Evidence Allen/Outline

From wikilawschool.net. Wiki Law School does not provide legal advice. For educational purposes only.
Authors Ronald J. Allen
Eleanor Swift
David S. Schwartz
Michael S. Pardo
Alex Stein
Text Image of An Analytical Approach To Evidence: Text, Problems, and Cases [Connected eBook with Study Center] (Aspen Casebook)
An Analytical Approach To Evidence: Text, Problems, and Cases [Connected eBook with Study Center] (Aspen Casebook)
Taught by
Taught at
Related course(s)

Big Points:

  • ESSF/104a (preponderance of evidence) < Criminal Conviction (beyond a reasonable doubt)
  • 104a = judge (policy, rules) consider witness credibility, inadmissible evidence.
  • 104b = reasonable jury (facts), don’t consider witness credibility, admissible evidence only.
    • o For: ESSF, authentication, personal knowledge, conditionl relevance, showing knowledge/intent, post BER application Qs [Sieler]

General Test

  • Propose evidence
  • Relevance to make FOC more or less probable? Main Objections:
    • o (1) Relevance? Does it make FOC more or less probable? [401]
    • o (2) Dangers (prejudice, confusion/misleading, delay) substantially outweigh probative value (strength/need)? [403]
      • Favor admissibility.
    • o (3) Foundation?
      • Witness – do they have competency [601] + ESSF of personal knowledge [602]?
      • Exhibit – authenticated?
        • Is document valid under Self-Authentication list? [902]
        • If not, do we have testimony to establish ESSF that it is what it purports to be? [901]
          • o Real Evidence: Identity (identifiable marker) + Unchanged Condition (chain of custody)
          • o Demonstrative: Identity, unchanged condition, “Fair & Accurate” (then-and-now, process)
          • o Photograph/Recording: same analysis as demonstrative
          • o Written Document: look at 901 list
        • o (4) BER applies? Satisfied?
          • Applies if offering writing, recording, photograph, drawing [Seiler] to prove its content
          • Don’t need original if [1004] exceptions apply (eg original destroy w/o bad faith)
        • o (5) Character -- Ban on evidence that acting in accordance with general character [404a1]
          • Exceptions: Habit [406], specific past bad act to show motive/knowledge/intent – no extrinsic evidence [404b2], Crim D shows his own character [404a2A], Crim D shows victim’s character [404a2B], P in homicide show victim’s peacefulness [404a2C], impeachment [404a3] – then must do 403 analysis [Varoudakis]
        • o (6) Policy Exclusion: subsequent remedial measure [407], settlement [408], medical expenses [409], insurance [411], plea deals [410 – waiver under Luce/Olhmer]
      • Relevant for Impeachment? (or rehabilitation)
        • o Character for truthfulness? [608] General only, unless either witness own past act OR subject of testimony’s past act [608] – no extrinsic evidence allowed.
        • o Prior criminal conviction? [609] For felony, 403 test for non-crim D, reverse 403 for crim D. For dishonest act, auto admissible unless beyond 10 years then 403 test.
        • o Prior inconsistent statement [613] – for extrinsic evidence, witness must have oppt to explain statement + opposing party has oppt to explore inconsistency with witness
        • o Bias, mental/sensory incapacity, contradiction [common-law] -- collateral matters = no extrinsic
      • Hearsay – Out-of-court statement offered (as relevant) for truth of matter asserted?

Legal Process[edit | edit source]

  • Motions in limine -- usually written. Key idea is that parties know about what will be raised ahead of time, so that they can adequately prepare to argue those issues.
  • Objections
    • o Burden on attorney to object
    • o Two types
      • (1) Objection to question
      • (2) Objection to admissibility of evidence -- this is the important one
        • Can say anything that adequately provide grounds for objection
        • Court will only rule on things that are objected
  • Order of Parties
    • Prosecution's case-in-chief --> "rests" its case --> motions to dismiss --> defendant's case --> "rests" --> Prosecution rebuttal case
    • Rebuttal case is limited in scope. Must respond to either (a) matters raised as part of def's affirmative defenses, or (b) attacks from def on credibility of plaintiff evidence
      • Normally can't repeat evidence or introduce evidence that should have been introduced in case-in-chief.
    • Sur-rebuttal -- occasionally when defense gets a rebuttal period.
  • Opening Instructions
    • Know the charge, victims
    • Jury allowed to make inferences about demeanor.
    • Jury shouldn't do its own investigation. Concerns about reliability of info, admissibility, jury distraction, removing burden from adversarial parties
  • Opening Statements
    • Defense can reserve opening statement until after prosecution calls witnesses.
      • Pro: Puts burden solely on prosecution to prove case.
      • Con: Engrains the prosecution's story in the jury's mind.
  • Lawyer's role is (a) follow evidence rules, (b) EXPLAIN evidence importance to jury via story
  • Witness's prior convictions can be taken into consideration by jury to determine witness credibility
  • Reasonable doubt = not just a possible doubt, but no moral certainty of the truth. Higher than "preponderance of evidence"

A. FRE 104: Preliminary Questions[edit | edit source]

(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.

FRE 104(a): Legal Questions[edit | edit source]

  • Applications: (1) witness qualification (both expert and general witness competence), (2) existence of privilege, (3) evidence admissibility
  • Rationale: We want legal issues to go to judge first
    • o Judges know the rules better
    • o Greater consistency by judge
  • Judge is NOT bound by FRE, except for privileges
    • o Can consider inadmissible evidence
    • o Ex: Judge can consider hearsay and other inadmissible evidence

FRE 104(b): Factual Question for Relevance[edit | edit source]

aka "missing fact rule" -- If relevance of item depends on missing fact, item will be deemed relevant if/when party introduces ESSF that missing fact is true

  • Applications: ESSF of personal knowledge
  • Two questions:
    • Whether relevance depends on if fact exists
    • Whether there is ESSF of this fact
  • Judge is bound to only consider admissible evidence
  • Judge is considering what a reasonable jury would need to know for relevance
  • ISSUE: Relevance (FRE 401) versus 104(b)
    • 104(b): Facts on which relevance depends (eg officers wearing gloves creates self-defense concern) can require ESSF (eg why do officers wear gloves)
      • Judge has option to (a) demand evidence before admitting, or (b) conditional admission
      • Scenarios: Objection due to doubt doubts generalization, or judge doubts the truth of fact on which relevance depends
    • 401: Lower standard, just requires any tendency to help jury find FOC more or less probable
      • Evidence can pass 401 relevance standard, but be otherwise inadmissible and thus fail 104(b).

Some things depends on evidentiary policy besides the rules -Judge knows the rules, but ALSO knows the evidentiary policies underlying the rules so knows when to exclude evidence for those reasons -On contrary, relevance and probative value are straightforward enough for jury to decide. They can decide what they want to rely on.

104(a) versus 104(b)[edit | edit source]

  • ISSUE: Which standard should apply?
  • Determining which standard to apply comes from objection
    • o If its objection which depends on evidence policy (eg authentication, personal knowledge) --> 104b
      • Idea: Jury needs certain factual information and has ability to ignore facts it doesn’t thing significant.
    • o If there is objection which depends on technical rules of evidence --> 104a
      • Idea: Judge is a better at knowing rules
    • Comparison

104b 104a

Reasonable jury Judge decides
Preponderance of the evidence standard Preponderance of the evidence standard
Don’t consider witness credibility Consider witness credibility
Admissible evidence only considered Inadmissible evidence considered

B. Lesser Rules Overview[edit | edit source]

  • FRE 102' – general purpose, role of evidence law is to ascertain the truth'
  • FRE 103' – if you want appeal, you need to object to admissibility at trial and explain why. Abuse of Discretion standard.'
  • FRE 611' – trial courts have discretion for ordering of evidence to avoid time wasting'
  • FRE 1101' – evidence rules apply the same in civil and criminal'

Relevance / Rule 403[edit | edit source]

A. FRE 401: Relevance[edit | edit source]

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.

  • TEST:
    • (1) Does the evidence relate to a FOC?
    • (2) Does the evidence make the FOC more or less probable?
      • Reasonable Juror standard
  • Reasonable Juror standard: could "reasonable juror" see a connection between evidence and FOC
    • Depends on common sense, science, procedure
    • Evidence doesn't have the prove the FOC to be relevant, just have tilting effect
  • Common reasons why this fails
    • Judge knows the connection to be false
    • Connection is unduly speculative
  • Standard = Evidence Sufficient to Support a Finding (ESSF)''''
    • Reasonable juror standard. Could reasonable juror find this fact (that witness has firsthand knowledge / exhibit is accurate) by preponderance of the evidence?
  • Policy favors admissibility
  • Two major points:
    • o (1) Any tendency is a minimal standard of relevance
    • o (2) Opposition’s theory of the case is important for showing relevance.
    • o Knapp v. State (Ind. 1907)
      • Facts: D kills marshal, claiming self-defense. Offers as evidence that he had heard the victim had clubbed an old man to death when arresting him. Truth is that the old man died from senility/alcoholism.
      • HOLDING: Evidence that old man died from senility was relevant to discredit the Def.
        • EF = he heard about clubbing
        • FOC-1 = beat old man to death
        • FOC-2 = feared marshal
        • EE = self-defense
      • RULE: Relevance doesn’t necessarily depend on conclusiveness of inferences to be made based on evidence. Sufficient if evidence tends to help jury reach the truth, even in slight degree.
        • Generalization that people are prone to truth-telling
    • United States v. Stever (9th Cir 2010)
      • Facts: D is found to have weed operation on his property. He claims it was a Mexican drug trafficking org (DTO). Claims evidence that (1) DTOs will trespass, (2) this is typical of DTO work, (3) DTO wouldn't involve a white person.
      • HOLDING: This was all relevant. Evidence need not relate to particular DTO. Even though cooperation is still possible, this evidence (if true) would make his guilt less likely
      • RULE: “Any tendency” is a minimal standard.
        • As long as evidence is logically relevant, the speculative nature is for jury to decide not judge

B. FRE 403: Probative Value, Danger[edit | edit source]

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.

  • TEST:
    • What is the probative value?
      • (1) Strength of Evidence -- tendency to make FOC more/less probable
      • (2) Need for Evidence
      • Judges don't consider witness credibility. Presume credible, would reasonable jury use it?
    • What are the dangers?
      • (1) Risk of error in jury's reasoning process -- unfairly prejudicial, confusing, misleading
      • (2) Trial efficiency -- if evidence causes undue delay, wastes time, needlessly cumulative
    • Do the dangers “substantially outweigh” probative value?
      • Presumption for admissibility
  • Two primary risks of prejudice
    • o (a) The information will elicit a strong emotional response from jury
    • o (b) Jury will misuse the information for an improper purpose
  • Limiting Instructions – will be used to limit prejudice danger, but science on effectiveness is inconclusive
    • FRE 105 -- "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."
      • Essentially, the court says to use this evidence only for its proper use.
    • Problems
      • Research shows that instruction only emphasizes the inadmissible evidence/use
      • Jurors follow limiting instructions selectively
      • Juror react negatively to their ability to perform "free behaviors" (especially when they think the inadmissible evidence is very relevant)
    • Judges rely on effectiveness of limiting instructions
  • Appellate Review
    • Judgements are reviewed by abuse of discretion standard
      • Very deferential appellate standard b/c
        • Complexity and Uncertainty -- judge is using rough estimates in the "substantially outweighs" evaluation. Not a scientific estimate.
        • Competence -- Trial judge is closer to evidence and more exposed to trial-level decisions.
        • Tolerance for Outcomes that Appear Inconsistent -- Appellate judges understand that decisions will depend on rough estimates and fact-specific inquiries, so they are okay with inconsistent rulings.
      • Reasons for overturning
        • Errors of law -- get de novo review
        • Clear error of judgment
  • Admissibility =/= sufficiency of sending case to jury
    • Admissibility (more or less likely) is lower than conviction standard'
  • Mere fact that other side has testimony that might contradict/challenge your evidence doesn't necessarily affect its admissibility
  • Old Chief (1997)
    • Facts: One element of new crime is prior conviction. D offered to just stipulate that a prior crime was committed. P decline, wanting to articulate that there was prior aggressive assault. Should judge allow or exclude?
    • RULE: You should discount probative value if its unfairly prejudicial, and exclude if there is adequate evidentiary alternative!
      • Souter Argument: Evidence has higher probative value because it helps tell a narrative. Not simply relation to proving specific fact, but value in constructing a narrative.

Foundation[edit | edit source]

  • Foundation = no evidence is admissible until it is first shown to be what proponent claims it to be
    • Exception: Expert testimony
    • Establish foundations by rooting it in…
      • A) Firsthand Knowledge
      • B) Specific fact
      • C) Logical connection to offering party's theory of the case
    • Not explicitly mentioned anywhere. Implicit in rules FRE 602, 901/902, 701, and 104(b).
  • Witness foundation = competence + testimony with ESSF of firsthand knowledge
  • Exhibit foundation = EESF that exhibit is what it claims to be

A. Witness[edit | edit source]

  • RULE: To admit testimony, witness must:
    • (1) have firsthand knowledge
    • (2) know what they are testifying about
    • (3) be able to convey useful info to jury

FRE 601: Competency[edit | edit source]

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.

  • No set competency qualifications.
  • RULE FRE 601: Low standard for competency. Admit most testimony as competent.
    • o Rationale: Jury is the ultimate decider of witness credibility. Maintain trial by jury rights.
    • o Exceptions:
      • State rules factor into diversity for civil case.
      • Presiding trial judge (FRE 605) and jury member (FRE 606) can't testify in case at issue
        • FRE 606b – can’t attack verdict bc of what juror said or thought during deliberations.
          • Exception:
            • Bringing in outside knowledge can be attacked.
            • If there was racial prejudice factored in criminal cases (Pena-Rodriguez)
  • Presumed competency for children testifying during sexual abuse cases.

FRE 602: Personal Knowledge[edit | edit source]

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.

  • RULE FRE 602: There must be Evidence sufficient to support a finding (ESSF) that witness has personal knowledge
    • o 104b -- Judicial determination whether reasonable jury would find it more likely than not that witness has personal knowledge
  • Personal Knowledge = Firsthand info gained through any of the 5 senses
    • o Personal knowledge sufficient for admissibility.
      • Rationale: Otherwise would have problem of "infinite regress"
      • Infinite Regress = every witness would need a support witness, who would need a support witness, etc.
    • Trial attorney MUST ask the witness questions so that they state and establish their firsthand knowledge, either explicitly or impliedly (eg How do you know?)

B. Exhibits[edit | edit source]

  • RULE FRE 901: To authenticate an item of evidence, must produce ESSF that “item is what the proponent claims it is.”
    • o “Item is what the proponent claims it is” = essentially, establish its relevance
  • ESSF
    • o Establish ESSF by having witness attest to its content and validity + ESSF that the witness knows
      • Ask: (1) What is this? (2) How do you know?
    • o Can oppose by:
      • (a) Argue that foundation evidence is insufficient
      • (b) Provide counter evidence
        • But judge will usually just admit both the evidence and contrary evidence, let jury decide
      • Partial Foundations
        • o RULE: When the ESSF for exhibit is split amongst multiple defs, you can either:
          • (1) Present some evidence in earlier witness, then introduce exhibit when later witness can round out the exhibit foundation
          • (2) Connecting Up = Judge will permit partially founded exhibit on condition that it will be fully founded later (FRE 104(b))
            • Conditionally admit
            • If the evidence is highly prejudicial and the attorney fails to "connect up" later, the judge may declare a mistrial

FRE 901: Authentication[edit | edit source]

(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.'(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.

