Policy  Most evidence rules are discretionary

 Policy
o To foster truth and efficiency
o Authenticity of evidence before we allow the jury to speculate
 Evidence should be material, relevant, and competent still may only apply to one of two people in a
case, so give a limiting instruction.
Objections  Rule 103: objections or offers of proof must be timely and specific.
must be  Timely: if the question is improper, you must object then
timely  Specific: you have to be very specific. Must explain more than just objecting on that basis
Rule 103
Rule of  Rule 106: Rule of Completeness
Completen o “When a writing or recorded statement or part thereof is introduced by a party, an adverse
ess party may require the introduction at that time of any other part or any other writing or
Rule 106 recorded statement which ought in fairness to be considered contemporaneously with it.”
o If it is misleading, ambiguous, or incomplete, then the other party may introduce other parts of
the writing or statement that is explanatory.
o You are entitled to put it into evidence at the same time (unclear whether this means you have
to put it in at the same time.
o Especially applicable when there is a confession from a defendant and part is exculpatory.
o Court has applied it to oral statements as well
o Court will only admit the explanatory parts, not the whole statement.
o Otherwise incompetent testimony may be admitted.
o The explanatory part need not be part of the same writing or recording. If there is a letter that
comes in which is misleading, and there is another letter that explains it, the second letter is
admissible
Court-  Court should exercise reasonable control over the order and mode of examining witnesses and
Reasonabl admitting evidence.
e control o Make those procedures effective for determining truth
Rule 611 o Avoid wasting time
o Protect witnesses from harassment or undue embarassment
Judge’s  Rule 104(a): judge decides questions of admissibility
Role o “The court must decide any preliminary question about whether a witness is qualified, a privilege
Rule 104 exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except
those on privilege”
 relevancy is a condition for admissibility.
 Judge must believe that a rational fact finder could be influenced by the material in deciding the
existence of a fact.
 Judges are rarely overruled on this.
 Greater requirement than 104(b)
 Rule 104(b):
o “When the relevance of evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist. The court may admit the proposed evidence
on the condition that the proof be introduced later.”
 certain preliminary fact questions where jury makes decision, judge just decides that there is
sufficient evidence for a rational jury to find the fact to be true.
Relevance  Relevance is a threshold question.
Rule 401  Relevant: probative of a fact that is of legal significance in the case
Rule 402  Relevance is not an inherent characteristic of an item, it only exists as a relationship with the proposition
Rule 403  Evidence is relevant if it has any tendency to make a factor more or less probable than it would be
without the evidence.
 Rule 401: Logical relevance

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 o “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would be
without the evidence”
o materiality- the proposition must be of legal significance
o logical arrow- the evidence must be logically connected to the proposition.
o Evidence does not have to be a disputed proposition
 Rule 402:
o “all relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not relevant is not admissible.”
o Leaves out case law. If some case law excludes evidence on policy reasons, that case is supplanted
by the FRE
 Rule 403: pragmatic, policy based relevance
o “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.”
o Prejudice must be unfair: fact finder might react to aspects of evidence in a way that is not supposed
to be part of the evaluative process
o Applies to all rules unless they are not discretionary.
o Presumption in favor of admissibility
o People v. Adamson: stocking case, can use evidence that shows someone is part of a class of people
more likely to have commited a crime.
o Stipulations
o Can you stipulate something so that it decreases its probative value?
o Old Chief v. United States: you can force the stipulation only when it is a question of legal
status of the defendant (that he was a felon). Narrow ruling, applied only to felon in
possession of firearm cases
o United States v. Crowder: in a specific intent crime, can D keep out evidence of a prior bad
act which bears on intent or knowledge or motive by offering to stipulate to the event? P
doesn’t have to accept the stipulation.
o State v. Byrnes: On trial for felony murder, was in jail with Jones, gets out and helps Jones
knock over grocery store. Jones shoots wife of owner. Byrnes doesn’t want the jury to
know he met Jones in jail, wants to stipulate that he knows Jones. But the state can’t be
robbed of the moral force of its case. Stipulation need not be accepted by the
prosecution if it impedes their case.
Motion in  Motion in limine: before trial, excludes evidence or get evidence admitted
Limine o Provisional trial judge can reverse myself after seeing the proof in the case
o Wilson v. Williams: if the ruling by the judge is definitive, then you don’t have to object again (for
instance when the evidence comes in) to preserve the issue for appeal.
Judicial  Types of facts that can fall under judicial notice
Notice o Commonly known within the jurisdiction
Rule 201 o Not reasonably subject to dispute
 Evidentiary short cut
 If it is a fact that is outside of the district (like the events occurred elsewhere), can’t take judicial
notice of the fact if it is not known in jurisdiction.
 Rationale: efficiency, little knowledge that jury has
 Judge’s private knowledge is irrelevant to the issue of JN has to be commonly known
 FRE 201(g): JN is conclusive on the jury in civil trials, but not in criminal trials (applies both to
defendant and to prosecution)
Character  4 relevant questions
Evidence o The purpose for which you seek to offer character evidence

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Rule 404  direct evidence: character of a party is itself one of the material issues
Rule 405  circumstantial evidence to infer conduct: character isn’t material issue, but you want to use
character to show the jury how party acted on occasion. Propensity and disposition evidence.
 Impeachment evidence: credibility of witness, not substantive (will cover later)
o What method can you use to prove character (Rule 405)
 Specific acts of conduct: from the conduct of a person, you can tell something about his/her
character. Most reliable form.
 Opinion evidence: give a witness and have them give an opinion about the person whose
character is at issue
 Reputation evidence: call a witness to testify to reputation, not probative as specific facts, but
is quick. Witness says they know the target’s reputation in the community for a specific trait.
 Rule 803(21) Reputation to a person’s character among associates or in the community
is an EXCEPTION to hearsay.
o What kind of case is it
 Civil
 Criminal
o Character for what trait?
 You can’t just prove general character, has to be for a specific trait that is an issue in if it is
character being offered as circumstantial evidence to infer conduct, its not allowed under any
method
 If character is directly at issue, you have to be able to prove it, any method is acceptable (FRE
405 (a)-(b))
 Typical examples: defamation where truth is a defense, negligent entrustment cases, wrongful
death case
o Character evidence is allowed if character is directly at issue in the case
 Civil (examples)
 Defamation case where truth is a defense: reputation before defamatory words spoken
might determine damage, like if D was a crook, and already had a bad reputation.
 Negligent entrustment cases: P struck by bus, P wants to show that driver was the town
drunk, and the reputation was sufficiently known so bus co. should not have hired him
 Wrongful death case: wife alleging D negligently caused death of husband. How good of
a husband was he? If a great husband $$$, if bad husband, drunk, abusive less money.
 Criminal (rare), would be in the statute.
o 404(a) Character evidence: “Evidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character or trait.”
Reputation and Opinion
 Exceptions:
 1. Defendant in criminal case can offer evidence of his own pertinent character trait to
show action in conformity (404(a)(1))
 2. Defendant in criminal case can offer evidence of victim’s pertinent character trait to
show action in conformity (404(a)(2))
 3. If defendant offers own pertinent character trait, prosecution can rebut (404(a)(1))
 4. If defendant offers victim’s pertinent character trait, prosecution can rebut
(404(a)(2))
 5. If defendant offers victim’s pertinent character trait and it is admitted under
404(a)(2), prosecution can offer same character trait of defendant in rebuttal
(404(a)(1)).
 6. If defendant in homicide case claims that victim was the first aggressor, prosecution
can show victim’s character trait for peacefulness (404(a)(2)).
 7. Character of any witness in any case for truthfulness under Rules 607, 608, 609; Rule
404(a)(3)
 Prosecution can rebut in three ways
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  He can call his own bad reputation witnesses to testify to the accused’s terrible
reputation (i.e. for honesty) in the community
 In many states (but not in FRE) P can introduce into evidence any conviction of the
accused which involved the trait which is substantively at issue in the case (by statute)
 He can cross-examine the accused’s good reputation witnesses
o Michelson v. United States: P may not introduce bad character evidence of accused in order for
jury to infer guilt.
o 404(b)(1): Crimes, wrongs, or other acts: “Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Prior bad act
 Permitted uses (404)(b)(2): “Evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident”
o People v. Zackowitz: D, believing his wife to be insulted, goes to his apartment, gets a gun, returns
to the scene of the insult and shoots and kills the victim. What degree of murder (was it
premeditated). P was allowed to show that D had three pistols and tear gas in his apartment to
show a propensity. But shouldn’t have let it in improper character evidence.
o 404(b) Checklist:
 identify the charged or alleged conduct at issue
 determine if the proffered evidence is “other act evidence”
 some evidence of uncharged conduct is “inextricably intertwined”
 if there is “other act” evidence, is it offered for a permissible (non-propensity) purpose?
