Evidence Outline Table of Contents

I.

Checklists and Attack Sheets.............................................................................................................................................iii

II. Chart of Rules In Brief....................................................................................................................................................iv

III. Introduction to Evidence.....................................................................................................................................................1
IV. How the Trial Proceeds........................................................................................................................................................1
A. Burdens of Production and Persuasion...........................................................................................................................1
B. Presumptions: Rule 301 and County Court of Ulster County........................................................................................2
C. Order of Proof.................................................................................................................................................................3
V. Relevance...............................................................................................................................................................................4
A. Overview: Rules 401-403..............................................................................................................................................4
B. Character Evidence and Methods of Proving Character: Rules 404-405......................................................................4
C. Habit Evidence: Rule 406..............................................................................................................................................5
D. Subsequent Remedial Measures: Rule 407....................................................................................................................6
E. Settlements and Negotiations: Rule 408........................................................................................................................6
F.

Offers to Pay Medical Expenses: Rule 409....................................................................................................................6

G. Pleas and Plea Discussions: Rule 410............................................................................................................................6

H. Liability Insurance: Rule 411.........................................................................................................................................6
I.

Federal Rape Shield Law: Rules 412-413......................................................................................................................7

VI. Judicial Notice: Rule 201....................................................................................................................................................7

VII. Authentication and Identification.......................................................................................................................................8
A. Authentication: Rule 901...............................................................................................................................................8
B. Contents of Writings: The Best Evidence Rule..............................................................................................................9
VIII.

Real and Demonstrative Evidence.................................................................................................................................9

A. Overview Three Types of Evidence . . . each with different rules...............................................................................9

B. Real Evidence...............................................................................................................................................................10
C. Demonstrative Evidence...............................................................................................................................................10
IX. Testimonial Evidence..........................................................................................................................................................10
A. Competency..................................................................................................................................................................10
B. Questioning Witnesses..................................................................................................................................................12
C. Lay Witnesses...............................................................................................................................................................12
D. Expert Witnesses...........................................................................................................................................................13
E. Ultimate Issue Rule: Rule 704.....................................................................................................................................14
F.

Witness Credibility........................................................................................................................................................14
(1) Overview................................................................................................................................................................14
(2) Bolstering...............................................................................................................................................................14
(3) Impeachment..........................................................................................................................................................14
(4) Rehabilitation.........................................................................................................................................................16

X. Hearsay................................................................................................................................................................................17
A. Overview.......................................................................................................................................................................17
1

(1) Rule Against Hearsay: Rule 802...........................................................................................................................17

(2) Defining Statement.............................................................................................................................................17
(3) Some Out-of-Court Statements Are Not Hearsay: Rule 801(d)(1)-(2).................................................................18
(4) Crawford and the Sixth Amendment Confrontation Requirement........................................................................19
B. Exceptions to the Hearsay Rule....................................................................................................................................20
(1) Overview................................................................................................................................................................20
(2) Rule 803: Exceptions Regardless of Declarants Availability..............................................................................20
(3) Rule 804: Declarant Unavailable...........................................................................................................................23
C. Double Hearsay: Rule 805...........................................................................................................................................24
D. Attacking/Supporting Declarants Credibility: Rule 806.............................................................................................24
XI. Privileges.............................................................................................................................................................................24
A. Overview.......................................................................................................................................................................24
B. Marital Privileges..........................................................................................................................................................24
C. Attorney-Client Privilege..............................................................................................................................................25
D. Confidential Source Privilege for Reporters.................................................................................................................26
E. Psychotherapist-Patient Privilege.................................................................................................................................26
F.

Executive Privileges......................................................................................................................................................27

G. Other Common Privileges.............................................................................................................................................27

XII. Back-Up Materials.............................................................................................................................................................28

I.

CHECKLISTS AND ATTACK SHEETS

Test for introducing relevant evidence

1) Rule 401: does the evidence move the needle at all?
a) If no, were done.
b) If yes:
2) Rule 402: does the Constitution, a law, FRE, or Supreme Court holding state the evidence is inadmissible?
a) If yes, were done.
b) If no:
3) Rule 403: What is the probative value and how does it compare to the danger of unfair prejudice?
a) Equally valued in
b) Probative value outweighed by other dangers in
c) Probative value substantially outweighed by other dangers out
How to analyze a hearsay issue
1) Is the statement being offered for proof of the truth of the matter asserted?
a) If No, not a hearsay issue
b) If Yes, hearsay issue
2) Does the statement fall within one of the non-hearsay definitions in Rule 801(d)? The out-of-court declarant must be
available to take the stand and to be cross examined
a) Rule 801(d)(1): (A) prior inconsistent statement under penalty of perjury, (B) prior consistent statement and offered
to rebut an assertion of recent fabrication, (C) prior ID
b) Rule 801(d)(2): statement by a party opponent
3) Does an exception if the hearsay rule apply?
a) Rule 803 has to do with exceptions regarding whether the out-of-court declarant is available or not
b) Rule 804 has to do with exceptions when the out-of-court declarant is unavailable
4) Does the statement implicate any of the Supreme Courts holdings concerning the Confrontation Clause?

II. CHART OF RULES IN BRIEF

Number
104
105
201
301
302
401
402
403
404(a)(1)
404(a)(2)

404(b)(1)
404(b)(2)
405(a)
405(b)
406
407
408

501
601
602
607
608

609

610
611

612

Rule
Judges decide relevance; juries decide weight/probative value
Evidence can be admissible for one purpose and inadmissible for another purpose: if so, use a jury instruction
Courts (b) may take judicial notice of basic and adjudicative facts (c) on its own or on request of a party (d) at any point in
the proceeding but (f) must instruct the jury, in civil cases, that it must accept the fact as conclusive, and in criminal cases,
that it may/not accept the fact as conclusive
Presumptions in civil cases: party against whom presumption is directed has burden of rebutting the presumption but burden
of persuasion remains with party creating the presumption
Apply state law to presumptions in civil cases
Relevance evidence (1) tends to make a fact more/less probable and (2) is consequential to the action
Relevant evidence is admissible unless U.S. Constitution, a federal statute, FRE, or SCOTUS says otherwise
Court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice
Forbidden character evidence rule
Exceptions for forbidden character evidence rule in criminal cases: (1) D may offer evidence of own pertinent trait, but
government may rebut it; (2) D may offer evidence of Vs pertinent trait, but government may rebut it with evidence of Ds
same trait; (3) in homicide cases, D may introduce evidence that V was first aggressor, but government may rebut by
evidence of Vs peacefulness; (4) Rules 607-609 permit evidence if Ws character.
Evidence of a crime, wrong, or other act is not admissible to prove a persons character to show person acted in accordance
with that character on a particular occasion, but may be admissible to show modus operandi.
Exception to Rule 404(b)(1) in criminal cases for showing motive, intent, opportunity, absence of mistake, but government
must provide notice of intent to use the evidence at Ds request.
Prove character evidence by (1) opinion or reputation on direct and (2) opinion, reputation, or specific instances of conduct
on cross
If character is an element of a charge, claim, or defense, prove character evidence by specific instances of conduct
Evidence of habit may be admissible to prove person acted in accordance with the habit on a particular occasion
Evidence of subsequent remedial measures is inadmissible to prove negligence, defects in product liability cases, or other
culpability; but court may allow it for impeachment purposes
(a) Evidence of statements from settlement negotiations (except where government was a party) and that a settlement was
offered or accepted is inadmissible to prove/disprove validity of a claim or for impeachment.
(b) However, court may allow evidence related to settlements and negotiations (1) to prove Ws bias, (2) negate a
contention of undue delay, and (3) prove obstruction in a criminal investigation/prosecution.
The common law, as interpreted by the courts in light of reason and experience, governs a claim of privilege unless the
Constitution, a federal statute, or SCOTUS rules provide otherwise. In civil actions where state law governs, privilege shall
be determined in accordance with state law
Every person is presumed competent to testify. State law governs competency in civil cases.
Lay witnesses can only testify about information about which they have personal knowledge
Any party may attack a witnesss credibility
(a) Allows evidence of character for truthfulness or untruthfulness by reputation or opinion testimony. However, evidence
of truthful character only admissible if the witnesss character for truthfulness has been attacked by opinion or reputation
evidence
(b) No extrinsic evidence to prove specific instances of conduct for character for untruthfulness on direct. May inquire into
specific instances of conduct on cross.
(a) (1) Must admit evidence of prior conviction to show character for untruthfulness for felonies or capital crimes in a) civil
cases where witness is not a D, subject to 403 screen, and in b) criminal cases against criminal D if probative value
outweighs prejudicial effect
(a) (2) Allows evidence of prior conviction in which untruthfulness/deceit was an element of the offense or the manner in
which the witness committed the offense involved deceit
(b) Can only impeach about conviction more than 10 years in past if
(c) Evidence of pardons are inadmissible
(d) Evidence of juvenile adjudication inadmissible unless necessary to prove guilt or innocence
(e) Can impeach truthfulness with evidence of prior conviction even if the conviction is up for appeal
Evidence of religious beliefs or opinions are not admissible to show witnesss credibility is impaired or enhanced, but
admissible to show bias
(a) Judges should exercise reasonable control over examination of witnesses and presentation of evidence
(b) Scope of cross limited to scope of direct and questions about witness credibility
(c) Leading questions allowed on cross, allowed on direct when required to develop testimony (e.g., complex technical
testimony), or if party calls a hostile witness, adverse party, or witness affiliated with adverse party
Writings can be used to refresh a witnesss recollection [present recollection refreshed], but adverse party can inspect and
cross-examine witness about it

Number
613
701
702

703
704
705
801(a)
801(c)
801(d)

802
803

804

805
806
901

1001
1002
1003
1004
1006

Rule
Can impeach a witness by prior inconsistent statements and do not need to show the statement or disclose its contents to the
witness. Extrinsic evidence, though, is inadmissible, unless witness can be recalled and given the opportunity to answer
questions about it or if needs of justice otherwise apply.
Lay witnesses can give opinion testify if the opinion is (1) rationally based on the witnesss perceptions, (2) helpful to clearly
understanding the witnesss testimony or to determine a fact at issue, and (3) not based on some kind of specialized
knowledge (within the scope of 702).
Expert witness qualified by knowledge, skill, training, or education may provide opinion testimony if (1) experts specialized
knowledge will help jury understand the evidence, (2) testimony based on sufficient facts or data, (3) testimony is product of
reliable methodology, and (4) expert reliably applied methodology to data.
Apply the Daubert factors: (1) has methodology been tested; (2) what is the error rate; (3) has theory been subject to peer
review; and (4) is the methodology generally accepted in the scientific community
Experts can base opinions on facts they have observed or facts made known to them. If the facts would otherwise be
inadmissible, the proponent may disclose them only if their probative value substantially outweighs their prejudicial.
(a) Experts and lay witnesses can state their opinions or make inferences about the ultimate issue
(b) Experts cannot state opinion about whether criminal D had mental state constituting element of charged offense or
defense to charged offense
Experts can state opinions without first explaining the underlying facts/data
Statements are (1) oral or written assertions or (2) nonverbal contact if intended by the person as an assertion
Hearsay is an out of court statement offered to prove the truth of the matter asserted
(1) Prior inconsistent statements made under penalty of perjury, prior consistent statements made to rebut a charge of recent
fabrication, and prior ID testimony are not hearsay and are admissible, provided declarant is in court and available for
cross-examination
(2) Prior statements by a party opponent are not hearsay if offered against the party opponent (a) as an admission or (b) an
adopted admission (but evidence of silence after receipt of Miranda warnings is inadmissible); or (c) a person
authorized, (d) an authorized agent of the party opponent (respondeat superior), or (e) a co-conspirator made the
statement
Hearsay is inadmissible unless as provided by (1) the FRE, (2) rules prescribed by SCOTUS pursuant to statutory authority,
or (3) an Act of Congress
Exceptions to the hearsay rule irrespective of whether the out-of-court declarant is/not available to testify for (1) excited
utterances, (2) present sense impressions, (3) then-existing mental, emotional, or physical state [state of mind], (4) statements
made for purpose of medical diagnosis or treatment and medical history describing symptoms and general cause, (5) past
recollection recorded, (6) business records, (7) absence of record of regularly conducted activity, and (8) public
records/reports.
(a) Unavailable means declarant (1) is exempt because of privilege, (2) refuses to testify despite court order, (3) testifies
to lack of memory, (4) unable to be present because of death or then-existing illness, or (5) is absent and proponent
cannot procure attendance by process or other means [testimony is absent].
(b) Exceptions to the hearsay rule when the declarant is unavailable for (1) prior testimony against a party who had previous
motive and opportunity to develop the testimony, (2) dying declarations in homicide and civil cases, and (3) statements
against interest [similar to adoptive admission but declarant is unavailable]
Double hearsay not inadmissible, provided have exception to each of the combined statements
Hearsay statements plus statements described in Rule 801(d)(2)(C)-(E) are admitted, can attack the declarants credibility,
and the court may admit evidence of an inconsistent statement even if the declarant does not testify
(a) To authenticate evidence, proponent must provide sufficient evidence to prove the evidence is what the proponent claims
it to be
(b) Examples of ways to authenticate documents
(1) Testimony of a witness with knowledge
(2) Lay opinion about handwriting
(3) Comparison by expert witness or trier of fact
(4) Distinctive characteristics (and the like)
(5) Opinion about a voice
(6) Evidence about a phone conversation
Defines writings, recordings, photographs, originals, and duplicates
To prove the content of a writing, recording, or photograph, must produce the original unless the FRE or a federal law says
otherwise
Exception to the original writings rule (1002) to admit duplicates of originals
Exception to Rule 1002 to admit evidence of contents of original writing if the original writing is lost or destroyed, unless it
was lost or destroyed as a result of bad faith
Exception to Rule 1002 to admit summaries of voluminous writings; summary goes to the jury (whereas chart of
demonstrative evidence may not)

