) Reliability of the witness testifying about the other acts
c) Similarity of the other acts to those charged
d) Whether the gov. could make similar points with less prejudicial evidence
ii) When the facts of another assault or molestation more closely resemble the charged crime,
courts seem more reluctant to exclude the evidence under 403.
3. States Not Following Suit
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i) Some courts find creative ways to admit evidence of prior sexual assaults or child
molestations, frequently stretching their applications of 404(b) to admit evidence as proof of
intent or motive or common plan or scheme.
XXXII. Preliminary Determinations

A. Intro & Policy
1. Many questions of admissibility depend on contested facts.
2. When a factual dispute affects the relevance of evidence – conditional relevance.
i) The evidence is relevant if a factual predicate turns out to be true, but not if the factual
predicate is false.
3. When resolution of the factual issue does not affect relevance, the trial judge decides the factual
issue w/o any deference to the jury.
B. The Rule 104: Preliminary Questions
1. Section (b): Relevancy Condition on Fact
i) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court
shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of
the fulfillment of the condition.
2. Section (a): Questions of admissibility generally.

i) Preliminary questions concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined by the court, subject to the
provisions of sub (b). In making its determination it is not bound by the rules of evidence except
those with respect to privileges.
3. Section (c): Hearing of a Jury
i) Hearings on the admissibility of confessions shall in all cases be conducted out of the
hearing of the jury. Hearings on other preliminary matters shall be conducted when the
interests of justice require, or when an accused is a witness and so requests.
4. Section (d): Testimony by Accused
i) The accused does not, by testifying upon a preliminary matter, become subject to cross-
exam as to other issues in the case.
5. Section (e): Weight and credibility
i) This rule does not limit the right of a party to introduce before the jury evidence relevant to
weight or credibility.
C. In the Courtroom
1. Rule 104(b): Relevance Depending Upon the Fulfillment of a Condition of Fact
i) Personal Knowledge under Rule 602
a) 602, which requires witnesses to testify from their personal knowledge, offers a
straightforward example of an evidentiary rule that generates factual disputes governed
by Rule 104(b)
b) Sometimes the absence of personal knowledge is so clear that a judge will exclude
the testimony, even after applying 104(b)’s liberal standard
ii) Evidence of Other Acts under Rule 404(b)
a) 404(b), which governs admissions of “other acts” to prove facts like motive or
knowledge, also generates questions of conditional relevancy.
b) Judges admit “other act” evidence as long as a reasonable jury could find the
factual condition that makes the evidence relevant.
(1) The jury then determine whether the factual condition is met and if it is, how
the evidence affects its decision in the case.
iii) Factual Determinations under Rule 412
a) In sexual misconduct cases, 412 bars most evidence of the alleged victim’s sexual
acts or predisposition.
(1) The rule allows the ∆ to introduce that evidence under specified
circumstances.
iv) Other Sexual Assaults by Δ under Rules 413-415
a) 413-315 raise preliminary factual issues subject to the conditional relevance of
104(b)
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b) If a prosecutor or π offers evidence of other sexual assaults committed by the ∆,

and the ∆ denies those assaults, the conflict affects the relevance of the proffered
testimony.
(1) The judge will determine whether a reasonable jury could find that the other
assault occurred, and if the evidence meets that threshold, will allow the jury to
determine the existence and probative value of the alleged assault.
2. Rule 104(a): Questions of Admissibility Unrelated to Relevance
i) Timing of Remedial Measures under Rule 407
a) Deciding a dispute over the timing of a remedial measure under 407 does not affect
relevance, so the court decides that issue w/o deference to the jury.
ii) Whether Repeated Conduct is Propensity or Habit under Rule 406
a) Many preliminary decisions that judges make under 104(a) present mixed questions
of law and fact.
b) The judge determines whether an individual’s conduct was sufficiently regular and
specific to constitute a habit admissible under 406.
(1) Separating admissible habit from inadmissible propensity evidence may
depend on answers to factual questions.
iii) Other 104(a) Determinations
a) Judges resolve existence of dispute or compromise negotiations sufficient to invoke
408, under 104(a)
3. Standard of Proof
i) Whether the judge resolves a factual issue independently under 104(a) or determines
merely the sufficiency of the evidence “to support a finding” under 104(b), 104 is silent about the
standard of proof applicable to those decisions.
a) Court has held that a simple preponderance of the evidence standard applies to all
preliminary factual issues resolved under 104.
(1) The preponderance standard governs civil and criminal cases, and
(2) It applies to issue resolved under 104(a) and 104(b)
ii) A judge who resolves a preliminary factual issue under 104(a), will ask whether the fact
governing admissibility has been established by a preponderance of the evidence.
iii) Under 104(b), the judge will ask whether a reasonable jury could find by a preponderance of
the evidence that a fact governing admissibility exists.
a) Use of the preponderance standard means that a trial judge can admit evidence
under 104(b) even when a previous jury has rejected the evidence under a reasonable
doubt standard.
4. Burden of Proof
i) Judges usually place the burden of proof on the party offering the evidence.
5. Rule 403
i) 403’s concern for prejudice, confusion and delay may affect a judge’s fact finding decisions
under 104(a) and 104(b).
XXXIII. What Is Hearsay and Why Don’t We Like It?

A. Intro & Policy
1. Hearsay’s 4 Concerns
i) Perception
ii) Memory
iii) Clarity
iv) Sincerity
2. Prefer firsthand testimony to secondhand reporting because:
i) Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying
ii) Firsthand testimony can be tested by cross-examination
iii) The fact-finder can better evaluate the confidence and sincerity of the info if they can watch
the individual report it firsthand
iv) At trial, firsthand testimony is made under oath in a formal, solemn setting.
B. The Rules
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1. Rule 802: Hearsay Rule

i) Hearsay is not admissible except
a) As provided by these rules or
b) By other rules prescribed by the Supreme Court pursuant to statutory authority or
c) By Act of Congress
2. Rule 801: Definitions
i) The following definitions apply under this article:
a) “Hearsay” is a statement,
(1) Other than one made by the declarant while testifying at the trial or hearing,
(2) offered in evidence to prove the truth of the matter asserted
b) A “declarant” is a person who makes a statement.
3. Hearsay Requirements
i) Hearsay requires a statement
ii) The statement must be made by a declarant in a context other than testimony at trial
iii) A party must offer the statement to prove the truth of the matter asserted.
C. In the Courtroom
1. Who Declared What?
i) If A state’s B stated something, A is the declarant who makes a statement about another
declarant
a) Statements of both of personal knowledge
b) A has personal knowledge of hearing B’s statement, B has personal knowledge of
whatever he saw/heard
2. Declarants and Witnesses
i) All witnesses are declarants
ii) But declarants are witnesses only when they testify under oath at a trial or hearing
iii) The first step in applying the hearsay rules is to suspect any testimony that refers to a
statement may anywhere but on the witness stand in the current proceeding.
3. Recognizing Declarants
i) A declarant is a person who has firsthand info about a fact relevant to a case
a) If the declarant offers that info while testifying at trial, the statement is not hearsay.
b) If the declarant makes a statement reporting the info outside the courtroom, and
someone repeats the statement at trial, it is hearsay.
4. Witness’s Prior Statement
i) A declarant referring to themselves in the 3rd person can create hearsay because instead of
testifying about what was perceived, they testify about prior statements they made.
ii) All out-of-court statements are hearsay, even if a witness quotes her own out-of-court
statement, the statement is hearsay.
XXXIV. The “Truth of the Matter Asserted”

A. Intro & Policy
1. If a litigant offers the statement to prove the truth of the matter asserted, it is inadmissible hearsay.
2. Focus on the personal knowledge of the speaker
B. The Rule
i) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted
2. Some common purposes for out-of-court statements that do not depend on the truth of the matter
asserted
i) Knowledge of the speaker
ii) Notice to a listener
iii) Publication in a defamation case
iv) Effect of the listener
v) Legally Binding Statements
C. In the Courtroom
1. Evidence Relevant for Multiple Purposes
i) Many out-of-court statements are relevant to prove more than one fact.
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ii) Judge will admit evidence that is admissible for one purpose as long as any unfair prejudice
does not substantially outweigh probative value.
a) Rule 403 balance tilts in favor of admissibility and often admits evidence with
hearsay and non-hearsay purposes.
XXXV. What is a Statement

A. Intro & Background
1. A declarant can make a statement orally or in writing.
2. Declarants can also make statements through actions – such as nods and assertive behaviors, and
are statements subject to the hearsay rules.
i) Actions like moving forward at a green light or answering a phone are non-assertive
behavior and there is no truth of any matter to assert.
ii) Actions like nodding or pointing do assert something because they convey matters that
have a truth.
iii) Ask when distinguishing b/w assertive and non-assertive conduct:
a) Do we need to assess the actor’s sincerity in order to rely upon the conduct?
(1) If we do, the conduct contains an assertion and the hearsay rule applies.
B. The Rule
i) A “statement” is
a) An oral or written assertion or
b) Nonverbal conduct of a person, if it is intended by the person as an assertion
ii) An assertion is any action undertaken by the declarant that is intended to communicate a
fact.
a) Key is whether the declarant intended to communicate a fact through her conduct.
C. In the Courtroom
1. Assertive v. Non-Assertive Conduct
i) Individuals almost always intend certain gestures, such as nodding and finger-pointing, as
assertions.
ii) Some gestures are more ambiguous and the court must look at the context to see if the
declarant intended to assert a fact through her action.
2. Implicit Assertions
i) Assertions are sometimes hidden within some actions.
3. Audiotapes
i) Tapes are analogous to a witness who repeats out of court assertions.
ii) Recorded statements are hearsay only if offered for the truth of the matter asserted.
4. Photos and Videotapes
i) Unlike audiotapes, most photos and videotapes shown in the courtroom do not portray
human assertions.
ii) If a photo or tape does convey verbal assertions or assertive behavior, offered for the truth
of the matter asserted, then those assertions are statements subject to the hearsay rule.
5. Machine Readouts
i) Info conveyed by a machine is usually not a statement.
ii) If a machine conveys an assertion made by a person, the assertion is a statement even
though it is transmitted through a machine.
a) If a person communicated a fact through a machine, then the assertion is a
statement subject to the hearsay rule.
b) If the machine generated info according to its own internal processes, then the
machine’s output is not an assertion by a person.
iii) Examples:
a) Time given by a watch – no assertion
b) Thermometer reading – no assertion
c) Telephone conversations – assertion
d) E-mail transmissions – assertion
e) Bank silent alarm – assertion
f) Order receipt – assertion
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iv) Need the assurance of courtroom appearance and cross-exam when info transmitted by a
machine originated with a human decision maker.
XXXVI. Admissible Hearsay

A. Intro & Policy
1. 31 hearsay exceptions.
2. Underlying policy of wanting to find the truth allows some hearsay.
3. Some hearsay statements are more reliable than others.
4. Some hearsay statements are more needed than others.
B. Four Categories of Exceptions
1. Rule 801(d) defines 2 types of out-of-court statements as “not hearsay”
i) Prior statements by witnesses; and
ii) Statements made by opposing parties.
2. The statements are hearsay, and courts admit them b/c special considerations trump the rule
against hearsay.
3. Rule 804 recognizes 5 exceptions to the hearsay rules – they apply only if the declarant is
unavailable to testify in court.
i) Death/Dying
ii) Privilege
4. Rule 803 is the largest category of hearsay exceptions, 23 exceptions
i) These exceptions apply even if the available declarant testifies, or unavailable to testify.
ii) Substantially depends on reliability rather than the need for evidence.
a) Excited utterances
b) Commercial publications
c) Learned treatises
5. Rule 807 creates a residual exception that allows court to admit some statements that fall outside
the other 30 exceptions, but have some similar guarantees or trustworthiness.
C. Who Decides?
1. Every exception has its own conditions that must be fulfilled before the exception will apply
2. The judge decides these questions under Rule 104(a)
3. The admissibility of hearsay statements does not depend on their relevance, if a hearsay statement
were irrelevant to the case, it would be barred under Rule 402.
4. Each hearsay exception refers to circumstances that confer special reliability and/or necessity to the
hearsay statement
5. When applying an exception, judges look to the language of the rule, prior cases construing that
exception, and the policy principles supporting the exception
6. Proponent of a hearsay statement bears the burden of proving by a preponderance of the evidence
that the statement fits into a given exception.
D. A Word About the 6th Amendment
1. Exceptions to the hearsay rule can raise constitutional issues in criminal trial.
2. 6th Amendment guarantees a criminal Δ the right “to be confronted with the witnesses against him.”
3. In 2004 the Supreme Court decided Crawford v. Washington that raises new constitutional
questions.
i) Crawford only applies in criminal cases.
E. Hearsay Exceptions – 31
1. 801(d) Exemptions
i) Prior statement by witness
ii) Statement of party-opponent
2. 804: Declarant Unavailable
i) Former testimony
ii) Statement under belief of impending death (dying declaration)
iii) Statement against interest
iv) State of personal or family history
v) Forfeiture by wrongdoing
3. 807: Residual Exception
i) Other statements having equivalent circumstantial guarantees of trustworthiness
4. 803: Availability of Declarant Immaterial
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i) Present sense impression

ii) Excited utterance
iii) Then existing mental, emotional or physical condition
iv) Statement for purposes of medical diagnosis or treatment
v) Recorded recollection
vi) Records of regularly conducted activity
vii) Absence of entry in records kept in accordance with provisions of the previous exception
viii) Public records and reports
ix) Records of vital statistics
x) Absence of public record or entry
xi) Records of religious organizations
xii) Marriage, baptismal, and similar certificates
xiii) Family records
xiv) Records of docs affecting an interest in property
xv) Statements in ancient docs
xvi) Market reports, commercial publications
xvii)Learned treatises
xviii) Reputation concerning personal or family history
xix) Reputation concerning boundaries or general history
xx) Reputation as to character
xxi) Judgment of previous conviction
xxii)Judgment as to personal, family, or general history or boundaries.
XXXVII. Hearsay Exemption – Prior Statements by Witnesses