 Has the other act evidence been proven—is there sufficient evidence for a jury to determine
by a preponderance of the evidence that the act occurred and the party alleged to have
committed the act is the actor.
 Does rule 403 require exclusion?
o 405: Methods of Proving Character
 (a) Reputation or Opinion: “When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in
the form of an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.”
 (b) Specific Instances of Conduct: “When a person’s character or character trait is an essential
element of a charge, claim, or defense, the character or trait may also be proved by relevant
specific instances of the person’s conduct”
 to ask about a specific instance of conduct, the prosecutor must act in good faith
 Proper questions on cross: “did you know” or “were you aware”
Circumstan  Direct evidence: goes to the exact question
tial  Circumstantial evidence: proof of a fact that is not itself probative but we can infer to establish the
Evidence fact at issue.
Similar  Dallas Railway & Terminal Co. v. Farnsworth: Woman tries to get off street car, car takes of hurriedly
Occurrence before she gets clear, she is injured. Wants to show that on this trip, the conductor hurried away from
s/ Similar three other stops that were made before the stop where the accident occurred, conductor acting
Act negligently in those other circumstances. In civil cases, character evidence is out, but is allowed to
Evidence show similar occurrences events are all together, one transaction.
 Similar Occurrence: relevance question, 401 and 403
o 401: logical relevance
 worry about logical relevance when the evidence concerns some other time or some
other person/event. In those situations might be too remote to be logical relevance.
 Certain fact patterns that reoccur where evidence concerns some other
time/person/event, but where its sufficiently relevant to be admitted.
 To show cause and effect (in a case where causation is difficult to show).

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 o City is building a subway, and your house starts to collapse, and you
conclude that it’s because the city is building the subway underneath
your house. As part of your case, you want to show that other houses
in the path of the proposed and under construction subway are also
collapsing would be allowed.
 Prior accidents or claims
o Sometimes, D wants to show P’s other accidents.
o P drives into a bridge and sues the municipality claiming that the
bridge is badly designed. Can the municipality show that P ran into
various stationary objects in the past years and sued based on those
accidents? No. Generally not admissible.
 Exception 1: if the prior claims would show fraud.  shows
common plan and scheme
 Exception 2: if the accidents were relevant on the issue of
damages (i.e. claiming hurt shoulder, but hurt shoulder in
prior crash)
 P wants to show other accidents involving the same allegedly defective
instrumentality
o P wants to show that within the last year, 6 other drivers drove into
the same bridge, allowed provided the other accidents were the
same.
o Other accidents involving the same instrumentality which occurred
under the same or similar circumstances may be shown.
 Issue is the intent or state of mind of a party
o You prove state of mind by inferring it from the conduct of the
person. Sometimes that conduct involves other people/times/events,
but it is still admissible if it bears on intent or state of mind which is at
issue in the case.
 Gender discrimination, D says “I didn’t discriminate”—P can
show how D treated other female applicants who were
qualified b/c it shows D’s discriminatory intent.
 To rebut
o Often the claim or defense of impossibility
 You stop for a soda, there is a mouse in your can. You get sick
and call lawyer. You sue Coca-Cola, they claim its impossible
for there to be a mouse in one of the coke cans, because
there’s a device that removes debris from the liquid before its
bottled. If you can show another can with another mouse in
there, its relevant, but only to rebut the claim of impossibility.
 Comparable sales to establish value
o At issue is the value of your parcel of land. You may show what other
parcels of land have sold for provided that: 1. Those other parcels are
of the same general description as yours, 2. Those other sales occur at
around the same relevant time period that you’re interested in, and 3.
Those other sales occur in the same general geographic area.
 Custom of the trade or business as non-conclusive evidence of the standard of
care
o Saying a company was negligent for not having a safety device on
something, D claims no one else has that device, P can then show that
90% of companies do have it.
Habit  Rule 406: “Evidence of a person’s habit or an organization’s routine practice may be admitted to
evidence prove that on a particular occasion the person or organization acted in accordance with the habit or
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Rule 406 routine practice. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness.”
 To distinguish between disposition evidence (not admissible) and prior act evidence (not admissible)
and habit evidence?
o Specificity: habit evidence must be specific detailed conduct, not generalized conduct like
disposition
o Recurrence: conduct must have occurred enough so that it can be said to be automatic or semi-
automatic for the actor.
 If someone does something more than three times, safe to call it habit
 Halloran v. Virginia Chemicals: The plaintiff, Frank Halloran (the “plaintiff”), frequently serviced air
conditioners as part of his job as an auto mechanic. On June 1, 1970, he was changing the air-
conditioning compressor on a Chrysler. The plaintiff was filling the new compressor with Freon and
heated one of the cans to increase the flow of the Freon, at which point the can exploded and
injured him.
o A party may introduce evidence of habit or regular usage when the issue involves proving a
deliberative and repetitive practice.
Subsequen  Rule 407: “When measures are taken that would have made an earlier injury or harm less likely to
t Remedial occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable
Measures conduct; a defect in a product or its design; or a need for warning or instruction. But the court
Rule 407 may admit this evidence for another purpose, such as impeachment or –if disputed—proving
ownership, control, or the feasibility of precautionary measures”
 SRM not admissible to prove negligence or culpable conduct
 Exceptions:
o SRM would be admissible to show ownership and control if its disputed,
o to show feasibility of measures if controverted
 feasibility: ultimate utility of the measure, economic feasibility and wisdom of
installing/changing
 but different courts have different rules.
o to impeach when relevant.
 P store customer falls by catching her foot under legs of a display case. She sues for negligence. At
the time of the trial, display had been modified, which eliminated the space under the display’s
legs. P was allowed to show the modification by time of trial photographs, D claimed it was an
SRM. Reversed on appeal. It was a SRM, but feasibility wasn’t disputed, nor admissible to
impeach.
 Rationale:
o low probative value: the fact that D made an effort to make the product or premises safer
than it was at the time of the accident doesn’t mean it was defective before. Want to
concentrate on what happened at the time of the injury, not what happened after.
 Also not probative when there is a product manufactured in 1993, accident in
2000 and a change in design in 2003, if change in design wasn’t feasible in 1995.
Low probative value under 401 or 403 would keep it out.
o Argument for making it relevant is that SRM is admission by conduct, D saying that he can
make it safer than it was at the time of the accident.
o If low probative value were enough, 401 or 403 would keep it out.
o Probative value is going to depend on what kind of SRM, timing, what issue its being
offered to prove, and the substantive law of the case. So this doesn’t totally explain the
rule.
o Extrinsic policy: we want to encourage D to make repairs after accident and make product
safer. D would be dissuaded from doing so. D gets a quasi privilege.
 But no real evidence that this is what happens, that 407 would dissuade.
 Even if they knew 407, would still make the change to avoid other plaintiffs suing.
 Also gain corporate goodwill by making it safer
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 o Fairness: why should we punish a D who voluntarily undertakes to do his duty or more by
making the product safer?
o Predictability: 407 does foster predictability
o Ambiguities in the language undermine predictability
Settlement  Settlements are not admissible to show fault, liability, or damage
s  Rationale:
Rule 408 o Low probative value: a person may pay a lot of money to buy peace or avoid publicity.
Rule 409 Amount paid may not be any kind of admission or related to guilt.
Rule 410 o Public policy: law loves settlements, clears calendars.
 Also applies to offers to settle
 Notable addition: “any statement of fact or any admission which are made in the course of an offer
to compromise or as part of a settlement discussion”
o Public policy: if you want to encourage settlements, want to encourage “settlement talk”
that is honest.
