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HEARSAY c. Thing that are NOT Hearsay:

i. Impeaching a Witness
1. What is Hearsay? 1. Prior inconsistent stmt
a. R 801 – three elements is not offered for truth - not hearsay
i. Statement ii. Words that are an element of the case
1. Must be a present or 1. Offer & acceptance of
past fact a K; warranties; wills; defamation;
a. Not future, no titles
promises, no commands – these 2. res gestae or
are OK operative facts
2. Most documents iii. Proving listener’s state of mind that is
contain stmts – assume ALL are an element of the case or defense
hearsay 1. Self-defense; Neg.;
a. Other side’s Assumption of the Risk; and
docs are OK, if offered by you Knowledge
b. Operative fact
docs (contract or lease) are also 2. When Declarant is a Witness [R. 801(d)
OK (1)]
ii. Made outside the present hearing a. Prior Inconsistent Statement
1. Testimony in 1st trial i. Always allowed to impeach
or another case is out-of-court ii. To get in for its truth:
2. TX treats deposition 1. Must be inconsistent
as part of trial 2. Must have been under
a. Feds treat as oath
different hearing 3. Must been in a formal
iii. Offered to prove fact in stmt is true. proceeding
4. eg. Prior trial of same
b. Conduct and Utterances case
i. Utterance – judge analyzes to see if there iii. Grand Jury Testimony
is an implied statement 1. Can’t use in TX, but
ii. Conduct – ignore implications and OK in Fed.
consider only if actor was narrating
1. Only a stmt if primary b. Prior Consistent Statement
purpose was to narrate present or i. W’s credibility must be attacked
past facts ii. Only can use stmt made prior to onset of
2. Sign language, Nod or alleged motive to falsify testimony
shake head, pointing to ID a person,
place or thing, or a reenactment c. Statement of ID of a Person
3. If just “getting on i. Need not be under oath or in proceeding
with life” then OK ii. Person that made ID must be on witness
iii. Conduct + words = Conduct list and must be available for cross.
1. Admissible iii. Then anyone can testify about what W
iv. Short Sets of Words said when making ID. (bystander, etc)
1. Not stmts/hearsay iv. Must be a valid ID – not just person with
2. Corona, Porsche, etc “brown hair”

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v. After indictment – D must have right to c. Then Existing Mental, Emotional or

counsel at line up Physical Condition of Declarant
vi. Pre-indictment – lineup must not be i. Declarations of intent to leave/plan,
“unreasonably suggestive” offered to prove later conforming
conduct
3. Admissions R.801(d)(2) ii. No Beliefs Allowed!
a. If it is a party’s statement, offered 1. “I think or I believe”
by opposition, then it qualifies! NOT OK
iii. Only basic levels of feeling
b. Vicarious Admissions 1. Joy, pain, intent
i. Criminal case – all stmts of the State or 2. NOT underlying
US employees are useable motivation or cause
ii. Party need not have said it directly
1. Could be d. Statements to Physicians
employee/accomplice i. Broader category than previous
ii. Timing of onset and general cause is
c. Statement Adopted by a Party allowed
i. Can be explicit or merely by silence iii. No Statements as to Fault
d. Statement by Authorized Person iv. Foundation: MUST be made for Purpose
i. Press spokesperson or party’s lawyer of diagnosis or treatment!!
e. Past Recollection Recorded
e. Statement by Agent or Servant i. MUST lay Foundation:
i. Agent – one empowered to bind 1. W can’t now recall
ii. Servant – employee 2. W at one time could
1. Prolific source for recall
corporate admissions – internal docs 3. W caused record to be
iii. Courts reluctant to use for Govt made
1. Limit “servants” to ii. Then, can read in the record, but only
local police & people on the case the other party can introduce the doc.

f. Statement by Party’s Co-Conspirator f. Business Records

i. Must be during consp., not after arrest i. Complex Foundation Needed:
ii. Must be in furtherance of the consp 1. Regular business
activity
4. Unrestricted Exceptions (R.803) 2. Doc made in regular
a. Present Sense Impression course of it
i. Declarant said something about what he 3. Made at or near the
was perceiving at that time, or time of events
immediately thereafter (1 to 2 minutes) 4. Made by (or via) a
person with actual knowledge
b. Excited Utterance 5. Was regular practice
i. Regarding a Startling event, while under to keep records of this type
excitement caused by the event ii. Only applies to facts generated inside the
ii. Longer time frame – could be hours business; not outside sources
iii. Declarant must personally observe event iii. Don’t need for other party’s bus records!

