Evidence Fall 2016 BU Law

Papadopoulos, 1
Prof. Lawson

1. EVIDENCE
1. Table of Contents....................................................................1
I. RELEVANCE (401-402)..............................................................3
II. 403: PROBATIVE VALUE AND THE RULE 403 DANGERS................3
III. LAYING THE FOUNDATION FOR PROOF.......................................3
a. Laying the Foundation for Witnesses [FRE 601 Competency, 602 Lack
of Personal Knowledge, 603 Oath]........................................................3
b. Laying the Foundation for Authentication and Identification of
Exhibits..............................................................................................4
i. FRE 901(a) & (b): Authentication and Identification of exhibits....................4
ii. FRE 902: Self Authenticating documents......................................................6
c. FRE 104: Judicial Determination of Preliminary Questions................7
IV. FRE 1001 1007: THE ORIGINAL DOCUMENTS RULE AND
RELATED PROCEDURES..................................................................7
a. FRE 1001: Best Evidence Rule Definitions........................................8
b. FRE 1002: Requirement of Original; Former Testimony; Depositions. 8
c. FRE 1003: Admissibility of Duplicates............................................8
d. FRE 1004: Admissibility of Other Evidence of Its Contents................8
e. FRE 1005: Public Records...............................................................8
f. FRE 1006: Summaries of Voluminous records OK...........................8
g. FRE 1007: Testimony or Witness Admission of Party........................9
h. FRE 1008: Functions of the Court and Jury......................................9
V. THE CHARACTER AND PROPENSITY RULES.................................9
a. FRE 404 & 405: Evidence of a Persons Character Used to Show
Action in Conformity with That Character.............................................9
i. Character evidence not admissible to prove conduct; exceptions, other
crimes.................................................................................................................. 9
ii. FRE 405: Methods of proving character........................................................9
VI. FRE 406: HABIT AND ROUTINE PRACTICE..............................12
VII. FRE 407 411: RELEVANT EVIDENCE INADMISSIBLE TO PROVE
FAULT AND LIABILITY FOR POLICY REASONS..................................12
a. FRE 407: Subsequent Remedial Measures.....................................12
b. FRE 408: Compromise and Offers to Compromise...........................13
c. FRE 409: Payment of Medical or Similar Expenses..........................13
d. FRE 410: Withdrawn Guilty Pleas, Pleas of no contest, and Offers to
Plead Guilty......................................................................................13
e. FRE 411: Liability Insurance.........................................................13
VIII. Two Issues that NO Fed Rules Address.................................13
IX. SIMILAR HAPPENINGS EVIDENCE:.........................................13

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X. IMPEACHMENT (BICCC)...........................................................14
a. FRE 607: Who may impeach..........................................................14
b. FRE 608: Character Evidence Impeachment and Rehabilitation.....14
i. FRE 608(a)(1) & (2): Opinion and Reputation Evidence of Character..........14
ii. FRE 608(b)(1) & (2): Specific Instances of Conduct....................................14
c. FRE 609: Impeachment by Evidence of Conviction of Crime............14
i. FRE 609(a): The General Rule.....................................................................14
ii. FRE 609(b): Time Limits.............................................................................. 14
d. FRE 613: Witnesss Prior Statements Impeachment and
Rehabilitation...................................................................................15
i. FRE 613(a): Disclosing the statement to the Witness.................................15
ii. FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of Witness 15
e. Other Impeachment Techniques (ALL subject to 401, 402, 403;
EXTRINSIC EVIDENCE allowed subject to 403!)....................................16
i. BIAS........................................................................................................... 16
ii. Capacity (Mental or Sensory)................................................................16
iii. Contradiction........................................................................................... 16
XI. HEARSAY RULES..................................................................16
a. Definitions & Broad Test...............................................................16
i. Out of Court?............................................................................................ 16
ii. Statement?............................................................................................... 16
iii. Admitted to prove the truth of the matter asserted.........................17
b. Non-hearsay Exemptions? (can be admitted).................................18
i. Prior Inconsistent Statement (TCIPP)..........................................................18
ii. Prior consistent statement..........................................................................18
iii. Prior identification....................................................................................... 18
iv. Knowledge of the speaker..........................................................................18
v. Notice......................................................................................................... 18
vi. Effect on listener......................................................................................... 18
vii. Legally operative words (patent, offer/acceptance, gifting property etc.). .18
viii. 801(d)(2) Opposing party statements asserted against other
party 18
c. 803 Hearsay Exceptions NOT REQUIRING UNAVAILABILITY............19
i. 803(1) - Present Sense Impression [104(a) fact finding].............................19
ii. 803(2) - Excited Utterances [104(a) fact finding].......................................19
iii. 803(3) Then-existing State of Mind, Emotion, Sensation, or Physical
Condition Declarations [104(a) fact finding]......................................................20
iv. 803(4) - Statements Made for Medical Diagnosis or Treatment [104(a)]....20
v. 803(5) - Past Recollection Recorded...........................................................20
vi. 803(6) Records of a Regularly Conducted Activity...................................21
vii. 803(8) Public Records and Reports...........................................................21
viii. 803(16) Statements in Ancient Documents..........................................22
d. 804 Unavailability Required.......................................................22
i. Proving Unavailability of Witness................................................................22
ii. 804(b)(1) - Former Testimony.....................................................................22
iii. 804(b)(2) Dying Declarations...................................................................23

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iv. 804(b)(3) Statements Against Interest.....................................................23
v. 804(b)(4) Statements of personal or family history.................................23
vi. 804(b)(6) Forfeiture of right to object where party procures unavailability
of defendant...................................................................................................... 23
vii. 807 Residual (Catch-all) Exception (Statement not covered by 803 or 804)
23
e. Confrontation Clause framework...................................................23
i. TEST............................................................................................................ 23
ii. CASES:........................................................................................................ 24
XII. FRE 701 705: LAY OPINIONS AND EXPER TESTIMONY...........25
a. FRE 701: Lay Opinion *By a preponderance of the evidence.........25
b. FRE 702: Testimony by Experts.....................................................25
c. FRE 703: Bases of Opinion Testimony by Expert.............................26
d. FRE 704: Opinion on Ultimate Issue..............................................27
e. FRE 705: Disclosure of Facts or Data Underlying Expert Opinion.....27
i. Opinion may be admitted without first testifying to underlying facts or data
unless required by the court; expert witness may be required to disclose
underlying facts or data on cross-examination..................................................27

