- General

o HEARSAY STEPS
 Isolate the statement. Look for words like told, said, yelled, exclaimed,
screamed.
 Determine who is the declarant of the statement.
 Ask if there is an assertion.
 Determine: whether it is offered for truth or for limited purpose
 If for its truth, apply hearsay exception or exemption (go to step 5).
 If NOT for its truth, NOT hearsay.
o To impeach;
o Verbal acts;
o Effect on the listener.
 Apply the hearsay exceptions/exemption.
o 3 concepts of evidence: they reflect something that could be wrong with evidence
 Competence
 If a fact is incompetence [unreliable], it doesn’t come in
 Has to do with inherent reliability of info or witness
 Relevance
 Most important
 Has to do with the relationship between inferences that can be drawn
from the fact that you offered to the issue that are of consequence in
the case
 Materiality
 Fact that shouldn’t be admitted because it doesn’t prove any fact that
might make difference in the case.
o Waste of time
o Different ways to admit facts
 Testimonial fact
 Information jury gets through testimony of witnesses.
 Real proof
 Actual physical evidence.
 To introduce real proof, testimonial proof is essential.
o Exhibit can’t speak for itself, and someone needs to speak the
facts to show that the exhibit being offered into evidence is
something that is relevant to the case.
 For it to be relevant to the case, it has to be THE KNIFE,
rather than A KNIFE.
  Judicial notice
 Fact that is not subject to reasonable dispute.
o if such is the case, the judge will take notice of it without lawyer
actions
 no cross of witness to get accuracy of the fact, no
testimony, no need to create concern about accuracy of
the face.
o Stipulation
 When two sides agree as to certain facts, and if they agree as to the facts
[instead of having Ws to testify] they can stipulate whatever is necessary
 Two kinds exhibit [coke] stipulations
 Exhibit 1 for ID contains cocaine hydroflouride 44% pure
 Testimonial stipulation
o Instead of stipulating that content contains coke, parties
stipulate [agreement] what each person will testify to.
o Subject to connection
 Although a party has not laid all the foundation to admit something into
evidence, he wants to admit it now and will lay foundation later.
 When the foundation has been laid later, it will be admitted into
evidence.
o Motion in limine: motion to limit the questions/evidence to be asked/produced in trial
o A criminal defendant forfeits his Confrontation Clause rights if he causes the
unavailability of the declarant either through forfeiture by wrongdoing
o Rulings on Evidence (R103)
 Where a ruling admits evidence, a timely and specific objection must be made
to preserve the issue for appeal.
 If the answer has already been heard, a motion to strike is required.
 If a general objection (i.e., “I object”) is overruled, the issue is not
preserved for appeal. (so give reason for objection!)
 If error is not prejudicial to outcome: harmless error rule applies.
 The only time a reversal will result from the admission of evidence despite an
objection not being raised is when: plain error is found.
 An error that affects substantial rights of a party (serious mistake that
affects the verdict)
Sexual Conduct
- (Rule 412) USE OF PAST SEXUAL BEHAVIOR EVIDENCE AGAINST THE VICTIM
o NOTE- THIS PROTECTS THE VICTIM
o Rape Shield Law: In any civil or criminal proceeding involving alleged sexual misconduct,
evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and
other sexual history is EXCLUDED. Protects victim from being victimized again.
 Sexual behavior includes actual sexual physical conduct as well as the use of
contraceptives, fantasies, and any activities that imply sexual activity.

 Predisposition includes how a person dresses, lifestyle choices, and

speech.

 Predisposition evidence is INADMISSIBLE.

 EXCEPTIONS:

 In a CRIMINAL CASE, specific acts ARE ADMISSIBLE in the following

situations:
o PRIOR CONSENT WITH D: evidence of specific instances of a
victim’s sexual behavior with the DEFENDANT, (shows this time
there could be consent like before)
o Acts with others to show the source of semen, injury or other
physical evidence was from someone other than the defendant,
or (oftentimes tested)
o If exclusion of evidence would violate the defendant’s
constitutional rights
 This rule protects NOT ONLY the alleged victim in a particular case, but also
ANY witness who is an alleged victim of sexual misconduct
 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.
o NEW YORK
 CRIMINAL CASE- In a prosecution for rape, evidence of V’s sexual conduct is
INADMISSIBLE EXCEPTION FOR:
 Evidence of specific instances of V’s prior sex conduct with the accused;
 Evidence that V had been convicted of prostitution within 3 years of
alleged offense at issue; and
 Evidence that rebuts evidence introduced by the prosecution that the D
is the cause of pregnancy or disease of the V or source of semen found
in V.
 - (Rules 413–415) USE OF SPECIFIC ACT EVIDENCE AGAINST THE DEFENDANT
o NOTE- THESE RULES ARE USED AGAINST THE DEFENDANT
o In a CRIMINAL CASE in which the defendant is accused of child molestation or sexual
assault (FRE 413, 414), specific acts by the defendant are ADMISSIBLE and may be
considered as they bear on any relevant matter (including propensity to commit sex
offenses) (THINK OF THE NATURE OF THE VICTIM, FRAIL AS TO MIND OR BODY
WHEN COMPARED TO THE DEFENDANT)
o In a CIVIL CASE (FRE 415) in which a claim for damages or other relief is predicated on
a party’s alleged commission of sexual assault or child molestation: SPECIFIC ACTS
ADMISSABLE
 Evidence will NOT be admissible UNLESS:
 notice is given to the opposing party;
 the evidence is reviewed in camera by the judge; and
 the evidence alleges sexual misconduct.
o Note that these prior acts used in criminal cases need not have been tried nor happen
prior to this particular act as long as they satisfy “preponderance of the evidence.”
o EXAMPLE: In child molestation case, prosecution offers testimony of three young
boys that, within the two previous years, were sexually molested by Defendant.
Admissible. A balancing test (Rule 403) is used in civil cases (tort action for
monetary damages resulting from earlier criminal case), where evidence offered
to prove the sexual behavior or sexual predisposition of an alleged victim is
admissible if the probative value substantially outweighs the harm to the victim or
the danger of unfair prejudice to any party.

I.PRIVILEGES
A. Big Picture
1. Testimonial privileges exist for practicality and protection of certain societal relationships. If
society does not protect the sanctity of these relationships, people would be less candid with
their attorneys or forego medical attention. Or, if a person were forced to testify against a
spouse, the nature of that relationship changes for the worse forever.
2. NO DOCTOR-PATIENT PRIVILEGE in MBE unless told otherwise.
3.NY RARELY TESTS PRIVILEGES.
B. Privilege Generally (Rule 501)
1. Only CL privileges as interpreted by Fed courts are recognized
2. Absent contrary provision by the Constitution, Congress, or the U.S. Supreme Court, the law of
privilege is governed by the principles of common law, subject to the superseding state law.
Here’s how it works under the FRE.
a. In civil cases (diversity actions), the privilege of a witness is determined by state law (Erie
Doctrine).
 b. In federal question cases and criminal cases, the privilege of a witness is determined by
common law.
EXAMPLE: In a diversity action in federal court, the issue is whether the doctor-patient
privilege should be recognized. Although the doctor-patient privilege is not recognized at
common law (it’s statutory), a federal court would apply state substantive law (Erie
doctrine), and if the particular state had a doctor-patient privilege, the federal court would
apply it.

3. Privilege Under Common Law

a. Except as otherwise provided by the Constitution or statute or by these or other rules
promulgated by the State, no person has a privilege to:
(1) Refuse to be a witness
(2) Refuse to disclose a matter, w/ exceptions
(3) Refuse to disclose any object/writing w/ exceptions
b. [ATCM] There are four Confidential Communication privileges recognized in federal courts
and in all 50 states:
(1) Attorney-client
(2) Psycho therapist (not doctor)
(3) Clergy-repentent
(4) Husband-wife
c. Six key privilege issues
(1) protected relationship
(2) communication
(3) confidentiality
(4) holder
(5) waiver
(6) Exceptions
d. Attorney-Client Privilege
(1) The client is the holder of the privilege and may:
Refuse to disclose or prevent others from disclosing confidential communication made for
the purpose of seeking professional legal advice.

(2) Confidential Communications

(a) Communications are protected but observations are not
EXAMPLE: Client arrives at attorney’s office in blood-soaked clothing (NOT
privileged), confesses to killing victim (confession is privileged), and turns over
murder weapon (NOT privileged).

(b) Pre-existing documents: Not privileged.

(c) Work product: Privileged material prepared in anticipation of litigation by attorney
 1) Exception: If the party seeking admission can show: A substantial hardship + no
other way to obtain the evidence
(3) Third Parties: The attorney-client privilege extends to:
(a) Essential third parties: Anyone who is furthering some purpose of the relationship,
like attorney rep
(b) Attorney representatives: Person hired by attorney to assist in litigation
EXAMPLE: Accountant, investigator, translator, doctor, jury consultant, secretary,
stenographer.

1) Statements made to the doctor are not protected by the doctor-patient

privilege because: Treatment is not being sought.
He is seeing you b/c the attorney asked him to. Falls under Att-C relation

(c) Eavesdroppers: Unknown eavesdroppers DO NOT destroy the privilege. However:

A known or anticipated eavesdroppers destroys privilege (you know someone is
listening)

(4) Client includes any person (public officer, corporation, or association—public or private)
who is:
Seeking professional legal services or consulting w/ the possibility of obtaining legal
Services

(5) Lawyer includes: Any person authorized or reasonable believed by the C to be

authorized to engage in Practice of law.
(6) Holder: The privilege may be claimed by: The C, or the lawyer on C’s behalf
NOTE: The confidential communications privilege SURVIVES the client’s death and may be asserted by
the executor or the attorney.

(7) Waiver of Attorney-Client Privilege (Rule 502)

(a) Failure to assert a privilege in a timely manner: Usually results in waiver
(b) Waiver of a privilege generally operates as a partial waiver.
Privilege is waived only to the extent to permit reasonable scrutiny by opposing party

(c) A blanket or total waiver results ONLY IF:

1) Waiver was intentional, and
2) Both the disclosed + undisclosed info concern the same subject matter.
(d) Inadvertent Waiver: The court will find it was NOT a waiver if:
1) the client did NOT intend to waive the privilege;
2) the client took reasonable steps to protect the information;
3) the client took timely steps to remedy the disclosure.
 (8) Exceptions: Situations where there is NO attorney-client privilege:
(a) Future crime/ fraud
(b) Suits between attorney + C
(c) “Joint Client” exception: Two clients hire the same attorney and are then involved in
litigation between each other. Result: Their earlier communications are:
Not privileged, absent an agreement otherwise

NOTE: A waiver by one joint holder does not affect the right of another joint holder to claim the
privilege.

(d) Caveats
1) Client identity generally is NOT privileged UNLESS:
Disclosure will disclose additional otherwise privilege info

2) Fee arrangements: Not privileged

3) The duration of the privilege is: From initial until BEYOND C’s death
e. Doctor-Patient and Psychotherapist-Patient Privilege
(1) Doctor-patient privilege: A statutory privilege, did not exist in CL
(a) The Federal Rules never recognized a doctor-patient privilege. Where such a
privilege exists, it must be created by state law.

(2) However, there is a federal psychotherapist-patient privilege that can be asserted

through common law which governs federal courts.
(a) Very broad:
Social workers, med health specialists, marriage counselors

NOT: educational/vocational counselors.

(b) The privilege applies to protect confidential communications between:

A licensed psych therapist and a patient who is seeking diagnosis/treatment for
Mental/emotional medical condition

(c) Exceptions
1) statements made regarding commitment proceedings;
2) statements dealing with court-ordered examinations;
3) when the medical condition is part of the claim such as:
personal injury/malpractice suit

4) future crime or fraud (same as attorney-client).

f. Husband-Wife Privileges (Marital Communications and Spousal Immunity)
(1) Marital Communications Privilege
(a) The privilege can be asserted by: Either spouse
(b) It applies in both civil and criminal cases.
(c) It only protects particular kinds of communications.
1) Protects confidential communications:
Those INTENDED by the parties to be confidential made during the marrriage

a) Majority position: Observations are not protected. (E.g., witness observes

husband injecting himself with heroin.)
2) Divorce has no effect: Communication remains protected and survives death of
spouse
3) Communications in the presence of older children, friends and relatives are NOT
privileged.
(d) Exceptions
1) Crimes or intentional torts committed by: One spouse vs. other/child
2) Divorce proceedings: Any suit between the spouses
3) Joint participant: in a crime
By the spouses in the crime. Spouse may be compelled to testify.

