Intro to Evidence

1) DUE PROCESS
a) SUBSTANTIVE DUE PROCESS
i) Substantive due process defines the remedy and the right. Procedure defines the mode and the
conditions of the application of that right. It is the part of the law that creates, defines, and regulates
the rights, duties, and powers of the parties.
b) PROCEDURAL DUE PROCESS
i) Procedural due process generally involves: (1) notice of the crime or lawsuit; (2) a right to a trial or
hearing; (3) a right to confront witnesses; (4) a written decision or verdict; and, (5) a right of appeal.
2) CRIMINAL PROCEDURE
a) Criminal procedure involves several steps: (1) the investigation; (2) arrest; (3) indictment (serious
crime) or information (less serious); (4) arraignment; (5) pretrial detention and/or bail; (6) plea
bargaining; (7) trial/adjudication of guilt; (8) sentencing; (9) appeals; and, (10) punishment.
i) INDICTMENT
(1) A grand jury indictment is required when prosecuting serious crimes such as felonies. The grand
jury decides whether to bring charges against a person. The hearing is closed and only the
prosecutor presents evidence. Defendants have no right to be present at the proceeding and no
right to counsel during the proceeding. The standard of proof required is probable cause.
ii) INFORMATION
(1) A prosecutors information is required in less serious misdemeanor crimes. A preliminary
hearing is held to determine if there is probable cause to warrant a trial. A defendant and his
attorney may be present to dispute the charges.
iii) TRIAL/ADJUDICATION OF GUILT
(1) Trials are held before a judge or jury. The standard of proof in a criminal case is guilt beyond a
reasonable doubt. If there is doubt, the accused is entitled to an acquital.
(a) PETIT JURY
(i) A jury of 12 persons impaneled to try and to decide issues of fact in a case.
iv) PRELIMINARY MOTIONS
(1) In both civil and criminal cases the judge might hear preliminary motions, or motions in limine
(used to raise objections to evidence prior to trial). A judge might defer his decision in order to
see how the evidence will unfold at trial. A party may often hold-off raising an objection until
trial. However, criminal law requires that motions to supress be heard prior to trial.
3) TRIAL BY JURY
a) Voir dire the jury selection process. Each side has a certain number of peremptory challenges and
unlimited challenges for cause. After the jurors are selected, they take an oath to carry out their duties
they are now empanelled. The judge may then give the jury preliminary instructions regarding the law
they will need to apply.
i) OPENING STATEMENTS
(1) Are descriptive, not argumentative. The line between description and argument is indistinct.
Opening statements provide a roadmap of the argument. Defense may defer opening statements
until the start of the defenses case. Nothing an attorney states is considered evidence.
ii) GOVERNMENTS CASE IN CHIEF
(1) The government (in a criminal trial) or plaintiff (in a civil case) presents its evidence first. This
evidence may consist of direct evidence, circumstantial evidence, testimonial evidence, and
physical evidence. The prosecutor or plaintiff goes first because that party has the burden of
proof (can move for directed verdict).
(a) TESTIMONAL EVIDENCE
(i) Testimony of witnesses. Direct examination is by the lawyer who called the witness.
Cross-examination is by the other side. A judge may permit redirect and recross
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examination of a witness. Redirect and re-cross is typically limited in scope to the

proceeding testimony. Leading questions are not allowed in direct/redirect examination,
but are allowed in cross/recross examination. Instead, during direct/redirect the attorney
must let the witness give his or her own testimony. However, the attorney may gently
guide the path of the testimony.
1. SEQUESTRATION OF WITNESSES
a. FRE 615 allows either party to request the sequestration of witnesses. The court
on its own motion may also order the sequestration of witnesses. If a witness was
permitted to observe the testimony of other witnesses, he would be able to tailor
his testimony based on the previously admitted evidence.
b. EXCEPTIONS TO SEQUESTRATION OF WITNESSES
i. The FRE recognizes several exceptions to the principle of sequestration. The
following parties are excluded from sequestration: (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person whose presense
is shown by a party to be essential to the presentation of the partys cause.
Most courts consider an investigating officer to qualify as a designated
representative under the theory that it counter-balances an advantage held by
the defendant.
(b) PHYSICAL EVIDENCE
(i) Physical evidencec is introduced into evidence in two steps: (1) it is marked for
indentification (plaintiffs Exhibit A); and, (2) the exhibit must be introduced into
evidence. An exhibit may be marked for identification before or during trial, but it must
occur before the item is shown to a witness (so that its part of the record). The party
seeking to use the marked exhibit must ask the judge to admit it into evidence.
(2) EVIDENTIARY OBJECTIONS
(a) Evidentiary objections may be resolved by: (1) sustaining or denying the objection; (2)
asking opposing counsel for a brief response and then making a ruling; (3) by asking the
parties to the side bar to confer with the lawyers outside of the jurys hearing; and, (4)
deferring consideration of the matter until the jury is out of the courtroom.
iii) MOTION FOR JUDGMENT OF ACQUITTAL (DIRECTED VERDICT - CIVIL)
(1) After the plaintiffs case in chief, the defendant may move for a motion for judgment or
acquittal. In order to grant the motion, the judge must find that no rational jury could find that
the plaintiffs or governments case satisfies the applicable standard of proof.
iv) DEFENSE CASE
(1) After the plaintiffs or governments case is concluded, the defense now presents its case. If the
defense did not give an opening statement at the start of trial, it may do so now.
v) REBUTTAL
(1) A rebuttal should respond to evidence presented in the defendants case (redirect examination
should also be limited to the scope of the cross-examination). Generally, the plaintiff may
present additional witnesses, recall former witnesses, or present new exhibits, but only to rebut
the defendants evidence, not to buttress the case-in-chief. Judges may waive these limitations.
A judge may also allow the defendant to present a surrebuttal case (response to the rebuttal case).
The judge has discretion to allow further proceedings.
vi) RENEWED MOTION FOR JUDGMENT OF ACQUITTAL (DIRECTED VERDICT)
(1) After the government or plaintiff has presented its rebuttal, the defendant may move for a
renewed motion for judgment or acquittal. Again, the judge must find that no rational jury could
find that the plaintiff or governments case satisfies the applicable standard of proof.
vii) CLOSING ARGUMENTS
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(1) Unlike opening statements, closing arguments are not limited to factual statements. However,
they are restricted to claims based on the evidence that has been introduced.
viii) FINAL STEPS
(1) Final steps include: (1) preparation of jury instructions; (2) jury renders a verdict; (3) postconviction motions are filed (motion for new trial); (4) a judgment or commitment order is
entered; and, (5) appeal.
b) DISTINCT FEATURES OF A JURY TRIAL ON EVIDENCE LAW
i) Some evidence rules are based on a concern that certain evidence may unduly influence the jury
(amateur fact-finders); other evidence rules promote efficiency (not convenient to court or jurors).
Evidence rules also reflect a preference for live testimony of sworn witnesses that are subject to
cross-examination and whose demeanor can be observed by the jury. Evidence rules are also
influenced by the lawyers control over the conduct of the trial. Lawyers decide what witnesses to
call, questions to ask, evidence to introduce, and the order to proceed. Trial lawyers can also waive
rules of evidence they do not wish to enforce.
4) EVIDENTIARY BURDENS
a) BURDENS OF PROOF
i) Burdens of proof depend on the cause of action or type of proceeding. These burdens of proof are as
follows: (1) probable cause (arrest in a criminal case, preliminary hearing, indictment); (2)
preponderance of the evidence (civil action); (3) clear and convincing (higher than preponderance
administrative actions); and, (4) beyond a reasonable doubt (conviction of a crime).
b) BURDEN OF PLEADING
i) What must be stated in an initial pleading in a legal proceeding. In a criminal proceeding, the
indictment or information must establish probable cause. In a civil matter, the plaintiffs allegations
are accepted as true and are viewed in the light most favorable to the plaintiff. The plaintiff must
avoid a motion to dismiss for failure to state a claim upon which relief may be granted.
c) BURDEN OF PRODUCTION
i) A party who bears the burden of production must offer sufficient evidence such that a reasonable
jury could decide in that partys favor an element, claim, or defense. A plaintiff or prosecutor bears
the burden of production; however, the defendant may bear the burden in regard to an affirmative
defense. If the affirmative defense relates to an element of an offense, the burden remains with the
prosecution. Failure to meet a burden of production may result in a judgment of acquittal or directed
verdict.
(1) AVOIDING A DIRECTED VERDICT
(a) A party must convince the judge that a reasonable jury, applying the appropriate standard of
proof, could find in favor of the party that opposed the directed verdict. In a civil case, the
evidence must be sufficient to allow a reasonable jury to find in the partys favor. However,
it is not possible to have a directed verdict against a criminal defendant, on the case or any
element of the case, as it is unconstitutional to allocate the burden of persuasion to the
defendant. A defendant may be required to bear the burden of persuasion as to an affirmative
defense.
d) PRESUMPTIONS
i) Presumptions shifts burdens and may prove a basic fact. There are three types of presumptions: (1)
irrebuttable presumption; (2) rebuttable presumption; and, (3) permissive inference.
(1) IRREBUTTABLE PRESUMPTION OR CONCLUSIVE PRESUMPTION
(a) One that cannot be rebutted (children under 7 are incapable of commiting crimes).
(2) REBUTTABLE PRESUMPTION
(a) Conclusion as to the existence or nonexistence of a fact that a judge or jury must draw after
certain evidence has been introduced and admitted as true in a lawsuit (items mailed are
presumed to be received). The presumption may be contradicted by evidence to the contrary.
(i) FRE 301 - BURSTING BUBBLE
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301 PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS AND PROCEEDINGS

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a
presumption imposes on the party against whom it is directed the burden of going forward with evidence to
rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
1. If evidence is offered which is sufficient to rebut a presumption, the presumption
disappears, and the jury will never hear about it. Thus, it will have no effect on the
burden of persuasion. This is the theory under FRE 301.
(b) PERMISSIVE INFERENCE
(i) An inference that is permissible for a reasonable jury to make. This is not really a
presumption. In criminal matters the prosection must prove each element of a crime and,
as such, one can infer but cannot presume.
5) THE FEDERAL RULES
a) The FRE became effective in 1975. The rules apply to all trials in federal court.
i) FOUR IMPORTANT FACTORS REGARDING MODERN EVIDENCE LAW
(1) Modern evidence law is: (1) heavily statutory; (2) applied by judges, not juries; (3) is largely
discretionary (FRE 103: Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected); and, (4) can be waived if not objected
to in a timely manner.
(a) REVIEW OF EVIDENTIARY RULINGS
(i) Evidentiary rulings are largely discretionary. They are typically reviewed at an abuse of
discretion standard. There is no reversal for a harmless error. Lawyers can effectively
waive an evidentiary objection; however, they may still appeal a plain error.
(b) ROLE OF JUDGE AND JURY
(i) A judge decides the law, the jury decides questions of fact. Thus, the judge makes the
initial determination as to whether to admit evidence. However, the jury decides what
weight to give that evidence. A jury may judge the credibility of a witness and a jury is
free to disregard that testimony if the jury believes the witness is mistaken or lying.
TYPES OF EVIDENCE
1) SEVERAL TYPES OF EVIDENCE
a) DIRECT VS. CIRCUMSTANTIAL
i) Direct evidence is based on personal knowledge, observation, or other evidence that, if true, proves a
fact (or resolves an issue) without inference or presumption. Circumstantial evidence is evidence
that proves a fact by inference or presumption. Even if believed, this evidence does not prove a fact
(or resolve an issue) unless additional reasoning is used (inferences are made).
(1) PROBATIVE VALUE
(a) The probative (tending to prove or disprove) value of direct evidence might not be higher
than that of circumstantial evidence.
(i) EXAMPLE OF DIRECT EVIDENCE
1. Eyewitness testimony stating I saw the defendant shoot the victim. If it is believed,
it establishes that the defendant did shoot the victim.
(ii) CIRCUMSTANTIAL EVIDENCE
1. Eyewitness testimony stating I saw the defendant running away from the area victim
was shot with a gun. Even if this evidence is believed, it only establishes that the
defendant was in the area with a gun, not that he shot the victim. However, from this
evidence the jury could infer that he did shoot the victim with a gun.
b) TESTIMONIAL, REAL, AND DEMONSTRATIVE
i) TESTIMONAL EVIDENCE
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(1) A witnesss assertion in court. A fact-finder must rely on the witnesss interpretation and
memory of the events.
ii) REAL EVIDENCE
(1) Tangible evidence involved in the underlying event (weapon, document, or other tangible
evidence).
iii) DEMONSTRATIVE EVIDENCE
(1) A tangible item that illustrates some material proposition (a map, chart, summary, or recreation).
A fact-finder may interpret real or demonstrative evidence by use of its own senses without the
intervening interpretation of a witness.
PROCEDURE FOR ADMITTING OR EXCLUDING EVIDENCE
1) PROCEDURE FOR ADMITTING OR EXCLUDING EVIDENCE
Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and
delay, and promotion of growth and development of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.
a) In enacting these rules, Congress did not intend to supersede the common law rules of evidence. Gaps
in these rules should be resolved by referring to common law precedent.
Rule 103. Rulings on Evidence
(a) Effect of Erroneous Ruling: Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and,
(1) Objection: In case the ruling is one admitting evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if the specific ground was not apparent from the context;
or
(2) Offer of Proof: In case the ruling is one excluding evidence, the substance of the evidence was made
known to the court by offer or was apparent from the context within which questions were asked. (Offer of
Proof: A presentation made by an attorney to a judge, outside the presence of the jury, to show why evidence
offered by the attorney is material).
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of Offer and Ruling: The court may add any other or further statement which shows the character
of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the
making of an offer in question and answer form.
(c) Hearing of Jury: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of
proof or asking questions in the hearing of the jury.
(d) Plain Error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights
although they were not brought to the attention of the court.
1) RULINGS ON EVIDENCE
a) An error must affect a substantial right of a party (the outcome of the trial must have been different if the
evidence had been admitted or excluded); otherwise, an appellate court will not reverse or remand.
Also, if a party fails to make a timely objection, to alert the judge to the proper course of action and to
allow opposing counsel to take corrective measures, that party may have waived the right to appeal an
evidentiary error. Only if the evidence admitted is a plain error will you be able to appeal when you fail
to object.
i) OBJECTION AND OFFER OF PROOF
(1) A timely objection to the evidence should be made (objection: hearsay). The judge may then
consider whether to admit or exclude the evidence, or may request that the parties discuss the
matter at sidebar. If the evidence is admitted, it becomes part of the record. However, if the
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evidence is excluded, the party attempting to exclude the evidence must make an offer of proof.
An offer of proof allows the judge to consider a particular line of testimony, and for the counsel
to protect the record, without a series of questions that will waste time and/or inform the jury of
the matter sought to be excluded. If a party fails to submit an offer of proof, the evidence will
not be preserved on the record for review on appeal.
(a) TYPES OF ERRORS
(i) Even if a timely objection is made, most evidentiary errors will not result in a reversal on
appeal. Only errors that effect a substantial right of a party (an error that affected the
result) will result in reversal. Often, the court will find that an error is harmless and did
not affect the result. Reasons why a court might find an error harmless include: (1)
cumulative evidence (other evidence outweighed the effects of the error 3 parties
testifying as to same event); (2) curative evidence (limiting instructions to jury were
deemed sufficient to correct any error); (3) overwelming evidence (other evidence
overwhelmingly supports the judgment).
ii) PLAIN ERROR
(1) A breakdown in the adversary system might not preclude a party from appealing a plain error.
However, a plain error is more likely as to admitted than excluded evidence. The failure to
submit an offer of proof will result in a record that does not disclose the error.
iii) IN LIMINE RULINGS
(1) Objections to evidence may be made at or before trial (in limine rulings).
(a) RENEWAL OF OBJECTION NOT REQUIRED
(i) A party is not required to renew an objection or to submit an offer of proof, at trial, to an
evidentiary matter decided at a pre-trial hearing. However, if court reserved its ruling or
indicated the ruling is provisional, the party must raise an objection or submit an offer of
proof at trial; otherwise, the party may have waived their right to appeal an evidentiary
error. Thus, counsel must clarify whether a pre-trial (in limine) evidentiary ruling is
definitive when there is any doubt as to that point.
1. COURT MAY REVISIT DEFINITIVE RULING
a. A court may always revisit a definitive ruling at trial. If the court changes its
initial ruling, or if a party violates the terms of the initial ruling, an objection must
be made to preserve the claim of error on appeal. The error, if any, occurs only
when the evidence is offered and admitted and, as such, must be made at that
time. Further, if the facts and circumstances have changed, the changes must
be stated on the record in order to preserve the record for appeal.
2. CONDITIONAL ADMISSION OF EVIDENCE
a. A court may decide that the proffered evidence is admissible subject to the
introduction of additional evidence. If the additional evidence (foundation
evidence) is not provided, the opponent must bring that failure to the courts
attention by a timely motion to strike. Otherwise, the opponent may be precluded
from raising that evidentary error on appeal. The judge is not responsible to
ensure (sue sponte) that the foundation evidence is offered.
iv) STANDARD OF APPELLATE REVIEW
(1) Evidentiary rulings are reviewed only for an abuse of discretion (unless the question is the
interpretation of law). Thus, in most cases an evidentiary ruling will only be overturned due to
the failure to exercise sound, reasonable, and legal decision-making. Thus, a judge will only be
overturned if the decision is grossly unsound, unreasonable, illegal, or unsupported by the
evidence.
Rule 104. Preliminary Questions
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject
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to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence
except those with respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition.
(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the
hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice
require, or when an accused is a witness and so requests.
(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to
cross-examination as to other issues in the case.
(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence
relevant to weight or credibility.
2) QUESTIONS OF ADMISSIBILITY CONSIDERED BY THE COURT
a) Preliminary questions concerning the admission of evidence are made by the court (judge). However,
the judge is not bound by the rules of evidence when making this decision, except with respect to rules
regarding privilege. A court may review any documents, listen to testimony, and hear arguments from
counsel in determining whether the evidence is admissible.
i) OUTSIDE OF HEARING OF JURY
(1) Hearings concerning the admissibility of confessions must be heard outside the hearing of the
jury. Also, when the accused is a witness on a preliminary matter, the accused may request and
has a right to a hearing conducted outside of the hearing of the jury. Although many preliminary
hearings should be conducted outside the hearing of the jury, to prevent the jury from hearing
prejudicial information, these matters are left to the discretion of the court. When a preliminary
matter is unlikely to be prejudicial (determining the competency of a child to testify), the judge
might not dismiss the jury. In these situations, dismissing a jury would be needlessly time
consuming.
(a) JUDICIAL EFFICIENCY
(i) Evidence that might be relevant to the establishment of a condition precedent might also
be relevant to the weight and credibility of the evidence. As such, time is saved by taking
the foundation evidence in the presence of the jury. Also, evidence on a preliminary
question, that might not be relevant to jury issues, might be heard by the jury with no
adverse effect. These questions are left to the discretion of the judge.
(b) TESTIMONY OF ACCUSED AS TO PRELIMINARY MATTER
(i) Defendants may challenge preliminary issues without exposing themselves to full crossexamination. A defendant may testify whether a confession is voluntary without being
questioned as to other issues. However, the rule does not protect the accused from crossexamination where, in testifying about a preliminary issue, he injects other issues into the
hearing. An accused may therefore subject himself to cross-examination as to issues
raised by his own testimony upon a preliminary matter. However, the rule does not
address whether testimony at the hearing or a preliminary matter, outside the presence of
the jury, may be used by the prosecutor at trial.
ii) CONDITIONAL RELEVANCE
(1) Whether evidence is relevant often depends on the existence of a condition. Was the gun that
was offered into evidence used to commit the crime, is the expert qualified to testify? The
admissibility of evidence may depend on the establishment of this foundation evidence. The
judge has the responsibility for making these determinations.
(a) RELATIONSHIP BETWEEN JUDGE AND JURY
(i) If preliminary questions of conditional relevancy were determined solely by the judge,
the functioning of the jury as a trier of fact would be greatly restricted and in some cases
virtually destroyed. A judge should make a preliminary finding as to whether the
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foundation evidence is sufficient to support the fulfillment of the condition. The judge is
not bound by rules of evidence, except rules of privilege when making this determination
(can consider hearsay, take judicial notice, etc.). If the judge finds that the preliminary
facts (foundational facts) indicate that there will be sufficient evidence to support a
fulfillment of the condition, the item is admitted. A judge may also defer his ruling on
conditionally relevant evidence until later in the proceeding. If after all the evidence is
in, the jury can reasonably conclude that the condition is fulfilled, the issue is for them.
Otherwise, the judge shall withdraw the matter from their consideration (partys
responsibility to move to strike).
b) CONDITIONAL RELEVANCE
FRE 104(b) Relevancy Conditioned On Fact
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the
condition.

i) Evidence is conditionally relevant when its probative value depends not only upon satisfying the
basic requirement of relevancy, but also upon the existence of a particular fact. For example,
evidence that a spoken statement constituted notice lacks probative value unless that statement was
heard by the party who is claimed to have received notice.
(1) NON-DISCRETIONARY
(a) A judge shall admit conditional evidence upon, or subject to, the introduction of evidence
that will support it. The judge may make a preliminary determination whether the foundation
evidence is (or will be) sufficient to support a finding of the fulfillment of the condition. If
the evidence is such that the jury could not reasonably conclude that the condition has been
fulfilled, the judge may withdraw the conditionally relevant evidence from their
consideration (sufficiency of the evidence test).
(i) FINE LINE BETWEEN DECISIONS OF FACT AND ADMISSIBILITY
1. There is a fine line between decisions of fact (for the jury) and of admissibility (for
the judge). When admissibility turns on a question of fact the jury will decide if it is
relevant, but the judge must decide whether there is sufficient evidence for the jury to
find it relevant.
3) UPON REQUEST THE COURT SHALL RESTRICT EVIDENCE TO THE PROPER SCOPE AND
INSTRUCT THE JURY ACCORDINGLY
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or
for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.
a) Evidence may be admitted for a limited purpose only. Evidence may be inadmissible for one purpose,
but entirely proper for another purpose. For example, evidence that may be unfairly prejudicial under
FRE 403 or, alternatively, hearsay that is intended not to prove the matter asserted, but instead to prove
the defendants state of mind. The evidence competent for one purpose cannot be excluded because it is
incompent for another purpose, unless the risk of confusion is so great as upset the balance of advantage
of receiving it. In these situations, the jury must be instructed accordingly. The opponent of the
evidence must request that the instruction be given. The proponent of the inadmissible evidence offered
for a limited purpose has the burden of identifying the limited purpose before the trial court rules on the
admissibility of such evidence.
i) RELATIONSHIP BETWEEN FRE 105 AND FRE 403
(1) A close relationship exists between FRE 105 and FRE 403. FRE 403 requires the exclusion of
relevant evidence when the 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 the time, or needless presentation of cumulative evidence. FRE 105 recognizes the
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practice of admitting evidence for a limited purpose and instructing the jury accordingly. The
effectiveness of this practice must be taken into consideration in reaching a decision as to
whether to exclude evidence for unfair prejudice under FRE 403. Evidence might be received
subject to a cautionary instruction to the jury not to consider the evidence against the defendant
who would be prejudiced by it.
(a) EFFECT OF LIMITING INSTRUCTION
(i) Although limiting instructions may not entirely prevent a jury from considering evidence,
either consciously or unconsciously, for a purpose other than the limited purpose for
which it may have been introduced, there is a presumption that a proper limiting
instruction will reduce the possibility of prejudice to an acceptable level.
ii) COUNSEL MAY NOT WANT A LIMITING INSTRUCTION
(1) A proper limiting instruction may not prevent the jury from considering the evidence, either
consciously or unconsciously, for a purpose other than that which is has been introduced.
However, there is a strong presumption that a proper limiting instruction will reduce the
possibility of prejudice to an acceptable level. However, counsel may wish to refrain from
requesting an instruction under FRE 105 in order to not emphasize the damaging evidence. The
burden of requesting a limiting instruction under FRE 105 falls on the party who desires that the
instruction be given. Moreover, the request must be explicit and cannot be impliedly based on
counsels comments at the time of admission. The failure of the court to give a limiting
instruction, upon request, may be a reversible error.
iii) EFFECT OF A FAILURE TO REQUEST A LIMITING INSTRUCTION
(1) The failure of a party to request a limiting instruction, either during trial or at the close of the
case (jury instructions), precludes review on appeal. Thus, a party may waive any objection to a
courts failure to give a limiting instruction. An appellate court may still reverse, due to the
failure to give a limiting instruction, when the error is a plain error. A court is generally not
required to give a limiting instruction sua sponte. However, where the evidence is extremely
prejudicial (prior criminal acts admitted for a limited purpose), an appellate court may find plain
error due to the courts failure to give a limiting instruction.
b) COMMON SITUATIONS WHERE LIMITING INSTRUCTION IS GIVEN
i) Examples of situations where a limiting instruction may be given include: (1) evidence that is
admissible in respect to only one count, charge, defense, claim, or party; (2) hearsay evidence
admitted for a limited purpose such as to show the state of mind of the declarant; (3) evidence of
remedial efforts offered to show control by defendant over the premises; (4) evidence of liability
insurance to show ownership or agency in a negligence action; (5) evidence used for impeachment
purposes, but not as substantive evidence; (6) the use of various types of demonstrative evidence; (7)
evidence of other crimes, wrongs, or other acts.
4) RULE OF COMPLETENESS
Rule 106. Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.
a) The rule is based on two considerations. The first is the misleading impression by taking matters out of
context. The second is the inadequacy of repair work when delayed to a point later in trial. For practical
reasons, the rule is limited to writings and recorded statements and does not apply to conversations.
JUDICIAL NOTICE OF ADJUDICATIVE FACTS
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
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(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the
necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as
to the propriety of taking judicial notice and the tenor (drift of something spoken or written) of the matter
noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as
conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is
not required to, accept as conclusive any fact judicially noticed.
1) JUDICIAL NOTICE OF ADJUDICATIVE FACTS
a) The scope of FRE 201 is limited to judicial notice of adjudicative facts and does not cover judicial
notice of non-adjudicative facts. For example, while FRE 201 does not preclude a judge from taking
judicial notice of legislative facts, legislative facts are not addressed in FRE 201. In order for a court to
take judicial notice of an adjudicative fact, the fact must not be one that is subject to reasonable dispute.
The fact must either be: (1) generally known within the territorial jurisdiction of the trial court; or, (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably
questioned.
i) DISCRETIONARY OR MANDATORY
(1) A court may take judicial notice at its own discretion or at the request of a party. A court shall
take judicial notice if requested by a party and supplied with the necessary information (for
example, providing a map). Under subdivision (c) the judge has a discretionary authority to take
judicial notice, regardless of whether he is so requested by a party. The taking of judicial notice
is mandatory, under subdivision (d), only when a party requests it and the necessary information
is supplied. Only facts that are not subject to reasonable dispute may be noticed. Thus, the
standard of proof required for judicial notice is relatively high.
(a) EFFECT ON TRIAL
(i) In a civil action, the court shall instruct the jury to accept as conclusive any fact that is
judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is
not required to accept as conclusive any fact judicially noticed. The defendant has a
right, in a criminal trial, to contest every fact that might tend to incriminate them. The
defense is not prevented from presenting evidence to rebut the noticed fact.
(2) PROCEDURE
(a) At any stage of the proceedings a court may take judicial notice of an adjudicative fact. A
party may also bring the matter it wants judicially noticed to the attention of the court. The
rule requires the granting of that opportunity upon request. No formal scheme of giving
notice is provided. An adversely affected party may learn in advance that judicial notice is in
contemplation, either by virtue of being served with a copy of a request by another party
under subdivision (d) that judicial notice be taken, or through an advance indication by the
judge. Or he may have no advance notice at all. The likelihood of the latter is enhanced by
the frequent failure to recognize judicial notice as such. And in the absence of advance
notice, a request made after the fact could not in fairness be considered untimely. The burden
of persuasion, when a court acts sua sponte, rests on the party whose factual proposition is
benefited by the judicial notice. When a party does not make a timely request to be heard on
the issue of the courts taking judicial notice, a party has waived its right to appeal the taking
of the judicial notice.
ii) GENERALLY KNOWN WITHIN THE TERRITORIAL JURISDICTION
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(1) If a matter relates to specialized knowledge, judicial notice is appropriate if the fact is well
known and generally accepted in specialized areas among the public who deal with such matters.
This is particularly true in the scientific field, if there is general agreement by scientists as to the
fact, but the general public has no common knowledge of that fact.
2) ADJUDICATIVE VS. LEGISLATIVE FACTS
a) The precise line between adjudicative and legislative facts is not always easily identified. The same fact
may fit into several categories; the propriety of taking judicial notice, and applicability of procedural
rules, will depend on the procedural setting at the time and upon how the court or jury uses the fact.
Adjudicative facts are specific to the case and are the who, what, where, when, and why of the case.
Legislative facts, in contrast, refer to broader conclusions regarding facts that do not change from case to
case. Legislative facts often concern matters such as geography, matters of science, and other well know
facts (daytime, nightime, etc.).
i) ADJUDICATIVE FACTS
(1) Adjudicative facts are those facts that are in issue in a particular case. They are the facts that
relate to the parties and to their activities, properties, and/or businesses. They may also be
historical facts pertaining to the incident that gave rise to the lawsuit. When a court finds facts
concerning the immediate parties (who did what, where, when, how, and with motive or intent)
the court is performing an adjudicative function and the facts are called adjudicative facts. The
adjudicative facts are those to which the law is applied in the process of adjudication. Thus,
judicial notice of adjudicative facts dispenses with the need to present other evidence or for the
factfinder to make findings as to those particular facts.
(a) EXAMPLES OF ADJUDICATIVE FACTS
(i) Economic events, such as the governmental intervention into the oil industry, as well as
the shortage of fuel oil in late 1973 following the Arab oil embargo, are adjudicative
facts.
(b) NOT ADJUDICATIVE FACTS
(i) The following have been recognized as nonadjudicative: (1) a drug's classification as a
controlled substance under a federal statute, since it does not relate to who did what,
where, when, how, and with what motive or intent, nor is it a fact which would
traditionally go to the jury; (2) a note and an order from the trial court in an earlier case in
the same circuit as the Court of Appeals; and, (3) state statutes or state regulations
promulgated under a state statute. These examples may, however, be legislative facts.
ii) LEGISLATIVE FACTS
(1) Legislative facts do not relate specifically to the activities or characteristics of the litigants, but
are general facts which help the tribunal decide questions of law, policy, and discretion. They can
be described as established truths, facts, or pronouncements that do not change from case to case
but apply universally. Legislative facts are those which have relevance to legal reasoning and the
lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court
or in the enactment of a legislative body. A court generally relies upon legislative facts when it
purports to develop a particular law or policy and thus considers material wholly unrelated to the
activities of the parties. In the great mass of cases decided by courts, the legislative element is
either absent or unimportant or interstitial, because in most cases the applicable law and policy
have been previously established. But whenever a tribunal engages in the creation of law or
policy, it may need to resort to legislative facts, whether or not those facts have been developed
on the record. However, a court is not necessarily precluded from resolving issues of legislative
fact through the adversarial process.
(a) EXAMPLES OF LEGISLATIVE FACTS
(i) Examples of legislative facts include: science; empirical studies; social and psychological
theory; social science research; history, including legislative history; scholarly works; and
current events.
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(b) NOT SUBJECT TO FRE 201

(i) Legislative facts are not subject to the procedural or burden of proof requirements of
201(b). Thus, there is no requirement under the FRE that the legislative fact be
indisputable (most courts require that the fact be obvious and incontrovertible), that
notice be sent, or that an opportunity to be heard has been provided. As such, legislative
facts can be recognized by the court on its own motion and at its own discretion
without hearing any formal findings. Also, there are no restrictions as to what
legislative facts a court can take notice of. When the fact is so obvious and
incontrovertible, a judge can take notice of those facts without utilizing evidentiary
procedures. However, when there exists any doubt, the court cannot take judicial notice
(for example, issues regarding the interpretation of a statute).
iii) NON-EVIDENCE FACTS
(1) Every case involves the use of hundreds or thousands of non-evidence facts. In an accident case,
everyone understands the use of car refers to an automobile, not a railroad car. Everyone also
understands what a car is. The judicial process cannot construct every case from scratch. Every
item cannot possibly be introduced into evidence and, as such, every item is not an appropriate
subject for judicial notice of facts.
b) JUDICIAL NOTICE NOT APPROPRIATE WHEN FACTS ARE IN DISPUTE
i) A court is not entitled to take judicial notice of facts which are disputed. Uncertainty or widespread
difference in belief with respect to a fact in question will operate to preclude judicial notice. Also, a
fact that is judicially noticeable does not always mean that the court should take judicial notice of the
inferences that may be drawn from that fact. In addition, a courts judicial notice of a fact may not
be conclusive proof that an individual was aware of that fact (judicial notice of statute, but does not
establish knowledge of that statute).
c) ADJUDICATIVE FACTS ARE NOT CONCLUSIVE IN A CRIMINAL CASE
i) In a civil case, the jury is instructed to accept adjudicative facts as conclusive. However, in a
criminal case, the jury is not required to accept an adjudicative fact as conclusive. As a result, some
courts have declined to classify facts as adjudicative that might otherwise be classified as
adjudicative. Admittedly, in a criminal case it would be inherently confusing to be told that a fact is
judicially noticed, but does not need to be accepted by the jury (can only infer from in a criminal
case).
(1) STATE V LAWRENCE
(a) Cannot take judicial notice of any fact which is an element of the crime charged.
d) APPELLATE COURT - CIRCUIT COURT
i) An appellate court can take notice of facts that the trial court could have taken judicial notice of.
Generally, an appellate court defers to the judgment of the fact-finders who actually see the record.
However, judicial notice involves facts that are known, with or without the record and, as such, there
is no need to defer to the fact-finder.
RELEVANCE CONDITIONS FOR ADMITTING EVIDENCE
1) RELEVANCE - CONDITIONS FOR ADMITTING EVIDENCE
FRE 401. Definition of Relevant Evidence
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.
a) Evidence that is not relevant cannot be admitted. There are no exceptions to this rule. Only evidence
that is relevant may be admitted. There are many exceptions to this rule. When considering whether
evidence is relevant one must determine whether that evidence posseses sufficent probative value to
12

justify receiving it into evidence. Evidence is relevant when it reveals a circumstance surrounding one
of the parties, is necessary to understand their conduct or motives, or if it allows the jury to draw a
reasonable inference as to a disputed fact of consequence.
2) FRE 401: TWO PRONG TEST OF RELEVANCE
a) Relevant evidence must make some fact more or less probable than it would be by itself and that fact
must be of consequence to the determination of the action. Relatively weak evidence is often considered
relevant under this standard (defendant is on the planet at time murder was committed). In order to
determine whether evidence is relevant, evidence must satisfy the two requirements under FRE 401: (1)
the evidence tends to make more or less probable the existence of a fact; and, (2) the fact is of
consequence to the determination of the action. The question of relevancy must be determined on a case
by case basis.
i) MORE OR LESS PROBABLE THE EXISTENCE OF A FACT
(1) Relevancy is not an inherent characteristic of evidence. It exists only as the relationship between
evidence and a matter properly provable in a case. Does the evidence tend to prove the matter
sought to be proven? Does the evidence tend to logically, naturally, and by reasonable inference
establish material facts such as identity, intent, or motive? Any evidence that tends to support the
defendant's theory of defense is generally admissible. If any tendancy is shown to make the
existence of any fact of consequence more probable or less probable, that evidence is relevant.
Thus, evidence which, when taken alone or in connection with other evidence, tends to prove or
disprove any fact, and that fact (or evidence) enables the jury to draw a logical and reasonable
inference with respect to a fact that is of consequence, then that evidence is relevant. Relevancy
is the logical relation between the proposed evidence and a fact to be established.
(a) A QUESTION OF PROBABILITY
(i) Whether evidence has probative value is not based on whether the evidence will or will
not make a fact of consequence more or less probable. Instead, whether evidence is
admissible depends on whether it has any tendancy (probability) to make a fact of
consequence more or less probable. Thus, a court should not consider the sufficiency of
the evidence when determining whether the evidence is admissible. Not all evidence can
be a home run and it is a question for the fact-finder, not the judge, to determine what
weight to give to the evidence. As a result, almost any evidence that supports a fact of
consequence will support a finding of relevance. It is only when the evidence does not
have any bearing on the event or when it should be excluded on some other ground, that
it will not be admitted.
1. BRICK IS NOT A WALL
a. Evidence is not required to make a material fact more probable than not, it must
instead increase the probability (by even a small amount) that a material fact is so.
A brick is not a wall. A piece of evidence need only be one brick in the wall (or a
part of that brick) which establishes a particular fact.
2. EVIDENCE TOO ATTENUATED TO BE LOGICALLY RELEVANT
a. Even if the evidence offered is so attenuated that it is not likely to be logically
relevant, the evidence is still relevant if it has any tendancy (probability) to make
a fact of consequence more probable or less probable. The FRE does not favor
excluding evidence for lack of relevancy.
ii) ANY FACT THAT IS OF CONSEQUENCE
(1) The fact is not required to be material. Evidence need not be dispositive to be relevant. Instead,
the fact may be an ultimate, intermediate, or evidentiary fact, so long as it is of consequence in
the determination of the action. The rules do not require that the fact be in dispute to be
admissible. Background evidence might not involve disputed matters, but it is often admitted as
an aid to understanding. Charts, photographs, views of the crime scene, weapons, or other
evidence all fall into this category. A rule that limited admissibility only to a controversial point
13

would exclude helpful evidence or raise endless questions over its admissions. Instead, relevant
evidence should only be excluded as provided for under Rule 403 (Exclusion of Relevant
Evidence on Grounds of Prejudice, Confusion, or Waste of Time).
(a) CREDIBILITY IS ALWAYS RELEVANT
(i) Credibility is always an issue of consequence. Testimony as to bias on the part of a
witness is relevant under FRE 401, since it would have a tendency to make the facts to
which the witness testified less probable in the eyes of the jury than it would be without
such testimony. Any evidence revealing a relationship between the aprties is relevant
because it may tend to make their relative positions less credible. In general, matters
which show a prior background of acquaintanceship, or the nature and existence of the
relationship, between the persons charged with an office and persons who are witnesses
are relevant matters.
iii) ADMISSIBILITY IS DIFFERENT THAN FROM WEIGHT
(1) Relevance is a question of admissibility, not of the weight of the evidence. A judge admits the
evidence if that evidence is sufficient to support the proposition for which it is offered.
However, in doing so, the judge only considers whether a reasonable juror could differ as to the
meaning of the evidence (was the evidence sufficient to support the conclusion reached by the
fact-finder). While the ultimate choice, as to the weight of the evidence, should always remain
with the jury, the judge has broad discretion in determining whether evidence is relevant. Thus,
it is only when an abuse of discretion is found that judges determination as to relevance will be
disturbed.
(a) OLD CHIEF V. UNITED STATES
(i) Facts: Defendant wanted to stipulate as to a prior felony charge. One of the crimes the
defendant was charged was that of possession of a gun by a felon. The prosecutor did not
want to accept the stipulation and instead wanted to admit the prior charge into evidence.
The prior felony charge was one that was similar to the current charge.
1. Holdings: (1) An attorney is not required to stipulate to facts and is free to conduct
their case as they see fit. The defendant should not be able to avoid the probative
weight of his actions. In addition, even uncontested facts provide valuable
background information. (2) However, where the evidence is outweighed by
substantial unfair prejudice, such as the jury convicting the defendant for the prior
crime - not the current crime, it is proper for the court to exclude the evidence when
the stipulation effectively makes it unnecessary to prevent the evidence and the
evidence itself offers little background information as to the current crime in question.
(3) Evidence of prior criminal conduct is relevant. It makes it more probable that the
person committed the crime in question.
(b) KNAPP v. STATE
(i) Facts: Defendant asserted a defense of self-defense. The defendant testified that he
heard that the police officer, the victim, had beaten and killed an old man. The
prosecution introduced medical evidence which indicated that the man died of alcoholism
and natural causes.
1. Holding: The court found the evidence relevant as it tended to discredit the
appellant. Either the appellant or the person who initially stated the rumor was not
speaking the truth. Thus, the claim was rendered less probable.
(c) FICTIONAL EXPLODING PLANE
(i) After 9/11 a plane taking off from JFK exploded. An official stated that there was no
evidence that the explosion was a terrorist act. However, proximity to 9/11 and similarity
of events can be considered evidence (they make the hypothesis more probable). Thus,
the statement is really a statement that there is no persuasive evidence of a terrorist attack
(a statement about quality, not existence of).
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iv) INCOMPLETE OR INCONCLUSIVE EVIDENCE