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iv. Foundation almost always done by

affidavit now
1. TX rule requires
“usual practice”
2. Fed. Rule still
requires entries made by person with
knowledge

g. Absence of Business Entry

i. Proof event did not happen
ii. Requires showing of that the usual
practice was to record

h. Learned Treatises
i. Must be acknowledged as authoritative
by testimony of a witness
ii. Can read in relevant passages, but
cannot enter the book in evidence

i. Reputation Topics
i. Allowed for personal or family history
ii. Allowed for boundaries
iii. Allowed for character in limited
instances

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j. Official Records another case or 3) prelim injunction

i. Criminal Cases: hearing in this case
1. Can’t use law ii. Current opponent MUST have had
enforcement records opportunity and motive to cross-examine
2. Can use in sentencing, directly or through a party w/ similar
grand juries, probation hearings, bail interest (civil cases only)
proceedings & warrants iii. Things that DON’T Qualify:
ii. Three types of records allowed: 1. Affidavits
1. General activities of 2. Grand Jury Testimony
the office c. Dying Declarations
a. How census is i. Declarant thought he was dying and stmt
taken; how IRS does an audit was re: cause of death
2. Matters directly ii. V’s recovery doesn’t make inadmissible,
observed pursuant to duty imposed but V must be unavailable
by law
a. Not for d. Third Party Admissions
Criminal Cases i. Must have corroborating circumstances
b. Real estate that “clearly indicate trustworthiness”
appraisals; marriage ceremonies; ii. Stmt must be 1) against pecuniary or
deaths observed penal interest and 2) made by non-party
3. Factual findings from iii. Restricted when offered to exculpate the
investigations criminally accused (not trustworthy)
a. D can use in
Crim case e. Statements re: Family History
b. Could be i. Remember, declarant must be
based on input from W unavailable
ii. “My mother told me I was Bill’s son”
k. Judgments of Felony Convictions
i. Admissible to prove ANY underlying f. Declarations by Person Since
essential fact “Rubbed Out”
ii. Only judgments: not arrests, indictments, i. If the remover/killer is a party, these are
or jury verdicts admissible against him!
iii. Civil judgments are ALWAYS ii. E.g.: earlier affidavit, grand jury
inadmissible testimony, oral statement or letter by the
person who was killed
5. When Declarant is Unavailable (R.804)
a. Meaning of “Unavailable” g. Declarants are Impeachable
i. W/O any connivance by proponent, i. Treated just like witnesses
declarant is not findable, refuses to
attend, refuses to answer, has loss of 6. “Catchall” – R.807
memory, is dead, or is incapacitated a. Requirements:
i. Evidence of material fact
b. Former Testimony ii. More probative than anything else
i. Can use if from a 1) earlier trial of this available
case, 2) hearing or depo in this or iii. In the interest of justice
iv. Advance notice is required

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b. Usually seen in civil cases because

of problem with confrontation clause in
criminal cases

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BACKGROUND/PROCEDURES Opening Statements

