Evidence Outline

Shechtman
Fall 15

TABLE OF CONTENTS
INTRODUCTION ...................................................................................................................................................... 5
HISTORY...................................................................................................................................................................................... 5
EVIDENCE DOCTRINE ................................................................................................................................................................. 5
CIRCUMSTANTIAL V. DIRECT EVIDENCE .................................................................................................................................... 6
DIFFERENT FROM OTHER COUNTRIES ........................................................................................................................................ 6
RELEVANCY AND ITS COUNTERWEIGHTS ..................................................................................................... 7
RELEVANCY .............................................................................................................................................................................. 7
Rule 401—Definition of “Relevant Evidence” ..............................................................................................................7
Rule 402—Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible ........................7
Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time ..7
UNFAIR PREJUDICE ................................................................................................................................................................. 8
Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time..8
CATEGORICAL RULES OF EXCLUSION ................................................................................................................................. 10
Liability Insurance—Rule 411......................................................................................................................................... 10
Compromise Offers and Negotiations —Rule 408.................................................................................................. 10
Rule 409. Offers to Pay Medical and Similar Expenses......................................................................................... 11
Rule 410. Pleas, Plea Discussions, and Related Statements ............................................................................... 11
Subsequent Remedial Measures—Rule 407 .............................................................................................................. 13
CHARACTER AND HABIT ....................................................................................................................................................... 13
Character of the Accused—Rule 404(a) ..................................................................................................................... 13
Methods of Proving Character—Rule 405(a)........................................................................................................... 14
Evidence of Other Bad Acts—Rule 404(b)—Molineux Rule .............................................................................. 15
Evidence of Other Bad Acts in Sexual Assault Cases—Rule 413, 414, & 415 ............................................. 18
413—Evidence of Similar Crimes in Sexual Assault Cases................................................................................................................... 18
414—Evidence of Similar Crimes in Child Molestation Cases ............................................................................................................ 18
415—Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation ........................................ 19
Habit—Rule 406 .................................................................................................................................................................... 20
SUMMARY CHART ................................................................................................................................................................. 20
RAPE SHIELD LAWS .............................................................................................................................................................. 21
Rule 412—Sex Offense Cases: The Victim................................................................................................................... 21
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS ......................................................... 23
ORIGINAL DOCUMENT RULE................................................................................................................................................ 23
Rule 1001—Definitions....................................................................................................................................................... 23
Rule 1002—Requirement of Original........................................................................................................................... 24
Rule 1003—Admissibility of Duplicates...................................................................................................................... 24
Rule 1004—Excuses ............................................................................................................................................................. 24
Rule 1005—Public Records............................................................................................................................................... 24
Rule 1006—Summaries ...................................................................................................................................................... 24
Rule 1007—Testimony or Written Admission of Party ....................................................................................... 24
Analysis....................................................................................................................................................................................... 24
WITNESSES ............................................................................................................................................................ 26
COMPETENCY ......................................................................................................................................................................... 26
Rule 601—General Rule of Competency ..................................................................................................................... 26
Rule 602—Lack of Personal Knowledge ..................................................................................................................... 27

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Other witness competency qualifications................................................................................................................... 27
Rule 606—Competency of Juror as Witness .............................................................................................................. 27
FORM AND ORDER OF EXAMINATION ................................................................................................................................ 28
Rule 611—Mode and Order of Interrogation and Presentation ..................................................................... 28
Rule 614—Calling and Interrogation of Witnesses by Court ............................................................................ 29
Rule 615—Exclusion of Witnesses ................................................................................................................................. 29
REFRESHING RECOLLECTION .............................................................................................................................................. 30
Rule 612—Writing Used to Refresh Memory............................................................................................................ 30
LAY OPINION .......................................................................................................................................................................... 31
Rule 701—Opinion Testimony by Lay Witness ........................................................................................................ 31
EXPERT TESTIMONY ............................................................................................................................................................. 32
Rule 702—Testimony by Experts ................................................................................................................................... 32
Rule 703—Bases of Opinion Testimony by Experts ............................................................................................... 34
Rule 704—Opinion on Ultimate Issue .......................................................................................................................... 35
Rule 705—Disclosure of Facts or Data Underlying Expert Opinion .............................................................. 35
Rule 706—Court Appointed Experts ............................................................................................................................ 36
IMPEACHMENT OF WITNESSES ..................................................................................................................... 37
OVERVIEW .............................................................................................................................................................................. 37
Rule 607—Who May Impeach ......................................................................................................................................... 37
COMPETENCE/SENSORY OR MENTAL DEFECT ................................................................................................................ 37
BIAS ......................................................................................................................................................................................... 37
Rule 610—Religious Beliefs and Opinions ................................................................................................................. 38
PRIOR INCONSISTENT STATEMENT .................................................................................................................................... 38
Rule 613—Prior Statements of Witnesses ................................................................................................................. 38
Contradictory Statements (Collateral Issue Rule) ................................................................................................. 40
CHARACTER EVIDENCE......................................................................................................................................................... 41
Rule 608(a)—Evidence of Character for Truth-telling ........................................................................................ 41
Rule 608(b)—Prior Bad Acts as Evidence of Character for Truth-telling .................................................. 41
Rule 609—Impeachment by Evidence of Conviction of Crime (Prior Convictions) ................................ 42
HEARSAY ................................................................................................................................................................ 45
DEFINITION ............................................................................................................................................................................ 45
Rule 801 (a-c)—Definitions .............................................................................................................................................. 45
Rule 802—Hearsay Rule .................................................................................................................................................... 45
PRIOR STATEMENTS BY THE WITNESS .............................................................................................................................. 48
Overview .................................................................................................................................................................................... 48
Rule 801(d)(1)(A)—Prior Inconsistent Statements .............................................................................................. 49
Rule 801(d)(1)(B)—Prior Consistent Statements.................................................................................................. 50
Rule 801(d)(1)(C)—Prior Identification .................................................................................................................... 51
RULE 801(D)(2)—ADMISSION BY A PARTY OPPONENT .............................................................................................. 51
HEARSAY EXCEPTIONS—AVAILABILITY OF DECLARANT IMMATERIAL ...................................................................... 54
Present Sense Impression—803(1) ............................................................................................................................... 54
Excited Utterance—803(2) ............................................................................................................................................... 55
State of Mind - Then Existing Mental, Emotional, or Physical Conditions—803(3) .............................. 55
Statements for Purposes of Medical Diagnosis or Treatment—803(4) ....................................................... 57
Recorded Recollection—803(5)...................................................................................................................................... 57
Business Records—Rule 803(6) ...................................................................................................................................... 58
Absence of Entry in Records—Rule 803(7) ............................................................................................................... 59
Public Records and Reports—Rule 803(8-10) ......................................................................................................... 59

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Ancient Documents—Rule 803(16) .............................................................................................................................. 61
Miscellaneous Exceptions................................................................................................................................................... 61
HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE .................................................................................................... 62
Rule 804(a)—Definition of Unavailability................................................................................................................. 62
Former Testimony— Rule 804(b)(1) ........................................................................................................................... 63
Statement under Belief of Impending Death—Rule 804(b)(2) ........................................................................ 63
Statement Against Interest—Rule 804(b)(3)........................................................................................................... 64
Statement of personal or family history—Rule 804(b)(4) ................................................................................. 65
Forfeiture by Wrongdoing – Rule 804(b)(6) ............................................................................................................ 66
RESIDUAL EXCEPTIONS ........................................................................................................................................................ 66
Rule 807—Residual Exception ........................................................................................................................................ 66
RULE 805—HEARSAY WITHIN HEARSAY ........................................................................................................................ 67
RULE 806—ATTACKING AND SUPPORTING CREDIBILITY OF A DECLARANT............................................................. 67
CONFRONTATION CLAUSE.................................................................................................................................................... 67
Overview .................................................................................................................................................................................... 67
Testimonial Statements ...................................................................................................................................................... 69
PRIVILEGES ........................................................................................................................................................... 71
RULE 501—GENERAL RULE FOR PRIVILEGES ................................................................................................................ 71
MARITAL PRIVILEGES ........................................................................................................................................................... 71
OTHER PRIVILEGES ............................................................................................................................................................... 74
FUNCTIONS OF THE JUDGE AND JURY ......................................................................................................... 74
QUESTIONS OF ADMISSIBILITY ............................................................................................................................................ 74
Rule 104—Preliminary Questions ................................................................................................................................. 74
Rule 1008—Functions of Court and Jury for Contents of Writings ................................................................ 75
AUTHENTICATION ................................................................................................................................................................. 75
Rule 901(a)—Requirements of Authentication or Identification ................................................................... 75
Rule 902—Self Authentication ........................................................................................................................................ 76
Rule 903—Subscribing Witness’ Testimony Unnecessary .................................................................................. 77

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INTRODUCTION
HISTORY
A. Used to be Trial By Ordeal—i.e. if you sunk you were innocent, if you floated, you were guilty.
1. God’s judgment—divine ingredient
2. In 1215, church forbade priests from presiding at ordeals because the process was corrupt,
so when they couldn’t participate, it was no longer divine, so they needed a substitute.
B. Trial by Jury—began in 1220
1. Members of the community were the jury and they brought the evidence because they
knew all of the circumstances surrounding a particular controversy.
2. With time and urbanization, jurors became less self-informing and more fact-finding.
3. Importance of the Oath
a. Wanted a divine aspect, people that wouldn’t tell the truth wouldn’t take the oath.
b. Lots of hearsay law comes from the person who’s not under oath, which is why we
don’t accept it.

EVIDENCE DOCTRINE
A. Until late 18th century, it was scattered precedents.
B. Began as exclusionary rules, developed in second half of 18th century.
1. First great work on evidence was Bentham’s Rationale on Judicial Evidence.
a. Central to this work was the exclusionary rules that said things like felons and
spouses can’t testify.
2. When you exclude evidence you often exclude justice, so there has to be a legitimate reason
to exclude things.
3. Can exclude for two reasons: (Thayer)
a. 1. Serving a policy that is extrinsic to the truth finding process
i. Ex: Police the police. If we don’t exclude bad police behavior we will get
coerced testimony. We realize that we may be disadvantaging fact finder
but we’re serving another purpose.
ii. Ex: Spousal privilege. Preventing them from testifying encourages
communication between spouses, which we think is a good thing.
iii. Ex: Changes made to fix. If you make a change to a dangerous product, we
say you can’t include that because we want people to make those changes.
b. 2. We distrust the jury
i. Ex: Hearsay. Not trusting the jury to weigh properly a statement that can’t
be cross-examined.
ii. Ex: Prejudicial evidence. Some evidence will not add to the knowledge of
the case but will inflame the jury and change the burden of proof.
iii. Tanner v. US (SCOTUS 1987 A3) Juries suck, drunk jury.
C. In 18th century, center of balance of evidence shifts to America
1. 1945—attempts were made to codify rules of evidence in the ALI Proposed Model Code of
Evidence.
a. Very radical: discarded hearsay rule, etc.
i. Only Nebraska adopted it, and that was by court rule. Nebraska’s congress
then repealed court’s ability to make rules.
2. 1953—second attempt at a statute in the Uniform Rules of Evidence.
a. Done by the group that does the UCC and drew on the Model Code while being less
radical and less technical.
i. Only 3 states adopted it. NJ and Kansas
3. 1965—California adopted Evidence Code and it had profound influence on the future
Federal Rules of Evidence.

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a. Earl Warren appointed committee to draft the rules of evidence. Chair of that
committee was Al Jenner.
i. Very conservative block of drafters so the FRE are not close to the ALI
Model Code.
ii. Influenced by ALI but mostly a conservative statement of the rules.
b. Intended to be promulgated under the Rules Enabling Act
i. 1969—Preliminary draft
ii. 1971—Revised draft
iii. 1972—Supreme Court transmits the rules to Congress, and they indicate
that they are the product of the advisory committee, pursuant to the Rules
Enabling Act. However, they arrive at the time of the Watergate Scandal
so they attract a lot of attention for the executive privilege provision.
a. Congress holds hearings, decides not to pass them pursuant to
Rules Enabling Act, but to debate them instead.
b. Eliminated provisions on privilege that committee had drafted
and wrote “the rules of privilege will be determined by the
courts.”
4. 1975—Congress passed Federal Rules of Evidence
a. Adopted by 42 states either in whole or in part.
i. NY did not adopt the rules.
5. 2011- Rules restyled, no substantive change
D. Statutory Scheme
1. Was codification wise?
a. One book to look for to find black letter law, which helps if you’re planning trial
strategy.
b. However, you have problems of interpretation. Should you look to legislative
history, or just to the text.
i. Before codification you were looking to balance the interests and now it is
about statutory interpretation.
c. Hard to draft a statute. You draft something with specific facts in mind, and then
something unanticipated comes up and you have to try to fit it into the statute.
i. Also, language can be imprecise even if you anticipate the situation.

CIRCUMSTANTIAL V. DIRECT EVIDENCE

A. Direct—Evidence which, if believed, automatically resolves the issue.
1. Ex: W says “I saw D strangle V.”
B. Circumstantial—Evidence which, even if believed, does not resolve the issue unless additional
reasoning is used.
1. Ex: W says “I saw D running from place where V’s body was found and I found a coat hanger
in D’s pocket.” This is only circumstantial as to whether D strangled V.
C. Probative Value—The probative value of direct evidence is not necessarily higher than
circumstantial evidence, but it will sometimes be more readily admitted by the judge.

DIFFERENT FROM OTHER COUNTRIES

A. Three things make our trials different:
1. Lay jurors
2. Bifurcated structure—jury and judge (who screens evidence from the jury)
3. Adversary system and sense of party control, which means:
a. Parties present evidence only if they wish
b. We expect lawyers to object to evidence
i. If they don’t object to admission, it is ok

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c. Inputs are heavily regulated, but output is just “guilty” or not.
i. In other countries, the inputs aren’t regulated but the output is very
regulated in that they have to detail how they decided.

RELEVANCY AND ITS COUNTERWEIGHTS

RELEVANCY

RULE 401—DEFINITION OF “RELEVANT EVIDENCE”

A. “Evidence is relevant if:
1. (a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
2. (b) the fact is of consequence in determining the action.”
B. Very low standard—The piece of evidence need not make a material fact more probable than
not; it must merely increase the probability that the fact is so.
1. Brick not a wall. Anything that moves your case forward is ok (although it may be kept out
under 403 for waste of time).
C. Relevance, not sufficiency
1. X makes it more likely they committed the crime
2. X makes it more likely than not they committed the crime
a. This is about sufficiency of the proof and is not required for each piece of evidence.
D. Not inherent—Relevancy isn’t inherent in an item of evidence, but exists only as a relation
between an item of evidence and a matter properly provable in the case.
1. Have to know the elements of the offense before you know whether evidence is relevant to
it.
E. Any fact—The fact to be proved may be ultimate, intermediate, or evidentiary; it does not
matter as long as it is of consequence in the determination of the action.
F. The fact need not be in dispute—Admissible to any fact. If the matter is not in dispute, may be
excluded under 403.
1. Matter does not become irrelevant just because there is other proof that shows the same
thing. (Unlike probative value, which can become more or less probative given alternatives).

RULE 402—RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE

A. “Relevant evidence is admissible unless any of the following provides otherwise:
1. the United States Constitution;
2. a federal statute;
3. these rules; or
4. other rules prescribed by the Supreme Court.”
5. Irrelevant evidence is not admissible.”
B. The Rule—Evidence is kept out pursuant to 402, not 401, even though 401 is most cited.

RULE 403—EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR

WASTE OF TIME
A. “The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”

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B. Basic policy assumption—this rule reflects the policies underlying the following rules. It is a guide
for handling situations in which no specific rules have been formulated.
a. 403 says that relevant information may be excluded if it is unduly prejudicial. The
rest of Rule 4 gives specific instances when it must be excluded because it is unduly
prejudicial.
C. Evidence about defenses is relevant
1. US v. Onumonu (2nd Cir. 1992, A18)—D charged with smuggling heroin by swallowing
balloons. His defense was that he thought they were diamonds. Wanted to introduce
expert to talk about how prevalent diamond struggling was and how much could have been
made if he had smuggled diamonds. P says irrelevant because only issue is whether he knew
they were diamonds or not. Admissible because relevant to question of whether it was
possible diamonds could have been smuggled and if that would have made sense.
Can tell what is relevant by lookgin at the summation- does it help make the argument?
D. Evidence relevant even if it’s weight is questionable
1. Carter v. Hewitt (3rd Cir. 1980, A22)—D charges he was beaten by prison guard. P wanted to
admit letter written by D six months after the incident, D says irrelevant. Admissible. Even
though the letter may not actually mean that he was trying to establish false pattern of
police abuse, that inquiry goes to weight, not relevance.
E. Can be relevant to impeach, even if not relevant to guilt
1. US v. Griffith (2nd Cir. 2004, A23)—D lied to PTS officer. P wants to admit evidence of the lie
to impeach D. Even though this evidence isn’t admissible to prove guilt it is admissible to
impeach. Admissible because relevant to impeachment.

UNFAIR PREJUDICE

RULE 403—EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR

WASTE OF TIME
A. “Although relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice….”
1. “May”—discretionary and favors admissibility such that there is no mandatory exclusion if
prejudice outweighs probable value.
a. Therefore, appellate courts will give high deference to trial judges.
2. “Unfair Prejudice”—means “an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.”
B. Two types of “unfair” prejudice—all evidence prejudices in some way because it is intended to
hurt the other party.
1. Unfair inference
a. The juror reacts to aspects in a way that is not supposed to be part of the evaluative
process. In other words, juror declares guilt on a ground different from proof
specific to the offense charged.
i. Ex: Bad person so should be punished. Not, did this bad act, so should be
punished.
b. This is why evidence of bad character isn’t allowed.
2. Unfair weight
a. The juror gives undue probative weight to an item of evidence.
i. Ex: He did it once, he must have done it again.
b. This is why propensity evidence isn’t allowed.
3. Ballou v. Henri Studios (5th Cir. 1981, A31)—D wanted to introduce lab tests saying P was
drunk. P introduced nurse testimony that he wasn’t. Trial judge says inadmissible D’s blood
tests were unreliable, and “intoxication” is too likely to prejudice the jury. Admissible

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because probative is weighed based on its weight if the evidence were to be believed, not the
weight the judge gives to it. Also, only prejudicial because it could prove contributory
negligence, not unfairly prejudicial.
C. Probative value depends on other available evidence
1. If P has a strong case without the evidence, the probative value of the evidence is reduced.
However, if P doesn’t have other evidence, probative value is increased. (Unlike relevance
where similar evidence doesn’t make the first evidence irrelevant).
a. US v. Jackson (Weinstein, 1973 pg. A35)—D accused of bank robbery. P wants to
introduce evidence he fled and used a false ID. D says prejudicial because to rebut
accusation of flight, would need to introduce evidence of other crime he committed
that he was fleeing. Probative value of D’s conduct is heightened by the limited
nature of P’s other proof. However, very prejudicial, so not admissible as long as D
stipulates that he was in another state using a false name.  Forced stipulation
2. Stipulations often used to show that there is alternative evidence that is just as probative
but less prejudicial.
D. Limiting Instructions and Stipulations
1. Rule 105—“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.”
2. Exclusions based on unfair prejudice should take into account the probable effectiveness of
a limiting instruction or stipulation.
a. US v. Jackson (Weinstein, 1973 pg. A35)
b. Restrictions on what can and can’t be said may give jury impression that something
is left out and they will use their imagination to fill in any gaps. However, “trials are
not designed to get at the total truth in all its mystery: they only allow decision of
narrow issues of fact and law within the limitations of a moderately effective
litigation system.”
3. Stipulations can be forced onto P.
a. Old Chief v. US (SCOTUS 1997, pg. A37)—D accused of felon in possession of
firearm and willing to stipulate that he is a felon. P rejects stipulation offer, and
introduces evidence about his prior offense, which was assault with firearm.
Inadmissible when full name and nature of a prior offense raises the risk of a verdict
tainted by improper considerations, and when the purpose of the evidence is solely
to prove the element of prior conviction.
i. Holding limited to cases involving proof of felon status.
b. Harder to force D to stipulate because they can say P has to prove their case.
4. But evidence is entitled to its “fair and legitimate weight.”
a. Old Chief v. US (1997, pg. A37)— The accepted rule that the prosecution is entitled
to prove its case free from any D’s option to stipulate the evidence makes sense
because a naked proposition is no match for robust evidence and can lead to gaps in
prosecutions case. However, here, these concerns are not present.
i. The stipulation here is not about this trial, it is status about a previous trial.
5. When is evidence of third party guilt probative?
a. Holmes v. South Carolina (SCOTUS 2006, A50)—D convicted of raping an older
woman based mostly on forensic evidence. He wanted to introduce testimony that
the forensic evidence was tainted and evidence that another person had admitted
to the rape. State’s rule said that evidence of 3rd party guilt can’t be considered if P
has forensic evidence. State’s rule is unconstitutional because it does not serve the
purpose of rule 403 as other rules excluding 3rd party guilt do. Other rules fit within
403 because they ask the trial judge to weigh the probative and prejudicial value of
the 3rd party guilt evidence. This statute, however, only asks about strength of
prosecutor’s case. – first time you see constitution trumps a state rule.

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CATEGORICAL RULES OF EXCLUSION

LIABILITY INSURANCE—RULE 411

A. “Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully. But the court may admit this
evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency,
ownership, or control.”
1. Justification
a. Based on fear that jurors who know a party has insurance may find that party liable
only because they believe the liability will be cost-free to the party.
2. Eichel v. NY Central RR Co (1963, pg. A67)—P hurt, got disability payments through the
railroad. D wanted to admit disability payment to show motive by P to not come back to
work (which increased damages). Trial judge excluded disability evidence, court agrees.
Inadmissible because likelihood of misuse outweighs probative value—there can be different
malingering evidence.
a. Some states have eliminated 411 because you can get the same result under 403.
B. Substantial Connection Test—Even if evidence of insurance offered for other purpose, still has to
pass 403 test, which uses a substantial connection test for insurance purposes.
1. Yoho v. Thompson (S.C., pg. A65)—D hit P’s car from behind. D’s insurer paid out the max,
and then P’s insurance company took over D’s defense. Doctor wanted to testify to extent
of P’s injuries and P wanted to cross-examine about doctor’s relationship to the insurance
company defending D. Goes to bias, so admissible under 411. But is it admissible under
403? Adopts “substantial connection” analysis to determine whether expert’s connection to
D’s insurer is sufficiently probative to outweigh the prejudice to D from jury’s resulting
knowledge that D has insurance. Concludes connection was sufficiently probative (was not
just expert for hire, he worked for D so it was more probative of bias) and allows evidence.
C. Flowchart
1. Is it offered to prove the person acted negligently?
a. If yes, not admissible.
2. Is it offered for another purpose (ownership, control, prejudice, bias, or agency)?
a. Is this purpose motive to not get better (Eichel)?
b. If yes, does it pass 403?
i. Can you avoid the word “insurance” through either limiting instruction or
stipulation against using it?
ii. Does it pass substantial connection test (close connection is probative of
bias, so admit)?

