Introduction

TRIAL PROCESS
Role of Jury vs. Judge
- Jury decides questions of FACT; believability of piece of evidence
- Judge decides questions of LAW; admissibility of evidence; preliminary questions
FRE 104(a). Questions of Admissibility Generally: Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence
shall be determined by the court, subject to the provisions of subdivision (b). In making its
determination it is not bound by the rules of evidence except those with respect to privileges.
o Preliminary Questions are determined by the court concerning the:
 Qualification of a person to be a witness
 Existence of a privilege
 Admissibility of evidence
 Testimony by accused
 Weight and credibility
FRE 104(b). Relevancy Conditioned on Fact: When the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the condition.
o Treated as a matter of competence – applies the substantive rules of evidence
o Court can consider inadmissible, reliable evidence to determine if other evidence is admissible
Organization of the Trial
1. Opening Statement: Plaintiff/Prosecution goes first
o Defendant may wait until after the P has presented his case
2. Pl’s Case-in-Chief: Presents the witnesses and tangible evidence to est. the facts needed
a. The Defendant cross-examines the Pl’s witness
b. Pl. redirects his own witnesses
i. rehabilitate the character of any impeached witnesses
3. D’s Case-in-Chief: Presents witnesses and documents to disprove P’s case and/or to establish affirmative
defenses
4. P’s Case-in-Rebuttal: P may present evidence and witnesses only to rebut the D’s evidence
5. D’s Rejoinder: D may only rebut evidence brought out in P’s rebuttal
6. Closing Arguments: The P usually goes first, then the D, and then the P gets a last chance to rebut the
D’s closing remarks
7. Instructions: The judge instructs the jury on the law, etc.
FRE 105. Limited Admissibility: When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
o Curative Instructions: Admonish the jury to exclude from consideration certain testimony it
heard or that was suggested during the trial
o Limiting Instructions: Advise the jury to consider certain proof only on ONE point or against
ONE party
o Summary of evidence/comment on evidence
8. Deliberations
9. The Verdict
o In civil cases, it simply states who won and the recovery amount unless there are special
interrogatories
o In criminal cases, it simply states whether the D is “guilty” or “not guilty”
10. Judgment and Post-Trial Motions: Time for appeal begins to run as soon as judgment is entered
o In a criminal case, a verdict of not guilty leads to a judgment of acquittal. The D is immediately
released from custody, and P gets no appeal

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  If the verdict is guilty, there is a sentencing hearing, then the sentence is pronounced, and
then the judgment is entered, from which D may appeal

11. Appellate Review

o Finality principle: Only permitted after the final judgment has been entered
o Procedural requirement: For FULL appellate review, party must have preserved its claim of error
by stating its position at trial
Possible Objections:
- Relevance
- Hearsay
- Improper impeachment
- Improper authentication
- Prejudicial
- Privileged information
- Objections under every other rule, and esp. the 400 series (relevance)

METHODS OF DIRECT/CROSS EXAMINATION

Direct Exam – witness on stand telling her own story
- Open ended questions only
o Exception: leading questions allowed
 When you have a child witness
 Identify hostile witnesses
 Witness fails to remember something important – May refresh recollection of witness
(FRE 612)
• Ask witness if recollection is exhausted
• Ask witness if looking at some evidence (movie, letter) would refresh their
memory
• Mark the exhibit and show it to the witness
• Exhibit is NOT admitted into evidence unless opposing party put it in
Cross Exam – lawyer is telling the jury the story and the witness agrees/disagrees
- Matters that you can cross-exam on:
o Anything suggested by the direct exam
o Issues of credibility, pleadings, and defenses (PDC  relevant evidence)
Excluding Witnesses from Courtroom – FRE 615
- Witnesses that are testifying are not allowed in the courtroom when other witness’s are testifying 
won’t shape their testimony
o Exception: if the testifying witness is the ∆ party or an expert witness
Foundation for Physical Objects
- Mark for identification
- Authentication that it is what you say it is
- Make offer into evidence

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 Relevance
OVERVIEW
FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: All relevant
evidence is admissible, except as otherwise provided. Evidence which is not relevant is not admissible.
- Just needs to be relevant to part of the case – just a brick in the wall
- A fact does not need to be in dispute in order to be relevant
FRE 401. Definition of “Relevant Evidence”: “Relevant Evidence” means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.
o Pretty Darn Clear: What is ALWAYS relevant
 P – Is it part of the Pleadings?
 D – Is it part of the Defense?
 C – Is it an issue of Credibility of the witness?
- Three questions to determine whether evidence is relevant:
o What is the evidence used to prove?
o Is that something that can be proved in this case?
o Does the evidence improve that proposition?

