Evidence Notes 3/29/16 10:33 AM

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Evidence Notes 3/29/16 10:33 AM
The Federal Rules of Evidence – Scope

 Scope
o R. 101
 (a) Scope. These rules apply to proceedings in United States
courts. The specific courts and proceedings to which the rules
apply, along with exceptions, are set out in Rule 1101.
o R. 1101
 (a) To Courts and Judges. These rules apply to proceedings
before
 United States district courts;
 United States bankruptcy and magistrate judges;
 United States courts of appeals
 the United States Court of Federal Claims; and
 the district courts of Guam, the Virgin Islands, and the
Northern Mariana Islands.
 (b) To Cases and Proceedings. These rules apply in
 civil cases and proceedings, including bankruptcy,
admiralty, and maritime cases
 criminal cases and proceedings; and
 contempt proceedings, except those in which the court may
act summarily.
 (c) Rules on Privilege. The rules on privilege apply to all stages
of a case or proceeding.
 (d) Exceptions. These rules--except for those on privilege--
do not apply to the following:
 (1) the court's determination, under Rule 104(a), on a
preliminary question of fact governing admissibility;
 (2) grand-jury proceedings; and
 (3) miscellaneous proceedings such as:
 extradition or rendition
o extradition = deportation of a criminal to the
country who has jx over the crime charged
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o rendition = the return of a fugitive from one

state to the state where the fugitive is
accused or was convicted of a crime
 issuing an arrest warrant, criminal summons, or
search warrant;
 a preliminary examination in a criminal case;
 sentencing;
 granting or revoking probation or supervised
release; and
 considering whether to release on bail or otherwise.
 Not an exhaustive list…
Raising and Resolving Evidentiary Objections

 R 103 – Generally
o outlines the process that parties use to dispute and defend E at trial, from
the standpoint of an appellate court.
o Outlines the procedural steps that an Atty must take at trial before a
reviewing court will even consider the Atty’s evidentiary objections on
appeal.
 R 103
o (a) Preserving a Claim of Error. A party may claim error in a ruling to
admit or exclude evidence only if
 (1) if the ruling admits evidence, a party, on the record:
 (A) timely objects or moves to strike; and
 two mechanisms for disputing E at trial are
objections and motions to strike
o a lawyer registers an objection only before
the opponent introduces a potentially
inadmissible item into E; an objection occurs
before the potentially offending E emerges
fully
o Motion to strike – occurs after disputed E
has already entered the record. Asking the
court to erase the inadmissible evidence from
the record.
 Occurs when W answers quickly before

Atty can object, or if certain E loses its
relevance over the course of the trial.
 If granted, doesn’t get “stricken” from
the record in practical terms (i.e., trial
transcript), but stricken from evidence
that jury may consider.
 A limiting instruction usually follows a
motion to strike.
 Timeliness
o Atty must move to object/strike as soon as
the ground for objection is known or r-ably
should be known. If atty fails to timely object,
appellate court won’t consider the evidentiary
challenge.
 (B) states the specific ground, unless it was apparent from
the context
 specificity requirement gives both the judge and
the other party notice about the basis for the
objection.
 If objections aren’t specific, appellate court won’t
rule on the evidentiary objection
 Also requires Atty to designate the portion of a doc
or W’s testimony to which they object. Atty can also
object to the whole, but if objecting to just one part,
must specify which part they are objecting to.
 R 103
o (a) Preserving a Claim of Error. A party may claim error in a ruling to
admit or exclude evidence only . . .
 (2) if the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent
from the context.
 Offer of proof gives the judge info needed to rule promptly
and correctly on admissibility
 Judges have discretion to determine the form in which
Atty’s make an offer of proof
 Sometimes, Atty will just describe what the E would

entail, such as what the Atty expects the W to say in
response to a question
 Other times, Atty may demonstrate w/ the W the
actual questions that would be asked and answered.
 Maintaining Objections
o R 103(b). Not Needing to Renew an Objection or Offer of Proof.
 Once the court rules definitively on the record--either before or at
trial--a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.
 Shielding the Jury
o R 103(d)
 (d) Preventing the Jury from Hearing Inadmissible Evidence. To
the extent practicable, the court must conduct a jury trial so that
inadmissible evidence is not suggested to the jury by any means.
 R 105 - Limiting Evidence That Is Not Admissible Against Other Parties
or for Other Purposes
o If the court admits evidence that is admissible against a party or for a
purpose--but not against another party or for another purpose--the court,
on timely request, must restrict the evidence to its proper scope and
instruct the jury accordingly.
 Court MUST give the instruction if requested. No discretion for
judge here.
 On Appeal
o Generally
 Appellate courts very rarely reverse trial courts on evidentiary
rulings, even if the Atty complied with all of the requirements for
preserving issues for appeal. Two reasons for this:
 1. Abuse of discretion – standard is applied to most
claims of evidentiary error. Theory that trial judge was more
familiar with the evidence.
 2. R 103 allows appellate judges to reverse a trial decision
for evidentiary error only if the error affected a
“substantial right” of one of the parties. (this is called the
“harmless error” rule).
 (a) Preserving a Claim of Error. A party may claim

error in a ruling to admit or exclude evidence only if
the error affects a substantial right of the party
o Standard: An evidentiary ruling affects a
party’s “substantial right” only if there is a r-
able probability that, if the judge had made
the correct ruling, the outcome of the case
would have been different.
o Most evidentiary missteps are harmless
error
o The “substantial right” standard applies even
when evidentiary decisions are reviewed de
novo.
 De novo standard applies when trial
judge misinterprets a rule of E or
applies the wrong legal standard at
trial.
 Most evidentiary rulings will be considered harmless
error on appeal
o Plain Error
 R 103(e)
 (e) Taking Notice of Plain Error. A court may take notice of
a plain error affecting a substantial right, even if the claim
of error was not properly preserved.
 Standard: must be “clear and obvious under current law,
affect a party’s substantial rights, and would seriously affect
the fairness, integrity or public reputation of judicial
proceedings if left uncorrected.”
 Must cause a miscarriage of justice
Relevance
 Basic Rule: Only relevant evidence is admissible
o Serves 2 purposes
 (1) Efficiency – limits amount of time that litigants and court
devote to the case.
 (2) focuses the jurors on facts that the law deems important,
decreasing odds that jury will decide case on anything other than
the legal principles governing the dispute. Might influence the jury
even though it has no bearing on the outcome of the case.
 R 402 – General Admissibility of Relevant Evidence
o Rule 402. General Admissibility of Relevant Evidence
 Relevant evidence is admissible unless any of the following
provides otherwise:
. the United States Constitution;
. a federal statute;
. these rules; or
. other rules prescribed by the Supreme Court.
 Irrelevant evidence is not admissible.
o Applies to every single piece of E introduced in a trial, always
o Analysis always starts with Rule 402…threshold question: is it relevant?
 Defining Relevancy
o R 401 – Test for Relevant Evidence
 Evidence is relevant if:
 (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
 (b) the fact is of consequence in determining the action.
 Overall standard: E is relevant if it has any tendency to
make a fact that is of consequence to the controversy more
or less probable.
 3 key phrases here:
 any tendency
 more or less probable
 of consequence
 “any tendency” to make a fact “more or less probable”
 very low threshold for relevance.
 “more or less probable” – doesn’t need to conclusively
establish any fact on its own.
 “any tendency” – underscores the lenient standard
 Must be a fact “of consequence” – the fact itself must be related
to the cause of action, which means it must be of consequence to
someone who is trying to decide the case.
 Not a particularly high bar. Must still connect to legal issues

involved in the case, but the connection doesn’t need to be
a “material” one.
 However, this is where the real limit on relevance
exists
 Need to know the elements of the case and what
substantive law applies to determine whether something is
a fact-of-consequence. Doesn’t have to be the ultimate
issue in the case to be a fact of consequence.
 Probative value
 Goes to the “weight” of the relevant E
 Something is either relevant or its not, but probative value
tells us the degrees of importance of the E. How much
weight will the jury attach to the E?
 Probative value is on a spectrum
 Legal sufficiency
 Does it go all the way? Did the E establish an element of a
case that we need it to establish?
 After adding up all of the facts, do they reach the level of
legal sufficiency? This will rarely be met by one fact only.
 Evolving standards of relevance
o Something may happen in the course of the trial that wasn’t relevant
when you began may become relevant later on, because it becomes a
fact-of-consequence
o The credibility of a W is ALWAYS an issue and therefore is relevant
because they stand in front of the jury and take an oath to tell the true.
This will always be a fact-of-consequence, whether the W should be
believed.
 A criminal D is not a W unless they take the stand. So, their
credibility is not an issue unless they take the stand and swear an
oath to take the truth.
 Cultural Relevance
o Culture or economic background or scientific beliefs or other assumptions
of society affect determinations of what’s relevant. Cultural norms depend
on our expectations and the inferences we draw in our heads.
o E.g., drunk driving example and W testifies that D was staggering. This
makes it more likely that he’s drunk. How do we know this? We’ve been
drinking before and we’ve seen lots of drunk people. Someone in a 3rd
world country may not know this fact, because not a drinking culture.
 Conceding a point
o Is E still relevant even if one party has conceded a point?
 E.g., homicide case and defense concedes that victim was killed by
gunshot wound to the head. Can prosecutor introduce photos of
gruesome gunshot victim to get emotional appeal out of the jury?
 YES. Advisory Committee says the fact need not be in
dispute to be relevant.
o RULE: Concessions do not affect relevance. Neither party has to concede
a point. Opponent cannot minimize damaging facts by conceding them
and then objecting on relevance grounds when the conceded evidence is
introduced in another form.
Prejudice, Confusion, or Waste of Time

 R 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of
Time, or Other Reasons
o 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.
 Generally
o Generally, the 403 objection is the one you use when you don’t know what
else to object to
o This rule is drafted to err on the side of admissibility (and so are pretty
much all the other rules). If it’s a tie, judge is likely to admit it on default
so jury has more info in its disposal.
 5 Factors that Frequently Influence A Judge’s Decision on a 403 Motion
o (1) extent to which the E will arouse emotions or irrational prejudices
among the jurors. Does it trigger a strong emotional reaction?
 This is the big one
o (2) Extent to which the jury might overvalue the evidence – that is, take a
piece of E which is only slightly relevant and give it undue weight
o (3) Strength of the connection b/t the E and the element of the case. More
likely to admit if E is closely related to essential elements of a case, even
if E is highly emotional
o (4) Whether the advocate can prove the same facts through less
prejudicial or confusing means. If alt. routes are available, judge is less
likely to admit the challenged E.
o (5) Whether it would be possible to reduce prejudice or other harm once
the E is introduced. If the judge can redact prejudicial components of the
E or instruct the jury to refrain from improper uses of the E, he or she will
be more likely to admit the E.
 Stipulations and Unfair Prejudice
o The presence of a stipulation may affect the balance of unfair prejudice
and probative value under R 403. Stipulations are always alternative E.
Stipulations decrease the value of probative E.
o The availability of alternative E (i.e., a stipulation), affects the Rule 403
balance
o Trial courts commonly accept a D’s stipulation that they have a previous
felony conviction in “felon-in-possession of a firearm” cases where all that
is needed is the presence of any felony conviction. This keeps out
evidence of what the prior felony actually was, which could be highly
prejudicial to the D.
 See Old Chief case explanation, p82
o However, trial courts will usually allow prosecution to refuse the
stipulation and introduce more detailed E to prove the specific elements of
most crimes. The detailed and pictorial E tells a much more compelling
story than oral testimony could.
 Process of Objections for unfair prejudice
o Objection, undue prejudice
o Court then decides whether a particular item of E raises a danger of undue
prejudice
 If court finds a danger, it moves on and looks to probative value
 Evaluate how probative the E is and how prejudicial the E is.
 If there is alternative E that is equally probative or more

probative, then court will likely exclude the E and require
party to offer the alternative E instead.
Ancillary Relevance Rules under Article 4

 Generally
o These are all rules that keep out E with inherently low probative value
AND the drafter’s believed there was an important social policy that was
more important than getting to the truth in a civil or criminal proceeding
o Each rule promotes an individual public policy
Subsequent Remedial Measures – Rule 407

 Generally
o Any steps taken by the D after the P’s injury to remediate the problem
o There is probative value in SRM, but the social policy of encouraging D’s
to fix dangerous conditions is outweighed by the probative value
o Test: What is the party (proponent) offering the E trying to prove? If not
any of the 4 things listed in the rule, it’s not excluded in r 407
 Rule 407. Subsequent Remedial Measures
o When measures are taken that would have made an earlier injury or harm
less likely to occur, evidence of the subsequent measures is not
admissible to prove:
. negligence;
. culpable conduct;
. a defect in a product or its design; or
. a need for a warning or instruction.
o But the court may admit this evidence for another purpose, such as
impeachment or--if disputed--proving ownership, control, or the feasibility
of precautionary measures.
 Note: this list is not exhaustive
 Rule 407 serves two important purposes:
o (1) Creates a perverse incentive for D’s to fix dangerous conditions, so
that the repair can’t be used as E against them at a trial.
o (2) Juries give way too much weight to subsequent remedial measures
 Rule: 407 may only be used to exclude E for the purpose of showing liability
 Applicability of Rule to Different Causes of Action
o 407 applies to a wide variety of claims, including negligence, strict

liability, and K actions.
 Rule Parse
o What constitutes a “measure”
 Recalls are measures
 Policy changes can be measures
 Firing or disciplining an employee
o When is a remedial measure deemed “subsequent”
 407 shields only measures that are taken after the injury itself.
o Remedial Measures by non-parties
 Courts say that the rule only applies to parties in a lawsuit. Non-
parties are not implicated under 407.
o Other purposes:
 demonstrating ownership or control
 If a D claims that it didn’t own or control an instrument that
injured the P, P may introduce E of subsequent remedial
measures in order to prove that D did in fact own or control
the instrument.
 Feasibility
 407 specifically permits a party to introduce E of
subsequent remedial measures against a party who disputes
“feasibility”
 A party disputes feasibility when it claims that it could not
have remedied a dangerous situation b/c of economic,
physical, other constraints.
 Impeachment
 407 allows a party to introduce E of SRM for the purpose of
impeachment
 problem: this exception could swallow the rule
 therefore, courts take a narrower definition of
“impeachment”
o Judge will likely admit the E under the
impeachment exception when:
 (1) a W makes a specific
representation that conflicts with the
subsequent remedial measure
 (2) the W makes an absolute

declaration like “the product was
perfectly safe” or “it was as safe as it
could have possibly been”
 (3) the W making the statement was
personally involved in implementing
the remedial measure
 Note: because the
impeachment exception has the
potential to swallow the rule,
one strategy is for D’s to never
call a W who was involved with
implementing a SRM, or, if
called, they will limit their
testimony to general
statements about safety (e.g.,
“this forklift was properly
designed”)
o “If disputed”
 D must open the door to subsequent remedial measures by
introducing E to prove ownership or control, or to prove feasibility,
or another purpose. P can’t just introduce E for this purpose unless
D opens the door to it.
 This is necessary limitation, b/c otherwise the exception would
swallow the rule.
Settlements and Offers to Compromise

 Generally
o These have low probative value – people make settlement offers for all
sorts of reasons that have nothing to do with liability
 Such as “nuisance” claims – company has policy to settle all claims
under a certain amount.
o Public policy of promoting settlements – efficiency policy, trying to
decrease crowded court dockets.
 Rule 408. Compromise Offers and Negotiations
o (a) Prohibited Uses. Evidence of the following is not admissible--on

behalf of any party--either to prove or disprove the validity or amount of
a disputed claim or to impeach by a prior inconsistent statement or a
contradiction:
 (1) furnishing, promising, or offering--or accepting, promising to
accept, or offering to accept--a valuable consideration in
compromising or attempting to compromise the claim; and
 (2) conduct or a statement made during compromise negotiations
about the claim--except when offered in a criminal case and when
the negotiations related to a claim by a public office in the exercise
of its regulatory, investigative, or enforcement authority.
o (b) Exceptions. The court may admit this evidence for another purpose,
such as proving a witness's bias or prejudice, negating a contention of
undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.
 Best way to look at this rule is to first focus on what it prohibits, then move to
the exceptions later. SO….
o Rule 408. Compromise Offers and Negotiations
 (a) Prohibited Uses. Evidence of the following is not admissible--
on behalf of any party--either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
 (1) furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to compromise
the claim; and
 (2) conduct or a statement made during compromise
negotiations about the claim
o Rule parse
 Applies to “all parties”
 This means that a party can’t introduce E of settlement
offers or negotiating statements, even E of their own offers
or statements.
 R 408 defines compromise offers and acceptance very
broadly
 Encompasses offers, promises, acceptances, offers to

accept, promises to accept, and any consideration extended
as part of the settlement
 R 408 protects all “conduct or statements” made during
compromise negotiations, not just the operative offers and
acceptances.
 Limitations on Rule 408
o R 408 repeatedly uses the word “claim”
 For 408 to apply, the disagreement b/t the parties must have
matured into a “claim”
o R 408 requires that the parties “dispute” some aspect of the claim
 If both parties agree that liability exists and also agree on the
extent of damages, R 408 doesn’t shield their discussions.
o To invoke R 408, the statements or conduct must occur during
“compromise negotiations” or while “compromising or attempting to
compromise the claim.”
 A formal settlement conference just about always qualifies as an
attempt to compromise the claim
o R 408 excludes statements and conduct made during compromise
negotiations only when a party offers that E for one of three purposes
specified in the rule, namely:
 (1) to prove the validity or amount of the claim
 (2) to disprove that validity or amount; and
 (3) to impeach a W’s testimony through a prior inconsistent
statement.
 More Limiting Language
o Rule 408. Compromise Offers and Negotiations
 (a) Prohibited Uses. Evidence of the following is not admissible--
on behalf of any party--either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
 (1) furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to compromise
the claim; and
 (2) conduct or a statement made during compromise

negotiations about the claim--except when offered in a
criminal case and when the negotiations related to a claim
by a public office in the exercise of its regulatory,
investigative, or enforcement authority.
 (b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness's bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
o This [highlighted] portion of the rule includes two different limits
 (1) section (b) underscores the fact that R 408 prohibits
introduction of E for some purposes but not others. Can be any
purpose other than the forbidden ones in section (a). Also offers
three examples of other purposes, but this isn’t an exclusive list.
 (2) the text at the end of subsection (a)(2) allows some settlement
statements to be used during criminal trials.
 When the civil settlement involves a “public office”
exercising its “regulatory, investigative, or enforcement
authority,” the prosecutor and defendant may introduce E
from those negotiations in a subsequent criminal case.
 “public office” means any gov’t agency
 Must be a “dispute”
o Courts agree that a “dispute” arises once a complaint has been filed
o Most also agree that a dispute arises once a party has hired an Atty and
threatened to sue
o At very least, someone must threaten litigation
o You can have a “claim” without a dispute. See Hypo #4, Ancillary
Relevance Rules Handout.
 When do “compromise negotiations” occur?
o Formal settlement conferences will just about always qualify
o In some situations, it’s hard to tell if there were truly “compromise
negotiations.” Judges will look at several factors, including:
 (1) whether the statement was unilateral or occurred during
bilateral discussions;
 (2) whether either party made a concrete offer;
 (3) whether Atty’s were involved in the discussions; and
 (4) whether the parties used phrases (like “without prejudice”) that
are commonly used during settlement discussions
 Settlements with Third Parties
o 408 applies to parties who are no longer in the lawsuit. Therefore, if P
sues D1 and D2, and D2 settles with P and D1 goes to trial, P can’t
introduce E of D2’s settlement agreement.
 Other Purposes
o Parties may use E of settlement discussions to counter an arg. that they
delayed in pursuing their claim
o Parties may use E of settlement discussions to support a claim that an
opposing party engaged in frivolous or vexatious litigation
o Parties may use E of settlement discussions to show that a W is biased
 Parties who settle a claim with the P may be biased in favor of the
P if called as a W at trial
 Criminal Cases
o 408 states that in most criminal trials, neither the prosecutor nor the
accused may introduce E from prior civil settlement negotiations for any of
the purposes prohibited by the rule.
 Exception: settlement discussions held during a civil regulatory,
investigative, or enforcement action conducted by a gov’t agency –
these are admissible
 This exception only applies to “other” types of statements or
conduct, and doesn’t cover OFFERS, ACCEPTANCES OR
PROMISES – these are still prohibited from being
introduced.
Medical Expenses – Rule 409

 Rule 409. Offers to Pay Medical and Similar Expenses
o 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.
 Purpose – encourages individuals and organizations to pay medical expenses for
people who have been injured. Serves social goals and protects parties from
unfair prejudice.
 Rule Parse
o Furnishing, Promising, Offering
 409 only bars admission of offers and promises to pay med

expenses, as well as actual payment of the expenses. It doesn’t
bar other types of statements, even if they occur in connection
with the offer to pay med expenses.
o Medical, Hospital, or Similar Expenses
 Courts have construed “similar expenses” to include fees for all
kinds of med treatment and physical rehab.
 The rule doesn’t encompass lost wages, repair of an automobile, or
compensation to an injured party for other types of economic or
property damage.
o To prove liability
 E is only excluded if offered for a particular purpose: to prove
liability
 If party can establish some other purpose for proffering the E, then
409 doesn’t bar admission.
Criminal Plea Bargaining – Rule 410

 Generally
o Protects the social interest in plea bargains (keeps courts from being
overcrowded) and the concern for protecting D’s who participate in the
plea bargaining process from overreaching by prosecution
o Also protects D from being unfairly prejudiced by the jury…jury will
assume that D is guilty if he engages in plea bargaining, and will ignore
BYARD standard of guilt.
o The rule doesn’t exclude E of final guilty pleas b/c these are treated the
same as a final conviction
o Test: Whether or not the statement was made as a confession or during a
legitimate plea negotiation
 Most D’s don’t know the difference, and they think they’re
negotiating a plea and not confessing to a crime
 Rule 410. Pleas, Plea Discussions, and Related Statements

o (a) Prohibited Uses. In a civil or criminal case, evidence of the following
is not admissible against the defendant who made the plea or participated
in the plea discussions:
 (1) a guilty plea that was later withdrawn;
 (2) a nolo contendere plea;

 (3) a statement made during a proceeding on either of those
pleas under Federal Rule of Criminal Procedure 11 or a comparable
state procedure; or
 (4) a statement made during plea discussions with an attorney for
the prosecuting authority if the discussions did not result in a guilty
plea or they resulted in a later-withdrawn guilty plea.
o (b) Exceptions. The court may admit a statement described in Rule
410(a)(3) or (4):
 (1) in any proceeding in which another statement made during
the same plea or plea discussions has been introduced, if in
fairness the statements ought to be considered together; or
 (2) in a criminal proceeding for perjury or false statement, if the
defendant made the statement under oath, on the record, and with
counsel present.
 What are “plea discussions?”
o 410 defines them as discussions that occur “with an attorney for the
prosecuting authority.”
o Formal plea discussions initiated by the prosecutor qualify
o Voluntary confessions to an arresting officer do not qualify
o What about situations in-between the above two extremes, where a
prosecutor attends a police interrogation or the police suggest that
cooperation will lead to more lenient treatment?
 Two-tiered approach to what constitutes a “plea discussion”
 (1) D displayed “an actual subjective expectation to
negotiate a plea” and
 whether or not D was read Miranda rights affects the
reasonableness of the plea. If read rights and still
talk, less r-able to expect that D had an expectation
of negotiating a plea.
 If officer implies he has negotiation power, that
doesn’t affect much
 If officer affirmatively says “I will get you a deal”
then this definitely affects the reasonableness
 (2) that expectation was “reasonable given the totality of
the objective circumstances.”
 Miranda affects this – makes it more of a confession

 Presence of D’s Atty in the room affects this – makes
it more of a plea negotiation
Liability Insurance – Rule 411

 Generally
o 411 advances an important social policy: encouraging individuals and
organizations to obtain liability insurance
 good for society because allows them to compensate others for
injuries they cause, and also promotes risk spreading
o Goal of 411 is to remove all discussion liability insurance from the
courtroom
o In most lawsuits, the presence/absence of liability insurance has very low
probative value, but is extremely prejudicial
 Juries may award higher damages if they know insurance is footing
the bill
 Rule 411. Liability Insurance
o Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise
wrongfully. But the court may admit this evidence for another
purpose, such as
 proving a witness's bias or prejudice or
 proving agency, ownership, or control.
 What is “liability insurance”?
o The rule only exclude E of “liability insurance”
 Liability insurance compensates the policy holder for specified
types of damages owed other people.
 Car insurance = most common type
 Med mal insurance is another type
 Health insurance is NOT liability insurance
Putting a Witness on the Stand
 Rule 601. Competency to Testify in General

o Every person is competent to be a witness unless these rules provide

otherwise. But in a civil case, state law governs the witness's competency
regarding a claim or defense for which state law supplies the rule of
decision.
o Rule Parse
 State Law Exception
 Important limitation: whenever state law supplies the
elements of a civil claim or defense (such as in a diversity
action) the court must determine competency under that
state’s law.
o Notes
 Burden is on the party challenging competence to demonstrate
non-competence
 Competence involves 4 different abilities of an individual W
 (1) Narration – the ability to answer questions
 (2) Must understand the importance of telling the truth
 (3) must have a memory
 (4) must have the ability to perceive
 to demonstrate non-competence, must demonstrate the W has NO
ability in one of these areas. A deficiency isn’t good enough, must
demonstrate TOTAL incompetence in one or more areas.
 Anything less than this doesn’t go to the
admission/exclusion of the W. Instead, it goes to the
WEIGHT of the E. Jury can decide how much weight to give
the W’s testimony.
 Voir Dire – this is conducted to prove that a W is competent.
Refers to the practice of questioning a W in front of the judge
without the jury present, so that the judge can make a legal
determination about the W’s competence.
 In state court, you would voir dire a child W to prove that
they are competent.
 Rule 605. Judge's Competency as a Witness

o The presiding judge may not testify as a witness at the trial. A party need
not object to preserve the issue.
 Rule 606. Juror's Competency as a Witness

o (a) At the Trial. A juror may not testify as a witness before the other
jurors at the trial. If a juror is called to testify, the court must give a party
an opportunity to object outside the jury's presence.
 Rationale: lawyer may be uncomfortable challenging the
competence of a member of their own jury before the other
members of the jury
 Jurors may testify in a subsequent case. R 606 only keeps jurors
from testifying as a W in the current case where they are serving
as a juror.
 Jurors can testify in a hearing with judge the judge and attorneys
(such as in a motion hearing), but can’t testify in front of the other
jurors.
 Rule 602. Need for Personal Knowledge

o A witness may testify to a matter only if evidence is introduced sufficient
to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may consist of the
witness's own testimony. This rule does not apply to a witness's expert
testimony under Rule 703.
o Notes
 Means that W can testify only about matters they have seen,
heard, or otherwise sensed themselves.
 W’s can’t speculate about matter beyond their knowledge
 Rule 603. Oath or Affirmation to Testify Truthfully

o 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
witness's conscience.
o Notes
 Don’t have to use the words “swear” or “affirm” if this violates the
W’s religious beliefs. Just has to satisfy the needs of R 603 and
support a perjury prosecution if the W lies on the stand.
 Ex. – “I hereby declare that the facts I am about to giver
are, to the best of my knowledge and belief, accurate,
correct, and complete.” – this would qualify.
 Rule 604. Interpreter

o An interpreter must be qualified and must give an oath or affirmation to
make a true translation.
o Notes
 Interpreter’s Competence Depends on 2 Factors:
 (1) Interpreter must be qualified
 (2) Interpreter must make an oath or affirmation, not to
tell the truth, but to “make a true translation.”
Examining Witnesses
 Rule 611. Mode and Order of Examining Witnesses and Presenting