  • Non-exhaustive list
    • 1) Testimony of a witness with knowledge
    • 2) Nonexpert opinion on handwriting
    • 3) Comparison by trier or expert witness
    • 4) Distinctive characteristics taken in conjunction with other circumstances
    • 5) Voice identification
    • 6) Telephone conversations by evidence that a call was made to the number assigned to a particular person or business
    • 7) Public Records/Reports – evidence that a writing was recorded or filed where forms of that nature are filed
    • 8) Ancient Docs – evidence that a document is in an unsuspicious condition, located in a normal location, and in existence for more than 20 years.
    • 9) Process or System – evidence describing or process or system and showing the process is accurate
    • 10) Any method of authentication provided by statute
  • 4 types of exhibits
    • Real Evidence – relevant bc part of the litigated events
      • Key Qs: What is this? How/why is it connected to the case?
      • Foundation Method: Authenticate with witness who has personal knowledge of event + can testify to identity and unchanged condition (ie chain of custody, identifiers)
      • Requirements:
        • Identity
          • RULE: Need testimony about
            • (1) identifiable marking or characteristic, or
            • (2) chain of custody
          • ISSUE: Generic vs. unique item – for unique item (eg culprit's jacket), just need witness to say so. If it’s generic item (eg cash), look for an identifying marker or tag it at crime scene.
        • Unchanged Condition
          • RULE: Must show chain of custody – not every link, but each vital link such that reasonably jury can conclude it’s the same
      • HIGH probative value
    • Demonstrative Evidence – relevant bc describes, depicts, or reconstructs litigated events
      • Key Qs: Is this evidence a fair and accurate representation of what "this other thing looked like at the time"
      • Foundation Methods: Authenticate with witness who (a) knows of the exhibit’s content and connection to case, and (b) can testify about either:
        • Now-and-Then – witness was there, remembers events, and can testify to accuracy of exhibit
        • Process Foundations -- testimony shows that process of making and keeping recording is "fair and accurate" to preserve identity and unchanged condition
      • Requirements
        • Identity
        • Unchanged Condition
        • Depiction is “Fair and Accurate”
      • Can raise 403 objection over accuracy
      • Note: Models, diagrams, and courtroom demonstrations created just to help with clarity are generally NOT admitted into evidence bc they do not have independent probative value. Still require foundation (ESSF that exhibit is fair and accurate).
    • Photographs/Video/Recordings
      • Can be cross between demonstrative evidence (eg photo of scene before events) and independent eyewitness testimony (eg surveillance camera captured litigated events)
      • Foundations Methods:
        • Percipient Witness / Now-and-Then – If the recording shows what the witness saw, witness can authenticate the recording by: (i) identifying events in recording, (ii) establishing witness’s ability to identify events, and (iii) testifying that records is fair and accurate depiction.
        • Silent Witness / Process Foundations – Witness was not there, but can testify about (i) to the type of the equipment or camera used, (ii) it’s general reliability, (iii) the quality of the recorded product, (iv) the process by which it was focused or (v) the general reliability of the entire system.
      • 403 dangers
        • Gruesome recordings are often objected to unfairly prejudicial.
        • Recording can be misleading – if it doesn’t correspond closely enough to actual events or shows only a limited perspective.
        • Recording can be misleading or confusing – If it is edited or lacks accuracy.
      • Voice Identification
        • Recording of voices can be relevant based on who is speaking.
        • Use FRE 901(b)(5) to admit -- permits opinion testimony from a witness based on hearing the voice at any time under circumstances that connect it with the alleged speaker. This burden requires only minimal familiarity: “Any person may identify a voice if he has heard the voice at any time.”
    • Written Documents
      • Key Qs: What is this document? Who wrote it? When?
      • Often relevant because of who wrote it. Proponent must show (1) facts that make document relevant due to connection to litigated events, and (2) ESSF that relevant person made the writing under 901.
      • Foundation Methods:
        • Signature
          • Witness testifies that saw the person make the signature (FRE 602/901b1)
          • Witness testifies that they are familiar with the person's handwriting and authenticates it (FRE 901b2)
          • Jury or expert makes comparison btw signature and known sample of Ds writing (FRE 901b3)
        • Circumstantial Evidence (FRE 901b4)
          • Prove authorship by content (eg writing reflects facts only known to D)
          • Prove authorship by Return address
          • Prove authorship by Circumstances in which the document is found
        • Business Records (FRE 901b4) -- Authenticate via:
          • Matching letterhead,
          • Comparison of matching forms,
          • Testimony about routine recording practices, or
          • Testimony of custodian about business’s filing or data retrieval system operates and that the document was retrieved from a certain file in a certain way.
        • Public Records (FRE 901b7) – Authenticate with testimony that record was found where such records are normally filed
        • Ancient Documents (FRE 901b8)
          • Three requirements:
            • Writing is over 20 years old
            • Writing is found in place where it would likely be if authentic (ESSF)
            • Writing is in condition that creates no suspicion about its authenticity
              • Narrow definition. We care that there has been no tampering to get the document in that location, NOT that the content is accurate.
        • Electronic Writings
          • Unsettled area of law. Use analogues to 901b list.
          • Consider: authorship, ownership of accounts, access to websites, source numbers for texts, document metadata, etc.
  • o If the authenticity is disputed (because of shared access, etc.), court will likely admit and let jury decide
  • Genuineness (proving something isn't a forgery) can sometimes be big issue, it's usually presumed when witness testifies to its authenticity (eg firsthand knowledge)

FRE 902: Self-Authentication[edit | edit source]

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).'(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11). '(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).

  • RULE FRE 902: Some written documents can be authenticated by their appearance alone, so proponent does not need to prove ESSF with testimony of a foundation witness.
    • o Burden shifts to opponent -- may still dispute the authenticity of document.
      • If opponent shows it lacks authenticity, issue goes to jury to decide.
    • o Good idea for proponent to try to fit evidence under 902. If that fails, then try under 901.
  • RULE: Still must provide a witness to establish relevance!
  • Exhaustive list
  • Only about authenticity of document, not accuracy of its content
  • In proposed change to 902 -- electronic records will be considered self-authenticating
  • Business Records Exception (FRE 902(11), 902(12)) to the Hearsay Rule (FRE 803(6))
    • Author of certification does not need to know contents of specific business records, but must know how records were created and maintained
    • Not definitive, but most courts want a verbatim recitation of the 803(6) factors for hearsay
    • Notice of party's intent to use these Rules + records must be given to opponent for verification and potential challenge

Best Evidence Rule[edit | edit source]

FRE 1001: Definitions That Apply to This Article'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.'(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.'(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.'FRE 1002. Requirement of the Original'An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.'FRE 1003. Admissibility of Duplicates'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.'FRE 1004: Admissibility of Other Evidence of Content'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.'FRE 1005. Copies of Public Records to Prove Content'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. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.'FRE 1006. Summaries to Prove Content'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. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.'FRE 1007. Testimony or Statement of a Party to Prove Content'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.'FRE 1008. Functions of the Court and Jury'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. 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.

  • RULE FRE 1001-1003: If you want to prove the content of a document ("writing, recording, or photograph") (ie what’s inside it), you must present the original or duplicate
    • EXCEPTIONS FRE 1004: Other evidence besides original/duplicate is allowed to prove content of doc when:
      • (a) Originals are lost or destroyed (not by proponent acting in bad faith)
      • (b) Original can't be obtained by judicial process
      • (c) Original is being withheld by other party
      • (d) It's offered for a collateral issue
      • Other evidence means visual or verbal depiction
    • FRE 1005: For public record, try to get a certified copy before defaulting to other evidence
    • FRE 1006: For a very large document, you can provide a summary.
    • FRE 1007: Proponent can use the testimony or written statement of the opponent to prove the content of a document against them.
    • FRE 1008: Once the judge makes a decision about BER under 1004/1005, there are still 3 issues that can go to jury:
      • (a) Whether asserted document ever existed
        • ISSUE: The text says to use a 104b standard, but the judge uses a 104a standard in 1004 determination in Seiler to preclude this.
      • (b) Whether document produced at trial is the original
      • (c) Whether other evidence accurately reflects the content
  • Not every exhibit will be subject to BER (ex: introducing murder weapon)
  • Some non-exhibits will be subject to BER (ex: witness is describing contents of video)
  • Original/Duplicates
    • o Original can include printout of the digital doc
    • o Duplicates = photocopies
      • FRE 1003: Duplicate is valid unless (a) there's question of its authenticity, or (b) would be unfair
    • When BER Applies
      • o RULE: BER applies if the content of the document is a fact of independent legal significance (eg document itself is part of the litigated events, source of relevant fact.)
        • Ex: If the contract terms specified a termination date that is relevant, you must offer the original contract.
      • o RULE: BER does not necessarily apply if it is merely depictive. If you have other evidence that can prove the underlying event reflected in the document, you can use that.
        • Ex: There is film of a car accident and guy #1 witnesses it. Guy #2 reviews the film. You can use guy #1’s testimony (602) instead of the video. Can only use Guy #2 testimony if other evidence applies.
  • Seiler v. Lucasfilm (9th Cir 1986)
    • Facts: Seiler (P) claims that LucasFilm copied his characters for Empire Strikes Back. But says his original drawings are lost. Offers to give reconstructions which were made in 1981.
    • HOLDING: Seiler loses. His bad faith led to originals’ unavailability under 1004, and judge makes
      • BER also applies to drawings.
        • Rationale: Need to analyze the details of drawings to make comparison.
        • Same dangers: fraud, faulty memory, etc.
      • Judge decides that P is acting in bad faith under 1004a, suggesting that he had a role in destroying the evidence.
        • This has a policy matter, so judge takes decision away from jury about whether the images ever existed and resolves it under 1004a.
        • Judge applies 104a (considers credibility). Jury might not care about technicalities or purpose/policy of BER, so keep it with judge.
    • RULE: BER also applies to drawings.
  • TEST:
    • (1) Does BER apply (ie must you provide the original/duplicate)?
      • Is it a writing, record, photograph (including drawing per Seiler) offered to prove its content?
        • Is the content a fact of independent legal significance? BER applies.
        • Is the content merely depicting an underlying event? BER does not apply. You can use other testimony if its available.
    • (2) Can you provide the original or duplicate?
      • Yes, end here
  • FRE 1003: Duplicate is valid unless (a) there's question of its authenticity, or (b) would be unfair
  • No, go to 3.
    • (3) Can you provide other evidence besides the original/duplicate?
      • First, FRE 1004: Judicial determination whether other evidence allowed. 104a standard.
        • (a) Originals are lost or destroyed (not by proponent acting in bad faith)
        • (b) Original can't be obtained by judicial process
        • (c) Original is being withheld by other party
        • (d) It's offered for a collateral issue
      • Second, FRE 1008: If the judge rules other evidence inadmissible under 1004, then jury considers:
        • (a) Whether asserted document ever existed
        • (b) Whether document produced at trial is the original
        • (c) Whether other evidence accurately reflects the content
      • FRE 1005: For public record, try to get a certified copy before defaulting to other evidence
      • FRE 1006: For a very large document, you can provide a summary.
      • FRE 1007: Proponent can use the testimony or written statement of the opponent to prove the content of a document against them.

Character Rules[edit | edit source]

Rule 404. Character Evidence; Crimes or Other Acts''(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.'(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, 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.'(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.''(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.

A. FRE 404a1: General ban[edit | edit source]

  • RULE FRE 404a1: Evidence of past conduct cannot be offered as evidence to prove conformance in this particular instance.
  • You can admit character acts for proving something besides character
  • Rationale for categorical ban
    • Low value
      • (1) Low Probative Value -- You are relying on witness's opinion or individual's reputation
      • (2) Weak Propensity Inferences (eg, someone who is generally honest can still lie sometimes)
    • High risks
      • (3) Diversion from Main Issues -- Disputing character can distract from main issues of case --> mistrial
      • (4) Bad Person Prejudice -- can lead to unfair prejudice based on moral judgments
  • NOTE: Organizations are not considered people. Their character/habit can generally be admitted.

B. FRE 404b: Crimes, Wrongs, or Other Acts[edit | edit source]

  • RULE FRE 404b1: Evidence of past crime, wrong, or other act cannot be offered to show person acted in accordance on this particular instance.

C. Things that Aren’t Character[edit | edit source]

FRE 404b2: Non-Character: Proving motive, state of mind, identity[edit | edit source]

  • RULE FRE 404b2: You can admit evidence of specific past crimes, wrongs, or other acts, if you can articulate some noncharacter purpose for which prior act is relevant:
    • Prove Motive – motive, opportunity
    • Prove State of Mind – intent, preparation, plan, knowledge, absence of mistake, lack of accident
    • Prove Identity
  • RULE: Prior acquittal for the act does not automatically preclude using that prior act. Because you just need ESSF that prior act occurred, and ESSF is lower standard than actual conviction.
  • US v. Varoudakis (1st Cir 2000)
    • Facts: Guy is charged with arson for burning down his restaurant. He had raised the insurance just beforehand. His girlfriend and co-conspirator testifies that he had previously set fire to his leased car sixteen months earlier. D argues that it should been excluded under 404 bc of simply showing criminal propensity, or under 403 as prejudicial due to prior bad act.
    • HOLDING: Prior bad act should have been excluded. Didn’t truly reflect motive, state of mind, or identity.
      • Can't use "motive" as a catch-all for admitting bad evidence.
      • The car fire evidence was specially relevant to defendant's relationship with his girlfriend, but prejudice substantially outweighed probative value.
    • RULE: To admit evidence of prior bad act under 404b, trial court (104b) must find
      • (1) “Special Relevance” of prior act to proving issue (eg motive, state of mind, identity) in present case
        • Bad character can’t be the necessary link in inferential chain of relevance
        • Factors: Length of time between acts, similarity to the charged crime
        • Trial court must also find ESSF that the prior act occurred + motive or state of mind actually existed
          • ISSUE: ESSF issue when witness testifies to other person’s feelings. How do you know what they were feeling?
      • (2) 403 balancing that prejudice danger doesn’t substantially outweigh probative value.
  • TEST FRE 404b2: To admit evidence of specific past crimes, wrongs, or other acts,
    • (1) Proponent articulates some noncharacter purpose (motive, state of mind) for which prior act is relevant
      • For prior bad act (Varoudakis)
        • Must show “special relevance” of prior bad act to proving issue in present case.
        • Must show ESSF that prior act occurred + motive/state of mind actually existed
    • (2) Proponent must introduce ESSF that person who allegedly committed the prior act actually did so
    • (3) Proponent responds to likely 403 objection
  • o (4) If proponent is prosecution, must respond to criminal def's demand for notice

Do you need ESSF that motive/state of mind existed? -No. -Need ESSF to show that the past act happened. -If the past act is relevant to show knowledge in current case because they had knowledge in past act, then would need to show ESSF that they had knowledge then

FRE 406: Non-Character: Habit[edit | edit source]

FRE 406: Habit; Routine Practice'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

  • RULE: You can use a person’s habit to prove that person acted in accordance with habit on this particular instance.
    • o No set requirements for proving habit (ie witness).
      • Just can’t use reputation (hearsay) to prove habit.
    • o Factors = (a) specific, (b) regular, (c) frequent, (d) generally morally neutral (eg waking up at 6am every day)
      • Prof: Morally neutral is a weak factor. Only factors into prejudicial 403 analysis.
    • Definition of habit
    • Popular Approach: Habit is simply more "specific"
    • Restricted Approach: Habit is something with such invariable regularity as to "not be volitional"
  • General tendency (eg smoking, drinking, doing drugs) is generally considered character, NOT habit
    • o If thing isn't frequent enough, it's either excluded under 404 (general character prohibition) or 403 (bc its too isolated to have probative value)
      • Potential high probative value if more specific (eg he buys this type of cig every Friday at 2pm, just before crime occurred there)
      • Can be highly prejudicial
    • Violence is NOT habit bc its so rare
    • Exception: Organizations generally aren't considered person under 404/406. No character prohibition.