PROBATIVE VALUE
FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
- This rule favors admissibility, and the standard is very high – largely within judge’s discretion
- Waste of time/confusion
o Relevant evidence may be excluded if its probative value is outweighed by its tendency to
confuse or mislead the jury, or unduly distract it from the main issues
- Analysis: “401 giveth, and 403 taketh away”
o What are the matters at issue in this case?
 Is the evidence offered to prove or disprove some fact or matter “of consequence” in the
case?
 Substantive law will determine what matters are “of consequence” – elements of the
charge
o Is the evidence probative of a matter at issue in the case?
 Does it have any tendency to make the existence of any fact or matter of consequence
more probable or less probable that it would be without the evidence?
o What is the purpose for the offered evidence? Who is offering it and why?
 The opponent of the relevant evidence has the burden of showing why it should NOT be
admitted.
- Three Part Test: DAB
o Is there a Danger of unfair prejudice?
 Could be bigotry, hatred, sympathy or improper appeal to emotions
o If yes, is there an Alternative method of proving the element?
 Ex: Other evidence, stipulation
o Balancing Test – Probative value v. the alternative
 Is the alternative less prejudicial? Would using the alternative destroy the offering
party’s case? What about narrative richness?

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Conditional Relevance – FRE 104(b)
- Conditional Relevance: When a party first has to prove that another fact exists before the offered
evidence will be relevant
- If the conditionally relevant evidence is admitted, and then the additional evidence is not provided, the
judge may:
o Give jury a cautionary instruction to disregard that evidence OR
o If the conditionally relevant evidence does substantial harm, may declare a mistrial
No “Unfair Surprise”
- FRE 403 does NOT recognize unfair surprise as a ground for excluding otherwise relevant evidence
o The appropriate remedy is a continuance
Cross Examination of a Character Witness – FRE 405
- When can a character witness appear? What necessarily must she be talking about in order for her
character testimony to be admissible?
o Could be where you’re rehabilitating your witness, whose character was attacked
o If the character trait is an element of the claim (true of our civil case for the exam) OR is an
element of the crime (exceedingly rare)
o Could be testifying against the victim on a character trait of the victim
o Could be establishing a relevant character trait on the accused
 Can be asked about specific instances of conduct by the person they were testifying about
Relevant Cases
- Old Chief v. United States (I), SCOTUS (1997): D was charged with being a convicted felon in
possession of a firearm. He didn’t want the name of the prior conviction admitted.
o RULE: P is entitled to prove its case free from D’s option to stipulate evidence of a prior
conviction away, but in this case, unfair prejudice substantially outweighs its probative value
- State v. Chapple, Ariz. SC (1983): Gruesome pictures of autopsy were an improper appeal to emotions
because the medical cause of his death was not in controversy, so the prejudice substantially outweighed
the probative value.

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 Character Evidence
OVERVIEW
FRE 404(a). Character Evidence Generally: Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion, with exceptions.
- Character Evidence is evidence of a broad trait offered to show that someone acted according to that trait
- Policy: Propensity evidence is improper as a basis for conviction. The inferences are too strong and the
jury may misuse the information
- In a CRIMINAL case, can NEVER offer character evidence in P’s case-in-chief unless the character of a
party is an element of the crime (very rare – extortion?)
o It’s the defendant’s choice to enter character evidence in the form of reputation/opinion, but it
opens the floodgates
- In CIVIL cases, propensity evidence is only allowed where the character trait is an element of the claim
or defense
Three Ways to Show Character/Propensity
- Specific Instances of Prior Conduct: Most restricted form of character evidence because it adds to the
many issues, confuses the jury and wastes time
o Can only us it if character trait of a D or victim is an essential element of a charge, claim or
defense, such as in defamation cases, negligent entrustment and negligent hiring
o Usually used to impeach any character witness (FRE 608(b))
o Can have FRE 404(b) purposes
o Can be used if the D makes his character an issue
- Reputation: No personal knowledge needed – just their reputation in the community
o On Cross: Can allow specific instances of conduct to rebut the basis of reputation, but if witness
denies them, not allowed to prove it with extrinsic evidence
- Opinion: Requires personal knowledge foundation for the witness
o On Cross: Can allow specific instances of conduct to rebut the basis of opinion, but if witness
denies them, not allowed to prove it with extrinsic evidence

