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Types of Courtroom Evidence

A. Types of evidence
• Evidence: testimony, writings, material objects or other things presented to the senses
that are offered to prove the existence or nonexistence of a fact.
1. Oral testimony-witnesses testifying to the truth
ii. Victims
iii. Eyewitnesses
iv. Expert witnesses
v. Character witnesses
2. Documents-documentary evidence encompasses any type of
3. Real evidence-any physical evidence that a party claims played a
direct role in the controversy.
4. Demonstrative Evidence- physical, but is not an object that played
a role in the disputed events (illustrates concepts)
5. Photos, Videos and Audiotapes
6. Circumstantial Evidence-(phrase not used by FRE)-any evidence
that requires the jury to make an inference connecting the evidence with a disputed
7. Direct evidence-requires no inferential bridge; it directly
establishes a contested fact (no distinction between circumstantial and direct
evidence. Circumstantial evidence can support a verdict as effectively as direct)
II.Four W’s of Federal Rules of Evidence
A. Why
1. FRE allow parties to introduce weak evidence for whatever it may
be worth
2. The rules assume that opposing counsel will expose the flaws in
evidence or that jurors will discredit it.
3. Evidentiary rules exclude evidence to:
Protect the jury from misleading information
Eliminate unnecessary delay and promote efficiency
Protect a social interest such as confidential relationship
B. Who
1. Courts initially developed more evidentiary rules as a part of common law
2. Supreme court appointed Advisory Committee (lawyers, judges, professors) to draft
an evidence code for the federal courts
3. FRE comes from notes written by the Advisory Committee and Committee reports
and other legislative history from Congress
C. Where
. The rules apply to proceedings held in federal courts
. Where the rest of the rules apply
a. Rule 101: Scope: These rules govern proceedings:
i. In the courts of the United States
ii. Before United States bankruptcy judges
iii. United States magistrate judges
iv. To the extent with the exceptions stated in rule 1101
b. Rule 1101: Applicability of Rules (a) Courts and Judges
i. United states district courts
ii. District court of Guam
iii. District court of the Virgin Islands
iv. District court for the Northern Mariana Islands
v. United States courts of appeals
vi. United States Claims Courts (adjudicates private claims against the US
vii. United States bankruptcy judges
viii. United States magistrate judges
ix. In the actions, cases and proceedings and to the extent hereinafter set forth
3. Which Courts are left out
a.Supreme Courts of the United States (FRE may be used as guides but not
b. Adminstrative Proceedings (federal agencies)
Cases in State Courts
a.The federal rules do not apply to any state court proceedings
b. Most states have adopted the Federal rules as the basis to their own
evidentiary rules
D. When
Rule 1101 Applicability of Rules (b) Proceedings Generally
a.These rules apply generally to civil actions and proceedings including admiralty and maritime
b. Criminal cases and proceedings except those in which the court may act summarily;
c.Proceedings and cases under title 11(Bankruptcy), United States Code
2. Rule 1101(d) Rules Inapplicable: The rules (other than with respect to
privileges) do not apply in :
a.Preliminary questions of fact (the determination of questions of fact preliminary
to admissibility of evidence when the issue is to be determined by the court under
rule 104)
b. Grand Jury (proceedings before grand jury)
c.Miscellaneous proceedings
i. Proceedings for extradition or rendition
ii. Preliminary examinations in criminal cases
iii. Sentencing or granting or revoking probation
iv. Issuance of warrants for arrest, criminal summons, and search warrants
v. Proceedings with respect to release on bail or otherwise
Rule 1101(c): Rule of Privilege:
a.The rule with respect to privileges applies at all stages of all actions, cases and
• Even when the FRE doesn’t apply in their entirety, the rules governing privilege
do apply
• Rules of privilege apply during grand jury proceedings, bail hearings and any
other proceedings otherwise exempted from the FRE.
III. Structure of Trial
A. The Rule
1. Rule 611: Mode and Order of Interrogation and Presentation (a) COntrl by Court
The court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to:
a. Make interrogation and presentation effective for the ascertainment of the truth
b. Avoid needless consumption of time
c. Protect witnesses from harassment or undue embarrassment
In the courtroom
Pretrial motions-during the months before trial, the parties file motions
Jury selection
Opening statements
Plaintiffs/Prosecutors Case in Chief
Defendant’s case in Chief/Case in defense
Plaintiff/Prosecutors Case in Rebuttal
Defendants case in rebuttal/rejoinder
Further rebuttal and rejoinder
Closing statements
Instructing the jury
Putting a Witness on the Stand
The basic Rule: Everyone is competent: Rule 601:
Every person is compotent to be a witness except as otherwise provided in these rules

State law
• 601: In civil actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision, the competency of a
witness shall be determined in accordance with State law
• This rule acknowledges that competency rules are sometimes interwoven with
liability principles
• FRE applies to all civil trials infederal court whether the claims are based on state
law (diversirty cases) of federal law (federal question)

Can the Judge Testify

• Rule 605 forbids a judge from testifying in any trial at which he presides
• Rule 605: Competency of Judge as Witnesses:
• The Judge presiding at the trial may not testify in that trial as a witness
• No objection need be made in order to preserve the point
• Prohibits the judge from offering commentary from the bench that amounts to
• Prohibits judges from reporting evidence related to experiments they have
conducted/visits they have made to a site related to the case
• Prohibition applies to the judge’s law clerk and other employees
• Rule 606: Competency of Juror as Witness (a) At the Trial:
• A member of the jury may not testify as a witness before that jury in the trial of the
case in which the juror is sitting
• If the juror is called so to testify, the opposing party shall be afforded an
opportunity to object out of the presence of the jury
• A juror can testify as a witness in another case

• FRE leave open the possibility that a lawyer might testify on behalf of the party she
represents, or that opposing counsel might call them lawyer to the stand
• Ethical rules discourage lawyers from testifying in cases in which they represent a

Personal Knowledge
The basic Rule: Rule 602: Lack of Personal Knowledge:
• A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter
• Witnesses can only testify about matters they have seen, heard or otherwised sensed
• They cant speculate about matters beyond their knowledge
• Personal knowledge implies that a witness is capable of apprehending an event,
remembering it and describing it to others
• If a witness lacks the ability to fulfill these functions the witness may not have
sufficient personal knowledge
• Even when a person’s knowledge appears somewhat impaired, they are likely to
allow the witness to testify.

Establishing Personal Knowledge

• Rule 602: Evidence to prove personal knowledge may but need not consist of the
witnes’ own testimony
• A judge will exclude testimony if the witness could not possible have seen what he
or she claims

Relationship to Other Rules

• Rule 602: this rule is subject to the provisions of rule 703 relating to opinion
testimony by expert witnesses

Oaths and Affirmations

Rule 603: Oath or Affirmation:
• Before testifying, every witness shall be required to declare that the witness will
testify truthfully by oath or affirmation administered in a form calculated to awaken
the witness’ conscience and impress the witness’ mind with the duty to do so
• If the witness lacks the ability to understand the truth or to appreciate the
• of testifying in court, the judge may find that the witness is incapable of taking the
• If a witness refuse to take the oath that satisfies Rule 603, the judge will exclude
their testimony.