(1) Evidence that is incomplete or that will not independently establish a fact at issue does not make
the evidence inadmissible. Evidence is relevant and admissible if it tends to prove an element of
an ultimate fact, even if it does not establish all elements of that ultimate fact necessary to be
proved. Evidence is also relevant and admissible if it corroborates evidence of an element of an
ultimate fact. Relevancy does not depend upon the conclusiveness of the evidence offered, but
upon its legitimate tendency to establish a controverted fact. Evidence that tends to prove a fact,
regardless of how slight such tendancy is, should be admitted.
v) NEGATIVE EVIDENCE
(1) Relevant evidence is evidence tending to establish negative facts as well as postive ones.
Negative evidence may be admissible where the attending circumstances are such as to show that
the negative evidence has some probative force, provided that the competency and knowledge of
the witness is established. The testimony of a witness is not confined to what he saw or heard,
but may also include what he did not see and hear. For example, a neighbor can testify that he
never saw the person on the premises before, that he did not see a gun, or that he did not see the
defendant at the scene of the crime. Also, an expert witness can testify that no blood or other
matter was found on the defendant or the possible murder weapon. Negative testimony is also
admissible when a qualified person, who has examined certain records or documents, testifies
that he did not find any reference to or entry concerning a particular item or transaction in the
records. For example, a government investigator contending that the defendant used fictitious
names of purchasers on his records may testify that they could locate no evidence that those
purchasers existed. However, if the absence of positive evidence does not logically suggest the
negative, evidence of a negative character is not admissible.
(a) NEGATIVE EVIDENCE THAT IS NOT ADMISSIBLE
(i) An absence of positive evidence that does not logically suggest the negative is not
admissible. Evidence that a person did not obtain poison from a specific supplier is not
admissible unless the supplier in question is the only supplier of that poison. Also, the
absence of complaints by third persons as to the defendants conduct is not admissible as
evidence that the conduct was lawful, nor is the fact that defendant had not previously
committed the same offense. Negative evidence is generally weak and is not sufficient to
overcome positive testimony that the alleged fact did exist. Negative evidence is
admissible to establish a good reputation and may be admissible to show an absence of
similar accidents or injuries (preexisting injury).
vi) TRIAL COURT HAS WIDE DISCRETION
(1) A court has wide discretion concerning the admission of evidence and unless an abuse of
discretion can be shown, its rulings will not be disturbed. However, the judge has no obligation
to prohibit inadmissible evidence from being considered when the opposing party fails to object.
Generally, all relevant evidence is admissible.
b) RELEVANT EVIDENCE IS GENERALLY ADMISSIBLE
FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
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.
i) All relevant evidence is admissible, with certain exceptions. Evidence that is not relevant is not
admissible. The exclusion of relevant evidence may be called for by these rules, by rules of
procedure, by Act of Congress, or by constitutional considerations. Common exceptions included
within the FRE include: (1) privileges; (2) requirements relating to opinions and expert testimony;
(3) hearsay not falling within an exception; (4) handling of authentication and indentification; (5) the
manner of proving the contents of writings and recordings; and (6) exclusion of relevant evidence on
grounds of prejudice, confusion, or waste of time.
15

(1) USE OF CIRCUMSTANTIAL EVIDENCE

(a) Direct evidence generally involves witnesses testifying as to their own knowledge as to the
main facts to be proved. In contrast, circumstantial evidence is proof that does not actually
assert or represent the proposition in question, but instead asserts or describes something
else, from which the fact-finder may either: (1) reasonably infer the truth of the proposition;
or, (2) reasonably infer an increase in the probability that the proposition was in fact true. In
either of these situations, the circumstantial evidence is relevant under FRE 401. Often
circumstantial evidence may be the only evidence available (intent, state of mind, fraud,
knowledge). Circumstantial evidence is viewed as probative as direct evidence and may be
strong enough to overcome the effect of direct testimony to the contrary. To render
circumstantial evidence admissible, it is necessary only that it tend to prove the issue or that
it constitute a link in the chain of evidence; it must lead to a reasonable inference and not a
mere suspicion of the existence of the fact sought to be proved. No evidence should be
excluded of any fact or circumstance connected with the principal transaction in dispute from
which an inference as to the truth of a disputed fact can reasonably be made.
(i) CIRCUMSTANTIAL EVIDENCE IN CIVIL CASES
1. In absence of law or contractual provision to the contrary, circumstantial evidence is
competent to prove an fact at issue in a civil case. In many situations
(reasonableness, good faith, fraud, etc.) all surrounding circumstances may become
material facts in a case. In tort actions, the jury may often draw inferences from the
relevant conditions and circumstances existing at the time the tort occurred. In a
breach of contract case, circumstantial evidence is often used to: (1) to interpret an
oral contract; or (2) to interpret an ambigous contract. Generally, there is no
requirement that there be direct evidence to establish a fact at issue.
(ii) CIRCUMSTANTIAL EVIDENCE IN CRIMINAL CASES
1. The use of circumstantial evidence in a criminal case is well established. In fact, the
vast majority of criminal cases have very little direct evidence. In general, whatever
may be established by direct evidence may also be established by circumstantial
evidence. Circumstantial evidence is competent to establish many varying facts in
criminal cases. Circumstantial evidence may alone be available in proving elements
of crime, such as malice, intent, or motive, which exist only in the mind of the
perpetrator of the deed.
(b) EXCEPTIONS TO RULE OF ADMISSIBILITY: CONSTITUTIONAL AND
STATUTORY PROVISIONS
(i) Relevant evidence that is inadmissible pursuant to the Constitution includes evidence
obtained illegally, evidence that violates the 4th amendment, and incriminating statements
in violation of the right to counsel. Other evidence might be relevant but inadmissible
pursuant to an act of Congress. Regulations may also bar the admission of evidence.
c) EXCLUSION BASED ON PREJUDICE, CONFUSION, OR WASTE OF TIME
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
i) Rule 403 provides that evidence, although relevant, 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. These types of situations/circumstances entail risks which range from decisions made on
an emotional basis to simply wasting time. The rule permits the trial judge to perserve the fairness
of the proceeding by excluding evidence despite its relevance. While the rules generally favor
admissibility (see FRE 402), it is important to note that the judge has a great deal of discretion under
16

this rule (abuse of discretion standard). Thus, as a practical matter the court may not be required to
hear every matter that may be in any degree logically relevant to the issue, but may require that
matters received as evidence have a higher degree of probative force.
(1) USE OF RULE 403 GENERALLY
(a) FRE 403 may justify the exclusion of evidence when the rebuttal of that evidence would
require undue consumption of time, cost, and is of a matter of scant or cumulative probative
force. However, exclusion of relevant evidence under FRE 403 is used sparingly by the
court. The grounds stated in FRE 403 are the sole grounds for exclusion of relevant evidence
which is otherwise admissible (catchall rule if no other exceptions apply). Surprise is not a
ground for exclusion under FRE 403; yet, surprise can be used to exclude evidence if the
surprise causes unfair prejudice. The more appropriate remedy may be a continuance, rather
than the exclusion of evidence, when there is an issue of surprise.
(i) FRE 403 MUST BE CONSIDERED IN RELATION TO OTHER RULES
1. One must consider FRE 403 in relation to other rules. FRE 403 is a catch-all rule.
The judge must determine whether hearsay, character evidence under FRE 404, or
any other evidences probative value is outweighed by the dangers identified in this
rule. Thus, evidence of other crimes, which may prove identity, scheme, or motive,
although admissible under FRE 404, may not be admissible if its probative value is
outweighed by its potential prejudice.
(2) ASSESSING PROBATIVE VALUE OF EVIDENCE
(a) Probative value is not defined by FRE 403; however, courts have considered various factors
when considering the probative value of evidence. These factors include: (1) whether the
same facts could be proved by other evidence (where ample evidence is available to establish
a particular element the probative value is greatly reduced); (2) length of time between
crime charged and other crimes of the accused offered in evidence to support a specific
purpose (remoteness depreciates the probative value); (3) reliability of the evidence (less
reliable evidence has less probative value); (4) length of the chain of inferences necessary to
connect the evidence to the ultimate fact to be proved (on planet at time of murder, relevant
but waste of time closer relationship to offense = more likely balance should be struck in
favor of admissibility); and, (5) close parallel between offense charged and acts shown
(particularly where similar acts are used to prove willfulness or intent).
(i) DEGREE OF RELATIONSHIP
1. The probative value of a piece of evidence involves a measurement of the degree to
which the evidence persuades the trier of fact that the particular fact exists and the
distance of the particular fact from the ultimate issues of the case. A piece of
evidence is generally not offered solely for its immediate inference but is offered as a
sequence or chain of inferential steps. The probative value of evidence often will
depend on two distinct factors: (1) its probative value with respect to an immediate
fact; and, (2) the logical distance between the immediate fact and the ultimate issues
of the case.
(ii) BALANCING PROBATIVE VALUE AGAINST PARTICULAR DANGERS IN
ADMITTING EVIDENCE
1. In weighing the delicate balance between the probative value of evidence and its
capacity to inflame passions within the jury or to confuse the issues, the court should
seek to maximize its legitimate bearing upon the issues while minimizing its abusive
overtones. This task is committed to the trial judges discretion. The balancing
process involves a sensitive analysis of the need for evidence as proof of a factual
issue, of the prejudice which may result from its admission, and of the relevant public
policies. The balance will vary according to the purpose for which an item of
evidence is to be admitted. However, since FRE 403 requires that the danger of
17

unfair prejudice must substantially outweigh the probative value of the evidence, the
rule favors admissibility of relevant evidence (tilts the balance in close cases). A
slight danger of unfair prejudice is to be ignored.
a. EVENHANDED APPLICATION
i. The discretion under FRE 403 must be applied evenhandedly between the
parties. The court cannot exclude the otherwise admissible opinion of a
partys expert on a critical issue, while allowing the opinion of the opposing
sides expert on the same issue.
(3) MUST BE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR
PREJUDICE
(a) Relevant evidence may be excluded, at the discretion of the court, if its probative value is
substantially outweighed by the danger of unfair prejudice. However, relevant evidence is
often inherently prejudicial. It is only that evidence that is unfairly prejudicial that is
excluded. Unfair prejudice is not the same as being adverse to the opposing party. In
addition, there is no requirement that the government, in a criminal prosecution, must choose
the least prejudicial method of proving its case. Thus, the government may present images of
a shocking or gruesome character. However, evidence which will only serve to prejudice the
jury is properly excluded. Absent a counterbalancing probative value, evidence having a
strong emotional or inflammatory impact may pose a risk of unfair prejudice because it may
distract the jury from the issues in the case (punish the bad person while rewarding the good
regardless of what actually happened).
(i) BURDEN OF PROOF
1. The party objecting to the evidence has the burden of proving that it is more
prejudicial than it is probative. As FRE 403 requires that the prejudicial effect
substantially outweigh its probative value, the party wishing to exclude evidence
under this rule has an uphill battle. When evidence is admitted which may be
prejudicial, over a partys objections, that party should consider requesting that the
court issue a limiting instruction under FRE 105 in order to minimize the prejudice
that may result.
(b) COMMON SITUATIONS OF UNFAIR PREJUDICE
(i) Common situations where a court may determine that evidence is unfairly prejudicial
include: (1) when evidence seeks to affect irrationally the jurors perception of a party,
either favorably or unfavorably, because of some intrinsic characteristic of the individual
litigant; (2) evidence damaging the position of a party becauase the partys association
with certain groups (showing the party is affiliated with an unpopular political group);
and, (3) evidence which will incite the jurys range or desire for revenge against the
defendant (most often by use of inflamatory photographs). In the case of inflamatory
photographs, courts will often allow photographs that show pertainent aspects of the
cause of death, location of the body, and position of the body. However, they may
exclude some as cumulative or unfairly prejudicial (dont need several photographs
showing the same thing).
1. STATE V. CHAPPEL
a. Facts: Use of gruesome photographs during murder trial
i. Holding: Use of photographs is relevant to show that there was a crime and
the cause of death (one can argue that doctors, detectives, and computer
recreations can all serve the same purpose thus making photographs
cumulative and unfairly prejudicial). Not all photographs admitted as some
were cumulative.
2. OLD CHIEF
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a. Facts: Defendant charged with being a convicted felon in possession of a firearm.

Defendant wanted to stipulate as to his prior conviction to avoid disclosure of the
details and to avoid unfair prejudice.
i. Holding: A prosecutor is not required to accept defendants stipulation as to
the evidence. Evidence does not need to be disputed to be relevant and the
parties should have flexibility in choosing the method of conveying the
information that best presents their side of the story. However, the evidence in
question was not a sufficient element of the crime being tried and the
exclusion of the evidence did not leave any gaps in the background of the
case. Thus, the evidence is excluded based on unfair prejudice. Alternatively,
one can argue that the Old Chief case establishes that one is entitled to appeal
to the irrational reasoning of the jury, except when the evidence is entirely
secondary to the issues needed to be proved in the case.
3. People v. Collins:
a. Testimony from an export witness as to the probability that defendant committed
the crime is inadmissible. The testimony is both inaccurate and misleading.
Evidence of probability of guilt is not admissible by prosecution in a criminal
case.
(4) OTHER CRIMES OR WRONGS; THREATS OF VIOLENCE
(a) Evidence of other crimes or wrongs, even when logically relevant and not precluded under
FRE 404, may still be excluded under 403 where the probative value of the evidence is
substantially outweighed by the risk of undue prejudice. Rebuttal testimony introduced to
prove bias which also shows a criminal enterprise of the witness is especially prejudicial, but
the benefit can outweigh the prejudice where such evidence does not place the defendant in
any worse light than what is already before the jury, and an appropriate cautionary instruction
is given. When character evidence is admitted, an instruction should be given to the jury
limiting its application. Likewise, evidence of threats of death or violence to informants or
witnesses is governed under the FRE 403 balancing test. While the potential prejudice from
the admission of these threats is great, the evidence should be allowed unless its prejudicial
effect substantially outweighs its probative value.
(i) DEFENDANT'S FLIGHT FOLLOWING CHARGED OFFENSE
1. Evidence of flight soon after the offense took place is admissible where the trial court
determines that the probative value of such evidence outweighs its prejudice, and
where proper limiting instructions are given. Where the attempted flight is part of the
events leading to arrest, and the evidence reveals facts which strengthen proof of
identity, probative value may outweigh potential prejudice. However, admission of
defendants flight in regard to a bribery charge was irrelevant when the defendant
stipulated he had committed bribery and the only issue was his entrapment defense.
(5) DANGER OF CONFUSION OF ISSUES
(a) Relevant evidence may be excluded where its potential for confusion outweighs its probative
value. Courts are inclined to hold that relevant evidence is inadmissible on grounds of
confusion of the issues when evidence with a great potential to confuse is of questionable
relevance, limited probative value, when the facts can be presented in a simpler manner, or
when the admission of the evidence would lead to the litigation of collateral issues.
However, in a personal injury action arising from asbestos exposure, the defendant was
improperly precluded from presenting evidence of exposure by the plaintiff to other sources
of asbestos. This evidence went to the fundamental issue of case and its admission would
cause only slight confusion, if any. Expert testimony may also be excluded if it leads to
confusion of issues or misleads the jury. Confusion of the issues is often related to evidence
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that is offered for a limited purpose. While the evidence might not be prejudicial, and may
not be inflammatory, it might still encourage an incorrect result.
(i) DANGER OF MISLEADING THE JURY
1. FRE 403 permits the exclusion of relevant evidence if its probative value is
substantially outweighed by the danger of misleading the jury. The rule applies to
testimonial, expert, and documentary evidence. Courts frequently fail to distinguish
between the danger of confusion and the danger of misleading the jury, and will often
exclude evidence on the basis of both. However, misleading is not synonymous with
confusing the issues. Evidence that confuses the issues is likely to mislead; however,
misleading evidence might not confuse the issues (the guy with one leg did it).
(6) DELAY OR WASTE OF TIME
(a) Relevant evidence may be excluded where its probative value is substantially outweighed by
considerations of undue delay or waste of time. The danger of waste of time increases when
the evidences is of low probative value and is confusing to the jury. However, evidence
should not be excluded on this basis when the proffered evidence is of central importance to
the case. Some authority states that FRE 403 can best be achieved by setting a limit on the
number of hours or days to hear a trial and allowing the respective counsel the responsibility
for selecting the evidence to be presented in the time available. However, there is contrary
authority that a judge may not set strict time limits for a trial.
(i) REBUTTAL OF EVIDENCE WASTE OF TIME
1. FRE 403 may justify the exclusion of evidence the necessary rebuttal of which would
require undue consumption of time and excessive cost, and of matters of scant or
cumulative probative force dragged in by the heels for the sake of prejudicial effect.
However, the exclusion of relevant evidence under FRE 403 is an extraordinary
remedy. Instead, conditions that remove the prejudicial or time-wasting aspects
should be considered.
(7) CUMULATIVE EVIDENCE
(a) Relevant evidence may be excluded if its merely surplusage or cumulative. A court has
considerable latitude in exercising its discretion to exclude relevant but cumulative evidence,
although it would be error to exclude a witnesss relevant noncumulative testimony (several
witnesses stating same thing may be cumulative). However, cumulative evidence may still
be admitted if it is more probative than prejudicial. For example, photographs are frequently
held to be admissible even though they are cumulative of other evidence already presented in
the case. In a criminal case, exclusion of impeachment testimony is only proper where the
exclusion is weighed against the defendants sixth amendment right to have compulsory
process for obtaining witnesses in the defendants favor (probably a higher bar).
(i) Where a party seeks to present extensive evidence, such as a lengthy tape recording, a
denial of a request to present such evidence in its entirety is no abuse of discretion, where
the adverse party is not precluded from presenting pertinent portions, and the party makes
no showing that the more selective and less time-consuming approach would be
inadequate for his purposes, particularly where witnesses are permitted to testify freely
and at length about what is contained in such evidence.
(8) DOCUMENTARY EVIDENCE
(a) An intangible consideration inherent in the admission of evidence under FRE 403 is whether
evidence that is disputed will be weighed more heavily by the jury because of the emphasis
placed on it by the limiting instructions and arguments of counsel. This consideration is
often heightened with documentary evidence. The jury may have a tendency to assume or
infer too much because it can be seen and read. A danger of unfair prejudice is even more
pronounced where the evidence is suggestive of other wrongs (admission of transcript of
police officers disciplinary transcript in suit charging violation of constitutional rights).
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Documentary evidence must be balanced against the risk of unfair prejudice and, in fact, the
nature of the evidence may need to be considered when determining whether it is admissible.
One must always consider the information contained in the documentary evidence with the
issues in the present case (probative value). Under some circumstances, a court may admit
only an edited portion of a proffered document in order to avoid unfair prejudice.
(i) LIMITING INSTUCTIONS OR EXCLUSION OF EVIDENCE
1. It is a matter of judgment whether to employ cautionary instructions or to exclude
evidence. Courts can often infer that juries are able to follow instructions regarding
noninflammatory subjects, but the disadvantage to a proffering party in having the
evidence strickent and prejudice to the adverse party in having it admitted must be
weighed. If the instructions will tip the scales in favor of understanding by the jury,
then the court is justified in relying on the instructions.
(9) REMOTE NATURE OF EVIDENCE
(a) Evidence may appear relevant but may relate to a time so remote from the date of an
occurrence or the commission of the crime that the evidence has little or no probative value.
Evidence must relate to, and be connected with, the transaction at issue. However, the fact
that evidence is remote in time or limited in probative value does not automatically preclude
its admissibility. Its admissibility depends to a large extent on the nature and circumstances
of the case. Under the Federal Rules, matters tending to reduce or enhance the probative
value affect only the weight of such evidence and not its admissibility. In effect, the
objection that evidence is too remote goes to the credibility of the evidence rather than to its
admissibility, unless the remoteness is so great that the proferred evidence has no probative
value at all. However, a federal court may be willing to exclude remote evidence when it has
a potential to confuse or mislead the jury under FRE 403. Ultimately, the question of
whether evidence is too remote to be relevant, or is excluded under FRE 403, is left to the
discretion of the trial judge.
(10)
EFFECT OF STIPULATION
(a) An offer to stipulate certain evidence is a factor to consider in carrying out the FRE 403
balancing test, since an important consideration relating to the probative value is the
prosecutorial need for the evidence. A trial court should seriously consider offers to stipulate
in deciding whether to exclude or admit evidence under FRE 403. However, a piece of
evidence can have probative value even in the event of an offer to stipulate to the issue on
which the evidence is offered. A stipulation may lessen the governments need for extensive
evidence on the issue in question, but the jury would still be unable governments theory of
the case without the evidence (background evidence), the decision to admit the evidence is
not improper. Determining the weight to be given to an offer to stipulate is committed to the
discretion of the court.
(11)
DEMONSTRATIVE EVIDENCE
(a) Courts should refuse the admission of demonstrative evidence when it is likely to confuse the
jury, or is more prejudicial than probative. On the other hand, exhibits used for
demonstration purposes are admissible if they are more probative than prejudicial. For
example, if relevant, the inflammatory nature of photographs does not necessarily outweigh
the probative value. Courts may consider whether demonstrative evidencce is merely
cumulative and illustrative of issues already introduced already introduced and therefore not
prejudicial, or whether it is unique evidence of a factual assertion and potentially prejudicial,
in determining whether evidence is more prejudicial than probative. Where evidence of a
defendants guilt is less than overwhelming, admission of a photograph which implies prior
criminal conduct might be an abuse of discretion. Similarly, a trial court should exercise
caution when ruling upon the admissibility of a filmed reenactment in a criminal case since a
filmed reenactment of a particular event has the potential to cause great prejudice. Often
21

courtroom experiments and recreations may be disallowed under FRE 403 if the conditions
of the proposed experiment differ substantially from the actual event which the experiment is
supposed to duplicate. Similarly, a trial court should exercise caution when ruling upon the
admissibility of a filmed reenactment in a criminal case since a filmed reenactment of a
particular event has the potential to cause great prejudice. However, if the demonstrative
evidence is more probative than prejudicial, the evidence is admissible.
(12)
IMPEACHMENT OF WITNESSES
(a) The extent of impeachment of witnesses is committed to the discretion of the trial court. The
court must determine whether the probative value of impeachment evidence is outweighed by
the danger of confusion, prejudice, or waste of time under FRE 403.
ii) REVIEW OF DISCRETIONARY RULINGS
(1) An appeal from a ruling including or excluding evidence under FRE 403 is reviewed under an
abuse of discretion standard. Thus, the appellate court looks at the evidence in the light most
favorable to the judges ruling. An appellate court defers to the trial courts judgment, unless the
trial court has clearly abused its broad discretion. For example, by admitting evidence which is
so prejudicial as to clearly outweigh its probative value. The assumption that the court acted
within its discretion is so strong that it is often said that the appellant must show the judge acted
arbitrarily or irrationally. Where a judge carefully considers arguments of counsel, weighs the
competing interests before admitting interest, and delays its admission until virtually all other
evidence is introduced, the judges decision will generally be upheld. In addition, where counsel
fails to make an objection or fails to request an on-the-record balancing, and the record indicates
that the evidence was properly admissible, counsel may have waived the right to appeal the FRE
403 ruling.
CHARACTER EVIDENCE RULE
1) BE CAREFUL WITH CHARACTER EVIDENCE ITS JUST LIKE HEARSAY ANY OTHER
USE OTHER THAN THAT OF CHARACTER IS ADMISSIBLE
a) Both hearsay and character evidence depend entirely on what it is offered to prove. Examples of
evidence of character not used to prove character: (1) notice; (2) fitness; (3) truth of the statement; (4)
damages; (5) predisposition; (6) reason to fear.
2) NORMALLY CANT IMPEACH ON JUST ARREST
a) Be careful regarding arrests and convictions. The rules are inconsistent regarding this. In some
situations, you can impeach regarding a prior arrest.
1) CHARACTER EVIDENCE GENERALLY PROHIBITED
a) Once it is determined that character evidence is admissible, reference must then be made to FRE 405, in
order to determine the appropriate method of proof. When the character is in issue, this evidence is
generally admissible and no reference to FRE 404 need be made (the allowable methods of proof are
still specified under FRE 405). If the character is that of a witness FRE 608 and FRE 610 determine the
method of proof.
i) DEFINITION OF CHARACTER EVIDENCE
(1) Character evidence is evidence that demonstrates a certain character or characteristic of the
accused. For example, testimony that someone had never been seen drinking would be evidence
of the characteristic of temperance. Character evidence can be used to suggest an inference that
the person acted on the occasion in question consistent with his character. Character evidence is
not excluded because it is not logically relevant, but because it is said to weigh too much with
the jury.
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b) TWO WAYS QUESTIONS REGARDING CHARACTER EVIDENCE ARISE

i) Character evidence arises in two fundamentally different ways: (1) character may be an element of
the crime, claim, or defense (when the character is in issue); and, (2) character evidence is
susceptible of being used for the purpose of suggesting an inference that the person acted on the
occasion in conformity with his character.
(1) CHARACTER IN ISSUE
(a) When a crime, claim, or defense requires proof of the pertainent character in issue, no
reference to FRE 404 need be made. In fact, FRE 404 has no provision regarding this type of
evidence as this evidence is said to be the only relevant evidence available to prove the
crime, claim, or defense at issue (the character is highly relevant and cannot be excluded).
Thus, the only question in this situation relates to the allowable methods of proof. In
addition, when the character is in issue, it typically is not being asserted to prove that the
defendant acted in conformity with his character. Instead, you are asserting that it is his
character. Examples where a character may be at issue include a statute specifying chastity
as an element of the crime of seduction, truth in a defamation action, and the competency of
a driver in a negligent entrustment action. FRE 405 determins the acceptable methods of
proof when the character is at issue.
(2) USED TO INFER THAT PERSON ACTED IN CONFORMITY WITH HIS
CHARACTER
(a) Use of character evidence is circumstantial evidence that a person acted in conformity with
his character. In fact, it is more probative than not that a criminal committed a crime rather
than an honest citizen. Yet, this evidence is prejudicial and may lead to a conviction based on
a desire to punish a bad person, not based on whether that person actually committed the
crime. This type of evidence is most often admitted to show that the accused or the victim
had a violent disposition when self-defense is asserted. A court should also consider any
evidence admitted under FRE 404 under the FRE 403 balancing test.
(i) GENERALLY REJECTED
1. The use of character evidence is rejected (subject to so many exceptions it swallows
the rule) but with important exceptions: (1) an accused may introduce pertinent
evidence of good character (often misleadingly described as putting his character in
issue), in which event the prosecution may rebut with evidence of bad character; (2)
an accused may introduce pertinent evidence of the character of the victim, as in
support of a claim of self-defense to a charge of homicide or consent in a case of rape,
and the prosecution may introduce similar evidence in rebuttal of the character
evidence, or, in a homicide case, to rebut a claim that deceased was the first
aggressor; and, (3) the character of a witness may be addressed as an issue bearing on
his credibility.
a. CHARACTER OF WITNESS
i. The character of a witness is generally limited to showing the trait of
truthfulness or untruthfulness.
c) USE OF CHARACTER EVIDENCE IN CIVIL CASES
i) The use of character evidence in civil cases is of slight probative value and may be very prejudicial.
This type of evidence tends to distract the fact finder from the main question of what actually
happened on the particular occasion. It subtly permits the fact finder to reward the good person and
punish the bad despite what the evidence may show.
(1) EXAMPLE
(a) A Plaintiff cannot show that Defendant has the general character trait of carelessness, or even
that defendant is generally a careless driver, to suggest that defendant acted carelessly and, as
such, caused the accident.
(2) USE OF CHARACTER EVIDENCE IN CIVIL CASES ARISING OUT OF CRIME
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(a) Some courts recognize a limited exception regarding the use of character evidence in civil
trials. When the civil case has elements of crime, or is directly related to the crime, the court
may allow use of character evidence (wrongful death arising out of a murder). In this
situation, the civil trial is attempting to prove the crime did, in fact, occur.
2) RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT;
EXCEPTIONS; OTHER CRIMES
(a) Character evidence generally.--Evidence of a person's character or a trait of character is not admissible for
the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused.--In a criminal case, evidence of a pertinent trait of character offered by an accused,
or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime
is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the
accused offered by the prosecution;
(2) Character of alleged victim.--In a criminal case, and subject to the limitations imposed by Rule 412,
evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by
the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness.--Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
a) CHARACTER OF ACCUSED
i) In criminal cases evidence of a pertinent trait of character may be offered by the accused. However,
if the accused decides to present evidence as to his trait of character, he opens the door to the
admission of evidence by the prosecution to rebut same. In addition, if the accused proffers
evidence of a pertinent trait of character of the victim, the prosecution may present evidence of that
same trait of character of the accused.
(1) EVIDENCE OF DEFENDANTS GOOD CHARACTER IS ALLOWED
(a) A criminal defendant may always proffer evidence of a good general character. In addition,
evidence that a criminal defendant possesses a narrow favorable trait is allowed, but only if it
is relevant to the crime charged. For example, if the defendant is charged with murder, he
may show that he has a general character of being law abiding. In addition, he can show the
narrower trait of being a pacifist. However, he cannot admit evidence of the narrow trait of
being truthful since it is not relevant to a murder charge. Once a defendant proffers evidence
of a trait of character, the defendant opens the door to rebuttal evidence by the prosecution.
(2) PROSECUTIONS EVIDENCE OF CRIMINAL DEFENDANTS BAD CHARACTER
(a) Once a defendant proffers evidence as to his trait of character, the prosecution may rebut
same. In addition, if the criminal defendant proffers evidence of the victims character under
FRE 404(a)(2), the prosecution is then automatically entitled to put on evidence that the
defendant has that same bad character trait pursuant to FRE 404(a)(1). A prosecutor is not
allowed to introduce negative character evidence unless the accused introduces evidence of
good character.
(i) CHARACTER OF VICTIM
1. FRE 404(a)(2) allows not only proof of a victims violent character when asserting a
claim of self-defense, it also allows any evidence of the victims character when the
pertinent trait of character of the victim is relevant. Thus, 404(a)(2) allows a wide
range of character evidence of the victim, subject to some significant restrictions.
(ii) USE OF CHARACTER EVIDENCE TO PROVE SELF-DEFENSE
1. A defendant may assert a claim of self-defense and in doing so submit evidence of the
victims violent character. The prosecution is then entitled to show that the defendant
had a violent disposition or that the victim had a peaceable disposition. If the
defendant only offers evidence of self-defense, without directly calling the victims
character into question, the prosecutor will be strictly limited to rebutting with
evidence of the victims character trait of peacefulness (cant show that the accused is
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violent unless it is at issue). In addition, the ability of the prosecutor to admit

character evidence under FRE 404 only applies when the evidence is brought in under
this rule, and not for some other purpose.
2. DEFENDANT CANNOT REMAIN SHIELDED OPENS DOOR
a. When an accused attacks the character of a victim under 404(a)(2), the door is
opened to an attack on the same character trait of the accused. An accused cannot
attack the alleged victims character and remain shielded from disclosure of
equally relevant evidence concerning the same character trait of the accused.
Thus, if the defendant offers evidence of the victims violent disposition, the
government may also offer evidence of the defendants violent disposition.
b. FEAR INSTEAD OF VIOLENCE
i. The defendant can present evidence of fear, or that he heard victim had a
reputation of drawing a knife without warning to show: (1) the victims
violent character (subject to FRE 404(a)(2)); or (2) the effect on defendants
mind (not being used to show character, but to show defendants state of
mind). In this situation, the prosecutor will be prevented from submitting
evidence as to the defendants violent character.
c. UNITED STATES V. BURKS
i. The rule does not permit proof of the accused's character if the accused uses
character evidence for a purpose other than to prove the alleged victim's
propensity to act in a certain way. Evidence of the alleged victim's violent
character, when known by the accused, was admissible on the issue of
whether or not the defendant reasonably feared he was in danger of imminent
great bodily harm.
(3) REBUTTAL BY PROSECUTION
(a) Once the defendant introduces evidence of his good character, the prosecution may call its
own witnesses to testify as to the defendants bad character. However, prosecution may only
rebut the specific trait introduced and is generally limited to reputation and opinion evidence.
On cross-examination, the prosecutor may ask whether the witness knew of specific conduct,
but extrinsic evidence of the specific act is not permitted (avoidance of mini-trials).
Likewise, when the defendant admits evidence of the victims character, the prosecutor may
rebut with evidence of the defendants character for that same trait or show that the victim
did not, in fact, have that character trait claimed through his own rebuttal evidence.
ii) CHARACTER EVIDENCE IS DISCOURAGED DUE TO RISKS OF PREJUDICE
(1) Circumstantial use of character evidence is generally discouraged because it carries serious risks
of prejudice, confusion, and delay, despite its potential probative value.
3) FRE 404(b): OTHER CRIMES, WRONGS, OR ACTS
(b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at trial.
a) Evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting
the inference that conduct on a particular occasion was in conformity with it. However, the evidence
may be offered for another purpose, including but not limited to, motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or accident. This evidence is not admitted
to show defendants general disposition, but is instead used to establish circumstantially some element
of the crime charged. When evidence is offered for another purpose one must still perform the FRE 403
balancing test.
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i) CRIMINAL SIGNATURE
(1) If the identity of the criminal is in doubt, proof of similar crimes may be admitted, if the
similarities in the methods used are so similar that they might constitute his signature. This
evidence is admitted as proof of his m.o. or modus operandi.
ii) INTENT
(1) Other crimes, wrongs, or acts may be used to show that defendant had the particular intent
required for the crime charged. This is used to rebut the defendants contention that he acted
innocently or without knowledge.
(a) EXAMPLE
(i) Defendant, a mailman, is charged with stealing a coin from the mail. The court allowed
the prosecution to admit evidence that the defendant unlawfully possessed credit cards
taken from the mail in order to rebut Defendants claim that the coin accidently fell out of
an envelope and that he planned to return it.
iii) MOTIVE
(1) Other crimes may be used to establish the defendants motive for the crime charged.
(a) EXAMPLE
(i) Defendant, a nurse, is charged with stealing Demerol from the hospital where she works.
The prosecution may show that defendant is a demerol addict in order to show that she
had a motive to steal the drug.
iv) IDENTITY
(1) Other crimes may be used to show that Defendant was really the perpetrator (if he disputes this).
The prosecution may be allowed to show that defendant committed other crimes, and that the
other crimes, and the crime charged are part of a common plan or scheme.
(a) EXAMPLE
(i) Defendant is charged with embezzling from his employer. The defendant claims that
someone else did the embezzling from his three prior employers. However, this indicates
that defendant is acting as part of a general scheme to steal from his employers.
v) ABSENCE OF MISTAKE/ACCIDENT
(1) Prior acts which rebut a claim of mistake or accident. For example, if there is a history of injury
to a child, this may indicate that the latest injury is not an accident or mistake.
vi) KNOWLEDGE
(1) A prior act may show the knowledge necessary to commit the charged crime.
vii) COMMON PLAN OR SCHEME
(1) The prior act suggests an overral grand design or logical step in the scheme.
viii) OPPORTUNITY
(1) The prior act shows a specialized ability necessary for the charged crime.
ix) PREPARATION
(1) The prior act was necessary in preparation of the charged crime.
b) USE OF MAY NOT INTENDED TO CONVEY DISCRETION TO THE COURT
i) The use of the discretionary word may with respect to the admissibility of evidence of crimes,
wrongs, or acts is not intended to confer any arbitrary discretion on the trial judge. Rather, it is
anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it
only on the basis of those considerations set forth in Rule 403.
c) PRETRIAL NOTICE REQUIREMENT
i) In a criminal action only (note there is a general exclusion of character evidence in civil matters)
there is a pretrial notice requirement when using evidence of other crimes, wrongs, or acts to show
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absense of mistake, or
accident (when not used to show action in conformity with). However, before the prosecution is
required to provide this pretrial notice, the defense counsel must first request that notice be provided.
26