TIMING
Criminal Cases
- Propensity evidence is allowed if the Def. introduces it first in the form of reputation/opinion and it is a
pertinent/relevant character trait
o The accused may offer evidence about himself OR a pertinent character trait of the victim to
create a reasonable doubt, and the Pros. can respond to this
Order of Proof
- Defense offers evidence about himself
- Pros. can offer contradictory evidence – even propensity evidence – if the Def. used it first
Wrinkles to Timing Rule
- If the accused offers character evidence only about the victim, the Pros. may rebut that and offer evidence
that the accused has a bad character for that trait – the Def. opens the door
o Must still be in the form of reputation/opinion
- The character trait is an element of the crime
- Homicide Exception
o Accused must first establish an affirmative defense of self-defense, so probably not going to
come in Pros’s case in chief
- FRE 413 – the Pros. can use Def’s specific prior acts of sexual offense in sex offense cases
Character Evidence for Impeachment
- When a character witness testifies, the character witness can be cross examined about specific instances
of conduct on the part of the person whose character has been introduced as long as it is about the
character trait at issue

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 o Can be during the Def’s case-in-chief, the Pros’s rebuttal, when the character is an element of the
crime/claim, or for impeachment purposes at any time
o FRE 608(b) – A witness can be impeached by inquiry into their own bad acts as long as the bad
act is related to the character for truthfulness of the witness