(2) Spousal Immunity (Testimonial)

(a) Protects all communications, regardless of confidentiality, both during and before
marriage; includes testimony, observations, and impressions. A spouse cannot be
compelled to testify about virtually anything.
(b) Purpose is to promote marital harmony.
(c) The privilege is held by:
1) under common law: by the party spouse [D]
2) in federal courts (adopted by FRE): [W]
by the witness spouse. Spouse can testify against wish of party spouse (other)

(d) Key characteristics of spousal privilege

1) This is much broader than the marital communications privilege.
2) Under this rule, a testifying spouse may refuse to testify against their spouse.
3) A valid marriage is required. No privilege exists if the marriage is void (sham,
incest, bigamy).
4) It only applies in the following circumstances:
a) criminal cases;
b) both during and before marriage, but the entire privilege is lost upon
divorce.
 (e) Exceptions
1) suits between the spouses;
2) suits involving a child of either spouse (e.g., husband tried for sexual abuse of
stepdaughter; wife may be compelled to testify).
g. Religious Privilege
(1) Protects confidential communications made:
to clergy in his professional capacity as spiritual advisor.

(a) Either the clergyman or the penitent may assert the privilege.
(b) There are no generally recognized exceptions.
(2) The statement needs to have been made: Under conditions of confidentiality
h. Political Vote
(1) Every person has a privilege to refuse to disclose his vote, unless compelled by state
election laws.
i. Trade Secrets
(1) A person has a privilege to refuse to disclose any trade secret he owns or to prevent
others from disclosing such information unless concealment will create fraud or
injustice.
j. Secrets of State and Other Official Information
(1) A secret of state is a government secret relating to national security or international
relations.
(2) The privilege applies to intergovernmental opinions and policy decisions, investigatory
files, and other government materials.
k. Identity of Informer
(1) Both the U.S. and the individual states have a privilege to refuse to disclose the identity
of a person funneling information vital and relevant to law enforcement.
(2) Only the government can assert this privilege, not the informant.
(3) A newsperson has no First Amendment privilege to refuse to disclose the identity of his
sources [Branzburg v. Hayes]. HOWEVER, states can provide shield laws to afford such a
privilege.
l. Executive Privilege
(1) A court-created privilege: In U.S. v. Nixon (1974), the Supreme Court recognized such a
constitutional privilege for the President.
(2) Courts decide whether the privilege applies, although the President has an absolute
privilege to refuse to disclose matters of national security
m. Fifth Amendment Privilege Against Self-Incrimination
(1) Constitutional privilege
(a) This privilege applies only to: Evidence that is testimonial (ie: on stand)
(b) Presentation of real and demonstrative forms of evidence are: Not protected
 (c) Examples where Fifth Amendment privilege does NOT apply: Blood, hair,
handwriting samples, fingerprints, lineups, photo IDs; scars, tattoos; put on a hat,
item of clothing; bloody glove, “read this.”
(d) The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the
stand.
(e) Prosecutorial comment: The prosecutor may not comment on D’s refusal to take a
stand
(f) Testimony given at a preliminary hearing does NOT waive the privilege of the
accused not to take the stand at trial.
EXAMPLE: Defendant moves to suppress evidence at his PH. May the prosecutor
comment on defendant’s motion at trial? No

(g) Witnesses or parties in civil cases: Must assert 5th A privilege on the stand
(h) The Fifth Amendment does not apply when: The W waives the privilege
1) When a witness waives, cross-examination is limited to the subject matter about
which the privilege was waived (not a blanket waiver).
(i) Immunity: Two types
1) Transactional Immunity—Broad:
a W can’t be prosecuted for the underlying offense

2) Use Immunity—Narrow: Statements by the witness may not be used against the
them, but the prosecution does not agree that it will never prosecute.
W may be prosecuted with independent untainted evidence

3) Remember, an immunized witness may still be prosecuted for perjury.

n. Waiver of Privilege
(1) Occurs expressly whenever the holder of the privilege voluntarily discloses the
privileged info.
(2) Can be implied by failure to timely object to testimony.
o. Commenting on the Privilege
(1) Criminal case: Not allowed by P. No adverse inference may be draw by D’s refusal to
testify
(2) Civil case: Opponent party may comment + can have negative inference
EXAMPLE: In a custody case, if an attorney asked a parent whether she sold heroin, the parent could
assert the Fifth Amendment privilege. However, the opposing party could then draw attention to the
fact that the privilege had been asserted with regard to the question of heroin selling
1.Competency of Juror as Witness (Rule 606(a))
a. A juror may NOT testify as a witness before the jury of which he is a member.
EXAMPLE: Same facts as before except the defendant’s statement is overheard by a juror.
Would the juror be permitted to testify? No.

b. Inquiry into the validity of a verdict or indictment (Rule 606(b))

(1) A juror may not testify as to the manner in which the jury reached its decision. Affidavits
by jurors are also excluded.
(2) This rule includes:
(a) Any statement made during deliberation
(b) Thought processes that led jury to decision
(c) Votes taken to reach the verdict
c. Examples where a juror’s testimony will be EXCLUDED when challenging a verdict
(1) Juror misunderstood the evidence or the instructions.
(2) Jury reached its verdict improperly (drawing straws or quotient verdict).
(3) MBE: Jurors drank alcohol and smoked marijuana during deliberations.
(4) One juror physically bullied another regarding his vote.
(5) Juror fell asleep during deliberations.
d. A juror MAY, however, testify as to:
(1) extraneous prejudicial information improperly brought to the juror’s attention;
(2) whether any outside influence was improperly brought to bear on any juror; or
(3) clerical/secretarial error (i.e., mistakes on the verdict form).
e. Examples where a juror’s testimony will be ADMITTED when challenging a verdict
(1) A juror may be questioned regarding whether or not someone brought in a newspaper
article about the case.
(2) Juror made an unauthorized visit to the scene.
(3) Juror accepted a bribe.
(4) Juror conducted his own out-of-court experiment regarding evidence presented at trial.
(5) Threats of harm made against the juror or juror’s family members.
(6) Communication by juror with court personnel regarding the case.
(7) Juror brought a Bible into the courtroom and read passages to other jurors suggesting
defendant’s guilt.
Judicial Notice- Rule 201
- Only adjudicative fact can be judicially noticed, not legislative fact.
- At any stage of the trial, Court can/must judicially notice a fact that is not subject to reasonable
dispute because it is generally well known within the court’s territorial jurisdiction; or can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
o Court can do so on its own
o Court must do so if a party requests it and gives the court necessary information.
 The opposing party has opportunity to be heard if timely requested, and can still
have such opportunity if the court decided to grant judicial notice without
notifying him.
- In civil case, court must instruct jury to accept judicial noticed fact as conclusive.
- In criminal case, court must instruct jury that it doesn’t have to accept judicial noticed fact as
conclusive.
- A judge is not authorized to make his personal knowledge of a fact, not generally or
professionally known, the basis of his action to make judicial notice.
- NY: Judge can take judicial notice of federal/state/local law.

R 611 Examination of Ws
- General
o Lawyer is allowed to prepare the W for examination as long as it is not telling the
witness to say contrary to the truth
o Lawyer is allowed to get W to change his testimony by letting the W see the event from
his perspective [by adding in factors that W may not be aware of or overlooked]
 Lawyer is NOT allowed to use threatening manner to get the W to change his
testimony
- Direct examination
o The question you ask the witness has to elicit facts that are relevant to prove a material
issue in the case.
o Can’t ask these types of questioning on direct
 Leading
 EXCEPTIONS to prohibition against leading questions on direct
o To refresh W’s memory [R612 refreshing recollection]
o Past recollection recorded [R 803(5)]
o Laying foundation
o The witness is so associated with the other side [the other
party]
o The W is the opposing party
o When the witness is hostile
  Judge must declare W to be hostile first.
o Preliminary
 Argumentative
 Asked and answered
o R612 Refreshing Recollection
 This can be done through asking leading questions on direct [would allowing to
you read this document refresh your memory?]
 This deals with giving a W something to refresh his memory when he says he
cannot remember so help is needed to refresh his memory.
 Right of inspection
 If the something is given at trial, the other side has right to get the
something given to the W to refresh
 If the something is given pre-trial, the other side can get it if justice
requires it.
o In exercising discretion, judge should consider
 The extent of the witness’s reliance on that writing;
 The importance of the info;
 Any resulting burden on another party; and
 Potential for disruption of the trial.
 If the producing party says some of the things on the “something” are
irrelevant, the court is required to examine it and delete any unrelated
portion.
o If there is objection to the relevancy of destroyed portion, it
must be preserved.
 Failure to produce for inspection
 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.
 Almost anything can be used to refresh recollection.
 Song, face, newspaper, document.
 There is NO REQUIREMENT that that something’s content be truthful for
the W to see it to refresh his memory
 Witness must say he doesn’t remember to refresh his memory.
 Lawyer can ask witness certain questions to get them to say he doesn’t
remember, even if the question is the type that is “where were you at
10:01?”
 How to use it
 Get W to say that he doesn’t remember
 Then show him something that will make him remember
 Let say witness is flaky and not the kind that seems believable.
 o Lawyer wants to boost his credibility, while refreshing his
memory, by saying “This is a sworn statement you gave to
Officer, read it to yourself and see if it refreshes your memory”.
 Can lawyer do this?
 No, he’s reading from document not in
evidence by mentioning it is a sworn statement
that was given to officer.
 But if the lawyer wants to introduce the document into
evidence and laying foundation to introduce the
document into evidence, it is ok.
 “this is a sworn statement, this was given 2
hours after the accident etc…”
 After all these, lawyer can then ask W to read it
to himself and see if it refreshes his memory.

o R 803(5) Past recollection recorded

 This is used when W cannot remember even after being read his own
statement

 Example

 Witness sees a car flee from the scene of bank robbery and writes
down the license plate.

o Years later at trial, he cannot remember the number but

testifies that he accurately wrote it down at the time of the
robbery

 If a record qualifies as recorded recollection, it may be read into evidence

but may be received as exhibit only if offered by an adverse party

 This seeks to prevent the jury from giving the record undue weight.
 How to use recorded recollection
 The recorded document
o Must be on a matter that the W once knew about firsthand but
now can’t recall enough to testify,
o Must be made or adopted by the W when the matter [that he
currently can’t remember] was fresh in his mind, and
 Adopted can mean signing the record.
o Must accurately reflect the W’s knowledge
 Alternative wording
 o The witness’s lack of memory must prevent him from testifying
fully and accurately about the matter recorded on the
document.
o Document is based on firsthand knowledge,
o Made or adopted the writing when the matter was fresh in the
witness’s memory, and
o The writing accurately reflects the witness’s knowledge.
 If a record qualifies as recorded recollection, it may be read into
evidence but may be received as exhibit only if offered by an adverse
party
 Note: if there are things on the document that the W had no knowledge
of, these things will be deleted from the document.
- Cross examination
o general
 Limitations on cross
 Can’t talk about things not raised on direct
o R 611B Scope of Cross: cross is limited to subject matter of
direct [includes inferences and implications of what direct
brought up]
 The court may allow inquiry into additional matters as if
on direct examination.
 Can’t ask compound questions. [also for direct]
 Can’t argue with the witness
 Can’t harass the witness
 Asking a question based on an assumption
o Example
 While you were speeding on 2nd street, you weren’t
paying attention to pedestrians, isn’t that correct?
 Can’t ask since no1 said he was speeding.
o Its assuming that he was speeding.
 Redirect and recross
 [STATE O’Brien] A party has no right to recross unless it addresses a
new matter brought out for the first time on redirect.
o If a recross proposes to ask things not raised on redirect, the
judge has discretion whether to allow.
 Scope of redirect is limited to subject matter of the cross unless judge
lets you go on and on.
 [PMCCBB] Cross is used to test the credibility of the W and it can be done
through six ways
 Perception; memory; capacity; criminal convictions; bias; and bad acts.
  You can’t attempt to limit the scope of cross by the opposing party unless you
have done your direct first
 Otherwise, there is no way to know whether what the opposing party
will ask will be beyond the scope of cross.
 On cross, lawyers can ask questions for improper reasons if questions are
proper unless judge strongly objects as to violating the scope.

o Anticipating cross
 [R 608; US v. Cosentino FED] Absent an attack on a W’s credibility through
evidence of untruthful character, a party may not introduce evidence of
truthful character to support the W’s credibility
 W’s cooperation agreement can be introduced into evidence only
after the W’s credibility has been attacked- not before.
o Impeaching your own W
 NY:
 Can’t attack credibility of your own W by showing criminal
convictions.