The pretrial notice requirement is intended to avoid surprise and promote early resolution on the
issue of admissibility.
(1) NO SPECIFIC RULE REGARDING FORMAT AND TIMELINESS OF NOTICE
(a) No specific time limits are stated as to what constitutes a reasonable request and disclosure
will depend largely on the circumstances of each case. The prosecution must provide notice
regardless of how the prosecutor intends to use the extrinsic act evidence at trial (case-inchief, impeachment, or for rebuttal). The court in its discretion may decide that the particular
request or notice was not reasonable, either because of lack of timeliness or completeness.
Since the notice requirement is a condition precedent to FRE 404(b) evidence, the offered
evidence is inadmissible if the court decides the notice requirement has not been met.
(i) PRETRIAL NOTICE MAY BE EXCUSED WHEN GOOD CAUSE SHOWN
1. The court has discretion to allow the evidence, even when notice is not provided, if
good cause is shown.
(ii) MAY RULE ON ADMISSIBILITY IN LIMINE
1. The Court may require the government to provide it with an opportunity to rule in
limine on FRE 404(b) evidence before it is offered or even mentioned at trial. When
ruling in limine, the court may require the government to disclose to it the specifics of
such evidence which the court will consider in determining admissibility.
d) CHARACTER EVIDENCE STILL MUST BE CONSIDERED UNDER FRE 403
i) Circumstantial use of character evidence is discouraged because it carries serious risk of prejudice,
confusion, and delay. Even when character evidence is permitted not to prove character, but for
another specified (proof of motive), the character evidence should still be considered under
FRE 403. The trial judge may still exclude the evidence based on unfair prejudice, confusion, or
waste of time.
e) USE OF PRIOR ARRESTS AS CHARACTER EVIDENCE
i) FRE 404 does not require that a particular event may have led to a conviction. In addition, even an
acquital may not preclude admission of this evidence. Even where other crimes or arrests by the
defenant circumstantially establish an element of the present charge, the judge must still balance the
probative value against prejudice under FRE 403.
4) RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On
cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential
element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
a) FRE 405 does not deal with the admissibility of character evidence. FRE 405 specifies the permissible
methods of proving character. It governs how character may be proved but not when. In theory, there
are three methods of proof: (1) reputation (asking about that persons repuation for honesty); (2) opinion
(asking your opinion of that persons honesty); and, (3) specific acts (asking whether defendant did any
acts which would reflect on his honesty returning lost wallet).
i) HIERARCHY OF CHARACTER EVIDENCE
(1) Because of specific acts, people form opinions, and collective opinions form a reputation.
Although specific acts may be the most probative, this method of proof takes the most time and
carries with it the potential for distraction. If a party contests the specific act, there could be a
trial within a trial.
(a) MUST ESTABLISH A FOUNDATION
(i) When presenting character evidence, you must lay an adequate foundation. Does the
witness have sufficient knowledge as to the defendants reputation? Does the witness
know the defendant enough to state an opinion?
(b) REPUTATION OR OPINION
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(i) Once it is determined that evidence of a trait of character is admissible, both reputation
and opinion evidence are allowable to prove that trait of character. However, inquiry into
specific instances of conduct is only allowable on cross-examination or when the
character is in issue.
b) EVIDENCE OF DEFENDANTS GOOD CHARACTER
i) A criminal defendannt can show his good character by witness testimony that defendant has a good
reputation or that the witness has a good opinion of defendant (defendant is honest). However, the
defendant cannot show specific instances of his own good character.
(1) REBUTTAL
(a) If the defendant submits this type of character evidence, the defendant opens the door to the
prosecution offering its own reputation or opinion evidence (defendants dishonesty). Also,
the prosecution can cross-examine defendants character witnesses as to specific acts, but
cannot submit extinsic evidence of those acts.
(i) EXAMPLE
1. Prosecution can ask defendants character witness, would it change your opinion of
defendants peaceful nature to know that he started three fights at the Tavern on the
Green in the last year alone? In the above example, prosecutor must have a goodfaith basis for believing that the bar-room fights really occurred. Even an arrest that
did not lead to a conviction may be brought up in cross-examination, if relevant to the
character trait in question.
a. GOOD-FAITH BASIS FOR SPECIFIC-ACT QUESTION
i. Before the cross examiner asks about a specific act during cross, she must
have a good faith basis for believing that the specific act really occurred.
b. NO EXTRINSIC ACTS
i. Also, the prosecution cant use extrinsic evidence of the specific acts, merely
ask the defenses witness about them. For example, on the above bar-room
fights example, if defendants witness said, I dont believe those fights ever
happened, and if they did they werent started by Defendant, the prosecution
cant prove otherwise. Conversely, the defendant may not put on other
witnesses to show that the specific act referred to by the prosecutor on crossexamination never took place.
c) CHARACTER OF VICTIM
i) Similarly, Defendant can show the character of the victim by use of reputation or opinion evidence.
For example, in a murder case where defendant claims self-defense, defendant can put on witness to
testify, in my opinion, victim was always the kind of guy who liked to start fights.
(1) REBUTTAL
(a) Again, the prosecution in rebuttal can not only use reputation or opinion, but can also refer to
specific acts on cross-examination.
(2) PROOF FOR OTHER PURPOSES
(a) Where a party (usually the prosecution) is using defendants prior crimes or bad acts for
some other purpose (e.g. identity, knowledge, etc.), this proof can be by specific acts.
(i) EXAMPLE
1. If defendant is charged with robbing the 2 nd National Bank with a blue ski mask and
yellow raincoat, and Defendant denies that he is the one who did it, prosecution can
show that on June 21, defendant robbed the 1 st National Bank wearing this distinctive
garb, because its so unusual as to amount to a signature.
ii) CHARACTER IN ISSUE - SPECIFIC INSTANCES OF CONDUCT
(1) While evidence of specific instances of conduct is the most convincing, it also possesses the
greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Thus, the rule
confines the use of evidence of this kind to cases in which character is in issue. When character
28

is used circumstantially and occupies a lesser status in the case, proof may only be by reputation
and opinion. However, reputation and opinion may also be available when character is in issue.
(a) CROSS-EXAMINATION SPECIFIC INSTANCES OF CONDUCT
(i) On cross-examination inquiry is allowable as to whether the reputation witness has heard
of particular instances of conduct pertinent to the trait in question. Since the reputation
relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing
and reporting. A reputation or opinion witness may be asked on cross-examination if she
has heard or if she knows of specific acts that reflect upon the character trait addressed by
the witness during direct examination. The cross-examiner must take the witnesss
answer; that is, extrinsic evidence of the specific act is not admissible. You cant call
other witnesses to testify regarding that specific act as questioning is limited to crossexamination, not direct. Generally, you may only offer your own opinion or reputation
witnesses without any discussion of specific acts.
1. DID YOU KNOW?
a. A common question asked on cross-examination is did you know defendant
committed a crime. Regardless of the answer, the damage is done. In order to
ask this question, you must have a good faith basis in fact (not just speculation).
Evidence that is too remote, or not relevant, may be excluded.
d) FRE 405 DEALS WITH ALLOWABLE METHODS OF PROVING CHARACTER NOT THE
ADMISSIBILITY OF CHARACTER EVIDENCE
i) Rule 405 deals only with the allowable methods of proving character, not the admissibility of
character evidence. Evidence of specific instances of conduct may be prejudicial, confuse, surprise,
or consume time. As such, this type of evidence is limited to those situations where the character or
trait is an essential element of a charge, claim, or defense (at issue for example, self-defense).
When character is used circumstantially, and is not an essential element of the case, proof may only
be by reputation and opinion. However, reputation and opinion may also be used when the character
is in issue.
e) CONVICTION IS NOT REQUIRED TO BE ADMISSIBLE AS A SPECIFIC ACT
i) This rule does not require that the defendant actually be convicted of a crime. Instead, the jury gets
to hear information regarding the prior arrests. The jury may then determine whether the crimes did,
in fact, occur.
5) RULE 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and
regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on
a particular occasion was in conformity with the habit or routine practice.
a) Character is a generalized description of one's disposition, or of one's disposition in respect to a general
trait, such as honesty, temperance, or peacefulness which is generally disallowed. Habit is more
specific. It describes one's regular response to a repeated specific situation. A habit is the person's
regular practice of meeting a particular kind of situation with a specific type of conduct, such as the
habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn.
The habitual acts may be semi-automatic. Habit is admissible under the FRE to show that a person
followed a particular habit on a particular occasion. The term routine practice of an organization may
be argued to be an informal organization or group (war protesters) and might not be limited to a formal
business or partnership.
i) WHAT IS HABIT
(1) Habit is often defined as a regular response to a repeated specific situation. However,
evidence that one is careless, negligent, or a drunk generally are not habit. This type of evidence
often falls under character evidence.
ii) THREE FACTORS TO CONSIDER WHEN DETERMINING WHETHER IT IS A HABIT
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(1) Generally, three factors should be considered when determining whether a specific behavior is a
habit. They are: (1) specificity; (2) regularity; (3) duration; and, (4) semi-automatic behavior.
(a) SPECIFICITY
(i) The more specific the behavior, the more likely it is to be deemed a habit. If a victim is
killed when his car is hit on the railroad tracks, his estate will be able to show that he had
always stopped and looked before crossing the tracts. Since the conduct is very specific,
it may be found to be a habit. However, a victims general carefulness will be found to
be a character trait and not a habit (look at the conduct itself).
(b) REGULARITY
(i) The more regular the activity, the more likely it will be a habit. It is the percentage of
time that the particular person will do something in reaction to a particular situation.
Thus, a court will be more likely to find habit if the person engages in conduct 90% of
the time, instead of 20%, in response to a given stimulus.
(c) DURATION
(i) The length of time that the person has engaged in the particular behavior is also relevant
as to whether that behavior is a habit.
(d) SEMI-AUTOMATIC BEHAVIOR
(i) The more unreflective of semi-automatic the behavior, the more likely it is to be a habit.
If the action does not require conscious thought it is more likely to be a habit. For
example, using a left-hand turn signal is probably a habit because its semi-automatic;
however, going to church each Friday probably is not because it requires conscious
thought and volition.
b) DIFFICULTIES IN DETERMINING WHETHER THE BEHAVIOR IS A HABIT
i) Disagreement may appear when the question of whether the behavior in question is a habit is at
issue. The extent to which the instances must be multiplied, and the consistency of the behavior,
gives rises to differences of opinion. It is never a clear at what point a behavior goes from specific
unrelated acts to consistent acts of habit. Evidence of intemperate habits are generally excluded
when offered as proof of drunkenness in accident cases (doesnt prove he was drunk at the time in
question, but habit of drinking everytime he drives would be a habit that is admissible).
(1) HOW IS HABIT DIFFERENT FROM CHARACTER EVIDENCE
(a) Character is a general description of an individuals disposition (defendant is a drunk).
Habit is suppose to describe a more regular response to repeated, specific situations
(defendant has two beers every night before driving home). In many cases, however, the
difference between character and habit may be a difference in degree and not in the kind of
evidence.
c) EYEWITNESS NOT REQUIRED DURING PARTICULAR OCCASION
i) Under FRE 406, evidence of a habit of a person may be relevant to prove the conduct of that person
on a particular occasion regardless of whether there were witnesses to the conduct of the person or
organization during that particular occasion. Thus, for example, if one proves that a person always
looks both ways before crossing a street, you can show that the person looked both ways on the day
in question, even if no one saw him look both ways.
(1) BUSINESS PRACTICES
(a) Courts will allow evidence of the routine practice of an organization, to show that the
particular practice may have been followed on a particular occasion. Thus, business policies,
rules, or regulations may be admitted as habit of the business if it can be shown that they
consistently adhered to those practices. For example, a business may prove that a particular
letter was mailed by showing that it was the organizations routine practice to mail all letters
placed in any workers outgoing mailbox and, as such, the letter in question was placed in
such a box. Likewise, evidence of previous business transactions between the parties may be
used to prove that they made the same bargain or proposal in the past.
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(i) WHITTEMORE v. LOCKHEED AIRCRAFT CORP

1. Upholding the admission of evidence that plaintiff's intestate had on four other
occasions flown planes from defendant's factory for delivery to his employer airline,
offered to prove that he was piloting rather than a guest on a plane which crashed and
killed all on board while en route for delivery.
(2) EVIDENCE OF ROUTINE PRACTICE NEED NOT BE CORROBORATED
(a) Evidencce of the routine practice of an organization need not be corroborated as a condition
precedent to its admission into evidence. This relates to the sufficiency of the evidence
rather than admissibility. The rule also rejects the requirement of the absence of
eyewitnesses. However, a court may still exclude evidence of habit if, in the courts
discretion, the conduct in question does not constitute habit.
6) RULE 407. SUBSEQUENT REMEDIAL MEASURES
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would
have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to
prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning
or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for
another purpose, such as proving ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.
a) This rule excludes evidencec of subsequent remedial measures as proof of an admission of fault. The
rule rests on two grounds: (1) the conduct is not an admission since such conduct is equally consistent
with injury by mere accident or through contributory negligence (the world gets wiser as it gets older,
but that does not make the prior conduct negligent); (2) the other, and more compelling reason for
exclusion, rests on the social policy of encouraging people to take (or not discouraging them from
taking) steps to further safety. While under a liberal theory of relevancy, this evidence might still be
sufficiently probative, courts have applied these principles to exclude evidence of subsequent repairs,
installation of safety devices, changes in company rules, and discharge of employees.
i) FEASIBILITY OF PRECAUTIONARY MEASURES
(1) A simple question of Why didnt you think of this earlier? and an answer of I just didnt think
of it earlier may be enough to allow plaintiff to challenge whether the design modification
would have been feasible.
ii) LIMITATIONS ON EXCLUSION UNDER THIS RULE
(1) Exclusion of evidence of a subsequent remedial measures is only appropriate when offered as
proof of negligence or culpable conduct. The rule rejects the suggested inference that fault is
admitted. However, other purposes are allowable, including ownership or control, existence of
duty, feasibility of precautionary measures. These issues may be raised, if disputed by the party,
or used in impeachment of that party.
(a) BOEING AIRPLANE CO. v. BROWN
(i) In an action against an airplane manufacturer for using an allegedly defectively designed
alternator shaft, the court upheld the admission of evidence of a subsequent design
modification for the purpose of showing that design changes and safeguards were
feasible. Note: This virtually erodes the rule. In almost all negligence/ strict liability
cases, a central issue will be whether the defendant could have done something safer. In
almost all these cases, the defendant will attempt to at least minimize his failure to
modify the premises or product to make it safer. Thus, opening the door to impeachment.
(b) POWERS v. J.B. MICHAEL & CO.
(i) In an action against a road contractor for its negligent failure to place warning signs on
the road, the court sustained the admission of evidence that defendant subsequently put
out warning signs for the purpose of showing that the portion of the road in question was
under defendants control.
31

(2) In order to prevent the rule from being controverted, the evidence is automatically excluded
unless a genuine issue is present. The opposing party may be able to prevent the admission of
this evidence by making an admission. In addition, the court may preform the FRE 403
balancing test.
iii) RULE APPLIES TO CHANGES AFTER THE EVENT THAT GAVE RISE TO ACTION
(1) The rule only applies to changes made after the occurrence that produced the damages giving
rise to the action. Evidence of measures taken by the defendant prior to the event causing injury
or harm do not fall within the exclusionary scope of FRE 407 even if they occurred after the
manufacture or design of the product. For example, if you recognize a defect, design changes to
the product, but someone is injured prior to implementing changes, those design changes
probably are not excluded under this rule.
iv) CANNOT BE USED TO SHOW DEFECT IN PRODUCT, DESIGN, OR LACK OF
WARNING
(1) Evidence of subsequent remedial measures may not be used to prove a defect in a product or its
design, or that a worning or instruction should have accompanied a product (applying the rule to
products liability actions).
7) RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove
liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach
through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable
consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a
criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory,
investigative, or enforcement authority.
(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited
by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating
a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
a) Evidence of an offer to compromise a claim is not receivable in evidence as an admission, or validity of,
a claim. As with FRE 407 the exclusion is based on two grounds: (1) the evidence is irrelevant and may
be motivated by a desire for resolution or other reasons; and, (2) there is a public policy favoring the
compromise and settlement of disputes. However, this rule does not apply when the claim is not
disputed as to validity or amount. Thus, an effort to induce a creditor to settle an admittedly due amount
for a lesser sum is not subject to this rule.
i) ONLY PRECLUDES EVIDENCE WHEN OFFERED TO PROVE VALIDITY OR
INVALIDITY OF CLAIM OR AMOUNT
(1) This rule as reported makes evidence of settlement or attempted settlement of a disputed claim
inadmissible when offered as an admission of liability or the amount of liability. When the
statements are offered for another purpose, this rule does not apply. In addition, an effort to buy
off the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule
of exclusion.
(a) COLLATERAL ADMISSIONS OF FACT
(i) FRE 408 includes a broad limitation of use of conduct or statements made in
compromise negotiations. Collateral admissions of fact made during the course of
settlement negotiations would not admissible. Thus, admissions of liability or opinion
during the course of negotiations are inadmissible; however, unqualified factual
assertions not made in the course of settlement negotiations are still admissible.
(ii) EVIDENCE ADMISSIBLE FOR OTHER PURPOSES
1. Settlement offers may be admissible to prove issues other than liability. For example,
if a witness testifies on behalf of a defendant in a civil suit, the fact that the witness
32

received money from the defendant in settlement for a related claim may be admitted
to show that the witness is biased in favor of the defendant and against the plaintiff.
ii) A PARTY CANNOT IMMUNIZE EVIDENCE
(1) Evidence, such as documents, cannot be rendered inadmissible merely because it is presented in
the course of compromise negotiations if the evidence is otherwise discoverable. A party cannot
immunize from admissibility documents otherwise discoverable merely by offering them in a
compromise negotiation. This type of evidence is not made in the course of settlement
negotiations. Instead, it existed and was created prior to the settlement negotiations. However,
if a damage estimate or inspection was conducted in an attempt to settle the matter, that report
would be considered to be made in the course of settlement negotiations.
iii) FRE 408 OFFERS LIMITED PROTECTION TO A CRIMINAL DEFENDANT
(1) FRE 408 does not prohibit the introduction, in a criminal case, of statements or conduct during
compromise negotiations regarding a civil dispute by a government regulatory, investigative, or
enforcement agency. Where an individual makes a statement in the presence of government
agents, its admission in a criminal case should not be unexpected. Also, the individual can seek
to protect against subsequent disclosure through negotiation and agreement. Note that this rule
seems geared to those situations whereby a defendant makes a statement to an administrative
agency and the government later prosecutes based on that statement.
(a) APPLICATION OF FRE 403 TO STATEMENTS
(i) Statements made in compromise negotiations may be excluded in criminal cases where
the circumstances so warrant under FRE 403. For example, if an individual was
unrepresented at the time the statement was made in the civil enforcement proceeding, its
probative value in a subsequent criminal case may be minimal.
(b) NOT APPLICABLE TO STATEMENTS MADE DURING PRIVATE NEGOTIATION
(i) Statements made during negotiations between private parties cannot be used in a
subsequent criminal proceeding. Otherwise, parties may refuse to admit fault and
settlement negotiations could be chilled. This is contrary to the policy reasons of FRE
408.
(c) DISTINGUISHES BETWEEN STATEMENTS AND CONDUCT AND OFFERS
(i) Although FRE 408 does not provide protection to statements and conduct made to a
governmental agency, it does protect offer or acceptance of a compromise of a claim.
Thus, a party may still offer to pay a certain sum of money or accept payment of a certain
sum of money. The offer or acceptance cannot be used against the defendant as an
admission of fault. Otherwise, it would be virtually impossible for a settlement to occur
if the defendants offer or acceptance could be used to establish his criminal liability.
b) USES OF SETTLEMENT NEGOTIATIONS THAT DO NOT VIOLATION FRE 408
i) The rule is specifically restricted to statements and conduct in the course of negotiation when that
evidence os offered as to the validity, invalidity, or amount of the disputed claim. For example,
evidence of a settlement offer by an insurer could still be properly admitted to prove insurers bad
faith. In addition, one can admit evidence of settlement to prove a partys intent with respect to the
scope of a release. Likewise, FRE 408 does not bar evidence of settlement when offered to prove a
breach of the settlement agreement, as the purpose of the evidence is to prove the fact of settlement
as opposed to the validity of the underlying claim. Also, FRE 408 is inapplicable when the claim is
based upon a wrong that is committed during the course of the settlement negotiations (offered to
show that the party made fraudulent statements to settle the litigation).
(1) PROOF OF NOTICE
(a) The rule also does not preclude conduct or statements in the course of settlement negotiations
to establish notice that subsequent similar conduct was wrongful. In addition, settlement
negotiations as to a prior civil rights claim, could put a city on notice of the aggressive and
33

wrongful behavior of its officers. This evidence may be admissible in a subsequent action
involving similar conduct.
ii) PROHIBITS USE OF STATEMENTS MADE IN SETTLEMENT NEGOTIATIONS FOR
IMPEACHMENT
(1) The Rule prohibits the use of statements made in settlement negotiations when offered to
impeach by prior inconsistent statement or through contradiction. Broad impeachment would
swallow the exclusionary rule and would impair the public policy of promoting settlements. It
would threaten the interchange of information during settlement negotiations and shoul dnot be
permitted.
iii) PROHIBITS USE OF COMPROMISE EVIDECE
(1) FRE 408 also excludes use of compromise evidence even when a party seeks to admit its own
settlement offer or statements made during settlement negotiations. If a party were to reveal its
own statement or offer, this could reveal that the adversary entered into settlement negotiations.
Since FRE 408 cannot be waived unilaterally, the rule protects both parties from having the fact
of negotiation disclosed to the jury.
8) RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an
injury is not admissible to prove liability for the injury.
a) Generally, evidence of payment of medical, hospital, or similar expenses of an injured party by the
opposing party, is not admissible, the reason often given being that such payment or offer is usually
made from humane impulses and not from an admission of liability, and that to hold otherwise would
tend to discourage assistance to the injured person.
i) DOES NOT EXTEND TO CONDUCT OR STATEMENTS NOT PART OF ACT OF
PAYMENT
(1) The present rule does not extend to conduct or statements not a part of the act of furnishing or
offering or promising to pay. This difference in treatment arises from fundamental differences in
nature. Communication is essential if compromises are to be effected, and consequently broad
protection of statements is needed. This is not so in cases of payments or offers or promises to
pay medical expenses, where factual statements may be expected to be incidental in nature.
Thus, any additional admission will be admissible as an admission (here is the money, it was
my fault).
(a) EXAMPLE
(i) Defendant says to plaintiff, I am paying your medical expenses because if I hadnt been
drunk that night, I would not have hit you. This may be admitted to show defendants
drunkenness but not to show that defendant paid the expenses.
9) RULE 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED
STATEMENTS
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal
Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do
not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of
the same plea or plea discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was
made by the defendant under oath, on the record and in the presence of counsel.
34

a) The fact that the defendant has offered to plead guilty (and the offer has been rejected by the prosecutor)
may not be shown to prove that defendant is guilty or is conscious of his guilt. FRE 410(4) excludes not
only the offer to plead guilty but any other statement made in the course of plea discussions with the
prosecutor, from being used against the defendant. Otherwise, the effect of admitting the plea would
compel the defendant to take the stand to explain the plea. In general, three types of evidence are
precluded under this rule: (1) a plea of guilty which is later withdrawn; (2) a plea of nolo contendere; (3)
any statement made in the course of plea discussions that do not result in a guilty plea or the plea is later
withdrawn.
i) A PLEA OF GUILTY WHICH IS LATER WITHDRAWN
(1) Similarly, the fact that defendant made a guilty plea and then later withdrew it may not be
admitted against defendant in the ultimate trial.
ii) A PLEA OF NOLO CONTENDERE
(1) A plea of nolo contendere is in effect a compromise. The defendant avoids the admission of guilt
which is inherent in pleas of guilty. Effective criminal law administration requires that many
charges be resolved by such compromises.
iii) ANY STATEMENT MADE IN THE COURSE OF THE PLEA DISCUSSIONS
(1) Statements made in the course of the plea discussions may not be used against the defendant.
Thus, if the defendant later changes his mind, these statements cannot be entered into evidence
against him. However, the prosecutor may condition the plea discussions on the condition that
the defendant waive this rule. In that case, statements may then be entered into evidence against
the defendant should the defendant choose not to enter into the plea agreement.
b) LIMITED TO USE AGAINST DEFENDANT IN CIVIL OR CRIMINAL PROCEEDING
i) Evidence of a guilty or nolo contendere plea, of an offer of either plea, or of statements made in
connection with such pleas or offers of such pleas, is inadmissible in any civil or criminal action,
case or proceeding against the person making such plea or offer. In addition, the exclusionary rule
only applies to the use of the statement against the defendant who participated in the plea
discussions. A prosecutor may be able to use statements made during plea negotiations against a coconspirator or other party. The possibility of use for or against other persons does not impair the
effectiveness of withdrawing pleas or the freedom of discussion which the rule is designed to foster.
c) DOES NOT APPLY TO SUBSEQUENT PROSECUTION FOR PERJURY
i) Statements made during the course of a plea discussion may be offered into evidence against the
defendant in a subsequent prosecution for perjury. Thus, if the defendant later testifies and those
statements contradict what was told to the prosecutor, the prosecutory may institute a prosecution for
perjury.
d) DEFENDANT MAY OPEN THE DOOR TO EVIDENCE OF PLEA BARGAIN
i) Either a prosecution or the defense can open the door to additional information that should be
considered with any statements admitted. Thus, if either party admits evidence of the plea bargain,
either pursuant to the requirements of this rule or by accident, one can admit evidence to present a
complete picture of that negotiation. The rule requires that said additional information ought in
fairness be considered contemporaneously with it (a rule of completeness).
10) RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the
person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of
insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or
bias or prejudice of a witness.
a) Evidence of liability insurance may not be admitted for the purpose of proving fault or absense of
liability insurance as proof of lack of fault. Insurance may be admitted for any other purpose other than
fault. Thus, liability insurance is admissible to prove agency, ownership, control, bias, or prejudice of a
witness. However, in many situations the rule will effectively preclude admission of insurance
information (not relevant to a material fact at issue).
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i) POLICY REASONS BEHIND RULE

(1) There is a concern that knowledge as to whether the defendant has insurance may unfairly
penalize insurance companies. In addition, carrying insurance is not relevant to whether you
were negligent.
ii) INSURANCE IS ADMISSIBLE FOR PURPOSE OTHER THAN LIABILITY
(1) Evidence of the existence or non-existence of liability insurance is admissible for purposes other
than proving negligence. For instance, the fact that witness, a witness for defendant in a tort suit,
works for Defendants liability insurance company, could be admitted to show bias on Witnesss
part.
11) RULE 412. SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM'S PAST SEXUAL
BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION
(a) Evidence generally inadmissible.--The following evidence is not admissible in any civil or criminal
proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
a) FRE 412 bars evidence offered to prove the victims sexual behavior and alleged sexual predisposition,
even if the evidence might otherwise be admissible. The word other is used to suggest some flexibility
in admitting evidence intrinsic to the alleged sexual misconduct. Past sexual behavior includes all
activities that involve actual physical conduct (sexual intercourse or sexual contact).
i) INCLUDES ACTIVITIES THAT IMPLY SEXUAL ACTIVITY
(1) Use of contraceptives is inadmissible since use implies sexual activity. In addition, birth of an
illegitimate child is also inadmissible. Further, evidence of a veneral disease is inadmissible.
Behavior may even include activities of the mind (fantasies or dreams). Thus, behavior will be
interpreted very broadly.
ii) EXCLUDES EVIDENCE OF A SEXUAL CONNOTATION
(1) The rule also excludes all other evidence relating to an alleged victim of sexual misconduct
which is offered to prove a sexual predisposition. Evidence that does not directly refer to sexual
activities or thoughts but that the proponent believes may have a sexual connotation for the
factfinder is excluded. The admission of this evidence would contravene FRE 412s objective of
shielding the alleged victim from potential embarrassment and safeguard the victim against
stereotypical thinking. Consequently, unless an exception is satisified, evidence relating to the
victims mode of dress, speech, or lifestyle will not be admissible.
iii) APPLIES TO ALL CRIMINAL CASES AND CIVIL CASES
(1) The strong policy of protecting a victims privacy and encouraging victims to come forward to
report criminal acts is not confined to cases that involve a charge of sexual assault. The need to
protect the victim is equally great when a defendant is charged with kidnapping and evidence is
offered, either to prove motive or as background, that the defendant sexually assaulted the
victim.
The need to protect alleged victims against invasions of privacy, potential
embarrassment, and unwarranted sexual stereotyping, and the wish to encourage victims to come
forward when they have been sexually molested do not disappear because the context has shifted
from a criminal prosecution to a claim for damages or injunctive relief. There is a strong social
policy in not only punishing those who engage in sexual misconduct, but in also providing relief
to the victim.
12) RULE 412(b) EXCEPTIONS
(b) Exceptions.-(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other
than the accused was the source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of
the sexual misconduct offered by the accused to prove consent or by the prosecution; and
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(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
a) There are some specific circumstances in which some evidence that would otherwise be barred by this
rule may be admitted. In a criminal case, evidence may be admitted under this rule pursuant to three
possible exceptions, provided the evidence also satisfies other requirements for admissibility, including
Rule 403. FRE 412(b)(1)(a) & (b) require proof in the form of specific instances of sexual behavior in
recognition of the limited probative value and dubious reliability of evidence of reputation in the form of
an opinion (cant have opinion or reputation evidence stating she is a slut).
i) FRE 412(b)(1)(a) SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE
(1) Evidence of specific instances of sexual behavior with persons other than the person whose
sexual misconduct is alleged may be admissible if it is offered to prove that another person was
the source of the semen, injury, or other physical evidence. Where the prosecution has directly
or indirectly asserted that the physical evidence originated with the accused, the defendant must
be afforded an opportunity to prove that another person was responsible. However, this evidence
might still be excluded if it does not satisfy FRE 401 or FRE 403.
ii) FRE 412(b)(1)(b) EVIDENCE OF SEXUAL BEHAVIOR WITH ACCUSED TO PROVE
CONSENT
(1) Evidence of specific instances of sexual behavior with respect to the person whose sexual
misconduct is alleged is admissible if offered to prove consent, or offered by the prosecution.
Under this exception, evidence of prior instances of sexual activities, statements in which the
alleged victim expresses an intent to engage in sexual intercourse with the accused, or voiced
fantasies regaring the accused may be admissible. However, evidence relating to the victims
alleged sexual predisposition is not admissible pursuant to this exception.
(a) PROSECUTION CAN ADMIT EVIDENCE WITHOUT NEED TO SHOW CONSENT
(i) A prosecutor may be able to admit evidence of uncharged sexual activity between the
accused and the alleged victim (child sexual abuse). This evidence may be admissible to
show a pattern of behavior.
iii) FRE 412(b)(1)(c) WHEN THE EXCLUSION WILL VIOLATE CONSTITUTIONAL
RIGHTS
(1) Evidence of specific instances of conduct may not be excluded if the result would be to deny a
criminal defendant protections afforded by the Constitution. For example, statements in which
the victim has expressed an intent to have sex with the first person encountered on a particular
occasion might not be excluded without violating the due process right of a rape defendant
seeking to prove consent. Also, a defendant in a rape case had a right to inquire into the alleged
victims cohabitation with another man to show bias.
13) FRE 412(b)(2)
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim
is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's
reputation is admissible only if it has been placed in controversy by the alleged victim.
a) FRE 412(b)(2) governs the admissibility of evidence in civil cases. The rule employs a balancing test
rather than providing for specific exceptions. Evidence offered to prove sexual behavior or sexual
predisposition is admissible provided its probative value outweighs any harm to the victim. In addition,
reputation evidence is specifically excluded unless it is placed into controversy by the victim. Thus,
only opinion and specific acts are allowed to prove sexual behavior or predisposition. The rule is meant
to provide greater flexibility to accommodate evolving causes of action.
i) PROBATIVE VALUE MUST OUTWEIGH DANGER OF HARM
(1) The proponent of the evidence must convince the court that the probative value of the proffered
evidence substantially outweighs the danger of harm to any victim and of unfair prejudice of
any party. This test for admitting evidence offered to prove sexual behavior or sexual
propensity in civil cases differs from the procedure in FRE 403 in three separate ways: (1) it
37

reverses the usual procedure and shifts the burden to the proponent to demonstrate admissibility;
(2) the rule is more stringent and requires that the probative value of the evidence substantially
outweigh the specific dangers (harm or prejudice); (3) considerations of harm to the victim is
weighed in the balancing test.
14) RULE 412(c) PROCEDURE TO DETERMINE ADMISSIBILITY
(c) Procedure to determine admissibility.-(1) A party intending to offer evidence under subdivision (b) must-(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose
for which it is offered unless the court, for good cause requires a different time for filing or permits filing during
trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's
guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim
and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be
sealed and remain under seal unless the court orders otherwise.
a) The FREs rape shield provision, FRE 412, completely disallows reputation or opinion evidence
concerning the victims past sexual behavior. FRE 412 also prohibits evidence of specific acts
concerning the victims past sexual behavior in most situations; for instance, defendant is never allowed
to offer evidence of victims past sexual behavior with persons other than himself if offered on the issue
of whether there was consent. FRE 412(c) establishes the procedures that must be followed in order for
a criminal defendant to admit evidence under FRE 412(b). Failure to follow these procedures may
preclude a defendant from admitting evidence that would otherwise be allowed under FRE 412(b).
b) WRITTEN MOTION IS REQUIRED
i) A written motion must be filed at least 14 days before the trial specifically describing the evidence
the the purpose for which it is offered.
(1) GOOD CAUSE SHOWN
(a) A court may permit the filing of a late motion, or a motion during trial, for good cause
shown. In deciding whether to permit late filing, the court may take into account the
conditions previously included in the rule: (1) whether the evidence is newly discovered and
could not be obtained through due diligence; (2) whether the issue to which such evidence
relates has newly arisen in the case. In some instances, the circumstances that justify an
application to introduce evidence otherwise barred by FRE 412 will not become apparent
until trial.
c) IN CAMERA HEARING
i) Before admitting evidence that falls within the prohibition of this rule, the court must hold a hearing,
in camera, at which the alleged victim and any party must be afforded the right to be present and an
opportunity to be heard. All papers connected with the motion must be kept and remain under seal
during the course of trial and appellate proceedings unless otherwise ordered. This is to insure that
the privacy of the alleged victim is preserved in all cases in which the court rules that the proffered
evidence is not admissible, and which the hearing refers to matters that are not received, or are
received in another form.
d) PURPOSE OF THE RULE EXCLUDING EVIDENCE OF SEXUAL BEHAVIOR
i) The rule aims to safeguard the alleged victim against the invasion of privacy, potential
embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual
details and the infusion of sexual innuendo into the factfinding process. By affording victims
protection in most instances, the rule also encourages victims of sexual misconduct to institute and to
participate in legal proceedings against alleged offenders
(1) RULE APPLIES IN ALL CASES WITHOUT REGARD TO WHETHER VICTIM IS A
PARTY TO THE LITIGATION
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(a) The rule applies in all cases involving sexual misconduct without regard to whether the
alleged victim or person accused is a party to the litigation. However, when the case does not
involve alleged sexual misconduct, evidence relating to a third-party witness' alleged sexual
activities is not within the ambit of Rule 412. The witness will, however, be protected by
other rules such as Rules 404 and 608, as well as Rule 403. For example, a defamation
action involving statements concerning sexual misconduct in which the evidence is offered to
show that the alleged defamatory statements were true or did not damage the plaintiff's
reputation, neither Rule 404 nor this rule will operate to bar the evidence; Rule 401 and 403
will continue to control.
15) RULE 413. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES
(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the
defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered
for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government
shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such
later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, offense of sexual assault means a crime under Federal law or the
law of a State (as defined in section 513 of title 18, United States Code) that involved-(1) any conduct proscribed by chapter 109A of title 18, United States Code;
(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of
another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's
body;
(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on
another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).
a) FRE 413 is a rule providing for the admissibility of evidence of defendants commission of another
offense or offenses of sexual assault in a criminal prosecution for sexual assault. This evidence is
admissible and may be considered for its bearing on any matter to which it is relevant. There is no
express requirement that the defendant was convicted of the prior offense in order for this evidence to be
admissible.
i) FIFTEEN DAY NOTICE REQUIREMENT
(1) The prosecutor must disclose to the defendant any evidence it intends to offer under this rule, at
least 15 days prior to the scheduled trial date. In that notice, the prosecutor shall include
statements of witnesses or a summary of the substance of any testimony that is expected to be
offered. The Court has discretion as to whether to allow notice after the 15 day period has
expired, provided good cause is shown.
ii) WHAT CONDUCT CONSTITUTES AN OFFENSE OF SEXUAL ASSAULT
(1) Any direct or indirect contact with the genitals or anus without consent. Any sexual pleasure
from the infliction of death, injury, or physical pain on another person.
16) RULE 414. EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the
defendant's commission of another offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government
shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such
later time as the court may allow for good cause.
39