Evidence
o (a) Control by the Court; Purposes. The court should exercise reasonable
control over the mode and order of examining witnesses and presenting
evidence so as to:
 (1) make those procedures effective for determining the truth;
 (2) avoid wasting time; and
 (3) protect witnesses from harassment or undue embarrassment.
o (b) Scope of Cross-Examination. Cross-examination should not go
beyond the subject matter of the direct examination and matters affecting
the witness's credibility. The court may allow inquiry into additional
matters as if on direct examination.
o (c) Leading Questions. Leading questions should not be used on direct
examination except as necessary to develop the witness's testimony.
Ordinarily, the court should allow leading questions:
 (1) on cross-examination; and
 (2) when a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party.
o Notes
 4 contexts in which judges will usually allow leading
questions on Direct in order to “develop W testimony”
 (1) To Establish Pedigree Information
 the W’s pedigree includes uncontested points like

educational background and occupation. Leading
questions can be used to establish these points
efficiently
 (2) To Direct a W’s attn to a relevant place and time
 these can help Atty to shift a W’s attn to a new
chapter of the testimony.
 (3) to help a W who is hesitant, confused, or has trouble
recalling
 sometimes jurors have difficulty testifying because of
youth, nervousness, illness, memory problems, or
other characteristics. These W’s may have a hard
time answering questions and respond much better
to Yes/No questions. Judge will usually allow leading
questions under these circumstances.
 (4) Hostile W’s
 leading questions are specifically authorized by R
611 on Direct when Atty calls a W who is likely to
resist that party’s position.
 A “hostile” W is one that is evading questions or
otherwise being uncooperative to such an extent that
it is interfering with the eliciting of testimony.
 In this situation, Atty can ask judge to declare the W
as “hostile”
 Rule 614. Court's Calling or Examining a Witness

o (a) Calling. The court may call a witness on its own or at a party's
request. Each party is entitled to cross-examine the witness.
o (b) Examining. The court may examine a witness regardless of who calls
the witness.
o (c) Objections. A party may object to the court's calling or examining a
witness either at that time or at the next opportunity when the jury is not
present.
 Rule 615. Excluding Witnesses

o At a party's request, the court must order witnesses excluded so that they
cannot hear other witnesses' testimony. Or the court may do so on its own.
But this rule does not authorize excluding:
 (a) a party who is a natural person;
 (b) an officer or employee of a party that is not a natural person,
after being designated as the party's representative by its attorney;
 (c) a person whose presence a party shows to be essential to
presenting the party's claim or defense; or
 note: this usually refers to expert W’s who may formulate their
opinions and gather data based on the testimony of other W’s
 law enforcement officers often meet this requirement too.
Could be FBI, DEA, etc. Usually the state can only get ONE of
these people to stay through the whole trial and hear testimony
from other W’s.
 (d) a person authorized by statute to be present.
o Notes
 Rule can be invoked by either party or the judge
 The rule gives judge no discretion. W’s must be excluded if a party
requests it, unless they are exempted under the rule
 The rule makes exceptions for several categories of W’s who
cannot be excluded from the courtroom.
Refreshing a W’s Memory

 Generally
o If a W states that they cannot recall the answer to a question asked by
the Atty, the Atty may attempt to refresh a W’s memory by showing the
W a writing (either one that the W herself wrote or one prepared by a
third party) to help them remember the answer.
o ANYTHNG can be used to refresh a W’s recollection – doesn’t have to be
admissible, don’t even have to be the W’s own statement
 Ex. – Receipt from a restaurant to refresh where they went to eat
and what time they left.
o 2 Requirements for Refreshing W Memory:
 (1) W must state they do not remember the answer to the question
being asked, and;
 when prepping your W’s, let them know about this in

advance
 (2) seeing the writing will “refresh her recollection”
 W prep: since you’re letting them know you’re going to
attempt refresh their recollection, explain the process to
them and make them understand you’re going to show
them their previous statement so they agree that it will help
refresh their memory
o Rule 612. Writing Used to Refresh a Witness's Memory
 (a) Scope. This rule gives an adverse party certain options when a
witness uses a writing to refresh memory:
 (1) while testifying; or
 (2) before testifying, if the court decides that justice
requires the party to have those options.
 (b) Adverse Party's Options; Deleting Unrelated Matter. [Unless
18 U.S.C. § 3500 provides otherwise in a criminal case], an
adverse party is entitled
 to have the writing produced at the hearing,
 to inspect it,
 to cross-examine the witness about it, and
 to introduce in evidence any portion that relates to the
witness's testimony.
 If the producing party claims that the writing includes
unrelated matter, the court must examine the writing in
camera, delete any unrelated portion, and order that the
rest be delivered to the adverse party. Any portion deleted
over objection must be preserved for the record.
 (c) Failure to Produce or Deliver the Writing. If a writing is not
produced or is not delivered as ordered, the court may issue any
appropriate order. But if the prosecution does not comply in a
criminal case, the court must strike the witness's testimony or--if
justice so requires--declare a mistrial.
 Notes
 Rights of the Adverse Party
 Adverse Party is entitled to inspect the writing, x-

examine the W about it, and introduce portions of
the writing into E even if the writing would not
otherwise be admissible.
o It can be introduced for the limited purpose of
assessing the W’s credibility.
 5 step process to refreshing recollection:
 (1) establish that the W doesn’t recall the answer to
a question
 (2) describe the writing the atty wishes to use to
refresh the W’s recollection and ask if that writing
would refresh the W’s recollection
 (3) Show the writing to the W
 (4) Ask whether the writing has refreshed the W’s
recollection or helped her to remember.
 (5) either before or during this process, the atty
must be sure to give opposing counsel a copy of the
writing
 Types of Writings Used to Refresh Recollection
 Any type of writing may be used
 Doesn’t even have to be a “writing” in the technical
sense. Can be a song, a scent, a photograph, etc.
Any object that counsel can use to refresh
recollection
 Refreshing Memory Before Testifying
 Court has discretion to allow opposing party to
invoke their 612 rights prior to testifying when
justice requires it.
 Usually, court will not allow them to do this, since it
usually results in “fishing expeditions”
 Effect of Introducing the Writing
 If the adverse party invokes their 612 rights and
chooses to admit the writing into E, the E is only
admissible to assess the W’s credibility.
 Judge will issue limiting instruction
Impeaching Witnesses
 Discrediting or “impeaching” witnesses is an essential part of many trials.
 Toolbox of Ten Tactics:
o 1) Exclude the Evidence Through a Specialized Rule.
 Generally
o 607 allows a party to impeach ANY witness, including their own
 Rule 607. Who May Impeach a Witness
o Any party, including the party that called the witness, may attack the
witness's credibility.
o Notes
 Parties can use 607 to impeach their own W’s for the purpose of
lessening the impact of damaging information that is likely to come
out during x-examination
Using Prior Statements to Impeach Witnesses

 Generally
o If an atty can show that a W’s courtroom testimony conflicts with
statements the W made outside the courtroom, the Atty will significantly
undercut the W’s testimony.
o However, the FRE restrict how Atty’s can use prior inconsistent statement
to impeach a W.
o 2 reasons to use a prior inconsistent statement
 impeachment
 get things into E that otherwise would be inadmissible
o Vocab
 Extrinsic Evidence – any E other than testimony from the W
currently on the stand
 Collateral Matter – a collateral matter is relevant to the case
solely because it impeaches a W.
 Non-collateral matters, in contrast, prove a fact in
consequence other than impeachment.
o Rule: judges use their discretion under Rules 403 and 611 to prohibit
extrinsic E of a prior inconsistent statement on purely collateral matter.
 Reason: E of this nature causes delay and confusion that
substantially outweighs its probative value (403) and disrupts the
orderly presentation of the E (611).
o However, the FRE allow parties to present extrinsic E of prior inconsistent

statements related to non-collateral matters
 613 imposes some modest procedural requirements on this
process.
o Rule 613. Witness's Prior Statement
 (a) Showing or Disclosing the Statement During Examination.
When examining a witness about the witness's prior statement, a
party need not show it or disclose its contents to the witness. But
the party must, on request, show it or disclose its contents to an
adverse party's attorney.
 (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic
evidence of a witness's prior inconsistent statement is admissible
only
 if the witness is given an opportunity to explain or deny the
statement and an adverse party is given an opportunity to
examine the witness about it, or
 if justice so requires.
 This subdivision (b) does not apply to an opposing party's
statement under Rule 801(d)(2).
 Notes
 Procedural Constraints on Extrinsic E
 Most courts would say that the possibility of redirect
can give the W an opportunity to explain or deny the
statement. The Atty crossing the W doesn’t have to
be the one that gives them the opportunity.
o Even if opposing counsel doesn’t take the
opportunity to conduct redirect, as long as
they could have, the rule is satisfied.
 Prior Consistent Statements
 A party cannot use a W’s prior consistent
statements to impeach a W. This has low probative
value and would be excluded under 403
 However, these can have high probative value if the
W is being rehabilitated, but they are still often
excluded
o Judges often admit these when the prior

statement occurred before an event that
allegedly changed a W’s testimony.
 Impeachment by Omission
 Courts will treat a W’s silence in lieu of a prior
statement as an inconsistency if the court believes
that the W was given the opportunity to provide that
information and there was no r-able reason for the W
not to provide that information
 Shows that W could be making things up on the
stand
 For criminal case: must emphasize why the W
would have given the info under the particular
circumstances – if the W was the victim, they
obviously want the bad guy to get caught. If they
didn’t see a tattoo and then they testify that you saw
one, that probably means they didn’t actually see it
o Once a person is Mirandized, they cannot be
impeached by omission. This makes it less r-
able. Even if the person waives their Miranda
rights, still not r-able to think the suspect
would have told the police EVERYTHING.
o However, statements made pre-Miranda can
be used to impeach by omission
o Any scenario where there would be a reason
for not answering the question completely
would mean that you can’t impeach by
omission.
Impeachment: Revealing Untruthful Character on Cross-Examination

 Rule 404. Character Evidence; Crimes or Other Acts
o (a) Character Evidence.
 (1) Prohibited Uses. Evidence of a person's character or character
trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.
 (3) Exceptions for a Witness. Evidence of a witness's character

may be admitted under Rules 607, 608, and 609.
o NOTES:
 Reason for this rule:
 Even liars tell the truth. Even a negligent person can be
careful. Even a violent person can be chill. Point – this type
of E doesn’t really prove anything.
 Propensity E
 (1) can cross the W on her prior bad acts and prior crimes
 (2) by offering extrinsic E of those acts or crimes
 (3) by calling character W’s who will testify about the W’s
untruthful character.
 Rule 608. A Witness's Character for Truthfulness or Untruthfulness
o (b) Specific Instances of Conduct. Except for a criminal conviction under
Rule 609, extrinsic evidence is not admissible to prove specific instances
of a witness's conduct in order to attack or support the witness's character
for truthfulness. But the court may, on cross-examination, allow them to
be inquired into if they are probative of the character for truthfulness or
untruthfulness of:
 (1) the witness;
o Notes:
 The rule bars proof of specific instances by extrinsic E – in other
words, Atty cannot introduce other E of character, but may solicit
testimony from the W on cross.
 In other words, atty must live with whatever answer the W
gives
 Rationale: Efficiency. This would cause detours into
unrelated controversies
 Good faith basis
 Must have good faith belief to ask a question about a
specific incidence suggesting untruthfulness
 A GF belief must rest on some E, even if it’s
inadmissible
 A person’s “law breaking propensity” isn’t going to satisfy 608(b)
Using Criminal Convictions to Impeach Witnesses

 Generally
o There must be an actual certified judgment of conviction or 609 to apply
o Must also take the stand as a W for 609 to apply
o Steps for 609 Analysis:
 (1) has the W received a pardon, annulment, or certificate or
rehabilitation? If so, apply 609(c)
 If yes, that ends it. It’s inadmissible
 (2) is the prior crime a juvenile adjudication? If so, apply 609(d)
 (3) is the crime over 10 years old? If so, apply 609(b)
 Probative value must outweigh risk of prejudice (this is the
reverse of 403)
 (4) is the crime one that required proof of a dishonest act or false
statement? If so, apply Rule 609(a)(2) and admit.
 (5) Is the crime is a misdemeanor? If so, apply 609(a)(1) and
preclude
 (6) Is the W a defendant? If so, apply 609(a)(1)(B)’s test,
admitting the E if its probative value outweighs its prejudicial effect
to the accused.
 (7) Otherwise, apply 609(a)(1)(A), using the ordinary Rule 403
test to determine admissibility
o Foreign convictions
 Convictions in a foreign jx. Are they admissible?
 General rule – as long as court is satisfied that the DP rights
of D were sufficiently protected, in most cases courts will
allow the foreign conviction and subject it to 609 just like
any other conviction
 Rule 609. Impeachment by Evidence of a Criminal Conviction
o (a) In General. The following rules apply to attacking a witness's
character for truthfulness by evidence of a criminal conviction:
 (1) for a crime that, in the convicting jurisdiction, was punishable
by death or by imprisonment for more than one year, the
evidence:
 (A) must be admitted, subject to Rule 403, in a civil case
or in a criminal case in which the witness is not a
defendant; and
 (B) must be admitted in a criminal case in which the

witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that defendant;
and
 (2) for any crime regardless of the punishment, the evidence
must be admitted if the court can readily determine that
establishing the elements of the crime required proving--or the
witness's admitting--a dishonest act or false statement.
o (b) Limit on Using the Evidence After 10 Years. This subdivision (b)
applies if more than 10 years have passed since the witness's conviction
or release from confinement for it, whichever is later. Evidence of the
conviction is admissible only if:
 (1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect; and
 (2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair opportunity
to contest its use.
o (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation.
Evidence of a conviction is not admissible if:
 (1) the conviction has been the subject of a pardon, annulment,
certificate of rehabilitation, or other equivalent procedure based on
a finding that the person has been rehabilitated, and the person
has not been convicted of a later crime punishable by death or by
imprisonment for more than one year; or
 (2) the conviction has been the subject of a pardon, annulment,
or other equivalent procedure based on a finding of innocence.
o (d) Juvenile Adjudications. Evidence of a juvenile adjudication is
admissible under this rule only if:
 (1) it is offered in a criminal case;
 (2) the adjudication was of a witness other than the defendant;
 (3) an adult's conviction for that offense would be admissible to
attack the adult's credibility; and
 (4) admitting the evidence is necessary to fairly determine guilt or
innocence.
o (e) Pendency of an Appeal. A conviction that satisfies this rule is

admissible even if an appeal is pending. Evidence of the pendency is also
admissible.
 Generally
o Rule 609. Impeachment by Evidence of a Criminal Conviction
 (a) In General. The following rules apply to attacking a witness's
character for truthfulness by evidence of a criminal conviction:
o The rule applies only when the party uses a criminal conviction for a
particular purpose: to suggest that a W has an untruthful character. If
party attempts to introduce a criminal conviction for a different reason,
the rule doesn’t apply.
 Ex. – a prior conviction is an element of some crimes (i.e., felon in
possession)
o If party falls under this rule, then jury may consider the E ONLY to assess
the W’s character for truthfulness.
untruthfulness of:
 Notes:
o 608 lays out an exception for criminal convictions
 The W need not receive an actual sentence for the felony to
punishable by more than one year
 Is sentence was suspended, it still qualifies
 Balancing Test
 Five factors a court may consider
 (1) Impeachment value of a former crime
o crimes that relate to telling the truth = more
probative
 (2) timing of the prior conviction and subsequent
criminality
o if the conviction is stale, less probative value
 (3) similarity b/t the prior crime and the charged one
o if the two are similar, the likelihood of

prejudice is particularly high
 (4) Importance of the D’s testimony
o risk that the D would forego testifying counts
as an element of prejudice. If the testimony
would be really important, this factor weighs
in
 (5) Centrality of Credibility
o if guilt turns on a “swearing match b/t the
prosecutor and the defendant,” the
prosecutor’s interest in impeaching the D is
higher and the jury may have greater need of
that testimony.
 Note: these factors are merely guidelines
o Crime Involving a Dishonest Act or False Statement/Any Witness
(crimin falsi)
 Notes:
 Allows litigants to use any conviction for a crime of
dishonesty or false statement, no matter what the sentence,
to impeach any W’s character for truthfulness
 Problem: which crimes constitute a dishonest act or false
statement?
 Answer: a dishonest act or false statement must be
an element of the crime
o This must be apparent from the statutory
language or some other readily available info
such as the indictment
 Examples
 Fraud, embezzlement, perjury (misdemeanor)
o Time Limits
 If conditions are imposed on your release, then these conditions
must be satisfy to be considered “released from confinement.”
 However, parole is a weird animal.
 If the parole is revoked due to a violation, then the

release from confinement date is whenever the
sentence is fully served. If they get out on parole but
never violate a condition and never go back, then
they are “released from confinement” for purposes of
the rule. So, if D was paroled, must see whether D
violated his parole and got sent back to jail to
determine when D was “released from confinement”
Reputation or Opinion Evidence of Untruthful Character

 Generally
o 5 rules to be aware of
 (1) the party attacking credibility must go first. Truthfulness must
have been attacked first.
 (2) a proper foundation must be laid before the character W can
testify about either opinion or reputation
 (3) the character W may not testify about specific acts on direct
 (4) the x-examiner must ask about specific acts by asking if the
character is aware of the specific acts, not whether the act
occurred
 (5) Neither side can introduce extrinsic E of the specific act
o Think of character W’s as experts who testify about character. Must lay a
foundation first.
 First, they must know the fact W. They must run in the same
circles.
 Must also establish that the other people in that circle know the
W’s character for truthfulness/untruthfulness
 Character W must also have enough info to have formed their OWN
opinion about the fact W’s character for truthfulness/untruthfulness
o (a) Reputation or Opinion Evidence. A witness's credibility may be
attacked or supported by testimony about the witness's reputation for
having a character for truthfulness or untruthfulness,
o or by testimony in the form of an opinion about that character.
o But evidence of truthful character is admissible only after the witness's
character for truthfulness has been attacked.
o Notes:
 3 limits
 (1) E must be in the form of reputation or opinion only
 cannot ask W about specific incidents of truthfulness
or untruthfulness. Can only ask about general
reputation or opinion only
 (2) E must relate to the W’s character for truthfulness or
untruthfulness
 (3) testimony about a W’s character for truthfulness can
only be elicited after his character has been attacked.
 When has a character been attacked?
 Character can be attacked in 3 ways:
 (1) If an opponent presents a character W who
testifies about the fact W’s lack of truth character
 (2) If the opponent conducts a cross of the fact W
and asks questions about specifics acts of dishonesty
 (3) If the opponent introduces E of a conviction
under R 609
 Character has NOT been attacked when:
 An aggressive cross took place about the W’s
testimony, pointing out inconsistencies
o This doesn’t attack general character for
truthfulness
 Any other attack on the W’s credibility in the
context of the current case being tried
 If individual doesn’t testify as a W in court, 608(a) doesn’t apply
and party cannot rely on it to attack a person’s credibility
Cross-Examining The Character Witness

 Generally
o 2 ways in which a fact W’s character can be rehabilitated by offering E to
show a truthful character:
 Explanation of any extenuating circumstances related to prior
convictions. The Atty will usually elicit this directly from the fact W
on redirect
 Introduction of reputation or opinion E suggesting a character for

truthfulness. The party offers this testimony through a rebuttal
character W
o R 608(b)(2) allows parties to ask character W’s on cross-examination
about specific incidents of a fact W’s behavior.
 This is true even though the party who examined the W on direct
cannot ask about these
 Must still have a good-faith basis for believing that the specific acts
occurred
untruthfulness of:
 (1) the witness; or
 (2) another witness whose character the witness being cross-
examined has testified about.
 Notes:
o This rule is a win-win for the x-examining party because if they ask about
a specific incident, one of two things will happen:
 The W will have to admit to knowing about the incident, which
undermines the character W’s testimony regarding the
truthfulness/untruthfulness of the fact W
 The W will deny knowing about the incident, which undermines
character W’s own credibility because “they don’t really know the
fact W that well” and it undermines the scope of their knowledge
o The cross-examining party can ask about specific conduct but cannot
introduce extrinsic E of that conduct
o X-examiners must still have a good faith basis to believe an incident
occurred in order to ask about it
o Trial judge can still exclude questions under 403 balancing analysis
Religious Beliefs and Impeachment

 Generally
o There’s a danger that jurors would give undue weight to testimony if

parties were allowed to present E of their religious beliefs to show
truthfulness, since jurors might give undue weight to someone with their
same religion
o At the same time, jurors might discount testimony from W’s adhering to
other faiths or to no religion
o R 610 prohibits parties from using a W’s religious beliefs to attack the W’s
credibility. It also bars parties from using religious beliefs to enhance
credibility
o The rule forbids introduction of religious beliefs to attack or bolster
credibility, but not for other purposes such as:
 Bias
 Damages
 Motive
 Rule 610. Religious Beliefs or Opinions
o Evidence of a witness's religious beliefs or opinions is not admissible to
attack or support the witness's credibility.
Rule of Completeness
 Generally
o R 106 prevents litigants from misleading the jury through piecemeal
use of selected text from documents
o If one party introduces part of a document, R 106 allows the opponent to
immediately introduce other portions “that in fairness ought to be
considered at the same time” as the first portion.
o The rules applies the same principle to recorded statements, as well as
docs and recordings that are pieces of a larger series.
 Rule 106. Remainder of or Related Writings or Recorded Statements
o If a party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other
part--or any other writing or recorded statement--that in fairness ought to
be considered at the same time.
 Notes:
o R 106 allows a party to introduce qualifying portions of a writing or
recorded statement “as soon as possible”
 Don’t have to wait for your case-in-chief
o Applies only to writings and recorded statements

 Doesn’t apply to other kinds of E like oral convos, photos, or
physical objects
o Parties can also use the rule to introduce whole writings or recordings
when necessary to understand another document offered by the opponent
o R 106 has a built-in fairness principle that allows trial judge to exercise
discretion
Character Evidence and the Rules

 Generally
o “character E” is an umbrella term that encompasses character, reputation,
and actions
 character traits are internal – these are traits that incline people to
act in certain ways
 reputation is external – it reflects what other people think about an
individual
 actions are somewhere in the middle b/t character and reputation
– we deduce character from an individual’s actions, and we use
actions to construct an individual’s reputation.
o The admissibility of any E related to character depends on what the
proponent is trying to prove and type of inferences the proponent relies
upon when using that character E.
o The 4 Categories of Character Evidence
 (1) Proof of a W’s Propensity to Lie or Tell the Truth
 inferences made:
 the W has an untruthful character
 a person with an untruthful character has a tendency
to lie
 therefore, the W lied on the stand
 (2) Proof of Conduct by Propensity
 Inferences made:
 The W has committed many violent acts
 Someone who has committed many violent acts
probably has a violent character
 A person with a violent character has a tendency to
commit assaults
 Therefore, the W assaulted “x” on this particular date

 404(a) bars most attempts to prove conduct by propensity,
but there are exceptions.
 (3) Proof of Character or Reputation as Elements
 parties may offer E of character or reputation for reasons
that do NOT depend on an inference propensity
 e.g., some crimes or claims require proof of
character or reputation to establish an element of
that claim or defense.
o Ex. – defamation plaintiffs must show injury
to reputation
 Rule 405 would allow this E
 (4) Proof of Other Acts for Non-Propensity Purposes
 E of a person’s actions can est. facts other than character
and can support inferences other than one based on
propensity.
 When parties offer E of an action for a purpose other than
to prove character and propensity to act in a particular way,
R 404(b) often allows that E.
 E.g., D is on trial for breaking into a safe on June 25.
Prosecutor offers E to establish D broke into same safe on
March 19. What does this E prove?
 Proves that D has a dishonest character, tendency to
steal, and therefore D opened safe on June 25
 BUT…also proves that D knows how to crack safes or
that D had the combination and was capable of
opening the safe on June 25. If offered for this
purpose, then it’s offered as proof of other acts for a
non-propensity purpose.
Evidence to Prove Character as an Element

 Generally
o The rules of E impose few limits on proving character when proving such
character is an element of a crime, claim, or defense
o 404(a) doesn’t bar this type of character E because it’s not being used to
suggest that a person acted consistently with their character on a
particular occasion.
 Rule 405. Methods of Proving Character
o (a) By Reputation or Opinion. When evidence of a person's character or
character trait is admissible, it may be proved by testimony about the
person's 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 person's conduct.
o (b) By Specific Instances of Conduct. When a person's 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
person's conduct.
o Notes
 Must still lay a foundation in the same you would under 608(a)
 Atty must first est. that the W knows the person whose
character is at issue or knows that person’s reputation
 Under (a), Cross-examination can be on specific instances of
conduct, but crossing atty must have GF belief that the incident
actually occurred
 Even though 404 and 405 don’t bar character E used to prove an
element, another rule may still prohibit the proffered piece of E,
such as 403 or hearsay/authentication rules
 When is character an “element?” This is a VERY narrow category of
cases
 Four categories of cases account for almost every lawsuit in
which character is an element
 Defamation cases
 Child custody cases – involve best interest of the
child standard which in turn makes the parent’s
character relevant
o But…child custody never comes up in federal
court.
 Entrapment cases – requires that D prove that she
lacked the predisposition to commit the crime
o Were it not for corrupting influence of law

enforcement, D would not have committed
the crime.
 Negligent Entrustment – must argue that D
carelessly entrusted car, gun, or something else
that’s potentially dangerous to a person and the D
had reason to know they would misuse the
instrument
Using Character Evidence to Prove Propensity