A. Intro & Policy
1. Parties usually offer a witness’s prior statement when the witness can no longer remember the
specific incident directly, claims a privilege against testifying, or changes her testimony.
B. The Rule
1. Rule 801(d)(1)
i) Statements which are no hearsay. A statement is not hearsay if –
a) Prior statement by witness
(1) The declarant testifies at the trial or hearing
(2) And is subject to cross-examination concerning the statement
(3) And the statement is
(i) Inconsistent with the declarant’s testimony, and was given under
oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition
(ii) Consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or
improper influence or motive.
(iii) one of identification of a person made after perceiving the person.
2. The rule recognizes 3 types of prior witness statements that are admissible:
i) Statements that are inconsistent with the witness’s courtroom testimony
ii) Statements that are consistent with that testimony, and
iii) Pre-trial identifications of a person
3. Rule 801(d)(1)(A) exempts a witness’s prior statement if the statement satisfies 3 conditions:
i) It is consistent with the witness’s current testimony
ii) It was made under oath, and
iii) It occurred at a deposition or during a trial, hearing, or other proceeding.
4. Rule 801(d)(1)(B) maintains the hearsay bad when a prior consistent statement would merely
repeat the witness’s testimony.
5. Rule 801(d)(1)(C) allows introduction of any identification of a person, as long as the person who
made the identification testifies at trial and is subject to cross-examination on the identification.
i) Out-of-court identification has the unusual characteristic of being more reliable than in-court
identifications.
ii) Exemption for prior identifications thus rests on both reliability and need.
C. In the Courtroom
1. “Subject to Cross-Examination”
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i) Witnesses who take the stand and claim lack of memory are still subject to cross-
examination, while those who completely refuse to testify by invoking the privilege against self-
incrimination are not.
2. When is a Statement “Inconsistent?”
i) When a person appears to be feigning memory loss, the prior detailed statement is
inconsistent with the current claims of lost memory.
a) If the other requirements of 801(d)(1)(A) are satisfied, the prior statement is
admissible under the hearsay exemption.
ii) Most courts treat memory loss, real or feigned, as inconsistent with a witness’s prior
detailed statements, paving the way for counsel to introduce those statement.
iii) Procedural Rules of 613 still apply.
3. Oath and Proceeding
4. Timing of Prior Consistent Statements
5. Out of Court Identifications
D. Rule 801(d)(1) and Rule 613
1. The 2 rules allow intro of prior statements for very different purposes.
2. Rule 613 governs use of a witness’s prior inconsistent statements to impeach the witness’s
credibility.
i) Under some circumstances, parties also use that rule to introduce prior consistent
statements rehabilitating a witness’s credibility.
ii) Parties who offer statements under 613 do not offer them for content of those statements,
they introduce evidence to illuminate the witness’s credibility.
iii) Statements under 613 are not introduced to prove the truth of the matter asserted.
3. Prior statements admitted under 801(d)(1) are offered for their content.
i) Parties introduce these statements b/c they want to give the jury the info contained in them.
ii) A party offers a prior inconsistent statement under 801 for its substance – the prior
statement must have been made under oath at a proceeding.
Rule 613 Rule 801(d)(1)(A)

Any prior consistent statement related to a Prior inconsistent statement must have been
fact of consequence is admissible made under penalty of perjury; under oath;
at a trial, hearing, other proceeding, or
deposition
Statement is admissible only to impeach Party may rely upon the statement to prove
the witness’s credibility the truth of the matters asserted
Judge will instruct the jury to use the prior No limiting instruction
statement only to assess credibility
E. Admitting Prior Statements under Rule 801(d)(1)

1. Prior statement must have been made by a witness at the current proceeding.
2. Witness must be subject to cross-examination
3. Witnesses with real or feigned memory loss are “subject to cross”
4. Witnesses who assert a blank privilege are not “subject to cross”
5. Witnesses who claim privilege selectively may be “subject to cross”
Prior Inconsistent Stmt: Prior Consistent Stmt: Identification: 801(d)(1)(C)

801(d)(1)(A) 801(d)(1)(B)
• Memory failure constitutes • Must be offered to rebut • Must be an identification of
inconsistency express or implied charge a person
• Statement must have been of recent fabrication or
given under oath subject to improper influence or
perjury at hearing or other motive
proceeding • Prior statement must have
• Grand jury and depo been made before the
testimony count as motive to fabricate or
proceedings; statements to improper influence began
police and investigators do
not
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XXXVIII. Hearsay Exceptions – Present Sense Impressions and Excited Utterances

A. Intro & Policy
1. Rule 803 has 23 exceptions to the hearsay rule.
i) The common characteristic: a litigant may invoke them whether or not the declarant is
available to testify
2. Parties who offer statements under Rule 803 need not call the declarant to a the stand, nor need
they prove that the declarant is unavailable to testify, a hurdle that parties must clear when invoking the
Rule 804 exceptions.
3. Rule 803(1) exempts present sense impressions from the hearsay ban
4. Rule 803(2) governs excited utterances
5. Judge decides whether it comes in under 104
B. The Rule
1. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial
i) The following are not excluded by the hearsay rule, even though the declarant is available
as a witness:
a) Present sense impression. A statement describing or explaining or event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter.
b) Excited utterance. A statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or condition.
2. Rule 803(1) imposes 2 conditions that define present sense impressions
i) The exception applies only to descriptions or explanations of an event, not to more complex
analyses or interpretations.
ii) For a statement to qualify as a present sense impression, the declarant must make it while
perceiving the event or immediately thereafter.
3. Rule 803(2) has different prerequisites
i) The declarant must speak while excited by a startling event
a) Standard is subjective – the particular declarant must have been excited by the
event
b) The subjectivity of the standard relates to the rule’s underlying rationale: the
excitement must be great enough that the particular declarant would have had difficulty
formulating a lie while speaking.
ii) An excited utterance must “relate to” the starting event
a) An excited utterance may move beyond description by analyzing or interpreting the
event, but the utterance still must relate to the provoking event.
b) Unrelated comments are not admissible under this exception, even if the declarant
makes them while still excited.
C. In the Courtroom
1. Description or Analysis?
i) A present sense impression must describe or explain, rather than analyze, a
contemporaneous event.
ii) Analysis invokes more complex mental processes that may provide an opportunity for
deception; 803(1) excludes that type of observation.
iii) The line b/w description and analysis can be blurry; it depends on the declarant’s words and
the context.
iv) Statements of present sense impression should stick closely to the unfolding facts; the
absence of analysis suggests that the speaker is not engaging the mental processes that might
support deception.
v) Critical commentary, analysis, and other more complex observations all imply a degree of
mental engagement that could include deception.
2. “Immediately Thereafter”
i) The fact that these descriptions occur as an event unfolds enhances their reliability; the
declarant has little time to reflect or fabricate.
ii) Most present sense impressions occur contemporaneously with the events they describe.
iii) 803(1) grants a small amount of flexibility in timing: descriptions made immediately after an
event may also be admissible.
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iv) This window is always small: usually only a few seconds, and never more than a few
minutes.
v) Courts seem to tie the permissible amount of time to what the declarant was doing during
those intervening minutes or seconds.
3. Startling Events and Excited Declarants
i) The declarant must make a statement with genuine excitement or stress.
ii) The reliability of these statements rests on the spontaneity prompted by startling events and
the difficulty most people would have lying while responding to them.
iii) It is not enough that the event would have excited a reasonable person.
iv) Some events are startling to particular people under specific circumstances, which may be
admissible even though most individuals would have found the occurrence routine.
4. “Relating to” the Event
i) The exception for excited utterance admits any statement that relates to an event
ii) The excited utterance exception relies upon the declarant’s excitement, rather than on her
descriptive focus, to enhance reliability.
5. How Long Does Excitement Last?
i) Does not limit excited utterances to statements that occur during the startling event or
immediately thereafter.
ii) The declarant must speak while still in an excited state.
iii) The duration of this excited period depends on the characteristics of the declarant, as well
as of the startling event.
iv) Attacks, serious accidents, and similar events may generate stress that lasts for 30 mins or
longer.
6. Foundation, Foundation, Foundation
i) The key to winning admission of an excited utterance or present sense impression is to lay
the proper foundation.
ii) The proponent may offer the statement itself as evidence that the declarant was excited or
reciting a present sense impression.
iii) To show a present sense impression, proponents also commonly introduce:
a) The declarant’s in-court testimony, affirming that she made the statement as she
perceived the event
b) Testimony from other witnesses who can confirm that the declarant made the
statement while the event unfolded.
iv) In addition to the content of the statement, proponents of excited utterance often introduce:
a) The declarant’s in-court testimony, affirming that he was excited when making the
statement
b) Testimony from witnesses who perceived the declarant when he made the
statement. These witnesses could testify to:
(1) The declarant’s mannerisms and tone of voice when he made the
statement
(2) The time that elapsed b/w the provoking incident and the statement
(3) The declarant’s relationship to the provocation
c) Evidence about the declarant’s age, prior experiences, and other characteristics
that might affect how excited the declarant would become in certain situations
d) Evidence about how traumatic or exciting the event that provoked the declarant’s
statement was
XXXIX. Hearsay Exception – State of Mind

A. Intro & Policy
1. When admitted to prove the declarant’s state of mind at the moment, these statements are more
reliable that most out-of-court declarations.
2. Comments about a current state of mind give little opportunity to concoct a lie.
3. Rule 803(3) assumes that a declarant’s expression of his statement of mind is sufficiently reliable to
admit into evidence.
B. The Rule
as a witness:
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a) Then existing mental, emotional, or physical condition. A statement of the

declarant’s then existing state of mind, emotion, sensation, or physical condition (such
as intent, plan, motive, design, mental feeling, pain, and bodily health),
b) But not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms of
declarant’s will.
2. Statements of memory or belief are not admissible under this exception when they are offered to
prove the fact remembered or believed.
i) An out of court statement of memory or belief is admissible to prove the fact remembered or
believed if that fact relates to the validity of the declarant’s will.
a) The unavailability of the testator with desire to further that person’s intent, supports
admissions of these statements.
C. In the Courtroom
1. What is a State of Mind?
i) 803(3) includes physical sensations, like hunger, thirst and pain.
ii) Includes all types of emotional states, such as fear, anger, happiness, and calm.
iii) Includes cognitive schemes such as intent, motive or plan.
2. Circumstantial Evidence of Mental State
i) Statements about external facts or events don’t qualify as expressions of a “state of mind”
admissible under 803(3) – but those statements are sometimes admissible to prove state of
mind.
ii) Out of court declarations are hearsay only when a party offers them to prove the truth of the
matter asserted.
a) If a party introduces a statement as circumstantial evidence of the declarant’s
mental condition, the statement isn’t hearsay.
3. I Think, I Believe, I Remember
i) These words are usually red herrings as often they introduce statements about external
facts or events and are not expressions of a statement of mind.
ii) Sometimes memories and beliefs are relevant to a legal dispute and then 803(3) may admit
the full content of a memory or belief as a relevant “state of mind.”
4. Looking Back
i) 803(3) admits only expressions of a “then existing” state of mind.
ii) An out of court statement about something that hurt yesterday is not admissible under
803(3), as it describes a past, rather than a current, state of mind.
iii) A person’s current mental state sometimes offers circumstantial evidence of their prior
mental condition, which raises some risks of prejudice.
5. Looking Forward
i) Allows parties to introduce hearsay about “then existing” mental states to help prove
subsequent thoughts or acts.
ii) Evidence of a declarant’s state of mind can show motive, or often offer the evidence as
circumstantial proof that the declarant acted consistently with her expressed plans.
6. Looking Forward . . . With Someone Else

i) A declarant’s expression of intent offer circumstantial evidence that the declarant acted on
the intention.
ii) Hillmon Doctrine – Mutual Life Ins. v. Hillmon
a) Unreliability in using one’s out-of-court expression of intent to prove the actions of
another person.
b) The rule of Hillmon, no longer valid
(1) Now – Statements of intent by a declarant admissible only to prove his
future conduct, not the future conduct of another person.
XL. Hearsay Exception – Medical Treatment