D. Exceptions to allow Character[edit | edit source]

If you fall within exception, must then do 403 assessment (eg Varedoukis)

FRE 404a2A-C: Criminal case[edit | edit source]

  • RULE: In criminal case, there are three ways to introduce evidence to show they acted in accordance with their character:
    • FRE 404a2A: Criminal Def can introduce evidence of DEF’S OWN CHARACTER
      • Prosecution can rebut with evidence that Def has opposite trait
      • “Open the door”
    • FRE 404a2B: Criminal Def can introduce evidence of VICTIM’S CHARACTER
      • Prosecution can rebut with evidence that either (a) Def has same trait OR (b) Victim did not have trait
    • FRE 404a2C: In homicide case, Prosecution can introduce evidence of VICTIM’S PEACEFULNESS
      • Only instance where prosecution can introduce character evidence
  • Character evidence must be pertinent to the charge at hand
  • Note: ONLY for criminal case

FRE 404a3: Impeachment/Rehab[edit | edit source]

  • RULE FRE 404a3: May introduce character for truthfulness for purposes of impeachment and rehabilitation of witness (pursuant to FRE 607-609)
    • o Any party can introduce character evidence that undermines or supports witness truthfulness

FRE 405: Process to Introduce Character Evidence[edit | edit source]

(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.'(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

  • RULE FRE 405: Rules also regulate the form under which evidence can take
    • Direct Examination of Character Witness
      • Opinion
      • Reputation
    • Cross-Examination of Character Witness
      • Specific acts -- only in order to impeach witness, NOT to prove character
        • Three requirements
          • Must be related to the character trait that was discussed on examination
          • Must be something witness could/should have known about
          • Attorney must have reasonable basis that act occurred (or rumor existed) + convince judge in private
            • Doesn't matter if it actually occurred (Michelson)
        • Issue: Can be dangerous as Def to raise character issue, bc open yourself up to specific bad acts
  • Probative value may depend on how well the witness knows (opinion) or knows about (reputation) the person
    • ISSUE: Whether witness knows person well enough (basis) to testify
      • Generally being in same RELEVANT community is sufficient basis
  • RULE: Specific acts are not allowed to prove character.
      • FRE 405b: When the character trait is an essential element of the charge or defense, you can introduce specific acts.
        • 405(b) cases are pretty rare. But if they come up, you can prove the relevant character in any way. No character limitation rules.
        • Ex: Negligence, Defamation -- issue at stake is reputation, not character. So character evidence only allowed if def claims defamatory statement is true OR statement is about P's character.
      • FRE 608(b)/609 -- use specific acts to prove character of witness for truthfulness or not
    • o Character evidence is generally low probative value, hence why we limit it. 403 dangers.
    • o Bad idea as def to raise character evidence
      • Good character evidence is pretty weak -- can't refer to specific acts
      • But bad character evidence is strong -- can refer to specific acts to impeach character witness + rebut
  • How introducing Character Evidence can go wrong
    • (1) 10:15
    • (2)
    • (3) Mismatch btw direct character evidence and rebuttal evidence (eg they are about different traits)
    • (4) Prosecution tries to introduce evidence against D outside of homicide case
    • (5) Homicide case, but prosecution tries to introduce against not related to peacefulness
    • (6) Violates Form Requirement

Policy Relevance Rules[edit | edit source]


  • RULE: You cannot admit certain types of evidence in order to prove fault/liability.
    • o Prohibited evidence
      • 407 = subsequent remedial measures
      • 408 = Offers or statement made negotiations of settlement
      • 409 = Offers to pay medical expenses
      • 411 = Insurance
      • 410 = Plea statements
    • o You CAN introduce for other purposes (eg show bias, impeach)
      • If permissible for another reason, do 403 balancing test (eg will jury misuse evidence) + 105 limiting instruction
    • Categorical rules
    • Rationale:
      • o Categorical rules are clear
      • o Low probative value + concerns about 403 dangers (eg hindsight bias)
      • o Forward Looking Policy: promote good behavior (settlements, insurance payments), deter bad behavior
      • o Backward Looking Policy: Even if rules don't promote good behavior, we don't want to punish parties for it

A. FRE 407: Subsequent Remedial Measures[edit | edit source]

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.'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.

  • RULE FRE 407: Subsequent measures that would have made injury less likely are not admissible to prove negligence, culpability, product/design defect, or need for warning.
  • Motive for remedial measure doesn’t matter.
  • What is not covered by the rule?
    1. Subsequent remedial measure evidence, where relevance theory is NOT to prove guilt
      • Admissible for impeachment or (ONLY if disputed) proving ownership, control, or feasibility of precautionary measures, etc.
        • Court will normally admit for matter of disputed ownership, control, etc.
        • Permissible purpose list is non-exhaustive
  1. 'Remedial measures done BEFORE injury'
    • Use 403 test. Same danger considerations: hindsight bias
  2. Third party remediation.
    • Use 403 test. Same dangers + no def incentive/punishment justification policy goals
      • Will often be admitted.
  3. 'Internal preliminary investigations.'
    • Use 403 test.
    • Factual determination (whether Ds conduct was remediation or investigation) is for judge under 104(a).
  • Motive for remedial measure doesn’t matter.
  • TEST:
    1. Was remediation done after injury AND by defendant?
      • If no, use 403 test. Likely admit.
      • If yes, go to #2.
    2. What is the relevance theory?
      • A) Proving negligence, culpability, product defect, need for warning == INADMISSIBLE, 407
      • B) Impeachment == 403 test
      • C) Proving ownership, control or feasibility? == 403 test
        • Issue must be in dispute

B. FRE 408: Settlements[edit | edit source]

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.

  • RULE FRE 408: To encourage settlements, do not admit evidence of compromises, offers of compromise, or discussions during compromise negotiations for purposes of proving or disproving liability, the amount of a claim, or impeachment.
  • o Can't use compromise evidence to impeach witness for prior inconsistent statement
    • 408a2: Criminal Exception -- You can admit conduct/statements in civil compromises that relate to a claim by a public official acting within their official capacity in subsequent criminal proceeding.
      • Ex: Government prior settlement of official's conduct can show that it knew of and condoned conduct like police brutality
    • Proving:
      • Witness bias (eg show witness will profit from testimony, or witness previously settled similar claim with you so they may have been dissatisfied and thus biased)
      • Effort to obstruct criminal investigation
      • Taxpayer's knowledge of tax evasion, or rebut good faith claim
      • Prove "absence of mistake" or that event was not an isolated incident
    • Rebutting:
      • Undue delay charge by showing good faith to resolve claim,
    • RULE: 408 does NOT apply to settlements by third party.
      • ISSUE: If the other def has settled and is no longer part of the claim, then their settlement statements can be used.
    • RULE: If one def party settles, then those become 3rd party statements that can be used against unsettled def party. Use 403.
      • Rationale:
        • 407 concerns don't apply (eg incentivizing good behavior in def)
        • 408 is designed to protect parties involved. If the 3rd party provides a highly probative statement, likely admit it under 403 test (especially high if 3rd party isn't available to testify).
  • RULE: 408 Applies once litigation is anticipated/threatened or claim is filed.
    • Judicial factfinding under 104a.
  • Is there a claim (filed, anticipated, threatened)?
  • Were the statements made within context of settlement negotiation?
  • Applies to both parties equally.
    • Even party that made the compromise statement/offer can’t introduce it to prove its own defense.

C. FRE 409: Medical Expenses[edit | edit source]

Rule 409. Offers to Pay Medical and Similar Expenses'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.

  • RULE FRE 409: Evidence of paying/offering medical, hospital, or “similar expenses” resulting from injury is NOT admissible to show liability for injury.
    • But may be admissible for other theories of relevance.
  • RULE: Statements/conduct made in conjunction with payment ARE admissible. 409 only excludes evidence of the payment itself
    • EXCEPTION: Statements/conduct that are necessarily "incidental" to payment are NOT admissible.

D. FRE 411: Insurance[edit | edit source]

Rule 411. Liability Insurance'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.

  • RULE FRE 411: Evidence that person was/was not insured against liability is not admissible to prove negligence.
    • But may be admitted for another purpose. Other issue (eg agency, ownership, control) must be disputed to survive 403
      • Ex: Proof of insurance covering alleged agent to prove agency admissible.

E. FRE 410: Plea Deals[edit | edit source]

Rule 410. Pleas, Plea Discussions, and Related Statements'(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.'(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.

  • RULE FRE 410: In subsequent civil or criminal case, can't introduce evidence against D that occurred during:
    • (1) Guilty pleas later withdrawn
    • (2) Nolo contendere pleas (eg pretrial plea that is similar to guilty plea)
    • (3) Statements made during "qui proloqui" (eg pretrial process where judge informs D of criminal plea consequences)
    • (4) Statements made during plea discussions with prosecuting attorney that did not result in guilty plea or were later withdrawn
      • If another statement from the same plea discussion has been properly introduced, you may introduce other statements from the plea discussion if in fairness they should be considered together
        • Ex: If Def wants to introduce statement from plea discussion, only then the Prosecution may introduce fairly related statements.
      • If its criminal case for perjury, you can admit statement if D was (a) on the record, (b) under oath, and (c) present with counsel.
  • Mezzanatto (1995) -- waiver
    • Facts: D charged with drug sale. D says he'll sit down and talk to prosecutor. But prosecutor says that he must agree to waive 410 (eg if he says something in plea different from trial, they can introduce it against him). D agrees, but in trial he makes untruthful statements about his involvement. So Prosecution seeks to introduce statements from plea negotiation that contradict his trial testimony.
    • RULE: You can require Def to waive 410 during plea negotiations, thus allowing statements at least for impeachment purposes.
      • Thomas: This should be waivable to admit for any purpose. Including
      • Some courts have limited this to impeachment purposes.
      • Dissent: This is wrong.
    • Policy implications
      • Pro: We want to encourage plea deals
        • This requires D's honesty + incentivizes P bc he can put conditions for safeguarding deal
      • Con: Circumstances change and D's strategic considerations might change
        • Ex: if P decides to throw out plea deal in bad faith, then D has already made bad statements
      • Con: Pressures the D to complete plea deal, bc they're making incriminating statements along the process
  • Wrinkles
    • Nothing precludes statements from guilty pleas that weren't withdrawn
    • Nothing precludes statements to police
    • Limits of 410a4
      • Statement must have been made in course of please discussions.
        • Look at Def’s perspective to determine if they believed they were in course of please discussion. Def must have (a) subjective belief + (b) objectively reasonable
      • Statement must have been made to an attorney for the prosecuting authority
        • Police interrogations do not count!
      • RULE: Statements made to someone outside of prosecuting attorney or outside of plea discussion are admissible UNLESS (1) Def has subjective belief that that person is an attorney for the prosecuting authority, and (2) that belief is objectively reasonable.

Impeachment[edit | edit source]


  • 4 testimonial qualities + ways to impeach
Narration(communicating knowledge) Show ambiguity, contradictions btw testimony and other evidence
Sincerity(honesty) Show bias, character evidence
Perception(of events) Show impossibility of accurate perception (eg drunk, high, no glasses)
Memory Show inconsistency
  • What evidence is allowed for impeachment?
    • o Evidence for Character of Truthfulness (FRE 608)
    • o Prior convictions (FRE 609)
    • o Prior inconsistent statements (FRE 613)
    • o Common-Law Methods:
      • Bias
      • Mental/Sensory Incapacity
      • Contradiction
    • o Religious beliefs not admissible for impeachment (FRE 610)
  • Impeachment v. Rehabilitation v. Bolstering
    • Impeachment evidence = refute or undermine evidence that was used to prove a FOC
    • Rehabilitation evidence = directly counters impeachment evidence by raising original evidence’s credibility
    • Bolstering evidence = used to make witness’s testimony more believable, even though witness not yet impeached
      • Disfavored and generally disallowed
      • FRE 608a: Bolstering with character evidence is prohibited.
        • Prof: But maybe other stuff allowed (eg witness has good memory or good eyesight). Use 403 test.
      • FRE 801d1B: Can't bolster with prior consistent statements
  • Substantive v. Impeachment
    • Substantive evidence = evidence has independent relevance (ie for something besides attacking testimony)
    • RULE: If you can admit evidence for substantive purpose, need not consider impeachment purpose
      • *You can sometimes use impeachment to admit evidence that isn’t admissible for substantive purpose
        • Ex: Prior specific act of violence not admissible to prove substantive crime of violence, but admissible to impeach witness (like saying they're biased against the Ps based on prior fight)
  • Extrinsic Evidence = any evidence besides what you are asking witness on the stand

A. FRE 608: Character for Truthfulness[edit | edit source]

Rule 608. A Witness'(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, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.'(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; or'(2) another witness whose character the witness being cross-examined has testified about.'By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

  • Exception to the general ban on character evidence (FRE 404), see FRE 404a3
  • FRE 608a
    • RULE: Character evidence for truthfulness should be given in the form of opinion/reputation
    • RULE: Good character evidence of truthfulness can only be admitted after character for truthfulness is attacked
      • So there must have been opposing witness that says your witness has character for untruthfulness
  • FRE 608b
    • RULE: Extrinsic evidence is NOT admissible to attack or support witness's character for truthfulness
      • Exception: If the witness is lying about a prior conviction of their own, you can potentially introduce that under 609.
      • Does 609 extend to convictions of other people who the witness is testifying about, or just their own crimes? Ex: Can you introduce evidence of Witness B’s conviction to attack truthfulness of Witness A who testified about B’s character of truthfulness? Under theory of admitting the evidence under 609, and using it to impeach via 609/608.
        • Keep 608/609 separate. You can introduce evidence of Witness B’s conviction for a dishonest act under 609, and you can ask Witness A about the specific act of Witness B to impeach him, but you cannot use that prior conviction as extrinsic evidence to impeach Witness A
        • Always think about 609 in relation to if that individual is testifying
    • RULE: Specific acts that support or attack witness’s character for truthfulness may be “inquired into” in 2 cases:
      • (1) Witness's own specific acts
        • RULE: Any witness who is being cross-examined can be asked about their own specific acts that demonstrate their untruthfulness or truthfulness
          • Regardless of whether or not that prior act is relevant to the crime at hand
        • Ex: "Witness A, did you cheat on your law school exam?"
      • (2) Specific acts of another witness whose character the Current Witness testified about
        • Ex: "Witness A, you said that Witness B was an honest guy. But did Witness B cheat on his exam?"
    • RULE: If specific act under inquiry, examiner must have good faith basis for believing act occurred
    • ISSUE: You can cross-examine a witness about specific act in order to impeach them for having a character for untruthfulness, but you cannot introduce extrinsic evidence of the specific act.
  • If they lie on the stand and claim to be fully honest, you can’t produce contradicting extrinsic evidence.
    • Ex: Can ask a witness if they lied on their job application. But if they deny, can't actually produce extrinsic evidence of the job application to contract them.
  • Rationale: Don't want to create minitrial over impeachment, which is relatively minor issue. Opposing party would have oppt to rebuff extrinsic evidence.
  • RULE: If you are asking the witness about specific acts irrelevant to the crime (just asking about own specific act to impeach him), witness can claim 5th Amend and refuse to answer
  • Judge may still exclude specific act inquiry under FRE 403, even if it has probative value for character of truthfulness
    • Dangers are most important when witness is party in the case (due to prejudice).
    • Other dangers: Can delay trial, might be too suggestive

B. FRE 609: Prior Criminal Conviction[edit | edit source]

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:'(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.'(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.

  • Most prior criminal convictions can be admitted 609 is about prior convictions being used to show character of truthfulness on witness stand, thus diminishing their credibility
  • RULE FRE 609a1: For Felony crimes (punishable by imprisonment for more than one year or death):
    • 609a1A: If the witness is not a criminal def, use 403 balancing test.
    • 609a1B: If witness is criminal def, use reverse FRE 403 balancing test.
      • Note: danger need only outweigh value, not substantially so
      • Favors exclusion, burden on prosecution to justify high probative value
        • Rationale: Prejudice is especially high if witness is a crim Def
  • RULE FRE 609a2: For crimes involving Dishonest Acts or False Statements (regardless of punishment), Automatic Admissibility, as long as within 10 years of sentence/release.
  • RULE FRE 609b: If more than 10 years have passed since sentence/release (whichever later), you must use a normal 403 test and give opposing party notice of use.
  • Wrinkles
    • Policy implications:
      • Crime need not relate to truthfulness (unlike 608)
        • Rationale: these are so heinous, go to general credibility of person.
        • Faulty assumption: people of bad moral character are more prone to lie
      • No ban on extrinsic evidence
        • Rationale: It is very easy to get public record of a crime, so no time-wasting.
        • *Can use extrinsic evidence to undermine a witness who lies about prior conviction.
      • Ds can use 609 evidence as an attack tool as well!
    • Factors in balancing test:
      • Probative value factors: Age of conviction, intervening behavior, how much crime shows bad moral behavior
      • Risk factors: unfair prejudice (especially if crim D is witness), risk of improper inference by jury
    • Courts often limit going into underlying factual details of conviction
      • Limits: name of crime, when/where it occurred, sentence imposed -- nothing more!
      • RULE (Old Chief narrow holding): Def can stipulate to the existence of prior felony when it’s an essential element of the prosecution’s current claim, and thus exclude additional details under 403 test.
        • *Def didn't testify in Old Chief, but would need to in case of 609 to preserve appeal.
  • Process Catch-22
    • Start with motion-in-limine to ask judge if the prior conviction is admissible against them. Either:
      • (a) Judge admits the evidence.
        • If Def refuses to testify, he’s waived appeal (Luce)
        • If Def introduces prior conviction on direct testimony, he’s waived appeal. (Ohler)
        • What if Def acknowledges the prior conviction on cross-examiantion, can they still appeal?
          • They can appeal that
      • (b) Judge refuses to rule.
        • Def must testify about the conviction if he wants to appeal (Luce).
    • RULE (Luce): If judge refuses to rule on motion in limine, def must testify about the conviction if he wants to appeal issue.
      • Rationale: don't want to encourage superfluous motions in limine just to appeal + trial judge might not have info sufficient for 403 balancing
    • RULE (Ohler): Def who introduces prior conviction on direct examination, cannot then appeal that decision.
      • Regardless of whether the judge has definitively ruled on admissibility or not.