 Generally
o Character E offered to show propensity doesn’t prove an element of the
case directly, but instead it suggests that, because a person had a
tendency to act in a particular way, the person was more likely to have
committed a particular act on a specific occasion
o Propensity evidence is very relevant but it is highly prejudicial
 Jury may overestimate the value of the E
 It distracts the jury from the question of what happened on this
occasion
 Might punish a D for past conduct or reward the D for past good
conduct.
 Steps (exam analysis):
o First, determine if the character E is bared by 404(a)(1).
o If it is barred, is there an exception?
 If no exception, it’s barred
 (1) Prohibited Uses. Evidence of a person's character or character
trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.
o Notes
 Good or bad character
 The rule bars E of both good or bad character if the E is
used to prove that a person acted consistently with their
character on a particular occasion
 “Any” person
 404(a)(1) bars the use of character E to prove the

propensity of ANY person to act in a particular way. 608 &
609 limit their scope to proof of a W’s character, but 404(a)
(1)’s prohibition applies even to people who never appear in
the courtroom.
o Class Notes
 If you’re introducing something to show that specific act occurred,
it’s probably propensity E and is barred by 404(a).
o Alcoholism/drug addiction as a character trait
 Is it a character trait or is addiction a disease?
 If it’s a disease, then 404(a)(1) doesn’t apply
 Lots of litigants fight about this
o Intelligence as a character trait
 There’s argument over this as well.
 This is worth researching to determine whether intelligence is a
character trait or something else
o Employment discrimination and domestic violence cases
 If character E was allowed in these types of cases, it would help
the P or prosecution HUGELY
 The E is much more probative in a domestic abuse case
 In employment discrimination, it is also probative because not a lot
of direct E and it shows “another step in the pattern”
 Courts often manipulate the rule to find a non-propensity reason
for admitting the E.
 Ex. – we’re using it to show “pattern” – but isn’t this the
same thing as propensity?
Character Evidence to Show Propensity in Criminal Prosecutions

 Generally
o 404(a)(2) lays out 3 exceptions to the “no propensity” rule but these
exceptions apply ONLY to CRIMINAL PROSECUTIONS.
o The Mercy Rule – criminal defendants should have as much latitude as
possible to present a defense.
 If criminal D believes that proof of his good character, or of an

alleged victim’s bad character, that would be helpful to D’s
innocence, the mercy rule weighs in favor of allowing D to present
this E
o To maintain fair balance in the adversarial process, courts also allow
prosecutors to use character E to make propensity args, usually in
situations where they are responding to D’s use of propensity E.
 (2) Exceptions for a Defendant or Victim in a Criminal Case. The
following exceptions apply in a criminal case:
 (A) a defendant may offer evidence of the defendant's
pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;
 (B) subject to the limitations in Rule 412 [rape shield], a
defendant may offer evidence of an alleged victim's
pertinent trait, and if the evidence is admitted, the
prosecutor may:
 (i) offer evidence to rebut it; and
 (ii) offer evidence of the defendant's same trait;
and
 (C) in a homicide case, the prosecutor may offer evidence
of the alleged victim's trait of peacefulness to rebut
evidence that the victim was the first aggressor.
o Notes
 Four key points about the exceptions
 (1) these exceptions to the no-propensity rule apply only in
criminal case
 (2) the exceptions allow only proof of “pertinent” character
traits.
 (3) the exceptions allow proof about both the D’s character
and the alleged victim’s character
 (4) the exceptions distinguish between when the D may
introduce these types of E and when the prosecutor may do
so
 D has a lot of leeway to introduce character E about herself or the

alleged victim
 Only limits on this are (1) E must relate to a “pertinent”
character trait and (2) the E must comply with Rule 412,
the rape shield law
 When prosecutor may introduce character E
 Only in response to an action taken by the D
 Responses fall into 3 categories
o (1) If D offers character evidence about
herself, prosecutor may rebut that E with
proof that the D lacks that trait or holds an
opposite one
o (2) If D introduces character E about the
alleged victim, the prosecutor may rebut
that E by showing that the victim lacked that
trait or held the opposite one. The prosecutor
can also introduce E that the D held the trait
that the D attributes to the victim.
o (3) in a homicide case, can offer E that the
deceased victim was a peaceful person in
response to any E that the deceased was the
first aggressor
 ANY evidence that D was first
aggressor – doesn’t have to be
character E. Doesn’t have to be E that
the victim was violent. Can be any E
that they were the first aggressor.
 Rebuttal by prosecution
 The rebuttal E must match the actual trait that the D
introduced
 Being a “law abiding person” as a character trait
 This is a really broad character trait, but courts allow
it. D shouldn’t usually offer E of this because it opens
the door to the prosecution to offer ANY E of non-law
abiding character.
 Pertinence
 Character E under 404(a)(2)(A) or (B) must be “pertinent”

to the crime or defense.
 Examples
 D in a homicide trial claims self-defense and
supports his claim by offering E that the alleged
victim had a violent temper
 D’s own peaceful character in a prosecution for
assault, battery, homicide, or other violent acts
 D’s honest character in a prosecution for fraud
 D’s aversion to risk in a gambling prosecution
 Asking Change of opinion questions about the crime charged
 If D is on trial for domestic violence, Prosecutor cannot say
“would your opinion change if you knew that D beat his
wife?”
 Courts won’t allow this usually, because it raises the
risk that the E will be used for propensity purposes.
The risk of prejudice is so high that it wouldn’t
survive a 403 challenge.
 Entrapment
 If D is not law abiding, would not offer this defense b/c it
opens door for prosecutor to talk about specific instances of
conduct where D was not law abiding
 Vast majority of cases…courts have said character is an
element of an entrapment defense.
 “law-abiding” as a character trait is very BROAD so basically
EVERTHING IS FUCKING COMING IN
Methods of Proving Propensity in Criminal Cases

 Generally
o Methods for proving propensity of character are the same as those used in
R 608’s methods for proving a W’s propensity to lie or tell the truth….can
only offer character E in the form of opinion testimony about the person’s
reputation. On cross, the opposing party can ask about specific instances
of conduct
o Difference b/t 608 and 405
 608 deals only with a W’s propensity to lie or tell the truth
 405 deals with all other propensity arguments – AND it deals only
with the defendant’s or the victim’s propensity.
 Rule 405. Methods of Proving Character
o (a) By Reputation or Opinion. When evidence of a person's character or
character trait is admissible, it may be proved by testimony about the
person's 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 person's conduct.
o Notes
 Testimony about the absence of specific acts, just like E of their
presence, violates R 405.
 Laying foundation – atty must lay foundation to est. that the
character W has sufficient knowledge to offer an opinion about
character or reputation
 Can use this sometimes to get in specific instances of
positive conduct
 Ex. – Atty: how do you know the D?
o W: I’m his pastor, and he’s been to church
every Sunday for the last twenty years.
 Cross-Exam
 The specific acts inquired into must be “relevant” acts.
 Requirement of GF belief – but can be based on hearsay
and weak forms of E
 Cannot introduce extrinsic E of bad character. Must accept
the W’s testimony for what it is.
 Limiting instruction issued when specific acts are inquired
into
 Rebuttal Character W’s
 In addition to x-examining a character W, the parties in a
criminal case may present rebuttal character W’s.
 Can testify that the D or victim has a character trait
contrary to the one described by the other side’s
character W
 Can only testify about general reputation/opinion E.
Cannot inquire into specific acts
o But on cross, opponent may inquire into

specific acts
o But cannot prove these specific acts through
extrinsic E…must live with the W’s answer.
Crimes, Wrongs, or Other Acts

 Generally
o Deals with the fourth category of character E: E of specific acts that reveal
an individual’s character but are also relevant to prove some other fact of
consequence in the case
o This E is not actually being offered to prove character, but some other
relevant fact-of-consequence
 But, concern is that jury might also use it to infer an individual’s
character, and then conclude that they acted in conformance with
that character.
o The E is admissible to prove some other fact of consequence in the case,
but not admissible to prove propensity
o ***404(B) IS NOT AN EXCEPTION TO (A)(1)***
 instead, it is further explanation of 404(a)(1). Arguably, this
section is completely unnecessary.
o (b) Crimes, Wrongs, or Other Acts.
 (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to show that
on a particular occasion the person acted in accordance with the
character.
 (2) Permitted Uses; Notice in a Criminal Case. This evidence may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. On request by a defendant
in a criminal case, the prosecutor must:
 (A) provide reasonable notice of the general nature of any
such evidence that the prosecutor intends to offer at trial;
and
 (B) do so before trial--or during trial if the court, for good
cause, excuses lack of pretrial notice.
o Notes
 First, character E is not admissible to prove that a person acted “in
accordance with” their character.
 Second, E of other acts may be admissible for other purposes
 The world “may” underscores that the judge has discretion
under 403 not to admit the E
 Third, the rule lists 9 specific examples that qualify as “another
purpose” for which the E might be admitted. However, this is a
non-exclusive list
 Fourth, the section applies to both criminal and civil cases.
 Fifth, 404(b) requires the prosecution in a criminal case to provide
r-able notice of its intent to introduce E of crimes or other acts in
the manner sanctioned by the rule
 Other purposes
 Motive – prosecutor can sometimes argue that a previous
crime or other bad act is admissible because it motivated
the charged crime
 Plan – sometimes previous crimes/bad acts will establish a
common scheme or plan
 Identity – sometimes E that includes other bad acts will
also prove the identity of the assailant and link him to the
crime
 First, identity must be contested. If D concedes
identity, can’t introduce character E to show identity.
 Can be distinct action on a number of occasions that
are SO DISTINCT they prove identity. The more
unusual the characteristic is, the more it goes to
identity
 At some point, propensity E becomes identity E. It is
a spectrum. Question will always be: is the E
particular enough?
 Opportunity – some crimes require a particular
opportunity to commit, such as access to a protected place
or to special tools. Prosecutor may offer E that D had access
to a protected place or to special tools on a particular
occasion
 Knowledge – sometimes complex crimes require specific

knowledge.
 i.e., safecracking
 Intent – knowledge of other crimes/bad acts can be
admissible to prove that D possessed the intent necessary
to commit the crime.
 Note: courts often allow prior bad acts/crimes into E
under this category, esp. in illegal drug cases where
the prosecution wants to use previous occasions of
drug distribution by the D to prove that D distributed
drugs on a particular occasion. This violates 404(b)
but courts tend to still allow it.
 Most courts view intent very broadly sort of like an
exception to 404(a)(1), but his is improper
 Intent must be in dispute or be an element of the
claim/defense
 Res gestae – means “E necessary to complete the story.”
If the prosecution’s theory would be incomplete and would
confuse the jury unless the prior crime/bad act comes in,
then it is res gestae and is admissible for purposes of
completing the story.
 Pattern – comes into play often in employment
discrimination cases. See hypo #8, prior bad acts
hypotheticals handout
 Subsequent Crimes, Wrongs, and Acts
 Most of the acts offered as E under 404(b) occur before the
charged crime. However, the rule poses no time constraints
on this E.
 Therefore, acts that occurred prior to the charged crime and
acts that occurred after the charged crime may be
admissible under 404(b).
 Good Acts
 404(b) applies to both good and bad acts
 Interplay with Rule 403
 Judges usually conducts a rule 403 balancing test to

determine if the E is admissible if a non-propensity purpose
if found to be present
 Limiting Instructions
 When E is admitted under 404(b), judge may issue limiting
instruction if requested
Habit
 Generally
o R 406 adds another permissible purpose to the list of non-propensity uses
recognized in R 404(b): use of other acts to prove an individual’s habit or
an organization’s routine practice
o The rule is superfluous…all it does is give another example of a non-
propensity use for E.
o Habit – refers to specific, repeated responses to a particular
situation or stimulus. In other words, habit means that an individual
behaved the same way during the incident that is the subject of litigation.
 Ex. – mechanic who always follows the same steps in changing the
oil to a car
o Two reasons why courts allow habit E
 It’s morally neutral
 It has a higher probative value than propensity E
o To distinguish habit from propensity, focus on 3 factors:
 (1) the specificity of the conduct
 (2) the distinctiveness of the situation producing the conduct
 (3) the regularity of the conduct
o Very specific conduct that arises regularly in an identifiable context is
most likely to constitute a habit
o Considered to be more reliable because you’re not even thinking about
it….it’s automatic
 Rule 406. Habit; Routine Practice
o Evidence of a person's habit or an organization's routine practice may be
admitted to prove that on a particular occasion the person or organization
acted in accordance with the habit or routine practice. The court may
admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness.
o Notes
 Three points
 (1) the rules don’t define the terms “habit” or “routine
practice”
 courts look @ Advisory Committee comment
o Habit – one’s regular response to a repeated
specific situation.
o Routine practice – is the equivalent of habit
for an organization
 (2) 406 allows admission of the E “regardless of whether it
is corroborated or whether there was an eyewitness”
 comes down to questions of W credibility
 jury can reject the uncorroborated testimony or
accept it
 habit can satisfy the BYARD standard in a criminal
case
 (3) 406 is silent on how to prove habit
 courts allow it to be proved by opinion testimony and
by specific instances of conduct
o attys normally choose the latter
 Narcotics testing cases – courts routinely say that when the
chemist testifies that a substance is what the state purports it to
be, that this qualifies as habit.
 Proof that a letter was mailed – comes into play in a lot of civil
cases. To prove receipt, must prove the letter was actually sent.
Corporation’s habit can be relevant to prove that a particular letter
got mailed on a particular day.
 This is an organizational habit
 Organizational habits are easier to prove b/c they are
treated as being more reliable. Usually, they are written
down somewhere.
Rape Shield Law

 Generally
o Rape shield law restricts the kinds of E that can be introduced in a sexual
assault case.
o 412 prevents almost all E of an alleged victim’s prior sexual encounters or

reputation
o 412 is another kind of “character E” rule in that it bars use of an
individual’s specific actions or reputation to suggest that the person has a
propensity to act in a particular way.
o However, rape shield law is not superfluous like some of the character E
rules (404(b) and 406) because 404 provides two opportunities for
defense attys to admit E of a rape victim’s sexual reputation or past
sexual history
 (1) 404(a)(2)(B) expressly allows the D in a criminal case to offer
“E of an alleged victim’s pertinent trait”
 (2) also admissible under 404(b) whenever defense atty convinces
judge that it’s being used to prove some fact other than
propensity.
o 3 reasons for rape shield laws
 (1) A victim’s sexual history isn’t relevant to prove whether the
victim consented to sex on a particular occasion
 (2) this kind of E often is unduly prejudicial to the prosecutor or
other party who calls the alleged victim as a W
 (3) robust protection of sexual assault victims is necessary to
encourage them to come forward and testify
 Rule 412. Sex-Offense Cases: The Victim's Sexual Behavior or
Predisposition
o (a) Prohibited Uses. The following evidence is not admissible in a civil or
criminal proceeding involving alleged sexual misconduct:
 (1) evidence offered to prove that a victim engaged in other
sexual behavior; or
 (2) evidence offered to prove a victim's sexual predisposition.
o (b) Exceptions.
 (1) Criminal Cases. The court may admit the following evidence in
a criminal case:
 (A) evidence of specific instances of a victim's sexual
behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other
physical evidence;
 (B) evidence of specific instances of a victim's sexual

behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
 (C) evidence whose exclusion would violate the
defendant's constitutional rights.
 (2) Civil Cases. In a civil case, the court may admit evidence
offered to prove a victim's sexual behavior or sexual predisposition
if its probative value substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party. The
court may admit evidence of a victim's reputation only if the victim
has placed it in controversy.
o (c) Procedure to Determine Admissibility.
 (1) Motion. If a party intends to offer evidence under Rule 412(b),
the party must:
 (A) file a motion that specifically describes the evidence
and states the purpose for which it is to be offered;
 (B) do so at least 14 days before trial unless the court, for
good cause, sets a different time;
 (C) serve the motion on all parties; and
 (D) notify the victim or, when appropriate, the victim's
guardian or representative.
 (2) Hearing. Before admitting evidence under this rule, the court
must conduct an in camera hearing and give the victim and parties
a right to attend and be heard. Unless the court orders otherwise,
the motion, related materials, and the record of the hearing must
be and remain sealed.
 Notes
o The General Prohibition
 (a) Prohibited Uses. The following evidence is not admissible in a
civil or criminal proceeding involving alleged sexual misconduct:
 (1) evidence offered to prove that a victim engaged in
other sexual behavior; or
 (2) evidence offered to prove a victim's sexual
predisposition.
 Four points about the rule
 (1) the rule encompasses both civil and criminal

proceedings
 (2) applies only to trials involving “alleged sexual
misconduct”
 this is liberally construed. Prosecutor doesn’t have to
charge a sex-related crime.
o In civil cases, could govern sexual battery or
sexual harassment claims
 (3) bars two types of propensity E:
 E of specific acts (“other sexual behavior”)
 E of reputation or general character (“sexual
predisposition”)
 (4) 412 broadly bars E of sexual behavior or predisposition
regardless of the purpose for which a litigant offers the E.
o The Exceptions – Criminal Cases
 (b) Exceptions.
 (1) Criminal Cases. The court may admit the following
evidence in a criminal case:
 (A) evidence of specific instances of a victim's
sexual behavior, if offered to prove that someone
other than the defendant was the source of semen,
injury, or other physical evidence;
 (B) evidence of specific instances of a victim's
sexual behavior with respect to the person accused
of the sexual misconduct, if offered by the defendant
to prove consent or if offered by the prosecutor; and
 (C) evidence whose exclusion would violate the
defendant's constitutional rights.
 Notes on criminal cases exceptions
 The first exception allows proof of a complainant’s prior
sexual conduct when that E suggests that someone other
than the accused was responsible for semen or other
physical evidence.
 Important note: 412(b)(1)(A) exception only applies
if prosecutor introduces the physical E. Prosecution
must open the door first.
 The second exception admits E of prior sexual encounters

b/t the complainant and the D.
 D may offer this kind of E for just one purpose
(showing consent), but the prosecutor may offer this
E for any purpose (including propensity purpose to
show that D raped the victim on other occasions).
 Courts construe “sexual behavior” very liberally,
saying that it includes any kind of intimate contact
b/t the complainant and the accused
o Includes statements in which the alleged
victim expresses an intent to engage in sex
with the accused, or voiced sexual fantasies
to the accused
 The third exception is a catchall – allows E of sexual acts
or reputation in criminal cases if excluding them “would
violate the D’s constitutional rights.”
 Reflects balance b/t shielding rape victims and
allowing D’s to present a defense
 6th Am. right to confrontation comes into play here.
o D can show that complainant has accused
others of rape falsely and show a “scheme of
fabrication”
o D attys can also use the catchall to claim that
complainant manufactured a rape claim to
protect an existing relationship
o Most courts reject E offered to show
complainant had a “promiscuous” reputation
o The Exceptions – Civil Cases
 (2) Civil Cases. In a civil case, the court may admit evidence
offered to prove a victim's sexual behavior or sexual predisposition
if its probative value substantially outweighs the danger
 of harm to any victim and
 of unfair prejudice to any party.
 The court may admit evidence of a victim's reputation only if the
victim has placed it in controversy.
o Notes on civil cases exception
 E fitting this exception remains subject to all other rules of E,

including propensity
 E of sexual acts or sexual predisposition faces a “reverse 403 test”
in civil cases: the E is admissible only if its probative value
substantially outweighs the unfair prejudice to any party. The rule
weighs in favor is exclusion.
 The rule ensures that the court weights the danger to the alleged
victim, whether or not she is a party to the litigation
 Reputation E is admissible in civil cases involving alleged sexual
misconduct only if the alleged victim has “opened the door” by
presenting E of her own reputation.
 Physical sexual contact not required. Can be a sexual harassment
case.
o Procedures
 2-step procedure for determining the admissibility of any E of an
alleged victim’s sexual activity or reputation:
 (1) a party intending to offer this E must give notice to the
court, opposing counsel, and the alleged victim fourteen
days before trial.
 (2) the court must hold a secret, sealed proceeding
involving both parties and the alleged victim in order to
determine whether the E is admissible.
 Ensure that the victim’s privacy isn’t violated by the
rule in the process of determining admissibility
o Class Notes
 412(b)(1)(A) exception only applies if prosecutor introduces the
physical E
Propensity in Sexual-Assault and Child-Molestation Cases

 Generally
o Rules 413, 414, and 415 create another exception to the propensity rule:
the use of character E to prove a D’s tendency to commit sexual assaults
or child molestation.
o In criminal prosecutions for sexual assault, 413 allows prosecutors to

introduce E of other sexual assaults committed by the D and to use that E
for any purpose, including to suggest that the D has a propensity to
commit sexual assaults.
o R 414 achieves the same result in prosecutions for child molestation: the
prosecutor may introduce E of other molestations and argue that the D
has a propensity to molest children
o 415 allows the same E and propensity reasoning in civil cases involving
sexual assault and child molestation
o all of these rules were created by congress, not the advisory committee
 therefore, these are terribly drafted
 concerns about constitutionality….but the rules haven’t been ruled
unconstitutional yet
 consequences are low…most child molestation and sexual assaults
are prosecuted in state courts, not federal courts.
 Very few states have a 413–415 equivalent
 Congress argued that child molesters and rapists have a higher
recidivism rate than other types of criminals.
 Studies have gone both ways…depends on who’s funding
the study
 Rule 413. Similar Crimes in Sexual-Assault Cases
o (a) Permitted Uses. In a criminal case in which a defendant is accused of
a sexual assault, the court may admit evidence that the defendant
committed any other sexual assault. The evidence may be considered on
any matter to which it is relevant.
o (b) Disclosure to the Defendant. If the prosecutor intends to offer this
evidence, the prosecutor must disclose it to the defendant, including
witnesses' statements or a summary of the expected testimony. The
prosecutor must do so at least 15 days before trial or at a later time that
the court allows for good cause.
o (c) Effect on Other Rules. This rule does not limit the admission or
consideration of evidence under any other rule.
o (d) Definition of "Sexual Assault." In this rule and Rule 415, "sexual
assault" means a crime under federal law or under state law (as "state" is
defined in 18 U.S.C. § 513) involving:
 (1) any conduct prohibited by 18 U.S.C. chapter 109A;
 (2) contact, without consent, between any part of the defendant's

body--or an object--and another person's genitals or anus;
 (3) contact, without consent, between the defendant's genitals or
anus and any part of another person's body;
 (4) deriving sexual pleasure or gratification from inflicting death,
bodily injury, or physical pain on another person; or
 (5) an attempt or conspiracy to engage in conduct described in
subparagraphs (1)-(4).
o Rule 414. Similar Crimes in Child-Molestation Cases
 (a) Permitted Uses. In a criminal case in which a defendant is
accused of a child molestation, the court may admit evidence that
the defendant committed any other child molestation. The
evidence may be considered on any matter to which it is relevant.
 (b) Disclosure to the Defendant. If the prosecutor intends to offer
this evidence, the prosecutor must disclose it to the defendant,
including witnesses' statements or a summary of the expected
testimony. The prosecutor must do so at least 15 days before trial
or at a later time that the court allows for good cause.
 (c) Effect on Other Rules. This rule does not limit the admission or
 d) Definition of "Child" and "Child Molestation." In this rule and
Rule 415:
 (1) "child" means a person below the age of 14; and
 (2) "child molestation" means a crime under federal law or
under state law (as "state" is defined in 18 U.S.C. § 513)
involving:
 (A) any conduct prohibited by 18 U.S.C. chapter
109A and committed with a child;
 (B) any conduct prohibited by 18 U.S.C. chapter
110;
 (C) contact between any part of the defendant's
body--or an object--and a child's genitals or anus;
 (D) contact between the defendant's genitals or
anus and any part of a child's body;
 (E) deriving sexual pleasure or gratification from

inflicting death, bodily injury, or physical pain on a
child; or
 (F) an attempt or conspiracy to engage in conduct
described in subparagraphs (A)-(E).
o Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or

Child Molestation
 (a) Permitted Uses. In a civil case involving a claim for relief
based on a party's alleged sexual assault or child molestation, the
court may admit evidence that the party committed any other
sexual assault or child molestation. The evidence may be
considered as provided in Rules 413 and 414.
 (b) Disclosure to the Opponent. If a party intends to offer this
evidence, the party must disclose it to the party against whom it
will be offered, including witnesses' statements or a summary of
the expected testimony. The party must do so at least 15 days
before trial or at a later time that the court allows for good cause.
 (c) Effect on Other Rules. This rule does not limit the admission or
 Notes on 413/414
o The rules apply only in criminal cases in which the D is currently being
charged with either sexual assault or child molestation
o Each rule allows admission of a single type of E: E showing that the D
committed another offense of sexual assault (R 413) or child molestation
(R 414).
o This E is admissible for any relevant purpose, including propensity.
o Section (b) of each rule requires gov’t to give D notice of the E it plans to
present
o Section (c) points out that while 413 and 414 supersede Rule 404’s
general propensity bar, they don’t override other rules such as hearsay
and privilege, or 403.
o Section (d) of R 413 defines “sexual assault” for the purpose of that
rule, while section (d) of R 414 defines “child molestation.”
o None of the above rules require that the prior crime actually resulted in a
conviction
o No time limit for excluding prior convictions…but judge has discretion

under 403 to exclude them if they are “stale”
o 403 analysis…is weird when applied to these rules
 factors judges might look to
 length of time that has passed since the other acts
 reliability of the W’s testifying about the other acts
 similarity of the other acts to those charged
 whether the gov’t could make similar points with less
prejudicial E
 Courts inflate the probative value of this E because congress made
a statement that the probative value is naturally high in these
types of cases. 403 is much less successful in 413–415 situations
o Most states have refused to adopt 413–415
Preliminary Questions
 Generally
o Many questions of admissibility depend on contested facts
o R 104 establishes a process for resolving disputed issues – both legal and
factual – that relate to admissibility
 R 104 refers to these as “preliminary questions:
o 104(a) assigns most preliminary questions to the judge, including all
questions affecting legal admissibility and most issues of factual
admissibility.
 But, 104(b) limits judge’s authority when deciding one category of
preliminary factual issues: factual issues that affect whether E is
relevant.
o Whether or not E is relevant may depend on a whether a fact is true or
false: lawyers often refer to this as “conditional relevance” but the rules
call it “relevance that depends on a fact”
 Ex. – Prosecutor wants to introduce E under 413 in a sexual assault
case to show that D previously assaulted another victim. But, D
says he didn’t assault the previous victim, and it was consensual.
The E of the previous assault is only relevant if the D raped the
previous victim. This is a contested issue of fact
o Point: the proffered E is relevant only if the disputed fact is true.
o 104(b) recognizes that the jury should issues of conditional relevance
o But, when relevance depends on the existence of a disputed fact, the trial
judge performs a screening function before admitting the contested E
 Standard: The judge will ask whether enough E exists that a r-
able jury could resolve the factual dispute in a manner that makes
the E relevant.
o Another category of preliminary questions is when the factual
disagreement affects existence of a policy concern that would bar
admission of admittedly relevant E.
 Ex. – if parties context whether a D’s remedial measure occurred
before or after the P’s injury
 Here, the timing of the repair affects whether Rule 407’s
policy rationale applies
 In these situations, 104(a) directs the judge to decide the factual
issue without deferring to the jury.
 Class Notes
o Judge makes all preliminary determinations
o Rules of E don’t apply in determining preliminary questions
 exception: privileges still apply
o Questions of law
 Judge decides these completely on his own
o Burden of proof = preponderance of the E (applies in all cases)
 Doesn’t matter whether it’s a criminal/civil case
o The party offering the E has the burden of proof
 The proponent is in the best position to make an argument for its
admissibility, since they are more familiar with the E
Rule 104. Preliminary Questions