D. Interpreters
Rule 604: Interpreters:
• An interpreter I subject to the provisions of these rules relating to qualification as an
expert and the administration of an oath or affirmation to make a true translation
V. Relevance
A. Background and Policy
• Only relevant evidence is admissible
• The rule limits the amount of time that the parties, lawyers, judges, and jurors devote to
a case.
• The relevance requirement focuses the jurors on facts that the law deems important.
B. The Rules
• Rule 402 articulates the fundamental principal that only relevant evidence is admissible
• If evidence is relevant then it is admissible unless a specific rule, statute, or
constitutional provision bars its admissibility.
• If evidence fails the relevance test, the court cannot admit it.
• Rule 401 defines relevance
• Three key phrases:
1) any tendency;
2) of consequence;
3) more probable or less probable-indicates that an individual piece of evidence can be
relevant even it does not conclusively establish any fact on its own
• Rule 401 embraces the evidence that could shift a fact finder’s view of the facts even
the smallest degree
• Evidence that has any tendency to move the indicator slightly in one direction or
another is relevant.
• The fact itself must be related to the cause of action
C. In the Courtroom
1. Controversy and Consequence
• Evidence is relevant even if it addresses a matter that the opponent concedes
• Parties are allowed to introduce direct evidence of damaging facts, despite an
opponents attempts to minimize the impact of facts by conceding them.
2. Unrelated Misdeeds
• Rule 403 and 404 impose constraints on evidence unrelated to the issues disputed.
3. Mismatched Evidence
• Courts sometimes conclude that evidence is too far removed from the parties
dispute in time, place, or other respects to satisfy rule 401.
4. Negative evidence
• Judges usually reject negative evidence-the lack of doing something to proof a
5. Hindsight
• Courts try to eliminate the effect of hindsight which incorporates knowledge of
the actual threat, on a jury’s decision.
• Liability in these cases depends on the defendant’s subjective belief (his
perception of the threat) rather than on actual objective threat.
6. Opening the door
• Irrelevant evidence that becomes relevant to rebut claims made by another party.
VI. Prejudice, Confusion, or Waste of Time
A. Introduction and Policy
• Rule 403 recoginizes that some evidence might have unfair effects if introduced at
• Some evidence provokes unwanted biases or irrational assumptions in the jury’s
• Rule 403 empowers judges to avoid these problems by allowing them to exclude
relevant evidence that is problematic.
• Rule 403 allows the trial judge to close the doors against some types of evidence.
B. The Rule
• Rule 403: exclusion of relevant evidence on grounds of prejudice, confusion, wasted time
• Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
1. May
• May signals that judges possess considerable discretion under rule 403
• Appellate courts rarely reverse rule 403 rulings
• The discretionary nature of rule 403 offers opportunities for persuasive advocacy.
2. Substantially Outweighed
• For the judge to exclude relevant evidence, its prejudice, confusion or delay must
substantially outweigh its probative value.
• If the probative value and prejudice are evenly balanced, or if prejudice somewhat
outweighs probative value, the evidence must be admitted.
3. Unfair
• Rule 403 authorizes judges to exclude evidence for several reasons, including
confusion, misleading the jury or undue delay.
• Unfairly prejudicial evidence lures the jury/judge into declaring guilt on a ground
different from proof specific to the offense charged.
C. In The Courtroom
Four factors that influence a judge’s decision when applying 403:
i. The extent to which the evidence will arouse emotions or irrational prejudices
among the jurors
ii. The strength of the connection between the evidence and the elements of the
iii. Whether the advocate can prove the same facts through less prejudicial or
confusing means
iv. Whether it would be possible to reduce prejudice or other harm once the
evidence is introduced
1. Damaging Evidence
• Courts usually reject claims that evidence is unfair simply because it will damage
their case.
• Evidence that strongly supports the position of one party and damages the other is
not unfair, its just persuasive.
2. Videos and Photos
• If a photo or video shows only the effects of the crime, giving no indication of
how the crime occurred or who was responsible, the possibility of unfair prejudice
is more substantial.
• Courts will typically try to exclude photos that greatly increase emotional
3. Socially Undesirable Behavior
• Evolving issue: admittance of evidence of lavish lifestyles
4. Flight
• Courts analyze the circumstances surrounding flight in judging admissibility of
this evidence under 403.
5. Stipulations
• Facts related to an element of a crime are of consequence even if the parties do
not actually dispute that element.
Old Chief:
-Rule 403’s balancing test requires the court to evaluate unfair prejudice and probative
value in the context of the full evidentiary record
-The prosecution can choose to present detailed evidence rather than accepting a
defendant’s offer to stipulate (the probative value of a stipulation usually cant match the
descriptive richness and coherent narrative of conventional testimony)
• Trial courts have accepted a defendant’s stipulation of felony status in gun
possession cases, excluding other evidence of prior conviction under 403 but have
not forced the prosecution to accept defendant’s stipulations on elements of other
• Prosecutors have been able to invoke Old Chief’s language and reasoning to
introduce detailed evidence of other criminal behavior despite a defendant’s offer
to stipulate.
6. Waste of Time, Undue Delay, & Needless Duplication
7. Bench Trials
• Parties do not invoke an objection under 403 in a bench trial, but can object that
the evidence is a waste of time or unduly cumulative.
VII. Objections and Offers of Proof
A. Introduction and Background
• If a party does not object to evidence when an opponent offers it at trial, the judge
will admit the evidence and the party waives any future complaints.
B. The Rule
Rule 103 Rulings on Evidence-The Process of objecting to /defending evidence:
-the party wishing to exclude evidence must voice that desire through an objection or
motion to strike
-objections and motions to strike must be timely
-objections and motions to strike must also state a specific ground unless that ground is
apparent from context.
-The party offering a contested piece of evidence must make an offer of proof explaining
the substance of the disputed evidence to the court unless that substance is apparent from
-parties need not renew their objections or offers of proof once the court makes a definitive
-the process of disputing evidence should be conducted in a way that prevents inadmissible
evidence from reaching the jury.
Three Goals:
-The FRE place the burden on parties, not judges to identify defects in evidence and defend
the admissibility of that evidence
-the process requires the parties to object to and defend evidence in a way that lets trial
judges resolve disputes as quickly and correctly as possible.
-the process for resolving evidentiary disputes should shield the jury from potentially
defective evidence.
C. In the Courtroom
1. Objections and Motions to Strike
• Objections and motions to strike are both claims that evidence is inadmissible.
• An objection comes before the potentially offending evidence emerges fully.
• Motions to strike occur after disputed evidence has already entered the record.
2. Timeliness
• Lawyers must object to evidence as soon as the ground for objection is known or
reasonably should be known.
• Prompt objections are essential to maintaining fair and orderly trials.
• Some judges adopt a flexible review of timiliness, allowing an objection as long
as it occurs quickly enough to give the judge an opportunity to correct any error.
3. Specificity
• Attorneys must identify specific grounds for their objections
• The opposing counsel may be able to cure the defect if the objection is specific.
• A specific objection focuses the judge’s attention on the problem that the objector
sees in the evidence, allowing a quick response
• General objections are ineffective at trial and fail to preserve issues for appellate
• 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 other
grounds and will not preserve those grounds for appeal.
• Specificity is unnecessary if the context makes clear the grounds upon which
counsel objects or the particular element of evidence is objectionable.
4. Offers of Proof
• Serves the same purpose as a timely and specific objection
• Gives the trial judge information needed to make a prompt and correct decision
5. Repeated Objections and Exceptions
• Under 103, As long as counsel has made a clear objection and the judge has
overruled that objection, counsel need not repeat the objection.
• Once a judge issues a definitive ruling, parties need not renew any objections or
offers of proof.
6. Presence of the Jury
• rule 103 attempts to insulate the jury from exposure to evidence that will be ruled
inadmissible as well as from legal arguments that would reveal the nature of that
VIII. Trial Court Rulings on Evidence
A. Introduction and Policy
• If a judge agrees with an evidentiary objection he will sustain it and exclude the
• If the judge disagrees with the objection she will overrule it and admit the
• The judge may admit some of the challenged evidence, while excluding other
• Curative instruction: tells the jury to disregard evidence sometimes explaining
why the evidence is misleading or inappropriate to consider.
• The judge usually gives the jury a limiting instruction to explain that the evidence
may be used for some purposes but not for others.
B. The Rule
• 105 recognizes that judges sometimes admit evidence for one purpose or against
one party, while finding the evidence is inadmissible for other purposes or with
respect to other parties.
• Rule 105: limited admissibility: when evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.
C. In the Courtroom
1. Limiting instructions and rule 403
• Limiting instructions and 403 grants the judge discretion to exclude evidence that
is unfairly prejudicial or confusing.
• Limiting instruction reduces potential prejudice enough that a judge feels
comfortable admitting the evidence.
2. Do limiting instructions work
• It may be impossible for jurors to segregate their thoughts in the way that limiting
instruction directs.
IX. Medical Expenses
Introduction and Policy
• Rule 409 encourages individuals and organizations to pay medical expenses for
people who have been injured.
• The rule excludes evidence of medical payments, offers to pay, or promises to pay
medical expenses when offered to prove liability.
• The rule furthers important humanitarian objectives by removing a factor that
might discourage some individuals and organizations from paying the medical
expenses of injured individuals.
• Payments:
o promote good customer relations
o encourage rapid settlement of any legal claims that develop
o sometimes reduce the extent of damages by treating injuries before they develop
expensive complications
o immediate payments may promote quick settlement while reducing the odds of
expensive medical complications
o introducing evidence of offers to pay medical expenses may cause unfair
prejudice that substantially outweighs the probative value of the evidence
The Rule
• Rule 409: Payment of Medical and Similar Expenses
• Evidence of furnishings or offering or promising to pay medical, hospital or similar
expenses occasioned by an injury is not admissible to prove liability for the injury.
In the Courtroom
Furnishing, Offering, Promising
• 409 bars admission of offers and promises to pay medical expenses as well as actual
payments of those expenses.
• The rule does not protect any other types of statements even if they occur in connection with
offers to pay medical expenses
Medical, Hospital, or Similar Expenses
• 409 only protects promises to pay medical, hospital or similar expenses occasioned by an
• The rule does not encompass offers to pay lost wages, to repair a car, or to compensate an
injured party for other types of economic or property damage.
To Prove Liability
• The rule excludes evidence only if the evidence is offered for a particular purpose to prove
liability for the injury.
• If a party can establish some other purpose for the evidence, rule 409 does not bar admission.
Relationship with Rule 403
• If rule 409 excludes a piece of evidence then rule 403 has no role left to play, Rule
403 cannot rescue evidence that another rule has rejected
X. Liability Insurance
Introduction and Policy
• Rule 411 encourages individuals and organizations to obtain liability insurance
• Injured plaintiffs cant introduce evidence of the defendant’s liability insurance
• Defendants cant attempt to escape liability by arguing that they are uninsured and
would go bankrupt if forced to compensate the plaintiff
The Rule
• 411: Liability Insurance:
• Evidence that a person was or was not insured against liability is not admissible
upon the issue whether the person acted negligently or otherwise wrongfully
• This rule does not require the exclusion of evidence of insurance against liability
when offered for another purpose such as proof of agency, ownership or control
or bias/prejudice of witnesses.
In the Courtroom
1. Are Corporations and Organizations Protected
• Rule 411 is ambiquous about who it protects
• The text read literally does not include corporations or organizations
(Supreme Court has not addressed this issue)
2. What is liability Insurance
• 411 only excludes evidence of liability insurance
• Some judges overlook the narrow aspect of 411 and apply the rule to all types
of insurance
• Indemnity agreement: one party agrees to reimburse another party for
damages if a specified form of liability rises-usually one time agreements
• Courts have split over whether indemnity agreements qualify as liability
insurance under 411.
• A party can still argue for exclusion of the indemnity agreement under 403
3. For what Purpose is the Evidence Offered
• 411 bars evidence of insurance only when it is offered upon the issue whether
the person acted negligently or otherwise wrongfully
• Permitted purposes of 411 is proof of agency, ownership, or control and
bias/prejudice of witnesses.
Rule 403 Again
• Rule 403 serves as a final net catching evidence that might unfairly prejudice the
XI. Subsequent Remedial Measures
Introduction and Policy
• To avoid punishing defendants for desirable conduct, 407 exclude evidence of
those remedial measures from the courtroom.
• Remedial measures don’t always show that a defendant’s prior actions were
The Rule
407: subsequent remedial measures
• When after an injury or harm alledgedly caused by an event, measures are taken
that, if taken previously would have made the injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect in a product’s design or a need
for a warning or instruction
• This rule does not require the exclusion of evidence subsequent measures when
offered for another purpose such as proving ownership, control or feasibility of
precautionary measures if controverted or impeachment.
In the Courtroom
What is a Measure
• A remedial action is one that would have made the injury or harm less likely to occur
• 407 bars evidence of measures that if taken previously would have made the
injury/harm less likely to occur
When is a Remedial Measure Subsequent
• 407 applies only to measures that are taken after an injury or harm alledgedly
caused by an event
• Parties injured after the first injured plaintiff may be able to rely upon
evidence that is unavailable to the intial plaintiff
Negligence, Strict Liability and other Mental States
• A remedial measure is unlikely to protect third parties from injury, but it may
mitigate harm suffered by the plaintiff
Remedial Measures by Non-Parties
• The rule encourages prompt remedial measures
• Non-parties have no fear of implicitly admitting liability so they don’t need
the incentive offered by 407.
• Although the court of appeals have uniformly held that 407 does not apply to
remedial actions by third parties a few lower court judges have followed the
rule’s literal language to reach a different conclusion
Other Purposes: Ownership or Control
• If a defendant claims that it did not own or control the instrument that injured
the plaintiff, the plaintiff may introduce evidence of subsequent remedial
measures to show that the defendant did not own/control that instrument.
• 407 allows proof of subsequent remedial measures to show ownership or
control only if the opposing party first controverts that issue
Other Purposes: Feasibility
• 407 specifically permits a party to introduce evidence of subsequent remedial
measures against a party who controverts feasibility
• A party disputes feasibility when it claims that it could not have remedied a
dangerous situation because of economic, physical or other constraints.
• Rule 407 does not exclude evidence of any measures taken by non-parties
Other Purposes: Impeachment
• 407 allows a party to introduce evidence of subsequent remedial measures for
the purpose of mpeachment
• A judge is most likely to admit evidence when a witness makes a specific
represenatation that conflicts with the subsequent remedial measure, the
witness makes an absolute declaration like the product was as safe as it
possibly could be
Rules 105 and 403: Limiting Instructions and Unfair Prejudice
• If the judge admits evidence of subsequent remedial measures for a purpose other
than proving liability, the defendant can request a limiting instruction.
XII. Criminal Plea Bargaining
Introduction and Policy
• 410 does not exclude evidence of final guilty pleas entered pursuant to plea
• Finalized guilty pleas are admissible to the same extent as other criminal
The Rule
1. Opening Language
• 410 excludes evidence from civil and criminal trials
• 410 bars the admission of evidence only when introduced against the person