A. Intro & Policy
1. Assumes that the statement was more likely to be accurate than most other hearsay.
2. Exception serves a need for efficiency.
3. Reduces the need to call nurses, doctors, and other medical professionals to testify at many trials
involving injury, disease, or other medical condition.
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4. Must only be made in an attempt to get held – telling someone to call 911, doctor, nurse
B. The Rule
1. Rule 803(4): Hearsay Exceptions; Availability of Declarant Immaterial
as a witness:
a) Statements for purposes of medical diagnosis or treatment. Statements made for
purposes of medical diagnosis or treatment and
(1) Describing medical history, or
(2) Past or present symptoms, pain, or sensations, or
(3) The inception or general character of the cause or external source thereof
b) Insofar as reasonably pertinent to diagnosis or treatment
2. Declarant must make the statement for the purposes of getting a medical diagnosis or treatment.
i) Requirement is subjective
ii) Patient must actually be seeking medical care.
3. Statements must be reasonably pertinent to diagnosis or treatment
i) Objective
ii) Assumes medical professionals guide consultations toward pertinent facts
4. Statements must fit within 1 of 3 categories listed by the rule
i) Accounts of medical history
ii) Descriptions of past or present symptoms, pain, or sensations, or
iii) Reports about the inception or general character of the cause or external source of the
condition
5. Statements only admissible if declarant subjectively makes them for the purpose of getting medical
diagnosis or treatment and if they are objectively pertinent to that medical care.
i) If the statements are made to a friend in a casual conversation they would not be
admissible.
C. In the Courtroom
1. Who is the Declarant?
i) Rule assumes that the declarant usually is the patient needing medical diagnosis or
treatment
2. Who is the Audience?
i) The rule does not require the person seeking medical treatment communicate with a
physician or other medical professional.
3. Diagnosis or Treatment?
i) Allows parties to admit statements made to doctors who they consulted purely to prepare
for litigation
4. Cause and Source v. Fault and Blame
i) Includes statements that a patient makes describing the inception or general character of
the cause or external source of the condition when those statements are pertinent to medical
care.
ii) Provision recognizes that proper diagnosis and treatment often require knowledge about
how the condition arose.
iii) Statements blaming specific individuals for the cause, or attributing a particular degree of
fault to those individuals, usually are not relevant to medical care.
iv) Statements admitted derive their reliability from the fact that the declarant made them while
obtaining medical care.
5. Psychologists and Psychiatrists
i) Most courts have assumed rule also covers psychological illnesses
ii) Statements about the cause or external source of psychological injury sometimes are very
difficult to separate from comments attributing blame.
6. Medical Treatment for Domestic or Sexual Abuse
i) The line b/w cause and fault usually precludes evidence of identity.
ii) Child abuse cases have blurred this line by finding the perpetrator’s identity pertinent to
treatment and thus admissible.
a) Some courts have held that treatment of pt suffering regular, ongoing abuse may
include separation of the pt from the abuser.
b) Effective psychological treatment of an abuse victim may require the doctor to know
who caused the abuse.
iii) A few courts have included spousal abuse.
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XLI. Hearsay Exception – Recorded Recollection

A. Intro & Policy
1. Recorded recollections are particularly reliable because
i) They were made when the declarant’s memory was fresh, and
ii) The declarant is available to testify in the courtroom, under oath, and subject to cross-
examination about the circumstances under which she recorded the statement
B. The Rule
1. Rule 803(5): Hearsay Exceptions
as a witness:
a) Recorded Recollection. A memorandum or record concerning a matter
(1) About which a witness once had knowledge
(2) but now has insufficient recollection to enable the witness to testify fully and
accurately
(3) shown to have been made or adopted by the witness when the matter was
fresh in the witness’ memory
(4) and to reflect that knowledge correctly.
b) If admitted, the memorandum or record
(1) May be read into evidence
(2) but may not itself be received as an exhibit unless offered by an adverse
party
2. Admissibility of Recorded Recollection
i) 6 requirements for admissibility.
a) Out-of-court statement appear in a memorandum or record
b) Witness must either be the declarant who made the record or a person who saw the
record and agreed that it was true
c) Witness must testify that she once had knowledge about the info contained in the
record, and that she made or adopted the record at the time when she had that
knowledge
d) Witness must have made or adopted the record at a time when her knowledge was
fresh
e) Witness must testify that at the time she made or adopted the record, she knew that
it accurately reflected the knowledge that she had.
f) Witness must now have no recollection about the info contained in the record.
3. Introducing Evidence
i) 803(5) does not allow the party offering a recorded recollection to introduce the document
directly into evidence as an exhibit.
a) The party presenting the evidence must ask the witness to read the doc into the
record.
ii) An adverse party may choose to introduce the doc as an exhibit
C. In the Courtroom
1. Insufficient Recollection
i) 803(5) allows admission of recorded recollections only when a witness lacks current
memory of an event.
ii) Therefore, must show that the witness no longer recalls info from the recorded recollection.
2. Made or Adopted
i) 803(5) recognizes that a witness need not memorialize a recollection himself.
ii) As long as the witness approved the content of the recording while his recollection was still
fresh, then affirms at trial that he believed the recording was accurate at the time.
iii) But if a witness refuses to adopt a statement, then 803(5) does not allow its introduction into
evidence.
3. Freshness
i) Does not require contemporaneous notetaking.
ii) Courts have allowed recorded recollections that were created as long as 15 months after an
event, as long as circumstances indicate that the witness genuinely remembered the info at the
time it was recorded.
4. Beyond Writings
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i) Reference to “record” broadly includes audiotapes and other media.

5. Recorded Recollection and Refreshment
i) Difference b/w 612 and 803(5)
Rule 612: Refreshing Recollection Rule 803(5): Recorded Recollection

Need Arises When: Witness cannot Need Arises When: Witness cannot recall
recall details of an event or other matter of details of an event or other matter of which
which she once has personal knowledge she once had personal knowledge
What Witness Does: Looks at evidence What Witness Does: Reads into record
to jog memory, then testifies orally w/o info from a document or other recording
referring further to evidence
What Type of Evidence: Any writing or What Type of Doc or Recording: Once
other evidence that will help witness that the witness “made or adopted” when
remember; the witness need not have the matter was “fresh” in the witness’s
created or adopted the material memory. Recording must correctly reflect
witness’s personal knowledge at time it was
recorded.
Who May Introduce Evidence used to Who May Introduce Recorded
Refresh: Only adverse party Recollection: Only adverse party
Relationship to Hearsay: Witness Relationship to Hearsay: Statements
testifies directly from memory after contained in the record are admitted as an
refreshment, so there is no hearsay issue. exception to the hearsay rule. The jury may
If adverse party introduces writing into consider the content of document or other
evidence, it is admissible only on issue of recording, as read into record by witness,
credibility. For the jury to consider the for the truth of the matters asserted.
writing for the truth of the matter asserted,
it must fall within a hearsay exception.
XLII. Rule 805 – Hearsay within Hearsay

A. Intro & Policy
1. Written docs often contain statements of 3rd parties – containing 2 levels of hearsay.
2. 805 allows double hearsay to be admitted as long as each out of court statement is admissible
under an exception.
B. The Rule
1. Rule 805: Hearsay within Hearsay
i) Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule provided in the rules.
C. In the Courtroom
i) With double hearsay the courtroom witness usually lacks info about early declarants in the
communication chain.
a) W/o that info, it can be challenging to establish the foundation needed to admit the
initial statements.
2. Multiple Layers and Truth of the Matter Asserted

i) A statement offered for some other purpose, such as to show the existence of a warning, is
not hearsay.
ii) One out of court statement may include another statement that is offered to prove
something other than the truth of its contents
a) The embedded statement then is not hearsay
XLIII. Hearsay Exception – Business Records

A. Intro & Policy
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1. Although most business records are hearsay, there are 2 reasons to believe that they are more
reliable than other kinds of hearsay
i) Organizations generate most of the docs accord to well established, routine practices
a) Organization’s procedures are likely to reduce mistakes in docs and to detect those
that do occur.
ii) Organizations rely upon docs like these to make important decisions.
B. The Rule
1. Rule 803(6): Hearsay Exceptions; Availability of Declarant Immaterial
as a witness.
a) Records of regularly conducted activity. A memo, report, record, or data
compilation, in any form, of acts, events, conditions, opinions or diagnoses
(1) Made at or near the time by, or from info transmitted by, a person with
knowledge
(2) If kept in the course of a regularly conducted business activity, and if it was
the regular practice of that business activity to make the memo, report, record
or data compilation
(3) All as shown by the testimony of the custodian or other qualified witness, or
by certification that complies with 902(11), 902(12) or a statute permitting
certification
(4) Unless the source of info or the method or circumstances of preparation
indicate lack of trustworthiness
b) The term “business” includes business institution, association, profession,
occupation, and call of every kind, whether or not conducted for profit.
C. In the Courtroom
1. What is a Business?
i) Courts have construed this broadly to include records of prisons, colleges, hospitals, and an
individual who collected guns for investment purposes.
ii) Self-employed individuals qualify as a business under 803(6)
iii) Personal records kept for business reasons can qualify for the exception as long as they
meet all of the conditions of the rule.
2. Who is a Custodian or Other Qualified Witness?
i) To introduce records under 803(6), the proponent must call a witness who can lay a
foundation for the docs.
a) The witness must be able to testify that:
(1) The record was kept in the court of a regularly conducted business activity
(2) The record was kept in the regular practice of business, and
(3) The record was made by a person with personal knowledge of the recorded
info or from info transmitted by a person with personal knowledge.
3. Regularly Conducted Business Activities and Regular Practices.
i) If the organization relies upon the record as a part of a regular business activity then it has a
strong incentive to kept the record honestly and accurately.
ii) The record need not be made daily or weekly, but there must be some regularity or routine.
a) Enhances the reliability of the records.
4. Lack of Trustworthiness
i) The rule excludes the record if the source of the info or the method or circumstances of
preparation indicate lack of trustworthiness
a) Court most often apply this to records that were prepared in anticipation of litigation.
5. Insiders, Outsiders, and Double Hearsay

i) 803(6) encompasses only info transmitted from one organizational insider to another.
a) The transmitted by language does not include 3rd parties who provide info to an
organization, even if the organization collects the info as part of a regularly conducted
business activity.
ii) Employee statements are admissible, but hearsay.
a) The 3rd party statements must either be redacted or have a separate hearsay
exception to support their admission.
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XLIV. Hearsay Exception – Public Records

A. Intro & Policy
1. Rule 803(8) allows parties to admit public records into evidence for truth of the matter asserted.
i) Records are more reliable
ii) Public records are more needed than other kinds of hearsay
B. The Rule
as a witness:
a) Public records and reports. Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting forth:
(1) Activities of the office or agency, or
(2) matters observed pursuant to duty imposed by law as to which matters
there was a duty to report, excluding, however, in criminal cases matters
observed by police and other law enforcement personnel, or
(3) in civil actions and proceedings and against the gov in criminal cases,
factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of info or other circumstances indicate lack
of trustworthiness.
C. In the Courtroom
1. Law Enforcement and Criminal ∆s
i) Police and other law enforcement have strong professional interest in convicting individuals
who have committed crimes; their reports may not display the neutrality of other public records.
ii) Also prevents prosecutors from introducing records of law enforcement observations only
when they were made in an adversarial setting.
2. Lack of Trustworthiness
i) 4 factors the court should consider in determining whether a public record of an
investigation is trustworthy
a) Timeliness of the investigation
b) Special skill or experience of the official conducting the investigation
c) Whether a hearing was held by the public agency prior to the report being made,
and
d) Whether the motivation of the public agency is suspect – for example, whether the
report was made in anticipation of litigation by a public agency that has a stake in the
litigation
ii) If a record falls within the first two subsections appears untrustworthy, a court could invoke
403 to exclude the document.
3. Factual Findings
i) The courts should interpret “factual findings” broadly to encompass all facts, opinions, and
conclusions found in the report of an investigation.
ii) All statements contained in the report of a gov investigation are findings of fact under 803(8)
(c)
4. Hearsay w/in Hearsay
i) The report as a whole may be admissible under 803(8), but that provision does not include
the 3rd party statements, governed by 805.
a) Unless another hearsay exception admits those statements, the judge will redact
them before giving the report to the jury.
ii) Inferences and conclusions drawn from hearsay that are in the reports that represent the
views of the investigator are admissible.
5. 803(8) and Other Rules

i) Most public records also qualify as business records; public agencies are institutions or
associations fitting within the broad bounds of 803(6).
a) Any document fitting within both rules must meet the 803(8) section’s requirements
for admission.
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ii) When info in a public record violated another rule of evidence, the judge will redact
inadmissible evidence and admit any remaining portion of the report.
XLV. Hearsay Exceptions – Other 803 Exceptions

A. The Rules
1. 803(7) and 803(10): Absence of Business Records of Public Records
as a witness.
a) (7) Absence of an entry in records kept in accordance the provisions of (6).
Evidence that a matter is not included in the memo reports, records, or data, in any
form
(1) Kept in accordance with the provisions of (6) to prove the nonoccurrence or
nonexistence of the matter,
(2) If the matter was of a kind of which a memo, report, record, or data was
regularly made and preserved
(3) Unless the sources of info or other circumstances indicate lack of
trustworthiness
b) (10) Absence of public record or entry. To prove the absence of a record, report,
statement, or data, in any form, or the nonoccurrence or nonexistence of a matter
(1) Of which a record…in any form, was regularly made and preserved by a
public office or agency,
c) Evidence in the form of a certification in accordance with 902, or testimony, that
diligent search failed to disclose the record…
2. 803(16): Statements in Ancient Docs
as a witness:
a) Statements in ancient docs. Statements in a doc in existence 20 years or more the
authenticity of which is established.
3. 803(17): Market Reports, Commercial Publications\
as a witness:
a) Market reports, commercial publications. Market quotations, tabulations, lists,
directories, or other published compilations, generally used and relied upon by the
public or by persons in particular occupations.
4. 803(18): Learned Treatises
as a witness:
a) To the extent called to the attention of an expert witness upon cross-exam or relied
upon by the expert witness in direct exam,
(1) Statements contained in published treatises, periodicals, or pamphlets
(2) On a subject of history, medicine, or other science or art
(3) Established as a reliable authority by testimony or admission of a witness
or by other expert testimony or by judicial notice
b) If admitted, the statements may be read into evidence but may not be received as
exhibits.
5. In the Courtroom
i) Foundation and Testimony
a) The process of introducing a learned treatise:
(1) Proponent must first establish the treatise is reliable authority in particular
field, and
(2) Must link the treatise to an expert’s testimony.
b) Whether a party uses the learned treatise on direct or cross, the party cannot
introduce the treatise itself into evidence.
ii) Purpose of Admission
a) Although treatises are not admitted into evidence in their entirety, the statements
read aloud by witnesses are admitted as substantive evidence.
b) Since it is an exception to the hearsay rule, it allow the jury to consider the info read
aloud for the truth of the matter asserted.
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XLVI. Rule 804 Intro – What is Availability?