What if past bribery act is admissible under 608a, but outside 10 years and thus low probative (and potentiall crim D as witness) under 609b? -608 generally can’t be used to get in evidence that isn’t admissible under 609

C. FRE 613: Prior Statement[edit | edit source]

Rule 613. Witness'(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).*Note: Must be outside 801d1BRule 801(d): Statements That are not Hearsay'(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:'(B) is consistent with the declarant's testimony and is offered 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

  • RULE FRE 613: Prior statement that is inconsistent with trial testimony can be admitted for purpose of impeachment.
    • Does not necessarily suggest that prior statement was true and current one is false.
    • Can also use prior consistent statement for rehabilitation.
  • If prior statement is otherwise admissible for substantive purpose (eg admitted for its truth as hearsay), can use it for impeachment without worrying about these rules
  • Process
    • RULE FRE 613a: Witness being examined need not be shown the contents of prior inconsistent statement (613a).
      • BUT, if opposing counsel requests verification, opposing counsel must get prior statement.
    • RULE FRE 613b: Extrinsic evidence of the prior inconsistent statement may be admissible ONLY if
      • (1) witness has opportunity to explain the statement, and
      • (2) opposing party has opportunity to explore inconsistency with witness
      • What this means is that witness must be available to take the stand + subject to recall
        • Can admit extrinsic evidence w/o witness explanation if "justice so requires" (eg witness unavailable for testimony bc evidence is discovered at last minute)
        • Can admit extrinsic evidence w/o witness explanation if the witness is a party.
          • Under 801d2, party's prior statements may admissible for their truth, period.
    • Judge must do 403 analysis.
      • *Loss of Memory -- If the witness claims a plausible loss of current memory, court may determine there is no inconsistency. But if the claim of memory loss is dubious, court will hold it inconsistent.
      • *Collateral Matters -- If the alleged inconsistent statement is about an issue wholly unrelated to issues of case, probative value will be low and efficiency danger high. Exclude under 403.
  • Prior Consistent Statements
    • For Rehabilitation -- hearsay exception
      • Two instances where prior consistent statement is exempt from hearsay prohibition:
        • 801d1Bi: If statement is offered to rebut an express or implied charge that witness recently fabricated it or acted from a recent improper influence motive in so testifying
          • Narrow: only prior consistent statements made prior to time when witness has a motive to fabricate or an improper influence
        • 801d1Bii: for rehabilitation when witness attacked on another ground
    • Admitted for their own truth
      • Witness's prior consistent statements are exempt from hearsay definition (801d1B)
      • Thus, consistent statements admitted for rehab purposes can also be considered for their truth

D. Common Law Techniques[edit | edit source]

  • FRE 610: Religious beliefs not allowed to be basis for credibility assessment

Bias[edit | edit source]

  • RULE: You can introduce evidence that shows bias for impeachment depending on (a) witness behavior and/or (b) surrounding circumstances
    • Limits: If witness fully admits bias or evidence is ambiguous, usually admit
    • Consider 403 unfair prejudice
  • RULE: Extrinsic evidence to prove bias is allowed (Abel)
    • Judge has "wide discretion in determining the admissibility"
  • Wigmore’s 3 types of bias
    • Bias = personal prejudice against/for the parties
    • Interest = some selfish reason for influencing testimony (eg expect leniency, have financial interest)
    • Corruption = giving or taking bribes

Mental/Sensory Incapacity[edit | edit source]

  • Case-by-case basis
  • Can freely introduce extrinsic evidence and question about how this diminish perception of events

Contradiction[edit | edit source]

  • RULE: If there is evidence of contradiction that is relevant to impeaching witness in current testimony, can be admissible under 403 analysis
    • Relevance for impeachment).
  • RULE: For extrinsic evidence, common-law rule prohibits evidence be to contradict collateral matter. If the matter is not collateral (ie its substantive), then you can admit under 403 analysis.
    • 3 things that are not collateral
      • (1) Facts relevant to substantive issues of case
      • (2) Facts relevant to impeach credibility of witness, if extrinsic evidence is already generally admissible for some noncontradiction impeachment purpose
      • (3) Facts recited by witness that, if untrue, logically undermine the witness's story
    • TEST: Could the fact have been proven with extrinsic evidence for any purpose except a mere contradiction?
      • If yes à its not collateral
      • If no à its collateral
    • FRE 803(18): Impeachment of experts

Difference between contradiction and Prior Inconsistent Statement? -Contradiction is broader – you as witness can be contradicted by any other evidence in case -But you can impeached based on prior inconsistent statement -Prior inconsistent statement can be admitted for its truth AND impeachment, or if not for its truth can still be admitted for impeachment

Hearsay[edit | edit source]


  • Hearsay is a person’s statement that:
    • o (1) made at a time other than while the person is testifying at the hearing in which the statement is offered, and
    • o (2) offered to prove the truth of the matter asserted in the statement.
  • Hearsay statement may be oral or written.
  • General policy to exclude bc there was no oath, observation of demeanor, or oppt to cross-examine.
    • o Rationale: Potential problems with 4 testimonial qualities: sincerity, narration, perception, memory


  • Is it an out-of-court "statement"?
  • Who is the declarant(s)?
  • Is the evidence relevant to prove the truth of the matter asserted in statement?
    • If yes, proposing party has burden to prove that:
      • (a) There is other relevance purpose, or
        • Must still pass 403 (including danger of being used as impermissible hearsay)
      • (b) Hearsay exemption/exception applies
    • Alternate theories besides truth of the matter asserted:
      • Prior inconsistent statement used for impeachment
      • Effect on the Listener – giving notice to listener, regardless of whether declarant was honest/correct
      • Legally Operative Facts – all that legally matters is that statement existed (eg offer made, yelled fire)

A. FRE 802/801a-c: Basic Ban[edit | edit source]

Rule 802. The Rule Against Hearsay''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'The following definitions apply under this article:'(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.'(b) Declarant. “Declarant” means the person who made the statement.'(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.'(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.'(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'(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).

  • TOMA TEST: If inference that declarant’s statements are true is required for relevance, then statement is being offered to prove the truth of the matter asserted (“TOMA”).
    • Truth of the matter asserted = declarant’s sincere belief + accuracy of the belief about an event
  • GENERAL RULE: Hearsay statements are inadmissible.
    • 801b: Statement can be hearsay even if the declarant is current witness or made statement in separate trial
    • 801c: “Offered to prove the truth of the matter asserted” is key!
    • Rules of thumb
      • If question about whether declarant was lying (and that might impact relevance) à that is hearsay
      • If it involves 4 testimonial qualities / would rather hear from declarant directly à likely hearsay
  • Rationale: Important to have jury examine in-court statements so they can evaluate 4 testimonial qualities of witness (eg narration, sincerity, perception, memory)
    • Final inference for all witnesses = "accurate beliefs reflect real events" (eg people are generally truthful)
  • Policy justifications
    • (a) Courtroom witness is under oath + in solemn atmosphere --> reduces likelihood of insincerity
    • (b) Jury can observe in-court demeanor
    • (c) In-court witness is subject to cross-examination --> poking holes in their info so more reliable info, more efficient than impeaching hearsay declarant
    • (d) Witness can provide more info if the statements are flawed/ambiguous
  • Relevant non-TOMA uses (ie non-hearsay statements)
    • Prior inconsistent statement used to impeach the witness
    • Effect on the Listener -- giving notice to the subject, doesn't matter whether the statement was true or not
      • Ex: Witness overhears auto mechanic telling def that brakes are faulty, relevant for notice in reckless driving case. But if offered to prove that brakes were faulty, then it is DEFINITELY hearsay. --> statements can be relevant for both hearsay and nonhearsay purposes
    • Legally Operative Facts -- all that matters is that words were spoken
      • The witness must still have firsthand knowledge of the content of that conversation taking place
      • Ex: Offer-Acceptance in Contract, terms of contract, calling in a bombthreat

Nonverbal Conduct Intended as Assertion[edit | edit source]

Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.Ex: Pointing, shrugging, winking

  • RULE: Nonverbal conduct may be hearsay statement ONLY IF it was intended as an assertion (assertive conduct)
    • o Rationale: If there was no intent to assert something (nonassertive conduct), less of a sincerity concern.
    • o Preliminary Q governed by 104(a)
      • Burden on objecting party to show it was hearsay (intended) and thus exclude
      • Judge considers nature of the conduct + circumstances surrounding it as presented by both parties
      • Preponderance of evidence (104a) + presume admissible (402/403)
        • RULE: If nonverbal conduct has uncertain intent, presumption that its nonassertive and nonhearsay bc favor admissibility (402).

Implied Assertions[edit | edit source]

  • Implied Assertion = Utterances Relevant for the Truth of the Declarant's Unstated Belief
    • o Essentially, when witness's words indicate the declarant's unstated belief in making utterance
      • Ex: Bystander yelling “That guy must be drunk!” can indicate unstated belief that bystander thought driver was driving recklessly.
      • MAIN Q: How do we know that utterance indicates declarant’s unstated belief?
        • Issues: people can be ironic, speakers rely on assumptions of listener
  • *NOT relevant to prove truth of matter asserted (utterance). Relevance depends on truth of declarant's unstated beliefs.
  • 3 approaches
  1. Literal Approach – Implied Assertion is not hearsay, so utterance is admissible.
    • Rationale: Under strict interpretation, FRE 801a-c only apply to statements offered to prove truth of the matter asserted. Here, utterance not offered to prove truth of matter asserted (just unstated beliefs).
  2. Common Law Approach – Implied Assertion is hearsay, so utterance is inadmissible.
    • Rationale: Analogize to assertive conduct. Relevance depends on truth of actor’s sincere beliefs, regardless of whether those sincere beliefs intended to be communicated.
      • Declarant-Oriented: This is hearsay because requires all 4 of the in-court credibility evaluate.
    • FRE rejects this approach – proper analogy is to nonassertive conduct (so not hearsay if unintended)
    • Wright v. Tatham (Eng.)
      • Facts: People write to def about social events. P argues this indicates writers’ unstated belief that he was sane and competent.
      • Holding: This was hearsay bc it relies on assumption that the writers thought he was sane AND we need to believe their assumption was sincere and accurate.
  3. MAJORITY RULE: Intent Test – if utterance not intended to indicate unstated belief (but does), its not hearsay, so admissible.
    • (a) If declarant intended to indicate unstated belief that makes evidence relevant à hearsay, exclude
    • (b) If declarant did not intend to indicate unstated belief that makes evidence evidence à not hearsay, admit
  • Rationale: If they did not intend to assert unstated belief that is relevant, then lower sincerity danger.
  • Burden on opposing party to show that there WAS intent (hence, exclude)
    • 104a
  • EX: If two criminals talking to each other in private and one says "I didn't say anything about you.”
    • o Intent test -- Intended assertion was probably don’t worry/don’t rat on me, but relevant unstated belief is that other person is a criminal. Not hearsay bc its low sincerity risk.
    • o Common Law approach -- Any implied assertion relevance would depend on his belief (about his friends' criminality), so would be hearsay.

B. FRE 801d1: Declarant-Witness Exemptions[edit | edit source]

(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.

TEST for 801d1:

  • (1) Is the declarant a witness?
  • (2) Is declarant subject to cross examination about statement?
    • Minimal standard (Owens/Milton): As long as witness on witness stand and willing to answer questions, this requirement has been met. Need not have previously read the statement or really remember it.
      • *Owens notes that there might be instance where the witness is so unable to testify about it that it falls below any meaningful ability to gather a relevant statement. But this is rare.
  • FRE 801d1A: Is it a prior inconsistent hearsay statement?
    • o (a) Inconsistent – “Any substantive divergence” counts (including feigned memory loss)
    • o (b) Was made under penalty of perjury
    • o (c) At trial, hearing, or other proceeding or in deposition
      • Statements made during Grand Juries count for “other proceedings”.
      • Pre-trial interviews, lineups, and affidavits do NOT count.
        • Rationale: they lack the formality of a trial setting.
        • *But maybe good enough for impeachment under 613.
      • o *Must give declarant oppt to explain discrepancies (as required for impeachment under 613b).
      • o *Distinction from impeachment. Here, were admit prior inconsistent statement for its truth. Under 613, prior inconsistent statement is admissible for impeachment but NOT for its truth (bc then would be hearsay).
    • FRE 801d1B: Is it a prior consistent statement?
      • o (a) To rebut express or implied charge that declarant recently fabricated or had improper motive for testimony?
        • Tome: Prior consistent statement must have been made before the improper motive arose.
          • Ex: If D says that the opponent witness has improper motive (bc he has been offered plea deal for immunity), P can respond that there was prior consistent statement before the plea deal was offered.
        • o (b) To rehabilitate declarant's credibility as witness when attacked on another ground
          • Only applies once witness's credibility has been attacked already.
          • Rationale: If we're going to allow in prior consistent statement for rehab purpose, we can also admit it for its truth because its too fine a line for juries to distinguish.
            • Prof: You can use this to argue that all impeachment statements should be admitted for their truth.
          • FRE 801d1C: Is it prior statement that identified person who the declarant perceived?
    • Broad language
    • Need not be statement made close in time to the event perceived
    • ISSUE: Reperception necessary?
      • Narrow Rule (Kaquatosh): "earlier perception" and "identification" were two separate events. For this to apply, the declarant needed to have reperception of the person identified before making ID statement.
      • Broad Rule (Lopez): The prior identification need not be consistent with the witness’s testimony (witness denied having told officer that he had seen defendants near the scene on the night of the crime). Immediate identification is sufficient. No reperception necessary.
        • Dangerous! Basically allows any immediate hearsay accusation to be admitted. Would mean that the testimonial qualities don't matter.


    • o Declarant is now testifying in court as a witness about the statement
    • o Declarant is subject to cross-examination
  • If defendant claims inability to remember underlying events
    • Owens (for 801d1C), expanded by Milton (for 801d1C) = Just being present and answering questions is sufficient.
      • It does not matter that the witness denies making or cannot remember either the prior statement of the underlying events. Can still evaluate testimonial qualities.
      • *Owens notes that there might be instance where the witness is so unable to testify about it that it falls below any meaningful ability to gather a relevant statement. But this is rare.
  • Notes:
    • o FRE 805: Hearsay within hearsay (aka "nested hearsay" or "double hearsay")
      • RULE: Each hearsay statement must conform to exception/exemption OR serve nonhearsay purpose for admissibility of the entire statement
    • o Confrontation Clause = 6th Amend, "testimonial" hearsay statements are generally not allowed in criminal prosecution

801d1A: Prior Inconsistent Statement[edit | edit source]

  • Grand juries count, but pre-trial interviews DO NOT.
    • Rationale: Solemnity of trial context important for sincerity, memory, etc.
  • Prior Inconsistent statement may be used for its truth ONLY IF made at trial, hearing, other proceeding, or in deposition, but without the requirement of cross-examination. --- TRUE

801d1B: Prior Consistent Statement[edit | edit source]

  • RULE: Can only use if the credibility of the testifying witness has been attacked.
    • o Ex: Use if there has been plea bargain by witness and now testifying against D. D then wants to impeach that witness on basis that they have impermissible reason for testifying.
  • RULE (Tome) -- prior consistent statement to rebut the improper influence attack can only be used if made PRIOR to the date at which improper motive allegedly began
    • o Rationale: Very high sincerity!
  • Bolstering allowed?

801d1C: Identification[edit | edit source]

  • Considerations
    • o Timing -- Out of court statement made closer to the event, but outside solemnity of court proceeding
      • Memories fade quickly
      • Initial statement can be after the actual litigated events (eg reporting a day after)
      • Police sketches count
    • o Implication on other testimonial qualities? Sincerity,
  • RULE: If a pretrial ID is inconsistent with in-court testimony, it can be admitted even if inadmissible under FRE 801(d)(1)(A). The jury determines the accuracy of the out of court identification.
    • o Lopez (broad): No reperception at trial is necessary. The prior identification need not be consistent with the witness’s testimony.
    • o Kaquatosh (narrow): Statement of identification requires designation of a particular person or photo upon reperception. Must be the same as the person previously perceived.
      • Prof: Kaquatosh is better
    • ISSUE 1: What if the identification statements are not consistent?
    • ISSUE 2: Does there need to be reperception of the persons at court?
    • ISSUE 3: Identification of qualities about a person, but not the person themselves?
      • o Ex: Witness-declarant identified a person’s cars or clothes?