who as a criminal defendant, participated in the plea bargaining process
• 410 aims to protect the criminal defendant from overreaching during plea
bargaining and prosecution
• The rule prohibits any party from introducing evidence against the defendat who
participated in the plea bargaining but allows the defendant to introduce
evidence from that process against others
2. Prohibitions
• The rule protects guilty pleas that a defendant withdraws
• A defendant can withdraw a guilty plea after acceptance but before sentencing
if a fair and just reason exists for withdrawl.
• In a plea of nolo contendere, the defendant allows the court to assume guilt for
purposes of sentencing but does not admit guilt for any other purpose.
• A plea of nolo contendere cannot be used to establish liability by issue
preclusion in a civil lawsuit
• 410 protects statements made during a plea bargaining process if the process
led to a withdrawn guilty plea or plea of nol contendere
• Any statements that the ddefendant made as part of the plea negotiation
process or during the aborted court appearance against that defendant
• 410 shields statements made during plea bargains when no guilty plea results
including situations in which the defendant initially agrees to plead guilty but
later withdraws the plea
• The rule does not shield any statements made during negotiations that
produced the guilty plea
3. Exceptions
• If a party introduces one statement from a plea bargaining session, another
party may introduce additional statements from the same session when
fairness requires consideration of those additional statements
• The government may introduce some statements otherwise protected by the
rule when necessary to prosecute a defendant for perjry or false statement
In the Courtroom
1. What are Plea Discussions
• Plea discussion: occurs with an attorney for the prosecuting authority
• A suspect who volunteers an immediate confession is not engage in plea
discussions-that statement is admissible under 410.
• A plea discussion occurs if the defendant displayed an actual subjective
expectation to negotiate a plea and that expectation was reasonable given the
totality of the objective circumstances
2. Sentencing
• FRE do not apply to sentencing proceedings
3. Waiver
Remember Rule 403
• 410 only bars plea bargaining evidence that is offered against a defendant,
courts often invoke 403 to exclude similar evidence offered against the
XIII. Settlements and Offers to Compromise
Introduction and Policy
• The rule protects settlement offers as well as statements made during
settlement discussions from admission at trial.
• If those offers were admissible, parties would be relunctant to discuss their
claims candidly before trial and fewer settlements would occur.
• Rule 408 rests almost exclusively on the policy rationale of encouraging
settlements, not on concerns about probative value or unfair prejudice.
The Rule
1. Broadest Reach
• 408 applies to all parties, it prohibits evidence offered on behalf of any party
• A party cant introduce evidence of settlement offers or negotiating statements, not
even evidence of their own offers/statements.
• 408 defines compromise offers and acceptances very broadly
• 408 protects all conduct or statements made in compromise negotiations, not just
operative offers and acceptance.
2. The Limits on Rule 408: What is Still Admissible
• For 408 to apply, the disagreement between the poarties must have matured
into a claim.
• 408 requires that the parties dispute some aspect of the claim-the claim must
be disputed as to validity/amount
• To invoke 408 the statements or conduct must occur during compromise
negotiations or while compromising or attempting to compromise the claim.
• 408 excludes statements and conduct made during comprmise negotiations
only when a party offers that evidence for one of three purposes:
o To prove liability or non-liability
o To establish the amount of damages
o To impeach a witness’s testimony through a prior inconsistent
3. Still More Limiting Language
• Parties may introduce evidence from compromise negotiations for any
purpose other than the three explicitly prohibited ones.
• It allows use during criminal trials of evidence from a limited category of
settlement discussions.
• Under most circumstances neither the prosecutor nor the accused accused may
rly during a criminal trial on evidence from civil settlement negotiations that
408 protects.
• When the civil settlement discussions occurred in a civil proceeding that
involved a government agency exercising its regulatory, investigative or
enforcement authority, the prosecutor and defendant may introduce evidence
from those negotiations in a subsequent criminal case. (Rationale: where an
individual makes a statement in the presence of gov’t agents, its subsequent
admission in a criminal case should not be unexpected)
In the Courtroom
1. What Is a Claim
• A claim arises once a complaint has been filed.
2. When do Compromise Negotiations Occur
• Formal negotiations- where both parties met for the express purpose of
discussing settlement
• Factors judges consider when deciding a statement occurred during
compromise negotiations:
o Whether the statement was unilateral or occurred during bilateral
o Whether either party made a concrete offer
o Whether attorneys were involved in the discussions
o Whether the parties used phrases that are commonly used during
settlement discussions
3. Other Purposes
• 408 prohibits the use of settlement discussions to prove liability, establish
damages, or impeach witness with inconsistent statements
• Courts have allowed parties to offer statements from settlement negotiations
to support a claim that an opposing party engaged in frivolous or vexatious
4. Bias
• 408 can be invoked to show that a witness is biased.
5. Impeachment: Inconsistency vs. Bias
• A way to impeach a witness is to show that the witness made an earlier
statement that was inconsistent with the witness’ testimony on the stand.
• 408 can not be invoked to prove inconsitency of testimonies.
6. Preexisting Evidence
• Parties cant immunize evidence by discussing it during a settlement
• Parties cant shelter preexisting evidence by discussing it during settlement
7. Criminal Cases
• 408 applies to criminal and civil cases
• Settlement discussions conducted as part of a civil regulatory, investigative or
enforcement action conducted by a gov’t agency can be used as evidence in a
criminal case.
Rule 403
• 408 allows introduction of evidence, but a judge may still determine under 403
that admitting the evidence would cause unfair prejudice substantially
outweighing any probative value.
XIV. Examining Witnesses
A. Introduction and Policy
• Parties take turns examining a witness at trial following this sequence: Direct
Examination; Cross Examination; Redirect Examination; Recross Examination;
Additional Rounds of Redirect and Recross
B. Direct Examination
• 611 articulates the principal that witnesses rather than lawyers should testify on direct
• Direct examination is when the attorney questions its own witness
• 611 disfavors leading questions on direct examination; however judges may allow
leading questions to establish foundational matters or if a winess has difficulty
testifying because of age, nervouseness, illness, etc.
• 611 explicitly recognizes that leading questions are appropriate on direct examination
when a party calls a witness who is likely to resist that party’s position.
• Popular forms of objection:
• Argumentative: questions that improperly contain comments on the evidence, the
witness’s demeanor, or other points
• Asked and Answered: questions that repeat a point unnecessarily
• Compound: questions that combine 2 or more questions
• Confusing: questions that are difficult for the witness to understand
• 611 gives the judge authority to assure that direct examination provides the type of
information the jury needs without wasting time or harassing witnesses
C. Cross Examination
• Leading questions are allowed on cross examination
• Cross examination generally is limited to subjects raised on direct examination
• The rules give the judge discretion to expand the scope of cross examination
• Parties are allowed on cross examination to ask questions related to the witness’s
D. Redirect Examination
• The federal rules of evidence do not refer to redirect examination, but most judges
allow this additional turn in witness examination
E. Recross Examination
• Most judges will allow recorss-examination if new issues arose on redirect and if the
recross is brief.
• The lawyer may use leading questions but must stay within the scope of the previous
F. Additional Rounds of Redirect and Recross
• Judges are unlikely to allow parties to continue beyond recross-examination
G. Miscellaneous Issues
• 614 authorizes the judge to call witnesses and to interrogate witnesses called by
• Judges rarely call their own witnesses, but they frequently ask questions of
witness called by the parties.
• All parties are entitled to cross-examine any witness called by the judge
• They may object if the judge questions witnesses in a way that reflects bias
toward one party or disbelief of the witness
• 614 allows counsel to raise objections to improper questioning by the judge when
the jury is not present
• Parties must object in a timely manner to any witnesses called by the judge or to
questions that the judge poses to other witnesses
• 615 governs the exclusion of witnesses from the courtroom while other witnesses
are testifying
• The exclusion of witnesses prevents the testimony of one witness from tainting
the testimony provided by others
• Exclusion of witnesses prevents them from tailoring their testimony specifically
to negate claims made by opponents
• Excluding the witness may make their independent corroboration more persuasive
XV. Refreshing a Witness’ Memory
A. Introduction and Policy
• If a witness recalls the general outlines of an incident but is having
trouble reciting details, the judge may allow the lawyers to lead the witness even
on direct examination
• 611 gives the judge discretion to control the method of questioning
B. The rule
• Using a writing to refresh a witness’ recollection is an efficient way to improve
live testimony
• Adverse parties should have the right to inspect these writings to be sure that the
examining attorney is genuinely refreshing recollection and to aid in cross-
• 612 grants rights to adverse parties when a witness examines a writing to refresh
recollection while testifying and when the witness does so before testifying
• Only the adverse party has the right to introduce the document into into evidence
under 612
• To admit the document, the refreshing party would have to identify an
independent ground of admissibility
• If a document offered by an adverse party under 612 is inadmissible under other
rules, the judge will admit the document but instruct the jury to use it for the
purpose of assessing the witness’ credibility
• 612 outlines procedures for determinig which portions of a writing to admit when
only part of the document relates to a witness’ testimony
• 612 discusses remedies if a party refuses to produce a writing used to refresh
• 612 makes clear in its opening phrase that it is subject to the Jencks Act which
governs discovery in federal criminal trials
C. In the Courtroom
1. Testifying from Memory
• When a witness uses a writing to refresh recollection, the witness must then
testify from refreshed memory rather than from the writing itself
• A witness with no independent recollection lacks the personal knowledge required
by 602 to testify
• Parties can use documents to prompt a witness’ memory but they cant simply feed
the witness information that the witness no longer genuinely remembers
2. Refreshing Memory before Testifying
• 612 grants parties access to documents that a witness reviews for refreshment
before taking the stand if the interest of justice require that access
• Courts tend to limit an adverse party’s right to see documents that a witness
reviews before testifying
3. Adverse Parties
• 612 allows any party who did not initiate the refreshment of a witness
recollection to claim the rule’s protection
• If a party refreshes a witness recollection on direct examination, then other
parties may invoke 612 for cross examination
• If a lawyer refreshes a witness’ recollection during cross examination then the
party that called the witness may invoke 612 to examine the materials used by
the cross examiner
4. Effect of Introducing the Writing
• 612 does not specify the effect of introducing a writing that has been used for
refreshment, but courts have held that unless the document is admissible on other
grounds the jury may use the document only to assess the witness credibility
• The jury cant use the document to establish substantive matters referred to in the
• When a party introduces a document under 612 and the document is not
independently admissible under other rules, the judge will give the jury a limiting
instruction explaining how to use the document
5. Beyond Writings
• 612 give opposing counsel the right to see, use and introduce audiotapes,
photos, and other media to refresh recollection of witnesses.
XVI. Impeaching Witnesses
A. Introduction
• 607 allows parties to impeach any witness including one of their own.
B. A Toolbox of 10 Tactics
10 techniques lawyers may use:
• Offensive techniques to combat witness’s damaging testimony
1. rebut the evidence
2. clarify and complete the story
3. introduce expert testimony about evidence
• Defensive techniques that attack the witness
4. show impairment of perception or recollection
5. demonstrate inconsistencies
6. cast doubt on the witness’s character
7. show bias
8. call the witness a liar
• A party appeals to the judge to exclude the witness’s testimony
9. exclude the evidence
10. claim unfair prejudice, confusion or delay
C. Counter Moves
• A party may not introduce evidence of a witness’s truthful character until the
character has been challenged.
D. Which Witnesses
• 607 allows any party to impeach any witness
• Parties sometimes impeach even a favorable witness as a way of preempting or
drawing the sting of negative information that an opponent most likely will raise
on cross examination
XVII. Using Prior Statements to Impeach Witnesses
A. Introduction
• Judges liberally allow parties to use a witness’ prior statements to
impeach the witness
• No rule prohibits the use of these statements and a witness’s
inconsistency is almost always relevant to the witness’s credibility
B. The Rule
• 613 does not explicitly authorize parties to impeach witnesses with evidence of
their prior inconsistent statements
• 613 specifies the procedures that a party must follow when impeaching a witness
in this manner
• The lawyer may reveal the inconsistency to the jury without first showing the
statement to the witness or giving the witness a chance to reconcile the statements
• Demonstrating an inconsistency without first giving the witness an opportunity to
review the prior statement has an advantage because it deprives the witness of an
opportunity to weave a story that attempts to reconcile the 2 statements
• 613 does not require the cross examiner to show the statement to opposing
counsel if the opponent asks to see it
• Extrinsic evidence is any evidence other than the witness’s own admission that
proves the content of the statement
• A litigant does not have to introduce extrinsic evidence of a prior inconsistent
• If a party does introduce extrinsic evidence, the witness must have an opportunity
to explain or deny the witness about the statement and the opposing party must
have a chance to examine the witness about the statement
C. In the Courtroom
1. Inconsistent statements
• 613 refers only to witness’s prior statement not to inconsistent statements
• Courts have interpreted the rule to allow cross examination only with respect to
inconsistent statements
2. Consistent statements for Rehabilitation
• Under limited circumstances a judge may allow a party to use a prior
consistent statement to rehabilitate a witness
• Judges are most likely to admit these statements when the prior statement
occurred before an event that allegedly changed a witness’ testimony
3. Showing the statement to the witness
• Judges sometimes exercise their general authority under 611 to require a cross
examining attorney to show the statement to the witness when the cross
examination may create an unfair or inaccurate impression
4. Extrinsic proof of prior statement
• 613 does not require a party to introduce extrinsic proof of a witness’s prior
• 613 promotes fairness- the witness must have an opportunity to explain or
deny the statement and the opposing party must have a chance to interrogate
the witness about the statement
• 613 allows an attorney to set up a witness by asking questions on cross
examination that elicit answers contrary to comments made in a prior
• 613 requires only that the witness be recalled to the stand
5. Interests of justice
• 613 provides that in unusual circumstances when the interests of justice
require a party to introduce extrinsic evidence of a witness’ prior statement
even hen the witness didn’t get a chance to explain or deny and opposing
counsel had no chance of interrogation
• This exception is for unavauilable witnesses
• Judges are more likely to rule that the party attempting to impeach should
have confronted the witness with the prior statement while she was on the
6. Limiting instruction
• 613 does not empower litigants to use the previous statement for other purposes,
such as to establish the truth of what the previous statement suggests
• When evidence is admitted for impeachment, the parties cant use that evidence
for substantive proof
XVIII. Revealing Untruthful Character on Cross Examination
A. Introduction and Policy
• Another effective way to discredit a witness is to demonstrate that the witness
has an untruthful character
• Character evidence suggests that because an individual has a particular
character trait, the person was likely to have acted in aparticular way during a
specific incident
• An exception to prohibiting the use of character evidence is using it for telling
the truth
B. The rule
• 404 prevents a party from arguing that because a witness is a generally