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, child means a person below the age of fourteen, and offense of
child molestation means a crime under Federal law or the law of a State (as defined in section 513 of title 18,
United States Code) that involved-(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a
child;
(2) any conduct proscribed by chapter 110 of title 18, United States Code;
(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;
(4) contact between the genitals or anus of the defendant and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a
child; or
(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).
a) FRE 413 is a rule providing for the admissibility of evidence of defendants commission of another
offense or offenses of child molestation in a criminal prosecution for child molestation. This evidence is
admissible and may be considered for its bearing on any matter to which it is relevant. There is no
express requirement that the defendant was convicted of the prior offense in order for this evidence to be
admissible.
i) FIFTEEN DAY NOTICE REQUIREMENT
(1) The prosecutor must disclose to the defendant any evidence it intends to offer under this rule, at
least 15 days prior to the scheduled trial date. In that notice, the prosecutor shall include
statements of witnesses or a summary of the substance of any testimony that is expected to be
offered. The Court has discretion as to whether to allow notice after the 15 day period has
expired, provided good cause is shown.
ii) WHAT CONDUCT CONSTITUTES AN OFFENSE OF SEXUAL ASSAULT
(1) Any direct or indirect contact with the genitals or anus of a child under 14 years of age without
their consent. Any sexual pleasure from the infliction of death, injury, or physical pain on a child
under 14 years of age.
17) RULE 415. EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL
ASSAULT OR CHILD MOLESTATION
(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of
conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of
another offense or offenses of sexual assault or child molestation is admissible and may be considered as
provided in Rule 413 and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom
it will be offered, including statements of witnesses or a summary of the substance of any testimony that is
expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court
may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
a) This rule applies FRE 413 and FRE 414 to civil actions under similar terms and conditions. Thus, if the
damage or relief is predicated on a partys alleged commision of sexual assault or child molestation,
evidence of other acts of this type may be admissible.
b) FRE 413 415: CONVICTION IS NOT REQUIRED
i) In line with this judgment, the rules do not impose arbitrary or artificial restrictions on the
admissibility of evidence. Evidence of offenses for which the defendant has not previously been
prosecuted or convicted will be admissible, as well as evidence of prior convictions. No time limit is
imposed on the uncharged offenses for which evidence may be admitted; as a practical matter,
evidence of other sex offenses by the defendant is often probative and properly admitted,
notwithstanding very substantial lapses of time in relation to the charged offense or offenses.
(1) NOT CLEAR WHETHER FRE 403 APPLIES
40

(a) There does not appear to be any exclusion of the FRE 403 balancing test. However, the
purpose of the rule was specifically to make highly prejudicial evidence admissible against
the accused. Thus, the nature of these rules may preclude use of the FRE 403 balancing test.
COMPETENCY OF WITNESSES
a) An examination of a witness will normally proceed through four stages: (1) direct examination; (2)
cross-examination; (3) redirect examination; (4) re-cross examination.
i) DIRECT EXAMINATION
(1) The party who called the witness engages in direct examination. Thus, if the plaintiffs attorney
calls the defendant to the stand, this would still be considered direct examination, even though
the party would clearly be hostile. Once direct examination is complete, the opposing counsel
may then conduct a cross-examination of the witness. After the cross-examination is completed,
the calling side may then conduct redirect examination. Finally, the cross-examining side may
conduct a brief recross-examination.
(a) DISCRETION OF COURT
(i) Under FRE 611, the judge has discretion as to allowing subsequent re-direct and recrossexaminations of the parties. The judge may exercise reasonable control over the mode,
order, and presentment of evidence. Thus, a judge may be able to exclude further
testimony if it is a waste of time. In addition, under FRE 611(a), cross-examination
should be limited to the subject matter of direct examination and to matters effecting the
credibility. However, the judge has the discretion as to whether to permit inquiry into
additional matters. Often certain issues may not be initially apparent or may require
examination into in order to clear up confusion.
1. LEADING QUESTIONS
a. Use of leading questions is permitted on cross-examination. Leading questions
may be used even if the party is friendly to the cross-examining attorney.
However, when it is a direct examination, leading questions generally may not be
used under FRE 611. However, the judge has the discretion to permit these
questions as necessary to develop the testimony of the witness on direct (child
witnesses). Also, when the party is a hostile witness, an adverse party or one
identified with an adverse party, interrogation may be by leading questions.
i. Leading Question: Was defendant driving faster than the speed limit at the
time he hit you? This is leading, since it suggests that the attorney wants a
yes answer. Obviously, the plaintiff wants to attribute fault to the defendant.
A better way to asking the question would be to say how fast was the
defendant traveling (take out the over the speed limit part).
(ii) OTHER TYPES OF QUESTIONS
1. A question might be stricken by the court if it is either argumentative or misleading.
a. ARGUMENTATIVE
i. An argumentative question is one which tries to get the witness to agree with
the counsels interpretation of the evidence. These types of questions are
more common on cross-examination than on direct. There is often an element
of badgering the witness involved.
b. MISLEADING
i. A misleading question is one that assumes as true a fact that is either not in
evidence or is in dispute. It is often a trick question. For example, when did
you stop beating your wife. This is misleading if there is no, or if there is
disputed evidence, of wife-beating. Any answer by the witness would be an
implicit admission that he has beaten her.
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(b) DEFINITIONS
(i) Bias: Motive to lie or slant testimony. For example, bias can be shown by showing a
payment in exchange for testimony, an interest in the party or action, or membership in
the same groups or organizations.
(c) FIVE MODES OF IMPEACHMENT
(i) Dishonesty; Inconsistency; Bias; Incapacity; Specific Contradiction.
FRE 601 through FRE 606 relate to the competency of witnesses. In general, the federal rules provide that
everyone except judges and jurors is competent to testify.
1) RULE 601. GENERAL RULE OF COMPETENCY
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions
and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of
decision, the competency of a witness shall be determined in accordance with State law.
a) This rule effectively eliminates all grounds of incompetency not specifically recognized by the rules. As
a result, rules that may have precluded testimony based on religious belief, conviction of a crime, or
connection with an interested party, no longer apply. However, some states may still have these
common law exclusions. If so, competency is determined by State law when the action is one based on
diversity jurisdiction.
i) ONE CAN NO LONGER EXCLUDE BASED ON CREDIBILITY
(1) The effect of FRE 601 is to recognize that witnesses should not be excluded, even when they
may be inherently bias. These types of questions go to the credibility of the witness and the
weight of the evidence, not to questions of admissibility. Thus, if a hearsay statement is
excluded for failing to have trustworthiness, one should consider whether that exclusion is
based on the party being interested or whether it is instead based on a failure to meet the
circumstantial guarantees of trustworthiness (passenger in car).
ii) DEAD MANS ACTS
(1) A Dead Mans Act disqualifies a party when the other party to the conversation has since died and
there is no third party witness. For example, if an oral contract was agreed to between the two
parties, but one subsequently died, the surviving party could not testify as to that oral contract.
As you can imagine, the results of this rule could be inherently unfair a greater problem than it
was intended to stop (fraudulent claims). Thus, the rule has been abolished by the federal rules
and only applies in diversity jurisdiction cases.
iii) MENTAL OR MORAL QUALIFICATIONS
(1) There exists no mental or moral qualifications under the FRE. These types of standards are too
difficult to apply. In addition, it is difficult to find a witness completely without capacity to
testify. Also, these issues are one suited for the jury. The jury should make the decision as to
weight and credibility, subject only to judicial authority to review the sufficiency of the evidence.
In addition, standards of moral qualification in modern practice consist of evaluating a persons
truthfulness in terms of his own answers about it. Further, a duty of candor is impressed upon
the witness pursuant to the requirement of oath or affirmation under FRE 603.
(a) RELIGIOUS BELIEF, CONVICTION, AND MARITAL RELATIONSHIP
(i) Admissibility of religious belief as a ground of impeachment is treated under FRE 610.
Conviction of crime as a ground of impeachment is subject of FRE 609.
(b) BIAS, CREDIBILITY, CAPACITY, PERCEPTION
(i) Interest in the outcome of the litigation and mental capacity (perception) are highly
relevant to credibility and require no special treatment to render them admissible along
with other matters bearing upon the perception, memory, and narration of witnesses.
2) RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the
42

witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion
testimony by expert witnesses.
a) The rule requires that a witness who testifies to a fact which can be perceived by the senses must have
had an opportunity to observe and actually observed the fact being testified to. This requirement insures
that the most reliable sources of information are presented to the fact finder.
i) FOUNDATIONAL REQUIREMENTS LENIENT STANDARD
(1) The foundational standards to establish personal knowledge are not very strict. The witness may
present testimony as to his own personal knowledge. Thus, personal knowledge is not an
absolute, but may be based on the witnesses own belief from his own personal perception (what
he thinks he saw, not what he actually saw). This rule is a specialized application of FRE 104(b)
on conditional relevancy.
ii) HEARSAY STATEMENTS
(1) FRE 602 does not govern the situation of a witness who testifies to a hearsay statement provided
he has personal knowledge as to the making of the statement. The rule would prevent the
witness from testifying as to the subject matter of the hearsay statement, if he has no personal
knowledge as to it (can only testify as to what you have personal knowledge of, in this case the
statement itself). However, even a hearsay statement can be subject to FRE 602. For example,
the declarant makes a statement, the declarant does not have personal knowledge as to the
subject matter of that statement, it should be excluded under FRE 602.
iii) EXPERT WITNESSES
(1) Expert witnesses may not need personal knowledge in order to state an opinion regarding a
matter.
3) RULE 603. OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken the witness' conscience and impress the witness'
mind with the duty to do so.
a) The rule is designed to afford the flexibility required in dealing with religious adults, atheists,
conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to
tell the truth. There is no requirement of a specific verbal formulation.
4) RULE 604. INTERPRETERS
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the
administration of an oath or affirmation to make a true translation.
a) The rule simply requires that the interpreter be subject to qualification as an expert. Presumably the
administration of the oath is to insure that the interpreter translates the witnesses testimony accurately
and truthfully.
5) RULE 605. COMPETENCY OF JUDGE AS WITNESS
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to
preserve the point.
a) A judge is subject to a broad rule of incompetency and may not testify in trial as a witness. The rule
provides an automatic objection. Otherwise, an opponent would be confronted with a choice
between not objecting, with the result of allowing the testimony, and objecting, with the probable result
of excluding the testimony but at the price of continuing a trial before a judge likely to feel that his
integrity has been attacked.
7) RULE 606. COMPETENCY OF JUROR AS WITNESS
(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in
which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity
to object out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment,
43

a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to
the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a
juror may testify about (1) whether extraneous prejudicial information was improperly brought to the
jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3)
whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of
any statement by the juror may not be received on a matter about which the juror would be precluded from
testifying.
a) Obviously, a jury cannot testify before the jury in the trial of the case in which the jury is sitting. In this
situation, the jury is not impartial. If a juror is called to testify, the opposing party should be allowed to
object outside of the presence of the jury. However, it is likely that if a juror is removed from the jury,
and allowed to testify, this would result in a mistrial anyway.
i) INQUIRY INTO VALIDITY OF VERDICT IS PERMITTED IN SOME CIRCUMSTANCES
(1) The values sought to be promoted by excluding evidence disputing the validity of the verdict or
indictment is based on the need to insure freedom of deliberation, stability, finality of verdicts,
and to protect jurors against annoyance and embarrasment. On the other hand, putting verdicts
beyond the effective reach can only promote irregularity and injustice. Thus, the present rule
allows some accommodation between the competing considerations.
(a) CIRCUMSTANCES WHERE PERMITTED
(i) The mental operations and emotional reactions of jurors in arriving at a given result
would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors, and
invite tampering and harrassment. The manner in which the jury reached its verdict, and
the components of deliberation, including arguments, statements, discussions, mental and
emotional reactions, or votes, are insulated from inquiry. However, this does not
foreclose testimony by a juror as to prejudicial extraneous information or influences
injected into or brought to bear upon the deliberative process. Thus, a juror is recognized
as competent to testify as to statements by the bailiff, the introduction of a prejudicial
newspaper article, or other outside influences on the jury (threats to family or bribery).
However, a verdict cannot be attacked based on the drunken condition of the jury, or
other irregularity in the jury proceedings.
1. MAY ALSO TESTIFY TO A MISTAKE IN THE JURY FORM
a. A juror may also testify to prove that the verdict reported was the result of a
mistake in entering the verdict on the verdict form. This allows the juror to testify
to clear up a clerical error. However, this does not permit proof of
misunderstanding or mistake in the jurors decision, only that the verdict entered
on the form was not his decision (ie. confusion regarding the damages awarded
between net and gross figure, but admits he agreed to the figure).
OVERVIEW OF IMPEACHMENT
1) IMPEACHMENT OF WITNESSES
a) There are five main ways of impeaching a witness (of destroying the witness credibility): (1) by
attacking witness general character (by showing past crimes, past bad acts, or bad reputation); (2) by
showing a prior inconsistent statement by witness; (3) by showing that witness is biased; (4) by showing
that witness has a sensory or mental defect; and (5) by other evidence (a second witness testmony) that
contradicts witness testimony.
i) YOU MAY IMPEACH YOUR OWN WITNESS
(1) The Federal Rules completely abandon the common law rule which prohibited the impeachment
of your own witness. FRE 607 provides that the credibility of a witness may be attacked by any
44

party, including the party calling the witness. In addition, a criminal defendant may have a 6 th
Amendment right to confront witnesses he has called.
ii) IMPEACHMENT BY PRIOR CRIMINAL CONVICTION
(1) The FRE includes restrictions which makes it harder to use prior convictions to impeach a
witness. Generally, the FRE makes a distinction between the type of crime (felony or
misdemeanor), in addition to whether the crime is one of dishonesty.
(a) CRIMEN FALSI
(i) A crime that includes an element of dishonesty may be used to impeach a witness,
regardless of whether it was felony or misdemeanor, and regardless of how prejudicial it
may be (FRE 403 test does not apply). Examples of crimen falsi crimes include: perjury,
false statement, criminal fraud, embezzlement, taking property by false pretenses;
counterfeiting; forgery; filing false tax returns.
1. OTHER CRIMES OF THEFT
a. FRE 609(a) does not allow crimes of other crimes of theft to be admitted as
crimen falsi. For example, shoplifting, robbery, and receiving stolen goods are
not crimen falsi.
b. DO NOT LOOK TO AT UNDERLYING FACTS
i. A crime is not treated as crimen falsi unless it is defined so as to require proof
of dishonesty or false statement. It is not enough that the defendant actually
behaved in a deceitful way. For example, if the defendant sees a victim on the
street, lures her into an alley to rape her, this would not be a crime of crimen
falsi. The crime of rape does not require proof of dishonesty.
(b) FELONY CRIMES
(i) Prior felony crimes may be admitted against the defendant in a criminal case only if the
court determines that its probative value of admitting the evidence outweighs its
prejudicial effect. Additional restrictions apply to the use of a conviction against a
witness.
1. WITNESS OTHER THAN AN ACCUSED
a. The above-stated rule only applies when the witness is a criminal defendant. Any
other witness gets no special protection against impeachment. Instead, FRE 403
applies.
2. OLD CRIMES & OTHER MISDEMEANORS
a. If the crime was a misdemeanor not involving dishonesty or false statement, it
may not be used for impeachment at all. If more than 10 years have elapsed from
both the conviction and the prison term for that conviction, the impeachment may
not be used unless there are specific facts and circumstances that make the
probative value of the conviction substantially outweigh its prejudicial effect (a
reverse balancing test).
3. INELIGIBLE CONVICTIONS
a. Certain types of convictions are excluded by special rules. If witness was
pardoned based on a finding of innocence, the conviction may never be used. If
the pardon was because the witness was rehabilitated, it may be used for
impeachment only if witness has been convicted of a subsequent felony. A
juvenile adjudication of defendant may not be used to impeach him. 609(d)(c)
2) IMPEACHMENT BY PRIOR BAD ACTS
a) The Federal Rules basically follow the common-law approach to prior bad act impeachment (FRE
608(b). However, only prior bad acts that are probative of truthfulness may be asked about. For
example, a prior bad act of lying on a job application or embezzlement could be questioned. However,
the fact that the witness killed his wife, but was never tried about it, does not make it more likely that he
is now lying.
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i) NO EXTRINSIC EVIDENCE
(1) Generally, prior bad acts must be shown only through cross-examination, not through the
admission of extrinsic evidence. This type of evidence would be evidence of a specific act, not
the same as reputation or opinion evidence.
(a) DISCRETION OF COURT
(i) All questions regarding prior bad acts are at the discretion of the court. The extent to
which the questioner has a good faith basis for believing that a witness really committed
the act will be a factor the court will consider. Thus, a court will logically exclude any
evidence that lacks a good faith basis (not relevant) or, alternatively, falls under FRE 403.
3) IMPEACHMENT BY OPINION AND REPUTATION REGARDING CHARACTER
a) FRE 608(a) provides that witness (extrinsic evidence) may testify as to his opinion that another witness
is a liar or that the witness has a reputation for being a liar. Again, there are no specific instances of
untruthfulness allowed cant testify as to specific acts.
4) IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT
a) Witness credibility may generally be impeached by showing that he has made a prior inconsistent
statement. However, before the prior inconsistent statement may be admitted to impeach him, a
foundation must be laid.
i) LIBERAL FOUNDATION REQUIREMENT
(1) A witness must be given a chance to explain or deny the prior inconsistent statement, but this
opportunity does not have to be given to him until after the statement has been proved (by
testimony from witness two that witness one made the prior inconsistent statement).
(a) WRITTEN STATEMENT
(i) If the prior inconsistent statement is written, FRE 613(a) allows the examiner to first get
the witness to deny having made the prior statement, and then admit it into evidence.
(b) EXTRINSIC EVIDENCE
(i) Special rules limit the questioners ability to prove that witness made a prior inconsistent
statement by extrinsic evidence. Extrinsic proof can only be made when two
requirements are satisfied.
1. COLLATERAL
a. First, at common law extrinsic proof of the prior inconsistent statement is not
allowed if the statement involved only collateral matters. Thus, the statement
must relate to a material issue in the case, or to some other fact that could be
proved even if there was no claim that witness had contradicted himself (witness
prior statement showing bias could be introduced to contradict his trial testimony
that he is unbiased, since extrinsic evidence could be used to show witness bias
even if witness did not deny the bias). Nothing in the Federal Rules expressly
bars extrinsic proof of a prior inconsistent statement on a collateral matter (though
the trial judge could keep such testimony out under FRE 403s balancing test).
2. MATERIAL
a. Also, extrinsic evidence of the prior inconsistent statement is allowed only if the
inconsistency between the prior statement and the trial testimony is material (the
variation is great enough to cast doubts on the veracity of witness present
testimony).
5) IMPEACHMENT FOR BIAS
a) All courts allow proof that the witness is biased. Witness may be shown to be biased in favor of a party
(witness and plaintiff are friends or relatives), or biased against a party (witness and defendant were
once involved in litigation). Witness interest in the outcome may be also shown as a form of bias (if
witness is a expert, the fact that he is being paid a fee for his testimony is generally allowed as showing
that he has an interest in having the case decided in favor of the party retaining him).
i) EXTRINSIC EVIDENCE
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(1) Bias may be shown by use of extrinsic evidence. However, most courts require a foundation
before extrinsic evidence may be used for this purpose: the examiner must ask witness about the
alleged bias, and only if witness denies it may the extrinsic evidence be presented.
6) IMPEACHMENT BY SENSORY OR MENTAL DEFECT
a) Witness may be impeached by showing that his capacity to observe, remember, or narrate events
correctly has been impaired. For example, witness may be shown to have such poor eyesight that he
couldnt have seen what he claims to have seen.
i) ALCOHOL AND DRUGS
(1) Witness may be impeached by showing that he was drunk or high on drugs at the time of the
events he claims to have witnessed. However, courts are split regarding whether a witness may
be shown to be a habitual or addicted user of alcohol and drugs. Many courts will not allow this
type of testimony if there is no showing that the witness was drunk or high at the time of the
event in question.
7) RELIGIOUS BELIEFS
a) A witness may not be impeached by showing that he does not believe in god. This type of impeachment
is prohibited by FRE 610.
8) REHABILITATING IMPEACHED WITNESS
a) A lawyer may not offer evidence supporting his witness credibility unless that credibility has first been
attacked by the other side. This is the rule against bolstering ones witness. Thus, an attorney will not
be able to use prior statements in an attempt to establish credibility of his witness until that credibility
has been attacked.
i) PRIOR IDENTIFICATION
(1) The rule against bolstering does not apply where the witness has made a prior out-of-court
identification. Most courts will allow this type of statement to be brought out as part of the
direct examination of the witness.
b) REHABILITATION
i) A witness credibility may be rehabilitated. The attorney may attempt to repair the damage done by
the opposing counsel.
(1) MUST MEET THE ATTACK
(a) The rehabilitating evidence must meet the attack. The evidence must support witness
credibility in the same respect in which the credibility had been attacked. For example, if a
witness is attacked due to a relationship with the plaintiff, the opposing counsel cannot show
his good character. The evidence does not correspond to the attack.
(2) GOOD CHARACTER
(a) However, if the witness credibility is attacked by evidence that would show that he is
generally untruthful, the party may then show that he has a good character for truthfulness.
Evidence of a good character for truthfulness may be used to rebut evidence that: (1) the
witness has a bad reputation for truthfulness; (2) that witness has a bad opinion of witness
truthfulness; (3) that witness has been convicted of a crime; or (4) that witness has committed
a prior bad act; and perhaps; (5) that witness has been subjected to a slashing crossexamination by the opponent, implying or stating that witness is a liar.
(i) ATTACK ON PRESENT TESTIMONY
1. But if the attack on witness has merely been to show that his testimony in the present
case is inaccurate, witness credibility may not be rehabilitated by a showing of his
general good character for truthfulness. Thus, good character evidence will not be
allowed to rebut evidence that: (1) witness is biased because he is related to the other
party; (2) witness has given erroneous testimony in this case, perhaps through honest
mistake.
(ii) PRIOR INCONSISTENT STATEMENT
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1. If witness has been attacked by a showing that he made a prior inconsistent statement,
the courts are split. Most treat this as an implicit attack on witness general
credibility, and thus allow him to be rehabilitated by a showing of general good
character for truthfulness.
(3) PRIOR CONSISTENT STATEMENT
(a) The fact that witness has made a prior consistent statement (an out-of-court statement that
matches his trial testimony) may be used only to rebut an express or implied charge that
witness trial testimony is a recent fabrication or the product of improper influence or motive.
This is the common-law rule and is also carried out by FRE 801
(i) ATTACK ON GENERAL CHARACTER
1. Thus, if witness is attacked by showing his prior criminal convictions, prior bad acts,
or his general bad reputation for veracity, his credibility may not be rehabilitated by a
showing that he made prior consistent statements.
(ii) PRIOR INCONSISTENT STATEMENTS
1. The opponents showing that witness has made a prior inconsistent statement will not,
by itself, entitle the proponent to show that witness has also made a prior consistent
statement. The proponent must demonstrate that the adversarys use of the prior
inconsistent statement amounts to an express or implied claim that witness has
recently made up his trial testimony, or is lying because of improper influence or
ulterior motives. Thus if the showing of the prior inconsistent statement can be
reasonably interpreted as suggesting that witness is merely honestly mistaken, witness
cannot be rehabilitated by the prior consistent statement.
(iii)
BEFORE MOTIVE AROSE
1. The proponent who wants to use a prior consistent statement must show that the prior
statement was made before the alleged motive to fabricate or improper influence
arose. This rule applies both at common-law and under FRE 801.
IMPEACHMENT OF WITNESSES
8) RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
a) The traditional rule against impeaching ones own witness is abandoned as being based on a false
premise. A party does not hold out his witness as worthy of belief, since he rarely has a free choice in
selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary.
9) RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported
by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer
only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or
otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may
not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness'
character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the
accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate
only to character for truthfulness.
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a) Generally, the credibility of a witness may be attacked or supported by opinion or reputation evidence,
but such evidence may only refer to the witness character for truthfulness or untruthfulness. In
addition, evidence of a witness truthfulness may only be admitted after his character for truthfulness has
been attacked (cant bolster the witness credibility before it is attacked).
i) STRICTLY LIMITED
(1) The witness credibility is often of central importance at trial and, as such, inquiry is allowed into
the witness character for veracity. However, it is strictly limited and does not permit evidence as
to general character. Thus, the result is to sharpen relevancy, reduce surprise, waste of time, and
confusion. Evidence in support of credibility may only be offered once it has been attacked
(cant bolster before credibility is attacked).
ii) BIAS OR INTEREST IS NOT PRECLUDED BY THIS RULE
(1) The rule limits the enormous needless consumption of time which a contrary practice would
entail. Opinion or reputation that the witness is untruthful specifically qualifies as an attack
under the rule and evidence of misconduct, conviction of a crime, and corruption fall within this
category. However, evidence of bias or interest does not. Thus, you may present evidence of
bias, even extrinsic evidence, and not be subject to this rule.
iii) FORECLOSES USE OF EVIDENCE OF SPECIFIC INCIDENTS EXCEPT IN TWO CASES
(1) The rule generally bars evidence of specific instances of conduct of a witness for the purposes of
attacking or supporting his credibility. There are, however, two exceptions: (1) specific instances
are provable when they have been the subject of a criminal conviction, and (2) specific instances
may be inquired into on cross-examination of the principal witness or of a witness giving an
opinion of his character for truthfulness.
(a) A WITNESS MAY BE ASKED ABOUT SPECIFIC INSTANCES OF
TRUTHFULNESS OR UNTRUTHFULNESS OF ANOTHER WITNESS AS TO
WHICH CHARACTER THE WITNESS BEING CROSS-EXAMINED HAS
TESTIFIED OR AS TO HIS OWN
(i) Particular instances of conduct, though not the subject of criminal conviction, may be
inquired into on cross-examination of the principal witness himself or of a witness who
testifies concerning his character for truthfulness. Cross-examination could be of the
witness himself or of another witness who testifies as to his character for truthfulness
or untruthfulness. Effective cross-examination demands that some allowance be made
for going into matters of this kind, but the possibilities of abuse are substantial.
Consequently safeguards are erected in the form of specific requirements that the
instances inquired into be probative of truthfulness or its opposite and not remote in time.
Also, the overriding protection of FRE 403 requires that probative value not be
outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury.
FRE 611 also bars harrassment and undue embarrassment.
(2) A WITNESS, INCLUDING THE ACCUSED, DOES NOT WAIVE HIS 5 th AMENDMENT
RIGHTS BY TESTIFYING
(a) While an accused, unlike an ordinary witness, has an option whether to testify, if the option
can be exercised only at the price of opening up inquiry as to any and all criminal acts
committed during his whole lifetime, the right to testify would not possess much vitality.
Thus, both witnesses and the accused may plead the 5th as to prior criminal conduct.
iv) EXTRINSIC EVIDENCE MAY BE OFFERED FOR OTHER GROUNDS OF
IMPEACHMENT
(1) By limiting the application of the Rule to proof of a witness character for truthfulness, the rule
leaves the admissibility of extrinsic evidence offered for other grounds of impeachment.
Examples include contradiction, prior inconsistent statement, bias, and mental capacity.
Admissibility of prior inconsistent statements offered for impeachment is governed by FRE 402
and 403. Similarly, extrinsic evidence offered to show bias is also governed by FRE 402 & 403.
49

10) RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General rule.--For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to
Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be
admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial
effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if
it readily can be determined that establishing the elements of the crime required proof or admission of an act
of dishonesty or false statement by the witness.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that
conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial
effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless
the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.--Evidence of a conviction is not admissible
under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or
other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has
not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year,
or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a
finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The
court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the
accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is
satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible.
a) The rule incorporates certain basic safeguards, in terms applicable to all witnesses but of particular
significance to an accused who elects to testify. These protections include the imposition of definite time
limitations, giving effect to demonstrated rehabilitation, and generally excluding juvenile adjudications.
i) CRIMES ARE DIVIDED INTO TWO CATEGORIES
(1) For the purposes of impeachment, crimes are divided into two categories by the rule: (1) those of
felony grade, without regard to the nature of the offense; and (2) those involving dishonesty or
false statement, without regard to the grade of the offense. Crimes are not limited to those which
are a violation of federal law.
(a) GENERALLY NOT ADMISSIBLE IF MORE THAN TEN YEARS HAVE ELAPSED
(i) Evidence of a conviction is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date. After ten years following a
person's release from confinement (or from the date of his conviction) the probative value
of the conviction with respect to that person's credibility diminished to a point where it
should no longer be admissible.
1. JUDGE HAS DISCRETION TO ALLOW OLDER CONVICTIONS
a. Although convictions over ten years old generally do not have much probative
value, there may be exceptional circumstances under which the conviction
substantially bears on the credibility of the witness. In these situations, the court
has discretion to admit convictions over 10 years old, but only upon a
50

determination by the court that the probative value substantially outweighs its
prejudicial effect (reverse balancing).
b. SUFFICIENT NOTICE MUST BE GIVEN
i. The Proponent must give the adverse party sufficient advance written notice
of intent to use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence. A written notice, in order to
give the adversary a fair opportunity to contest the use of the evidence, will
ordinarily include such information as the date of the conviction, the
jurisdiction, and the offense or statute involved. In order to eliminate the
possibility that the flexibility of this provision may impair the ability of a
party-opponent to prepare for trial, the Conferees intend that the notice
provision operate to avoid surprise.
c. INTENDED TO BE USED VERY RARELY
i. It is intended that convictions over 10 years old will be admitted very rarely
and only in exceptional circumstances. The rules provide that the decision be
supported by specific facts and circumstances thus requiring the court to make
specific findings on the record as to the particular facts and circumstances it
has considered in determining that the probative value of the conviction
substantially outweighs its prejudicial impact. It is expected that, in fairness,
the court will give the party against whom the conviction is introduced a full
and adequate opportunity to contest its admission.
2. RESTRICTION ON IMPEACHMENT OF ACCUSED
a. An accused may only be impeached with a prior felony conviction if the probative
value of admitting the evidence outweighs its prejudicial effect to the accused.
(b) CRIMES INVOLVING DISHONESTY OR FALSE STATEMENT
(i) Also subject to the 10 year time limit, an accused along with all other witnesses may be
impeached with prior convictions involving dishonesty if he testifies as a witness.
However, this prior conviction is still subject to the FRE 403 balancing test.
1. WHAT CRIMES DOES THIS INCLUDE
a. Crimes such as perjury or subornation of perjury, false statement, criminal fraud,
embezzlement or false pretense, or any other offense, in the nature of crimen falsi
the commission of which involves some element of untruthfulness, deceit or
falsification bearing on the accused's propensity to testify truthfully. It does not
include crimes such as larceny or theft, even though those crimes have an element
of dishonesty to them. Evidence of all other convictions is inadmissible under
this subsection, irrespective of whether the witness exhibited dishonesty or made
a false statement in the process of the commission of the crime of conviction.
Thus, evidence that a witness was convicted for a crime of violence, such as
murder, is not admissible under Rule 609(a)(2), even if the witness acted
deceitfully in the course of committing the crime.
2. ACCUSED MISREPRESENTATION OF EXISTENCE OF CRIMES
a. Even if the crime in question is not otherwise admissible in impeachment, the
defendant may open the door to the admission of the crime in impeachment.
Thus, if the defendant offers testimony that he has never been convicted of a
crime, the prosecution may then produce evidence that he has a record of prior
convictions. However, this only applies if the statements were made in response
to defense counsels questions or made gratuitously in the course of crossexamination. Thus, the prosecution cannot seek to circumvent the rule by asking
questions which would elicit such a representation from the defendant.
(2) EVIDENCE OF PRIOR CONVICTION PERMITTED IF WITNESS TESTIFIES
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(a) Evidence of a prior conviction is not admissible under this rule if the witness does not testify.
A court record of a prior conviction is admissible to prove that conviction if the witness has
forgotten or denies its existence.
ii) PARDON OR ITS EQUIVALENT
(1) A conviction that has been pardoned or annuled is not admissible under this rule provided that
the person has not been convicted of a subsequent felony crime. A subsequent conviction of an
offense not a felony is insufficient to rebut the finding that the witness has been rehabilitated.
However, if the pardon is based on a later finding of innocence, a subsequent conviction will
have no effect on the pardon. The pardon will remain nullified and will not be admissible under
this rule.
iii) JUVENILE ADJUDICATION
(1) Generally, an adjudication of guilt as a juvenile is not admissible in impeachment. Juvenile
procedings are often informal, may have a diminished requirement of proof, and may depart
from the standards of criminal trials. In addition, certain practical problems of administration are
raised. Juvenile legislation often requires that the records be kept confidential and that they be
destroyed after a short period of time.
iv) PENDENCY OF APPEAL
(1) A presumption of correctness which ought to attend judicial proceedings supports the position
that pendency of an appeal does not preclude use of a conviction for impeachment. The
pendency of an appeal is a qualifying circumstance that is properly considerable.
b) EXTRINSIC EVIDENCE ALLOWED NOT LIMITED TO CROSS-EXAMINATION
i) The rule was amended to remove a limitation tha the conviction may only be elicited during crossexamination. It is common for witnesses to reveal on direct examination their convictions to remove
the sting of impeachment. However, the amendment does not contemplate that a court will permit
proof of prior convictions through testimony, which might be time-consuming and possibly more
prejudicial than a written record. FRE 403 and FRE 611(a) provide sufficient authority for the court
to protect against unfair or disruptive methods of proof.
c) FRE 403 APPLIES TO PROTECT ALL LITIGANTS AGAINST UNFAIR IMPEACHMENT
i) The general balancing test of FRE 403 applies to protect all litigants against unfair impeachment of
witnesses. The balacing test protects civil litigants, the government in criminal cases, and the
defendant ina criminal case who calls other witnesses.
(1) PRIOR CONVICTIONS OF GOVERNMENT WITNESSES
(a) The probability that prior convictions of an ordinary government witness will be unduly
prejudicial is low in most criminal cases. Since the behavior of the witness is not the issue in
dispute in most cases, there is little chance that the trier of fact will misuse the convictions
offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical
when the government objects to impeachment of its witnesses with prior convictions. Only
when the government is able to point to a real danger of prejudice that is sufficient to
outweigh substantially the probative value of the conviction for impeachment purposes will
the conviction be excluded.
11) RULE 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of
showing that by reason of their nature the witness' credibility is impaired or enhanced.
a) While the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of
showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of
showing interest or bias because of them is not within the prohibition.
12) RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or
52

undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as
may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on crossexamination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse
party, interrogation may be by leading questions.
a) This rule spells out the rules which govern the mode and order of interrogating witnesses, and when
presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective
working of the advesary system rests with the judge.
i) BROAD DISCRETION OF THE JUDGE
(1) Under FRE 611(a) the judge is granted broad discretion as to the conduct of the trial. The judge
may allow testimony in the form of a free narrative or the form of responses to specific
questions, and many other questions that may arise during trial which may only be solved by the
judges common sense. A judge may also exclude evidence based on waste of time (similar to
403). However, note that this rule does not require a balancing test and, as such, it can be argued
that it vests discretion in the judge. A judge may also intervene when the interrogation tactics
entail harassment, undue embarrassment, or are out of control. While the trial judge should
protect the witness from questions which go beyond the bounds of proper cross-examination and
are merely to harass, annoy, or humiliate, this protection should not foreclose efforts to discredit
witnesses.
ii) SCOPE OF CROSS-EXAMINATION
(1) Cross-examinationn is normally limited to the subject matter of direct examination and matters
affecting the credibility of the witness. However, the court has discretion to permit inquiry into
additional matters as if on direct examination. Often a judge may permit inquiry into additional
matters in order to avoid confusion, complication, or protraction of a case.
iii) LEADING QUESTIONS ON DIRECT ARE GENERALLY UNDESIRABLE
(1) Leading questions on direct examination are not desirable. However, there are some generally
accepted exceptions to this rule. Leading questions may be used when the witness is hostile,
unwilling, or biased. In addition, leading questions may be used with a child witness or an adult
that has communication problems. Also, leading questions could be used with a witness whose
recollection is exhausted or on undisputed preliminary matters. There is an almost total
unwillingness to reverse for infractions based on improper use of leading questions. The matter
is one that clearly falls within the area of control by the judge over the mode and order of the
interrogation and presentation, thus the rule is phrased as a suggestion rather than a command.
(a) LEADING QUESTIONS ON CROSS-EXAMINATION ARE PERMITTED
(i) Leading questions on cross-examination are permitted almost as a matter of right.
However, the use of ordinarily does furnish a basis to the judge to deny the use of
leading questions. An example of when the judge might want to restrict leading
questions is when the attorney is cross-examining his own witness (cross-examination in
form, rather than fact).
(b) SOME WITNESSES ARE AUTOMATICALLY HOSTILE
(i) Some witnesses are automatically regarded and treated as hostile. The rule permits the
leading questions when the witness is the opposing party or someone identified with the
opposing party.
13) RULE 612. WRITING USED TO REFRESH MEMORY
Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a
witness uses a writing to refresh memory for the purpose of testifying, either-(1) while testifying, or
53