COMPROMISE OFFERS AND NEGOTIATIONS —RULE 408

A. “(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party —
either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
1. (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to
accept — a valuable consideration in compromising or attempting to compromise the claim;
and
2. (2) conduct or a statement made during compromise negotiations about the claim — except
when offered in a criminal case and when the negotiations related to a claim by a public
office in the exercise of its regulatory, investigative, or enforcement authority.

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B. (b) Exceptions. The court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct
a criminal investigation or prosecution.”
1. Justifications:
a. Evidence has limited probative value because made from desire for peace, not
concession of guilt
b. Public policy favoring compromise and settlement of disputes (cone of silence)
i. Broad exclusionary rule to encourage settlements.
ii. However, offers of settlement may be offered to show another purpose
other than the (in)validity of the claim, or its amount. I.e. it is ok to show
bias.
2. Davidson v. Prince (Court of Appeals of Utah, 1991 A70) 10ft vs. 40ft truck distance, cow
escape, letter admitting 10 foot distance. Court looked at the language in the letter Davidson
had written and concluded that it was not an offer to compromise, but instead just an
attempt to inform Prince of the facts of the accident. The letter demanded payment in full
and suggested that Davidson would not compromise one bit.  Offers to compromise or
settle a case are not admissible, but there are exceptions.
C. When do “compromise negotiations” start?
1. At the point of a claim, even if lawsuit hasn’t started yet. Look to purpose: inadmissible
where we need a rule to encourage candid talk. Don’t need such a rule at the scene of an
accident.
D. Flowchart
1. Was there a disputed claim?
2. Is evidence being used to show liability for, invalidity of, or amount of the claim? Or is it
being offered to impeach?
a. If no, does it pass 403?
3. Is it within one of the categories?
a. Is it a settlement offer?
b. Was it a related statement or conduct made during compromise negotiations?
i. Was there a claim (was it to a point where we need to encourage candid
talk so that we consider it compromise negotiations?)
ii. Is it being offered in a criminal case?
a. Were the negotiations related to a claim by a public office or
agency?

RULE 409. OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES

A. “Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury.” Justifications
1. Evidence has limited probative value because made from humane impulses.
2. Public policy encouraging assistance to injured persons.
B. Does not extend to offers to pay for personal property, only medical expenses.
1. Does not extend to related statements of fact, only offers to pay are excluded.
C. Flowchart
1. Is it being offered to show liability?
2. Did you pay or offer to pay?
a. Was it for medical expenses?
3. Does it pass 403?

RULE 410. PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS

A. “(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against
the defendant who made the plea or participated in the plea discussions:

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1. (1) a guilty plea that was later withdrawn;
2. (2) a nolo contendere plea;
3. (3) a statement made during a proceeding on either of those pleas under Federal Rule of
Criminal Procedure 11 or a comparable state procedure; or
4. (4) a statement made during plea discussions with an attorney for the prosecuting authority
if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty
plea.
B. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
1. (1) in any proceeding in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be considered
together; or
2. (2) in a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record, and with counsel present.”
C. Implications
1. “Later withdrawn”—guilty plea made during plea agreements can’t be excluded in future
cases if it was upheld.
2. “Attorney for prosecution attorney”—statement must have been made in plea agreement
with prosecutor. Can’t exclude statements made to cops, even if D thought he was
bargaining for a better plea.
a. Rachlin v. US (8th Cir. 1983, A78)—D investigated for fake bills, spoke with
prosecutor, then spoke to police officer a few times. Wanted to suppress the
statements to the cop based on theory of “ongoing negotiations” because spoke
with prosecutor first. Admissible. The statements must be made to a prosecutor, or
to a law enforcement officer acting with express authority from prosecutor.
Ongoing negotiations theory is rejected.
3. Absence of “to show liability” language—different structure from 408, which says
“admissible in all except forbidden if to show liability or impeach.” This says “inadmissible in
all except allowed if…” This means that plea agreements aren’t allowed to show bias or
other things where offers to compromise are.
D. Ability to waive 410 rights
1. US v. Mezzanatto (1995, pg. A81)—D sold meth to undercover officer. Sat down to
negotiate with prosecutor, who said he wouldn’t use the statements directly, but would use
them to impeach. P then impeached D with statements made during those negotiations.
Question is whether prosecutor could force D to waive his rights. 410 can be waived, so
statements are admissible. Rules are not a complete bar to admission; only if they are
invoked will evidence be excluded. If they are not invoked, it can be thought of as implied
waiver, even if it would violate a rule. Therefore, they can be waived by the parties.
a. Concurrence limits this right to waiver of use for impeachment. Question of how
many of your rights you can waive under adversarial system where parties
determine the rules.
i. Can’t agree to lower standard of proof (preponderance of evidence instead
of reasonable doubt).
ii. Can agree to allowing spirit to testify.
b. Queen for a day agreement—in the context of “talking” with prosecutor, which is
not an official “plea negotiation” you usually sign a waiver saying they won’t use the
evidence against you, except to impeach or rebut.
E. Flowchart
1. Was it offered for any use (not just to show liability)?
a. Is it being offered against the defendant?
i. Was the defendant a participant in plea discussions?
b. Did D waive his rights (Mezzanatto)?
2. Is it a guilty plea later withdrawn, nolo contendere plea, or related statement?

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a. Was the statement made:
i. To a prosecutor,
ii. During plea discussions?
3. Has another statement been introduced?
a. Does fairness dictate that this statement should be considered as well?
4. Was it offered for use in a criminal proceeding
a. Was the criminal charge for perjury or false statement?
b. Was it made by D under oath, on record, in presence of counsel?
5. Does it pass 403?

SUBSEQUENT REMEDIAL MEASURES—RULE 407

A. “When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
1. negligence;
2. culpable conduct;
3. a defect in a product or its design; or
4. a need for a warning or instruction.
B. But the court may admit this evidence for another purpose, such as impeachment or — if disputed
— proving ownership, control, or the feasibility of precautionary measures.”
1. Justifications
a. Public policy wants to encourage manufacturers to fix products
b. Unfair to penalize D for taking socially desirable action
c. Isn’t probative because you could have taken all necessary precautions before hand
and just decided to take extra ones now
2. Columbia v. Hawthorne (1892, pg. A98)—Faulty saw caused injury. Evidence of subsequent
changes to the saw admitted at trial. Evidence is not allowed because the taking of such
precautions against the future is not to be construed as an admission of responsibility for the
past.
3. Flaminio v. Honda Motor (Posner, 1984, pg. A100)—D in motorcycle accident. Claims that D
should have warned of the “wobble” or it should have been corrected, and wanted to show
evidence that, after the accident, had fixed it. Judge excluded based on 407, but P argues
that 407 doesn’t apply to strict liability offenses. 407 doesn’t apply to strict liability offenses
because negligence doesn’t have to be proved, and 407 only forbids the evidence to prove
negligence.
a. This was decided using old rule. New rule adds language saying “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.”
C. Flowchart
1. Did a party take measures that made the injury less likely to occur?
2. Is it being offered to show negligence, culpability, defect, or need to warn?
a. Does it pass 403?

CHARACTER AND HABIT

CHARACTER OF THE ACCUSED—RULE 404(A)

A. 404(a)—“ (a) Character Evidence.

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1. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character or
trait.
2. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in
a criminal case:
a. (A) a defendant may offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
b. (B) subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
i. (i) offer evidence to rebut it; and
ii. (ii) offer evidence of the defendant’s same trait; and
c. (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait
of peacefulness to rebut evidence that the victim was the first aggressor.
3. (3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules
607, 608, and 609.”
B. Justifications:
1. Would lead to erroneous conclusions
2. Would result in admission of evidence that is unfairly prejudicial
3. But, is relevant to impeach someone’s credibility

METHODS OF PROVING CHARACTER—RULE 405(A)

A. “(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the
form of an opinion. On cross-examination of the character witness, the court may allow an inquiry
into relevant specific instances of the person’s conduct.
B. (b) By Specific Instances of Conduct. When a person’s character or character trait is an essential
element of a charge, claim, or defense, the character or trait may also be proved by relevant
specific instances of the person’s conduct. Character in issue cases such as defamation, libel,
entrapment, negligent entrustment, or competency hearings.”
C. Implications
1. In criminal cases, government cannot present any evidence of character of accused.
2. D can put it in if he wants, but is limited about how he can get it in (Rule 405). These
witnesses can only be asked about D’s reputation and give their own opinion.
3. On cross, government can ask about specific instances, as long as they have a good faith
belief that the instance actually took place.
a. Michelson v. US (1948, pg. A111)—D convicted of bribing federal revenue agent.
He said it was entrapment. Case turned on whether the jury should belief the agent
or D. D, on direct, admitted conviction 20 years ago, put up 5 character witnesses.
On cross, P asked them if they had heard of conviction. Also asked if they had
heard he had been arrested for receiving stolen property. Admissible to ask
character witnesses about D’s prior arrest on cross-examination if you have good
faith basis for believing it is true.
b. US v. Nixon (5th Cir. 1985, pg. A115)—D’s charged with selling lots of pot, they put
on character witnesses. D owned a bus leasing company. P asked character
witnesses if they knew that the bus had been used to transport cocaine. Must have
good faith basis for asking question.
c. US v. Jackson (5th Cir. 2008, A117) – limited use of disciplinary records of the
opposed (not defendant), disproportionate to the purposes they are designed to
serve, don’t need extensive proof of aggression on the other side to argue self-
defense.
D. Character in Issue – 405b

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1. Bad drafting.
2. Specifically for libel case, reputation, situation where character is an element of the claim,
entrapment (were you predisposed?), negligent driver (were you an incompetent driver).
E. Flowchart
1. Is the character trait an element of the offense?
a. If yes, extrinsic proof is admissible.
2. Is the evidence of character offered to prove conformity therewith (propensity)?
a. Is it civil case?
i. If yes, no exceptions.
3. Is it offered to prove character of the accused?
a. Is it a criminal case?
b. Is it a pertinent trait?
c. Is it offered by the accused?
i. Did state rebut after it was offered by accused?
a. Did it have good faith basis for asking about specific instance
(Michelson)?
b. Was the specific instance relevant to the character trait?
c. Does it only inquire, not seek to prove, the instances?
ii. Did the accused offer the same trait of the victim, and was it admitted
under 404(a)(2)?
4. Is it offered to prove character of victim?
a. Is it a criminal case?
b. Does it pass Rule 412?
c. Is it a pertinent trait?
d. Is it offered by accused?
i. Did state rebut after it was offered by the accused?
ii. Was it offered by state to prove peacefulness?
a. Was it homicide case?
b. Did accused offer evidence victim was first aggressor?
5. Is it offered to prove character of a witness?
a. Does it pass 607, 608, or 609?
6. Is the method it was offered correct?
a. Is the testimony offered on direct?
i. Is it only as to reputation or opinion (common law is just reputation)?
b. Does it inquire into specific instances?
i. Is it on cross?
ii. Does it limit to inquiry (not extrinsic evidence)?

EVIDENCE OF OTHER BAD ACTS—RULE 404(B)—MOLINEUX RULE

A. “(b) Crimes, Wrongs, or Other Acts.
1. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.
2. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. On request by a defendant in a criminal case, the
prosecutor must:
a. (A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
b. (B) do so before trial — or during trial if the court, for good cause, excuses lack of
pretrial notice.” People v. Molineux, 168 N.Y. 264 (1901)

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c. A criminal case should be tried on the facts and not on the basis of a defendant's
propensity to commit the crime charged. It is axiomatic that propensity evidence
invites a jury to misfocus, if not base its verdict, on a defendant's prior crimes rather
than on the evidence (or lack of evidence) relating to the case before it. We have
repeated this theme throughout the last century.
B. No bad acts are allowed to show character or propensity. “The state cannot prove against a
defendant any crime not alleged in the indictment, either as a foundation for a separate
punishment, or as aiding the proofs that he is guilty of the crime charged.” (
1. Boyd v. US (1892, pg. A134)—Ds were convicted of murder and sentenced to death. Murder
charges stemmed from incident where they tried to rob a ferryman, and everybody ended
up shooting everybody. P introduced evidence that Ds had previously committed robberies.
Evidence inadmissible because it just went to show that they were “wretches whose lives
were of no value to the community.”
2. US v. Wright (7th Cir. 1990 A136) admitted evidence of previous crimes for identity and
intent, but there was no issue of intent. Also identity- judge must have meant guilt,
impermissible. This was bad.
3. What is included in “bad acts?
a. Doesn’t have to be a conviction.
i. Therefore, no violation of double jeopardy for being “tried” on prior case
in a subsequent case.
ii. Information about past behavior is admitted based on general relevance
standard.
b. Doesn’t have to be “similar” but often is.
c. Doesn’t have to be “prior.”
C. But bad acts allowed to show other things.
1. Two Links: In order to allow evidence for other purposes (not propensity), judge must make
two determinations:
a. Whether the prior bad act is sufficiently probative (would it really help identify P,
does it really help show motive, etc?); and
b. Whether there is adequate evidence to support a conclusion that D really did
commit prior act.
c. In sum, there must be two links: one between D and past conduct, another
between past conduct and charged offense.
D. As long as they still meet 403
1. US v. Jones (7th Cir. 2006, pg. A144)—Search warrant discovered cocaine in the living room
and lots of it in an empty bedroom. D says cocaine in living room was for personal
possession and he didn’t know about the other cocaine. P tries to put in evidence of a prior
state conviction for delivery of a controlled substance. Relevant inquiry isn’t just 404(b)
because that says “may be admissible.” Must still look to 402 and 403 and it is questionable
about whether a prior conviction for delivery is probative for delivery charges in this one.
E. And sometimes prior acts will be allowed just because D “opens the door.”
1. US v. Wales (9th Cir., pg. A146)—D arrested for knowingly and willfully making a false
statement on a customs declaration. P wanted to get into evidence the fact that he had two
fake IDs on him, but trial judge says no. D then testified that all of his documents were
legitimate, so trial judge let P rebut by saying there were fake IDs. This idea of “opening the
door” is not found in the Rules, but judges allow it.
F. Notice provision
1. One of four notice provisions, trial within a trial, so need time to prepare for a second case
2. The notion here is that you are having a trial within a trial when admitting this evidence so if
you’re defending against such evidence, you have to be able to investigate the crime in this
evidence.
3. No indication of particularity or what is “reasonable” time.

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G. Relation to severing trial
1. If you have a D accused of two crimes, the severance rules end up looking like the 404(b)
rules.
2. A judge should ask the following question: if they are tried separately, will the second one be
admissible as 404(b) evidence at the second trial. If that is yes, what is the point of granting
a severance. On the other hand, if the answer is no because it is too prejudicial, what a good
reason for granting a severance.
H. Exceptions
1. Negate an element of the defense
2. Complete the story, 1. BACKGROUND
a. US v. Gonzalez (2nd Cir. 1997, pg. A138)—Ds were engaging in actions that looked
like they were breaking into a house. An off duty officer saw them, ended up
shooting at them, and they ended up shooting back. Ds indicted for felons in
possession of firearms. P wanted to introduce testimony of person whose house
was broken into in the area at that time. Admissible. Evidence of uncharged
criminal activity is not considered a prior bad act under 404(b) if it arose out of the
same transaction as the charged offense, or if it is necessary to complete the story
of the crime on trial.
3. Common plan or scheme OPTION 5
a. Jones v. State (TX. Ct. App., 1964, pg. A141)—D acted drunk, propositioned men,
and then stole their money. On trial for stealing one person’s money, P introduced
evidence that she had done this on prior occasions. D said it was prejudicial.
Admissible because the offenses show more than a similarity in results… they show a
common plan and systemic course of action.
b. This can get close to impermissible propensity inference.
i. Usually individual incidents where you are unsure if a crime took place.
But, viewing all of the incidents together, it is clear there was a crime.
Ambiguity individually, but clear together.
ii. Bride in the Bath case—D’s wife “drowned in the bathtub” three times.
On the last time, it was clear this wasn’t an accident, and allowed to
introduce testimony of previous cases.
4. Motive, OPTION 2
a. Ex: trial where D was charged with kidnapping and what had happened was a drug
deal had gone bad and a person had failed to pay and that resulted in the D
kidnapping the child of the person who owed the debt for the drugs. Trial was for
kidnapping, but to talk about it, you’ll offer proof of the drug deal gone bad. You’ll
do this not to show that he is a drug dealer and therefore he is a bad person and
therefore more likely he kidnapped. You’ll do it to give motive.
5. Knowledge, OPTION 3
a. Ex: D is on trial for trespassing on gov’t property. His defense is that he didn’t
know. He is acquitted, and a month later he is arrested for trespassing on same
property. You can bring up the prior incident, even if not guilty of previous
conviction, because then you can say that you were in a courtroom where it was
clear that it was gov’t property. This shows that he knew.
6. Identity OPTION 4
a. Ex: Mark of Zorro—someone who commits his crime in the same way.
I. Flowchart
1. Is it offered to prove character of a person to show propensity?
a. Is it offered for an alternate purpose such as:
i. Motive
ii. Opportunity
iii. Intent

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iv. Preparation
v. Common Scheme or Plan
a. Is there ambiguity for the individual instances?
vi. Knowledge
vii. Identity (signature crime)
viii. Absence of mistake
ix. Accident
x. Complete the story
xi. Impeachment
a. Does it show inconsistency, not propensity?
xii. Negate a defense?
b. Is there adequate evidence to support a conclusion that D really committed the bad
act?
c. Is the bad act sufficiently probative of the intended inference?
2. Was sufficient notice given?
3. Does it pass 403?
a. Is there a strong inference that he is “at it again?”

EVIDENCE OF OTHER BAD ACTS IN SEXUAL ASSAULT CASES—RULE 413, 414, & 415
413—Evidence of Similar Crimes in Sexual Assault Cases
A. “(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the
court may admit evidence that the defendant committed any other sexual assault. The evidence
may be considered on any matter to which it is relevant.
B. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of the expected
testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court
allows for good cause.
C. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under
any other rule.
D. (d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under
federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
1. (1) any conduct prohibited by 18 U.S.C. chapter 109A;
2. (2) contact, without consent, between any part of the defendant’s body — or an object —
and another person’s genitals or anus;
3. (3) contact, without consent, between the defendant’s genitals or anus and any part of
another person’s body;
4. (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical
pain on another person; or
5. (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).”
E. Allows for any matter relevant including propensity. Notice provision is comparable to 404b
1. very different
2. on request of defendant 15 days vs. reasonable time
3. summary of testimony vs. general nature
414—Evidence of Similar Crimes in Child Molestation Cases
A. (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation. The
evidence may be considered on any matter to which it is relevant.
B. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of the expected

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testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court
allows for good cause.
C. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under
any other rule.
D. (d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
1. (1) “child” means a person below the age of 14; and
2. (2) “child molestation” means a crime under federal law or under state law (as “state” is
defined in 18 U.S.C. § 513) involving:
a. (A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;
b. (B) any conduct prohibited by 18 U.S.C. chapter 110;
c. (C) contact between any part of the defendant’s body — or an object — and a
child’s genitals or anus;
d. (D) contact between the defendant’s genitals or anus and any part of a child’s body;
e. (E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or
physical pain on a child; or
f. (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–
(E).

415—Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child

Molestation
A. “(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual
assault or child molestation, the court may admit evidence that the party committed any other
sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and
414.
B. (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it
to the party against whom it will be offered, including witnesses’ statements or a summary of the
expected testimony. The party must do so at least 15 days before trial or at a later time that the
court allows for good cause.
C. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under
any other rule.”
D. Overrides 404(b)—intended to allow prior bad acts to show propensity in sexual assault cases,
which is explicitly forbidden in 404(b).
E. Does 403 apply? — says “is” admissible which is bad drafting. Courts have said that 403 still
applies, so this is more like “may be” admissible.
1. US v. LeCompte (8th Cir. 1997, pg. A158)—D charged with child molestation. P wants to enter
evidence of prior child molestation under similar conditions. Admissible under 414, but 403
still applies. However, to ensure that 414 has weight, propensity is considered sufficiently
probative now.
a. The argument would have to be that it is too old, or too dissimilar, etc. Not that it is
offered to show propensity.
2. William Smith-Kennedy example in Florida, (video) propensity forbidden inference, kept
evidence out, helped adopt 413-415.
3. Craigg v. Arkansas (Supreme Court of Arkansas 2012 A160) pedophile exception to 404(b) in
the state laws.
F. Most are opposed to this rule
1. Only supporters were the department of justice
2. And some states—CA has similar rule for domestic violence
3. Nuance- difference between date rape vs. stranger rape
G. Consent

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1. Can you introduce prior sexual acts to show consent even though others’ experiences
wouldn’t be likely to show consent in this situation. Yes, because the issue would be “does
he hear the word no?”
H. Flowchart
1. Is D accused of sexual assault?
a. Is the evidence of D’s commission of another sexual assault?
2. Is there sufficient notice?
3. Does it pass 403?
a. Propensity can count as probative, is there undue prejudice?

HABIT—RULE 406
A. “Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that
on a particular occasion the person or organization acted in accordance with the habit or routine
practice. The court may admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness.”
B. Justification
1. Inference based on prior conduct or character, which is usually prohibited, but this isn’t
based on general character. Instead it says that habits are probative that they actually did it
this time.
2. Conduct is usually easy to verify. Can prove you usually stop at a stop sign. Hard to prove
you “get angry easily.”
3. Habit- semi automatic, reflexive.
C. What qualifies as a habit? —Judge must be persuaded that the conduct in question is virtually
automatic and has been repeated many times in the past. Also it is usually a response to a
specific situation instead of a general response in many situations.
1. NY v. D’Arton (NY Sup. Ct., 2001, pg. B175)—D convicted of robbery, murder, and tampering
with evidence. The victim regularly carried large sums of cash. Evidence of a habit to carry
lots of cash on business trips evinced a deliberate and repetitive practice, so it should be
allowed.
2. US v. Reyes (5th Cir. 1979, A176) – four prior convictions for public intoxication spanning a
3.5 year period are insufficient regularity to rise to the level of habit evidence. So evidence is
inadmissible under 406.
D. Not limited by 405—Evidence of habit is not limited to opinion or reputation because it habit
evidence is not allowed to prove character, it’s allowed to prove habit.
E. How to prove—Rule 406 had a subsection (b) when it was sent to Congress that provided the
proving habit could be “in the form of an opinion or by specific instances of conduct sufficient in
number to warrant a finding that the habit existed or that the practice was routine.” This was
deleted because they felt it should be left to the courts to deal with on case-by-case basis.
F. Flowchart
1. Is it a habit?
a. Is it an automatic reaction that has been repeated many times?
b. Is it evidence of religious observance?
2. Is the evidence of the habit being offered to prove the conduct was in conformity with the
habit?
a. Is it relevant to prove the conduct?