 (a) In General. The court must decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding,
the court is not bound by evidence rules, except those on privilege.
 (b) Relevance That Depends on a Fact. When the relevance of evidence depends
on whether a fact exists, proof must be introduced sufficient to support a finding
that the fact does exist. The court may admit the proposed evidence on the
condition that the proof be introduced later.
 (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must
conduct any hearing on a preliminary question so that the jury cannot hear it if:
o (1) the hearing involves the admissibility of a confession;
o (2) a defendant in a criminal case is a witness and so requests; or
o (3) justice so requires.
 (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a
preliminary question, a defendant in a criminal case does not become subject to
cross-examination on other issues in the case.
 (e) Evidence Relevant to Weight and Credibility. This rule does not limit a
party's right to introduce before the jury evidence that is relevant to the weight
or credibility of other evidence.
 Notes
o (a) In General. The court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is
admissible. In so deciding, the court is not bound by evidence rules,
except those on privilege.
 First, this section announces a default rule that the judge decides
preliminary questions related to admissibility. The questions
include both issues of law and matters of fact
 Second, the FRE don’t apply to preliminary determinations (except
those on privilege)
 Judge may consider any E – even E that violates other
evidentiary rules – when deciding whether E is admissible.
 Third, section (a) recognizes that the rules on privilege do apply to
preliminary determinations.
o (b) Relevance That Depends on a Fact. When the relevance of evidence
depends on whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist. The court may admit the
proposed evidence on the condition that the proof be introduced later.
 Judge serves gate keeping function
 Standard: The judge will ask whether enough E exists that a r-
able jury could resolve the factual dispute in a manner that makes
the E relevant by a preponderance of the E.
 Very low threshold standard
o Standard of Proof judge should use in deciding preliminary questions:
Preponderance of the E
 This applies to both civil and criminal cases

 Standard is POE regardless of whether judge is deciding the issue
under 104(a) or (b)
o Burden of Proof
 Rule is silent on who has the burden but most courts say its on the
party seeking to admit the E
o Relationship with 403
 Judges are likely to exclude E under 403 (because of the risk of
prejudice) in a case that satisfies the standard of 104(b), but
where the overall E is still somewhat “weak”
o Analysis:
 Is this a legal or a factual issue?
 If legal, judge decides
 If factual, does it fall under 104(a) or (b)?
Hearsay – The Definition

 Generally
o Four reasons why courts prefer firsthand testimony to secondhand
reporting, thus rejecting hearsay:
 (1) secondhand testimony doubles the possibility that one of the
reporters is mistaken or lying
 (2) Firsthand testimony can be tested by cross-examination
 (3) the finder of fact can better evaluate the confidence and
sincerity of the information if they can watch the individual report it
first hand
 (4) at trial, firsthand testimony is made under oath in a formal,
solemn setting.
o Hearsay is not allowed in court, but it is heavily relied upon by law
enforcement in conducting investigations
o
 Rule 802. The Rule Against Hearsay
o Hearsay is not admissible unless any of the following provides otherwise:
. a federal statute;
. these rules; or
. other rules prescribed by the Supreme Court.
 Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
o (c) Hearsay. "Hearsay" means a statement that:

 (1) the declarant does not make while testifying at the current
trial or hearing; and
 (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
o Notes
 First, hearsay requires a statement
 Second, the statement must be made by the declarant in a
context other than testimony at the current trial or hearing
 Third, a party must offer the statement to prove the truth of the
matter asserted.
o (b) Declarant. "Declarant" means the person who made the statement.
 Notes
o A “statement” for purposes of the rule is one that reflects the speaker’s
personal knowledge. Remember, under 602 W must have personal
knowledge to things he/she testifies about.
o All declarants are W’s
o But, declarants are W’s only when they testify under oath at a trial or
hearing
o If W quotes their own out-of-court statement, that statement is hearsay
b/c they are testifying as to what they said and not as to what they
perceived.
o 6 questions to ask every time you have a potential piece of hearsay:
 (1) does the E contain a statement?
 (2) Did the statement occur outside the courtroom?
 (3) Is the party offering the statement to prove the truth of the
matter asserted?
 (4) Who is the declarant?
 (5) Does an exemption (801(d)) or exception (803–807) apply?
 (6) Does the Sixth Amendment limit use of the statement?
 Criminal D’s right to confront W’s under the 6th Am.
The Truth of the Matter Asserted

 Generally
o If a litigant offers a statement to prove the truth of the matter asserted, it

is inadmissible hearsay
o Test: always ask – what is the party trying to prove by offering the
statement?
o Sometimes, a party offers a statement just to show that the statement
was made – in other words, it’s not being offered for its substantive truth.
 This is not hearsay
o If the statement is being offered to prove that it’s true, then it’s being
used to prove the truth of the matter asserted.
o Just because a declarant takes the W stand does not mean that their own
out-of-court statements are not hearsay
 Common Examples of Out-of-Court Statements that are Not offered for
the Truth of the Matter Asserted
o Knowledge of the speaker
 Ex. – D in personal injury case mentions to neighbor that a
dangerous condition existed on the property. Statement is hearsay
if being offered to prove the dangerous condition, but not hearsay
if being offered to prove that D knew about it
o Notice to a listener
 Ex. – Med mal action where nurse hears surgeon explain the risks
of surgery to the P, showing that the patient was fully aware of the
dangers
o Publication in a defamation case
 To recover for defamation, P must prove both that the D made a
defamatory statement and that at last one other person heard or
read the statement. The statement need not be true. Indeed, the P
claims that it was false
o Effect on the listener
 If the statement prompted a person to act in a particular way, then
it’s being used to show effect on the listener.
 Ex. – D in prosecution for menacing says to victim, “I hid a dozen
venomous rattlesnakes in your house.” Doesn’t matter whether D
actually hid the rattlesnakes. The elements of the claim require
only that D make the statement and the words give the victim a r-
able fear of bodily harm.
o Legally Binding Statements – aka operative legal effect
 Ex. – in a K action, the fact that D said “I accept” is relevant to

prove that he agreed to a K.
 Ex. – trespass case, property owner said “I give you permission to
com onto my property” is relevant to prove that the D entered with
consent. The truth of these statements is irrelevant. Even if the
speaker was lying, the words have operative legal effect and
establish consent.
 True threats are verbal acts
 Rule 403 and Hearsay
o Statements can be offered for hearsay and for non-hearsay purposes
o When a statement is hearsay but very high in probative value, a litigant
will seek to offer a non-hearsay purpose to admit the statement
 The opposing party will argue that the non-hearsay purpose is a
“Trojan horse” to admit the hearsay statement and that a limiting
instruction to the jury will be ineffective, since the jury will
inevitably consider the statement for its substantive truth
 Then, court will use 403 and balance the probative value of the
non-hearsay purpose against the unfair prejudice of the hearsay
purpose.
What Is a Statement?
 Generally
o A declarant can make a statement either orally, in writing, or through
conduct
o Conduct as a Statement
 A declarant makes a statement through conduct when the conduct
conveys assertive behaviors
 Test: do we need to assess the actor’s sincerity in order to rely on
the conduct?
 If we do, then the conduct contains an assertion and is
hearsay
 If not, the actor was not trying to assert a fact, and it is
non-hearsay
 Key to determining whether conduct is a statement is whether the
actor intended to communicate information through that conduct
o Audiotapes
 Most audiotapes contain verbal assertions by human actors. These

assertions are statements
 But of course, these are only hearsay if being offered to prove the
truth of the matter asserted
o Photos and Videotapes
 The hearsay status of these depends on what they portray
 Most do not portray human assertions
 If a photo or videotape conveys verbal assertions or assertive
behavior, and its offered to prove the truth of the matter asserted,
then its hearsay
o Machine Readouts
 Info conveyed via machine is usually non-hearsay
 Test: judge will explore whether the info conveyed by the machine
incorporates a human assertion.
 Complex devices such as polygraphs, breathalyzers, and radar
guns use automated processes to report info to law-enforcement
officers and other people outside the courtroom. These devices
don’t make statements.
 However, if the machine conveys a human assertion, then the
assertion qualifies as a statement.
 E.g., comments uttered over a telephone or transmitted via
email are assertions made by individuals.
 E.g., bank tell pushes a silent alarm to signal a hold up, the
alarm is an assertion

o (a) Statement. "Statement" means
 a person's oral assertion,
 written assertion, or
 nonverbal conduct, if the person intended it as an assertion.
o Notes:
 Assertion – any action undertaken by the declarant that is intended
to communicate a fact
Admissible Hearsay
 Generally
o There are 31 total hearsay exceptions

o All exceptions are based on two principles:
 (1) some secondhand statements are more reliable than others
 (2) some hearsay statements are more needed than others, since
the declarant is unavailable
 e.g., dying declarations
o 4 Categories of Hearsay Exceptions
 (1) R 801(d) defines two types of out-of-court statements as “not
hearsay”
 (a) prior statements by W’s
 (b) statements made by opposing parties
 *note: the rule says these are “non-hearsay” but that is
ridiculous. These are actually just exceptions
 (2) R 804 recognizes five exceptions to the hearsay rule.
 All of these are grouped together because they apply only if
the declarant is unavailable to testify in court
 (a) former testimony
 (b) statement under the belief of imminent death (“dying
declaration”)
 (c) statement against interest
 (d) statement of personal or family history
 (e) statement offered against a party that wrongfully
caused the declarant’s unavailability (“forfeiture by
wrongdoing)
 (3) R 803 contains the largest category of hearsay exceptions (23
of them, listed on p465)
 These exceptions apply whether the declarant is available to
testify or not
 The rationales for 803 exceptions depend substantially on
reliability rather than the need for E
 (4) R 807 – Residual exception
 “catch-all” exceptions that allows courts to admit some
statements that fall outside the other thirty exceptions but
have similar guarantees of trustworthiness.
 Courts don’t use this rule often
o Who Decides?
 Whether a statement fits into a hearsay exception often depends

on the existence of specific facts
 Who decides whether these factual conditions exist? THE JUDGE
decides all preliminary factual disputes
 Therefore, judge decides whether a statement is hearsay and if an
exception applies
o Burden of Proof
 The proponent of a hearsay statement bears the burden of proving
by a preponderance of the E that the statement meets one of the
exceptions
th
o 6 Amendment
 In criminal cases, some hearsay exceptions violate the D’s Sixth
Amendment Right to confront W’s against him
 Crawford v. Washington
 Only applies to criminal cases, and only applies to the
prosecutions, and only applies to a limited number of
hearsay exceptions
Hearsay Exemptions – Prior Statements by Witnesses

 Generally
o Parties usually resort to using a W’s prior statement when the W’s direct
testimony is insufficient (e.g., W refuses to make the same statement on
direct).
o There are certain circumstances where the reliability of the prior
statement is sufficiently high, and the need for the statement is
sufficiently great, that the hearsay rules recognize an exception for a W’s
prior statement.
 The fact that the declarant is AVAILABLE IN THE COURTROOM adds
some reliability to these prior statements and makes them
exempted from the hearsay rule
o Therefore, 801(d)(1) allows admission of some prior statements by W’s
o Why allow these statements at all?
 W is on the stand and subject to cross which increases the
reliability
 Rule deals with the practical reality that some W’s are unwilling to
testify as to what they heard/saw – rule reflects reality that there
is a need for this kind of E sometimes
 W’s may not want to testify for a variety of different reasons
o (d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
 (1) A Declarant-Witness's Prior Statement. The declarant testifies
and
 is subject to cross-examination about a prior statement, and the
statement:
 (A) is inconsistent with the declarant's testimony and was
given under penalty of perjury at a trial, hearing, or other
proceeding or in a deposition;
 (B) is consistent with the declarant's testimony and is
offered:
 (i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying;
or
 (ii) to rehabilitate the declarant's credibility as a
witness when attacked on another ground; or
 (C) identifies a person as someone the declarant perceived
earlier.
o Notes:
 801(d)(1) has two conditions that must be met to admit any
statement under that subsection
 declarant must testify at trial
 declarant must be subject to x-exam on the statement
 Q: what if the W claims loss of memory, privilege, or
some other condition that prevents direct testimony?
Is the W still subject to cross-examination?
o Loss of Memory
 U.S. v. Owens – SCOTUS addressed

the memory issue: all that a “cross
examination” requires is that the W is
placed on the stand, under oath, and
responds willingly to questions. If
there is a defect in memory, doesn’t
matter, because counsel doing the
cross can point this out.
 Courts have gone the same way when
the loss of memory appears to be
“feigned”, even though under these
circumstances it seems that the
witness is not “willing to respond to
questions”
o Privilege
 RULE: a W who asserts a blanket
privilege is not “subject to cross” for
purposes of the rule. But, a W who
asserts a privilege selectively may be
“subject to cross”
 Courts have said that those who assert
a privilege are not “willing to respond”
to questions and therefore are not
subject to cross-examination for
purposes of the rule
 Even if the gov’t has granted
immunity, doesn’t matter, they still
asserted a privilege and are immune
from cross
 E.g., 5th amendment privilege against
compulsory self-incrimination – this
would qualify.
 If these two conditions are met, the rule recognizes 3 types of prior
W statements that are admissible
 (A) statements that are inconsistent with the W’s
courtroom testimony
 must fulfill 3 conditions:

o (1) inconsistent with W’s current testimony
o (2) made under penalty of perjury
o (3) occurred at a depo or during a trial,
hearing, or other proceeding
 Q: when is a statement inconsistent?
o Some cases are obvious
o Sometimes, W gives evasive answers in court
or testifies that she no longer remembers the
underlying events. Is an evasive answer or a
claim of memory failure considered
“inconsistent” with a prior statement that
gave detailed info about an event?
 When a W appears to be feigning
memory loss, most courts say that
the prior detailed statement is
“inconsistent” with the current claims
of loss of memory
 Most courts also say that memory loss
that appears real is also inconsistent
with a W’s prior detailed statement
 Q: Statements must occur during any trial,
hearing, depo, or other “proceeding.” But what
constitutes an “other proceeding?”
o Grand Jury hearings are proceedings
o Interrogations by police and other
investigators are NOT proceedings
 Formal statements under oath to
police are not proceedings, they don’t
count
o Anything with a combination of an audience +
a transcript seems to constitute a proceeding
 613 prior inconsistent statements – differences
b/t 613 and this rule
o 613 is used to impeach credibility, not to
prove the truth of the matter asserted
o 801(d)(1)(a) statements are offered to prove

the truth of the matter asserted, so you need
all of the additional requirements (trial,
hearing, depo, and under oath.)
 801(d)(1)(a) is useful when a W goes hostile
on you and you need to discredit your own W
o 801(d)(1)(a) helps P or prosecutor to satisfy
the burden of proof, because it’s being
offered for its substantive truth
 (B) Statements that are consistent with that
testimony; and
 this exemption doesn’t require that the W’s prior
statement occurred under oath or at a proceeding
 to introduce a statement under this subsection, a
party must show (1) the prior statement is
consistent with courtroom testimony, (2) that the
W’s credibility has been attacked, and (3) the prior
consistent statement has probative value in
rehabilitating credibility
o timing of a prior consistent statement
can affect its admissibility
 Ex. – When an opponent suggests the
W has a motive to lie, a prior
consistent statement rebuts that
charge only if the W made the
statement before she developed the
motive to lie
 Otherwise, it has very little
probative value
 See example p483
 RULE: the statement must pre-date
the motive to lie
 (C) pretrial identification of a person
 allows introduction of any identification of a person,
as long as the person who made the ID testifies at
trial and is subject to cross on the identification.
 Rationale: earlier out-of-court ID’s are more reliable

than later, in-court ones
o They happen closer in time, therefore
memory is fresher
o Recognition of features gets distorted by
memory over time
 The rule allows testimony about a prior W ID even if
the W is unable to ID the perpetrator in the
courtroom later on
 Requirements: (1) declarant must testify; (2)
declare must be subject to cross; (3) prior statement
was identification of a person
 Kinds of statements that qualify
o Lineups
Hearsay Exceptions: Present Sense Impressions and Excited Utterances

 Generally
o 803 contains 23 different exceptions to hearsay rule
 characteristic of 803: all of these can be invoked regardless of
whether the declarant is available to testify or not
o Present Sense Impressions (PSI’s) – statements that describe an
event as it unfolds
 Ex. – sports commentary that talks about events as they unfold
 Ex. – 911 calls and other calls often qualify
o Excited Utterances (EU’s) – statements are excited utterances if they
(a) relate to a startling event, and (b) the declarant spoke while still
feeling the stress of that event
 Ex. – Watch out for the car!
 Ex. – Touchdown!
o Both PSI’s and EU’s have a special indicia of reliability
 PSI’s – a person who describes an event as it unfolds before them
has less time to formulate a lie
 EU’s – A person responding to a startling event has little
opportunity to concoct falsehoods.
 Advisory Committee – “the condition of excitement…

temporarily stills the capacity for reflection and produces
utterances free of conscious fabrication.”
 Rule 803. Exceptions to the Rule Against Hearsay--Regardless of
Whether the Declarant Is Available as a Witness
o The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
 (1) Present Sense Impression. A statement describing or
explaining an event or condition, made while or immediately after
the declarant perceived it.
 (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.
 Notes
o 803(1) Present Sense Impressions Prerequisites
 (1) the exception applies only to descriptions or explanations of an
event, not to more complex analyses or interpretations
 must describe the event, rather than explain or analyze it
 (2) for a statement to qualify as a PSI, the declarant must make it
while perceiving the event or “immediately after” the event
 the “immediately after” window is always small: usually just
a few seconds
 courts often tie the permissible amount of time to what the
declarant was doing during those intervening minutes or
seconds.
 Ex. – if declarant is searching for a phone to contact
police, then this would seem to indicate higher
reliability and court would be more likely to admit
the statement as a PSI.
o 803(2) Excited Utterance Prerequisites – Exam note: it’s
impossible to test on an excited utterance unless there is an “!” on
the end!!!!!!!
 (1) declarant must speak while excited by a startling event.
 This is a SUBJECTIVE rather than an objective standard.
What excites one person might have zero effect on a
different person.
 E.g., car crash may be startling to the person in the

crash, but less startling to an EMT who deals with
them all the time
 The more startling the event, the longer the stress can last
 (2) the EU must “relate to” the startling event
 the utterance must relate to the provoking event. Unrelated
comments are not admissible under this exception, even if
the declarant makes them while still excited.
o Can Written Statements be excited?
 Yes, but the fact that the statement is written usually weighs
against admission as an EU.
 Act of writing implies that there was time and opportunity
for reflective thought, which makes the statement less
reliable.
 BUT…think about social media (twitter, facebook status)
o Laying a foundation
 Key to winning admission is laying a foundation first
 Judge determines whether the factual conditions for these
exceptions are met
 Remember…for establishing preliminary questions of fact, the rules
of E don’t apply
 For PSI, proponents commonly introduce
 The declarant’s in-court testimony, affirming that she made
the statement as she perceived it
 Testimony from other W’s who can confirm that the
declarant made the statement while the event unfolded.
 For EU, laying foundation is somewhat more difficult
 But, can use circumstantial E to prove state of mind
 Proponents often introduce:
 Declarant’s in-court testimony, affirming that he was
excited when making the statement
 Testimony from W’s who perceived the declarant
when he made the statement. These W’s could
testify to:
o The declarant’s mannerisms and tone of voice

when he made the statement (e.g., crying,
speaking rapidly, he looked upset)
o The time that elapsed b/t the provoking
incident and the statement
o The declarant’s relationship to the
provocation (e.g., was she a bystander on the
opposite side of the street or was she
personally involved in the incident?)
o E about the declarant’s age, prior
experiences, and other characteristics that
might affect how excited the declarant would
become in certain situations
o E about how traumatic or exciting the event
that provoked the declarant’s statement was
Hearsay Exception – State of Mind
 Generally
o 803(3) hearsay exception for statements expressing the Declarant’s
current state of mind or mental or physical condition
o why admissible?
 Four flaws that diminish reliability of a statement: perception,
memory, clarity, and sincerity
 Expression of a declarant’s state of mind can’t suffer from
the memory problem, since the declarant doesn’t need to
recall anything because he is voicing his immediate feelings.
 In addition, expressions of a declarant’s SOM run few risks of
misperception
 Secondhand reports about a declarant’s state of mind also pose
diminished risks of insincerity
 Really, the rule is about NECESSITY
 Because, what other E exists about a person’s SOM?
 NOTHING!!!
 (3) Then-Existing Mental, Emotional, or Physical Condition. A

statement of the declarant's then-existing
 state of mind (such as motive, intent, or plan [plan =
statement of future intention]) 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 declarant's will.
 Notes
o The exception only covers statements about the declarant’s “then
existing” state of mind
o The rule lists four types of internal states that a declarant might describe:
 Emotional
 Sensory
 Physical condition
 Catch-all “state of mind”
o The rule also offers two parentheticals that note specific examples of
these categories: motive, intent, plan, mental feeling, pain, and bodily
health – motive, intent, and plan are included because these aren’t
obvious things you think about when you think about someone’s “state of
mind”
o Exception to the rule: Statements of Memory or Belief
 RULE: Statements of memory or belief are not admissible if they
are offered to prove the fact remembered or believed.
 Ex. – “I remember how hot I felt yesterday”
 This is admissible to prove she remembered her
feelings about how she felt, but not admissible to
prove that she felt hot the previous day.
 Exception to exception: (this exception almost never applies
since wills are never contested in federal court)
 Out-of-court statements of memory or belief are admissible
to prove the fact remembered or believed IF the fact relates
the validity of the declarant’s will
o Circumstantial E of mental state
 Statements about external facts or events don’t qualify as

expressions of a “state of mind” for purposes of the rule.
 But, they are sometimes admissible to prove state of mind
o “I think, I believe, I remember”
 these phrases are deceiving because usually they are followed by
statements of external facts, rather than internal expressions of
state of mind
o Is a declarant’s out-of-court statement admissible to prove that another
person committed the intended act?
 Mutual Life Insurance Co. v. Hillmon p517
 Q: can we admit statements of future intention as
circumstantial E of a third party’s plan to prove that the
plan was actually carried out?
 SCOTUS said YES
 Ex. – W testifies that she heard her friend say “I’m meeting
with Jason Barter, the partner at Big Firm, for lunch at the
Vegetarian Palace next Monday”
 This is admissible (circumstantial E) as a statement
of future intention to prove the freiend’s
whereabouts on Monday
 Under Hillmon, the statement can also be used as
circumstantial E of Jason’s whereabouts on Monday –
But, many state courts disagree as to this part and
don’t follow Hillmon! Two federal Circuits also don’t
follow Hillmon.
 Advisory committee included a note recognizing that
Hillmon is still the law in federal court.
 but many states do not accept Hillmon.
o You can have a present state of mind of remembering something
 This is the only way the “past” gets in under the SOM exception
o Statements of future intention
 These are important for exam purposes!!!
 Statements of future intention ALWAYS implicate the SOM
exception
 Side Note: Exam Tip
o For hearsay, organize exam in this way
 Is it hearsay?
 Is there a statement?
 Is the statement being offered to prove the TOTMA?
 If not, is there a non-hearsay purpose?
 If it is being offered to prove the TOTMA, is there a hearsay
exception?
Hearsay Exception – Medical Treatment

 Generally
o 803(4) hearsay exception for statements about symptoms or causes of a
medical condition
o Rests on two grounds
 (1) although patients do lie to their doctors, these statements, as a
class, are more reliable than most out-of-court statements.
 Individuals seeking medical treatment have a strong self-
interest in reporting symptoms honestly and precisely
 (2) the exception serves a need for efficiency
 parties can use it to introduce medical records in lieu of the
doctor, nurse, or other medical professional testifying.
 (4) Statement Made for Medical Diagnosis or Treatment. A
statement that:
 (A) is made for--and is reasonably pertinent to--medical
diagnosis or treatment; and
 (B) describes
 medical history;
 past or present symptoms or sensations;
 their inception; or their general cause.
 Notes
o Requirements
 (1) the statement must be made for a medical diagnosis or
treatment
 subjective requirement; the patient must actually be

seeking medical care
 (2) statements must be r-ably pertinent to diagnosis or treatment.
 Objective requirement
 Courts construe broadly, assuming that medical
professionals guide consultations towards pertinent facts. If
doctor solicits info, pertinence is assumed
 (3) the statement must fit within one of the three categories listed
by the rule
 (a) accounts of medical history
 (b) descriptions of past or present symptoms or sensations
 (c) reports about the “inception of the condition or its
“general cause”
o Statements that are Excluded
 Statement of blame towards a particular person or organization for
causing the medical condition
o No particular declarant is required
 The person seeking treatment is usually the one who makes the
statements, but oftentimes statements by family members who
make the statements on behalf of another family member will
qualify
 Problem: sometimes family members injure their loved ones,
whether by accident or on purpose
 Could use 403 to exclude when the probative value is weak
and prejudice is high
 But, the medical provider CANNOT be the declarant
 This exception is a one-way street. Doesn’t cover
statements made by the medical provider to the patient
o Who is the audience?
 803(4) doesn’t require the statement to be made to a physician or
even a medical professional.
 As long as the statement is made for the purpose of seeking
medical diagnosis or treatment, it’s admissible
 Ex. – statements made to a family member to enlist their
help in getting medical care
 Includes psychologists, psychiatrists, dentists, etc.
o Diagnosis OR Treatment
 The rule allows statements made for diagnosis OR treatment
 The reference to diagnosis is broad: can be used to allow parties to
admit statements made to doctors who are consulted purely to
prepare for litigation
 The fact that diagnosis occurs for litigation, rather than treatment
is irrelevant under the rule
o The line between Cause and Fault
 804(4) includes statements that a patient makes describing the
“inception” or “general cause” of the condition when those
statements are pertinent to medical care
 doctors oftentimes need to know how the condition arose
 However, statement blaming specific individuals for the cause, or
attributing a particular degree of fault to those individuals, usually
are not relevant to medical care
 The line is hard to draw sometimes
 Key: follow the pertinence requirement while remembering
the dangers of hearsay
 Courts will often redact statements to admit the narrowest
declaration sufficient to obtain medical diagnosis and
treatment.
o Medical Treatment for Domestic/Sexual Abuse
 Usually, identity of person who caused the condition is not
pertinent to diagnosis or treatment
 Exceptions:
 (1) patients suffering regular, ongoing abuse may
need treatment that includes separation from the
abuser. So, need to know who the abuser is
 (2) effective psychological treatment of an abuse
victim may require the doctor to know who caused
the abuse
o treatment might depend on whether it was a
husband, boss, friend, or other person who
caused the abuse
 The medical treatment exception is hugely important to
prosecutors. It benefits them more than anyone else
 Prosecutors have convinced courts that the abuser’s identity

is pertinent because the first step of treatment in an abuse
situation is to remove the victim from the abuser
o Emotional Harm
 This HUGELY expands the exception because way more stuff is
going to be relevant to treatment.
 Often, litigants will throw in a claim for emotional harm for the sole
purpose of getting this kind of hearsay admitted at trial
Hearsay Exception – Recorded Recollection

 Generally
o 803(5) allows admission of recorded recollection
o Rule 612 anticipates that trial judges will allow a witness to “refresh
memory” form notes or other documents. However, the W may not testify
from the written materials directly, but instead must speak from her own
independent memory after it has been refreshed
o Recorded Recollection are reliable because:
 (1) they are more reliable than most out-of-court statements
 (a) they were made when the declarant’s memory was fresh
 (b) the declarant is available to testify in the courtroom,
under oath, and subject to cross about the circumstances
under which she recorded the statement.
 (2) the need for these statements is greater than most other
hearsay
 since W can no longer recall the info, the only way to get
the info in is to allow the jury to hear the out-of-court
statement
 (5) Recorded Recollection. 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 witness's memory; and
 (C) accurately reflects the witness's knowledge.