---------------------------

I RELEVANCE (401-402)
a. Relevant Only relevant evidence may be admitted [402]
i. Definition: Evidence is relevant if it (a) has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action [401]
ii. Brick is not a wall

II. 403: PROBATIVE VALUE AND THE RULE 403 DANGERS

a. Relevant evidence (presumed included) may be excluded if its probative value is
substantially outweighed by the danger of: (1) unfair prejudice; (2) confusion of the
issues; (3) misleading the jury; or (4) considerations of undue delay, waste of time,
or needless presentation of cumulative evidence [403]
b. Old Chief narrative purposes exception

III. LAYING THE FOUNDATION FOR PROOF

a. Laying the Foundation for Witnesses [FRE 601 Competency, 602
Lack of Personal Knowledge, 603 Oath] NEED ESSF 104(b)
1. Under the federal rules, witnesses (other than judge and jury) are presumed
competent to testify [601], UNLESS:
a. Lack of personal knowledge [602] i.e. lack of sensory observation

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i. ESSF that a reasonable person could not understand that
the witness has personal knowledge 104(b)
b. Oath: If the witness will not (or cannot) solemnly promise to tell the
truth [603]
2. Still subject to 403 judge can still exclude such testimony if its probative
value is substantially outweighed

b. Laying the Foundation for Authentication and Identification of

Exhibits
i. FRE 901(a) & (b): Authentication and Identification of exhibits
a. FRE 901(a) Authentication - To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must
produce ESSF that the item is what the proponent claims it is.
[104(b)] (ie. Could a reasonable fact-finder, if they wanted to, find that
this evidence is what it claims to be?)
b. FRE 901(b) -- Mechanisms of identifying Real Evidence:
i. (Most Common) By testimony based on Personal
Knowledge
ii. Identifiable Marks -- If theres something distinctive about it
you just need ESSF [104(b)] (e.g. pearl handled handgun)
iii. Chain of custody Can a reasonable person conclude, if they
wanted to, that that is the same piece of evidence? (Depends on
judges discretion most times)
1. A complete chain of custody under 901(b)(4) would
require the testimony of all handlers, AND testimony
to show that the exhibit was stored in a secure place
when it was not being handled
2. Break: a break in the chain is not fatal court will only
require reasonable care and a reasonable showing that
there was no realistic opportunity for tampering.
3. CRIM CASES - Chain of custody is always required in
criminal cases.
4. CIVIL CASES a private individual will often not
know that the object will be needed as evidence and
would be substantially more burdened by having to
account for each change in the custody of the item.
iv. Unchanged Condition Established Through Chain of
Custody
1. Determination of complete chain of custody shows with
reasonable certainty under 104(b) that the item has
not been altered, substituted, or contaminated

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c. Demonstrative Evidence (= Things that explain or demonstrate other
kinds of evidence, i.e. maps, construction of models, graphs, film, CGI
attempts to reconstruct accident sites)
i. Law is receptive to this evidence it is relevant to telling a
good story
ii. Fair and accurate depiction - Demonstrative object must
fairly represent or illustrate what it is alleged to illustrate.
Judge just has to inquire as to its relevance [401. 402] and
probative value [403]. (e.g. if the construction is relatively
similar, and display is nonprejudicial.. ok)
d. Computer Printouts:
i. Authentication: If a computer print-out is offered as evidence
of the facts contained in the print-out (e.g. financial or
numerical facts), the print-out must be authenticated. This is
usually done by a witness who testifies that the methods used
to put data into the computer, to program it, and to produce the
print-out, were all reliable.
ii. Best Evidence Rule: Generally, a computer print-out can be
used to prove the facts represented in the print-out without
BER problems (the opponent can claim that the print-out is
merely a duplicate of the original pre-computer paper
documents, but he would then have the burden of showing that
the print-out is not an accurate reproduction of the original
paper record).
e. Recordings and Computer generated re-enactments, animations
and simulations of events
i. Need ESSF that the footage is what it claims to be
1. E.g. if video claimed to be footage of a store robber,
need ESSF that the footage is a store robbery
ii. Recordings
1. Percipient Witness: When a camera or other device
records what a witness is also seeing, that percipient
witness can authenticate the recording
a. Also subject to [401], [403] objections.
b. Must affirm that recording is a fair and
accurate representation.
2. Silent Witness: If a percipient witness does not exist to
authenticate the recording, a silent witness testify to:
(1) the type of equipment or camera used, (2) its
general reliability, (3) the quality of the recorded
product, (4) the process by which it was focused, or (5)
the reliability of the entire system.

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a. Proponent need only show by direct or
circumstantial evidence a reasonable
probability that the evidence is authentic
b. Used for X-rays, security cameras, etc.
3. Use of recordings subject to 403 e.g. gruesome
video footage might be ruled unfairly prejudicial.

a. Written Documents (texts, SMS, email)

i. Steps:
1. Is it relevant? - 401, 402
2. Relevance cannot be substantially outweighed by
dangers - 403
3. Need ESSF of authentication - Proponent of
document must produce ESSF that the writing is
what the proponent claims it to be 901
a. E.g. 901(b)(3) for admissibility purposes,
someone can testify that theyve seen the
signature before
b. Judge just has to decide if there if there was
ESSF to a reasonable juror that the doc is
what the proponent claims it to be and that it
was written by the particular person.
4. Additional concerns: Orig. Documents Rule (Only
for documents) (authentic original or an acceptable
substitute)
5. Hearsay problems is that writing true?

iii. Need for signature, but absent?