III. INTRODUCTION TO EVIDENCE

A. EVIDENCE IS ABOUT PROVING SOMETHING/MOVING THE NEEDLE.
(1) Relevance = Moves the needle upwards: Relevance is a necessary but not sufficient condition of
admissibility: all relevant evidence (admissible under 402) is subject to a screen under Rule 403.
(2) Rule 104: Judges decide preliminary questions of admissibility, but juries decide the weight of the evidence
(3) Rule 105: Evidence can be admissible against a party for one purpose but inadmissible against the party for
another purpose; in such cases, courts must restrict the evidence to its proper scope and instruct the jury.
a. Note: If evidence is admissible for one purpose but, for another purpose, the danger of unfair prejudice
substantially outweighs the probative value, it is inadmissible for all purposes under Rule 403.
B. KEY MOTIONS
(1) Civil
a. Motion to dismiss (pre-trial): failure to state a claim upon which relief can be granted
b. Motion for judgment as a matter of law (during trial; some states call it a directed verdict): could a
reasonable juror find for the P on every element of the Ps case by a preponderance of the evidence?
(2) Criminal
c. Motion for judgment of acquittal: could a reasonable juror find for the government on every element of the
offense beyond a reasonable doubt (filed by D)?
d. No motion for conviction: D has a Sixth Amendment right to a jury regardless of the evidence presented.
C. SUPREME COURT ROLES RE: EVIDENCE: Final arbiter of (1) what the Rules of Evidence mean (interprets rules),
(2) constitutional issues (Constitution always trumps state/federal statutes and rules of evidence), and (3)
determination of scope of a rule where Congress has not been specific (particularly with privileges).
IV. HOW THE TRIAL PROCEEDS
A. BURDENS OF PRODUCTION AND PERSUASION
(4) Burden of Production (i.e., Burden of Going Forward)
a. Overview
(1) Burden of production: based on what the reasonable jury would do, not what the actual jury will do
(a) Civil case: reasonable jury could find for P on every element of Ps case by a preponderance of
the evidence
(b) Criminal case: reasonable jury could find for the government on every element of the
governments case beyond a reasonable doubt
(2) Background: obligation of a party to produce evidence sufficient to enable a reasonable jury to find
the existence or nonexistence of every element of the case; juries are not allowed to render verdicts on
grounds that lack reasonable evidentiary support.
(3) History: pre-1800, no equivalent to the directed verdict, but two devices permitted raising questions of
ones opponents evidence: (1) demurrer to the evidence (courts decision resulted in a final
judgment); and (2) motion for a new trial (did not entail a loss of the right to introduce evidence but
also did not result in a final adjudication by the court). Directed verdicts available in the U.S. by at
least 1850 and permitted challenge of the legal sufficiency of an opponents evidence without waiver
of the right to rebut evidence.
b. Two Kinds of Evidence
(1) Direct Evidence
(a) Definition: evidence that directly proves a fact without an inference or a presumption.
1. Example: A sees B pull trigger and shoot a bullet in Bs chest
2. With some exceptions (esp. in criminal cases or as required by statute), direct evidence by a
single witness affirming existence of an elemental fact will satisfy the burden of production.
(b) Ways to Contradict Direct Evidence
1. Evidence contradicted by physical facts
2. Evidence contrary to law of nature
a. Quantity less important than quality of evidence, especially where evidence does not
make sense by the laws of nature (Scott v. Hansen: error in not directing verdict for D
when Ps witness testified a cow bounced 30 feet in the air and hit the car)
(2) Circumstantial Evidence
(a) Definition: generally, evidence that requires an inference or presumption.
1. To be clear, virtually all evidence requires some kind of inference.
(b) Treat direct and circumstantial evidence the same: A party with the burden of proof can prevail
in a case based on circumstantial evidence when the evidence establishes the conclusion sought
and outweighs in the mind of the fact-finder other inconsistent evidence and conclusions.
1

(c) Examples
1. Proper to deny Ds motion for acquittal where jurors could reasonably infer D, who drove car
away from bank and ran from police, was an accomplice to robbery (United States v. Nelson).
2. Improper to direct nonsuit for phone company accused of negligence in not supporting a
conduit and for causing sewage to seep into Ps basement where Ps evidence meant jury
could have found the conduit crushed the lateral (Smith v. Bell Tel. Co. of Pennsylvania).
3. District court did not err in directing a verdict (JML) for bank where Ds case was inadequate
to prove fraud by a preponderance of the evidence (Colthurst v. Lake View State Bank).
c. Burden of main fact (Ps claim) does not change; burden of production may change/shift during trial.
(1) Once P puts on case-in-chief, burden of producing evidence shifts to D to make evidence co-equal or
otherwise leave the proof in equilibrium (D does not need to surpass the 50% line). Then, the burden
of production shifts back to P to overcome the equilibrium.
(5) Burden of Persuasion
a. Three burdens of persuasion:
(1) Negligence cases preponderance of the evidence (51%)
(a) Example: P did not sustain burden of persuasion and show Ds negligence by a preponderance of
the evidence where P and Ds evidence of who caused the collision between Ps trolley coach and
Ds truck and trailer was in direct and irreconcilable conflict (Delaware Coach Co. v. Savage).
(2) Quasi-criminal cases clear and convincing (think ~75%: has a convincing effect on the observer)
(a) Rationale: Quasi-criminal conduct, like fraud, contains the same stigma as criminal activity;
therefore, even in civil fraud cases, the proponent is usually held to a higher burden of persuasion.
(b) Example: The burden of persuasion for common law deceit (fraud) requires the proponent to
prove each of the elements of deceit by clear and convincing evidence; general and punitive
damages arising out of that deceit require proof by a preponderance of the evidence (Riley Hill
Gen. Contractor, Inc. v. Tandy Corp.: fraud claim against computer manufacturer).
(3) Criminal cases beyond a reasonable doubt (think ~90%: almost certain)
(a) Constitutional safeguard: Due Process Clause of the Fourteenth Amendment protects an accused
in federal or state court against conviction except upon proof beyond a reasonable doubt of every
element of the charged offense (In re Winship, U.S. 1970: juvenile charged with larceny).
(b) Rationale: Promotes social utility: an individuals liberty is at stake in a criminal trial while only
damages are at stake in civil proceedings; we care about ensuring innocent people do not have
their liberty taken from them (Harlan, J., concurring, in In re Winship).
B. PRESUMPTIONS: RULE 301 AND COUNTY COURT OF ULSTER COUNTY
(6) Overview: Presumptions = legal standards the court or legislature has set up
a. Types of Presumptions
(1) Procedural expedient
(a) Example: presumption as to survivorship of H and W who die in common disaster means survivor
does not have to go through probate twice
(2) Rule of proof production based on comparative availability of material evidence to respective parties
(a) Example: rule requiring persons on trial for doing certain acts which are illegal if done without a
license to produce evidence they belong to the class privileged by license
(3) Conclusion based on wide human experience
(a) Example: child born during wedlock of its parents is legitimate
(4) Combination of (1) and (3).
(a) Example: presumption that debt is paid after a lapse of a definite long period of time
(5) Social policy
(6) Permissive inference
(a) Typically used in criminal cases: see County Court of Ulster County v. Allen.
b. All presumptions concern the relationship of two facts
(1) Basic facts and presumed facts
(a) Basic facts: start with and prove first
1. If you dont prove the basic fact, you cannot move on to the presumed fact
2. If you do prove the basic fact, the presumed fact is 100% established
(b) Presumed facts
(2) Types of relationships
(a) Federal approach: three main relationships
1. Conclusive presumption (prima facie case): If you prove the basic fact and nothing is
provided to rebut it, the presumed fact is true.

2.

Rebuttable presumption: If you prove the basic fact and northing is provided to rebut it,
presume the presumed fact is true, but other side may rebut that presumption.
3. Permissible inference: If you find the basic fact, you are permitted but not required to find
the presumed fact.
(b) Some states use the Morgan Doctrine: Even if D comes forth with evidence rebutting the
presumed fact, P still has benefit of reversing burden of persuasion on the presumed fact.
1. If you find the basic fact, directed that D has the burden of persuasion on the presumed fact
(c) Exception: res ipsa loquitur: do not have to go through all of the elements of proof
1. Presumption: If you find the goods were in good condition initially, damaged when
delivered, and no evidence to the contrary, you are directed to find the railroad negligent
2. Permissible inference: If you find the goods were in good condition initially, damaged when
delivered, and no evidence to the contrary, you may find the railroad negligent
(7) Thayer Doctrine of Presumptions = Bursting Bubble Approach: a presumption, once countered,
disappears like a bat of the twilight (federal approach)
a. Presumption in a Civil Case
(1) Rule 301: Presumptions in civil cases: The party against whom a presumption is directed has the
burden of producing evidence to rebut the presumption, but the burden of persuasion remains with the
party who created the presumption.
(a) Mechanics: federal court with federal claim, with a basic fact and a presumed fact
1. P offers evidence to prove basic fact. Burden of production to rebut presumed fact shifts to D.
a. Per Rule 301, if D does not offer anything, jury instructed that if it finds the basic fact, it
is directed to find the presumed fact.
b. If D offered enough evidence to rebut the presumed fact (jury could find for D on the
presumed fact), then the presumption is destroyed. Jury instructions to find for P if jury
finds P proved each element of Ps case by a preponderance of the evidence.
(b) Example negligence: In some jurisdictions, showing a rear-end collision and the circumstances
under which it occurred gives rise to a presumption of negligence in the absence of rebuttal
(McNulty v. Cusack: D drove car into rear of Ps car).
(c) Example suit for double indemnity from purported accidental death: Proper to direct a verdict
for D-insurance company where D destroyed presumption of accidental death by showing P was
committing a felony at the time of the shooting (OBrien v. Equitable Life Assur. Socy).
(2) Rule 302: Applying state laws to presumptions in civil cases: In a civil diversity case in federal
court, apply state law to determine the effect of a presumption.1
b. Presumption in a Criminal Case
(1) Rule 301 does not apply in criminal cases: Rule 301 says if trier of fact finds the basic fact and no
evidence is offered to rebut it, then s/he must find the presumed fact. Rule 301 does not apply in
criminal cases because of the 6th Amendment: government always has the burden of persuasion.
(2) Rule: In criminal cases, the jury receives a permissive presumption if the government shows a rational
relation between the basic and the presumed facts (County Court of Ulster County v. Allen, U.S. 1979:
trial court did not err in instructing jury of permissive presumption that, if it found a gun was in the car,
it was possessed by all of the occupants and not just the girl).
C. ORDER OF PROOF
(8) General Rule: Right to open and close belongs to the party with the burden of persuasion on the main issue
(usually P-civil case or prosecutor/government-criminal case).
a. Caveats
(1) Affirmative Defenses/Counterclaims: In an affirmative defense, P has the right to rebut Ds newly
introduced evidence and to have that evidence considered by the jury, but D has the right to close
(Liptak v. Security Benefit Assoc.: D who filed affirmative defense in benefits case should not have
been denied right to close; Seguin v. Berg: car collision with claim/counterclaim for damages).
(2) Judge has discretion in controlling how a case proceeds: Trial judge must be given broad latitude in
the control of causes before him; generally, appellate courts will only review for abuse of discretion.
b. Process
(1) P presents case and rests.
(a) P moved for JML: Denied because D has not had the opportunity to present his case.
(b) D moves for JML: If judge thinks P has moved the needle beyond the 50% line, denied.
(2) D presents case and rests.
(a) P moves for JML (might be granted); or

1 Per Erie, 3 places where we look to state law for the FRE: (1) presumptions, (2) competence, and (3) privileges.
3

(b) P has time for rebuttal, esp. if D raised affirmative defense and to respond to new issues D raised.
(3) At end of Ps rebuttal, either party or both parties could move for JML
(a) Or, if D raised an affirmative defense/counterclaim, D has time for surrebuttal.
(9) Rule 611: Mode and Order of Examining Witnesses and Presenting Evidence:
a. 611(a): Courts should exercise reasonable control over the mode and order of examining witnesses and
presenting evidence.
b. 611(b): Cross-examination is limited to issues raised on direct examination and issues reasonably related
to witness credibility. However, the court may allow inquiry into additional matters as if on direct
examination.
(1) Rationale for limiting scope of cross: (1) impossible for judges to decided on relevance of questions
put on by D; (2) possibly unjust to interrupt examination of Ps witnesses; and (3) concerns for judicial
economy (Atkinson v. Smith: D could not ask questions of Ps witnesses during that were unrelated to
the scope of Ps direct examination; D could bring up the issues in Ds case in chief).
(2) Caveat: Cross-examiners may inquire into issues not mentioned on direct if the issues are related to
and made relevant by the precise subject of the direct examination (United States v. Lara: D-gang
members failed strategy of answering questions on direct only related to one crime of conspiracy).
c. 611(c): Leading questions should not be used on direct examination, but court should allow them (1) on
cross and (2) when a party calls a hostile witness, adverse party, or witness identified with an adverse party.
V. RELEVANCE
A. OVERVIEW: RULES 401-403
(10) Rule 401: Relevant evidence (a) tends to make a fact more/less probable and (b) is consequential in the action.
a. Relevance = moves the needle: necessary but not a sufficient condition for admissibility of evidence.
Moving the needle from 10-11% likelihood works for relevance purposes.
(11) Rule 402: Relevant evidence is admissible unless any of the following provides otherwise: (1) U.S.
Constitution; (2) federal statute; (3) FRE; or (4) other rules prescribed by the Supreme Court.
a. Example: Introduction of evidence that reveals the name and basic nature of a prior conviction for a D
charged with felon in possession of a firearm unfairly prejudices the D (Old Chief v. United States, U.S.
1997: government should not have been permitted to introduce evidence of Ds prior judgment record and
admission that he had once been imprisoned for a period exceeding one year).
(12) Rule 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.
a. 403 Screen: virtually every piece of evidence must pass a 403 screen (or test of being relevant)
b. Key terms
(1) Probative value: how far the needle moves (weight)
(2) Unfair prejudice: jury will take the information for an inadmissible purpose
c. Rule favors admissibility: if probative value equals or is outweighed by a danger of unfair prejudice, the
relevant evidence comes in..
(13) Example: Application of Rules 401, 402, and 403: Evidence of financial worth generally is inadmissible
against an adverse party (City of Cleveland v. Peter Kiewit Sons Co.: error to introduce evidence contractor
could have paid damage fee to city for collapsed bridge because was irrelevant [failed 401] and substantially
prejudiced D [failed 403]; State v. Mathis: evidence of D-found with rings poverty inadmissible to show
motive in crime involving financial gain).
a. Caveat: financial worth of non-adverse party: Evidence of financial worth may be admissible respecting
a non-party because it does not unfairly prejudice a party in the case (Plumb v. Curtis: evidence of third
partys poverty relevant to show agency and responsibility for purchase of building materials).
b. Caveat: parties sometimes can introduce evidence of their own poverty: Evidence of ones own financial
worth may be relevant to show defense (Hall v. Montgomery Ward & Co.: Ps poverty relevant to show P
did not steal from former employer).
B. CHARACTER EVIDENCE AND METHODS OF PROVING CHARACTER: RULES 404-405
(14) Overview: Two Basic Types of Character Evidence: (1) evidence of substantive character, e.g., character for
being a law-abiding citizen, character for being violent; (2) character for truthfulness, i.e., propensity to lie or to
tell the truth (important when talking about witnesses).
(15) Key Rules
a. 404(a)(1): Evidence of a persons character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait.
(1) Rationale: Character evidence is presumptively injurious and might not even be relevant (Beach v.
Richtmyer: trial judge erred in admitting evidence that V in fatal car accident had moral character).
4