1. “What the evidence will show”
Offering Documentary and Tangible Evidence 2. Don’t be argumentative or derogatory
1. Mark by clerk for identification
2. Lay the foundation by asking Qs of a Demonstrative Evidence
witness 1. Sketches, models, illustrations – treated as
3. L offers the document/thing into evidence part of W’s testimony & can’t go to jury room
4. Make sure judge says “admitted”
Real Evidence
Relevant Evidence (401) 1. Murder weapon, Bloody shirt, tire, etc
1. If it tends to prove/disprove a fact at issue 2. Usually irrelevant, often allowed w/in
reason
Keeping out adversary’s Evidence a. Ct allows party to liven up the case
1. By objection: Must state the ground & not force to try case by stipulation
(hearsay; relevance, etc), but don’t have to cite 3. If too much inference, can be prejudicial
the rule #
2. By timely Motion to Strike Impact of Erroneous Rulings on Evidence
a. Other side has fair chance to fix and 1. No ground for reversal unless:
other evidence not yet in on to-be-striken a. A substantial right was affected
evidence (harmless error and cumulative evidence
b. If granted: jury told to disregard or doctrines)
can be mistrial if gross abuse of discretion b. Steps taken to preserve error
i. Objection or Motion to Strike
When your evidence is wrongly kept out ii. Offer of Proof
1. Must make an “Offer of Proof” to get your
argument in the record for appeal RELEVANCE
a. Summary oral statement of counsel
b. Detailed Q&A in written form Exclusion of Relevant Evid on Grounds of
c. Detailed Q&A w/ witness on the Prejudice, Confusion or Waste of Time (R403)
stand 1. If helpfulness is outweighed by risk of
Blowing a Motion in Limine prejudice, confusion or waste of time
1. By opposing party: tech contempt; can lead a. Objection must explain how will
to mistrial; will lead to instruction to disregard prejudice
2. By offering party: tech contempt; will vacate b. Risk that jury will depart from oath
order and opponent can now offer the evid to decide case on the evidence
2. Govt typically has right to offer evid of prior
Supression Orders (Criminal Cases) crime. More different and less horrific prior
1. Must be on a Constitutional violation crime, then less chance of prejudice
a. Bad search; bad confession
2. Govt can appeal pretrial Half-Opened Door Rule (R 106)
1. If P1 offers portion of document, then
Review of JMOL Motions waiver of right to object when P2 offers other
1. At close of P’s Case parts
2. At close of All Evidence 2. Overrides rules of Evid. If rest of doc has
3. After the Verdict tons of hearsay, etc., it can still get in!!!
4. Failure to make Motion at each stage can be
a waiver of right to appeal CHARACTER EVIDENCE

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R404: Character Ev Not Admiss Prove Conduct

1. Prosecutor cannot offer in case in chief!
2. Exceptions
a. Can use to impeach W by poor
veracity trait
b. Crim D can initiate re: his own
character
c. Crim D can initiate re: Victim’s
character
d. Civil Case: OK if character is an
element

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Character v. Habit Evidence b. Specific instances of sex with the

1. If there is a moral dimension, you keep it accused offered to prove consent
out! i. No time limit
a. Always driving carefully, checking c. Evidence, the exclusion of which
on baby, ignoring med advice, firing gun would violate Constitutional rights of D
randomly 2. Civil Cases
2. R 406: Evid of habit of person/routine a. Prior sexual history broadly allowed,
practice of org is relevant to prove conforming subject to probativeness standard (403)
conduct b. No reputation evidence, just the
a. No corroboration or eyewitnesses facts
needed 3. TX has no exception for Civil cases
a. Sex assault/indec w/ minor – can
When Character Evidence is Allowed prove teenage girl’s promiscuity the old way
1. Reputation Witness BAD GUY RULES
a. Must show W in position to know
“gossip” 1. R 413: Crim case where D accused of
b. Presence in work or home sexual assault, evid of other offenses of sexual
community assault is admissible
2. Opinion Witness a. Regardless of whether charged,
a. Must show how long W knew person convicted, or even acquitted (even
& in what capacity to prove opinion allegations)
valuable b. Texas does NOT have this rule
3. General character on direct! 2. R 414: Trial for child molestation, evid of
a. Specific instances only allowed on other child molestations by D is admissible
direct when character is an essential element 3. R 415: Civil trials - Sex Assault or
4. On cross, can offer specific instances of Molestation
conduct a. Evid of prior incidents are also
a. Can also call another W to rebut admissible
what was said about D’s character or to 4. All rules subject to 403 probative value test
rebut the character of the character witness
5. On redirect, D can offer specific instances OTHER ADMISSIBILITY RULES
Other Crimes, Wrongs, Acts N/A for character Remedial Measures following an Incident
1. R 404b: Can use as proof of motive, MO, 1. Not admissible to show negligence (R 407)
intent, opportunity, preparation, plan, 2. If controverted, admissible to show:
knowledge, ID a. Ownership or control (it’s not my
2. Requires a pattern: more unique MO => house)
fewer b. Feasibility of better condition/design
RAPE SHIELD RULE (R 412) Failed Settlement Discussions
1. There must first be a claim disputed as to
Generally inadmissible with following exceptions validity or amount to trigger the rule
1. Criminal Cases 2. Once a claim exists, settlement offers are
a. Specific instances offered to prove inadmissible to show liability for damages
someone other than D was source of 3. Comments made during settlement can be
physical evid used:
i. Near term: scratches,
bruises, semen