 If admitted, the record may be read into evidence but may
be received as an exhibit only if offered by an adverse
party.
 Notes
o unlike the other 803 exceptions, 803(5) requires that the declarant
actually be available, since the rule applies only when the declarant
testifies as a W
o Requirements:
 (1) the out-of-court statement must appear in a “record”
 R 101(b)(4) – includes “a memorandum, report, or data
compilation”
 Audio recordings also qualify
 (2) the W testifying in court must either be the declarant who
made the record or a person who saw the record and agreed that it
was true
 W can “adopt” the record as true
 this usually comes up when a PO takes a statement
from a W and then asks the W to sign the statement,
certifying that it’s true
 (3) the declarant/witness must testify that she once knew about
the information contained in the record, and that she made or
adopted the record when she had that knowledge.
 W must record the info when it is still “fresh in the W’s
memory”
 But, this doesn’t require contemporaneous
notetaking
o Courts have said that as long as
circumstances indicate that the W genuinely
remembered the info at the time it was
recorded, this is good enough even if the
notetaking occurs way in the future
 This requirement helps satisfy 602’s personal knowledge
requirement
 (4) the W must have made or adopted the record at a time when
her knowledge was “fresh”
 this heightens reliability

 what’s considered “fresh” is interpreted broadly
 Memory can still be “fresh” even if it was a long time ago
 Recorded recollections can even be created in anticipation of
litigation if the memory is still “fresh”
 (5) the W must testify that at the time she made or adopted the
record, she knew that it accurately reflected the knowledge that
she had
 this further confirms reliability
 (6) the W must no longer recall the information contained in the
record “well enough to testify fully and accurately”
 this requirement demonstrates that the hearsay statement
is necessary, since direct testimony isn’t available
 W need not claim complete memory loss, but the examining
atty must show that the W forgot details important to the
testimony
o Introducing Evidence
 The last part of 803(5) prevents the party offering a recorded
recollection from introducing the document directly into E as an
exhibit.
 Instead, the party presenting the E must ask the W to read
the document into the record.
 Reason: it’s believed that jurors attach increased weight to
exhibits. Jurors may attach too much weight if they see it in
writing.
 However, adverse parties can choose to introduce the document as
an exhibit if they want to.
 They might do this if the document revealed some
unreliability in its content
o Refreshing Memory Compared to Recorded Recollection
 See chart p546
Rule 805 – Hearsay within Hearsay

 Generally
o FRE 805 allows multiple levels of hearsay as long as each layer fits within
an exception
o Sometimes, you can have hearsay within hearsay

 Ex. – “Anderson told me that his secretary informed him the letters
were mailed out on July 17th”
o Reports by police officers that record W statements often contain multiple
levels of hearsay
o If either of the hearsay layers fails to satisfy an exception, the entire
statement is inadmissible to prove the TOTMA by the original declarant
 Rule 805. Hearsay Within Hearsay
o 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.
 Notes
o Laying a Foundation
 For the proponent of the E that contains multiple levels of hearsay,
it can be difficult to lay a foundation for the first out-of-court
statement in the chain.
 Usually, the courtroom W lacks information about the early
declarants in the communication chain
o Diagramming Hearsay problems
 Bar exam loves hearsay within hearsay
 (1) Whenever you see “he said” or “she said” – identify this as a
statement
 (2) count the statements
 (3) identify the declarant for each one
 (4) who is the W on the stand telling us what the declarant said?
 If they are the same, there are hearsay exemptions that
apply when the declarant is the W
 (5) what did they say?
 Ex.
 D= D=
 W= W=
 Homework Assignment: Bring in show and tell example of one of the following
o Ancient document
o Learned treatise
o Market report
o Any of these must satisfy the hearsay exception
Hearsay Exception – Business Records

 Generally
o 803(6) creates an exception for business records – admitting documents
that an organization generates in the ordinary course of business.
 business – defined broadly to include any type of organization or
association, whether or not conducted for profit.
o Why this type of hearsay is more reliable:
 Generated according to routine business practices
 Organizations rely on these documents, so lessens likelihood of
mistakes
 Efficiency – easier to introduce a record that contains thousand of
pieces of information than to call hundreds of employees to the
stand
o (6) Records of a regularly conducted activity. A record of an act, event,
condition, opinion, or diagnosis if:
 (A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
 (B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether
or not for profit;
 (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, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
 (E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack of
trustworthiness.
 Notes
o The Rule has 6 Elements
 (1) the exception applies to any “record”
 Record – includes any “memorandum, report, or data
compilation”
 Records admitted may contain info about an “act, event,

condition, opinion, or diagnosis” – this encompasses most
types of business records
 (2) info admitted under this exception must have been recorded by
(a) a person with personal knowledge of the data, or (b) a person
who received that info from someone else in the organization with
personal knowledge.
 Info must be recorded “at or near the time” the data arose
– needs to be recorded within a reasonable time, as guided
by the needs of the business itself
 (3) the organization must have (i) made the record in the course of
a regularly conducted business activity, and (ii) the
organization must have a regular practice of keeping such
records
 these two things are separate
 the second requirement, that the org must have a “regular
practice of keeping such records” means that they must
make these records on a regular basis with some kind of
routine
 (4) a qualified W must introduce the record into E.
 This W often is the document’s “custodian”, the person who
maintains the record for the organization.
 However, any person with the necessary knowledge to lay a
proper foundation for admission of a document is qualified
to introduce that document
 W must be able to testify that:
 (i) the record was kept in the course of a regularly
conducted business activity
 (ii) the record was kept as part of a regular practice;
and
 (iii) the record was made by someone with personal
knowledge of the recorded info or from info
transmitted by a person with that personal
knowledge.
 (5) business records are not admissible if “the source of

information or the method or circumstances of preparation indicate
lack of trustworthiness”
 this usually comes up with documents prepared in
anticipation of litigation
 the opponent of the E offered as a business record bears
the burden of showing that the record lacks trustworthiness
 (6) 803(6) defines “business” very broadly
 includes any business, org, occupation, or calling, whether
or not for profit.
o Insiders, Outsiders, and Double Hearsay
 803(6) encompasses only information transmitted from one
organizational insider to another. Doesn’t include customers or
other third parties who provide info to an organization
 If it’s a customer or other third party providing the info, you have a
double hearsay issue and need a separate hearsay exception to get
the statement admitted.
o Household Records
 These don’t qualify as business records
o Insurance companies and other companies that ONLY do things in
anticipation of litigation
 They STILL CANNOT TAKE ADVANTAGE OF THE BUSINESS
RECORDS EXCEPTION because every record is made in anticipation
of litigation
o Emails
 These are not necessarily always business records just because
they are on a business account and the business saves all of their
emails
 Usually, emails are not made in response to regularly conducted
business activities
 But, they could be if they’re “form” emails that are sent to
everyone on an email list
o Policies of Organizations to conduct a regular business activity
when something “bad” happens
 These are usually inadmissible because these types of things often
come up in litigation
 Ex. – Doing a debriefing every time there is a major accident,

doing an exit interview every time someone is terminated, etc.
Hearsay Exception – Public Records

 Generally
o 803(8) includes an exception for records generated by public agencies.
 Ex. – weather reports, tollbooth receipts, etc.
o Why this hearsay is admissible
 More reliable
 Courts assume that public officials are neutral gatherers of
information
 Increased Need
 Vast quantities of info is recorded by public agencies, and
no individual official could recall of that info and testify
about it on the stand.
o Exception: any “matter observed by law-enforcement personnel” in
criminal cases is not included within the public records exception
 This includes police reports
 Violates 6th amendment confrontation clause
 Need live testimony from police officer, so PO can be subject to
cross
o (8) Public records. A record or statement of a public office if:
 (A) it sets out:
 (i) the offices activities;
 (ii) a matter observed while under a legal duty to report,
but not including, in a criminal case, a matter observed by
law-enforcement personnel; or
 (iii) in a civil case or against the government in a criminal
case, factual findings from a legally authorized
investigation; and
 (B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
 Notes
o Public office – includes any “public agency”
o Subsection (A)(i) admits the “activities” of any public office

 Ex. – records of money it has spent, the personnel it has hired, the
meetings it has held, the votes it has taken, the decisions it has
made.
o Subsection (A)(ii) admits records of “a matter observed” by any
public agency
 Two caveats
 (1) applies only to matters that the agency has a duty to
report
 reports that exceed an agency’s authority don’t fall
within the exception
 also excludes info that third parties report to the
agency
 (2) excludes all records of observations made by law-
enforcement personnel when offered in a criminal case
 law-enforcement personnel have strong interest in
ensuring that criminal D’s are convicted, so
observations may not be neutral
 Sixth Amendment confrontation clause is violated by
these reports
 Courts construe this section to only limit the
prosecutor – D can offer records fitting this
subsection, even if they were made by law-
enforcement personnel
 Courts also say that prosecutors are prohibited from
introducing records of law-enforcement officer
observations only when they were “made in an
adversarial setting.”
o Courts have allowed records to be introduced
that include PO observations on “routine non-
adversarial matters” – but, this isn’t express
in the plain language of the rule.
o Subsection (A)(iii) admits “factual findings from a legally
authorized investigation”
 Three caveats here
 (1) like police reports, results of a gov’t investigation are

not admissible against a D in a criminal case
 (2) “factual findings” has been interpreted broadly by the
Supreme Court to include opinions and conclusions, as well
as facts. The reference to “factual findings” is actually
ambiguous.
 (3) the investigation must have been “legally authorized”
 this enhances reliability by insuring the investigator
was performing an official function
o Subsection (B) allows an opponent to attack the admissibility of
any public record on the ground that the record lacks
“trustworthiness”
 Factors judge will consider (from advisory committee notes)
 (1) Timeliness of the investigation
 (2) The special skill or experience of the official conducting
the investigation
 (2) Whether a hearing was held by the public agency prior
to the report being made
 (3) Whether the motivation of the public agency is suspect
– for example, whether the report was made in anticipation
of litigation by a public agency that has a stake in the
litigation
o Hearsay within Hearsay
 Just like business records, public records frequently contain
statements by third parties, which raise hearsay within hearsay
problems which are governed by R 805.
 However, investigators MAY rely on third party statements to
generate their own opinions and conclusions
 Ex. – report that states “Based on the interviews with local
residents, I concluded __________.” – this is fine
o 803(8) and other Rules
 most public records also qualify as business records, but if it’s a
public record, cannot use the business records exception to dodge
requirement sin the public records exception. Must satisfy
requirement of the public records exception.
 Public records must also comply with other evidentiary rules
 Ex. – if gov’t report describes a party’s prior bad act, it

must also meet conditions of R 404, or that part of the
report will be redacted.
o Public Records Top Ten Things You Need to Know (from
PowerPoint)
 (1) Applies to records produced by gov’t units
 Applies to all levels and branches of gov’t count, but private
orgs do not
 Private nonprofit orgs may further the public interest, but
they do no produce public records
 (2) For any record to be admissible under this exception, the
agency must have acted within its powers
 (3) If a record qualifies as both a business record and public
record, it has to satisfy the public records exception
 (4) Records satisfying 803(8)(A)(i) (records of an agency’s
activities) are readily admissible. These records include official
decisions of a gov’t unit, including court judgments, legislative
votes, and agency decisions. This category also includes
housekeeping records such as the agency’s budget and personnel
records.
 (5) records of observations made by any law enforcement officers
are not admissible against a criminal D
 (6) Exception to #5 – when the record is purely ministerial (e.g.,
list of license plates on cars crossing the national border).
 (7) an investigation by any public agency can’t be used against a
criminal defendant. But, the rule allows observations by public
agencies that don’t’ engage in law enforcement, but the prosecutor
may not admit the results of an investigation conducted by any
public agency.
 (8) When a record reporting the results of an investigation is
admissible, the court may admit the record’s opinions and
conclusions, as well as its factual findings. The SC has interpreted
the phrase “factual findings” to include opinions and conclusions.
 (9) Records that lack trustworthiness are inadmissible Party
opposing the record bears the burden of proving untrustworthiness
 (10) hearsay within hearsay – statements of third parties in the

record have to satisfy a separate hearsay exception
Hearsay Exceptions – Other 803 Exceptions (Absence of Business Records or

Public Records, Ancient Docs, Market Reports, Learned Treatises)
 Absence of Business Records or Public Records
o Generally
 Sometimes the absence of a record is significant
 Ex. – if a garage attendant records the license plate
of every car entering a garage, and the D’s plate
number does not appear in those records for a
particular day, the missing entry is persuasive E that
the D did not park in the garage that day
 The absence of a record is not actually hearsay, because
silence doesn’t normally constitute a statement – it doesn’t
assert anything.
 However, the drafters wanted a hearsay exception for
business records and public records to make this clear
o Rule 803. Exceptions to the Rule Against Hearsay--Regardless of
 (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) the opponent does not show that the possible source of
the information or other circumstances indicate a lack of
trustworthiness.
 (10) Absence of a Public Record. Testimony--or a certification
under Rule 902--that a diligent search failed to disclose a public
record or statement if:
 (A) the testimony or certification is admitted to prove that
 (i) the record or statement does not exist; or
 (ii) a matter did not occur or exist, if a public office

regularly kept a record or statement for a matter of
that kind; and
 (B) in a criminal case, a prosecutor who intends to offer a
certification provides written notice of that intent at least 14
days before trial, and the defendant does not object in
writing within 7 days of receiving the notice--unless the
court sets a different time for the notice or the objection.
o Notes
 Absence of a business record
 Requirements
 (1) proponent must show that the records containing
the omission are kept in accordance with 803(6), the
business records exception
o custodian or other qualified W will testify that
the records were kept in the course of a
regularly conducted activity and that it was
the regular practice of the business to keep
the records
 (2) the party must show that the absence relates to
a matter about which the business regularly kept
records
 Absence of a Public Record
 Requirements
 (1) proponent must show that the absent record
relates to a matter for which the public office
regularly kept records
 (2) there are two ways that the party can prove the
record’s non-existence
o (i) party may call a W to testify that a
“diligent search” was made and no record was
found
o (ii) the party may present a certified
document from the agency, pursuant to R
902, attesting that a diligent search failed to
yield the particular document
 (3) in a criminal case, the prosecutor must provide

notice to the D before offering certification of an
absent record
o underscores 6th Amendment
o Statements in Ancient Documents
 Generally
 Documents written many years before a dispute arises are
more reliable than other writings because the author’s
motive is less open to suspicion
 These docs are also more needed than other hearsay
because the declarant who produced the document is
unlikely to be available
 Rule 803. Exceptions to the Rule Against Hearsay--
Regardless of Whether the Declarant Is Available as a
Witness
 (16) Statements in Ancient Documents. A statement in a
document that is at least 20 years old and whose
authenticity is established.
 Notes
 2 Requirements:
 (1) document must be at least 20 years old
 (2) the party offering the document must establish
its authenticity
 Hearsay within Hearsay
 This can be an issue with ancient documents
 Market Reports and Similar Commercial Publications
o Generally
 Examples: telephone directories, stock prices that appear in daily
newspapers
 These sources are generally considered reliable
 The need for these sources also supports their admissibility
 (17) Market Reports and Similar Commercial Publications. Market

quotations, lists, directories, or other compilations that are
generally relied on by the public or by persons in particular
occupations.
o Notes
 2 Requirements
 (1) the document must be one of “market quotations, lists,
directories, or other compilations.”
 Doesn’t include evaluative material – would include
table of stock prices, but not newspaper article
discussing the market’s performance
 (2) party offering the E must show that it is “generally
relied on by the public or by persons in particular
occupations.”
 Judges will take judicial notice of common things like
a phone book
 In most cases, the proffering party will need to lay a
foundation, usually by getting W testimony
 Learned Treatises
o Generally
 Some journals, scientific, or academic books are so well-known and
respected that almost all practitioners in the field rely on them
 Ex. – Gray’s Anatomy in medicine
 The info is also more needed – very convenient way to give the
jury basic facts about art, history, architecture, biology, or any
other field.
 (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A
statement contained in a treatise, periodical, or pamphlet if:
 (A) the statement is called to the attention of an expert
witness on cross-examination or relied on by the expert on
direct examination; and
 (B) the publication is established as a reliable authority by
the expert's admission or testimony, by another expert's
testimony, or by judicial notice.
 If admitted, the statement may be read into evidence but

not received as an exhibit.
o Notes
 4 Requirements
 (1) the rule only allows parties to introduce learned
treatises in connection with an expert’s testimony
 may either be “called to the attn of the expert W
during cross” or “relied on by the expert” during
direct.
 (2) May be read into E, but not introduced as an exhibit
 to prevent jury from examining portions of the
treatise on their own, without an expert’s guidance
 (3) proponent must establish that the treatise is a reliable
authority
 3 ways to do this
o (i) the expert W who relies upon or
acknowledges the treatise may confirm that
the treatise is a reliable authority in the field
o (ii) another expert W can establish this fact
o (iii) judge may take judicial notice of the
treatise’s authoritativeness
 such as Gray’s Anatomy
 (4) the rule allows learned treatises in almost any field of
study
Rule 804 Introduction – What is Unavailability?

 Generally
o R 804 establishes five exceptions that apply when declarant W is
unavailable
 Judge must find that declarant cannot or will not testify live
o These types of statements are admitted as exceptions to the hearsay rule
because they are more needed than other types of hearsay
o Think about 804 as a 2-step process
 First, must have the declarant unavailable under 804(a)
 Then, if you have that, look for a specific exception that applies
under 804(b)
 Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is

Unavailable as a Witness
o (a) Criteria for Being Unavailable. A declarant is considered to be
unavailable as a witness if the declarant:
 (1) is exempted from testifying about the subject matter of the
declarant's statement because the court rules that a privilege
applies;
 (2) refuses to testify about the subject matter despite a court
order to do so;
 (3) testifies to not remembering the subject matter;
 (4) cannot be present or testify at the trial or hearing because of
death or a then-existing infirmity, physical illness, or mental
illness; or
 (5) is absent from the trial or hearing and the statement's
proponent has not been able, by process or other reasonable
means, to procure:
 (A) the declarant's attendance, in the case of a hearsay
exception under Rule 804(b)(1) or (6); or
 (B) the declarant's attendance or testimony, in the case of
a hearsay exception under Rule 804(b)(2), (3), or (4).
 But this subdivision (a) does not apply if the statement's
proponent procured or wrongfully caused the declarant's
unavailability as a witness in order to prevent the declarant
from attending or testifying.
o Notes
 The Five types of Unavailability:
 (1) Privilege
 (2) Refusal to Testify
 (3) Lack of Memory
 court need not
 (4) Death, Physical Illness, Mental Illness
 the physical or mental illness must be sufficiently
disabling that (a) the declarant cannot come to court
to testify, and (b) there is little likelihood of recovery
within a reasonable time
 (5) Absence
 two types of absence

o (i) party cannot find the declarant after
making a diligent search
o (ii) the declarant refuses to come to court and
is currently outside the court’s jx, so court
lacks the power to subpoena the absent
declarant.
 Two additional obligations are required
for this one:
 (a) the party must use “any r-
able means” in addition to
serving a subpoena, to
persuade the declarant to
attend the trial (for civil litigant,
this could mean payment of
travel expenses)
 (b) Deposition Preference – for
3 of the hearsay exceptions in
804, the proponent must use r-
able means to take the
declarant’s deposition if the
declarant will not attend the
trial
 Burden of Proving unavailability of declarant W
 Is on the party asserting unavailability
 Each type of unavailability requires particular
proof….uncorroborated statement by Atty that the W is
unavailable = not enough
 Privilege
 Atty must call declarant to the stand and question
her. If judge agrees privilege applies, then that’s
good enough
 Exception – if declarant is going to claim the 5th, then
judge usually won’t require them to take the stand
first.
 Refusal to Testify & Lack of Memory
 Atty must call the declarant to the stand and

establish declarant’s refusal to testify or lack of
memory
 To prevent unfair prejudice, parties often make this
showing outside jury’s presence
 Death or Illness
 To establish death, Atty must introduce death
certificate or other E of declarant’s death.
o If homicide victim, then usually there’s no
need for this
 If declarant is unable to testify due to illness but is
alive, Atty must introduce documentary E or live
testimony to show the declarant’s condition
o Such as written statement from declarant’s
doctor explaining the incapacity
 If declarant has a temporary illness, judge has
discretion to postpone the trial
 Absence
 To demonstrate, Atty must show a GF, genuine effort
to procure the declarant’s attendance
o Ex. – show efforts made to contact the
declarant, including registered letters of
subpoenas sent to the declarant.
o If declarant is outside court’s jx, Atty should
introduce documentary E to that effect
 Must also persuade judge that Atty used other r-able
means to persuade declarant to testify
o Sometimes, must try to get declarant’s depo
Hearsay Exception – Former Testimony

 Generally
o 804(b)(1) creates a hearsay exception for prior testimony when a W is
unavailable to offer live testimony
o This type of hearsay is considered more reliable than other forms of
hearsay
 Less chance of reporting error, since the testimony was preserved

by court reporter
 Testimony occurred under oath in formal setting – encourages
honesty
 Opposing party had an opportunity to cross-examine the W at the
first trial
o This testimony is also more needed
 Declarant W is unavailable, due to any of the reasons in the last
chapter
o (b) The Exceptions. The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness:
 (1) Former Testimony. Testimony that:
 (A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or
a different one; and
 (B) is now offered against a party who had--or, in a civil
case, whose predecessor in interest had--an opportunity
and similar motive to develop it by direct, cross-, or redirect
examination.
 Notes
o Requirements
 (1) party offering testimony must show that declarant is
unavailable
 see the last chapter
 (2) prior testimony occurred at a trail, hearing, or depo
 prior testimony need not have occurred as part of the same
lawsuit
 (3) opposing party must have had an opportunity to question the
declarant in the prior trail or other proceeding
 this doesn’t mean that the opposing party had to have
actually conducted an examination of the W in the other
proceeding – just that they had an opportunity to do so
 this opportunity could have arisen on direct, cross, or
redirect

 (4) Similar motive - the opposing party’s motive in questioning
the declarant in the prior hearing must have been similar to the
motive the opposing party would have in cross-examining the
declarant in the current trial
 courts look at four factors when determining if an opposing
party had a similar motive to develop W testimony at a prior
proceeding
 (i) the type of proceeding in which the testimony was
given
 (ii) trial strategy
 (iii) the potential penalties or financial stakes, and
 (iv) the number of issues and parties
 (5) in a criminal case, the party with the opportunity to question
the declarant in the prior hearing must have been the same party
as the opposing party in the current case.
 Protects a D’s 6th Am. Confrontation rights…D shouldn’t
have to rely on someone else’s cross-examination of the W,
but should have an opportunity to cross that W himself.
 (6) in a civil case, a party can introduce E as long as the opposing
party or his predecessor in interest had an opportunity and
similar motive to cross-examine the W.
 see example p606
 court will look to the similarity of issues between the prior
case and the current one and the purpose for which the
prior testimony was given
Hearsay Exceptions – Dying Declarations

 Generally
o R 804(b)(2) offers up a hearsay exception for dying declarations
o We assume that individuals who are about to die speak honestly
o Dead declarants can’t testify at trail – so these statements are more
needed
o Limits:
 Only admits dying declarations in civil cases and homicide

prosecutions; parties can’t rely on the exception in most criminal
cases
 Only admissible if they concern the cause or circumstances of the
declarant’s death
 The declarant must believe that death is imminent
 The declarant must be unavailable to testify
 The exception doesn’t’ require that the declarant actually
die!!!!
 (2) Statement Under the Belief of Imminent Death. In a
prosecution for homicide or in a civil case, a statement that the
declarant, while believing the declarant's death to be imminent,
made about its cause or circumstances.
 Notes
o Four important facets to the rule
 (1) applies only if declarant is unavailable
 (2) applies only in homicide prosecutions and civil proceedings
 underscores D’s Sixth Amendment right to confrontation
 (3) declarant must believe that death is imminent when he makes
the statement
 subjective requirement – declarant must actually hold this
belief
 declarant must believe that death will happen very soon
(within a few hours) and that it is inevitable.
 Focus on how long the declarant believed he would survive,
not on how long he actually did survive
 Declarant must have a “settled, hopeless expectation that
death is near at hand”
 (4) the content of the statement must concern the cause or
circumstances of the declarant’s death
 only statements that describe the cause or circumstances of

the death count as a “dying declaration.” Anything else the
declarant says is not admissible under this exception.
o Proving State of Mind
 Judge decides whether the conditions supporting admission of a
dying declaration exist
 Party offering the dying declaration must prove this belief by a POE
standard
 standard can be met by any type of E, but courts often look
at
 Statements by the declarant
 Statements made by medical personnel and other to
the declarant
 The nature and extent of the wounds or illness
 The length of time between the statement and the
declarant’s death
 The opinion of medical personnel who treated the
declarant about the declarant’s death
Hearsay Exception – Statement Against Interest