A. The Rule
1. Rule 804(a): Hearsay Exceptions, Declarant Unavailable
i) Definition of unavailability. Unavailability as a witness includes situation in which the
declarant –
a) Is exempted by ruling of the court on the ground of privilege from testifying re: the
subject matter of the declarant’s statement
b) Persists in refusing to testify re: the subject matter of the declarant’s statement
despite an order of the court to do so, or
c) Testifies to a lack of memory of the subject matter of the declarant’s statement, or
d) Is unable to be present or to testify at the hearing b/c of death or then existing
physical or mental illness or infirmity, or
e) Is absent from the hearing and the proponent of a statement has been unable to
procure the declarant’s attendance for in the case of a hearsay exception under sub (b)
(2), (3) or (4) the declarant’s attendance or testimony by process or other reasonable
means
ii) A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or wrongdoing of the proponent of a statement
for the purpose of preventing the witness from attending or testifying.
2. Privilege
i) If a witness invokes one of the privileges and the court agrees the privilege shield the
witness’s testimony, then sub 804(a)(1) declares the witness unavailable
3. Refusal to Testify
i) The party who called the uncooperative witness should not suffer unfairly due to witness’s
failure to testify.
4. Lack of Memory
i) The court need not find the witness has actually lost his memory.
ii) Whether the witness’s memory loss if real or feigned, the witness is unavailable to testify
about the desired subject matter.
iii) Crucial factor is not the unavailability of the witness but the unavailability of his testimony.
5. Death, Physical Illness, Mental Illness
i) Declarant is unavailable is she is dead or so physically or mentally ill that she cannot testify
at the proceeding
ii) The physical or mental illness must be sufficiently disabling that
a) The declarant cannot come to court to testify, and
b) There is little likelihood of recovery within a reasonable time
6. Absence
i) A declarant is unavailable if a party shows that she tried to find the declarant and bring him
to the hearing, but was unable to do so.
a) Party must use reasonable means in addition to serving a subpoena to persuade
declarant to attend trial
b) The proponent must use reasonable means to take the declarant’s depo if the
declarant will not attend trial.
ii) Wrongdoing Caveat.
a) Meant to prevent improper behavior by parties.
b) A party offering the witness’s out of court statement cannot cause a witness to be
unavailable through wrongful means.
B. In the Courtroom
1. Privilege
i) To show unavailability on basis of privilege, a party must usually call the declarant to the
stand and question her.
2. Refusal to Testify and Lack of Memory
i) To establish either grounds for unavailability, a party must call the declarant to the stand.
3. Death or Incapacity
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i) To establish declarant’s death, a party usually introduces a death certificate or other

evidence of declarant’s demise.
ii) If declarant is alive, but physically or mentally unable to testify, the proponent of the
evidence must intro documentary evidence or live testimony to show the declarant’s condition.
4. Absence
i) To demonstrate a declarant cannot be found or brought to court, a party must show a good
faith, genuine effort to procure the declarant’s attendance.
XLVII. Hearsay Exception – Former Testimony

A. Intro & Policy
1. A witness’s prior testimony is hearsay:
i) It is a statement, made outside the current trial, offered for the truth of what the witness
asserted
2. Four reasons why hearsay testimony is less reliable than firsthand courtroom testimony:
i) Hearsay compounds the risk that one of the speakers is mistaken or lying
ii) Opposing counsel can test firsthand testimony through cross-examination
iii) The fact finder can assess the credibility of a firsthand report by observing the witness; and
iv) Firsthand testimony occurs under oath in a formal courtroom setting
B. The Rule
1. Rule 804: Hearsay Exceptions; Declarant Unavailable
i) Hearsay Exceptions. The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
a) Former Testimony. Testimony
(1) Given as a witness at another hearing of the same or dif. proceeding, or in
a depo taken in compliance with law in course of same or another proceeding
(2) If the party against whom the testimony is now offered, or in a civil action or
proceeding, a predecessor in interest
(3) Had an opportunity
(4) And similar motive to develop the testimony by direct, cross, or redirect
examination.
C. In the Courtroom
1. Similar Motives
i) 804(b)(1) enhances the reliability of prior testimony by admitting the statement only when
the opposing party has a similar motive to develop the declarant’s testimony at the prior
proceeding.
2. Against the Same Party in Criminal Cases
i) Supports admission of prior testimony only if the opposing party personally had the
opportunity to cross-examine the witness at the prior proceeding.
ii) The opposing party must have appeared in the prior proceeding and had an opportunity to
develop the witness’s testimony.
3. Predecessors in Interest
i) A litigant may introduce former testimony as long as the opposing party or that party’s
predecessor in interest had an opportunity to develop the witness’s testimony at the prior
proceeding.
4. Opportunity to Develop Testimony
i) Admits prior testimony as long as the party or predecessor in interest
a) Had an opportunity to develop the declarant’s testimony at the prior proceeding,
and
b) During the prior proceeding, had a motive for developing that testimony similar to
the current opposing party’s motive for cross-exam.
ii) The party or predecessor need not have actually conducted a cross-exam or direct exam of
the declarant, it is only the opportunity and motive that matter.
a) An absence of cross-exam or other questioning reduces the likelihood that a court
will find a similar motive or predecessor in interest.
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5. 804(b)(1) and 801(d)(1)(A)

Prior Inconsistent Former Testimony 804(b)(1)
Statements by Witness
801(d)(1)(A)
Declarant • Must testify at current • Must be unavailable
hearing or trial
• Must be subject to cross-

exam re: the statement
Content of • Inconsistent with current • Any Content
Statement: testimony
Context of • Must have been under oath • Must have been under oath
Prior
Statement:
• Made at any prior • Made at a prior proceeding (or in
proceeding, depo, or grand a civil case a predecessor in
jury presentation interest) had the opportunity to
cross-exam or develop testimony
on direct, and had a similar motive
as in current proceeding
6. Depos in Civil Cases

i) Overlaps with Rule 32 of Fed. R. Civ. Pro.
a) Both rules outline conditions under which parties may introduce depos in civil cases
b) A party may introduce a depo by satisfying either rule.
XLVIII. Hearsay Exception – Dying Declarations ***

A. Intro & Policy
1. Dying Declarations
i) The trial is a CIVIL case or a HOMICIDE prosecution
ii) The declarant is unavailable
iii) The declarant subjectively believed that death was imminent
iv) The statement concerned the cause or circumstances of death.
B. The Rule
i) The following are not excluded by the hearsay rule if the declarant is unavailable as a
witness:
a) Statement under belief of impending death. In prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant while believing that the
declarant’s death was imminent, re: the cause or circumstances of what the declarant
believed to be an impending death.
C. In the Courtroom
1. When is Death Imminent?
i) The declarant must have a settled hopeless expectation that death is near at hand, the
statement must be spoken in the hush of its impending presence.
ii) Focus on how long declarant believed he would survey, not on how long declarant actually
survived.
2. Dying Declarations and Other Exceptions
i) Many dying declarations are also admissible under other hearsay exceptions, such as
excited utterance, state of mind, statements to obtain med treatment, and forfeiture.
3. Proving State of Mind
i) The judge decides whether the conditions support admission of a dying declaration.
a) The party offering the dying declaration must prove belief by preponderance of the
evidence.
ii) The proponent can rely on any type of evidence to prove this belief, but courts most often
consider:
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a) Statements by the declarant

b) Statements made by med personnel and others to the declarant
c) Nature and extent of the wounds or illness
d) Length of time b/w the statement and the declarant’s death
e) Opinion of med personnel who treated declarant about the declarant’s health
XLIX. Hearsay Exception – Statement Against Interest

A. Intro & Policy
1. Statements Against Interest
i) The declarant must be unavailable
ii) The statement must have been against one of the interest specified by the rule
iii) The statement must have been against the declarant’s interest at the time it was made
iv) It offered to exculpate the accused in a criminal case, the statement must have sufficient
corroboration to clearly indicate its trustworthiness
B. The Rule
i) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
a) Statement against interest. A statement which was at the time of its making
(1) So far contrary to the declarant’s pecuniary or proprietary interest, or
(2) So far tended to subject the declarant to civil or criminal liability, or
(3) To render invalid a claim by the declarant against another,
b) That a reasonable person in the declarant’s position would not have made the
statement unless believing it to be true.
c) A statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
2. Four important parts to rule:
i) Declarant must be unavailable
ii) Statement must be against the declarant’s interest at the time it was made
iii) 3 ways that a statement can be against a declarant’s interest:
a) Be contrary to her pecuniary or proprietary interest
b) Expose her to civil or criminal liability, or
c) Render invalid a claim the declarant has against another person
iv) Any statement that exposes the declarant to criminal liability is admissible to exculpate a
criminal ∆ only when corroborating circumstances clearly indicate the statement’s
trustworthiness.
C. In the Courtroom
1. What is Against Interest?
i) Statement must be so far contrary to a declarant’s interest that no reasonable person in the
declarant’s position would have made the statement unless believing it to be true.
2. Other Interests.
i) It admits only statements against pecuniary or proprietary interest, those that subject the
speaker to civil or criminal liability, and those that extinguish a legal claim held by the speaker.
ii) Other types of interests, including family and physical ones, may help persuade the court
that no reasonable person would have made the statement unless it was true.
3. Minimizing Guilt
i) A declarant sometimes makes a statement that admits wrongdoing but minimizes her role
while blaming others
a) The court must decide whether the statement was really against the declarant’s
interest
ii) Concerns about partially incriminating statements are more prevalent when a declarant is in
custody and offers to cooperate with law enforcement agents.
a) Advisory Committee – a statement admitting guilt and implicating another, made
while in custody, may well be motivated by desire to curry favor with the authorities and
hence fail to qualify as against interest.
4. Mixed Statements
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i) Courts must admit only portions of a criminal ∆s narrative that were against the declarant’s
interest.
a) Trial judges must redact collateral statement, whether they are neutral or shift
blame to someone else.
5. Trustworthiness When Exculpating a Criminal Defendant
i) The court’s consider 6 factors in determining whether this type of statement is sufficiently
trustworthy to admit under 804(b)(3):
a) Whether the declarant had pled guilty before making the statement or was still
exposed to prosecution (how far against the declarant’s interest the statement was at
the time)
b) Declarant’s motive in making the statement and whether there was a reason for the
declarant to lie
c) Whether the declarant repeated the statement and did so consistently
d) The party or parties to whom the statement was made
e) Relationship of declarant with the accuse, and
f) Nature and strength of independent evidence relevant to the conduct in question
ii) Trial just determines trustworthiness under 104(a), so a criminal ∆ who offers an
exculpatory statement under 804(b)(3) bears the burden of proving trustworthiness to the judge;
∆ must prove the fact by preponderance of the evidence.
L. Hearsay Exception – Forfeiture

A. Intro & Policy
1. Forfeiture
i) The declarant must be unavailable
ii) The opposing party must have engaged in some wrongdoing or acquiesced in that
wrongdoing
iii) The wrongdoer must have intended to make the declarant unavailable
iv) The wrongdoing must have caused the unavailability
B. The Rule
i) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
a) Forfeiture by wrongdoing. A statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of
the declarant as a witness.
2. Exception rest on 3 requirements:
i) The opposing party must have engaged or acquiesced in wrongdoing
a) Does not apply to parties who use legitimate means, such as offering info about a
privilege, to dissuade a witness from testifying.
b) Rule’s policy concerns arise only when an opposing party engages in wrongful
behavior.
ii) The opposing party must have intended to make the declarant unavailable
a) If the declarant’s absence was an unintended consequence of the party’s
wrongdoing, the exception does not apply.
b) If the party did not intend to prevent a witness from testifying, there is no reason to
invoke the exception.
iii) The wrongdoing must have caused the declarant to become unavailable.
a) To prove the declarant is unavailable, it sometimes is tricky to prove that the
opposing party caused the unavailability.
C. In the Courtroom
1. What is Wrongdoing?
i) The courts have interpreted the “wrongdoing” language to mean –
a) Coercion, undue influence, or pressure to silence testimony and impede the truth-
finding function of trials
ii) Merely persuading a witness to claim a privilege or forego testifying, does not fall within the
rule.
a) But when the persuasion becomes undue pressure, the party’s actions trigger the
forfeiture exception
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2. Acquiescing in the Wrongdoing.

i) 804(b)(6) does not require proponent to show that the opposing party personally committed
the wrongdoing or even caused another to commit the wrongful acts.
a) Proponent only needs to show that the opposing party acquiesced in the improper
behavior.
3. Intent.
i) The forfeiture exception applies only if the opposing party committed a wrongful act with
intent of making the witness unavailable.
a) Proponent need not prove that the opposing party’s only motive was to prevent the
witness from testifying.
b) As long as the opposing party was motivated in part by a desire to silence the
witness, the forfeiture exception applies.
ii) If a party acts wrongfully with the intent to silence a witness in one case, that intent carries
over to other cases
iii) The forfeiture exception may apply when a party intimidates a potential witness.
LI. Hearsay Exemption – Statements by Party-Opponents