 Limitations
o There must be a claim for this rule to operate, there doesn’t have to be actual litigation, but
the facts have to have matured enough so there is a claimant and controversy
 Rossi goes to neighbor and says “are you the guy that was bitten by my dog? Lets
settle.” Neighbor then says “oh, so you think I should sue.” Neighbor will want to use
the admission. But there was no claim yet, so not admissible.
o The claim must be disputed as to either liability or amount
 Rossi says he’ll admit that he owes me the full 100k on promissory note. He won’t
pay so I have to sue. He then says if I’ll take 50%, he’ll settle. No dispute as to liability
or amount, and the court won’t protect his attempt of litigation blackmail since there
is to be settled.
o 409- offer to pay medical expenses- if there is an admission of fact or liability or damages
made in the course of a naked offer to cover medical or hospital expenses. Might be out of
humanitarian reasons, and may think that insurance will cover it
Liability  Not admissible on the issue of whether the person acted negligently or wrongly
Insurance  P sues D for personal injury damages arising out of an automobile accident, p wants to show that D
Rule 411 carries 500K of liability insurance to show that he was reckless and didn’t care since he was insured.
 But if its relevant to some other issue in the case, it would be admissible
o Two most common scenarios:
 To show ownership and control when its in dispute
 Bias, interest, or motive to misrepresent on part of a witness, admissible to
impeach.
Collateral  You cannot contradict a witness by extrinsic evidence as to a collateral matter. Cross examiner is
Matters bound by the answers he gets by a witness to a collateral matter. Extrinsic evidence is anything
Doctrine other than cross-examination (calling another witness or producing a related document).
 Can’t catch the witness in a lie if it is to a collateral matter.
Probability  Smith v. Rapid Transit: sufficiency of the evidence question. Sufficient evidence to show that A bus
and forced P into a parked car at 1 am on Feb. 6, but not clear that it is D’s bus. Court held that P failed
Statistical to introduce sufficient evidence (burden of production of coming forward with evidence that it was
D’s bus that acted negligently.) SO directed verdict for D, jury didn’t hear case, dismissed because no
reasonable jury could find for the plaintiff.
o There might be zero probability, 40%, 50%, 60%, 100%.
o For burden of persuasion likely to need to be more than 50%
o Judge doesn’t have to be convinced that it is more than 50%, but just that a reasonable jury
could find that its past 50%
 More than naked probability is required. Societal concerns about not convicting the innocent in
criminal cases based on a 1/10 probability. Civil cases, when the evidence is coldly statistical, the

7
 court is unimpressed
 Generalized statistics in general jeopardize the notion of burden of production.
 Allows jury to oversimplify.
 State v. Rolls: Was the blood on the pants of the D the blood of the victim? Evidence showed it was
not D’s, and would only match 5% of the population (and the victim). Court allowed this evidence in.
 People v. Collins: called expert to establish that there was an overwhelming probability that the
robbery was committed by D’s, was offered to try and use statistics to explain the probative value of
the testimony of an eyewitness. This testimony confuses the unlikelihood of a similar couple (blonde
and black, bearded man) with innocence of defendant.
 Courts are suspicious of statistical evidence, but it has value and in some kinds of cases, it’s used
regularly
o Wrongful death case labor statistics, have to asses what D would have made over their
lifetime
o Antitrust cases to establish likely damages
o Discrimination
o Toxic tort cases causation.
 Court will take into consideration
o (1) what is the nature of the issue
o (2) how do statistics relate to the issue?
Authentica  Authentication
tion of o Writings are not self-authenticating: have to have extrinsic evidence to show that the
Writings writing is what it purports to be.
Rule 901 o Rule 901(a): “To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.”
o How do you authenticate?
 Any way that makes sense—direct or circumstantial evidence
 801(b): non-exhaustive list of evidence that satisfies requirement of
authentication.
 (1) Testimony of a witness with knowledge “testimony that an item is
what it is claimed to be”
 (2) Nonexpert opinion about handwriting “A nonexpert opinion that
handwriting is genuine, based on a familiarity with it that was not
acquired for the current litigation.
 (3) Comparison by an expert witness or the trier of fact: a comparison
with an authenticated specimen by an expert witness or the trier of fact.
 (4) Distinctive characteristics and the like: the appearance, contents,
substance, internal patterns, or other distinctive characteristics of the
item, taken together with all the circumstances.
 (5) Opinion about a voice: an opinion identifying a person’s voice—
whether heard firsthand or through mechanical or electronic transmission
or recording—based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.
 (6) Evidence about a telephone conversation: for a telephone
conversation, evidence that a call was made to the number assigned at
the time to:
o (A) a particular person, if circumstances, including self-
identification, show that the person answering was the one
called; or
o (B) a particular business, if the call was made to a business and
the call related to businesses reasonably over the telephone

8
  (7) evidence about public records. Evidence that:
o (A) a document was recorded or filed in a public office as
authorized by law; or
o (B) a purported public record or statement is from the office
where items of this kind are kept.
 (8) Evidence about ancient documents or data compilations. For a
document or date compilation, evidence that it:
o (A) is in a condition that creates no suspicion about its
authenticity
o (B) was in a place where, if authentic, it would likely be; and
o (C) is at least 20 years old when offered.
 (9) Evidence about a process or System. Evidence describing a process or
system and showing that it produces an accurate result.
 (10) Methods Provided by a statute or rule: Any method of
authentication or identification provided by Act of Congress or by other
rules prescribed by the Supreme Court pursuant to statutory authority.
 Could also prove by circumstantial evidence
 You do have to lay a foundation: how much of a foundation? 104(b) issue only
have to produce in foundation only sufficient evidence so that a reasonable jury
could find that it’s genuine
o 903: “A subscribing witness’s testimony is necessary to authenticate a writing only if
required by the law of the jurisdiction that governs its validity.”
 Attested documents: ends with name and signature, witnesses underneath. Most
states allow these statements in without a subscribing witness.
o Exceptions
 Acknowledged document (902(8))
 A statement by the signatory of the document which acknowledges that
the signature is genuine: “On DATE, before me personally appeared
PERSON to me known and known to me to be the person who executed
the above document and she acknowledges the fact that she in fact
executed the document.” Distinguish from:
 Verification
o The person who makes the complaint or notice of claim swears
under oath that the content is true, not the signature. The
content is being verified, not the signature. Plaintiff may have to
sign that “To the best of my knowledge and belief, the allegations
above are true and I swear that they’re true”
 Jurat
o “sworn to before me on DATE” an notary signs. An
acknowledgement and verification will generally have the Jurat
after it.
 Public record or official record exception: if it has the right words and certification
on it, then you can hand it to the judge without testimonial sponsorship. (902(2)-
(4))
 Mullican v. United States: D’s are charged with violation of a federal
escape act in that they escaped. Government has to prove that D’s were
in fact confined in the prison and lawfully there confined. Prove it by
showing documents that D’s were convicted, put into prison, and
transferred.
 Requirements:
o Officialness of the officer signatory, officialness of the original if
this is a copy
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 o Custody (the person making certifications have custody or duties
in district or political subdivision where document is kept)
o Truth (the copy is a true copy of original)
 So you worry  authentication, best evidence rule if it is a copy or oral
testimony about the content of the writing, hearsay
 Foreign official record: it’s often necessary to introduce official records of
a foreign source. New rule is 902(3): require of attestation by a US legal
custodian is eliminated,
o US official still has to certify the genuineness of the signature of
the official attesting the document, allows for chains of
recognition (DCBA)
 Official publications (902(5))
 Which purport on their fact to be an official publications
 These would include, for example, a pamphlet from the state DMV
 Newspapers or periodicals (902(6))
 In defamation case, trying to introduce a copy of the paper, its self-
authenticating
 Trade inscriptions or labels (tags or labels affixed in course of business purporting
to establish ownership or control)(902(7))
 Keegan facts would now be admissible
 Signatures on commercial paper used in commercial loan (UCC says that certain
signatures on certain kinds of paper are prima facie okay) (902(9)).
 Certified copies of business records (902(11))
 If you have the right certification on it.
Best  Rule 1002: “An original writing, recording, or photograph is required in order to prove its content
Evidence unless these rules or a federal statute provides otherwise”
Rule o A party seeking to prove the content of a record must:
Rule 1002  Produce the original document or
Rule 1003  Account satisfactorily for its absence (under another rule)
Rule 1004  Rule 1003: Admissibility of Duplicates: “A duplicate is admissible to the same extent as the
Rule 1005 original unless a genuine question is raised about the original’s authenticity or the circumstances
Rule 1006 make it unfair to admit the duplicate.”