1. Tricky, but someone can testify as to who wrote it based
on its contents (what its talking about).
iv. For electronic writings
1. May be authenticated by lay witness testimony [701],
expert testimony [702], comparisons with an
authenticated template, or by the emails distinctive
characteristics
2. Email without a signature
a. You can probably trace email to particular PC.
BUT you still have to show that it was the D
(specific PC user) who wrote this.
b. You could look at context and show that this is
something that D knew, and had the capacity to
talk about.
ii. FRE 902: Self Authenticating documents

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a. 902 Evidence relieves the proponent of the need to prove the
evidences 901 authentication (not that its authentic).
a. Rationale: These documents are so likely to be what they seem
to be that no testimony or other extrinsic evidence of their
genuineness needs to be produced
b. Sometimes set by state statutes (typically: notarized deeds,
certified copies of public records, books of statutes)
c. FRE 902:
i. FRE 902(5) - Official publications by a public
authority (e.g. FDA)
ii. FRE 902(6) Newspapers and Periodicals printed
material purporting to be a newspaper or periodical)
iii. FRE 902(7) An inscription, sign, tag, or label
purporting to have been affixed in the course of
business and indicating origin, ownership, or control
1. E.g. Can of Green Giant green beans, Shell
Truck
iv. FRE 902(11) **Business Records** - Records of
regularly conducted activity that would be admissible
under Rule 803(6)**

c. FRE 104: Judicial Determination of Preliminary Questions

i. By a preponderance of the evidence 104(a)

IV. FRE 1001 1007: THE ORIGINAL DOCUMENTS RULE AND

RELATED PROCEDURES
STEPS FOLLOW
ORIGINAL DOCUMENT RULE applies only when:
o Dealing with writing, rec, photo
o Applies only when writing itself has independent legal significance (words of K,
deed, will, etc.)
o Where writing is offered to prove event (e.g. x-ray to prove injury, etc.)
o Testimony is reliant on the writing, not reliant on personal knowledge.
o Duplicate being admitted
STEP 1: Is it a writing, recording, photograph?
o If YES, move on
o If NO, ODR doesnt apply
STEP 2: Is the document being used to prove its contents?
o IF YES, move on
o If NO, ODR doesnt apply

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STEP 3: Evidence must be 901 authenticated has it been? Can it be? (need ESSF that
the document is what proponent claims it is, and that it comes from the purported source)

STEP 4 (as applies):
o Original is preferred under 1002;
o Duplicates (that accurately reproduce the original) are permitted [1003]:
Unlike the cL, the FRE allow a duplicate (e.g. a photocopy) in lieu of the original,
unless (1) a genuine question is raised about the originals authenticity, or (2) the
circumstances make it unfair to admit the duplicate (e.g. if 2-sided check, and
duplicate is only one side)
STEP 5: (Is there a really good excuse for not having the original?) -- Have the originals
been lost or destroyed? [FRE 1004(a)]
o If YES, Other evidence is admissible to prove the writing, UNLESS the
proponent lost or destroyed them in bad faith. [TJ 104(a) preponderance inquiry]
o IF NO, Is the original unobtainable by any available judicial process or
procedure? [FRE 1004(b)]
STEP 6: Is the original unobtainable by any available process or procedure? [1004(b)]
o If YES, other evidence is admissible to prove the contents of the writing.
o If NO, Has the opponent failed to produce the document when it was under the
opponents control and the opponent was put on notice, by the pleadings or
otherwise, that the contents would be a subject of proof at the hearing? [1004(c)]
IF YES, other evidence is admissible to prove the contents of the writing
IF NO, other evidence is not permitted to prove the writing, unless the
writing is not closely related to a controlling issue.

a. FRE 1001: Best Evidence Rule Definitions

1. Definitions:
a. Writing, recording, photograph, original, duplicate

b. FRE 1002: Requirement of Original; Former Testimony;

Depositions
1. Federal Rule: FRE 1002 gives the federal version of the ODR: An original
writing, recording, or photograph is required in order to prove its content.

c. FRE 1003: Admissibility of Duplicates

1. Duplicates permitted: Unlike the cL, the FRE allow a duplicate (e.g. a
photocopy) in lieu of the original, unless (1) a genuine question is raised about
the originals authenticity, or (2) the circumstances make it unfair to admit the
duplicate (e.g. if 2-sided check, and duplicate is only one side)

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d. FRE 1004: Admissibility of Other Evidence of Its Contents
e. FRE 1005: Public Records
f. FRE 1006: Summaries of Voluminous records OK
1. Sponsoring witness needed (often an expert) who testifies that he has
prepared or reviewed the underlying writings and the summary and that the
summary accurately reflects the underlying documents

g. FRE 1007: Testimony or Witness Admission of Party

h. FRE 1008: Functions of the Court and Jury
2. Ordinarily, the ct determines under 104(a) [by a preponderance of the
evidence stronger rule for the TJ] whether the proponent has fulfilled the
factual conditions for admitting other evidence of the content of a writing,
recording, or photograph under 1004, 1005. BUT IN A JURY TRIAL, the jury
determines by ESSF (104(b)) any issues about whether:
a. An asserted writing, recording, or photograph ever existed;
b. Another one produced at the trial or hearing is the original; or
c. Other evidence of content accurately reflects the content.

