Six Categories of Evidence:

 Oral Testimony
o Witnesses speaking from the witness stand
 Three types of witnesses:
 Fact Witness
o People who perceived facts related to the lawsuit and testify about those facts
o “Eyewitnesses”
 Expert Witness
o Use specialized knowledge to interpret evidence or explain it to the jury
o Do not have to have any firsthand knowledge about the controversy in question
o They simply review documents or data compiled by others and apply their
expertise to the secondhand information
 Character Witness
o Do not testify about facts directly at issue in the lawsuit, they only offer
information about the good or bad character of a party or witness
o Do not have to have any firsthand knowledge about the controversy in question,
only knowledge about the character or a party or witness
o Criminal defendants sometimes appear as witnesses, but they do not have to because of the Fifth
Amendment privilege against self-incrimination
 The prosecutor in a criminal case does not appear as a witness
 The government is an abstract entity that cannot take the stand to testify against the defendant
 Real Evidence
o Any physical evidence that a party claims played a direct role in the controversy
 All real evidence must be authenticated – the proponent of the evidence must offer some proof
that the piece of evidence is what they claim it to be
 Ex. A witness testifying that the item is the one she recovered from the defendant’s office
 Documents
o Any type of writing or recording of information
 Ex. Contracts, wills, written information from an eyewitness
 Come from a variety of sources (like oral testimony)
 Ex. Experts, eyewitnesses, parties to the litigation, etc.
o Some written documents are self-authenticating
 There is no need for a witness to confirm their authenticity
 However, a witness almost may never testify orally as to the contents of a document
 The RoE require the party to admit the document itself into evidence unless all copies have been
lost or destroyed
 Demonstrative Evidence
o Sometimes physical evidence, but it is not an object that played a role in the disputed events
 Evidence that is used to illustrate concepts or facts to the jury
 Ex. Charts, tables, pictures, graphs, maps, staged demonstrations by actors, etc.
 Photos and videos are either classified as real or demonstrative evidence – they are not in their
own category
 Stipulations
o Facts agreed to by both parties
o To be admitted as evidence, both parties must agree to its exact language and the judge then reads the
stipulated fact to the jury
 Judicial Notice
o If a fact is indisputably true (ex. That Boston is a city in MA), the trial judge can take judicial notice of the
fact
o To support judicial notice, the fact must either be generally known, or accurately and readily determined
by consulting an impeachable source
  Circumstantial v. Direct Evidence
o Circumstantial evidence is any evidence that requires the jury to make an inference connecting the
evidence with a disputed fact
 It is proof of a chain of facts and circumstances indicating the existence of a fact
o Direct evidence does not require the jury to make an inference
 It is the testimony of a person who asserts or claims to have actual knowledge of a fact
o The law makes no distinction between the weight or value of either type of evidence

Pre-Trial Motions
 Motion for Summary Judgment
 Motion to Suppress
o An argument that the evidence was illegally obtained
o Ex. illegal search and seizure
 Motion in Limine
o “at the threshold”

The Federal Rules of Evidence

 Scope – Rule 101
o The rules apply to proceedings in the United States courts
 Rule 1101 – Applicability of the Rules
 These rules apply in/during trial:
o Civil cases and proceedings, including bankruptcy, admiralty and maritime cases
o Criminal cases and proceedings
o Contempt proceedings
 Except those in which the court may act summarily
 These rules apply to:
o United States District Courts
o United States Bankruptcy and Magistrate Judges
o United States Court of Appeals
o United States Court of Federal Claims
o The District Courts of Guam, the Virgin Islands, and the Northern Mariana
Islands
 Not SCOTUS
 Not Administrative Agencies (except Tax Court)
 Though the agencies may elect to adopt the FoE
o FoE have been adopted by the majority of the states
 Rule 1101 – Exceptions:
 These rules (except for the one on Privilege) do not apply to:
o The court’s determination, under rule 104(a), on a preliminary question of fact
governing admissibility
 Judges make this type of determination whenever a party challenges
the admissibility of evidence
 These rulings occur either before or during trial
o Motion in Limine (before trial)
 Filed to either exclude an opponent’s piece of
evidence or to secure permission to introduce a
potentially contested piece of their own
evidence
o Motion to Suppress
  A motion filed in criminal cases where it is
argued that the opponent’s evidence was
illegally obtained
o Motion for Summary Judgment
 A motion that argues that there is no genuine
dispute to any material fact and the movant is
entitled to judgment as a matter of law
o Grand jury proceedings
o Miscellaneous proceedings such as:
 Extradition or rendition
 Issuing an arrest warrant, criminal summons, or search warrant
 A preliminary examination in a criminal case
 Sentencing
 Granting or revoking probation, or supervised release
 Considering whether to release bail or otherwise
 This is not an exhaustive list
 Rule 1101(c) – Privilege
o Applies to ALL stages of a case or proceeding
 It is never excepted
 Rules regarding evidence originally came from common law
o FoE were created by an advisory committee appointed by the Supreme Court
 Any changes to privilege needs executive approval
 FoE Exclude Evidence for 4 Reasons:
o To protect the jury from misleading information
o To eliminate unnecessary delay and promote efficiency
o To protect a social interest, such as a confidential relationship
o To ensure that evidence is sufficiently reliable
 Rule 103 -Rulings on Evidence
o (a) Preserving a Claim of Error party may claim error in a ruling to admit or exclude evidence only if:
 (1) The ruling admits evidence, a party, on the record:
 (a) timely objects or moves to strike; and
o Objection occurs before the potentially offending evidence emerges fully
o Striking occurs after disputed evidence has already entered the record
 (b) states the specific ground, unless it was apparent from context
o Failure to state a specific ground will not preserve the objection for appeal
 If an attorney sees multiple grounds for objecting to evidence, the
attorney should raise each of the specifics
 Raising one specific objection will not prompt the trial judge to
consider the other grounds and it will not preserve the other
grounds for appeal
o The attorney must also designate the portion of a document or a witnesses’
testimony to which they object
 Unless it is to the whole of it
 (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof,
unless the substance was apparent from the context
 When one party objects to introduction of evidence, the opponent may make an offer of
proof to show the judge what the evidence entails
o If the opponent fails to make this offer, he doesn’t preserve his argument for
appeal
 The party may also opt to withdrawal or rephrase the question
o (b) Not needing to renew an objection or offer of proof
  Once the court rules definitively on the record – either before or at trial – a party need not
renew an objection or offer of proof to preserve a claim of error for appeal
 If the judge has not or does not rule definitively, a party must renew their objections
and offers of proof at trial
o (d) Preventing the jury from hearing inadmissible evidence
 To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not
suggested to the jury by any means
 Ex. A judge will rule on simple objections w/o any further discussion or offers of proof
o If an objection requires further explanation, attorneys will usually approach the
bench
 If a judge agrees with an objection, she will sustain it and exclude the
evidence
 If a judge disagrees with an objection, she will overrule it and admit the
evidence
 Curative Instructions:
o If inadmissible evidence reaches the jury’s ears, the judge may issue a curative
instruction to tell the jury to disregard the evidence
 Rule 105 – Limiting Instructions:
o If the court admits evidence that is admissible against a party or for a purpose –
but not against another party or for another purpose – the court, on timely
request, must restrict the evidence to its proper scope and instruct the jury
accordingly
 If you want one, you must ask the judge for one – the judge is required
to give one

Evidence on Appeal
 Rule 103(a) – Preserving a Claim of Error
o A party may claim error in a ruling to admit or exclude evidence only if the error affected a “substantial
right” of one of the parties
 An evidentiary ruling affects a party’s substantial right only if there is a reasonable probability
that, if the judge had made the correct ruling, the outcome of the case would have been
different
 Appellate courts apply an “Abuse of Discretion” standard to most claims of evidentiary
error even when they review the evidentiary decision de novo
o Most evidentiary missteps only constitute “harmless error”
 Rule 103(e) – Taking Notice of Plain Error
o A court may take notice of a plain error affecting a substantial right, even if the claim of error was not
properly preserved
 To reverse on this ground, courts require an error that is clear and obvious under current law,
affects a party’s substantial rights, and would seriously affect the fairness, integrity or public
reputation of judicial proceedings if left uncorrected

Relevance
 Always assess the relevance of evidence first – Irrelevant evidence is not admissible
o i.e., only relevant evidence is admissible
 Meaning – before you assess character evidence, etc.
 Rule 401 – Test for Relevant Evidence
o Evidence is relevant if:
 It has any tendency to make a fact more or less probable than it would be without the evidence
 An individual piece of evidence can be relevant even if it does not conclusively establish
any fact on its own
 o Does the item of evidence tend to prove the matter sought to be proved?
 This can be very slight
 The fact is of consequence in determining the action
 The fact must be related to the cause of action
o It must be a fact that matters to someone who is trying to decide the case
 Is the evidence a brick that helps build the wall of the cause of action?
 Relevance depends upon the legal theory underlying a case –
under one theory the evidence is relevant, under a different
theory, perhaps not
o An effective advocate can introduce evidence to prove
one fact even if the opponent successfully objected to
using the evidence for another purpose – in this case,
the judge will give a limiting instruction
 Note:
 Stipulations on facts
o The fact to which the evidence is directed need not be in dispute
 If evidence proves that a fact in consequence is more or less probable,
that evidence is relevant even if it addresses a matter that the opponent
concedes or stipulates to
 This allows parties to introduce direct evidence of damaging
facts, despite an opponent’s attempts to minimize the impact of
the facts by conceding them
 Unrelated Misdeeds
o Evidence of unrelated misdeeds are generally irrelevant
 Rule 402 – General Admissibility of Relevant Evidence
o If evidence is relevant, then it is admissible unless a specific rule, statute or constitutional provision bars
its admissibility
 Note:
 Conditional Relevance
o Witness testimony (i.e., credibility) can create a new fact of consequence
 Ex. when the witness is testifying as to an alibi of the defendant
 Negative Evidence
o An argument that the lack of evidence is evidence
 Ex. The government discovered a substantial marijuana field on the
defendant’s property and charged the defendant with possession with
intent to distribute
 At trial, the defendant wanted to introduce evidence of his bank
accounts and tax returns to argue that, if he had transactions
indicating drug sales, the government would have introduced
them to aid their argument and that since they hadn’t, and in
the absence of such transactions, it was evidence that he hadn’t
engaged in drug dealing
 Hindsight
o Ex. An individual uses deadly force against another believing his life is in danger
 Liability in these cases depends on the defendant’s subjective belief
rather than the actual, objective threat
 Therefore, the actual threat posed by the victim is NOT of
consequence to the action and evidence of the victim’s lack of
life-threatening actions towards the defendant was excluded
 “Opening the Door”
o Irrelevant evidence sometimes becomes relevant to rebut claims made by
another party
  Ex. A kid was injured on a ride and he and his parents sued the operator
for negligence. At trial, the kid’s mum stated that the accident caused
financial strain for her family and that the kid’s medical expenses were
in excess of 20k.
 Although insurance is usually irrelevant to the issues disputed at
trial, the mum’s comment opened the door for the defendant to
introduce evidence of the family’s insurance covering their
medical bills
o The mum created a “new fact of consequence”