Is Kaquatosh/Lopez about the consistency btw pretrial statement and testimony statement, or whether reperception is necessary, or both? -Reperception is really about two event pre-trial ---- Do they need to do a line-up, or just the original statement to police sufficient?

B. FRE 801d2: Party Admission Exemptions[edit | edit source]

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:'(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'(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).


  • Five Categories where you can use parties own statements against them for the truth of the matter asserted
  • Matters for hearsay policy (not relevance), so 104(a) applies
  • o Reliability
  • o Idea that testifying witness is in best position to explain why they made prior statement

801d2A: Party’s Own Statement[edit | edit source]

  • RULE: You can admit a hearsay statement against opposing party if:
    • (1) Statement was made by opposing party, and
    • (2) Statement is to be used against that party
  • Wrinkles
    • NO requirement for firsthand knowledge
      • Declarant’s statement can be based on hearsay statements, opinions, etc.
      • Unique, unlike all other hearsay exceptions
    • No cross-examination needed.
      • Rationale: Declarant party would be cross-examining itself to minimize its credibility at time of statement. Makes no sense.
    • 5th Amend application
      • RULE: In criminal case, party’s admission must have been voluntarily to be admissible. Prosecution must provide independent confirmation of the def's self-incriminating statement.
      • Policy: Crim D has the right not to testify -- but there is pressure on def to take the stand to try to explain the prior statement if its being admitted
    • Corporate application
      • RULE: If declarant makes statement as agent of corp, it is admissible against them personally.
        • Not admissible against the corp per 801d2A (but maybe under 801d2C or 801d2D)
  • o Multiparty Cases
    • One party's admission is not admissible against anyone other than the party that made the statement.
      • Rationale: 403 danger of misusing against another party.
    • RULE (Bruton) – In criminal case, if P wants to introduce statement by defendant-declarant against that declarant-defendant but it implicates another codefendant, then the prosecution must (usually) both:
      • (a) Ensure that declarant-defendant can be cross-examined, or
      • (b) Alter or redact the statement such that it only implicates the defendant-declarant (if defendant-declarant chooses not to testify under 5th Amend)
      • Rationale: other Ds can argue that they don't have legit chance to defend themselves.

Prof: Big issue is if the D refuses to testify, thus CC issue. Otherwise, he may simply not adopt the statement.

  • Rationale
    • o Opportunity to rebut – if a party’s hearsay statement ahs been admitted against him, he can take the stand in rebuttal and have a full opportunity to explain any difficulties with the accuracy of the statement
    • o Fifth amendment concerns – admitting a criminal defendant’s statement may put some pressure on the defendant to abandon that right
    • o Responsibility for one’s own statements and fairness – offering the opponent’s hearsay statements may be the fairest way for the proponent to prove what the proponent knows

801d2B: Adoptive Admission[edit | edit source]

  • RULE: You can use past statement by someone else indicating the party’s guilt against them for its truth if:
    • Statement has been made by someone
    • Party has done something to manifest adoption of the statement or belief in its truth
      • Even communicating that party accepted the admission to be true is sufficient.
        • Ex: Party is on tape being told that other person identified them as guilty of tax fraud, and party says “that’s right.”
      • Party can manifest adoption via words, conduct or silence
        • RULE: Duval (1st Cir. 2007) – If party is present to hear the admission statement and does not try to disassociate himself from it, that is sufficient for adoption.
        • When it is ambiguous, judge uses 104a standard to consider the nature of the statement, audience, and surrounding circumstances.
    • Statement is offered against that party
  • Rationale: Party has given inference that the admission statement was reliable
  • At trial, party can still dispute statement’s reliability or explain why he did not repudatiate the statement at that time

801d2C-D: Agent, Servant, Employees[edit | edit source]

  • RULE FRE 801d2C: If the party authorized the declarant to make statements of that subject on their behalf, it can be used against the party.
    • Must have evidence that the declarant was actually authorized to make statement on that subject.
      • Content of the statement may be used to prove that person was authorized (eg recording of declarant saying “Party X authorized me to say this”), in addition proving the truth of the matter asserted
    • Implied Authority -- Authority can be implicit if it’s necessary for the agent’s performance of duties.
      • This is judicial question under 104(a).
  • No personal knowledge requirement (unique like 801d2A).
    • Hard for principal to disprove reliability of the statement
  • RULE FRE 801d2D: Statements by agents/employees can be used against the party if:
    • Declarant is an agent or employee of party
      • Presumption that declarant is authorized (no requirement of showing authority) -- BROADER rule than C.
    • Statement was made while relationship existed
      • Need not have been made while "on the job." Can be admitted even if made statement outside work hours (divergence from common law).
    • Statement is on a matter within scope of agency or employment relationship
      • Ex: Being bystander to event outside of your scope of work will be excluded statement.
      • RULE: Must have corroborating evidence -- Content of hearsay statement is not sufficient to prove scope of authority.
    • Statement is offered against that party
  • No personal knowledge requirement (unique like 801d2A).
    • Hard for principal to disprove reliability of the statement
  • Rationale:
    • Necessity
      • Information Value – Agent statements are the primary source of info about business people and corps, especially internal affairs.
      • Corporate Accountability -- This is necessary to hold corporations and business people accountable because they run entirely through agents.
      • Ruined Information -- If parties could not use these statements as hearsay, they would have to call the declarants as hostile witnesses or forgo the information altogether.
    • Fairness
      • 3rd parties rely on agent’s statements when doing business with the principal.
    • Reliability
      • Reasonable inference that principal selected agent that was trustworthy/loyal (high sincerity) + adequately informed to make statement (reliable)
  • Applications
    • Corporations are impacted heavily by this
    • Government Employees
      • Common law (some courts): Statement by govt employees can never be offered against the govt
      • Some courts: Allow the statement if it was by prosecutor made in court or pleadings
      • Some courts: In civil cases, govt manuals, sworn affidavits, deposition and prior testimony can be admitted.

801d2E: Co-Conspirator[edit | edit source]

  • RULE FRE 801d2E: You can use a co-conspirator’s statement against the party if:
    • The person against whom the statement is used was part of the conspiracy
      • RULE: Must have corroborating evidence (besides statement alone) to establish def was in conspiracy
        • Use 104(a) standard, so judge can consider otherwise inadmissible evidence.
        • Corroborating evidence can include the defendant’s behavior
          • But mere contact association with co-conspirator is insufficient to prove membership in it.
          • Ex: Def’s own statements or adopted statements; def’s presence at location where co-conspirator said he would be; def’s attempt to silence the victim of the conspiracy; frequent phone contact with co-conspirators; presence at drug deliveries.
      • Def needed to have knowledge of the conspiracy’s aim. Conspiracy requires meeting of the minds to achieve some objective.
    • The statement was made during the course of the conspiracy
    • The statement was made "in furtherance" of the conspiracy
  • Limits
    • Declarant need not be co-defendant.
    • Do not need formal charge of conspiracy
    • Not limited to use in criminal proceedings.

C. FRE 803: Exceptions[edit | edit source]

Rule 803. Exceptions to the Rule Against Hearsay'The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:General

  • Declarant must have personal knowledge.
  • Declarant does NOT need to testify. Can admit the statement anyway.
    • Exception: Recorded Recollection (803(5))
    • Opponent can attack the declarant’s credibility like in cross-examination (FRE 806), but realistically difficult to get impeachment.
  • Categorical rules. No judicial determination.

803(1): Present Sense Impression[edit | edit source]

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.

  • RULE: Present Sense Impressions are admissible if:
    • Statement describes or explains an event or condition
      • Declarant must have personally perceived event
        • Content of statement + surrounding circumstances can be sufficient to prove declarant’s firsthand knowledge
        • Declarant can even be an unidentified bystander – even higher sincerity bc no reason to lie (Montero-Camargo)
    • Declarant made the statement while or immediately after perceiving the event or condition
      • Shoup: "immediately after" means that statement should be made as soon as possible. 911 call made 1-2 minutes immediately after event is OK.
      • Some courts say 15 minutes after event is fine.
      • Look at context to determine was is reasonable for "immediately after"
  • The particular qualities of the declarant don’t matter.
  • Rationale: High sincerity and low memory issue of instantaneous statement. No time to develop a lie.
    • Counter: Posner says this is a psychological fiction.

803(2): Excited Utterance[edit | edit source]

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:'(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.

  • RULE: You can admit an Excited Utterance if:
    • Statement relates to a startling event or condition
    • Statement was made under “stress of excitement”
      • Factors (Wilcox)
        • Lapse of time btw event and statement
          • Generally, more startling event means longer time lapse accepted.
            • Boucher: 1 minute is fine
            • Davis: Time lapse doesn't matter. All you need to show is that declarant still appeared nervous or upset, and that such a state was reasonable.
          • *Children in sex abuse case can make statement days later. Rekindled stress.
        • Whether statement made in response to inquiry
        • Age of declarant
        • Physical and mental condition of declarant
        • Characteristics of the event
        • Subject matter of the statement
    • Stress of excitement was caused by the startling event or condition
      • *Just testify that declarant was calm before the event.
  • Rationale: High sincerity and low memory issue of an excited utterance.
    • o Counter: Science shows that people’s stress can lead to shock, thus issues with Perception, Narration
  • ISSSUE: Courts split as to whether stress must be continuous vs. rekindled
    • Lossiah: If a startling event is traumatic, rekindled stress can cause a later contemporaneous excited statement.
  • Children in sexual abuse case can make valid excited utterance days later
    • If its kids "first real opportunity" to speak to adult and not feel afraid, guilty, etc.

803(3): Then-Existing State of Mind[edit | edit source]

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:'(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) 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.

  • RULE: Statements of declarant’s then-existing state of mind are admissible if:
    • Statement expresses declarant's state of mind at time the statement was made
    • Broad category – “state of mind” may include motive, intent, plan; emotional, sensory or physical condition; mental feeling, pain, or bodily health
    • State of mind of memory or belief may not be used to prove the fact remembered or believed
  • Rationale:
    • Necessity -- It is very hard to identify someone's subjective mental state, so when they flat out say it themselves then it is HIGHLY probative.
    • Reliability – No problem with memory (then-existing) or perception (direct access to own mind). Highly reliable.
    • Counter: Potential problems with Sincerity (not necessarily spontaneous, can be lying) and Narration.
  • Relevance theories:
    • Making inference about past/future state of mind
      • Statement can explain state of mind during future act
        • Generalization that a person's strong emotional feelings are unlikely to change during a short time.
        • Ex: “I hate [victim]!” can show declarant’s motive to later commit assault.
      • Statement can explain state of mind during prior act.
        • Ex: “I hate [victim]!” can show declarant had anger during prior assault.
      • Judge will consider ambiguity of statement, time lapse btw statement and act, intervening events, etc.
    • Statement of Intent used to prove declarant's subsequent conduct
      • RULE: Statement of intent can be used to prove truth of declarant’s future conduct.
        • Generalization: People do the things they say they intend to do.
      • ISSUE: Can you use declarant’s statement of other’s intent to prove other’s future conduct?
        • Majority Rule (Hillmon): No, you cannot use declarant's statement of intent as proof of action and intent of other person.
          • Rationale: This goes outside the head of the declarant. Requires evaluation of other person’s intent/conduct + raises sincerity/perception issues.
        • Minority Rule: Yes, you may declarant's intent statement to prove other person’s intent and action, but ONLY if you have independent corroboration of third party's conduct.
  • RULE: You can use the statement to prove then-existing state of mind, but NOT to prove truth of a past fact remembered or believed.
    • Ex: "I hate John because he stole my money!" Can show that declarant hated John, but not to prove that he stole the money.
    • Rationale: Without this limit, all hearsay statements would be admissible by arguing that declarant believed it
    • EXCEPTION: Intent statement can be used to prove truth of declarant’s future conduct.
      • LIMIT: In most courts, cannot use declarant's statement of other's intent to prove other's future conduct (Hillmon)

803(4): For Medical Treatment[edit | edit source]

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:'(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.

  • TEST:
    • Was statement made for purpose of seeking medical diagnosis or treatment?
    • Does statement describe medical history, past or present symptoms, or cause of the symptoms?
    • Is statement reasonably pertinent to diagnosis or treatment?
  • Rationale: Declarant seeking medical help has motivation to be reliable (sincere, narrate well, good memory, etc)
  • Wrinkles
    • RULE: Declarant need not be a formal patient. Applies as long as they expect that their listener can provide medical diagnosis/treatment.
  • Ex: Husband tells wife of injury and expects her to (a) provide care bc she’s doctor, or (b) notify doctor.
    • RULE: Statements to non-treating physician regarding medical diagnosis made in preparation for litigation are admissible (ie statement to expert)
    • RULE: Statements about liability for cause are generally not admissible. Info must be reasonably pertinent to treatment.
      • Ex: “Charlie hit my head with a baseball bat.” Unless identifying Charles is reasonably pertinent (eg he is super strong).
      • EXCEPTION: Domestic/Sexual Abuse cases -- Identifying the rapist is pertinent medical info
    • ISSUE: In some courts, the rule applies one-directionally. Only statements by those seeking medical care counts, so statements by the doctor are NOT admissible.
      • Rationale: For doctor statements, lose the patient’s motivation to be reliable.
      • *Nurse relaying info to doctor is admissible. Still one directional (ie nurse seeking treatment aid from doctor on behalf of the patient)

803(5): Recorded Recollection[edit | edit source]

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:'(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.

  • TEST:
    • Declarant testifying as a witness
    • Statement is in the form of a record
      • If witness can’t remember making statement, you can use circumstantial evidence to establish he did
      • Must be otherwise admissible under FRE 901-902
    • Witness once had personal knowledge about matter of statement
    • Witness cannot remember the matter sufficiently to testify fully and accurately
    • Statement was made or adopted when the matter was fresh in witness's memory
      • “Made or adopted” -- Sufficient for witness to have read over and signed the doc as accurate
      • Time gap analysis
    • Statement accurately reflects the witness's knowledge
      • Just ask "does the statement look true and accurate?"
  • RULE: Multiple Declarants -- if the recording was the product of multiple people, you must have each contributor as witness in court
    • Ex: Observer-declarant writes down what speaker-declarant says
  • RULE: If a declarant makes statement based off of reading from a record and lacks personal knowledge, that is double hearsay.
  • ISSUE: Recorded Recollection versus "Refreshing the Memory"
    • If you have piece of writing and forgetful witness, you can potentially use either one
    • FRE 803(5): 'Recorded Recollection' = statement offered for truth of the matter asserted
      • Applies if the witness’s memory simply incomplete
    • FRE 612:' Refresh the Memory' = relying on the testimony post-refresh for evidence, NOT the refresher statement
      • Only applies once the witness’s memory is “exhausted” (ie no recollection)
      • Refreshing statement is NOT admitted as evidence.
      • Refreshing statement does not need to meet FRE. Low bar.
    • Strategic use
      • Use “Refreshing Memory” if you think witness’s testimony in his/her own words will be more descriptive.
      • Use “Refreshing Memory” if you don’t can’t meet requirements of 803(5) or relevance.

803(6): Business Record[edit | edit source]

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:'(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.

  • TEST:
    • Statement is a record
    • Record is of an act, event, condition, opinion or diagnosis
    • Record was made at or near the time of the act
    • Record was either (a) made by someone with knowledge of the act, OR (b) made from info transmitted by someone with knowledge
      • ISSUE: Is the person with knowledge of the act part of the organization?
        • RULE: If the person with knowledge was part of the organization, BRE applies.
          • Rationale: Duty creates loyalty (and hence sincerity in record-keeping).
        • RULE: If the record was made based on knowledge of an outsider, outsider statement can become business record if shown that (1) Business has policy of verifying outsider info, or (2) Business possesses sufficient self-interest in the accuracy of the record to justify inference of trustworthiness.
    • Record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit
    • It was a regular practice of that activity to make the record
    • Qualified Witness for Foundation
      • Proponent has burden of proof
      • RULE: Two ways to establish foundation:
        • 1) Bring in a person with personal knowledge of the writing to testify
        • 2) 902(11) -- bring in a "custodian or another qualified witness" to certify (even via writing) that the record meets the 803(6) foundational requirements
          • In this case, you can admit it without having someone from the org actually testify!
            • LIMIT: This is always fine if the record reflects facts. But if the record reflects the employee's opinion, opponent lose the oppt to examine the witness. Raise this as a trustworthiness issue or 403 danger.
          • Rationale: Reliability of a procedural writing + Efficiency
  • EXCEPTION 803(6)(E): Untrustworthy -- exclude if opponent shows that the record's info source, methods, or circumstances of preparation are untrustworthy.
    • How to show untrustworthiness:
      • (a) Document made in preparation of litigation -- popular
      • (b) Self-serving document -- popular
      • (c) Doc was made with mistakes, errors, hurriedness, etc.