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the
witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is
claimed that the writing contains matters not related to the subject matter of the testimony the court shall
examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the
party entitled thereto. Any portion withheld over objections shall be preserved and made available to the
appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this
rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects
not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the
interests of justice so require, declaring a mistrial.
a) If the witness memory is hazy, any item (picture, document, weapon, etc.) may be shown to the witness
in order to refresh his recollection. A witness may also use a writing to refresh his recollection. If the
writing is produced while the witness is testifying, the procedures in FRE 612(2) do not appear
mandatory.
i) NOT CONSIDERED EVIDENCE
(1) The item that is shown to the witness is not considered to be evidence. It is a stimulus to
produce evidence in the form of testimony from the witness. However, if the judge concludes
that the witness is really reading the document, instead of testifying from his refreshed
recollection, the judge may order the testimony stricken.
(a) CROSS-EXAMINATION
(i) The cross-examiner may examine the document or other item shown to the witness and
may use any part of the document during cross-examination. Further, the cross-examiner
may introduce parts of the document, that relate to the witness testimony, into evidence.
ii) BEFORE TESTIFYING (PRETRIAL HEARING)
(1) The court in its discretion may require an adverse party to produce a writing at hearing, and to
introduce those portions which relate to the testimony of the witness. If the writing contains
matters not related to the subject matter of the testimony, the court shall examine and excise
portions not so related.
14) RULE 613. PRIOR STATEMENTS OF WITNESSES
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement
made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the
witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of
justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in
rule 801(d)(2).
a) The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a
statement has been made when the fact is to the contrary. A witness may be questioned concerning a
prior statement made by that witness. If the party requests, the content of that statement must be
disclosed to the opposing counsel. Note that this rule applies to the content of the statement and does
not, in fact, require that the statement be available to be produced.
i) EXTINSIC EVIDENCE
(1) Extrinsic evidence of an inconsistent statement is not admissible unless the witness is afforded an
opportunity to explain or deny same and the opposite party is afforded an opportunity to
interrogate the witness. The rules does not specifiy when the statement, or how the statement is
to be produced. Instead, it only requires the opportunity that the witness be allowed to explain
(no particular time or sequence). Thus, several witnesses can be examined before disclosure of a
joint prior statement. However, the rule does not apply to admissions of a party-opponent.
15) RULE 614. CALLING AND INTERROGATION OF WITNESSES BY COURT
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(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all
parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the
time or at the next available opportunity when the jury is not present.
a) The judge has a well established authority to call witnesses. However, the judge should be careful not to
reflect, either by his conduct or actions, that he is not impartial. The juries may associate a witness to
the party calling him; however, in some situations this result may be desired in the interests of justice.
In addition, the judge should not be imprisoned by the case made by the parties.
i) QUESTIONING BY JUDGE
(1) The authority of the judge to question witnesses is also well established. However, this authority
is abused when the judge abandons his proper role and assumes that of an advocate.
ii) A PARTY IS NOT REQUIRED TO IMMEDIATELY OBJECT
(1) While the general rule is that a party should make a timely objection, this rule is relaxed when
the court is calling the witness. This is in order to alleviate the counsel from a difficult decision.
In addition, this relieves counsel from the embarrassment of objecting to questions by the judge
in the presence of the jury, while at the same time assuring that objections are made in apt time to
afford the opportunity to take corrective measures.
16) RULE 615. EXCLUSION OF WITNESSES
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party
who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the
presentation of the party's cause, or (4) a person authorized by statute to be present.
a) This rule allows the sequestering of witnesses. It has long been recognized as a means of discouraging
and exposing fabrication, inaccuracy, and collusion. This court has no discretion to refuse to sequester
the witnesses. If either party requests that the witnesses be sequestered, the court shall exclude those
witnesses. In addition, the court may, at its own discretion, order the witnesses excluded.
i) SEVERAL CATEGORIES OF PERSONS EXCEPTED
(1) Several parties are excluded from the operation of this rule. The exclusion of persons who are
parties would raise serious problems of confrontation and due process. These parties are not
subject to exclusion. A police officer may be designated as a representative of the government
under this rule.
(a) REASONS FOR ALLOWING POLICE OFFICER
(i) Many district courts permit the government to have an investigative agent at the counsel
table throughout the trial although the agent may also be a witness. The practice is a
permitted exception to this rule. The investigative agents presence may be extremely
important to government counsel, especially when the case is complex or involves some
specialized subject matter. The agent may be able to assist in meeting trial surprises
where the best prepared counsel would otherwise have difficulty.
HEARSAY RULE
CLASS NOTES
1) JUDGE DECIDES WHETHER ELEMENTS ARE MET
a) In deciding whether hearsay is admissible, the judge makes the initial determination under FRE 104(a).
Note that the rule was amended to prevent bootstrapping.
2) THE TESTIMONIAL IDEAL
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a) The Testimonial Ideal: An oath, appearance of the declarant, and cross-examination of the declarant will
assure greater reliability, truth, and allow the court to weed out any inconsistencies in testimony.
i) WHAT IS THE TESTIMONIAL IDEAL AIMED AT ACHIEVING
(1) Primarily, the testimonial ideal and, in fact, the purpose of the hearsay rule is to prevent certain
testimonial errors. These errors are: (1) perception errors; (2) memory errors; (3) naration errors;
and, (4) sincerity errors.
(a) WHY ARE THERE EXCEPTIONS TO THE HEARSAY RULE
(i) If the testimonial ideal is so crucial to preventing the testimonial errors, why have
exceptions to the hearsay rule? These exceptions are based on certain circumstantial
guarantees of trustworthiness. Is there reliability, is there trustworthiness in the hearsay.
3) ADMISSIONS
a) Personal knowledge is not required in regard to an admission by a party. Further, no guarantee of
trustworthiness is required. It also need not be against the interest of the party (if its against the interest,
it might be a declaration against interest). Also, dont forget about co-conspirator admissions. It will
probably be on the test.
1) HEARSAY THE FOUR TESTIMONIAL DANGERS
a) Hearsay testimony presents four dangers (testiminial infirmities): (1) ambiguity; (2) insincerity; (3)
incorrect memory; and, (4) inaccurate perception. Dangers that are inherent when a declarant is
unavailable for cross-examination.
i) THE TESTIMONIAL IDEAL
(1) The testimonial ideal is based on the belief that cross-examination, including the ability to
observe the witness demeanor during testimony, is the best method to avoid the above-stated
testimonial dangers. The testimonial ideal involves: (1) an oath (The witness testifies under oath
subject to penalty of perjury. This impresses upon the witness the need for candor.); (2) the
personal appearance of the witness (The jury may assess the witness responses and the witness
demeanor in order to assess his credibility); and, (3) cross-examination (Cross-examination
allows a party to test the witness memory, candor, and perception of the events. The opposing
party may cross-examine to determine the flaws in the witness testimony). The testimonial ideal
is considered important in establishing the reliability of the testimony.
(a) THE MYTH OF HEARSAY
(i) Hearsay evidence is excluded as it is considered highly unreliable. However, often
unreliable evidence that should be excluded is presented to the jury. We often allow
highly prejudicial evidence to be admitted, or evidence not used for the truth of the matter
asserted, based on the legal fiction that a jury will adhere to a limiting instruction and, as
such, use that evidence only to the extent it is admitted. Likewise, we allow a jury to
hear the testimony of a witness previously convicted of perjury, of an eyewitness with
questionable eyesight, and a co-conspirator who has received a deal from the prosecutor.
In all these instances, we expect the jury to weigh the evidence and credibility of the
testimony. However, in contrast, we do not believe that a jury is capable of weighing
hearsay evidence. Yet, this seems illogical as hearsay unlike other technical, confusing,
or prejudicial evidence within our collective common sense knowledge. In fact, very few
of us do not know what a rumor or gossip is and, as such, can often determine the weight
of the evidence, even hearsay evidence, with little risk of an unjust result. When one
considers that most hearsay evidence is either excluded or is subject to an exclusion, this
rule is at best arbitrary and illogical.
b) RELATIONSHIP TO FRE 403
i) Hearsay evidence should still be considered under FRE 403. For example, if the trustworthiness of
hearsay evidence is questionable, but that evidence is subject to an exception, then that evidence
should still be weighed under FRE 403. FRE 403 will still allow a court to exclude hearsay evidence
56

when it is determined that it lacks sufficient trustworthiness. Hearsay that lacks trustworthiness may
still be excluded as creating unfair prejudice or the potential to mislead the jury. Thus, a
balancing test under FRE 403 should be preformed when there are questions regarding the
trustworthiness of the hearsay and if the probative value is substantially outweighed by its potential
to cause unfair prejudice, it should be excluded. Note: Birdsongs analysis of hearsay typically
favors consideration of the trustworthiness as an additional element to be considered when
determining whether the evidence is excluded under a hearsay exception.
(1) UNITED STATES V. HERNANDEZ
(a) Even if hearsay evidence may be introduced, that evidence may still be excluded under FRE
403. The determination of unfair prejudice is left to the discretion of the court.
c) MULTIPLE HEARSAY
i) Each level of the proffered evidence must either be non-hearsay or fall under a hearsay exception.
Thus, if an investigators report states that defendant told me he was driving at 65 mph, the report
and the defendants statement must both fall under a hearsay rule. The two levels of hearsay are: (1)
the defendants orginal statement; and, (2) the investigators report regarding that statement.
However, each would fall under an exception. The defendants statement is an admission, the report
is a business record.
Rule 801. Definitions
The following definitions apply under this article:
(a) Statement. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
(b) Declarant. A declarant is a person who makes a statement
(c) Hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.
1) DEFINITION OF HEARSAY
a) Hearsay is an out-of-court statement, made by one other than the declarant while testifying at trial, to
prove the truth of the matter asserted. Generally, hearsay is not admissible except as provided by law or
rules of evidence. Oral, written, or conduct that is intended by the person to be an assertion may be
subject to the hearsay rule. However, statements made while at the present trial, which do not repeat the
out-of-court statements, are not hearsay. In order for a statement to be hearsay, it must be: (1) other than
one made by the declarant while testifying at the present trial or hearing; and, (2) it must be offered to
prove the truth of the matter asserted.
i) REASON FOR EXCLUDING HEARSAY
(1) Hearsay is excluded because it lacks reliability and may be subject to falsification. A declarant
that is unavailable cannot be cross-examined to insure accuracy and to guard against
falsification. Statements that are not made under oath do not impress upon the declarant the
solemnity of his statements. In addition, the lack of cross-examination and the inability of the
jury to assess the declarants credibility and demeanor at the time of the statement further
reduces the credibility of these statements. Thus, a hearsay statement may be excluded even if
the declarant is available to testify as to that previous statement. The hearsay rule restricts the
use of an out-of-court statement to prove the truth of the matter asserted, but does not prevent a
witness from testifying as to what he heard. Only if the out-of-court statement is being used to
prove a fact asserted (the truth of the matter asserted) is it subject to the hearsay rule.
(a) NEGATIVE HEARSAY
(i) A few courts have recognized negative hearsay. Negative hearsay is evidence that a
person did not mention a fact to a witness. Negative hearsay is very rare as the absence
of a statement often not qualify as assertive and, as such, cannot be shown to be the truth
of the matter asserted. For example, a lack of complaints, or lack of records as to a
specific problem, might be used to prove that the issue does not exist. The party, in this
situation, the party is attempting to assert the truth of the matter by negative implication.
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2) THE ELEMENTS OF HEARSAY

a) Hearsay testimony requires: (1) a statement; (2) made by a declarant; (3) not made by the declarant
while testifying at trial; and, (4) offered to prove the truth of the matter asserted.
i) STATEMENT
(1) Under FRE 801(a) a statement is an oral, written, or nonverbal conduct of a person that is
intended to be an assertion. One must distingish between assertive and nonassertive conduct.
Did the person intend to convey a message? If a fact, opinion, or agreement is not intended to be
expressed, it is not assertive. A person makes an assertion when that person speaks, writes, acts,
or fails to act with the intent to convey an expression of fact or opinion.
(2) NONASSERTIVE CONDUCT IS NOT HEARSAY
(a) Pointing a finger to identify a suspect or nodding a head to signify yes are examples of
conduct that is assertive. However, if no assertion is intended, the conduct is not hearsay.
Thus, if there is no intent to convey a message to another, the hearsay rule does not apply.
(i) NONASSERTIVE VERBAL CONDUCT IS NOT HEARSAY
1. Verbal statements are not hearsay if those statements are not assertions. Nothing is an
assertion unless it is intended to be one. For example, a witnesss testimony that a
caller stated Mr. Ed to place third, is not hearsay. The callers statement does not
assert that he was calling to place a bet, or that defendant accepted bets. Instead, no
clear message was conveyed and the statement does not establish whether or not the
defendant is a bookie. However, most verbal conduct will be an assertion.
a. SILENCE
i. Silence must be intended to be an assertion; otherwise, it is not hearsay. A
failure to complain is not treated as evidence that there is nothing to complain
about. In contrast, silence in the face of accusation might show that the
accusation was true and, as such, might be considered an assertion.
(ii) NONASSERTIVE NONVERBAL CONDUCT IS NOT HEARSAY
1. Nonverbal conduct that is not intended as an assertion is not hearsay. A man walking
down the street opens his umbrella when it starts to rain. This conduct is not hearsay
since the man did not open the umbrella to make an assertion, unless he intended to
signify to another that it is raining. Likewise, a doctor may place a sheet over a
corpse to signify to others that the person is dead (hearsay) or to mask the odor (not
hearsay). The party seeking to exclude nonassertive conduct has the burden of proof.
If conduct is ambigous, it will be resolved in favor of admissibility.
ii) MADE BY A DECLARANT
(1) A declarant is a person who makes a statement. A declarant must be distinguished from a
witness who testifies at the same trial. A declarant and a witness may, in fact, be the same person
at the trial as the declarants own previous out-of-court statements are subject to the hearsay rule.
Even when the declarant is present in the courtroom, the declarant cannot waive the hearsay rule.
Further, even if an out-of-court statement overcomes a hearsay objection, it may still be subject
to exclusion if the declarant lacks firsthand knowledge of the matter asserted. While FRE 602
imposes a personal knowledge requirement upon the testifying witness, the same requirement
often applies to hearsay declarants.
iii) NOT MADE BY THE DECLARANT WHILE TESTIFYING AT TRIAL
(1) A statement that is not made by the declarant while testifying at the present trial or hearing may
be subject to the hearsay rule. Thus, statements made at a prior proceeding or deposition may be
hearsay. Further, even when the declarant is a witness his previous out-of-court statements might
be hearsay.
iv) OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED
(1) A statement must be offered into evidence to prove the truth of the matter asserted for that
statement to be hearsay. If the statement is offered for any other purpose, it is not hearsay. For
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example, testimony is not hearsay when: (1) showing what the witness did in reliance of the
statement; (2) showing the effect on the listener; (3) explaining conduct in response to a
statement; (4) showing something was said; or (5) identifying what was said. For example, an
employee who overhears gossip about employees fired for complaining cannot use that
information to prove that people were fired. Instead, the information can be used to explain a
delay in reporting a problem. Also, testimony by a witness to a matter within his personal
knowledge is not hearsay. Finally, evidence may also be admissible as to an operative fact (a fact
that effects or establishes the legal relationship between the parties).
(2) STATEMENTS THAT DO NOT PROVE THE TRUTH OF THE MATTER
(a) Always consider whether the statement is being offered to prove the truth of the matter
asserted. Often one must consider whether a statement, if true, would prove or disprove a
point in contention. For example, if a police officer was to testify that John offered the police
officer $100.00 to have sex, this statement would not be hearsay in a solicitation prosecution.
The truth of the statement does not prove or disprove the crime of solicitation. Instead, it is
the act of offering money for sex which constitutes the crime of solicitation. Also, even if it
may be argued that the statement is hearsay, it is an operative fact. The offer to pay money is
an oral contract between the parties for sex. When a statement is hearsay, but is used for
another purpose, that statement typically is not admitted as substantive evidence. However,
courts should admit the evidence subject to a limiting instruction.
(i) OPERATIVE FACTS (VERBAL ACTS) ARE NOT HEARSAY
1. Operative facts are those facts that affect an existing legal relationship or legal claim.
They are words that create rights and duties. Instead of being offered for what they
say, they are offered for what they do. Even when the operative facts state the exact
matter sought to be proven, they are still considered nonhearsay. For example,
statements made regarding an oral contract are operative facts to that contract. Thus,
one can admit I agree to pay you in a breach of oral contract case. Also, ballots cast
in an election are not hearsay because the casting of a vote is a verbal act in which the
statement itself has a legal effect.
a. STATEMENTS MADE IN A CONSPIRACY
i. Many crimes involve operative facts. The words of co-conspirators, if not
admissible as an admission by a party-opponent, may sometimes be admitted
as verbal acts probative of the operation of the conspiracy (an agreement to
commit a crime is an illegal oral contract).
b. WORDS ACCOMPANYING AMBIGOUS PHYSICAL ACT ARE NOT
HEARSAY
i. Words that accompany an ambigous physical act are not offered for the truth
and are not hearsay. For example, Mobster gives Judge money stating, This
is in repayment of the loan you gave me last year. If this statement is offered
by Judge in defense of a bribary charge, this will not be hearsay. The words
that accompanied the payment gave the payment its legal effect - as a loan
repayment. As such, the words are operative facts and are not hearsay.
(ii) THE STATEMENT MADE IS THE CRIME NOT WHETHER ANY TRUTH IS
ASSERTED
1. It is a crime to state you will kill the present. Thus, the truth of the matter asserted is
not relevant. It does not matter if you really intended to kill the president. A witness
may testify that he overheard your statement without a hearsay problem.
v) STATE OF MIND OF DECLARANT
(1) Statements as to the state of mind of the declarant are not hearsay (circumstantial evidence of
state of mind). However, the statement must have some relevance to the lawsuit; otherwise, it is
excluded under FRE 401. These statements are not offered to prove the truth of the matter
59

asserted and, as such, is not hearsay. A statement offered to show the declarants knowledge is
not hearsay (e.g., victims description of the house where the crime took place as evidence that
she has knowledge of the inside of the house). Also, statements that show the declarants sanity
or emotion are similarly not offered for the truth and are not hearsay. For example, Driver states,
I need to have my brakes checked because they have not been working well. In a negligence
suit, this statement is not hearsay. It is not offered to show that the brakes are defective; instead,
it is offered to show that Defendant had knowledge that the brakes might be defective (it is
hearsay if it is being admitted to show that the brakes are defective). However, when the
Declarants statement is a direct statement as to the state of mind (I am insane), the statement
may be hearsay.
vi) STATE OF MIND OF LISTENER OR READER
(1) A statement offered to show its effect on the listener or reader is not hearsay (how the listener or
reader acted in response to the statement). In this situation, the testimony is being used to show
its effect upon an individual and no reliance is placed on the declarants credibility. Where the
reasonableness of a partys conduct is at issue, knowledge of certain statements may have
probative value regardless of the truth of those statements (fear in self-defense). Thus, a
statement that is offered to show that the listener or reader: (1) was put on notice; (2) had certain
knowledge; (3) had a certain emotion; or, (4) that he behaved reasonably or unreasonably is not
hearsay. For example, in a malpractice suit against a hospital for hiring Doctor, Plaintiff offeres
two written statements from two other hospitals which state that they would not hire Doctor due
to his incompetence. If plaintiff proves that the hospital read the letters before hiring Doctor, this
will not be hearsay. The letters are not being offered to prove the truth of the matter asserted.
The letters are not being offered to prove that Doctor is incompetent. Instead, the letters show
that a reasonable person in Defendants position would have doubted Doctors competency.
(a) EXAMPLE OF HEARSAY
(i) Often whether the testimony is hearsay or nonhearsay is a hair-splitting issue. For
example, testimony regarding other employees complaints about tardiness are offered for
the truth of the matter asserted therein. They are not being offered to prove that the
employer believed that the plaintiff had been late for work (i.e., for the effect upon the
hearer), but to prove that the plaintiff was, in fact, late for work. Often otherwise
inadmissible hearsay evidence may be admitted simply by limiting its use to that other
than the truth of the matter asserted, provided that alternative use is relevant.
(b) EXAMPLE OF NONHEARSAY
(i) A statement is not classified as hearsay if it is used to show the notoriety of drug use on
the premises. Statements that drugs were available on the premises, whether true or not,
tend to establish the element of notoriety. In contrast, however, if the statement was
offered to prove that drugs were in fact used on the premises, the statement would be
hearsay. In this situation, the state is required to produce independent evidence of drug
use and the defendant is entitled to a limiting instruction stating that statements of
neighbors can only be used to establish notoriety.
1. AN OUT-OF-COURT STATEMENT TO AN OFFICER
a. An out-of-court statement may be offered to explain responsive conduct. An outof-court declaration by a third party, to a police officer, which is offered at trial to
merely explain the officers conduct in the investigation of the crime is usually
admissible because it is not offered for the truth of the matter asserted. However,
the conduct explained should be relevant, in need of explanation, and
contemporaneous with the statements. However, even when it is not relevant, the
admission of the statement will not be a reversible error. This nonhearsay use has
been invoked with respect to the issue of duress, authorization, volition, motive,
good faith, knowledge or belief, or the absence of knowledge.
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(2) DIRECT STATEMENTS AS TO A STATE OF MIND

(a) Courts are likely to classify a declarants direct statements about his own state of mind as
hearsay even when no danger of memory or perception are present. Thus, the statement I
love Lucy would be hearsay to prove that the declarant loved Lucy. Similarly, a statement
that Judy is my best friend can be viewed as a direct statement of state of mind. However,
a few courts would classify the statement as circumstantial evidence of a state of mind, if it is
not being offered for the truth of the matter asserted therein.
vii) STATEMENTS OFFERED TO PROVE NOTICE
(1) Often in a negligence action, notice will be a material element of the case. Thus, a witness can
testify that he overheard testimony that a stair is broken. This statement can be admitted to
prove notice, but not to prove that the stair was, in fact, broken.
viii) STATEMENTS OFFERED TO SHOW A PERSONS REPUTATION ARE NOT
HEARSAY
(1) A statement offered to show a persons reputation might not be offered for the proof of the matter
asserted and, if so, is not hearsay. In a libel action, a witness states, Sam told me John has a
reputation for being dishonest. If this statement is offered to show that it caused a false
reputation of the plaintiff, it is not hearsay. The statement is not being offered to prove that
plaintiff really is dishonest, merely that plaintiff has been given a false reputation for being
dishonest. However, if the statement is used to prove that John is dishonest, then the statement is
hearsay. The statement is being used to prove that John is, in fact, dishonest.
ix) USING PRIOR INCONSISTENT STATEMENTS FOR IMPEACHMENT ARE NOT
HEARSAY
(1) If Witness testifies at trial, use of a prior inconsistent statement by that Witness is not hearsay
when used to impeach the witness testimony. The prior inconsistent statement is not used to
show the truth of the matter asserted, but is instead used to show that the conflict between the
two statements raises questions concerning the Witness credibility. It is circumstantial evidence
of a lack of credibility which does not depend on the truth of the statement.
x) AN ASSERTIONS MAY BE OFFERED TO PROVE ANOTHER IMPLIED OR INFERRED
ASSERTION WITHOUT CREATING A HEARSAY PROBLEM
(1) An assertion offered to prove another implied or inferred assertion may not create a hearsay
problem if the person making the assertion was not thinking of the matter sought to be proven at
the time the assertion was made. For example, a letter to a relative might state the weather is
nice here, you should visit soon. The letter might be used as circumstantial evidence of the
sanity of the writer or, alternatively, that the writer thought the relative was sane. At the time the
letter was written, there is no indication that the writer thought of, or considered his own sanity,
or that of the receipient; however, the letter circumstantially might prove this. In contrast, if the
letter states as of your last letter, you seemed of sound mind, this is hearsay. At the time the
letter was written, the writer was thinking of the exact issue to be proven.
xi) PROBATIVE WORTH BY VIRTUE OF IT BEING STATED
(1) If a statement has a probative worth simply by virtue of the fact that it was uttered, the statement
is not hearsay and may be admissible, unless its probative value is substantially outweighed by
its prejudicial effect. Thus, a statement that is not offered for the contents of the conversation,
but only to show that it was made, is not hearsay. For example, a newspaper article can be
admitted into evidence not to prove the facts stated in the story, but to prove that the public was
aware of the facts stated in that article.
xii) OTHER INSTANCES OF NONHEARSAY
(1) Involuntary actions are not hearsay. Thus, an emotional outburst, relex, or other conduct or
statement that is not meant to be an assertion, is not hearsay. Information obtained from animals
and machines are also not considered hearsay. FRE 801 is limited to persons and does not
apply to animals or machines.
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b) TANGIBLE PHYSICAL EVIDENCE

i) The hearsay rules do not prevent the introduction of nonassertive material, including tangible
evidence (comparison photographs, maps, police sketches). Otherwise, tangible evidence would be
excluded if it could support an inference that it was an assertion. Additional examples of
nonassertive tangible evidence include: (1) notebooks describing drug transactions supporting an
inference that drug sales and related activity took place at the apartment; (2) bookmaking records
offered as proof of earnings through bookmaking, but not establishing the truth of the transactions
recorded in them; (3) police reports to support probable cause, but not as proof of the crime
committed. However, some tangible evidence can be excluded as hearsay (a composite sketch of a
criminal based on a verbal description by the victim). The composite sketch is an out-of-court
statement as to the criminals physical characteristics. Also, complaint letters to a manufacturer are
hearsay if they are offered to prove that the incidents complained of occurred as reported.
3) STATEMENTS SPECIFICALLY EXCLUDED FROM THE DEFINITION OF HEARSAY
Rule 801. Definitions
(d) Statements which are not hearsay. A statement is not hearsay if
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and
was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,
or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made
after perceiving the person; or
a) Hearsay is not admissible unless it falls within a recognized exception to the rule, or as provided by law.
The rule of exclusion applies to evidence consisting of a statement purporting to be based on declarants
own knowledge, both sworn and unsworn, or of a statement based on hearsay. However, many
statements are not considered hearsay and not all out-of-court statements are objectionable as hearsay.
In fact, several types of statements which would otherwise fall within the definition of hearsay are
expressly excluded from it. A statement that is not hearsay is admissible if it meets the requirements of
relevancy, materiality, and overcomes the risk of undue prejudice.
i) STATEMENTS WHICH ARE NOT HEARSAY
(1) FRE 801 defines what is and what is not hearsay for the purpose of admitting a prior statement as
substantive evidence. A prior statement of a witness at a trial or hearing which is inconsistent
with his testimony is, of course, always admissible for the purpose of impeaching the witness'
credibility. When the declarant testifies at trial or hearing and is subject to cross-examination
concerning his statement, several statements are not considered hearsay and may be introduced
as substantive evidence, not just to impeach his testimony. Under FRE 801(d)(1) the following
are not considered hearsay: (A) statements inconsistent with the declarant's testimony, and was
given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a
deposition, or (B) statements consistent with the declarant's testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence or
motive, or (C) a statement of identification of a person made after perceiving the person.
(2) DECLARANT MUST BE SUBJECT TO CROSS-EXAMINATION AT THE
PROCEEDING
(a) Before the prior statement of the witness may be admitted as a nonhearsay statement, the
declarant must be subject to cross-examination concerning the statement while testifying at
the present trial or hearing.
(i) TIMING OF STATEMENT
1. A court has discretion as to whether to allow a party to introduce evidence of a prior
consistent or inconsistent statement before an opposing party brings into evidence the
prior inconsistent statement, questions the motive, or the influence of the witness. A
court may refuse to allow a party to elicit a statement from its own witness prior to
62

the opposing party opening the door to this testimony. Other courts have permitted
the calling party to put into evidence a prior inconsistent statement of its witness.
Since the prior statement may be used as substantive evidence, the calling party may
escape the objection that it is calling a witness solely for the purpose of introducing
otherwise inadmissible evidence under the guise of impeachment. It is preferred that
the prior inconsistent statement be offered while the declarant is still on the witness
stand. However, since statements that fall under this rule can be admitted as
substantive evidence, the evidence may be offered before or after the witness testifies.
However, these statements will require foundational support (the testimony of the
witness need to determine if the statement is consistent or inconsistent). Thus, often
inconsistent statements will be offered into evidence at or after the witness testifies
(after the foundation is established). However, the opposing party might question the
witness motive or influence prior to that witness testimony.
(b) INCONSISTENT WITH THE DECLARANT'S TESTIMONY, AND WAS GIVEN
UNDER OATH SUBJECT TO THE PENALTY OF PERJURY AT A TRIAL,
HEARING, OR OTHER PROCEEDING, OR IN A DEPOSITION
(i) A witnesses' prior inconsistent statement is not hearsay and may be used as substantive
evidence if: (1) the statement was given under oath subject to the penalty of perjury at
a trial, hearing, or other proceeding, or in a deposition (includes grand jury testimony);
(2) the statement must be inconsistent with the witness' testimony at trial; and, (3) the
witness must be subject to cross-examination. An inconsistent statement may be more
likely to be true than testimony of a witness at trial (made nearer in time and less likely to
be influenced by the controversy that gave rise to litigation). Moreover, the requirement
that the declarant testify assures a thorough examination of both versions and bars any
indiscriminate use of the previously prepared statements.
1. WHAT IS CONSIDERED A PRIOR PROCEEDING
a. When the circumstances surrounding the proceeding or recording of the statement
weigh against the reliability and truthfulness of that statement, those proceedings
will not come within the scope of other proceeding. Thus, statements given
under informal circumstances or proceedings might not qualify as a prior
proceeding. A conversation with an investigative officer, IRS agent, or law
enforcement agent might not qualify, even if it is in the form of a sworn affidavit.
2. JURY MAY ASSESS CREDIBILITY OF PRIOR STATEMENTS
a. The declarant must be testify at the trial or hearing, and be subject to crossexamination, for this rule to apply. The declarant may then explain any
inconsistencies between his testimony and the previous inconsistent statement.
The jury may assess the declarants credibility and determine which statement is
true. If the declarant does not testify, the previous statement is excluded under
this rule (cant be used as substantive evidence).
b. CROSS-EXAMINATION OF WITNESS
i. A witness is considered cross-examined even if the witness is forgetful, but if
the witness is unavailable (privilege, limitation by court, sometimes a true
lack of memory, or a refusal to testify), the prior inconsistent statement cannot
be admitted under this rule.
c. RATIONALE STATEMENT UNDER OATH
i. There is no doubt that a statement was made, when it is made under oath. In
addition, the formal proceeding is subject to penalty of perjury which provides
a firm assurance as to the reliability of the prior statement.
d. IMPEACHMENT OF TESTIMONY
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i. A prior inconsistent statement may be used to impeach the credibility of a

witness. However, when testimony is admitted under FRE 801(d)(1)(a), the
statement may be used as substantive evidence. When a prior inconsistent
statement is made by a defendant in a criminal case, it may fall under FRE
801(d)(2).
e. WHAT QUALIFIES AS A PRIOR INCONSISTENT STATEMENT
i. An inconsistent statement must be sufficiently inconsistent to render the prior
statement admissible (cannot admit over trivial inconsistencies).
An
inconsistent statement may be found in an evasive answer, in silence, a
proported change in memory (must prove forgetfulness is feigned), selective
forgetfulness, or shifts in emphasis. If the witness falsely claims not to recall
facts to avoid testifying, it is an inconsistent. The prior statement does not
need to be a complete opposite of the current statement to be inconsistent. In
order to admit a prior inconsistent statement under this rule, counsel must ask
the witness specifically about the statement at issue. The witness must be
given the opportunity to admit or deny having made it. After the witness has
testified, the court may exercise its discretion and determine what portion of
the prior statement is admissible (what portion is inconsistent).
f. SUBMISSION OF PRIOR INCONSISTENT STATEMENTS
i. The rule does not require that the prior inconsistent statement be submitted in
any particular format. Thus, it could be read into evidence or the prior
transcript may be submitted to the jury in the form of an exhibit. Ironically,
this rule affords the prior inconsistent statement greater weight than the
present testimony of the declarant (compare with past recollection recorded).
Thus, an argument should be made to the court, under FRE 403, that the
prejudical value of admitting a prior transcript substantially outweighs the
probative value and, as such, the court should consider allowing the transcript
to be read, but not admitted into evidence.
(c) CONSISTENT WITH THE DECLARANT'S TESTIMONY AND IS OFFERED TO
REBUT AN EXPRESS OR IMPLIED CHARGE AGAINST THE DECLARANT OF
RECENT FABRICATION OR IMPROPER INFLUENCE OR MOTIVE
(i) Generally, a prior consistent statement is inadmissible hearsay unless the opposing party
has attacked the witness in-court testimony as a recent fabrication or as resulting from
improper influence or motive and the witness testifies at trial or hearing, subject to crossexamination. Under this rule, the prior consistent statement may be admitted as
substantive evidence. However, the proponent must first demonstrate: (1) that the prior
consistent statement is consistent with the witness' in-court testimony; (2) that the
statement is being offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive; and, (3) that the prior consistent
statement was made before the supposed motive to falsify arose; otherwise, the statement
is not admissible under this rule. If the opposing party does not open the door for its
admission into evidence (by stating or implying recent fabrication and/or improper
influence or motive), the prior consistent statement may not be admitted. The court has
discretion in determining admissibility under this rule.
1. WHEN EVIDENCE MAY RAISE CHARGE OF FABRICATION
a. The court has discretion in determining whether the evidence warrants the
admission of a prior consistent statement. Typically two types of evidence may
be said to raise the charge of recent fabrication or improper influence or motive.
One is direct evidence of bias or motive, and the other is prior inconsistent
statements by the witness. However, a prior inconsistent statement will not
64