untruthful person, the witness probably lied on the stand
• A party may ask a witness about specific instances of conduct on cross
examination to suggest that the witness has an untruthful character
• Attorney’s must limit these questions to actions that are probative of
truthfulness or untruthfulness
• 608 allows this type of cross examination only in the discretion of the court
• 608 bars proof of these specific instances by extrinsic evidence-attorneys cant
introduce evidence of disciplinary reports or the testimony of another witness
• If the witness denies commiting a particular act, the attorney has to move on and
not pursue the point by offereing documents or testimony
C. In the Courtroom
1. Probative of Truthfulness or Untruthfulness
• 608 allows parties to establish a witness’s character for
untruthfulness by asking on cross examination about specific
examples of conduct suggesting that character
2. Good Faith Belief
• Before asking a witness about a specific incident suggesting
untruthfulness, an attorney must have good faith belief that the incident
• A good faith belief is one that is founded on some evidence
3. Judicial Discretion
Even when a cross examiner demonstrates a good faith belief in conduct bearing
on a witness untruthful character, the trial judge has substantial discretion to
preclude inqury into that behavior
4. Extrinsic Evidence
The bar against extrinsic evidence is necessary to prevent trials from detouring
too far into unrelated controversies
The extrinsic evidence limit in 608 helps prevent the jury from making
unwarranted uses of character evidence
XIX. Using Criminal Convictions to Impeach Witnesses
A. Introduction and Policy
• Under certain circumstances, parties may introduce evidence of a witness’
prior criminal convictions
B. The Rules
1. Opening Provision
• 609 applies only when a party uses a criminal conviction for a particular
purpose-to suggest that awitness has an untruthful character
• If a party attempts to introduce criminal convictions for a different reason, 609
does not apply
• When a party does rely on 609 to introduce evidence of prior conviction, the
jury may consider that conviction only to assess the witness’ character for
truthfulness; the jury should not use the conviction as evidence of guilt or
2. Three Rules for Three Categories
• The first rule governs prior felony convictions used to impeach any
witness other than the accused in a criminal case
• The second applies to prior felony convictions used to impeach an accused
• The third address prior convictions for any crime of dishonesty or false
statement, whether a felony or misdemeanor used to impeach any witness
a. Felony Convictions/Any Witness Except an Accused
• Felony is defined as crimes that punishable by death or imprisonment
in excess of one year
• The judge retains disceretion to exclude conviction if a party persuades
the judge that the convictions unfair prejudice will substantially
outweigh its probative value
b. Felony Convictions/Criminal Accused
• Prior felony convictions are admissible against a criminal defendant
who takes the stand but only if the judge makes a distinctive finding
that probaktive value outweighs prejudicial effect
• The standard weighs only the prejudicial effect of the evidence on the
accused not on any other types of prejudicial effect.
• 609 excludes evidence whenever prejudicial effect equals or exceeds
probative value, not only when prejudicial effect substantially
outweights probative value
• 403 tilts the balance toward admissibility; 609 tilts it toward exclusion
• 609(a)(1) places the burden on the prosecutor to demonstrate that
probative value outweighs prejudicial effect so that evidence of a prior
conviction should be admitted.
c. Crime of Dishonesty or False Statement/Any Witness
• 609 allows litigants to use any conviction for a crime of dishonesty or
false statement no matter what the sentence, to impeach any witness’
character for truthfulness
• Courts have consistently held that judges have no discretion to exclude
prior convictions for dishonesty or false statement when they are
offered to impeach a witness
3. Time Limits
• An older conviction is less probative of a witness’s current truthfulness
than a recent conviction
• 3 barriers to using convictions that are more than 10 yrs old:
o the party seeking to use the conviction must give the adverse party
advance written notice
o the judge must find specific facts and circumstances supporting the
convictions probative value
o the judge must determine in the interests of justice that the
probative value of conviction substantially outweighs its
prejudicial effect
• 609 adopts a tough standard for admitting evidence of
convictions that are more than 10 years old
4. Pardons, Annulments, and Certificates of Rehabilitation
• A conviction that has been subject to a pardon, annulment, certificates of
rehabilitation cant be used for impeachment under 609.
• The only exception is when the witness has since committed another
felony and the original conviction was not pardoned based on a finding of
5. Juvenile Adjudications
• Juvenile adjudications are never admissible against the accused in a
criminal case
• 609(d) recognizdes one limited exception for witnesses in a criminal case.
• Evidence of a juvenile conviction may be admissible to impeach such a
witness if this would be necessary to determine fairly the defendant’s guilt
6. Pendency of an Appeal
• Pendency of an appeal from a prior conviction does not bar the use of that
conviction to impeach the character of a witness
• Evidence of the pendency of the appeal is admissible if a party wishes to
note that fact to the jury
C. In the Courtroom
• If a criminal defendant does not take the stand, the prosecutor may not be able
to introduce evidence of the defendant’s prior convictions.
• If the defendant does testify, 609 gives the prosecutor an avenue for
introducing evidence of the defendants convictions
• 609 also applies to civil cases
1. Defining Felonies
• Felony: punishable by death or imprisonment in excess of one year
2. Special Balancing Tests for Accused
• 5 factors that may guide a judge’s discretion in striking 609(a)(1) balance:
a.impeachment value of the former crime: a crime that relates to truth
telling has more probative value than one that does not
b. timing of the prior conviction and subsequent criminality:
convictions that occurred long ago have less probative value unless they
are part of a pattern of criminality
c.similarity between the prior crime and the charged one: when the prior
crime is similar to the charged one the likelihood of prejudice is high
d. importance of the defendant’s testimony: the risk that a defendant
will forego testifyin should always count as an element of prejudice
e.centrality or credibility: if guilt turns on a swearing match between the
defendant and prosecutor’s witness, the prosecutors interest in
impeaching the defendant is higher and the jury may have greater need
of that testimony.
3. Crimes of Dishonesty and False Statement
• 609(a)(2) admits prior convictions for crimes of dishonesty or false
statement without any consideration of undue prejudice even if they were
• Dishonesty or false statement must be an element of the crime-qualifies as
automatic admission
4. Time Limits
• The ten year limit is tied to the date of conviction or the release of the
witness from the confinement imposed by that conviction, whichever is later
• Judges have discretion to admit evidence of older convictions
5. Limiting Instructions
• Courts admit evidence of prior convictions under 609 for a limited
purpose-to suggest that a witness has an untruthful character
XX. Opinion or Reputation evidence of Untruthful Character
A. Introduction and Policy
• Prior inconsistent statements, questions about specific instances of conduct that
show untruthfulness, and evidence of criminal convictions are all effective ways
to discredit a witness
• 608(a) rule only allows general opinion or reputation evidence of character, not
testimony giving specific instances of conduct related to a witness’s truthfulness
or deceit
• Witnesses may only offer opinion or reputation evidence about another
witness’s character for truthfulness or untruthfulness
• A party may introduce evidence of a witness’s truthful character only after that
character has been attacked
B. The Rule
• 608(b) and 609 carve exceptions to the prohibition on character evidence
contained in 404(a).
C. In the Courtroom
1. Opinion or Reputation Evidence
• 608 does not allow parties to ask character witnesses questions on direct
examination that focus on specific examples of a fact witness’s
• Parties are allowed to cross-examine fact witnesses about incidents that
might reveal untruthfulness and they may present character witnesses who
offer opinion or reputation evidence about the fact witness’s truthfulness,
but they may not eleicit specific details from the character witnesses
2. Character for Truthfulness and Untruthfulness
• character witnesses may offer their opinion about a fact witness’s
untruthfulness under 608(a) but not other qualities
• parties must limit their inquiry to the witness’s character for truthfulness
or untruthfulness
3. Limited Purpose
• Evidence of untruthful character admitted under rule 608(a) is admissible
only to assess the credibility of the witness’ courtroom testimony; the
evidence is not admissible for other purposes such as establishing guilt or
4. When has Character Been Attacked
• 608(a)(2) allows parties to bolster a fact witness’s credibility with
evidence of a truthful character, but only after the witness’s credibility has
been attacked by opinion or reputation evidence or otherwise.
• Several courts have held that aggressively cross-examining a witness or
pointing out inconsistencies in the witness’s testimony is not an attack on
the witness’s credibility
• At least one court upheld the introduction of testimony supporting a
witness’s truthful character after the opponent impeached the witness by
introducing evidence of prior inconsistent statements
5. Applicable Only to Witnesses
• 608(a) only admits evidence related to a witness’s character.
• If an individual does not testify in court, parties cant rely upon 608(a) to
attack the person’s credibility.
XXI. Cross –Examining the Character witness
Introduction and Policy
• A party who wants to challenge a fact witness’s character for truthfulness may do
so in any of three ways:
o cross examine the witness about specific incidents suggesting a character for
untruthfulness under 608(b)(1)
o offer evidence of the witness’s criminal convictions under 609
o present a character witness who offers reputation or opinion testimony about the
fact witness’s character for untruthfulness under 608(a)
• The character witness may not give specific examples of the fact witness’s
untruthful behavior
• The party may not offer extrinsic evidence that shows specific instances of a fact
witness’s untruthfulness
• Once a fact witness’s character has been attacked a party may introduce evidence to
show the witness’s truthful character
• Evidence May take 3 forms:
o specific incidents suggesting a character for truthfulness, elicted from the fact
witness on redirect examination
o any extenuating circumstances related to the convictions also elicted from the fact
witness on redirect examination
o Opinion or reputation evidence suggesting a character for truthfulness offered by
a character witness
• 608(b)(2) allows parties to ask character witnesses on cross examination about
specific incidents of a fact witness’s behavior
The Rule
• Parties may not ask 608 character witnesses about specifics of a fact witness’s
conduct on direct examination, but opposing parties may ask the character
witness about specifics on cross examination.
In the Courtroom
1. Cross-examination of the Character Witness
• Cross examiners may only ask questions for which they have a good faith
supporting belief
• Judges have discretion to exclude questions when they will create unfair
prejudice substantially outweighing their prejudicial value
• Judges are much more likely to allow cross-examination of character
witnesses than of fact witnesses
2. Extrinsic Evidence
• Parties may cross-examine character witnesses about a fact witness’s
specific conduct, but they may not offer extrinsic evidence of that conduct
XXII. Religious Beliefs and Impeachment
A. Introduction and Policy
• 610 protects an important social interest in religious freedom
• 610 prohibits parties from using a witness’s religious beliefs to attack the
witness’s credibility
• 610 bars parties from using religious beliefs to enhance credibility
B. The Rule
• 610 Religious Beliefs or Opinions: evidence of the beliefs or opinions of a
witness on matters of religion is not admissible for the purpose of showing
that by reason of their nature the witness’ credibility is impaired or enhanced.
C. In the Courtroom
• 610 does not preclude evidence of religious beliefs when they are relevant to
other matters such as bias, damages or motives
XXIII. Character Evidence and the rules
Character, Reputation and Actions
• Character traits are internal: they reside within a person
• Reputation is external: it reflects what other people think about an individual
• We use action to construct an individual’s reputation.
• Reputation and specific acts often appear as circumstantial evidence of character
Four Categories of Character evidence
1. Proof of a witness’s propensity to lie or tell the truth
• The propensity to act in a particular way lies at the heart of all evidence
relating to a witness’s character to lie or tell the truth
• Propensity reasoning from character evidence consists of 2 steps:
o an assumption that someone with a particular character tends to act in a
particular way
o a conclusion that the person acted consistently with that tendency on a
particular occasion
2. Proof of conduct by propensity
3. Proof of character or reputation as elements
• A party may offer evidence of character or reputation for reasons that do not
depend on an inference of propensity
4. Proof of other acts for non-propensity purposes
XXIV. Evidence to Prove Character as an Element
. Introduction and Policy
*Character becomes an element in a defamation lawsuit, or child custody case
When character is an element of a crime, claim or defense, then all evidence related to
that character is central to the case
. The rule
405: methods of proving charcter: in all cases in which evidence of character or a trait
of character of a person is admissible, proof may be made by testimony in the form of
an opinion. On cross examination, inquiry is allowable into relevant specific instances
of conduct
405 allows proof of character through opinion or reputation evidence
On cross examination, the opposing party may ask one of these character witnesses
about specific acts
When character is an element of crime, civil claim or defense, the rules of evidence do
not limit parties to opinion or reputation testimony
The parties may introduce specific evidence demonstrating the disputed character
405(b) explicitly confirms that specific confirms that specific instances of conduct are
admissible to prove character as an element of a crime, claim, or defense
Evidence of specific conduct under 405(b) must satisfy the other rules of evidence.
405 makes clear that parties may prove character through specific actions as well as
through more general reputation or opinion testimony when character is a disputed
element of the case
. In the Courtroom
1. Foundation for opinion or reputation testimony
2. Good faith belief for cross examination on specifics
If a party uses opinion or reputation testimony to show a character trait, 405(a)
allows the opponent to cross examine the witness about specific incidents related
to that character trait
The cross-examiner must have a good faith belief that the incidents actually
3. Proof of specific incidents
When character is at issue in the case:
-the parties are not limited to general statements of opinion or reputation
-parties are not limited to probing specific acts on cross examination-they can
introduce evidence of direct examination
4. Relationship to 403 and other rules
Even when character is a centrally disputed element of the case, a judge may
exclude some type of evidence because the danger of confusion, delay, or unfair
prejudice substantially outweighs any probative value
5. What is character
Character includes almost any personality trait
6. When is character an element
4 categories of cases account for most lawsuits in which charater is an issue:
-child custody
-negligent entrustment
XXV. Using Character Evidence to Prove Propensity
A. Introduction and Policy
The tendency of jurors to rely heavily on propensity evidence raises policy concern:
risk of compromising the fundamental principal of justice-the promise to hold
defendants responsible only for their actions on a particular occasion, not for past acts
404(a) prohibits the use of character evidence when offered to show propensity
404(a) declares that parties may not use character evidence to prove that because a a
person had a propensity to act in a certain way, the person more than likely acted in that
way on a particular occasion
B. The rule
If evidence is being offered to prove action in conformity with the character trait on a
particular occasion, it is being offered as a propensity evidence and will almost always
be barred
C. In the Courtroom
. Good Character and Bad
404(a) bars evidence of bad and good character if that evidence is offered to prove
that a person acted consistently with their character on a particular occasion
. Any Person
404(a) bars the use of character evidence to prove the propensity of any person to
act in a particular way
404(a) applies even to people who never appear in the court room
404(a) aims to focus trials on particular disputed actions not on the character of the
XXVI. Exceptions to Propensity
Introduction and Policy
Mercy rule: criminal defendants should have as much latitude as possible to present a
Courts allow prosecutors to use character evidence to make propensity argumnents
usually in situations where they are responding to the defendants use of propensity