A. Intro & Policy
1. Statements by Party Opponents
i) The exemption applies to every statement made by an opposing party
ii) The rule is based on principles of estoppel, not reliability
iii) The party opponent need not have personal knowledge of the facts in the statement
iv) A party can adopt a statement by signing a form, orally agreeing to it, or sometimes by
remaining silent
B. The Rule
i) Statements which are not hearsay. A statement is not hearsay if:
a) Admission by party-opponent. The statement is offered against a party and is
(1) The party’s own statement, in either an individual or a representative
capacity, or
(2) A statement of which the party has manifested an adoption or belief in its
truth, or
(3) A statement by a person authorized by the party to make a statement
concerning the subject, or
(4) A statement by the party’s agent or servant re: a matter within the scope of
the agency or employment, made during the existence of the relationship.
C. In the Courtroom
1. Opponents
i) 801(d)(2) is broad exception to hearsay rule, allowing introduction of most out-of-court
statements by parties.
ii) Parties cannot introduce evidence of their own statements under this rule, they can only
offer evidence of an opponent’s statements.
a) Prevents parties from offering evidence of self-serving statements.
iii) 801(d)(2) avoids this self-serving strategy by allowing intro of extrajudicial statements only
against a party
iv) The rule allows parties to intro out-of-court statements made by opposing parties, but not to
intro their own out-of-court statements.
2. Admissions
i) Statements admissible under this rule do not have to be admissions
ii) A party may offer any out-of-court statement made by an opposing party under this
exemption
a) This statement need not be incriminatory on its face, it may seem exculpatory
iii) Admission is a term intended to refer to any statement that an opponent seeks to introduce
3. Personal Knowledge
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i) Allows intro of an opposing party’s statements even if the opposing party had no personal
knowledge of what he was saying.
ii) Hearsay statements by opponents are not admitted b/c they are reliable or trustworthy; they
are admitted on an estoppel theory.
iii) The exemption holds responsible for every statement that he makes, even if he made that
statement w/o any personal knowledge, and even if there is evidence that he was mistaken or
lying when he said it.
iv) A party seeking to preclude her own statements has one possible objection: Rule 403.
4. Party’s Availability Immaterial

i) Hearsay exception for party statements does not require availability
ii) Even when a criminal ∆ invokes the privilege against self-incrimination and declines to take
the stand, the gov may introduce evidence of the ∆s out-of-court statements.
5. Admission by Adoption – Signing a Document
i) A party’s admission need not consist of the party’s own words..
ii) It is sufficient if the party has manifested an adoption of a statement or a belief in its truth.
6. Admission by Adoption – Silence
i) An individuals’ silence can constitute an adoptive admission.
a) But the circumstances must be such that a reasonable person would speak up
rather than remain silent.
ii) Whether the circumstances as a whole show that the lack of a denial is so unnatural as to
support an inference that the undenied statement was true.
a) Some use somewhat more lenient sounding standard of whether probable human
behavior would have produced a response rather than silence.
7. Agents
i) Includes any statement by the party’s agent or servant re: a matter within the scope of the
agency or employment, made during the existence of the relationship.
a) An agent is someone authorized to act for a party on a particular matter.
8. Authorized Speakers
i) Includes any statement by a person that the party authorized to make a statement re: the
subject.
9. Criminal ∆s
i) Admits party statement in civil and criminal cases.
ii) If the ∆ takes the stand to rebut or explain the out of court statement, the prosecutor may be
able to introduce evidence of the prior convictions to impeach the ∆ as a witness.
iii) Of the ∆ leaves the out of court statement unexplained, that statement may unfairly suggest
guilt.
LII. Statements by Party-Opponents in the Context of Multiple Parties

A. The Rule
1. Same-Side Statements
i) The rule authorizes any litigant to introduce a party’s statement against a party.
ii) As long as 1 ∆ offers a co-∆’s out of court statement against the co-∆, 801(d)(2) supports
admitting the statement
a) 1 π may offer a co-π’s statement against that person.
iii) As long as the co-∆’s or co-π’s interests are sufficiently adverse that the other ∆ or π is
offering an out of court statement against that person, 801(d)(2) supports introduction of the
statement
iv) The litigant introduces the statement against the interests of that party.
2. Spillover Effects in Civil Cases
i) 801(d)(2)(A) allows a litigation to introduce a party’s own statement against that party, but it
does not authorize admission of the statement against anyone else.
ii) Only allows the statement to be used against the party who made the statement.
iii) In civil case, authorizes intro of an out of court statement against the party who made the
statement, but not against other parties.
B. The Confrontation Clause
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1. 6th Amend. – In all criminal prosecutions, the accused shall enjoy the right to be confronted with the
witnesses against him;.
2. Confronting witnesses includes the right to cross-examine those witnesses.
3. Out of court statement implicating the co-∆ is so powerful that a limiting instruction is not sufficient to
cure the 6th Amend violation.
4. Option to a prosecutor who obtains an out of court admission from one of several ∆s:
i) Prosecutor can redact ∆s admission so that it does not implicate any other ∆s
ii) Prosecutor can sever the trial and try each ∆ separately
iii) Prosecutor can forego use of the statement, relying on other evidence instead.
C. In the Courtroom
1. Adoptions, Agents, and Authorized Speakers
i) 801(d)(2)(B) allows introduction of statement adopted by a party, including statement
endorsed through silence
ii) 801(d)(2)(C) permit introduction of statement made by a person that the party authorized to
speak on that subject
iii) 801(d)(2)(D) admits statements made by a party’s agent or employee
iv) In some cases involving multi ∆s, these provisions allow the π to introduce 1 ∆s statement
against all of the ∆s
2. Redacted Statements
i) Bruton, Richardson, and Gray together create these guidelines governing the redaction of
out of court statements implicating a co-∆:
a) A statement that explicitly names a co∆ and implicates that co∆ on its face violates
Bruton. The statement cannot be admitted in this form.
b) A statement that simply replaces the co∆s name with blanks or other obvious marks
of deletion violates Bruton. A statement in this form will inevitably will tempt the jury to
fill in the blanks with the co∆’s name.
c) A statement that does not refer explicitly to a co-∆, and that contains no obvious
omissions tempting the jury to fill in the gaps, satisfies Bruton. The prosecutor can
admit statement that satisfy this condition in their initial form or that can be redacted to
reach this form.
(1) These statement still are admissible only against the ∆ who made the out of
court statement, and the judge will instruct the jury not to consider these
statements in connection with any co∆s. But the form of the statement makes it
plausible that the jury will follow those instructions, resolving the 6th Amend.
concerns.
LIII. Hearsay Exemption – Statements of Co-conspirators

A. The Rule
1. Rule 801(d)(2): Definitions; Statements which are not hearsay.
i) A statement is not hearsay if
a) The statement is offered against a party and is
(1) A statement by a co-conspirator of a party during the course and in
furtherance of the conspiracy.
B. In the Courtroom
1. Meaning of Conspiracy
i) A party invoking the co-conspirator exception to the hearsay rule only has to prove that the
declarant and the party against whom the statement is offered were members of a common
venture.
a) The declarant and ∆ must have agreed to use their joint efforts in some way to
reach a common goal.
2. Course of Conspiracy
i) It includes only statements that occur during the course of the conspiracy.
ii) A conspiracy begins as soon as 2+ people agree to pursue a common goal.
iii) The courts have held that an arrest almost always ends a conspiracy.
a) Post-arrest statements usually are not admissible against coconspirators.
3. Concealment
i) Prosecutors sometime argue that a conspiracy is ongoing b/c the participants are engaged
in continued efforts to conceal the crime.
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a) If the participants are working together to conceal the crime, then the conspiracy is
still active and statements made by 1 conspirator during the cover-up are admissible
against all members of the conspiracy.
b) But when members of conspiracy disband and go separate ways, concealing the
wrongdoing only by keeping quiet, the conspiracy does not continue.
ii) A former conspirator who brags about a completed crime may have that statement admitted
against him later in court, but the statement is not admissible against other members of the
former conspiracy.
iii) Unilateral steps by 1 conspirator to cover up a crime do not signal an ongoing conspiracy.
iv) Some types of concealment do occur as part of the initial conspiracy and the statements are
admissible against coconspirators
4. Furtherance of the Conspiracy
i) Admits a coconspirator’s out of court statements against other members of the conspiracy
only if the statements were made in furtherance of the conspiracy.
ii) A conspirator’s confession to police officers usually means that the conspiracy – or that
conspirator’s role in it – has ended.
iii) 801(d)(2)(E) does not require a coconspirator’s statement to further the conspiracy, the
statement need only be in furtherance of the conspiracy.
a) A statement may be admissible even if it does not successfully secure some
objective or otherwise advance the criminal enterprise.
iv) The 2 most common categories of statement that fall outside the furtherance requirement
are confessions and boasts to people outside the conspiracy.
a) Courts usually hold that bragging statement are not in furtherance of the conspiracy
and are not admissible against their coconspirators.
5. Civil Cases
i) The exception is also available in vigil cases.
6. Preliminary Determinations
i) Under 104(a), the judge decides whether the factual conditions necessary to support
admission of a statement under 801(d)(2)(E) exist.
a) The judge decides whether a conspiracy exists, whether the out of court statement
was made during the course of the conspiracy, and whether the statement was in
furtherance of the conspiracy.
b) The proponent must prove these facts by a preponderance of the evidence.
ii) 801(d)(2): Admission by Party Opponent
a) The contents of the statement shall be considered but are not alone sufficient to
establish
(1) The declarant’s authority under sub(C)
(2) The agency or employment relationship and scope thereof under sub (D)
(3) Or the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered under sub (E)
iii) The judge may consider the statement in determining whether the requisite relationship
exists, but some other evidence must also help establish the relationship
7. Relationship to Other Rules
i) The coconspirator exception is not necessary to introduce a statement against the party
who made the statement.
ii) Allows a party to admit one conspirator’s out of court statement against all other members
of the conspiracy
iii) Admission of a conspirator’s statement does not raise any Bruton 6th Amend issues with
respect to coconspirator and does not need to redact references to other members of the
conspiracy, and the judge need not give the jury a limiting instruction.
iv) Even if a statement does not satisfy the coconspirator exception, it may satisfy one of the
other party admission exceptions.
LIV. Residual Exception

A. Intro & Policy
1. Rule 807 gives judges flexibility by allowing them to admit hearsay that falls outside the standing
exceptions, as long as the evidence has sufficient guarantees of trustworthiness and is the best
available way to prove a needed fact.
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B. The Rule
1. Rule 807: Residual Exception
i) A statement not specifically covered by 803 or 804 but having equivalent circumstantial
guarantees of trustworthiness, it not excluded by the hearsay rule, if the court determines that
a) The statement is offered as evidence of a material fact
b) The statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts, and
c) The general purposes of these rules and the interests of justice will be best served
by admission of the statement into evidence.
ii) However, a statement may not be admitted under this exception unless the proponent of it
makes known to the adverse party sufficiently in advance of trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the
statement and the particulars of it, including the name and address of the declarant.
2. 807 conditions can be reduced to just 3 requirements:
i) Judge must determine that the proffered statement has sufficient guarantees of
trustworthiness
ii) Statement must be most effective way to prove a fact in consequence, despite reasonable
efforts to find otherwise admissible evidence, and
iii) Proponent of evidence must give notice of intent to use statement at trial
C. In the Courtroom
1. The Near Miss Problem
i) Minority view that statement falling just outside of existing exception is covered by that
exception
a) Courts have rejected the near miss approach to 807
b) Courts read the rule’s opening words as referring to whether a particular proffered
statement is specifically covered by 803 or 804
2. Trustworthiness
i) Courts consider numerous factors when determining whether a statement has sufficient
guarantees of trust worthiness, including
a) Whether a statement was made under oath
b) Whether declarant had 1st hand knowledge of fact in the statement
c) Whether the declarant ever recanted the statement
d) Whether other evidence corroborates the statement
e) Whether that corroborating evidence is subject to cross-examination
f) Whether other evidence undermines or contradicts the statement
g) Whether the ∆ has any incentive to lie when making the statement.
3. Probative Value
i) In addition to showing statement is sufficiently trustworthy, advocates urging the admission
of hearsay under 807 must persuade the judge that it is more probative than any other evidence
which the proponent can procure through reasonable efforts.
LV. Attacking a Declarant’s Credibility

A. Intro & Policy
1. Rule 806 gives parties a way to attack a declarant’s credibility, whether or not the declarant appears
as a witness.
i) Allows parties to impeach the declarants as if they were witnesses.
B. The Rule
1. Rule 806: Attacking and Supporting Credibility of Declarant
i) When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E) has
been admitted in evidence,
a) The credibility of the declarant may be attacked
b) And if attacked may be supported
(1) By any evidence which would be admissible for those purposes is declarant
has testified as a witness
ii) Evidence of a statement or conduct by the declarant at any time, inconsistent with the
declarant’s hearsay statement, is not subject to any requirement that the declarant may have
been afforded an opportunity to deny or explain.
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iii) If the party against whom a hearsay statement has been admitted calls the declarant as a
witness, the party is entitled to examine the declarant on the statement as if under cross-
examination.
2. Rule 806 allows a party to attack a declarant’s credibility by introducing evidence that would be
admissible if the declarant had testified as a witness, the evidence includes
i) Evidence of declarant’s bias, prejudice, or interest in the case
ii) Statements made by the declarant that are inconsistent with the hearsay statements – rule
613
iii) Evidence that the declarant lacks person knowledge – rule 602 – or the capacity to testify
truthfully – rule 603
iv) Reputation or opinion evidence that the declarant is untruthful, given by a character witness
– rule 608(a)
v) Any criminal convictions allowed by rule 609
C. In the Courtroom
1. Statements that are Not Hearsay
i) 806 allows impeachment of a declarant only when the declarant’s statement was
a) Hearsay or
b) An assertion by the party opponent’s agent, spokesperson, or coconspirator
(1) The rule does not apply to other out of court statements
(2) 806 does not allow impeachment of a declarant when a party offers the
declarant’s statement for a purpose other than to prove the truth of the matter
asserted
(3) 806 does not apply to out of court statements made or adopted by a party
opponent
2. Evidence of Specific Acts
i) Parties may impeach witnesses by cross-examining them about specific dishonest actions.
LVI. Sixth Amendment and Hearsay