Prejudice, Confusion, or Waste of Time

 Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
o The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following:
 Unfair prejudice
 The prejudice must be unfair in the sense that the evidence will tempt the jury to decide
the case on grounds different from those the law demands, or it will inflame the jury’s
passions
o Not just that it is damaging to the case for that party (all evidence is prejudicial)
 Confusing the issues, misleading the jury
 Undue delay, wasting time, or needlessly presenting cumulative evidence
o Courts have substantial discretion under this rule
 Appellate courts rarely reverse Rule 403 rulings
o “Substantially Outweighed”
 The balance between probative value and unfair prejudice tilts toward admissibility
 5 factors that frequently influence a judge’s decision when applying Rule 403:
o The extent to which the evidence will arouse emotions or irrational prejudices among the jurors
 Judges are more likely to exclude evidence that triggers strong emotional reactions
o The extent to which the jury might overvalue the evidence
 i.e., taking a piece of evidence which is only slightly relevant and giving it undue weight
o The strength of the connection between the evidence and the elements of the case
 Judges are more likely to admit evidence that is closely related to essential elements of a case,
even when that evidence is highly emotional
o Whether the advocate can prove the same facts through less prejudicial or confusing means
 If alternative routes are available, the judge is less likely to admit the challenged evidence
o Whether it would be possible to reduce prejudice or other harm from introducing the evidence
 If the judge can redact prejudicial components of the evidence or instruct the jury to refrain
from improper uses of the evidence, he will be more likely to admit it
 Damaging Evidence
o Videos and photos
 Not unfair if the affected party has an opportunity to cross-examine the filmmaker about
perspective and editing and to explain to the jury how the videotape might convey an erroneous
impression
 Parties frequently try to make their cases as visual as possible in the courtroom
o Courts maintain a balance between allowing parties to make their cases real
through presenting visual evidence and preventing the parties from abusing the
unrestrained emotions such evidence might release
o Socially Undesirable Behavior
 Parties sometimes attempt to introduce evidence of an opponent’s unconventional lifestyle
hoping that the jurors’ biases will lead them to view the opponent negatively
 Sometimes allowed, sometimes not – depends on relevancy
 o Ex. A defendant’s sexual orientation has no bearing on a negligence claim arising
out of an auto accident, but, lavish lifestyle evidence may have some bearing on
an embezzlement case
 A party can invoke Rule 403 on the ground that the unfair prejudice
resulting from the evidence substantially outweighs any probative value
o Flight
 When a suspect flees or hides from the police, prosecutors frequently offer evidence of that
conduct to show consciousness of guilt
 For this evidence to be relevant, the government must show some link between the
defendant’s conduct and the charged crime
o A defendant may still challenge this evidence as unfairly prejudicial under Rule
403
 Ex. They may argue that the jurors will overestimate the possibility that
flight signifies a guilty conscious or they may point to the fat that some
people flee from police out of fear of false conviction or police brutality
o Stipulations
 A party’s stipulation does not eliminate the relevance of evidence offered by another party
 Facts related to an element of a crime or civil claim are of consequence even if the
parties do not actually dispute that element
o The presence of a stipulation, however, may affect the balance of unfair
prejudice and probative value under Rule 403

Character Evidence; Propensity

o 404(a)(1) – Character Evidence
 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
 Ex. the character witness testifies that, because X was a careful and sober person in the
past, X was more likely to have been careful and sober on the day of the incident
o The prohibition applies to proof of good or bad character; it also applies to
evidence offered about any person, even nonparties and non-witnesses
 Note:
 The Rule only bars character evidence when it is offered to prove particular conduct
through propensity reasoning
o Whenever character itself is an element of a claim or defense, parties may
prove character
 Two Categories of Evidence that are Inextricably Intertwined with a
Charged Offense:
 Evidence of prior acts may be admitted if the evidence
constitutes a part of the transaction that serves as the basis for
the criminal charge; or
o When it is necessary to do so in order to permit the
prosecutor to offer a coherent and comprehensible
story regarding the commission of the crime
o 404(a)(2) – Exceptions for a Defendant or Victim in a Criminal Case:
 (A) a defendant may offer evidence of the defendant’s pertinent character trait, and if
the evidence is admitted, the prosecutor may offer evidence to rebut it
o Ex. a witness can testify about a whether the defendant has a violent
propensity, or is honest and law-abiding – these are character traits
 This rule allows a defendant to introduce evidence of a pertinent
character trait but only what is pertinent to the crime
 Ex. a defendant’s dedication to her family is not pertinent to the
crime of embezzlement
  (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:
o (i) offer evidence to rebut it; and
o (ii) offer evidence of the defendant’s same trait; and
 (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor
o Rule 404(a)(3) – Exceptions for a Witness:
 404(a)(3)
  Evidence of a witness’s character may be admitted under Rules 607, 608, and 609 [see
below]
o A narrow exception to the prohibition of propensity evidence when the
evidence is being offered as the propensity to be a liar
 i.e., character for truthfulness or untruthfulness
 Done through impeachment or attacking
o Rule 404(b) Crimes, Wrongs, or Other Acts:
  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
 This evidence may (subject to Rule 403 balancing) be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident
o 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
 Ex. a defendant’s financial situation is relevant to her motive to steal from her employer
 All character evidence, to be relevant, must bear on a pertinent trait
 Ex. a person charged with a crime of violence may offer evidence of her character for
peacefulness under Rule 404(a)(2)(A), but that same evidence would not be admissible
had she been charged with embezzlement
 Reverse 404(b) Evidence:
 The admissibility of reverse 404(b) evidence depends on a straightforward balancing of
the evidence’s probative value against considerations such as undue waste of time and
confusion of the issues (under the category of identity)
o Even unfair prejudice to the prosecution (the Government)
 In Stevens, the court found that the reverse 404(b) evidence offered by
the defendant – that someone else committed a crime similar to the
crime in which he was charged – posed no risk to the government, and
had only a minimal impact if any as to wasting time or confusing the jury
 Rule 405 – Methods of Proving/Offering Evidence of a Character Trait
o When character evidence is offered to prove a defendant’s character (ex. propensity to be violent) and
that, therefore, the defendant was likely to have been acting in accordance on this occasion, character
evidence can only be proven on direct with reputation or opinion evidence, not with specific instances
of conduct
 Note:
 An attorney examining a character witness must lay a foundation showing that the
witness has sufficient knowledge to offer an opinion about character or reputation
 By Reputation or Opinion
 When evidence of a person’s [defendant or plaintiff] 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
 o On cross-examination of the character witness, the court may allow an inquiry
into relevant specific instances of the person’s [defendant or plaintiff] conduct
 i.e., the prosecutor could ask an accused murderer’s character witness
about a violent incident in the defendant’s past
 However:
o The attorney can only ask about acts that are relevant
to the character trait described by the witness
o Note:
 A cross-examiner cannot ask a character witness about speculative or
imaginary acts; the attorney must have a good faith belief that the
incidents occurred
 By Specific Instance or Conduct
 When a person’s character or character trait is an essential element of a charge, claim,
or defense, the character or character trait may also be proved by relevant specific
instances of the person’s conduct
o NOTE:
 Self-defense allows introduction of prior bad acts of the victim as an
aggressor if articulated by the defendant as to his/her state of mind at
the moment of the crime (fear of imminent bodily injury or death)
 Meaning, it’s not character evidence
o NOTE:
 When the person claiming self-defense offers
evidence of his state of mind, he is not offering
propensity evidence and thus not “opening the
door” for a prosecutor to admit evidence of the
defendant’s propensity for violence
 Rule 406 – Evidence of Habit
o Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that, on a
particular occasion, the person or organization acted in accordance with the habit or routine practice
 Habit is benign/routine activity but it’s not quite character evidence because it is a specific and
repeated response to a specific situation, and it is semi-automatic behavior
 The court may admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness
o The risk of prejudice is far lower with evidence of habit than with character
evidence
o NOTE:
 Evidence of other assaults is inadmissible to prove the instant one
 Regular drinking does not qualify as a habit under Rule 406
 Two prior instances of breach of contract are not sufficient to establish a routine practice under
Rule 406

Impeachment
 A lawyer impeaches a witness by casting doubt on the witness’s accuracy or trustworthiness
o Saying the Witness was Mistaken:
 Casting doubt on the witness’s perception, memory or narrative accuracy by questioning the
witness’s eyesight, age, hearing, etc. as long as the evidence is relevant under Rule 401 and can
survive a Rule 403 weighing test
o Saying the Witness Deceived:
 Non-Character Impeachment Types:
o Contradiction by Conflicting Evidence
  Ex. a lawyer can impeach witness A’s claim that a traffic signal was red
by calling witness B to say it was green
o Rule 613 – Impeachment by Prior Inconsistent Statement
 Rule 613 allows a party to impeach a witness by a prior inconsistent
statement; a statement inconsistent with her trial testimony
 However, the statement is being offered to impeach the
witness, not for the truth of the matter asserted, so a limiting
instruction is required
o If the statement were being offered for the truth of the
matter asserted, it would be under the requirements of
Rule 803(5)
 Ex. evidence that witness A once before said the light was green tends
to impeach her trial testimony that it was red
 Note:
o You can use Grand Jury testimony to impeach
o If an individual remained silent during a period of time
when she would reasonably be expected to make a
statement, under Rule 613, that silence can be
interpreted as “inconsistent” with current at trial
testimony
o Evidence of Bias
 Bias describes the relationship between a party and a witness which
might lead the witness to slant his/her testimony in favor of, or against,
a party
 Character-Based Impeachment Types:
 Rule 404(a)(3) specifically permits propensity evidence of a witness’s character as
provided in Rules 607, 608, and 609:
o Rule 607:
 Either party may attack a witness’s credibility, including the party that
sponsored the witness
o Rule 608(a):
 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 be testimony in the form of an opinion about that
character
 Evidence of truthful character is admissible only after the
witness’s character for truthfulness has been attacked
 In order to offer reputation evidence under this rule, a party must
establish that the character witness is qualified by having an
acquaintance with the witness, his community, and the circles which he
has moved as to speak with authority of the terms in which the witness
is generally regarded
 This evidence must pertain to truthfulness or untruthfulness
and not peacefulness, temperance, or anything else
o Rule 608(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
o You are stuck with whatever answer the witness gives
 The witness cannot give specific act evidence
either
  On cross-examination either party may ask a witness about
specific instances of the witness’s conduct if they are probative
of character for truthfulness or untruthfulness of:
o The witness; or
o Another witness whose character the witness being
cross-examined has testified about
 No requirement of notice to an opposing party
o Rule 609:
 (a) 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 imprisonment for more than one year,
the evidence- a felony and not a misdemeanor:
o (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
 Evidence of a past convictions of felonies which
are not crimes of falsity (ex. aggravated assault)
are admissible if the probative value of the
evidence in proving the defendant’s propensity
for dishonesty outweighs its unfair prejudice to
the defendant
o (B) Must be admitted in a criminal case in which the
witness is a defendant, if the probative value of the
evidence for truthfulness outweighs its prejudicial effect
to that defendant under the stricter weighing test (than
403)
o The 609 Balancing Test Factors (more strict than Rule 403):
 The nature of the crime
 Crimes of violence are less probative for truthfulness
 The time of conviction and the witness’ subsequent history
 Similarity between past crime and the charged crime
 The more similar the evidence of past crime is to the current
offense, the more likely it is to be prejudicial
 Importance of the defendant’s testimony
 The more critical the defendant’s testimony is to his case, the
more hesitant a court should be in admitting the impeaching
evidence
 The centrality of the credibility issue