SUMMARY CHART
RULE DESCRIPTION PROCEEDINGS HOW TO PROVE OTHER NOTES
404(a)(1) Character of accused Crim. ONLY Opinion 1. ∆ opens door;
reputation 405(a) 2. Π can rebut; 3.

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inquiry on X into
specific instances
404(a)(2) Character of victim Crim. ONLY Opinion 1. ∆ opens door;
reputations 405(a) 2. Π can rebut; 3.
Inquiry on X into
specific instances
405(b) Character element of Crim. & Civil Opinion
claim reputation;
specific instance
405(b)
404(b) Other crimes or wrongs Crim. & Civil Proof of other Not propensity;
crime or wrong motive, intent,
identity, etc.
(subject to 403)
406 Habit Crim. & Civil Proposed 406(b)
???
413-415 Other offenses: sexual Crim. & Civil Proof of other “Any matter to
assault; child molestation incident which it is
relevant” (subject
to 403)

RAPE SHIELD LAWS

RULE 412—SEX OFFENSE CASES: THE VICTIM

A. “(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
1. (1) evidence offered to prove that a victim engaged in other sexual behavior; or
2. (2) evidence offered to prove a victim’s sexual predisposition.
B. (b) Exceptions.
1. (1) Criminal Cases. The court may admit the following evidence in a criminal case:
a. (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove
that someone other than the defendant was the source of semen, injury, or other
physical evidence;
b. (B) evidence of specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
c. (C) evidence whose exclusion would violate the defendant’s constitutional rights.
2. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual
behavior or sexual predisposition if its probative value substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party. The court may admit evidence of a
victim’s reputation only if the victim has placed it in controversy.
C. (c) Procedure to Determine Admissibility.
1. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
a. (A) file a motion that specifically describes the evidence and states the purpose for
which it is to be offered;
b. (B) do so at least 14 days before trial unless the court, for good cause, sets a
different time;
c. (C) serve the motion on all parties; and

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d. (D) notify the victim or, when appropriate, the victim’s guardian or representative.
2. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera
hearing and give the victim and parties a right to attend and be heard. Unless the court
orders otherwise, the motion, related materials, and the record of the hearing must be and
remain sealed.
D. (d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.”
E. Implications
1. The Norm: Character of Victim Generally—Rule 404(a)(2) allows a defendant in a criminal
case to introduce any evidence “of a pertinent trait of character of the victim.”
a. Rebuttal—Once the criminal defendant introduces evidence of the victim’s
character, the prosecution can introduce evidence to rebut it. Additionally, if D
claims the victim was the aggressor (even if D doesn’t introduce character evidence
to prove this), P can introduce evidence to rebut to show victim’s peacefulness.
2. Character in Rape Cases—Completely disallows reputation or opinion evidence concerning
the victim’s past sexual behavior. Also prohibits evidence of specific acts concerning the
victim’s past sexual behavior in most situations. For instance, D is never allowed to offer
evidence of the victim’s past sexual behavior with persons other than himself if offered on
the issue of consent.
a. Civil cases—If P sues for sexual harassment, D usually can’t show that P was known
to be promiscuous with others or dressed seductively, and thus indicated her
willingness to accept sexual advances at work.
i. Three ways this is different from admissibility under 403:
a. 1. Shifts burden—Reverses the procedure by shifting the burden
to the proponent of the evidence to demonstrate admissibility
rather than making the opponent justify exclusion of the evidence
b. 2. Raises threshold—Requires that the probative value
substantially outweigh the specified dangers, so tilts against
admissibility.
c. 3. Adds harm to victim—Allows any potential harm to the victim
to count as prejudice to the parties.
3. In a criminal case, you can use prior sexual history if you’re trying to prove that someone
else did it.
4. “Sexual predisposition”—Designed to exclude evidence that does not directly refer to sexual
activities or thoughts, but that the proponent believes may have a sexual connotation for
the fact finder. This includes evidence such as that relating to the alleged victim’s mode of
dress, speech, or life-style.
5. Constitution can trump—If the evidences is necessary to prove a defense, you can let it in.
Generally, will be allowed if the evidence is not being used to harass, to show
untruthfulness, or to show propensity.
a. But, usually good judges will ask how much of the previous sexual history is
necessary.
6. Jeffries v. Nix (8th Cir 1990 A402) – girl gets into car with three guys for drugs, gets gang
raped, can’t use her prior sexual behavior, even if she regularly used sex for drugs
7. State v. Colbath (Supreme Court of NH 1988 A408) – was evidence of the behavior with men
other than the defendant in the hours rpeceding the incident immaterial or irrelevant to the
uestion fo the defendant’s guilt or innocence? Should have oporutnity to prove that the
probative value outweighs prejudicial effect, public character of the complainant is
significant, public displays of general interst in sexual activity can be taken to indicate a
contemporaneous receptiveness to sexual advances that cannot be inferred from evidence
of private behavior with chosen sex partners
F. Flowchart
1. Is this a criminal case?

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a. Is the witness a victim of alleged sexual misconduct (regardless of the charge
actually brought)?
b. Does the evidence use reputation or opinion evidence as to victim’s prior sexual
acts?
i. If yes, not admissible, even if allowed under other rules.
c. Is the evidence about specific sexual acts by the victim?
i. Is it about an act with a person other than D?
a. Is it offered to prove alternate source of the semen, injury, or
other physical evidence?
i. Does it pass 401 and 403?
ii. Is it about an act with D?
a. Is it being offered to prove consent?
b. Is it being offered by the prosecution?
c. Does it relate to victim’s alleged sexual predisposition (not
behavior)?
d. Does it pass 401 and 403?
d. Is it about an act that could provide a defense?
i. Is it intended to prove “she did it once, so she did it again” (or does it go to
show motive, bias, etc.)?
2. Is this a civil case?
a. Does the case involve alleged sexual misconduct?
i. If no, is the evidence barred by 403, 404, or 608?
b. Is the witness a victim of alleged sexual misconduct?
c. Is it offered to prove sexual behavior or sexual predisposition of an alleged victim?
i. Is it otherwise admissible?
ii. Does its probative value substantially outweigh danger of harm to any
victim and of unfair prejudice to any party?
a. If close, tilts against admissibility and person offering the evidence
carries the burden (unlike 403)
d. Is it offered to prove reputation of alleged victim?
i. Has it been placed in controversy by alleged victim?

CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

ORIGINAL DOCUMENT RULE

RULE 1001—DEFINITIONS
A. (a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
B. (b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
C. (c) A “photograph” means a photographic image or its equivalent stored in any form.
D. (d) An “original” of a writing or recording means the writing or recording itself or any counterpart
intended to have the same effect by the person who executed or issued it. For electronically
stored information, “original” means any printout — or other output readable by sight — if it
accurately reflects the information. An “original” of a photograph includes the negative or a print
from it.
E. (e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique that accurately reproduces the original.

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RULE 1002—REQUIREMENT OF ORIGINAL

A. “An original writing, recording, or photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.”

RULE 1003—ADMISSIBILITY OF DUPLICATES

A. “A duplicate is admissible to the same extent as the original unless a genuine question is raised
about the original’s authenticity or the circumstances make it unfair to admit the duplicate.”

RULE 1004—EXCUSES
A. “An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:
1. (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
2. (b) an original cannot be obtained by any available judicial process;
3. (c) the party against whom the original would be offered had control of the original; was at
that time put on notice, by pleadings or otherwise, that the original would be a subject of
proof at the trial or hearing; and fails to produce it at the trial or hearing; or
4. (d) the writing, recording, or photograph is not closely related to a controlling issue.”

RULE 1005—PUBLIC RECORDS

A. “The proponent may use a copy to prove the content of an official record — or of a document
that was recorded or filed in a public office as authorized by law — if these conditions are met:
the record or document is otherwise admissible; and the copy is certified as correct in accordance
with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If
no such copy can be obtained by reasonable diligence, then the proponent may use other
evidence to prove the content.”

RULE 1006—SUMMARIES
A. “The proponent may use a summary, chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for examination or copying, or both, by
other parties at a reasonable time and place. And the court may order the proponent to produce
them in court.”

RULE 1007—TESTIMONY OR WRITTEN ADMISSION OF PARTY

A. “The proponent may prove the content of a writing, recording, or photograph by the testimony,
deposition, or written statement of the party against whom the evidence is offered. The
proponent need not account for the original.”

ANALYSIS
A. Justifications
1. Used to be fraud protection
2. Now, additional justification is that human memory is not often capable of reciting the
precise terms of a writing and when the terms are in dispute, the writing itself, or a true
copy, provides the best evidence.

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B. SIMPLIFICATION: In proving the contents of a writing, recording or photograph (broadly
defined) the original is required unless 1) its absence is satisfactorily explained or 2) it does not
relate to a controlling issue, in which case any other (secondary evidence) of contents is
admissible. A duplicate is admissible to the same extent as an original unless fairness requires
the original.
C. Implications
1. “Offered to prove content”—If you are attempting to prove the event through the written
record, the rule applies. But if you are attempting to prove the event through some other
way, the rule doesn’t apply even if there is a written record of it.
a. Ex: The rule does not apply to testimony that books or records have been examined
and found not to contain any reference to a designated matter.
2. Alternate knowledge—if witness has means of knowing about a past condition that is the
subject of a writing, they can still testify to that from personal knowledge. The fact that a
tangible record of the event or condition exists has no bearing on the testimony.
a. US v. Gonzales-Benitez (9th Cir. 1976, pg. A191)—D indicted for heroin based on
conversations he had with undercover informant. Informant was taping the
conversations, so D says the tapes need to be produced. Tapes do not have to be
presented. The content of the tapes was not at issue here. Nobody is arguing about
what sounds were embodied on the tape, the argument is about the content of the
conversations. Rule is not a “best evidence” rule in this manner because although
tapes would have been best evidence, other evidence is admissible as long as the
evidence isn’t trying to prove what conversation was on the recording.
3. Inscribed chattels—Usually not included because this rule is meant for a document in
mediums meant primarily for containing data and making it accessible.
a. US v. Duffy (5th Cir. 1972, pg. A189)—D wanted to introduce testimony about a shirt
with “D-U-F” written on it. P says he had to produce the shirt. Court says doesn’t
have to produce. When the disputed evidence is an object bearing a mark or
inscription and is therefore a chattel and a writing, the trial judge has discretion to
treat it as a chattel or as a writing. Here, the writing was not likely to be
misremembered because it was simple and the writing was not central or critcal to
the case.
4. Do drawings count as “writings, recordings or photography?”
a. Seiler v. Lucasfilm (9th Cir. 1986, pg. A186)—P accuses D of copying his idea for the
Striders in Star Wars. Wants to admit evidence of his drawings to show similarities.
D argues that P must supply the original. Original evidence rule applies, so P must
provide original copies or show that he can’t through no fault of his own. Court
finds he destroyed them in bad faith, so can’t bring in his recreations.
i. No satisfactory explanation- Rule 1004
5. Searches- not actions, only writings, recordings or photography.
a. US v. Diaz-Lopez (9th Cir. 2010 A192) Does testimony that a search of a computer
database revealed no record of a matter violate the best evidence rule when it is
offered without production of an original printout showing the results? Nope. Best
evidence rule applies only to writings, recordings, and photographs, not to actions.
D. Flowchart
1. Is it a writing, recording or photograph?
a. Is it an inscribed chattle?
2. Is the writing being offered to prove its contents?
a. Is it being proved through testimony of the opposing party?
3. Is a duplicate admissible?
a. Is it a duplicate?
i. Is it produced by the same impression as the original?
ii. Is it produced by photograph?

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iii. Or any means that accurately reproduces the original?
b. Is there a genuine question about the authenticity of the original?
c. Would it be unfair to admit the duplicate?
4. Is there an exception?
a. Have all the originals been lost or destroyed?
i. Have they been lost or destroyed in bad faith?
b. Are the originals not obtainable?
c. Are the originals in the possession of an opponent?
i. Did opponent not produce the original?
d. Is the writing not closely related to a controlling issue?
5. Is it a public record?
a. Has it been certified as correct?
b. Has it been testified as correct by a witness who has compared it to the original?
6. Is it too voluminous to be conveniently examined in court?

WITNESSES

COMPETENCY

RULE 601—GENERAL RULE OF COMPETENCY

A. “Every person is competent to be a witness unless these rules provide otherwise. But in a civil
case, state law governs the witness’s competency regarding a claim or defense for which state
law supplies the rule of decision.”
B. Different from common law—Historically, a potential witness had to be characterized as
“competent” in order to testify. Things that made you incompetent were parties to the dispute,
felons, atheists, young children, etc.
C. Children—no bar, but may be excluded under 403 if there is no probative value because they are
not competent.
D. No mental or moral qualifications—There is no mental requirement for the witness to not be on
drugs, etc.
1. Falwell v. Flynt (4th Cir. 1986, pg. A209)—P sued for emotional distress and libel. D argues
his videotaped deposition should not have been allowed because he was not mentally
capable telling the truth at the time he was disposed (he was on medication). Under
common law, mental incapacity was viewed as incompetence. However, FRE say anybody is
competent and there are no mental or moral qualifications. Previously, the argument was to
a judge that the witness should not be heard; now jury can decide whether to believe the
witness.
a. Moved from rules about competency to rules about credibility.
E. Prior convictions
1. Boyd v. US (1892, pg. A204)—Ds were convicted of murder and sentenced to death. Murder
charges stemmed from incident where they tried to rob a ferryman, and everybody ended
up shooting everybody. P’s main witness had committed larceny, but got a pardon from
president. Pardon makes him able to testify.
2. Washington v. Texas (1967, pg. A205)—State had rule that people charged as accomplices
or accessories in the same crime could not be witnesses for each other, but they could
testify for the state. Rule excluding witnesses is based on trying to limit perjury, but the state
statute does not do this because prosecution can call the witness. State law is
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witness who was physically and mentally capable of testifying to events that he had
personally observed and whose testimony would have been relevant and material to the
defense.
F. State law—Competence of witnesses is controlled by state law when they testify in connection
with substantive issues that are controlled by state law. The federal court will do whatever their
state court would have done.
1. Dead Man Statutes—Common law rule against allowing parties to testify is retained when
one of the parties is dead and the other party seeks to enter testimony concerning a
communication with the dead person. Anybody that is an “interested party” in the
transaction cannot testify, but a “disinterested friend” can testify.
2. Corroboration—At common law, many statutes require that a witness’ testimony be
corroborated.

RULE 602—LACK OF PERSONAL KNOWLEDGE

A. “A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony. This rule does not apply to a witness’s expert
testimony under Rule 703.”
B. Perception, not actual knowledge, is ok
1. US v. Lake (3rd Cir., 1998, pg. 210)—D convicted of carjacking, and taking that car across
state lines. P had witness who had lived in Virgin Islands all his life who said that no cars are
manufactured there so they all have to be shipped to the islands. Can testify because
lifelong resident so had reason to know, even if doesn’t have personal knowledge about
whether that car was made there.

OTHER WITNESS COMPETENCY QUALIFICATIONS

A. Rule 603—Oath or Affirmation
1. “Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be
in a form designed to impress that duty on the witness’s conscience.”
2. Common law—could impeach for religious beliefs. This says that non-religious affirmation is
ok and can’t be impeached for beliefs.
3. Children—a judge could say that children do not have ability to understand and give required
oath or affirmation related to truth telling.
B. Rule 604—Interpreters
1. “An interpreter must be qualified and must give an oath or affirmation to make a true
translation.”
C. Rule 605—Competency of Judge as Witness
1. “The presiding judge may not testify as a witness at the trial. A party need not object to
preserve the issue.”

RULE 606—COMPETENCY OF JUROR AS WITNESS

A. “(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror
is called to testify, the court must give a party an opportunity to object outside the jury’s
presence.
B. (b) During an Inquiry into the Validity of a Verdict or Indictment.
1. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote;
or any juror’s mental processes concerning the verdict or indictment. The court may not
receive a juror’s affidavit or evidence of a juror’s statement on these matters.

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2. (2) Exceptions. A juror may testify about whether:
a. (A) extraneous prejudicial information was improperly brought to the jury’s
attention;
b. (B) an outside influence was improperly brought to bear on any juror; or
c. (C) a mistake was made in entering the verdict on the verdict form.”
C. Justification
1. Finality in jury determinations
2. Prevents harassment of jurors after decisions to find a reason the decision was improperly
reached.
3. Results in exclusion of some, perhaps relevant, testimony;
a. If juror were to submit an affidavit that says they completely misunderstood the
instructions, that is not admissible.
b. Tanner v. US (1987, pg. A3)—Jurors were drunk and high during the trial. Question
of whether jury testimony about this behavior should be allowed to impeach a
verdict. Common law says no because jurors would be harassed and beset by the
defeated party to change their minds and we need finality. Legislative history
demonstrates that intoxication is not an “outside influence” about which jurors may
testify.
4. Extraneous influences
a. Are admissible because we want to know if there is an input that the parties didn’t
get a chance to cross-examine.
D. Flowchart
1. Is this a diversity case?
a. Is there a state law that limits competency (Dead Man statute)?
i. Is the testifying party “interested” in the suit?
2. Does the witness have personal knowledge?
a. If no, is the witness an expert?
3. Is the witness “competent” under 401 and 403?
a. Is the witness relevant?
4. Is the witness competent to take an oath or affirmation?
a. Is the person a child?
5. Is the witness a judge or juror in the case?

FORM AND ORDER OF EXAMINATION

RULE 611—MODE AND ORDER OF INTERROGATION AND PRESENTATION

A. “(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode
and order of examining witnesses and presenting evidence so as to:
1. (1) make those procedures effective for determining the truth;
2. (2) avoid wasting time; and
3. (3) protect witnesses from harassment or undue embarrassment.
B. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of
the direct examination and matters affecting the witness’s credibility. The court may allow inquiry
into additional matters as if on direct examination.
C. (c) Leading Questions. Leading questions should not be used on direct examination except as
necessary to develop the witness’s testimony. Ordinarily, the court should allow leading
questions:
1. (1) on cross-examination; and

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2. (2) when a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party.”
D. Direct Examination
1. No leading questions—A leading question is one that suggests to the witness the answer
desired by the questioner.
a. However, they are allowed if the witness is hostile, it is an adverse party, or it is
necessary to develop witness’ testimony.
i. Jordan v. Hurley (6th Cir. 2005, pg. B229)—D charged with raping someone
with Down syndrome. The victim was found competent to testify, but P
used leading questions. Leading questions on direct are permissible in
questioning certain witnesses, including a child sexual abuse victim, a
foreign witness testifying through a translator, an unusually soft-spoken
and frightened witness, and a mentally retarded adult who was the victim
of sexual abuse.
ii. US v. Nabors (8th Cir. 1985 A233) – 12 year old nephew testifies, afraid to
swear, leading questions are allowed on direct examination, court is in the
best position to evaluate the emotional condition of the child witness and
his hesitancy to testify.
b. Also probably allowed for introductory issues or to keep the witness from saying
something he isn’t allowed to say (i.e. to ensure the witness doesn’t know he is D’s
parole officer).
E. Cross Examination
1. Leading questions allowed—Usually permitted, but if the witness is biased in favor of his
cross-examiner, leading questions are not allowed.
2. Scope—Cross-examination can only ask about matters that were testified to on the direct
examination or about the witness’ credibility.
a. Re-cross and re-direct—Similarly, these are limited to those aspects of the witness’
testimony that were first brought out during the previous examination. (Re-cross
limited to issues brought out in cross, re-direct limited to those in re-cross).
b. US v. Sebaggala (1st Cir. 2001, pg. A232)—D said he couldn’t speak English well. P
brought in rebuttal witnesses to say that he could. Admissible. Rebuttal evidence
may be used and trial judge has discretion to allow it.
3. If you go outside scope: Must proceed like you are on direct, so no leading questions.

RULE 614—CALLING AND INTERROGATION OF WITNESSES BY COURT

A. “(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled
to cross-examine the witness.
B. (b) Examining. The court may examine a witness regardless of who calls the witness.
C. (c) Objections. A party may object to the court’s calling or examining a witness either at that time
or at the next opportunity when the jury is not present.”
D. Used sparingly—Parties have primary responsibility for their own cases and should not be helped
or hurt by the court. Also, could lead jurors to think it carries undue weight.
a. People v. Arnold (NY Ct. App. 2002, pg. A240)—Whether trial court can call its own
witnesses. Although they may interrogate and call witnesses, he abused discretion
here, judge should not be trying to make the case.
2. Questions for clarity—Judge’s motive for questioning should always be to increase the clarity
of the testimony rather than to influence the result in the case.
3. 105- deleted judicial comment as an alternative method.

RULE 615—EXCLUSION OF WITNESSES

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A. “At a party’s request, the court must order witnesses excluded so that they cannot hear other
witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize
excluding:
1. (a) a party who is a natural person;
2. (b) an officer or employee of a party that is not a natural person, after being designated as
the party’s representative by its attorney;
3. (c) a person whose presence a party shows to be essential to presenting the party’s claim or
defense; or
4. (d) a person authorized by statute to be present.
B. “Natural person”—If party is an entity such as a corporation, they can have a representative
present.
C. “Essential”—i.e. an expert that will testify later might need to be present to counsel the lawyer
so that the lawyer can understand and counter opposing expert’s testimony.
D. Remedy for violation of sequestration order
1. US v. Smith (4th Cir. 2006, pg. A237)—D’s witness violated a sequestration order. Judge kept
out her testimony. Testimony should have been let in. Three options for addressing violation
of sequestration order: sanction, limiting instruction, or exclusion. Exclusion is an extreme
remedy and should be used sparingly and only if it is proportional to the violation.
E. Questions about Equal Protection
1. Nicely v. State (Supreme Court of GA 2012 A238) Excluding father through sequestration but
not the mother is not a violation of equal protection. Sequestration doesn’t implicate right
to public trial, so differential treatment passes equal protection muster.
F. Framework
1. Is the questioning a direct examination?
a. Are there leading questions?
i. Is the witness hostile or with an adverse party?
ii. Is it necessary to avoid violation a stipulation or for introductory issues?
2. Is the questioning a cross-examination?
a. Are the questions limited to matters testified about on direct?
i. Did the judge allow additional matters to be addressed?
ii. If outside the scope, did you use leading questions?
b. Are the questions about the witness’ credibility?
c. Are the questions unduly harassing or embarrassing?
3. Is the judge asking questions?
4. Did the judge sequester a witness?