 Rule 1004: If the duplicate is not available, a party can offer an excuse
o Originals lost or destroyed unless the proponent lost or destroyed them in bad faith
(1004(a))
o Original not obtainable (by any available judicial process or procedure) (1004(b))
o Original in possession of opponent: at time when original was under control of the party
against whom offered, that party was put on notice, by the pleadings or otherwise, that
the contents would be a subject of proof at the hearing, and that party does not produce
the original at the hearing. (1004(c))
o The writing, recording, or photograph is not closely related to a controlling issue (1004(d)).
Collateral matters
 When does the best evidence rule apply?
o Legally operative document- creates or destroys something that is at issue in the case.
 Where ownership or real property is in issue, show the deed or satisfactory excuse
for not producing the deed
o Where the witness lacks personal knowledge
 D charged with driving getaway car in bank robbery, Issue was whether D was
driving. Security guard recorded license plate # and wants to say that according to
motor vehicles that is D’s license #
 When does BER not apply?

10
 o Where the fact to be proven has an existence independent of the writing.
 If you have a witness with personal knowledge then BER does not apply.
 But if witness’s sole knowledge comes from the thing then BER applies
 Meyers v. United States: D charged with perjury for giving false testimony in front
of Senate committee; statement is alleged to be perjurious may be proved by any
person who heard them, as well as by a reporter who recorded them in short
hand.
o Collateral document exception
 For minor documents in order to avoid encumbering litigation
 BER modifications
o Rule 1005: Public record exception
 Public records if otherwise admissible, may be proved by copy, provided it was
certified in accordance with 902(4): Certified copies are self authenticating; and
803(8): public record exception to hearsay.
o Rule 1006: Voluminous document
 Can prove document by chart or summary provided:
 The voluminous document would be admissible if they were actually
offering it into evidence
 Opponent must have notice and equal access to original so that he can
prepare his own summary/chart
 Rationale: offers the only practicable means of making their contents
available to the jury.
 Note on summaries: 1006—summary is the evidence.
 Reasonable excuses for not producing original
o Loss provided diligent search
o Destruction. If destroyed by a third party or you did for a good reason- general business
practice to shred documents
o If the original is in the hands of your opponent then you can resort to secondary evidence,
must serve a timely notice to produce, prove possession.
 Courts disagreed over BER in three categories:
o Confessions
 When someone confesses, then is asked to write it down in a statement and sign
it. (see notes)
o Former testimony (when admissible under exception to hearsay rule)
 Would have to have the transcript or someone who heard the former testimony.
(see notes)
o Prior inconsistent statement of witness used to impeach witness (how do you prove the
prior statement.
 To impeach a witness, (1) witness commits to lie they said in direct, (2)
authenticate the prior statement by showing its reliability and (3) prove the
content of the statement, by asking, isn’t it true that on X you told Y ZZZ? If he
says yes, impeached, if no put in the authenticated document.
 Most courts say BER doesn’t apply to this situation.
Competenc  Rule 601: Competency to testify in general: “Every person is competent to be a witness unless
y these rules provide otherwise. But in a civil case, state law governs the witness’s competency
Rule 601 regarding a claim or defense for which state law supplies the rule of decision.”
Rule 602  The focus is on the person on the stand, not so much the evidence given. Basic qualifications at
Rule 603 common law:
o There must be some perception: Rule 602: Need for personal knowledge: “A witness may
testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony. This rule does not apply to a witness’s expert
11
 testimony under Rule 703.”
 Witness must have observed something, personal knowledge
o There must be some memory
 The witness must remember at least some of what was observed
o Communication
 The witness must be able to relate at least some of what was observed and
remembered
o Sincerity
 The witness must demonstrate an appreciation for the obligation to tell the truth,
and that manifestation is usually the oath or affirmation the witness takes.
 Really boils down to witness must take oath
 Rule 603: Oath or affirmation to testify truthfully: “Before testifying, a witness
must give an oath or affirmation to testify truthfully. It must be in a form
designed to impress that duty on the witness’s conscience.”
o Perfection is not required in these four categories. Any defects will be explored in XE.
 Federal courts and children: assume child is competent b/c called to the stand. If there are
problems with the witness, then this goes to credibility and weight of the evidence and that goes
to the jury and not the judge to decide. If child just blubbers, can be excluded under 403.
Dead Man  Dead Man Statute: “no person shall be allowed to testify when the other party to the transaction
Statutes is dead”
o exists in about half of state jurisdictions, possible that it applies in a typical diversity case,
part of competency
o excludes testimony of party or interested person.
 Zeigler v. Moore: Z is driving along highway, struck by C. After accident, C told police what
happened, likely making admissions. Z sues C for negligence. C dies. Then trail. At trial Z wants to
introduce two key items of evidence (1) the sheriff to testify to what C said right after accident,
and (2) Z herself wants tot testify as to how the accident happened and the doctor’s
treatment/medical bills.
o (1) is hearsay, but its an admission of a party so it can come in, but its still excluded by the
DMS (doesn’t make sense with rationale, police are saying this)
 Appellate court holds this admissible.
o (2) what is she disqualified as to? She can’t say how the accident happened, but can say
what happened with doctor’s treatment/medical bills.
 rationale: fear of perjury, afraid a party might lie since the other party is dead and can’t
contradict.
 Critiques:
o DMS defeats valued claims
o Doesn’t really prevent perjury, dishonest person can always find a convenient witness to
transaction.
 NYDMS: must have a:
o Interested party or a predecessor of the interested party
o That interested party/predecessor must be testifying for their interest, on behalf of
themselves or of a successor in interest
o They must be testifying against the decedent or a representative or successor of the
decedent
o They must testify about a transaction or communication with the decedent.
 Interested party: someone with a direct stake in the outcome
 Just because interested party dies, doesn’t mean DMS automatically applies
o Have to be testifying against decedent or successor
o Have to be testifying about a transaction with decedent
o Have to be testifying for yourself.
o Only applies in civil cases
12
 o Can be a waiver
o If Decedent’s reps. Introduce evidence of a deposition of decedent, you can testify.
Form of  Rule 611: Largely a matter of judicial discretion. Form, scope, and manner of questioning
Examinatio  Leading questions
n o Leading questions suggest the answer to witness and usually witness is likely to use the
Rule 611(c) suggestion.
Rule 612 o Straub v. Reading Company: basic rationale is that witness, not lawyer, should testify, so
Rule 803(5) the lawyer shouldn’t ask leading questions on direct.
 only going to get a reversal on appeal because P’s lawyer asked repeated leading
questions throughout the trial.
o Lawyer does have to ask questions, can’t just have it be a narrative.
o Can ask leading questions in certain situations
 611(c): Leading Questions: “Leading questions should not be used on direct
examination except as necessary to develop the witness’s testimony. Ordinarily,
the court should allow leading questions:
 (1) on cross-examination
 (2) when a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party.”
 Preliminary matters, non crucial
 “Madge, were you present at the intersection of Main and State on Jan
2nd at 2pm?”
 when you are having difficulty eliciting the testimony
 b/c witness is old, feeble, immature, dumb, forgetful
 hostile witness: an uncooperative witness
o three common objections
 misleading question
 compound question
 argumentative question (“were you lying then or are you lying now?”)
 When witness can use writing in aid of a leading question
o United States v. Riccardi: D’s convicted of transporting stolen property in interstate
commerce. Owner of property had to testify as to what items were taking. Her expert had
to ascribe a value to each item. She made a handwritten inventory of what was taken, she
then typed up copies of the inventory. At trial the list was in the indictment, she was
permitted to read from the indictment what was taken.
o Rule 612: Refreshing recollection: witness must indicate that she doesn’t remember.
Then sees writing and is reminded, and testifies from her memory, not from the writing.
 Does not have to be the witness’s writing.
 Does not matter if writing is unreliable b/c not being offered into evidence. Only
function is to awaken memory of witness.
 Doesn’t have to be authenticated or be best evidence
 Witness must say something to effect of I forget
 Can’t just use it b/c you got a different answer than you wanted
 Can be a smell, a song, a writing.