 (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 (i.e.,
crimes of falsehood)
o Ex. crimes that the commission of which involves some
element of deceit or falsification bearing on the witness’
propensity to testify truthfully
 Perjury, embezzlement, fraud, etc. (Under the
Fed. Rules, shoplifting does not constitute a
crime of falsehood)
o “Readily determine”
  Ex. There are statutory elements to the charged
crime, there is an indictment, or a statement of
admitted facts (if any), or jury instructions (if
any)
o Evidence admitted under 609(a)(2) does not have to
have a balancing test under Rule 403 unless 609(b), (c),
or (d) applies
 Note:
 Under Rule 609(a)(2), any conviction for a crime of falsity that
occurred within ten years is automatically admissible
 (b) if more than 10 years has passed since the witness’s conviction or
release from confinement for it, whichever is later, evidence of that
conviction is admissible only if:
 Its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect; and
 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

Social Policy Rules

 Rules 407 – 411 = Social Policy Rules
o Each of these rules furthers goals of two types:
 Promoting a socially valuable activity, like plea bargaining or purchasing liability insurance, by
protecting those who engage in that activity from evidence that might be used against them
 Protecting from trial evidence that tends to cause a high degree of unfair prejudice while
contributing little probative value
 These rules apply Rule 403’s balancing approach
o These rules require attorneys to identify the purpose of the evidence they and their opponents offer
into evidence
 Rule 407 – Subsequent Remedial Measures
o When measures are taken that would have made an earlier injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove:
 Negligence
 Culpable conduct
 A defect in a product or its design
 A need for warning or instruction
o Rule 407 doesn’t completely bar evidence of subsequent remedial measures
 The admissibility of this evidence depends on the purpose for which a party offers the evidence
– a court may admit this evidence purposes such as:
 Impeachment
o A trial judge will most likely admit the evidence when (1) a witness makes a
specific representation that conflicts with the subsequent remedial measure, (2)
the witness makes an absolute declaration like “the product was perfectly safe,”
or (3) the witness making the statement was personally involved in
implementing the remedial measure
 If disputed- proving ownership, control, or the feasibility of precautionary measures
o In these circumstances, evidence that the party did subsequently remedy the
danger is strong evidence that the change was feasible and is admissible
 These exceptions only apply if disputed by the opposing party
 The plaintiff cannot introduce evidence of subsequent remedial
measures to prove ownership or control unless the defendant
somehow denies that she owned or controlled the instrument
 o Same for feasibility
 Ex. If a defendant claims that he did not own or
control the instrument that injured the plaintiff,
the plaintiff may introduce the evidence of
subsequent remedial measures as evidence that
the defendant did own or control the
instrument
 Ex. A party disputes feasibility when it claims
that it could not have remedied a dangerous
situation because of economic, physical, or
other constraints- or making something more
dangerous
 Hedging:
 Acknowledges possibility but offers explanation
of why it didn’t do the remedial measure in the
first place = does not dispute feasibility
o Rule 407 bars only evidence of remedial measures that occurred after the injury occurred
 Rule 407 targets the specific situation in which pending litigation may discourage remedial
measures
 Rule 407 excludes evidence of subsequent remedial measures only when one party
offers evidence of repairs made by another party
o i.e., Rule 407 does not exclude evidence of any measures taken by non-parties
o Rule 407 applies to all types of liability
 Ex. Negligence, strict liability, etc.
Limiting Instructions (Rule 105) and Unfair Prejudice (Rule 403)
 If the judge admits evidence of subsequent remedial measures for a purpose other than proving liability, the
defendant can request a limiting instruction
o The judge must give that instruction if the party timely requests it
 The defendant may believe that a limiting instruction is ineffective in preventing unfair prejudice
 To address this, defendants may urge to exclude under Rule 403, even if the evidence
was admissible under Rule 407
o The defendant must show that the evidence’s unfair prejudice (the chance that
the jury will inappropriately use the evidence as proof of liability) substantially
outweighs its probative value (the utility the evidence has in proving disputed
ownership, control, or feasibility)
 Rule 408 – Settlements and Offers to Compromise
o The primary rationale behind Rule 408 is a policy justification – to ensure that parties are not inhibited
from making offers or statements during the settlement negotiation process
 i.e., we want early resolution of lawsuits
 Because of such, Rule 408 shields most of that process (offers/settlements) from
admission at trial
o What is excluded under Rule 408?
 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
contradiction:
 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
 Conduct or a statement made during compromise negotiations about the claim
 Essentially:
 Rule 408 applies to all parties
 o A party cannot introduce any evidence of settlement offers or negotiating
statements, not even evidence of their own offers or statements
 Rule 408 defines compromise offers and acceptances very broadly
o It includes things like whether someone was rolling eyes, yawning crying, etc.
 Rule 408 protects all conduct or statements made during compromise negotiations, not
just the operative offers and acceptances
o What is Admissible under Rule 408?
 For Rule 408 to apply, the disagreement between parties must have matured into a claim, and
the parties must dispute some aspect of the claim
 If both parties agree that liability exists and also agree on the extent of damages, the
rule doesn’t shield their discussions
o A claim arises when a complaint has been filed and not before such occurrence
 Most judges agree that once a party has hired an attorney and
threatened to sue, you have a claim
 For Rule 408 to apply, the statements or conduct must occur during “compromise negotiations”
or while “compromising or attempting to compromise the claim”
 Factors that judges consider when deciding whether a statement occurred during
compromise negotiations:
o Whether the statement was unilateral or occurred during bilateral discussions
 Whether either party made a concrete offer
 Whether attorneys were involved in the discussions
 Whether the parties used phrases like “without prejudice” that are
commonly used during settlement discussions
 Rule 408 applies to all settlement discussions, even those conducted by parties who are no
longer involved in the case
 Preexisting Evidence:
o A party cannot immunize evidence by discussing it during a settlement
conference
 Things that are prepared in anticipation of the settlement conference or
for the settlement conference will be barred by Rule 408
o The court may admit this evidence for another purpose, such as:
 Proving a witness’s bias or prejudice
 A witness who has settled a claim with one of the parties may develop a bias in favor of
that party and a litigant may try to introduce evidence of the settlement to demonstrate
that bias
 Negating a contention of undue delay
 Proving an effort to obstruct a criminal investigation or prosecution
 This list is not exhaustive
o Rule 408 excludes statements and conduct made during compromise negotiations only when a party
offers that evidence for one of three purposes:
 To prove the validity or amount of a claim
 To disprove that validity or amount
 To impeach a witness’s testimony through a prior inconsistent statement or contradiction
o Rule 408 and Criminal Cases
 The rule applies to criminal as well as civil cases
 Any criminal settlement negotiations (plea bargaining) are not covered by Rule 408
 In most criminal trials, neither the prosecutor nor the accused may introduce evidence from
prior civil settlement negotiations for any of the purposes prohibited by Rule 408
 Exception:
o Settlement discussion held during a civil regulatory, investigative, or
enforcement action conducted by a government agency
  But this exception only applies to other types of statements and
conduct occurring during negotiations – NOT to evidence of offers,
acceptances, or promises from the civil settlement negotiations
 Actual settlement = inadmissible
 Statements/Conduct during settlement discussions = admissible
o What Rule 408 permits to be introduced as evidence, a judge may still determine under Rule 403 that
admitting the evidence would cause unfair prejudice substantially outweighing any probative value
 Rule 409 – Offers to Pay Medical Expenses
o Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury
 Unlike Rule 408, there doesn’t need to be a claim or dispute and the statement need not be
made in any part of compromise negotiations
o The rule only excludes the offer to pay for, promise to pay, or the actual furnishing of- medical expenses
 It does not exclude any other statements that were made contemporaneously with the offer
 Ex. “Golly. That accident was entirely my fault. Just give me a call, I have good insurance
that will cover all of your medical bills.”
o Rule 409 would protect only the part of the statement that is an offer to pay
medical expenses and not the first part of the sentence where fault was
admitted
o The rule bars admission of covered evidence only when offered to prove liability
 If a party offers evidence of medical payments to prove some other fact of consequence, the
evidence is admissible
 Ex. Kling slipped on the ice in a Walmart parking lot and sued Walmart for negligence. At
trial, Walmart argued that King was feigning her injuries. King sought to introduce
evidence that, immediately following her accident, the Walmart manager offered to pay
for her medical treatment. Walmart objected to the evidence under Rule 409
o The evidence will be allowed under Rule 409 because King is not introducing it
to prove Walmart’s negligence – she is introducing it to show that the fall
injured her; the manager’s offer to pay for her medical treatment is evidence
that she was, in fact, injured
 Walmart would need to decide if they want a limiting instruction issued
by the Judge at this point
o HOWEVER:
 Even if evidence is ultimately permissible under Rule 409, Rule 403’s balancing test may still
ultimately preclude its admission
o Note:
 Rule 409 only protects promises to pay “medical, hospital, or similar expenses resulting from an
injury”
 Courts have construed “similar expenses” to include fees for all kinds of medical
treatment and physical rehabilitation
o It does NOT encompass offers to pay lost wages, repair an automobile, or
compensate an injured party for other types of economic or property damages
 Rule 410 – Excludes Criminal Plea-Bargaining Evidence
o 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:
 A guilty plea that was later withdrawn
 A criminal defendant who agrees to plead guilty retains complete discretion to
withdraw that plea at any time before the court accepts is
 A criminal defendant can also withdraw a guilty plea after acceptance
but before sentencing if a “fair and just reason” exists for its withdrawal
 A nolo contendere plea
  Thus, ensuring that a civil litigant cannot use nolo please for preclusive effect
(issue preclusion)
 A statement made during a proceeding on either of those please under Federal Rule of
Criminal Procedure 11 or a comparable State procedure
 The Rule 11 proceeding referred to here encompasses both the out-of-
courtroom bargaining process and any in-court discussions or acceptance of the
plea
 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
 This subsection protects statements made during plea bargaining, but only
when the bargaining produces no plea or a withdrawn one
o Note:
 Though the evidence protected by Rule 410 arises in criminal prosecutions, Rule 410 bars
admission of this evidence in either civil or criminal trials
 Rule 410 precludes this evidence only when introduced against the person who, as a
criminal defendant, participated in the plea-bargaining process
 Rule 410 prohibits any party from introducing evidence against the defendant
who participated in the plea bargaining but allows the defendant to introduce
evidence from that process against others
o Two Exceptions to Rule 410:
 The Court may admit a statement described in Rule 410(a)(3) or (4)
 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
 The judge has discretion here to decide on the degree of harm to the defendant
and whether the first statement is misleading without evidence of the second
 In a criminal proceeding for perjury or false statement, if the defendant made the
statement:
 Under oath
 On the record, and
 With counsel present
o What are “Plea Discussions” under Rule 410?
 A discussion that occurs with an attorney for the prosecuting authority
 A suspect who volunteers an immediate confession to the arresting police officer is not
engaged in “plea discussions” – that is a confession
 Many courts use a two-part test to determine if there was a plea-bargaining
discussion:
 The defendant had an “actual subjective expectation to negotiate a
plea”
 Ex. wanting to make a deal for cooperation, concrete terms,
charges filed, involvement of prosecutor, etc.
 That expectation was reasonable given the totality of the objective
circumstances
o Sentencing and Rule 410
 The federal rules of evidence do not apply to sentencing proceedings
 Prosecutors frequently introduce statement from plea-bargaining sessions to inform the
court’s sentencing decision
o Waiver and Rule 410
 Criminal defendants may waive their rights under Rule 410 and thus agree that his statements
during the plea-bargaining process will be admissible at trial if the negotiations break down
o Rule 410 and Rule 403
  Although Rule 410 only bars plea-bargaining evidence that is offered against a defendant, courts
often invoke Rule 403 to exclude similar evidence offered against the prosecution
 Defendants sometimes attempt to introduce evidence of the prosecutor’s willingness to
plea-bargain to suggest that the prosecutor considered the case weak
 Defendants may also invoke Rule 403 when Rule 410 fails to exclude evidence
offered against them
 Rule 411 – Liability Insurance
o Evidence that a person was or was not insured against liability is not admissible to prove whether the
person has acted negligently or otherwise wrongfully
 The court may admit this evidence for another purpose, such as:
 Proving a witness’s bias or prejudice or
 Proving agency, ownership, or control
o Any purpose other than proof of liability is permissible under Rule 411 as long as
the purpose is relevant to the dispute
o Policy = to encourage individuals and organizations to obtain liability insurance
 Liability insurance is a type of insurance that compensates the policy holder for specified types
of damages owed to other people
 Ex. car insurance or medical malpractice insurance
o Rule 411 only applies to liability insurance, but parties may urge the court to exclude other types of
insurance under Rule 403
 Insurance usually has very low probative value and evidence of insurance can be quite
prejudicial
o Courts are split whether indemnity agreements qualify as liability insurance under Rule 411
 Rule 403 is still available if a court does not include such agreements as liability insurance