REFRESHING RECOLLECTION

RULE 612—WRITING USED TO REFRESH MEMORY

A. “(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to
refresh memory:
1. (1) while testifying; or
2. (2) before testifying, if the court decides that justice requires the party to have those options.
B. (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides
otherwise in a criminal case, an adverse party is entitled to have the writing produced at the
hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any
portion that relates to the witness’s testimony. If the producing party claims that the writing
includes unrelated matter, the court must examine the writing in camera, delete any unrelated

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portion, and order that the rest be delivered to the adverse party. Any portion deleted over
objection must be preserved for the record.
C. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as
ordered, the court may issue any appropriate order. But if the prosecution does not comply in a
criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a
mistrial.”
1. General rule—if a witness’ memory on a subject is hazy, any item may be shown to the
witness to refresh his recollection so that his “present recollection is refreshed.” No test of
the stimulus is required because it is not evidence, only the present recollection that it
stimulated is evidence.
a. Past Recollection Recorded—This is different from “present recollection refreshed.”
Past recollection recorded has more rigorous standards for admissibility because
that document is used to speak to the jury. Must be able to say that when you
made it you did have recollection, and that he can presently vouch for the fact that
when it was made, he knew it was accurate.
i. Baker v. State (Md. Ct. App., 1977, pg. 247)—P’s witness can’t remember
something, so P offers a different officer’s report. Judge says he can’t use
the other person’s report to refresh recollection. Judge is wrong. Any item
can be used because it is not evidence, so there is not the same standard
for admissibility.
a. If the note would have been put into evidence it would have been
hearsay, but it isn’t here because it is not evidence.
2. Not evidence—The item shown to the witness is not evidence at all; it is merely a stimulus to
produce evidence in the form of testimony from the witness.
3. Abuse—If the item shown to the witness is a document and the trial judge concludes that
the witness is just reading it instead of testifying from his now-refreshed recollection, he
may order the testimony stricken.
4. Cross-Examination—The other party may examine the item, and use any part of it during
cross. He can also introduce into evidence any parts of it that relate to the witness’
testimony.
5. Documents seen before trial—If it has been consulted by witness before he took the stand,
the trial court has discretion to order that the document be shown to the other side, if
necessary in the interests of justice.

LAY OPINION

RULE 701—OPINION TESTIMONY BY LAY WITNESS

A. “If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one
that is:
1. (a) rationally based on the witness’s perception;
2. (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;
and
3. (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule
702.”
B. Justification—Belief that juries can find facts better if witnesses report concrete information and
allow the jurors to analyze the information.
1. Better way to say it: “If the witness cannot readily, and with equal accuracy and adequacy,
communicate what he has perceived to the trier of fact without testifying in terms of
inferences or opinions, and his use of inferences or opinions will not mislead the trier of fact

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to the prejudice of the opposing party; and the opinions and inferences do not require a
special knowledge, skill, experience or training.”
C. Not based on scientific, technical or other knowledge
1. State v. Brown (Tenn, 1992, pg. A254)—D convicted of neglect and child abuse. P
introduced lay testimony saying that wounds looked like cigarette burns, or that bruising
around the eyes is indicative of skull trauma. If the only way to clearly describe something is
in the form of an opinion or inference, that is ok, so cigarette burn statement is fine.
However, the eye bruising statement requires specialized skill or expertise, so that should
have been excluded.
2. Farfaras v. Citizens Bank (7th Cir. 2006, pg. A252)—P had lay witness who characterized P’s
mental condition as “depressed.” D says that this is not allowed. A witness may testify to
relevant evidence that is rationally based on their own perception and not based on scientific
knowledge.
D. Examples of Acceptable Statements
1. Matters of taste and smell—“It smelled like gunpowder.”
2. Another’s emotions—“He seemed nervous.”
3. Vehicular speed—“He was going very, very fast.”
4. Voice identification—“I’ve known Clyde for 15 years and I’d recognize his voice anywhere. It
as Clyde’s voice on the telephone.”
5. A witness’s own intent, where relevant—“I was planning on crossing the street.”
6. Genuineness of another’s handwriting—“That is my husband’s signature.”
7. Another’s irrational conduct—“He was acting like a crazy man.”
8. Intoxication—“The man was drunk.”
E. Flowchart
1. Is the statement an opinion or inference?
2. Is the witness a lay-person (not an expert)?
a. Is it based on some perception by the witness; and
b. Is it helpful or necessary to provide a clear understanding of the testimony or of a
fact in issue; and
c. Is it not based on some special knowledge, skill, experience or training?

EXPERT TESTIMONY

RULE 702—TESTIMONY BY EXPERTS

A. “A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
1. (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue;
2. (b) the testimony is based on sufficient facts or data;
3. (c) the testimony is the product of reliable principles and methods; and
4. (d) the expert has reliably applied the principles and methods to the facts of the case.”
Codification of Daubert and Joiner
B. FIRST HURDLE: Is it helpful to the jury?
C. SECOND HURDLE: Qualification
D. May give opinion if:
1. Relates to scientific, technical or other specialized knowledge
2. Opinion will help the trier to understand the issue or determine a fact in issue
a. US v. Cohen (9th Cir. 2007 A265) – Does the psychiatrist’s expert testimony relating
to D’s mental disease bearing on the issue of guilt, assist the trier fo fact within the
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that Cohen counter the government’s suggestion of his knowledge. 704b. Court
should have done more close monitoring.
b. Specht v. Jensen (10th Cir. 1988, pg. A273)—Action for damages about invalid
search of P’s home. P wants to call an attorney who would state that, given the
hypothetical facts, a search took place. Not ok. An expert’s testimony is proper
under Rule 702 if the expert does not attempt to define the legal parameters within
which the jury must exercise its fact-finding function. However, when the purpose of
the testimony is to direct the jury’s understanding of the legal standards upon which
their verdict must be based, the testimony cannot be allowed. In no instance can a
witness be permitted to define the law of the case.
3. Testimony is based on sufficient facts or data and is the product of reliable principles and
methods, and the witness has applied those principles and methods reliably to the facts of
the case.
a. Used to be “general acceptance test” for novel scientific testimony to be admitted.
i. Frye v. US (D.C. Cir. 1923, pg. A277)—D offered expert witness to testify to
results of early polygraph machine. Court doesn’t allow. The scientific
method from which the conclusion is drawn must he sufficiently established
to have gained general acceptance in the particular field in which it
belongs. Still followed by NY, lets in less.
b. Should allow more expert testimony in, so judge will serve as gatekeeper to ensure
expert’s testimony is reliable and relevant. Must be based on methods, not
conclusions.
i. #1: Daubert v. Merrel Dow (1993, pg. A278)—Ps claimed that D’s anti-
nausea medicine gave their children birth defects. Frey test of “general
acceptance” was superseded by the adoption of the FRE. Judge must serve
as gatekeeper to ensure all expert testimony is relevant and reliable
because “scientific…knowledge” means reliable. Determining whether
something is “scientific knowledge” requires flexible inquiry based on five
considerations: tested, publication, rate of error, control standards, and
general acceptance.
a. Not limited to “novel” testimony—(footnote 11)
b. Standard of proof—preponderance of evidence (footnote 10)
c. Stevens’ concurrence—should have stopped once we determined
that Frye was dead and not gone on to talk about what standard
replaced it (reliability not general acceptance).
c. Preference for admissibility doesn’t mean higher standard on reviewing trial court’s
decisions.
i. #2: G.E. v. Joiner (1997, pg. A288)—What is the appropriate standard for
appellate courts to review trial court’s exclusion of expert testimony?
Court of Appeals said stringent standard because Daubert and FRE show
preference for admissibility. SC says no. Should be abuse of discretion
review. Trial judge didn’t abuse his discretion because it could logically
have concluded that the studies on which the experts relied were not
sufficient to support their conclusions.
a. Stevens’ concurrence—should have stopped once we determined
appropriate standard for review and not told them how to apply
abuse of discretion standard.
b. Majority wanted to emphasize that trial judge must be rigorous,
even though in Daubert it was supposed to broaden admission of
expert testimony.

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c. Methodology and conclusions—majority seems to be saying that
you can look at both methodology and their conclusions even
though that wasn’t allowed in Daubert.
d. Breyer’s concurrence—wants to increase role of judge (so likes
gatekeeping) and wants judge to appoint its own expert more.
e. Mass tort—perhaps we should have applied higher standard given
one trial judge’s potential impact on whether mass tort litigation
can proceed.
d. Daubert factors extend to all experts.
i. #3: Kumho Tire v Carmichael (1999, pg. A297)—Whether Daubert applies
to the testimony of engineers and other experts who are not scientists.
Daubert’s general holding that the trial judge has a general gate-keeping
function applies not only to testimony based on “scientific” knowledge, but
to all testimony. But, Daubert factors are flexible and not exclusive.
a. Scalia’s concurrence—gate keeping must be rigorous.
E. Daubert has “exacting standards of reliability” so sometimes things like fingerprinting,
handwriting analysis, etc. is excluded if judge doesn’t find it reliable.
1. Weisgram v. Marley Co. (2000, pg. A306)—Whether Ps that win in court, but then have their
expert’s testimony thrown out at appellate level for failing Daubert, should have the right to
have the case remanded and admit alternate experts. Since Daubert, parties relying on
expert evidence have had notice of the exacting standards of reliability such evidence must
meet. Therefore, do not get second chance.
F. Qualification—The expert may be qualified by reason of “knowledge, skill, experience, training or
otherwise,” so formal academic training qualifies but is not necessary.
1. Opposing party is given opportunity for voir dire—to cross the witness on his credential and
familiarly with the subject at hand.
2. Galentine v. Stekervetz (D. Delaware 2003 A268) – boat owners, fire spread, argument that
the expert presented has no knowledge of relevant codes or standards, no post- high school
education, only 10 hours training, court must determine whether they are qualified, liberally
construed, take him anyway. Qualifications go to the weight of testimony more than its
admissibility.
3. US v. Hanna (9th Cir. 2001 A270) – made threats against the US, 3 Secret Service agents,
described reactions to Hanna’s letters, believed serious threats, abuse of discretion by
district court- the testimony did not address issues beyond the common knowledge of the
average lay person.

RULE 703—BASES OF OPINION TESTIMONY BY EXPERTS

A. “An expert may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed. If experts in the particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subject, they need not be admissible for the opinion to
be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury only if their probative value in helping the jury evaluate the
opinion substantially outweighs their prejudicial effect.”
B. No personal knowledge required—Expert’s opinion may be based on information supplied by
others. At common law, this was done with hypothetical. Now, it can be done by hypo or by
out-of-court statement made to the expert (even if the evidence is inadmissible).
1. Opinion may be based on hearsay
a. US v. Brown (11th Cir. 2002, pg. A320)—D charged with smuggling cocaine from
Bermuda. P relied on testimony by expert witness to say that the value of the
cocaine was $217,000. Witness relied not on personal knowledge but on talking
with other agents about how much it would be worth. Rule 703 allows hearsay

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statements in this context when they are of a type that experts reasonably rely on in
their field when forming opinions.
2. Facts relied on by the expert need not be disclosed except under cross-examination or as
required by the court.
a. Facts disclosed under cross must pass 403 if they are not otherwise admissible.
i. Experts may rely on it, but not the trier of fact—If something is allowed to
come in that is inadmissible, judge needs to give limiting instruction that
says, “You can’t rely on the report for its truth, you can only judge whether
it was valid for the expert to rely on its truthfulness.” Because this gets
confusing for jurors, something that is probative may be more prejudicial
because jurors will rely on it for its truth.
ii. If you don’t have a witness, the report is hearsay. But the expert can rely
on it in making up their opinion if someone in the field normally relies on it
in making opinions.
iii. Liberalizes common law, doesn’t imprison experts with facts in trial.

RULE 704—OPINION ON ULTIMATE ISSUE

A. “(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it
embraces an ultimate issue.
B. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the
crime charged or of a defense. Those matters are for the trier of fact alone."
C. Abolishes ultimate issue rule
D. Ultimate Issues—At common law, opinions on ultimate issues were barred. However, FRE says
they are allowed unless when they relate to the mental state of a criminal defendant.
1. Hinkley Trial—704(b) added because of outcry from Hinkley trial and belief that jury put too
much weight to expert’s conclusion, unseemly battle of the experts.

RULE 705—DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION

A. “Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it
— without first testifying to the underlying facts or data. But the expert may be required to
disclose those facts or data on cross-examination.”
B. Hypothetical question problem, allows the prosecutor to sum up, ineffectual.

Rule Old Approach FRE Approach

No lay opinions
701—Opinion
Testimony
702—Basic Rules for Only can call expert if
Expert Testimony necessary
Can only rely on facts in
703—Basis for
evidence. Either personal
Expert Testimony
observation or hypo.
Can’t testify to ultimate issue
704—Ultimate Issue
Frye—for novel, scientific
Test for
testimony, method must be
Admissibility
“generally accepted.”
Recognizes that witnesses can only
speak in opinions sometimes. Uses rule
of preference where we accept opinions
if can’t do better.
Can call an expert if it is helpful
Can also base opinion on inadmissible
evidence if it is of the kind reasonably
relied on by an expert.
Can’t object by saying it is the ultimate
issue, but can get to ultimate issue by
saying it is not relevant or not helpful
(402, 403, 702)
Daubert—for all expert testimony,
method must be “reliable.”

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RULE 706—COURT APPOINTED EXPERTS

A. “(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to
show cause why expert witnesses should not be appointed and may ask the parties to submit
nominations. The court may appoint any expert that the parties agree on and any of its own
choosing. But the court may only appoint someone who consents to act.
B. (b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in
writing and have a copy filed with the clerk or may do so orally at a conference in which the
parties have an opportunity to participate. The expert:
1. (1) must advise the parties of any findings the expert makes;
2. (2) may be deposed by any party;
3. (3) may be called to testify by the court or any party; and
4. (4) may be cross-examined by any party, including the party that called the expert.
C. (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The
compensation is payable as follows:
1. (1) in a criminal case or in a civil case involving just compensation under the Fifth
Amendment, from any funds that are provided by law; and
2. (2) in any other civil case, by the parties in the proportion and at the time that the court
directs — and the compensation is then charged like other costs.
D. (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the
court appointed the expert.
E. (e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.”
F. Flowchart
1. Would an expert assist the trier of fact?
a. Is the information or analysis beyond the knowledge or capabilities of a typical
juror?
i. Is the testimony attempting to say what the law is?
2. Is the person qualified as an expert?
a. Do they have unique level of knowledge or experience?
i. Did opposing party have opportunity for voir dire?
3. Is the testimony reliable?
a. Is the testimony based on sufficient reliable facts or data?
i. Were they observed by the expert?
ii. Were they presented at trial?
iii. Were they the type reasonably relied upon by experts in the field?
b. Is the expert’s method reliable?
i. Daubert test:
a. Can it be tested, and if it can be tested, has that testing taken
place?
b. Has it been described in scientific publications subject to peer
review?
c. What are its known or potential error rates?
d. Are there standards that can control its operation, and if so, were
they used in developing the expert’s testimony?
e. Has it achieved some degree of acceptance in a relevant
community?
c. Did the expert reliably apply the method to this case?
4. Is the opinion about the “ultimate issue”?
a. Is it a criminal trial?
b. Is the expert testifying as to whether the D did or did not have a mental state or
condition constituting an element of the crime charged or a defense thereto?

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c. Is it otherwise objectionable under 401 or 403 (not helpful or relevant)?
5. Does the evidence pass 403?
6. On cross, can the witness disclose the facts?
a. Are they otherwise admissible?
i. If not, do they pass 403?
a. Is there a worry that a jury will rely on the evidence for its truth?
i. Did judge give limiting instruction?

IMPEACHMENT OF WITNESSES
OVERVIEW

RULE 607—WHO MAY IMPEACH

A. “Any party, including the party that called the witness, may attack the witness’s credibility.
B. Four ways to challenge a witness’s credibility through cross examine and impeachment:
1. Competence
a. Sensory or mental defect
2. Bias
a. Love
b. Finances
c. Self-interest
3. Contradiction
a. Prior inconsistent statement
b. Contradictory evidence
4. Character
a. Truthfulness, generally
b. Prior convictions

COMPETENCE/SENSORY OR MENTAL DEFECT

A. Questioning their Perception
1. Sensory defect—Witness may be impeached by showing that his capacity to observe,
remember, or narrate events correctly has been impaired. Jury determination.
a. Alcohol and drugs—Witness may be impeached by showing that he was drunk or
high at the time of the events he claimed to have witnesses.
i. Addiction—courts are split on whether the witness may be shown to be a
habitual or addicted user of alcohol or drugs.
2. Mental defect—Judge makes determination about whether witness has sufficient maturity
to understand the nature and significance of an oath through voir dire.
a. US v. Love (8th Cir. 2003 A339) – argument that D didn’t get to fully cross-examine
witness’s impaired memory, schizophrenic witness. Rights were violated.
3. Extrinsic evidence—allowed to prove sensory or mental defect.

BIAS
A. Questioning their Motives
1. Definition—Doesn’t explicitly appear in the rules as a basis for impeachment, but since in
common law, assumed to be continued. Under common law it was used to “describe the

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relationship between a party and a witness which might lead the witness to slant,
unconsciously or otherwise, his testimony in favor of or against a party.
a. Unlike Frye, where silence meant it was overruled, here FRE silence as to bias
means that the common law stands.
b. Often can be used to include evidence that would otherwise be inadmissible if it
goes to another purpose, but it is ok if it goes to bias. I.e. Rule 408 (settlement
offers), Rule 610 (religion), 608 (character of witness).
2. Generally allowed—Bias can be shown in favor of a party, against a party, or because of
interest in the outcome of the litigation.
3. Extrinsic evidence—Bias may be found by use of extrinsic evidence. However, most courts
require a foundation before extrinsic evidence may be used for this purpose: the examiner
must ask about the alleged bias, and only if the witness denies it may the extrinsic evidence
be presented.
4. US v. Abel (1984, pg. B339)—D’s accomplice testified against him. D brought in another
witness to say that accomplice had said he was going to frame D. Accomplice then wanted to
get back on the stand to say that he, D, and witness were members of Aryan Brotherhood,
therefore he could have said he was going to frame D because that would have been suicide.
D says mention of the Brotherhood was done to say that it is more likely witness was lying
on stand is impermissible, and it fails 403 because highly prejudicial. If it is admissible for
any purpose (and it does show bias), and it passes 403 (which it does because highly
probative), then it doesn’t matter if it is inadmissible under another rule (can’t be used to
show untruthfulness under 610).

RULE 610—RELIGIOUS BELIEFS AND OPINIONS

A. “Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the
witness’s credibility.”
B. Questioning his truthfulness
1. Opening issue—as soon as a criminal defendant takes the stand, he opens himself up to this
kind of evidence, even if he does not affirmatively state that he is a truthful person.
2. Opinion and Reputation—The extrinsic witness must give their opinion or state the witness’s
reputation for untruthfulness. But this witness can’t describe any specific instances of
conduct that led to his bad reputation or that formed the opinion
a. On cross, specific instances can be inquired into.
3. Not for propensity—Evidence of character of a witness is allowed in 607, 608, and 609 (even
though it is not allowed for accused and victims in 404(a)) because it is being offered as
proof of the witness’s credibility, not their propensity to commit the crime.
C. Religious Beliefs—Cannot be used to show whether they testified truthfully. But can be admitted
to show bias against a party.
1. US v. Teicher (2nd Cir. 1992 A346) Limited attempts to impach Salsbury by demonstrating
that he was biased against Jews, objection probing his “religious thoughts”, 610- makes this
inadmissible.

PRIOR INCONSISTENT STATEMENT

RULE 613—PRIOR STATEMENTS OF WITNESSES

A. “(a) Showing or Disclosing the Statement During Examination. When examining a witness about
the witness’s prior statement, a party need not show it or disclose its contents to the witness. But
the party must, on request, show it or disclose its contents to an adverse party’s attorney.

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B. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if the witness is given an opportunity to explain or deny
the statement and an adverse party is given an opportunity to examine the witness about it, or if
justice so requires. This subdivision (b) does not apply to an opposing party’s statement under
Rule 801(d)(2).”
C. Questioning their Reliability (Contradiction)
1. Foundation—At common law, before you could use extrinsic evidence to prove a prior
inconsistent statement, you had to have a foundation (they must have denied or
equivocates as to making it).
a. Under the FRE, the 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.
i. Some states laws say that the opportunity to admit or deny must come
before the extrinsic evidence.
a. Tennessee v. Martin (Tenn, 1998, pg. A355)—D’s girlfriend said
that D couldn’t have committed a robbery and stabbing because
they were doing heroin together. But the girlfriend earlier told
police that she didn’t know where he was that day. P admitted
officer’s testimony. Extrinsic evidence remains inadmissible until
the witness either denies or equivocates as to having made the
prior inconsistent statement. This is different from Federal Rules.
b. Inconsistent statements can include prior testimony, written statements, oral
statements, pleadings, and omissions.
2. Extrinsic Evidence—Special rules limit the questioner’s ability to prove that a witness made a
prior inconsistent statement by extrinsic evidence.
a. Collateral: Nothing in FRE expressly bans extrinsic proof of a prior inconsistent
statement on a collateral matter (unlike common law) but the trial judge could keep
such testimony out under 403.
b. Material: Extrinsic evidence is allowed if the inconsistency is material. Material
means that it would have been a relevant topic whether or not a witness had earlier
given testimony about it.
c. Requirements: Extrinsic evidence is only allowed if:
i. Witness is given an opportunity to explain or deny the statement
ii. Other party is given an opportunity to interrogate the witness about it
3. Statements used Substantively—The prior statement can’t be offered for its truth (that
would be hearsay) but it can be offered to show contradiction.
a. However, a substantive use is allowed when the prior statement was made under
oath in some proceeding or when the prior statement was one that identifies
someone and was made after having seen that person.
4. Prior Consistent Statement—May be introduced substantively (meaning not only for its
impact on the credibility issue) if impeachment efforts have suggested that the witness’s
testimony was a recently created lie or influenced by improper motives. (Rule 801(d)(1)).
D. Flowchart
1. Is it admissible for any of the following purposes:
a. Sensory or mental defect?
i. Extrinsic evidence allowed
b. Bias?
i. Extrinsic evidence allowed (some courts require witness to deny bias first)
c. Prior inconsistent statement?
i. Was the prior statement just inquired about?
a. Was it shown to opposing party upon request?
ii. Was extrinsic evidence admitted?