 But opposing counsel is entitled to see it, use it in cross, and put into
evidence the portions you used.
o Rule 803(5): Past recollection recorded: what would happen if P couldn’t remember even
when shown the list?
 Writing can come in provided there is a proper foundation:
 (1) witness at one time had personal knowledge
 (2) that this writing was actually made by the witness or under the
direction of the witness

13
  (3) That is was timely made (matter was fresh in W’s memory)
 (4) That the writing is accurate and reliable
 (5) necessity: the witness must be unable to remember all or part of the
details of the transaction.
 Jury doesn’t get to handle writing. Don’t want to substitute for oral testimony.
 Isn’t this hearsay? Yes, but exception under 803(5)
 Do you need a cooperative witness for this? Some courts have dispensed with
this.
 Okay if a lot of people are involved in the production.
 A sees hit and run, yells out license #, B records it on a slip, gives it to C
police, records it in report, then throws out slip. Now crucial in case. Just
call each witness, A, B, and C.
o witness should not just read from the report
Credibility,  Cross examination: three significant aspects
Impeachm o you have an absolute right to cross examine any witness who testifies live, in court,
ent, and against you.
Rehabilitat  Direct examination cannot stand if there was no opportunity to cross examine.
ion  Move to strike if witness drops dead after direct.
Rule 607 o Cross examination is limited to the subject matter of direct examination including matters
Rule 608 affecting credibility.
Rule 609 o Collateral matters doctrine: may not contradict the witness by extrinsic evidence as to a
Rule 613 collateral matter
 Impeachment
o Trial within a trial
o In the middle of trial the focus narrows, and the sole issue is the credibility of the witness.
o 4 general considerations:
 1. What are the impeachment methods, standards?
 FRE, sig. cases
 2. What is the nature of the witness?
 Your own witness
 Adversary party (accused in criminal case)
 Ordinary opponent’s witness
 3. Assuming you are going to impeach, how far can you go? Are you going to be
limited to XE of witness, or can you use extrinsic evidence to drive home the
impeachment?
 4. If you can use extrinsic evidence, do you first have to lay a foundation by
inquiring on cross-examination? Do you have to ask if they did the impeaching
stuff?
o Impeachment Methods:
 Prior inconsistency: between the preliminary hearing
 Bias in interest, motive to misrepresent: pending sentencing on perjury
 Prior conviction of a crime: convicted of perjury
 Specific acts of deceit or lying: fraud charge
 Bad reputation: call someone to testify that he is known liar in community
o Your own witness who is cooperative
 Can you bolster the credibility of your own witness before there has been
impeachment?
 Rule 608 (a): Reputation
o United States v. Cosentino: No, we assume witnesses are telling
the truth. No showing of good reputation unless there has first
been an appropriate impeachment attack.

14
  Prior consistent statement:
o can’t bolster the credibility by showing prior consistent statement
without prior appropriate impeachment attack. Hearsay.
 Modifications
o Background facts are generally admissible
 Witness allowed to introduce themselves, humanizes
witness.
o Prior statement of identification by witness is admissible: Rule
801(b)(1)(c).
 Excluded from definition of hearsay.
 Statement doesn’t have to be consistent.
 But if witness unavailable at trial, its pure hearsay,
violates confrontation clause.
o Procedure of removing the sting from XE
 Know your opponent is going to use a prior conviction,
have witness explain with best gloss on it.
 Ex. Prior convictions, witness cooperation
agreements.
o Your own witness who is uncooperative?
 Three historical phases:
 1. Common law traditional rule: no impeaching your own witness. You are
vouching for your witness when you call them.
 2. Modern common law: no impeachment by prior inconsistent statement
unless you have genuine surprise and harmful testimony.
 3. Who may Impeach a Witness: Rule 607: “Any party, including the party
that called the witness, may attack the witness’s credibility.”
o Cases have read back into this the genuine surprise and harmful
testimony through Rule 403.
o Only comes in to impeach, not for the truth of it (hearsay
problem)
 United States v. Ince: D convicted for assault with dangerous weapon, Police
collected a signed and unsworn statement from Neumann. N recounted that D
admitted firing the shots. P calls N to stand, N’s memory fails, can’t refresh
recollection. P then dismisses her and calls police. Concern is that juries aren’t
good at understanding what is impeachment evidence and what is substantive
evidence.
 Concern in criminal cases.
 Can’t impeach if you are using guise of impeachment to expose jury to
otherwise inadmissible evidence. How 403 gets read back in to require
surprise.
o Learned test or treatise 803(18): Learned Treatise exception to Hearsay
 Primary problem is hearsay. You want to get expert testimony that is contained in
a learned test, treatise, or authoritative article about any discipline which happens
to be at issue in the case?
 Four ways to get it in:
 If your opponent actually relied on the treatise in direct, then it can come
in.
 Elicit an admission on cross-examination of opponent’s expert
o Ask them if they are familiar with the treatise, whether they
consider it authoritative, reliable, a standard work in the field.
 If doctor says “no” go with wall of books routine, listing
other books and making it clear that all authority is
15
 against expert.
 Can call own expert to stand and have them say the treatise is reliable,
have to wait until it is your turn to rebut.
 Judicial Notice- if the treatise or article is so well known, you may ask
judge to take JN of fact that it is standard work in field, then can read.
 Limitations:
 There must be an expert on the stand
 The learned treatise itself does not go to the jury, may be read into
evidence, but not admitted as exhibit.
o Impeaching adversary’s witness
 Interest/bias/motive to falsify (no FRE basis)
 Bias- describes a relationship between party and witness which might lead
the witness to slant testimony toward party.
 can use extrinsic evidence if you lay a foundation.
 Other than liability insurance and settlements, evidence is admitted freely
typically.
 United States v. Abel: D and cohorts indicted for robbing savings-and-loan.
Cohorts plead guilty, D went to trial. Cohort agreed to testify against D
and identify D as participating in the robbery.
o D sought to counter cohorts testimony with M’s, a friend of D and
C. M planned to testify that after the robbery C admitted to M
that he intended to implicate D falsely in order to receive
favorable treatment from government.
o P asked M if he and D were members of a secret prison org that
had a creed requiring members to deny its existence and lie for
each other.
o Evidence was admitted under 401 and 403.
 Character
 Prior convictions- Rule 609
o Evidence of certain prior convictions is admissible to impeach the
credibility of any witness, including a party witness, in any case
(civil or criminal).
o Introduce a certificate of conviction.
o Felons used to be incompetent by way of being a felon but it can
be used to impeach.
o United States v. Valencia: accused appealed use of his prior
conviction to impeach his testimony. A defendant who
preemptively introduces evidence of a prior conviction on direct
examination may not on appeal claim that the admission of such
evidence was in error.
o Rule 609: Impeachment by evidence of a Criminal Conviction
 Any crime, felony or misdemeanor, which involves
dishonesty or a false statement is usable to impeach, no
discretion, 403 does not apply.
 Not involving dishonesty there is discretion, but the
type depends.
 If it is an ordinary witness in a civil or criminal
case, then 403 discretion applies.
 Accused in the criminal case: presumption is
switched under 403: probative value must
outweigh prejudicial value

16
  Whatever the crime, it can’t be too remote. 10
years is general guideline.
o Cree v. Hatcher: willful failure to file income taxes is not deceit.
o Ohler v. United States: is bringing up prior conviction a waiver or
their right to bring it up in appeal? Yes.
o Luce v. United States: if the D fails to take the stand he waives his
right to object. “to raise and preserve for review the claim of
improper impeachment with a prior conviction, defendant must
testify”
o if you see evidence of prior crimes, keep open possibility that
there wasn’t a conviction
 Bad act impeachment- 608(b)(2)
o Specific Instances of Conduct: “Except for a criminal conviction
under Rule 609, extrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court
may, on XE, allow them to be inquired into if they are probative of
the character for truthfulness or untruthfulness of:
 (1) the witness
 (2) another witness whose character the witness being
XEd has testified about.”
o Advisory committee notes: in conformity with 405, which
forecloses use of evidence of specific incidents as proof in chief of
character unless character is at issue tin the case, the present rule
generally bars evidence of specific instances of conduct of a
witness for the purpose of attacking or supporting his credibility.