The Rule
Exceptions of 404(a)1-2 for propensity uses of character evidence apply only in
criminal cases
The exceptions allow only proof of pertinent character traits
404(a) allow proof about both the defendant’s character and the alleged victim’s
404(a) subsections distinguisg between when the defendant may introduce these types
of evidence and when the prosecutor may do so
The accused has considerable freedom to introduce character evidence about herself or
the alleged victim
The only limits on the defendants ability to introduce character evidence are the
evidence must relate to a pertinent character trait, and the evidence must comply with
the rape shield law
If the defendant offers character evidence about herself the prosecutor may rebut that
evidence with proof that the defendant lacks that trait or holds an opposite one
If the defendant introduces character evidence about the victim the prosexutor may
rebut the evidence by showing that the victim lacked that trait or held the opposite
one:The prosecutor may also introduce evidence that the defendant held the trait that
the defendant attributes to the victim
In homicide cases, The prosecutor does not have to wait for the accused to
introduce character evidence, the government may respond to any evidence that the deceased
attacked first

In the Courtroom
Character evidence admiotted under 404(a)(1)/(2) nust be pertinent to the crime or
Judges reject evidence as not pertinent even when the evidence probably satisfies
401’s generous definition of relevance
Matching Traits
The prosecutor must offer evidence on traits that match those raise by the defendant
Homicide cases
If a homicide defendant claims that the victim was the first aggressor, the
prosecutor may introduce evidence of the victim’s peaceable character regardless of
whether the defendant used character evidence to raise the issue
XXVII. Method of Proving Propensity in Criminal cases
Introduction and Policy
1. Proof of a witness’s propensity to lie or tell the truth
-Rule 608(b) cross examine witnesses
-Rule 608(a) reputation or opinion testimony
2. Proof of character or reputation as elements
405 allows parties to present both opinion/reputation and extrinsic evidence of
specific instances of conduct related to character
The rules of evidence allow propensity evidence only under narrow conditions and by
calling character witnesses to give opinion or reputation evidence
The rule
405(a) applies to proof of a defendant’s or victim’s propensity in criminal cases
In the courtroom
Laying a foundation
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
Cross-examination on specific acts
On cross-examination, the opposing party may decimate that witness by asking
questions related to specific bad acts
Relevant acts
Examiners may ask only about acts that are relevant to the character trait described
by the witness
Good faith belief
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
The standard for good faith is not very high
The attorney who is attempting to prove good faith will present the evidence to the
judge at the sidebar or in open court after the jury has been excused from the
Extrinsic evidence
A party who cross-examines a character witness about specific conduct under
405(a) must except the witness’s response
If the witness denies knowledge of the conduct, the cross-examiner cant introduce
evidence that the conduct really occurred.
The opposing party offer evidence disputing whether the conduct occurred
When a mistaken inference of bad behavior would be highly prejudicial, the judge
might allow the affected party to introduce extrinsic evidence disproving the
Limiting instructions
Rebuttal witnesses
The parties in a criminal case may present rebuttal character witnesses
The party calling the witness can only ask the rebuttal witness about his opinion or
the defendants reputation and cant inquire into specific acts
The attorney cross examing the rebuttal witness may inquire about specific acts to
test the knowledge of the witness, but she cant prove these specific acts with
extrinsic evidence.
XXVIII. Other Crimes, Wrongs or Acts
Introduction and policy
A party may introduce character evidence for any purpose other than to prove that a
person acted consistently with their character on a particular occasion
404(b) recognizes that actions that reveal a person’s character may also prove a variety
of facts material to the lawsuit
The rule: 404
Character evidence is not admissible to prove that a person acted in conformity with
their character
A party may not evade this prohibition by introducing evidence of specific acts that
prove character which is used to show propensity
If a party can cite any purpose for character related evidence other than raising the
forbidden propensity inference, 404 supports admission of the evidence
404 applies to civil and criminal cases
404(b) requires the prosecution to provide reasonable notice in criminal trials of its
intent to introduce evidence of prior crimes or other acts in the manner sanctioned by
this rule
Evidence of conduct related to character may be admissible to prove motive,
opportunity, intent, preparation
If a party can find any use of character evidence other than one that relies upon
propensity reasoning, they have a chance of admitting the evidence
In the courtroom
Evidence can be admitted to prove motive for a crime
Evidence to show a common plan or scheme may be admitted
The court may admit evidence of prior bad acts to identify that defendant is linked
to a crime
Identity prong works if 2 conditions are met:
-identity must be at issue
-there must be strong similarities between the charged and other crimes
Evidence may be admitted to prove that defendant had an opportunity to commit a
As long as the other act evidence proves a relevant fact without using the propensity
inference, the evidence is admissible regardless of what it is called
Evidence of other crimes, wrongs, or acts may also be admissible to prove that
defendant possessed the intent necessary to commit a crime.
Any other non-propensity purpose
Re-gestae: evidence necessary to complete the story
Subsequent crimes, wrongs and acts
Most of the other acts offered as evidence under occur before the charged crime
Civil cases
404 applies to civil and criminal actions
Good acts
404 applies to bad and good acts
Acts are admissible to prove any relevant fact other than one that requires
propensity reasoning
Rule 403
Several circuits require district judges to apply 403 before admitting any evidence
under 404(b)
Limiting instructions
When a judge admits evidence under 404(b), he gives a limiting instruction to the
XXIX. Habit
Introduction and policy
Lay preople use the word habit in 2 ways
-to denote a type of unconscious behavior
-to describe a general tendency or addictive behavior
Habit refers to specific, repeated responses to a particular situation or stimulus
406 allows litigants to present past examples of this specific behavior to prove that an
individual behaved the same during the incident that is the subject of litigation
Habit is admissible because it tend to be morally neutral, so there is less chance of
unfair prejudice resulting from its admission
Habit is admissible because this evidence has a higher probative value than propensity
The rule 406
Advisory committee: habit is one’s regular response to a repeated specific situation
406 allows admission of habit evidence whether corroborated or not and regardless of
the presence of eyewitnesses
406 allows a party to present uncorroborated evidence to the jury, but the jurors do not
have to accept it
Because 406 do not restrict manner of proof, courts allow attorneys to prove habit
through opinion testimony and specific instances of conduct
Habit evidence is admissible only if the proponent can show that the habitual behavior
is specific and frequently repeated
In the courtroom
Not just admissible, but possibly sufficient
Sometimes habit evidence can be sufficient to prove an act
Habit may be all that is needed to prove beyond a reasonable doubt that a person
acted a certain way on a certain occasion
Routine practice of an organization
Routine practice is the organizational equivalent of personal habit
Courts generally are more willing to accept routine practice evidence from a
corporation that habit evidence from an individual because the need for regularity in
business and the organizational sanctions that may exist
XXX. Rape Shield Law
A. Introduction and Policy
The rape shield law restricts the kind of evidence that can be introduced in sexual
assault cases
404 provides 2 opportunities for defense attorneys to admit evidence of a rape
victim’s sexual reputation or past sexual history:
-4042a expressly allows the defendant in a criminal case to offer evidence of a
pertinent trait of character of the alleged victim
-404b allows admission of other acts when offered to prove some other relevant fact
The rape shield laws reflrect a consensus that:
-a victim’s sexual reputation and prior sexcual history usually are not relevant to
prove whether the victim consented to a particular sexual act
-this kind of evidence often is unduly prejudicial to the prosecutor or other party who
calls the alleged victim as a witness
-robust protection of sexual assault victims is necessary to encourage them to come
forward and testify
412 allo defendants to offer exonerating evidence when used for a proper purpose
B. The Rule
1. The general prohibition
• 412 encompasses civil and criminal proceedings
• 412 applies only to trials involving alleged sexual misconduct-witnesses
can’t use 412 in other types of cases to exclude relevant inquiries about
sexual history
• In criminal cases, 412 may apply even if the prosecutor does not charge
a sex crime directly
• 412 bars both types of evidence that rape defendants previously offered
to show propensity; it prohibits evidence of specific acts and of
reputation or general character (sexual predisposition)
• 412 broadly bars evidence of sexual behavior or predisposition
regardless of the purpose for which a litigant offers that evidence
2. The exceptions
a. Criminal cases
• All evidence offered under 412’s exceptions are subject to 403’s
balancing test
• The first exception allows proof of an alleged victim’s prior sexual
conduct when that evidence suggests that someone other rhan the
accused was responsible for semen or other physical evidence
• The 2nd exception admits evidence of prior sexual encounters between
the alleged victim and the defendant
• The defendant may offer offer this kind of evidence for just one
purpose to prove consent, but the prosecutor may offer this evidence
for any purpose
• Standard of relevance: evidence that has a tendency to makje a fact of
consequence to the action more or less probable is relevant
The prosecutor can offer evidence of other non-consenual encounters between
the defendant and the victim in order to show a defendant’s motive, intent,
identity, and any other relevant fact recognized by 404b
The 3rd exception allows evidence of sexual acts or reputation in criminal
cases if excluding them would violate the constitutional rights of the
b. Civil cases
• Litigants cant offer evidence of an alleged victim’s sexual
acts of reputation to prove propensity
• Evidence of sexual acts or sexual predisposition is
admissible only if its probative value substantially outweighs the unfair
prejudice to any party
• 412 ensures that the court weighs the danger to the alleged
victim whether or not she is a party to the litigation
• Reputation evidence is admissible in civil cases involving
alleged sexual misconduct only if the alleged victim has opened the door
by presenting evidence of her own reputation-this does not apply to
evidence of sexual conduct.
3. Procedures
• A party intending to offer evidence of an alleged victim’s sexual activity
or reputation must give notice to the court, opposing counsel, and the
alleged victim 14 days before trial.
• The court must hold a secret, sealed proceeding involving both parties and
the alleged victim in order to determine whether the evidence is
C. IN the Courtroom
1. Physical evidence
2. Sexual behavior under 412(b)(1)(B)
Sexual behavior includes any kind of intimate contact between the alleged victim
and the defendant
Sexual behavior includes statements in which the alleged victim expresses an
intent to engage in sexual intercourse with the accused, or voiced sexual fantasies
involving the specific accused.
3. The catchall exception
4. 412 does not apply to prior false allegations of sexual assault because they do not constitute
sexual behavior.
5. Civil cases
6. Gender and sexual orientation
7. State rules
a. Broad prohibition with specific exceptios
b. Barring evidence offered for a specific purpose
The 2 most common prohibited purposes are to prove the alleged victim’s
consent and to attack the alleged victim’s credibility
c. Judicial discretion
9 states have no codified rape shield law, but give courts broad discretion to
admit or preclude any evidence of the victim’s prior sexual conmduct or
sexual reputation
XXXI. Propensity in Sexual Assault and Child
Molestation Cases
Introduction and Policy
413-415: the use of character evidence to prove a defendant’s tendency to commit
sdexual assaults or child molestation
413 allows prosecutors to introduce evidence of other sexual assaults commited by the
defendant and to use that evidence for any purpose to suggest that the defendant has a
propensity to commit sexual assaults in criminal prosecutions for sexual assaults
414 in prosecution for child molestation, the prosecutor may introduce evidence of
other molestations and argue that the defendant has a propensity to molest children
415 allows the same evidence and propensity reasoning in civil cases involving sexual
assault or child molestation