Prior inconsistent statement
o NY doesn’t permit impeachment of your own W by showing
prior inconsistent statement UNLESS you establish that
 The “present” testimony was a surprise,
 It hurts your case, and
 Prior statement was a sworn statement in writing.
o Hypo: [NY] P’s W said to P that she saw her bf walking out with
a shotgun. In trial, the W said she can’t remember.
 W’s testimony that she can’t remember doesn’t hurt
the P’s case because it doesn’t make it more or less
likely that the D is guilty.
 P is merely being deprived of a benefit of prior
W’s statement.
 So, the P cannot impeach the W in this
situation.
 R607 FRE allows you to impeach your own W
o Impeachment of W by bias
 General
  R607 allows you to attack a W by crossing him on potential bias or by
bringing another W to testify as to biasness of that prior W [show of
bias is never collateral]
o Rule 607. Who May Impeach a Witness
 [Grudt] If evidence, or cumulative evidence, regarding biasness of
the W is more prejudicial than probative, it won’t be allowed or it
will be limited [can’t accumulate too many evidence showing bias]
as per R403.

o Impeachment of W by prior criminal conviction

 General
 Under R 609, you can attack a W by show of prior criminal conviction,
but there are limits.
o Rule 609. Impeachment by Evidence of a Criminal Conviction
 FED R609
 Applies to any W [not just criminal D when he testifies] in either civil
or criminal case
 Mandatory categories
o Judge MUST ALLOW showing of prior conviction of ANY W if it
is a crime of dishonesty or false statement [doesn’t matter if it is
felony or misdemeanor]
 BUT: It is a matter of discretion for the court whether a
crime is one of false statement or dishonesty
 Robbery is a crime of dishonesty or false
statement.
o Judge CANNOT ALLOW showing of prior conviction of
misdemeanor that is NOT a crime of dishonesty or false
statement to attack ANY W
 Ie: DUI, assault
o List of crime of dishonesty or false statement
 Robbery; Perjury; False tax statement; Forgery; Theft
 BUT: selling drug is not
 Non-mandatory categories [Judge must use discretion and balance
prejudice against probative value.]
o Felony convictions that are not crimes of dishonesty or false
statement MUST be admitted UNLESS prejudice exceeds the
probative value [subject to R403]
  If W is criminal D, prior felony [punishable by death or
imprisonment of more than a year] conviction MUST be
allowed to attack him IF the Judge finds probative value
exceeds the prejudice.
 It is assumed to be prejudicial [thus won’t
come in] unless judge finds probative value is
greater
 If any other W, in criminal or civil case, prior felony
conviction MUST be allowed to attack him UNLESS it’s
probative value is outweighed by prejudicial value
 It is assumed that the felony conviction will
come in unless prejudice exceeds the probative
value.

 Timing: Evidence of prior conviction are excluded if the convictions

occurred more than 10 years ago [W’s conviction or release from
prison, whichever is later] unless there is special probative value of the
conviction.
 NY Sandoval
 In NY a party can use prior convictions of ANY W [in either civil or
criminal trial] to impeach unless Sandoval applies
 [Sandoval/ CRIMINAL CASE for criminal D W] TJ has discretion to
exclude the prosecutor from using certain or all of D’s conviction
to impeach the criminal D when he testifies [applies only to
CRIMINAL case and to the criminal D when he testifies]
o P will say why he wants to use it and D will say why it
should be excluded. Judge will then decide based on
guidelines
o Guidelines for judge to consider:

Older the conviction, the less relevant for credibility

Crime of deceit or calculated villainy is more relevant
and more likely to be admitted than an impulsive crime
 Compulsive crime in, impulsive crime out
 Unless there is a really good reason, the trial judge will
not let in more than 2 prior convictions
o Sandoval compromise
 After the judge has listened to the arguments from both
sides and he decides that P can use burglary and car theft
convictions in crossing the criminal D on stand, D’s L
will ask for a compromise- don’t bring out the name of
the crime, P can just say D was convicted of felony or
misdemeanor
o Impeachment of W by show of bad acts
  General
 Bad acts are prohibited by collateral evidence rule so a party has
to cross the W to show bad acts- can’t bring another W to show
bad acts of the other W.
 FED R 608
 Under R 608 W’s character for truthfulness or untruthfulness
o In federal courts, bad acts are limited to bad acts of
untruthfulness
 If the bad acts aren’t acts of untruthfulness, can’t use
them to attack a W

 NY
 In NY, bad acts can be used to impeach any W if the lawyer has a good
faith basis to believing that the W actually committed the bad acts.
o The bad acts can be ones that were committed by the W at any
time in his life, but the older the act, the less material it will be
to the credibility of the W.
o If the W is criminal D, Sandoval applies so the judge will screen
whether the particular bad acts can be used based on factors in
Sandoval.
 [Duffy] proof of W’s bad acts can be done through establishing a
plausible inference.
o Impeachment by prior inconsistent statement [and also prior consistent statement]
 General
 You are trying to attack a W for saying something different when
compared to what he had said previously.
o A party can show prior CONSISTENT statement ONLY IF the W
was attacked on claims of fabricating present statement,
unduely influenced or biased in making the statement etc…
 Can’t use prior consistent statement when the W’s
statement is attacked on claim that the W doesn’t really
know what happened.
 Hypo: there is car accident. W says he saw it
while waiting, then says while getting on the
bus, then says while in the bus, and then says
he saw it while he turned around.
 o If a party crosses the W on this, he is
doing so not on claims of bias, undue
influence etc… but that W is unreliable
[can’t seem to remember what
happened]; so the other party cannot
use prior consistent statement in this
situation.
 [Lomovt] If fair inference of one statement is inconsistent with fair
inference of another statement, then there is inconsistent statement.
o Doesn’t need the W’s two statements to be in exact
contradiction.

 FED R613
 Under R613, you are allowed to use prior inconsistent statement of the
W to impeach the W’s credibility [it wouldn’t be substantive evidence
generally, however. Just that the W may not be credible]
o The whole point of cross is to establish that prior statement was
true and the present statement isn’t.
 When prior inconsistent/consistent statement of the W can be
substantive evidence
o W’s prior inconsistent statements will be substantive evidence
if they [the prior inconsistent statements] were given under
penalty of perjury [under oath] at a trial, hearing, or other
proceeding or in a deposition
o W’s prior consistent statement will be substantive evidence if
it is true as the present testimony, which is offered up to rebut
the charge that the W lied in his present statement due to
improper influence or motive or that he recently fabricated it
 Don’t care much about this since this is describing W’s
present testimony, which is already considered
substantive evidence.
 NY
 You can use prior inconsistent/consistent statements of the W to
attack that W’s credibility
 When prior inconsistent statement of the W can be substantive
evidence
 o Prior inconsistent statements are substantive evidence only if
they were given in reliable circumstance. [prior statement does
not have to be under oath for it to be considered “reliable
circumstance”]
 Examples: statements you make to police officer
immediately seeing a robbery or a car accident etc…

Relevance
- General
o For something to be admitted as evidence, it must be relevant.
 The evidence must have ANY tendency to make the existence of a
material/consequential fact more or less probable if it is admitted.
o For evidence to be relevant, it must be factually relevant and logically relevant.
o Relevant evidence may still be inadmissible if prohibited by FRE, Constitution,
Federal Statute, or SCOTUS.
o [FED Bruce’ Juices v. US] If a stuff is not in same condition as it was then [at relevant
time], it cannot be used to present to jury to smell, sniff, examine.
 [STATE Berg] Samples, to be admissible as evidence, must be shown to reflect
the condition of the substance at the time involved in the issues.
 Must show that no substantial change has taken place in the substance
to be exhibited because of lapse of time.
- Statute
o Rule 401. Test for Relevant Evidence
 Relevant evidence is evidence that has any tendency to make the existence of a
material/consequential fact more or less probable than it would be without the
evidence.
o R 402: Irrelevant evidence is not admissible. Relevant evidence is admissible unless
otherwise provided by Constitution, Federal Statute, FRE, SCOTUS.
o R 403: specifies the circumstances under which a trial court is permitted to exclude
relevant evidence.
  Prejudicial, time wasting etc…
- For something to be relevant it has to be
o Factual relevance; and
 “something is what I claim it to be” established by witness testimony [as to
whether the knife is in the V]
 Hypo: deceased is lying on floor with a knife sticking out of check. P
wants to introduce the knife that killed the V. [if P wants to introduce “A
KNIFE”, it won’t be factually relevance since this isn’t the knife that
caused the death]
o If the knife is the one found in the body, it is factually relevance
and logically relevance.
 Fungible [can’t tell difference] initialing:
 Most manufactured products look the same so there must be some
sort of a way to distinguish it to make it factually relevant.

 Initialing a murder weapon [must show it is THE MURDER

WEAPON, not just A WEAPON] found in crime scene is sufficient
way to make the item distinguishable [thus no longer fungible] so
it can be factually relevant.
o Logical relevance
 “the response to the following question: so what, what difference does that
make?” [it is a response to the “so what?” question to the establishment of
factual relevance]
 The response would be that the knife is the murder weapon.
 Logical relevance is an explanation of the significance of the offered fact.
 to argue logical relevance, factual relevance has to be established first
[by establishing the facts of the offered fact]
o short form: for something to be relevant, it has to be factually and logically relevant.
 For a thing to be factually relevant, you have to establish that the thing is what
you claim it to be.
 After you establish factually relevance, then you can make argument as
to why those established facts are logically relevant to your case.
- Prejudice
o General
 Relevant evidence may be inadmissible if it is too prejudicial such that it exceeds
its probative [relevance] value
 If the emotional value of what you are offering is substantial, the probative
value of it is lowered if there are other readily available ways to prove the same
fact.
 
However, an evidence that conflicts with the 6 dangers/considerations,
will still be admissible if there is no other way of proving what the
evidence will prove.
 [Adamson] remember the case/hypo
 [Robbins] remember the case/hypo
 [FED Old Chiefs] In a criminal case where a necessary element of the crime
charged is that the D has ANY prior felony conviction, it is PREJUDICIAL for P to
introduce into evidence as to what crime D was convicted with.
 Reason: the type of crime that D was convicted with is IRRELEVANT for
in finding that the D violated the statute he is currently charged with.
o FED R403
 The court MAY EXCLUDE relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
 [6 dangers/considerations: DIMPWC] unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.