EXCEPTIONS
FRE 404(a)(1). Character of Accused: In a criminal case, evidence of a pertinent character trait of character
offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged
victim of the crime is offered by an accused and admitted under FRE 403(a)(2), evidence of the same trait of
character of the accused offered by the prosecution.
- Propensity is admissible if the Defendant offers it first in the form of reputation/opinion and it is a
pertinent/relevant character trait
o The accused may offer evidence about himself OR a pertinent character trait of the victim to
create a reasonable doubt
o A question of timing – be aware of the order of introduction
- Mercy Rule: If accused offers character evidence about himself, the P can rebut it by impeaching D’s
credibility using specific prior acts
o If D puts his propensity/predisposition directly at issue, the P may rebut it with evidence of bad
character
o HOWEVER, If accused offers character evidence only about the victim, the P may rebut that
AND offer evidence that the accused has a bad character for that trait – opens the door to an
attack on the D, which you only want to do if he has a good character
 Ex: “You say D is peaceful. Do you know that he beat his wife?”
FRE 404(a)(2). Character of Victim: In a criminal case, and subject to the limitations imposed by FRE 412,
evidence of a pertinent trait of a character of the alleged victim of the crime offered by an accused, or by the P to
rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the P in a
homicide case to rebut evidence that the alleged victim was the first aggressor.
- This is the Homicide Exception: In a homicide case (so must be a CRIMINAL case), where there’s an
issue of who was first aggressor, the P may be the first to offer character evidence, but it must be about
the victim, and in the form of reputation/opinion only about peacefulness
- Pertains to cases in which the accused raises the defense of self-defense and raises some evidence that the
victim was the first aggressor
o The mention of self-defense in D’s opening statement is almost certainly not enough for P to use
the Homicide Exception in its case-in-chief
- Use of specific instances of misconduct of victim for D’s self-defense case can NOT be used
o BUT if the D knew of specific instances of aggression at the time of the homicide, they can be
admissible to show the D’s state of mind and why he acted the way he did
FRE 404(a)(3). Character of Witness: Evidence of the character of a witness, as provided in FRE 607, 608
and 609.
FRE 607. Who May Impeach: The credibility of a witness may be attacked by any party, including the
party calling the witness.
o You can’t call a witness only to impeach them just so that you can get in otherwise inadmissible
evidence
- FRE 608(a): The credibility of a witness can be supported or attacked with opinion or reputation
testimony (extrinsic evidence), but only pertaining to the truthfulness or untruthfulness of the witness, and
only AFTER the witness’s character has been attacked
o FRE 608(b): Specific Instances of Conduct of the Witness can be used to support or attack the
witness’s credibility relating to dishonesty only
 Cannot be a conviction of a crime (governed by FRE 609 instead)
 Cannot be proved with extrinsic evidence – you’re stuck with witness’s answer
- FRE 609 – Evidence of Prior Conviction
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 o If the accused is on the stand in a criminal case, the rule favors exclusion
 Things that give prior convictions probative value:
• Proximity to a crime of dishonesty
• More recent convictions
• The importance that the jury hear about the prior conviction to assess his
credibility
o What type of conviction is it?
 With a garden variety felon (death or imprisonment of 1+ years), must look at the FRE
403 balancing test
 Crimes of Dishonesty are automatically admitted, regardless of whether it is a felony or
misdemeanor – FRE 403 does not apply
• Ex: Fraud, perjury, embezzlement, tax evasion
• Can look at underlying facts of the case to determine whether it was
predominately a crime of dishonesty
 Juvenile Convictions are NEVER admissible (See FRE 609(d))
o FRE 609(b): Evidence of a conviction under this rule is not admissible if it has been more than
10 years from date of release or date of conviction (the most recent)
o Disallows use of convictions to impeach where formal procedures indicate that the witness has
been rehabilitated or witness is innocent
FRE 404(b): Similar Occurrence Evidence
- Allowed in both CIVIL and CRIMINAL cases
o In CIVIL cases, the proponent has to explain why she wants to put other instances into evidence,
such as causation
 Ex: Tire malfunction – it must be either numerous or distinctive enough to support an
inference of causation/notice
- Different Types:
o Context: Use events or conduct that were part of the same transaction to place the act in context
o Larger plan, scheme or conspiracy
o Preparation
o Identity by showing signature
 Must be “so very similar” that it is “substantially probative of identity”
 Modus Operandi
o Intent: Show that the Def. acted maliciously, deliberately, or with the specific intent required
 Usually becomes relevant where the Def. admits to the act, but asserts an innocent
explanation for the act
o Knowledge: Shows that the act in question wasn’t preformed inadvertently, accidentally,
involuntarily or without guilty knowledge
o Motive: Never an essential element of the crime
o Opportunity
o Identity
 Identity must be at issue
- Objections: Irrelevant, propensity, prejudicial
Sex Offense Cases
- FRE 412. Rape Shield Statute – Victim’s Sexual History: Prior sex history of alleged victim in a sex
assault case (CRIMINAL or CIVIL) is NOT admissible as a matter of public policy (regardless of
relevance)
o Exceptions (require advance notice)
 Evidence of specific instances of sexual behavior (not just intercourse) by the victim to
show that the injuries/semen came from a different source
 Evidence of specific instances of behavior by the victim with the accused offered to
prove that the victim consented
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  Evidence, the exclusion of which would violate the constitutional rights of D
• Three main examples of this:
o Where the crime itself has a mens rea respecting whether the victim
consented (not usually required in rape cases, but attempted rape requires
an intent)
o The confrontation clause allows accused to confront the witnesses
against him, and in cases of bias, he may be able to do so
o Where he wants to show previous false claims of rape
o In a CIVIL case, do a FRE 403 balancing test
- FRE 413. Prior Sex Offense by Accused: In a CRIMINAL case, if D is accused of a sexual assault
offense, evidence of D’s commission of prior sexual assault offense is admissible
o Includes propensity to sex offenses, and can even use specific instances
o Prior sexual misconduct is thought to be esp. probative and as having relevant purpose
o Doesn’t have to be a prior conviction or even a charge, but must be an offense
o Uncertain whether FRE 403 can be invoked by the accused in such cases
Habit is NOT Propensity Evidence
FRE 406. Habit; Routine Practice: Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence of eyewitness, is relevant to prove
that that conduct of the person or organization on a particular occasion was in conformity with the habit or
routine practice.
- Habit is semi-automatic conduct
- Under FRE 104(a), the judge may determine whether something is habit
- Can use evidence of action, reputation and opinion to establish habit
o Must be specific habitual evidence (such as wearing a seatbelt rather than safe driving)

SUBSEQUENT REMEDIAL MEASURES

Generally not Allowed
- Courts generally do NOT allow such evidence of subsequent repairs, when offered to show the repairer’s
culpability
o Little probative value – a conscientious individual will take measures to remedy a dangerous
condition once it is brought to his attention
o If such evidence was allowed, it might discourage repairs
- Extends beyond repairs to installation of a new safety device, establishment of a safety rule (lower speed
limit) or even firing an employee responsible for an accident
Permissible Purposes
- Feasibility, but only if raised by the defendant
o If Def. claims he wasn’t culpable because all feasible precautions were taken, evidence that the
def. implemented a safer way following the accident is uniformly allowed
- Ownership or control: Admissible on the issue of ownership or control of property that caused accident
- Impeachment
o Used to rebut claim that there was no real hazard at all
o Must go to the credibility of the witness
o Must be controverted/in dispute
- Third Persons: Where the remedial action is carried out by a 3rd person rather than the Def.
- Strict Product Liability
o FRE 407 now says that subsequence-measures evidence is not admissible to prove “a defect in a
product, a defect in a product’s design.”