803(8): Public Record[edit | edit source]

(8) Public Records. A record or statement of a public office if:'(A) it sets out:'(i) the office’s 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 or other circumstances indicate a lack of trustworthiness.

  • TEST: 3 ways to admit public record
    • (i) Record of Office Activities ("Internal Housekeeping")
      • (a) Record made pursuant to internal procedure
      • (b) Necessary to performance of public duties
      • (c) Independent of any specific investigation or litigation
        • Ex: Record of Johnson's movement btw housing facilities
    • (ii) Record of matter observed while under a legal duty to report
      • Ex: accident scene investigation, weather report, police report, record of border crossing
      • Third Party Statements -- Statement by third parties not employed by agency do NOT fall under "legal duty to report," so they require other hearsay exception
      • EXCEPTION: Govt CANNOT admit record of matters observed by law enforcement personnel against Crim D
        • *Criminal Def may introduce this evidence if they want (bc no Confrontation Clause issue)
        • *Practical implication: Govt can’t use police report on its own as evidence to convict D. Need officers to come into court and testify.
    • (iii) Record of Factual Findings from legally authorized investigation
      • Include trustworthy opinions or conclusions based on investigation
        • Beech Aircraft – factually-based conclusions in report about investigation count as factual finding.
          • Rationale: Facts, opinions, and conclusions are too hard to distinguish.
        • Does NOT include interview notes of potential witness statements
      • Embedded Hearsay – If the report includes embedded hearsay statements, they must have their own hearsay exception to be admitted for its truth.
        • The embedded statement (whether admissible or not) can be used to evaluate the trustworthiness of the investigation.
        • If a factual conclusion is based on inadmissible hearsay, potentially exclude both the inadmissible embedded statements AND the conclusion.
      • EXCEPTION: Govt CANNOT admit record of investigation factual findings against Criminal Def
        • But Criminal Def can admit factual findings against govt
  • Rationale: High reliability of public records
  • Unique features
    • No “routine” (regular practice) requirement
    • No “at the time of the event” requirement – can be made after the event!
    • Cannot admit public records under Business Records Exception
      • Can potentially fall back on 803(5) Recorded Recollection IF (a) witness is on witness stand (bc low bar to allow examination as in 801d1) and (b) witness fails to fully recall.
  • EXCEPTIONS: Grounds for exclusion include
    • Untrustworthy
      • Document made in preparation of litigation
      • Document made with mistakes, errors, hurriedness, etc.
      • Attack the underlying circumstances of investigation
      • Attack embedded hearsay statements as unreliable
    • Exclude if it is being used against criminal D under categories 2 and 3

Other 803 exceptions: Family record, learned treatise, character reputation, prior conviction, absence of record[edit | edit source]

Rule 803. Exceptions to the Rule Against Hearsay'The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:'(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in para. 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.'(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.'(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.'(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.'(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:'(A) made by a person who is authorized by a religious organization or by law to perform the act certified;'(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and'(C) purporting to have been issued at the time of the act or within a reasonable time after it.'(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.'(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:'(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;'(B) the record is kept in a public office; and'(C) a statute authorizes recording documents of that kind in that office.'(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.'(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.'(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.'(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.'(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.'(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.'(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.'(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:'(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;'(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;'(C) the evidence is admitted to prove any fact essential to the judgment; and'(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.'The pendency of an appeal may be shown but does not affect admissibility.'(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:'(A) was essential to the judgment; and'(B) could be proved by evidence of reputation.'(24) [Other Exceptions .] [Transferred to Rule 807.]404-313-2970

  • FRE 803(7): Absence of Entry in Records
    • Use this to counter BRE.
    • You can admit evidence about a hearsay statement which proves (a) the matter does not exist and (b) a record is regularly kept for these matters
    • Trustworthiness exception
  • FRE 803(10): Absence of a Public Record
    • Use this to counter PRE.
    • You can admit testimony about a hearsay statement which shows diligent search failed to uncover public record in order to prove that the Matter or Record did not exist.
  • FRE 803(9): Record of a Birth, Death, or Marriage
    • Only if reported to a public office in accordance with a legal duty.
  • FRE 803(12): Certificate of Marriage, Baptism, or Similar Ceremony
  • o Statement of facts within these certificates are allowed'
  • o Must have been made by authorized religious/legal figure + issued around the time of the act'
  • FRE 803(11): Religious Organization Record about Personal/Family History''
    • o Regular record of religious org containing statement about a person’s birth, ancestry, marriage, divorce, death, relationships, or similar history'
  • FRE 803(13): Family Record''
    • o Statement of fact about person/family history contained in family record (eg genealogy chart, burial marker, etc)'
  • FRE 803(14): Records of Docs that Affect/Establish Interest in Property''
  • FRE 803(15): Statements in Docs that Affect/Establish Interest in Property''
  • FRE 803(16): Statements in Ancient Documents''
    • Statements in a document in existence twenty years or more the authenticity of which is established.
  • FRE 803(17): Market Reports and Similar Commercial Publications''
  • FRE 803(18): Statements in Learned Treatises, Periodicals, or Pamphlets''
    • o (a) Expert must discusses statement on direct/cross examination'
      • So you can use a treatise to question an expert on cross-examination'
    • o (b) Expert or judge must admit that the publication is reliable'
    • o FRE 803(19): Reputation Concerning Personal or Family History''
    • o FRE 803(20): Reputation Concerning Land Boundaries/Customs or History''
    • o FRE 803(21): Reputation Concerning Character''
      • Can admit character evidence it for its truth here! Exception from Character Rule.'
    • FRE 803(22): Judgment of Previous Conviction''
      • o Conviction statements'
      • o Only for felonies (death or more than a year)'
        • Relation to 609a1 – evidence of prior felony conviction may not be admitted for impeachment (crim Def reverse 403), but statement in conviction can be admitted for its truth'
      • o Evidence is relevant to prove essential fact for judgment'
    • FRE 802(23): Judgement involving personal, family, or general history'
      • o If (a) was essential to the judgment; and (B) could be proved by evidence of reputation.

D. FRE 804: Exceptions for Unavailable Declarant[edit | edit source]


  • Five Categories where you can use parties own statements against them for the truth of the matter asserted
  • Matters for hearsay policy (not relevance), so 104(a) applies
  • o Reliability
  • o Idea that testifying witness is in best position to explain why they made prior statement


  • Is the declarant unavailable?
    • 804a1: Privileged absence
    • 804a2: Declarant refuses to testify
    • 804a3: Declarant doesn't remember -- big one!
      • RULE: If you can show the declarant witness doesn't remember, you can potentially get hearsay evidence admitted
      • *Someone who doesn't remember might still be available for cross-examination of prior statements (801d1, Owens), recorded recollection (803(5)), or refresh memory (612)
    • 804a4: Dead or ill
    • 804a5: Otherwise absent, and proponent’s reasonable effort can’t procure declarant's:
      • Attendance only (for 1 or 6) -- preference for some live witness always
      • Attendance or testimony (for 2, 3, 4) – preference for former testimony (b1) over anything else (b2/3/4)
  • Did proponent intentionally take wrongful action to cause declarant’s unavailability as witness to prevent their testifying?
    • High bar -- Must find proponent had specific purpose to make declarant unavailable.
  • Does the statement fall within one of the exceptions?
    • Burden of persuasion (104a) is on the offering party
    • 804b1: Former Testimony
    • 804b2: Dying Declaration
    • 804b3: Declaration Against Interest
    • 804b6: Forfeiture by Wrongdoing
    • 807: Residual Exception
      • Near Miss Analysis

804(a): Definition of Unavailable[edit | edit source]

(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.

  • RULE: Party must make reasonable efforts if possible to get declarant's attendance (for 1 or 6) or testimony (for 2, 3, 4) before relying on the 804 exceptions.
    • If you can get declarant in court as witness, preference for that over any exceptions
    • If you can get former testimony (ie deposition, 804b1), preference for that over 2, 3, and 4.
      • Rationale: Suspicion about reliability of 804b2, b3, and b4 statements
  • RULE: Offering party can't rely on 804 if they intentionally took action that created witness unavailability
    • High bar -- Must find proponent had specific "purpose" in underlying conduct to make declarant unavailable.
    • Rationale: Necessity justification is gone.

804b1: Former Testimony[edit | edit source]

(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.

  • TEST:
    • Statement in the form of prior testimony given at trial, hearing, or lawful deposition
      • Broad language
        • Can be from prior or current case
        • As long as there is adversarial proceeding
    • Party against whom the statement offered must have had OPPORTUNITY and SIMILAR MOTIVE to develop the testimony at the prior hearing or deposition by direct, cross or redirect examination
      • Opportunity and motive
        • Motive factors (Reed, 7th Cir 2000): (1) type of proceeding, (2) trial strategy, (3) potential penalties or financial stakes, (4) number of issues and parties, (5) factual similarities
        • No “meaningful” opportunity can disqualify this exception (eg if party lacked legal representation in prior testimony to cross-examine expert)
      • Who it can be offered against?
        • Criminal Case = same party in current case
        • Civil Case = same party in current case OR predecessor in interest
          • Prof: Basic Q is whether its fair to use that prior testimony against current party?
          • Defining Predecessor In Interest
            • (1) Narrow -- Current party must have taken over legal interest from predecessor. Only includes relationship in which individuals were in privity to each other per property/contract law.
            • (2) Broad – Current party can share the legal interest with predecessor. Also includes subsidiary and parent corps, co-employees (eg DA and city solicitor).
            • (3) Recent Liberal -- Any party to earlier proceeding with similar motive and oppt to develop testimony fully is a predecessor in interest. Motive = interest.
  • Rationale:
    • Necessity
    • Reliability -- oppt to develop testimony + formal proceeding

804b2: Dying Declaration[edit | edit source]

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:'(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.

  • TEST:
    • Content -- Statement concerns cause or circumstances of declarant’s (believed) imminent death
      • Ex: Perpetrator identification, description of accident or causal events
    • Timing -- Statement made while declarant believes death is imminent
      • Just subjective belief. Actual death not necessary.
      • Court determines declarant’s subjective belief by declarant’s statement itself, circumstances (eg severe wound), evidence that declarant was told that death was imminent, opinion of physician.
    • Setting -- Statement is offered in a homicide prosecution or civil case
  • Rationale:
    • High sincerity.
      • Underlying rationale: (a) Want to meet their maker with clean hands bc imminent death means no reason to lie, (b) hoping that statement will deter the death
    • Counter: Dying defendant need not be sincere. And might have perception/memory/narration problems.
  • *Dying declaration is admissible over Confrontation Clause objection by crim D. (Crawford)

804b3: Declaration Against Interest[edit | edit source]

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:'(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.

  • TEST:
    • Content of the statement, at time it was made, was
      • Against pecuniary or proprietary interest of the declarant
      • Could subject the declarant to civil or criminal liability, OR
      • Could invalidate claim held by the declarant
    • Statement was so against declarant's interest that no reasonable person in declarant's position would have made the statement unless it was true
      • Declarant must have had personal knowledge of the against-interest fact
      • Declarant must have known (or reasonably should know) that the fact is against his interest.
    • WRINKLE: In criminal case + statement exposes declarant to criminal liability à must have corroborating evidence that shows trustworthiness of statement, declarant, or both
      • Critique: This can put burden on criminal def (higher than civil) if they want to admit hearsay evidence of co-conspirator that exculpates them.
  • Rationale: Trustworthy. So against interest that "no reasonable person" would make statement unless it were true.
    • Counter: This is flawed.
      • Mixed Motive statements -- appears on its face to be against self-interest, but ulterior interested motive
      • Statements made with no motive to lie -- can be neutral statement, NOT against self-interest
  • RULE: Declarant need not be party to case.
    • Ex: P offers coconspirator-declarant statement of admission which injures defendant (and declarant unavailable due to assertion of privilege).
    • Distinction:
      • Focus on declarant's OWN interest, not necessarily party’s interest.
      • 804b3 is harder to get than 801d2A (party’s admission) or 801d2E (co-conspirator admission) – declarant needs personal knowledge, no reasonable person standard.
  • RULE: Statements that inculpate others, if made in the context of a self-inculpating statement, are admissible only if each specific statement is against the declarant's interest.
    • Courts are divided as to whether such statements, made in custody, can be admitted as against the declarant's interest.

-passing blame statement both inculpates the declarant and the other statement – this is main scenario -Courts will differ on whether this applies to the exception or not

804b6: Forfeiture by Wrongdoing[edit | edit source]

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:'(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.

  • RULE: If you intentionally caused declarant’s unavailability, with specific purpose of preventing their testimony, opponent can use the declarant’s statement against you!
    • *This goes along with 804a note that wrongful party cannot use declarant’s statement when they cause unavailability
    • ISSUE: Interpretation of “caused or acquiesced”
      • Narrow: Party must have had control in causing unavailability
      • Broad: Simply having knowledge of wrongdoing is sufficient
        • In witness tampering case, can use declarant statement against the enforcer mobster AND his coconspirators.
    • Intent matters! Ex: Murdering declarant out of lust would not allow this exception.
    • Broad application
      • Applies to both actual and potential witnesses
      • Not just formal proceedings; if declarant is deterred from being witness in any proceeding, this applies.

Did we even go over 804b4 – declarant’s statement of personal or family history?--Don’t need it

E. FRE 807: Residual Exception, Near Miss Analysis[edit | edit source]

'Rule 807. Residual Exception'(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.'(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.

  • RULE: Even if statement doesn't fall under 803/804 exceptions, can still be admissible if:
    • o High degree of trustworthiness like other exceptions
      • Totality of Circumstances
      • Factors (Proposed Rule Change)
        • Diminished Hearsay Danger -- Do the circumstances of statement lessen hearsay dangers?
        • Corroboration -- Is there (partial) corroborating evidence for statement?
          • o *This factor wasn’t always recognized before PRC
        • o Must be offered for a material fact (ie relevant)
          • *Eliminated by PRC. Redundant, of course statement must be relevant.
        • o Party’s Need -- More probative than other evidence that can be reasonably obtained
        • o Admitting evidence will serve purpose of this rule and interest of justice
        • o Must give notice to other side (intent to use statement, info about declarant)
          • Proposed Rule Change:
            • Must provide substance of the statement
            • Recognized “Good Cause” exception – need not provide notice if there’s good cause (eg statement came to light just before trial)
          • Near Miss Analysis
            • o RULE: If the statement almost falls under one of the 803/804 exceptions, you can fall back on 807.
              • Must explain WHY to fall back on 807 (eg high reliability of statement)
                • Ex: Excited Utterance was made by a very calm person (so not under stress), but it was close-in-time to event so high sincerity.