b. 404(a)(2): Exceptions in criminal cases

(1) Criminal D may offer evidence of Ds own pertinent trait; if admitted, government may offer evidence
to rebut Ds evidence.
(a) Scope of governments rebuttal reasonable connection: When criminal D introduces evidence of
his reputation for peacefulness, government may cross D by introducing evidence of Ds previous
acts of misconduct if they have a reasonable connection with Ds evidence (Broyles w.
Commonwealth: evidence of Ds priors for drunk driving enough for reasonable connection).
(b) Examples
1. Drug use: After D opened the door by offering evidence that D never used drugs, government
on cross could rebut by offering evidence that D was a drug abuser (State v. Renneberg).
2. Good character: Trial court erred in excluding evidence of Ds good character because, when
considered with other evidence, evidence of good character could create reasonable doubt D
was guilty of the offense, but D could not prove good character with evidence of specific
instances (Edgington v. United States, U.S. 1986).
(2) Victim in criminal case: Subject to the exceptions in Rule 412 (rape shield law), D may offer
evidence of the Vs pertinent trait; if admitted, government offer evidence to rebut Ds evidence an
offer evidence of the Ds same trait.
(a) Admissibility depends on the type of evidence being offered:
1. Prove Ds state of mind, e.g., evidence that D knows or has heard about the V to show D
thought D was in danger because D knew V was a violent person
2. Testimony about Vs character to prove V more likely the first aggressor
(3) Homicide cases: If D alleges V was the first aggressor and D acted in self-defense, government may
offer evidence of Vs trait of peacefulness.
(a) Example: Harmful error to deny D who claimed self-defense in murder trial from introducing
testimony that V had mental illness and could be belligerent or psychotic (Evans v. United States).
(4) Witnesses: Rules 607-609 permit the introduction of evidence about a witnesss character.
c. 404(b)(1): Evidence of a crime, wrong, or other act is not admissible to prove a persons character to show
that on a particular occasion the person acted in accordance with that character.
(1) Use a jury instruction: You may use the evidence as evidence of Ds modus operandi, but not as
evidence of Ds character.
(2) Fourth Circuit test for admissibility of modus operandi evidence: Whether the evidence
(a) Relevance: is directed toward establishing a matter at issue other than Ds propensity to commit
the charged offense.
(b) Necessity: is an essential part of the charged offense or furnishes part of the context of the crime.
(c) Reliability: is corroborated in some fashion, e.g., by judgment of conviction, tape, or audio
(d) Incorporates Rule 403: probative value substantially outweighs the danger of unfair prejudice
(3) Examples: Admit evidence of prior robbery conviction permitting inference of a pattern (United
States v. Robinson); do not admit hearsay of statement that D alleged talked about special recipe for
cooking cocaine in conspiracy to distribute cocaine prosecution (United States v. Hernandez).
d. 404(b)(2): Exceptions (to Rule 404(b)(1)) in criminal cases: Evidence of a persons crime, wrong, or
other act may be admissible to prove motive, opportunity, intent, absence of mistake, or lack of accident,
provided, on request of the D, the prosecutor provides notice of the intent to use such evidence before trial.
e. 405: Methods of Proving Character
(1) 405(a) By Reputation or Opinion: When evidence of a persons character or character trait is
admissible, it may be proved by testimony about the persons reputation or by testimony in the form of
an opinion. On cross-examination of the character witness, the court may allow an inquiry into
relevant specific instances of the persons conduct.
(2) 405(b) By Specific Instances of Conduct: When a persons character or character trait is an essential
element of a charge, claim, or defense, the character or trait may also be proved by relevant specific
instances of the persons conduct.
C. HABIT EVIDENCE: RULE 406
(16) Rule 406: Evidence of a persons habit or of an organizations routine practice may be admitted to prove on a
particular occasion the person or organization acted in accordance with the habit or routine practice. The court
may admit the evidence regardless of whether it is corroborated or whether there was an eyewitness.
a. Habit/routine practice = Routine, almost unconscious, response to a specific, repeated situation.
b. Rationale: Habit evidence is considered to be probative as the uniformity of the habit outweighs concerns
about the consistency with which particular conduct conforms to that habit
c. No bright line between character evidence and habit: Four prior convictions for public intoxication
spanning 3.5 years insufficient to prove habit (Reyes v. Missouri Pacific R.R.).
5

D.

E.

F.

G.

H.

(17) Examples
a. Individual habit: Court should have admitted evidence from Vs wife in wrongful death suit that V had a
habit of not crossing a train track without first stopping the car (Missouri-Kansas-Texas R.R. v. McFerrin).
b. Organizations custom: Trial court correctly admitted evidence of companys custom of checking truck
units each days in wrongful death action because the evidence had probative value respecting what, if any,
inspection the truck would normally receive and still left open to the jury the question of whether the truck
was inspected on the day in question (Eaton v. Bass).
SUBSEQUENT REMEDIAL MEASURES: RULE 407
(18) Rule 407: evidence of subsequent remedial measures is inadmissible to prove negligence, a defect in a product
liability case, or culpability, but the court may allow introduction of the evidence for impeachment purposes.
(19) Purpose: policy to encourage people/companies/etcetera to take safety precautions
(20) Classic case: P is in a traffic accident and alleges D drove with faulty brakes. P wants to introduce evidence
that, the next day, D went to the mechanic to get his brakes fixed. Would not come in under Rule 407.
a. Exception for impeachment purposes: P alleges a car was defective and sues the manufacturer.
Manufacturer puts on chief of engineering who says the car was the safest possible design, but P has
evidence that the manufacturer changed the model a week after the accident. Ds engineer opened the door,
thus permitting P to impeach the witness with evidence of the change in the model.
(21) Applies to Ps and Ds: Court properly excluded evidence of remedial measures taken by P-NWA after one of
its planes crashed during takeoff, even though admission would not deter remedial measures, because possible P
repaired the item to create helpful evidence against D-manufacturer (In re Air Crash Disaster: Rule 407 did not
bar evidence of remedial changes made by flight director after product was designed but before accident).
SETTLEMENTS AND NEGOTIATIONS: RULE 408
(22) Rule 408:
a. 408(a): Evidence a settlement was offered or accepted and evidence of statements and conduct in
settlement negotiations (except in criminal cases where the government is a party to the negotiations) is
inadmissible for (1) providing/disproving validity or amount of a claim and (2) impeachment by prior
inconsistent statement.
b. 408(b): Exceptions: Court may allow evidence of settlement offers/acceptances and of statements and
conduct in settlement negotiations (1) to prove Ws bias/prejudice, (2) negate a contention of undue delay,
and (3) to prove obstruction in a criminal investigation/prosecution.
(23) Applies when dispute existed prior to filing of formal complaint: Thus, must determine (1) whether a dispute
existed and (2) where/when compromise negotiations commenced.
(24) Purpose:
a. Policy favoring settlement: broad, covers any dispute, does not require litigation or threat of litigation
(AMI v. ALCOA: proper to exclude internal documents and testimony re: settlement negotiations).
b. Evidence of settlement is of questionable probative value (and might confuse the jury): may reflect a
desire to resolve litigation, rather than litigants perceptions of strength or weakness of their relative
positions (McInnis v. A.M.F., Inc.: error to introduce evidence of D-manufacturers settlement with driver
of motorcycle before P-injured party sued D because clear D wanted jury to conclude the other driver was
solely responsible for the accident).
OFFERS TO PAY MEDICAL EXPENSES: RULE 409
(25) Rule 409: Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury.
(26) Purpose: similar to Rule 408: broad scope because we want to encourage people to pay for medical expenses.
PLEAS AND PLEA DISCUSSIONS: RULE 410
(27) Rule 410: Evidence of (1) guilty pleas that were later withdrawn, (2) pleas, (3) statements made during
proceedings on guilty pleas, and (4) discussions with the prosecuting authority during plea proceedings are not
admissible against the D who made or participated in the plea.
(28) Purpose: Similar to Rules 408 and 409: broad scope to encourage effective compromise negotiations.
(29) Does not apply to conversations with cops: If D has a friendly conversation with a cop where he admits
being guilty, Rule 410 does not bar the introduction of the statement, provided a prosecuting authority was not
present when the statement was made.
LIABILITY INSURANCE: RULE 411
(30) Rule 411: Evidence of carrying liability insurance coverage is not admissible to prove negligence or wrongful
conduct, but it may be admitted to prove a witnesss bias or to prove agency, ownership, or control.
(31) Purpose: Evidence of liability insurance and ability to pay damages is a distracting issue that might have a
prejudicial effect (Reed v. General Motors Corp.: error to admit evidence that driver in a vehicular negligence
case had liability insurance because evidence of a Ds ability to pay damages introduced into the jurys damages
determination a distracting issue).
6

I.

FEDERAL RAPE SHIELD LAW: RULES 412-413

(32) Rule 412 = Federal Rape Shield Law: Almost definitely a Rule 412 question on the exam
a. 412(a): In general, in a civil or criminal proceeding involving alleged sexual misconduct, (1) evidence
offered to prove that a V engaged in other sexual behavior and (2) evidence offered to prove a Vs sexual
disposition is not admissible.
(1) Rationale: Developed from years of defense accusations that rape Vs, based on their sexual history,
were likely to have consented to sexual contact: do not want to suggest to jury that V is promiscuous.
b. 412(b): Exceptions:
(1) Criminal cases: Court may admit:
(a) Evidence of specific instances of Vs sexual behavior if offered to show someone other than D was
the source of semen, injury, or other physical evidence
(b) Evidence of specific instances of Vs past sexual behavior with D if offered by D to prove consent
or if offered by the prosecutor
(c) Evidence whose exclusion would violate Ds constitutional rights
1. Exclusion of evidence of Vs relationship to her boyfriend in Ds criminal case for rape would
violate Ds constitutional right to confront his accuser because D wanted to use the evidence
to argue V had a motive to lie (Olden v. Kentucky, U.S. 1988).
(2) Civil cases
(a) Court may admit evidence to prove Vs sexual behavior or sexual predisposition if its probative
value substantially outweighs danger of harm to any V and of unfair prejudice to any party.
(b) Court may admit evidence of Vs reputation only if V has placed it in controversy.
c. 412(c): Procedure for Determining Admissibility
(1) Party must file a motion that describes the evidence and purpose for which it is being offered
(2) Judge must conduct an in camera hearing and give the V and parties a right to attend and to be heard.
(a) Judge does not have to admit the evidence after conducting an in camera hearing of the evidence
(United States v. Azure: judge did not err in declining to admit evidence that minor V had had sex
with a boy in Ds trial for carnal knowledge of a minor after in camera inspection).
(33) Minority View Ds Knowledge and State of Mind: Minority of jurisdictions allow introduction of evidence
that D knew/had notice of the rape Vs reputation in advance of alleged crime and that knowledge influenced
Ds state of mind (Doe v. United States: error to admit evidence of Vs past sexual behavior, except evidence of
Vs past conversations with D and Ds knowledge of Vs sexual past, which was relevant to show Ds intent).
a. Note: This view has been sharply criticized but remains the law in some jurisdictions.
(34) False Accusations of Rape
a. Rule (several courts): Rule 412(a) does not bar introduction of evidence of past demonstrably false
accusations of sexual assault (Redmond v. Kingston: court erred in denying evidence of Vs past recantation
of rape allegation where V recanted prior story after admitting she lied to get her moms attention).
(1) Rationale: Affects Vs credibility. Not really a Rule 412 issue because it is not about prior sexual
conduct; if anything, about the Vs lack of prior sexual conduct.
(35) Accuseds Character: Rule 413
a. Rule 413: In a criminal case in which the D is accused of sexual assault, the court may admit evidence that
the D committed any other sexual assault, but the prosecutor must inform the D in advance.
(1) Rationale: Exception to forbidden character propensity rule for evidence of past crimes because
inferences of past sexual assaults are indisputably relevant to whether a D committed another sexual
assault (United States v. Lemay: prosecutor permitted to introduce evidence of Ds prior conviction for
child molestation eight years prior in a child molestation case).

VI. JUDICIAL NOTICE: RULE 201

A. OVERVIEW: THREE TYPES OF FACTS
(1) Three Types of facts: The line between background facts and adjudicatory facts is imprecise.
a. Background facts: facts people carry around in their head; do not have to prove these at trial (State v.
Mann: jurors calculations that probability of V impaling himself with a screwdriver according to Ds story
did not undermine verdict against D because juror did not introduce new evidentiary facts).
(1) Examples: Jealousy is a motive for murder and Knives are sharp.
b. Adjudicative facts: specialized facts only a few people know, e.g., facts about the political process,
historical facts, geographical facts, social and economic facts; must prove these at trial.
(1) Example: It was 98 degrees on that day. (Need a source to prove this.)
c. Legislative facts: used to advise the court of legislative/policy considerations; do not have to prove these
at trial, but they can be argued

(1) Examples: Brandeis Brief (Muller v. Oregon: women are weaker and should not work as long) and
Eliminating polling places in minority neighborhoods will have a disproportionate impact on voter
turnout
(36) Steps of the Analysis
a. Am I dealing with a background fact, an adjudicative fact, or a legislative fact?
(1) If a background or adjudicative fact, it is subject to judicial notice under Rule 201.
b. Remember there are different instructions in civil and criminal cases.
(1) Civil cases: Jury must accept the noticed fact as conclusive
(2) Criminal cases: Jury may or may not accept the noticed fact as conclusive
B. JUDICIAL NOTICE OF BACKGROUND AND ADJUDICATIVE FACTS: RULE 201
(37) Rule 201(b): Kinds of Facts that May Be Judicially Noticed: Courts may judicially notice a fact that is not
subject to reasonable dispute because it:
a. Is generally known within the trial courts territorial jurisdiction (background fact); or
b. Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
(adjudicative fact)
(1) Example: Cannot use local newspaper as source for judicial notice of time of sunset in manslaughter
prosecution (State v. Canady).
(38) Rule 201(c): How does it work?
a. Court takes judicial notice on its own
b. Court takes judicial notice if a party requests it and is supplied with the necessary information
(1) Example: I ask the jury to take judicial notice that George W. Bush became President on January 20,
2001. If the other side objects, must produce a source.
(39) Rule 201(d): Timing: The court may take judicial notice at any point in the proceeding.
a. This includes appeals, but do not try to fill the gaps in your proof on appeal: must get them in at trial.
(40) Rule 201(f): Instructing the Jury: Differs for civil and criminal cases:
a. Civil cases: courts must instruct the jury that it must accept the noticed fact as conclusive.
b. Criminal cases: court must instruct the jury that it may or may not accept the noticed fact as conclusive.
VII. AUTHENTICATION AND IDENTIFICATION
A. AUTHENTICATION: RULE 901
(41) Rule 901: Requirement of Authentication and Identification
a. 901(a): General Provision: Proponent must produce evidence sufficient to support a finding that the item
is what the proponent claims it is.
b. 901(b): Examples
(1) 901(b)(1): Testimony of a witness with knowledge: Testimony that item is what it is claimed to be
(a) Witness must have knowledge
(b) To lay the foundation, tell witness, I am going to show you item marked for ID as peoples
exhibit 1. Do you recognize it? After witness says yes, ask, How do you know?
(c) Can also use to show chain of custody
(2) 901(b)(2): Non-expert opinion about handwriting: Lay opinion on genuineness of handwriting
based on familiarity that was not acquired for the current litigation.
(a) Example: Government would use secretary of corporate officer to ID notes purportedly written by
the corporate officer based on resemblance to officers handwriting in price-fixing conspiracy
prosecution (United States v. American Radiator & Standard Sanitary Corp.).
(3) 901(b)(3): Comparison by an expert witness or the trier of fact: Comparisons by trier of fact or
expert witness with specimens that have been authenticated
(4) 901(b)(4): Distinctive characteristics: Authenticate item based on its appearance, contents,
substance, internal patterns, or other distinctive circumstances, taken with all circumstances.
(a) Example: Documents: In some cases, where a document reveals knowledge specific to one
person or facts peculiarly known to him, the contents plus circumstantial evidence may suffice
(United States v. Sutton: notes and envelope in murder prosecution where the content of the notes
plus surrounding circumstances suggested D, a scorned lover, wrote them; United States v.
Siddiqui: emails and phone calls about NSF grant in fraud prosecution).
(5) 901(b)(5): Opinion about a voice: Voice identifications, either firsthand or by electronic transmission
or recording, by opinion based on hearing the voice at any time and under any circumstances
connecting it with the alleged speaker.
1. Sound Recordings: In addition to other foundation requirements, generally must be a ID of the
voice on the recording, either by a witness who can identify the voice or by circumstantial