A. Intro & Policy
1. In 2004, the Court decided Crawford which held that the confrontation clause guarantees a
procedural right – the criminal ∆s right to confront witnesses against him
2. The procedural right is not satisfied merely b/c a judge concludes that the statement is reliable.
3. The Crawford decision impact only restricts a prosecutor’s use of hearsay against a criminal ∆.
B. The 6th Amend and the Crawford Case
1. A criminal ∆s 6th Amend right to be confronted with the witnesses against him is a right to cross-
examine people who make testimonial statements against him.
2. When the prosecutor offers hearsay against a criminal ∆, the 6th Amend constraints follow 3 rules:
i) The prosecutor may introduce non-testimonial hearsay as long as those statement comply
with the hearsay rules. The 6th Amend does not limit the admission of non-testimonial hearsay
ii) The prosecutor may introduce testimonial hearsay if the statements comply with the
hearsay rules, and the declarant is available as a witness. Under the circumstances, the ∆ has
a chance to cross-examine the declarant about the testimonial statement and any other matters.
iii) If the hearsay statement is testimonial and the declarant is unavailable at trial, the
prosecutor may offer the statement only if the ∆ has a prior opportunity to cross-examine the
declarant.
3. To apply principles need to answer 3 questions:
i) What is the difference b/w testimonial and non-testimonial statements
ii) When is a declarant available
iii) What constitutes a prior opportunity to cross-examine the declarant
C. In the Courtroom
1. Testimonial Statement
i) Courts’ decisions suggest that at least 3 factors contribute to the determination of whether a
reasonable person would expect his statement to be used prosecutorial:
a) Statements uttered solemnly or under normal circumstances are more likely than
casual statements to be testimonial
b) Statements to law enforcement agents or other gov employees are more likely than
those to private parties to be testimonial
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c) Statements made to prove a fact are more likely than those made for some other
purpose (such as gaining help) to be testimonial
ii) Formal statements during litigation
a) Testimonial statements clearly include all testimony at trial, grand jury proceedings,
and other hearings, as well as statements made in depos and affidavits.
iii) Statements to Law Enforcement
a) Most statements made to law enforcement agents about a crime are testimonial
b) 2 types of statements to law enforcement present special problems under Crawford:
(1) Statements to 911 operators and
(2) Statements made to police when they 1st arrive at the scene of a crime.
c) Court held in Davis that the purpose of the statement made to law enforcement
agents may determine whether they are testimonial:
(1) Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.
(2) They are testimonial when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.
d) Some answers to police officer’s initial inquiries at the scene of a crime may not be
testimonial.
(1) If officers seek info to protect a victim, preserve their own safety, or
otherwise end a threatening situation, responses to their questions will
resemble initial statements to a 911 operator:
(i) They will lack purpose and formality that mark testimonial
statements.
iv) Statements to Private Parties
a) The SCOTUS has not decided whether statement to private parties are ever
testimonial.
b) Statements to friends and neighbors and statements to physicians in the course of
receiving treatment are not testimonial.
v) Statements Admitted to Prove a Point Other Than the Truth of the Matter Asserted
a) Confrontation Clause does not bar use of testimonial statements for purposes other
than establishing the truth of the matter asserted.
2. Unavailability and Prior Opportunity to Cross-Examine
i) Even if a statement is testimonial, the prosecutor may admit the statement if the declarant is
available at trial or the prosecutor shows
a) The declarant is unavailable, and
b) The ∆ had a prior opportunity to cross-examine the declarant about the statement.
ii) Key points that affect admissibility of testimonial statement include:
a) Witnesses who claim privileges or refuse to testify are unavailable.
b) Witnesses who assert a lack of memory, real or feigned, are unavailable.
c) Criminal ∆s have no opportunity to cross-examine grand jury witnesses, so the 6th
Amend often blocks prosecutors from using these statements
d) ∆s have no opportunity to cross-examine individuals who give confessions or other
statements to police, and the 6th amend often bars admissions of these statements.
iii) For the prior opportunity to suffice, the ∆ must have had a similar motive to cross-examine
the witness at the prior proceeding.
3. Statements by the ∆ and Coconspirators
i) The 6th Amend does not prevent the prosecutor from using a ∆s out of court statements
against him.
4. Two Exceptions: Dying Declarations and Forfeiture
i) The confrontation clause requires that a ∆ have the opportunity to confront the witnesses
who give testimony against him, except in cases where an exception to the confrontation right
was recognizes at time of the founding.
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ii) Court held that the forfeiture exception applies only when a witness is unavailable, the ∆
caused that unavailability, and the ∆ acted with the specific purpose of preventing the witness
from testifying.
iii) SCOTUS has not decided a dying declaration case under Crawford
5. The Confrontation Clause and the Hearsay Rule
i) Out of court statements are admissible only if they satisfy both the confrontation clause and
the hearsay rule
ii) The fed hearsay exceptions that, under current law, NEVER raise confrontation clause
issues:
a) 801(d)(1) – prior statements by witnesses. These statements are admissible under
the hearsay rule only if the declarant is on the stand and subject to cross-exam, which
satisfies the confrontation clause.
b) 801(d)(2) – party-opponent admissions. The Sup. Court has held that these
statements raise no confrontation clause issues. The ∆ may not complain about
confronting himself or others speaking on his behalf.
c) 803(5) – past recollection recorded. These statements are admissible only if the
declarant is on the stand and subject to cross-exam.
d) 803(7) and 803(10) – absence of entries in business and public records. The
absence of an entry is not a statement, so it cannot be testimonial.
e) 804(b)(1) – Prior testimony. This testimony is admissible in criminal cases only if
the ∆ had an opportunity and similar motive to cross-examine the declarant on the prior
occasion
f) 804(b)(2) – dying declarations. This is a founding era exception that the sup court
appears to have grand fathered into the confrontation clause.
g) 804(b)(6) – forfeiture. This is a founding era exception and it rests on the
assumption that the ∆ waived his confrontation rights by making the witness
unavailable.
iii) 4 def exceptions RARELY raise confrontation clause issue but might, in an unusual
situation:
a) 803(4) – statements made for medical treatment or diagnosis. In most situations,
these statement are non-testimonial b/c they are made to private parties and/or for the
purpose of obtaining medical care, thus the pt would not expect them to be used in
court. Includes statements made for purpose of obtaining diagnoses related to
litigation, and a few courts have held that identity of abusers is pertinent to treating
victims of sexual or domestic abuse. In these rare cases, a statement admitted under
this exception could qualify as testimonial.
b) 803(6) – business records. Courts use the final clause of 803(6) to exclude
business record prepared for litigation. This would exclude most testimonial
statements, but 803(6) is a broad exception, and courts display some difference in
application.
c) 803(17) – Market reports and commercial publications. The lists and tabulations
commonly admitted under this exception contains no testimonial statements, they are
telephone directories, stock market reports, and similar compilations. Law enforcement
agencies may publish and rely upon some lists that include testimonial evidence. In
those rare cases, a list might satisfy this exception but not the confrontation clause.
d) 803(18) – learned treatises. Most learned treatises address general subjects rather
than gathering evidence to convict a particular ∆. In unusual cases, a law enforcement
agency might publish a book documenting the crimes of notorious criminals. In rare
situations like this, the admission of learned treatise might violate the confrontation
clause.
iv) These exceptions to the fed hearsay rule, raise confrontation clause issues in a
SIGNIFICANT subset of cases:
a) 803(1) and (2) – present sense impressions and excited utterances. When made to
private parties, these statement probably present no confrontation clause problems.
Similarly, they satisfy the 6th Amend when made to law enforcement agents for the
purpose of obtaining immediate aide. But when made to law enforcement agents for
the purpose of creating evidence for trial, they trigger the ∆s confrontation rights
b) 803(3) – statements of mental or physical condition. Under some circumstances,
such as when made to law enforcement agents gathering evidence for prosecution,
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these statements are testimonial and raise CC problems. Under other circumstance,
such as when made to private parties, they are not testimonial.
c) 803(8) – public records. This exception restricts the admission of hearsay against
criminal ∆s, satisfying CC concerns in many cases. The exception, still admits
ministerial law enforcement records, observations by gov employees other than law
enforcement personnel; and other statements that a court might deem testimonial.
d) 803(16) – Ancient documents. Confessions, police reports, and other testimonial
statements do not lose their testimonial character with time. Even if a doc is 20+ years
old, it may be testimonial.
e) 804(b)(3) – statement against interest. Statements against interest made to private
parties probably are not testimonial, but those to gov agents often are. Many
statements against interest trigger 6th Amend concerns, especially when the prosecutor
attempts to introduce 1 perp’s confession against another participant in the crime.
f) 807 – residual exception. Before Crawford, courts often used this rule to admit
grand jury testimony, but those statements clearly are testimonial after Crawford. Other
statement admitted under this exception similarly could raise confrontation issues.
LVII. Judicial Notice

A. Intro & Policy
1. Rule 201 allows the judge to take judicial notice of some fact.
B. The Rule
1. Rule 201: Judicial Notice of Adjudicative Facts
i) Scope of rule. This rule governs only judicial notice of adjudicative facts
ii) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that
it is either
a) generally known within the territorial jx of the trial court, or
b) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
iii) When discretionary. A court may take judicial notice, whether requested or not.
iv) When mandatory. A court shall take judicial notice if requested by a party and supplied with
the necessary info.
a) The judge will refuse to take judicial notice if:
(1) The fact is subject to reasonable dispute, or
(2) The fact is neither generally known or within the territorial jx of the court nor
readily verifiable from reliable sources
v) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be
heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request made be made after judicial notice has been taken.
vi) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
vii) Instructing Jury. In a civil action or proceeding, the court shall instruct the jury to accept as
conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it
may, but it not required to, accept as conclusive any fact judicially noticed.
C. In the Courtroom
1. Subject to Reasonable Dispute
i) Facts that have been judicially noticed include:
a) The fact that credit cards play a vital role in American society
b) The fact that bingo is a senior citizen pastime.
c) The fact the KKK has a history of violence against African Americans
2. Generally Known
i) Indisputability alone does not render a fact suitable for judicial notice.
ii) A fact must be generally known to the public.
iii) Facts that are known by members of a particular religion, occupation, or other group do not
qualify as generally known.
iv) Allows court to take judicial notice of facts that are generally known within the court’s jx,
even though they may not be well known in other parts of the country.
3. Capable Determination
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i) Even if a fact is not generally known, 201(b) allows the court to take judicial notice of the
fact if it is both indisputable and capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
ii) Courts have taken judicial notice of prices, interest rates, distances b/w cities, and many
other facts of this nature.
4. Other Situations
i) Occasionally, a fact seems indisputable although it is neither generally known nor readily
verifiable from accurate sources.
5. Judicial and Agency Decisions
i) Internal judicial routines usually do not satisfy the requirements for judicial notice.
ii) Court and agency decisions easily fit within Rule 201
a) Decisions are readily verifiable from reliable sources and are not subject to
reasonable dispute.
iii) Judicial notice of a judgment extends only to the terms of the judgment, not to facts
underlying the decision.
6. Supporting Sources
i) When a party offers a source to show that it is easily verifiable under 201(b)(2), the source
does not have to be admissible. .
a) Parties may rely upon books, public records, business records, and other types of
hearsay w/o showing that the source fits within one of the hearsay exceptions.
7. Instructing the Jury
i) When the judge take judicial notice of a fact in a civil trial, the judge will instruct the jury to
accept that fact as conclusive.
ii) In criminal cases, the judge instructs the jury that it may accept a judicially noticed fact as
conclusive.
a) The jurors in a criminal case retain the right to reject facts that the judge considers
indisputable.
(1) But it still eliminates the need to prove particular facts in the courtroom.
8. Judicial Notice on Appeal
i) Allows a court to take judicial notice at any stage of the proceeding.
a) Permits judicial notice even while a case is on appeal
9. Judicial Notice and Stipulations
i) Judicial notice is not the only way to admit undisputed facts.
a) If both parties agree on a fact, they can make a stipulation that the fact is true.
b) Usually the party who proposes the stipulation will write out the exact language for
the jury.
ii) Reasons for stipulations:
a) Save trial time
b) Contesting every element of a claim or crime may damage a party’s credibility
c) Some stipulations avoid detailed proof of fact that will engender sympathy or create
powerful emotions on the party of the jury
d) Some facts are beyond dispute and would be a waste of time to contest those facts
LVIII. Lay Opinions

A. Intro & Policy
1. Rule 602 requires all witnesses to testify based on their “personal knowledge.”
2. Rules 701-706 describe when opinion testimony is admissible.
3. Lay Opinions – The Opinion:
i) Must be based on personal observation
ii) Must be helpful to the jury
iii) May not rest upon scientific, technical, or special knowledge, although it may rest on
distinctive experiences in the witness’s life.
B. The Rule
1. Rule 701 governs the admissibility of opinion testimony by lay witnesses
2. Rule 701: Opinion Testimony by Lay Witnesses
i) If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or
inferences is limited to those opinions or inferences which are
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a) Rationally based on the perception of the witness, and

b) Helpful to a clear understanding of the witness’ testimony or the determination of a
fact in issue, and
c) Not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.
3. 2 types of opinion witnesses: lay witnesses and expert witnesses.
4. 3 requirements that lay witnesses must satisfy when offering an opinion
i) Opinion must be rationally based on the perception of the witness
a) Perception requirement resembles the personal knowledge condition of Rule 602
b) Rule 701 is obligation to underscore a key distinction b/w lay witnesses and
experts:
(1) Lay witnesses testify only about matters they have directly perceived, while
experts may offer opinions based on a broader range of facts
ii) Lay opinion must help the fact finder.
iii) Lay opinions must be non-technical.
C. In the Courtroom
1. Helpfulness
i) Lay opinions are admissible only if they “help” the fact finder
ii) Judges routinely allow lay witnesses to describe individuals as happy, sad, angry, or drunk.
iii) Effective advocacy may sway the judge’s ruling.
2. Lay Opinions and Expert Opinion
i) Opinions based on everyday observations and experience are lay opinions.
ii) Judges allow lay witnesses to give opinions based upon their distinctive experiences, as
long as those events don’t reflect specialized training.
iii) Lay witnesses may draw reasonable inferences from their experiences, but must use a
process of reasoning familiar in everyday life – cannot invoke a process of reasoning which can
be mastered only by specialists.
i) Before a lay witness gives an opinion based on particular knowledge, he must lay a
foundation establishing that he has the info required to form the opinion.
ii) Must establish the witness has personal knowledge of the opinion and the facts it draws
upon it.
4. Experts Giving Lay Opinions
i) The rules allow any witness with personal knowledge of an event to give a lay opinion
related to that event.
ii) Experts may give lay opinions just like other witnesses.
LIX. What Subjects are Appropriate for Expert Testimony?