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a. To 1) guide discovery, 2) prove bias 1. W has no personal knowledge of matters

or prejudice, or 3) negate a claim of undue about which he is going to testify
delay or latches 2. W has no capacity to recall
4. Govt can use what people say to prove 3. W does not understand duty to testify
obstruction charge (shredding of discovery) truthfully
5. CAN use for Impeachment 4. W incompetent if refuse to submit to cross
5. Testimony striken if W refuses cross after
Criminal Plea Bargaining direct
1. Guilty plea that sticks can be used in later 6. Insane W can testify if meets other tests
case a. Insanity goes to weight given to
2. Nolo plea that sticks can’t be used in later testimony
case
3. Withdrawn pleas cannot be used The Oath Requirement
4. Admissions during pleas follows same rules 1. Every W shall declare he will testify
5. Plea Bargaining Comments by D are truthfully by oath/affirmation (Swearing to God
protected not req)
a. If speaking to a prosecuting attorney,
and The Child Witness
i. Agency: if reas belief person 1. Presumed competent once J satisfied by vior
had authority dire that understands duty to tell the truth
b. If the topic is plea bargaining 2. Mental/moral capacity goes to weight
6. Half-opened door applies:
a. D testifies to part => then rest is Previously Hypnotized Witnesses
admissible 1. State can create procedural safeguards, but
b. If later prosecution for perjury => no can’t rule inadmissible per se (Janike thinks
protect OK)
Dead Man Statutes
Proof of Payment of Medical Expenses 1. CL had absolute prohibition – most states
1. R 409 – inadmissible to prove liability retain
2. TX Rule: If estate is a party, no one can
Proof of Insurance Coverage testify re: conversation w/ deceased, unless:
1. R 411 – inadmissible to support argument a. Corroborated
that person was careless or careful b. Elicited by other side
2. Can use to prove something other than
liability Lawyers as Witnesses
a. Subrogation claims OK 1. Judge has discretion to exclude or condition
testimony on withdrawal of lawyer
COMPETENCY OF WITNESSES 2. Violates TRPC unless:
a. Uncontested matter
Personal Knowledge Requirement (R 602) b. Matter of formality & no reason to
1. W may not testify w/o personal knowledge believe substantial evid will be offered in
a. Observed by senses, not processed or opposition
interpreting the observation c. Nature and value of legal services
2. Excludes lay opinions and testimony re: rendered
state of mind or emotion of 3rd person d. Refusal will work subst hardship on
R 601: Everyone presumed competent, unless: client

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Jurors as Witnesses Non-Specific Methods