evidence (People v Lynes: appropriate to permit detective to corroborate Ds voice on recording

of Ds conversation with detective where D admitted he knew the detective was looking for him).
(6) 901(b)(6): Evidence about a telephone conversation: evidence that a call was made to the number
assigned at the time to a particular person or business.
B. CONTENTS OF WRITINGS: THE BEST EVIDENCE RULE
(42) Overview
a. Best Evidence Rule is misleading: multiple ways to prove something
b. Should be called the Original Writings Rule: if you want to prove the contents of a document, you need
to offer the original document
c. Refers to three kinds of things that broadly are documents: writings, recordings, and photographs
d. Rationale
(1) Prevent fraud
(2) Promote legal precision: critical to present exact words of a document to the court is critical.
(a) Sales records: Not improper to allow manager of store to testify to stores sales record to show
lack of sales of calculators in calculator theft case even though records themselves were not
introduced (State v. Nano).
(3) Can be difficult to remember details about documents, so its unfair to allow testimony about it without
having the actual document
(4) Hazards of inaccurate or incomplete duplication
(43) Key Rules
a. Rule 1001: Definitions
(1) Writings: letters, words, numbers, or their equivalent set forth in any form
(a) Scope: Almost universal agreement that it applies to writings, not chattel (United States v. Duffy:
Best Evidence Rule did not apply to a t-shift with D-U-F on back).
(b) Contents of writings are key: The Best Evidence Rule applies in cases where the contents of
writing must be proven; a person who remembers an oral statement may testify as to its contents
(Meyers v. United States: Best Evidence Rule did not apply to transcripts because issued
concerned what co-D said in testimony before Senate, not the transcripts themselves).
(2) Recordings (tape and video): letters, words, numbers, or their equivalent recorded in any manner
(3) Photographs: photographic image or its equivalent stored in any form
(4) Original: the writing or recording itself or any counterpart intended to have the same effect by the
person who executed or issued it.
(a) Original of e- information includes a printout if it accurately reflects the original information
(b) Original of a photograph includes a negative or print
(5) Duplicate: reproduction of original produced by mechanical, photographic, or equivalent process
b. Rule 1002: Requirement of Original: To prove the content of a writing, recording, or photograph, the
original document is required, except as otherwise provided in the FRE or by an Act of Congress
c. Rules 1003, 1004, and 1006: Exceptions to the Best Evidence Rule
(1) Rule 1003: Admissibility of duplicates: A duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to authenticity of the original or (2) circumstances would
make it unfair to use duplicate (Wilson v. State: not error to admit a duplicate of stolen paycheck as
evidence in theft prosecution because no question was raised regarding the authenticity of original and
no reason was given for rejection of duplicate other than it was not the original).
(2) Rule 1004: Admissibility of other evidence of contents: The original is not required, and other
evidence of the contents of writing, recording or photograph is admissible if (1) the originals are lost or
destroyed, unless proponent lost or destroyed in bad faith (Seiler v. Lucasfilm, Ltd.: P failed to prove
original drawings in Star Wars copyright infringement case were not lost in bad faith).
(3) Rule 1006: Summaries: Contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart, summary, or calculation
(United States v. Stephens: not improper to admit summary charts in prosecution for falsifying
government loan application and mail fraud).
(a) Rationale: Convenience, more understandable for jury
(b) Caveat: Must distinguish summary from demonstrative evidence (e.g., preparing a chart).
Summary of data goes with jury into jury room, whereas chart does not.
VIII.
REAL AND DEMONSTRATIVE EVIDENCE
A. OVERVIEW THREE TYPES OF EVIDENCE . . . EACH WITH DIFFERENT RULES
(44) Real: Physical evidence that plays a direct part in the incident in question (e.g., clothing or a knife).
a. Comes up most in criminal cases (e.g., murder weapon)
9

(45) Demonstrative: Physical evidence that one can see and inspect that does not play a direct part in the incident
in question (e.g., photograph, map, computer simulation)
a. Does not have its own probative value, but can be powerful and useful in clarifying testimony
b. Has to do with how you tell your story to the jury: trial lawyers like to use demonstrative evidence to keep
the jury engaged/watching
(46) Testimonial: a persons testimony offered to prove the truth of the matter asserted; might also include
documents but really a statement by somebody; generally the heart of the case
B. REAL EVIDENCE
(47) Prove Chain of Custody and that Condition is Unchanged
a. Chain of Custody
(1) Identify who controlled the item at every stage from the event in question to the date of the trial.
(2) Prove the item is the same as the one involved in the incident (and its condition is unchanged).
(3) Particularly important for common items; less important for unique, easily identifiable items.
b. Prove Condition is Unchanged: If the condition of a place or a thing at a certain time is in question, the
party seeking to introduce the evidence must prove the condition of the place or thing has not changed in
the interim (Semet v. Andorra Nurseries: photo of ladder at the construction site; Gallagher v. Pequot
Spring Water Co.: P did not show substance in soda bottle that allegedly made P sick was the same,
without any material change, when it was opened and when it was offered at trial).
C. DEMONSTRATIVE EVIDENCE
(48) Rule: Demonstrative evidence must be (1) relevant to some issue in the case and (2) actually explanatory of
something thats important for the jury to understand (Smith v. Ohio Oil Co.: proper for Ps medical expert
witness to use a plastic skeletal model in personal injury suit to explain an injury in the pelvic area).
a. Limitations: Admission of demonstrative evidence used for dramatic effect or emotional appeal is an
abuse of discretion.
(49) Photographs: Photographs that are material and relevant are admissible, but photographs that arouse the
passions of the jury and that will prejudice the jury against a party is generally excluded under Rule 403
(Evansville School Corp. v. Price: colored photo of deceased boy in casket not relevant to material facts at
issue in wrongful death case and unfairly prejudicial to D).
a. Note: In a murder prosecution, the government would probably be permitted to introduce evidence of a
picture of the victims stab wounds.
(50) Video and Sound Recordings: Video and sound recordings are admissible when their authenticity can be
sufficiently established in view of the context in which they are admitted (Fisher v. State: government used
store manager to properly authenticate security tape showing D removing groceries from store in theft case).
a. Sound recordings: additional issue of needing to authenticate a voice(s).
(51) Video Reenactments: Admissible if relevant and material to the facts at issue in the case (Clark v. St. Thomas
Hospital: not prejudicial to allow hospital to reenact technicians version of Ps fall at hospital and nothing
stopping P producing his own showing his version of the events).
a. Rationale: Although video reenactments cannot be cross-examined, a party has the opportunity to crossexamine witnesses for the opposing party that provided the video. Judicial discretion can prevent abuse
and limit the subject matter to facts stated in the sworn testimony.
(52) Computer-Generated Animations (CGAs): Admissible when (1) properly authenticated, (2) relevant, and (3)
passes the 403 screen (must be objective/cannot be inflammatory) (Commonwealth v. Serge: court properly
admitted governments CGA depicting its version of Ds murder of his wife and properly instructed jury of the
purely demonstrative nature of the CGA).
(53) In-Court Demonstrations: Admissible when guided by a witness skilled in ascertaining relevant responses
and explaining their meaning (Ensor v. Wilson: trial court did not abuse discretion in permitting an in-court
demonstration of child and a special education therapist to exhibit the childs cognition during malpractice case
where therapist was later subject to cross-examination).
(54) Juror Conduct: Misconduct of jurors per se does not necessitate a new trial, but misconduct that results in
prejudice to a litigant and impairs his right to a fair and impartial trial requires a new trial (Geo. C. Christopher
& Son, Inc. v. Kansas Paint & Color: not improper for jurors to test paint samples using same test as in court).
IX. TESTIMONIAL EVIDENCE
A. COMPETENCY
(55) Two ways to think about competency: (a) Someone who is intelligent enough to be a witness and (b)
someone who has a conflict of interest and should not be permitted to testify.
a. Co-Ds can testify against each other: Statutes that bar co-Ds from testifying against each other violate
the Sixth Amendments right to compulsory process [as applied to the states through the Fourteenth

10

Amendment] (Washington v. Texas: Texas state law violated Ds right to compulsory process by barring D
from putting on witness/co-D to testify as to the events leading up to homicide).
b. Example: judges and jurors generally cannot testify: may not be incompetent, but often have a COI
(56) Keys Rules
a. Rule 601: Competency to Testify: Every person is competent to be a witness unless FRE says otherwise.
(1) In civil cases, state substantive law governs the witnesss competency regarding a claim or defense. 2
B. Rule 603: Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a
form designed to impress that duty on the witnesss conscience.
(1) No special formula required: Any statement indicating the deponent is impressed with the duty to tell
the truth and understands that he or she can be prosecuted for perjury for failure to do so satisfies Rule
603s oath or affirmation requirement (Gordon v. Idaho: court abused discretion in holding D in
contempt for refusing to take oath because of his religious beliefs and should have explored the least
restrictive means of assuring D would testify truthfully at his deposition).
(2) Flexible to support First Amendment: Rule 603 takes into account religious freedom under the First
Amendment; unconstitutional for oath to required use of I swear before God.
(57) Child Witnesses: Mostly Rule 601
a. Rule: A child is competent to testify if s/he is able to receive just impressions and relate them truthfully.
(1) Children presumed competent: including in child sex abuse cases. This is consistent with Rule 601,
but some states make the presumption dependent on the age of the child (e.g., children over the age of
10 are presumed to be competent to testify).
(2) Psychiatric evaluations of children not required: A psychiatric evaluation to determine a childs
competency shall not be ordered without a showing of compelling need, provided the witness has the
capacity to testify truthfully (United States v. Snyder: not improper to permit V of D convicted for
possessing and selling child pornography to testify without subjecting V to a psychiatric evaluation
where D did not show compelling need and V was subject to cross-examination to evaluate reliability).
b. Factors: Competency evaluated on case-by-case basis, but all facts/circumstances begin with a strong
presumption of competency. Consider:
(1) Childs ability to receive/communicate information
(2) Spontaneity of childs statements
(3) Indications of coaching or rehearsing
(4) Childs ability to remember
(5) Childs ability to distinguish between truth and falsehood
(a) Evans v. State: Child who was four at time of witnessing murder but six at time of testimony was
competent to testify because her testimony was coherent, consistent with prior questioning (and
not tainted by her mother), and reflected ability to differentiate between fact and fantasy.
c. Sixth Amendment does not require in-person questioning: Where necessary to protect a child witness
from trauma that would be caused by testifying in the physical presence of a D, at least where such trauma
would impair the childs ability to communicate, the Sixth Amendment confrontation clause does not
prohibit use of a procedure that preserves the essence of effective confrontation (United States v. Rouse:
victims of child sex abuse court testify by closed circuit TV against their uncles).
(1) Balancing test: state must show a compelling interest in protecting the children from trauma: fear of
testifying is insufficient to permit closed-circuit TV testimony.
(2) Procedure: testimony by a competent witness under oath subject to contemporaneous cross and
observed by the judge, jury, and D (D must be able to talk to his attorney during questioning.
(58) Ability to Communicate: Mostly Rule 601
a. Rule: A witnesss inability to communicate by speaking or writing does not render the witness
incompetent, provided the witness has the ability to communicate information on direct and crossexamination (Byndom v. State: rape V who could only speak with a speaking device competent to testify
because she could communicate through gestures, facial expressions, sign language, and her computer).
(1) Rationale: Courts do not want to label a segment of society incompetent merely because they cannot
communicate by speech, writing, etcetera.
(59) Judge Has Discretion in Determining Mental Competency: Mostly Rule 601
a. Rule: Judge ordinarily determines competency based on observing a witness on the stand. Judge has
discretion to examine witness outside presence of jury and can order psychiatric evaluations (United States
v. Heinlein: chronic alcoholic with memory loss competent even though he was an unimpressive witness
because there was some indicia of credibility to his testimony and his account was corroborated by other
evidence).

2 Remember: 3 places where we look to state law: (1) presumptions, (2) competence, and (3) privilege.
11

B. QUESTIONING WITNESSES
(60) Rule 611: General Rules
a. 611(a) Control by Court: court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence.
(1) Trial court has discretion to allow witness to testify in narrative form: Although narrative testimony
could result in the admission of inadmissible evidence, judges may remedy introduction of
inadmissible evidence by striking the testimony and advising the jury to disregard it (Northern PAC
R.R. v. Charles: okay to ask witness in personal injury suit to tell the facts of this case).
b. 611(b) Scope of Cross-examination: limited to the subject matter of the direct examination
c. 611(c) Leading Questions
(1) Permitted on cross-examination
(2) Permitted on direct examination only when necessary to develop a witnesss testimony, subject to
discretion of the trial judge
(a) Example: complex technical testimony, where only way to get it out so that the jury can
understand it is to ask leading questions.
(3) Permitted when party calls a hostile witness, adverse party, or witness identified with an adverse party
(a) Rationale: you know theyll be uncooperative, so youre allowed to box them in.
(b) Procedure: Ask: Your honor, permission to treat this witness as hostile?
(c) Example: Court did not err in declaring friend of D charged with stealing 16 birds was hostile and
in permitting the government to examine him with leading questions (United States v. Brown).
(61) Rule 612: Using Writings to Refresh Recollection
a. Rule 612: If using a writing to refresh a witness memory, adverse party is entitled to have the writing
produced at a hearing, to inspect it, to cross-examine the witness about it, and to introduce relevant portions
of the writing itself into evidence.
b. Theory: By looking at the writing, witness refreshes actual memory testifies from current memory
current memory comes in as evidence (Ward v. Morr Transfer & Storage Co.: P could refresh memory of
items claimed to be stored with D and D could cross P about how she came to remember).
(1) Anything can be used to refresh present recollection because the evidence is the testimony, not the
writing; however, prepared, extensive testimonial notes should not be brought in to use instead of
admitting original records.
(2) Distinguished from past recollection recorded (Rule 803(5)): exception to the hearsay rule which
perhaps records (out-of-court statements) to come in as evidence
c. Right of Inspection: Where a witness uses paper or memos to refresh his memory while testifying at trial,
the opposing side, on proper demand, has a right to see and examine the paper or memos and to use them to
cross-examine the witness (Winters v. Winters: reversible error to deny W in denial of divorce suit right to
see notes used by Hs PI to refresh his memory of observations of the W with another man).
C. LAY WITNESSES
(62) Rule 602: Need For Personal Knowledge
A. Rule 602: A lay witness may testify to a matter only if evidence shows the witness has personal knowledge
of the matter.
b. Examples:
(1) Court erred in allowing licensed nurse who reviewed a prisons medical records to testify that the
prisoner failed to pick up his medication at the prison infirmary because the nurse did not have
personal knowledge the facts (fails Rule 602), not did she have memory to refresh (Rule 612); could
have admitted the actual document and used the nurse to show the document was part of normal
business practices (Kemp v. Balboa).
(2) Judge did not abuse discretion in admitting testimony of a witness to a car accident regarding the speed
of the Ds car because the witness had personal knowledge of the collision (Jackson v. Leach).
(63) Rule 701: Opinion Testimony by Lay Witnesses
a. Rule 701: If a witness is not an expert, testimony in the form of an opinion is limited to one that is:
(1) Rationally based on the witnesss perception,
(2) Helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and
(3) Not based on scientific, technical, or other specialized knowledge [within the scope of Rule 702].
b. Examples
(1) Shorthand rendition doctrine: Where facts are incapable of being presented with proper force to
enable the trier of fact to reach an intelligent conclusion without aid of the judgment or opinion of
witness who had the benefit of personal observation, witness is allowed to add his opinion (Parker v.
Hoefer: first wife could testify about second wife in alienation of affection by enticement lawsuit).