Two exceptions:
 Specific instances are provable when they have been the
subject of criminal conviction
 Specific instances may be inquired into on cross
examination of the witness. Use 403 balancing.
o People v. Sorge: D interrogated about abortions performed on
other women, D said no. Outcome depended on whether jury
believed D or V. A defendant like any other witness may be
interrogated upon XE in regard to any vicious or criminal act that
has a bearing on his credibility as a witness. It does not matter
that offenses inquired about are similar in nature to crime for
which d is standing trial, as long asked in good faith.
 FRE rejects this rule- discretion of trial judge would likely
limit inquiry into similar crimes.
o You must have a reasonable basis for asking the question in
good faith: So you can’t ask “did you engage in sodomy with a
parrot?”
o No extrinsic evidence.
 Bad reputation for truth- 608(a)
o Extrinsic evidence allowed: only way to do it.
 Prior inconsistent statements
 A witness may be impeached by showing that at some prior time that
witness made a statement different from and inconsistent with a
material portion of witness’s present and in court testimony.
 Denver City Tramway v. Lomovt: Child hit by streetcar, M testifies that
child ran in path of streetcar. On cross examination, “didn’t you say that
17
 the motorman ought to be lynched?” (prior inconsistent statement). M
says no. An out of court statement of opinion can be admissible as a prior
inconsistent statement.
 Unless it’s a prior inconsistent statement that is part of hearing or
deposition (not hearsay under 801(d)(1)(a)) can’t come in for truth.
o Impeaching credibility of witness who never testified at trial
 Hearsay declarant
 FRE 806: in general the credibility of a hearsay declarant may be impeached just
like any other live witness.
 May be attacked by any evidence admissible if they had testified live as a witness.

 Bias, interest
 Prior conviction
 Bad reputation
 Prior statement out of court inconsistent with another prior statement.
Purpose Applies to Trait Order Case
607-609 Impeach Any witness Truthfulness Bad before Any- civil or
impeachment good criminal
404(a)(1)(2) Merits Usually to In issue Good before Usually
Substantive accused substantively bad criminal
use in the case cases.

 Rehabilitation
o 1. Explain the facts underlying the impeachment on re-direct or by calling another witness
o 2. Show good reputation for truth and veracity
 only when there has been a direct character attack on witness, when
impeachment has taken the form of calling W a liar by nature of prior conviction,
specific acts, or bad reputation.
 If only impeachment was showing bias or motive, it isn’t calling W a liar. If it is a
prior inconsistent statement, that might just be the result of confusion, W not
unreliable in every case.
 So can’t rehabilitate by showing good reputation for truth.
o 3. Prior consistent statement
 You can’t use a prior consistent statement as a general rule to bolster the
credibility of your witness unless there has been an appropriate impeachment
attack.
 FRE 801(d)(1)(b): you can use prior consistent statements “to rebut a charge of
recent fabrication or improper influence and motive”
 Excluded from definition of hearsay
 Does not have to be given under oath or as part of a formal proceeding.
 COMES IN FOR ITS TRUTH
 Has to be a pre-motive statement.
o People v. Davis: D charged with selling drugs. Undercover cop
testifies he paid 19$ for pills in 6 bills. XE by D suggest it was
fabricated, that D said he gave a 20$ bill at grand jury. P wants to
put into evidence a post-arrest report in which cop said he paid
19$
 NY Ct. of App. Says mistake, b/c post-arrest report was
not made before time of alleged motive to fabricate.
o Tome v. United States: Sex abuse case, only witness is child, her
examination in college does not go well. Direct is largely leading

18
 questions. Call a bunch of witnesses to stand to testify to the prior
consistent statements of sexual abuse mad by the child. The
child’s statements were not made pre-motive (wanting to stay
with mom).
 Where a W does not admit to making a prior inconsistent statement, prior
consistent statement is relevant and can rehabilitate.
 Some federal courts will let this in even though it doesn’t fit 801(d)(1)(b)
Hearsay  Definition- Rule 801(a)-(c): an out of court statement offered for the truth of the matter.
Rule 801 o Statement- Rule 801(a): “Statement means a person’s oral assertion, written assertion, or
Rule 802 nonverbal conduct, if the person intended it as an assertion”
Rule 803  Conduct as a statement.
Rule 804  Kinder v. Commonwealth: officer testified that 5 yo boy pointed out
Rule 807 where stolen property could be found. Not hearsay not offered for truth,
just to establish the source of the knowledge of stolen goods.
 must be assertive conduct that is intended to communicate and is offered
to prove the truth of what was communicated.
 Non-assertive conduct could be hearsay at common law(Wright v.
Tathum)
o Ex. Vessal lost at sea, question is whether vessel was seaworthy.
W wants to testify that he saw the captain thoroughly inspect
vessel then take family with him. Offered to show that he
inspected it and must have believed it to be sea worthy or he
wouldn’t have taken his family on board.
o Not under FRE, non-assertive conduct excluded,
 US v. Zenni: police take possession of premises though to
be used for placing bets. Get a lot of phone calls trying to
place bets. Admissible.
 Rationale: aren’t worried about sincerity, not worried
about declarant lying b/c not trying to communicate
anything. But this is problematic. Ambiguity of action
what does it mean. Sea captain could have been looking
for wallet.
o Declarant- Rule 801(b): “declarant means the person who made the statement”
o Leake v. Hagert: P operating snowplow at night, D rear ends. P sues D for negligence
seeking personal injury damages. D counterclaims saying that P snowplow was actually
operating without proper lights. Both thrown out of court. P appeals claiming error in
admission of testimony of insurance adjuster Gross, testified for D that P’s son said “the
red tail light on the snowplow has been out for some time”. On appeal held to be
inadmissible hearsay.
 might have been admissible if father had been there and been silent. If it was the
kind of statement that a reasonable person would have denied if false (admission
by silence)
o Be careful with requirement that it is offered for truth of matter.
 D captured and charged with crime. Says gang leader said do it or you die. Does it
come in? wouldn’t be hearsay b/c it doesn’t matter if its true—the words
constitute the act of coercion
 Admissibility- Rule 802: “Hearsay is not admissible unless any of the following provides otherwise:
o a federal statute
o these rules or
o other rules prescribed by Supreme Court”
 Keep 401 and 403 in mind
o M sues S for killing H. Also suing for conscious pain and suffering. Cop takes stand, says he
19
 saw H laying in the street unconscious, then H rouses himself and says S killed me, I’ll get
him for it.
 Can police officer testify?
 Might seem like a dying declaration, but it isn’t b/c he said I’ll get him, so
didn’t expect to die.
 Might argue not being offered for truth, but just to show that H was
conscious enough to make statement, goes to conscious pain and
suffering
o 403 would keep it out.
 Non-hearsay uses of out-of-court statements
o Verbal act
 Substantive law gives legal significance to certain words, also where we just want
to know if the declarant said those words
 So any W on the stand and testify.
 I do, I accept your offer, I am moving out in April, words of defamation in a
defamation act, words of bribery, words of cancellation, words of
waiver/misrepresentation/permission, words of warning, words of permission.
 Not statements which describe a condition of the world which is true or false.
These are words that have independent legal significance in the case.
o Prior inconsistent statement impeachment
o Effect on listener
 OOCS is offered to show the effect on the person who read it or heard it, not to
show the truth.
 It is offered to show relevant knowledge of third person, or notice to third person,
or good faith on third person.
 Elements
 Listener must have heard statement
 And understood what declarant said.
o State of mind of declarant
 An OOCS not being offered for its truth but is offered as circumstantial evidence
to show declarant’s own relevant state of mind
 Ex. S charged with murder, defense is insanity. W takes stand and says on eve of
killing heard him say “I am the pope on the mission of God”. Is going to what is
going on in S’s mind, indicative of insanity.
 Exclusions- Rule 801(d)(1)-(2)
o Exclusion means situation where technically the OOC statement fits the definition of
hearsay, so under common law would be hearsay, but drafters say it isn’t hearsay
o A declarant-Witness’s Prior Statement- Rule 801(d)(1)
 (A)- Prior inconsistent statement given under oath and part of a formal
proceeding- A statement is not hearsay if “The declarant testifies and is subject to
cross-examination about a prior statement, and the statement is inconsistent with
the declarant’s testimony and was given under penalty of perjury at a trial,
hearing, or other proceeding or in a deposition.”
 given under oath AND part of a formal trial or proceeding.