V. THE CHARACTER AND PROPENSITY RULES

a. FRE 404 & 405: Evidence of a Persons Character Used to Show
Action in Conformity with That Character
i. Character evidence not admissible to prove conduct; exceptions, other crimes
ii. FRE 405: Methods of proving character
A. Character Evidence
a. 4 Preliminary Questions:
i. For what purpose do you seek to offer character evidence?
1. When character is the ultimate issues in the case ok
2. To impeach the credibility of a witness ok
3. As evidence of Ds good pertinent character after Ps case in chief
in crim case? OK
ii. What method to prove character?
1. Specific acts
2. Opinion testimony
3. Testimony as to the persons general reputation in the community
iii. What type of case? Criminal or civil?
iv. What trait of character? It must be the specific trait which is
substantively at issue in the case (pertinent)
b. Civil cases: character evidence NOT admissible as circumstantial evidence to
prove conduct. But, character evidence is admissible in a civil case IF

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character is directly at issue (404(a)(2)(a) (e.g. defamation, negligent
entrustment, loss of consortium) TJ will give limiting instruction. May prove
by any method. BUT MIAMIKOPP introduction of character evidence for
another purpose applies to civil cases too (see below)
i. CIVIL D cannot introduce evidence of good character using reputation or
opinion testimony
c. Criminal cases:
i. Basic Rules: Bad character, in any form, is NOT admissible at the
initiative of the prosecution if the sole purpose is to show criminal
propensity
UNLESS & UNTIL
The accused opens the door by presenting evidence of good character for
the pertinent trait (e.g. murder: violence, peacefulness) in the form of
reputation and opinion to show innocence. Only then may the
prosecution respond by showing the bad character of the accused by:
1. Cross-examining the character witness (including whether he
knows of or has heard of specific instances of the Ds misconduct)
2. Calling qualified witnesses to testify to Ds bad reputation, or give
their opinion as to Ds character.
ii. Evidence of the victims bad character
1. In cases other than rape self defense: D may present evidence
of the victims bad character when it is relevant to show the Ds
innocence.
a. By reputation or opinion (to show victims violent
disposition). By knowledge of specific acts (to show Ds
state of mind).
b. Prosecution may counter with reputation or opinion
evidence of the (i) victims good character, or (ii) the
defendants bad character for the same trait.
iii. Evidence of a persons other crimes or misconduct is generally
inadmissible.
1. But, such evidence is admissible IF it is relevant to some issue
other than character or disposition.
a. M.I.M.I.C.: motive (i.e. burn building to hide
embezzlement), intent (lack of good faith), absence of
mistake, identity (stolen gun used or signature crimes), or
common plan or scheme.
b. To impeach credibility to show lack of truthfulness after
the D testifies (perjury convictions, for example).
2. Applies in both civil and criminal cases.
3. To be admissible: (1) there must be sufficient evidence to support
a jury finding that the D committed the prior act, and (2) its
probative value must not be substantially outweighed by the
danger of unfair prejudice.

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4. Evidence of prior sexual assault or child molestation is always
admissible in a case where the D is accused of committing a sexual
assault or child molestation. So, D need not open any doors for
Prosecution to raise issue. Not limited to prior convictions.
Includes any evidence of prior acts.

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Why is Plaintiff/prosecutor/D (usually P) trying to introduce evidence of past
crime/wrong?
1. If theory of relevance is once-a-criminal-always-a-criminal then
404(b)(1) bars admission.
2. If the reason why P/D (usually P) is introducing evidence is to show
MIAMIKOPP, look to 404(b)(2)
In order to admit evidence pursuant to 404(b)(2), the proponent
must satisfy 3 requirements:
1. The proponent must articulate some noncharacter purpose for
which the specified acts evidence is relevant. (e.g. proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident). MIAMIKOPP
-ALSO Modus Operandi must be very similar though]
2. The proponent must introduce evidence that the person who
allegedly committed the act in fact did commit the act. [104(b)
ESSF]: (TJ question: could a reasonable finder of factif they
wanted tofind it more likely than not that this particular D did
it?(e.g. D stole purse)
A. NOTE: Some states apply a 104(a)-type standard in
assessing a persons involvement in a prior act
Proponent must persuade the TJ that (a) the person
allegedly responsible for the act did in fact commit the
act, and (b) the person did so culpably (if culpability in
the commission of the act is important to its relevance,
as it usually isPERSUADE BY Preponderance of the
evidence. One state says that TJ must find beyond a
reasonable doubt
3. The proponent must be prepared to respond to a likely FRE 403
objection to the evidence.
4. (IF the proponent of the evidence is the PROSECUTOR), there is
a 4th requirement -- that the Prosecution respond to a criminal
defendant's demand for notice.
5. Also, maybe trying to concoct an Old Chief-type narrative?
CIVIL D cannot introduce evidence of good character using reputation or
opinion testimony
CRIMINAL D can use percipient witness testimony, reputation or opinion,
NOT specific acts, BUT opens the door

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VI. FRE 406: HABIT AND ROUTINE PRACTICE
a. In most jurisdictions and under FRE, evidence of a persons habit is admissible to
show that he followed his habit on a particular occasion.
b. Evidence is admissible to show that a party followed his organizations routine
business practices.
c. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eye witness.
d. LAWSON: You can admit habit evidence, bc its NOT
CHARACTER/CHARACTER TRAIT evidence that is barred by 404

VII. FRE 407 411: RELEVANT EVIDENCE INADMISSIBLE TO

PROVE FAULT AND LIABILITY FOR POLICY REASONS
a. FRE 407: Subsequent Remedial Measures
1) When measures are taken (depending on jurisdiction either by D or third parties)
that would have made an earlier injury or harm less likely to occur, evidence of
subsequent (to suit) remedial measures is not admissible to prove
a. Negligence
b. Culpable Conduct
c. A defect in a product or its design; or
d. A need for a warning or instruction
2) BUT the court may admit this evidence for IMPEACHMENT, or if disputed
proving ownership, control, or the feasibility of precautionary measures.
3) STEPS: Is this a remedial measure? (remedial measure = anything that makes the
possibility of accident less likely)
a. FIRST ASK: Is this a subsequent remedial measure? (remedial measure =
anything that makes the possibility of accident less likely)
b. THEN ASK: Who took the measure?
i. Did specific D take it? BARRED
ii. Did another third party take it? (Some jurisdictions allow it, others
do not)
Subsequent rem meas cannot be admitted to establish negligence or culpability.
They can be admitted to show ownership, control or feasibility of precautionary
measures if controverted or impeachment.
Policy: little probative value on the issue of negligence, AND dont want to deter
people from fixing things (and dont want to discourage making repairs)
Cannot admit remedial measures subsequent to injury.
Admissible:
o To prove ownership or control
o To prove D destroyed or concealed evidence (e.g. repairing fender to
destroy evidence of collision)
o FOR IMPEACHMENT to rebut evidence of Ds witnesses on safety of
the condition.