automatically raise a charge of fabrication or improper influence, and mere

challenges to a witnesss credibility are insufficient to support the admission of a
prior consistent statement (must invoke a charge of recent fabrication or improper
influence). An implied charge of fabrication may arise through the crossexamination of more than one witness.
2. CONSISTENT STATEMENTS DO NOT NEED TO BE UNDER OATH
a. There is no requirement that the prior consistent statement be given at a prior
proceeding, under oath, and subject to perjury. Any statement that is consistent
with the declarants testimony may be admissible if used to rebutt an express or
implied charge of fabrication.
b. TOME V. UNITED STATES
i. Facts: Plaintiff sought to introduce statements made to six witnesses by a
child alleging sexual abuse. Held: Statements made after the alledged
fabrication are not admissible. Prior consistent statements that were made
after the charge of fabrication or the emergence of improper motive are not
admissible under this rule.
3. CONSISTENT STATEMENTS ADMITTED UNDER ERROR
a. While a consistent statement is admissible as substantive evidence under this rule,
the effect of the admission of this evidence is likely to have only a nominal effect
on the outcome of the case. The evidence more or less supports the evidence
already admitted. Thus, even if an appellate court finds that the evidence was
admitted in error, it will likely be considered cumulative and, as such, any error
will be harmless.
(d) ONE OF IDENTIFICATION OF A PERSON MADE AFTER PERCEIVING THE
PERSON
(i) A statement of identification made shortly after perceiving the person is not hearsay,
although it falls within the category of a prior out-of-court statement. Courtroom
identification is unsatisfactory and inconclusive in comparision to identification made at
an earlier time under less suggestive conditions. The identification need not be under
oath; however, due to the confrontation clause (in criminal cases), the defendant must be
able to cross-examine the declarant (the exception only applies when declarant is
available anyway).
1. NO REQUIREMENT THAT THE WITNESS IDENTIFY THE SUSPECT
SOON AFTER THE CRIMINAL INCIDENT
a. The rule does not require the witness to perceive the person soon after the event
took place. Instead, the rule requires only that the witness identify the suspect
after perceiving his likeness in the identification process (photographs, line-up).
In fact, pretrial statements of identification are admissible where the identifier
picks a person other than the accused, or where he testifies at trial that he cannot
identify whether the accused is the culprit.
b. CONSTITUTIONAL CONCERNS
i. Highly suggestive line-ups might violate the constitutional rights of an
accused. For example, victim states that the crime was committed by a black
man. The line-up has 5 white men and 1 black man. This is especially true if
the defendant is denied the assistance of counsel.
2. NO REQUIREMENT THAT THE WITNESS BE ABLE TO IDENTIFY THE
DEFENDANT AT THE TRIAL
a. A witness is not required to be able to identify the person while at the trial. In
fact, a witness may even testify regarding an identification made by another
65

witness if the declarant also testifies and is subject to cross-examination. Thus,

testimony from a witness to the pretrial identification is admissible (police).
b. UNITED STATES V. OWENS
i. Facts: Witness recalls making the identification but cannot remember who he
identified due to brain damage. Holding: Confrontation clause requires
opportunity for effective cross-examination. This requirement is satisfied
even if the witness no longer remembers the incident which led to the prior
identification.
3. APPLIES IN A WIDE RANGE OF CIRCUMSTANCES
a. The rule excluding statements of identification from the definition of hearsay
applies to a wide range of circumstances, including statements made after the
declarants examination of photographs, a sketch of the accused, or even verbal
identifications. The identifier is not required to have witnessed the event in
question (does not see event, but sees accused fleeing). Also, there is no
requirement that the identification qualify as either a prior consistent or
inconsistent statement.
b) ADOPTION OF PRIOR STATEMENT BY DECLARANT
i) When a declarant admits to making a statement, he adopts that statement. If a statement is adopted,
it may avoid a hearsay problem (admission). However, if the declarant denies making the statement,
or the truth of that statement, both consistent and inconsistent statements may be admitted into
evidence if the declarant is testifying. When the declarant is in court, and may be cross-examined,
the credibility of his testimony may be assessed. The jury may then decide how to weigh the
declarants previous and current statements (the jury determines which statement is more credible).
c) SUBSTANTIVE EVIDENCE
i) Evidence admitted under FRE 801 is substantive evidence and, as such, may permit an accused to be
convicted solely based on his previous inconsistent statement. Likewise, the accused may be
convicted based on a prior identification even where the witness can no longer confirm or deny the
identification. FRE 801 does not address the question of sufficiency of evidence, but, instead,
focuses on the admissibility of certain evidence.
4) ADMISSIONS ARE NOT HEARSAY
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own
statement, in either an individual or a representative capacity or (B) a statement of which the party has
manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a
statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement
shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C),
the agency or employment relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against whom the statement is offered
under subdivision (E).
a) ADMISSIONS
i) A party-opponent admission is excluded from the definition of hearsay, regardless of whether the
admission is trustworthy. Admissions are free from technical demands and need not be against a
partys interest (After I parked the truck and went into the building, it rolled down the hill). There
are five specific categories of statements under this rule which are sufficient to justify their use as
substantive evidence in a proceeding. These categories are: (1) a partys own statement or a
statement from a representative of that party; (2) a statement of another adopted by that party; (3) a
statement by a person authorized by a party to make a statement concerning the subject; (4) a
statement within the scope of agency or employment; and, (5) a statement by a coconspirator during
66

the course and furtherance of the conspiracy. These statements may be in the form of an opinion and
there is no personal knowledge requirement.
(1) WHAT IS AN ADMISSION
(a) An admission is any statement that is relevant for use against that party. A partys words or
actions may be offered as evidence against that party, even if it would be inadmissible
hearsay if said or done by someone other than the party.
(i) DECLARATION AGAINST INTEREST VS. ADMISSION
1. Unlike a declaration against interest, an admission is not subject to the first-hand
knowledge requirement of FRE 602. In addition, there is no need to establish that an
admission is against the partys interest. Finally, there is no requirement that the
declarant be available and subject to cross-examination. The admission may be
admitted whether or not the declarant is available to testify.
(2) A PARTYS (OR REPRESENTATIVE OF THAT PARTYS) OWN STATEMENT
(a) A partys own statement in either an individual or representative capacity may be an
admission and, as such, is not hearsay. For example, an attorneys statement may be
admitted as either a representative or agent admission. Statements made by the attorney prior
to trial, adoptive admissions in party briefs, and statements made in pleadings or affidavits
are all examples of admissions. There is no personal knowledge requirement and, in fact, the
underlying theory of an admission is that you should be bound by the statements you make.
However, the statement must be made voluntary. In addition, the statement must be offered
against the party and, as such, one cannot admit their own, often self-serving admissions,
under this rule.
(i) PRIOR GUILTY PLEA
1. A prior guilty plea (plead and convicted) may be considered an admission and is
admissible in a subsequent case (pled to manslaughter subsequent lawsuit for
wrongful death). However, you cannot use a nolo plea as you do not admit or deny
anything. Also, guilty pleas for minor traffic offenses may not be admissible (a party
may pay the ticket rather than dispute not probative).
(3) ADOPTION OR BELIEF IN THE STATEMENT OF ANOTHER
(a) A party may adopt or express belief in the statement of another. This may constitute an
admission (adoptive admission). Adoption may be manifested in any appropriate manner.
Often the party will express a knowing agreement as to the statement. When silence is relied
upon, the theory is that the person would protest the statement if true under the circumstances
(defend a criminal accusation). The theory is that a reasonable and responsible person would
have denied the statement if it was not true. Whether a party adopts a statement of another
depends on an evaluation of probable human behavior. Again, the rule requires that the
statement be offered against the party and, as such, a party is prevented from proferring their
own admission.
(i) FACTORS TO CONSIDER WHEN DETERMINING IF AN ADOPTION
1. In order to establish an adoption, the proponent of the evidence must establish that:
(1) the party heard the statement; (2) the matter asserted was within his knowledge;
and, (3) the occasion and nature of the statement were such that he would have likely
replied if he did not mean to accept what was said.
a. DISQUALIFYING FACTORS TO AN ADOPTION
i. The party objecting to the admission of an adoptive admission may assert that:
(1) the party did not understand the statement or its significance; (2) some
physical or psychological factor explains the lack of a reply; (3) the speaker
was someone whom the party would likely ignore; (4) silence came in
response to Miranda warnings. If the objecting party can establish any of
these factors, the party has not adopted the admission.
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(ii) ADOPTIVE ADMISSIONS CIVIL VS. CRIMINAL

1. A civil case will often present a less troubling question regarding whether there is an
adoptive admission in a particular case. The refusal of a defendant to deny a criminal
allegation, or statement in furtherance of criminal conduct, may be motivated by
advice from counsel (anything you say can be used against you). In addition, silence
following an arrest does not constitute an adoptive admission where the suspect may
only be exercising his right to remain silent. Thus, the 5th amendment Miranda rights
will preclude silence from being considered an adoptive admission when the party is
in police custody. Otherwise, an adoptive admission in a criminal context could
present an opportunity to manufacture evidence and may encroach upon the
priviledge against self-incrimination. However, the rule does not include any special
provisions regarding admissions in criminal cases. When the silence is associated
with criminal conduct outside of police custody, the party may still be found to have
adopted an admission.
(iii)
REED V. MCCORD
1. Facts: Defendant made statements in the presence of a court reporter about the
accident. The defendant was not present at the accident. These statements tended to
show negligence on the part of defendants employee. Holding: The evidence is
admissible as an admission. There is no personal knowledge requirement if the
declarant has endorsed the statement by repeating it. However, if declarant had only
admitted to hearing about the accident, the statement would not be admissible (the
statement of the employee would also be admissible as an employee admission).
(iv)STATEMENTS MADE IN DOCUMENTS
1. The failure to answer or to correct statements in a letter may also be an adoptive
admission. Silence in response to a writing is an adopted admission if a party can
reasonably be expected to have objected to the writing if it were untrue. In most
cases, the possession of a document is not an adoption of their contents, but use of the
documents can amount to an admission that the contents are correct (reprinting a
newspaper article).
(v) ADOPTIVE ADMISSION IS A QUESTION OF CONDITIONAL RELEVANCE
1. Federal courts typically treat an adoptive admission as a question of conditional
relevance. The court will make a preliminary finding under FRE 104(b) that the
evidence will show the necessary foundational proof (sufficiency of the evidence) that
would allow a reasonable jury to find that an admission was adopted.
(4) STATEMENT BY PERSON AUTHORIZED BY THE PARTY
(a) A statement by a person authorized by the party to make a statement concerning the subject
is an admission. For example, an attorney may be authorized to negotiate on behalf of his
client. A broker may be able to sell or purchase property on behalf of his client. These
parties may also be considered a representative or agent of the party (probably a question of
scope). In this situation, a formal relationship will exist which authorizes the party to act or
speak on behalf of another, often for a specific purpose. It is not required that the party or
agent be authorized to speak to the public or a third party. In fact, a party may be authorized
to discuss within company or directly to his principal issues concerning the subject of the
statement. These statements that are not publically disclosed may still constitute an
admission. Thus, a partys books and records are usable against him, without any intent to
disclose to a third party, if the party making the admission is authorized to do so. An entry
made in the partys books and records in the course of business may not be hearsay if it is an
admission. Alternatively, the entry may fall under the business records exception of FRE
803.
(i) FRE 801 (ADMISSION) VS. FRE 803 (BUSINESS RECORDS)
68

1. Often a statement may qualify as not hearsay under FRE 801 or, alternatively, under
the business record exception under FRE 803. The difference between the two deals
with the foundational requirements and the scope of rule. With an admission, a
person must be authorized to make a statement concerning the subject at issue.
Unless the authority of that person is established, there is no admission ((1) the party
who made the admission; and, (2) whether the party was authorized to make that
admission). If you do not know the identity of the person, you cannot establish this
foundation for this evidence. With the business records exception, you are not
required to establish the authority or even the identity of the person who made the
record or admission. Thus, as long as you have the custodian of the records or other
qualified individual testify, the records will be admissible under the business records
exception if they indicate sufficient trustworthiness. Finally, unlike an admission,
either party may proffer evidence subject to the business records exception.
(ii) OPERATIVE LANGUAGE/ VERBAL ACTS
1. Many statements that may qualify as an admission may also be considered operative
language. For example, a broker or attorney negotiating a contract is making
statements that have an independent legal significance and, as such, are not hearsay.
In this situation, you will still need to establish that the person has the legal authority
to negotiate, but this an element of a claim or defense and is not required to establish
a foundation to admit the statement.
(5) A STATEMENT BY THE PARTY'S AGENT OR SERVANT CONCERNING A MATTER
WITHIN THE SCOPE OF THE AGENCY OR EMPLOYMENT
(a) Generally, the declarant will not be acting as an agent on behalf of a business or individual
(one who is authorized to bind the business or individual). Often, however, an employee will
be acting within the scope of his employment. Statements made within the scope of agency
or employment are admissible as admissions. The requirements are as follows: (1) the
statement must be offered against the party (cant use your own statement for yourself); (2)
statement must be made by an employee or an agent; (3) the statement must be made while
employed by the business or individual; (4) the statement must concern a matter with the
scope of employment.
(i) SOPHIE THE WOLF
1. Personal knowledge is not required in order to qualify as an agency admission.
Statements made by an agent to its own principal still fall under this exception. Even
statements made by the Board within its corporate minutes constitute an admission by
the Center (they are speaking as agents of the center). Statements made by caretaker
to the Board remained hearsay as there was no agency relationship between the Board
and the caretaker (this is probably an incorrect ruling or prior to an amendment of this
rule). Reporting the actions of the corporations wolf to the appropriate corporate
officer would be within the scope of a partys employment.
(6) STATEMENTS OF CO-CONSPIRATORS
(a) The limitation upon the admissibility of statements of co-conspirators to those made during
the course and in furtherance of the conspiracy is in the accepted rule. The FRE places
strict limits on what statements are admissible. Only statements that are in the course and in
furthance of qualify as admissions. As such, statements made subsequent to a failed
conspiracy will not be admissible as an admission. A court shall consider the contents of the
coconspirator's statement in determining the existence of the conspiracy and the
participation therein of the declarant and the party against whom the statement is offered.
However, the statement need not be against the partys interest when made. In addition, a
statement made in the formation of an agreement to commit a crime (to conspire to commit a
crime) may also be admissible as a verbal act (operative language).
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(i) THREE FOUNDATIONAL ELEMENTS MUST BE ESTABLISHED

1. In order for a co-conspirator admission by one co-conspirator to be admissible against
another co-conspirator, three elements must be established: (1) the parties must have
planned and coventured in the activity (partners in crime); (2) the statement must be
made during the course of the conspiracy; and, (3) the statements must have been
made in the furtherance of the conspiracy. Often the statements made in furtherance
of the conspiracy will amount to operative language/verbal acts.
2. RATIONALE
a. If co-conspirators are partners in crime, then statements made by coconspirators
are no different than those made by agents or employees of a business. Thus,
statements by co-conspirators are considered admissions. However, the rationale
for the hearsay exception is that an admission has a certain degree of reliability.
Thus, in practice a co-conspirator is likely to make a deal or point the finger to
avoid punishment. As a result, co-conspirator statements are considered
inherently unreliable. In practice, this exception represents a decision to punish
and make it easier to convict a defendant involved in a criminal conspiracy with
limited consideration as to whether the evidence is reliable.
b. BOURJAILY V. UNITED STATES
i. Issue: Can the factual predicate for satisfying FRE 801(d)(2)(e) be based on
the hearsay statements themselves? Can the statements of the co-conspirators
establish the existence of a conspiracy? Holding: The courts decision did
not answer this question, but did hold that hearsay evidence can be considered
when there is other nonhearsay evidence as to the conspiracy. After Bourjaily,
FRE 801(d)(2) was modified to prohibit bootstraping in order to establish a
conspiracy. The FRE now states that these statements are not alone sufficient
to establish the declarants authority under this subdivision. Thus, while the
statement may be considered in determining whether a conspiracy exists, there
must be some independent evidence to establish the conspiracy.
c. QUESTION OF CONDITIONAL RELEVANCE UNDER FRE 104(b)
i. The contents of declarants statement do not alone establish a conspiracy in
which the defendant participated. Instead, the court must consider the
circumstances surrounding the statement (identity of the speaker, the context
of the statement, corroborating evidence of the conspiracy). Every court of
appeals requires some evidence in addition to the content of the statement for
that statement to constitute an admission. However, the court may admit the
evidence subject to introduction of evidence sufficient to support a finding of
the fulfillment of the condition. In the event the party fails to offer sufficient
evidence to support the fulfillment of the condition, the court may strike the
evidence.
b) IS THERE A LACK OF TRUSTWORTHINESS TO ADMISSIONS
i) The FRE is extremely tolerant regarding the scope and extent of admissions that fall under this
801(d)(2). Even if a declarant is drunk, drugged, or injured, the statement may still be allowed under
this rule. Thus, admissions may lack reliability, but are routinely admitted by the court.
c) BOOTSTRAPPING
i) With the exception of the partys or their representatives own statement or statements adopted by
that party or representative, the statement itself is not sufficient to establish the admissibility of an
admission under this rule. Thus, under FRE 801(d)(2)(c) there must be some independent evidence
to establish that a person is authorized by a party to make a statement. Under FRE 801(d)(2)(d)
there must be some independent evidence of the existence of the agency or employment relationship
and the scope thereof. Likewise, under FRE(d)(2)(e) there must be some independent evidence of
70

the existence of the conspiracy, the participation of the declarant, and the participation of the party
whom the statement is offered against. While a court may consider the statement itself in
establishing the required foundational evidence, the court must have some independent evidence for
these admissions to be allowed under this rule.
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court
pursuant to statutory authority or by Act of Congress.
1) Hearsay is not admissible except as provided for by these rules, or by other rules, or by law. The Rules of
Civil Procedure have several exceptions: (1) Rule 4(g): proof of service by affidavit; (2) Rule 32:
admissibility of depositions; (3) Rule 43(e): affidavits when motion based on facts not appearing of record;
(4) Rule 56: affidavits in summary judgment proceedings; (5) Rule 65(b): showing by affidavit for
temporary restraining order. The Rules of Criminal Procedure have several exceptions: (1) Rule 4(a):
affidavits to show grounds for issuing warrants; (2) Rule 12(b)(4): affidavits to determine issues of fact in
connection with motions.
a) A COURT CAN CREATE NEW EXCEPTIONS BASED ON NECESSITY AND
TRUSTWORTHINESS OF THE STATEMENTS
i) Courts have the power to create new exceptions to the hearsay rule and have created exceptions
based on necessity and the trustworthiness of the statements. However, courts cannot develop
additional exclusionary rules (ones that exclude evidence) or rules that are in clear conflict
with the law. In addition, in criminal cases, courts cannot develop rules that are in conflict with the
6th amendments conflict clause, even if the hearsay is sufficiently reliable. Generally, hearsay is
admissible in agency proceedings, absent special statutes or regulations.
b) RULES OF CIVIL/CRIMINAL PROCEDURE MAY PROVIDE EXCEPTIONS TO THE
HEARSAY RULE
i) Hearsay rules are not to conflict with the FRCP which provide the use of depositions in civil cases in
the proceedings in which they are taken under certain circumstances (deponent more than 100 miles
from place of trial), or for the admissibility of affidavits in connection with motions (summary
judgment, new trials, relief from judgment or an order). In addition, the rules are not to conflict with
the Rules of Criminal Procedure where they provide for the use of depositions in the proceedings in
which they were taken, the admissibility of affidavits to show probable cause for arrest, or the
admissibility of affidavits in connection with pretrial and post trial motions.
1) FRE 803 HEARSAY EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL
a) Hearsay statements that possess circumstantial degrees of trustworthiness sufficient to justify nonproduction of the declarant are allowed under FRE 803. In reviewing any hearsay exception, one must
consider the relationship between the parties to determine whether the testimony is credible.
Consider this to be an extra element of any analysis of the hearsay exceptions listed under FRE 803.
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
i) The exceptions under FRE 803 are not intended to be absolute and are phrased in postitive terms of
admissibility in order to eliminate the implication that other grounds for exclusion are precluded
from consideration.
Under appropriate circumstances a hearsay statement may possess
circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant, even
though he may be available to testify.
(1) USE OF 803 EXCEPTION GENERALLY
(a) The exceptions under FRE 803 are considered reliable. The danger in their use is less than
the probative value that would be lost from excluding the evidence. A witness other than the
declarant can testify as to the statement. However, some of these exceptions will require
testimony by someone with sufficient knowledge to establish a foundation (business records).
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(2) PERSONAL KNOWLEDGE REQUIRED

(a) The declarant is a witness, even if it is only his statement that is offered into evidence. There
is a requirement of firsthand knowledge; however, this knowledge may appear from the
hearsay statement or may be inferred from the circumstances.
1) PRESENT SENSE IMPRESSION
(1) Present sense impression. A statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately thereafter.
a) Elements: (1) a statement describing or explaing an event or condition; (2) about which the declarant
has firsthand knowledge; (3) made at the time the declarant was perceiving the event or immediately
thereafter.
i) CONTEMPORANEOUS STATEMENT NEGATES MISREPRESENTATION
(1) The contemporaneousness of a present sense impression eliminates ordinary hearsay concerns of
lapse of memory, fabrication, and negates the likelihood of deliberate or conscious
misrepresentation. If the witness is the declarant, he may be examined regarding the statement.
If the witness is not the declarant, he may be examined as to the circumstances to aid in the
evaluation of the statement. A slight time lapse is allowable; however, the permissible subject
matter of the statement should extend no further than a description or explanation of the event or
condition.
(a) OBJECTIVE VS. SUBJECTIVE
(i) Objective statements indicate a lack of forethought regarding the event described.
However, a statement of opinion or belief may be the best evidence that the statement, in
fact, was made at at time in which the declarant was able to reflect on the incident.
1. TIME MEASURED BY ABILITY TO REFLECT
a. Statements that indicate reflection, such as an opinion, may be circumstantial
evidence that the statement is not immediately thereafter. By stating an opinion,
the declarant indicates that he had sufficient time to consider the situation. Thus,
the underlying purpose of this exception is not met. Alternatively, one can argue
that an average person is imprecise in their language and, as such, one should
focus not on the language used, but instead the circumstances that gave rise to the
statement. In either case, spontaneity and lack of lapse of time is a necessary
element.
2) EXCITED UTTERANCE
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.
a) Elements: (1) a startling event; (2) a statement relating to that event; (3) made by a declarant with
firsthand knowledge; (4) made while the declarant was under the stress of the excitement caused by the
event.
i) CIRCUMSTANCES THAT PRODUCE A CONDITION OF EXCITEMENT
(1) Circumstances may produce a condition of excitement which temporarily stills the capacity of
reflection and produces utterances free of conscious fabrication. The statement must be made
while under the stress of the excitement. Unlike present sense impression the statement need not
be made contemporaneous with the event or condition. Instead, whether a statement is made in
close enough proximity to the event or condition depends on the event itself. While the present
sense impression is limited to describing the event or condition, this exception only requires that
the statement relate to the startling event or condition.
(a) UNDER THE STRESS OF THE EVENT
(i) Factors to consider in determining whether the declarant was under the stress of the event
are the declarants age, mental condition, character of the event, and nature of the
statements. The time elapsed since the event is not dispositive of the issue, nor are
whether the statements were in response to police questioning. In fact, in situations of
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rape courts typically hold that the victim is under the stress of the event several hours
after the event occurred. In all cases, it is a question of the probable human reaction to
the event in question.
1. STATEMENTS OF OPINION/ RELATIONSHIP BETWEEN THE PARTIES
a. In order for this rule to apply, the declarant must be under the stress of the
excitement caused by the event or condition. A statement of opinion or a selfserving opinion may be the best evidence that the party is not really suffering
from the stress or excitement of the event. Likewise, a relationship between the
parties may provide circumstantial evidence that the party was not under the stress
of the excitement caused by the event when the statement was made.
2. UNITED STATES V. IRON SHELL
a. Facts: Attempted assault and rape of a girl. One hour later the girl tells the officer
what happened by answering questions posed by the officer. The girl cannot
testify because she is nervous. Holding: An hour lapse can still be an excited
utterance. Further, people can express stress in different ways. Thus, an outward
expression of excitement is not required and, as such, one that is quiet may still be
excited (under the stress of the excitement).
(b) OTHER CONSIDERATIONS
(i) A court may also consider the underlying policy of the exception (suspension of the
capacity to fabricate). However, caution should be used when arguing the underlying
policy reason for the exception unless it relates to interpreting an element of this rule.
Otherwise, questions regarding the credibility of the declarant or witness are questions
for the jury. Further, if the declarant is an unidentified bystander, the court may be more
hesitant to admit the statement because: (1) the firsthand knowledge rule may be difficult
to satisfy; and, (2) it may be difficult for counsel to challenge the existence/veracity of
the declarant.
(c) BOOTSTRAPPING
(i) When there is no independent evidence of the startling event, one cannot use the hearsay
statement to prove the existence of that event. Hearsay cannot bootstrap its way into
evidence. The hearsay statement cannot be allowed to prove the very circumstances by
which it is said to derive its credit. When considering whether to admit hearsay evidence
that is subject to an exception, the judge may consider both the hearsay statement and
independent evidence to establish the foundation pursant to FRE 104(a). However, if no
indpendent evidence (outside of the hearsay statement) exists, the court should exclude
the statement as hearsay.
3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state
of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, or terms of declarant's will.
a) DISTINGUISH BETWEEN HEARSAY AND NONHEARSAY USES OF STATE OF MIND
i) When the state of mind is not directly at issue, it is not hearsay. However, if the state of mind is
what is directly at issue it is hearsay. Thus, evidence that someone who is yelling profanity, to
establish that the person is angry, probably is not be hearsay. However, a statement to the effect I
hate him might be hearsay if offered to prove that you do, in fact, hate him.
(1) FURTHER EXAMPLE OF HEARSAY AND NONHEARSAY
(a) One must distinguish whether the statement regarding the mental state or condition is
hearsay. John is a bad person is offered to show motive not to prove the statement and, as
such, is not hearsay. Of course, if the case is a defamation case, then the statement may be
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hearsay. I will kill John is offered to prove intent to kill. The hearsay is admissible under
803(3).
(i) EXAMPLES OF STATEMENTS THAT FALL UNDER THIS EXCEPTION
1. A direct intentional statement about how you feel (I am sick), offered to prove what
they assert. Indirect statements that one can infer a state of mind from (this slope is
too steep, I am going to take the lift down present state of fear).
(2) STATEMENT OF THEN EXISTING STATE OF MIND
(a) A statement of the declarants then existing state of mind, emotion, sensation, or physical
condition, but excluding statements of memory or belief to prove the fact remembered or
believed. Permits admission of statements of present physical or mental condition (intent,
plan, motive, design, emotion, or mental feeling). However, it excludes testimony relating to
memory or belief to prove the fact remembered or believed (excludes statements as to a past
event or fact). In addition, this exception is strictly limited to testimony regarding the
declarants mental, emotional, or physical condition at that time.
(i) PRESENT STATEMENT REQUIRED
1. The declarant must state his state of mind, emotion, sensation, or physical condition
as he is experiencing that state of mind or condition. It is the then existing state of
mind of the declarant (simultanity between statement and condition). Keep in mind
that the declarant can state an intent which is a future intent to do something. The
state of mind is in the present (the intent) but the action contemplated is in the future.
There is no requirement that the statement be while under the stress of the excitement
a. CANNOT USE MEMORY OR RECOLLECTION OF PAST CONDUCT
i. Backward looking statements are generally not admissible under this
exception. For example, statements that people make about feelings they had
at a prior time (statement must be made at the time of the state of mind or
condition). They cannot refer back to their earlier state of mind. Also,
memory is not admissible as it refers to a previous state of mind. One cannot
state I went to the movies yesterday as it is inadmissible to prove that you
did, in fact, go to the movies. However, you can state I am going to the
movies tomorrow. The statement is admissible to prove that you did, in fact,
go or intended to go to the movies.
b. MUTUAL LIFE INSURANCE V. HILLMON
i. When intent is a material fact in a chain of circumstances, it may be proved by
contemporaneous oral or written declarations of the party (letters introduced
to prove intent of deceased to go to Crooked Creek). The Hillmon doctrine
permits statatement of intent to act with another person to be admitted as
evidence that the declarant may have performed his part of the stated act. The
jury may then consider the likelihood that the declarant acted in the manner he
intended.
(ii) FACT REMEMBERED OR BELIEVED IN EXECUTION OF WILL
1. FRE 803(3) allows testimony regarding memory or belief as to a fact remembered or
believed when it relates to the execution, revocation, or terms of the declarants will.
Thus, one can make a present statement to a prior state of mind (the declarant was
fond of her sister).
(iii)
STATEMENTS MADE TO A DOCTOR OR PSYCHIATRIST
1. Any statements made to a medical professional may also qualify under this rule. If a
patient describes a problem with his physical condition, that statement would qualify
as a statement to a then existing physical condition. However, often these statements
may be seen as self-serving and, as such, may lack credibility. Thus, certain
statements that fall under this rule might still be excluded by the court.
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(iv)FACTUAL STATEMENTS ATTACHED TO STATE OF MIND