A. Intro & Policy
1. To qualify as expert testimony (702)
i) The principles and methods defining the field must be reliable
ii) The expert must have applied those techniques reliably to the facts
iii) The expert testimony must fit the facts in a way that assists the factfinder, and
iv) The evidence must satisfy Rule 403’s general balancing test.
2. Expert witnesses give testimony based on their scientific, technical or other specialized knowledge.
3. Jurors tend to trust experts if the experts has a lengthy resume and uses sophisticated jargon.
4. Before allowing the expert to testify, the judge must determine that both the field of expertise and
the expert’s application of that knowledge are reliable.
5. For much of 20th century, judges measured reliability by asking whether the principle underlying an
expert’s opinion was sufficient established to have gained general acceptance in the particular field in
which it belongs.
6. General acceptance test stemmed from Frye v .U.S. IN 1923.
7. The Frye test established a bright line and was simple for courts to apply
i) Judges looked to members of a scientific or technical field to determine whether a witness’s
approach was generally accepted within that field.
ii) Rules 401 and 403 set out specific tests for balancing relevance with undue prejudice or
confusion, and it is the trial judge that is to determine whether any type of evidence is
admissible under these tests.
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8. In 1993, Supreme Court announced new test for determining admissibility of expert testimony.
i) Daubert v. Merrell Dow, Court stressed that judges, not a closed circle of experts,
determining the reliability of expert testimony.
ii) To determine whether the testimony is reliable, the Court suggested, judges should
consider factors such as: Daubert Test
a) Whether the theory or technique has been tested
b) Whether it has been subject to peer review and publication
c) The technique’s error rate
d) The existence of standards controlling the technique’s application
e) Whether the theory or technique has been generally accepted in the relevant
scientific community.
(1) The last factor incorporates the Frye’s general acceptance test
iii) Enumerated factors are not exhaustive, judges may consider any factor useful in
determining the scientific validity and this the evidentiary relevance and reliability – of the
principles that underlie proposed expert testimony.
iv) Court based its Daubert decision on its interpretation of Rule 702, the primary rule
governing expert testimony
9. 15 states + D.C. still apply the Frye test.
10. Difference b/w Frye and Daubert
i) The Frye rule allowed scientists and other experts to set bounds of reliability within their
fields
a) Courts admitted expert testimony based on whether the expert’s approach gained
general acceptance within the field
ii) Daubert (current federal rule) shifts this gatekeeping role to judges.
a) The trial judge now decides whether an expert’s approach is sufficiently reliable to
present to the jury.
b) The judge relies upon variety of factors that include general acceptance.
B. The Rule
1. Rule 702: Testimony by Experts
i) If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion
or otherwise, if
a) The testimony is based upon sufficient facts or data
b) the testimony is the product of reliable principles and methods, and
c) the witness has applied the principles and methods reliably to the facts of the case
2. An expert is a witness who offers scientific, technical or other specialized knowledge.
3. Expert testimony must assist the trier of fact
i) A party may not offer an expert opinion, no matter how valid the underlying science, if the
expert’s perspective doesn’t fit the facts of the case
ii) The fit requirement is stricter than mere relevance
4. The court must agree that the witness qualifies as an expert before the witness offers an opinion on
technical or scientific matter.
5. The Expert’s testimony must rest on sufficient facts or data
6. Rule 702 imposes 2 reliability hurdles that all expert testimony must surmount:
i) The testimony must stem from reliable principles and methods, and
ii) The witness must have applies the principles and methods reliably to the facts of the case.
C. In the Courtroom
1. Reliable Pinciples
i) Rule 702 demands that an expert base her testimony on reliable principles and methods.
a) A party must be able to point to the principles and methods underlying an expert’s
testimony, and those principles and methods must satisfy Daubert’s reliability test.
ii) The principles underlying an expert’s testimony do not have to satisfy all of the factors listed
in Daubert.
iii) Daubert does not require trial judges to admit any evidence on a scientific issue.
iv) Despite Daubert’s flexible test, trial judges reject many types of expert testimony as
unreliable.
2. Reliable Application
i) Rule 702 requires 2 types of reliability:
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a) Reliable principles underlying the expert’s approach, and

b) Reliable application of those principles to the facts of the case.
3. Supplementing the Daubert Factors
i) Court’s listed factors were not exclusive, judges should consider any factor illuminating the
reliability of expert testimony.
ii) One factor cited by several courts is whether the expert developed an idiosyncratic
approach specifically for the litigated controversy or as part of a broader program of research.
iii) If atty can make his case for reliability based on those factors listed, that is the safest
avenue toward admitting expert testimony.
iv) A party need not satisfy all of the Daubert criteria to show the evidence is reliable, and
courts remain open to considering new factors.
4. Does the Expert Evidence Fit?
i) Even if the expert evidence passes Daubert’s 2 reliability tests, the evidence must assist the
trier of fact or, must fit the facts of the case.
ii) The fit requirement sometimes leads courts to reject expert evidence related to causation.
5. Rule 403
i) Rule 403 requires the trial judge to exclude any other evidence when the danger of
prejudice, conclusion of the issues, or misleading the jury substantially outweighs the
evidence’s probative value.
ii) Because of risk of misleading and difficulty in evaluating, the judge in weighing possible
prejudice against probative force under Rule 403 of the present rules more control over experts
than over lay witnesses.
iii) Rule 403 forms the 3rd step in a 3 part analysis that many courts undertake when assessing
expert evidence:
a) Is the evidence reliable, both in its underlying principles and its application to the
case?
b) Does the evidence fit the case and held the trier of fact?
c) Even if the evidence satisfies these requirements, does the danger of unfair
prejudice, confusion, or misleading the jury substantially outweigh the probative value?
6. Technical and Other Specialized Knowledge
i) Daubert’s gatekeeping approach applies to all types of expert testimony.
ii) The criteria that a court considers when assessing reliability may vary depending on the
type of expert evidence at issue.
7. Daubert Hearings
i) A judge’s evaluation of scientific or technical evidence can be time consuming; the parties
may present witnesses supporting or attacking the proposed evidence.
ii) Judge’s frequently evaluate the realibility, fit, and potential prejudice of expert testimony in a
pretrial proceeding – Daubert Hearing.
iii) If an expert’s testimony does not survive a Daubert hearing, the ∏ may lack sufficient
evidence to go to trial.
iv) Application of Rule 702 may make or break a party’s cause.
8. Was There a Revolution?
i) For well established scientific and technical methods, Daubert poses few problems – if a
method is generally accepted as Frye require, opponents may not even challenge the
testimony’s reliability.
D. Rule 702: The Pathway Through the Expert Evidence Gate
1. Is the evidence based on scientific, technical or other specialized knowledge? If so, Rule 702
applies.
2. The trial judge serves as a datekeeper, shielding the jury from potentially misleading or prejudicial
evidence. This purpose controls the flexible inquiry outlined below.
3. Are the principles and methods supporting the evidence reliable? Use the Daubert crieteria as
guidelines, but look to other factors if appropriate for the field:
i) Prior testing of the technique or theory
ii) Peer review and publication
iii) Error Rate
iv) Controlling standards
v) General acceptance
4. Has the technique been reliably applied?
5. Does the evidence fit the facts of the case? Will it help the fact finder?
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6. Is the evidence excludable under Rule 403? Do unfair prejudice, confusion, or potential to mislead
jury substantially outweigh probative value?
7. Expert Evidence that clears all hurdles is admissible.
LX. Qualifying Experts

A. The Rule
1. Rule 702: Testimony by Experts
i) If scientific, technical, or other specialized knowledge will assist the trier of fact to under the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise.
2. A witness mist be qualified before offering evidence about scientific, technical, or other specialized
knowledge.
3. Witness may establish her qualifications by point to a # of different factors: knowledge, skill,
experience, training, or education.
i) Education is not essential to qualify as a witness.
B. In the Courtroom
1. How to Qualify an Expert
i) 3 Stages to qualifying an expert.
a) The atty who called the expert lays the foundation for the witness’s expertise by
asking questions about the witness’s credentials and qualifications
(1) The atty may use leading questions even in direct b/c the atty is eliciting
uncontested background info about pedigree.
(2) The atty will then move that the judge certify the witness as an expert.
b) Most judges allow opposing counsel to voir dire the witness
(1) The opp. Counsel has the chance to ask the witness questions in order to
test his credential
(2) Opp. Counsel then either objects or not to the certifying of the witness as
an expert.
c) Third, the judge rules on the motion to certify the witness.
(1) Parties may shorten the process by stipulating the witness is an expert.
2. Expertise Includes Experience or Informal Training
i) Witnesses may qualify as experts in areas b/c of their independently developed knowledge,
skills or expertise.
LXI. Bases of Expert Opinion

A. Intro & Policy
1. Bases of Expert Opinions:
i) Personal Knowledge
ii) Evidence presented at trial, or
iii) Evidence that has not been admitted at trial, as long as experts in the field reasonably rely
upon that evidence.
a) This may include evidence that is not admissible, such as hearsay or character
evidence.
2. If the expert’s testimony requires knowledge of other trial testimony, the expert may remain in the
courtroom even if the judge excludes other witnesses under Rule 615.
3. Experts are the only witnesses who can certify documents as learned treatises under Rule 803(18).
i) The treatises may be read to the jury and considered for the truth of the matter asserted
even though they are hearsay.
4. Expert may do more than give commonsense opinions, they may draw inference from the evidence
and state conclusions based on special training or experience.
5. Experts do not have their opinions exclusively on personal observation – they rely on a wide range
of date, including info such as hearsay.
i) Under some circumstances, the expert may reveal inadmissible evidence to the jury.
B. The Rule
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1. Rule 703: Bases of Opinion Testimony by Experts