1. Preverdict Testimony 1. Impaired General Competency
a. Live & affidavit allowed, not in front a. Unable to observe or remember in
of jury general
2. Postverdict Testimony b. Bias or prejudice toward one party
a. Nothing “inside the circle” is (403)
allowed i. If target W scared through no
b. “Outside circle” allowed re: outside fault of his own, then can still be biased
influences (bribes, threats) or extraneous 2. Poor Character for Veracity
information (newspaper accounts) a. Bad reputation for truthfulness
3. B4 judgment, jury makes erroneous calc of $ i. Only general reputation on
$ direct
a. Motion JNOV on damages b. Prior dishonest acts (established on
b. Remititior Practice: J gives P choice cross)
to accept correct $$ or will grant a new trial i. Specific acts (no conviction
necessary and no time limit re: prior
DIRECT AND CROSS EXAMINATION acts)
3. Conviction of Prior Crime
Leading on Direct a. Any crime involving dishonesty
1. Generally not allowed; OK on prelim i. No 403 test
matters ii. False fire alarm, false tax
2. Present Recollection Revived return
a. OK to use docs, songs, etc to refresh b. Any felony, but subject to 403 test
memory; no verification bcs i. Larceny, robbery, armed
Leading on Cross not in evidence robbery, narcotics crimes, homicides,
1. Broadly allowed; BUT you can’t lead assaults
“friendly” W, even if opposition calls on direct ii. J must weigh prob value to
credibility
Witness Preparation Material 1. Can go into facts &
1. Adverse party has right to see if used while circ of prior conviction to make 403
W on the stand or if W used it to prepare for decision
depo c. 10 year limit in either case
2. Waives attorney-client privilege i. > 10 yrs, then Ct can 403 test
to let in
Invoking “The Rule” d. Inadmissible if W was pardoned or
1. Mandatory on request of either party rehabilitated & not convicted of subs crime
2. Certain witnesses are exempt: e. Pendency of appeal does not make
a. Individual parties to the suit inadmiss
b. One corporate rep for each corp f. Juvenile adjudication generally
party inadmissible
c. Ind “necessary” to presentation
(experts) Specific Methods
3. Reading transcript is violation in some juris 1. Generally good W, but not for this case
4. Penalty for breach: Strike defending W’s a. OK character for veracity & ability
test to observe & relate
IMPEACHMENT OF WITNESSES 2. Impaired Competency on Occasion in
Question

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a. Drunk, night-time, looking other way b. Sharp questions on cross suggesting

3. Bias or Prejudice re: This Case W not truthful can trigger this rule
a. Business advantage on outcome 2. Prior Consistent Statements
4. Prior Inconsistent Statement a. Must show was made B4 any
a. Must afford target W chance to opportunity for falsification arose
explain
i. Can’t use if excused & OPINION EVIDENCE
beyond subpoena
b. Can’t impeach own W as a mere R 701: Opinions of Non-Experts Allowed only if:
subterfuge 1. Rationally based, and
i. Good Faith Std: used for a. Time/weight/distance/handwriting/in
surprise W sanity (most non-premeditated mental states)
5. Contradiction of Direct by Target W on b. “Real guilty look” is opinion -
Cross inadmissible
a. Minor points, stuck w/ answer (no c. Need foundation of physical
extrinsic) perception
b. Near term Events/circum – can go 2. Based on a physical perception by W, and
extrinsic a. Things that happen in ordinary life
Using Extrinsic Evidence to Impeach b. Sobriety/drunkenness/stoned is OK
1. Any evid other than target W on stand c. No conclusions of law (was
2. Calling impeaching W is going extrinsic! speeding, etc)
3. When can’t you “go extrinsic” 3. Helpful to trier of fact
a. Contradiction on minor points a. No other feasible way to convey
method impression
b. When cross examiner asking target R 702: Expert Opinions
W about prior dishonest acts if no 1. Methodology must be reliable (J checks)
conviction a. Negative finding shuts off evidence
c. W/ Conviction of Prior Crime b. Positive finding only allows jury to
method, can introduce the criminal record hear