Authentication of [non-testimonial] evidence

- General
o This is about the requirement for authentication of things you want to introduce
into evidence
 If the things to be offered for evidence aren’t authenticated [by showing
that it is what you say it is], then they won’t be admitted.
o Documents are generally not self-authenticating- a confession purportedly signed by the
accused may not be admitted simply based on that signature.
 An authenticating W must testify; the detective who obtained the confession
could testify that she saw the accused sign the document.
 This is “laying the foundation” for admissibility.
 A document that is properly authenticated under R901 may be inadmissible
because it fails to satisfy the requirements of the hearsay rule or the best
evidence rule, or because of prejudicial factor under R403.
- Statute
o [R 901 Authenticating or Identifying Evidence]
 A: Offering party must prove that an item of evidence is genuine [it is what he
says he is]
 Burden of proof is a prima facie showing [just show that it is what you
say it is], not preponderance of evidence.
 Can use circumstantial evidence
 B: EXAMPLES of evidence that meet the requirement for authentication
  (1) Testimony by W with knowledge that something is what it is claimed
to be
o Example: someone who saw the accused signing a confession
can authenticate the confession letter.
 (2) Handwriting. Testimony by lay W that the handwriting is from
whom it is claimed to be [genuine], if the lay W is familiar with the
handwriting and that familiarity wasn’t acquired for the current
litigation.
o Ie: secretaries, wife etc…
 (5) Opinion About a Voice. An opinion identifying a person’s voice —
whether heard firsthand or through mechanical or electronic
transmission or recording — based on hearing the voice at any time
under circumstances that connect it with the alleged speaker.
 (7) Public Record: Public records can be authenticated by showing that
it is a document filed or recorded in authorized public office, or by
showing that the purported public record document was retrieved from
a place where document of this kind is kept.
o Public gov’t records may be authenticated by showing they were
retrieved from the correct place of custody
 (8) Evidence About Ancient Documents or Data Compilations. For a
document or data compilation, evidence that it: IMPORTANT
o (A) is in a condition that creates no suspicion about its
authenticity;
o (B) was in a place where, if authentic, it would likely be; and
 It was found in a place natural for this type of document
o (C) is at least 20 years old when offered.
 (9) Evidence About a Process or System. Evidence describing a process
or system and showing that it produces an accurate result.
o If you show that a process or system was used to produce an
accurate result, it will be sufficient to authenticate evidence
derived from that process or system- computer generated
documents, sound recordings, x rays…
- Authentication of photograph
o To introduce photo, you must ID the photo and authenticate it. Photos are not evidence
by themselves but are illustration of evidence which is a testimony.
 What needs to be done to authenticate it?
 Show that it is factually relevance [show that it is fair and accurate
representation at the time and place of material event/thing]
 Who will testify to show FR
 Photographer
 Someone who was there
 o To authenticate photo, the person needs personal knowledge of the place in the photo
at the particular time the photo was taken.
 If photo is offered, authentication through “fair and accurate representation”
must be directed at the time the photo was taken. [Can’t ask whether photo,
taken on May 1st, is fair and accurate to a W who wasn’t there on May 1 st]
 Hypo: accident occurred on May 1st. Photo of the accident area was
taken on May 20th
o Authentication can’t be done through asking W whether the
photo is fair and accurate represent of the area on May 1 st since
the photo is from May 20th.
- R901b5 Authentication of Tape Recordings
o General
 If a tape recording cannot produce clear sound for entirety even after removal
of background noise, it can still be admissible [assuming a lot can be heard]
because it meets the R 401 requirement that it merely create ANY tendency to
make the existence of a material fact more or less probable than it would be
without be the evidence.
 The quality of the recording will go to the weight the jury will give it, it
doesn’t affect admissibility.
 If a tape recording requires noise removal, it is still admissible.
 Get a W to testify as to the process of how it is done, and how it doesn’t
affect the contents of the recording etc… to show factual relevance.
 If the tape recording contains foreign language
 Get it translated, make a transcript, and then introduce English
transcript into evidence.
o 2 versions
 A guy is listening, while recording, in a remote location
 It can also be recorded without listening, and a month later someone picks up
the recording.
o To introduce tape into evidence, party must establish
 Factual relevance
 The voices are the parties identified
o Show this by calling someone who is familiar with the voices
[agent who listened]
 The recording is fair and accurate repetition of what was said
o Must be exact same.
o Show this by bringing the person who listened to it while
listening.
 He should testify that it is what he heard, and the voices
are A and B.
 2nd version What if no1 was listening while recording?
 o ID the voices
o Testify as to how the recording works, that it was working
properly and therefore, nothing that wasn’t said was recorded
and nothing on the tape was not said in the room.
 Call someone who is knowledgeable as to how the tape
works.
 Logical relevance
 Make argument
- Demonstrations
o Demonstration is a reenactment of event, in court.
 Sometimes the W may not be able to accurately reenact as to what he saw a
party [P or D] did.
 Degree of the demonstration as to whether it accurately represents
what happened may result in the reenactment being considered
prejudicial

o Recreations of some part or the entirety of an event for

purposes of proving how you think it happened. Trial court has
discretion to exclude or include if they think it will unduly
arouse jury’s sympathy. Ex. demonstration to show the effect
of an injury—if victim cries out in pain…could be very
prejudicial. Must be fair and accurate.
 Can you introduce a computer reenactment?
 Yes, if it is fair and accurate representation
 Do it by getting expert to testify as to how to do it.
- View
o Requesting party must establish that what you will see is not only relevant but
necessary because a picture won’t do the job
 Must lay foundation: must be a fair and accurate representation
o Judge has discretion to allow it
o [NY] Unauthorized viewing (visit) of a material (crime) environment by jurors is
sufficient to grant a new trial, without having to prove whether such viewing
had a prejudicial impact on the jurors.
 Such a visit by itself constitutes inherent prejudice.
 They don’t know whether changes were made in the location, or if
the location is in the same condition.
- Replica
o Foundation to submit a replica [of a beef bottle that D used to hit the P]
 Show that it is sufficiently similar to the real one
 
[V or W] Anyone who has seen the real one can describe the beer
bottle, describe what happened to it, say that it looks just the same.
o Replica is useful if you can’t find or have access to the original
- Diagram
o If it is a fair and accurate representation, it is enough to admit the diagram. It can be displayed
while everyone testifies and will be used to continually represent the testimony as it occurs.
o To introduce diagram of an intersection, who do you have to call to say what?
Call someone who is familiar with the intersection to say that it is a fair and
accurate representation of the intersection on the day in question.
o What is foundation to introduce a particular event on the intersection?
 Introduce a W, what they saw and that the diagram is fair and accurate
representation of the accident.
- Document
o introduction by recognition
 If a W saw a document being prepared, he may be able to recognize it because
it has distinguishing characteristics [organization of paragraph, type face].
 You can introduce it by this recognition
 May have trouble introducing document based on recognition if the document
is fungible [looks similar to others] such as computer printed page.
o If I print out ten copies of a document and all people involved sign all of them, they are
duplicate originals so each of them is admissible.
- Authentication of fungible items through circumstantial evidence
o Reply doctrine
 Ex. If I call Pizza Hut for a pizza, and the person on the phone is abusive, and I
want to sue PH, their defense will be that I called the wrong number.
 REPLY DOCTRINE—authenticates the answerer: Here, if I call and the
person that answers says PH that authenticates the person as an
employee of PH and authenticates them.
o Note: Reply doctrine applies only to commercial
establishments and not private residences

Self-authenticated Evidence
- General
o Self-authenticating evidence are presumed to be genuine and therefore require no
extrinsic proof of authenticity [an authenticating W need not testify]
- Statute
o R902 Self-Authenticating Evidence
 [CONTAC] The following items of evidence are self-authenticating; they require
no extrinsic evidence of authenticity in order to be admitted:
 C: Certified document
o documents bearing a seal of the United States, or of any state,
district, commonwealth, territory, or possession thereof (public
documents under seal);
o certified documents bearing no seal, if a public officer certifies
under seal that the signer has official capacity to sign and that
the signature is genuine;
 EXAMPLE: Conviction record; official transcript from a
university or law school.
o certified foreign documents: genuineness of the signature and
the authorized person’s official position is required;
o certified copies of (official) public records.
 Must be filed or recorded in a public office and certified
as correct by either the custodian or other qualified
person; could include document under FRE 803(8)
Public Records exception.

o NOTE: This proves only that the document is official record. It

does not prove the opponent party is in the official record. If
you are trying to provide this kind of evidence in court, let say a
transcript of gov’t hearing, because you want to claim the
opponent party was in it [assuming his involvement in the
hearing is relevant to prove material fact in the current
litigation], then you still have to prove that the transcript has
testimony by the opponent party [show that he was at the
hearing & that the contents of the transcript for the hearing are
accurate.]
 O: Official publications by public authority
o A book, pamphlet, or other publication purporting to be issued
by a public authority.
o Ex: FAA booklet on Airline safety standards.
 N: Newspapers +periodicals
 T: Trade inscriptions
o Signs, tags, labels affixed in the ordinary course of business
indicating ownership, control, origin
o EX: label on a can of Green Giant peas.
 A: Acknowledged Document
o Notarized documents: documents accompanied by a certificate
of acknowledgment executed in the manner provided by law.
 o NOTE: The hearsay rule could apply to render a notarized
affidavit inadmissible.
 C: Commercial papers
o Negotiable instruments etc..

Best Evidence Rule

- General R1001-1007
o Applies to writing, recording, or photograph
o Wiki: These rules generally require the original or reliable duplicate of any "writing,
recording, or photograph" when the content of that evidence is given legal significance
by substantive law (such as a contracts or copyright dispute) or by the parties
themselves (such as using a video recording of a bank robbery).
o If a party wants to prove the contents of something [writings, recordings, and
photos], or wants to submit something [writings, recordings, and photos] into
evidence, BEr requires that the original/ duplicate [unless there is reason to
doubt authenticity as duplicate of original or unfair to admit duplicate] be
produced UNLESS EXCEPTIONS APPLY.
 Photos
 BEr applies: original photo is required to prove the contents of the
photo, however in most cases photos are not offered to prove the
contents of the photos but are offered under “pictorial
testimony”. The W is not attempting to prove the contents of the
photo but to prove the scene depicted in the photo, which is an
independent event.
 o The authenticating W adopts the photo as his own
testimony.
o If what a party is trying to prove is an event/transaction that merely produces a
writing, then BEr does not apply if I am not trying to prove the event through
that writing.
 Hypos:
 I want to prove that I got married so I testify as to the details of
my marriage ceremony. I have the original marriage certificate
o BEr does not require me to introduce the original marriage
certificate since I just want to prove my marriage event,
which merely produces a writing [marriage certificate]
o If I want to offer a marriage certificate into evidence as
proof of marriage, however, BEr requires that I submit the
original unless exceptions apply
 I want to prove that I paid my rent- there is a receipt.
o I can testify as to having paid rent without offering the
receipt- original or otherwise- because paying rent is a
transaction that produces a writing
 W testifies in court- there is transcript of it
o People can testify as to what W said in court without
having to produce the original transcript of it because W’s
testimony is event that produces a writing
 Contract is not an event/transaction that merely produces a writing,
contract is the event/transaction
Contract, because of PER, is a written transaction [because of PER, the
contract isn’t an oral agreement that produces a writing, the written
agreement is the contract/transaction]. The contract is what the
agreement is. If I want to show that you violated the agreement of the
contract, that is introducing the document for its CONTENTS- the
detailed obligations being violated.
o If you want to prove anything contract-related, you MUST
PRODUCE ORIGINAL contract document, unless exceptions
apply, since the contract document is the event/transaction
itself [because PER requires contract to be in writing] and what
you are going to be relying on the contents of the contract to
testify.
o [DJOC] EXCEPTIONS to requirement to produce Original
 Original is not required to prove the contents of the something if
 It was destroyed or lost without bad faith by the proponent
  It cannot be obtained by judicially available process
 Original is in opponent’s possession and he fails to comply with
the request to produce it.
 The original is not closely related to a controlling issue. [it is collateral]
 When the party, against whom the something [writing, recording, photo] is
offered, admits to the contents, the original need not be produced.
o If the something contains voluminous content
 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.
o Note: All of the stuff which is necessary to introduce a document into evidence
(authentication) doesn’t violate the best evidence rule
 The identificatory words (such as a signature) are not the contents of the writing,
the rest of the words beyond those words (the details) are the contents
 To determine whether the writing is being offered for the identificatory stuff and
not the details, must look to the purpose the writing is being offered
o BEr applies when a W’s knowledge is solely from reading a document or
reviewing a photo.
 Ie: BEr applies to a W who read the confession and testifies to the
contents of the written confession [as opposed to a W who heard the oral
confession and seeks to testify]
o Even if original document is produced, it may be inadmissible under some other
rule of evidence, such as hearsay.

Circumstantial evidence/proof
- General
o Circumstantial evidence/proof is allowed under R 401 relevancy.
- Standard to make to it to jury
o Civil standard
 A reasonable juror could find, more likely than not, that D stabbed decedent
o Criminal standard
 A reasonable juror could find, beyond a reasonable doubt, that D stabbed the
decedent.