i) The facts or date in the particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to the expert at or before the hearing.
ii) If of a type reasonably relief upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted.
iii) Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their probative value in
assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
2. Rule 705: Disclosure of Facts or Data Underlying Expert Opinion
i) The expert may testify in terms of opinion or inference and give reasons therefore w/o first
testifying to the underlying facts or data unless the court requires otherwise.
ii) The expert may in any even be required to disclose the underlying facts or data on cross-
exam.
3. Primary value of 705 is that an expert may state a conclusion first, capturing and focusing the jury’s
attention.
i) 705 allows an expert to offer an opinion, even if the evidence supporting the opinion is
inadmissible.
4. The court may allow experts to disclose the otherwise inadmissible evidence if the probative value
of that evidence would substantially outweigh its prejudicial effect.
i) Reverse of Rule 403 – requires a strong showing of probative value, or minimal prejudice,
to support disclosure.
ii) Rule 703 only takes into consideration the probative value of the evidence in assisting the
jury to evaluate the expert’s opinion.
C. In the Courtroom
1. Attendance at Trial
i) Trial attendance sometimes is the most efficient way for an expert to obtain necessary facts.
ii) When an expert does base an opinion on trial testimony, the expert must clarify what parts
of the testimony support her opinion.
2. Hypothetical Questions
i) Another way an expert to base an opinion on facts made known at trial is for the expert to
testify in response to a hypo.
ii) Although hypos are permissible, they are subject to 2 forms of abuse
a) Attys sometimes insert facts into hypos that have no been proven
b) Attys sometimes use a long hypo as an opportunity to sum up the case, rather than
presenting facts to an expert, they are previewing their opposing argument.
3. Reasonably Relied Upon by Experts in the Field
i) Experts frequently rely upon data that would not be admissible in court
a) Rule 703 allow experts to base opinions on this info as long as experts in the field
reasonably rely upon that data
ii) Reasonable Reliance Standard
a) Experts in the witness’s field must in fact rely upon the type of evidence that the
expert used, and
b) that the relief must be reasonable.
4. Admitting Underlying Facts that are Otherwise Inadmissible
i) Expert’s opinion is admissible even when the underlying facts are not.
ii) The party opposing an expert always has the right to ask the expert to divulge the basis of
her opinion during cross-exam.
iii) The party sponsoring the expert can try to admit facts during direct exam.
a) Party will argue the knowledge of the underlying facts is essential for the jury to
understand and evaluate the expert’s opinion.
b) Rule 703 directs judge to apply reverse 403 balancing test
(1) The judge will allow the expert to reveal the inadmissible facts supporting
his opinion only if the probative value of admitting those facts substantially
outweighs any prejudice cause by the admission.
(2) Rule 703 doe not create a new hearsay exception, it allows intro of an out-
of-court statement for a purpose other than to prove the truth of the matter
asserted.
(i) The judge will give the jury a limiting instruction to clarify.
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LXII. Authentication
A. Intro & Policy
1. Authentication is necessary to establish relevance.
2. Authentication offers the jury some assurance that a piece of evidence is genuine.
3. Authentication places the evidence in the proper context.
4. Authentication does not guarantee the identity of genuiness of any evidence.
5. Authentication does not establish compliance with other evidentiary rules.
B. The Rules
1. Rule 901: Requirement of Authentication and Identification.
i) The requirement of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.
ii) By way of illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of the rule
2. Rule 902: Self-authentication
i) Extrinsic evidence of authenticity as a condition precedent to admissibility is not required
with respect to the following
a) 12 categories of document are self-authenticating
3. Rule 903: Subscribing Witness’ Testimony Unnecessary
i) The testimony of a subscribing witness is not necessary to authenticate a writing unless
required by the laws of the jx whose laws govern the validity of the writing.
C. In the Courtroom
1. Distinctive Features
i) If a piece of evidence has distinctive characteristics, a witness familiar with the item can
identify it in court.
a) 901(b)(1) – Testimony of a witness with knowledge that a matter is what it is
claimed to be.
2. Chain of Custody
i) Parties often rely upon chain of custody to authenticate evidence.
ii) To demonstrate a chain of custody, the party calls a series of witnesses, each of whom
describes how they obtained the item and passed it to the next person in the chain.
iii) Parties also use chain of custody testimony to establish that the condition of evidence has
not changed in a way that would affect the case.
3. Handwriting
i) 5 avenues for authenticating handwriting
a) The person who authored the note or signature may identify the writing as her own
b) Some who saw the act of writing may identify the person who wrote or signed the
document
c) Expert witness may identify handwriting by comparing the disputed writing with a
sample that has been verified by other means
d) Trier of fact may compare the writings and draw their own conclusion
e) Allows lay person who is familiar with another person’s handwriting to identify that
handwriting in court.
4. Voice Identification
i) If a relevant transaction occurred by phone, a witness who participated in the transaction
may have to identify the other speaker by voice.
ii) Before playing a lawfully obtained recording in the courtroom, the proponent must identify
the speakers and provide other authenticating info.
iii) Any witness who is familiar with a person’s voice may identify that voice in court.
5. Photos and Videos
i) Any witness who is familiar with the photographed scene or videotaped events may
authenticate them.
ii) The witness performing the identification simply testifies that, based on his person
knowledge, the photo or video offers a fair and accurate representation of the scene
6. Public Records
i) Under Rule 902 some docs authenticate themselves, a party offering these docs does not
need to lay any foundation other than the doc
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ii) A party may introduce an original public doc from any fed, state, or local gov unit if that doc
bears both a signature attesting to the doc’s authenticity and the official seal of the gov unit.
a) The signature and seal substitute for live testimony authenticating the doc.
7. Newspapers and Periodicals
i) Newspapers and periodicals are also self-authenticating under 902(6).
a) A party may introduce a relevant newspaper or periodical w/o offering extrinsic
evidence that the periodical is what it purports to be.
b) Many newspaper articles and periodicals constitute inadmissible hearsay.
8. Business Records
i) Allows self-authentication of business records.
ii) A certificate satisfying the requirements of the business records exception also
authenticates the doc.
iii) Foreign records permits self-authentication only in civil cases.
9. Circumstantial Evidence
i) Parties may identify evidence through appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction with circumstances.
ii) Parties may rely on circumstantial evidence to authenticate telephone conversations or e-
mails.
a) Content of a conversation or e-mail provides 1 type of circumstantial evidence
about the identity of the speaker or author.
10. Evidence to Support a Finding
i) A party does not have to provide absolute proof of identity to authenticate evidence.
ii) Proponent only needs to offer enough info for a reasonable jury to conclude that the
evidence is genuine.
11. Admissions and Stipulations
i) In fed civil trial, parties authenticate most pieces of evidence before trial.
LXIII. Best Evidence

A. Intro & Policy
1. Rule 404 prevents the victim of an auto accident from proving the ∆s fault by arguing the ∆ had a
propensity to drive recklessly
2. The best evidence rule, contained in Art X of the fed rules, is an exception to this approach
i) When a party relies upon a writing, recording, or photo to prove contented of that doc,
article X requires the party to introduce the original doc.
3. The best evidence rule rests on 3 policies
i) Content of a writing, recording or photo is more detailed and difficult to describe than most
events or objects that witness relate in the courtroom
ii) Writings… are relatively easy to produce, especially since modern rules allow for liberal use
of duplicates
iii) Rule reduces opportunities for fraud and distortion
B. The Rules
1. Writings, Recordings, and Photos
i) Rule 1001: Definitions
a) For purposes of this article the following definitions are applicable:
(1) Writings and recordings. Writings and recordings consist of
(i) Letters, words, or numbers, or their equivalent
(ii) Set down by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic recording,
or other form of data compulation
(2) Photos. Photos include still photos, x-ray films, video tapes, and motion
pictures.
2. Offered to Prove the Content
i) Rule 1002: Requirement of Original
a) To prove the content of a writing, recording, or photo, the original writing, recording,
or photo is required, except as otherwise provided in these rules or by act of congress.
72
ii)2 Categories of cases in which parties prove the content of a writing…

a) Writing… has independent legal significance.
b) Writing… the party chooses an item falling in one of those categories as a
convenient option for proving some fact.
3. Requirement of an Original
i) Rule 1001(3)
a) For purpose of this article the following definitions are applicable:
(1) Original. An original of a writing or recording is
(i) The writing or recording itself or
(ii) Any counterpart intended to have the same effect by a person
executing or issuing it
(iii) An original of a photo includes the negative or any print therefrom
(iv) If data are stored in a computer or similar device, any printout or
other output readable by sight, shown to reflect the data accurately, is
an original.
4. Duplicates
i) Rule 1001(d)
a) For purpose of this article the following definitions are applicable
(1) Duplicate. A duplicate is a counterpart
(i) Produce by the same impression as the original, or
(ii) From the same matrix, or
(iii) By means of photography, including enlargements and minis, or
(iv) By mechanical or electronic re-recording, or
(v) By chemical reproduction, or
(vi) By other equivalent techniques
(2) Which accurately reproduces the original.
ii) Rule 1003: Admissibility of Duplicates
a) A duplicate is admissible to the same extent as an original unless
(1) A genuine question is raised as to the authenticity of the original or
(2) In the circumstances it would be unfair to admit the duplicate in lieu of the
original
5. Exceptions
i) Rule 1004: Admissibility of other evidence of contents.
a) The original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if –
(1) All originals are lost or have been destroyed, unless the proponent lost or
destroy them in bad faith, or
(2) No original can be obtained by an available judicial process or procedure,
or
(3) At a time when an original was under the control of the party against whom
offered, that party was put on notice by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and that party does not
produce the original at the hearing, or
(4) The writing, recording, or photo is not closely related to a controlling issue
6. Proof by Admission
i) Rule 1007: Testimony or Written Admission of Party
a) Contents of writings, recording, or photos may be proved
(1) By the testimony or depo of the party against whom offered or
(2) By that party’s written admission,
b) w/o accounting for the non-production of the original
7. Public Records
i) Rule 1005: Public Records
a) The contents of an official record, or of a doc authorized to be recorded or filed and
actually recorded or filed, including data compilations in any form, if otherwise
admissible, may be proved by
(1) Copy, certified as correct in accordance with rule 902 or
(2) Testified to be correct by a witness who has compared it with the original
73
b) If a copy which complies with the foregoing cannot be obtained by the exercise of
reasonable diligence then other evidence of the contents may be given
8. Summaries
i) Rule 1006: Summaries
a) The contents of voluminous writings, recordings, or photos which cannot
conveniently be examined in court may be presented in the form of a chart, summary or
calculation. The originals or duplicates, shall be made available for exam or copying, or
both, by other parties at reasonable time and place. The court may order that the be
produced in court.
9. Who decides?
i) Rule 1008: Functions of Court and Jury
a) When the admissibility of other evidence of contents of writings, recordings, or
photos, under these rules depends upon the fulfillment of a condition of fact, the
question whether the condition has been fulfilled is ordinarily for the court to determine
in accordance with the provisions of rule 104
b) However, when an issue raised
(1) Whether the asserted writing ever existed or
(2) Whether another writing, recording, or photo produced at trial is the original,
or
(3) Whether other evidence of contents correctly reflects the contents
c) The issues is for the trier of fact to determine as in the case of other issues of fact.
C. In the Courtroom
1. The most perplexing issues that arise under the best evidence rule occur when a party attempts to
prove a fact w/o reference to a writing, recording, or photograph, and the opponent claims that the party
should have followed the best evidence rule.
2. Resolution of these objections turns on what the party offering the evidence is trying to prove.
3. If the writing, recording or photo has independent legal significance, then the best evidence rule
compels production of the doc.
4. Payment may be proved w/o producing the written receipt.
LXIV. Role of the Jury

A. Intro & Policy
1. Jurors give the judicial process legitimacy
B. The Rule
1. Rule 606(b): Competency of Juror as Witness
i) Inquiry into validity or verdict or indictment. Upon inquiry into the validity of a verdict or
indictment, a juror may not testify as to
a) Any matter or statement occurring during the course of the jury’s deliberations or
b) To the effect of anything upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict or indictment or
c) Concerning the juror’s mental processes in connection therewith.
ii) But a juror may testify about
a) Whether extraneous prejudicial info was improperly brought to the jury’s attention
b) Whether any outside influence was improperly brought to bear upon any juror, or
c) Whether there was a mistake in entering the verdict onto the verdict form.
iii) A juror’s affidavit or evidence of any statement by the juror may not be received on a matter
about which the juror would be precluded from testifying.
C. In the Courtroom
1. Extraneous Info and Outside Influences
i) An influence is external only if it comes from outside the jury room rather than originating
with the jurors themselves.
ii) Allows inquiry into external influences on a verdict such as a juror conducting outside
research or investigation; jurors reading media accounts about the case; one of the jurors
possessing prior knowledge about a party or a witness that was not disclosed; jurors reviewing
docs or items that had not been admitted into evidence; and any kind of contact b/w jurors and
outsiders re: the case.
2. Testimony by Non-Jurors
74
i) Only restricts the competence of jurors to offer evidence about their decision making.
3. Mental Processes of Jurors
i) Precludes a juror from testifying about her thoughts and feelings during deliberations.
ii) A juror cannot testify that she felt threatened or pressured by other jurors
iii) Nor can the juror testify about what she believes she would have decided if other evidence
had been presented at trial.
iv) Even when a juror offers testimony about improper external influences, the judge will redact
any description of how the outside influences affected the juror’s mental processes or the jury’s
deliberations.
75

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Evidence - Casey.fall.2009 Arkansa

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I. Types of Courtroom Evidence

II. Federal Rules of Evidence: Why, Who, Where, When

III. Structure of a Trial

7. Δ’s Case-in-Rebuttal or Case-in-Rejoinder

IV. Raising and Resolving Evidentiary Objections

a) In jury cases, proceedings shall be conducted, to the extent practicable, so as to

VI. Prejudice, Confusion, or Waste of Time

VII. Subsequent Remedial Measures

B. Rule 407: Subsequent Remedial Measures

8. Other Purposes: Impeachment

VIII. Settlements and Offers to Compromise

a) To prove liability or non-liability

IX. Medical Expenses

X. Criminal Plea Bargaining

XI. Liability Insurance

XII. Putting a Witness on the Stand

XIII. Examining Witnesses

ii) This rule does not authorize exclusion of:

XIV. Refreshing a Witness’ Memory

XV. Impeaching Witnesses

XVI. Using Prior Statements to Impeach Witnesses

i) relevant to the case solely because it impeaches a witness

4. When Is an Issue Collateral?

XVII. Revealing Character on Cross-Examination

XVIII. Using Criminal Convictions to Impeach Witnesses

When Prejudicial Effect… Rule 403 Rule 609(a)(1)

iii) Crime of Dishonesty or False Statement/Any Witness

When Prejudicial Rule 403 Rule 609(a)(1) Rule 609(b)

4. Pardons, Annulments & Certificates of Rehabilitation

XIX. Opinion or Reputation Evidence of Untruthful Character

XX. Cross-Examining the Character Witness

XXI. Religious Beliefs and Impeachment

XXII. Rule of Completeness

XXIII. Character Evidence and the Rules

B. Four Categories of “Character Evidence”

XXIV. Evidence to Prove Character as an Element

XXV. Using Character Evidence to Prove Propensity

XXVI. Character Evidence to Show Propensity in Criminal Prosecutions

If the accused… Then the prosecutor can:

XXVII. Methods of Proving Propensity in Criminal Cases

b) 608(a) – allows parties to offer reputation or opinion testimony about a witness’s

XXVIII. Other Crimes, Wrongs, or Acts

i) Signature elements of a crime may allow a prosecutor to prove identity by introducing

b) 1 inadmissible purpose (propensity)

XXX. Rape Shield Law

f) Reputation evidence is admissible in civil cases involving alleged sexual

(i) 2 most common prohibited purposes are:

XXXI. Propensity in Sexual Assault and Child Molestation Cases

XXXII. Preliminary Determinations

2. Section (a): Questions of admissibility generally.

b) If a prosecutor or π offers evidence of other sexual assaults committed by the ∆,

XXXIII. What Is Hearsay and Why Don’t We Like It?

1. Rule 802: Hearsay Rule

XXXIV. The “Truth of the Matter Asserted”

XXXV. What is a Statement

XXXVI. Admissible Hearsay

i) Present sense impression

XXXVII. Hearsay Exemption – Prior Statements by Witnesses

Rule 613 Rule 801(d)(1)(A)

E. Admitting Prior Statements under Rule 801(d)(1)

Prior Inconsistent Stmt: Prior Consistent Stmt: Identification: 801(d)(1)(C)