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a. Was the admission procedurally fair?
i. Was the witness given opportunity to explain or deny?
ii. Was opposite party allowed opportunity to interrogate
the witness?
b. Was the admission about a collateral matter?
i. Does it pass 403?
c. Was the statement used substantively (to prove its truth) instead
of just to show inconsistency?
i. Does it pass 801(d)(1)?
d. Contradictory evidence?
i. See below
e. General character?
i. Is religion used to show truthfulness?
a. Is it used to show bias?
ii. See below
2. Was there undue harassment?
3. Is it admissible under 403?

CONTRADICTORY STATEMENTS (COLLATERAL ISSUE RULE)

E. Questioning their Reliability (Contradiction)
1. Showing of contradiction allowed—A witness may be impeached by extrinsic evidence which
contradicts some fact of his testimony.
2. Limited to material issues—However, the right to put on a second witness to impeach the
first by contradicting him, is limited by the collateral issue rule under common law. Things
are collateral if they are only admissible to impeach general character for truthfulness
through contradiction. If they are admissible for some other purpose, they are not
collateral.
a. Disallowed (collateral)—When extrinsic evidence is not allowed, the inquirer must
“take the answer.” This occurs in the following situations:
i. Prior bad acts by the witness that did not lead to a conviction
ii. Prior inconsistent statements that do not relate to a material fact in the
case
iii. Facts that are wrong, unless these facts are material.
iv. Bad character for truthfulness
b. Allowed (not collateral)—When extrinsic evidence is allowed, the inquirer can prove
that the witness’s testimony was false. Extrinsic evidence will not be deemed to be
collateral, and therefore will be allowed, as to the following subjects:
i. Prior criminal convictions
ii. Bias
iii. Competence- Sensory or mental defect that prevents the witness from
observing, remembering or narrating events correctly.
iv. Perhaps two others:
a. If the facts are relevant to the substantive issues in the case (i.e.
you can use extrinsic evidence to impeach someone when they
say they weren’t drunk and being drunk would make them
negligent).
b. If the fact that is false is something that surely he would have
known, if he were telling the truth (i.e. witness says he saw D
administer the poison to rats is in the cellar, where provision are
kept. But no provisions are kept in the cellar.)

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c. Federal Rules—Do not contain any explicit “collateral issue” rule. However, the trial
judge can apply the policies behind the rule by using FRE 403’s balancing test
3. US v. Beauchamp (1st Cir. 1993 A364) extrinsic evidence to disprove a fact testified to by a
witness is admissible when it satisfies the Rule 403 balancing test, and is not barred by any
other rule of evidence. Court had discretion to exclude testimony about the correct address,
marginal relevance, no abuse of discretion here.
F. Flowchart
1. Is extrinsic evidence admissible?
a. Can I call an extrinsic witness to testify to the fact for any other reason besides
proving contradiction?
i. Is it about a prior criminal conviction?
ii. Does it show bad character for truthfulness?
iii. Does it show bias?
iv. Does it show sensory or mental defect?
v. Does it show a fact relevant to the substantive issues in the case?
vi. Is the fact that is false something he surely would have known, had he
been telling the truth?
2. Do I have to “take the answer”?
a. Was it a prior bad act that did not lead to conviction?
b. Was it a prior inconsistent statement that does not relate to a material fact of the
case?
c. Was it a fact that was wrong and not material?

CHARACTER EVIDENCE

RULE 608(A)—EVIDENCE OF CHARACTER FOR TRUTH-TELLING

A. “(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about that character. But evidence of
truthful character is admissible only after the witness’s character for truthfulness has been
attacked.”
B. US v. Tedder (7th Cir. 2005 A369) – Tedder convicted of conspiring to defraud the US, testified, so
put his veracity at issue, three witnesses called by prosecutor to testify that he is not a truth-
teller, opinion or reputation , 608a, estranged brothers, no time limit, also doesn’t matter that
honesty and truthfulness were used interchangeably.

RULE 608(B)—PRIOR BAD ACTS AS EVIDENCE OF CHARACTER FOR TRUTH-TELLING

A. “(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthfulness or untruthfulness
of:
1. (1) the witness; or
2. (2) another witness whose character the witness being cross-examined has testified about.
B. By testifying on another matter, a witness does not waive any privilege against self-incrimination
for testimony that relates only to the witness’s character for truthfulness.”
C. Questioning his truthfulness
1. Probative of truthfulness—Only prior bad acts that are probative of truthfulness may be
asked about.

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2. No extrinsic evidence—The prior bad acts must be introduced solely through the cross-
examination, not through extrinsic evidence. The questioner must “take the witness’s
answer.” This varies from 609 because there is no conviction, so harder to prove that the
witness actually did it and we don’t want a “trial within a trial.”
a. And questions as to prior bad acts can only be asked during cross, not during direct.
3. Good faith basis—questioner must have a good faith belief that the event actually occurred
or else may not ask questions about it.
4. Discretion of court—All questions about prior bad acts are in the discretion of the court.
5. US v. Shinderman (1st Cir. 2008 A370) - allowed cross examination on prior arrests from
drugs and driving, argued that the arrests had been expunged, court didn’t accept, allowed
cross, well within discretion.
D. Flowchart
1. Does the evidence attack the witness’s character for truthfulness?
a. Is the testimony limited to opinion or reputation?
2. Does the evidence support the witness’s character for truthfulness?
a. Has the witness’s character for truthfulness been attacked?
i. Is the witness exempted under 404(a)(1)—character of the accused?
b. Is the testimony limited to opinion or reputation?
3. Does the testimony inquire into specific prior bad acts (highly discretionary)?
a. Was it made on cross-examination?
b. Is it probative of truthfulness?
i. Or does it go to some other issue besides character (bias, sensory, etc.)?
c. Was there a good faith basis for asking them?
i. Does it pass 403?
d. Was there undue harassment or embarrassment? (Rule 611)
e. Is there anything else that may be relevant to court (time passed, etc.)?
f. Did the questioner “take the witness’ answer” (not offer extrinsic proof)?
i. Is there a way to get the evidence in under Article IV?

RULE 609—IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME (PRIOR CONVICTIONS )

A. “(a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
1. (1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
a. (A) must be admitted, subject to Rule 403 [GIVES JUDGE DISCRETION], in a civil
case or in a criminal case in which the witness is not a defendant; and
b. (B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant;
and
2. (2) for any crime regardless of the punishment, the evidence must be admitted if the court
can readily determine that establishing the elements of the crime required proving — or the
witness’s admitting — a dishonest act or false statement.
B. (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years
have passed since the witness’s conviction or release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if:
1. (1) its probative value, supported by specific facts and circumstances, substantially outweighs
its prejudicial effect; and
2. (2) the proponent gives an adverse party reasonable written notice of the intent to use it so
that the party has a fair opportunity to contest its use.
C. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not
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1. (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation,
or other equivalent procedure based on a finding that the person has been rehabilitated, and
the person has not been convicted of a later crime punishable by death or by imprisonment
for more than one year; or
2. (2) the conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
D. (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
1. (1) it is offered in a criminal case;
2. (2) the adjudication was of a witness other than the defendant;
3. (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility;
and
4. (4) admitting the evidence is necessary to fairly determine guilt or innocence.
E. (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is
pending. Evidence of the pendency is also admissible.”
A. Questioning their truthfulness
1. Crimen Falsi—If the crime included as an element dishonesty or false statement it may
always be used to impeach the witness, regardless of whether it was a misdemeanor or a
felony, and regardless of the degree of prejudice to the witness (who will usually be the
defendant in a criminal proceeding). The judge may not even exclude the evidence under
403.
a. Ex: perjury, false statement, criminal fraud, embezzlement, taking property by false
pretenses, counterfeiting, forgery, filing false tax returns.
b. US v. Jefferson (5th Cir. 2010 A375) – Bribery is a crime involving dishonesty. Where
the deceitful nature of the crime is not apparent from the statute and the face of
the judgment, a proponent may offer information such as an indictment or jury
instructions to show that the fact finder had to find an act of dishonesty or false
statement in order for the witness to have been convicted.
c. Not involving dishonesty: assault, bank robbery, etc. Even if there was dishonesty
used in the commission of the crime it is not a crimen falsi because dishonestly is
not an element of the crime.
d. US v. Brackeen (9th Cir. 1992 A372) bank robbery is not a per se crime of dishonesty
under 609(a)(2).
2. Felony—If the crime was a felony not involving dishonesty, and the witness is the defendant
in a criminal case, the crime may be used only if the court determines that the probative
value of admitting the evidence outweighs its prejudicial effect to the accused.
a. Witnesses other than the criminal defendant—If the witness is not a criminal
defendant, the witness gets no special protection against impeachment. Instead,
403 applies, allowing a prior conviction to be excluded only if the prejudice
substantially outweighs the probative value.
b. Effect—if probative value equals prejudicial effect, it is admissible for most
witnesses, but inadmissible against a criminal defendant.
c. Green v. Bock Laundry Machine (1989, pg.A377)—P’s arm ripped off by D’s dryer,
he sues and testifies. D impeaches his testimony with felony burglary convictions.
Old rule said that felonies were admissible if the “probative value outweighs its
prejudicial effect to the defendant”. P’s convictions clearly didn’t prejudice Bock
here, so weird result. We cannot accept an interpretation that would deny a civil P
the same right to impeach that it grants to a civil defendant, so the rule can’t mean
what it says. Therefore “defendant” must have been limited to criminal defendant.
So, when there are civil witnesses, the judge must allow them to be impeached with
prior felonies. (No judicial discretion because already a balancing test in the rule).
i. Dissent: Can’t mean what it says, but “defendant” should be read to mean
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ii. Amended in 1990—Current version gives criminal defendants heightened
protection against admission of convictions, and gives all other witnesses
some protection. Balancing probative vs. prejudice- if equal, then does not
outweigh, does not admit.
3. Other misdemeanors—If the crime was a misdemeanor not involving dishonesty or false
statement, it may not be used for impeachment.
4. Old convictions—If more than 10 years have elapsed from both the conviction and the prison
term for that conviction, the conviction may not be used for impeachment unless the court
determines that there are “specific facts and circumstances” that make the probative value
of the conviction substantially outweigh its prejudicial effect. This makes it much harder to
get more than 10 year old convictions into evidence.
a. Weighing probative value—Is the witness’s credibility particularly important in the
trial, and are there other means to give the jury a basis for assessing that
credibility?
b. Weighing prejudicial effect—Nature of the past crime, whether witness is a party,
similarity of the previous crime to this crime.
5. In limine motions—D may, before taking the stand, ask the trial court to rule in limine
whether a particular conviction will be allowed to impeach him. If the ruling goes against D,
D can then elect not to take the stand.
a. But, if he doesn’t take the stand, the in limine ruling will not be reviewed on appeal.
i. Luce v. US (SCOTUS 1984, pg. A385)—D charged with cocaine distribution
and moved for ruling to preclude P from impeaching him with prior state
conviction for possession of controlled substance. Court denied the
motion, D didn’t testify. D wants to appeal ruling of whether to allow
impeachment testimony because, had he testified and been impeached,
the decision to allow impeachment evidence would have been reviewable.
To raise and preserve for review the claim of improper impeachment with a
prior conviction, a defendant must testify.
b. Rule 103(2)—Offer of Proof
i. If the judge rules to exclude your evidence, you want to make an order of
proof by either reading it into the record or summarizing it and putting it
into an exhibit later. That way, when it goes up on appeal, you know what
was excluded.
6. Ineligible convictions—Certain types of convictions are excluded by special rules:
a. If the witness was pardoned, based on a finding of innocence, the conviction may
never be used.
b. If the pardon was because the witness was rehabilitated, it may be used for
impeachment only if the witness has been convicted of a subsequent felony.
c. A juvenile adjudication of a defendant may not be used to impeach him.
7. Four approaches:
a. Traditional—you can impeach on all felonies and any misdemeanor that involves
false statement.
b. Discretionary—judge should do 403 test for each conviction.
i. Luck case. Now followed in NY.
c. Only False Statement—you can only impeach on crimes involving false statement or
dishonesty, regardless of whether it is misdemeanor or felony.
d. No impeachment—can never impeach.
8. Flowchart
a. Is it being offered to attack truthfulness (assess witness’s credibility)?
b. Was there a conviction?
a. If no, is it admissible under prior bad acts?
ii. Has it been pardoned on a finding of innocence?

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iii. Has it been pardoned due to rehabilitation?
a. Has the witness been convicted of a subsequent felony?
c. Have more than 10 years passed?
i. Does the probative value substantially outweigh the prejudicial effect
(favors exclusion)?
a. Are there specific facts and circumstances to prove that
d. Was it a crime that required an element of dishonesty or false statement?
i. If yes, admissible (judge does not have discretion under 403).
e. Was it a misdemeanor not involving false statement?
i. If yes, not admissible (judge does not have discretion under 403).
f. Was it a felony not involving false statement?
i. Is it being offered against a criminal defendant?
a. Does the prejudicial effect to the accused even slightly outweigh
the probative value?
i. If yes, not admissible.
ii. Is it being offered against a witness that is not a criminal defendant?
a. Is the probative value substantially outweighed by the prejudicial
effect (Rule 403)?
i. If yes, not admissible.
g. Is there a way to get it in under Article IV?

HEARSAY

DEFINITION

RULE 801 (A-C)—DEFINITIONS

A. “(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal
conduct, if the person intended it as an assertion.
B. (b) Declarant. “Declarant” means the person who made the statement.
C. (c) Hearsay. “Hearsay” means a statement that:
1. (1) the declarant does not make while testifying at the current trial or hearing; and
2. (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

RULE 802—HEARSAY RULE

A. “Hearsay is not admissible unless any of the following provides otherwise:
1. a federal statute;
2. these rules; or
3. other rules prescribed by the Supreme Court.”
B. Implications
1. Three dangers—The use of hearsay testimony presents three main dangers stemming from
the fact that the declarant is out of court, and therefore not available for cross-examination:
a. Insincerity
b. Incorrect Memory
c. Inaccurate Perception

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Tribe’s Triangle

Question: Question:
Does the declarant Does the belief
really have the belief? Memory reflect reality?
Sincerity

Perceptio
n

C. Out of court statement—Any statement except one made “by a witness during the trial while
testifying before the trier of fact.” Therefore, the following will be out of court statements, and
thus may be hearsay:
1. Any statement by someone other than the at-trial witness
2. A prior statement by the at-trial witness, where the prior statement was not made in the
present trial before the trier of fact. Therefore, W’s prior statement made in a deposition or
at an earlier trial may be hearsay.
D. Statement and Conduct—While an oral or written assertion is obviously a statement, certain
types of conduct may also be statements:
1. Assertive conduct—Whether the conduct is done with the intent to convey information,
instead of just to accomplish something.
2. Silence—A person’s silence will only be treated as a statement if it is intended by the person
as an assertion.
a. Absence of complaints—The fact that someone has not made a complaint about a
situation is not treated as the equivalent of a statement by them that there is
nothing to complain about. Therefore, it is not a statement, and there is no
hearsay.
b. Silence in face of accusation—But a person’s silence in the face of an accusation
against him, where the silence is offered to show the accusation is true, usually will
be held to be intended as an assertion, and thus hearsay (although hearsay
exception for admissions will usually apply anyway).
3. Non-Assertive conduct—Never hearsay, which reverses common-law rule, because assumed
to be sincere, and that is what is most important.
a. Non-assertive verbal conduct—Even a verbal statement will not be hearsay if it is
not intended as an assertion (i.e. hearing someone on the phone say “Secretariat to
place third” is not hearsay because it was not being said as an assertion that he was
talking to a betting parlor, or anything else.
b. Non-verbal conduct—Non-verbal conduct that is not intended as an assertion will
not give rise to hearsay (i.e. O’s conduct of putting up an umbrella, if offered to
show that it is raining, is not hearsay because O wasn’t intending to assert to
anybody that it was raining. Or, ship captain sailing on a trip is not a statement of
the ship’s seaworthiness.)
4. Assertions used to support inference not asserted—If an assertion is offered to prove that
another assertion is implied by the former, there is a hearsay problem only if the person
making the assertion intended the implied assertion.
a. Ex: In sending letters to someone, what I put in the letters is my assertion. You
could infer that if I am sending letters, regardless of what they say, I am also
asserting that the person is sane and therefore capable of reading them. Common
law would say the letters are hearsay because they are being admitted to prove the
sender’s out of court beliefs. FRE, however, says it is not hearsay because you did
not intend to assert that they were sane. Therefore, it is unlikely that you were
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b. Ex: If you are trying to prove the apartment was cold, a statement like “this is a
great place for polar bears” would be an assertion that implies an assertion that it is
cold. This may be hearsay because it is likely the person intended the implied
assertion (he meant to say it was cold in the apartment).
i. Something that doesn’t have the same likeliness of the implied assertion
(something like “I should put on a sweater”) is more likely to be admitted
as not hearsay, but is less likely to be relevant, so may still be excluded.
E. “Truth of the matter asserted”—Some examples of uses to which a statement may be put that
do not constitute offering the statement for the “truth of the matter asserted.”
1. Verbal acts—If it is an operative fact that gives rise to legal consequences. (i.e. “I will pay
you $25 for sex” is not hearsay because it doesn’t matter if it is true. The statement alone
gives rise to the consequences).
a. Verbal parts of acts—If you say “this is a gift,” and hand someone money, it is a gift
in some jurisdictions under property law. Therefore, it is not hearsay because it
isn’t being offered to say that it actually was a gift, it is being offered to say that
there was a gift, under property law. In jurisdictions where a gift requires that the
giver intended for it to be a gift, that statement would be hearsay.
b. Contracts—When a litigant introduces evidence that a party, out of court, wrote or
spoke words that created a contract, the litigant is not, in theory, relying on those
words to establish their own truth. Offered to show there is a contract, not offered
to show that D does in fact owe P $10.
2. Effect on hearer/reader—A statement offered to show its effect on the listener or reader
will generally not be hearsay. So if the statement is offered to show that the listener or
reader was put on notice, had certain knowledge, had a certain emotion, or behaved
reasonably or unreasonably, this will not be hearsay.
3. Declarant’s state of mind—Statements introduced to show the state of mind of the
declarant are not offered for the truth of the matter asserted, and thus are not hearsay.
a. Knowledge, sanity, emotion—Thus a statement offered to show that D had
knowledge, or to show sanity or emotion, is not hearsay. (i.e. if D says to X “I need
to get my breaks checked because they haven’t been working,” that is not hearsay.
It is not offered to show that the breaks weren’t working, it is offered to show D’s
knowledge that perhaps the breaks weren’t working).
4. Reputation—For example, if in a libel action, W testifies that “O said P has a reputation for
being a thief,” that is not hearsay because it is not offered to prove that P is a thief. It is
offered to show that P has a reputation for being a thief.
5. Impeachment—Using prior inconsistent statements is not hearsay because they are not
trying to prove that what you said in the previous one is true, just to show that there is
contradiction.
F. Common Examples
1. Monograms, inscriptions, commercial signs—If a party just uses a writing (such as “ABC
Pizza” on a truck) to show that the writing existed (and not to prove that the truck did in fact
belong to ABC), that is not hearsay. Then they can prove that when trucks have ABC on
them, they belong to ABC in a different way.
2. Circumstantial use to prove something about a place—“Put $50 on Speedy” example is not
hearsay because did not intend the assertion that it was a gambling joint. Testimony of a
child’s description of a room which matches description of D’s room is not hearsay because
it is not being offered to prove that is what the room looks like. It is being offered to prove
that the child was there. Other proof can say, “D’s room actually did look like this.” Then
you have circumstantial proof that she was there.
3. Circumstantial use to prove something about the declarant—“I am the King of Mars” is not
hearsay when used to assert that he was mentally ill because the intended assertion was not
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4. Surveys—Would not be hearsay if the survey response is the equivalent of “This product is
made by D” if you are intending to show only that two products are confusingly similar. That
statement doesn’t intend to assert that the products are confusingly similar.
5. Silence—Unless your silence was intended to assert something, it isn’t hearsay.
6. Non-human declarant—No hearsay because “statement” requires it to be a person. And
because you can’t cross examine a machine, so no justification in hearsay rule.
7. US v. Lloyd (3rd Cir. 2009 B7)  need two legs of the triangle, didn’t hae for a violation
report and a warrant petition.
8. US v. Norwood (7th Cir. 1986 B10)  Argues that not disputing that the credit card was
stolen, and that he had it in his possession, he was trying to prove that he believed the card
was not stolen  Not hearsay, not about the truth of the matter asserted.
9. State v. Satterfield (Supreme Court of NC 1986 B12)  actions can equal communication
and words
10. US v. Zenni (EDKY 1980 B14)  are implied assertions hearsay? Betters called while
searching a bookmaking activity, trying to set up bets, so assume that it is hearsay.
11. US v. Curry (7th Cir. 2008 B18)  tries to testify about his interactions with his brother,
objection that it would be inadmissible hearsay, not an accurate way for a judge to explain
how hearsay works.
12. Flowchart
a. Is it hearsay?
i. Is it out of court?
ii. Is it a statement?
a. Is it an assertion (intended to convey information, or just to
accomplish something)?
i. Oral or written?
ii. Conduct?
iii. Silence?
b. Is it intended to assert what it is being used to show?
c. Is it made by a human (not a machine or animal)?
iii. Is it offered to prove the truth of the matter asserted (or just to prove that
it was said)?
a. Do the words have legal effect (marriage, prostitution, etc)?
b. Is it being offered to prove reputation?
c. Is it being offered to show state of mind of declarant?
d. Is it being offered to show effect on hearer/reader?
i. Is it just a word of warning?
e. Is it being offered for impeachment (to show inconsistency)?
f. Do we care about the declarant’s sincerity, perception, or
memory?
g. Do we care about its truth or falsity or just that it was said?

PRIOR STATEMENTS BY THE WITNESS

OVERVIEW
G. Three types of witness statements:
1. Inconsistent—801(d)(1)(A)
2. Consistent—801(d)(1)(B)
3. Identification—801(d)(1)(C)
H. All types have two requirements:

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1. Declarant testifies at the trial or hearing.
2. Subject to cross examination on the prior statement.
a. This does not mean that he accurately remembers making the statement, just that
he is available, at trial, to be cross-examined about the statement.
i. US v. Owens (1988, pg. B30)—Victim was attacked and brutally beaten, so
memory severely impaired, but able to pick out D from array of photos. At
trial he testified that he can’t remember seeing his assailant, but he does
remember identifying D earlier. Lower court said that D’s earlier
statements did not come within 801(d)(1) exceptions because his memory
loss prevented him from being subject to cross concerning the statement.
As long as witness is on the stand at this trial and able to be crossed, it
qualifies, even though when a witness is deemed “unavailable” for hearsay
provisions when he can’t remember.