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b. FRE 408: Compromise and Offers to Compromise
1. You cant use settlement negotiations as evidence of subsequent remedial
measures.
2. Policy: Encourage settlements
3. Admissible: Can be introduced to prove:
a. a witnesss bias or prejudice,
b. negating a contention of undue delay, or
c. proving an effort to obstruct a criminal investigation or prosecution.
4. **IF question whether statement was made close in time to the negotiation or
settlement, then TJ can decide by a preponderance of the evidence under 104(a)
whether or not to consider it part of settlement.

c. FRE 409: Payment of Medical or Similar Expenses

1. Evidence of furnishing, promising to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the inju
2. Policy: (1) Good Samaritan rationale to encourage ppl to pay bills; (2)
codification of an old established doctrine
3. Im so sorry, it was all my fault!! (admissible) Can I pay your medical bills?
(inadmissible)

d. FRE 410: Withdrawn Guilty Pleas, Pleas of no contest, and Offers to

Plead Guilty
e. FRE 411: Liability Insurance
1. Evidence that one was or was not insured against liability is inadmissible to prove
negligence, wrongdoing, or ability to pay.
2. Admissible:
a. To prove ownership or control
b. To show bias OR for impeachment.
3. Policy: Encourage settlements

VIII. Two Issues that NO Fed Rules Address

IX. SIMILAR HAPPENINGS EVIDENCE:
1) Must be substantially similar
2) Since not propensity evidence under 404, it is governed by 401, 402, 403
3) NOTE: Once you start introducing evidence of past events, other party will have
to show how each and every one is substantially similar to the current events
(waste of time under 403)!

X. IMPEACHMENT (BICCC)

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a. FRE 607: Who may impeach
(i) Any party, including party who called the witness,, may impeach the
testifying witness.

b. FRE 608: Character Evidence Impeachment and Rehabilitation

i. FRE 608(a)(1) & (2): Opinion and Reputation Evidence of Character
a. A witnesss credibility may be attacked by testimony regarding the
witnesss character for truthfulness/untruthfulness.
b. Opinion and Reputation evidence allowed ONLY AFTER character has
been attacked.
ii. FRE 608(b)(1) & (2): Specific Instances of Conduct
a. Extrinsic evidence is not admissible to prove specific instances of a
witnesss conduct in order to attack or support the witnesss character for
truthfulness
a. BUT the court may on cross/re-direct allow specific instances of a
witnesss conduct to be inquired into if they are probative of the
character for truthfulness or untruthfulness of:
i. The witness; or
ii. Another witness whose character the witness being cross-
examined has testified about.
b. Note: Extrinsic evidence means anything other than the words of a
witness on the stand.

c. FRE 609: Impeachment by Evidence of Conviction of Crime

i. FRE 609(a): The General Rule
ii. FRE 609(b): Time Limits
o Manner of proof: Evidence of a prior conviction may be produced by way of
an admission by the witness, whether during direct testimony or on cross, as
well as extrinsic evidence (e.g. a record of the conviction).
o BEWARE OF 403 Dangers of introducing evidence of prior conviction!!
o 609 Have to keep track of 3 things:
Felony
Witness felony in civil or criminal case (W is not D) (within 10
yr) - Regular 403 standard [609(a)(1)(a)]
Criminal Def's with felony (within 10 yr) - REVERSE 403 -
felony probative value substantially outweighs prejudicial

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effect -- must have really good reason for it (presumed
exclusion) [609(a)(1)(B)]
Misdemeanor against witness (not D) -- it can get in if speaks to
honesty/dishonesty (fraud, perjury)
Criminal witness (against D or W) with crime of dishonesty -
Automatically in- subject to 10 yr rule
If a conviction or release from confinement for it (which ever is later)
beyond 10 yr window,
evidence is admissible ONLY IF its prob value substantially
outweighs its prejudicial value (Reverse 403 -- you need a
really good reason)
o NOTE: IF MORE THAN 10 YEARS, PROPONENT
MUST GIVE REASONABLE WRITTEN NOTICE TO
ADVERSE PARTY

d. FRE 613: Witnesss Prior Statements Impeachment and

Rehabilitation
i. FRE 613(a): Disclosing the statement to the Witness
A party who is examining a witness about the witnesss prior statement is
not required to show it or disclose its contents to the witness, but the
statement must be shown, or its contents disclosed, to an adverse partys
attorney upon request.
ii. FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of Witness
Extrinsic evidence (i.e., evidence other than the witnesss own testimony)
of a witnesss prior inconsistent statement may be introduced ONLY if the
witness is given the opportunity to explain or deny the statement, and the
opposing party is given the opportunity to examine the witness about it.
The witnesss opportunity to explain or deny the statement need not take
place before the statement is admitted into evidence
Exceptions to the opportunity to explain
i. The opportunity to explain or deny a prior inconsistent
statement does not apply when the statement (i) impeaches a
hearsay declarant, or (ii) qualifies as an opposing parties
statement.
Collateral Matter
i. Extrinsic evidence of a pior inconsistent statement cannot be
used to impeach a witness regarding a collateral (i.e.