415 allows any civil party to introduce evidence of sexual assaults or child molestation
to prove propensity but plaintiffs are most likely to invoke ethe rule
2 arguments for the rules:
-individuals who commit sexual assaults or child molestation posses a distinctive
disposition, the desire to commit violent sexual acts or sexual acts with children, so
prior acts of this kind are unsually probative
-cases of sexual assault and child molestation are particularly hard to prove because
they frequently turn on the credibility of the victim and the defendant
3 objections:
404(b) already allowed parties to admit evidence of a defendant’s sexual misconduct if
it proved anything other than propensity
-413-415 increased the danger that a criminal defendant would be convicted based on
his past conduct rather than the charged crime
-413-415 allowed the prosecutor or plaintiff to offer evidence of sexual misconduct
even if the defendant had not been convicted any crime for those acts, the rules would
produce a number of distracting and time consuming mini trials.
The Rules 413-414
413/414 apply only to criminal cases that the defendant is charged with either sexual
assault or child molestation
413/414 allows admission of a single type of evidence: 413-sexual assault, 414-child
molestation 9this evidence is relevant for any purpose)
413/414 overrides 404(a)’s bar on propensity evidence for sexual assault and child
Given the unusual nature of evidence and its potency, the government must give the
defendant notice of the evidence it plans to present
413/4 don’t override other rules such as hearsay and privilege
Sexual assault focuses on physical rather than verbal conduct
Child molestation defines a child as a person below the age of 14
415 allows the plaintiff in a civil case involving sexual assault or child molestation to
introduce other similar conduct of the defendant to prove propensity or any other
relevant fact
In the Courtroom
1. Prior crime need not be proven
Any conduct that constitutes an offense of sexual assault of child molestation is
admissible under 413-415 regardless of whether formal charges were ever brought
for the prior conduct
413-415 have no time limit, although a judge may exclude conduct that occurred
many years ago under 403
2. Rule 403
413-415 explicitly require judges to recognize the probative value of prior sexual
assaults and child molestations to show the defendant’s propensity to commit this
tupe of acts
Courts consider:
-the length of time that has passed since the other acts
-reliabiltiy of the witness testifying about the other acts
-similarity of the other acts to those charged
-whether the government could make similar points with less prejudicial evidence
3. States not following suit
Not all states have adopted rules 413-415
4. Admitting prior acts of sexual assault and
child molestation w/o rules 413-415
Prior to the adoption of 413-415, federal courts occasionally admitted evidewnce of
other sexual assaults or molestations under 404(b) to show the defendant’s intent,
knowledge, motive, or plan.
XXXII. Preliminary Determinations
Introduction and Policy
Admissibility sometimes depends on a question of law
The jurors play no role in deciding questions of law that govern admissibility
The Rule 104
Section (b)
When relevance turns on resolution of a factual dispute, 104(b) tells the judge simply to
screen the sufficiency of the evidence
If the evidence survives this threshold scrutiny, the jury will resolve the factual dispute
Section (a)
This section governs resolution of preliminary factual issues that do not relate to
Default rule: except for issues of conditional relevance, the judge decides all
preliminary questions related to the admissibility of evidence
Rules of evidence do not apply to preliminary determinations
The judge may consider any evidence, even evidence that violates evidentiary rules
when deciding whether evidence is admissible
The rules of privilege do apply to [preliminary determinations
If judges could override those privileges when decideing whether to admit
evidence, parties would lose the confidentiality that privileges protect
Section (c)
The need to hold hearings outside the jury’s presence
Section (d)
104 allows the accused in a criminal case to testify on preliminary matters without
subjecting himself to cross examination on other issues in the case
Section (e)
Even if the judge admits evidence, the parties may dispute the value of that
The parties have a right to introduce evidence related to the weight or credibility of
other evidence that has been admitted
In the Courtroom
104(b) Relevance Depending upon the Fulfillment of a Condition of fact
Personal Knowledge
Sometimes the absence of personal knowledge is so clear that a judge will
exclude the testimony even after applying 104(b)
Evidence of other acts
Trial judges admit other act evidence as long as a reasonable jury could find the
factual condition that makes the evidence relevant
Factual determinations under 412
Other sexual assaults
104(a) Questions of Admissibility Unrelated to relevance
a. Timing of remedial
Deciding a dispute over the timing of a remedial measure does not affect
relevance, so the court decides that issue w/o deference to the jury
b. Whether repeated conduct
is propensity or habit
Even if the queston is one of fact, it is one that the judge will resolve under
104(a) because admissibility depends on apolicy line we draw between habit
and propensity
c. Other 104 determinations
Standard of Proof
Preponderance of evidence standard applies to all preliminary factual issues
resolved under 104
The preponderance standard governs civil and criminal cases-applies to issues
resolved under 104(a)/(b)
Use of the preponderance standard means that a trial judge can admit evidence
under 104(b) even when a previous jury has rejected the evidence under a
reasonable doubt standard
Burden of Proof
Judges usually place the burden of proof on the party offering evidence
Rule 403
If a preliminary factual dispute falls within 104(a) the judge usually resolves the
factual issue at the same time that he applies 403
A judge who finds the factual case for admissibility weak will be more inclined to
exclude evidence under 403
Even if sufficient evidence exists to support a finding of a prior act, the weakness of
that evidence may argue in favor of exclusion under 403
XXXIII. What is Hearsay and Why Don’t we Like
A. Introduction and Policy
Judges developed the hearsay rule and all of its exceptions to force litigants to present
the best possible testimony in the courtroom
All of hearsay doctrine stems from the idea that firsthand reports are more reliable than
second hand
Problems of Second Hand reports:
There is no way to check the accuracy and sincerity of secondhand reports
Secondhand testimony doubles the risk of faulty perception, memory, clarity and
Secondhand reports eliminate the fact finder’s opportunity to cross-examine the
original speaker
Statements made under oath are more likely to be true than are casual statements made
in everyday life
Secondhand testimony doubles the possibility that one of the reporters is mistaken or
Firsthand testimony can be tested by cross-examination
The finder of fact can better evaluate the confidence and sincereity of the information if
they can watch the individual report firsthand
At trial, firsthand testimony is made under oath in a formal, solemn setting
B. The Rules: 801 & 802
Hearsay requires a statement
The statement must be made by a declarant in a context other than testimony at trial
A party must offer the statement to prove the truth of the matter asserted
C. Courtroom
1. Declarants and Witnesses
A declarant is a person who makes a statement
A witness is aperson who testifies on the stand in the courtroom
Sometimes the witness and the declarant are identical while other times they are different
Identifying the declarant depends on what information matters to us
A statement made at any other time or place falls in the universe of statements that may
constitute hearsay
The first srep in applying the hearsay rules is to suspect all statements made anywhere but on the
witness stand in the current proceeding
2. Prior Statements by a witness
A witness’s prior statements are hearsay even if the witness testifies in court
XXXIV. The Truth of the Matter Asserted
A. Introduction and Policy
If a litigant offers the statement to prove the truth of the matter asserted it is
inadmissible hearsay
If a party offers the statement for any other purpose, it is not hearsay
If a party offers an out of court statement to determine the truth of the statements
content, it is hearsay
If a party introduces evidence of an out of court statement to demonstrate that the
statement was made, it is not hearsay
B. Rule 801
Common purposes for out of court statements that do not depend on the truth of the
matter asserted:
-Knowledge of the speaker
-Notice to a listener
-Publication in a defamation case
-Effect on the listener
-Legally binding Statements
As long as the other purpose is relevant to a dispute, an out of court statement is
admissible to prove any fact that does not depend on the truth of the matter asserted
C. Courtroom
1. Evidence relevant for multiple purposes
Many out of court statements are relevant to prove more than one fact and used for
more than one purpose.
The same statement can hearsay if used for one purpose but not hearsay if used for
As long as evidence is admissible for any purpose and the unfair prejudice does not
substantially outweigh probative value, the judge will admit the evidence and give the
jury a limiting instruction
2. Hearsay puzzles
Many witnesses testify that another person’s statement promted them to act in a
particular way; most of the time this is not hearsay
XXXV. What is a Statement
A. Introduction and Policy
A declrant can make a statement either orally or in writing
Declarants can make statements through actions; these assertive behaviors are
statements subject to the hearsay rules
Non assertive behaviors are not statements so the hearsay rules do not apply to them
Hearsay rules only prohibit statements offered for the truth of the matter asserted
If we need to assess the actor’s sincerity in oreder to rely upon the conduct, the conduct
contains an assertion and the hearsay rule applies
-if not, the actor was not trying to assert any fact and the jury is free to draw any
reasonable inference from the reported conduct
B. Rule 801(a)
Statement: assertion that can be made with or without words
An assertion is any action undertaken by the declarant that is intended to communicate
a fact
C. Courtroom
1. Assertive vs. Non-Assertive Conduct
The court must look at the context to see if the declarant intended to assert a fact
through her actions
2. Implicit Assertions
3. Audio Tapes
Recorded statements are hearsay only if a litigant offers them for the truth of the
matter asserted
4. Photographs and Videotapes
If a photo or videotape does convey verbal assertions or assertive behavior offered for
the truth of the matter asserted, then those assertions are statements subject to the
hearsay rule
5. Machine Readouts
Polygraph machines, breathalyzers, radar guns and many other devices use automated
processes to report information to law enforcement personnel and other people
outside the courtroom
If a machine conveys an assertion made by a person, the assertion is a statement even
though it is transmitted through a machine
If the machine generated information according to its own internal processes, then the
machine’s output is not an assertion by a person
XXXVI. Admissible Hearsay
A. Introduction and Policy
• All of the hearsay exceptions rest on 2 axioms:
1. reliability
2. usefulness/utility
• All hearsay statements are not created equal.
• Due to variations in reliability and probative value, courts are willing to admit
some types of hearsay
B. Four Categories of Exceptions
1. 801(d): Exemptions
2 types of out of court statements defined as not hearsay
a. prior statements by witnesses
b. statements by party-opponents are not hearsay
2. 804: Declarant unavailable
Applies if the declarant is unavailable to testify in court
Former testimony
Statement under belief of impending death
Statement against interest
Statement of personal or family history
Forfeiture by wrongdoing
3. 803: Availability of Declarant Immaterial
Apply whether or not the declarant is available to testify
A party may rely upon one of these exceptions if a declarant is technically available
but would be inconvenient to call as a witness
Apply when an available declarant fails to offer the courtroom testimony that a
party wants
Parties may rely upon these exceptions when a declarant genuinely is unavailable to
The rationale depends on reliability rather than need for the evidence
Present sense impression
Excited utterance
Then existing mental, emotional or physical condition
Statement for purposes of medical diagnosis or treatment
Recorded recollection
Records of regularly conducted activity
Absence of entry in records kept in accordance with the provisions of the previous
Public records and reports
Records of vital statistics
Absence of public record or entry
Records of religious organizations
Marriage, baotismal and similar certificates
Family records
Records of documents affecting an interest in property
Statements in documents affecting an interest in property
Statements in ancient documents
Market reports, commercial publications
Learned treatises
Reputation concerning personal or family history
Reputation concerning boundaries or general history
Reputation as to character
Judgment of previous conviction
Judgment as to personal, family or general, or boundaries
4. 807: Residual Exception
Other statements having equivalent circumstantial guarantees of trustworthiness
C. Who decides
• Admissibility of hearsay exceptions does not depend on their relevance
• Whether or not a statement fits into a hearsay exception depends upon the the
existence of specific facts
• The judge decides whether these factual conditions exist under rule 104(a)
• Every exception has its own conditions that must be fulfilled before the
exception will apply
• The proponent of a hearsay statements bears the burden of proving by
preponderance of the evidence that the statement fits into a given exception
• The preponderance standard applies to civil and criminal cases
D. Sixth Amendment
• 6th amendment guarantes a criminal defendant the right to be confronted by
witnesses against him
• Out of court statements takes away this right and defendant lacks an
opportunity to cross examine the witness
XXXVII. Prior Statements by Witnesses
A. Rule
2 conditions must be met to admit any statement:
1. declarant must testify at the trial
2. declarant must be subject to cross examination on the statement
Prior witness statements that are admissible:
1. statements that are inconsistent with the witness’s courtroom testimony
2. statements that are consistent with testimnony
3. Pre-trial identifications of a person
801(d)(1)(A) exempts a witness’s prior statement if the statement satisfies 3 conditions:
1. it is inconsistent with the witness’s current testimony
2. It was made under oath (ensures reliability)
3. It occurred at a deposition or during trial, hearing or other proceeding (ensures
These requirements ensure that the prior statement was recorded in some form
801(d)(1)(B) applies to prior consistent statements
It doesn’t require that the witness’s prior statement occurred under oath or at a
It limits the admissibility of prior consistent statements to situations in which a party
attempts to rebut the opponents claim that the witness has fabricated the testimony in
response to improper influence or some other motive
It maintains the hearsay ban when aprior statement would merely repeat the witness’s
Allows introduction of any identification of a person as long as the person who made
the identification testifies at trial and is subject to cross examination on the
Out of court identifications are more reliable than in court identifications because they
occur close in time to the event
Relies on reliability and need
B. In the Courtroom
1. Subject to cross examination
Cross examination requirement:
Witness is placed on the stand
Under oath
Responds willingly to questions
2. when is a statement inconsistent
a party seeking to introduce a witness’s prior statement must determine whether the
statement is consistent, inconsistent or an identification
when a witness aooears to be faking memory loss, the prior detailed statement is
inconsistent with the current claim of memory loss
most courts treat memory loss, real or feigned as inconsistent with a witness’s prior
detailed statements
3. Oath and Proceeding
Courts have held that interrogation sessions with police or other investigators are
not proceedings
Statements made at interrogation sessions are not admissible under 801(d)(1)(A)
even if they were made under oath
4. Timing of Prior Consistent Statements
Prior consistent statements are admissible regardless of when and how the witness
made them
A witness’s casual out of court statement to a friend may be admissible under
801(d)(1)(B) if it is consistent with the witness’s testimony in the courtroom (they
don’t have to be made under oath or in a proceeding)
A party may introduce a witness’s prior constituent statement:
1. only to rebut claims that the witness is lying, has a motive to lie, or has been
exposed to improper influences that would affect his testimony
2. only if the prior consistent statement occurred before the motive to lie or
improper influence arose
If the statement was made before the witness had a motive to lie, it is admissible to
prove that the witness had the same story
If the statement was made after the witness developed a motive to lie, it does
nothing to rebut the charge of fabrication and is inadmissible under 801(d)(1)(B)
5. Out of Court Identifications
801(d)(1)(c) admits any identification as long as the declarant is a witness and
subject to cross examination
The witness’s prior identification is admissible even if the declarant cant repeat the
identification ion court
C. Rule 801(d)(1) & 613: Prior Inconsistent Statements
Any prior inconsistent statement is admissible
Statement is admissible only to impeach the witness’s credibility
Judge will instruct the jury to use the prior statement only to assess credibility
Prior inconsistent statement must have been made under penalty of perjury, under oath,
at trial, hearing, other proceeding, or deposition
Party may rely upon the statement to prove the truth of the matters asserted
No limiting instruction