Putting a Witness on the Stand

 Who can testify?
o Rules 601, 602, 605, 606
 How do witnesses testify?
o Rules 603, 604
 Rule 601 – Competence
o Every person is competent to be a witness unless these rules provide otherwise
 Competence is the default rule and another rule must specifically deny competence to exclude a
witness from the stand
 As long as a witness appreciates his duty to tell the truth, and is minimally capable of
observing, recalling, and communicating events, his testimony should come in for
whatever its worth
o It is then up to the opposing party to dispute the witness’ competence
 Very broad
o 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
 Whenever state law supplies the elements of a civil claim or defense, the court must determine
competency under the state’s law
 Many states maintain a few exceptions to the modern presumption of competence:
o Being under a certain age, “dead man’s statutes”
o Under the common law capacity of “competence”
 Narration, understanding the importance of telling the truth, memory, and perception
 Deficient capacity goes to the weight of evidence and not the admissibility
o If a defendant lacks any of these capacities, then they are incompetent
o Child Witness – Competency Hearing generally held
 Rule 602 – Personal Knowledge and Laying the Foundation
 o A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter
 A witness can only testify about matters they have seen, heard, or otherwise sensed themselves
 They cannot speculate about matters beyond their knowledge
 However, Rule 602 does not limit witnesses to eyewitness accounts- circumstantial evidence can
also be relevant to a case
o Evidence to prove personal knowledge may consist of the witness’s own testimony
 The witness must testify that she was at a certain place at a certain time and saw certain things
 A judge will exclude testimony if the witness could not possibly have seen what she
claims
o Some judges will add commonly known facts to a witness’s testimony to find
that the witness has sufficient personal knowledge to testify
o This rule does not apply to an expert witness’s testimony under Rule 703
 Rule 603 – Oaths and Affirmations
o Before testifying, a witness must give an oath or affirmation to testify truthfully
 It must be in a form designed to impress that duty on the witness’s conscious
 If a witness lacks the ability to understand the truth or to appreciate the seriousness of
testifying in court, then the judge may find that the witness is incapable of taking the
oath or affirmation
o If a witness refuses to take the oath, the judge will exclude the witness’s testimony
 No magic words are required for the oath, it accommodates any set of religious beliefs or non-
belief
 Rule 604 – Interpreters
o An interpreter must be qualified and must give an oath or affirmation to make a true translation
 Rule 605 – Judges
o The presiding judge may not testify as a witness at the trial
 A party need not object to preserve the issue
o The judge cannot offer commentary from the bench that amounts to testimony either
 Ex. when the judge’s comments offer new information to the trial that a witness has not
contributed
o This also prohibits judges from reporting evidence related to experiments they have conducted or visits
they have made to a site related to the case
o This applies to judge’s law clerks and other employees
 Rule 606 – Jurors
o At the trial, a juror may not testify as a witness before the other jurors at trial
 If a juror is called to testify, the court must give a party an opportunity to object outside the
jury’s presence
o During an inquiry into the validity of a verdict or indictment
o This rule does not bar a juror from testifying as a witness about something she observed in a previous
trial
 It only covers jurors testifying at the trial of the case in which the juror is sitting
 However, the juror’s testimony is not allowed to attack the prior verdict
o Note:
 The Federal Rules of Evidence do not prohibit counsel from testifying in an ongoing trial,
however, ethical rules discourage it