Surprising Things re: Impeachment Reliability Std for Scientific/Tech Evid

1. Non-mirandized statements can be used
2. Pre-miranda silence can be used
a. Post-miranda silence cannot
3. Illegally seized items can be used
Seratim Impeachment Methods
1. Generally allowed; don’t waive one method
just because did not use it first
Who can be Impeached?
1. Any W, including impeaching W, that
answers any question places credibility at issue
Repairing Witness’ Credibility
1. Evidence of Good Character
a. Only allowed after W’s character for
truthfulness has been attacked
1. Frye rule only required “generally accepted”
2. Daubert now requires reliability test
a. Whether it can be (has been) tested
b. Whether subjected to peer review
c. Known or potential rate of error &
existence and maintenance of stds to control
operation
d. “General acceptance”
3. Applies to all experts, not just scientific
R 703 Bases of Opinions by Experts
1. Can be based on firsthand observations
before the hearing or at the hearing or outside
data
2. Underlying data can only be entered into
evid by opponent (tactical decision)

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R 704 Opinion on Ultimate Fact

1. Generally allowed except expert cannot Sanity Checks
opine on the state of mind of criminal D 1. If presumption is rebutted and vanishes, then
goes to jury the normal way
Taking Witness on Vior Dire 2. If trigger facts have not been proved, goes to
Can be done at any time think inadequate jury normal way
foundation was laid
Can’t use suppressed evid to lay foundation JUDICIAL NOTICE
Can use to challenge credentials or testimony
General Overview
PRESUMPTIONS (Civil Cases) 1. Substitute for Evidence
2. Civil cases – binding on jury
Definition 3. Crim cases – jury may conclude noticed
1. Judge-mandated conclusion that jury must facts
reach if it finds certain premise facts
2. Public policy, usually so, access to evid Two Bases for Judicial Notice
1. Facts generally known to the locale
How it Works a. Main has traffic; Astros in H many
1. Party asks for presumption instruction years
2. J evaluates evid controverting presumed fact 2. Facts not generally known, but ascertainable
3. If substantial evid contra to presumption: from references of undisputable accuracy
a. Judge says nothing & presumption a. Closing price IBM on 7/22/03
gone
4. If no evid contra, then fact is in the record. Procedure to Get Judicial Notice
5. If trigger facts in conflict, then J instructs: 1. Ask on record for court to take j.n. of that…
a. If jury finds X and Y, then must find 2. Adversary entitled to object
Z Ruling and Effect
6. Once triggered, no rebuttal 1. Civil case – contempt to controvert; can
only offer contradicting evid on Motion to
PERMISSIBLE INFERENCES Vacate
How it Works 2. Crim – permissive, can offer contradicting
1. A conclusion the jury may draw evid
2. If X and Y overwhelmingly proved, J says: I PRIVILEGES
have found X & Y, you may conclude Z FRE Approach to Privileges
Examples 1. Fed Question & Crim Cases – Fed CL
1. Unexplained possession of stolen property 2. Diversity cases – applicable State law
a. Possessor stole it Attorney-Client Privilege (503)
2. Leaving restaurant without paying 1. Confidential communication for the purpose
a. Intention to evade payment of obtaining legal advice
Sources of Presumptions 2. Between client & his rep and L & his rep
1. Some are statutory 3. Client’s privilege – L can assert on behalf of
2. Many come from prior cases/appellate court C
4. Protects communication, not underlying
Criminal Cases facts
1. Presumptions/permissible inferences same 5. Upjohn Rule – extends to all members of
2. Never a mandatory conclusion corp

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6. Crim Cases – extends beyond 4. May be claimed by speaking spouse or other