 Generally
o People sometimes say or write things that go against their own interest
 Ex. – I owe Jim $550
 Ex. – I robbed the Burger King on Main St.
 Ex. – I cheated on the Contracts Exam last week
o 804(b)(3) allows judge to admit out-of-court statements that are against
the declarant’s interest at the time they were made
 But, declarant must be unavailable for trail – increases the need for
the statement
o Criminal Cases
 Courts are more suspicious of these statements and require
corroboration – party offering the statement must point to
corroborating circumstances that demonstrate the trustworthiness
of the third party’s alleged confession
 Ex. – D could easily claim that a third party committed a

crime by arranging for a W to say that the W heard a third
party confess
 Ex. – prosecutor could call a W who claims to heave heard
the D “brag” about committing the crime.
 (3) Statement Against Interest. A statement that:
 (A) a reasonable person in the declarant's position would
have made only if the person believed it to be true because,
when made, it
 was so contrary to the declarant's proprietary or
pecuniary interest or
 had so great a tendency to invalidate the declarant's
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.
 Notes
o Five important parts to the rule
 (1) Declarant must be unavailable
 (2) the statement must be against the declarant’s interest “when
made”
 if the declarant makes a statement that seems innocuous
when made, the statement falls outside the exception even
if later circumstances render the statement incriminating
 (3) the rule lists 3 ways that a statement can be against a
declarant’s interest
 (i) it could be contrary to her proprietary or pecuniary
interest
 (ii) render invalid a claim she has against another person;
or
 (ii) expose the declarant to civil or criminal liability

 (4) an objective standard governs the court’s determination of
whether a statement was sufficiently against the declarant’s
interest.
 Judge will ask: whether a r-able person in the declarant’s
position would have falsely made the incriminating
statement
 Judge will take the declarant’s general circumstances
into account, but not personal idiosyncrasies
 (5) any statement that exposes the declarant to criminal liability is
admissible in a criminal case only when corroborating
circumstances clearly indicate the statement’s trustworthiness
o What is “Against Interest”
 Must be “so contrary” to a declarant’s interest that a reasonable
person in the declarant’s position would have made it only if the
person believed it to be true.
 If declarant is testifying under a grant of immunity, this cuts
against the statement being “against interest”
 804(b)(3) only admits statements against pecuniary or proprietary
interest, those that subject the speaker to civil or criminal liability,
and those that extinguish a legal claim held by the speaker. The
exception doesn’t recognize other types of admissions against
interest, e.g., making a statement that is likely to lower a social
status or subject oneself to physical retaliation by a third party
o Statements that Minimize Guilt
 Sometimes, a declarant makes a statement that admits
wrongdoing but minimizes their role while still blaming others
 If the declarant makes the statement after he is confronted about
wrongdoing, this cuts against it being an admission against interest
 Ex. – a statement admitting guilt and implicating another,
made while in custody of the police, may be motivated by a
desire to curry favor with the authorities, and therefore fails
to qualify as “against interest”
o Mixed Statements
 Criminal suspects sometimes give long narratives that include

statements against interest, neutral statements, and statements
that blame others
 SCOTUS has held that the trial judge should redact the statements
that are not against interest.
 But, some statements are impossible to parse
 Ex. – “Bonnie and I robbed the bank together”
 Can’t parse this out, but the entire thing seems to be
against the declarant’s interest. Declarant is not
attempting to minimize his role the bank robbery by
shifting blame to someone else.
o Trustworthiness in Criminal Trials
 Statements against interest require corroboration in criminal trials
 Most courts require corroboration of both the declarant’s
trustworthiness as well as the statement’s trustworthiness
 Courts will consider six factors
 (1) whether the declarant had pled guilty before
making the statement or was still exposed to
prosecution (that is, how far against the declarant’s
interest the statement was at the time)
 (2) the declarant’s motive in making the statement
and whether there was a reason for the declarant to
lie
 (3) whether the declarant repeated the statement
and did so consistently
 (4) the party or parties to whom the statement was
made;
 (5) the relationship of the declarant with the
accused; and
 (6) the nature and strength of independent E
relevant to the conduct in question
 Party offering the statement must prove its trustworthiness by a
POE standard
Hearsay Exception – Forfeiture

 Generally
o R 804(b)(6) admits out-of-court statements offered against a party who

engaged or acquiesced in wrongdoing that intentionally caused a W’s
unavailability
o Rationales
 The rule aims to prevent wrongdoers from profiting from their own
misconduct
 Also rests on a forfeiture exception – by causing the unavailability
of a W, the opposing party waives the right to object to the W’s
prior statements as hearsay
 (6) [Statement Offered Against a Party That Wrongfully Caused
the Declarant's Unavailability]. A statement offered against a party
that wrongfully caused--or acquiesced in wrongfully causing--the
declarant's unavailability as a witness, and did so intending that
result.
 Notes
o 3 Requirements
 (1) the opposing party must have “wrongfully” caused or
acquiesced in the W’s unavailability.
 Opposing party must engage in “wrongful” behavior
 Attys and parties engage in all kinds of legitimate actions
that may discourage others from testifying – such as
informing someone of a privilege
 The wrongdoing doesn’t have to be a criminal act, but must
be improper in some way
 Wrongful = coercion, undue influence, or pressure to
silence testimony and impede the truth-finding function of
trials.
 Asking someone to skip town = not wrongful
 Asking someone to skip town and giving them a
bribe to do so = wrongful
 Wrongful is a high bar, but once you get there,
courts apply this exception liberally
 Acquiescing in Wrongful Acts

 E that the opposing party “tacitly agreed” to the
wrongdoing is sufficient
 Ex. – bare knowledge of a plot to kill the victim and
a failure to give warning to appropriate authorities is
sufficient to constitute forfeiture under the rule
 (2) the opposing party must have intended to make the declarant
unavailable.
 The “intent” required is the intent to silence the W and
make them unavailable to testify
 Courts interpret intent broadly
 The proponent need not prove that the opposing
party’s only motive was to prevent the W from
testifying – just that the opposing party was
“motivated in part by a desire to silence the W”
 Intent carries over from one case to another if party
acts wrongfully with intent to silence a W in the first
case
o Statements are admissible in all future cases
in which the wrongdoing makes the declarant
unavailable
 Forfeiture exception may apply when a party intimidates a
potential witness
 (3) the wrongdoing must have caused the declarant to become
unavailable
o Differences/similarities b/t the forfeiture exception and 804(a)
last sentence
 Similarities
 Wrongful conduct
 Wrongfully caused declarant’s unavailability
 Must result in the unavailability of the declarant
 Both require intent
 Difference
 One applies to the PROPONENT (804(a) of the E and the
other applies to OPPONENT of the E (804(b)(6))
Hearsay Exemption – Statements by an Opposing Party

 Generally
o 801(d)(2) allows a party to introduce any out-of-court statement made by
an opposing party
o This is the most common hearsay exception used
o This exception isn’t based on increased reliability…instead, based on a
theory of estoppel
 Party shouldn’t be able to object to admission of her owns
statement on grounds that the statement is unreliable
o The rule describes five categories of statements by an opposing party
 (2) An Opposing Party's Statement. The statement is offered
against an opposing party and:
 (A) was made by the party in an individual or representative
capacity;
 (B) is one the party manifested that it adopted or believed to be
true;
 (C) was made by a person whom the party authorized to make a
statement on the subject;
 (D) was made by the party's agent or employee on a matter
within the scope of that relationship and while it existed; or
 Notes
o Only one significant limit to the rule: a party’s statement must be offered
against that party. A party’s own out-of-court statement is still
inadmissible
o Personal knowledge – is not required. Even if opposing party has no
personal knowledge of what they’re saying, doesn’t mater, still admissible.
 But, opposing party can still object under 403 – but unlikely to win
this
o Party’s availability is immaterial
 This hearsay exemption doesn’t require availability
 Even when a criminal D invokes the 5th and declines to take the
stand, prosecutor can still introduce E of the D’s out-of-court
statement
o Adoption by Signing a Document

 801(d)(2)(B) provides that a party’s “statement” need not consist
of the party’s own words. It’s sufficient if the party “manifested
that it adopted” a statement “or believed [the statement] to be
true.”
 One common way to adopt is by signing a document
prepared by others
o Adoption by Silence – aka tacit admissions
 An individual’s silence can constitute an adoptive admission, but
the circumstances must be such that a r-able person would speak
up rather than remain silent
 Courts use different standards for this, but the formulas
probably matter less than the facts of the case and the args
of counsel
 A criminal D’s silence in front of police officers must be interpreted
with care
 Custodial settings - If D was Mirandized and invokes right to
remain silent, then his silence can’t be held against him.
Therefore, it’s not reasonable to think that D would speak
up when you just told D that he had the right not to
 Non-custodial settings: where a D is being interrogated by police
even under a non-custodial setting, most courts will not find a tacit
admission b/c not reasonable for D to speak up
o Prosecutor cannot bind the state to his statements if the D wants to use
the prosecutor’s statements against him
 Common Law doctrine: prosecutor cannot bind the sovereign
o Agents
 801(d)(2)(D) expands the party-opponent exception by including
any statement “by the party’s agent or employee on a matter
within the scope of that relationship and while it existed.”
 An agent is someone authorized to at for a party on a particular
matter
 The exemption includes statements that an employee or agent
makes to outsiders, as well as those made within the agency or
employment context
 Impendent contractors can even qualify as agents under the rule
o Authorized Speakers
 801(d)(2)(C) expands the exemption by including any statement
“by a person whom the party authorized to make a statement on
the subject.”
 This section overlaps with the agent section, but is broader
because it also embraces assertions by an individual that a party
authorizes to speak outside the classic agency relationship.
Statements by Opposing Parties in the Context of Multiple Parties

 Generally
o The statements by party-opponent exemption raises two special issues
when a case involves multiple P’s or multiple D’s
o Issue 1: when a party attempts to introduce an out-of-court statement
made by a party on the same side of the litigation
 Ex. – one P introducing out-of-court statement against another P
 Ex. – One D introducing out-of-court statement against the other D
(pointing fingers)
 Courts are split about admissibility on this issue
 Some courts allow admissibility as long as the statement is
being offered against a co-party
 Other courts read the rule more narrowly, and say that
since the rule is captioned “an opposing party’s statement”
that co-parties aren’t within the scope of the rule, and the
party who the statement is being offered against must be
on the opposite side of the “v”
o Issue 2: spillover effect of out-of-court statements offered against one
party
 Ex. – If one D makes an incriminating statement that also
implicates another co-defendant in the same trial, is the statement
admissible against all D’s or just the D who made the statement?
 Answer: the statement is admissible ONLY against the D
who made the statement
 In a criminal case, this issue implicates 6th Am.
Confrontation issues – if one co-D chooses not to take the
stand, then he has no opportunity to explain the statement
and confront the witness who made the statement
 But, limiting instruction is often not good enough in a criminal case

(although it is fine in a civil case)
 In criminal case, jury will not be able to ignore the
incriminating statement implicating the co-defendant
 Prosecutor’s Options:
 Prosecutor can redact the part of the statement
implicating the co-D, if it’s possible to redact it
 Prosecutor can try the two defendants separately
 Prosecutor can choose not to introduce the
statement, and instead rely on other E
 Bruton case: a limiting instruction is insufficient if a court admits
an out-of-court statement against one D that also incriminates
other co-defendants
 Richardson v. Marsh: D’s out of court statement raises Bruton
issues only if the D fails to take the stand and the out-of-court
testimony EXPRESSLY implicates a co-D. If the statement only
implicates the co-D after being linked with other E, introduction of
the statement dos not violate Bruton.
 Gray v. Maryland: a redacted confession that simply “blanks out”
a co-D’s name may violate Bruton. When a confession simply
substitutes blanks for names, it is too easy for the jury to fill in
those blanks with a co-D’s name.
Hearsay Exemption – Statements of Coconspirators

 Generally
o 801(d)(2)(E) allows a litigant to introduce the statement of one
coconspirator against any other member of the conspiracy, as long as the
statement was made during the course of the conspiracy and to further
the joint enterprise
 rests on a theory of estoppel
 to prosecute crimes that involve multiple D’s effectively,
prosecutors need to introduce statements of co-defendants against
all participants in an illegal scheme.
 (2) An Opposing Party's Statement. The statement is offered

against an opposing party and:
 (E) was made by the party's coconspirator during and in
furtherance of the conspiracy.
 The statement must be considered but does not by itself
establish the declarant's authority under (C); the existence
or scope of the relationship under (D); or the existence of
the conspiracy or participation in it under (E).
 Notes
o Coconspirator who made the statement need not be present at the trial
o 3 elements that must be met
 (1) the statement must be made by a coconspirator
 references to “conspiracy” and “conspirator” are broader in
this rule than they are under criminal statutes.
 Party invoking the conspirator exemption only has to prove
that the declarant and the party against whom the
statement is offered were members of a common venture.
 Gov’t can invoke the conspiracy exemption even when it
lacks E to convict someone of a conspiracy
 Prosecutor doesn’t even have to charge D with conspiracy in
order to invoke the exemption
 The exemption also applies in civil cases
 Think “antitrust” cases where there’s an illegal
agreement to fix prices
 Preliminary determination made by the judge as to whether
a conspiracy exists
 (2) the statement must occur “in furtherance of the conspiracy”
 statements doesn’t have to “further” the conspiracy, they
must be “in furtherance of” the conspiracy
 as long as the statement bears some positive relationship to
the conspiracy’s goals, it qualifies
 two categories of statements that fall outside the
furtherance requirement:
 confessions
 boasts to people outside the conspiracy about
criminal acts
 (3) the statement must also occur “during” the conspiracy.

 Statements made before or after the conspiracy ends are
not admissible under this exception
 Issue: when does a conspiracy end?
 An arrest almost always ends a conspiracy
 Post-arrest statements, therefore, are usually not
admissible against coconspirators under the
exemption
o Concealment
 Continuous efforts to conceal a crime can mean that conspiracy is
still ongoing, and therefore the exemption can be invoked
o Preliminary Determinations
 Judge decides whether or not a conspiracy exists, whether the out-
of-court statement was made during the conspiracy, and whether
the statement was “in furtherance of” the conspiracy.
 Proponent of the statement must prove these facts by a POE
 When making preliminary determinations, judge doesn’t have to
follow the rules of E
 RULE: the content of the statement alone isn’t enough to
determine that conspiracy exists. The statement must be
corroborated in some way by independent E of a conspiracy. See
last part of 801(d)(2)(E).
 Same limit applies in determinations of authority or agency
under 801(d)(2)(C) and 801(d)(2)(D).
 To admit statements under these exemptions, some
other E of the authorization or agency must exist
other than the out-of-court statement
Hearsay Exception – Residual Exception

 Generally
o 807 gives judges flexibility to admit hearsay that falls outside the standing
exceptions in 803 and 804 as long as the E has sufficient “guarantees of
trustworthiness” and is the best available way to prove a needed fact.
o Judges use this exception very sparingly, only in exceptional
circumstances
 Rule 807. Residual Exception
o (a) In General. Under the following circumstances, a hearsay statement

is not excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in Rule 803 or 804:
 (1) the statement has equivalent circumstantial guarantees of
trustworthiness;
 (2) it is offered as evidence of a material fact;
 (3) it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
 (4) admitting it will best serve the purposes of these rules and the
interests of justice.
o (b) Notice. The statement is admissible only if, before the trial or
hearing, the proponent gives an adverse party reasonable notice of the
intent to offer the statement and its particulars, including the declarant's
name and address, so that the party has a fair opportunity to meet it.
 Notes
o 3 key requirements
 (1) the judge must determine that the proffered statement has
sufficient guarantees of trustworthiness
 (2) the statement must be the most effective way to prove a fact in
consequence, despite reasonable efforts to find otherwise
admissible E; and
 (3) the proponent of the E must give notice of her intent to use the
statement at trial
o The “Near Miss” Problem
 In some situations, a hearsay statement will narrowly miss one of
the established hearsay exceptions found in 803 or 804.
 Ex. – document that is 19 years old. Almost qualifies for
ancient documents exception, but not quite because it isn’t
20 years old
 Courts say that 807 gives judges discretion to admit the “near
miss” statement
 Dissenting View: “Near Miss” interpretation argues that a
statement falling just outside an existing exception is “covered” by
that exception. 807 should admit statements arising in novel
situations only that aren’t contemplated by the other hearsay rules.
o Trustworthiness Factors
 Courts will consider numerous factors when determining whether a
statement has sufficient guarantees of trustworthiness, including:
 (1) whether the statement was made under oath
 (2) Whether the declarant had firsthand knowledge of facts
in the statement
 (3) Whether the declarant ever recanted the statement
 (4) Whether other E corroborates the statement
 (5) Whether that corroborating E is subject to cross
 (6) Whether other E undermines or contradicts the
statement
 (7) Whether the declarant had any incentive to lie when
making the statement
Attacking a Declarant’s Credibility

 Generally
o R 806 allows parties to attack a declarant’s credibility in the same ways
they impeach W’s.
o The rule attempts to even the playing field for parties hurt by the
admission of hearsay
o Since parties frequently lack the chance to cross-examine the declarant
directly, 806 gives them most of the impeachment tools they could have
used if the declarant had taken the stand
o Without 806, a party could not invoke any of the Article VI impeachment
rules against a declarant, because those rules apply only to W’s.
 Therefore, 806 allows parties to impeach declarants as if they
were witnesses
o If Declarant is not a W, need 806 in order to use the Article VI
impeachment rules
 Rule 806. Attacking and Supporting the Declarant's Credibility
o When a hearsay statement--or a statement described in Rule 801(d)(2)
(C), (D), or (E) [statements made by an opposing party’s agent,
spokesperson, or coconspirator]--has been admitted in evidence,
o the declarant's credibility may be attacked,
o and then supported,
o by any evidence that would be admissible for those purposes if the

declarant had testified as a witness.
o The court may admit evidence of the declarant's inconsistent statement or
conduct, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it.
o 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 [can use leading questions].
 Notes
o Six key points
 (1) the rule applies to all hearsay statements admitted under an
exception, as well as to statements governed by R 801(d)(2)(C),
(D), or (E) [statements made by an opposing party’s agent,
spokesperson, or coconspirator]
 Does NOT apply to:
 Out-of-court statements that fail to qualify as
hearsay
o Statements not offered to prove the TOTMA
o Prior statements by W’s
o Statements made or adopted by a party-
opponent
 This would pointless, because a party
is unlikely to attack their own
credibility
 (2) Allows a party to attack a declarant’s credibility by introducing
any E that would be admissible if the declarant testified as a W.
This includes:
 (i) E of the declarant’s bias, prejudice, or interest in the
case
 (ii) statements made by the declarant that are inconsistent
with the hearsay statements (R 613)
 (iii) E that the declarant lacks personal knowledge (R 602)
or the capacity to testify truthfully (R603)
 (iv) Reputation or opinion E, given by a character W, that
the declarant is untruthful (R 608(a))
 (v) any criminal convictions allowed by R 609
 Evidence that is NOT admitted

 E of prior dishonest acts (R 608(b)
o If declarant testifies, then these questions can
come up on cross
o But, if declarant doesn’t testify, then it’s not
possible to cross someone who doesn’t testify
 (3) once a declarant’s credibility has been attacked, the other party
may rehabilitate the declarant in any way that is allowed with W’s
 can offer E rebutting allegations of bias, prejudice,
incapacity, or interest;
 introduce consistent statements
 call positive character W’s
 (4) allows a party to present a declarant’s inconsistent statements
without giving the declarant an opportunity to “explain or deny”
those inconsistencies
 613 would require that the party have an opportunity to
explain, but 806 does away with that requirement.
 (5) 806 allows any party to impeach a hearsay declarant, just as
607 permits any party to impeach a W.
 (6) If a party uses 806 to avoid the declarant being cross-
examined, then the opposing party can actually call the declarant
as a W and examine them about the statement as if the W were
being cross-examined (can ask leading questions)
o Evidence of Specific Acts
 Parties can’t normally use specific E of bad acts to impeach a
declarant that is unavailable since the declarant is not subject to
cross
 But, the Second Circuit says that you can use extrinsic E of the
declarant’s dishonest acts to impeach
 Stresses 608’s goal of being able to impeach declarant’s as
freely as they discredit other W’s
The Sixth Amendment and Hearsay

 Generally
o The Sixth Amendment guarantees each criminal D the right “to be
confronted with W’s against them”
o The 6th Am. bars some types of hearsay admitted against a criminal D, but
not all types
o The right to confront W’s means “the right to cross-examine W’s”
o STATE OF THE LAW IS VERY UNCERTAIN ON CRAWFORD. SCOTUS DOES
NOT AGREE ON HOW TO APPLY IT, OR WHETHER TO EVEN APPLY IT AT
ALL.
 Crawford v. Washington
o HELD: a criminal D has the right to cross-examine any person who makes
a “testimonial” statement against him.
 Confrontation Clause Threshold Issues:
o Threshold Requirement: out-of-court statements must satisfy BOTH the
hearsay rule and the Confrontation Clause.
 Before worrying about the Confrontation Clause analysis, check to
see if the hearsay is admissible under an exception. If not, then no
need to do a Confrontation Clause analysis
o Confrontation Clause limits only evidence offered in a criminal
case against the D.
 The clause has no impact in civil cases, and nor does it limit the E
that a D introduces against the state.
 Prosecutor’s Sixth Amendment Obligations
o (1) Prosecutor may introduce nontestimonial hearsay as long as those
statements comply with the hearsay rules. The 6th Am. doesn’t limit the
admission of nontestimonial hearsay
o (2) The prosecutor may introduce testimonial hearsay if the statements
comply with the rules, and the declarant is available as a W. Under
those circumstances, the D has a chance to cross-examine the declarant
about the prior testimonial statement
o (3) If the hearsay statement is testimonial and the declarant is
unavailable at trial, the prosecutor may offer the statement only if the D
had a prior opportunity to cross-examine the declarant.
 Crawford Analysis: the 3 big issues
o (1) Is the proffered statement testimonial?
o (2) If so, is the declarant available for cross-examination?
o (3) If the statement is testimonial and the declarant is not currently

available for cross, can the prosecutor establish both that (i) the declarant
is unavailable and that (ii) the defendant had a prior opportunity to cross-
examine that declarant?
 ISSUE: What Statements are Testimonial?
o There are two categories of Hearsay under Crawford
 Testimonial Statements – these statements “bear testimony”
against the accused and require confrontation
 Nontestimonial Statements – do not “bear testimony” against the
accused
 Ex. – business records
o Defining “Testimonial” – Crawford
 A testimonial statement is a “solemn declaration or affirmation
made for the purpose of establishing or proving some fact.”
 Testimonial statements are “made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.”
 The “primary purpose” of testimonial statements “is to establish or
prove past events potentially relevant to later criminal
prosecution.”
o GENERAL RULE: If the statement is not made to law enforcement, then
there’s no Crawford problem
 Statements made by private parties are rarely, if ever, going to be
testimonial
 But, there is not enough jurisprudence on this issue to say for
certain that statements from one individual to another would not
ever be testimonial.
o Types of Hearsay that are definitely Testimonial
 Formal Statements made during litigation
 Sworn statements that occur before grand juries, pretrial
hearings, during trial, and at post-trial proceedings are all
testimonial
 Also includes affidavits, depositions, confessions, and
“similar pretrial statements that declarants would
reasonably expect to be used prosecutorially”
 Statements responding to conventional Police

Interrogations
 Statements made in response to “interrogations by law
enforcement officers” fall squarely within the category of
testimonial statements
o Types of Hearsay that are Nontestimonial
 Business Records
 These are created for the administration of an entity’s
affairs and not for the purpose of establishing or proving
some fact at trial”
 Exception: when a business record IS created for use at
trial
 Ex. – a store that routinely documents shoplifting
offenses to report those crimes and aid the
prosecution
o BUT…the business records exception should
exclude these types of records anyway
 Statements In Furtherance of a Conspiracy
 The purpose of these is to advance a criminal endeavor, so
they are not made under circumstances which would lead
an objective witness reasonably to believe that the
statement would be available for use at a later trial
 The Defendant’s Own Statements
 Courts uniformly hold that a D’s own statements are
nontestimonial
 D’s confessions or other incriminating statements,
therefore, raise no confrontation issues
 Statements Admitted to Prove a Point Other than the Truth
of the Matter Asserted
 If statement isn’t offered to prove the truth of its content,
then it doesn’t “testify” to anything
o Hard Cases – Categories of statements that could go either way,
depending on the facts
 Statements to Law Enforcement Outside Traditional
Interrogation
 Ex. – 911 statement where wife cries “help! My husband is

hitting me!”
 Ex. – Robbery victim points to a fleeing man and tells a
passing PO “that crook just stole my wallet!”
 Primary Purpose Test: Court looks to the primary purpose
of the speaker’s interaction with law enforcement.
 If primary purpose of the exchange is “to establish or
prove past events potentially relevant to later
criminal prosecution,” then the statement is
testimonial
 If the interaction has another primary purpose, such
as “to enable police assistance to meet an ongoing
emergency,” then the statement is nontestimonial.
 This is an OBJECTIVE test: trial judge must ask what
a r-able person would have believed under the
circumstances.
o Judge will evaluate all of the circumstances
surrounding the statement
 Lab Reports
 These are testimonial if “made under circumstances which
would lead an objective W reasonably to believe that the
statement would be available for use at a later trial”
 Williams v Illinois
 A four justice plurality tried to modify the Crawford
standard to a “targeted individual” standard that
would say that E is testimonial when “the primary
purpose is accusing a targeted individual of engaging
in criminal conduct”
 Justice Thomas concurred wanted to use a “formality
test” in which if the statement was formalized, i.e.,
sworn or affirmed as true, then it’s testimonial.
 Lab reports = nontestimonial if they satisfy
neither the targeted individual and formality test.
 Lab reports = testimonial if it they satisfy both the
targeted individual and formality test
 A highly formalized report prepared “under

circumstances which would lead an objective W
reasonably to believe that it would be available for
later use at trial” is testimonial even if it doesn’t
accuse a targeted individual.
 Lab report that accuses a targeted individual but fails
the J. Thomas’s Formality Test = testimonial
 Statement among Private Parties
 SC dicta suggests that most statement among private
parties are not testimonial
 However, this area is yet to be explored
 Availability and Cross Examination
o W’s who suffere real or feigned memory loss = available for cross for
purposes of confrontation clause
o W’s who assert a privilege = unavailable for cross
o Unavailability and Prior Cross Examination
 If declarant isn’t subject to cross at current trial, prosecutor must
show two things:
 (1) must prove that declarant is unavailable
 state must make GF effort to secure W’s testimony
 (2) must prove that defendant had a prior opportunity to
cross-examine the declarant
 if D did have a prior opportunity to cross-examine,
the D must have also had a similar motive to cross-
examine the W at the prior proceeding
 Exceptions to Confrontation
o There are two “founding era” exceptions that were grandfathered into the
Confrontation Clause
 (1) Statements that Satisfy the Forfeiture Exception
 D must have acted with the specific purpose of preventing
a W from testifying
 Important, because not all state rules of E call for
this under the forfeiture exception, although the
federal rules do incorporate this requirement
 (2) Dying Declarations
 SC has suggested in dicta that these are excluded from

confrontation issues
 See Flow Chart p729 for good confrontation clause analysis for an exam question
Judicial Notice
 Generally
o R 201 allows the judge to take judicial notice of adjudicative facts that are
“not subject to reasonable dispute”
 Adjudicative facts – facts that help prove the element of a
specific case
 Legislative facts – inform the court’s ruling on a specific legal
issue. These are LEGAL facts.
 No rule restricts the judge’s discretion to take judicial notice
of legislative facts.
 Rule 201. Judicial Notice of Adjudicative Facts
o (a) Scope. This rule governs judicial notice of an adjudicative fact only,
not a legislative fact.
o (b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute because it:
 (1) is generally known within the trial court's territorial
jurisdiction; or
 (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
 Burden is on the party seeking judicial notice to prove that
the source is beyond questioning
o (c) Taking Notice. The court:
 (1) may take judicial notice on its own; or
 (2) must take judicial notice if a party requests it and the court is
supplied with the necessary information.
o (d) Timing. The court may take judicial notice at any stage of the
proceeding [including on appeal; but, appellate courts won’t normally do it
for a criminal appeal if it’s a fact supporting a criminal conviction].
o (e) Opportunity to Be Heard. On timely request, a party is entitled to
be heard on the propriety of taking judicial notice and the nature of the
fact to be noticed. If the court takes judicial notice before notifying a
party, the party, on request, is still entitled to be heard.
o (f) Instructing the Jury. In a civil case, the court must instruct the jury
to accept the noticed fact as conclusive. In a criminal case, the court must
instruct the jury that it may or may not accept the noticed fact as
conclusive.
 Notes
o Two-Part test that adjudicative facts must pass to secure judicial
notice
 (1) a fact must be one that is “not subject to reasonable dispute”
 (2) the fact must also fall within one of section (b)’s two specific
categories
 must be either “generally known” within the court’s jx or
 must be “accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”
o If the fact satisfies the 2 part test, the judge MUST take judicial notice of
the fact. Failing to do so = abuse of discretion on appeal
o Opportunity to be Heard
 Judge doesn’t need to conduct a formal, full blown hearing. Party
just has to have an opportunity to be heard
o Facts that are “Generally Known”
 Facts must be generally known to the public. Facts that are only
known by members of a particular religion, occupation, or other
group don’t qualify as generally known.
 The fact only has the be “generally known within the court’s jx,
even if it is not generally known in other parts of the country.
 Ex. – in Kansas, the effects and dangers of tornados are
“generally known” but not in Florida.
o Capable of Determination
 201(b) allows the court to take judicial notice of the fact if it is
both indisputable and “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned”
 parties can prove many facts by introducing docs under the
business records or public records exception, but it’s way
easier just to get judicial notice
 Judicial and agency decisions fit within this prong of the rule
 Judicial notice of judgments only extends to the terms of the
judgment, not the facts of the underlying decision
 When a party offers a source under this part of the rule, the source
doesn’t have to be independently admissible
 Stipulations
o If both parties agree that a fact is true, they can stipulate to the fact
o Usually, the party who proposes the stipulation will write out the exact
language for the jury; if the other side agrees, the proponent or the judge
will read the stipulation to the jury
 Jury must accept the stipulation as true in a civil case
 Jury not required to accept the stipulation as true in a criminal case
Lay Opinions
 Rule 701. Opinion Testimony by Lay Witnesses
o If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
 (a) rationally based on the witness's perception;
 (b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
 (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
What Subjects are Appropriate for Expert Testimony?