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irrelevant) matter; the questioning party is bound by the
witnesss answer)
Entitled to limiting instruction
PINS given TCIPP (801) can be given for its truth AND to
impeach.

e. Other Impeachment Techniques (ALL subject to 401, 402, 403;

EXTRINSIC EVIDENCE allowed subject to 403!)
i. BIAS
1. Personal relationship (e.g. relative),
2. Animosity (e.g. desire for revenge),
3. Financial interest in the outcome (e.g. the witness is the creditor
of a party)
4. Intimidation (e.g. someone has threatened the witness),
5. Witness is being paid by a party to testify
6. Note: Although not explicitly in FRE, many courts require that a
party ask a witness about an alleged bias before introducing
extrinsic evidence of that bias.
ii. Capacity (Mental or Sensory)
7. Physical or mental disability
8. Memory
9. No foundation requirement
10. Extrinsic evidence allowed
iii. Contradiction
a. Contradiction Inconsistency
b. Inconsistency = when your own statements are different from eachother.
c. Contradiction = when your statements contradict anything other than
witnesss other statements.
i. If you argue witness is wrong about central issue in case, VERY
HIGH PROBATIVE VALUE!
ii. Collateral Matter exception! -- If you argue that witness is wrong
about something very removed from being a substantive issue in
the case, then it might be a waste of time (403!).
1. Cannot introduce extrinsic evidence for collateral
matter! (--for 403 reasons..)

XI. HEARSAY RULES

a. Definitions & Broad Test
i. Out of Court?

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ii. Statement?
11. Verbal, nonverbal conduct, or written statement
a. Must have been intended as an assertion (i.e. to
communicate something anything!)
b. Doesnt matter who was intended audience could even be
the declarant herself
c. Physical responses are not admissible, bc they are
automatic
d. Made by a person (not animal, or machine unless human
interaction instigated the machine)
12. IMPLIED ASSERTION= Statement whose meaning is
ambiguous, and reason why you care about statement is about
something that you must make an assumption behind that
statement.
e. Did whoever wrote this note intend to communicate:
Dullard is a meth maker".
f. Use for commands, questions, sarcasm etc.
g. Approaches:
i. Literal approach to understanding the content of
an assertion
1. If you actually take the literal approach:
a. Something in the form of a question
could never be hearsay, questions
can't be true or false
b. Sarcasm couldn't be admitted true or
false
ii. Common Law Approach (p.437) -- side with the
Defense -- when dealing with content of a statement
for hearsay purposes, don't look just at literal words
-- look at the theory of relevance: Why is someone
introducing these words. If for literal words, ok. If
for some other words not stated or spoken, look at
relevant statement, translate literal words into that,
and bring that in.
iii. "Federal Rules approach" -- (Solves sarcasm
problem) General view in the federal courts is that
the FRE's don't look just at literal approach, nor use
british common law approach. Fed rules of evidence
1. Just like deciding when conduct is intended
to be an assertion, LOOK AT INTENTION
OF SPEAKER OR WRITER
iii. Admitted to prove the truth of the matter asserted

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b. Non-hearsay Exemptions? (can be admitted)

i. Prior Inconsistent Statement (TCIPP)
13. Trial Needs to be currently testifying at trial
14. Cross Needs to be available for cross
15. Inconsistent
16. Penalty of Perjury
17. Proceeding (anything with a neutral party proceeding
18. ** Impeach v. hearsay
a. Impeachment under Prior inconsistent statement: cannot
introduce substantively, only to impeach the witness
b. Hearsay: Impeachment and New testimony that prior
statement is true as substantive evidence.
19. Lack of memory is inconsistent
ii. Prior consistent statement
20. D must be testifying at Trial
21. Consistent
22. D must be available for cross
23. Offered to rehabilitate the witnesss credibility after attacked
OR TO rebut a charge of fabrication
iii. Prior identification
24. Prior identification of a person (made out of court
a. LAWSON one-time perception is fine
25. D testifying at Trial
26. Subject to Cross
27. Policy: Out of court are more reliable b/c nmade closer to the
incident than present trial
iv. Knowledge of the speaker (speakers state of mind)
28. E.g. I am the Pope! not admitted for its truth, but to prove
declarants insanity/incapacity.
v. Notice
29. E.g. statement the floor is wet admissible to show that
plaintiff had notice of the condition of the floor in negligence
action
vi. Effect on listener
vii. Offered to show time and place where that statement is made is admissible
viii. Legally operative words (patent, offer/acceptance, gifting property etc.)
ix. 801(d)(2) Opposing party statements asserted against other party
30. Personal knowledge requirement does not apply to party opponents

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31. Does not need to be made under penalty of perjury
32. Extrinsic evidence can be introduced to prove it!
33. May have 403, 404 objection
34. What counts as a party opponents statement?
a. Statements made by the party
b. Statement is one that the party manifested that it adopted or
believed to be true
i. Factual question
ii. Silence could sometimes mean acceptance
1. Not ok in a CRIMINAL case b/c D has a
right to remain silent.
c. Statement made by the person whom the party authorized
to make a statement on the subject (e.g. attorney)
d. Statement made by the partys agent/employee on a matter
within the scope of that relationship and while it existed
i. E.g. corporations/partnerships can be held to adopt
statements by employees
e. Was made by the partys coconspirator)
c. 803 Hearsay Exceptions NOT REQUIRING UNAVAILABILITY
i. 803(1) - Present Sense Impression [104(a) fact finding]
A statement describing or explaining an event or condition, made while
or immediately after the declarant perceived it is admissible
The occurrence of an event or condition
The contents of the statement describe or explain the event or
condition; and
The declarant made the statement while or immediately after
perceiving the event or condition
TEMPORAL COMPONENT time btwn event happening and
statement being made cannot be long.
i. Note: usually a question of moments, sometimes minutes,
but 10 minutes is too long there is time for reflection and
deliberation if 10 minutes go by, so the statement would
lack trustworthiness.
ii. 803(2) - Excited Utterances [104(a) fact finding]
Statement made about a startling event while under the stress of
excitement is admissible
The occurrence of a startling event or condition
i. [104(a) determination by judge whether an event is
startling]
The statement relates to the startling event or condition