communication and covers facts learned by L spouse on their behalf
7. No exceptions for need/hardship 5. Exceptions:
8. Crime/Fraud Exception a. Furtherance of crime or fraud;
a. If C’s main purpose is to have L b. Proceeding btw spouses in civil
assist in a crime or fraud, then no protection action;
b. Past crimes are privileged, not c. Crime against spouse or minor child;
future! d. Commitment
9. Eavesdropping has no effect – apparent
confid Marital Testimonial Privilege
10. Waiver (only by C or authorized 1. Criminal case only
representative) 2. Spouse of accused has privilege not to be
a. Conduct – handing over docs or called as witness for the state
revelation 3. Spouse can testify voluntarily, even over
b. Half-Opened Door – reveal part – objection of the accused spouse
then all 4. Accused spouse cannot claim the privilege
c. Waives all other privileged comm on 5. Ends with divorce
same topic up to the date of the waiver 6. Does not apply where witness-spouse is
victim
Physician-Patient Privilege (509)
1. If physician licensed or reas believed to be Privilege Against Self Incrimination
2. Almost nonexistent in TX bcs no privilege 1. Can’t require to testify or write out
where patient’s condition part of claim/defense confession
3. Does not apply to Criminal cases, except 2. But, if person writes doc on own initiative,
drug/alcohol treatment no privilege and doc can be discovered and used
3. Files – created voluntarily, so not protected
Mental Heath Professionals (510) 4. If subpoena is phrased in such a way that
1. No privilege in Crim cases compliance would amount to statement or
2. Tracks phys/patient in civil – same confession, then Motion to Quash
exception 5. Civil cases: Invoking the 5th
a. P apt to be non-suited in TX
Work Product (FRCP 26b3) b. Civil D will have heavy negative
1. Material prepared in anticipation of comment
litigation c. All other privileges are
2. Can be overridden by show of need unmentionable
3. Mental impressions are masked out
Trade Secret AUTHENTICATION
1. Quasi-privilege; can override if maintaining General Overview
would “work injustice” 1. Needed for docs & tangible things B4
Clergyman-Penitent Privilege received
1. Issue is what organizations are religious 2. Means the doc/thing is what proponent
Marital Communications (written & oral) contends
1. Made during marriage under apparent 3. Has nothing to do with doc being truthful
privacy 4. Judge is gatekeeper – ruling not binding on
2. Survives divorce and death jury
3. Does not extend to contemporaneous actions Taking Witness on Voir Dire

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1. Generally improper to take authenticating W

on voir dire prior to when the doc/thing is BEST EVIDENCE RULE
offered
General Overview
1. The content of a writing, photos, or
Authentication Methods recordings can be proved only by putting the
1. Testimony from Lay Witness with original or mechanical copy into evidence
Knowledge
a. Most traditional
b. Sometimes use affidavits Examples of Breach
i. Can use only in bench trials 1. W: “My lease permitted pets”
ii. Inadmissible hearsay in jury 2. W: “My diploma says BA History”
trials Examples of No Breach
2. Comparison by Expert Witness or by Jury 1. W: “I signed the lease” – no content
a. Compare to previously admitted 2. W: “I majored in Liberal Arts”
specimens 3. When W telling events, but no content!
3. Distinctive Characteristics
a. Problem with pointing them out to W Exceptions to the BE Rule
b. Workable only in bench trials 1. Witness allowed to testify re: contents if:
4. Voice Authentication a. Original lost or destroyed
a. Requires familiarity b. Original not obtainable (withheld by
5. Alternative Voice Authentication distant 3rd party)
a. For phone calls, testimony X’s # was c. Original in hands of adverse party
dialed and circumstances suggest X on the d. Evidence is on a minor point
line 2. Can always prove the contents by deposition
or trial testimony of the adverse party or by his
Authenticity Does Not Assure Admissibility written admission
1. Even if authentic, doc may still contain 3. If documents are voluminous, sometimes
hearsay and be objectionable/inadmissible may use summaries w/ proper attesting witness
a. Need a hearsay objection to get in a. Always need originals available for
2. Docs from other side and docs that are an other side to verify the summaries
element of the case are not hearsay
Self-Authenticating Documents
1. Public documents under seal
2. Public docs not under seal, but w/ sealed
attestation attached
3. Govt publications
4. Newspapers & periodicals
5. Trademarks on goods/premises
6. Documents with private signatures, but
acknowledged before a notary
7. Business records with declaration
Chain of Custody
1. A method for authenticating items that could
get altered
2. Chain w/ broken links sometimes ruled OK

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