Examining a Witness
 How To:
o Introduce the witness to the jurors
 Name, address, marital status, etc.
o Lay the Foundation
  Establish personal knowledge
 See above Rule 602
o Allow witness to tell her story
 Rule 611 – Mode and Order of Examining Witnesses and Presenting Evidence
o (a) The Court should exercise reasonable control over the mode and order of examining witnesses and
presenting evidence so as to:
 Make those procedures effective for determining the truth
 Avoid wasting time; and
 Protect witnesses from harassment or undue embarrassment
o (b) Cross examination should not go beyond the subject matter of the direct examination and matters
affecting the witness’s credibility
 Lawyers conducting cross-examination usually cannot ask a witness about topics or incidents
that were not addressed during direct examination – those questions are “beyond the scope”
 The judge is given discretion to expand the scope of cross-examination – i.e., give the
attorney permission to ask about new matters on cross-examination
o Ex. if the witness is about to leave town and it would be difficult to recall the
witness during another part of the case
 However, the cross-examiner must inquire about the new matters as if
on direct examination (meaning, the attorney can’t use leading
questions)
 Leading questions are allowed in cross examination otherwise
 Parties are allowed to ask questions affecting witness credibility during cross-examination
regardless of the subject matter of the direct testimony or the questions asked of the witness on
direct
o (c) Leading questions should not be used on direct examination except as necessary to develop the
witness’s testimony
 Ordinarily, the court should allow leading questions:
 On cross-examination; and
 When a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party
 Clarification is not a leading question
 If the question repeats specific facts that the witness has already stated and asks for
more detail, the question simply follows up on the witness’s answer; it does not suggest
a new answer
o Leading Questions:
 A statement that is followed by a request for confirmation that the statement is true
 Ex. “The defendant shot the victim in the head, didn’t he?”
 To identify a leading question, always ask:
 In this context, does the question suggest a specific answer?
 Q: What happened next?
 A: I saw the defendant come into the room.
 Q: Did the defendant shoot the victim in the head?
 Leading. Suggests a “yes” answer, the witness has not described
anything about the defendant’s actions in the room yet, the
lawyer is the one suggesting that the defendant shot the victim
in the head
 Q: What happened next?
 A: I saw the defendant shoot the victim.
 Q: Did the defendant shoot the victim in the head?
 This question seeks clarification, but it still might be found
leading by the judge
o Permitted Leading Questions – necessary to develop witness’s testimony:
  To establish pedigree information
 The witness’s pedigree includes uncontested points like educational background and
occupation
 To direct a witness’s attention to a relevant place and time
 To help shift a witness’s attention to a new chapter of testimony
o Ex. “Now directing your attention to November 27 th, 2018, did you take a final
exam for Constitutional Law that day?”
 To help a witness who is hesitant, confused, or has trouble recalling
 Particularly for young witnesses or those who were victims of physical or sexual abuse
who may be reluctant or intimidated to testify
o Ex. (direct examination of 11-year-old child) Q: And what happened next, Emily?
o A: My nose got hurt
o Q: How did it get hurt?
o A: It was hurt with a kick. Someone kicked me in the face.
o Q: Emily, who kicked you in the face?
o A: (no answer)
o Q: Emily, was it your mother who kicked you in the face?
o A: Yes.
o Permitted Leading Questions – Hostile Witnesses
 A hostile witness is any witness who is evading questions or otherwise being uncooperative to
such an extent that it is interfering with the eliciting of testimony
 They may be very kind and polite to the attorney conducting the examination, they just
don’t want to give answer to the questions put to them
 Common 611 Objections
o Argumentative
 The attorney is drawing inferences or making conclusions
o Asked and Answered
 The attorney has already asked, and the witness has already answered
o Assumes a Fact Not in Evidence
 There is a factual assertion imbedded in the question
o Beyond the Scope
 Cross-examination topic is beyond the scope of direct, or redirect is beyond the scope of cross
o Calls for Narrative
 The question is too broad; the witness will tell a story instead of answering a specific question
o Calls for Speculation
 The question asks the witness to speculate about what may have been happening beyond the
realm of the witness’s perception
o Compound Question
 The question tries to elicit more than one answer at a time
 An objection to the form of a question
o Harassing the Witness
o Improper Characterization
 The attorney is repeating testimony back to the witness but altering it in certain ways
o Leading Question
o Non-Responsive Answer
o Vague Question
 Rule 412 – Rape Shield
o There is a general prohibition against evidence of victim’s other sexual behavior or sexual predisposition
 Protects privacy interests and encourages victims to come forward
o Three Exceptions in Criminal Cases:
 The court may admit the following evidence in a criminal case:
  Evidence of specific instances of a victim’s sexual behavior, if offered to prove that
someone other than the defendant was the source of the semen, injury, or other
physical evidence
 Evidence whose exclusion would violate the defendant’s constitutional rights
 Evidence of specific instances of a victim’s sexual behavior with respect to the person
accused of the sexual misconduct
o If offered by the Defendant to prove consent
o If offered by the Victim for any purpose
o In Civil Cases:
 Evidence of a victim’s other sexual behavior or sexual predisposition is excluded
 Unless the evidence can survive a Reverse 403 Standard
o The probative value of that evidence substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party
 This rule applies to any case involving alleged sexual misconduct, including:
 Tort claims based on rape
 Sexual harassment claims
o You don’t need sexual contact to allege sexual harassment
 Rules 413-415 – Propensity Evidence and Rape Shield Law
o Allow propensity evidence in cases of sexual assault and child molestation
 Ex. If D is on trial for molesting a child, the state can introduce evidence of prior molestations,
even if they did not result in a conviction
 The state can explicitly argue to jury: D molested a child in the past, so he is likely to
have molested this child
o Rationales:
 People have special propensities to commit sexual assaults or child
molestations and the crimes are harder to prove
o Note:
 Rule 403 remains applicable to evidence admitted under these rules, but it is difficult for courts
to exclude evidence
 Uncertainty of prior behavior and length of time are the best arguments in getting
exclusions under Rule 403
 Rule 614 – Court’s Calling or Examining a Witness
o The court may call a witness on its own or at a party’s request
 Each party is entitled to cross-examine the witness
o The court may examine a witness regardless of who calls the witness
o A party may object to the court’s calling or examining a witness either at that time or at the next
opportunity when the jury is not present
 Rule 615 – Excluding Witnesses
o At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’
testimony
 The court may also do so on its own (sua sponte)
o But, this rule does not authorize excluding:
 A party who is a natural person;
 An officer or employee of a party that is not a natural person, after being designated as the
party’s representative by its attorney;
 Ex. a party that is an organization which has an employee representing it in the
courtroom
 A person whose presence a party shows to be essential to presenting the party’s claim or
defense; or
 Ex. an expert witness
 A person authorized by statute to be present
Refreshing a Witness’s Memory
 An attorney can refresh a witness’s recollection with a document or other item only by approval of the court
o Five Steps to Use a Writing to Refresh a Witness:
 Establish that the witness does not recall the answer to a question
 Describe the writing you wish to use to refresh the witness’s recollection and ask if that writing
would refresh the witness’s recollection
 Show the writing to the witness
 The witness will examine the writing and put it aside/give it back to the attorney
 Ask whether the writing has refreshed the witness’s recollection or helped her to remember
 The witness should answer yes and then she can proceed to answer the original
question
 Either before or during this process, the attorney must be sure to give the opposing counsel a
copy of the writing
o The document can be something the witness wrote herself (notes, form that was filled out, statement
given to the police) but it does not have to be – any document can be used as long as the witness states
that it will help her remember the necessary information
 Ex. a newspaper or written record by a third person, audio tapes, video tapes, photographs, etc.
o The Adverse Party may introduce a writing used for refreshment into evidence even if the writing would
not otherwise be admissible
 The jury may only use the writing as evidence to assess the witness’s credibility unless the
writing is admissible on other grounds
 The judge will give the jury a limiting instruction
 The “refreshing” party may also introduce the writing into evidence, but only if the writing is
already admissible under the Rules
 Often the writing is not admissible to the “refreshing” party because most documents
are hearsay
o To admit the writing, the “refreshing” party would have to identify an exception
to the hearsay rules
 Rule 612 – Writing Used to Refresh a Witness’s Memory
o (a) This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
 While testifying; or
 Before testifying, if the court decides that justice requires the party to have those options
o (b) An adverse party is entitled to:
 Have the writing produced at the hearing,
 To inspect it,
 To cross-examine the witness about it, and
 To introduce in evidence any portion that relates to the witness’s testimony
o If the producing party claims that the writing includes unrelated matter, the court must examine the
writing in camera, delete any unrelated portion, and order the rest be delivered to the adverse party.
o (c) If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order
 If the prosecution does not comply in a criminal case, the court must strike the witness’s
testimony or – if justice so requires – declare a mistrial
 Rule 613 – Witness’s Prior Statement
o 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 the adverse
party
 Extrinsic evidence of a witness’s prior statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given the opportunity to
examine the witness about it, or if justice so requires
o You don’t get the statement in substantively under this Rule, its only for impeachment purposes
Hearsay
 Basic idea: Who is a better source of information? Someone who has the information directly, or someone who
learned about it second hand – ovbs someone with direct information/personal knowledge
o Secondhand testimony doubles the risk of faulty perception, memory, clarity, and truthfulness
 Secondhand reports also eliminate the fact finder’s opportunity to cross-examine the original
speaker and deprives the fact finders of the opportunity to assess the credibility of the declarant
in court
 You want to be able to assess credibility
 There’s a greater chance of error for indirect information
 You can’t test through the testimony with questions for indirect information
 The statement in court is made under oath
o Does the witness personally know that the substance of the statement is correct? If yes, the statement
is not hearsay
 Rule 802 – The Rule Against Hearsay
o Hearsay is not admissible unless any of the following provides otherwise:
 A federal statute
 These rules, or
 Other rules prescribed by the Supreme Court
o Hearsay means a statement that:
 The declarant does not make while testifying at the current trial or hearing; and
 A party offers in evidence to prove the truth of the matter asserted in the statement
o Declarant Definition:
 A person who makes a statement based on personal knowledge
 A declarant who testifies at trial or hearing is a witness; the statement is not hearsay
o When a declarant makes a statement while testifying at trial, the declarant
speaks under oath in a formal setting and the jury can assess the declarant’s
credibility, opponents have an opportunity to cross-examine him
 Since the declarant speaks from personal knowledge, the chances of
error are reduced
 A declarant who speaks outside the courtroom is just a declarant
o If a declarant makes a statement based on information outside the courtroom
and someone repeats the statement at trial, it is hearsay
 The “Hearsay” Four – how to answer a hearsay essay question:
o Is the witness referring to a statement that occurred outside the courtroom?
 This triggers the hearsay analysis
o Are you sure it’s a “statement?”
 A statement means:
 A declarant’s oral assertion, written assertion, or nonverbal conduct – if the person
intended it as an assertion
o An assertion is any action undertaken by the declarant that is intended to
communicate a fact – even non-verbally (has to be a human) – a human made
assertion
 Ex. Wilbur, a witness for the plaintiff, testifies that Dora visited him at
6:00p.m. on April 2nd and that he asked Dora if it was raining outside.
Wilbur states that Dora says nothing but shakes a wet umbrella at him
 Although shaking an umbrella is not normally an assertion, in
the circumstances, the action carried an assertive meaning
o Non-assertive behaviors are not statements
 If the declarant did not intend to communicate any meaning through his
or her action, the action is not an out of court statement
  Ex. Wilbur never asked Dora about the weather, instead, he
testifies that when Dora came in the door, she was folding up a
wet umbrella = not hearsay
 Look carefully at some actions for hidden assertions
 Ex. an officer goes to a suspect’s house and asks the suspect’s
mother, who was the only one at home, to give him the clothing
that the suspect was wearing the day the crime had been
committed. The mother hands over a red sweatshirt. At trial,
the officer attempts to introduce the sweatshirt into evidence.
The defense objects as hearsay.
o The mother’s conduct in handing over the shirt is
hearsay. The gesture of handing it over had the implicit
assertion that “this is the shirt the suspect was wearing
on the day of the crime.”
 The assertion occurred outside of the
courtroom and was offered for the truth of the
matter asserted- that the suspect did wear the
shirt on the day in question
 Similarly, if an audiotape, photo, or video conveys verbal or nonverbal
assertions for the truth of the matter asserted, those assertions are
statements subject to the hearsay rule
 When evidence consists of information conveyed by a machine,
the judge will explore whether that information incorporates a
human assertion
o If the machine generated information according to its
own internal processes, then the machine’s output is
not an assertion
 Ex. a watch, a thermometer reading, etc.
 Ex. a burglar unintentionally triggering a home
alarm is not a statement – i.e., not hearsay
o If the machine’s output involves a human assertion, the
hearsay rules apply
 Ex. receipt with server’s name listed (the server
had to type in his employee code in order for
the receipt to show his name)
o Ask: Do you need to assess the actor’s sincerity in order to rely upon the
conduct?
 If so, the conduct contains an assertion and the hearsay rules apply
o Is the party offering the statement to prove the truth of the matter asserted?
 Is a party using an out of court statement as part of the witness’s personal knowledge?
 Not hearsay ^
o If the witness has firsthand knowledge of facts, the statements are not hearsay
 Ex. “I had lunch with Jim on Monday afternoon”
 Or is the party using the statement to show something that the out of court declarant knew?
 Hearsay^
o Ex. “Jim said Scrooge and Marley is fine financially”
 Examples of Out of Court Statements that do not depend on the truth of the matter asserted
(i.e., out of court statements that are admissible):
 Knowledge of the speaker
o Ex. the defendant in a personal injury case mentioned to a neighbor that a
dangerous condition existed on his property
  The statement is hearsay if offered to prove the dangerous condition
existed, but not hearsay if offered to simply show the defendant’s
knowledge
 Notice to a listener
o Ex. a nurse in a med mal case might testify that she heard the surgeon explain
the risks of surgery to the plaintiff to show that the patient was fully aware of
any risks
 Publication in a defamation case
 Effect on the listener
o Many witnesses testify that another person’s statement prompted them to act
in a particular way
 Most of the time this is not hearsay
 Legally binding statements
o Ex. in a contracts case, the fact that the defendant said “I accept” is relevant to
prove that he agreed to a contract
 The truth of the statement doesn’t matter; even if the speaker was
lying, the words establish acceptance
 Notices of Breach
o Are hearsay if introduced to prove the underlying facts of the breach, but not
hearsay if offered to prove the notice was given
 Admissible Hearsay is subject to the Rule 403 balancing:
 A judge will admit evidence that is admissible for one purpose as long as any unfair
prejudice does not substantially outweigh probative value
o The judge may offer a limiting instruction to the jury
o Does an exception apply?
 All of the hearsay exceptions rest on circumstances of:
 Heightened reliability
o Certain circumstances make hearsay more reliable
 Heightened need
o Can’t get the statement anywhere else
 These exceptions allow the statement to come in substantively (i.e. not just for
impeachment purposes)
o FOUR CATEGORIES OF HEARSAY EXCEPTIONS
 Rule 801(d) defines two types of out of court statements as “not hearsay” – meaning, these
things can be used as substitute testimony for a witness at trial (substantively- as opposed to
when prior statements are used for impeachment purposes only)
 Prior statements by declarant/witnesses
o Prior statements that are inconsistent with the witness’s courtroom testimony