12

(2) Lay opinions concerning insanity: A non-expert may never give an opinion on the question of sanity
in response to purely hypothetical questions, but a non-expert may give an opinion if the person has
adequate means of awareness of the persons mental condition at issue and details the facts and
circumstances that form the basis for his opinion (Rupert v. People).
(3) Opinion about time of accident: Trial court correctly refused to admit lay opinion testimony about
whether driver sued for killing Ps husband had enough time to avoid hitting the decedent because the
opinion would not have been helpful to understand the witnesss testimony concerning the distances
and speeds involved (Krueger v. State Farm Mut. Auto. Ins. Co).
D. EXPERT WITNESSES
(64) Rule 702: Testimony by Expert Witnesses
a. Rule 702: A witness qualified as an expert by knowledge, skill, experience, training or education may
provide opinion testimony if the:
(1) Experts scientific, technical, or other specialized knowledge will help the trier of fact understand the
evidence or determine a fact at issue
(2) Testimony is based on sufficient facts or data
(3) Testimony is the product of reliable principles and methods, and
(4) Expert has reliably applied the principles and methods to the facts of the case.
b. Expert does not need a specific degree: just needs scientific, technical, or other specialized knowledge
c. Need: Good data going in + good methodology + correct application of methodology to data
(Commonwealth v. Rosier: DNA results from a scientifically reliable methodology).
(65) Daubert Test for Admissibility of Expert Testimony: Testimony by every expert witness must satisfy
Daubert, which evaluates the reliability of the experts testimony (Daubert v. Merrell Dow Pharmaceuticals,
Inc., U.S. 1993: vacated summary judgment decision in class action against Bendectin manufacturer alleging
birth defects for use of an improper test and adopted new reliability test).
a. Threshold inquiry:
(1) Reliability requirement: Whether the testimony is scientifically valid (derived from scientific method;
stems from fact that most expert testimony will be opinion testimony, relaxed from the general
prohibition on opinion testimony by lay persons)
(2) Relevance/fit requirement: Whether the reasoning + methodology can be applied to the facts at issue
Factors (not an exclusive list)
(1) Has the methodology been tested?
(2) What is the error rate?
(3) Has the theory/technique been subject to peer review/publication?
(4) Is it generally accepted in a specific scientific community?
b.

c.

Apply Abuse of Discretion Standard: Trial court properly excluded expert testimony of tire failure
because the expert was probably qualified but his method was not reliable (Kumho Tire Co. v. Carmichael,
U.S. 1999).
(66) Qualification Requirement
a. Steps to using an expert witness
(1) Qualify the expert using Rule 702(a): scientific, technical, or other specialized knowledge
(2) Determine the experts expertise: Determine what the witness is an expert in/the scope of the witnesss
expertise
b. Experience alone can qualify a witness to give expert testimony: Liberal standard for specialized
knowledge (Elcock v. Kmart Corp.: psychologist who testified as expert in vocational therapy).
c. Expert testimony must stay within the scope of the witnesss expertise: Being an expert about one
subject does not give the expert free reign to testify about other subjects outside of his or her expertise
(Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc.: expert in hydrology not an expert in
safe warehousing practices).
(67) Basis of Expert Opinion: Rules 703 & 705
a. Rule 703: An expert may base an opinion on facts or data in the case that the expert has been made aware
or personally observed. If experts in the field would reasonably rely on those kinds of facts or data, they do
13

not need to be admissible for the opinion to be admitted. If the facts or data would otherwise be
inadmissible, the proponent may disclose them only if their probative value in helping the jury substantially
outweighs their prejudicial effect.
(1) Hypothetical questions to experts must include material facts (Iconco v. Jensen Construction Co.:
hypothetical given to CoE contracting officer in contract dispute included all of the material facts of
the case and was properly admitted).
b. Rule 705: An expert may state an opinion and give the reasons for it without first testifying to the
underlying facts or data. The expert may be required to disclose the facts or data on cross-examination.
(1) Example: Trial judge did not commit prejudicial error in permitting expert witnesses in medical
malpractice case to base their opinions of Ps back surgery on review of the Ds deposition and
previous opinions given by other physicians because experts in the field reasonably rely on depositions
and other physicians opinions (Thomas v. Metz).
(68) Right to Expert Assistance: When an indigent D in a capital punishment case has made a preliminary showing
that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a
State provide access to a psychiatrists assistance on the issue (Ake v. Oklahoma, U.S. 1985).
a. Scope of Ake: split on Akes reach in noncapital cases and cases that do not involve the insanity defense.
E. ULTIMATE ISSUE RULE: RULE 704
(69) Background: At common law, expert couldnt get on stand and make an ultimate conclusion to the jury, e.g.
In my opinion, the D was negligent because did not want witnesses to usurp jurys role. However, very vague
line between preliminary issues (In my opinion, D was negligent) and ultimate issues (D was negligent).
a. Rule 704(a) abolished the common law rule.
(70) Rule 704
a. Rule 704(a): [Expert and lay] witnesses can state their opinions or make inferences on an ultimate issue to
be decided by the trier of fact.
b. Rule 704(b): Exception: Expert cannot state opinion on whether criminal D did or did not have a mental
state constituting an element of a crime charged or a defense to it. Trier of fact must decide.
(1) Explanation: Limits testimony to presenting and explaining diagnoses (Carr v. Radkey: hypothetical
questions about testatrixs mental state would have been appropriate).
(2) Genesis: John Henckley Jr. attempted suicide and acquitted on insanity defense after attempting to
murder President Reagan. Congress added the exception so that an expert could not get on the stand
and say a person is insane as the basis of an insanity defense.
F. WITNESS CREDIBILITY
(71) Overview
A. Credibility is a quintessential jury issue: defined as a witness worthiness of belief.
b. Three categories of credibility rules:
(1) Bolstering: attempts to support credibility before it is attacked or impeached
(2) Impeachment: elicitation or presentation of any matter for the purpose of impairing or destroying the
credibility of a witness in the eyes of the trier of fact
(3) Rehabilitation: attempts to support credibility after it is attacked or impeached
(72) Bolstering
a. Definition: attempts to support credibility before it is attacked or impeached; generally inadmissible
b. Rule 608(a)(2): Evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise
(1) Polygraph evidence: per se inadmissible in a majority of states.
(2) Pretrial identifications: testimony concerning a pretrial ID permitted under Rule 801(d)(1)(C)
(73) Impeachment
a. Definition: elicitation or presentation of any matter for the purpose of impairing or destroying the
credibility of a witness in the eyes of the trier of fact
b. Rule 607: Who May Impeach: Any party may attack a witnesss credibility
(1) Overruled common law voucher rule, which said a party who calls a witness to testify vouches for his
truthfulness and may not impeach him unless in cases of surprise (e.g., government surprised when
admitted co-burglar denied co-Ds involvement on the stand (State v. Green)) or hostility.
(2) Bad Faith Rule: Cannot put someone on the stand, knowing he will lie, for strategic purpose of
impeaching him to bring in out-of-court statements that otherwise would be inadmissible hearsay
(United States v. Webster: government did not know W-principal would lie on stand about Daccomplice and could impeach him by prior inconsistent statements).
c. Examples of forms of impeachment
(1) Rule 608: Character for untruthfulness
(a) Context: something about the witnesss character; not about bias in a particular case
14

(b) 608(a): Witnesss credibility may be attacked or supported by testimony about the witness having
a reputation for having a character for untruthfulness or truthfulness, or testimony in the form of
an opinion about that character. Evidence supporting the witnesss credibility is only admissible if
it has been attacked by opinion or reputation evidence of character for untruthfulness.
1. Example: Jury should have been permitted to hear evidence of 15-year-old boys reputation
in community for character of untruthfulness in sex abuse case (State v. Baker).
(c) 608(b): Specific Instances of Conduct: Except for a criminal conviction under Rule 609, extrinsic
evidence1 is not admissible on direct to prove specific instances of a witnesss conduct, but
specific instances of conduct are permitted on cross if probative of character for truthfulness.
1. Example: Court erred in allowing government to cross-examine D concerning specific prior
instance of assaultive conduct three months before murder that was not probative of
truthfulness in first-degree murder trial (State v. Morgan).
a. Government tried to introduce the evidence to prejudice D: prohibited by Rule 404(a)
b. Could not come in under Rule 404(b) because the assault and murder did not show
similar/any modus operandi
c. Government could not use to show untruthfulness under Rule 608(b): assault not
probative of untruthfulness, but highly prejudicial before jury in a murder trial
(2) Rule 609: Evidence of past criminal convictions for character of untruthfulness
(a) Remember: If its a crime, its 609.
1. Rule 404(b) prohibits the introduction of evidence of a prior conviction to show character and
to prove that, on a specific occasion, the D acted in accordance with that character, unless the
evidence is used to show modus operandi (high standard).
2. Rule 609 permits the introduction of evidence of a prior criminal conviction to attach the
witnesss character for untruthfulness.
(b) Rule 609(a): Attack a witnesss character for truthfulness by evidence of a criminal conviction:
1. For capital crimes and crime punishable by imprisonment for more than a year [felonies]:
a. Must be admitted in civil cases where witness is not a D, subject to 403 screen;
b. Must be admitted in criminal case against criminal D if probative value outweighs the
prejudicial effect;3 and
2. For any crime if the court can determine that establishing the elements of the crime required
proving or the witness admitting a dishonest fact or statement [felonies or misdemeanors].
(c) Rule 609(b): Ten-year rule: may impeach by evidence of a prior conviction more than ten years
old if (1) the probative value of the evidence substantially outweighs its prejudicial effect and (2)
the proponent gives the witness reasonable written notice and time to prepare to contest its use.
(d) Rule 609(c): Pardons: evidence of being pardoned is inadmissible
(e) Rule 609(d): Juvenile Adjudications: An even higher standardnecessary to fairly determine
guilt or innocence
(f) Rule 609(e): Can impeach by prior conviction even if the conviction is being appealed when the
question is asked
(g) Main question: Is it a 601(a)(1) crime or a 601(a)(2) crime?
1. Rule 609(a)(1): To determine if the probative value outweighs the prejudicial effect of
introducing evidence of a prior conviction under Rule 609(a)(1) conduct a balancing test
(United States v. Alexander: trial court appropriately balanced the factors in choosing to
admit evidence of prior residential robbery and possession with intent to sell cocaine
convictions in conspiracy to commit robbery prosecution).
2. Factors
a. Impeachment value of the prior crime (probative of veracity: courts are more likely to
admit evidence of prior convictions for dissimilar crimes than for similar crimes)
b. Point in time of conviction and Ds subsequent history (the more recent the crime, the
more likely evidence of it will come in)
c. Similarity between the past crime and the charged crime (the more similar, the more
likely introducing evidence will prejudice the jury, which favors keeping out the
evidence)
d. Importance of the Ds testimony (always)
e. Centrality of the Ds credibility (always)

3 Note the difference in the standard (as compared to Rule 403): to impeach a criminal D by evidence of a past criminal
conviction, you must show the probative value of the evidence outweighs its prejudicial effect.
15

(3)

(4)
(5)

(6)

(7)

(h) Rule 609(a)(2): Rule 609(a)(2) encompasses two types of crimes: crimes where deceit is an
element of the offense (e.g., perjury) and crimes where deceit is not an element of the offense, but
the manner in which the witness committed the offense involved deceit (Altobello v. Borden
Confectionary Products, Inc.: prior misdemeanor conviction for tampering with electric meters).
Rule 613: Prior inconsistent statements
(a) Context: These rules only come in to show witness is lying on the stand.
1. Example: You testified on direct that you had a clear view of the accident and saw D hit P,
correct? Yes.
a. Could show witness a letter that the witness wrote saying he saw P hit D and have him
read it, or merely question the witness about the letter without showing it to him.
b. Could also not bring it up on cross but wait until the witness sits down and then offer the
letter, as long as the witness can be recalled to explain it.
(b) Rule 613:
1. In examining a witness concerning his or her prior [written or oral] statement, the party does
not need to show the statement or disclose its contents to the witness at that time, but on
request shall show or disclose it to opposing counsel.
2. Extrinsic evidence of a witnesss prior inconsistent statement is not admissible unless the
witness is afforded an opportunity to explain or deny it and the opposing party is afforded an
opportunity to interrogate the witness, or the interests of justice otherwise require.
(c) Inconsistency requirement: does not have to be diametrically opposed, just inconsistent
(d) Not offered to show witness has the character for untruthfulness: just offered to show witnesss
statement was inconsistent on the one occasion (Central Mut. Ins. Co. v. Newman: D should have
been permitted to introduce Ps prior inconsistent statements concerning a trip and lost jewelry in
suit against insurance company for coverage on the missing jewelry).
(e) Does not violate the hearsay rule (United States v. Hudson: court should have admitted evidence
to impeach governments witness by prior inconsistent statement of saying he lied when he
implicated D-his brother in conspiracy to distribute cocaine case because he wanted to retaliate
against him).
(f) Statements that are otherwise inadmissible because of Miranda can come in for impeachment, e.g.
silence or statements made to police before being Mirandized. However an involuntary (coercive)
confession may not be used to impeach, nor may silence following the giving of Miranda
warnings (Harris, U.S. 1971).
Demeanor while testifying
Bias: Motive to lie in this particular case
(a) No federal rule on bias, but can impeach with evidence of bias because bias is almost always
relevant to help jury understand the truth/accuracy of the witnesss testimony (Alfred v. United
States, U.S. 1931: defense counsel should have been allowed to impeach governments witness
about residence in federal prison; Ede v. Atrium South Ob-Gyn, Inc.: error to exclude evidence of
commonality of insurance interests in medical malpractice case).
(b) Extrinsic evidence rule4 does not apply to bias: you are not stuck with the answer and can call in
another witness or produce a document to prove your point that the witness is biased.
(c) Rule 610: Religious Beliefs or Opinions: Not admissible to show witnesss credibility is impaired
or enhanced, but admissible to show bias (e.g., when a church is a party to the litigation).
Mental or Sensory Capacity
(a) No federal rule on mental or sensory capacity, but can impeach if someones psychiatric history is
probative of truthfulness or goes to the witnesss credibility
(b) Factors
1. Nature of the psychological problem
2. Temporal recency/remoteness of the problem
3. Whether the witness suffered from the problem at the time of the events such that it could
affect her ability to accurately receive or recall the events
(c) Examples
1. History of depression will not come in: not probative of truthfulness; potential for prejudice
2. History of certain psychoses might come in, e.g., ones that cause patients to be detached from
reality or to suffer from hallucinations
Specific contradiction