Parties may offer inconsistent statements to rebut a charge of fabrication or improper

influence and the consistent statement must have occurred before the motive to lie or
improper influence arose
A prior consistent statement is admissible to rehabilitate the witness’s credibility and
for its substantive content
Admitting Prior Statements under Rule 801(d)(1):
Prior statements must have been made by a witness at the current proceeding
Witness must be subject to cross-examination:
-witness with real or feigned memory loss are subject to cross
-witness who assert a blanket privilege are not subject to cross
-witness who claim privilege selectively may be subject to cross
801(d)(1)(A): Prior Inconsistent Statement
• Memory failure constitutes inconstitency
• Statements must have been given under oath subject to penalty of perjury at hearing
or other proceeding
• Grand jury and deposition testimony count as proceedings; statements to police and
investigators do not
801(d)(1)(B): Prior Consistent Statement
• Must be offered to rebut express or implied charge of recent fabrication or
improper influence or motive
• Prior statement must have been made before the motive to fabricate or improper
influence began
801(d)(1)(C) Identification
• Must be an identification of a person
Statements are admitted for the truth of the matter asserted, not merely to impeach a
XXXVIII. Present Sense Impressions and Excited
A. Introduction and Policy
• 803(1) exempts present sense impressions from hearsay ban
• 803(2) governs excited utterances
• Present sense impressions are statements that describe an event as it unfolds
• Excited utterances come from excited people responding to a startling event
• FRE permit parties to introduce present sense impressions and excited utterances
because these statements are reliable
• A person who describes an event as it unfolds before him lacks time to formulate
a lie
• A person responding to a startling event has a little opportunity to concoct a lie
B. Rule
• applies regardless of the declarants availability
• relieves parties of the burden of producing the declarantr or proving that he is
• applies only to descriptions or explanations of an event, not to more complex
• analyses or interpretations
• For a statement to qualify as present sense impresson, the declarant must
make it while perceiving the event or immediately thereafter
• The time lapse must be short enough that the speaker has no time to create a
• the declarant must speak while excited by a startling event (subjective standard)
• An excited utterance must relate to the startling event
C. Courtroom
1. Description or Analysis
• Analysis invokes more complex mental processes that may
provide an opportunutiy for deception
• The absence of anaylsis suggests that the speaker is not engaging
the mental processes that might support decpetion
2. Immediately Thereafter
• 803(1) grants a small amount of flexibility in timing-descriptions made
immediately after an event may be admissible
3. Startling events and excited declarants
4. Relating to the event
• Excited utterance relies on the declarants excitement rather than on her
descriptive focus to enhance reliabilty
5. How long does excitement last
• The existenxe of excitement depends on the facts of a case
6. foundation
• to show a present sense impression:
-the declarants in court testimony, affirming that she made the statement as she
perceived the event
-Testimony from other witness’s who can confirm that the declarant made the
statement while the event unfolded
• Proponents of excited utterance:
o Declarant’s in court testimony affirming that he was excited when
making the statement
o Testimony from witness about who perceived the declarant when he
made the statement; these witness’s can testify to:
-declarancts mannerisms and tone of voice when he made the
-the time that elapsed between the provoking incident and the
-the declarant’s relationship to the provocation
-evidence about the declarant’s age, prior experiences and other
characteristics that might affect how excited the declarant would
become in certain situations
-evidence about the how traumatic or exciting the event was which
provoked the declarants statement
XXXIX. State of Mind
A. Rule 803(3)
803(3) covers only statements about the declarant’s then-existing state of mind
Internal states that a declarant might describe: emotion, sensation, physical condition,
state of mind
Statements of memory or belief are not admissible under this exception when they are
offered to prove the fact remembered or believed
An out of court statement of memory or belief is admissible to prove the fact
remembered or believed if that fact relates to the validity of the declarant’s will
B. Courtroom
1. What is a state of Mind
Courts redact out of court statements like this to admit the phrases in which a
declarant expresses a state of mind and exclude others falling outside any hearsay
2. Circumstantial Evidence of Mental State
Statements about external facts or events don’t qualify as expressions of a state of
mind admissible (may be admissible to prove state of mind)
3. I think I believe I remember
I think I believe, or I remember often are statements that introduce external events or
facts which are inadmissible
4. Looking Back
The length of time has elapsed between the declarant’s expression and the relevant
time period is an important factor in the balance
5. Looking Forward
A declarant’s expressed state of mind at one moment also offers circumstantial
evidence about what the declarant did or thought at a later time
6. Looking Forward with someone else
A declarant’s expression of intent offers circumstantial evidence that the declarant
acted on the intention
Hillmon’s narrow rule: a declarant’s expressed intention is admissible to prove the
declarant’s subsequent acts
Hillmon’s broad rule: a declarant’s expressed in tent is admissible to prove another
person’s actions
the federal courts have adopted varied approaches to the continuing vitality of
Hillmon when a declarant’s intent is used to prove another person’s conduct
XL. Statement for Medical Diagnosis
A. Introduction and Policy
Statements to obtain medical diagnosis or treatment are more reliable than most out of
court statements
803(4) serves a need for efficiency
Any statement made by a patient that appears in a medical record is admissible
B. Rule
803(4) applies whether the declarant is available or unavailable
The declarant must make the statement for the purposes of getting a medical diagnosis
or treatment (subjective requirement)
The statements must be reasonably pertinent to diagnosis or treatment (objective
The statements must fit within one of the 3 categories:
1. accounts of medical history
2. descriptions of past or present symptoms, pain, or sensations
3. reports about the inception or general character of the cause or external source of the
803(3) has no time limit
The declarant may refer to external facts if those facts are pertinent to obtaining
medical care
C. Courtroom
1. Who is the declarant
The rationale behind the rule assumes that the declarant usually is the patient needing
medical diagnosis or treatment (rationale applies to family members too)
2. Who is the audience
803(4) doesn’t require that the person seeking medical treatment communicate with a
physician or other medical professional
803(4) applies to statements made to anyone as long as the declarant made the
statement for purposes of medical diagnosis
3. Diagnosis or treatment
803(4) allows parties to admit statements made to doctors who they consulted purely
to prepare for litigation
A patient may even obtain this type of diagnosis after the condition has been treated
and cured by other doctors
Under 803(4) the doctor can report to the jury any statement the victim made as long
as the statements were pertinent to diagnosis and fit the other other conditions of the
4. Cause and source vs fault and blame
803(4) includes statements that a patient makes describing inception or general
character of the cause or external source of the condition when those statements are
pertinent to medical care
803(4)’s pertinence requirement combined with the limited referernce to the general
character of the cause or external source of the condition, excludes most references to
blame or fault
5. Psychologists and psychiatrists
Most professionals/courts agree that no defensible line exists between ohysical and
psychological conditions
6. Medical treatment for domestic or sexual abuse
Some courts have held that treatment of a patient suffering regular ongoing abuse
may include separation of the patient from the abuser (the identity of the abuser is
pertinent to formulate appropriate treatment)
Effective psychological treatment of an abuse victim may require the doctor to know
who caused the abuse
XLI. Recorded Recollection
. Introduction and Policy
803(5) allows admission recorded recollection
Recorded recollections are reliable because:
1. they were made when the declarant’s memory was fresh
2. the declarant is available to testify in court, under oath, and subject to cross-examination
Recorded recollection applies only when the witness can no longer recall the information
that was recorded
. Rule
803(5) applies only when the declarant testfies as a witness
. Admissibility of Recorded Recollection
6 requirements:
-out of court statement appear in a memorandum or record
-the witness testifying in court must either be the declarant who made the record or
person who saw the record and agreed that it was true
-the declarant/witness must testify that she once had knowledge about the information
contained in the record and that she made or adopted the record at the time when she had
that knowledge
-the witness must have made or adopted the record at time when her knowledge was fresh
-the witness must testify that at the time she made or adopted the record she knew that it
accurately reflected the knowledge that she had
-the witness must now have no recollection about the information contained in the record
. Introducing Evidence
803(5) does not all the party offering a recorded recollection to introduce the document
directly into evidence as an exhibit
An adverse party may choose to introduce the document as an exhibit
. Courtroom
. Insufficient recollection
803(5) allows admission of recorded recollection only when a witness lacks current
memory of an event
Courts enforce this requirement to prevent parties from circumventing the hearsay rule
and bolstering their testimony with previous statements
. Made or adopted
803(5) recognizes that witness need not memorialize a recollection himself
If a witness refuses to adopt a statement, then 803(5) does not allow its introduction
into evidence
. Freshness
803(5)’s requirement that a witness record informnation when the matter was fresh in
the witness’s memory does not require contemporaneous notetaking
. Beyond writings
Judges have construed the rule’s reference to record broadly to include audiotapes and
other media
5. Recorded Recollection and Refreshment
Need arises when: witness cannot recall details of an event or other matter of which
they once had personal knowledge
What witness does: looks at document to jog memory, then testifies orally without
referring to document
What type of document: any document that will halp witness remember; the witnss
need not have created or adopted the document
Who may introduce document into evidence: only adverse party
Related to hearsay: document is not admitted into evidence unless adverse party offers
it; witness testifies directly from memory after refreshment so there is no hearsay issue
Need arises when: witness cant recall details of an event of other matter of which they
once had personal knowledge
What witness does: reads into record information from a document or other recording
What type of document: one that the witness made or adopted when the matter was
fresh in the witness’s memory; recording must correctly reflect witness’s personal
knowledge at time it was recorded
Who may introduce evidence: only adverse party
Relationship to hearsay: statements contained in the record are admitted as an exception
to the hearsay rule; jury may consider content of document as read into record by
witness for the truth of the matters asserted
XLII. Hearsay within Hearsay
A. Introduction and Policy
Hearsay within hearsay (multiple hearsay): out of court report containing out of court
805 allows hearsay within hearsay to be admitted as long as each out of court statements is
If each layer of hearsay fits into its own exception, the entire statement is admissible
If either of the layers fails to fulfill the requirements of an exception the statement is
inadmissible to prove the truth of the matter asserted by the original declarant
B. Rule
805 Hearsay within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule provided in these rules
C. Courtroom
1. Laying a foundation
With multiple hearsay the courtroom witness usually lacks information about early
declarants in the communication chain
Without that information it can be challenging to establish the foundation needed to
admit those initial statements
2. Multiple layers and truth of the matter asserted
XLIII.Business Records
A. Introduction and policy
Business records are more reliable because:
-organizations generate most of these documents according to well established, rountine
-the organizations procedures are likely to reduce mistakes in documentation and to detect
those that do occur
-organizations rely upon documents to make important decisions
803(6) admits nearly every document that an organization generates in the ordinary course
of business
Business: include any type of organization or association, whether or not conducted for
B. Rule
803(6) applies whether or not the declarant is available to testify
803(6) applies to any memorandum, report, record, or data compilation in any form, of
acts, events, conditions, opinions, or diagnosis
The information could be a conclusion, analysis, or opinion as long as the document
complies with the other conditions of 803(6)
It must have been recorded by:
-a person with personal knowledge of the data
-a person who received that information from someone else in the organization with
personal knowledge
The personal knowledge provision requires information to be recorded at or near the time
that the data arose
Organizational records needs to be recorded within a reasonable time as guided by the
needs of the organization itself
The organization must have made the record in the course of a regulary conducted business
activity and the organization must have a regular practice of keeping records:
-they ensure that the recordkeeping is a routine process which will tend to make the
recordkeepers more accurate
-they ensure that those who keep the records know that the company will rely on the
records to be accurate
A qualified witness must introduce the record into evidence
Custodian: the person who maintains the record for the organization
Any person with the necessary knowledge to lay a proper foundation for admission of a
document is qualified to introduce the document
803(6) provides a caveat that a business record is not admissible if the source of the
information or the method or circumstances of preparation indicate lack of trustiworthiness
803(6) includes documents prepared not only by traditional for profit companies but by any
business, instution, association, profession, occupation and calling of every kind
C. Courtroom
. What is a business
Personal records kept for business reasons can qualify for the exception as long as they
meet all conditions of the rule
. Who is a custodian or other qualified witness
This witness must be able to testify that:
-the record was kept in the course of a regularly conducted business activity
-the record was kept in the regular practice of business
-the record was made by a person with personal knowledge of the recorded information
or from information transmitted by a person with personal knowledge
803(6) allows a custodian or other qualified witness to provide a written statement
certifying the foundational requirements for a business record
. Regularly conducted business activities and regular practices
The record was kept in the course of a regularly conducted business activity ensures
that the organization relies on the document as part of its regular business
Regular practice of business activity to keep record means the organization must make
this type of record on a regular basis
Documents prepared on an irregular basis are more likely to contain self-serving
statements created for litigation or other unreliable comments
. Lack of trustworthiness
803(6) excludes the record if the source information or the method or circumstances of
preparation indicate lack of trustworthiness
. Insiders, outsiders and double hearsay
803(6) admits records made by one person from information transmitted by another
person with knowledge of the business facts (doesn’t include customers or other 3rd
parties who provide information)
Any information perceived directly by the organization’s employees will fall within the
business records exception
Statements made by 3rd parties constutitue a separate level of hearsay; they do not fall
within 803(6)
The court must redact these statements by organizational outsiders or identify a
separate hearsay exception to support their admission
If the information originated from a member of the organization and if it traveled a
route composed exclusively of organization insiders then the information falls within
Information originating from outsiders does not fall within 803(6)
XLIV.Public Records
A. Introduction and Policy
803(8) allows parties to admit public records into evidence for the truth of the matter
-these records are more reliable than most other hearsay statements
-public records are more useful than other kinds of hearsay
B. Rule
803(8) encompasses any records, reports, statements, or data compilation in any form
803(8) applies to all public offices or agencies (any government agency)
803(8)(A) admits activities of the office or agency; documentation of all the things that an
agency actually does
803(8)(B) admits records of matters observed by the public agency-includes a wide range
of concrete facts that a public agency might observe
-applies only to matters that the agency has a duty to observe and report
-excludes all records of observations made by police and law enforcement personnel when
offered in a criminal case
-policy reasons:
1. law enforcement personnel have a strong interest in ensuring that criminal defendants
are convicted so their observations may not be neutral
2. the 6th amendment guarantees criminal defendants the right to confront witnesses against
803(8)(C) admits factual findings resulting from an investigation
-results of a government investigation are not admissible against a defendant in a criminal
-includes the opinions and conclusions of the investigator as well as the underlying facts
-the investigation must have been conducted pursuant to authority granted by law
-the results of a government investigation are not admissible if a trial judge finds a lack of
C. Courtroom
1. Law enforcement and criminal defendants
A police report recording observations about the scene of a crime woiuld be
admissible in a civil lawsuit
A prosecutor may introduce records based on observations by other types of public
Courts prevent prosecutors from introducing records of law enforcement observations
only when they were made in an adversarial setting
2. Lack of trustworthiness
Determining whether a public record of an investigation is trustworthy:
-the timeliness of the investigation
-the special skill or experience of the official conducting the investigation
-whether a hearing was held by the public agency prior to the report being made
-whether the motivations of the public agency is suspect
If a record falling within (A) or (B) appeared untrustworthy a court could invoke 403
to exclude the document
3. Factual findings
Courts interpret factual findings broadly to encompass all facts, opinions and
conclusions found in the report of an investigation
4. Hearsay within hearsay
Investigators may rely upon third party statements to generate their own opinions and
XLV. Other Exceptions
A. Rules
Absence of a record rarely would constitute an assertion falling within the hearsay rules
To admit absence of a business record:
-the proponent must show that the records containing the omission are kept in
accordance with 803(6)
-the party must show that the absence relates to a matter about which the business
regularly made and preserved records
-the proponent must be prepared to rebut any argument that the absence of a record is
unreliable under the circumstances of the particular case
1. Absence of Business Records or Public Records
803(10) the proponent must show that the absent record relates to a matter for which
the public agency regularly made and preserved records
2 ways that the party can prove the record’s non-existence:
-the party may call a witness to testify that a diligent search was made and no record
was found
-the party may present a certified document from the agency attesting that a diligent
search failed to yield the particular document
2. Statements in ancient documents
Documents written many years before a dispute arises are more reliable than other
writings because the author’s motive is less open to suspicion
These documents are more useful than other hearsay because the declarant who
produced the document is unlikely to be available
The document must be at least 20 years
The party offering the document must establish its authenticity
803 (16) admits the writing but I does encompass hearsay reported within the
3. Market reports, commercial publication
Reasons to admit:
-need for information
It applies to directories and lists that the general public uses and to more specialized
tabulations that members of a particular occupation generally use and rely upon
The document must be one of market quotations, tabulations, lists, directories or other
published compilations
A party offering evidence must show that it is generally used and relied upon by the public or by
persons in a particular occupations
4. Learned treatises
803(18) allows parties to introduce learned treatises only in connection with an
experts testimony
The treatise must be called to the attention of an expert witness during cross-
examination or relied upon by the expert witness during direct examination
Statements from a learned treatise may be read into evidence but may not be received
as exhibits
803(18) requires the proponent of a learned treatise to establish that the treatise is a
reliable authority
3 routes to lay foundation:
1. the expert witness who relies upon or acknowledge the treatise may confirm that
the treatise is a reliable authority in the field
2. another expert witness may establish that fact
3. the judge may take judicial notice of the treatise’s authoriativeness
803(18) encompasses learned treatises in almost any field of study as long as an
expert certifies a text as reliable authority in a relevant field
B. Courtroom
1. Foundation and Testimony
The party cant introduce the treatise itself into evidence
2. Purpose of Admission
Although learned treatises are not admitted into evidence in their entirety, the
statements read aloud by witnesses are admitted as substantive evidence
3. Emerging Issue
A. Rule
1. Privilege
If a witness invokes a privilege and the court agrees that the privilege shields the
witness’s testimony, then the witness is unavailable
2. Refusal to Testify
Judge may hold the witness in contempt and impose a penalty for her refusal to testify
3. Lack of Memory
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
4. Death, Physical Illness, Mental Illness
The physical or mental illness must be sufficiently disabling that:
1. the declarant cant come to court to testify
2. there is little likelihood of recovery within a reasonable time
5. Absence
Commonly arises when:
1. the party cant find the declarant after making a diligent search
2. the declarant refuses to come to court and is currently outside the court’s
The party must use any reasonable means in addition to serving a subpoena to
persuade the declarant to attend trial
The proponent must use reasonable means to take the declarant’s deposition if the
declarant will not attend the trial
A party offering that witness’s out of court statement cant cause that unavailability
through wrongful means
B. Courtroom
The proponent of hearsay statement offered under 804 has the burden of proving that
the declarant is unavailable
1. Privilege
To show unavailability on the basis of privilege a party usually must call the declarant
to the stand to question
2. Refusal to testify and lack of memory
A party must call the declarant to the stand
Parties often make this showing outside the jury’s presence
3. Death or incapacity
A party usually introduces a death certificate or other evidence of the declarants
The proponent of the evidience must introduce documentary evidence or live
testimony to show the declatrants condition
If the declarant’s illness is temporary, he is likely to recover within a reasonable time
and the trial can be continued until that time w/o undue prejudice to the parties
4. Absence
To demonstrate that a declarant cant be found or brought to court, a party must show
a good faith, genuine effort to procure the declarant’s attendance
XLVII. Former Testimony
Rule 804(b)(1)
• The party offering the former testimony must show that the declarant is
• The prior testimony must have been given at a hearing or deposition (ensures that
declarant made statement under oath and in formal setting)
• If a party can satisfy the other requirements of 804(b)(1), testimony from other
lawsuits is admissible.
• The opposing party must have had an opportunity to question the declarant in the
prior hearing or deposition.
• The opposing party need not actually have conducted an examination in the prior
• The opposing party’s motive in questioning the declarant in the prior hearing must
have been similar to the motive the opposing party would have in cross-examing
the declarant in the current hearing or trial (ensures that prior questioning
substitutes adequately for the absent cross-examination in the current cause)
• 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
• In civil cases 804(1)(b) allows a party to introduce evidence as long as the
opposing party or his predecessor in interest has an opportunity and similar
motive to cross examine the witness.
• In civil cases, the courts have been willing to admit prior testimony as long as a
party in the prior proceeding had a motive to develop the declarant’s testimony
that is similar to the motives of the current opposing party
1. Similar Motives
804(b)(1) enhances the reliability of prior testimony by admitting these statements
only when the opposing party had a similar motive to develop the declarant’s
testimony at the prior proceeding
In criminal cases most courts are reluctant to find that a party’s motive during a pre-
trial hearing are sufficiently similar to those at trial
Courts usually hold that pre-trial depositions in civil cases are admissible under
804(b)(1) when a witness becomes unavailable
4 factors when determing whether an opposing party had a similar motive:
(1) the type of proceeding in which the testimony was given
(2) trial strategy
(3) potential penalties or financial stakes
(4) number of issues and parties
Whether or not the opposing party had a similar motive to develop testimony in the
prior proceedings is based on the facts of the case and the legal issues involved in
each proceeding.
2. Against the Same Party in Criminal Cases
In criminal cases 804(b)(1) supports admission of prior testimony only if the
opposing party had the opportunity to cross-examine the witness at the prior
The rule recognizes no predecessors in interest or other substitute cross-examiners in
criminal cases
The opposing party must have appeared in the prior proceeding and had an
opportunity to develop the witness’s testimony
3. Predecessors in Interest
In civil cases a litigant may introduce former testimony as long as the opposing party
or that party’s predecessor in interesy had an opportunity to develop the witness’s
testimony at the prior proceeding
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
4. Opportunity to Develop Testimony
804(b)(1) admits prior testimony as long as the party or predecessor in interest:
(a) had an opportunity to develop the declkarants testimony at a prior proceeding
(b) during the prior proceeding, has a motive for developing testimony similar to the
current opposing party’s motive for cross examination
5. 804(b)(1) and 801(d)(1)(A)
Declarant Must be unavailable
Content of statement: any content
Context of prior statement:
Must have been under oath
Made at a prior proceeding at which the opposing party (in a civil case, a predecessor
in interest) had the opportunity to cross-examine or develop testimony on direct, and
had a similar motive as in the current proceeding
Declarant: must testify at current hearing or trial, must be subject to cross-
examination concerning the statement
Content of statement: inconsistent with current statement
Context of prior statement: must have been made under oath
Made at any prior proceeding, deposition or grandjury presentation.
XLVIII. Dying Declarations
A. Rule
804(b)(2): Dying Declarations
Applies only if the declarant is unavailable
Applies only in homicide prosecutiontions and civil proceedings
The declarant must believe that death is imminent when he males the statement
(subjective requirement)
The content of the statement must concern the cause or circumstances of the
declarants death
B. Courtroom
1. When is death imminent
• the declarant must have a settled hopeless expectation that death is near
at hand
• the statements must be spoken in the hush of its impending presence
• the declarant must have spoken with the consciuousness of a swift and
certain doom
it is the impression of almost immediate dissolution and not the rapid succession of
death, that renders the testimony admissible
a declarant’s sincere belief that death will occur swiftly and inevitably is more
important than any specific time limit in determining whether a statement qualifies as
a dying declaration
2. Dying declarations and other exceptions
Many dying declarations are admissible under other hearsay exceptions such as
excited utterance, state of mind, statements to obtain medical treatment, and forfeiture
3. Proving state of mind
The judge decides whether the conditions supporting admission of a dying declaration
The party offering the dying must prove this belief by a preponderance of the
To prove this belief courts most often consider:
o Statements by declarant
o Statements made by medical personnel and others to the declarant
o The nature and extent of the wounds or illness
o The length of time between the statement and the declarant’s death
o The opinion of medical personnel who treated the declarant about the
declarant’s health
XLIX. Statement against Interest
804(b)(3): Statement against Interest
The declarant must be unavailable for the exception to apply
The statement must be against the declarant’s interest at the time it was made
-If the declarant believes a statement is against his interest at the time he makes it the
statement qualifies for the exception even if it ends up doing the declarant no harm
-If the declarant makes a statement that seems innocuous when made, the statement falls
outside the exception even if later circumstances render the statement incriminating
The statement can be against a declarant’s interest if it:
-is contrary to her pecuniary or proprietary interest
-expose her to civil or criminal liability
-render invalid a claim the declarant has against another person
Any statement that exposes the declarant to criminal liability is admissible to exculpate a
criminal defendant only when corroborating circumstances clearly indicate the statements
What is against interest
The statement must be so far contrary to a declarant’s interest that no reasonable person
in the declarants position would have made the statement unless believing it to be true
Other interests
804(b)(3) admits only:
-statements against pecuniary or proprietary interests
-those that subject the speaker to civil or criminal liabililty
-those that extinguish a legal claim held by the speaker
Minimizing guilt
A declarant sometimes makes a statement that admits wrongdoing but minimizes her
role while blaming others
Under these circumstances, the court must decide whether the statement was really
against the declarant’s interest
Mixed statements
The supreme court has held that courts must admit only portions of the narrative that
were against the declarant’s interst
Trial judges must redact the collateral statements, whether they are neutral or shift
blame onto someone else
A statement against interest exculpating a criminal defendant is admissible only if
corroborating circumstances clearly indicate the trustworthiness of the statement
Most courts require corrboration both of the declarant’s trustiworthiness and of the
statement’s trustworthiness
The courts consider 6 factors in determining whether this type of statement is
sufficiently trustworthy to admit:
1) whether the declarant had pled guilty before making the statement or was still
exposed to prosecution (how far against the declarant’s interest the statement was at the
2) the declarant’s motive in making the statement and whether there was a reason for
the declarant to lie
3) whether the declarant repeated the statement and did so consistently
4) the party or parties to whom the statement was made
5) the relationship of the declarant with the accused
6) the nature and stregngth of independent evidence relevant to the conduct in question
A criminal defendant who offers an exculpatory statement under 804(b)(3) bears the
burden of proving trustworthiness to the judge, the defendant must prove that fact by a
preponderance of the evidence
L. Forfeiture
A. Rule
804(b)(6) Forfeiture by Wrongdoing
The opposing party must have engaged or acquiesced in wrongdoing
-it does not apply to parties who use legitimate means to dissuade a witness from
The opposing party must have intended to make the declarant unavailable
-if the declarant’s absence was an unintended consequence of the party’s wrongdoing
the exception does not apply
The wrongdoing must have caused the declarant to become unavailable
B. Courtroom
1. What is wrongdoing
Courts have interpreted the wrongdoing language to mean coercion, under influence,
or pressure to silence testimony and impede the truth-finding function of trials
Persuading a witness to claim a privilege or forego testifying does not fall within
2. Acquiescing in the wrongdoing
The proponent only needs to show that the opposing party acquiesced in the improper
Evidence that the opposing party tacitly agreed to the wrongdoing is sufficient
Sometimes bare knowledge of a plot and failure to give warning to appropriate
authorities is sufficient to constutitite forfeiture
If the opposing party is a member of a conspiracy, the opposing party need not even
know about the wrongdoing as long as the court determines that the wrongdoing was
part of the conspiracy
3. Intent
The forfeiture exception applies only if the opposing party committed a wrongful act
with the intent of making the witness unavailable
The proponent need not prove that the opposing party’s only motive was to prevent
the witness from testifying
As long as the opposing party was motivated in part by a desire to silence the witness,
the forfeitutre exception applies
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
The forfeiture exception may apply when a party intimidates a potential witness
LI. Statements by Part-Opponents
A. Rule
801(d)(2): Admission by Party-Opponent
A party’s statement must be offered against that party; a party cannot introduce his
out of court statement
801(d)(2)(B) admits any statement by another person that the party has adopted as her
801(d)(2)(C) admits any statement by a person that the arty authorized to speak on
that subject
801(d)(2)(D) admits most statements made by the party’s agents or employees
B. Courtroom
1. Opponents
Parties can’t introduce evidence of their own statements; they can only offer
evidence of an opponents statements
This prevents parties from offering evidence of self serving statements
Allowing parties to introduce their own out of court statements would effutate an
end run around the adversarial process by, in effect, testifying without swearing
an oath, facing cross examination, or being subjected to first hand scrutiny by the
2. Admissions
Statements admissible under this rule do not have to be admissions
Admission is intended to refer to any statement that an opponent seeks to
3. Personal Knowledge
It allows introduction of an opposing party’s statements even if the opposing party
had no personal knowledge of what he was saying
A party seeking to preclude her own statements can object under 403
4. Party’s Availability Immaterial
Applies only if the declarant has testified as a witness
It does not require availability
Even when a criminal defendant invokes the priviliege against self incrimination
and declines to take the stand, the government may introduce evidence of the
defendant’s out of court statements
5. Admission by Adoption-Signing a Document
Provide that a party’s admission need not consist of the party’s own words
It is sufficient if the party has manifested an adoption of a statement or a belief in
its truth
One common way to adopt a statement is to sign a document prepared by others
6. Admission by Adoption-Silence
An individual’s silence can constitute an adoptive admission-m the circumstances
must be such that a reasonable person would speak up rather than remain silent
Weston-Smith standard to determine whether silence constitutes n adoptive
Whether the circumstances as a whole show that the lack of denial is so unnatural
as to support an inference that the undenied statement was true
7. Agents
Statenments made by the party’s agent or employee concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship is admissible
A agent is someone authorized to act for a party on a particular matter
A servant is an employee with more a regular relationship to a party
It includes statements that an agent/servant makes to outsiders as well as those
made within the agency or employment context
8. Authorized Speakers
Includes any statements by a person that the party uthorized to make a statement
concerning the subject
9. Criminal Defendant’s
Admits party statements in both criminal and civil cases
if the defendant takes the stand to rebut or explain the out of court statements, the
prosecutor may be able to introduce evidence of the prior convictions to impeach
the defendant as a witness