 Five Requirements:
 Declarant testifies at trial
 Declarant/Witness is subject to cross examination about the
prior statement
 Prior statement is inconsistent with courtroom testimony
 Prior statement is given under penalty of perjury
 Prior statement is given during proceeding
o Grand Jury testimony, prior trial testimony, and
deposition testimony are proceedings
 Interrogations conducted by police and police
reports are not proceedings
 The witness must be present, under oath, and respond willingly
to questions to be subject to cross examination
 o Witnesses with genuine lack of memory, or witnesses
who feign lack of memory are still subject to cross
examination under the inconsistent prior statement
exception
 Witnesses claiming privilege are not subject to
cross examination
 Prior statements that are consistent with the witness’s courtroom
testimony
 Five Requirements:
o Declarant testifies at trial
o Declarant/Witness is subject to cross
o Prior statement is consistent with courtroom testimony
o Offered to rebut charge of fabrication
 This exemption does not require that the prior
statement occurred under oath or at a
proceeding
 This exemption does require the party to show
that the witness’s credibility has been attacked
and that the prior consistent statement has
probative value in rehabilitating credibility
 These statements are offered to disprove an allegation that the
witness is lying
o Therefore, the witness MUST have made the
statements before the motive to lie or improper
influence arose
 Timing is important – when did the motive to
live come up?
 Pretrial identifications of a person
 Three Requirements
o Declarant testifies at trial
o Declarant/Witness is subject to cross
o Prior statement was identification of person
 Even if the declarant can no longer identify that
individual at court
 Can an officer testify that victim identified his or her attacker?
Not likely.
o Not contemporaneous and analysis, so not presence
sense impression
o Not excited utterance
o The victim is not subject to cross examination
 Rule 804 applies to declarants unavailable to testify in court
o A declarant is considered to be unavailable as a witness if the declarant:
 Refuses to testify about the S/M despite a court order to do so
 Is exempted from testifying about the S/M of the declarant’s statement because the court rules
that a privilege applies
 Who holds the privilege and has the power to waive it?
 When does the privilege apply?
 What information does the privilege cover?
 Is the privilege absolute or qualified?
o Absolute
 An opponent cannot overcome them
 Exceptions may apply
 o Qualified
 An opponent can pierce the privilege
 Federal Privileges
o The right against self-incrimination which is guaranteed by the 5 th Amendment
 Applies only to testimony that might subject the individual to criminal
liability
 Protects people, not organizations
 The privilege is absolute
 Prosecutors, however, can overcome the privilege by granting a
witness immunity – a guarantee that the information learned
won’t be used against the witness in any future criminal
proceeding
o If the testimony cannot be used against a witness, she
cannot rely on the privilege against self-incrimination
 The right against self-incrimination applies only to testimony
 Not to items from the witness’s body
o The privilege does not prevent the prosecutor from
compelling an individual to give fingerprints or blood
samples or from getting placed in a police lineup
o The Attorney-Client Privilege
 The client holds the attorney-client privilege
 The attorney often asserts it on the client’s behalf
 Protects all confidential communications between a client and her
attorney that are made for the purpose of legal advice or
representation in any context
 Ex. at trial, grand jury proceedings, pretrial hearings, discovery
o The privilege only protects communications, not the
underlying information of the communications
 Purpose:
 The privilege protects initial consultations with a lawyer, even if
the parties do not pursue the representation
o The services must relate to law rather than business,
accounting, politics, etc.
 If an attorney inadvertently discloses information covered by the
privilege during a federal procedure, the disclosure does not waive the
privilege if the holder:
 Took reasonable steps to prevent disclosure
 Took reasonable steps to rectify the error
 To waive the privilege, a client must reveal the content of her
communications with a lawyer, not merely recite the same facts that
she told the lawyer
 The privilege is absolute
 Exceptions:
o Crime-fraud
 If the series of the lawyer were sought or
obtained to enable or aid anyone to commit or
plan to commit what the client knew or
reasonably should have known to be a crime or
fraud
o Malpractice action
  An attorney can disclose privileged information
if necessary to defend against a malpractice
action
o Joint representation
 If joint representation breaks down, and one
client sues another, then any client may
disclose the confidential communications that
occurred during the representation
 Corporate Setting and Clients
 Upjohn Factors:
o Managers provide information directly to counsel to
help the company secure legal advice
o The managers knew this was the purpose of supplying
the information
o They provided the information in response to a
superior’s request
o The communications related to mattes within the scope
of the manager’s duties
o Other employees could not provide this information to
counsel
o All parties treated the communication as highly
confidential
 Control-Group Test
o The only clients protected by the attorney-client
privilege are those corporate officers authorized to act
on advice given by the company’s attorney
o The Work-Product Privilege
 Shields the attorney’s own observations, reflections, and plans that the
attorney does in anticipation of litigation
 Does not cover legal advice for other purposes, ex. drafting a
will
 When work product consists solely of facts about the dispute, the
privilege is qualified
 An opposing party may obtain access to this type of work
product by demonstrating that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means
o When the work product consists of mental impressions,
conclusions, opinions, or legal theories of a party’s
attorney or other representative concerning the
litigation, the privilege is absolute
o The Spousal Privilege
 Testimonial privilege
 Applies only when one spouse is a criminal defendant or the
target of a grand jury investigation
 The privilege is not restricted to confidential communications, it
shields any information that one spouse may offer against
another
 Exists only during the life of the marriage; if the marriage ends
the spouse may not invoke this privilege
 The witness spouse holds the privilege
 o The witness spouse may waive the privilege and choose
to testify against the spouse
 Confidential communications
 Applies in both civil and criminal cases
o Regardless of whether either spouse is a party to the
litigation
 Both spouses control the communication privilege
o Neither spouse may waive the privilege without the
other’s consent
 Survives the end of a marriage
 Protects only confidential communications that the spouses
share during the marriage
o Not discussions that occurred before marriage, non-
confidential statements made during the marriage, or
conduct the spouse observed during the marriage
 Intrafamilial Crime Exception
 Testifies to not remembering the S/M (real or feigned)
 This exception requires that the witness must testify that he has absolutely no
recollection of the subject matter – lack of memory of the details is not sufficient to
show unavailability
 Cannot be present due to death or a then existing physical or mental illness
 Is absent from the trial or hearing and the statement’s proponent has not been able, by process
or other reasonable means, to procure him
 Ex. when a party cannot find the declarant after making a diligent search, or declarant
refuses to come to court and is currently outside the court’s jurisdiction
o The fact that the declarant is outside the court’s jurisdiction, alone, is not
sufficient to make the declarant unavailable
 The party attempting to introduce the declarant’s statement must use
any reasonable means (in addition to serving a subpoena) to persuade
the declarant to attend trial
 Ex. a civil litigant might offer to pay the declarant’s travel
expenses to testify at trial
 Also:
 The proponent must use reasonable means to take the
declarant’s deposition if the declarant will not attend the trial
o Forfeiture Exception
 The section 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 testifying
 Some courts require that you prove the witness’s unavailability
o Ex. to establish lack of memory/refusal to testify/and sometimes privilege
o Rule 804(b)(1) – Admissibility of Former testimony
 Requires unavailability
 Requires that the prior statement given at a trial, hearing, or lawful deposition
 Whether given during the current proceeding or a different one
 Requires that the testimony is now offered against the current opponent who had – or, in a civil
case, whose predecessor in interest had – an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination
 The opposing party need not have actually conducted an examination in the prior
proceeding; just only that he had an opportunity to do so
 Note on Opportunity:
 In a criminal case, the party with the opportunity to question the declarant in the prior
hearing must have been the same party as the opposing party in the current case
 o In a civil case, a less strict requirement of “predecessor in interest” satisfies the
opportunity requirement
 Courts look to the similarity of issues between the prior case and the
current one and the purpose for which the prior testimony was given
 Note on Similar Motive:
 If the stakes in the previous proceeding were different than in the current one, the
opposing party might not have cross-examined the witness in the same manner that the
party would employ at the current hearing
o If so, the evidence is inadmissible hearsay
o Rule 804(b)(2) – Dying Declarations
 Requires unavailability
 But not actual death
 Only applies to homicide criminal prosecutions and civil proceedings – not most criminal
prosecutions
 Ex. someone who thought they were dying (and didn’t die) and its an assault
prosecution = does not apply
 The declarant believes subjectively that death is imminent
 If the declarant has a settled, hopeless expectation that death is near at hand, the
statement will qualify
 Statement has to concern the cause or circumstances of death
 Ex. nature and extent of the injuries; not to confessions of indiscretions and love
o Rule 804(b)(3) – Statement against interest
 Statements against interest are not excluded by the rule against hearsay if the declarant is
unavailable as a witness
 A statement that was against interest at the time made
o Against Interest:
 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, if offered in a criminal case as one that tends to expose the declarant to criminal
liability:
o If it is supported by corroborating circumstances that clearly indicate its
trustworthiness
 The judge determines whether corroboration is sufficient
 Note:
 The statement must be against the declarant’s interest “when made”
o If the declarant makes the statement that seems innocuous when made, the
statement falls outside of the exception
 Even if later circumstances render the statement incriminating
 An objective standard governs the court’s determination of whether a statement was
sufficiently against the declarant’s interest:
o Whether a reasonable person in the declarant’s position would have falsely
made the incriminating statement
o Rule 804(b)(6) – Forfeiture
 By causing the unavailability of a witness, the opposing party waives the right to object to the
witness’s prior statement as hearsay
 The rule against hearsay does not exclude 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
o The declarant must be unavailable
 o The opposing party must have wrongfully caused the declarant’s unavailability
(ex. coercion, undue influence, or pressure)
 The rule does not apply to parties who used legitimate means such as
offering information to a witness about a privilege
o The opposing party must have intended to make the declarant unavailable
 The opposing party must be motivated in part by a desire to silence the
witness
 Ex. a husband who kills his wife to collect the proceeds of her
life insurance prevents her from testifying, however, that was
not the husband’s intent and the exception does not apply
 If a party acts wrongfully with the intent to silence a witness in one
case, that intent carries over to other cases – the declarant’s statements
are admissible against the party in all future cases in which the
wrongdoing makes the declarant unavailable
o The wrongdoing does result in the witness’s unavailability
 Note:
 The proponent only needs to show that the opposing party tacitly agreed to the
wrongdoing (acquiesced to it) not that the opposing party personally committed the
wrongful act or even caused another to commit the act
o Persuasion and begging aren’t “wrongdoing”
 Note – Forfeiture in Abuse Cases:
 Does prior abuse show intimidation?
o Judge makes preliminary determination
 Rule 803 – Exceptions to the Rule against Hearsay – Regardless of Whether the Declarant is Available as a
Witness
o The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness
 Rule 803(1) – Present sense impression
 A statement describing or explaining an event or condition, made as the event occurs or
immediately after the declarant perceived the event
o Does not apply to more complex analyses or interpretations
 The time lapse must be short enough that the speaker has no time to
create a lie
 A judge may admit a statement as occurring immediately after
an event if there is good reason for the delay
o Ex. searching for a phone
 Rule 803(2) – Excited utterance
 A statement relating to a startling event or condition, made while the declarant was
under the stress of excitement that it caused
o A subjective standard for the particular declarant
 The utterance must relate to the startling event to be admissible
 The utterance must occur during the startling event or
immediately after so that the person is still in an excited state
o Again- subjective to the particular declarant
 Written statements do not usually constitute an excited
utterance
o You can have both an excited utterance and a present
sense impression
 Rule 803(4) – Statement made for medical diagnosis or treatment – a statement that:
 Is made for and reasonably pertinent to medical diagnosis or treatment and describes:
o Medical history
o Past or present symptoms or sensations
 o Their inception or their general cause
 This requirement is subjective – the patient must actually be seeking medical care
o The statement must be reasonably pertinent to medical diagnosis or treatment
 The rule does not include statements that assign fault or blame
 Statements of fault are not pertinent to medical treatment and
will be redacted
o Ex. patient indicates that truck ran red light and
smashed car; leg pinned against seat for 15 minutes
before rescue
 The first part of the sentence would not be
admissible
 Abuse Prosecutions:
o Ex. patient describes abuse to doctor; patient refuses to
testify in court
 The statements to the doctor admissible to
prove that the abuse occurred
o Some courts allow statements that identify the alleged
perpetrator of child sexual abuse or adult victims of
domestic violence as being relative to the treatment
 The nature of the harm of emotional abuse is
intricately lined up with the identity of the
abuser
 Unlike the excited utterance or present sense impression exceptions, this exception has
no time limit
o The declarant may also refer to external facts if those facts are pertinent to
obtaining medical care
 The declarant can be any speaker
o Ex. family members/husband/wife/etc.
 Excluding doctors and/or medical staff communicating with each other
 The person seeking medical care does not have to communicate with a physician or
other medical professional
o The exception’s language embraces statements made to anyone as long as the
declarant made the statement for the purposes of medical diagnosis or
treatment
 Ex. statements to hospital attendants, ambulance drivers, or even
members of the family
 The touchstone is whether the statement was made by and to
someone for medical diagnosis or treatment
 This rule also includes statements made to doctors who offer diagnoses in connection
with litigation rather than treatment
o The Rule encompasses statements by the patient or those close to the patient,
not statements made by the doctors/medical professionals
 Most courts also assume the rule encompasses statements made to
obtain treatment for psychological conditions
o Rule 803(3) – State of Mind Exception
 Rule 803(3) allows a declarant’s out of court statements about her current state of mind (not
past), mental condition, or physical condition to be admitted for the truth of the matter asserted
 Parties may use a declarant’s state of mind as circumstantial evidence of the declarant’s
prior or subsequent actions
o The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness
 Then existing mental, emotional, or physical condition
  A statement of the declarant’s then-existing state of mind (such
as motive, intent, or plan)
o Ex. I’m hungry, sleepy, angry, planning to cut class
 The declarant’s then existing 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
o Ex. my leg was hurting an hour ago; I was really
miserable last night
 However, a statement like: “I remember how hot I felt yesterday” is
admissible under the exception to show that, at the moment the
declarant spoke, she remembered her feelings of the previous day
 But the statement is not admissible under this exception to
prove that the declarant felt hot the previous day
 Statements about external facts or events don’t qualify as expressions of a “state of
mind” admissible under Rule 803(3) – the Rule applies only to internal facts
o But those statements sometimes are admissible to prove state of mind
 Words like “I believe,” “I think,” or “I remember” might trick you into
concluding that a declarant’s words are admissible under Rule 803(3),
but these words are often red herrings
 Most often they introduce statements about external facts or
events
 Examples:
o “I feel rich.”
 State of mind
o “I hate Melissa. I wish she had never been born.”
 State of mind
o “I believe the danger to our house is now past”