4 Extrinsic evidence rule: you are stuck with the answer and cannot call another witness or use a document to prove what
the witness said is incorrect or untrue; does not apply to criminal convictions.
16

(a) No federal rule on specific contradiction, but extrinsic evidence, including evidence of prior
convictions, may be admissible under the general standards of Rules 402 and 403 to contradict
specific testimony (United States v. Opager: D should have been permitted to introduce evidence
of business records showing government informant in sale of cocaine possession had not actually
worked with D because evidence about whether the informant really knew what he said he knew).
(74) Rehabilitation
a. Context: Rehabilitation attempts to support credibility after it has been attacked or impeached.
(1) Example: W says on direct, I had a good view of the accident and saw D run the red light.
(a) On cross, D says, W, I see you are wearing glasses. Were you wearing glasses on the day of the
accident? No, I wasnt.
(b) On re-direct, P asks, How do you correct your vision? Glasses and contacts. Were you
wearing contacts on the day of the accident? Yes, and I have even better vision with contacts.
b. Admissible for . . .
(1) Rebutting charges of untruthfulness: Per Rule 608(a)(2), evidence of truthful character is admissible
after character for truthfulness has been attacked. Thus, evidence of good reputation for truthfulness is
generally held admissible to rehabilitate a witness impeached by the showing of a prior conviction
(2) Rebutting inconsistent statements: Where a witness has been examined regarding his former
statements with the aim of impairing his credibility, the party that called him may reexamine him to to
explain the statements and what induced him to make them (Bradford v. State: D should have been
permitted to rehabilitate his witness in murder trial whose direct testimony was in direct conflict with
the governments witnesses and corroborated Ds claim of self-defense but who admitted on cross that
he had told a third party was not at the scene of the crime).
(3) Rebutting charges of recent fabrication: Per Rule 801(d)(1)(B), not hearsay to admit prior
consistent statement to rebut charge of recent fabrication.
c. Generally inadmissible for basic rehabilitation: Witnesses may deny or explain away inconsistencies.
However, otherwise, evidence of truthful character (bolstering) inadmissible for rehabilitation.
X. HEARSAY
A. OVERVIEW
(75) Rule Against Hearsay: Rule 802
A. Rule 802: Hearsay is not admissible except as provided by (1) the FRE, (2) other rules prescribed by
SCOTUS pursuant to statutory authority, or (3) an Act of Congress.
(1) Rationale = reliability: Original speakers absence makes it hard for jury to decide if speaker had an
adequate opportunity to perceive or learn about the subject of the out-of-court statement, had a clear
memory, meant to tell the truth (not under oath and potential penalty of perjury), and understood the
meanings of the words they used. Also, jury cannot authenticate the statement.
b. Rule 801(c): Hearsay is (1) a statement the declarant does not make while testifying at the current trial and
(2) a party offers the statement into evidence to prove the truth of the matter asserted.
(1) Rule 801(a): Statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
(a) Intended = is the evidence being offered to prove the point the declarant was trying to make?
(76) Defining Statement
a. Rule 801(a): Statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the declarant as an assertion.
(1) Intended = is the evidence being offered to prove the point the declarant was trying to make?
(a) Implied points: not intended as assertions not statements.
1. Rationale: People are more likely to lie when they are intending to make a point.
2. Example: Phone calls in which unknown callers said they wanted to bet on sporting events
could be introduced as evidence callers believed recipient was a bookmaking operations
(United States v. Zenni).
3. Example: Are you up? Are you ready? phone call could be introduced against D charged
with sale of narcotics because it was introduced to show D used beeper to receive requests for
drugs (Headly v. Tilghman).
(2) Burden of proof: The party challenging admission of the declaration bears the burden of
demonstrating the declarants requisite intent (United States v. Summers: Mohammeds statement
how did you guys find us so fast? inadmissible hearsay against co-Ds when offered to convey the
police had found them after a bank robbery but admissible against Mohammed as a statement by a
party opponent under Rule 801(d)(2)).

17

(3) Look at the content of the statement: Is this Kenny? not an implied or express assertion (United
States v. Jackson), but how did you guys find us so fast? suggests Mohammed intended to make an
inculpatory statement, not to express interest in modern law enforcement (United States v. Summers).
b. All documents are statements and raise hearsay issues: Documents raise four problems: (1)
relevance, (2) Best Evidence Rule (Rule 1002), (3) authentication, and (4) hearsay.
c. Silence does not raise hearsay issues because silence is not a statement (no out-of-court declarant)
(Silver v. New York Cent. R.R.: court should have admitted evidence of absence of complaints as evidence
of common condition in suit against railway for cold conditions on trip).
d. Evidence of warnings does not raise hearsay issues: If the statement is being offered to show the D had
notice/was warned, does not raise a hearsay issue, but the judge must provide a jury instruction that the
information can be used to show the D had notice [of the fact], but not for the truth of the statement (Player
v. Thompson: court should have admitted evidence that wife of owner of vehicle was warned about slick
tires two or three weeks before car accident).
(1) Classic case: A slips in supermarket aisle. A wants to show that, day before the accident, B told the
store manager that the aisle was slippery. Not hearsay if admitted to show the store manager was
aware of the slippery aisle, not as truth that the aisles actually were slick. Use jury instruction.
(77) Some Out-of-Court Statements Are Not Hearsay: Rule 801(d)(1)-(2)
a. Rule 801(d)(1): Not hearsay if the declarant testifies and is subject to cross-examination about a prior
statement, and the statement is: (A) Inconsistent with the declarants testimony and was made under penalty
of perjury; or (B) Consistent with the declarants testimony and offered to rebut a charge that the declarant
recently fabricated it or acted from a recent improper influence or motive; or (C) Identifies a person as
someone the declarant perceived earlier.
(1) Rule 801(d)(1)(A): prior inconsistent statement under penalty of perjury is not hearsay
(a) Principles
1. Generally, prior inconsistent statements may be brought in for impeachment purposes only
(Rule 613)
2. Certain prior inconsistent statements are not hearsay because they were made under oath
3. Inconsistent should be interpreted liberally and to include (1) diametrically opposed
answers, (2) evasive answers, (3) inability to recall, (4) silence, and (5) changes of position.
4. The declarant must be in court and subject to cross-examination
(b) Prior inconsistent statements before grand juries are not hearsay: Where the presence of the
declarant at trial creates an opportunity for cross-examination to explore the veracity of out-ofcourt statements before a grand jury, the absence of contemporaneous cross-examination does not
mandate that the inconsistent grand jury testimony be inadmissible (Commonwealth v. Daye).
(2) Rule 801(D)(1)(B): Prior consistent statement to rebut charge of recent fabrication
(a) Principles
1. How to spot 801(D)(1)(B) issues: follow the timing:
a. Need a prior consistent statement
b. Other side has suggested the declarant lied or is motivated to lie (may include bias)
c. Admissible if one can prove on redirect that the declarant made the statement before the
alleged motive to lie arose (pre-motive requirement)
i. Tome v. United States, U.S. 1995: government failed to show show 4-year-old
alleged victim of sexual abuse who testified when 6.5 years of age told her mom and
other witnesses of fathers abuse before allegations were made against the D-father
d. The declarant must still be in court and subject to cross-examination
2. Admissible for rehabilitation, but mere repetition is valueless (lacks probative value)
(3) Rule 801(d)(1)(C): Identifies person as someone declarant perceived earlier
(a) Principles
1. Classic case = lineup or photo array where eyewitness picks out D
2. The declarant must still be in court and subject to cross-examination
3. Courtroom IDs are less reliable than they are suggestive; judges give more weight to out-ofcourt IDs during lineups.
(b) Scope: Evidence of pre-trial, non-suggestive photographic and lineup IDs are admissible under
Rule 801(d)(1)(C) (United States v. Lewis: government could introduce evidence of W1s prior ID
of D on trial for armed robbery, even though W1 IDd a U.S. Marshall in court).
b. Rule 801(d)(2): Not hearsay is a statement is offered against the opposing party.
(1) Background: For something to be an admission, you do not need to admit something against your
own interests. Rather, it means statement by party-opponent.
(a) Hypos:
18

1.

D and P involved in car accident. D says, Im sorry I was going too fast. P wants to offer
this statement. Admissible: statement by a party-opponent not hearsay: Rule 801(d)(2).
2. Same situation, but P says, That was your fault! Not admissible under Rule 801(d)(2)
because not offered by a party opponent.
(2) Rule 801(d)(2)(A): Not hearsay if a statement is offered against the opposing party and (A) the party
in an individual or representative capacity made the statement.
(a) Admissions can be received despite lack of firsthand knowledge (Mahlandt v. Wild Canid Survival
& Research Center, Inc.: allowed note and statement made by employee against the employee on
day child was attacked by a wolf even though the employee did not see the attack).
(3) Rule 801(d)(2)(B): Not hearsay if a statement is offered against the opposing party and (B) the party
adopted the statement as truth.
(a) Test: Whether a reasonable person, under the circumstances, would naturally have been expected
to deny the statements if they were not true (Wilson v. City of Pine Bluff: government could admit
Ds silence about womans accusations that he did not the right to occupy a certain residence).
1. Factors
a. Statement heard by the party against whom it is offered
b. Statement understood by party
c. Subject matter within his personal knowledge
d. He must have been physically and psychologically able to speak
e. His relationship to the party or event must be such as to reasonably expect a denial
f. Statement itself must be such that, if untrue, it would have been denied
(b) Exception: Custodial Silence: If declarant has been given Miranda warnings, cannot bring in
his/her silence against him (Jenkins v. Anderson, U.S. 1980: but when the Ds silence occurs
before he or she is taken into custody and Miranda-ized, the government may use the Ds silence
to impeach D without violating the Fifth Amendment or due process).
(c) Flight is not an adoptive admission: Flight does not raise hearsay issues because it does not
constitute an intended assertion/statement.
(4) Rule 801(d)(2)(C): Not hearsay if a statement is offered against the opposing party and (C) a person
authorized to make the statement made the statement.
(a) Principles
1. Not all statements by corporate officers are admissible against others in the corporation
2. Directors as primary officers of a corporation generally have the authority to include their
conclusions in the record (Mahlandt v. Wild Canid Survival & Research Center, Inc.: meeting
minutes concerning wolf attack of child admissible against the company).
(5) Rule 801(d)(2)(D): Not hearsay if a statement is offered against the opposing party and (D) an
authorized agent of the party made the statement.
(a) Principles
1. Encompasses respondeat superior (Mahlandt v. Wild Canid Survival & Research Center, Inc.:
P could admit evidence of note and statement made by Ds employee against D on day child
was attacked by a wolf).
2. Agents sometimes include experts, but most courts do not treat the statements of law
enforcement officers in criminal cases as admissions under Rule 801(d)(2)(D) as they would
be if employees of a corporate party had made the statements.
(6) Rule 801(d)(2)(E): Not hearsay if a statement is offered against the opposing party and (E) a coconspirator made the statement.
(a) Principle
1. Separately need to prove the existence of a conspiracy (agreement between two or more
people to commit an illegal act)
a. Prove: (1) agreement and (2) overt act
i. Begins: when the parties make the agreement
ii. Ends: usually when they are arrested
2. Elements:(1) A conspiracy existed and (2) a co-conspirator made the statement (3) during the
course of the conspiracy and (4) in furtherance of the conspiracy.
a. In furtherance requirement: A statement is in furtherance of a conspiracy when it
advances the ultimate objects of the conspiracy; mere idle chatter, even if prejudicial
and made among co-conspirators, is not in furtherance of a conspiracy and, thus, is not
admissible under Rule 801(d)(2)(E) (United States v. Cornett: reversible error to admit
tapes of Ds ex-girlfriend talking to UI about topics that did not concern the conspiracy).
(78) Crawford and the Sixth Amendment Confrontation Requirement
19

a.