RULE 801(D)(1)(A)—PRIOR INCONSISTENT STATEMENTS

A. “(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not
hearsay:
1. (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-
examination about a prior statement, and the statement:
a. (A) is inconsistent with the declarant’s testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;”
B. Implications
1. General rule—Certain prior inconsistent statements of the trial witness are substantively
admissible (not hearsay). If the defendant testifies at trial and is subject to cross-
examination concerning his prior statement, that statement is admissible if it is inconsistent
with the testimony given at trial.
a. Proceeding—Only statements given under oath as part of a formal proceeding may
be introduced. An informal oral statement will not be admissible.
2. Cross examination not required at prior hearing—Allows the prior inconsistent statement
into evidence even when there was no cross-examination at the time of that previous
statement, or even any opportunity for cross.
a. Therefore grand jury testimony is not hearsay.
i. U.S. v. Buttersworth (1st Cir. 2007, pg. B20)—Made statements at a grand
jury hearing. At trial, she contradicted some of her grand jury testimony,
and often said that she did not know or could not remember the answers
she had given. The prosecutor “refreshed her recollection” so that she
could remember. D attempted to introduce the prior statements.
Statements made before a grand jury are given under oath subject to the
penalty of perjury, and therefore admissible even though the other party
wasn’t there to cross at the time.
3. Impeachment—prior inconsistent statements can be used to impeach without needing this
exception because those go to consistency, not truth.
a. US v. Webster (7th Cir, 1984, pg. B23)—D on trial for helping King robbing a bank. P
put King on the stand who said that D didn’t do it. P then introduced prior
testimony where King said that P did do it. D says this is inadmissible because it
was just P’s way of getting inadmissible hearsay in by saying it was to impeach.
Impeachment by prior inconsistent statement may not be permitted where
employed as a mere subterfuge to get before the jury evidence which would
otherwise be inadmissible. But, here there was no bad faith because P didn’t know
what King would say, so it was ok.
4. What constitutes “inconsistent?”

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a. U.S. v. Buttersworth (1st Cir. 2007, pg. B20)—Made statements at a grand jury
hearing. At trial, she contradicted some of her grand jury testimony, and often said
that she did not know or could not remember the answers she had given. The
prosecutor “refreshed her recollection” so that she could remember. D attempted
to introduce the prior statements. Testimony need not be diametrically opposed or
logically incompatible to be considered inconsistent under the rule. Even evasive
answers or silence can be enough, as can claimed memory loss. Therefore,
admissible.
C. Sam Irwin- main instigator

RULE 801(D)(1)(B)—PRIOR CONSISTENT STATEMENTS

A. “(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not
hearsay:
1. (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-
examination about a prior statement, and the statement:
a. …(B) is consistent with the declarant’s testimony and is offered
i. (i) to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying; or
ii. (ii) to rehabilitate the declarant's credibility as a witness when attacked
on another ground; or
B. Implications
1. General rule—If the prior statement is consistent with the witness’ trial testimony, it is
substantively admissible, but only to rebut an express or implied charge of recent fabrication
or improper influence or motive.
2. No Oath Requirement—Unlike prior inconsistent statements, a consistent statement is
admissible even if not made under oath or at a proceeding because it is not being offered
to contradict in-trial testimony, it is being offered to support it. Therefore, we assume it is
more reliable.
a. US v. Lewis (2nd Cir. 1977, pg. B27)—Witness couldn’t identify D in court and picked
out someone else. P was allowed to submit pretrial identification in a photo line-up
to show that she recognized the D.
3. Temporal Requirement—Although the Federal Rules do not require that the consistent
statement have been made before the motive to fabricate or lie came about, the Supreme
Court has interpreted it to include that requirement
a. Tome v. US (1995, pg. Y21)—D charged with sexual abuse of his daughter. D said
that his daughter was saying these things just so she could live with her mother.
Gov’t introduced prior statements the daughter made consistent with her abuse
testimony. D says those shouldn’t have been admitted under 801(d)(1)(B) because
they didn’t take place after the motivation to lie occurred (i.e. after she moved in
with dad). The rules say you have to “rebut” a “recent fabrication” and these
statements merely bolster the veracity of the story told and have no rebuttal force.
Therefore, prior consistent statements are admissible only when they were made
before the charged recent fabrication or improper influence or motive.
i. Scalia concurrence—don’t look to advisory committee notes.
4. Rehabilitiation—prior consistent statements can be used to prove consistency, even if they
can’t be used to prove the truth of the statements here.
a. US v. Gluzman (2nd Cir. 1998, pg. 29)—Tome limited to testimony under
801(d)(1)(B) so it does not exclude prior consistent statements made for the
purpose of rehabilitating a witness to show consistency instead of showing the
statements were true.

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RULE 801(D)(1)(C)—PRIOR IDENTIFICATION
A. “(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not
hearsay:
1. (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-
examination about a prior statement, and the statement:
a. (C) identifies a person as someone the declarant perceived earlier.
B. Implications
1. No Oath or Proceeding—Unlike prior inconsistent statement, an out of court statement
identifying a person is admissible as substantive evidence of the identification.
a. This is a weird resolution because if you are at the police station and a witness says
“D did it,” but later says someone else did it on trial, that statement cannot come in
because it wasn’t under oath. However, if at the police station they pulled a
photograph out of a lineup, that is allowed to come in because no oath
requirement. Has to do with Sam Irwin who got the rule in (A), added after he died.
2. People v. Ludwig (NY Case 2014 B24) - wrongly decided client owned wine distribution, child
abuse allegation, father abused, told brother in the back yard, Fed rules- consistent
statement, she has been a witness, NY exception that nonspecific testimony of child victim’s
reports of sexual abuse I s not improper bolstering, for explaining the investigative process
and completing the narrative of events leading to the defendant’s arrest.
3. US v. Owens (SCOTUS 1988 B30) – Neither confrontation clause nor FRE 802 is violated by
admission of an identification statement of a witness who is unable, because of a memory
loss, to testify concerning the basis for the identification.
4. Flowchart
a. Is it hearsay—introduced as substantive proof?
b. Is it a prior statement by the witness?
i. Did the declarant testify at the trial?
ii. Was the declarant subject to cross at trial?
a. Is the statement inconsistent?
i. Was it given under oath (signed)?
ii. Was it given at a trial, hearing, proceeding or deposition?
1. Can it be used to impeach (therefore not
hearsay)?
b. Is the statement consistent?
i. Was there a charge of recent fabrication or motive to lie?
ii. Was the statement made before the impetus for the
fabrication or lying?
1. Can it be used to rehabilitate (to show
consistency, therefore not hearsay?)
c. Is it a prior identification?

RULE 801(D)(2)—ADMISSION BY A PARTY OPPONENT

A. “(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
1. (A) was made by the party in an individual or representative capacity;
2. (B) is one the party manifested that it adopted or believed to be true;
3. (C) was made by a person whom the party authorized to make a statement on the subject;
4. (D) was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed; or
5. (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

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6. The statement must be considered but does not by itself establish the declarant’s authority
under (C); the existence or scope of the relationship under (D); or the existence of the
conspiracy or participation in it under (E).”
B. Tilts toward admissibility—An admission is admissible even though it contains an opinion or a
conclusion of law, or is based on hearsay, and even though it is not based on the maker’s first
hand knowledge. Therefore, it can be admitted more easily into evidence even than the same
statement made at trial. The advisory committee notes on page 154 indicate that this means
there should be generous treatment for admissibility.
1. “Against a party opponent”—Since you don’t have the same evidentiary requirements as
you would when you call a witness, you can’t use this rule to smuggle in your own testimony.
The person offering the testimony can’t be the one who said the statement.
C. Trustworthiness of the statement—Trustworthiness is not a separate requirement for admission
under 801(d)(2).
1. Jewell v. CSX Transportation (6th Cir. 1998, pg. B32)—Party involved in train accident told
someone that it was caused by her parents fighting, even though she suffered from amnesia
from the accident and gave inconsistent stories. Ruled admissible against the party. The
admission of statements of a party-opponent is grounded not in the presumed
trustworthiness of the statements, but on a kind of estoppel or waiver theory, that a party
should be entitled to rely on his opponent’s statements. D’s complaints go to the weight of
the statements rather than their admissibility.
2. Tucker v. Bennett (EDNY 2002 B34) – post arrest statement made after advice of his rights,
admitted he approached Hampton on Cornelia street, insisted he wanted to buy drugs, could
not question the police witnesses about the substance of Tucker’s oral post-arrest
statement, Tucker can’t offer his own hearsay statements.
D. Personal admissions
1. Conduct as admission—A party’s conduct, even if it is intended as an assertion (and thus is
hearsay under the modern rule) will be admissible under the exception for admissions.
E. Adoptive admission
1. Real and knowing test—If a party is claimed to have adopted another’s statement and the
adoption is merely implied, the test is: whether, taking into account all circumstances, the
party’s conduct or silence justifies the conclusion that he knowingly agreed with the other
person’s statement.
2. Silence—Often, the party’s silence in the face of the other person’s statement will, under the
circumstances, indicate that the party agrees with the statement. If so he will be held to
have made an adoptive admission, which will thus be admissible.
a. Criminal cases—In criminal cases, D’s failure to respond to accusations made by the
police while in custody will not be admissible against him as adoptive admissions
because this would violate the spirit of Miranda. But silence in the face of
accusations made outside of police custody, or silence to accusations made to non-
police, may be admitted against the criminal defendant under the adoptive
admission theory.
b. Writing—A party’s silence in the face of a writing will similarly be an adoptive
admission, if the party can reasonably be expected to have objected were the
writing untrue.
c. Hearing is not sufficient—just because you hear a statement and don’t contradict it,
that doesn’t mean you have adopted it.
i. US v. Flecha (2nd Cir. 1976, pg. B36)—5 people arrested together and one
said “If we are caught, we are caught. D was close enough to hear this, but
didn’t say anything. The inference of assent may safely be made only when
no other explanation is equally consistent with silence, which there will be
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experiences have been expressed if the communications had not been
correct.
F. Representative admission- (d)(2)(C)
1. Explicit authorization—If the party explicitly authorized another person to speak for him on
this matter, even if the party only authorized him to speak to the party.
a. Party’s books or records—Are usable against him even though there was no intent
to disclose to third parties.
2. Vicarious—Even if an agent is not explicitly authorized to make statements, statements he
makes arising from a transaction within his authority will be deemed to be authorized
admissions by the principal.
a. How to prove—The proponent of the admission may use the statement itself as one
item of evidence to show the agent was acting within the scope of his agency or
employment relationship when the declaration was made. But the statement
cannot be the sole item of evidence demonstrating this point.
i. Bourjaily v. US (1987)
b. Pappas v. Middle Earth Condominium Association (2nd Cir. 1992 B38) - Not
authorized to speak, but he said it, what else is required- must be within the scope
of his duties, the statement comes in
3. Sophie the Wolf- Mahlandt case
a. Person in charge wrote the note, gave to supervisor, Sophie bit the child, hearsay?
b. Not hearsay- Mr. Poos- under the scope of his employment
i. Doesn’t have personal knowledge, but this is a special exception to that
rule
Exception does not apply if he explicitly mentions the neighbor in the note.
G. Co-Conspirators—In general, a statement by one co-conspirator is admissible against other
members of the same conspiracy, so long as the statement is made during the course of the
conspiracy and in furtherance of it.
1. “During course of”—The requirement that the statement take place during the course of
means that:
a. After end is inadmissible—Statements made after the conspiracy has ended are
inadmissible only against declarant, not against the other members. Thus, if the
conspiracy is broken up by the arrest of A and B (the only members of the
conspiracy), anything B says to the police will not be admissible against A, since the
arrest has terminated the conspiracy.
b. Conspirator leaves—If A leaves the conspiracy, but B and C continue the conspiracy
without him, statements made by B and C after A leaves may not be admitted
against him. (But the converse is not true: statements made by A to the authorities
after he has left the conspiracy might be admissible against B and C, since their
conspiratorial activities are still continuing at the time of A’s statement)
c. Statements before—Statements made by early conspirators before a later entry
joins are admissible against the latter. When a conspirator enters an ongoing
conspiracy, he is held to have adopted the earlier statements of fellow co-
conspirators, so these are admissible against him.
2. “In furtherance”—This means that the statement should be admitted against a co-
conspirator only if it was made for the purpose of advancing the conspiracy’s objectives.
a. Weakly applied—But this requirement is often not taken seriously. Confessions by
a co-conspirator, narratives of past events, or statements by the declarant blaming
a crime on his co-conspirators rather than himself, are all frequently admitted
under the exception even though, strictly speaking, they don’t seem to meet the
requirement.
H. Flowchart
1. Is it hearsay—introduced as substantive proof?

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2. Is it a prior statement by one of the parties?
a. Is it being offered against a party opponent (the party offering the testimony isn’t
the one who said it)?
i. Did the party say it?
a. Did the party say it with his conduct?
ii. Did the party manifest a belief in the statement’s truth?
a. If he was silent, was agreeing the only possible response?
iii. Did a party authorized to make a statement say it?
a. Is there evidence, in addition to the statement, that the party was
authorized?
iv. Was the statement made by an agent or employee?
a. Was it concerning a matter within scope of the employment?
b. Was it made during existence of the relationship?
c. Is there evidence, in addition to the statement, that the party was
an agent or employee?
v. Was the statement made by a co-conspirator?
a. Was it made during the course of the conspiracy?
b. Was it made in furtherance of the conspiracy?
c. Is there evidence, in addition to the statement, that the party was
a co-conspirator?
3. Is it relevant?

HEARSAY EXCEPTIONS—AVAILABILITY OF DECLARANT IMMATERIAL

A. Declarant Available—These rules provide situations where hearsay is admissible, even though
the declarant is available as a witness.
1. Reflects a decision that the risks inherent in admitting this hearsay is minimal.
2. Keep in mind that for all of these exceptions, the declarant must have personal knowledge of
what he or she is describing.
a. Bemis v. Edwards (9th Cir. 1995, pg. B52)—P brought civil rights action for police
brutality. Wanted to admit 911 emergency call about someone who said “a copy is
beating that guy up.” But, he hadn’t actually seen it, and was just reciting what
another person was telling him. In the context of hearsay, the declarant must have
personal knowledge of what she describes.

PRESENT SENSE IMPRESSION —803(1)

A. “(1) Present Sense Impression. A statement describing or explaining an event or condition, made
while or immediately after the declarant perceived it.”
B. Requirements—Admissible for its truth.
1. Immediacy—In contrast to the excited utterance exception, the present sense impression
exception applies only if virtually no time passes between the event being perceived and the
declarant’s statement about it.
2. Must describe or explain—The present sense impression must describe or explain the event
that the declarant has perceived (in contrast to the usual rule for excited utterances).
3. Must see—Each declarant must be describing or explaining based on his or her first hand
knowledge.
C. Justification—If speaking immediately, no time to make up a lie, so it will be accurate (“res
gestae” exception meaning “while its happening”).
D. Deparvine (SCt FL 2008 B48) – Talking on phone to mom, said what was going on, counts for this
exception.

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EXCITED UTTERANCE—803(2)
E. “A statement relating to a startling event or condition, made while the declarant was under the
stress of excitement that it caused.”
F. Requirements—Admissible for its truth.
1. Statement must relate to a startling event or condition
2. Must have been made while the declarant was still under the stress of excitement caused by
that event.
3. Must relate to the event that was startling
4. Must be based on personal knowledge
G. Justification—The shock of an event presents a halt to fabrication and therefore will be accurate.
(“res gestae” exception meaning “while its happening”).
H. Time Factor—In determining whether the declarant was still under the influence of the startling
event, the time that has passed between the event and the statement is of paramount
importance. Usually, statements made during the exciting event or within half an hour afterward
are admitted, statements made more than an hour later are not, and statements between a half
hour and an hour are decided based on the surrounding circumstances.
I. Reflection—Since the rationale behind the exception is that statements made by a declarant who
does not have the opportunity to reflect should be admitted as unusually reliable, facts showing
that the declarant really did reflect will cause the exception not to apply. Thus if the statement is
very self-serving, or is in response to a detailed question, the court is likely to find that the
declarant reflected, so the exception should not apply.

STATE OF MIND - THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITIONS—803(3)

A. “A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will.”
B. Declaration of mental or emotional condition
1. State of mind directly in issue—The exception is often used where a declarant’s state of
mind is directly in issue. This will be admissible for its truth.
a. Presently existing state of mind (not act)—The statement must relate to the
declarant’s presently existing state of mind. It cannot be admitted as proof of the
act that caused the state of mind to come about.
i. Shepard v. US (1933, pg. B66)—D accused of poisoning his wife. D was
allowed to bring in hearsay testimony about wife’s present state of mind
to show she was suicidal. Wife rebutted by entering testimony saying she
believed her husband tried to kill her. While testimony of her present state
of mind to show she was not suicidal is ok, declarations as proof of an act
committed are not allowed because those look to the past, not the future.
This was in the past, so no sincerity or perception. In the future, we have
sincerity, but no perception or memory problem. >> Doesn’t make the
most sense.
b. Surrounding circumstances—If statement of present mental state includes a
reference to surrounding circumstances, the entire statement will normally be
admitted, but with a limiting instruction.
2. Proof of subsequent event—The exception also applies where a declaration of present
mental state (especially present intent) is offered not because the mental state itself is in
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actually took place. This will be admitted for its truth as to whether they had that plan, and
whether they carried out the plan.
a. Mutual Life Insurance Co. v. Hillmon (1892, pg. B62)—P bought multiple life
insurance policies, then said he died, and Ds don’t want to pay. At trial evidence
was introduced that the dead body was not Hillmon’s, but actually Walters.
Evidence from letters that Walters sent to his sister, saying he was going on the trail
with Ps. The letters in question were competent, not as narratives of facts, nor yet
as proof that he actually went away from Wichita, but as evidence that, shortly
before the time when other evidence tended to show that he went away, he had the
intention of going, which made it more probable that he would go.
i. Debate in advisory committee notes about whether or not this can be used
to prove the actions of the other people.
ii. HILLMON DOCTRINE: Letter should be admitted because intention of
going increases probability that he went.
b. See chart below.
c. Intent coupled with recital of past acts—If the statement is mainly an expression of
intent to do a future act, the fact that it contains a brief recital about some past,
relevant, fact will not cause the statement to be excluded. This is especially true
where the declarant explains a past motive for his contemplated action.
i. Ex: “D has asked for some bribe money. I’m going to send it tomorrow.”
d. Cooperation of other—If the statement of present intent concerns an act which
requires the cooperation of a third person, courts are split on whether they will
allow the statement to be used as circumstantial evidence that the declarant did
the contemplated act with the third person’s cooperation. However, in this
situation, courts usually require that there be independent evidence ether that the
declarant really did the intended act, or that the third person actually participated.
3. Statements of memory or belief—The state of mind exception does not apply to statements
of memory or belief about past actions or events, when offered to prove that the past action
or event took place. However, it can be used to show that the declarant thought that the
past action or event took place.
a. Execution of Will—A declarant’s statement relating to his will is covered by the
state of mind exception, even though the statement may be one of memory or
belief offered to prove the fact remembered or believed.
b. Surveys—this allows surveys in, regardless of whether they are hearsay or not.
C. Statements of then existing physical condition—Admissible for its truth
1. Statement to lay person—If the statement is made to a lay person, it is covered by the
exception only if it relates to the declarant’s present bodily condition or symptoms. Usually,
it will relate to pain and the statements will be admissible even for the purpose of showing
that he was, in fact, in pain.
D. Zippo v. Rogers Imports (SDNY 1963 B56) – Surveys count as present sense impression, have
sincerity and memory/perception no real problem.

Present State of Mind Future Past Conduct Future Conduct of 2

people

Zippo- surveys, 803(1) Conduct- #2 p 169, X no hearsay exception, Declarant’s + D or 3rd

Hillmon, kind of Shepherd, p 67 party, little bit of
backward, p 169 #4
Yes Yes No ? Hillmon

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STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT—803(4)
A. “A statement that:
1. (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
2. (B) describes medical history; past or present symptoms or sensations; their inception; or
their general cause.”
B. Justification—Unlikely to lie because you need to be treated/diagnosed and it is present, so your
sincerity is likely to be good. Admissible for its truth. – Need to redact parts that don’t have to do
with it.
1. Rule 703—If expert (doctor) based their testimony on inadmissible evidence, there had to be
a limiting instruction that the evidence couldn’t be accepted for its truth. Drafters needed
the patient’s medical conditions to be admissible hearsay so that jurors could consider them
for its truth. Lots some guarantees of sincerity in the process
2. Nebraska v. Vigil (Supreme Court of Nebraska 2012 B54) – allowed because medical
diagnosis was the primary goal.
C. Broader than 803(3)—Statements are now allowed about past symptoms, the cause, and to a
diagnosing doctor (even if not related to treatment), all three which are broader.
1. Past symptoms—Statement can be made about past symptoms
2. Cause—The statement may include references to the cause of the bodily condition (although
statements about whose fault the condition is will generally not be allowed). W’s statement
that he was hit by a car will qualify, but not his statement that the car was driven through a
red light.
a. US v. Iron Shell (F.2d 1988?, pg. Y58)—Girl taken to doctor after rape. She told him
she was drug into bushes, her clothes were taken off, etc. D says that is not
admissible because not “reasonably pertinent to diagnosis or treatment.” Court
says two rationales for liberalizing this rule, so two part test to see if it is related to
diagnosis or treatment. This passes the test, but color of skin doesn’t. First, is the
declarant’s motive consistent with the purpose of the rule, and second, is it
reasonable for the physician to rely on the information in diagnosis or treatment?
3. Statement by friend or relative—A statement made by a third person is also covered if made
to help the patient get treatment.
4. Non-treating physician—A statement is made to a doctor who is not furnishing treatment,
but who is consulted so that the can testify about the patient’s condition at trial. This is
weird because these are often done just for litigation.
5. Non-M.D.—Statements made for purposes of getting medical treatment that are made to a
nurse, doctor, ambulance driver, hospital admitting clerk, or other third person involved in
the health-care process, are covered by this exception.