Statistical proof
 - Circumstantial statistic is sufficient evidence.
o Green bread car with gold letter initial hitting the P hypo.
- Pure statistical evidence is not sufficient evidence

Collateral Evidence Rule

- General
o Collateral evidence rule is when a W testifies that facts in prior W’s testimony are
false, and this is used to infer lack of credibility of the prior W.
 For CEr to apply, there must be a W who testifies that what prior W testified is
false, and the issue is whether it is important enough that it was false to
permit the waste of time of having the latter W testify.
 Hypo: P crosses D’s W on whether D owes a lot of money to W, money which W
would never get if D goes to jail. D’s W says D doesn’t owe any money to him.
 P then calls his W to testify that D owes D’s W money- which shows that
D’s W testimony was false.
o Is this false testimony important enough?
 Yes, it shows bias of D’s W- and showing bias is NEVER
collateral so admissible.
o This is a rule that can bar a party from calling a W to attack the credibility of a prior W
through showing of false testimony on a matter that is not material issue of the case.
The false testimony is then inferred as lacking credibility.
 Note: this is different than crossing a W to attack his credibility, which is
allowed.
 If something is collateral, the evidence is inadmissible.
 Evidence showing bad acts are always collateral [evidence inadmissible]
  Bias and prior conviction are never collateral [evidence admissible]
 If something doesn’t fall under automatic rule [non autos are perception,
memory, capacity], it follows Oswalt rule
 Oswalt rule:
o if something isn’t in auto category [non-auto are perception,
memory, capacity], it is ok to call maybe collateral W only if it is
relevant [other than the credibility of prior W that he is
attacking] to a material fact/issue OR it is to show that the
prior W wasn’t there as the prior W claimed.
o if something isn’t in auto category, it is not ok to call maybe
collateral W if it is only to show lack of credibility of a [other] W

Deadman Statute
- General
o State statute [not in FRE] that bars the living party [someone with an interest in
the outcome of the case] from testifying against the deceased’s estate with
regard to communication or transaction with the deceased unless there is a
waiver
 Waivers
 The decedent’s rep failed to object to the testimony;
 The decedent’s rep testified to the communication;
 The decedent’s testimony is brought before the jury in the form of
a deposition or in another form.
 The living party called a W to testify about
transaction/conversation
o Note: this can occur in a car accident case where a D would die before trial
[Zeigler v. Moore]
o There is no deadman statute in FRE, but Erie doctrine makes sure that federal
court follows the state substantive law in the jurisdiction that it sits so federal
courts use deadman statute
o NY Deadman’s statute
  NY loves deadman’s statute
- It prevents the living party from testifying in certain circumstances [note: it doesn’t prohibit a
non-party W from testifying]
o Why?
 To even the playing field. The dead person can’t testify.
o Living party can’t testify to what dead party said to him.
o It is written in two different ways
 Prohibits living party from testifying regarding ANY transaction/event between
living party and dead party
 This prohibits most things
 Prohibits living party from testifying regarding communication between him
and dead party
 This prohibition is very limited
 Hypo
 Red car runs over red light and hits green car, and the green car driver is
dead
o If state statute only prohibits communication, the living driver
[red car] can testify that he was driving in normal speed and all
of a sudden green car hit him.
 Doesn’t matter if green car driver is dead
o If state statute prohibits transaction/event, the living driver [red
car] can’t testify as to what happened (ie: that he was driving
lawfully etc…) because he is testifying as to something involving
the dead guy [green car]

Competencies
- General
o FRE
 Everyone is considered competent unless the rules say otherwise.
 Ws can’t testify unless they have personal observation of what happened
 Hypnotized Ws
 [FED Rock v. Arkansas] hypnotized people can testify
 [NY] Can testify
- Infancy
o Age 4-11 you can testify if information is presented to the court showing that you
understand the significance of the oath and the difference between truth and falsity.
o Child molestation situation
 Suppose a young child was molested. If he is found incompetent to testify under
oath, the workaround is to take him to a doctor who will examine him for
physical injuries and then have him question the child as to what happened.
  The doctor can testify to this because what the child said to him and the
physical injuries may match.
- Reliability of eye Ws
o Can a party call someone to testify that eyewitnesses are unreliable?
 In NY this is permitted in limited circumstances
 When there is a viable reason in the facts to believe that there is a
possibility of a mistake
o Short time
o Didn’t know him
o Bad lighting
o Description of the D by the W before picking D in the lineup isn’t
very specific or reason to think it is not reliable- too general.
- Mental disease
o A W with mental disability can testify [whether the person understands the
significance of the oath, has sufficient memory to testify accurately, and know
difference between truth and false].

Opinion
- Lay Witness
o general
 NY Lay W opinion
 The opinion is the kind that people ordinarily make [same as rationally
based on the W’s perception from FRE]
 Allows an opinion if there is no other way to express what happened
o Example: that party is loud. No other way of saying party is loud
so just saying loud is ok.
 Rational basis for opinion in NY
o It would be waste of time to describe the underlying facts
 Ie: W says the car stalled. Everyone knows what he is
talking about so there is no need to describe further.
 FRE Rule 701. Opinion Testimony by Lay Witnesses
 Lay W can testify if their testimony is
o rationally based on the witness’s perception,
o helpful for the jury to determine a fact in the issue, and
o not based on scientific or specialized knowledge
  [Prohibition on specialized knowledge is misleading
because lay Ws can testify to things like how they know
a person is drunk, although such knowledge is
specialized knowledge since not everyone knows it.
- Expert opinion
o General
 We need to go through R 702-705 for admissibility of expert testimony
 [Meier v. Ross General Hospital] Must call an expert if you will be unable to
meet your burden of production of evidence without their testimony
 Without expert, you won’t get to jury
 Admissibility of expert opinion
 First thing you need to do to establish an opinion by expert is to
establish that the person is an expert.
o Can show that he is expert by
 Expert through education
 Expert through training
o Get him to testify as to what kind of expert he is, and how he is
an expert in a particular field
 Then you Proffered to the court (like offering an exhibit into evidence)
o “I ask at this time that the Court would rule that Dr. X. is
qualified to testify in the form of opinions about…”
o The other side cannot object, or ask for voir dire limited to the
adequacy of the qualifications for the witness to be allowed to
testify as to opinions in the area of claimed expertise
 Scope of expertise
 Can be narrow or broad
 Scope of expertise of a physician is any area of medicine.
 Expert testimony is merely an opinion
 It is up to jury to decide how much weigh to give it
 Try to get an expert to balance out the other side’s expert
o If you can’t get an expert to say what you want, get an expert to
say “experts can’t tell”
 Since experts have became a full time job, try not to call a plaintiff expert if you
are plaintiff etc… because he may be accused of bias through economic reason
 Can anyone be an expert?
 For expert to be an expert, they must have specialized knowledge or
training that is established as something that works
o Examples
 you can’t testify as expert in crystal ball since it isn’t
established as something that works
 Lie detectors
 Not established as something that works
 o Unreliable
 How do you know if something works?
o Frye/NY standard
 Delegates to the profession whether something works
 Look at whether a theory is generally accepted
in the relevant professional community
o If it is, it is something that works
o [Majority/Federal] Daubert standard
 Shortform: judge must make independent
determination as to whether a theory works by using
the factors, and whether the method/technique was
applied properly in this case

o R702 Steps
 Get expert qualified as an expert
 How do you get someone to be qualified as an expert?
o Get him to testify as to what school he went to, what training
he had etc….
 Show that his testimony will be helpful to the jury
 [R: HELP THE JURY STANDARD if the expert’s testimony will not help the
jury then his testimony won’t be admitted;
 in COMMON LAW/NY, expert testimony is allowed only if the subject
matter he is testifying is beyond the comprehension of the jury]
 Show that the opinion is based on something that works
 If the opinion is about something that doesn’t work it won’t be helpful
 [Daubert FED] Judge will decide on whether testimony is on something
that works based on factors such as [rather than just accepting it as
reliable based on general acceptance by professionals in the field] SIX
FACTORS TAPES
o Testability
o Peer review/ publication
o Error rate
o Standards
  Whether standards exist for the operation of the
technique.
o General acceptance
o Negative factor: if the technique was developed for the
purpose of the case’s litigation
 [Frye/NY] Delegates to the profession whether something works
o Look at whether a theory is generally accepted in the relevant
professional community
 If it is, it is something that works
 Show that the expert rationally and reasonably applied his expertise on this case
o R 703
 General
 R703 allows expert to use hearsay evidence because it allows him to
give his opinion in court on non-record facts/data that he was aware of
and such facts/data cannot be admitted into the record, IF experts like
him would rely on things like that in forming opinion and the use of such
non-record facts/data in explaining eW’s opinion has probative value in
helping the jury evaluate the eW’s opinion substantially outweighs the
prejudicial value.

o Ie: expert goes to fire scene and interviews Ws, and testifies
that fire was set intentionally. The Ws cannot be found so they
can’t be admitted into evidence. The eW may still be able to
give his opinion in court, even though the opinion is based on
facts not admitted into evidence [because Ws who told these
“facts/data” are not available] under R703 if the use of such
non-record facts/data in explaining eW’s opinion to the jury has
probative value that substantially outweighs the prejudicial
value.
 Expert testimony may be based on
o Facts or data in the case that expert was made aware of or
observed
 R703 4-part Step
 Evidence [nonrecord facts/data on which the eW is based on] used is
[otherwise] inadmissible
 The non-record fact is what people like me [the testifying eW] in the
field rely on
o get the testifying eW to say this on stand
 The prejudice doesn’t exceed the probative value, and
 The evidence is only admitted for the purpose of helping the jury
understand the eW’s testimony
 o Rule 704. Opinion on an Ultimate Issue
 (a) In General — Not Automatically Objectionable. An opinion is not
objectionable just because it embraces an ultimate issue.
 Ew can give opinion on the ultimate issue in a case. [but not legal
conclusion]
o Legal conclusion NOT ALLOWED: “Did T have sufficient mental
capacity to make a will?”
o Opinion on ultimate Issue ALLOWED: “Did T have sufficient
mental capacity to know the nature and extent of his property
and the natural objects of his bounty and to formulate a rational
scheme of distribution?”
 (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.
 [Washington v. US] In criminal case, expert W can say that D suffers
from mental illness, what the mental illness is, and its effects on D.

o However, eW cannot say that because D has that mental illness,

he lacks the substantial capacity to conform to the standards of
the law [can’t say the mental illness caused the D to commit the
crime], or the mental state of the D at the time of the crime.
 [US v. West] It is up for jury to decide whether a D is sane or
insane.
o An expert W cannot testify to the mental condition of D
that is an element of crime charged or of a defense
[testimony to the ultimate fact]
 [US v. Scop] LEGAL CONCLUSIONS exceed the permissible scope of expert
testimony under FRE 704

o Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion

 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.
 expert can simply give conclusion unless court says otherwise.
 [Rabata v. Dohner] eW doesn’t have to be given hypothetical questions
or lay foundation before giving his opinion
 If the other side wants to, he can do so on cross.
- Substitute for expert testimony
 o [R803(18)] Learned treatise
 Free expert rule
 A party can use/rely on a statement in a book [scientific/medical/technical etc…]
to testify if
 The book is established as a reliability authority by that party expert W’s
admission, another party’s eW testimony, or by judicial notice; and
 the statement is called to the attention of an eW on cross, or relied by
an eW on direct.
 If admitted, the statement may be read into evidence but not received
as an exhibit.
 What do you look for that will signal to you that this could be a R803(18)
situation?
 That there is a treatise that I want to read to the jury to make an eW
look bad because it attacks the eW’s credibility
o If I am not trying to read a treatise to the jury, it is likely that it is
not R803(18) situation.

Evidence Regarding [similar] prior crimes, wrongs or [bad/other] acts

- General
o This is about a party introducing evidence to show that D was a bad boy for the purpose
of showing that he is guilty of the current crime being charged.
 R 608 and 609 are about introducing evidence of bad acts and prior
convictions of WITNESS who is testifying to attack credibility of that W
- FED
o FRE 404B allows you, in civil/criminal case, to offer crime, wrong, or other act
into evidence IF the D’s prior/subsequent act is relevant to the current case for
the purpose of showing D may be guilty.[motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident, ETC…]
Can’t just show prior/subsequent acts that aren’t related to the case just
to make him look guilty to the jury [ie: jury will be prejudicial by knowing
about bad things the D did]
o Prosecution must provide reasonable notice of intent to offer at trial of the act
that he will introduce in trial when requested by the D.
o R404A prohibition on character evidence [with exceptions] does not apply when P
wants to introduce specific conduct to show the relevance of that conduct to the
current case.
  Prosecution cannot introduce conduct to merely show D’s character, however.
o Motive: A defendant is charged with murder. To show that he was the killer, the
prosecution seeks to introduce evidence that the victim was the only eye witness
against the defendant in a pending burglary case.
o Intent: The defendant is found with a quantity of drugs. He claims he has these drugs for
his personal use. In the past, he has had the same quantity and has sold the drugs. The
prosecution can offer the past drug sales to show that, when he has that quantity, his
intent is to sell it.
o Absence of Mistake: Brides in the Bath Case. Man calls the police to say his wife had
drowned in the bathtub. The police found that this man had two previous wives who
drowned in the bathtub.
o Identity: Buffalo Bill killed young plus sized women and removed their skin dumping
their remains in the river days later after placing a cocoon in their mouth. This evidence
is used by the prosecution in a homicide case with similar facts.
o Common Plan or Scheme: Defendants patrolled neighborhoods just before Christmas
posing as security guards inquiring as to if the homeowners would be home during the
holidays. The defendants would then enter the home and take valuables. Before leaving,
they would turn on a faucet flooding the house. These prior acts could be used to show
the defendants were responsible for the current crime.