 Admissible to show that jane believed the danger was past
 Not admissible to show that the danger was, in fact, past
o “I remember that the fire reached our property on Tuesday”
 Admissible to show that he believed the fire reached his property on
Tuesday
 Inadmissible to show that the fire reached his property on Tuesday
o “I love you.”
 State of mind
o “I won the lottery”
 External condition, not a state of mind; also, a past condition
o I am rich
 External condition, not a state of mind
 Forward Looking Statements = State of Mind
 Examples:
o “I plan to pay off my loans by selling this cocaine.”
 Future plans
o “I’m going to take a trip around the world”
 Future plans
o “I’m going to rob the First National Bank on Thursday.”
 Future plans
o I’m going to pick up some pizza on the way home.”
 Future plans
o “Jerry and I are going to rob the First National Bank on Thursday.”
  Depends on the application of the Hillmon Doctrine
 AR allows admissibility without corroboration
 The Hillmon Doctrine
 Sally Hillmon is suing insurance company for payment of her husband’s life insurance
policy– life insurance company states that the man who perished is not the man named
in the policy, that it was a conspiracy
o Life insurance company wanted to introduce letters written by Walters (the man
it thought was the recovered body and not Mr. Hillmon) that showed Walters
state of mind – that at the time the letters were written, Walters intended to
leave Wichita and travel toward Colorado
 His expressed intention offered some evidence that his body was the
one discovered about 100 miles west of Wichita
 The Rule of Hillmon allows evidence of intention as tending to
prove the doing of the act intended
o Can we introduce state of mind referring to future actions of another?
 i.e., future plans with third parties w/o corroboration?
 AR allows, including other courts
o Some courts allow only with corroboration
o Future plan + third party exam question = make sure
you discuss both sides of the Hillmon Doctrine
o Rule 803(5) – Recorded Recollection
 A record that:
 Is on a matter the witness once knew about but now cannot recall well enough to testify
fully and accurately
 Was made or adopted by the witness when the matter was fresh in the witness’s
memory; and
 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
 A party might decide to do this if the document revealed some unreliability in its
content
 Six requirements for admissibility:
 The out of court statement must appear in a record
o A memo, report, or data compilation
 Does not have to be a writing but it must be memorialized in some way
 The witness testifying in court either made or adopted that record
 The declarant/witness must testify that she once had personal knowledge
o And that she made or adopted the record when she had that knowledge
 Ex. not signing a police report = not adopted
 The witness must have made or adopted the record at a time when her knowledge was
fresh
o Does not require contemporaneous notetaking, only that the witness genuinely
had fresh knowledge or memory of the information at the time it is recorded
 The witness must testify that at the time she made or adopted the record, the info was
accurate
 The witness must no longer recall the information contained in the record well enough
to testify fully and accurately
o This demonstrates that the hearsay is necessary, and that direct testimony is
not available
 Differences between Rule 803(5) and Rule 612:
 Rule 803(5) requires the witness made or adopted the record when the matter was
fresh in the witness’s memory
 o Rule 612 allows any writing that will help the witness remember, the witness did
not have to adopt or make it
 Rule 803(5) allows the witness to read record information from a document
o Rule 612 only allows the witness to look at the document and then orally testify
from memory
 Rule 803(5) = hearsay exception
o Rule 612 = not hearsay, the witness is testifying directly from memory
 Rule 805 – Hearsay within Hearsay
o Allows hearsay within hearsay to be admitted as long as each out of court statement is admissible under
an exception – if one statement doesn’t, the entire statement is inadmissible
 Ex. harry was stabbed by an intruder in his apartment. His roommate Dale came home to find
Harry lying on the ground, weak, but still lucid. “Call an ambulance,” Harry said, “I was stabbed
in the stomach with a switchblade knife.” Dale became quite upset and dialed 911 in an excited
state, exclaiming to the operator: “Please come quickly! My friend Harry says he was stabbed in
the stomach with a switchblade!”
 The 911 operator is called to the stand to testify about what Dale told her about Harry’s
statement.
o The 911 operator’s testimony is admissible to prove the truth of the matter
asserted by Harry. Dale’s statement to the operator constituted an excited
utterance. Harry’s statement to Dale about being stabbed in the stomach was
made for the purpose of medical diagnosis or treatment.
 Rule 803(6) – Business Records
o Organizational records have an extra indicia of reliability and the information contained in these
documents are more needed than information contained in many other kinds of hearsay
 Business = pretty expansive; for or not for profit
 NOT household records no matter how detailed
 The Rule:
 Records of a regular conducted activity – a record of an act, event condition, opinion, or
diagnosis if:
o The record was made at or near the time by – or from information transmitted
by – someone with knowledge;
o The record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit
o Making the record was a regular practice of that activity
o 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
o The opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness
 Six Key Elements:
o The exception applies to any record
 The information does not have to be a fact, it could be a conclusion,
analysis, or opinion, as long as the document complies with the other
conditions in the rule
o The personal knowledge requirement requires that information admitted under
the rule be recorded by a person with personal knowledge of the data or a
person who received that information from someone else in the organization
with personal knowledge
 The information must be recorded at or near the time that the data
arose
 Within a reasonable time as guided by the needs of the
organization itself
 o A qualified witness must introduce the record into evidence
 This witness is often the document’s custodian – the person who
maintains the record for the organization
 Although any person with the necessary knowledge is qualified
to introduce the document
 The qualified witness must testify orally or through a written certificate
about all of the requirements to lay the foundation for admission of a
business record
o The business record is not admissible if the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness
 The opponent of the evidence offered as a business record bears the
burden of showing that the record lacks trustworthiness
 The party offering the records must establish the other
elements of the exception, but the court will assume records
are trustworthy unless the opponent argues otherwise
o Note:
 Watch out for double hearsay in connection with business records
 Statements by customers and third parties are admissible only if they fall within another
hearsay exception
o They do not qualify under 803(6) even when they appear in business records
 Rule 803(8) – Public Records
o Make sure you have a public record
 If you do have a public record, it must satisfy 803(8), not just 803(6)
 Records of the office’s activities are generally admissible
o The office’s activities:
 Ex. records of the money it has spent, the personnel it has hired, the
meetings it has held, the votes it has taken, and the decisions it has
made
 The records are generally admissible if the record sets out a matter observed while
under a legal duty to report
o Ex. inches of rainfall or number of travelers passing a checkpoint = matters
observed under legal duty to report
 Note that “under a duty to report” means that third party observations
are excluded and reports that exceed an agency’s authority do not fall
within the exception
 Excluding, in a criminal case, a matter observed by law enforcement personnel; or in a
civil case or against the government in a criminal case, factual findings from a legally
authorized investigation
o Ex. observations made by the police are not admissible against the defendant;
reports of a traffic jam are not admissible against the defendant
 Exception: when the police observations are truly ministerial (i.e., not
adversarial)
o Under this exception, the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness
 Meaning, an opponent may attack the admissibility of any public record on the ground that the
record lacks trustworthiness
o This exception only applies to public organizations, not private organizations
 Ex. democratic/republican party = not public government office, simply a private public policy
organization
 Rule 801(d)(2) – Statement by Opposing Party Exemption
o An opposing party’s statement is not hearsay
 The statement must be offered against an opposing party and:
  Be made by the opposing party in an individual or representative capacity; or
o A party may not introduce his/her own statements as evidence under this
exception to the hearsay rule
 Is one that the party manifested that it adopted or believed it to be true
 Was made by a person whom the party authorized to make a statement on the subject
 Was made by a party’s agent or employee on a matter within the scope of that
relationship and while it existed
o Adopting a Statement:
 Authorized Speakers
 The exception for an opposing party’s statement includes statements by a person whom
the party authorized to make a statement on the subject
 By Silence
 An individual’s silence can constitute an adoptive admission – but the circumstances
must be such that a reasonable person would speak up rather than remain silent
o Note:
 A criminal defendant’s silence in the presence of police officers or other
investigators must be interpreted with care because of Miranda rights
 By Signature
 One common way to adopt a statement is to sign a document prepared by others
 By Agent
 An agent is someone who is authorized to act for a party on a particular matter
o Ex. attorneys, employees
 This exception includes statements that an agent or employee makes to outsiders, as
well as those within the agency or employment context
o Note – Independent Contractors
 Independent contractors who perform discrete services for an employer
with the same degree of supervision as an in-house employee,
sometimes qualify as agents
 Statements by these agents will qualify under the exemption as
long as the statements are within the scope of their agency
relationship
o Note:
 This exemption includes any statement made by an opposing party
 The statements may be inculpatory, exculpatory, or neutral
o The statement does not have to be an admission
 The exception is so broad it doesn’t even require that the opposing
party have personal knowledge of the truth of his or her statement
o Note:
 Rule 403 and Statements by Opposing Party
 A party seeking to exclude their statements may still argue unfair prejudice under Rule
403
o Ex. if there is evidence that the statement is extremely unreliable – but this is
rarely established
 Party’s Availability is Immaterial
 The hearsay exemption for party-opponent statements does not require availability
o Even when a criminal defendant invokes his 5 th amendment rights, the
government may introduce evidence of the defendant’s out of court statements
o Multiple Parties – “Same-Side” Statements
 Admitting a Defendant’s Out-of-Court Statement in the Presence of Codefendants:
 Is the statement independently admissible against other defendants?
o E.g., did the co-defendants adopt the statement, authorize the declarant-
defendant to speak for them, or was the declarant-defendant their agent?
  If yes = statement is admissible against all defendants, no redactions or
limiting instruction necessary
 If no =
 Civil case?
o The statement is admissible against defendant who
made it only; judge will issue a limiting instruction
and/or redact the statement
 Criminal case?
o Declarant takes the stand?
 Statement is admissible against defendant who
made it; judge will issue a limiting instruction
and/or redact the statement
o Declarant does not take the stand?
 The 6th amendment Bruton is effective
 The Spill-Over Effect
 Rule 801(d)(2)(A) allows a litigant to introduce a party’s statement against that party,
but it does not authorize admission of the statement against anyone else
o The judge will protect those other parties from any spillover effect of the
statement in a civil case by:
 Offering a limiting instruction;
 Redacting the statement; or
 Excluding the statement under Rule 403
o In a criminal case – Bruton Protections Apply:
 When one defendant makes a statement, but others do not, Bruton
gives the prosecuting attorney three options:
 The prosecutor can redact the defendant’s admission so that it
does not implicate any other defendants
 The prosecutor can sever and try each of the defendants
separately, introducing the admission against the defendant
who made it at that particular defendant’s trial
 The prosecutor can forego use of the statement altogether
o Note:
 Bruton applies in criminal cases because you have to worry about the 6 th
Amendment Confrontation Clause, which guarantees the right of a
defendant to confront the witnesses against him
 This is the right to cross-examine those witnesses against him
 If the statement only implicates a codefendant after being linked with
other evidence, introduction of the statement does not violate Bruton
 The 6th Amendment creates concerns only when the out of
court statement explicitly refers to a codefendant
o A statement that explicitly names a codefendant and
implicates that codefendant on its face violates Bruton
o A statement that simply replaces the codefendants
name with blanks or other obvious marks of deletion
violates Bruton
o Coconspirators Statements
 A coconspirator who speaks in furtherance of a conspiracy communicates on behalf of all
members of the enterprise
 The coconspirator who made the statement need not even be present at the trial
 An out of court statement is admissible against a party if it is:
 Made by a coconspirator
 o A coconspirator is anyone involved in cases of criminal activity involving more
than one person
 This is much broader than the definition for criminal conspiracy
 Meaning, a prosecutor can still introduce the statements of
coconspirators even when it lacks evidence to convict the
individuals of a criminal conspiracy
 During the course of the conspiracy
o The conspiracy begins as soon as two or more people agree to pursue a
common goal
 An arrest almost always ends a conspiracy
 Though not all the time – the arrest of two conspirators but not
the others in the same conspiracy might not end the rest of the
conspiracy
o If coconspirators are still active in trying to conceal the
crime, then the conspiracy is still active and statements
made by one coconspirator during the cover-up are
admissible against all members of the conspiracy
 But when members of a conspiracy disband and
go their separate ways, concealing the
wrongdoing in the sense that they keep quiet
about it, the conspiracy does not continue; a
former coconspirator who brags about a
completed crime to a friend can have the
statement admissible against him, but not his
former coconspirators
 In furtherance of the conspiracy
o A statement that advances the underlying joint enterprise speaks for all of the
participants and is admissible against them
 Confessions and brags to people outside the conspiracy are not
statements made in furtherance of the conspiracy
 Note:
 Preliminary Determinations and Coconspirators:
o The judge decides whether the factual conditions support admission of a
statement under the coconspirator exception
 However, the content of the statement alone is not sufficient to support
admissibility
 Some other evidence must also help establish the conspiracy for
the statement to be admissible
o THE SAME LIMIT APPLIES TO DETERMINATIONS OF
AUTHORITY AND AGENCY
 Even if a statement does not satisfy the coconspirator exception, it may satisfy one of
the other “opposing party statement exemptions” or even one of the other exceptions
to the hearsay rule
 Rule 104 – Preliminary Determinations
o Is this an issue of law or an issue of fact?
 Judge decides issue of law
 Issue of factual dispute
 Must have a factual dispute (otherwise its an issue of law)
o Rule 104(a)
 The judge must decide any preliminary question about whether a witness is qualified, a privilege
exists, or evidence is admissible
 These are questions of law as well as many factual disputes
 o Ex. “What is a crime involving a dishonest act or false statement under Rule
609?”
 Note:
 Preliminary factual disputes that determine whether a Rule of
evidence applies to the particular evidence fall under Rule
104(a) is merely a question of law
o Ex. whether, under the mercy rule, evidence is pertinent
 If there exists a factual dispute, it’s either going to fall under the
104(a) or (b) standards:
o A factual dispute that relates to relevance falls under
Rule 104(b)
o A factual dispute that does not relate to relevancy falls
under Rule 104(a)
 The judge is not bound by the federal rules of evidence when making these
determinations (except those on privilege – those rules apply)
 The Rule 104(a) (only if there is a factual dispute) Standard:
 These factual determinations determine whether a policy reason exists to exclude
otherwise relevant evidence
o Ex. did the repair occur after injury?
 The judge resolves the factual issue on her own, applying the preponderance of the
evidence standard
o Rule 104(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
 The 104(b) Standard:
 The judge decides whether a reasonable jury could find the disputed fact/issue by a
preponderance of the evidence on her own
o If the evidence passes that low threshold, the jury resolves the factual issue
 Ex. could the eyewitness see the incident; when a party claims that a
witness lacks personal knowledge
 Note:
 A judge is more likely to exclude weakly supported evidence under Rule 403 even if a
judge concludes that the evidence survives scrutiny under Rule 104(a) or (b)
 Note:
 Preliminary Determinations about Hearsay:
o Questions of law = the Judge
o Questions of fact = the Judge but under Rule 104(a) standard
 The party offering the evidence bears the burden of proof