RECORDED RECOLLECTION—803(5)
A. “A record that:
1. (A) is on a matter the witness once knew about but now cannot recall well enough to testify
fully and accurately;
2. (B) was made or adopted by the witness when the matter was fresh in the witness’s memory;
and
3. (C) accurately reflects the witness’s knowledge.
B. If admitted, the record may be read into evidence but may be received as an exhibit only if offered
by an adverse party.”
C. Four Requirements:
1. First-hand knowledge—The memo or writing must relate to matters of which the sponsoring
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2. Fresh in memory—The record must have been made when the matter was fresh in the
witness’ memory. Even a record made several days after the events in question might be
held to satisfy this requirement if there was evidence that the person doing the recording
would still have had a clear memory of it.
3. Impaired recollection—A sponsoring witness’ memory of the events recorded must now be
impaired. If he can testify “fully and accurately”, he must testify from memory rather than
have the document admitted.
4. Witness availability—not really a requirement, but since it has to be their own past
recollection, they technically have to be available to testify which is weird for 803
exceptions.
D. Status as exhibit—The record cannot be taken into the jury room as an exhibit, unlike other
forms of evidence. The theory is that the record is in lieu of testimony, so it should not be given
greater weight than testimony by being taken to the jury room. But the record is evidence (which
makes this different from a document used to jog the witness’ memory under the present
recollection refreshed exception).

BUSINESS RECORDS—RULE 803(6)

E. “A record of an act, event, condition, opinion, or diagnosis if:
1. (A) the record was made at or near the time by — or from information transmitted by —
someone with knowledge;
2. (B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
3. (C) making the record was a regular practice of that activity;
4. (D) all these conditions are shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
5. (E) neither the opponent does not show that the source of information nor or the method or
circumstances of preparation indicate a lack of trustworthiness.”
F. Requirements—The business record is admissible if:
1. Made in the routine of business
a. “Routine of business”—Does not mean made frequently. It can include a practice of
making a record of any accident that occurs.
i. Palmer v. Hoffman (1943, pg. B76)—Grade crossing accident where train
engineer made a statement when he was interviewed by a superintendent
of the railroad. They said it was done in the regular course of business
because they always made statements when there was an accident. An
accident report is not typical of entries made systematically or as a matter
of routine to record events or occurrences because they are often made for
litigating. Therefore, not admissible.
a. Advisory committee adds that “the emphasis on records of
routine operations is significant only by virtue of impact on
motivation to be accurate. Absence of routineness raises lack of
motivation to be accurate.”
2. Made by, or from information supplied by, a person with personal knowledge of the matter
recording and who is working in the business.
3. Entry was made at or near the time of the matter recorded.
4. Not seem untrustworthy.
a. Advisory committee notes: Tilts toward admissibility, but there is a trustworthiness
exception.
G. “Business” defined—Broad definition, so it would apply to schools, churches, and hospitals even
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H. Person supplying info—The person who originally supplies the information that goes in to the
record must satisfy two requirements: he must have first hand knowledge of the fact he reports,
and he must do his reporting while working in the business. The latter requirement means that if
the source of the information is not an employee of the business that keeps the record, the
exception may not apply—thus statements by witnesses to an accident, even if made to a police
officer or other person with a duty to compile a report, will not be admissible.
1. But if the third party information falls within some other hearsay exception, then by a two-
step process, the entire report may nonetheless be available.
I. Opinion—You can accept opinions contained in the report, if these would be admissible when
given as part of live testimony. Thus, if the person supplying the report or making the record is
an expert, his statement will be admitted if he would be permitted to make the same statement
at trial. Lay opinions are allowed assuming there is no grounds for doubting their
trustworthiness.
J. Untrustworthy—If the surrounding circumstances make the record seem untrustworthy, the
court has discretion to exclude it. If the facts indicate that the business that made the record
had a strong motive to create a self-serving record, the court could exclude.
K. Oral reports—Most courts hold that the record must be in writing
L. Proving the record—The business record is not “self admitting.” Instead, a sponsoring witness
must normally be called, who can testify that the requirements of the business-records statute
were satisfied. Typically, this will be someone who knows enough about the record-keeping
routine of the business to testify that the records were appropriately kept in the particular
instance (even if this witness did not make or observe the particular entry in question).
1. Certification alternative—However, 902(11) gives an alternative method for a business
record to be admitted—a method that does not need a “life” sponsoring witness. Instead,
the proponent can supply a written certification, by a person who would be qualified to be a
live sponsoring witness. As long as the certification document describes how the record
meets the requirements for a business record, the hearsay rule does not bar the document
and no live sponsoring testimony is needed.

ABSENCE OF ENTRY IN RECORDS—RULE 803(7)

A. “Evidence that a matter is not included in a record described in paragraph (6) if:
1. (A) the evidence is admitted to prove that the matter did not occur or exist;
2. (B) a record was regularly kept for a matter of that kind; and
3. (C) neither the opponent does not show that the possible source of the information nor or
other circumstances indicate a lack of trustworthiness.”
i. Absence of entry—If a regularly kept business record would otherwise
qualify, it may usually be admitted to show that a particular entry is absent
if such an entry would normally have been made had a particular event
occurred.
ii. Untrustworthy—If the surrounding circumstances make the record seem
untrustworthy, the court has discretion to exclude it. If the facts indicate
that the business that made the record had a strong motive to create a
self-serving record, the court could exclude.

PUBLIC RECORDS AND REPORTS—RULE 803(8-10)

B. “(8) Public Records. A record or statement of a public office if:
1. (A) it sets out:
a. (i) the office’s activities;
b. (ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or

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c. (iii) in a civil case or against the government in a criminal case, factual findings from
a legally authorized investigation; and
2. (B) neither the opponent does not show that the source of information nor or other
circumstances indicate a lack of trustworthiness.
C. (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public
office in accordance with a legal duty.
D. (10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent
search failed to disclose a public record or statement if:
1. (A) the testimony or certification is admitted to prove that
a. (i) the record or statement does not exist; or
b. (ii) a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind; and
2. (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice
of that intent at least 14 days before trial, and the defendant does not object in writing
within 7 days of receiving the notice — unless the court sets a different time for the notice or
the objection.”
E. Admits three different types of public records and reports—The power of the hearsay exceptions
vary according to whether they are sought to be introduced in a criminal or civil case, and
according to which party seeks to introduce them.
1. Agency’s own activities—Allows admission of a government agency’s records of its own
activities, if offered to show that those activities occurred.
a. Admissible in both civil and criminal cases.
2. Matters observed under duty—Written records of observations made by public officials
admissible if:
a. The observation was made in the line of duty, and
b. The official had a duty to report those observations
c. Admissible in civil cases, but not in criminal cases if police officers and other law
enforcement personnel observed the matter.
i. Side note: Forbidding criminal defendants the right to use evidence in
criminal cases is controversial and arguably unconstitutional.
3. Investigative reports—Allows the admission of factual findings resulting from legally
authorized investigations, except when used against a criminal defendant.
a. Admissible by any party in a civil case and by a defendant in criminal cases.
F. Other law enforcement personnel—Courts have varied interpretations to what this means.
Observations by laboratory technicians working in government laboratories (i.e. the results of
substance analysis performed by a police department chemist) have sometimes been excluded
under this provision. However, the risk of unreliability that is the basis for the exclusion for
police might not be great, so some courts would accept it.
G. Use of other exceptions—It is not clear whether a report that would otherwise come within
Subsection (B) or (C), and that is excluded under those provisions because it is used against a
criminal defendant, may nonetheless be admitted under some other exception.
1. Minority view—Some courts flatly reject all such evidence
2. Majority view—Probably the majority would allow a report of direct observations or
investigations to be admitted against D at least where the maker of the report is produced in
court and is subject to cross.
H. Other Issues—these arise in both a civil and criminal context
1. Evaluations—Subsection (C) refers to the “factual findings” in investigative reports. But so
long as an investigative report includes factual findings, other “evaluative” parts of the
report—opinions, evaluations, and conclusions—may also be admitted.
a. Beech Aircraft v. Rainey (1988, pg. Y96)—Airplane crash killed two pilots, so family
sued manufacturer, alleging problem with fuel control system. Ds said it was pilot
error. JAG report had sections for finding of facts, opinions, and recommendations,

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and opinion part said it was probably due to pilot error. Portions of investigatory
reports otherwise admissible under 803(8)(C) are not inadmissible merely because
they state a conclusion or opinion. As long as the conclusion is based on a factual
investigation and satisfies the Rule’s trustworthiness requirement, it should be
admissible along with other portions of the report.
2. Multiple hearsay—A government report must be carefully scrutinized for multiple hearsay
problems:
a. Report by one government agent to another (each had duty to report)—If
government employee A tells facts to employee B, who writes them up into a
government report, A’s statements will be admissible if A had a duty to give the
report to B.
b. Statement by one without duty to talk—If the information is supplied by one who
does not work for the government and does not have a duty to give the report, the
resulting written report may not include the quoted statement, unless the quoted
statement independently falls within some exception.
3. Trustworthiness—If the sources of information or other circumstances indicate lack of
trustworthiness, the judge can keep the report out of evidence. This is probably the case
with respect to reports falling under any of the three subsections.
a. Advisory committee notes: Tilts toward admissibility but there is an exception in
case you need it.

ANCIENT DOCUMENTS—RULE 803(16)

A. “A statement in a document that is at least 20 years old and whose authenticity is established.”
1. Broad reach—Admits in a lot of evidence, but admissibility does not guarantee that a trier of
fact will believe an item of evidence.

MISCELLANEOUS EXCEPTIONS
A. A number of other exceptions cover records that are usually highly reliable. They include records
of religious organizations (for issues of personal or family history), marriage and baptismal
certificates, family records such as tombstones or engravings on urns, market quotations and
other information from generally used published material, and learned treaties.
B. Records of Vital Statistics—Rule 803(9)
1. “A record of a birth, death, or marriage, if reported to a public office in accordance with a
legal duty.”
C. Records of Religious Organizations—Rule 803(11)
1. “A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or
marriage, or similar facts of personal or family history, contained in a regularly kept record of
a religious organization.”
D. Marriage, Baptismal, and Similar Certificates—Rule 803(12)
1. “A statement of fact contained in a certificate:
a. (A) made by a person who is authorized by a religious organization or by law to
perform the act certified;
b. (B) attesting that the person performed a marriage or similar ceremony or
administered a sacrament; and
c. (C) purporting to have been issued at the time of the act or within a reasonable time
after it.”
E. Family Records—Rule 803(13)
1. “A statement of fact about personal or family history contained in a family record, such as a
Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn
or burial marker.”
F. Records of documents affecting an interest in property—Rule 803(14)
1. “The record of a document that purports to establish or affect an interest in property if:

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a. (A) the record is admitted to prove the content of the original recorded document,
along with its signing and its delivery by each person who purports to have signed it;
b. (B) the record is kept in a public office; and
c. (C) a statute authorizes recording documents of that kind in that office.”
G. Statements in documents affecting an interest in property—Rule 803(15)
1. “A statement contained in a document that purports to establish or affect an interest in
property if the matter stated was relevant to the document’s purpose — unless later dealings
with the property are inconsistent with the truth of the statement or the purport of the
document.”
H. Market reports, commercial publications—Rule 803(17)
1. “Market quotations, lists, directories, or other compilations that are generally relied on by
the public or by persons in particular occupations.”
I. Learned treatises—Rule 803(18)
1. “A statement contained in a treatise, periodical, or pamphlet if:
a. (A) the statement is called to the attention of an expert witness on cross-
examination or relied on by the expert on direct examination; and
b. (B) the publication is established as a reliable authority by the expert’s admission or
testimony, by another expert’s testimony, or by judicial notice.
2. If admitted, the statement may be read into evidence but not received as an exhibit.”
J. Reputation concerning personal or family history—Rule 803(19)
1. “A reputation among a person’s family by blood, adoption, or marriage — or among a
person’s associates or in the community — concerning the person’s birth, adoption,
legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage,
or similar facts of personal or family history.”
K. Reputation concerning boundaries or general history—Rule 803(20)
1. “A reputation in a community — arising before the controversy — concerning boundaries of
land in the community or customs that affect the land, or concerning general historical
events important to that community, state, or nation.”
L. Reputation as to character—Rule 803(21)
1. “A reputation among a person’s associates or in the community concerning the person’s
character.”
M. Judgment of previous conviction—Rule 803(22)
1. “Evidence of a final judgment of conviction if:
a. (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere
plea;
b. (B) the conviction was for a crime punishable by death or by imprisonment for more
than a year;
c. (C) the evidence is admitted to prove any fact essential to the judgment; and
d. (D) when offered by the prosecutor in a criminal case for a purpose other than
impeachment, the judgment was against the defendant.
N. Judgment as to personal, family or general history, or boundaries. Rule 803 (23)
1. “A judgment that is admitted to prove a matter of personal, family, or general history, or
boundaries, if the matter:
a. (A) was essential to the judgment; and
b. (B) could be proved by evidence of reputation.

HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE

RULE 804(A)—DEFINITION OF UNAVAILABILITY

A. "(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the
declarant:

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1. (1) is exempted from testifying about the subject matter of the declarant’s statement
because the court rules that a privilege applies;
2. (2) refuses to testify about the subject matter despite a court order to do so;
3. (3) testifies to not remembering the subject matter;
4. (4) cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness; or
5. (5) is absent from the trial or hearing and the statement’s proponent has not been able, by
process or other reasonable means, to procure:
a. (A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
b. (B) the declarant’s attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4).
6. But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully
caused the declarant’s unavailability as a witness in order to prevent the declarant from
attending or testifying.”
B. Justifications
1. Generally less reliable than the exceptions where declarant could have been available, but
not forced to testify. These exceptions are tolerated because:
a. They involve situations where the out of court statements have some claim to
reliability
b. There is a strong need for the information they contain.
C. Bias towards admissibility—but will never be found to be admissible if the proponent had
something to do with them becoming inadmissible.

FORMER TESTIMONY— RULE 804(B)(1)

A. “(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
1. (1) Former Testimony. Testimony that:
a. (A) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
b. (B) 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 it by direct, cross-, or
redirect examination.”
B. Requirements—Available to prove truth of matter asserted
1. Unavailability
2. Testimony given at a hearing or deposition
3. Other party was present at earlier testimony
a. If civil case, can be predecessor in interest
4. Other party had opportunity and similar motive to develop the testimony, regardless of
whether it actually did cross.
5. PERFECT EXAMPLE: Mistrial
C. Ability to cross
1. United States v. Salerno (1992, pg. B84)—Two people testified before grand jury under
grant of immunity and repeatedly exculpated the Ds. At trial they claimed right to self-
incrimination and gov’t brought witnesses to say their grand jury claims were false. Ds
wanted to counter based on former testimony. Not admissible because US didn’t have
“similar motive” in the grand jury testimony.

STATEMENT UNDER BELIEF OF IMPENDING DEATH—RULE 804(B)(2)

A. “In a prosecution for homicide or in a civil case, a statement that the declarant, while believing
the declarant’s death to be imminent, made about its cause or circumstances.”

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B. Requirements—Admissible for believe in what caused the death
1. Unavailability
2. Belief in imminent death
3. If criminal case, must be homicide case
a. If civil case, can always use
4. Declaration relates to cause or circumstances of the declarant’s death
C. Belief in imminent death—means that you actually have to believe you are going to die, not just
very sick.
1. Shepard v. US (1933, pg. B89)—D accused of poisoning his wife. D was allowed to bring in
hearsay testimony about wife’s present state of mind to show she was suicidal. Wife
rebutted by entering testimony saying she believed her husband tried to kill her. Fear or
even belief that illness will end in death will not avail of itself to make a dying declaration.
There must be a settled hopeless expectation that death is near at hand and what is said
must have been spoken in the hush of its impending presence.
2. Bubacock
D. Can be in writing—However, if it is in writing, you will have to allow all other parts that ought to
be considered with it.
1. Rule 106—Remainder of or Related Writings or Recorded Statements
a. “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.”

STATEMENT AGAINST INTEREST—RULE 804(B)(3)

E. “A statement that:
1. (A) a reasonable person in the declarant’s position would have made only if the person
believed it to be true because, when made, it was so contrary to the declarant’s proprietary
or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against
someone else or to expose the declarant to civil or criminal liability; and
2. (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it
is offered in a criminal case as one that tends to expose the declarant to criminal liability.”
F. Requirements
1. Unavailability
2. Statement is against declarant’s pecuniary, proprietary, or penal interest at the time it was
made.
a. Test: A reasonable person in the declarant’s position would not have made the
statement unless believing it to be true.
b. If statement is penal and offered to exculpate the accused, it needs:
i. Corroborating circumstances that clearly indicate the trustworthiness.
a. (No similar requirement if offered against accused).
3. Declarant had first hand knowledge
G. Different from party admissions—although similar, the declarant’s unavailability is not a
requirement for use of admissions. For statements against interest, the declarant need not be a
party nor does it matter in whose favor the statement is introduced.
H. Objective standard—Although the language of the rule is slightly ambiguous because it refers to
a reasonable person, but also to someone in the declarant’s position, courts use an objective test
and ask whether a statement would have seemed risky to a reasonable person, rather than to
the declarant.
I. Collateral Statements—If the statement includes a disserving part but also a self-serving part, the
court will try to excise the self-serving part. If the statement has both a disserving and a neutral

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part, the court will probably let in the whole statement. Also relevant whether the testimony
was to the police, or to a friend in determining if it is self-serving.
1. Williamson v. US (1994, pg. B90)—Harris found with cocaine. He said he belonged to D but
that he was supposed to deliver it. He didn’t want to record story or sign it because he was
afraid of D. Harris refused to testify at D’s trial. Non-self-inculpatory portions of a declarant’s
statement cannot be admitted under the statement against interest rationale. (Parse it into
separate statements and ask to each statement as to whether it is against their interest.)
One of the most effective ways to lie is to mix falsehood with truth, especially truth that
seems particularly persuasive because of its self-inculpatory nature. Narrow view
a. Prof thinks this is very narrow now. Almost anything that is not self-inculpatory is
kept out. But he also says most courts haven’t followed and have instead gone with
Advisory Committee approach.
b. Kennedy’s concurrence—First determine whether the declarant’s statement
contained a fact against penal interest. If so, court should admit all statements
related to the precise statement against penal interest, subject to two limits.
Exclude a collateral statement that is so self serving as to render it unreliable. In
addition, in cases where the statement was made under circumstances where it is
likely that the declarant had significant motivation to obtain favorable treatment,
such as gov’t offered leniency, the entire statement should be inadmissible.
2. US v. Ebron (B98) statement to friend, overreads Williamson, admits it entirely, circuit courts
basically ignore it
3. Donnelly v. US (SCOTUS 1913 B103) – Holmes dissent is now the law, confession that he
committed murder is very much against his own interest.
4. Can be in writing—However, if it is in writing, you will have to allow all other parts that
ought to be considered with it.
a. Rule 106—Remainder of or Related Writings or Recorded Statements
i. “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.”
J. Constitutional issues—When the prosecution tries to introduce a third party’s declaration to
inculpate the accused, the 6th amendment Confrontation Clause rights of the accused may help
him keep the statement out. For example, a statement exposing the declarant to criminal
liability, given while the declarant is under police investigation, will always be excluded from
being used against the accused, if the declarant doesn’t take the stand (and undergo cross on
behalf of the accused) at the accused’s trial.
1. Crawford v. Washington
2. Use by accused—Where it is the accused who seeks to exculpate himself by use of third
person’s declaration against interest, the accused may be able to rely on the Due Process
Clause and the Sixth Amendment right to compulsory process to get the statement into
evidence.

STATEMENT OF PERSONAL OR FAMILY HISTORY —RULE 804(B)(4)

A. “A statement about:
1. (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship
by blood, adoption, or marriage, or similar facts of personal or family history, even though
the declarant had no way of acquiring personal knowledge about that fact; or
2. (B) another person concerning any of these facts, as well as death, if the declarant was
related to the person by blood, adoption, or marriage or was so intimately associated with
the person’s family that the declarant’s information is likely to be accurate..”
B. Requirements

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1. Unavailable
2. Person whose history the statement concerns, or relative of such a person
3. No apparent motive to falsify?

FORFEITURE BY WRONGDOING – RULE 804(B)(6)

A. “Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A
statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing
— the declarant’s unavailability as a witness, and did so intending that result.”
B. Overview
1. A party forfeits the right to exclude a hearsay statement if the party was involved in an act
that wrongfully kept the declarant from being a witness at trial.
2. Discourages that type of wrongful conduct by removing the hearsay bar from any
statements ever made by a person whom a party has rendered unavailable.
a. Not based on whether those statements will be reliable, so it can only be used to
introduce those statements against a party whose conduct the rule was meant to
deter—the party responsible for the absence of the witness.
3. Mastroangelo – SDNY, Brooklyn bridge example “Don’t expect court to hear you- you
already had your say.”

RESIDUAL EXCEPTIONS

RULE 807—RESIDUAL EXCEPTION

A. “(a) In General. Under the following circumstances, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not specifically covered by a hearsay exception in
Rule 803 or 804:
1. (1) the statement has equivalent circumstantial guarantees of trustworthiness;
2. (2) it is offered as evidence of a material fact;
3. (3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
4. (4) admitting it will best serve the purposes of these rules and the interests of justice.
B. (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to offer the statement and its particulars, including
the declarant’s name and address, so that the party has a fair opportunity to meet it.”
C. Requirements
1. Circumstantial guarantees of trustworthiness such as:
a. Oath
b. Time lapse
c. Motive
d. First hand knowledge
e. Written v. Oral
f. Recanted statement
2. Material fact (necessary)
3. More probative than other evidence reasonably available
4. Interests of justice
5. Notice
D. Near Miss—when something comes very close to an exception, but doesn’t fall within it (the
newspaper is 19.5 years old) some courts will say it is a near miss and won’t allow it because
Congress drew the lines intentionally where they did. Prof thinks this is bad: just because it isn’t
per se admissible doesn’t mean it is per se inadmissible.

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1. Instead, look to whether there is any other reason to think it was less trustworthy, and
should still let it in under 807.
2. Blackburn- Optician case B109

RULE 805—HEARSAY WITHIN HEARSAY

A. “Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.”
B. Business records exception—be wary of hearsay within hearsay for business record exceptions.
C. Rawlings v. Oklahoma (Criminal Appeals for Oklahoma 1987 B119)

RULE 806—ATTACKING AND SUPPORTING CREDIBILITY OF A DECLARANT

D. “When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has
been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by
any evidence that would be admissible for those purposes if the declarant had testified as a
witness. The court may admit evidence of the declarant’s inconsistent statement or conduct,
regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.
If the party against whom the statement was admitted calls the declarant as a witness, the party
may examine the declarant on the statement as if on cross-examination.”
E. Overview
1. Methods are mostly the same as those permitted when a witness testifies in person during
trial:
a. Prior convictions
b. Bias
c. Sensory or Mental Perception
d. Character for Untruthfulness
i. Rebuttal for Truthfulness
2. Differences
a. Prior Bad Acts
i. When testifying in person, inquiry is permitted on cross about bad acts
that did not lead to criminal conviction. That isn’t possible here because
you can’t cross the declarant. However, if the declarant is available and
can be a witness, then impeachment with prior bad acts would be possible.
b. Prior Inconsistent Statements
i. For normal impeachment, these are only admitted if witness has time
during the trial to explain or deny them. Here, they can be admitted
regardless.
ii. Also, no requirement in the literal words of the rule that the additional
statement have been made earlier than the time of the already introduced
hearsay statement.
3. US v. Wal (3rd Cir. 1989 B121) – where inconsistency is not demonstrated, impeachment
evidence isproperly rejected.