- NY
o In NY, you can offer crime, wrong, or other act into evidence ONLY to prove
MIMIC [things listed below are the only things the Prosecutor can use prior acts to
prove in relation to the current case]
 Motive, intent, absence of mistake, Identity, and Common scheme or plan.
 They can be used to impeach only, not substantively for it’s truth. [think false]
- Can D show prior similar acts of someone else to show he didn’t do the crime?
o Yes
- Joinders and R 404b
o If the crimes are separate and therefore should be severed but are going to come in as
evidence of prior similar acts, the crimes can be joined and tried together
 Not prejudicial because the jury is going to hear all about the other charged
crimes anyway
o General Rule: If separate crimes would be admissible under 404(b) as prior similar
acts, you can try them jointly.
- Use of D’s prior/subsequent acts in Civil Cases (can apply in criminal cases too)
o Use R404B in FED, Use MIMICs for NY.
o Less bad act evidence comes about in civil cases because the issues are not of the nature
where prior crime evidence would be relevant.
 Most civil cases have to do with negligence or product liabilities. In these cases,
prior conduct may well be relevant to the current case
 Motive
 o Dallas Railway & Terminal Co. v. Farnsworth: plaintiff was
injured when she boarded the street car and the operator started
the car before she could get a seat, plaintiff wanted to offer
evidence that the operator had abruptly started at every stop and
he did this because he was in a hurry  evidence is permissible
because it shows motive (someone tends to be careless if they
are in a hurry and this is evidence that the operator was rushing)
 Knowledge
o In a slip and fall case, evidence that other people slipped is
admissible to show that the ground was slippery and that the
defendant knew or should have known that it was slippery
 Evidence that no one else slipped and fell is sometimes
admissible, based upon the facts of the case
o R406 Habit and Custom
 It is “invariable habit and custom”
 Key words: always, automatically, regularly, habitually.
 Admissible in form of opinion/specific act
 NY: does not allow it except in products liability case the court has allowed proof
of “ deliberate repetitive practice by one in complete control of the circumstances
o R408 Compromise offers and negotiations
 Rule 408: statements made during a negotiation session admitting or conceding
material issues of fact are not admissible as evidence in court [also inadmissible
are accepting/offer to accept a consideration to compromise the claim]
 It can be difficult to determine whether a conversation was or was not a
settlement negotiation
o R407 Subsequent Remedial Measures (SRM)
 Evidence of SRM is INADMISSIBLE to prove: If offered to prove [FAULT]
negligence, culpable conduct, design defect, need for warning
 SRMs can be used to show: Ownership, control, to impeach, feasibility of
precaution if controverted.
 Public policy: To encourage people to fix dangerous condition w/o fear
that it could be used against him
 NY:
 Evidence of post-accident manufacturing changes is admissible in strict
products liability cases involving manufacturing defect.
o R410 Inadmissibility of Pleas, Plea Discussions, and Related Statements
 A plea and any statements made during plea negotiations by a defendant to a
prosecutor in a criminal proceeding will be: Inadmissible v. the D later
 This rule applies to:
o pleas of guilty later withdrawn;
o pleas of nolo contendere (no contest); and
o offers to plead guilty (i.e., any statements by defendant during
plea negotiations).
 It does NOT apply to: Statements made to police. Applies only to
statements made to prosecutors.
 Variation: If defendant pleads guilty (i.e., an actual guilty plea = waiver
of the right to a jury trial), the guilty plea may be admitted substantively
 as a statement by party opponent in a subsequent civil or criminal case,
or to impeach, if defendant testifies.
o R411 Liability Insurance
 Evidence that a person: Was or was not insured was inadmissible to prove
negligence or fault
 EXAMPLE: Following an accident, defendant says, “It was my fault
(admission of fault; admissible), but don’t worry, I have plenty of
insurance” (inadmissible).
 Exceptions: Evidence of insurance against liability may be admitted for
another purpose, such as: Proof of agency, ownership/control,
bias/prejudice of W

Evidence Regarding Defendant’s character

- General
o Deals with introduction of testimony as to character of the D/V
 Testimony as to the character of the D or V can be introduced by reputation
evidence [what people in community thinks of him] and opinion evidence [what
a person who is sufficiently close with the D or the V thinks of them]
 Rule 803(21): reputation of a person’s character among associates or in
the community is not excluded by the hearsay rule
 R405A When evidence of a person’s character or character trait is
admissible, you can use reputation or opinion evidence to show
character [On Direct]
o On cross-examination of the character witness, the court may
allow an inquiry into relevant specific acts of the person’s
conduct.
o Civil Cases
 FRE 404(a): Character evidence is INADMISSIBLE to prove conduct in conformity
therewith.
 Exception: Where character is an essential element of a cause of
action, claim, or defense
o [DCEH] Specific causes of action where character is an issue:
  Defamation. P’s character at issue
 Child custody. Parent’s character
 Negligent entrustment. Person being trusted character
 Negligent hiring. Employee character
 All three forms of character may be admitted: Reputation, opinion, and specific
act (ROSa)
 When dealing with methods of proving character under Rule 405(a), the
evidence may be offered in the form of opinion or reputation. If it’s
reputation, the witness must establish he is aware of the reputation of
the party in the relevant community.
 If it’s opinion, the witness (proponent) must establish that he has
sufficient knowledge to form an opinion about the particular trait.
 When character is an essential element of the trait, specific instances of
that person’s conduct may be offered as well. Rule 405(b).
o R404A[2] Use of character evidence is admissible FOR CRIMINAL CASE
 Criminal D must be the one to first bring up character evidence [by trying to
make himself look good or make victim look bad]
 After criminal D’s character evidence of himself is admitted into evidence,
P can bring up his own character W to rebut [ie: if D said he is honest, P
can only show that he is dishonest- not that D is violent] D’s
character/reputation; or
 if D attacks character of V, use character W to rebut the attack or
show that D has similar character.
 If D claims self-defense
 P can bring up character evidence of peacefulness of V even if D
doesn’t bring up character W, but can’t how bad character of D.
 NY:
 D’s character W may testify to D’s REPUTATION but NOT to:
o Specific acts of the D, or his OPINION of the D.
 On cross, the dW may be asked if he heard rumors contrary to his
testimony about D’s reputation but not if he has actual knowledge
of specific contradicting instances.
 When D claims self-defense, D can testify to
o V’s reputation for violence ONLY IF D was aware of it at
the time of self-defense.
 OK to show only D’s state of mind, not that V was
initial aggressor UNLESS V has threatened the D.
o V’s specific acts of violence against third party only if he
was aware of it at time in issue.
- Direct examination of character W
o [In NY] Direct examination of character W is limited to these 4 topics
  Do you know the defendant?
 Do you know other people who know the defendant?
 Have you heard them discuss his reputation for X?
 What is that reputation?
 For Federal courts: What is your opinion of defendant? [add this]
o R405B On Direct, Character W CANNOT testify as to specific instances of conduct of D as
to why he has that reputation
- Cross examination of character W
o Not limited
 You are allowed to ask specific instances of dishonest conduct.
 Format: “you testified that D has a reputation for honesty. Have you
heard that he was convicted for theft, he stole money from golf course
when he was treasurer?”
 P is allowed to ask anything he has a good faith basis to believe that the D did
which is inconsistent with what the character W testified.
 Doesn’t matter if inadmissible otherwise.
- Can you call investigator, who was sent out to investigate the character of D by interviewing
people who know D, to give character evidence?
o No, interviewing people with regard to D’s reputation does not equate to knowing about
D’s reputation

Hearsay
- General
o Hearsay is considered unreliable evidence- the only thing a W knows about what
happened is he heard someone say it.
o Hearsay is an out-of-court statement that is being offered by a party for the truth of
the matter asserted in the statement
 If the statement is NOT OFFERED for the truth of the matter asserted in the
statement, it is NOT hearsay.
 Note: even if the Declarant who made the out of court statement being offered for
the truth of the matter asserted in the statement is the current W testifying to that
statement, it is STILL HEARSAY.
 NY: Hearsay exception
 “Statement” means a person’s oral assertion, written assertion, or nonverbal
conduct, if the person intended it as an assertion.
 Statement can be
 Written
 Oral
 [nonverbal conduct] Assertive Conduct
o Examples:
 Point finger to give direct
 Shaking head yes/no
  Dying person draws pic of killer.
o NON-VERBAL conduct NOT INTENDED as an assertion
 FED: Not hearsay
 NY: Hearsay
 Examples:
 Videotape that shows D drunk
 D walking with a limp
 D speaking with slurred speech
o Silence
 [NY] Hearsay
 To offer silence as a NON-hearsay statement,
must show
o Everyone in the setting is similarly
situated and
o No one would have preferred to remain
silent.
 [FED] Not hearsay because speaker, by remaining
silent, does not intend to make an assertion
o Gestures/nonverbal conduct
 Ie: pointing
o Implied assertions
 It is an assertion based on circumstances
 Example: A woman opening an umbrella is implied
assertion that it is raining
 Fed Implied assertion is NOT HEARSAY so it is
admissible.
 NY Implied assertion is HEARSAY so it is
inadmissible
o Unless there are Exemptions and Exceptions, R802 bars hearsay evidence.
o Even a prior out of court statement of the W who is currently testifying can be hearsay if
it is offered to prove the truth of the matter asserted.
 If the declarant of the statement that is offered for truth of the matter asserted
isn’t available for cross-examination when the statement was said, it is hearsay
o 3 actors in a typical hearsay fact pattern
 Declarant
 Guy who said something outside of court
 W [same guy. Plays 2 different roles]
 Heard the declarant say something
 Testifying as to what she heard the declarant said.
 Although W may have heard declarant saying something, the W cannot know
whether what the declarant said is true
 When crossed as to the truthfulness of what the declarant said, the W will
not know anything other than that he heard the declarant say it.
o Hearsay and non-hearsay distinction has to do with what is being offered to prove
 If out-of-court statement is offered to prove the truth of the matter asserted
in the statement, it is hearsay so not admissible.
 If out-of-court statement is offered for ANY relevant purpose besides to
prove the truth of the matter asserted in the statement, it is NOT hearsay
  If out of court statement is offered to prove the fact that it was said, it is
not hear say
o Ie: to prove that there was notice, since it was said.
 R403 However, a statement offered for non-hearsay purpose may be
inadmissible if the probative value is substantially outweighed by
prejudicial value.
 Examples
 “The passenger said the light was red” is hearsay only when offered to
show that the light was red (the truth of the matter asserted).  It is not
hearsay if it is probative of another material fact—that the passenger
could see or speak, was not color blind, or was a liar; or that the light
was operating, the witness could hear, or the driver should have
stopped when she heard that the light was red.
 Son called dad on phone and said “I am broke.”
o If dad offers this to prove that the Son is broke, it is hearsay
o Not hearsay if offered to prove [if relevant to case]
 Phone was working that day
 Son was alive that day
 Son could speak English
 A party can offer an out of court statement to show effect the statement had on
W.
 Ie: Imagine a murder case, where the defendant, pleading self-defense,
testifies that he had been told the victim had a loaded gun, had
threatened him, and had previously killed five people.

o Hearsay Dangers: ambiguity, insincerity, incorrect memory, inaccurate perception

 If a W testifies “I saw the D shoot the V”, his testimony can be crossed as to the
W’s perception, memory, and narration as well as sincerity. But if a W say “Tim
told me he saw D shoot the V”, Tim cannot be crossed as to what he saw.
- Offered for the Truth of the matter asserted in the statement
o For out of court statement to be hearsay, the statement must be offered for truth of the
matter asserted in the statement.
- Non- Hearsay
o General
 If out-of-court statement is offered for ANY relevant purpose besides to
prove the truth of the matter asserted in the statement, it is NOT hearsay
 Examples of non-hearsay
o Legal Operative Facts
o Verbal Act
o Declarant’s statement is offered to show effect on the hearer
o Circumstantial of speaker’s state of mind
o Prior inconsistent statement that was given under penalty of
perjury [Affidavit not OK]
 o prior consistent statements offered to rebut a charge of recent
fabrication, improper influence or motive
o Prior ID if Declarant is in court.
o R801D2 Admission
o Silence
 In NY, Silence can be a non-hearsay statement if
 Everyone in the setting is similarly situated
 No one would have preferred to remain silent
 FED: silence is not hearsay
o Legal Operative fact
 A statement that has legal significance at that time the statement was made just
because it was said- regardless of its truthfulness
 It is relevant for the fact that it was said so it is non-hearsay
 The W must have heard the operative fact when it was said- if the W
knows of the operative fact AFTER it was said [because it was told to the
W] the statement cannot be operative fact.
o Hypo: H and W own store where there is a slip and fall. H said,
before the V fell, “lady watch out for the ketchup”- operative
fact because it has legal significance at the time it was said
[shows notice to V]
 W can testify to this statement
 HOWEVER: H told W on bed after the incident “I told
the V not to step on the ketchup”
 W cannot testify to this statement as operative
fact because this statement doesn’t have legal
significance when it was said.