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The statement was made by declarant while under stress of
excitement; and
i. How does a TJ decide whether declarant was under
stress/excitement? looks at nature of event (not
conclusive)
ii. e.g. if its a document, and he sees shaky handwriting,
mean/angry/startled emojis..
iii. When declarant uttered statement, what was their tone of
voice? Gestures? BUT how does declarant normally
sound? (This is a declarant-specific subjective inquiry --
not dispositive).
The stress of excitement was caused by the startling event or
condition.
iii. 803(3) Then-existing State of Mind, Emotion, Sensation, or Physical
Condition Declarations [104(a) fact finding]
Statement of declarants then-existing state of mind, emotion, sensation,
or physical condition (intent, plan, motive, pain, health, etc.) may be used
to prove existence of that condition OR to prove probable future duct
consistent with the intent
Present physical condition: When ones physical condition at a
certain time is in issue, statements made at that time are admissible
to prove that condition (e.g. plaintiffs statements at accident that he
is in pain are admissible to prove that he was in pain)
i. NOTE! Past condition (generally excluded e.g. Last
Friday, I was in pain)
Present intent to prove subsequent conduct: Admissible (e.g.
declaration that I intend to go to Crooked Creek admissible to
show probability that declarant went there)
SOS Statements as to past state-of-mind are INADMISSIBLE
i. E.g. I did not mean to kill him in a murder case is
inadmissible
iv. 803(4) - Statements Made for Medical Diagnosis or Treatment [104(a)]
Statements made to medical personnel that are reasonably pertinent to
diagnosis or treatment are admissible
Purpose requirement: The statement MUST be made for the
purpose of medical diagnosis OR to secure medical treatment
Content requirement: The statement must describe medical history,
past or present symptoms or sensations, or the inception or the
general cause of the symptoms or sensations
v. 803(5) - Past Recollection Recorded

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Memorandum or record on matter about which witness once had
knowledge but now has insufficient recollection
Declarant is testifying as a Witness (Only deals with a prior
statement of a testifying witness)
Statement is in the form of a record
Statement is on a matter about which the witness once had
personal knowledge
The witness cannot remember the fact/event sufficiently to testify
fully and accurately
Statement was made or adopted by the witness when the matter
was fresh in the witnesss memory
The statement accurately reflects the witnesss knowledge
NOTE: THE DOCUMENT/RECORD NOT ADMITTED
SUBSTANTIVELY does not go to jury
vi. 803(6) Records of a Regularly Conducted Activity
A writing, record, or memorandum of any act, transaction, or
occurrence, if made in the regular course of business AND was regular
practice to make the record, is admissible
The statement is a record [authenticated note self-authenticating
business records 902(11)]
The record is of an act, event, condition, opinion, or diagnosis;
The record was made at or near the time of the act
The record was made by someone with knowledge of the act
i. It can be their statement, or to someone else traceable to the
declarant
ii. At CL: declarant had to be a custodian.
The record was made from information transmitted by someone
with knowledge
The record was kept in the course of a regularly conducted activity
of a business, organization, occupation, or calling, whether or not
for profit
i. Custodian just testifies as to the general procedures of the
firm
It was a regular practice of that activity to make the record
**UNWRITTEN RULE** -- in order for something to qualify, the
information must originate by someone who has some kind of
legal or quasi-legal obligation within the organization to report
accurately
i. Exception: Under CL, hotel registries are OK, event
though the people showing up at hotel have no duty to
record info accurately the clerk asks for ID, but dont
always have equipment to check the accuracy of the ID.

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ii. OPPOSITION: Can raise arguments of
untrustworthiness!
vii. 803(8) Public Records and Reports
Records, statements, and reports prepared by a public official are
admissible, IF:
The statement is in the form of a record or statement of a public
office:
i. Prepared by public employee within scope of duty
Content requirement Content must set out:
i. Activities of that office
ii. Matters observed under a duty imposed by law to report,
BUT not a matter observed by law enforcement in
CRIMINAL CASES
iii. Made at or near time of the event
Factual findings from a legally authorized investigation
i. In CIVIL CASES: factual findings (including opinions and
conclusions) are admissible
ii. In CRIMINAL CASES: factual findings are admissible
ONLY when offered against the government
viii. 803(16) Statements in Ancient Documents
Statements in an ancient document is at least 20 years old, and whose
authenticity is established are admissible.
d. 804 Unavailability Required
i. Proving Unavailability of Witness
35. Privilege - The court rules that a Privilege applies.
a. E.g. A witness just pleading the Fifth is not enough
36. Witness refuses to testify, despite a court order to do so
37. Testifies to not remembering the subject matter
38. Cannot be present to testify at trial or hearing bc of death or a
then-existing mental illness
b. If dead
c. If theyre too sick/high on drugs to come in.
d. TJ must make a 104(a) finding of fact of (1) whether
claimed condition exists, and (2) whether the claim is
believable by a preponderance of the evidence
39. Party is absent from trial or hearing and the statements
proponent has not been able, by procfess or other reasonable
means, to procure:

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e. The defendants attendance, in the case of a hearsay
exception under Rule 804(b)(1) or (6); or
f. The declarants attendance or testimony, in the case of a
hearsay exception under Rule 804(b)(1), (3), or (4).

ii. 804(b)(1) - Former Testimony

A. There was already a trial, hearing or lawful deposition (could be a new
trial, mistrial etc.) and you want to introduce the words testified at
previous trial. [Parties in front of neutral 3d party observer]
B. Testimony is now offered against a party who had or, in a civil case,
whose predecessor in interest had an opportunity and similar motive
to develop the former testimony by direct, cross, or redirect
examination
a. In CRIMINAL CASE: can only use this exception if this D had
an opportunity to go against that prior testimony in the former
proceeding
i. (For Prosecution: govt claims that with grand jury
witnesses, courts just try to get an indictment, not to
prove that a person is guilty.
ii. For Defense: will claim that in preliminary hearings,
courts do not try to prove that a person is guilty
b. In CIVIL CASE: Predecessor in interest theres a clear
relationship of legal succession PRIVITY
i. Predecessor needs to have had similar motive to testify.
iii. 804(b)(2) Dying Declarations
A. Statement concerns the cause or circumstances of what the declarant
believes is impending death
B. Statement is made while the declarant believes death to be imminent;
and
C. The statement is offered in a HOMICIDE prosecution or a CIVIL case
D. Under FRE, victim-declarant need not have died, as long as he/she is
otherwise unavailable at trial
iv. 804(b)(3) Statements Against Interest
A. Content of the statement, at the time the statement was made, was:
a. Against the pecuniary or proprietary interest of the declarant
b. Could subject the declarant to civil or criminal liability; or
c. Could render invalid a claim held by the declarant.