 (B) – Prior consistent statement offered for purpose of rebutting a charge of
recent fabrication based on motive
 (C)- prior statement of identification made by witness
 in each of these situations, person who made the statement has to be on the
stand and subject to cross examination.
o Rule 801(d)(2)- Admission of a party
 Declaration by the party against the party. Usually means the OOCS is inconsistent
with the party’s position at the time of trial. At the time it was made it could have
20
 been self serving.
 Doesn’t require personal knowledge
 Ex. Sec. tells airline president that a plane went down over Houston, and
he says “damn, negligence again.”
 Doesn’t have special reliability, but let it in b/c of estoppel
 Types of admissions:
 Personal admission—party makes a statement which is ultimately offered
against them
o Capacity in which party speaks is irrelevant.
 Adopted admission—party doesn’t say anything, but someone else does,
and the party adopts what someone else says by nod or silence (i.e. not
denying accusation)
o If a person is silent in the face of an accusation which a
reasonable person under all circumstances would have denied,
then that’s circumstantial evidence that the accusation is true.
o Controversy as to whether this is a 104(a) or (b) question
o Bill v. Farm Bureau: ME says to father “you have no doubt that he
committed suicide”. Father shakes head no. Now parents suing to
get insurance.
 Frequently thought of as 104(b) question, but hearsay
issues are for judges.
 Authorized admission—the person speaking has been authorized to speak
for the party
o Comes into play with corporations.
o But only if employee is authorized to stop.
 Vicarious admission—a statement made by an employee concerning a
matter within the scope of employment is admissible against the
employer or principal as long as its made during employment relationship.
o Depends on whether the person speaking was talking about
something within the scope of employment.
 Co-conspirator’s statement—equate conspiracies with partnerships. It
binds the conspirator.
o A and B rob bank, say “don’t anyone move, anybody that will
come out after we leave will be shot by C outside.” Now
prosecution—State v. C. Statement can come in if:
 There was a conspiracy between B (declarant) and C
(defendant)
 That the statement was made in the course of the
conspiracy (during it)
 That it was made in furtherance of conspiracy
o 104(a) question for judge.
 Mahnlan v. Wild Canlin Survival and Research Center: Sophie the tame
wolf, has confrontation with boy next door, unsure if she bit him, but he
was injured near her. B leaves note with neighbors saying “Sophie bit a
boy” Then there was a meeting and secretary wrote that it was a
discussion about Sophie biting a door.
o Is note admissible? Yes personal admission. Doesn’t matter if he
didn’t have personal knowledge.
o What about the minutes?
 Not admissible against Mr. B
 Admissible against research center? Yes. Secretary
authorized to make minutes. 801(d)(2)(C). but then court
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 then applies to 403. Lack of personal knowledge,
redundant since note is coming in, danger of prejudice
since it only comes against research center and but B is
being tried with him
 Exceptions- Rule 803, 804, 807 (residual exception)
o Exception means still considered hearsay, but admissible.
o Exceptions to rule against Hearsay—Regardless of whether declarant is available as a
witness-Rule 803
 (1)- Present sense Impression
 describing something at about the moment it is happening.
 Rationale: no appreciable time lapse, no memory problem.
 (2)- Excited Utterance
 elements
o there must be a startling event
o the statement must be made under the stress of startling event
 declarant is so excited that he can’t think, and if can’t
think, then he can’t lie
o the statement should concern the facts of the startling
occurrence.
 There could be a delay, If person is in coma, wakes up then remembers
there can be an excited utterance.
 (3)- then-existing mental, emotional, or physical condition
 at the moment the declarant is speaking. Kind of present sense
impression, admissible even if someone just heard another person give
their impression.
 Declaration to show existing state of mind
o US v. DiMaria- D arrives just as they are offloading stolen
cigarettes, police also arrive, arrest and charge him with this. Say I
just came to get the cheap cigarettes.
 even though it tends to be exculpatory
 Declaration to show intent for a future act:
o Mutual life v. Hillmon: Letter by V that he planned to go with D’s
was admissible not as facts communicated by the writer, as proof
that he actually went, but as evidence that he had the intention of
going with D, which made it more probable that he did go.
 Letters held to be admissible
o Ex. Find body on Jan 10. On Jan 1 heard declarant say in about ten
days I’m going to kill myself.
 Shepard v. United States: on trial for murder of wife. D shown that wife
made statements that she was tired of D. P was then allowed to prove
that on her death bed, she said Dr. Shepard poisoned me.
o held not to be admissible.
o Hillmon is farthest court will go, but this is a hard line to draw,
o Reason 1: Mixed statement
 Statement made that is declaration of intent under
Hillmon, but also includes declaration looking backwards.
 ex. US v. Annunciato: “anunciato has asked for
money and I’m going to send it to him”
o admissible
o not showing what declarant did in future,
but what another party would do.
o reason 2: statement of cooperative conduct
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  United States v. Phaester: Larry left friends in restaurant
and never returned. Told several witnesses I’m going to
meet angelo at 9:30 to pick up a pound of marijuana.
 (4)- statement made for medical diagnosis for treatment
 to come in as a declaration of past physical condition, it generally has to
be made to medical personnel who can then testify about it.
 FRE expanded it to include both treatment and diagnosis, including
diagnosis for purpose of giving in-court testimony.
o No incentive to be truthful.
 Medical personnel- liberally defined: doctor, nurse, EMT, anyone who
could diagnose or treat or pass on the information to someone who could
treat
 Declarant- could be patient, family member or friend who brought them
to the hospital.
 Must be reasonably related to diagnosis or treatment.
 Rationale: a person would be a fool to lie to the doctor.
 (5)- recorded recollection
 (6)- records of a regularly conducted activity
 has to be a record.
 If custodian comes into court to authenticate business record these are
the questions to be answered:
o Is this a record kept in the course of regular business activity
o Regular practice of this business to make the record?
o Made at or near the time of the recorded event?
o Was it made or transmitted by a person with knowledge?
 Don’t have to call custodian if you have certified copy.
 Unless the sources, methods, or circumstances indicate unreliability.
 Persons saying things in the BR must be made by those under business
duty to make statement Johnson v. Lutz limitation.
 (7)- absence of a record of a regularly conducted activity
 (8)- public records
 The following are not excluded by hearsay rule, even though the declarant
is available as a witness: Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth:
o (A) the activities of the office or agency, or
o (B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, criminal
cases matters observed by police officers and other law
enforcement personnel, or
o (C) in CIVIL actions and proceedings and against the Government
in CRIMINAL cases, factual findings resulting form an investigation
made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of
trustworthiness.
 Notes:
o Factual findings- may include conclusions and opinions.
o Other law enforcement personnel- includes any officer or
employee of a gov’t agency who has law enforcement
responsibilities.
o Records prepared in a neutral, routine setting, not in connection
with a specific crime is generally admissible.

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 o Evidence inadmissible under 803(8) not admissible under 803(6)
b/c of confrontation clause.
o Defendants may present evidence otherwise inadmissible under
rule 803(8)(B).
 (9)- public records of vital statistics
 (10)- absence of a public record
 (11)- records of religious organizations concerning personal or family history
 (12)- certificates of marriage, baptism, and similar ceremonies.
 (13)- Family records
 (14)- records of documents that affect an interest in property
 (15)- statements in documents that affect an interest in property
 (16)- statements in ancient documents
 (17)- Market reports and Similar Commercial publication
 (18)- Statements in learned treatises, periodicals or pamphlets
 (19)- Reputation concerning personal or family history
 (20)- Reputation concerning boundaries or general history
 (21)- Reputation Concerning character
 (22)- judgment of a previous conviction
 (23)- Judgments involving personal, family, or general history, or a boundary
o Exceptions to the rule against Hearsay—when the declarant is Unavailable as a witness-
Rule 804(b)
 (1) Former testimony: reliability is obvious. Testimony given before in a formal
setting as formal testimony, second proceeding declarant is unavailable.
 Requirements
o There must have been a meaningful opportunity to cross examine
in the first proceeding when W testified live or to develop
testimony
 There should be a certain identity of parties, b/c rule says
former testimony should be admissible if the party against
whom the testimony is now offered was a party in the
first action who had opportunity to XE.