 Example: “I offer you my car for $6000," or “I accept your offer,” or “Go ahead,
search the car,” or “This is a stick up.  Give me your money or I’ll shoot.” 
 There is no need to cross-examine the declarant about any of the four
testimonial capacities (perception, memory, communication, sincerity)
because all we care about is whether the words were said, not whether
they were true. 
 The witness testifying at trial about the statement can be cross-
examined about whether the words were actually said.
 Examples
 Statement showing notice in negligence case
o If a statement is offered to prove notice in negligence case, it is
not hearsay.
 [Koury] kid malpractice suit where P’s introduction of
label on drug bottle that says it is not suitable for use by
kids.
 If offered to prove that the drug bottle is not
suitable for use by kids, it is hearsay
 Since it was offered to prove that D had notice,
it is not hearsay.
 Statement showing offer and acceptance
  Statement showing donative intent
o “I want you to have this car”
 Statements that have legal consequence- libelous or slanderous
o Example: defamation case
 P wants to introduce W’s testimony that D told his
friends that P turns in employee’s work because he is
incompetent.
 Admissible as non hearsay because it is being
offered as an act to prove that D made
statement, not the truth of the statement, that
P turns in employee’s work… this is an example
of a statement with an independent purpose
(other than the truth of the matter).
o Verbal act
 It is combination of physical activities and simultaneously spoken words
 Rule: Four different things must work together for it to be admissible as
non-hearsay verbal act
 There has to be conduct;
 admissible but ambiguous;
 Simultaneous words; and
 Clarifies ambiguity, making it an operative fact.

o R801D2 Admission
 General
 Admission is a party opponent’s statement. It is statement made by one
party offered into evidence by another. Anything an opponent party said
to you, you can use in court through offering into evidence
o Can’t offer your own admission into evidence
 It is a truth of the matter asserted.
o Classically, it was considered exception to the hearsay rule.
 Hearsay but good reason to admit
 Does not have to be against interest when admission is made to use.
 Example of admission
o Guy put down $1k as value of his house for purpose of tax.
House burned down and guy wanted $100k from insurance
company. Insurance company wants to admit the fact that the
guy put $1k as value of his house for tax purpose.
 This is admissible as admission- if you said it you can’t
hide from it.
 Example of partial admission
 o Bank robbery. Guy claims he was at the bank but didn’t do the
robbery.
 Silence can be admission
o If reasonable person would deny the accusation.
 False exculpatory statement can be admission
o Did you rob the bank?
 No, I was in Tulsa with my aunt.
 Turns out he wasn’t with his aunt in Tulsa so it
is admission because why else would he lie?
 Admissions are
o A. What a party says in individual or representative capacity
o B. What a party manifested that it adopted or believed to be
true
o C. [Authorized Rep] What a person that I authorized to speak
for me says
 [Mickeon] A party can use what an opponent party says
in opening statement as admission, but he cannot use
what the opponent party says in closing statement
 Note: there must be, in addition to this admission,
independent proof as to the existence of authorization
for the Declarant to be sufficient to go to jury [the
admission can be admitted but it wouldn’t be enough to
go to jury].
o D. [Employment] What an employee/agent said about what he
does for work, while still working for the employer
 [Mahlandt v. Wild Canid Survival & Research Center,
Inc.] Admission of employee can be used against
employer
 Limitations
o What employee said has to be what he
does within scope of his job, and
o The statement is made while he is an
employee.
 Note: there must be, in addition to this admission,
independent proof as to the existence of employment
relationship or scope of employment to be sufficient to
go to jury [the admission can be admitted but it
wouldn’t be enough to go to jury].
o E. [Conspiracy] Statements during and in furtherance of
conspiracy
 Co-conspiracy statement is admissible against all other
people in the conspiracy if it is made DURING and in
FURTHERANCE of the conspiracy.
  If statement is made after the conspiracy, it is
admissible only against the person who spoke.
 If the conspirators are doing things that don’t
have an relationship to helping the crime
succeed before or after the conspiracy starts,
they aren’t authorized
 [Urbanik] If a party is merely talking about committing a
crime instead of getting into specifics to achieve the
crime then that party is not committing conspiracy.
 Note: there must be, in addition to this admission,
independent proof as to the existence of conspiracy to
be sufficient to go to jury [the admission can be
admitted but it wouldn’t be enough to go to jury].
o 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).
o [they are all admissible] ALL OF THESE ARE ONE-WAY
STATEMENT
 Admissions are all party-opponent statement [one-way
statement]
 The speaker can’t get in his own statement into
evidence.
o The other side is the only one who can
get in his own statement.
- R 803 Hearsay Exceptions- REGARDLESS of whether Declarant is available as a W
o PUSMRBAGDT
o R803[1] Present Sense Impression. A statement describing or explaining an event
or condition, made while or immediately after the declarant perceived it.
 This is spontaneous state of mind. The idea is that something happens and you
make statement while it is happening, which means that you don’t have time to
think of a lie.
 NY: Exception applies only if there is corroboration of the trustworthiness of the
W’s description of an ongoing crime.
 Examples:
 Someone on the phone saying “Joe just walked in”
 “the sky is so bright. You can see a million stars”
 NOT OK: 30 mins after the event, W tells P “D ran the red light”
o R803[2] Excited Utterance. A statement relating to a startling event or condition,
made while the declarant was under the stress of excitement that it caused.
 Admissible on the theory that the state of excitation/duress caused by the event
makes it unlikely that the declarant is in a mental state to think of a lie
 The utterance can be about something that happened in the past as
long as it’s still in the state of excitation caused by the event
 “omg the car hit him”
 “omg the car just hit him 10 minutes ago!”
 Requirements
 A startling event/condition;
 A statement relating to that event;
 Made by a declarant with firsthand knowledge; and
 Made while the declarant was under the stress of the excitement
caused by the event.
o R803[3] Then-Existing Mental, Emotional, or Physical Condition.
 Statement of Dec’s then-existing physical, emotional, or mental condition
is admissible if relevant to show Declarant’s state of mind.
 Includes statements to prove: intent, plan, motive, design, mental
feeling, pain, or bodily health.
 Statements of memory/belief are INADMISSIBLE UNLESS it relates to
executive, revocation, ID, or terms of Declarant’s will.
 Does NOT apply to PAST sensations, look for present/future.
 Statement need not be made to medical professional
 Examples of statements that are ok under R803[3]
 I don’t feel good; I am going there tomorrow.
 Johnny is pain in the ass, I hate him.
 I don’t want to see him again
 “I am going to pay him”
 While a statement regarding the existence of a mental, emotional or physical
condition falls within this exception, explicit statement of CAUSE does not [but
inference as to CAUSE can be made]
 Present state of mind rule [R803(3)] allows you to admit statements that
are relevant to how the declarant felt at time of making the statement. In
some circumstances, statement about how you feel is relevant in the case
as circumstantial evidence that something happened in the past to
produce that feeling.
o Hypo: Declarant said “don’t let uncle come near me, he’s cruel.”
This can be used to show that the uncle probably did something
cruel to the Declarant.
 We can use the fear to infer something probably
happened in the past
 If declarant had said “uncle scared me so I changed the
will”
 
Can’t use state of mind R803[3] to admit into
evidence. It is talking about past state of mind
[past from the time that he made the statement]
o R803[4] Statement Made for Medical Diagnosis or Treatment.
 The purpose of statement must be for the purpose of obtaining a medical
diagnosis or treatment, and it is useful for medical diagnosis/treatment
 Statement can be made to nurse or intake personnel, don’t need it to
be made to doctor.
 NY: admissible only if made to a treating physician unless Dec is dead.
 Statement that assigns FAULT is NOT OK.
 Ex: “I was hit from behind” OK
 Ex: “I was hit from behind by a car with plate #213123” NOT OK
 Statement doesn’t need to be made by declarant for the purpose of the
declarant obtaining medical diagnosis or treatment for himself
 You have look at parts of the statement and make sure ALL THE PARTS of the
statement are relevant for the purpose of obtaining medical diagnosis or
treatment or the part not relevant will be struck.
 Hypo: doctor asks patient what happened. Patient answered that he got
hit by a car. When? Last week. Red car went through red light and hit
me.
o The fact that red car went through red light isn’t relevant for
the purpose of obtaining medical diagnosis or treatment.

o R803[5] Recorded Recollection A record that:

 (A) is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately;
 (B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
 (C) accurately reflects the witness’s knowledge.
 If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.
o R803[6] Business Record
 For business record to be admissible, you must
 Call custodian [record keeper] to testify that [3 things]
o The record was made at or near the time by- or from
information given by- someone with knowledge;
 o The record was kept in course of a regularly conducted activity
of a business; and
o Making the record was a regular practice of that activity.
 Notes
o File clerk can be custodian but they have testify that they know
the 3 things that custodian is required to testify.
o 2nd and 3rd statements show the importance of the record to the
company- thus makes it reliable.
o Party who wants to offer business record into evidence does so
by asking LEADING questions to the custodian although it is on
direct because he is laying foundation to submit the document
into evidence.
 R-803 (6) business record exception also applies to business record that is a
hearsay within hearsay [situation where, in a chain, there are multiple people
passing on information that was told to them the data entry person]
 R805 Rule: for hearsay within hearsay to be admissible, each speaker
[each level of hearsay] has to be covered by hearsay exception.
 Accident reports made by companies are admissible as business records
 now accident reports are used in the regular practice of running the
business since Congress required them to make them.
 Police accident reports based on what Ws said are not admissible as business
records
 Reason: Ws who talked to the police, who were making the accident
reports, do not have same interest in making such the report is accurate
 Note: if the accident reports contains admissible evidence [such as
admission by a party], that part can be admitted.