Confrontation Clause[edit | edit source]

SIXTH AMEDMENT (6th)''In all criminal prosecutions'', the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.TEST:

  • Crim Def?
    • o If not, CC not implicated.
  • Offered for its truth?
    • o If not, CC not implicated
    • o *Williams plurality fiction that statement can be admitted just to evaluate expert's opinion.
      • Widely rejected by courts
    • Statement made to LEO?
      • o Statements to non-LEO can be testimonial (Clark)
    • Is it a testimonial statement? --- if no, CC does not apply
      • o Analysis
        • Formalized Statement?
          • Factors: oath taken,
          • Ex: Affidavits, deposition, prior testimony, confession
          • Thomas argues only formalized statement can be testimonial.
        • “Bearing testimony” – declarant has some expectation it will be used in legal proceeding. Primary purpose?
          • Use totality of circumstances. Consider both declarant’s and police perspective (Bryant)
          • A child giving statements will almost never be testimonial. They can’t understand what will be used in court. (Clark)
        • o Yes
          • Affidavits
          • Deposition
          • Prior testimony (at trial, grand jury, prelim hearing)
          • Confession
          • Statements made in forensic lab reports created to help solve crime
            • Person who produced them must be available to testify (Melendez-Diaz)
            • Substitute expert is not adequate. Person who authorizes the statement is the declarant (Billcoming)
              • o ISSUE: Williams came out differently.
                • Option 1: Thomas concurrence – If the lab report is sufficiently formal, then its testimonial. Not testimonial if it lacks oath + certification (Williams). Testimonial if it has certification but no oath (Billcoming).
                • Option 2: Just ignore Williams. It had poor reasoning.
              • Police Interrogation
                • At police office
                • Crime scene interviews IF purpose is investigating a completed crime, NOT ongoing emergency (usually not considered testimonial).
                • PRIMARY PURPOSE TEST: Statements taken by police officers in the course of interrogation are “testimonial,” and subject to the Confrontation Clause, when:
                  • o (1) the circumstances objectively indicate that there is no ongoing emergency, and
                  • o (2) primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
                    • Use totality of circumstances. Consider BOTH the declarant's and police's perspective (Bryant)
                    • Statements to non-LEO can be testimonial. (Clark)
                  • o Factors:
                    • Timing -- Declarant speaking as events occur or describing past events?
                    • Ongoing emergency?
                    • Content of statement necessary to resolve ongoing emergency or just learn what happened in past?
                    • Level of formality in questioning indicative of emergency or structured interrog?
                  • o Exception: Never testimonial if its Dying Declaration (Crawford, Bryant), child giving statement (Clark)

I thought that statements to police during interrogation are definitely testimonial? Per Crawford.-The Davis case made “interrogation” term ambiguous. 911 case is not a

  • o No
    • Statements made to co-conspirator during course of conspiracy and in furtherance of it
    • Excited utterances to friends or 911 operator under emergency conditions (Davis)
    • Present sense impressions
    • State-of-mind statements
    • Statements by children to LEO/non-LEO (Clark)
  • Is it admissible?
    • o Crawford: only if (1) declarant is unavailable, and (2) crim def had prior oppt to cross-examine.
      • Exceptions:
        • Always admissible if Dying Declaration (Crawford, Bryant)
        • Always admissible if Forfeiture by Wrongdoing (Crawford)
          • o Crim Def must have had specific purpose of marking declarant unavailable to testify (Giles)
        • Almost never admissible if child’s statement (Clark)

Most common scenarios:

  1. W is interrogated by police and W implicates D. If W doesn’t testify at D’s trial, then his statement is inadmissible against D. [unless D had a prior chance to cross W about the statement]
  2. If W testifies in front of a grand jury and later refuses to testify at D’s trial, grand jury statement is inadmissible.
  3. Forensic lab makes test – if person who actually did the test is unavailable to testify then inadmissible. Somebody who worked on or observed/reviewed test and report must testify!

A. General Rule (Crawford)[edit | edit source]

  • ISSUE: 6th Amends says that criminal defs have right to confront "witnesses against him.” Does that preclude hearsay?
    • Narrow: Crim Def has right to confront only declarants who are witnesses in court -- CC excludes NO hearsay
    • Broad: Crim Def has right to confront anyone whos statement used against him -- CC excludes ALL hearsay
    • Middle: Confront clause excludes some, but not all, hearsay.
  • Ohio v. Roberts (1980) – Overruled. Old test: is hearsay statement in “firmly rooted” exception or have particularized guarantees of trustworthiness?
  • Crawford v. Washington (2004) – overrules Roberts, CC applies to testimonial statements, admissible if absent decl and crim def had prior oppt
    • RULE: Any hearsay statement which bears testimony is subject to Confrontation Clause.
      • ISSUE: Two interpretations of what is testimonial:
        • Formalized Statements Only: made during affidavits, deposition, prior testimony, or confession
        • Broader: Anything objective declarant might expect to be used in criminal prosecution
          • Consider subjective beliefs of the declarant
      • Police interrogation statements are DEFINITELY testimonial
      • Taking oath doesn’t matter
    • RULE: Testimonial hearsay statements are admissible for their truth against Crim Def only if (1) declarant is unavailable, and (2) crim def had prior oppt to cross-examine.
      • CC only applies when statement is offered for its truth. Does NOT apply otherwise.
        • Dying Declaration – dying declaration admitted over CC. rationale: historical
        • Forfeiture by Wrongdoing -- if def wrongfully causes witness unavailability, CC right is forfeited
    • Policy Implications
      • Made previously admissible evidence inadmissible.
      • Applied to ALL decisions, state and fed, bc its constitutional. Limited state evidentiary laws.
      • Reduced number of criminal cases brought (bc needed new witnesses, more expensive)
      • Gave crim defs more leverage in plea bargaining process

B. Primary Purpose Test[edit | edit source]

  • RULE: Statements taken by police officers in the course of interrogation are “testimonial,” and subject to the Confrontation Clause, when:
    • o (1) the circumstances objectively indicate that there is no ongoing emergency, and
    • o (2) primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
      • Use totality of circumstances. BOTH the declarant's and police's perspective matters (Bryant)
    • o Factors:
      • Timing -- Declarant speaking as events occur or describing past events?
      • Ongoing emergency?
      • Content of statement necessary to resolve ongoing emergency or just learn what happened in past?
      • Level of formality in questioning indicative of emergency or structured interrog?
    • o Exception: Never testimonial if its Dying Declaration (Crawford, Bryant)
  • Davis
    • Facts: Caller to 911 identifies assailant. Police show up, see her injuries, and prosecute D. Declarant caller doesn't testify, so officer's testimony + 911 call are used to convict D. 911 call is admitted as excited utterance/present sense impression.
    • HOLDING: Identification in 911 call is not testimonial.
      • Rationale: Emergency + not primary purpose to prove past events.
  • Hammond
    • Facts: Officers responding to domestic violence call and enter premises with consent. Wife makes statement about battery and completes affidavit. Wife unavailable due to marital privilege. D is convicted based on officer's testimony in affidavit.
    • HOLDING: Statements to officer not testimonial, affidavit was a formalized statement but admissibility is harmless.
      • Rationale: No emergency + trying to prove past events (so acting as witness)
    • DISSENT (Thomas):
      • The affidavit is testimonial, but not the statements to police bc not formalized.
      • Primary purpose critique: Hard to define emergency, timing of ongoing? There can be multiple purposes for statement.
      • P can't get around formalized statement prohibition by substituting with non-formalized statement of same character. Prof: But no clear lines drawn to apply this.
  • Michigan v. Bryant
    • Facts: Victim was shot at gas station. Police arrive at scene and ask victim Qs while waiting for ambulance. Victim identifies D as shooter, location at victims house, 25 minutes prior. Lower court admits statements for their truth as excited utterance. Appeals court reverses, excludes them as testimonial (bc primary purpose was to get info before declarant died + 25 minutes after shooting so no emergency).
    • HOLDING: These were NOT testimonial statements.
      • Both declarant and police thought there was primary purpose besides testimony. Police wanted to resolve ongoing emergency + declarant wanted aid.
      • Revives issue of reliability --- Non-testimonial statements are more reliable.
    • RULE: Use totality of circumstances. BOTH the declarant's and police's perspective matters.
      • Dying declarant could not have had primary purpose of giving investigatory info + no evidence that the emergency was over
    • CONCURRANCE (Thomas): These aren't testimonial simply bc they're not formalized statements.
    • DISSENT (Scalia): This is testimonial statement.
      • Court should focus on declarant's intent.
      • Reliability =/= testimonial. Don't merge these concepts.

C. Statements Made to Non-LEO (Clark)[edit | edit source]

  • In Crawford/Davis/Hammond/Bryant -- assumed that the listener was LEO.
  • Ohio v. Clark
    • Facts: Teacher suspects injury on young student. Student tells teacher that it was mom's bf (crim D). Teachers had state law obligation to report injuries to student -- so D argues that they knew the inquiry was for criminal prosecution. Child is ruled incompetent so unavailable declarant. Statements admitted for their truth.
    • HOLDING: These statements were not testimonial.
      • Primary purpose of teachers was to resolve ongoing emergency (child's injuries), NOT to gather prosecutorial evidence.
      • Must also consider the declarant's perspective -- child didn't know he was providing evidence
        • RULE: A child giving statements will almost never be testimonial.
    • RULE: In determining if something is testimonial or not, it is fair to consider historical analogue.
      • Here, history shows that child declarant's statements are allowed in court when unavailable. So therefore cannot be testimonial.
    • RULE: Statements to non-LEO can be testimonial under the right circumstances.

D. Expert/Forensic Statements[edit | edit source]

  • Melendez-Diaz
    • Facts: Crim Def charged with distributing cocaine. Evidence at trial are 3 docs, "Certificates of Analysis" showing that substances of bags found on def contained cocaine. Docs were notarized under oath by forensic analyst. Being offered for their truth.
    • HOLDING: These forensic docs are testimonial.
    • RULE: Forensic documents are testimonial. Must have analyst in court to testify to their truth to satisfy CC under Crawford, unless they can show unavailability + prior oppt to cross examine.
      • Forensic docs prepared specifically for proving facts in criminal trial
      • Forensic docs are basically affidavits, so formalized statement.
    • DISSENT (4 Crawford Skeptics): These are non-testimonial statements. Crawford shouldn't apply.
      • Historical analysis -- CC is only focused on conventional eyewitnesses, NOT an analyst lacking firsthand knowledge.
      • Not Past Event -- Analysis is done on present state thing
      • Reliability argument -- Neutral analysis (no sincerity risk), Contemporaneous (no perception/memory risk)
  • Billcoming v. New Mexico
    • Facts: DUI case. Lab report states blood alocohol content. Original lab analyst not available to testify, so prosecution sends 2nd Analyst to testify about normal procedures of analysis. Note: The statement is not under oath!
    • HOLDING (Ginsburg): These are testimonial docs, under same reasoning as Melendez-Diaz.
    • RULE: Person who authorizes report is person making the statement. Must meet the 2 conditions to allow testimonial statement. Substitute expert is insufficient.
    • CONCURRANCE (Thomas): Even though the doc wasn't under oath, it was signed and thus formalized doc. The signer certified the procedure of analysis.
    • DISSENT (4 Crawford Skeptics): Same arguments as before. These are non-testimonial statements. Surrogate expert should be sufficient.
  • Williams v. Illinois
    • Facts: Crim Def charged with rape. Evidence at trial is report from private lab. Private lab report itself isn't admitted, but an expert witness from Illinois state lab testifies about the report. Def argues that the private lab report is testimony and no expert from that lab testified, so exclude it.
    • HOLDING: These statements are non-testimonial.
    • PLURALITY (4 Crawford Skeptics)
      • The statements from the report are not admitted for their truth. We can sometimes admit inadmissible evidence in order to evaluate the expert's opinion. (rejected by majority)
        • Prof: This is a pure fiction. You can't admit to evaluate the expert's opinion without also assuming its truth.
      • Primary Purpose -- The lab report was made to resolve ongoing emergency, to identify and capture dangerous rapist.
    • DISSENT (Kagan): Rejects both arguments of plurality.
      • This is offered for its truth
      • Primary purpose was to advance criminal prosecution
        • Targeting/accusing a particular individual is not necessary to contribute to prosecution
        • This is proving past facts for criminal prosecution - this is exactly like Billcoming/Melendez
        • The lab took 12 months to send report to state lab, clearly not emergency
    • CONCURRANCE (Thomas): This is not testimonial bc the report isn't formalized enough!
      • Not formalized -- not under oath, no certification, etc.
      • Agrees with Dissent -- this was offered for its truth

E. Forfeiture by Wrongdoing Exception (Giles)[edit | edit source]

  • Giles v. California
    • Facts: Def charged with murder of gf. He claims self-defense. 3 weeks earlier, gf gave statements to police that she was scared and Def wanted to kill her. P wants to admit them. Def argues that they violate Conf clause.
      • P argues forfeiture by wrongdoing, because D actually murdered the declarant.
    • RULE: Like in hearsay forfeiture, proponent must show that opponent has specific intent'' to make declarant unavailable from testifying.
      • Rationale: Otherwise, leaves too much discretion to judge.
    • Dissent: As long as unavailability is known consequence of D's actions, forfeiture applies.

Expert / Lay Opinions[edit | edit source]


  • FRE 701: Lay Opinions
    • Is it an opinion?
      • Opinion = estimates, summaries (eg "a lot"), some inferences (eg "this is why he looked drunk")
    • Is there additional factual basis to support the opinion?
      • More facts = more reliable (less speculation)
      • Concern that opinions based on over-generalizations will lack adequate firsthand knowledge
    • Does witness have firsthand knowledge?
      • Opinion must be “rationally based” on that knowledge
      • Opinion MUST NOT be based on specialized knowledge.
    • Would opinion be helpful to the jury in understanding the testimony? – Main Q
    • Is the opinion close to an important issue for jury to decide?
      • Don’t want the witness to make inferences on behalf of the jury
  • FRE 702: Judicial screening of experts
    • (1) Reliability
      • Daubert Factors:
        • (a) Testable/falsifiable methods?
        • (b) Subjected to peer review/publication?
        • (c) Low error rates / high standards of control?
          • Ex: false positive rates, lab error rates, standards of application in lab
        • (d) General acceptance in the field?
      • Other factors -- open ended:
        • Whether studies done independently or for purpose of litigation?
        • Novelty of the processes?
        • Qualification of witness?
        • Whether expert accounted for alternate theories?
        • Whether field generally is known to reach reliable results?
      • Judge can evaluate expert’s conclusions, not just their underlying reasoning (Joiner (against Daubert dicta))
      • Judge must do reliability screening for all experts, including non-scientific (Kumho Tire)
      • 702 considerations: sufficient facts/data + reliable methods + reliably applied?
    • (2) Admissibility
      • 702 considerations:
        • Expert qualified? Need not have formal education, just sufficient experience or training
        • Existence of specialized knowledge? Not something ordinary person would know.
        • Would it be helpful to jury? Give them fact-specific info or background info for inference.
    • (3) What are the policy implications per Daubert:
      • (a) Will this decision be too broad? Is there potential to allow in junk science, confusing to jury, etc.
      • (b) Will this decision be too narrow? Is there potential to exclude otherwise helpful evidence
    • Judges have lots of leeway in considering factors (104a)
      • Daubert factors are not mandatory (Kumho Tire); other factors can be considered
      • Abuse of discretion appellate review – highly deferential (for both reliability and admissibility)
    • Other tools for judicial evaluation
      • Pretrial screening -- judge has oppt to question expert on their qualifications, methodology, etc.
      • Rule 706 -- judge has discretion to appoint their own experts! Can bring in 3rd neutral expert to give jury additional info (that might be helpful in assessing other experts)
    • *702/Daubert do not apply to state courts
  • FRE 703/705 = gives parties lots of flexibility in introducing expert testimony
    • 703 -- expert can rely on otherwise inadmissible info
      • Use reverse 403 to determine if present to jury (favor exclusion)
        • Probative value = Will it help jury in understanding testimony?
        • Danger = Jury will misuse information
    • 705 -- expert need not disclose underlying facts or data, but leaves burden on other side to poke holes
      • But parties have incentive to proactively provide underlying facts/data

A. FRE 701: Lay Opinions[edit | edit source]

Rule 701. Opinion Testimony by Lay Witnesses'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.

  • Main Q: Is this opinion helpful for the jury to hear?
    • Also Big Q: Does this making an inference about a core issue of the case?
    • Change from old rule that witness could only give facts.
  • Two Considerations
    • (1) Availability of more detailed facts -- General versus Specific description? Just trying to tease out whether a rational person would have such an opinion.
      • If more details are available to explain the opinion, then more permissible
      • High level generalization (eg "He's a nice guy") is disfavored
        • Because it can be unlikely or very difficult to get additional details for stuff like this -- suggests a lack of rational basis
        • Concern that the high-level generalization opinion is being given to hide that there is a lack of rational basis, based on hearsay, etc.
    • (2) Proximity of opinion to important disputed issue for jury to decide
      • Is witness making inferences similar to jury? -- ideally, witness just gives opinion and allows jury to make inferences
  • RULE: Lay opinion must be based on firsthand knowledge
  • Allowed -- estimates, summaries (eg "a lot"), some inferences (eg "this is why he looked drunk")
  • Not allowed -- subjective feelings (eg likes, preferences)
  • *Just saying “I think X happened” falls under 602, not enough to be considered an opinion under 701

B. FRE 702: Main Test for Experts[edit | edit source]

Rule 702. Testimony by Expert Witnesses'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.