 Strict requirement in criminal case.
 Civil case- allows predecessor in interest
(someone in privity with party)
o Unavailability is required.
 (2) Statement Under the belief of Imminent death: “ in a prosecution for
homicide or in a civil case, a statement that the declarant, while believing the
declarant’s death to be imminent, made about its cause or circumstances.
 Rationale: person who is about to die, who has religious inclination, will
not lie in their moment of death
 Requirements
o State of mind: courts are very strict, declarant must be aware of
the approach of death.
 Settled hopeless expectation of death
 Nature of injuries might indicate this Wilson v. State
o Declarant need not actually die, must think they are going to die.
As long as unavailable at time of trial. Any grounds of
unavailability okay.
o Used to be only admissible in homicide cases, some states now
say its admissible in all cases.
o Subject matter limitation: V shot 4 times from behind, falls into a
gutter. Police say, do you know who did it? He says no, but my will
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 was a product of undue influence. Doesn’t come in.
 (3) Statement against interest: “ A statement that: (A) a reasonable person in the
declarants position would have made only if the person believed it to be true,
because, when made, it was so contrary to the declarants proprietary or
pecuniary interest or had so great a tendency to invalidate the declarant’s claim
against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability.”
 Statement against interest has to be against interest at time statement is
made, not at time of trial.
 An admission has to be a party, but a statement can be made by anyone
 Personal knowledge required
 Unavailability required.
 Problems
o Sometimes hard to tell if really against interests.
o Limitations in criminal cases
 If inculpatory statement. Seems to be statement against
penal interest, but have to be careful, may be self serving
if he is turning states evidence against co-defendant
 (4) Statement of Personal or family history
 (6) Statement offered against a party that wrongfully caused the declarant’s
unavailability.
 Rationale-
o Denies the opponent the opportunity to cross examine the person whose perception,
memory, and sincerity is really important and at issue.
Confrontat  Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and
ion Clause public trial, by an impartial jury of the state and district wherein the crime shall have been
Rule committed, which district shall have been previously ascertained by law, and to be informed of
804(b)(6) the nature and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for
his defence.”
 Crawford v. Washington: even if you have an OOCS that fits a hearsay exception, and even if its
reliable and a deeply rooted hearsay exception, and would normally be reliable, it will still be
excluded by the 6th Amendment Confrontation clause if:
o 1. The OOCS is offered for its truth against the accused in a criminal case
o 2. There was no opportunity for the defendant to XE at the time the statement was made
o 3. There was no opportunity for the defendant to XE at the trial (W unavailable)
o 4. The OOCS was testimonial.
 Ex. G and S are arrested. G tells police “we did it. S is on trial, G is called to stand. He takes 5th
amendment, meaning he is unavailable as a W. Cop that interrogated G is called to the stand to
offer G’s statement. Judge says its an OOCS by G brough in for its truth. But it fits under the
‘statement against interest exception.’ But it won’t come in under Crawford b/c it violates S’s
Confrontation right.
 TESTIMONIAL: justices are split. Thomas is swing vote
o 1. Official, formal statement (Thomas)
 narrow
 grand jury testimony, depositions, affidavits, former testimony not cross
examined, structured police testimony transcribed or video tapes.
 Concurs when held to be non-testimonial, dissents when held to be testimonial.
o 2. Objective witness test
 reasonable expectations of declarant speaker
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  made under circumstances reasonably believed that the statement would be
used for subsequent investigation or prosecution.
 SCOTUS used this test along with third standard when declarants out of court
statements result from police interrogation
o 3. Primary purpose of police interrogation
 about what was in the mind of the speaker, mind of interrogator
 ongoing emergency exception- to secure scene, help victim,
 The court held that a statement made by a dying homicide victim to
police officers identifying Bryant as the perpetrator were not testimonial
because the primary purpose of the interrogation was, looking
objectively at the circumstances in which the encounter occurred and the
statements and actions of both the declarant and the police, to respond
to an ongoing emergency rather than to secure evidence for trial.
(Michigan v. Bryant).
 Test: to determine whether the “primary purpose” of an interrogation is
to “enable police assistance to meet an ongoing emergency,” which
would render the resulting statements non-testimonial, we objectively
evaluate the circumstances in which the encounter occurs and
statements and actions of the party.
 Factors:
o Circumstances in which the encounter occurs?
 At or near seen of crime v. at police station
 During an ongoing emergency or afterwards
o Statements and actions of the parties.
 Testimonial if danger is past. If inquiry is to seek past events to assemble
evidence testimonial and confrontation clause would apply
 Domestic abuse cases
o Statements made to a 911 operator by domestic violence victim as the events were
occurring were not testimonial as the police were responding to an ongoing emergency.
Davis v. Washington.
o Statements made to the police, who responded to a domestic violence call, by the
defendant’s wife at the defendant’s home were testimonial because there was no
ongoing emergency. Hammon v. Indiana
 Forfeiture by wrongdoing
o Rule 804(b)(6): requires that the wrongdoing with intent to prevent testimony be
admitted.
o Forfeiture by wrongdoing exception to Confrontation Clause did not apply to statements
made by victim who was murdered by the defendant because there was no evidence the
defendant murdered the victim for the purpose of rendering her unavailable. Giles v.
California
 Convince judge with preponderance of evidence
 Forensic evidence
o Affidavits of forensic scientists reporting the results of drug analysis are testimonial
(Melendez-Diaz v. Massachusetts)
 The Confrontation clause is not satisfied by “surrogate testimony” from a forensic
examiner who did not do the analysis or prepare the report. Bullcoming v. New
Mexico
o Williams v. Illinois: Expert testifies based on the report by the agency that there is a
match, in my opinion such match indicates that statistically there is only a 1/300,000,000
chance that someone else would match
 The 4 justice plurality found there was no violation of the Confrontation Clause
because:
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  The statement at issue (that a DNA profile was developed from the
victim’s vaginal swabs) was not offered for its truth;
 It was not testimonial b/c the “primary purpose” of preparing the report
was not to provide testimony against any particular person.
 The concurrence: by Thomas- concludes the statements were non-testimonial
because they lacked the requisite “solemnity.”
 But he explicitly rejected both bases offered by the plurality.
 The four dissents believed the statements were offered for the truth and were
testimonial.
Opinions  Lay witnesses: Rule 701
and Expert o Lay opinion is admissible it
testimony  Rationally based on the perception of the witness (personal knowledge)
Rule 701  Helpful to trier of fact
Rule 702  Lay witness should not be an expert. Cannot testify as to matters of scientific or
Rule 703 technical knowledge
Rule 704  Expert witnesses: Rule 702, 703, 704, 705
Rule 705 o Subject matter must be appropriate
 Has to be helpful under FRE 702(a)
o Witness must be qualified (702)
 Hasn’t changed much since inception of rules
 Need not be formal or academic, can be based solely on experience
 Skill witness
o Expert should possess reasonable certainty or probability
 Something more than mere possibility, suspicion, etc.
o Opinion supported by proper basis (Rule 703)
 Can have expert with no knowledge of facts of case come in, give them hypo, then
let them give an opinion assuming the truth of those facts
 Can base it on OOCS if they are the kind that experts in that field would
reasonably rely on.
 What the experts deem it to be, judge doesn’t determine.
 Does the otherwise inadmissible basis come in?
o Yes, subject to 403. Should not come in unless probative value
outweighs prejudicial value (reverse 403)
o 705- unless court orders otherwise, expert may give opinion
without specifying basis of opinion.
 May be required to reveal basis on XE
o Foundation formalities limit manner of presentation
 Daubert’s consequences
o trial judge serves as gatekeeper for scientific expert testimony by virtue of 702 and 104
o Reimports Frye: before they could testify, the methodology had to have achieved general
acceptance in the appropriate scientific community. If an expert wanted to testify, and
judge wanted to accept it, but there was concern in the scientific comm.: couldn’t come in
 Makes judge gatekeeper, rather than scientific community
o You can produce otherwise admissible evidence but only if probative value outweighs
prejudice or confusion of issue
 Rule 702: “A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
o (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
o (b) the testimony is based on sufficient facts or data
o (c) the testimony is the product of reliable principles and methods
o (d) the expert has reliably applied the principles and methods to the fact of the case.”
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