 Generally
o Experts can give testimony based on their “scientific, technical, or other
specialized knowledge
o Jurors tend to trust experts, and so the FRE impose a gate keeping
function on the trial judges to ensure that expert testimony is reliable.
 Threshold Requirement: the judge must determine that both the
field of the expertise and the expert’s application of that knowledge
are reliable
o NOTE: TENNESSEE STILL FOLLOWS THE FRYE STANDARD, DOES NOT
FOLLOW DAUBERT.
o Frye Standard: Whether the theory or technique has been generally
accepted in the relevant professional community
 This leaves it up to the experts to demonstrate what’s generally
accepted in their field
 Problem: fails to consider new science and technology,

since this has not attained generally accepted. So, cutting
edge science won’t fly under frye.
 Benefit: keeps out junk science that may never be
accurate or reliable
 Rule 702. Testimony by Expert Witnesses
o A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
 (a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;
 (b) the testimony is based on sufficient facts or data;
 (c) the testimony is the product of reliable principles and
methods; and
 (d) the expert has reliably applied the principles and methods to
the facts of the case.
 Notes
o Before admitting any challenged expert testimony, trial judge
must serve gatekeeping function by determining 3 things:
 (1) The proffered testimony is reliable
 this condition includes 2 different requirements:
 (i) the testimony must rest on reliable scientific
principles or methods, and
 (ii) the expert must have applied those principles
and methods reliably to the facts
 (2) The testimony will assist the fact finder by fitting the facts of
the case
 (3) That the possibility of unfair prejudice, confusion, or
misleading the jury does not substantially outweigh the
testimony’s probative value
o When assessing reliability, the trial judge may apply some or all of
the criteria articulated in Daubert
 (1) whether the theory or technique has been tested
 (2) Whether it has been subject to peer review and publication
 (3) Whether the technique has a recognized error rate and, if so,
what that rate is
 (4) Whether standards control use of the technique
 (5) Whether the theory or technique has been generally accepted
in the relevant professional community
 Courts may expand on this list
o Court may hold Daubert hearing to determine the admissibility of expert
testimony
Qualifying Experts
 Generally
o R 702 lays out the process for qualifying an expert W
 Rule 702. Testimony by Expert Witnesses
o A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if . . . .
 Notes
o 702 clarifies 2 points about expert W’s
 (1) first, a W must be qualified before offering E about “scientific,
technical, or other specialized knowledge”
 (2) the W may establish her qualifications by point to a number of
different factors:
 knowledge
 skill
 experience
 training
 education
 most experts have advanced degrees, but formal
education isn’t required to qualify as an expert
 experience/technical training could suffice
o 3 Stages to Qualifying an Expert W
 (1) Atty who calls the expert lays a foundation for the W’s
expertise by asking questions about the W’s credentials and
qualifications.
 Atty can ask leading questions to do this
 Then, the Atty will move that the judge certify the W as an
expert
 (2) Opposing counsel is then allowed an opportunity to “voir dire”
the witness.
 Opposing counsel will probe the W on their qualifications in
order to test credentials
 Oftentimes, opposing counsel will do this just to point out
certain things about the expert that make him less reliable
– opposing counsel knows that the judge will likely certify
them as an expert anyway
 Sometimes, at the conclusion of voir dire, opposing counsel
may object to the W being qualified as an expert
 (3) Judge rules on the motion to certify the W as an expert.
 Judge will usually grant this
o Parties may also stipulate to expert status
 But, usually the party offering the expert will not do this since they
want the jury to hear all of the expert’s qualifications since it
boosts credibility
Bases of Expert Opinion

 Generally
o The FRE confer at least 4 advantages on expert’s that lay W’s do not
enjoy.
 (1) If the expert’s testimony requires knowledge of other trial
testimony, the expert may remain in the courtroom even if the
judge excludes other W’s under R 615. In other words, they are
immune from sequestration
 (2) experts are the only W’s that can certify documents as learned
treatises under R 803(18).
 (3) experts may do more than give commonsense opinions; they
may state conclusions based on their special training or
experience. Expert opinions can be much more complex and
specific than lay opinions
 Ex. Lay person can say “he looked drunk”
 Expert can say “he was legally over the limit and
incapable of safely operating a motor vehicle”
 (4) Experts don’t have to base their opinions based exclusively on

personal observations.
 They can rely on a wide range of data, including information
such as hearsay, which is not admissible in court
 Rule 703. Bases of an Expert's Opinion Testimony
o An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed.
o If experts in the particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.
o But if the facts or data would otherwise be inadmissible, the proponent of
the opinion may disclose them to the jury only if their probative value in
helping the jury evaluate the opinion substantially outweighs their
prejudicial effect. [reverse 403 test]
o Notes
 RULE: Experts need not confine their testimony to matters
personally observed.
 Requirement for Expert Relying on Inadmissible Evidence:
 RULE: An expert W may offer an opinion based on
inadmissible E, but only if the experts in that field
REASONABLY RELY upon that type of information.
 This reasonably reliance standard has two
components:
o (i) experts in the W’s field must in fact rely
upon the type of E that the expert used, and;
o (ii) that reliance must be reasonable
 RULE FOR ADMISSION OF THE OTHERWISE INADMISSIBLE E
INTO E: Expert may only disclose the otherwise inadmissible E if
the probative value of that E would substantially outweigh its
prejudicial effect.
 This is the reverse of 403
 This is a HUGE backdoor for otherwise inadmissible E
 Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion

o Unless the court orders otherwise, an expert may state an opinion--and

give the reasons for it--without first testifying to the underlying facts or
data.
o But the expert may be required to disclose those facts or data on cross-
examination.
 Notes
o Allows expert to offer an opinion without first recounting all of the
underlying data supporting the opinion
o Expert can give an opinion without providing the basis for that opinion
BUT…the primary value of 705 is that it allows Atty to solicit an opinion
from the expert FIRST and capture the jury’s attention, and then proceed
to explain the underlying data supporting the opinion.
o This rule also recognizes that an opposing party may want to reveal
otherwise inadmissible E supporting an expert’s testimony.
 Ex. – If the underlying facts are unreliable or speculative
 In this case, the opposing party can force the expert to reveal the
data on cross
 Hypothetical Questions
o Atty may ask expert’s hypothetical questions as long as the hypo
summarizes all the E in the case. Atty can then ask the expert to give an
opinion, assuming all of the hypothetical facts are true.
 But, Atty may not insert facts into the hypo that have not been
proven
 Atty may also not de facto argue his entire case through the hypo,
using it as a pretext to preview his closing argument.
 Admitting Underlying Facts that are Not Otherwise Admissible
o Two ways to do this
 (1) the party opposing the expert always has the right to ask the
expert to divulge the basis of her opinion during cross-examination
 (2) More commonly, the party sponsoring the expert will try to
admit the facts during direct examination and will argue that
knowledge of the underlying facts is essential for the jury to
understand and evaluate the expert’s opinion.
 R 703 directs the judge to apply the reverse-403-
blancing test in this situation.
 The Confrontation Clause and Expert Opinions
o If expert relies on an out-of-court-statement that is nontestimonial, no

Crawford issue
o If prosecutor asks expert a hypothetical question, and the expert bases
her opinion solely on facts stated in the hypo, there is no Crawford issue.
o If expert relies on out-of-court testimonial statements to reach a
conclusion
 There could be a Crawford issue – SCOTUS addressed the question
in Williams v. Illinois but didn’t come to a definitive conclusion…five
justices concluded that an expert may not use 703 to introduce
testimonial E unless the D has a chance to cross examine the
maker of the testimonial statement.
 Lower courts are still struggling to decide this issue
Limits on Opinion and Expert Testimony

 Generally
o Rule 704(a) removes a previous prohibition that experts cannot testify on
an ultimate issue in the case
o But, there is an exception (added by congress) for criminal cases in which
the expert cannot testify as to as to the mental state of a criminal
defendant if it constitutes an element of the crime charged or of a
defense.
o Courts, however, remain weary of W’s who intrude too far into the realm
of the jury – or of the court itself.
o Judges still routinely reject testimony that threatens to supplant the
judge’s power to declare the law, the jury’s authority to apply the law to
the facts, or the jury’s task of resolving credibility.
 Rule 704. Opinion on an Ultimate Issue
o (a) In General--Not Automatically Objectionable. An opinion is not
objectionable just because it embraces an ultimate issue.
o (b) Exception. In a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.
 Notes
o This rule relaxes the CL prohibition against W’s discussing ultimate issues,
but it doesn’t permit every opinion on an ultimate issue. Judges may still
use 403 and 701–702 to restrict testimony that treads too far on the fact
finder’s role
 Judges will use 701 and 702 to say that opinions that state legal
conclusions are not “helpful” to the trier of fact”
 Judges also use 403 to exclude this kind of testimony, saying that
it is unfairly prejudicial.
o The Exception
 Congress added the exception over outrage of the President
Regan’s shooter, who was acquitted by reason of insanity.
 However, courts construe this exception narrowly, saying that it
restricts the type of words that an expert uses rather than the
content of their opinions.
 Courts restrain experts from testifying explicitly that the D
possessed a particular mental state, but they allow experts to
testify that circumstances were consistent with that state.
o Probabilities
 Courts will reject probability E if it lacks a sufficient factual
foundation, contains technical flaws, distracts the jury from
important credibility issues, or confuses the rarity of an event with
the probability of the D’s guilt.
o Polygraphs
 Half a dozen circuits allow trial judges discretion to admit
polygraph E under at least some circumstances, but judges rarely
admit this E unless all the parties stipulate to its admission.
 Some courts say polygraphs don’t pass daubert
 Other courts say that polygraphs are weighing in on the credibility
of the W, and this usurps the function of the jury, and therefore
goes to an ultimate issue in the case
 There is no bright line rule that says polygraphs are inadmissible,
so if you want to keep them out, just know that the two arguments
are: daubert and the fact that it goes to the ultimate issue.
o Testimony About the Reliability of Eyewitnesses
 Courts will not normally allow this now, but if they do, they will
limit it on two important ways
 (1) expert may only describe general findings about

eyewitness testimony; expert cannot offer an opinion about
whether a particular eyewitness is unreliable
 (2) most courts allow expert testimony about eyewitness
reliability only when circumstances suggest that an
eyewitness ID is less reliable than usual
 Cross-cultural eyewitness ID – one race identifying
someone from another race – people are really really
bad at this, so judge will normally allow expert
testimony on how unreliable this is
o 3 things that influence a judges decision as to whether the expert
can testify on the ultimate issue
 amount of supporting material provided by the expert
 the legal and factual context of the case
 where the expert’s opinion on the issue tracks the legal standard,
the court is more likely to exclude it
 so, a well-prepared expert will use words synonymous with
the legal standard, but won’t use the language from legal
standard itself
Court-Appointed Experts
 Generally
o Judges have inherent authority to appoint their own experts to write
reports and testify at trial, but this power is seldom used.
o The purpose is that “the very possibility that judge might appoint a
neutral expert would “exert a sobering effect” on party-appointed experts,
inducing those experts to testify responsibly”
o R 706 lays out the procedure for court-appointed experts
 Rule 706. Court-Appointed Expert Witnesses
o (a) Appointment Process. On a party's motion or on its own, the court
may order the parties to show cause why expert witnesses should not be
appointed and may ask the parties to submit nominations.
o The court may appoint any expert that the parties agree on and any of its
own choosing.
o But the court may only appoint someone who consents to act.
o (b) Expert's Role. The court must inform the expert of the expert's
duties. The court may do so in writing and have a copy filed with the clerk
or may do so orally at a conference in which the parties have an
opportunity to participate. The expert:
 (1) must advise the parties of any findings the expert makes;
 (2) may be deposed by any party;
 (3) may be called to testify by the court or any party; and
 (4) may be cross-examined by any party, including the party that
called the expert.
o (c) Compensation. The expert is entitled to a reasonable compensation,
as set by the court. The compensation is payable as follows:
 (1) in a criminal case or in a civil case involving just compensation
under the Fifth Amendment [taking actions], from any funds that
are provided by law; and
 (2) in any other civil case, by the parties in the proportion and at
the time that the court directs--and the compensation is then
charged like other costs.
o (d) Disclosing the Appointment to the Jury. The court may authorize
disclosure to the jury that the court appointed the expert.
o (e) Parties' Choice of Their Own Experts. This rule does not limit a party
in calling its own experts.
 Notes
o Judges have discretion of whether to reveal the expert’s “court-appointed”
status
 Normally, judges will reveal this
 Sometimes, however, a judge may conclude that disclosing the
expert’s court-appointed status would give the expert too much
influence over the jury’s decision.
Introduction to Privileges
 Generally
o Occasionally, the evidentiary rules exclude info to further a policy interest
outside the courtroom
o Two kinds of justifications support evidentiary privileges:
 (1) privileges are essential to protect certain socially beneficial
relationships
 privileges that draw on this justification must meet 3 criteria

 (i) the relationship must be one that society wants to
foster
 (ii) Confidential communications must be essential to
maintaining the relationship
 (iii) the injury to the relationship from disclosure
must be greater than the benefit to the truth-seeking
process from that disclosure
 (2) privileges sometimes rest on the inherent value of privacy
 Ex. – privilege against self-incrimination
 Preserves human dignity and personal autonomy by
never compelling individuals to testify against
themselves.
o Remember that privileges apply at all stages of a proceeding – including
preliminary determinations under R 104
o Two kinds of privileges
 Absolute Privileges
 Impenetrable
 Qualified Privileges
 Overcome by showing of substantial need and inability to
access the information without undue hardship
o Wavier
 All privileges can be waived by the holder of the privilege
 So, figuring out the holder is important when asking if the
privilege has been waived
o FRE don’t talk about any privileges other than the Atty-C privilege under
502
o Courts have decided that where a privilege exists, it exists because it is
deemed MORE important than the truth or justice of a trial
 Rule 501. Privilege in General
o The common law--as interpreted by United States courts in the light of
reason and experience--governs a claim of privilege unless any of the
following provides otherwise:
. the United States Constitution;
. a federal statute; or
. rules prescribed by the Supreme Court.
o But in a civil case, state law governs privilege regarding a claim or

defense for which state law supplies the rule of decision.
 Notes
o The FRE do not codify any privileges; they leave privileges to common-law
development in the courts
 Reason: congress couldn’t fucking agree on that shit
o The second part of R 501 directs courts to apply state-law privileges
wherever a claim or defense rests on state law
o Federal Privileges – 3 major privileges recognizes
 (1) Right Against Self-Incrimination
 guaranteed by 5th Am
 broad privilege – applies in both civil and criminal cases
 protects against coercive interrogation
 shields privilege holder during pretrial discovery as well as
trial
 applies only to testimony that might subject the individual
to criminal liability
 (2) Atty-C privilege
 protects confidential communications b/t C and Atty that are
made for the purpose of legal advice or representation
 protected communications include those made to any
individual working with the Atty to provide legal services –
all agents of the Atty
 Work product privilege – compliments the Atty-C privilege
 (3) Spousal Privilege – this has 2 sub-privileges
 spousal testimonial privilege
 allows one spouse to refuse to testify against the
other in a criminal proceeding or GJ investigation
 shields almost any info that the spouse might offer –
not restricted to confidential communications
 persists only during the life of the marriage; if
marriage ends, so does the privilege
 spousal privilege for confidential communications
 applies in both civil and criminal cases
 survives the end of a marriage
 protects ONLY confidential communications that the

spouses share during the marriage
 doesn’t protect discussions that occurred pre-
marriage
 doesn’t protect non-confidential statements made
during marriage
 doesn’t protect conduct that spouse observed during
the marriage
 (4) Psychotherapist–Patient Privilege
 recognized by SCOTUS
 protects all confidential communications b/t a patient and a
psychologist, psychiatrist, or social worker
 communications must be made to obtain psychological
diagnosis or treatment
 Narrow Exception: cases in which patient poses a serious
risk of harm that can be avoided only if the therapist
discloses confidential information
 Other Privileges Recognized by Federal Law
 Executive privilege – protects certain advice given to
high-level gov’t decision-makers
 Clergy-Communication Privilege – applies to confidential
communications with members of the clergy for purposes of
obtaining spiritual advice
o Privileges NOT recognized under Federal Law
 Reporter’s Privilege – SCOTUS refused to recognize one in
Branzburg v. Hayes.
 But, this was pre-adoption of the FRE
 So, some circuits recognize a reporter’s privilege using FRE
501
 Other circuits continue to follow Branzburg and decline to
recognize
 Physician–Patient Privilege
 No federal CL or constitutional privilege that recognizes this
 Most states recognize one, however
o Four issues that arise with respect to every privilege
 (1) Who holds the privilege? Who can assert?
 (2) When does the privilege apply? In all proceedings or just in

limited circumstances?
 (3) What does the privilege cover? What is the scope of the
privilege?
 (4) How strong is the privilege? Is it absolute or can it be
pierced? Does the privilege have any exceptions?
Attorney–Client Privilege
 Generally
o Rooted in two policy concerns
 (1) Atty-C relationship is critically important to society – effective
legal representation requires honest and open communication b/t
Atty and C; Atty can only effectively represent C if she knows as
many facts as possible about C’s case; C won’t share info with Atty
if C believes Atty will just disclose it
 (2) Promotes privacy and confidentiality
 Atty and C share a relationship of trust – they are one legal
unit
 Built on the idea that we have an adversarial system and the truth
will be found somewhere in the middle
 If a party is not providing an atty with all the info available
to them, that Atty is not able to bring their best game, and
we won’t get to truth and justice
 About SOCIETY having a just result in every case, not just
the individual getting a fair shake
o Attorney Client Privilege
 Congress has never codified one, but it still exists
 The Privilege has 5 components
 (1) Must be a Client
 The Client holds the privilege
 A client is any individual or entity who obtains legal
services from a lawyer or consults a lawyer about
obtaining those services
 Upjohn factors to determine who is a client when
dealing with a corporation
o The employee must be securing legal advice
o The communications to the Atty are within

the scope the employee’s duty
 This one is the most important
o If they are providing info in response to a
superior’s request, that’s probative
o Other employees couldn’t provide the info to
counsel
o All parties treated the info as highly
confidential
 Federal Courts will follow Upjohn to determine
whether a particular employee was a “client” entitled
to protection of the Atty-C privilege
 Corporation need not prove all of the Upjohn factors,
but must at least show confidentiality and purpose of
obtaining legal advice
 If employee is acting on his/her own and reaches out
to general counsel, it’s a harder stretch to argue that
Upjohn applies and the communications are
privileged
o In Upjohn, General Counsel requested the
info from the branch managers and the
employees were acting within the scope of
their duty by reporting the info. So, this was
a much stronger argument for privilege to
apply
 Old test was the control group test: must be an
officer of the corporation with the power to be
making binding decisions
 (2) Must be an Atty
 a Atty is any person who is authorized to practice
law or who the client reasonably believes is
authorized to practice law
o doesn’t depend on authority to practice law in
any particular jx
 Atty’s agents – paralegals, law clerks, etc. fall within

the privilege as well so long as their services are
necessary to further the legal representation.
 (3) a communication
 Atty-C privilege shields communications b/t atty and
C
 Communications can be oral, written, or verbal acts
(e.g., pointing a finger, nodding a head)
 Protects communications flowing both ways – from
Atty  C and C  Atty.
 Does NOT protect the underlying information, just
the communications
o If third party discovers the underlying info
without relying on the Atty, too bad, it’s
admissible
o C cannot hide information, documents, or
objects by communicating them to an Atty
 Model Rules require Atty to turn over
contraband or other E of a crime that
comes into their possession
 But, Atty cannot say who he
got the E from
 (4) Confidentiality
 The privilege protects only communications that the
C and the Atty make in confidence
 Communications that occur in the presence of a third
party are UNPRIVILEGED.
 Eavesdropping – if eavesdropper overhears convo
with C and Atty, question becomes:
o Did C take reasonable precautions to
ensure confidentiality?
 If yes, then privilege still applies
 If no, privilege doesn’t apply
 Q: is the mere identity of the C confidential and
protected by privilege?
o General Rule: NO!!!
o Exception: when disclosure of C’s identity

“would implicate the C in the very matter for
which legal advice had been sought in the
first case”
 (5) Purpose of rendering legal advice
 protects only communications that a lawyer or C
makes for the purpose of receiving legal services
 also protects initial consultations with the lawyer,
even if the parties choose not to pursue the
representation
o Exception to Privilege: Crime-Fraud Exception
 If a client seeks help in carrying out an ongoing crime or seeks
advice about how to commit future crimes, Atty-C privilege doesn’t
apply
 Test: applies if
 (1) the C is committing or intending to commit a fraud or
crime, and;
 (2) the Atty-C communications are in furtherance of that
alleged crime or fraud
 exception applies even if the lawyer is ignorant of the C’s intent or
illegal plans
o Waiver
 RULE: Atty cannot waive the privilege on behalf of the C; only C
can waive the privilege
 Once C reveals info to someone outside the privilege, he waives
the privilege in other contexts as well
 To waive privilege
 C must reveal the content of her communications with the
lawyer, not merely the same facts she told the lawyer.
 If C waives privilege with respect to one portion of her
communications with an Atty, court can force the Atty to testify
about any related communications that “ought in fairness to be
considered” with the disclosed material
 Prevents selective use of disclosure to mislead
 Waiver in a Corporate Setting:
 When Atty for corporation seeks info from corporate

employees, Atty must make clear that the employee will
have no say over whether the corporation releases the info
to others. Only the control group of the corporation can
waive the privilege
 So, if employee thinks it will incriminate him,
employee should get his own private Atty
o Work Product
 Protects information prepared in anticipation of litigation
 “litigation” includes administrative inquiries
 party can “anticipate” litigation long before the process
formally begins or a complaint or charge is even filed
 Atty’s mental impressions/thoughts/legal theories – these
get absolute protection
 Factual information – when the work product consists solely of
facts about the dispute, the privilege can be pierced by
demonstrating a showing of “substantial need” and “undue
hardship” to obtain the equivalent by other means
 Waiver of work product privilege
 R 502 protects work product materials from inadvertent
disclosure during discovery
 If atty took r-able steps to prevent disclosure during
discovery, as well as r-able steps to rectify an inadvertent
disclosure, the disclosure does not waive the work product
privilege
 If party intentionally waives, then 502 extends that waiver
to other materials that “concern the same subject matter”
and “ought in fairness” to be considered with the disclosed
materials
 Prevents strategic use of disclosure that would
unfairly distort litigation
Other Privileges – Spousal, Psychotherapist, Executive, Clergy, 5th