 Opinions that are in business record

 In civil cases, the issue is determined by looking at whether the
investigator came to his opinion by facts in the investigation document
and whether it is reliable [which can be shown by showing that he
followed investigation procedures]
o If these are met, they are admissible as opinion in business
record
 Hypo: There is a fed agency that sent group of people to study school
district to find out whether the pattern of racial assignment in different
school is result of accidental or intentional discrimination. Report said it
was intentional discrimination
o Admissible because the investigators did what they were
supposed to do [followed investigation procedure] such as
 having hearings, collected documents, met Ws who testified,
and made report based on these facts.
o R803[7] Absence of Business Records
 This is hearsay exception for absence of a business record
 Evidence that a matter is NOT included in records/data compilations
kept in accordance with the business/public records rules MAY be
ADMITTED to prove the non-occurrence of the event/ non-existence of
the matter.
 This is about proving that, since there is lack of mentioning in a
record of a matter which would ordinarily be mentioned [if it
occurred] in the record, the matter never occurred.
 Foundation W required.
 Ex: Plaintiff claims he ordered a briefcase from a company, while the company
claims it did not receive the order. The company can offer into evidence the list
it keeps of all orders received to prove that plaintiff’s order was not there.
 Evidence that a matter is not included in a record described in paragraph (6) if:
 (A) the evidence is admitted to prove that the matter did not occur or
exist;
 (B) a record was regularly kept for a matter of that kind; and
 (C) neither the possible source of the information nor other
circumstances indicate a lack of trustworthiness.

o R803[8] Public Records. A record or statement of a public office if:

 (A) it sets out:
 (i) the office’s activities;
 (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
 (iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
 (B) neither the source of information nor other circumstances indicate a lack of
trustworthiness.
 803(8) is a limitation on 803(6) when the business document of the gov’t is
offered in criminal case- the document is considered to be offered as substitute
for the actual testimony of the people involved so has conflict with
 Confrontation Clause. We don’t want to substitute a live officer’s testimony with
a report
 Under R803(8), reporting as to the acts of the investigation and the
conclusion of the investigator in the criminal case may not be
introduced through business record.
o Investigative people who did it have to come and testify.
o NOTE: If the gov’t record is being introduced against a criminal
D, NOT OK. The people who did it have to come testify
 OK to use the gov’t record for everything else [ie: civil
cases, or to use it against the Gov’t in criminal case]
 Police accident reports can be introduced as business records of the
gov’t in civil case
o BUT Police accident reports based on what Ws said are not
admissible as business records
 Reason: Ws who talked to the police, who were making
the accident reports, do not have same interest in
making such the report is accurate
 Note: if the accident reports contains admissible
evidence [such as admission by a party], that part can
be admitted.
 NY:
 Civil case:
o Admissible to show prior criminal conviction in a civil case
involving same facts at issue.
 NOT admissible to show criminal acquittal.

o FRE 803(9) Records of Vital Statistics

 Records or data compilations of births, deaths, or marriages are admissible if:
The report was made to a public office pursuant to requirement of law
 EXAMPLE: Birth certificate from hospital offered to show that child was
born on January 11, 2013.
o FRE 803(11) Records of Religious Organizations
o FRE 803(12) Marriage, Baptismal, and Similar Certificates
o FRE 803(13) Family Records
 Statements of fact concerning personal or family history contained in family
bibles; genealogy charts; inscriptions on family portraits; engravings on
tombstones, urns, crypts, etc. REMEMBER, admissibility versus weight to be
given.
 EXAMPLE: Ceramic egg inscribed with “To Chris, age 13, Easter April 14th, 1987”
to prove that Chris was 13 on that date.
  NY: such statements must be made BEFORE the controversy giving rise to the
instant litigation, and there must be independent evidence of the relationship of
the Dec to the family about which he speaks.
o FRE 803(14) Records of Documents Affecting an Interest in Property
o FRE 803(16) Statements in Ancient Documents
 If found in a place where these items are typically found. Think archives, library,
even shoebox.
 Includes statements in a document: That have been in existence for more than
20 years
 NY: 30 years
o FRE 803(17) Market Reports, Commercial Publications
 Includes statements of objective facts, not opinions.
 EXAMPLE: Telephone directories; credit reports; retail sales catalogs; Kelly Blue
Book; the Yellow Pages; Wall St. Journal.
o R803[18] Statements in Learned Treatises, Periodicals, or Pamphlets
 Short form
 A party can use/relied on a statement in a book
[scientific/medical/technical etc…] to testify if
o The book is established as a reliability authority by that party
expert W’s admission, another party’s eW testimony, or by
judicial notice; and
o the statement is called to the attention of an eW on cross, or
relied by an eW on direct.
 If admitted, the statement may be read into evidence but not received
as an exhibit.
 FED: can use for substantive reason.
 NY: can use only to challenge credibility of eW on cross AFTER he
testifies it is authoritative.
o R803[21] Reputation Concerning Character. A reputation among a person’s associates
or in the community concerning the person’s character.

- R 804 Hearsay Exceptions- When Declarant is Unavailable

o General
 There is a foundation requirement for R 804.
 This foundation req involves proving that admitting hearsay is necessary
o Do this by proving that the declarant is unavailable through
804A
o [PRUIM] List of when Declarant can be considered unavailable
 Declarant is barred from testifying about the subject matter of his statement
because court rules that privilege applies
 Declarant refuses to testify despite a court order to do so
 NY: in civil case, still considered available
  Declarant testifies as unable to remember the subject matter
 NY: in civil case, still considered available
 Declarant cannot be present or testify at the trial or hearing because of death
or a then-existing infirmity, physical illness, or mental illness
 Declarant can’t be found to subpoena. [missing]
 Declarant 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) the declarant’s attendance, in the case of a hearsay exception under
Rule 804(b)(1) or (6); or
 (B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
 Note: If the party who wants to introduce the hearsay evidence [proponent]
causes the unavailability of the Declarant to prevent him from attending or
testifying, then this Declarant isn’t considered “unavailable”  available.
NY: Dec unavailable even if it is caused by culpable negligence of
proponent; or if Dec is incompetent to testify under DM statute
o [FDIHW] List of Hearsay-Exceptions when the Declarant is unavailable
 (1) Declarant’s former testimony in a proceeding [trial/deposition etc.],
whether it is from current case or a different case, if it is offered against a party
who had an opportunity and interest to develop the testimony through direct,
cross, or redirect.
 In civil case: it is sufficient to offer against current party, if the
predecessor party [party from different prior case] had similar interest
as the current party, against whom the testimony is offered, to develop
the testimony through direct, cross or redirect.
 Note: this is testimony of W in some kind of prior proceeding [whether
from same case or different case doesn’t matter]- the W is now
unavailable to appear.

 Deposition
o If the party at deposition that could have represented your
interest but chose not to- you are stuck with it.
 Deposition can be used against you.
 NY: criminal case
o Admissible only if the current D was involved in the prior case;
and
o [I, 5th, M] Dec must be unavailable only because of: death,
illness, 5th A, or inability to be brought as W before court.
 (2) Dying Declaration [Can be used for Civil/Criminal]: Statement that a
Declarant, who believed he was about to die, made about the cause or
circumstances relating to his death is admissible.
 CL/NY Elements
o Declarant is unavailable [death or otherwise]
o Declarant believed he was going to die
o Wound
o Statement must be regarding the circumstances of why he is
dying
 An “abiding conviction of death”
o Declarant is dead
 FRE elements
o Declarant is unavailable [death or otherwise]
o Statement was made while declarant believes that their death is
imminent
o Statement must be regarding the circumstances of why he is
dying
 An “abiding conviction of death”
o Note: declarant does not need to die.
 (3) Statement Against Declarant’s Interest:
 Declarant’s statement that is made against his interest is admissible.
o Note: purpose of declarant in making the statement has to be
against his interest
o Interest can be
 Property interest
 Money interest
 Purpose requirement
o “I owe you $500”
 If statement is made to
dispute a $1k debt by
declarant to show that he
only owes $500, it is NOT
against his interest.
 Invalidation of Declarant’s claim against someone
else
 Exposure to civil/criminal liabilities
 Criminal liability: A declaration that is against
penal interest cannot be offered to show
speaker did it [thus D is innocent/exculpate] OR
to show that D is involved [inculpate] unless it
is corroborated, and a statement is not a
 statement against penal interest unless the
purpose of making the statement is to be
against declarant’s penal interest.
o This is normally used in situation when
a criminal D wants to call a W who
heard a declarant say he committed
the crime that D is charged with
[exculpation]
o NY a D cannot be convicted on a
confession or a statement of another
person unless it is corroborated.
 Neither can he be convicted
based on his own confession
unless it is corroborated
o Corroboration has to corroborate
particular event that is subject of
litigation rather than a piece of
evidence.
o Things to remember
 The “against interest” is relative to the type of
declarant.
 If he is filthy rich, he wouldn’t care much if he
exposed himself to loss of $10 with his
statement
 Steps
 Is the declarant unavailable?
 Is the statement against declarant’s interest?
o look at purpose for which it was made
if ambiguous
 If offered in criminal case to
inculpate/exculpate, it must be corroborated.

 When a statement is both in the interest and

against the interest of the Declarant
 MAJORITY: look at the purpose of the
declarant speaking
 MINORITY: Fragmentation approach
o Look at which part of declarant’s
statement is against his interest, then
 use it against him as declaration against
interest.
 Hypo G stopped by cop for DWI. Cop “I am
stopping you b/c you are driving while drunk.”
G—“I only had 8 beers…(against his interest)
I’m not drunk.” (in his interests). G gets in
accident. P, the other driver, calls the Cop to
testify as to what the Declarant Defendant said.
o MAJORITY- Purpose Test
 If the purpose is to show you
are not drunk
 - It is not declaration against
interest
 If the purpose is to show you
are drunk
 - It is declaration against
interest
o MINORITY- Fragmentation
 Look at which part of
declarant’s statement is against
his interest, then use it against
him as declaration against
interest.
 - Ie: I had 8 beers is declaration
against interest so can be used
against him.
 Statement of Personal or Family History: FRE 804(b)(4) (Pedigree Exception)
 Statement concerning the declarant’s own relationship by blood,
adoption, or marriage or other similar fact of personal or family history.
Very specific exception.
 EXAMPLE: A father, separated from his daughter since she was 7, sees
her on the street and says, “There is my girl, I will never lose you again.”
He dies the next day and the daughter wants to use his statement as
proof of paternity in a will contest

 Forfeiture by Wrongdoing: FRE 804(b)(5)

 A statement offered against a party who has engaged in wrongdoing
that was intended to procure the unavailability of the declarant as a
witness will be admissible (even if it would usually be barred by the
hearsay rule).
 EXAMPLE: Eyewitness gives statement to police. Accused then causes
witness to disappear; witness’s statement will be admissible.
R807 CatchAll
- General
o Courts are permitted to experiment with new hearsay exceptions if they are consistent
with the exceptions that currently exist
 Applies to “near misses” where something doesn’t quite fall within one of the
hearsay exceptions but is relevant and would add value to the case
o The statement must be: (3 ELEMENTS)
 Material. The statement has to be important enough to be worthwhile.
 No better way to introduce the evidence.
 In practice, basically all possible situations are 804—an available
declarant is always a better way, therefore 803 context wouldn’t apply.
The declarant basically has to be unavailable.
 Indicia of reliability = to the other hearsay exceptions.
 Equally reliable to existing hs exceptions
o 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.
o It uses mix of “near misses” and declaration against interest.
 Robinson v. Shapiro CASE: In a wrongful death action, P is a supervising roofer
working on a bilevel roof. There was a gated fence around the top level and
workers had to climb over the fence to get onto the roof. The superintendent
of the building (defendant owners’ agent) refused to open the gate, saying that
dogs will get out. P told his crews that refusal. Climbing over the fence, P falls
and dies. P’s estate sues building owner D. Superintendent who said he won’t
open the gate because dogs will get out is GONE.
 P wants to admit declarant supervisor’s statement to crew regarding
refusal of the superintendent to open the gate
o The superintendent’s statement is a vicarious admission taken
against the business owner. 801(d)2(d). 801(d)2(d) requires to
be about a matter within a scope of the employment and while
he is working.
 This is admissible

 What about the deceased supervisor’s statement to the crew that

superintendent refuses to open the gate.
o This is where R807 comes in
 It is equally reliable as R803 or R804 exceptions
  it may not be declaration against his [supervisor’s]
interest but it wasn’t in his interest to go climb over the
gate
 It is corroborated
 Dog shits were all over the roof so it makes
sense as to what occurred.

Confrontation Clause
- FED Crawford v. Washington Only applies to CRIMINAL CASE
o Confrontation clause is a right of accused to face it’s accusers/witnesses in criminal case.
o Girl calls 911 saying “help help, he’s hitting me”. Prosecution wants to use this
statement as evidence but the girl doesn’t want to cooperate. 911 operator testified- it
is excited utterance so it is hearsay exception.
 Court said although it is not barred by hearsay doesn’t mean it is acceptable by
confrontational clause
 If declarant knows or should know that what he says is to be used at trial, it is
barred by the confrontation clause
 If the statement that was made to 911 was made during exclamation, one could
say that the speaker was not thinking or aware that it would be used at trial.
 The part of the 911 call “help help he’s beating me up” may not be
barred by confrontation clause since it could be argued that the speaker
didn’t know that it would be used for trial, however the latter part when
the speaker answered to 911 operator’s questions such as “where are
you, what does he look like..” make it clear that these are info that the
speaker knew or should’ve known that would be used at trial against
the guy.
o So later part is barred.