1. Statements of state of mind attached to factual statements are sometimes excluded
when the prejudice outweighs the probative value. If admitted into evidence, only the
state of mind may be considered. The court should give a limiting instruction to this
effect. However, there is always a danger that the jury will draw the wrong inference
that the stated facts are true even if the statement is only admitted to show state of
mind.
4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
a) Statements relating to past and present conditions and medical history, made for the purposes of
diagnosis or treatment, are seen as reliable and trustworthy. However, the statements that may be
admitted under this rule only extend to those statements reasonably pertinent to the treatment. Thus,
statements regarding fault do not qualify. For example, a statement that the declarant was hit by a bus is
reasonably pertinent to treatment; however, a statement that the bus ran a red light would not be
pertinent. The fact that the bus ran a red light could not reasonably assist a medical professional in the
diagnosis or treatment of the injury. Thus, the statement indicating the type of trauma is admissible, but
the fault of the driver is not
i) STATEMENTS DO NOT NEED TO BE MADE BY THE PHYSICIAN OR PATIENT
(1) The statement need not be made to a physician. Statements made to hospital attendants,
ambulance drivers, or family members are included. In addition, some courts will allow a
statement of a close family member to be admitted under this rule. The statement of a bystander
(even if unknown) might also be admissible if the circumstances are such that the statements
have a high degree of reliability (close relationship between the parties offers an adequate
assurance of trustworthiness) or, alternatively, if the physician relied on those statements for
diagnosis or treatment. Arguably, a physicians statement might qualify under this rule. The rule
does not specify who the declarant must be. However, the prevailing view is that a physicians
statement is not admissible only extremely limited support exists for the view that a physicians
statement falls under FRE 803(4). Unlike the patient, the physician is not concerned with his
own health and, as such, his statement might be subject to fabrication. Thus, a court might
exclude a physicians statement as failing to meet the underlying purpose of the hearsay
exception (a concern for effective treatment).
(a) SELF-SERVING MOTIVE
(i) This exception is based on the belief that a partys self-interest to diagnose and treat a
condition will assure that the party will not fabricate testimony. It is in a partys best
interest to provide accurate information in order to treat an illness. When a declarant is
not motived by its own self-interest, one can arguably say that there is a lessened
likelihood of truthfulness. As such, the hearsay statement might be excluded.
ii) STATEMENTS MADE IN PREPARATION FOR LITIGATION
(1) The conventional wisdom has excluded from the hearsay exception, as not within its guarantee
of truthfulness, those statements to a physian consulted only for the purposes of enabling him to
testify. However, the FRE has removed this requirement. Instead, one must establish that it is
reasonably pertinent to diagnosis or treatment. If the visit is not meant to diagnose or treat, but
only to prepare for litigation, it will not qualify under this rule (a lot of gray area must be
reasonably related to diagnosis or treatment).
iii) STATEMENTS OF IDENTITY OF ATTACKER
(1) Generally, a statement of identity of an attacker is not admissible. However, in cases of child
abuse by a household member, identity is relevant to treatment of stopping abuse. A similar
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argument might be made as to domestic violence. Identifying the source of the abuse will be of
significance for the psychological or emotional treatment.
(a) BLAKE V. STATE
(i) Statements made to a health professional are admissible when the declarants motive in
making the statement is for the purpose of diagnosing or treatment of a medical
condition. This includes statements about the cause of injury (childs statements to
doctor about sexual abuse are admissible).
iv) NOT INTENDED TO ADVERSELY AFFECT PRIVILEGE RULES
(1) This rule is not intended to adversely affect any privilege rules. The rule must be read in
conjunction with FRCP 35 which provides that whenever the physical or mental condition of a
party (plaintiff or defendant) is in controversy, the court may require him to submit to an
examination by a physician. It is often these examinations that will be admitted under this
exception.
v) MEDICAL RECORDS
(1) Statements contained in medical records may present a double hearsay problem. However, most
medical records are usually admissible as business records. The person who makes the record
must be someone who regularly makes such records in the course of business. If the medical
record is prepared by an expert witness for purposes of litigation, it is not admissible as a
business record.
5) RECORDED RECOLLECTION
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect
that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself
be received as an exhibit unless offered by an adverse party.
a) Elements: (1) Made or adopted a record (permits 3rd party preparation); (2) based on firsthand
knowledge; (3) when the matter recorded was fresh in the witness memory; (4) the record correctly
reflects the witness knowledge (3rd party may testify as to accuracy); (5) witness at trial must have
insufficient recollection to testify fully and accurately about the matter recorded. Note that the witness
does not need to actually write the memorandum. The memorandum could be read to and adopted by
the witness.
i) This hearsay exception permits the reading into evidence of a memorandum or record concerning a
matter about which a witness once had knowledge of but now has insufficient recollection to enable
him to testify accurately and fully. The memorandum or record must have been made or adopted by
the witness or witnesses when the matter was fresh in the witness mind. Adoption of the record
occurs when the witness has examined it, found it accurate, and subsequently adopts the report. The
rule also covers situations where multiple parties adopt a shared writing or when the information is
passed along a chain of persons (employer dictating to secretary). However, if dictation is done both
the witness and the secretary may need to testify that the transcription is an acurate reflection of the
recording. The guarantee of trustworthiness is found in the reliability inherent in a record made
while the events were still fresh in the mind and the declarant was still able to accurately reflect that
information.
(1) WITNESS MUST HAVE INSUFFICIENT RECOLLECTION TO TESTIFY
(a) Recorded recollection requires that the witness have insufficient recollection to enable the
witness to testify fully and accurately. Without this requirement, a statement prepared for the
purposes of litigation would taint the testimony/recorded recollection of the witness
(statement prepared by lawyer).
(i) USE AGAINST HOSTILE WITNESS
1. There is some support regarding the use of a recorded recollection of a witness who
later, at trial, contends that they have insufficient memory to testify when the
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circumstances indicate she is hostile or may have a motive not to testify against the
accused. Generally, if she does not recant or deny her previous statement, many
courts will allow the prosecutor to enter the unsworn police statement into evidence.
(ii) CONDITIONAL RELEVANCE
1. Foundation evidence needs to be established in order to have a recorded recollection
read into evidence. Thus, even if the witness cannot remember the contents of the
recorded recollection, one must still be established that the recorded recollection was
made or adopted by the witness. As such, the witness (or third party who can
establish the foundation evidence) may still need to testify under this rule. In
addition, the witness normally should testify as to his inability to have sufficient
recollection to testify.
(2) RULE DOES NOT DETERMINE CONTEMPORANEITY AND ACCURACY
(a) There is no clear rule regarding the procedure used to determine whether the event was
recorded while still fresh in the witness memory. In fact, there is no clear rule that requires
that the recorded recollection be contemporaneously done. Presumably, as the length of time
increases from the date in question, the likelihood of accuracy is reduced. Of course, this
may preclude the recorded recollection from being admissible. There is also no clear rule
regarding the method of insuring accuracy of the recorded recollection. The rule does not, on
its face, preclude review of notes, photographs, or other evidence while recording his
recollection. However, one can argue that these items could taint the recollection and, again,
might preclude the recorded recollection from being admissible. In any event, these
questions will depend on the particular facts of a case.
(3) RECORDED RECOLLECTION OF MULTIPLE PERSONS
(a) Multiple persons can be involved in the process of observing and recording a shared event,
and this is entirely consistent with this exception. However, each party that seeks to admit a
recorded recollection must establish that they made or adopted that recollection.
(4) DIFFERENT FROM PAST RECOLLECTION REFRESHED
(a) Past recollection recorded is different from past recollection refreshed. Past recollection
refeshed is a technique used to help witnesses remember and testify from their present
memory. Anything can be used to help refresh memory, but thing used is not evidence.
Generally, past recollection is used on direct to refresh the memory of your own witness and
not on cross-examination. In the event the witness still cannot remember, a past recollection
recorded may be read into evidence (if one exists).
(5) PAST RECOLLECTION RECORDED IS READ INTO EVIDENCE
(a) The past recollection recorded may be read into evidence but may not be entered as an
exhibit into evidence. Thus, the jury will not be permitted to take the written statement into
the jury room for consideration even though they may consider the evidence as substantive
evidence. Items used to refresh a witnesses memory under past recollection refreshed are not
considered evidence and may not be considered by the jury.
6) RECORDS OF REGULARLY CONDUCTED ACTIVITY
(6) Records of Regularly Conducted Activity.--A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that
complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of
information or the method or circumstances of preparation indicate lack of trustworthiness. The term
business as used in this paragraph includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
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a) Elements: (1) a record of an act, event or condition; (2) made at or near that time; (3) by or from
information transmitted by a person with knowledge; (4) which was kept in the course of a regularly
conducted business activity (but not in the course of business litigation).
i) This exception applies to business records. Business records are considered reliable as they are
created by a systematic process, subject to checking, regularity, and continuity which produce habits
of precision. The accuracy of these records is strengthened by the business reliance upon them and
the employees duty to keep an accurate record as part of a continuing job or occupation. There is
often an emphasis on the requirement of a routine and repetitive nature to the records (these can be
see as an indiciation of whether the records are trustworthy). Thus, it must be the regular practice of
the business activity to make those records. Business records include records that are in the course
of a regularly conducted activity which includes many non-traditional business records.
(1) NOT REQUIRED TO PRODUCE ALL WITNESSES
(a) The requirement to produce all witnesses, or to account for the nonproduction of those
witnesses who participated in the gathering, transmitting, or recording of information is
relaxed. Instead, the custodian or other qualified witness may testify as to the business
records or they may be certified under FRE 902 (11)(12), unless the source of the
information, method, or circumstances of preparation indicate a lack of trustworthiness.
(i) A PERSON WITH KNOWLEDGE
1. The rule requires that the information contained in the records be from a person with
knowledge; however, there is no requirement that the person with knowledge be
identified. Thus, one need not introduce evidence to establish that a specific
individual had firsthand knowledge of the information contained in the record. A
sufficient foundation will exist if the party seeking to introduce the evidence can
show that it was the regular practice of the activity to base such memorandums,
reports, records, or data compilations upon a transmission from a person with
knowledge. Thus, the routine practice and procedures of the business can be used to
circumstantially show that the person who provided the information would have had
sufficient knowledge. As such, the participants furnishing the information to be
recorded were all acting under a duty of accuracy which the employer relied on, even
if they are unidentified.
a. FOUNDATION WITNESS NECESSARY
i. The testimony of someone knowledgable regarding the record system of the
business is required to establish the source of the information and that the
records were keep in the course of business. Typically the individual who
testifies is the custodian of the records or other qualified witness. However,
the parties may agree to waive this testimony.
b. RECORDS NOT KEPT IN ORDINARY COURSE OF BUSINESS
i. While a bystander may be a person with knowledge, the information provided
by a bystander is not kept in the ordinary course of business. The assurance of
accuracy does not extend to the information itself and even if the information
is recorded with complete accuracy, it still may not be accurate. For example,
a police report might contain information from a bystander. The officers
information recorded in the report is recorded in the regular course of
business, but the bystanders is not. Thus, a bystander: (1) does not keep
those records in the regular course of business; and, (2) the source of
information indicates a lack of trustworthiness. However, if the information
recorded is subject to another exception, it is admissible (present sense
impression).
c. DIRECT INVOLVEMENT NOT REQUIRED
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i. The person with knowledge is not required to be directly involved in the event
reported. This is not required to insure the trustworthiness of the information
recorded. Instead, a person may record matters which are observed such as
the weather.
ii) NOT REGULARLY RECORDED OR BIAS
(1) Information that is not regularly reported in the course of business and information that may be
subject to bias does not qualify under this rule. The absence of routineness indicates a lack of
motivation to be accurate. Often records produced in anticipation of litigation will have
sufficient objective evidence of their bias to justify their exclusion. Although there is no
requirement of a lack of motive, motive will significantly impact whether the records are
trustworthy. Consequently, the rule allows records made in the course of a regularly conducted
activity, subject to the condition that they may be excluded if the sources of information or
other circumstances indicate lack of trustworthiness.
(a) EXAMPLE
(i) An engineers accident report was not allowed into evidence. The report was not
prepared in the regular course of business. The report was prepared for use in litigation,
not railroading.
(b) OPINIONS QUALIFY AS BUSINESS RECORDS
(i) Opinions are proper subjects for admissible entries and are not considered to be bias. As
such, a medical diagnosis, prognosis, test result, and other types of opinion are all
permitted under this rule.
iii) FORM OF RECORD
(1) Almost any kind of record may be included as a business record if the elements of this rule are
met. The rule broadly includes memorandum, report, record, or data compilation, in any form
as the types of records admissible. Data compilation include any means of storing information in
other than a documentary form. It includes, but is not limited to, electronic computer storage.
iv) TYPE OF BUSINESS INCLUDED UNDER RULE
(1) A business is defined as including business, profession, occupation and calling of every kind.
This definition extends to institutions and associations like schools, churches, and hospitals. In
addition, self-employed individuals may also be able to use this exception to admit their business
records. An employee of a company may also keep their own records regarding their business
activities. These records also fall under this rule, even though they are kept for the employees
business purposes and not the employers. Thus, the intent of calling of every kind seems to
include any work-related endeavors and perhaps even some hobbies.
7) ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE WITH THE PROVISIONS OF
PARAGRAPH (6)
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a
matter is not included in the memoranda reports, records, or data compilations, in any form, kept in
accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if
the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and
preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
a) The failure of a record to mention a matter which would ordinarily be recorded is satisfactory evidence
of its nonexistence. The lack of information might not be considered hearsay under FRE 801 or,
alternatively, could be negative hearsay. The effect of this rule is to clarify that the nonexistence of an
entry in a business record is admissible to prove the nonexistence of that fact. In order for this rule to
apply, you must first establish that there is a business record that falls under 803(6).
8) PUBLIC RECORDS AND REPORTS. RECORDS, REPORTS, STATEMENTS, OR DATA
COMPILATIONS, IN ANY FORM, OF PUBLIC OFFICES OR AGENCIES
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant
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to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal
cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information or other circumstances indicate
lack of trustworthiness.
a) FRE 803(8) recognizes three types of public records: (1) those setting forth the activities of the office or
agency; (2) those recording matters observed pursuant to a legal duty; and, (3) investigative reports. The
rule contains two limitations. First, otherwise admissible public records may be excluded if the sources
of information or other circumstances indicate lack of trustworthiness. Second, certain types of police
records are inadmissible in criminal cases. This rule does not distinguish between federal and
nonfederal offices and, as such, state agencies would also be included under this rule.
i) RATIONALE
(1) Justification for the public record exception is based on the assumption that a public official will
perform his duty properly and is not likely to remember the details independently of the record.
In addition, the types of records produced are not normally subject to personal motivations.
ii) THOSE SETTING FORTH THE ACTIVITIES OF THE OFFICE OR AGENCY
(1) FRE 803(8)(A) provides for the admission of records setting forth the activities of the office or
agency. Although the rule contains no explicit firsthand knowledge requirement, that
requirement is implicit. As with business records, the person making the record need not have
firsthand knowledge so long as the official transmitting the information had such knowledge.
iii) THOSE RECORDING MATTERS OBSERVED PURSUANT TO A LEGAL DUTY
(1) FRE 803(8)(B) governs records setting forth matters observed pursuant to duty imposed by law
as to which matters there was a legal duty to report. However, this rule excludes matters
observed by police officers or other law enforcement personnel in criminal cases. Thus, is
limited to only those things observed (factual and objective viewpoint) and only where there
exists a duty to report. If there is no duty to report, it is hearsay.
(a) DOUBLE HEARSAY
(i) The firsthand observations of the official making the report or those of another official
with a duty to report come within the exception. However, hearsay statements by third
persons are not admissible merely because they are included in the public record. For
example, 911 tapes are public records, but the statements recorded were made by
strangers who were under no duty to report accurately.
(b) POLICE RECORDS EXCLUSION
(i) The rule specifically excludes police reports in criminal cases due to a concern that
observations by police at the scene of the crime or the apprehension of the defendant are
not as reliable as observations by public officials in other cases because of the adversarial
nature of the confrontation between the police and the defendant in criminal cases.
However, police reports are permitted in civil trials (accident reports, etc.).
1. ROUTINE NONADVERSARIAL RECORDS
a. Most federal courts have adopted a flexible approach, holding that the police
records exclusion does not apply to all such records. Due to the lack of any
motivation on the part of the recording official to do other than mechanically
register an unambiguous factual matter, such records are, like other documents,
inherently reliable.
2. OFFERED BY DEFENSE
a. FRE 803(8)(B), on its face, excludes police records when offered by the defense
as well as by the prosecution. However, some courts have rejected this
interpretation finding that it was probably a congressional oversight. The police
records exclusion was added to specifically deal with prosecution use of these
records. In fact, compare with FRE 803(8)(C) which specifically allows
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investigative reports to be used against the government. Thus, it would seem

illogical that a factual report is excluded, but one based on an investigative
opinion is not.
3. OTHER LAW ENFORCEMENT PERSONNEL
a. The rule is interpreted broadly to include civil workers who work on behalf of law
enforcement. Thus, a customs chemist is considered part of law enforcement and,
as such, cannot use the exception. Generally, one must consider the goal of the
party, and on behalf of what party he works for, when considering whether he falls
under the category of other law enforcement personnel.
iv) INVESTIGATIVE REPORTS
(1) The more controversial area of public records is the investigative or evaluative report. FRE
803(8)(C) admits investigative or evaluative records in civil actions and against the prosecution
in criminal cases. These types of reports are typically prepared by officials with special expertise
who are often the first on the scene. Factors which may be of assistance in determining the
admissibility of evaluative reports include: (1) the timeliness of the investigation; (2) the special
skill or experience of the official; (3) whether a hearing was held and the level at which
conducted; and, (4) any possible problems of bias.
(a) USE OF INVESTIGATIVE/EVALUATIVE REPORTS RESTRICTED
(i) Investigative reports may be used in civil actions and proceedings, unless the source of
the information or other circumstances indicate a lack of trustworthiness. However, the
use of investigative reports in criminal proceedings is strictly restricted. In criminal
proceedings, an investigative report may only be used against the government, not by the
government, provided the circumstances do not indicate a lack of trustworthiness. Also
note that matters observed by police officers or other law enforcement personnel are
excluded under this rule when used in a criminal proceeding; however, there is no explicit
requirement of trustworthiness. In either of these situations, there may result a collision
with the confrontation rights of the accused if this type of hearsay evidence is permitted
in a criminal proceeding.
(b) OPINIONS
(i) The supreme court has adopted a liberal view of admissibility. Factually based
conclusions or opinions are not on that account excluded from the scope of the rule. In
addition, findings of administrative agencies may be admitted under the rule, but judicial
findings do not qualify.
(c) REQUIRED ELEMENT OF TRUSTWORTHINESS
(i) Unlike the proceeding two subsections of FRE 803(8) investigative reports must be
analyzed for their trustworthiness. FRE 803(8)(C) excludes use of an investigative report
in either a civil or criminal proceeding if the sources of information or other
circumstances indicate lack of trustworthiness.
(d) REPORT CAN BE BASED ON INFORMATION FROM OUTSIDE SOURCES
(i) Unlike the previous two subsections, an investigative report may be based on an outside
source. The investigator can use the information obtained by third parties, other
investigators, and police officers to produce a factual finding or opinion regarding the
likely cause of the accident.
b) BUSINESS RECORDS COMPARED
i) Many public records also satisfy the requirements of the business records exception; the opposite,
however, is not true. Most businesses, of course, are not run by the government. Moreover, the
public records exception does not require that the record be prepared at or near the time of the event
recorded. In other words, delayed entries may be admissible. Nor does a public record need to be a
regular or routine record. Recall also, however, that records that are inadmissible under the police
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records exclusion of the public records exception and, as such, are also not admissible as business
records.
c) EXCLUDING POLICE OFFICERS AND OTHER LAW ENFORCEMENT
i) Reports containing matters observed by police officers and other law enforcement personnel in
criminal cases is excluded from this hearsay exception. Observations by police officers at the scene
of the crime or apprehension of the defendant are not as reliable as observations by public officials in
other cases due to the adversarial nature of the confrontation between the police and the defendant.
Thus, recorded observations are excluded when the police officer is available to testify (death,
physical, mental illness, or infirmity). However, when the officer is unavailable, the report may be
admissible under FRE 804(a)(4) and (a)(5)
9) RECORDS OF VITAL STATISTICS
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office pursuant to requirements of law.
a) Records of vital statistics are often the subject of particular statutes making them admissible in evidence.
Thus, records or data compliations, in any form, of births deaths, or marriages are permitted provided if
it was prepared by a public office pursuant to law.
10) ABSENCE OF PUBLIC RECORD OR ENTRY
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data
compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and preserved by a public office or agency,
evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to
disclose the record, report, statement, or data compilation, or entry.
a) Evidence that proves the nonoccurence or nonexistence of any event which would normally be recorded
may be admitted provided the evidence is in the form of a certification or there is testimony to the effect
that a diligent search failed to disclose the record. The types of reports that may be used to determine
whether there is a nonoccurence or nonexistence of a particular matter are those regularly made and
preserved by a public office or agency and are more specifically set forth in paragraphs (8) (public
records) and (9) (vital statistics). Often this rule is relevant when the situation is one in which the
absense of a record may itself be the ultimate focal point of an inquiry.
11) RECORDS OF RELIGIOUS ORGANIZATIONS
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy,
ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a
regularly kept record of a religious organization.
a) Records of activities of religious organizations are also recognized under the business records exception
to the hearsay rule. However, the business records exception to the hearsay rule requires that the
information be transmitted by a person with knowledge and that they be kept in the course of regularly
conducted business activity. Thus, statements provided by third parties would not qualify under this rule
since they are not providing the information in the course of a business activity. However, since it is
unlikely that false information would be furnished on occassions of this kind, the rule contains no
requirement that the informant be in the course of the regularly conducted business activity.
12) MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the
maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public
official, or other person authorized by the rules or practices of a religious organization or by law to perform the
act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
a) In respect to public officials, this rule is duplicative of FRE 803(8), at least to the extent that it deals
with a certificate by a public official (judge who performs a marriage ceremony). However, this rule
also includes clergyman or similar persons (notary public in Florida) who perform marriages or other
ceremonies or administer sacraments. Certificates of such matters as baptism, confirmation, or marriage
are also included under this rule. When the person executing the certificate is not a public official, the
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self-authenticating character of the documents purporting to emanate from public officials (see FRE
902) is lacking and proof is required that the person was authorized and did make the certificate
(foundation evidence). The time element is presumed to be executed on the date it bears and, as such,
the time element generally does not present a problem.
13) FAMILY RECORDS
(13) Family records. Statements of fact concerning personal or family history contained in family Bibles,
genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or
tombstones, or the like.
a) Records of family history kept in family Bibles have by long tradition been received in evidence
(recognizing family Bible entries as proof of age in the absence of public or church records).
14) RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY
(14) Records of documents affecting an interest in property. The record of a document purporting to
establish or affect an interest in property, as proof of the content of the original recorded document and its
execution and delivery by each person by whom it purports to have been executed, if the record is a record of
a public office and an applicable statute authorizes the recording of documents of that kind in that office.
a) The recording of title documents is a statutory development. Under this rule, documents that are
recorded in a public office, such as the recording office, may be admitted into evidence under an
exception to the hearsay rule. However, the records admitted into evidence must establish or affect an
interest in property. The fact-finder may consider the content, execution, and delivery of any properly
recorded document that affects an interest in property.
15) STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY
(15) Statements in documents affecting an interest in property. A statement contained in a document
purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the
document, unless dealings with the property since the document was made have been inconsistent with the
truth of the statement or the purport of the document.
a) Dispositive documents often contain recitals of fact. A deed purporting to have been executed by an
attorney in fact may recite the existence of a power of attorney, or a deed may recite that the grantors are
all heirs of the last record owner. Under this rule, these recitals are exempted from the hearsay rule. The
circumstances under which dispositive documents are executed and the requirements that the recital be
germane to the purpose of the document are adquate guarantees of trustworthiness. However, this rule is
not applicable if the dealings with the property have been inconsistent with the purport of the document.
16) STATEMENTS IN ANCIENT DOCUMENTS
(16) Statements in ancient documents. Statements in a document in existence twenty years or more the
authenticity of which is established.
a) In order for this rule to apply: (1) the document has to be at least 20 years old; and, (2) the document
must be authenticated. This rule applies to all sorts of documents including letters, records, contracts,
maps, certificates, and title documents. The age of the document provides assurance that the writing
antedates the present controversy and the danger of mistake is minimized by the requirement that the
document be authenticated.
17) MARKET REPORTS, COMMERCIAL PUBLICATIONS
(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other
published compilations, generally used and relied upon by the public or by persons in particular
occupations.
a) At common law, ample authority supported the admission of items falling into this category. This rule
provides for admissibility into evidence of reports in official publications, trade journals, newspapers, or
periodicals of general circulation of such market. In addition, telephone directories, city directories, and
credit reports also fall under this exception. However, this exception is strictly limited to those reports
that are generally used and relied upon in particular occupations and, as such, general news will not
qualify under this exception. The basis of trustworthiness is general reliance by the public or by a
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particular segment of it, and the motivation of the compiler to foster reliance by being accurate. Often,
however, information in a market report will not be hearsay if offered to show a state of mind (why the
investor did or did not do something).
18) LEARNED TREATISES
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination
or relied upon by the expert witness in direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable
authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If
admitted, the statements may be read into evidence but may not be received as exhibits.
a) In order to admit a learned treatise, two requirements must be met: (1) the treatise must be shown to be
reliable authority (someone with appropriate knowledge in the area must say that the treatise is from a
reliable source); and, (2) the treatise must be a published work. The expert testifying may rely on the
treatise during direct examination or may be challenged by it on cross-examination. The treatise may be
read into the record, but not received as an exhibit
i) MAY BE MISUNDERSTOOD OR MISAPPLIED
(1) While a treatise may have a high standard of accuracy as it is written primarily and impartially
for professionals and is subject to professional scrutiny, there exists a potential that the treatise
will be misunderstood and misapplied without expert assistance and supervision. Thus, an expert
is normally required to testify in order to explain the application of the information contained in
the treatise. It is only when the facts are common knowledge, not subject to dispute, and not
subject to interpretation that the treatise will be capable of judicial notice under this exception.
By requiring the testimony of a witness or other expert, the court avoids the potential
misunderstanding and misapplication of the treatise that may result.
(a) NOT REQUIRED TO ACCEPT THE TREATISE AS AUTHORITATIVE
(i) The rule does not require that a witness rely upon or recognize the treatise as
authoritative. Thus, the expert is not forced into a situation where he must refuse or
concede reliance or authoritativeness.
19) REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY
(19) Reputation concerning personal or family history. Reputation among members of a person's family by
blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth,
adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other
similar fact of personal or family history.
a) FRE 803(19) is limited to reputation and statements concerning personal or family history. The type of
information permitted under this rule is thought to be such that it is unlikely that a person would
fabricate this information and also that this type of information would be known in the community.
Thus, statements concerning birth, adoption, marriage, divorce, death, legitimacy, relationship by blood,
adoption, marriage, ancestry, or other similar fact of personal or family history is admissible.
20) REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY
(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the
controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of
general history important to the community or State or nation in which located.
a) Evidence of reputation as to land boundaries and land customs, including private and public boundaries,
is admissible. In addition, customs affecting lands in the community, reputation as to events, and
general history are admissible. The reputation evidence is required to antedate the controversy, but does
not need to be ancient. When the matter is one of general history, it is likely that the matter predates the
controversy in question. However, the historical nature of the subject matter dispenses with the need
that the reputation as to events of general history predate the controversy in question. This rule is
designed to facilitate proof of events when judicial notice is not available; however, many historical
events may be judicially noticed. Prior to modern surveying methods and plats, this exception was
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probably required to clear up boundary disputes where there was not a clear definition where the
property line was.
21) REPUTATION AS TO CHARACTER
(21) Reputation as to character. Reputation of a person's character among associates or in the community.
a) FRE 803(21) recognizes the acceptance of reputation evidence as a means of proving human character.
The exception only deals with the hearsay aspects of this kind of evidence. Limitations based upon
admissibility or other grounds with be found under FRE 404 and FRE 608. The exception is a
reiteration, in the context of hearsay, of Rule 405(a).
22) JUDGMENT OF PREVIOUS CONVICTION
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a
plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable
by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but
not including, when offered by the Government in a criminal prosecution for purposes other than
impeachment, judgments against persons other than the accused. The pendency of an appeal may be
shown but does not affect admissibility.
a) FRE 803(22) allows the admission into evidence of a final judgment (after trial or upon a guilty plea), in
regard to a crime punishable for imprisonment in excess of one year (felony), to prove any fact essential
to sustain the judgment. Practical considerations require the exclusion of convictions of minor offenses,
because the motivation to defendant at this level is often minimal or nonexistent. The most obvious use
of this evidence is to use a conviction for arson, or other crime, to support that defendant breached the
terms of the contract and thus preclude his recovery under a homeowners insurance policy. However,
that party will still be allowed to offer an explanation as to any conviction used to establish any fact
essential to sustain the judgment. A jury is likely to give the prior conviction substantial effect unless
the defendant offers a satisfactory explanation..
i) PRIOR FELONIES OF SOMEONE IS ADMISSIBLE TO PROVE ANY FACT THAT WENT INTO
GETTING THE CONVICTION
(1) A prior felony of someone is admissible for its hearsay use to prove any fact that went into
getting that conviction. Thus, one need not decide the same facts that were already determined at
a previous trial. You can therefore use the prior record of that conviction as proof. However,
you cant use the prior conviction of another person to get a conviction of the current defendant
under this rule.
ii) RULE ONLY INCLUDES FELONY CONVICTIONS
(1) The rule includes only convictions of a felony grade (one year or more). In addition, pleas of
nolo contendere and misdemeanors are not included under this rule.
iii) CRIMINAL PROSECUTION
(1) A judgment against a defendant in a criminal prosecution may not be used against a defendant in
a second criminal prosecution as this would violate the defendants confrontation clause rights.
Thus, this evidence is limited to impeachment only. In addition, this exception does not apply to
evidence regarding the conviction of a third person, offered against the accused in a criminal
prosecution, to prove any fact essential to sustain the judgment of conviction. A contrary
position would clearly violate the right of confrontation. However, the situation may be different
when the conviction of another person is an element of the crime.
23) JUDGMENT AS TO PERSONAL, FAMILY, OR GENERAL HISTORY, OR BOUNDARIES
(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of
personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by
evidence of reputation.
a) A prior judgment as to personal, family, general history, or boundaries, if same would be provable by
evidence of reputation, is admissible. Thus, a judgment stating that the father was born in American can
be used in a daughters subsequent administrative proceeding. In effect, this rule states that any matter
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in FRE 803(19)-(21) that has already been decided by a court can be used by another court in a
subsequent proceeding.
HEARSAY EXCEPTIONS WHEN DECLARANT IS UNAVAILABLE
HEARSAY EXCEPTIONS WHEN DECLARANT IS UNAVAILABLE (must establish unavailability by
preponderance of evidence under FRE 104)
Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability. Unavailability as a witness includes situations in which the declarant-1) EXEMPTED BY PRIVILEGE (e.g., 5th Amend, spousal, attorney-client)
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter
of the declarant's statement; or
a) A declarant that exercises a claim of privilege is considered unavailable under this rule. A ruling by the
judge is required, which implies that an actual claim of privilege must be made to satisfy this rule. If no
privilege is asserted, this rule would not apply.
2) REFUSAL TO TESTIFY (for example, witness claims privilege which is rejected by the court, but still
refuses to testify)
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of
the court to do so; or
a) A witness that refuses to testify concerning the subject matter of his statement, despite judicial pressure
to do so, is unavailable. A court must order the declarant to testify in order for this rule to apply (would
need to subpeona the witness).
3) LACK OF MEMORY (lack of memory must be established by the witness himself and trial judge can
choose to disbelieve claim of lack of memory)
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
a) A witness that testifies as to a claimed, alleged, or proven lack of memory to the subject matter of his
statement is unavailable. Otherwise, the claim of lack of memory would put the testimony beyond
reach. However, under this rule lack of memory must be established by the testimony of the witness
himself. That witness would be subject to cross-examination. Note, there is no requirement that the
court believe that the witness have a lack of memory, only that the witness testify as to the lack of
memory.
4) PHYSICAL OR MENTAL ILLNESS (continuance may be granted if condition is temporary)
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental
illness or infirmity; or
a) A person who suffers from either a physical or mental illness which renders him unable to testify at a
hearing makes that person unavailable.
5) ABSENT AND UNABLE TO PROCURE DECLARANTS ATTENDANCE (must be both beyond
judicial process and other reasonable means to secure presence at trial)
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's
attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance
or testimony) by process or other reasonable means.
a) The declarants absence from the hearing combined with an inability to compel attendence (service of
process, subpeona, etc.) renders the declarant unavailable. Thus, the declarant cannot avoid service of
process in order to place his testimony out-of-reach and, likewise, render his out-of-court statement
inadmissible. Depending on the circumstances, a deposition may be required.
i) DEPOSITION OF DECLARANT
(1) The rule requires that an attempt be made to obtain the attendance or testimony of the declarant
under FRE 804(b)(2)-(4)as a precondition to admitting evidence under this rule. Obviously, an
attempt need not be made to obtain the testimony when the declarant is asserting privilege or it is
86

impossible to do so. The testimony or attempt to obtain the testimony might also be useful in
establishing the unavailability of the declarant under this rule. In fact, the FRE as adopted
requires speicifically that some attempt be made to obtain the testimony.
ii) INCARCERATION OUTSIDE THE JURISDICTION
(1) Barber v. Page: Incarceration outside the jurisdiction is not sufficient to show unavailability in
the absence of proof of efforts to compel attendance.
b) WRONGDOING OF PROPONENT
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence
is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the
witness from attending or testifying.
i) If the condition that results in the unavailability is the result of the proponent (party wanting to use
the out-of-court statement) of the statement, the requirement is not satisfied. Thus, the party cannot
cause the death, imprisonment, or engage in any other conduct that would result in the unavailability
of the declarant. Otherwise, the declarant will not be considered unavailable under this rule.
c) HEARSAY EXCEPTIONS WHEN DECLARANT UNAVAILABLE
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a
witness:
d) The exceptions listed under Rule 803 possess certain qualities, including reliability, that justify its
admissibility regardless of whether the declarant is available. However, under 803(b) certain types of
testimony is not equal in quality to the testimony of the declarant. Thus, if the declarant is unavailable
under 803(a), certain types of hearsay statements may be admitted under 803(b). Generally, in-person
testimony is preferred over hearsay, hearsay is preferred over a complete loss of the evidence of the
declarant.
1) TESTIMONY GIVEN AS A WITNESS AT ANOTHER HEARING
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party
against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had
an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
a) When the declarant is unavailable, testimony of the witness at another hearing, proceeding, or deposition
may be admitted if the party (or predecessor in interest) had an opportunity or similar motive to develop
the testimony by cross-examination. Grand jury testimony is not admissible against criminal defendant
because there is no opportunity to cross-examine. In this situation, the only ideal condition missing is
the presence of the trier and opponent (demeanor evidence) which is lacking with all hearsay evidence.
However, opportunity to observe demeanor is what in a large measure confers depth and meaning upon
oath and cross-examination. Thus, in general, it is still preferred that the actual witness be produced
when available.
b) ELEMENTS
i) Prior testimony of witness at prior hearing: (1) Party against whom the testimony is admitted must
have had the opportunity to cross-examine the witness at the time of testimony (requires only
opportunity, not actual examination; (2) Only admissible against a party involved or a predecessor in
interest (in civil proceeding); (3) the party had a like motive to develop the testimony.
ii) MUST BE PERMITTED AN OPPORTUNITY TO DEVELOP TESTIMONY
(1) The party against whom the testimony is now offered against must have been permitted an
opportunity to develop the testimony in the previous proceeding. Alternatively, in a civil case
the testimony may be admitted if a predecessor in interest had an opportunity and similar motive
to develop the testimony. In this situation, no unfairness results by requiring the opposing party
to accept his prior conduct of cross-examination (or failure to cross-examine) at the previous
proceeding. Only the opportunity to appraise demeanor has been lost.
(a) CONFRONTATION CLAUSE/PRIVITY
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(i) Testimony given at a preliminary hearing was sufficient to satisfy the confrontation
clause requirements. However, the exception requires that the accused have an
opportunity to develop the testimony through cross-examination. In civil matters, the
rule departs from common law which required a privity of interest. Instead, one may
substitute a party with a right and opportunity to develop the testimony with similar
motive and interest.
(ii) MUST HAVE SIMILAR MOTIVE AND INTEREST
1. This rule only applies if the testimony of an unavailable witness was developed by
one who had a similar motive and interest to develop the testimony of the witness.
Generally, it is unfair to impose upon the party against whom the hearsay evidence is
being offered responsibility for the manner in which the witness was previously
handled by another party.
2) DYING DECLARATION
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant believed to be impending death.
a) A statement made while believing that the declarants death was imminent concerning the cause or
circumstances of that impending death is admissible in a homicide prosection, civil action, or
proceeding. At common law, the statement was required to be that of the victim offered in a homicide
prosecution. In fact, this exception no doubt originated as a result of the need for evidence in homicide
cases. While the rule has been expanded to include civil actions, it has not been expanded beyond
homicide prosecutions in criminal actions. Thus, declarations by victims in prosecutions for other
crimes were and continue to be outside the scope of this exception.
i) ELEMENTS
(1) Dying Declaration statement: (1) must be made while under the belief that declarants death was
imminent; (2) statement must concern the cause or circumstances of what declarant believed to
be his impending death.
ii) STATEMENTS OUTSIDE CAUSE OR CIRCUMSTANCES OF DEATH
(1) The exception is limited to only that testimony related to the cause or circumstances of the
declarants death. Testimony regarding other matters, that do not concern the cause or
circumstances of the impending death, are not admissible under this rule.
iii) RELIGIOUS JUSTIFICATION FOR RULE
(1) The original rule was based on the psychological pressures that were present when the declarant
was on the verge of death. The declarant was thought to be truthful since he was about to meet
his maker. One might argue that the religious justification for this exception has lost its
conviction. In fact, many people may make accusations for revenge, to protect their reputation,
or to protect another.
iv) PERSONAL KNOWLEDGE REQUIREMENT UNDER FRE 602
(1) A witness may not testify to a matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the witness own testimony. For example, if the victim was shot in
the back of the head, the defendant may not have personal knowledge of the cause or
circumstances of his death. However, the personal knowledge requirement is not very stringent
and can be established by the declarants own testimony.
v) DEATH IS NOT REQUIRED
(1) Death is not required and a declarant who subsequently recovers but refuses to testify is still
unavailable for these purposes. However, a statement still must be made believing death was
imminent and that there was no hope of recovery. Thus, for a statement to apply, when the
declarant survives, the declarant normally would have been on the verge of death. However, one
can also interpret the rule to be based on Declarants subjective belief. Thus, injuries that are
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severe, with loss of blood, and high degree of pain, may create an argument under this rule even
if it was not very likely that the Declarant would die.
3) STATEMENT AGAINST INTEREST
(3) Statement against interest. A statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that a reasonable person in the
declarant's position would not have made the statement unless believing it to be true. A statement tending to
expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement.
a) Declarations against interest are said to have certain circumstantial guarantees of trustworthiness. A
declarant would not make a statement against his own interest unless the statement is true. However, an
opposite view would be that a declarant may often make a statement based on emotions, inaccurate
feelings of guilt or concern, or even inaccurate perception. Thus, a statement against interest may not
always correspond with the truth, but may be admitted anyway (reasonable person must believe the
statement was true at the time they made that statement).
i) WHAT KIND OF STATEMENTS ARE ADMISSIBLE AS AGAINST INTEREST
(1) Statements are considered against a declarants interest only if they are contrary to the declarants
pecuniary (monetary interest), proprietary interest (property right in something), or will subject
the declarant to civil or criminal liability. It is not enough that the statement may subject the
declarant to hatred, ridicule, or disgrace. Statements as to hatred, ridicule, or disgrace lack
sufficient guarantees of reliability.
ii) STATEMENT MUST BE MADE AT TIME WHEN IT IS AGAINST INTEREST
(1) If a statement is made at a time when it is not against the declarants interest, but the statement is
later found to be against the declarants interest, this exception will not apply. The declarant
must be aware that the statement is against his interest at the time he makes the statement.
iii) STATEMENT MADE BY DECLARANT NOT ADMISSIBLE TO EXCULPATE ACCUSED
UNLESS CIRCUMSTANCES CLEARLY INDICATE TRUSTWORTHINESS
(1) Evidence of confessions by third persons offered to exculpate the accused may lack
trustworthiness and may be fabricated. Thus, there are additional restrictions when a declaration
against interest is used to exculpate the accused. The statement must subject the declarant to
criminal liability, civil liability is not sufficient. In addition, there must be corroborating
circumstances that clearly indicate the trustworthiness of the statement. This corrobation should
be construed in such a manner as to effectuate its purpose of preventing fabrication.
(a) STATEMENT ITSELF MUST BE AGAINST INTEREST
(i) In civil cases, but even more so in criminal cases, the courts will not allow admission of
several statements not against the declarants interest on the basis of a single limited
statement against the declarants interest. Whether a statement is, in fact, against a
partys interest will need to be determined from the circumstances of each case. A
statement made admitting guilt, but implicating another person, may be motivated by a
desire for favorable treatment and might not be against the declarants interest.
1. NON-INCULPATORY STATEMENTS/ SELF-INCULPATORY STATEMENT
a. FRE 804(b)(3) does not allow admission of non-inculpatory statements, even if
they are made within a broader narrative that is self-inculpatory. For example,
defendant may state I knew about the guns and I purchased a gun from the
accused. Admitting to the knowledge and the purchase of the gun is inculpating;
however, the identity of the individual he purchased the gun from is not. In fact,
it is highly favorable to point the finger at the bigger criminal in order to obtain
favorable treatment. Thus, courts will be very concerned regarding what is or is
not in the declarants interest when determing whether a statement qualifies as a
declaration against interest.
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b) ADMISSION v. DECLARATION AGAINST INTEREST