  • RULE FRE 702: Requirements for expert
    • (1) Expert is qualified, via education or experience
      • Need not be formal education
      • Specialized knowledge is relative to the jury (eg jury in rural Iowa doesn’t need farming expert)
    • (2) Expert testimony can assist the trier of fact
      • Two types of relevant expert testimony: (a) case-specific facts or conclusions, or (b) generalizations like background info to help jury make an inference
    • (3) Reliable testimony
      • Sufficient facts & data
      • Reliable principles & methods
      • Reliably applied to facts
  • Expert does not need firsthand knowledge of event -- instead applying their specialized knowledge to firsthand testimony of others to help jury draw opinion
  • Admissibility decision often equals sufficiency decision (ie case often turns on getting expert testimony on blood sample)
  • ISSUE: What is the proper role of the expert?
    • GREATEST ROLE: Defer to experts to make conclusion!
    • LIMITED ROLE: The expert testimony should just educate the jury enough to make a decision. The literal text of rule is to help the jury decisionmaking, not usurp it!
  • 104(a) determination

Daubert[edit | edit source]

  • Old Rule: Frye Test -- expert testimony principles must have "gained general acceptance" in the particular field
  • New Rule: Reliability Screening for federal courts (Daubert 1993)
    • RULE: 702 is the basis for federal courts. State courts use their own test.
    • RULE: Trial court screens expert testimony to ensure its product of reliable principles and methods
      • Daubert Factors:
        • (a) Testable/falsifiable methods?
        • (b) Subjected to peer review/publication?
        • (c) Low error rates / high standards of control?
          • Ex: false positive rates, lab error rates, standards of application in lab
        • (d) General acceptance in the field?
      • Other factors -- open ended:
        • Whether studies done independently or for purpose of litigation?
        • Novelty of the processes?
        • Qualification of witness?
        • Whether expert accounted for alternate theories?
        • Whether field generally is known to reach reliable results?
  • Focus should on the principles and methodology, NOT on the conclusions
    • Note: Overruled in Joiner
  • Policy implications
    • Critique: This gives too much freedom to trial courts. Will enable junk science.
      • Counter: Adversarial system is sufficient to ensure reliability via (a) Cross-examination, and (b) Opposing expert witnesses.
    • Critique: This is too strict of a requirement for reliability. Will exclude lots of evidence that judge might have previously allowed.
      • Counter: This is a necessary cost. Reliability is worth it.

Joiner[edit | edit source]

  • RULE: Trial court expert reliability determination is subject to abuse of discretion appellate review – very deferential!
    • As long as Trial Court is reasonable in screening, its fine.
  • RULE: Trial judge can evaluate the expert's conclusions and reasoning process (eg how does science support conclusion) when determining reliability.
    • Trial court does NOT need to just accept expert conclusions, even if the underlying science is reliable.

Kumho Tire[edit | edit source]

  • HOLDING: Trial Court was fine to reject this expert testimony. It had many problems:
    • Relied on say-so of expert,
    • Expert examined photo evidence (not real examination),
    • General doubt of reliability bc expert couldn't draw conclusion about miles driven from inspecting tires,
    • Specific doubt of reliability bc expert's testimony seems to conflict with his own and others' methodology descriptions
  • RULE: 702 applies equally to all expert testimony, not just scientific testimony.
  • RULE: Apply the Daubert factors when it makes sense to do so. Subjective test for trial judge. Ultimate goal to meet reliability threshold for trial judge.
    • Rationale: Daubert factors can be difficult to apply in certain cases of specialized knowledge (eg when based on personal experience).
      • Ex: Perfume tester testifying based on his smell -- how do you know reliability?
    • Factors for when to apply:
      • General Acceptance -- is it normal for other experts in that field to use that method, even if not testable?
      • Prior Success -- success rate of using that method in past incidents, even if not positive right now
  • RULE: Deferential abuse of discretion appellate standard extends both to (1) Trial Court's decision on admissibility (Joiner) AND (2) Trial Court's decision on how to determine reliability.

C. FRE 703: Bases for Expert Opinion[edit | edit source]

Rule 703. Bases of an Expert'An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. 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. 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.

  • RULE: Experts can rely on otherwise inadmissible evidence if it’s the type of evidence that experts in the field would normally rely on.
    • Expert must have been made aware of or personally observed the facts or data
  • RULE: Once the expert has relied on otherwise inadmissible evidence for trial, proponent may disclose it to the jury.
    • Use Reverse 403 balancing test – only reveal if it helps in jury evaluating expert credibility substantially outweighs the danger of admissibility
      • Rationale: Concern of using expert witness as a conduit for admitting inadmissible evidence.
      • Favor exclusion
    • Factors
      • Probative Value -- value in helping jury evaluate expert's opinion
      • Danger -- jury will use inadmissible evidence for substantive purpose
        • Ex: Hearsay statement helps with evaluation, but jury might use it in deciding guilt
  • ISSUE: Is it even possible to admit evidence to evaluate expert testimony but not for substantive purpose?
    • Melton (DC 1991) -- Limiting instruction to jury might be illogical. Sometimes must assume truth of the matter asserted by inadmissible evidence in order to evaluate the expert’s testimony.
      • Ex: "you can consider expert’s hearsay evidence that D punched his mom to evaluate expert testimony that D is dangerous, but not as proof that D punched his mom."
    • Practical Approach: use this to argue exclusion in the reverse 403 test for inadmissible evidence.
      • Expert can still give opinion, but can't share the inadmissible data that is basis for opinion.
    • This was also an issue in Williams v. Illinois – most justices and subsequent courts reject argument that evidence can be considered to evaluate expert but not for TOMA

D. FRE 705: Underlying Data for Expert[edit | edit source]

'Rule 705. Disclosing the Facts or Data Underlying an Expert'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. But the expert may be required to disclose those facts or data on cross-examination.

  • RULE FRE 705: Expert can give opinion and reasoning without first citing underlying facts or data
    • Gives proponent flexibility on how/when to raise underlying info.
      • (A) Proponent can proactively raise the underlying information.
      • (B) Can put burden opponent to bring out underlying information via cross-examination
    • It is usually better for the proponent to proactively give the underlying facts and data
      • WHY?
  • Rationale: persuasiveness to judge

E. FRE 704: Opinion on Ultimate Issue[edit | edit source]

Rule 704. Opinion on an Ultimate Issue'(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.'(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.

  • Bilzerian: Expert witness should not give his opinion on ultimate factual conclusion
    • o Rationale: this would the independent issue determination of jury. Expert is there to help the trier of fact, not replace them.
  • RULE 704a: Expert may speak definitively on ultimate legal conclusion (ie, D is guilty, they had intent to sell weed).
    • o But this is a gray line!
      • Can maybe get by with saying "I THINK def is guilty" or "D is lying because this fact, but maybe there's something else that would mean he's not lying."
    • RULE 704(b): Where def's mental state is an essential element of crime or defense, expert witness in criminal case CANNOT give opinion on such an issue.
      • o Rationale: Expert witness is overly confusing here.
      • o Intended to address insanity defenses during 80's, but has been applied more broadly.

What is an ultimate issue?In criminal case, they cannot testify to itOtherwise, they can -Relaxing the common-law rule. But the opinion must still be helpful to jury.

Privileges[edit | edit source]

A. FRE 501: Privilege in General[edit | edit source]

Rule 501. Privilege in General'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.'But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.501

  • Courts get to do their own common-law analysis to determine if a privilege applies -- not codified
    • o 104(a) question
      • *Note, inadmissible evidence due to privilege is the only evidence that judge may not consider in making decision
    • In diversity cases, states get to determine the privilege rules
    • Issues
      • o Who holds the privilege?
      • o Who may invoke it?
      • o Scope of privilege?
      • o Limits of privilege?
        • Ex: Crim Def's right to evidence might override evidentiary privilege
      • o Waiver?
      • o Exception?

B. FRE 502: Attorney-Client Privilege / Work-Product[edit | edit source]

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver'The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.'(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:'(1) the waiver is intentional;'(2) the disclosed and undisclosed communications or information concern the same subject matter; and'(3) they ought in fairness to be considered together.'(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:'(1) the disclosure is inadvertent;'(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and'(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).'(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:'(1) would not be a waiver under this rule if it had been made in a federal proceeding; or'(2) is not a waiver under the law of the state where the disclosure occurred.'(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.'(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.'(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.'(g) Definitions. In this rule:'(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and'(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

  • Purpose of getting legal advice + expectation of confidentiality
    • o Can communicate with third parties about it if purpose of legal representation
    • o Can Waive
    • o Different from confidentiality of product
      • Different from work-product
    • Lawyer can claim it on client’s behalf, but client holds it
      • o Crime-Fraud Exception

C. Marital Privilege[edit | edit source]

RULE: Self-incrimination privilege and martial privileges do NOT apply to non-testimonial evidence (eg physical evidence).

Confidential Communications[edit | edit source]

  • Applies to communication btw spouses
  • Applies both in criminal and civil cases
  • Rationale: Respect intimacy of marital relationship
  • Issues
    • Holder -- both spouses hold privilege
    • Invoke -- both spouses can invoke it
      • *Some courts say only criminal def should get to invoke
    • Scope:
      • "words or acts
      • intended as communication
      • made during valid marriage"
        • Only applies in specific time -- marriage valid at the time that communication was made?
          • Even if now divorced, still applies if communication was made while couple was married
    • Limits
      • Confidentiality
        • RULE: If it was made during valid marriage, Burden shifts to proponent to show that it wasn't intended to be confidential communication
        • Factors that make it not confidential
          • Location, context details
          • 3rd party present
            • Child old enough to understand constitutes 3rd party'
            • Making statement to 3rd party later means they could have been constructively present at that time'
          • 104a question
      • Communication -- Was it a communication?
        • Courts apply an intent test.
  • Alternative for Some courts: "Any act with the communication in mind"
    • Exceptions
      • Even if spouse waives the privilege, other person can still invoke their
      • Crimes Against Spouse or Family Member
      • Civil Cases btw Spouses
      • Communications involving ongoing crimes in which spouses are both participants in criminal enterprise
        • Usually doesn't extend to communication about past act. Mostly about planning for future act.
          • Ex: Trammel -- planning how to get cocaine into US is not privileged.

Testimonial Privilege[edit | edit source]

  • Privilege to prevent "adverse testimony" against one spouse by another
    • Ex: Crawford used state law on testimonial privilege to keep spouse out and then invoke Confrontation Clause.
  • Only applies in criminal cases
  • Issues
    • Holder -- only the spouse asked to testify holds privilege, not the criminal Def spouse (Trammel)
      • Rationale: We'd be losing too much info if we gave privilege to def + we put the choice in the hands of the spouse to decide if the marriage sanctity is worth saving
      • Policy implication -- Prosecution has incentive to implicate both spouses in order to threaten / drive a wedge btw them
      • *This is federal law. But state laws differ (see Crawford).
    • Scope -- Extends to any adverse testimony
    • Exception
      • Crimes Against Spouse or Family Member -- spouse witness who has been harmed by spouse def can't refuse to testify!
      • Sham Marriages -- if it looks like parties got married just to preclude the statements, court may refuse to recognize it.
      • Joint Participant in Crime
        • Minority view. Most courts reject this.

D. Clergy-Communicant Privilege[edit | edit source]

  • RULE: Applies to confidential communications made to clergyman in his professional character as spiritual advisor.
    • o Three elements
      • (1) made to clergy person
      • (2) in his spiritual professional capacity (eg religious purpose)
      • (3) reasonable expectation of confidentiality
    • Holder: Person making communication
    • Rationale:
    • Spiritual benefit to the speaker,
    • Sanctity of relationship
    • Free Exercise
  • Factual Questions (104a)
    • o Whether communications were intended to be confidential
    • o Whether listener qualifies as clergyman
    • o Purpose of the statement - big one
      • Is it specifically for religious purpose?
      • Many things do not have specifically religious purpose
        • Ex: Seeking family advice, church/community matters
      • Exception:
    • Clergy required to report child sex abuse

E. Doctor-Patient Privilege[edit | edit source]

  • No federal privilege!
    • o Rationale: Cost-Benefit Anlaysis doesn't support.
      • Legislature hasn't made it.
      • HIPAA already recognizes confidentiality exceptions (eg for public health).
    • Many states have law protecting doctor-patient communications

F. Parent-Child Privilege[edit | edit source]

  • No federal privilege, either for testifying or including statement
  • Policy arguments
    • o For Privilege:
      • Similar rationale to marital privilege.
      • Sanctity
      • Difficulties of making child/parent testify against each other ("cruel trilemma" - perjure, be honest and ruin relationship, or be held in contempt).
  • o Against:
  • Issues
    • o Who should hold privilege? -- most people say it should be for benefit of child, so only child holds.
    • o Testimonial and communications privilege?
    • o Exceptions?

G. Psychotherapist-Patient Privilege[edit | edit source]

  • RULE: General evidentiary privilege protecting '
    • confidential communications
    • made by patient
    • in the course of receiving medical treatment for mental health reasons.
  • Rationale: Cost-benefit analysis favors privilege.
    • o Pro: Treatment itself requires trust,
  • Jaffee v. Redmond (1996)
    • o Facts: Family of victim (P) make civil lawsuit against police officer (D) for excessive force. Factual Qs about whether cop had gun drawn before exiting car and whether victim had knife. Evidence at issue is a social workers' notes with the cop made after the incident. P's theory: Maybe cop admitted that victim didn't have knife during those sessions?
    • o RULE: Psychotherapist-Patient Privilege exists! Definitely extends to licensed clinical social workers.
      • Exact limits of the privilege not defined
        • FN: Privilege exception to prevent harm by patient to himself or others.
      • o Rationale
        • Policy arguments in Cost-Benefit Analysis favor it
          • For Privilege: Encourage individuals to get therapy + Public health benefit for everyone to get therapy who needs it.
          • Against: Losing out on key privilege
            • Counter: If there's no privilege, person wouldn't talk to psychotherapist, so evidence won't exist.
              • Counter: Faulty assumptions that (a) people know law of privilege and (b) people won't talk in absence of privilege
            • Many states have this privilege so indicates its reasonable.
              • Counter (Scalia): This is a legislative issue, not judicial. States have differed on whether to recognize all social workers, or only licensed ones?
              • Prof: Courts develop law
            • Privilege was originally considered in proposed rules.
              • Counter (Scalia): Only considered for medical doctors, not social workers.
            • Case-by-case balancing test (of evidentiary need/confidentiality) isn't protective enough
          • o DISSENT (Scalia): People often go to their parents for counseling. Why not recognize that privilege?
        • ISSUES:
          • o Definition of Therapist
            • Potential factors (104a):
        • licensing of counselor +
        • reasonable beliefs of person seeking therapy
  • Can include: social workers (even unlicensed), psychiatric nurses, counselors of rape/DV, family or marriage counselors
  • o SCOPE
    • o Must be for purpose of receiving mental health services
    • Ex: Mandatory psychological exams by cops for work do not count (because no treatment involved), but some states recognize purpose of research
  • o WAIVER
    • Patient only.
      • EXCEPTION: Parent can assert/waive on behalf of child, but only if its in "best interests" of the child.
    • o BROAD VIEW: Patient impliedly waives privilege if mental condition is essential element of their defense/claim.
    • o NARROW VIEW: Patient only waives if makes explicit use of privileged info OR call therapist as witness.
      • Rationale: Protect confidentiality in balance with evidentiary need.
    • Holder: Patient only.
      • o Criminal Def (Doe) -- Crim Defs have 6th Amend right (Confrontation Clause) for defense or impeachment, which might require discovery of victim/witness's mental health records
      • o Compelled Disclosure -- Court proceedings for hospitalization or court-ordered psychoanalysis
      • o Crime-Fraud Exception -- Confidential communications made to assist ongoing illegal activity
        • If statement made for purpose of therapy, it's privileged
        • If statement made for crime, it's not privileged
      • o Dangerous-Patient Exception -- Privilege exception to prevent harm by patient to himself or others (Jaffe).
        • ISSUE:
          • Limited View: Therapist has duty to warn if patient is dangerous and may have to testify as part of hospitalization proceeding, but NOT to testify against patient in other proceedings.
          • Broad View: This is total exception. If the person discloses a threat, they no longer have reasonable expectation of confidentiality for that.