Sixth Amendment Confrontation Clause: right to confront the witnesses against you
(1) Purpose: Prevent use of ex parte examinations as evidence against the accused by witnesses who
bear testimony both in and outside of court. If applied literally, all hearsay would be inadmissible.
b. Crawford Rule: Testimonial statements of witnesses absent from trial are inadmissible unless the declarant
is unavailable and the criminal D has had a prior opportunity to cross-examine the declarant (Crawford v.
Washington: court erred in admitting Ds wifes recorded statement to police in an attempted rape
prosecution because wife did not testify and D did not have a prior opportunity to cross-examine her).
(1) Applies to testimonial statements: no clear definition, but includes:
(a) Ex parte in-court testimony
(b) Affidavits
(c) Custodial examinations (police interrogations)
(d) Preliminary hearing testimony
(e) Prior testimony that the D was unable to cross-examine, including grand jury testimony
(2) Test
(a) If a testimonial statement, was the declarant cross-examined at the time? If no,
(b) Did the out-of-court declarant testify at trial?
1. If yes, no Crawford problem.
2. If no, Crawford problem
c. Exceptions to Crawford
(1) Admissions by the defendant: The Confrontation Clause does not bar a Ds own admissions, even if
testimonial, because they are not hearsay (Rule 801(d)(2)): a party may not complain about not being
able to cross-examine himself.
(2) Present confrontation: The Confrontation Clause is satisfied if the person who made the out-of-court
statement is present in court, testifies, and is subject to cross-examination.
(3) Present confrontation + unavailability: Prior testimonial statements may be received if the witness
has previously been subject to confrontation but is currently unavailable.
(4) Forfeiture by wrongdoing: Murdering the W/V constitutes forfeiture by wrongdoing.
(5) Statements not offered for the truth of the matter asserted: Even if testimonial, statements are not
barred if not offered for their truth: implied assertions are not hearsay (Rule 801(c)).
(6) Dying declarations: Historical practice to admit dying declarations, subject to Rule 804(b)(2).
(7) Statements for resolving ongoing emergencies are not testimonial: Statements intended to describe
circumstances requiring police assistance in an ongoing emergency are not testimonial and can be
introduced without violating the Confrontation Clause (Davis v. Washington, U.S. 2006: 911 call by
woman claiming domestic dispute could be introduced even though woman did not testify; statements
of alleged V of domestic dispute were testimonial when made in response to Os investigatory
questions in room away from D when no immediate threat to V (Hammon v. Indiana, U.S. 2006).
B. EXCEPTIONS TO THE HEARSAY RULE
(79) Overview
a. Rules 803 (presence of out-of-court declarant irrelevant) and 804 (declarant must be unable) provide
exceptions to the hearsay rule that make otherwise inadmissible evidence admissible because the content
of these statements is reliable/trustworthy.
(80) Rule 803: Exceptions Regardless of Declarants Availability
a. Rule 803(1): Present Sense Impression: a statement describing or explaining an event or condition,
made while or immediately after the declarant perceived it, is admissible.
(1) Rationale: If youre telling someone about an event while its happening, youre more likely to be
truthful. The human brain is less likely to fabricate a story while something is happening.
(2) Examples: Jim is sticking a knife in Sally right now or I see Jim sticking a knife in Sally.
(3) Precise contemporaneity not required: Slight lapse in time is allowed, but nothing more, because
otherwise the rationale no longer applies. Ten minutes is probably the outer bounds for an admissible
present sense impression.
(a) Example: Statement to police about abandoned truck made five miles away from location of a
vehicle not admissible as a present-sense impression (United States v. Cain: being five miles away
contradicts the possibility that the declarant saw D leave the truck).
b. Rule 803(2): Excited Utterance: a statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused, is admissible.
(1) Rationale: any motive the declarant might have had to lie will be overcome by the shock of the
startling event; memory is not an issue because the statement must be made close in time to the event
(a) Offsetting consideration: declarant might be so shocked/excited s/he exaggerates.
(2) Example: Oh my God!!! Jim killed Sally!!!
20

(3) Precise contemporaneity is not required

(a) General rule: Timeliness is a bit longer for excited utterances than for present sense impression
(which must be made during or immediately after). You can still be excited 45 minutes later.
(b) Children: When children are involved, courts interpret allowable time period between exciting
event and childs description of it liberally. Some states have a separate hearsay exception for
cases involving children.
(4) Personal knowledge is required: Proponent of the out-of-court statement must establish that the
statement (1) arose from a startling event, (2) related to the circumstances of the startling event, (3)
was been made by a declarant who personally observed the event and (4) was spontaneous with no
time for fabrication (Miller v. Keating: P should not have been permitted to introduce unknown
declarants the bastard cut in statement when P did not prove who made the statement and whether
the declarant saw the accident).
c. Rule 803(3): Then-Existing Mental, Emotional, or Physical Condition: A statement of the declarants
then-existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of the declarants will, is admissible.
(1) Rationale: When people say what they think about something or say how they feel physically or
emotionally, no perception or memory problems are likely to diminish the accuracy of what they say;
must be the speakers own intent.
(2) Examples: My stomach hurts and Im happy.
(a) Excludes something that happened in the past (not the current mental condition): I was happy
yesterday or I have a clear memory of going to New Mexico last year.
(3) Hillmon Doctrine: a statement of intent is admissible to show the declarant acted on that intent
(Mutual Life Ins. Co. v. Hillmon, U.S. 1892: court should have admitted letters that Walters had the
intention of going to the campground with the Ps husband).
(a) Rationale: When statements relate to an intention of the declarant to do a future act, the hearsay
dangers of faulty memory and misperception are eliminated.
(b) Some jurisdictions extend Hillmon to permit declarants intent to show what the third party did:
Under Hillmon, a declarants statement of future intent is admissible to prove (1) the declarant did
what was indicated by his statement of intention and (2) the third party did what the declarant said
(State v. Terranova: victims statement that he must be crazy to meet D at gas station admissible
to show victim intended to go to the gas station and that D met him there).
(c) Statements of intent also come in as admissions against party-opponents (Rule 801(d)(2)).
(4) Declarants fear is rarely relevant: Although statements of fear reflect the declarants state of mind,
they are generally inadmissible because they raise a high potential for unfair prejudice and limiting
instructions will not cure the deficiency (United States v. Day: government could not introduce slip
victim gave to witness with Ds name and phone number on it two days before victim was killed).
(a) Two exceptions:
1. D seeks to adduce evidence tending to show self-defense or accident
2. Fear of victim in a kidnapping case relevant to show she did not go with D voluntarily
d. Rule 803(4): Statements for Purpose of Medical Diagnosis or Treatment: a statement that is (A) made
for, and reasonably pertinent to, medical diagnosis or treatment; and (B) describes medical history; past or
present symptoms or sensations; their inception; or their general cause is admissible.
(1) Rationale: Patients have a strong motive to tell the truth when speaking with physicians and it is
reasonable for physicians to rely on that information.
(2) Example: Court did not abuse discretion in allowing doctor to testify about statements made by child
rape victim concerning being dragged into the bushes and having her clothes removed, something
inserted into her vagina, and her mouth and neck covered where Q&A concerned what had happened,
not who assaulted her; and doctor used answers to diagnose and treat her (United States v. Iron Shell).
(3) Permits introduction of evidence of past symptoms, provided it supports medical treatment/diagnosis:
e.g., My stomach hurts comes in under 803(3) (then-existing condition) or 803(4) (supporting
treatment and diagnosis), but My stomach has hurt for months only comes in under 803(4).
(4) Causation vs. Fault
(a) Causation evidence is admissible: Admitting evidence of causation and the manner in which an
injury was sustained can be relevant to diagnosis and treatment.
(b) Fault evidence is not admissible: Evidence of fault or identity of the perpetrator generally is not
admissible under Rule 803(4) because such statements are unlikely to be motivated by the
patients interest in telling the truth and are seldom related to proper diagnosis and treatment.

21

1.

e.

f.

Exception: In certain cases involving sexual abuse of children where the knowledge of
identity may be relevant to the childs placement.
(5) Statements to Non-Physicians: Statements to non-physicians are admissible when made for the
purpose of medical diagnosis because patients are motivated to speak truthfully.
(a) Example: Statements of parents or close family members relating the symptoms of a child;
statement of child sex victim to grandmother describing past assault (because children cannot
independently seek medical treatment)
(6) Statements to psychiatrists may be admissible: When the declarant is consulting a psychiatrist, almost
all statements may be relevant to diagnosis or treatment; judge has discretion to exclude statements or
to limit their admissibility for the purpose of supporting diagnosis.
(7) Crawford Implications: Statements made solely for diagnosis and without treatment purposes may be
testimonial and, thus, raise Crawford issues under the Confrontation Clause.
Rule 803(5): Past Recollection Recorded: A record that (A) is on a matter the witness once knew about
but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness
when the matter was fresh in the witnesss memory; and (C) accurately reflects the witnesss knowledge. If
admitted, the record may be read into evidence but may be received as an exhibit only if offered by an
adverse party.
(1) Rationale: Absence of the rule would encourage the use of statements carefully prepared for purposes
of litigation under supervision of lawyers (United States v. Feliz-Jerez: error to allow O to read
statement prepared for prosecuting D for escaping from prison where government did not lay proper
foundation that witness had insufficient recollection as to the statements content to enable him to
testify fully and accurately to it).
(2) Past Recollection Recorded (Rule 803(5)) v. Present Recollection Refreshed (Rule 612)
(a) Past Recollection Recorded: Do you remember the license plate number? No. After the
accident, what did you do? I immediately wrote down the license plate number and put it in my
desk. Heres the note. I dont remember it but it was accurate when I wrote it down.
1. Recollection here = the note: hearsay problem; read the note into evidence
(b) Distinguished from present recollection refreshed: Would you describe what you saw? I saw
the car. I noticed the license plate, make of the car. Can you tell us what the license plate is?
No. Let me show you this note and see if it refreshes your recollection. Oh yes, that
refreshes my recollection.
1. Recollection here = Ws current memory: no hearsay problem
(3) Predicates to using Rule 803(5): Proponent must show the declarant:
(a) Once had knowledge of the subject
(b) Does not have an adequate recollection of the record to testify accurately
1. Requires demonstration of impaired memory but does not require that it be totally exhausted
(c) Made a record when s/he had a fresh memory (timeliness requirement)
(4) What if two individuals created the record? Where a record is the joint product of two individuals
one who makes an oral statement and one who embodies it in a writingif both parties are available to
testify at trial as to the accuracy with which each performed his role, the recollection may be admitted
(United States v. Booz: if FBI agent can verify accuracy of transcription of license plate number from
car at scene of robbery given by witness and witness can testify he related an accurate recollection of
the number to the agent, transcript sufficiently accurate to be read to the jury).
Rule 803(6): Business Records: A record of an act, event, condition, opinion, or diagnosis if: (A) the
record was made at or near the time byor from information transmitted bysomeone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business (charity, church, law
school); (C) making the record was a regular practice of that activity; (D) all these conditions are shown by
the testimony of the custodian or another qualified witness; and (E) neither the source of information nor
the method or circumstances of preparation indicate a lack of trustworthiness.
(1) Records prepared in anticipation of litigation often inadmissible: Undercuts predicate requirement of
trustworthiness, but certain records may be admitted, e.g., reports by railroad employees shortly after a
Ps injury where the employees were not personally involved in the accident nor potential targets in a
lawsuit and the reports were regularly prepared as part of the business.
(a) Example: History of transactions between P-car dealer and D-insurance broker sued for fraud
was inadmissible as a business record because the record was prepared in anticipation of litigation,
not at or near the time of the events in question, and D had already claimed the history was
attorney work product (Potamkin Cadillac Corp. v. B.R.I. Coverage Corp.).
(2) Expert opinions: Expert opinions in business records should not be admissible if the person rendering
the opinion is unqualified or the topic is not a proper one for expert testimony.
22

(a) Example: If Doctor says, I think this girl was raped by someone else, this part of the medical
record does not come in because it is not part of the doctors field of expertise.
g. Rule 803(7): Absence of a Record of a Regularly Conducted Activity: Evidence that a matter is not
included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did
not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible
source of the information nor other circumstances indicate a lack of trustworthiness.
h. Rule 803(8): Public Records and Reports
(1) Rule: Records, reports, statements, or data compilations of public offices or agencies showing:
(a) The offices activities,
(b) Matters observed pursuant to duty imposed by law where there is a duty to report (excluding
matters observed by police in criminal cases), or
1. Example: raw data
(c) In civil cases, factual findings resulting from an investigation pursuant to authority granted by law,
(B) unless the sources or other circumstances indicate lack of trustworthiness.
1. Factual findings: Broad view of the term factual findings to include conclusions or
opinions based on a factual investigation provided they are based on a factual investigation
and do not indicate a lack of trustworthiness (Beech Aircraft Corp. v. Rainey, U.S. 1988).
2. Factors: In evaluating the trustworthiness of a factual report, courts look to
a. Timeliness of the investigation,
b. Special skills or experience of the official,
c. Whether a hearing was held and level at which it was conducted, and
d. Possible motivation problems
(Bridgeway Corp. v. Citibank: Country Record showing Liberias judicial system in disarray).
(2) Rationale: Framers felt public records had some indicia of reliability because organizations that make
them also use them in their day-to-day work. Public officers will perform their duties and lack a
motive to falsify, and public inspection to which many records are subject will disclose inaccuracies.
(3) Investigatory vs. Ministerial Records: Fifth Circuit draws a distinction between public investigatory
records (created for a specific litigation purpose and not admissible under 803(8)) and ministerial
records (prepared for purposes independent of a specific litigation) (United States v. Quezada:
ministerial forms from prior deportation admissible under 803(8) because sufficient to prove arrest
necessary for prosecution of illegal reentry after deportation).
(81) Rule 804: Declarant Unavailable
a. Context: If a declarant is unavailable, does not necessarily mean you apply Rule 804: Rule 803 does not
depend on whether the declarant is available, or not, so an exception under Rule 803 might apply. If Rule
803 does not apply, look to Rule 804, but those statements generally less reliable than Rule 803 statements.
b. Rule 804(a): Definition of Unavailability
(1) Rule: Unavailability includes situations in which the declarant: (1) is exempt because of privilege,
(2) refuses to testify despite an order of the court to do so, (3) testifies to a lack of memory of the
subject matter (and lack of memory = unavailable), (4) is unable to be present because of death or
then-existing illness; and (5) is absent from the hearing and the proponent of a statement has been
unable to procure the declarants attendance by process or other reasonable means
(a) Absence in 805(a)(5) = absence of testimony (Campbell v. Coleman Co: witness physically
absent but not unavailable because testimony was available by deposition from 8 months prior).
c. Rule 804(b): Hearsay Exceptions for Unavailable Declarants
(1) Rule 804(b)(1): Former testimony: testimony given as a witness at another hearing of the same or
different proceeding or in a deposition taken in the course of the same or another proceeding and the
statement is now offered against a party who previously had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
(a) Do not confuse this Rule with Rule 801(d)(1)(A): Although both deal with forward testimony:
1. 801(d)(1)(A) involves someone who previously testified under oath, but is now at trial
(available) and subject to cross-examination
2. 804(b)(1) involves former testimony where party with opportunity and motive to crossexamine the W as they would if they were at trial, but the declarant is now unavailable
a. Issues do not have to be precisely the same: must have a similar, not identical, motive.
(b) Opportunity Standard: Naked opportunity is insufficient; there must be a perceived real need
or incentive to thoroughly cross-examine at the time of the deposition (United States v. Feldman:
Ds attorneys did not have opportunity to cross-examine business associate in civil proceeding
prior to Ds prosecution for wire fraud).