The 6th Amendment and Hearsay

 Crawford v. Washington – the Confrontation Clause:
o A criminal defendant (not applicable in civil cases and does not restrict evidence the defendant
introduces against the state) has the right to cross-examine any person who makes a “testimonial”
statement against him
 Out-of-Court Statements must satisfy both the hearsay rule and the Confrontation Clause
 You must satisfy the hearsay rule first – if the statement cannot get in under a hearsay
exception then there is no need for a constitutional analysis
o Violation of the Confrontation Clause results in the evidence being barred
o When is a Statement “Testimonial”:
 A testimonial statement is a solemn declaration or affirmation made for the purpose of
establishing or proving some fact
 They are statements made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial
o Testimonial statements have a primary purpose of creating an out-of-court
substitute for trial testimony
 Formal proceeding/solemnity
 Government involvement
 Statement made to prove a fact related to a crime
 Examples of Testimonial Statements:
 Sworn statements before grand juries, at pretrial hearings, during trial, and at post-trial
proceedings are all testimonial
 When statements are made in response to official interrogations by law enforcement
officers, they are testimonial
o Primary Purpose Test
 Statements to law enforcement outside of traditional
interrogation/other statements focus on the “primary purpose” of the
speaker’s interaction with law enforcement:
 If the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution, the statement is testimonial
o If the primary purpose is to enable police assistance to
meet an ongoing emergency, the statement is not
testimonial
 This test is an objective one – the judge asks what a reasonable
person would have believed under the circumstances as the
primary purpose of the interaction
o The judge must look at all of the circumstances
surrounding the statement to determine this
 Ex. (Clark Factors) Was the declarant ever told
that these statements would be used to gather
evidence? Was the declarant talking about
events as they were happening, during an
ongoing emergency? Were the statements
necessary to enable the officers to resolve the
present emergency? Was it a child making the
declaration?
 Examples of Non-Testimonial Statements:
 Statements to private parties
 Business records are not testimonial
o Unless the business record was created for use at trial
 Statements in furtherance of a conspiracy
 The defendant’s own statements
 Statements admitted to prove a point other than the truth of the matter asserted
 Lab Reports?
o Lab reports are testimonial if made under circumstances that would an
objective witness to believe that the statement would be available for use at a
trial
o A lab report is not testimonial if it fails both the William’s plurality “targeted
individual” standard and Justice Thomas’s “formality” standard
 Justice Thomas:
 A highly formalized report prepared
 o Ex. one that has a notarized affidavit, or a “certificate of
analyst”
 William’s Plurality:
 A lab report is testimonial if it has the primary purpose of
accusing a targeted individual of engaging in criminal conduct
o When is a declarant unavailable?
 The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay
rules and the declarant is available as a witness
 Because the defendant then has the chance to cross examine the declarant about the
prior testimonial statement
 If the hearsay statement is testimonial and the declarant is established to be unavailable at trial,
the prosecutor may only offer the statement if the defendant had a prior opportunity to cross-
examine the declarant
 Unavailability
o The state usually has little trouble proving a declarant’s unavailability:
 All five categories of unavailability listed in Rule 804(a) satisfy the 6 th
Amendment requirement
 Ex. a spouse invoking spousal privilege
 Though the state must always make a good faith effort to secure a
witness’s testimony
 Prior Opportunity to Cross-Examine the Declarant:
o Similar to the standard under Rule 804(b)
 If defense counsel did have an opportunity to question the declarant,
the defendant must have had a similar motive to cross-examine the
witness at a prior proceeding for it to suffice
o What constitutes a prior opportunity to cross examine?
 Use standard for former testimony 804(b)
o Exceptions to Confrontation:
 Dying Declarations
 Dying declarations require no confrontation
 Forfeiture by Wrongdoing
 If the defendant acted with the specific purpose of preventing a witness from testifying,
and is successful, the statement is admissible under the Confrontation Clause
o Hearsay Exceptions that NEVER raise Confrontation Clause Issues:
 Rule 801(d)(1) – A Declarant-Witness’s Prior Statement
 Rule 801(d)(2) – An Opposing Party’s Statement
 Rule 803(4) – Medical Diagnosis or Treatment Statements
 However, if the statement was made for the purpose of obtaining diagnoses related to
litigation; or, statements of identity of abusers, those statements could be found to be
testimonial and subject to the Confrontation Clause
 Rule 803(5) – Recorded Recollection
 Rule 803(6) – Business Records
 Rule 804(b)(1) – Former Testimony
 Rule 804(b)(2) – Dying Declarations
 Rule 804(b)(6) – Forfeiture by Wrongdoing
o Hearsay Exceptions that almost always raise Confrontation Clause Issues:
 Rule 803(1) and (2) – Present Sense Impressions and Excited Utterances
 Rule 803(2) – Then-Existing Emotional, Mental, or Physical Condition
 Rule 803(8) – Public Records
 Rule 804(b)(3) – Statement Against Interest
 Statements against interest made to private parties probably are not testimonial, but
those made to government agents often are