CONFRONTATION CLAUSE

OVERVIEW
F. The Confrontation Clause of the Sixth 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.
G. Historically—Confrontation clause test and Hearsay test merged.

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1. Mattox 1897 – Former testimony ocnstituitonally admissible, constitutional standard,
unavailable and option to cross before, so constitution, always produce available.
2. Ohio v. Roberts (1980, pg. Y188)—Held that confrontation clause does not bar admission of
an unavailable witness’s statement against a criminal defendant if the statement bears
“adequate indicia of reliability.” To meet that test, the evidence must either fall within a
firmly rooted hearsay exception, or bear particularized guarantees of trustworthiness.
a. Side note: also had requirement for producing the witness, but in a later case court
said that the production requirement was only for former testimony, so the test in
Ohio became entirely merged to look like the FRE.
3. US v. Inadi (1986) Former testimony is second best, show the witness is unavailable prior
testimony case, co-conspirator testimony, better than in-court testimony, trust what he says
outside more than inside, LIMITED to former testimony- produce unavailable witnesses in
former testimony cases, otherwise have to show reliability. Brought FRE and Confrontation
Clause into nearly complete alignment.
4. White v. Illinois- Excited utterance, medical statement, children, applies Roberts and Inadi,
Thomas and Scalia start to object.
5. Lily v. Virgnia- station house declarant against interest, VA has broad exception,
constitutionally, admissible, beginning of the divide.
H. Now, the test is whether it was “testimonial.”
1. Crawford v. Washington (2004, pg. B180)—D stabbed a man who allegedly tried to rape his
wife. At trial, state played wife’s tape-recorded statement to police, even though D had no
opportunity to cross examine his wife about them (marital privilege). The Sixth Amendment
says “witnesses…against the accused,” which court holds to mean “bears testimony.” Not
going to completely define testimonial, but two things are definitely included: in-court
testimony or its functional equivalent, and statements made during interrogations.
Statements that are not testimonial will be allowed, but testimonial statements of witnesses
absent from trial will be admitted only where defendant has had a prior opportunity to cross
examine.
a. Reliability is no longer a factor in the decision to admit because “Where testimonial
statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the constitution actually prescribes:
confrontation.”
b. 9 factor test that developed is tossed out. Not going to admit testimonial statement
prior to examination.
c. Intention to create testimony for trial, then it doesn’t count.
d. Perhaps still have exception for dying declarations.
I. Where it is not testimonial, there is no right to confront
1. Davis v. Washington (2006, pg. B194)—Consolidated cases, but with Davis, domestic
disturbance where wife called 911 operator, who asked her questions about what happened
to her and about who did it to her. Hammon case, police responded to report of domestic
violence, had Hammon sign a battery affidavit. In both, wife doesn’t testify, D’s say violation
of Confrontation. Question is whether this is “testimonial.” Statements are non-testimonial
when made in the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution. Therefore,
Davis’ 911 call is not testimonial, but Hammon’s is testimonial.
a. “Testimony” marks the core, as well as the perimeter, of the confrontation clause.
b. Primary purpose test- to meet an ongoing investigation
2. Michigan v. Bryant (2011 B202) Radio dispatch, man shot, gas station, tells them Rick shot
him through the door, dies after information was corroborated.

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a. Primary purpose test- things are reliable when excited utterance, hearsay and
reliability are kind of back in play.
b. Sotomayor, Alito, Roberts, Breyer, Kennedy
c. Thomas Scalia Ginsburg- Why are we discussing hearsay rules?
3. Ohio v. Clark (2015 B212) Alito opinion, involves child, statement to teacher, hearsay that
person abused me.
a. Alito- primary purpose, dying declaration, suggests criminal case where child
testimony, do you need state action? Mandatory reporter. Neither child nor teacher
had primary purpose of testimonial. , statements by young children
b. Scalia/Ginsburg concurrence- just look at the purpose of the declarant
J. Unanswered questions:
1. Not sure if it requires state action (if you have to be talking to police for it to be testimonial).
Dicta in Giles (B228) suggests this.
2. Green v. Georgia (SCOTUS, 1979 B229) – Violation of Due Process to exclude highly relevant
testimony to a critical issue in the punishment phase of the trial, substantial reasons for
assuming reliability, spontaneous statement to close friend, no ulterior motive.
K. Good things from Crawford Revolution:
1. Stationhouse confessions are inadmissible
2. No more 9 part tests
3. Grand jury testimony is not allowed
4. Plea guilty, derived against the other, not allowed

TESTIMONIAL STATEMENTS
A. Overview
1. Rough Definition—The rough meaning is “bearing testimony. The idea is that the declarant
has some idea thta the statement will be or may be used in a serious legal proceeding, such
as a criminal investigation. Therefore, a casual, offhand remark to a friend or acquaintance
who happens to be standing near the declarant would typically not be testimonial.
a. In the case of a police interrogation, a testimonial statement is one where the
primary purpose of the interrogation is to “establish or prove past events
potentially relevant to later criminal prosecution.”
b. Examples of Testimonial Statements:
i. Prior testimony at a preliminary hearing
ii. Prior testimony before a grand jury
iii. Testimony at a former trial (whether of present D or of someone else)
iv. An affidavit issued as part of a law-enforcement proceeding
v. Statements made during the course of police interrogations, including
interviews by police at crime scenes, as long as the focus of the
interrogation was on investigating a completed crime, not on managing a
present emergency.
c. Examples of Non-Testimonial Statements:
i. Statements by a co-conspirator during the course of the conspiracy, and in
furtherance of it
ii. Excited utterances, spoken to a friend or relative who happen to be
nearby, or spoken to a 911 operator.
iii. Present sense impressions, spoken to a friend or relative who happens to
be nearby.
iv. State of mind statements, spoken to a friend or relative who happens to be
nearby.
v. Dying declarations, spoken to a friend or relative, and not inteded to be
used in an investigation or prosecution.

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B. Rule for Testimonial Statements—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 time of the
accused’s trial. There are two scenarios where the Crawford bright line rule is likely to apply:
1. Police interrogations—The situation most likely implicated in Crawford. Where W is
interrogated by police, whether under some sort of suspicion or not, as long as police are
focused on finding out “what happened” with a view toward solving the case, rather than to
deal with a present emergency, it will not be admitted.
a. Davis v. Washington
2. Grand jury testimony—If declarant’s statement is used in grand jury testimony and then the
declarant refuses to testify, it will not be admitted.
C. Rule for Non-Testimonial Statements—The confrontation clause plays no role where a non-
testimonial statement is concerned. Therefore, as a confrontation clause matter, the statement
can come into evidence regardless of whether it falls within a firmly rooted hearsay exception,
and no matter whether the circumstances surrounding its making suggest that it is reliable.
D. Exceptions to the Crawford Rule
1. Forfeiture by Wrongdoing
a. Since this exclusionary effect applies only when a hearsay declarant fails to testify
at the trial, it gives a criminal an incentive to prevent witnesses from testifying.
Therefore, Supreme Court has indicated that the rule of forfeiture by wrongdoing
would apply in this type of situation to withdraw constitutional protections from a
defendant who acted in this way.
i. However, the wrong must have been done with the purpose of preventing
the witness from testifying (the constitutional requirement looks like the
FRE).
a. Giles v. California (2008, pg. B228)—D on trial for shooting his ex-
girlfriend, convicted, then Crawford passed when his appeal was
pending. Court said he had shot the witness, so he shouldn’t be
allowed to prevent her statements from being entered. Forfeiture
by wrongdoing has to have been done to prevent the witness from
testifying, so it couldn’t have been appropriate here because he
was on trial for killing his girlfriend.
2. Testimonial statements used for purposes other than establishing the truth of the matter
asserted.
3. Left open the possibility that dying declarations might constitute an exception on “historical
grounds.”
E. Perspective—It is interesting to see how the definition of what is testimony has shifted.
1. Crawford—said it was the declarant’s perspective. Whether the person giving the statement
thought that it would be used in a future criminal proceeding.
2. Davis—said it was the objective police officer’s perspective. Were they going there with the
intention of solving a crime, or was it just to respond to an emergency?
F. Flowchart
1. Does the confrontation clause apply?
a. Is it a criminal case?
b. Is it hearsay?
i. Is there an exception?
2. Is there a right to confront?
a. Is the statement testimonial?
i. Is it made to police officer?
a. Did police do it with intention to gather evidence, or to respond
to an emergency? (police intent)
ii. Is it made to another person (not police officer)?

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a. Does the witness intend to give testimony? (witness intent)
b. Is the statement non-testimonial?
i. If yes, no right to confront.
3. Is there a violation of the confrontation right?
a. Is the witness unavailable?
i. Did the D make the witness unavailable to keep her from testifying?
b. Did D have a chance to cross when the statement was made?

PRIVILEGES

RULE 501—GENERAL RULE FOR PRIVILEGES

A. “The common law — as interpreted by United States courts in the light of reason and experience
— governs a claim of privilege unless any of the following provides otherwise:
1. the United States Constitution;
2. a federal statute; or
3. rules prescribed by the Supreme Court.
B. But in a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of decision.”
C. Overview
1. Not constitutionally based—Most privileges (except right against self incrimination) are not
constitutionally based, so states can come with their own.
2. Federal cases—Normally, federal judges will decide what privileges to recognize based on
prior federal case law and the court’s own judgment.
a. No FRE rule for each privilege because of Watergate scandal.
3. Diversity cases—However, in diversity cases, the existence and scope of a privilege will be
decided by the law of the state whose substantive law is being followed.
D. Who may assert—Generally, the privilege belongs to the person whose interest or relationship is
intended to be fostered by that privilege. Therefore, he is the only one who may assert it.
E. Third parties—Most privileges protect communications between two parties to a specified
relationship. If a third party somehow learns of the conversation, the privilege may be found to
have been waived.
1. However, most courts now hold that the communication is protected if it was intercepted,
as long as the interception was not reasonably to be anticipated.
F. When analyzing privileges
1. What is the scope?
a. What is covered by the privilege
2. Who holds the privilege?
3. Are there exceptions?
4. Can you waive it?
5. Do we want to encourage this sort of communication (Jaffee)?

MARITAL PRIVILEGES
A. Two Privileges—in most states, two distinct privileges protect the marital relationship:
1. Adverse testimony—gives a spouse complete protection from adverse testimony by the
other spouse (includes acts and statements).
a. Marital status—Applies to statements before the marriage took place, but only if
the parties are still married at the time of trial.

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b. Criminal only—Most jurisdictions (and federal) grant the this privilege only in
criminal cases.
c. Special marriage—If D is worried about his girlfriend’s being required to disclose
something she has heard or seen, he may marry her the night before the trial and
therefore keep her off the stand.
d. Who holds—Courts disagree:
i. Federal courts say the privilege belongs only to the testifying spouse, not
the party spouse. Thus, in a federal criminal trial, D cannot block his wife’s
testimony, only the witness spouse may assert or waive the right.
a. Trammel v. US (1980, pg. B253)—Husband and wife co
conspirators in transporting heroin. Court caught wife, she
agreed to testify against husband for immunity. Court overturns
prior rule which said D could compel her not to testify about acts.
Our consideration of the foundations for the privilege and its
history satisfy us that the “rule and experience” no longer justify
so sweeping a rule as that found acceptable by the court
previously. We conclude that the existing rule should be modified
so that the witness-spouse along has the privilege to refuse to
testify adversely, or to waive that right.
ii. Of those states recognizing the adverse testimony privilege, a slight
majority give the privilege to the party (the defendant); the rest follow
federal approach of giving privilege to the testifying spouse.
2. Confidential communications—protects only against the disclosure of confidential
communications made by one spouse to the other during marriage.
a. Marital status—The parties to the communication must have been married at the
time of the communication. If so, the privilege applies even though they have
gotten divorced by the time of trial.
b. Who holds—In most states, either spouse may assert the privilege (but a few grant
it only to the spouse who made the communication).
c. “Communication” required—Therefore, an act that is not intended to convey
information is not covered.
d. Third parties—If someone overhears the communication, they may testify.
e. Exceptions
i. Crimes against other spouse, or against the children of either
ii. Suit between spouses
iii. Facilitating crime
f. Lutwak v. US (1953, pg. B248)—Ds got married just so that they could come to the
United States. Whether common law privilege applies. When the good faith of the
marital relation is pertinent and it is made to appear to the trial court that the
relationship was entered into with no intention of the parties to live together as
husband and wife, but only for the purpose of using the marriage ceremony in a
scheme to defraud, the “spouses” are competent to testify against each other.
Therefore, we decline to apply the common law allowing such privilege.
B. Uniform Rules of Evidence: Husband and Wife Privilege—Rule 504
1. A) Confidential communication. A communication is confidential if it is made privately by an
individual to the individual’s spouse and is not intended for disclosure to any other person.
2. B) marital communications. An individual has privilege to refuse to testify and to prevent the
individual’s spouse or former spouse from testifying as to any confidential communication
made by the individual to the spouse during their marriage. The privilege may be waived only
by the individual holding the privilege or by the holder’s guardian or conservator, or the
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3. C) Spousal testimony in criminal proceeding. The spouse of an accused in a criminal
proceeding ahs a privilege to refuse to testify against the accused spouse.
4. D) Exceptions. There is no privilege under this rule:
a. 1) in any civil proceeding in which the spouses are adverse parties
b. 2) in any criminal proceeding in which an unrefuted showing is made that the
spouses acted jointly in the commission of the crime charged
c. 3) In any proceeding in which one spouse is charged with a crime or tort against the
person or property of the other, a minor child of either, an individual residing in the
household of either, or a third person if the crime or tort is committed in the course
of committing a crime or tort against the other spouse, a minor child of either
spouse, or an individual residing in the household of either spouse, or
d. 4) in any other proceeding in the discretion of the court, if the interests of a minor
child of either spouse may be adversely affected by invocation of the privilege.
C. Flowchart
1. Is the statement a communication?
a. Is it a statement by the spouse (or a third party)?
i. Where they married when the communication took place?
a. Was it a bad faith marriage (Lutwak)?
b. Was the communication made privately and not intended for disclosure to any
other person?
2. Is the statement an act?
a. Is it a criminal proceeding?
b. Are they still married?
c. Does the witness spouse consent to testify?
3. Is there an exception?
a. Is it a civil proceeding where spouses are adverse parties?
b. Is it a criminal proceeding where they acted jointly in commission of the crime
charged?
c. Is one spouse charged with a crime or tort against the other, a child, a person in the
house, or a third person…?
4. Did the holder of the privilege waive it by voluntary disclosure?
a. Is the disclosure itself privileged?

Joint
Pre Does it participant
Rationale Cases Holder Scope marriage survive exception
events? divorce (abuse and
lose)
Facilitated marital Civil Communicator Confidential No Yes. Yes
communications— and (Federal rules marital
Communications husband and wife criminal under commun-
privilege should be able to Montomery ication
speak freely says it belongs
to both)
Promote marital Only Witness spouse All— Yes No Yes
harmony to avoid criminal commun-
Adverse unseemly ication, acts,
Testimony spectacle of non
husband v. wife confidential,
whatever.

Communications Adverse Testimony/Trammel

Civil/Criminal Civil + Criminal Criminal only
Holder Communicator Witness-spouse
Scope Confidential communications All

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Pre-marriage No communications Yes
Survive divorce Yes No
Joint Criminal exception Yes Yes

OTHER PRIVILEGES
A. Psychotherapist—Federal exception recognized for the confidential communications between a
patient and their psychotherapist.
1. Jaffee v. Redmond (1996, pg. B259)—D was police officer that shot somebody. That
person’s estate is now suing for wrongful death. After the shooting, D saw a psychotherapist
50 times. P wants to get those records, D claims privilege. “Reason and experience” say that
a privilege protection confidential communications between a psychotherapist and her
patient promotes sufficiently important interests to outweigh the need for probative
interests, so there is a privilege.

FUNCTIONS OF THE JUDGE AND JURY

QUESTIONS OF ADMISSIBILITY

RULE 104—PRELIMINARY QUESTIONS

B. “(a) In General. The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by
evidence rules, except those on privilege.
C. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist. The court
may admit the proposed evidence on the condition that the proof be introduced later.”
D. Overview
1. Evidence is often conditionally admissible—that it’s admissibility depends upon the
existence of some other fact. Judges can only admit conditionally admissible evidence if the
proponent has already produced the other fact, or if the proponent promises to produce
that fact.
2. 104(a)—General admissibility—If the evidentiary issue raises policy concerns that go beyond
relevance, a judge should admit the evidence only if she finds that the preliminary
requirements have been satisfied to a preponderance of the evidence.
a. Bourjaily v. US (1987, pg. B275)—D, when speaking to undercover cop, arranged to
buy drugs, then stated that it had a “friend” that it was working with. All of this
evidence is hearsay through the undercover cop. For the evidence to be admissible,
they had to find that there was a conspiracy (admissibility of cop’s testimony
conditionally based on existence of a contextual fact.) This is a question for the
judge under 104 and must be determined to a preponderance of the evidence
standard regardless of whether it is criminal or civil case. Question was whether
the judge could use the hearsay statements (the conditionally admissible evidence)
to determine if the contextual fact (the conspiracy) existed. The bootstrapping rule
previously was read to mean that a court could not consider inadmissible evidence
to determine whether a fact was true, but FRE eliminated that rule. In making its
determinations, the judge is not bound by the rules of evidence, except those with
respect to privileges, so it can consider the hearsay statements to determine if there
is a conspiracy.

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i. See Rule 801(d)(2) which modified this ruling to say that a judge could
consider the hearsay evidence, but that there must be some other
evidence as well.
3. 104(b)—Relevancy only—If the evidentiary issue is one of relevance only, a judge should
admit the evidence if a reasonable juror could find the evidence relevant. Therefore, the
jury makes the determination about whether the fact actually occurred.
a. Huddleston v. US (1988, pg B280)—D charged with selling stolen goods. His
previous acts related to selling stolen goods was admitted under 404(b) to show
knowledge that the goods were stolen. D says that these acts shouldn’t have been
admitted unless the trial judge found to a preponderance of the evidence that he
had actually committed the prior acts. Court disagrees. Court may admit evidence
if there is “sufficient effort to support a finding” by the jury that the defendant
committed the similar act.

RULE 1008—FUNCTIONS OF COURT AND JURY FOR CONTENTS OF WRITINGS

A. “Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for
admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or
1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about
whether:
1. (a) an asserted writing, recording, or photograph ever existed;
2. (b) another one produced at the trial or hearing is the original; or
3. (c) other evidence of content accurately reflects the content.”
B. Overview
1. Generally, determining whether something fits the “Best Evidence Rule,” it is a question for
the judge under 104(a). However, there are some instances when it should go to a jury, and
these are when it only goes to relevance: existence, contents, or originality of the document.
If the jury finds that these aren’t met, they will simply not consider the conditional fact, so it
only goes to relevance.

AUTHENTICATION

RULE 901(A)—REQUIREMENTS OF AUTHENTICATION OR IDENTIFICATION

A. “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the proponent claims
it is.”
B. Overview
1. 104(b)—This is basically a 104(b) question since authentication only goes to relevance, it is
fine for it to go to the jury on a “sufficient to support a finding” charge.
2. Examples—Some examples of sufficient authorization, as listed in the rules:
a. Testimony
b. Non-expert opinion on handwriting
c. Comparison by trier or expert witness
d. Distinctive characteristics and the like
e. Voice identification
f. Telephone conversations
g. Public records
h. Ancient documents
i. Process or systems
j. Methods provided by statute or rule
C. First State Bank of Denton (B300)- phone company is usually accurate

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RULE 902—SELF AUTHENTICATION
A. “The following items of evidence are self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted:
1. (1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
a. (A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the former
Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision
of any of these entities; or a department, agency, or officer of any entity named
above; and
b. (B) a signature purporting to be an execution or attestation.
2. (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A
document that bears no seal if:
a. (A) it bears the signature of an officer or employee of an entity named in Rule
902(1)(A); and
b. (B) another public officer who has a seal and official duties within that same entity
certifies under seal — or its equivalent — that the signer has the official capacity
and that the signature is genuine.
3. (3) Foreign Public Documents. A document that purports to be signed or attested by a
person who is authorized by a foreign country’s law to do so. The document must be
accompanied by a final certification that certifies the genuineness of the signature and
official position of the signer or attester — or of any foreign official whose certificate of
genuineness relates to the signature or attestation or is in a chain of certificates of
genuineness relating to the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document’s authenticity and accuracy, the court
may, for good cause, either:
a. (A) order that it be treated as presumptively authentic without final certification; or
b. (B) allow it to be evidenced by an attested summary with or without final
certification.
4. (4) Certified Copies of Public Records. A copy of an official record — or a copy of a document
that was recorded or filed in a public office as authorized by law — if the copy is certified as
correct by:
a. (A) the custodian or another person authorized to make the certification; or
b. (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule
prescribed by the Supreme Court.
5. (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a
public authority.
6. (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
7. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been
affixed in the course of business and indicating origin, ownership, or control.
8. (8) Acknowledged Documents. A document accompanied by a certificate of
acknowledgment that is lawfully executed by a notary public or another officer who is
authorized to take acknowledgments.
9. (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and
related documents, to the extent allowed by general commercial law.
10. (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a
federal statute declares to be presumptively or prima facie genuine or authentic.
11. (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a
domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a
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statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent
must give an adverse party reasonable written notice of the intent to offer the record — and
must make the record and certification available for inspection — so that the party has a fair
opportunity to challenge them.
12. (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or
a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows:
the certification, rather than complying with a federal statute or Supreme Court rule, must
be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in
the country where the certification is signed. The proponent must also meet the notice
requirements of Rule 902(11).
B. Summary: These “walk themselves into evidence.”

RULE 903—SUBSCRIBING WITNESS’ TESTIMONY UNNECESSARY

“A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the
jurisdiction that governs its validity.”

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