23

(c) Similar motive Standard: Factors that influence motive to develop testimony include (1) the
type of proceeding in which the testimony is given, (2) trial strategy, (3) the potential penalties or
financial stakes, and (4) the number of issues and parties (United States v. Feldman: no similar
motive in civil trial where Ds were co-Ds with the business associate, did not know they were
under criminal investigation at the time, and had no exposure to liability in the civil trial).
(2) Rule 804(b)(2): Dying declarations: In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that their death was imminent, concerning
the cause or circumstances of what the declarant believed to be an impending death.
(a) Does not require that death ensue, only that the declarant believed death was imminent
(b) Limited to statements about impending death: In order to qualify as a dying declaration, the
state of mind must be exhibited by evidence and not left to conjecture. The patient must have
spoken with consciousness of a swift and certain doom (Shephard v. United States, U.S. 1933:
wifes statements that she thought her husband poisoned her not admissible in husbands murder
prosecution where government did not show the statements were made without hope of recovery).
(3) Rule 804(b)(3) Statement again interest: A statement that: (A) a reasonable person in the declarants
position would have made only if the person believed it to be true because, when made, it was so
contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the
declarants claim against someone else or to expose the declarant to civil or criminal liability; and (B)
is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant to criminal liability.
(a) Not the same as an adoptive admission (Rule 801(d)(2)(B)): declarant is unavailable
(b) Standard = reasonable person in the position of the declarant
(c) Cannot parse self-inculpatory from non-self-inculpatory statements: Rule 804(b)(3) does not
allow admission of non-self-inculpatory statements, even if they are made within a broader
narrative that is generally self-inculpatory (Williamson v. United States, U.S. 1994: government
should not have been permitted to introduce declarants story implicating himself and others).
1. Rationale: Rule 804(b)(3) covers statements that incriminate the declarant, but the fact that a
self-inculpatory statement is made alongside collateral statements does not mean the collateral
statement should be treated differently
2. Dont forget Crawford: even if admitted, statements cannot violate the Confrontation Clause.
C. DOUBLE HEARSAY: RULE 805
(82) Rule 805: Hearsay within Hearsay: Hearsay within hearsay is not excluded by the rule against hearsay if
each part of the combined statements conforms with an exception to the rule.
a. Hypo: D says, I talked to A. And A said, B killed V!!!!
(1) D to A = admission
(2) A to W = excited utterance
(3) Since both statements fall under exceptions to the hearsay rule, the double hearsay is admissible.
D. ATTACKING/SUPPORTING DECLARANTS CREDIBILITY: RULE 806
(83) Rule 806: Attacking and Supporting the Declarants Credibility: When a hearsay statementor a statement
described in Rule 801(d)(2)(C)-(E)is admitted, the declarants credibility may be attacked and then supported
by evidence that would be admissible if the declarant had actually testified. The court may admit evidence of
the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a
witness, the party may examine the declarant on the statement as if on cross-examination.
XI. PRIVILEGES
A. OVERVIEW
(84) Concept: Certain pieces of evidence (i.e., certain communications) are not admissible because we (society) do
not want to chill that communication
(85) Rule 501: General Rule: The common law, as interpreted by the courts in light of reason and experience,
governs a claim of privilege unless any of the following provides otherwise: (1) Constitution (e.g., privilege
against self-incrimination), (2) a federal statute, or (3) rules prescribed by the Supreme Court. In civil actions
where state law governs, privilege shall be determined in accordance with state law.5
B. MARITAL PRIVILEGES
(86) Spousal Testimonial Privilege
a. Background: Historically, spouses were not permitted to testify against each other. Premised on belief
that wives were the chattel of their husbands and not distinct legal entities.

5 Remember: 3 places where we look to state law: (1) presumptions, (2) competence, and (3) privilege.
24

b. Rule: Witness spouse has the privilege to refuse to testify adversely, but a D-spouse cannot stop a
voluntary witness spouse who wants to testify about what s/he observed (not about inter-spousal
communications) from so testifying (Trammel v. United States, U.S. 1980: W-spouse could volunteer to
testify against H in exchange for cooperating with the government; overturned Hawkins v. United States).
(1) Exceptions: does not apply where:
(a) Witness-spouse is unwilling to testify
(b) Spouses are joint participants in a crime (no privilege about what one spouse observed with
respect to the other spouse)
(c) One spouse is charged with a crime against person or property of the other or against a child of
either spouse
c. Rationale
(1) General trend in states towards abolishing the spousal testimonial privilege where one spouse is willing
to testify against the other.
(2) By retaining the privilege where the spouse is unwilling to testify, continues to foster the harmony and
sanctity of the marital relationship.
(a) But this argument is not particularly relevant where one spouse is willing to testify against the
other spouse: that relationship probably is already in disrepair.
d. Timing: W and H do not have to be married when the witness-spouse observes the D-spouse commit the
acts in contention. Rather, the testimony must occur when the W and H are married: Trammel does not
render impossible the practice of marrying a W into silence.
(87) Marital Communications Privilege
a. Rule: Statements made in confidence between spouses are privileged regardless of whether a spouse is
willing to testify against the other (United States v. Estes: Ds confession to wife about how he stole money
was privileged, but Ws testimony as to her participation in laundering the money was not privileged
because it was evidence of a joint criminal enterprise).
(1) Exceptions
(a) Does not apply when spouses litigate against each other.
(b) Does not apply in criminal proceedings involving a charge of intra-familial wrongdoing such as
assault on a spouse or child or where threats are made to prevent a spouse from talking.
(c) If the statement is made in the presence of a third party, the privilege is waived.
b. Rationale: our society respects the institution of marriagepromote marital harmony
c. Timing: Privilege applies when the H and W are married at the time of the communication; H and W do
not have to married at the time of the testimony
(1) Contra testimonial privilege: have to be married of at the time of the testimony
(88) Marital Privileges In Action
a. W observes H arrive with a bag full of money
(1) Observation not communication Trammel permits her to testify if she volunteers
b. H says, Honey, I just robbed the store?
(1) Confidential communication privileged.
c. H and W count the money and hide it together.
(1) Although a communication, part a joint criminal enterprise exception to the privilege rule.
C. ATTORNEY-CLIENT PRIVILEGE
(89) Rule: Communications between a lawyer and his/her client are privileged.
a. Exceptions
(1) Does not apply to communications about future criminal activity, e.g., client tells lawyer, Im going to
kill Mary tomorrow
(2) Does not apply in joint criminal activity (crime/fraud exception)
(3) Does not apply to fee disputes where attorney says his fees have not been paid
(4) Does not apply to observations
(90) Rationale: Want free-flow communication between the attorney and the client. You do not need a formal or
finalized attorney-client agreement/agreement (i.e., a retainer) for the privilege to apply
(91) Scope
a. Applies to genuine lawyer-client relationships, providing the lawyer is providing legal advice
(1) Includes situations where representation is contemplated, even if they havent reached a fee agreement
b. Applies to communications that occur in the course of providing legal advice (both ways)
(1) Does not apply to documents client created three years ago that s/he ships to the attorney to prevent
discovery in litigation or to notes by/between attorneys about a clients case (use work product rules)
c. Client holds the privilege, so only the client can waive it.
(1) If client voluntarily discloses the information to a third party, privilege is lost.
25

(2) If information is inadvertently disclosed to a third party, e.g., an eavesdropper, privilege is not lost.
When attorney has someone else in the room listening to those communications, privilege sweeps in those
people as well, provided the non-attorney is present to provide support in legal services.
e. Applies to in-house counsel of corporations when GC is providing legal advice.
f. If co-Ds (complex litigation), create an agreement between the defense attorneys to permit attorney-client
privilege to extend to all counsel
(92) Attorney-Client Privilege Applies Posthumously: Attorney-client communications are privileged during a
clients lifetime and also after the clients death unless the communications are sought for disclosure in litigation
between the clients heirs (Swidler & Berlin v. United States, U.S. 1998: Deputy WH counsels lawyers notes
from meetings before Deputy WH counsel committed suicide privileged in WH investigation).
a. Rationale: Attorney-client relationship would be chilled if the privilege did not apply posthumously,
particularly because what the client says could affect the clients family, concern money, etcetera.
b. Counterargument What about the worst cases? Should we recognize the privilege even when
someone admitted to his attorney that he killed 10 children and died, but another person was later charged
and convicted of the decedents crime? In Swidler & Berlin, Rehnquist says yes.
(93) Scope of Attorney-Client Privilege in Corporate Context
a. Context: Corporations tend to have many people in management + middle management + non-managers
b. Issue: What is the scope of the attorney-client privilege in the corporate context?
(1) CEO asks GC for business advice not privileged
(2) CEO asks GC for legal advice privileged
(3) CEO asks outside counsel for confidential legal advice privileged
(4) Communications to entire company generally not privileged, even if the attorney is on the cc line.
(a) If you want the communication to be privileged, put the attorney on the To line and make clear
that the email is confidential.
c. Federal Courts: Communications between a corporate employee (regardless of rank) and the GC are
privileged if they relate to the employees work, their purpose is to facilitate the provision of legal services
to the company, and they are confidential (Upjohn Co. v United States, U.S. 1981: rejecting control
group test in FICA investigation where government requested files relating to an internal investigation).
d. State Courts
(1) Some state courts apply the Upjohn rule
(2) Others apply the control group test rejected by Upjohn: Only communications between certain
high-level employees and the attorney are privileged communications.
(a) Note: Upjohn is predicated on common law and not constitutional grounds, so it does not compel
state abandonment of the control group test.
D. CONFIDENTIAL SOURCE PRIVILEGE FOR REPORTERS
(94) Rule No Absolute First Amendment Privilege Against Complying With Subpoenas: Media
representatives do not have an absolute privilege in the First Amendment to refrain from divulging confidential
information and the sources of such information when subpoenaed (Branzburg v. Hayes, U.S. 1972).
(95) Rationale: Reporters rely on confidential information and rely/require a trust from their informants. If
informants do not feel their communications are protected, they would be less likely to speak to reporters.
(96) Most Federal Courts Recognize a Qualified Privilege: Branzburgs rejection of a constitutionally based
privilege for reporters did not command a majority. Most federal courts recognize a qualified privilege.
a. Tripartite Showing for Penetrating Qualified Privilege: In a hearing with an in camera inspection of
information, the person seeking the information in the subpoena must show the information is (1) relevant,
(2) material, and (3) not overbroad (In the Matter of Myron Farber: NYT and report did not have privilege
deriving from First Amendment to refuse to comply with subpoenas duces tecum nor under NJ shield law).
(1) Note: Requirements of relevance and need have been heightened in civil cases.
b. Caveat: Sixth Amendment Right to Confrontation > Media Shield Laws: The Sixth Amendment right
to confront ones accusers exceeds media representatives free speech and media rights [including those
under state shield laws] because shield laws obstruct the Ds right to compel the attendance of witnesses
and the production of documents legitimately needed in preparing or undertaking his defense (In the Matter
of Myron Farber: although NJ shield law was facially constitutional and legislature intended to make it
very broad to protect informant communications, shield law must give way to Sixth Amendment)
E. PSYCHOTHERAPIST-PATIENT PRIVILEGE
(97) Rule: Rule 501 protects confidential communications between a licensed psychotherapist [and social workers]
and patients in the course of diagnosis or treatment from compelled disclosure (Jaffee v. Redmond, U.S. 1966:
communications between police officer who killed man while on patrol and licensed social worker privileged).
a. Note:
d.

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(1) Jaffee majority relied on states activities: all 50 states and D.C. had enacted a psychotherapist-patient
privilege that would have little value if available in state court but not a federal court across the street.
(2) Majority extended the privilege to licensed social workers because the reasons for applying the
privilege to psychotherapists applies with equal force to social workers. Not sure what is the scope
beyond psychiatrists, psychologists, and licensed social workers.
(a) Stevens, J., also wanted to make sure people of all incomes were able to enjoy the privilege.
(3) Scalia, writing for the minority, hated this: not all social workers are made equal, and majority too
easily extended the privilege to them without a sufficient cost-benefit analysis.
(98) Rationale: The privilege serves private (protects confidential communications) and public (encourages people
to obtain mental health treatment) interests, and the evidentiary benefits of compelled disclosure are modest at
best (especially because people might be less willing to be honest with therapists).
F. EXECUTIVE PRIVILEGES
(99) Presidential Communications Privilege: POTUS does not have an absolute privilege in the confidentiality of
his communications, but a qualified privilege balanced on a case-by-case assessment of the balance of the
public and the private interests at stake in releasing the information (United States v. Nixon: Nixons taped WH
communications not privileged where POTUS did not show they concerned diplomatic, sensitive national
security, or military issues).
a. Requirements: President needs to provide some showing of (1) sensitive national security, (2) military, or
(3) diplomatic need.
b. Basis: Constitutional privilege based on the separation of powers principle
(1) Caveat: Questions regarding executive privilege are justiciable: Court can exercise jurisdiction over
inter-branch disputes [in criminal investigations], e.g., where the traditional scope of Article III
includes power to review the course of federal criminal prosecutions (Marbury v. Madison).
(a) Separate of powers does not permit the President to act with complete independence.
c. Scope:
(1) Applies to POTUS and his communications with his advisors
(2) Applies to documents in their entirety, including pre-deliberative, final, and post-decisional materials
d. Balance Public vs. Private Interests: Legitimate need for fair adjudication of criminal case in
administration of justice may outweigh Presidential privilege in certain cases.
e. Safeguards Exist to Protect the Information
(1) Party seeking to overcome the privilege must provide a focused demonstration of need, i.e., why the
information is important to an ongoing grand jury investigation and why it is otherwise unavailable.
(2) Nixon Court establishes a set of safeguards for in camera inspection of information for which the
recipient of the information claims executive privilege.
(3) All statements that meet the test of admissibility and relevance must be isolated from other material
that must be excised. Higher bar, here, when the material constitutes presidential communications.
(100) Deliberative Process Privilege: Common law privilege for deliberative communications within an agency
(In re Sealed Case: WH documents related to allegations that former USDA Secretary improperly accepted a
gift).
a. If reason to believe government misconduct occurred no privilege: Affords less protection against
disclosure than does the presidential communications privilege (at issue in Nixon).
b. If release is required under the presidential communications privilege, it is almost certainly required under
the deliberative privilege.
G. OTHER COMMON PRIVILEGES
(101) Accountant-client privilege
(102) Rape victim-counselor privilege
(103) Clergy-communicant privilege (all but 3 states in statute)
(104) Doctor-patient privilege (most states recognize it, but federal courts do not)
(105) Parent-child privilege (only in 3 states, and appeals for judicial creation of one generally dismissed)

27

XII. BACK-UP MATERIALS

B. HOW DOES EVIDENCE FIT INTO A CASE? REVIEW OF CIV PRO:
(1) Step 1: someone files a complaint (and someone is served get proof of service)
(2) Step 2: opposing party files answer (may include a counterclaim) or motion to dismiss
a. Standard for granting a motion to dismiss: failure to state a claim upon which relief can be granted
(1) If dismissed with prejudice, game over.
(2) If dismissed, may be able to re-file the complaint.
(3) Step 3: pretrial process, including motions and discovery (depositions, interrogatories)
a. Motion in limine: motion in advance of trial to resolve an evidentiary issue.
b. Motion for summary judgment: standard = no genuine issue of material fact
(1) Record for summary judgment motion: transcripts, documents, affidavits; usually do not call witnesses
(4) Step 4: trial . . . evidence comes in here: from the beginning of the trial to when the case goes to the jury.
a. P presents case and eventually rests.
b. D may file motion for judgment as a matter of law (JML) (federal term for motion for judgment n.o.v.): D
moves that no reasonable jury could find for the P on every element of Ps case on the preponderance of the
evidence.
(1) If denied, D presents his case.
(a) After which, D or P could also move for judgment as a matter of law.
(2) If D has affirmative defense, P could file motion for judgment as a matter of law (same standard).
c. If both motions are denied:
(5) Step 5: case does to the jury
a. If jury finds for P, D could still file a motion for JML
(6) Step 6: notice of appeal
a. Legal issue: standard of review = de novo (no deference to trial court)
b. Factual issue: standard of review = clearly erroneous
c. Evidentiary rulings: abuse of discretion (highly deferential) standard