Amendment
 Generally
o Federal courts recognize five other evidentiary privileges that are not
codified in the FRE
 Spousal Privilege
o Generally
 There are two types of spousal privileges
 (1) Spousal testimonial Privilege
 (2) Marital Communications Privilege
o Spousal Testimonial Privilege
 Arises only when a spouse is a criminal defendant or the target of a
GJ investigation
 Under these circumstances, one spouse may refuse to
testify against the defendant or target spouse
 Does NOT apply in civil proceedings
 Goal – promotes marriage harmony and furthers privacy interest
 Applies ONLY during the life of the marriage
 Once marriage ends, the privilege dies. One spouse can be
made to testify about anything that happened during the
marriage
 While the spouses remain married, the privilege applies even to
info that one of the spouses obtained before the marriage
 Scope – shields any information that one spouse might offer
against another. Shelters all info that the gov’t might attempt to
obtain from a spouse, not just confidential communications b/t
H&W
 The witness spouse holds the privilege, and therefore can waive it
 Exceptions to Spousal Privilege
 (1) Intra-family crimes - when gov’t suspects one spouse of
committing a crime against the other spouse or against a
child in their custody
 (2) Joint spousal crimes - when gov’t suspects both spouses
of jointly committing a crime
o Marital Communications Privilege
 Protects confidential information b/t spouses
 Applies in all judicial proceedings, both civil and criminal
 Applies regardless of whether either spouse is a party to the

litigation. No litigant may force a spouse to reveal info protected by
the privilege
 Protects marital communications even after the marriage ends
 Both spouses hold the privilege and therefore neither may
waive it without the other’s consent
 Protects only communications that occur during the life of the
marriage.
 Litigants can compel a spouse to reveal communications
that occurred between them before they were married.
 Protects only communications that one spouse makes to the other
in confidence
 Presence of a third party almost always destroys the
privilege
 Narrow exception for statements made in the presence of
very young children who probably wouldn’t understand the
communication anyway
 Protects only communications between the spouses.
 Doesn’t protect matters that the testifying spouse observed
during the marriage.
 Exceptions to Marital Communications Privilege (same
exceptions as spousal testimonial privilege)
 (1) Intra-family crimes - when gov’t suspects one spouse of
committing a crime against the other spouse or against a
child in their custody
 (2) Joint spousal crimes - when gov’t suspects both spouses
of jointly committing a crime
Spousal Testimonial Marital Communications

Privilege Privilege
Does the privilege No, just in grand jury

apply in civil investigations or Yes
proceedings? criminal prosecutions
of the spouse
Does the privilege Yes No
protect actions and
observations?
Does the privilege Yes No
apply to
communications or
events that occurred
before the marriage?
Who may waive the Only the W spouse; Both spouses must
privilege? the target spouse consent to waiver
may not prevent
testimony
Are there exceptions? Yes, for intra-family Yes, for intra-family
crimes and jointly crimes and jointly
committed crimes committed crimes
 Psychotherapist-Patient Privilege
o Applies to licensed social workers as well as psychiatrists and
psychologists
o Applies only to communications that a patient makes to a licensed
therapist for the purpose of diagnosis or treatment of a mental or
emotional problem
 Vocational counseling doesn’t count
o Circuit split over whether a crime-fraud exception applies or not
 If a patient confides a clear intent to commit a violent crime, the
therapist usually has an ethical duty to notify the authorities or the
potential victim
 But, the therapist cannot testify as to the communications in court
o Waiver – Patient may waive the privilege by putting his mental
condition at issue during trial
 Ex. – D pleads the insanity defense, he cannot object to prosecutor
examining his therapist about relevant communications related to
his alleged insanity
 Executive Privilege
o Protects confidential communications b/t POTUS and his close advisors.
o Two levels of this privilege
 (1) The first level shelters military, diplomatic, and national
security secrets.
 This privilege is ABSOLUTE and cannot be pierced – court
will not even hold an in camera review
 Prez must specifically claim the existence of a nat’l security
interest and must point to circumstances suggesting the
presence of such concerns
 (2) the second level privilege protects the President’s “more
generalized interest in confidentiality.” Shields Prez’s conversations
with top advisors so that these leaders can feel “free to explore
alternatives…in a way that many would be unwilling to express
except privately.”
 These discussions are presumptively privileged
 This is a qualified privilege that can be pierced upon a
showing of sufficient need
 The need probably has to be significant, and the

request probably has to be for specific, particularized
information. So no general subpoenas allowed
 Clergy-Communicant Privilege
o Covers (1) communications (2) made in confidence (3) by a person
seeking spiritual counseling (4) to a member of the clergy.
o Applies to clergy members of any religion, as long as the communicant is
seeking spiritual counseling.
o The communicant controls the privilege
 But, clergy members often assert the privilege on behalf of the
communicant
o Communicant must r-ably believe that the statement to a clergy member
will remain confidential
 Usually, presence of a third party will destroy the privilege
 But, group counseling sessions probably qualify as long as the
presence of each group member was essential to the
communication and furthered its spiritual purposes
 Right Against Self-Incrimination
o “No person…shall be compelled in a criminal case to be a witness against
himself”
o Prosecutor cannot even call W to the stand if he knows that the W will just
invoke the 5th….this is too prejudicial to the W
o Waiver – If W chooses to testify, then prosecutor can try to illicit
incriminating info from the W
o This privilege is absolute
 But, can be overcome if prosecutor grants immunity to the W
o Does NOT protect corporations, just individuals
Authentication
 Generally
o Before introducing E other than live testimony, parties must establish the
identity of the E. This process is called “Authentication.”
o 3 functions of authentication
 (1) necessary to establish relevance
 a piece of E becomes relevant only after linking it to the
controversy
 (2) authentication offers the jury some assurance that piece of E is

genuine
 (3) authentication puts the E in proper context
 gives atty’s an opportunity to remind the jurors why a piece
of E is important and how it relates to other parts of the
case
o What authentication does NOT do
 Does NOT guarantee the identity or genuineness of any piece of E
 Does not establish compliance with other evidentiary rules
 Rule 901. Authenticating or Identifying Evidence
o (a) In General. To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.
 Notes
o Two important concepts:
 (1) the threshold for establishing authentication is very low
 party need only produce E “sufficient to support a finding of
authenticity”
 (2) definition of authenticity – the rule requires a party to show
that an object or document “is what the proponent claims it is”
 applies to documents that display their identity in an
obvious and trustworthy
 Rule 901. Authenticating or Identifying Evidence
o (b) Examples. The following are examples only--not a complete list--of
evidence that satisfies the requirement:
 (1) Testimony of a Witness with Knowledge. Testimony that
an item is what it is claimed to be.
 (2) Nonexpert Opinion About Handwriting. A nonexpert's
opinion that handwriting is genuine, based on a familiarity with it
that was not acquired for the current litigation.
 (3) Comparison by an Expert Witness or the Trier of Fact. A
comparison with an authenticated specimen by an expert witness
or the trier of fact.
 (4) Distinctive Characteristics and the Like. The appearance,

contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances.
 (5) Opinion About a Voice. An opinion identifying a person's
voice--whether heard firsthand or through mechanical or electronic
transmission or recording--based on hearing the voice at any time
under circumstances that connect it with the alleged speaker.
 (6) Evidence About a Telephone Conversation. For a
telephone conversation, evidence that a call was made to the
number assigned at the time to:
 (A) a particular person, if circumstances, including self-
identification, show that the person answering was the one
called; or
 (B) a particular business, if the call was made to a
business and the call related to business reasonably
transacted over the telephone.
 (7) Evidence About Public Records. Evidence that:
 (A) a document was recorded or filed in a public office as
authorized by law; or
 (B) a purported public record or statement is from the
office where items of this kind are kept.
 (8) Evidence About Ancient Documents or Data
Compilations. For a document or data compilation, evidence that
it:
 (A) is in a condition that creates no suspicion about its
authenticity;
 (B) was in a place where, if authentic, it would likely be;
and
 (C) is at least 20 years old when offered.
 (9) Evidence About a Process or System. Evidence describing
a process or system and showing that it produces an accurate
result.
 (10) Methods Provided by a Statute or Rule. Any method of
authentication or identification allowed by a federal statute or a
rule prescribed by the Supreme Court.
o Notes
 There are two types of E under Article IX
 (1) E that requires some kind of extrinsic information to be
authenticated and
 (2) E that is self-authenticating and requires no extrinsic
E to establish authenticity
 Most common way to authenticate something is W testimony that
the E is authentic
 Common ways to authenticate E
 Distinctive Features – if a piece of E has distinctive
characteristics, a W familiar with the item can identify it in
court
 Chain of Custody – If a piece of E lacks distinctive
characteristics (e.g., drugs) and the E changes hands
throughout the investigation, parties will have to establish a
chain of custody, and call a series of W’s to identify each
“link” in the chain.
 Handwriting – There are at least 5 avenues to
authenticate handwriting
 (1) the person who authored the note or signature
may identify the writing as her own
 (2) someone who saw the act of writing may identify
the person who wrote or signed the document
 (3) an expert W can identify the handwriting by
comparing the disputed writing with a sample that
has been verified by other means
 (4) the trier of fact can compare signatures in the
same manner that an expert does. Party can
introduce both the disputed writing and the admitted
samples into E and the jury can compare them and
draw their own conclusions
 (5) lay persons who are familiar with another
person’s handwriting can identify that handwriting in
court
o could be a family member, coworker, long
time friend, etc.
o the familiarity MUST develop outside the

litigation; lay W cannot authenticate another
person’s handwriting after studying that
handwriting to prepare for trial.
 Voice ID – any W who is familiar with a person’s voice may
ID that voice in court.
 The W may develop “familiarity” with the voice at
any time
o Ex. – W who meets a telephone caller after
the call may use the subsequent meeting to
identify the voice on the call
o W is allowed to develop voice recognition
solely in connection with the litigation
 This is HUGE for criminal drug
investigations where cops set up
controlled buys.
 Photographs and Videos – When a party offers these to
illustrate the scenes depicted in them, a party can
authenticate by asking if the photo/video fairly and
accurately represents the underlying scene at the relevant
time.
 Emails and Social Media
 Author of email can easily authenticate the email by
testifying that she wrote the message
 If someone else saw the author write the email, this
also establishes authenticity
 When the author is unavailable
o Parties can authenticate through
“appearance, contents, substance, internal
patterns, or other distinctive characteristics of
the item”
 Can use sender’s address, etc.
 Rule 902. Evidence That Is Self-Authenticating
o The following items of evidence are self-authenticating; they require no
extrinsic evidence of authenticity in order to be admitted:
 (1) Domestic Public Documents That Are Sealed and

Signed. A document that bears:
 (A) a seal purporting to be that of the United States; any
state, district, commonwealth, territory, or insular
possession of the United States; the former Panama Canal
Zone; the Trust Territory of the Pacific Islands; a political
subdivision of any of these entities; or a department,
agency, or officer of any entity named above; and
 (B) a signature purporting to be an execution or
attestation.
 (2) Domestic Public Documents That Are Not Sealed but Are
Signed and Certified. A document that bears no seal if:
 (A) it bears the signature of an officer or employee of an
entity named in Rule 902(1)(A); and
 (B) another public officer who has a seal and official duties
within that same entity certifies under seal--or its
equivalent--that the signer has the official capacity and that
the signature is genuine.
 (3) Foreign Public Documents. A document that purports to be
signed or attested by a person who is authorized by a foreign
country's law to do so. The document must be accompanied by a
final certification that certifies the genuineness of the signature
and official position of the signer or attester--or of any foreign
official whose certificate of genuineness relates to the signature or
attestation or is in a chain of certificates of genuineness relating to
the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul
general, vice consul, or consular agent of the United States; or by
a diplomatic or consular official of the foreign country assigned or
accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document's authenticity
and accuracy, the court may, for good cause, either:
 (A) order that it be treated as presumptively authentic
without final certification; or
 (B) allow it to be evidenced by an attested summary with
or without final certification.
 (4) Certified Copies of Public Records. A copy of an official

record--or a copy of a document that was recorded or filed in a
public office as authorized by law--if the copy is certified as correct
by:
 (A) the custodian or another person authorized to make
the certification; or
 (B) a certificate that complies with Rule 902(1), (2), or
(3), a federal statute, or a rule prescribed by the Supreme
Court.
 (5) Official Publications. A book, pamphlet, or other publication
purporting to be issued by a public authority.
 (6) Newspapers and Periodicals. Printed material purporting to
be a newspaper or periodical.
 (7) Trade Inscriptions and the Like. An inscription, sign, tag,
or label purporting to have been affixed in the course of business
and indicating origin, ownership, or control.
 (8) Acknowledged Documents. A document accompanied by a
certificate of acknowledgment that is lawfully executed by a notary
public or another officer who is authorized to take
acknowledgments.
 (9) Commercial Paper and Related Documents. Commercial
paper, a signature on it, and related documents, to the extent
allowed by general commercial law.
 (10) Presumptions Under a Federal Statute. A signature,
document, or anything else that a federal statute declares to be
presumptively or prima facie genuine or authentic.
 (11) Certified Domestic Records of a Regularly Conducted
Activity. The original or a copy of a domestic record that meets
the requirements of Rule 803(6)(A)-(C), as shown by a
certification of the custodian or another qualified person that
complies with a federal statute or a rule prescribed by the
Supreme Court. Before the trial or hearing, the proponent must
give an adverse party reasonable written notice of the intent to
offer the record--and must make the record and certification
available for inspection--so that the party has a fair opportunity to
challenge them.
 (12) Certified Foreign Records of a Regularly Conducted

Activity. In a civil case, the original or a copy of a foreign record
that meets the requirements of Rule 902(11), modified as follows:
the certification, rather than complying with a federal statute or
Supreme Court rule, must be signed in a manner that, if falsely
made, would subject the maker to a criminal penalty in the country
where the certification is signed. The proponent must also meet
the notice requirements of Rule 902(11).
 Notes
o Under FRE 902, only these 12 categories of documents are self-
authenticating
o Public Records – public records are self authenticating if they are an
original public document from any federal, state, or local gov’t unit if that
document bears both a signature attesting to the document’s authenticity
and the official seal of the governmental unit
o Public Documents from Foreign Countries
 Foreign document must carry (1) the signature of a foreign official
responsible for verifying the document and (2) a diplomatic or
consular certification
o Books, pamphlets, or other publications issued by public
authorities – these are self-authenticating
o Newspapers and Periodicals
 These are self-authenticating, but often contain inadmissible
hearsay
o Business Records – these are self-authenticating
 A certificate satisfying the requirements of the business records
exception under 803(6) also authenticates the document
o Websites – many courts accept gov’t-owned websites as self-
authenticating
 Rule 903. Subscribing Witness's Testimony
o A subscribing witness's testimony is necessary to authenticate a writing
only if required by the law of the jurisdiction that governs its validity.
 Notes
o A “subscribing W” is a person who signs a document to indicate that she
saw another person execute the document.
o At CL, subscribing W’s often had to appear in court to confirm the Identity
of documents they signed. FRE 903 does away with that requirement
unless the law of another jx governs the dispute and that jx would require
testimony from the subscribing W [which rarely ever happens]
Best Evidence Rule

 Generally
o When a party relies upon a writing, recording, or photograph to prove
the content of that document, the BER requires the party to introduce
the original document
o However, the rule also recognizes numerous exceptions, including
widespread allowance of accurate copies
o The BER relies on 3 policies
 (1) the content of a writing, recording, or photo is more detailed
and difficult to describe than most events or objects that W’s
relate in the courtroom
 (2) Writings, recordings, and photographs are relatively easy to
produce, especially since modern rules allow for liberal use of
duplicates
 (3) the BER reduces opportunities for fraud and distortion. If
parties could prove the content of writings, recordings, or photos
through oral testimony, they might mischaracterize complex
documents.
o The BER is actually a series of eight separate rules contained in Article X
of the FRE
 Rule 1001. Definitions That Apply to This Article
o In this article:
 (a) A "writing" consists of letters, words, numbers, or their
equivalent set down in any form.
 (b) A "recording" consists of letters, words, numbers, or their
equivalent recorded in any manner.
 (c) A "photograph" means a photographic image or its equivalent
stored in any form.
 Notes
o Think broadly about the categories of E that the BER encompasses.
o Any type of document, data compilation, recording, still photograph, or

motion picture will fall within the rule
o Ex. – a drawing can be a “writing” for purposes of the BER
o Ex. – GPS monitoring can be a “recording” for purposes of the BER
 Rule 1002. Requirement of the Original
o An original writing, recording, or photograph is required in order to prove
its content unless these rules or a federal statute provides otherwise.
 Notes
o What does it mean to “prove the content” of a writing, recording, or
photo?
 There are 2 categories of cases in which parties prove the content
of a writing, recording, or photograph
 (1) cases in which the writing/recording/photo has
independent legal significance
 content of the document itself controls some fact in
the litigation
o Ex. – If parites dispute the meaning of a
written K, the K itself shows the words that
were used
o Ex. – if party complains that a photo is
libelous, the photo shows what the defendant
published. The photo ITSELF has legal
significance
 (2) cases in which a party seeks to prove the content of a
writing, recording, or photo and the party chooses one of
those categories as a convenient option for proving some
fact
 in these cases, the party could have chosen some
other means of proof, but settled on a writing,
recording, or photo
 The BER applies equally to both categories of E; the only difference
between the categories is that parties who offer E falling in the first
category must introduce a writing, recording, or photograph. They
cannot escape the BER by introducing a different type of E
 Parties in the second category have a choice. They can avoid the
BER by choosing a different type of E

o (d) An "original" of a writing or recording means
 the writing or recording itself or
 any counterpart intended to have the same effect by the person
who executed or issued it.
 For electronically stored information, "original" means any
printout--or other output readable by sight--if it accurately reflects
the information.
 An "original" of a photograph includes the negative or a print from
it.
 Notes
o When the BER applies, its default principle requires the party to produce
the original writing recording, or photo
o Identification of an original sometimes depends on what the party offering
the document is trying to prove
 If parties dispute how much the P paid for dinner at the D’s
restaurant, then both copies of the credit card receipt are originals
that may be used to prove the total bill
 But if the parties dispute whether the P signed the receipt or a
waiter forged the signature, then only the copy bearing the P’s
purported signature is the original
o (e) A "duplicate" means a counterpart produced by a mechanical,
photographic, chemical, electronic, or other equivalent process or
technique that accurately reproduces the original.
 Notes
o The BER recognizes that mechanically produced copies often are as
reliable as an original
o R 1001(e) identifies the types of duplicates that are particularly reliable
o RULE: Any duplicate must be a copy generated by a method that
“accurately reproduces the original”
o RULE: the duplication process must follow one of the four processes or an
“equivalent” technique
o Note: this rule precludes handwritten or other personally crafted copies
 Rule 1003. Admissibility of Duplicates
o A duplicate is admissible to the same extent as the original unless
 a genuine question is raised about the original's authenticity or

 the circumstances make it unfair to admit the duplicate.
 Notes
o Rules 1001(e) and 1003 allow parties to enhance writings, recordings, or
photographs by enlarging them, using electronic means to eliminate
background noise, and adjusting the brightness and contrast in images
o Rule 1003 imposes two limits on the use of duplicates
 (1) the court will reject the duplicate if its use would be unfair
 (2) the rule requires use of an original writing, recording, or photo
if a party challenges the authenticity of the original
 Rule 1004. Admissibility of Other Evidence of Content
o An original is not required and other evidence of the content of a writing,
recording, or photograph is admissible if:
 (a) all the originals are lost or destroyed, and not by the
proponent acting in bad faith;
 (b) an original cannot be obtained by any available judicial
process;
 (c) the party against whom the original would be offered had
control of the original; was at that time put on notice, by pleadings
or otherwise, that the original would be a subject of proof at the
trial or hearing; and fails to produce it at the trial or hearing; or
 (d) the writing, recording, or photograph is not closely related to a
controlling issue.
 Notes
o R 1004 lays out exceptions to the BER, recognizing that parties sometimes
cannot produce an original or reliable duplicate of a writing, recording, or
photo
o If party claims that the originals were lost or destroyed, then the party
may introduce the other E to prove the content of the writing, recording,
or photo as long as the party’s own bad faith did not cause the loss or
destruction of the original
o If a party cannot obtain the original through judicial process or
procedure, the requirement of an original is excused
 Usually, this arises when a third party has the original and refuses
to produce it
o If an opponent controls the original, then the party proving the content
of the original need not produce it as long as the pleadings or some other
circumstances notified the opponent that the content of the original will be
the subject of proof.
o If the writing, recording, or photo is not closely related to a controlling
issue, then the parties need not produce the original.
 Rule 1007. Testimony or Statement of a Party to Prove Content
o The proponent may prove the content of a writing, recording, or
photograph by the testimony, deposition, or written statement of the
party against whom the evidence is offered. The proponent need not
account for the original.
 Notes
o If an opponent admits the contents of a writing, recording, or photo, then
the party does not have to produce the original document or account for
its absence
o The statement MUST occur in writing, in testimony, or in a deposition.
Unsworn oral statements don’t satisfy R 1007.
 Rule 1005. Copies of Public Records to Prove Content
o The proponent may use a copy to prove the content of an official record--
or of a document that was recorded or filed in a public office as authorized
by law--if these conditions are met:
 the record or document is otherwise admissible; and
 the copy is certified as correct in accordance with Rule 902(4) or is
testified to be correct by a witness who has compared it with the
original.
o If no such copy can be obtained by reasonable diligence, then the
proponent may use other evidence to prove the content.
 Notes
o Parties ordinary cannot produce original public records in court because
those records remain with the public agency
o The rule offers 3 ways to proving the contents of public records
 (1) introduction of a copy that has been certified under R 902(4)
 (2) testimony by a W who has compared a copy with the original
 (3) other E, when one of the first two methods is not obtainable by
r-able diligence.
 Rule 1006. Summaries to Prove Content
o The proponent may use a summary, chart, or calculation to prove the

content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court.
o The proponent must make the originals or duplicates available for
examination or copying, or both, by other parties at a reasonable time
and place.
o And the court may order the proponent to produce them in court.
 Notes
o Sometimes, disputes will involve a shit ton of records and producing all of
them in court wouldn’t be practical. SO this rule allows for summaries of
docs and records to be made.
o R 1006 allows summaries in any form, including a “chart” or “calculation.”
o The rule prevents deception by requiring the party offering the summary
to make the originals or duplicates available for examination and copying.
o The court may direct the party to produce the originals or duplicates in
court
 Rule 1008. Functions of the Court and Jury
o Ordinarily, the court determines whether the proponent has fulfilled the
factual conditions for admitting other evidence of the content of a writing,
recording, or photograph under Rule 1004 or 1005.
o But in a jury trial, the jury determines--in accordance with Rule 104(b)--
any issue about whether:
 (a) an asserted writing, recording, or photograph ever existed;
 (b) another one produced at the trial or hearing is the original; or
 (c) other evidence of content accurately reflects the content.
 Attacking a BER problem
o First Step: know when it applies
 Applies to writings, recordings, and photographs
 Advisory committee defined “writing” in a way that could
evolve with technology
 Only applies when you’re trying to prove the CONTENT of the
writing, recording, or photo
 If not trying to prove the content, BER doesn’t apply
o If you’re trying to prove a writing, recording, or photo, you MUST
introduce the writing, recording, or photograph
Approach to Exam
- Read call of the question first
- Then read question (take notes)
- Then, answer the question
o Conclusion answer the question
o Rule (state rule that applies)
o Proof (explain the rule, including cases or advisory committee notes that flush
the rule out)
o Application (apply the rule to the facts of the question)
o Conclusion (restate your conclusion)
- Outline your answer
- Definitely cite to the rule and subparts; cite to cases where helpful
- Argue in the alternative
- If multiple arguments exist, address each (e.g., hearsay and confrontation clause)
Question cutoff: 5pm on Sunday
Open Book: may bring any book she assigned, any handouts she gave us, any notes we
have made, outlines, etc. But, no commercially prepared materials. 20 MC questions
worth 2 pts each. One Essay worth 40 points. 3.5 hour exam.
Note: there is no way to test the residual hearsay exception on a MC question

09/30/2020
Attacking a Hearsay Problems (First: diagram who is Declarant
and who is the W)
 (1) Do we have an out of court statement?
 (2) If it offered to prove the TOTMA?
o There might be a non-hearsay purpose
 (3) Is the Declarant a W?
o 801(d)(1) exceptions where declarant is the witness
 so, can cross off all exceptions under 804 since
declarant is available
o If declarant is not a W, cross off 801(d)(1)
 Are they unavailable under 804(a)?
 (4) Is the declarant an opposing party under 801(d)(2)?
o If so, it’s coming in. This is the easiest route to admission
o If not, you need an exception
 803 exceptions apply in every case
 804 gives exceptions where declarant is unavailable
 (5) is this a criminal case?
o If yes, is the out of court statement being offered by the
prosecution?
o If yes, is the statement testimonial?
o If yes, did the D have a prior opportunity and motive to cross
examine the declarant or do they have the opportunity right
now?
 Just because one answer is right doesn’t mean other answers are
wrong. There might be multiple pathways to admission for out-of-
court statements
09/30/2020

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The Federal Rules of Evidence – Scope

o rendition = the return of a fugitive from one

Raising and Resolving Evidentiary Objections

 Occurs when W answers quickly before

 Sometimes, Atty will just describe what the E would

 (a) Preserving a Claim of Error. A party may claim

 Not a particularly high bar. Must still connect to legal issues

Prejudice, Confusion, or Waste of Time

 If there is alternative E that is equally probative or more

Ancillary Relevance Rules under Article 4

Subsequent Remedial Measures – Rule 407

o 407 applies to a wide variety of claims, including negligence, strict

 (2) the W makes an absolute

Settlements and Offers to Compromise

o (a) Prohibited Uses. Evidence of the following is not admissible--on

 Encompasses offers, promises, acceptances, offers to

 (2) conduct or a statement made during compromise

Medical Expenses – Rule 409

 409 only bars admission of offers and promises to pay med

Criminal Plea Bargaining – Rule 410

 Rule 410. Pleas, Plea Discussions, and Related Statements

 (2) a nolo contendere plea;

 Miranda affects this – makes it more of a confession

Liability Insurance – Rule 411

Putting a Witness on the Stand

 Rule 601. Competency to Testify in General

o Every person is competent to be a witness unless these rules provide

 Rule 605. Judge's Competency as a Witness

 Rule 606. Juror's Competency as a Witness

 Rule 602. Need for Personal Knowledge

 Rule 603. Oath or Affirmation to Testify Truthfully

 Rule 604. Interpreter

 Rule 611. Mode and Order of Examining Witnesses and Presenting

 the W’s pedigree includes uncontested points like

 Rule 614. Court's Calling or Examining a Witness

 Rule 615. Excluding Witnesses

Refreshing a W’s Memory

 when prepping your W’s, let them know about this in

 Adverse Party is entitled to inspect the writing, x-

Using Prior Statements to Impeach Witnesses

o However, the FRE allow parties to present extrinsic E of prior inconsistent

o Judges often admit these when the prior

Impeachment: Revealing Untruthful Character on Cross-Examination

 (3) Exceptions for a Witness. Evidence of a witness's character

Using Criminal Convictions to Impeach Witnesses

 (B) must be admitted in a criminal case in which the

o (e) Pendency of an Appeal. A conviction that satisfies this rule is

o if the two are similar, the likelihood of

 If the parole is revoked due to a violation, then the

Reputation or Opinion Evidence of Untruthful Character

Cross-Examining The Character Witness

 Introduction of reputation or opinion E suggesting a character for

Religious Beliefs and Impeachment

o There’s a danger that jurors would give undue weight to testimony if

o Applies only to writings and recorded statements

Character Evidence and the Rules