LII. Statements by Party-Opponents and Multiple Parties

A. Rule
801(d)(2): Admission by Party Opponent
1. Offensive use: Statements Offered Against a Party on the Same Side
Authorizes any litigant to introduce a party’s statement against a party
As long as one defendant offers a codefendant’s out of court statement against that
codefendant, it is admissible
Permitting parties to introduce their own statements would let them circumvent the
oath and cross-examination requirements at trial
As long as codefendants/co-plaintiffs interests are sufficiently adverse that the other
defendant/plaintiff is offering an out of court statement against that person, it is
2. Defensive Measures: A statement’s Application to Other Parties in Civil Cases
Allows a litigant to introduce a party’s own statement against that party, but it does
not authorize admission of the statement against anyone else
In civil cases, introduction of an out of court statement against the party who made
the statement, but not against other parties is admissible
The judge will protect the other parties by: (1) offering a limiting instruction, (2)
redacting the out of court statement, or (3) excluding the statement under 403
depending on: (1) the probative value of the out of court statement, (2) the unfair
prejudice to other parties, and (3) other evidence in the case
In a criminal cases, 801(d)(2) applies in exactly the same way as civil
-courts must consider the criminal defendant’s rights under the confrontation clause
of the constitution
B. Confrontation Clause
the courts have determined that if one defendant makes a statement that impliucates
himself and a codefendant, a limiting instruction may be insufficient to cure the unfair
prejudice to the codefendant
the sixth amendment gives criminal defendant’s aright to confront the witness’s
against them
admitting one defendant’s out of court statement that implicates a codefednat violates
the codefendant’s 6th amendment rights
an out of court statement implicating the codefendant is so powerful that a limiting
instruction is not sufficient to cure the 6th amendment violation
the 6th amendment offers these options to a prosecutor who obtains an out of cour
admission from one of several defendants:
1) the prosecutor can redact the defendant’s admission so that it does not iplicate any
other defendant’s
2) The prosecutor can hope the defendant who made the statement will testify, try to
persuade that defendant to testify by offering an attractive plea bargain, or compel the
defendant to testify by granting immunity
3) the prosecutor can sever trial and try each of the defednat;s separately introducing
the out of court admission against the defendant who made the statement at that
defendant’s trial
4) the prosecutor can forego use of the statement, relying on other evidence instead
C. Courtroom
1. Adoptions, Agents, & Authorized Speakers
A defendant sometimes can introduce one plaintiff’s out of court statement
against all plaintiffs if there is an adoption, authorization or agency relationship
linking the multiple parties
2. Redacted Statements
If the statement only implicitly implicates the codefendant after being linked with
other evidence, introduction of the statement does not violate Bruton
Guidelines governing the redaction of out of court statements implicating a
1) a statement that explicitly names a codefendant and implicates that codefendant
on its face violates Bruton
-the statement cant be admitted in this form
2) a statement that simply replaces the codefendant’s name with blanks or other
obvious marks of deletion violate Bruton
-a statement in this form will tempt the jury to fill in the blank with codefendant’s
3) a statement that does not refer explicility to a codefendant and that contains no
obvious omissions tempting the jury to fill in the gaps satifies Bruton
-the prosecutor can admit statements satisfying this condition or that can be
redacted to reach this form
LIII. Statements of Co-conspirators
A. Rule
801(d)(2)(E): Admissions by Co-conspirators
The statement must be made by a coconspirator
The statement must occur in furtherance of the conspiracy
The statement must occur during the course of the conspiracy
-statements made before the conspiracy begins or after it ends are inadmissible
It allows a party to introduce one conspirators out of court statement against all other
The conspirator who made the statement need not be present at the trial
B. Courtroom
1. The Meaning Conspiracy
A party invoking the coconspirator exception only has to prive that the declarant and
the party against whom the statement is offered were members of a common venture
The declarant and defendant must have agreed to use their joint efforts in some way
to reach a common goal
The government may introduce the statement of a coconspirator even when it lacks
sufficient evidence to convict the individuals of criminal conspiracy
2. Course of Conspiracy
A conspiracy to satisfy 801(d)(2)(E) begins as soon as 2 or more people agree to
pursue a common criminal goal
The courts have held that an arrest almost ends a conspiracy
Post arrest statements usually are not admissible against coconspirators
Police puts an end to the common project once they arrest members of the conspiracy
because they are no longer working together to pursue common goal
The exception rests on the assumption that one member of a conspiracy speaks for the
other because they are pursuing a common goal
Under some circumstances, courts have found that conspiracy survives arrest

3. Concealment
If the participants are working together to conceal the crime, the conspiracy is still
active and statements made by one conspirator during the cover-up are admissible
against all members of the conspiracy
When the members of a conspiracy disband and go their separate ways, concealing
the wrongdoing only in the sense that they keep quiet about, the conspiracy does not
Unilateral steps by one conspirator to cover up a crime do not signal ongoing
Some types of concealment do occur as part of the intial conspiracy-these statements
are admissible against coconspirators
4. Furtherance of the Conspiracy
A cocospirators out of court statements against other members of the conspiracy are
admissible only if the statements were made in furtherance of the conspiracy
A statement may be admissible even if it does not successfully secure some objective
or otherwise advance the criminal enterprise
The 2 most common types of statements that fall outside the furtherance requirement
are confessions and boasts to people outside the conspiracy
Statements that reassure family members, gain their acquienscense. Or otherwise
contribute to the defendant’s ability to complete criminal tasks may be in furtherance
of a conspiracy
5. Civil Cases
The coconspirator exception is available in civil cases
6. Preliminary Determinations
The judge decides whether a conspiracy exists, whether the out of court statement
was made during the course of that conspiracy and whether the statement was in
furtherance of the conspiracy
The proponent of the statement must prove these facts by a preponderance of the
C. Relationship to Other Rules
Reliance upon 801(d)(2)(E) is not necessary to introduce a statement against the party
who made the statement
801(d)(2)(A) supports the admission of a statement against the speaker w/o any need
to prove that the statement was made during the course of and in furtherance of a
Admission of a conspirator’s statement does not raise any Bruton 6th Amendment
issues with respect to coconspirators
LIV. The Sixth Amendment and Hearsay
A. Introduction and Policy
The 6th Amendment neglects to protect the prosecutor in criminal cases
The state has no constutional right to confront witnesses
The accused may introduce hearsay against the prosecutor w/o running afoul of the 6th
Scope of the Confrontation Clause
• Criminal” – the clause applies only to criminal prosecutions, not civil lawsuits
• “Accused” – the clause protects the accused, not the prosecutor
• Sixth Amendment binds only the federal government, but Fourteenth Amendment applies
limit to the states

B. The Crawford Case

Where testimonial statements are at issue, the only indicium of reliability sufficient to
satisfy constiutitional demands is the one the constuution actually prescribes:

C. The Davis Decision

• Out-of-court testimonial statements are admissible only if:
– The declarant is not available
– The Defendant had an opportunity to cross-examine the declarant on the statement
• The Sixth Amendment does not apply to out-of-court statements that are non
Sixth Amendment and Hearsay
What is a “testimonial” statement?
• NOT an off-hand, overheard remark (666)
• A solemn declaration or affirmation made for the purpose of establishing or proving
some fact (667)
• A formal statement to government officers (667)
• NOT a casual remark to an acquaintance (667)
What is a “testimonial” statement?
• Ex parte in-court testimony (667)
• Functional equivalent of that testimony (affidavits, custodial examinations, prior
testimony that wasn’t cross-examined) (667)
• Similar pre-trial statements that a declarant would reasonably expect to be used
prosecutorially (677)
What is a “testimonial” statement?
• Ex parte testimony at a preliminary hearing clearly qualifies (667)
• Statements taken by police officers during the course of interrogations clearly qualify
• Involvement of government officers in the production of testimony with an eye toward
trial (667 n.4)
What is a “testimonial” statement?
• Statements at plea allocutions or during grand jury proceedings (670)
• At a minimum, prior testimony at a preliminary hearing, before a grand jury, or at a
former trial, as well as in response to police interrogations (671)
What is testimonial?
• Formal proceeding/solemnity
• Government involvement
• Statement made to prove a fact
• Statement that declarant reasonably would expect to be used prosecutorially

• Homicide cases: statements of victim

• Domestic violence: victim reluctance, privilege
• Child abuse: victim reluctance, lack of competence
• Organized crime: witness intimidation
804(b)(1): Former Testimony
• Evidentiary rule requires
– Declarant unavailable
– D had opportunity to cross-examine on statement, with similar motive
• Requirements of the rule satisfy the Sixth Amendment
801(d)(1): Prior Statements by Witness
• Evidentiary rule requires
– Declarant testifies and is subject to cross-examination
• As long as declarant is subject to cross-examination, introduction of prior statements
poses no problem (669 n.5)
803(5): Recorded Recollection
• Evidentiary rule requires
– Declarant must testify
• If declarant is subject to cross-examination, introduction of prior statement poses no
804(b)(6): Forfeiture
• Crawford and Davis specifically address (670, 680)
• Rest on equitable grounds, rather than reliability
• Defendant forfeits Sixth Amendment objection