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B. OBJECTIVE STANDARD: ask whether a reasonable person would
have recognized the consequence of the statement, and would have
been careful about making it
v. 804(b)(4) Statements of personal or family history
vi. 804(b)(6) Forfeiture of right to object where party procures unavailability of
defendant
vii. 807 Residual (Catch-all) Exception (Statement not covered by 803 or 804)
e. Confrontation Clause framework
i. TEST
40. Only applicable in a criminal trial
41. Hearsay declarant unavailable (803 (if unavail.) or 804)
42. Evidence offered against D, wher D had no opportunity for
cross
43. Testimonial if testimonial, thereby making the declarant a
constitutional witness, evidence cant be brought in
a. Testimonial statements:
i. Declarant believes the statement could be used as
evidence
1. E.g. former testimony, 911 call not made
under emergence
ii. Formalized statement in formalized proceeding
(Hammon Thomas)
b. Nontestimonial statements:
i. Declarant doesnt believe statement could be used
as evidence
1. E.g. present sense impression, excited
utterances
2. 911 call during emergency
ii. Statement in a non-formalized proceeding
1. (Justice Thomas statement in informal
police situation)
44. *** If a party intimidates a witness with the intention of
preventing that witness from testifying, then the witness will be
considered an available declarant regarding any evidence
offered by that party from that witness.

ii. CASES:
Crawford
Davis v. Washington

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Are statements made for the purpose and with the understanding
that the statements are going to be used in a criminal proceeding?
Hammon v. Indiana
Justice Thomas says that ppl were constitutional witnesses (and
their statements are thus testimonial) if they were making
formalized statements in formalized situations (e.g. affidavits,
depositions, structured police station proceedings) BUT stuff said in
a police station not enough.
Michigan v. Bryant (5-4 decision in favor of state; Sotomayor)
Emergency situation:
i. As long as people worried of a shooter being on the loose,
finding his identity would be important for safety, and
finding his identity is necessary to solve the public
emergency, not just for testimony
Melendez-Diaz
Forensic lab report identifying substance as cocaine was
testimonial
BUT Business records are nontestimonial because they were
created for the administration of an entitys affairs, and not for the
purpose of establishing some fact at trial.
Bullcoming v. New Mexico (2011)
Admission of testimonial forensic lab report through analyst who
did not sign or observe test being performed, violated the Ds right
of confrontation
Should bring in the actual lab analyst

XII. FRE 701 705: LAY OPINIONS AND EXPER TESTIMONY

a. FRE 701: Lay Opinion *By a preponderance of the evidence
A. Opinion Testimony by Lay Witnesses
A. If a witness is not testifying as an expert, testimony in the form of
an opinion is limited to one that is:
1. Rationally based on the witness's perception;
2. Helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and
i. helpfulness addresses issues of relevancy -so be
sure to state this in essay
3. Not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702

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b. FRE 702: Testimony by Experts
i. TEST
1. What makes someone an expert?
a. Very easy
2. Once you're qualified as an expert, what can you testify to?
a. Has expert used reliable facts?
b. Has expert applied a methodology?
c. Has he applied methodology reliably? [Decided by a
preponderance of the evidence]
3. What happens when experts based their opinions on evidence
that would be inadmissible if introduced directly. [703]
i. Is evidence otherwise admissible (opinion based
on personal observation of witness, or on
admissible case testimony)?
1. YES ADMIT
2. NO presumed inadmissible, but continue
ii. Is evidence offered for its truth
1. YES INADMISSIBLE
2. NO continue
iii. Is evidence offered to explain the experts
testimony?
1. YES Continue
2. NO INADMISSIBLE
iv. Presumed to be excluded unless -- Does
probative value of revealing this basis (to explain
the experts testimony) substantially outweigh
the prejudicial impact? [Reverse 403 --TJ must
decide]
1. If Probative value >> prej. eff.
ADMISSIBLE
2. If not, INADMISSIBLE

c. FRE 703: Bases of Opinion Testimony by Expert

a. Opinions based on Otherwise Inadmissible Evidence
[703]
i. Opinion can be based on personal observation, case
testimony (admissible evidence), or inadmissible
evidence.
ii. Only for basis on admitting evidence for explaining
iii. Traditional CL required expert testimony to be
based only on admissible evidence.
iv. 703 changes CL saying that if experts in fields
typically rely in their own fields on things that are

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inadmissible, its ok for experts to walk into court to
base their opinions on this inadmissible evidence.
3. E.g. if fire marshalls typically go around
interviewing ppl (that is inadmissible) to
form opinions about why fire started, then
fire marshall can testify based on that
v. If the expert bases his opinion on things that
otherwise are inadmissible, the proponent may
disclose them only if their probative value
substantially outweighs their prejudicial effect.
[REVERSE 403 Presumed Inadmissible, unless
TJ determines that probative value substantially
outweighed by the prejudicial effect (of jury hearing
it)] Limiting instruction (not allowed to use as
evidence of the fact being true just to evaluate
experts testimony)

d. FRE 704: Opinion on Ultimate Issue

i. CL was reluctant to have people say legal conclusions
ii. FRE says opinions are not objectionable if they address legal conclusions,
including Ds state of mind at time of trial
1. However, Hinkley rule cannot stipulate criminal defendants state
of mind at time of crime, when Ds state of mind is an element of
the crime or defense.

e. FRE 705: Disclosure of Facts or Data Underlying Expert Opinion

i. Opinion may be admitted without first testifying to underlying facts or data
unless required by the court; expert witness may be required to disclose
underlying facts or data on cross-examination

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