i) Often an admission will also qualify as a declaration of interest if the declaration against interest is
made by the party-opponenet. However, unlike a declaration against interest, there is no requirement
that an admission be against the parties interest or that the party be unavailable. Admissions are
admissible only when offered by the opposing party against the party who made the admission. In
contrast, a declaration against interest may be proferred by either party.
4) STATEMENT OF PERSONAL OR FAMILY HISTORY
(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption,
marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of
personal or family history, even though declarant had no means of acquiring personal knowledge of the matter
stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant
was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family
as to be likely to have accurate information concerning the matter declared.
a) There is no requirement that the declarant have firsthand knowledge regarding his own personal history.
In some cases it is self-evidence (marriage) and in others it is impossible and not required (date of birth).
A declarant may also testify as to personal or family history of another person provided that person is
related by blood, adoption, marriage, or otherwise intimately associated with the others family so that
the declarant is likely to have accurate information concerning the matter declared. A declarant may
need to testify regarding another when that statement is the relationship between the parties.
6) WRONGDOING
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
a) A party may not object on hearsay grounds to the admission of a declarants prior statement when the
partys deliberate wrongdoing caused the unavailability of the declarant as a witness. The wrongdoing
need not consist of a criminal act. The rule applies to all parties, including the government.
i) STILL BASED ON PREPONDERANCE OF EVIDENCE STANDARD
(1) Ironically, this exception is still based on the preponderence of evidence standard as stated in
FRE 104. Thus, even though you are accusing the defendant of wrongdoing, you may admit
these statements into evidence.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules.
2) MULTIPLE HEARSAY
a) Multiple hearsay may exist when a statement is repeated by multiple declarants or, alternatively, when a
declarants statement is recorded into a document. Each level of the proffered evidence must either be
nonhearsay or fall under a hearsay exception. A hospital record might contain an entry of the patients
age based on information furnished by his wife. The hospital record would qualify as a regular entry in
the course of business except that the person furnishing that information was not acting in the routine
course of that business. However, if the statement was made for the purposes of diagnoses or
treatement, then that statement may be admissible.
Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence
which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any
requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against
whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the
declarant on the statement as if under cross-examination.
1) STATEMENT OF DECLARANT SUBJECT TO CROSS-EXAMINATION
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a) The hearsay statement of a declarant which is admitted into evidence is subject to cross-examination.
Thus, the credibility of the statement may be questioned and subject to impeachment as though the
declarant had, in fact, testified. If the party against whom a hearsay statement has been admitted calls
the declarant as a witness, the party may examine the declarant as to the hearsay statement as if the
declarant were under cross-examination. Thus, even if you call him on direct examination (you call the
witness), you may examine him with leading questions regarding the hearsay statement.
i) INCONSISTENT STATEMENT OR CONDUCT
(1) The general rule under FRE 613(b) is that a witness may not be impeached by use of an
inconsistent statement unless the witness is afforded an opportunity to deny or explain that
inconsisent statement. However, a witness to a declarants statement may testify as to that
statement (if it is not hearsay or is subject to an exception). When the witness testifies regarding
the hearsay statement, the declarants testimony may be attacked as if he had testified. It is the
declarants statements credibility that is being tested.
Rule 807. Residual Exception
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any
other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission of the statement into evidence. However,
a statement may not be admitted under this exception unless the proponent of it makes known to the adverse
party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name
and address of the declarant.
b) This rule makes admissible hearsay statements not specifically covered by any of the other hearsay
exceptions if the statement has equivalent circumstantial guarantees of trustworthiness and if the court
determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence the proponent can procure through
reasonable efforts; and, (C) the general purposes of these rules and the interests of justice will best be
served by admissionn of the statement into evidence.
i) CONDITIONS REQUIRED TO BE SATISFIED
(1) In order to qualify under this exception, a hearsay statement would need to satisfy at least four
conditions: (1) it must have equivalent circumstantial guarantees of trustworthiness; (2) it must
be offered as evidence of a material fact; (3) the court must determine that the evidence is more
probative on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts (only statements with a high probative value and necessity
may qualify); and, (4) the court must determine that the general purpose of these rules and the
interests of justice will best be served by admission of the statement into evidence.
(a) FACTORS TO CONSIDER WHEN DETERMINING TRUSTWORTHINESS
(i) Factors to consider when determining trustworthiness include, but are not limited to: (1)
whether the declaration was made under oath; (2) how much time has elapsed between
the event and the statement; (3) the declarants motive; (4) whether declarant had
firsthand knowledge; (5) whether the statement is written or oral; (6) whether the
declaration is corroborated by other evidence; (7) whether the declarant subsequently
recanted his statements.
ii) MUST PROVIDE NOTICE
(1) Any party intending to use a statement under this provision must notify any adverse party of this
intention as well as the particulars of the statement, including the name and address of declarant.
This notice must be given sufficiently in advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to contest the use of the statement.
(a) MAYBE YOU CAN STILL GET IN
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(i) Even if you do not give notice before trial, an unexpected situation may give you an
opportunity to admit the evidence, if you give sufficient notice during trial.
iii) PURPOSE
(1) Although FRE 102 is intended to allow for a broader interpretation of the Federal Rules of
Evidence, without a separate residual hearsay exception, the enumerated exceptions could
become expanded beyond any reasonable interpretation. Moreover, while this exceptions reflect
the most typical and well recognized exceptions to the hearsay rule, they might not encompass
every situation in which the reliability and appropriateness of the hearsay statement might justify
that it be admitted into evidence.
(a) INTENDED TO BE USED RARELY
(i) The residual hearsay exception should be used only rarely and only in exceptional
circumstances. It is not a broad license for trial judges to admit hearsay statements which
do not fall within one of the other hearsay exceptions. In addition, the residual exception
is not meant to authorize major judicial revision of the hearsay rule, including its present
exceptions.
1. NEAR MISS DOCTRINE
a. One should not be allowed to use the Catchall exception to contend that a piece of
evidence almost fit within an existing exception. Otherwise, the exceptions
would soon erode the rule. It is simply hearsay that did not fit within an
exception. However, a judge may have the discretion to decide whether it fits
within this rule.
2. CATCHALL RULE
a. Hearsay often rests on shaky empirical and logical foundation and, in fact, judges
often use a balancing test, even if unstated, like FRE 403. If we are willing to
have an exception for hearsay that does not fit within an exception, why not allow
the jury to decide and abolish the rule.
HEARSAY AND THE CONFRONTATION CLAUSE
1) CONFRONTATION CLAUSE
a) The Confrontation Clause of the 6th Amendment guarantees a criminal defendant the right to be
confronted with the witnesses against him. This Clause gives a criminal defendant the right to keep out
of evidence certain out-of-court declarations where the declarant is not available to be cross-examined in
court.
b) TESTIMONIAL AND NON TESTIMONIAL DISTINCTION
i) The first question to ask in a confrontation clause analysis is whether the hearsay is testimonial or
non-testimonial. If it is testimonial, then the statement is excluded under Crawford v. Washington.
(1) WHAT IS TESTIMONIAL
(a) A statement is testimonial when it is made, or likely to be used for, a legal proceeding. Thus,
a casual remark (excited utterance, present sense impression) might not be considered
testimonial. However, a statement made in response to police questioning, where the
primary purpose is interrogation of the witness, may be testimonial. In this situation, it is
likely that the statement will be used in a subsequent trial.
(i) TYPES OF TESTIMONIAL STATEMENTS
1. Types of statements that may be considered testimonial include: (1) prior testimony at
a preliminary hearing; (2) prior testimony before a grand jury; (3) testimony at a
former trial; (4) affidavit issued in a law-enforcement proceeding; (5) statements
made in the course of police proceedings.
(ii) TYPES OF NONTESTIMONIAL STATEMENTS
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1. Types of statements that may be considered nontestimonial include: (1) statements by

a co-conspirator during the course of the conspiracy; (2) excited utterances; (3)
present sense impressions; (4) statements regarding a state of mind; (5) dying
declaration (might be subject to common law exception).
(2) RULES FOR TESTIMONIAL STATEMENTS
(a) If the statement is testimonial, Crawford imposes a bright-line rule: the statement may not be
admitted against the accused unless the declarant is made available for cross-examination,
either at the time of the statement, or at the accuseds trial.
(i) UNUSED OPPORTUNITY TO CROSS-EXAMINE
1. If the accused has an opportunity to cross-examine, but does not conduct the crossexamination, it is uncertain whether the testimonial statement can be used at the trial.
It may depend on the type of proceeding and whether the interest to cross-examine
was sufficient to justify a cross-examination at the time.
(ii) WITNESS TAKES THE STAND, BUT CANT REMEMBER
1. If witness takes the stand, and purports to answer questions, the fact that the witness
is evasive, or cant remember, probably does not prevent witness from being
considered available for cross-examination. Even if witness may be acting in bad
faith, the confrontation clause might still be satified (identification cases where
witness could not remember).
(3) RULES FOR NONTESTIMONIAL STATEMENTS
(a) Crawford only established that testimonial statements are subject to the 6 th Amendment.
However, it is uncertain whether it overrule the previous exception for hearsay statements.
Thus, are testimonial statements excluded by the 6th Amendment while nontestimonial are
not? For those statements that are not testimonial, they should only be admitted if they: (1)
have sufficient circumstantial guarantees of trustworthiness; or (2) fall under a firmly rooted
exception to hearsay. In general, all the exceptions under FRE 803 and FRE 804 will be
firmly rooted exceptions to hearsay.
(4) CONFESSIONS BY CO-DEFENDANT
(a) When a confession by one defendant, implicats another co-defendant, this may violate the
defendants 6th Amendment Confrontation Clause rights. This is true even if the prosecution
is only offering the confession against the defendant who made the confession and a limiting
instruction is given. The information is too prejudicial for the jury to ignore and one simply
cannot unring the bell (Bruton v. U.S.).
(i) AVAILABLE CHOICES
1. In a trial such as Bruton, the prosecutor may conduct separate trials, forego the
confession, or redact the confession. However, if the prosecutor redacts the
confession it cannot be in such a way that it implicates the co-defendant. Also, there
could be two separate juries, one being excused when the confession is read.
2) WHEN DOES HEARSAY NOT VIOLATE THE CONFRONTATION CLAUSE
a) The following are clear situations where the hearsay does not violate the confrontation clause: (1)
hearsay in civil cases; (2) hearsay against the prosecution; (3) hearsay from a declarant that testifies.
1) FIRST-HAND KNOWLEDGE AND LAY OPINIONS
a) An ordinary (non-expert) witness must limit his testimony to facts of which he has first hand knowledge.
i) DISTINGUISHED FROM HEARSAY
(1) You must distinguish the first-hand knowledge requirement from the hearsay rule. If witness
statement on its face makes it clear that witness is merely repeating what someone else said, the
objection is to hearsay; if witness purports to be stating matters which he personally observed,
but he is actually repeating statements by others, the objection is to lack of first-hand knowledge.
ii) EXPERTS
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(1) The rule requiring first-hand knowledge does not apply to experts.
b) LAY OPINIONS
i) Lay opinions will be allowed if they have value to the fact-finder. FRE 701 allows non-expert
opinions or inferences that are: (1) rationally based on the perception of the witness; and, (2) helpful
to a clear understanding of his testimony or the determination of a fact in issue; and, (3) not based on
scientific, technical, or other specialized knowledge within the scope of FRE 702 (dealing with
expert testimony.
(1) OPINION ON THE ULTIMATE ISSUE
(a) FRE 704(a) allows opinions on ultimate issues except where the mental state of a criminal
defendant is concerned. However, even the federal rules exclude a few types of opinions on
ultimate issues. For instance, a witness will not be permitted to express his opinion on a
question of law, or an opinion on how the case should be decided.
c) EXPERT WITNESSES
i) FRE 702 imposes five requirements that expert testimony must meet in order to be admissible: (1) it
must be the case that scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue; (2) the witness must be qualified as an
expert by knowledge, skill, experience, training, or education; (3) the testimony must be based upon
sufficient facts or data; (4) the testimony must be the product of reliable principles and methods; and,
(5) the witness must have applied these principles and methods reliably to the facts of the case.
(1) SPECIALIZED KNOWLEDGE WILL BE HELPFUL
(a) It must be the case that scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue.
(i) ORDINARY EVIDENCE
1. Therefore, expert testimony will be most appropriate whether it involves the
interpretation of facts of a sort that lay persons are not usually called to evaluate. So
testimony about whether two bullets were fired from the same gun, or two DNA
samples are from the same person, would be suitable expert testimony, since lay
persons dont have to make such determinations in ordinary life. By contrast, since
juries and ordinary people are often called upon to evaluate the reliability of an
eyewitness identification, expert testimony purporting to tell the jury why such IDs
are often unreliable will often be rejected as not satisfying this requirement of
helpfulness.
(2) QUALIFICATIONS
(a) Next, the expert must be qualified. That is, he must have knowledge or skill in a particular
area that distinguishes him from an ordinary person. This expertise may come from either
education or experience.
(i) NEED FOR SUB-SPECIALIST
1. Generally, a specialist in a particular field will be treated as an expert even though he
is not specialist in the particular sub-field or branch of that field. For example, if a
medical condition involves kidney failure, a general practitioner would probably be
found a qualified expert, even though he is not a sub-specialist in nephrology.
(3) BASED UPON SUFFICIENT FACTS OR DATA
(a) The third requirement is that the testimony be based upon sufficient facts or data. This
requirement, plus the two that follow, reflect an attempt by the Rule drafters to keep out
unreliable testimony, sometimes called junk science.
(4) PRODUCT OF RELIABLE PRINCIPLES AND METHODS
(a) The fourth requirement in FRE 702 is that the testimony must be the product of reliable
principles and methods. In the case of scientific testimony, this requirement is essentially a
requirement that the testimony be based on good science.
(i) EXAMPLE
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1. Testimony based on astrology would probably be rejected, because the court would
probably not be satisfied that it was based on reliable principles and methods.
(ii) APPLIES TO NON-SCIENTIFIC TESTIMONY
1. The requiremment of reliable principles and methods applies not just to scientific
testimony but to other types of expert testimony based on technical knowledge.
(5) RELIABLE APPLICATION TO THE FACTS OF THE CASE
(a) Finally, FRE 702 requires that the principles and methods referred to above be applied
reliably to the facts of the case. This is just common sense: the most reliable principles and
methods wont lead to useful testimony unless the witness shows that she is applying those
principles and methods to the actual facts of the case.
(i) EXAMPLE
1. Suppose that witness, a prosecution DNA expert, offers to testify that under the
principles of DNA comparison, a sample of blood purportedly found on the body of
the murder victim, victim, matched the blood of the defendant. If witness (and other
witnesses put on by the prosecution) cannot demonstrate that the sample tested by
Witness was in fact on victims body, witness testimony will be meaningless and will
be excluded.
ii) BASIS FOR EXPERTS OPINION
(1) The experts opinion may be based upon any of several sources of information including: (1) the
experts first-hand knowledge; (2) the experts observation of prior witnesses and other evidence
at the trial itself; and, (3) a hypothetical question asked by counsel to the expert.
(a) INADMISSIBLE EVIDENCE
(i) Today, the experts opinion may be based on evidence that would otherwise be
inadmissible. Under FRE 703, even inadmissible evidence may form the basis for the
experts opinion if that evidence is of a type reasonably relied upon by experts in a
particular field in forming opinions or inferences upon the subject.
1. EXAMPLE
a. Driver tells an accident investigator that the accident occurred when his brakes
failed. The investigator writes a report, which is read by Expert, an accident
analysis specialist. Even though drivers statements are probably othewise
inadmissible hearsay, if experts in the field of accident analysis would rely on
such hearsay statements, experts opinion may be based on this statement.
(b) INADMISSIBLE UNDERLYING FACTS
(i) Where the underlying facts or data are otherwise inadmissible (a report by another expert
that is itself based on inadmissible hearsay), FRE 703 says that the expert (and the
proponent of the experts testimony) shall not disclose those facts or data unless the court
affirmatively finds that their probative value outweighs their prejudicial effect.
1. CROSS-EXAMINATION
a. However, under FRE 705 the cross-examiner may require the expert to state the
underlying facts or data which he or she has relied.
iii) THE HYPOTHETICAL QUESTION; BASIS FOR
(1) If the experts underlying facts and assumptions come from a hypothetical question, courts today
are liberal about the source of these underlying facts and assumptions. Thus: (1) the underlying
assumptions need not be supported by evidence in the record at the time of the question, or even
by admissible evidence at all; (2) the assumptions may be based upon opinions by others, if an
expert in that situtation would rely on such an opinion. But there must be some basis for the
assumptions in the hypothetical if assumptions are so far-fetched that no jury could possibly
find them to be true, the hypothetical question will be stricken.
iv) SOME PROCEDURAL ASPECTS
(1) CROSS EXAMINATION BY USE OF LEARNED TREATISE
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(a) All courts allow an expert to be cross-examined by use of a learned treatise that contains a
differing view. Most courts today allow the use of the treatise as impeaching evidence even
if the expert did not rely upon it in forming his opinion, so long as the expert concedes that
the treatise is authoritative. The FRE also allow the treatise to be used substantively.
(i) EXAMPLE
1. Isnt it true, Doctor, that according to Smiths handbook of Pathology, lung cancer is
sometimes caused by asbestos exposure or other factors, not always smoking as you
have asserted.
(2) COURT APPOINTED EXPERT
(a) The federal rules allow the appointment of an expert by the court, in which case each party
may cross-examine the expert.
d) SPECIALIZED EVIDENCE THE DAUBERT/ FRE 702 STANDARD
i) THE REQUIREMENT OF RELIABILITY
(1) As we have seen, in federal courts, when expert testimony is based on scientfic, technical, or
other specialized knowledge, is to be introduced, the proponent must show that the test or
principle is the product of reliable principles and methods that are applied reliably to the facts of
the case.
(a) DAUBERT v. MERRELL DOW
(i) Under Daubert and FRE 702, the federal court should normally consider the following
factors, among others, in deciding whether the test or principle is the product of reliable
princples and methods. A yes answer makes the test more likely to be scientifically valid.
Other factors: (1) whether it can be reliably tested; (2) whether its been subjected to peer
review and/or publication; (3) whether it has a reasonably low error rate; (4) whether
there are professional standards controlling its operations; (5) whether it is generally
accepted in the field; (6) whether it was developed for purposes other than merely to
produce evidence for the present litigation.
(2) NON-SCIENTIFIC EXPERT TESTIMONY
(a) Daubert itself (where the above factors were listed) dealt only with scientific testimony.
But a post-daubert supreme court case, Kuhmo Tire, says that the same principles apply to
non-scientific testimony that relates to technical or other specialized knowledge. So all
experts testimony must now satisfy these reliability factors.
2) RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b)
helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
a) Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or
conclusion. The rule assumes that the natural characteristics of the adversary system will generally lead
to an acceptable result, since a detailed account carries more conviction than a broad assertion, and a
lawyer will be expected to display his witness to the best advantage. If the lawyer fails to do so, crossexamination and argument will point up his weakness. If, despite these considerations, attempts are
made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion
for lack of helpfulness is called for by the rule.
i) PREVENTS EXPERT IN WITNESSES CLOTHES
(1) FRE 701 eliminates the risk that the reliability requirements of FRE 702 will be evaded by
proffering an expert as a lay witness. A witness testimony must be scrutinized under the rules
regulating expert opinion to the extent that the witness is providing testimony based on scientific,
technical, or other specialized knowledge within the scope of FRE 702.
(a) DISTINGUISHES TESTIMONY NOT WITNESS
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(i) The amendment does not distinguish between expert and lay witnesses, but rather
between expert and lay testimony. It is possible that a witness can provide both lay and
expert testimony in the same case (law enforcement agents could testify as to their
conduct, but then need to qualify as experts when explaining code words used by
defendant). Thus, the amendment makes it clear that any part of a witness testimony that
is based upon scientific, technical, or other specialized knowledge within the scope of
FRE 702 is governed by FRE 702.
ii) DOES NOT AFFECT COMMON LAY PERSON INFERENCES
(1) The rule is not intended to affect the type of evidence relating to the appearance of persons or
things, identity, the manner of conduct, competency of a person, degrees of light or darkness,
sound, size, weight, distance, and an endless number of items that cannot be described factually
in words apart from inferences.
(a) NARCOTICS
(i) Courts have permitted lay witnesses to testify that a substance appeared to be a narcotic,
so long as a foundation of familiarity with the substance is established. Such testimony is
not based on specialized knowledge within the scope of FRE 702, but rather is based
upon a layperson's personal knowledge. If, however, that witness were to describe how a
narcotic was manufactured, or to describe the intricate workings of a narcotic distribution
network, then the witness would have to qualify as an expert under FRE 702.
(2) LAY PERSON REASONING
(a) The distinction between lay and expert witness testimony is that lay testimony results from a
process of reasoning familiar in everyday life, while expert testimony results from a
process of reasoning which can be mastered only by specialists in the field. The court in
Brown noted that a lay witness with experience could testify that a substance appeared to be
blood, but that a witness would have to qualify as an expert before he could testify that
bruising around the eyes is indicative of skull trauma.
3) RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case.
a) An intelligent evaluation of facts is often difficult or impossible without the application of some
scientific, technical, or other specialized knowledge. The most common source of this knowledge is
expert witnesses.
i) EXPERTS DO NOT NEED TO TESTIFY IN THE FORM OF AN OPINION
(1) An expert need not only testify in the form of an opinion. The expert may give a dissertation or
exposition of scientific or other principles relevant to the case, leaving the fact finder to apply
them to the facts. However, the expert is not prohibited from suggesting the inference which
should be drawn from applying the specialized knowledge to the facts.
ii) DETERMINING WHETHER EXPERT TESTIMONY IS PROPER
(1) Whether the use of an expert witness is proper is to be determined on the basis of assisting the
trier. There is no more certain test for determining when experts may be used than the common
sense inquiry whether the untrained layman would be qualified to determine intelligently and to
the best possible degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute. When experts are excluded it is
because they are unhelpful and a waste of time.
iii) RULE IS BROADLY PHRASED
(1) The fields of knowledge which may be drawn upon are not limited merely to the scientific and
technical but extend to all specialized knowledge. Similarly, the expert is viewed, not in a
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narrow sense, but as a person qualified by knowledge, skill, experience, training or education.
Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g.,
physicians, physicists, and architects, but also the large group sometimes called skilled
witnesses, such as bankers or landowners testifying to land values.
b) RULE AMENDED IN RESPONSE TO DAUBERT AND KUMHO
i) In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude
unreliable expert testimony, and the Court in Kumho clarified that this gatekeeper function applies to
all expert testimony, not just testimony based in science. The amendment affirms the trial court's
role as gatekeeper and provides some general standards that the trial court must use to assess the
reliability and helpfulness of proffered expert testimony. Consistently with Kumho, the Rule as
amended provides that all types of expert testimony present questions of admissibility for the trial
court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all
expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has
the burden of establishing that the pertinent admissibility requirements are met by a preponderance
of the evidence.
(1) DAUBERTS NON-EXCLUSIVE CHECKLIST OF RELIABILITY
(a) Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability
of scientific expert testimony. The specific factors explicated by the Daubert Court are (1)
whether the expert's technique or theory can be or has been tested---that is, whether the
expert's theory can be challenged in some objective sense, or whether it is instead simply a
subjective, conclusory approach that cannot reasonably be assessed for reliability; (2)
whether the technique or theory has been subject to peer review and publication; (3) the
known or potential rate of error of the technique or theory when applied; (4) the existence
and maintenance of standards and controls; and (5) whether the technique or theory has been
generally accepted in the scientific community. The Court in Kumho held that these factors
might also be applicable in assessing the reliability of non-scientific expert testimony,
depending upon the particular circumstances of the particular case at issue. The trial judge
has considerable leeway when determining whether a particular experts testimony is reliable.
ii) RELIABLE PRINCIPLES AND METHODS
(1) The rule requres that the testimony must be the product of reliable principles and methods that
are reliably applied to the facts of the case. While the terms principles and methods may
convey a certain impression when applied to scientific knowledge, they remain relevant when
applied to testimony based on technical or other specialized knowledge. For example, when a
law enforcement agent testifies regarding the use of code words in a drug transaction, the
principle used by the agent is that participants in such transactions regularly use code words to
conceal the nature of their activities. The method used by the agent is the application of extensive
experience to analyze the meaning of the conversations. So long as the principles and methods
are reliable and applied reliably to the facts of the case, this type of testimony should be
admitted.
iii) EXPERT CAN BE QUALIFIED BASED ON EXPERIENCE ALONE
(1) The FRE 702 expressly contemplates that an expert may be qualified on the basis of experience.
In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable
expert testimony. If the witness is relying solely or primarily on experience, then the witness
must explain how that experience leads to the conclusion reached, why that experience is a
sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial
court's gatekeeping function requires more than simply taking the expert's word for it.
iv) EXPERT TESTIMONY MUST BE BASED ON SUFFICIENT FACTS OR DATA
(1) The rule requires that the expert testimony be based on sufficient underlying facts or data. The
term data is intended to encompass the reliable opinions of other experts. The language facts
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or data is also broad enough to allow an expert to rely on hypothetical facts that are supported
by the evidence.
(a) FACTS IN DISPUTE
(i) When facts are in dispute, experts sometimes reach different conclusions based on
competing versions of the facts. A trial court should not exclude an expert's testimony on
the ground that the court believes one version of the facts and not the other.
v) RELATIONSHIP BETWEEN FRE 702 AND 703
(1) The sufficiency of the basis of an expert' s testimony is to be decided under Rule 702. Rule 702
sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the
expert's basis cannot be divorced from the ultimate reliability of the expert's opinion. In contrast,
the reasonable reliance requirement of Rule 703 is a relatively narrow inquiry. When an expert
relies on inadmissible information, Rule 703 requires the trial court to determine whether that
information is of a type reasonably relied on by other experts in the field. If so, the expert can
rely on the information in reaching an opinion.
vi) COURTS SHOULD PROHIBIT USE OF THE TERM EXPERT
(1) A court should consider prohibiting the use of the term expert by both parties and the court.
This practice ensures that the court does not inadvertently put their stamp of authority on a
witness opinion and protects the jury against being overwhelmed by so-called experts.
4) Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the
court determines that their probative value in assisting the jury to evaluate the expert's opinion
substantially outweighs their prejudicial effect.
a) Facts or data upon which expert opinions are based may be derived from three possible sources: (1)
firsthand observation of the witness; (2) presenting a hypothetical question or having the expert attend
trial and hear testimony establishing the facts; and, (3) presentation of data to the expert outside of court
and other than by his own perception.
i) PRESENTATION OF DATA TO OTHER EXPERTS OUTSIDE OF COURT
(1) A physician may base his diagnosis on information from numerous sources and of a considerable
variety, including statements by patients and relatives, reports and opinions from nurses,
technicians and other doctors, hospital records, and x-rays. A physician may rely on this
information without producing and authenticating same in court. However, if the fact is not
otherwise admissible, it generally is not admissible unless the court determines that their
probative value outweighs the prejudicial effect.
ii) FACTS OR DATA OTHERWISE INADMISSIBLE
(1) When the information is reasonably relied upon by an expert and yet is admissible only for the
purpose of assisting the jury in evaluating an experts opinion, a trial court applying this Rule
must consider the informations probative value in assisting the jury to weigh the expert's
opinion on the one hand, and the risk of prejudice resulting from the jury's potential misuse of
the information for substantive purposes on the other. The information may be disclosed to the
jury, upon objection, only if the trial court finds that the probative value of the information in
assisting the jury to evaluate the expert's opinion substantially outweighs its prejudicial effect. If
the otherwise inadmissible information is admitted under this balancing test, the trial judge must
give a limiting instruction upon request, informing the jury that the underlying information must
not be used for substantive purposes. The balancing test provided in this amendment is not
applicable to facts or data that are admissible for any other purpose but have not yet been offered
for such a purpose at the time the expert testifies.
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5) RULE 704. OPINION ON ULTIMATE ISSUE

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible
is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case
may state an opinion or inference as to whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the
trier of fact alone.
a) Opinions, lay and expert, are admissible when they are helpful to the trier of fact. However, under FRE
701 and 702 opinions must still be helpful to the trier of fact and FRE 403 provides for exclusion of
evidence which wastes time.
6) RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the
underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose
the underlying facts or data on cross-examination.
a) While the rule allows counsel to make disclosure of the underlying facts or data as a preliminary to the
giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced.
This is true whether the expert bases his opinion on data furnished him at secondhand or observed by
him at firsthand. Unless the court orders otherwise, questions calling for the opinion of an expert
witness need not be hypothetical in form, and the witness may state his opinion and reasons without first
specifying the data upon which it is based. Upon cross-examination, he may be required to specify the
data.
i) SERIOUS QUESTION RAISED AS TO ADMISSIBILITY OF EXPERT TESTIMONY
(1) If a serious question is raised under Rule 702 or 703 as to the admissibility of expert testimony,
disclosure of the underlying facts or data on which opinions are based may, of course, be needed
by the court before deciding whether, and to what extent, the person should be allowed to testify.
This rule does not preclude such an inquiry.
7) RULE 706. COURT APPOINTED EXPERTS
(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show
cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The
court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own
selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so
appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed
with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so
appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any
party; and the witness may be called to testify by the court or any party. The witness shall be subject to crossexamination by each party, including a party calling the witness.
(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the
court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal
cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil
actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the
court directs, and thereafter charged in like manner as other costs.
(c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury
of the fact that the court appointed the expert witness.
(d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their
own selection.
a) Expert witnesses are rarely appointed by the court. However, the possibility of appointment may exert
an influence on the parties, prompting them to insure that they select adequate experts. The expert
witness may be appointed either on motion of a party or the judges own motion. In addition, either
party has the right to depose or cross-examine the expert witness.
8) RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
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(a) General provision. The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon
familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting
it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person,
circumstances, including self-identification, show the person answering to be the one called, or (B) in the case
of a business, the call was made to a place of business and the conversation related to business reasonably
transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any
form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is
in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic,
would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the
process or system produces an accurate result.
(10) Methods provided by 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.
a) This requirement of showing authenticity or identity falls in the category of relevancy dependent upon
the fulfillment of a condition of fact and is governed by FRE 104(b). While much of the evidence may
be authenticated by pretrial procedures, or requests for admission, the need for suitable methods of
authentication still remains.
i) JUDGE MAY DETERMINE OTHER METHODS SUFFICIENT TO AUTHENTICATE
(1) The examples listed in this rule are not intended as an exclusive enumeration of allowable
methods but are meant to guide and suggest, leaving room for growth and development in this
area of the law.
(a) TESTIMONY OF WITNESS WITH KNOWLEDGE
(i) Allows a broad spectrum of testimony of a witness who was present at the signing of the
document to testimony establishing narcotics as taken from an accused and accounting
for custody through the period until trial, including laboratory analysis.
(b) NONEXPERT OPINION ON HANDWRITING
(i) Allows lay identification of handwriting, which recognizes that a sufficient familiarity
with the handwriting of another person may be acquired by seeing him write, by
exchanging correspondence, or by other means, to afford a basis for identifying it on
subsequent occasions. Testimony based upon familiarity acquired for purposes of the
litigation is reserved to the expert under the example which follows.
(c) COMPARISON BY TRIER OR EXPERT WITNESS
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(i) Comparison of handwriting specimens should be governed by FRE 104(b). The admitted
or proved handwriting of any person shall be admissible, for purposes of comparison, to
determine genuineness of other handwriting attributed to such person. Precedent
supports the acceptance of visual comparison as sufficiently satisfying preliminary
authentication requirements for admission in evidence.
(d) DISTINCTIVE CHARACTERISTICS AND THE LIKE
(i) The characteristics of the offered item itself, considered in the light of circumstances,
afford authentication techniques in great variety. Thus a document or telephone
conversation may be shown to have emanated from a particular person by virtue of its
disclosing knowledge of facts known peculiarly to him.
(e) VOICE IDENTIFICATION
(i) Since aural voice identification is not a subject of expert testimony, the requisite
familiarity may be acquired either before or after the particular speaking which is the
subject of the identification, in this respect resembling visual identification of a person
rather than identification of handwriting.
(f) TELEPHONE CONVERSATIONS
(i) The cases are in agreement that a mere assertion of his identity by a person talking on the
telephone is not sufficient evidence of the authenticity of the conversation and that
additional evidence of his identity is required. The additional evidence need not fall in
any set pattern. Thus the content of his statements or the reply technique, under, or voice
identification, may furnish the necessary foundation. Outgoing calls made by the witness
involve additional factors bearing upon authenticity. The calling of a number assigned by
the telephone company reasonably supports the assumption that the listing is correct and
that the number is the one reached. If the number is that of a place of business, the mass
of authority allows an ensuing conversation if it relates to business reasonably transacted
over the telephone, on the theory that the maintenance of the telephone connection is an
invitation to do business without further identification. Otherwise, some additional
circumstance of identification of the speaker is required.
(g) PUBLIC RECORDS OR REPORTS
(i) Public records are regularly authenticated by proof of custody, without more. This
includes data stored in computers and similar methods, of which increasing use in the
public records area may be expected.
(h) ANCIENT DOCUMENTS OR DATA COMPILATION
(i) The ancient documents rule includes data stored electronically or by other similar means.
Since the importance of appearance diminishes in this situation, the importance of
custody or place where found increases correspondingly. This expansion is necessary in
view of the widespread use of methods of storing data in forms other than conventional
written records. Any time period selected is bound to be arbitrary. The rule requires that
the document be 20 years old, with some shift of emphasis from the probable
unavailability of witnesses to the unlikeliness of a still viable fraud after the lapse of time.
(i) PROCESS OR SYSTEM
(i) This method of authentication pertains to those situations in which the accuracy of a
result is dependent upon a process or system which produces it. X rays afford a familiar
instance.
9) RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the
following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United
States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal
Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency
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thereof, and a signature purporting to be an attestation or execution.

(2) Domestic public documents not under seal. A document purporting to bear the signature in the official
capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public
officer having a seal and having official duties in the district or political subdivision of the officer or employee
certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a
person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a
final certification as to the genuineness of the signature and official position (A) of the executing or attesting
person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates
to the execution or attestation or is in a chain of certificates of genuineness of signature and official position
relating to the execution or attestation. A final certification may be made by a secretary of an embassy or
legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular
official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been
given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good
cause shown, order that they be treated as presumptively authentic without final certification or permit them to
be evidenced by an attested summary with or without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of
Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the
course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the
manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating
thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of
Congress to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of Regularly Conducted Activity.--The original or a duplicate of a domestic
record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written
declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule
prescribed by the Supreme Court pursuant to statutory authority, certifying that the record-(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted
by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that
intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in
advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified Foreign Records of Regularly Conducted Activity.--In a civil case, the original or a duplicate
of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied
by a written declaration by its custodian or other qualified person certifying that the record-(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted
by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty
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under the laws of the country where the declaration is signed. A party intending to offer a record into evidence
under this paragraph must provide written notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an
adverse party with a fair opportunity to challenge them.
a) Provides a method of self-authentication of certain documents. Those documents that are certified by a
public official or notarized may be admissible as self-authenticating documents under this rule. Thus, no
extrinsic testimony will be required to support the authenticity of the document.
10) RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of
the jurisdiction whose laws govern the validity of the writing.
a) The common law required that attesting witnesses be produced or accounted for. Today the requirement
has generally been abolished except with respect to documents which must be attested to be valid, e.g.
wills in some states.
11) RULE 1001. DEFINITIONS
For purposes of this article the following definitions are applicable:
(1) Writings and recordings. Writings and recordings consist of letters, words, or numbers, or their
equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse,
mechanical or electronic recording, or other form of data compilation.
(2) Photographs. Photographs include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An original of a writing or recording is the writing or recording itself or any counterpart
intended to have the same effect by a person executing or issuing it. An original of a photograph includes the
negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an original.
(4) Duplicate. A duplicate is a counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the
original.
12) RULE 1002. REQUIREMENT OF ORIGINAL
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is
required, except as otherwise provided in these rules or by Act of Congress.
a) Application of the rule requires a resolution of the question whether contents are sought to be proved.
Thus an event may be proved by nondocumentary evidence, even though a written record of it was
made. If, however, the event is sought to be proved by the written record, the rule applies. For example,
payment may be proved without producing the written receipt which was given. Earnings may be proved
without producing books of account in which they are entered. Nor does the rule apply to testimony that
books or records have been examined and found not to contain any reference to a designated matter.
i) OFTEN WILL NOT APPLY TO PHOTOGRAPHS
(1) The assumption should not be made that the rule will come into operation on every occasion
when use is made of a photograph in evidence. On the contrary, the rule will seldom apply to
ordinary photographs. In most instances a party wishes to introduce the item and the question
raised is the propriety of receiving it in evidence. Cases in which an offer is made of the
testimony of a witness as to what he saw in a photograph or motion picture, without producing
the same, are most unusual. The usual course is for a witness on the stand to identify the
photograph or motion picture as a correct representation of events which he saw or of a scene
with which he is familiar. In fact he adopts the picture as his testimony, or, in common parlance,
uses the picture to illustrate his testimony. Under these circumstances, no effort is made to prove
the contents of the picture, and the rule is inapplicable.
13) RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the
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authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the
original.
a) When the only concern is with getting the words or other contents before the court with accuracy and
precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a
method which insures accuracy and genuineness. Therefore, if no genuine issue exists as to authenticity
and no other reason exists for requiring the original, a duplicate is admissible under the rule.
14) RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
The original is not required, and other evidence of the contents of a writing, recording, or photograph is
admissible if-(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the 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; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.
a) The rule requiring the production of the original as proof of contents has developed as a rule of
preference: if failure to produce the original is satisfactorily explained, secondary evidence is
admissible. The instant rule specifies the circumstances under which production of the original is
excused.
15) RULE 1005. PUBLIC RECORDS
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or
filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as
correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original.
If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then
other evidence of the contents may be given.
a) Public records call for somewhat different treatment. Removing them from their usual place of keeping
would be attended by serious inconvenience to the public and to the custodian. As a consequence
judicial decisions and statutes commonly hold that no explanation need be given for failure to produce
the original of a public record. This blanket dispensation from producing or accounting for the original
would open the door to the introduction of every kind of secondary evidence of contents of public
records were it not for the preference given certified or compared copies. Recognition of degrees of
secondary evidence in this situation is an appropriate quid pro quo for not applying the requirement of
producing the original.
16) RULE 1006. SUMMARIES
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be
made available for examination or copying, or both, by other parties at reasonable time and place. The court
may order that they be produced in court.
17) RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party
against whom offered or by that party's written admission, without accounting for the nonproduction of the
original.
18) RULE 1008. FUNCTIONS OF COURT AND JURY
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules
depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is
ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is
raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph
produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the
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issue is for the trier of fact to determine as in the case of other issues of fact.

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