SETTLEMENT NEGOTIATIONS, MEDICAL EXPENSES AND INSURANCE

Inadmissibility of Pleas, Pleas Discussions and Related Statements – FRE 410
- Limited to statements made to a gov’t attorney related to a plea

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Insurance – FRE 411
- Evidence that a person has or doesn’t have liability insurance is not admissible on the issue of whether he
acted negligently
- Other purpose allowed (ex - Insurance investigator on witness stand
Payment of Medical Expenses – FRE 409
- The fact that a party has paid the medical expenses of an injured party is excluded when offered on the
issue of the party’s liability for the accident that caused the injury

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 Hearsay
OVERVIEW
FRE 802. Hearsay Rule: Hearsay is not admissible except as provided by these rules or by other rules
prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
- Policy: Ability to cross-examine the statement when it is first made  test the declarant for perception,
memory, sincerity ( also called bias and credibility)
o 6th Amendment right to confront your accuser
FRE 801(c). Hearsay: Hearsay is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.
- Three requirements:
o Out of court: Put it in quotes and see if it was said outside of court
o Statement: Spoken, written and conduct intended as an assertion
 Assertive conduct? Burden on party opposing the evidence as hearsay to show
o Offered in to prove the truth of the matter asserted
Multiple Hearsay
- An out-of-court declaration may quote or paraphrase another out-of-court declaration
- In these cases, the evidence will be inadmissible if any of the declarations are hearsay and do not fall
within an exception
o It will be admissible only if all are covered by an exception
The Hearsay Dangers: Declarant Not Available for Cross-Examination
- Ambiguity
- Insincerity
- Incorrect memory
- Inaccurate perception

COMMON LAW NON-HEARSAY CATEGORIES

Declarant must be a person in order for it to be hearsay
- Machines  issue of authentication, not hearsay. Ex: if cop catches you speeding w/ a radar gun, that
speed limit offered into evidence is NOT hearsay
- Animals  evidence from bloodhounds and drug dogs is NOT hearsay.
Impeachment:
- When used to impeach, the out of court statement cannot be used for its truth during closing arguments,
and cannot be used to support or defeat a motion for a directed verdict
Unique Experiences: Could only be described by having the experience, and not by being told
- The idea here is special knowledge
- Requires second witness for corroboration that the declarant wasn’t told about it
- Used in child sex offense cases where the child is the declarant
o Ex: Problem 3-I, “A Papier-Mâché Man”
Independent Legal Significance: A verbal act, or verbal part of an act, the mere utterance of which have legal
consequences
- Verbal parts of an act are words that give a physical act meaning, such as handing someone your car keys
while asking them to park your car for you
o Examples: Defamation, Fraud, Extortion, Contract Law, words of donative intent, words of
consent
Effect on the Listener: Statement not offered for the truth of the matter asserted, but offered to prove the effect
the statement had or should have had on the listener/reader
- Words that est. notice, knowledge, intent, motive, fear, or reasons for acting or not acting in a certain way
o Examples: To show that the party assumed some risk; was put on notice; had a certain
emotion/reaction; behaved (un)reasonably; acted under duress, coercion or harassment; to show
lack of companionship
- Can use limiting instructions if a statement is admissible for one purpose, but not for another

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 - Still must keep FRE 403 in mind
Verbal Markers/Objects: Testimony of two or more people talking outside of court that is used to mark a time,
event or identify a person OR words as labels or markers (logos) used to identify a person/agent/thing
- The declarant is the company who made and affixed the label to the item
- If verbal markers are asserting the truth of the matter, then it is still hearsay
- Verbal markers are almost always objects with writing/labels on them, and the words almost always
assert something, as all words do, and we are trying to connect the person to a place or an event by what
is written on the object
o You either need a witness to tell the court what the thing is or self-authentication or judicial
notice because it is so obvious
 FRE 902(7). Trade inscriptions and the like: Inscriptions, signs, tags, or labels
purporting to have been affixed in the course of business and indicating ownership,
control or origin are self-authenticating.
- Words can also be used to mark time, but you NEED two witnesses
o What’s relevant is what time the words are spoken
States of Mind
- Ex: The declarant’s sanity, fear or other emotion may be shown by his statements
Performatives
- Must be in an important context
o Ex: Sending an eviction notice instead of a valentine’s day card
- The statement is not intended to communicate a belief
- Regina v. Kearley: The callers aren’t saying Chippie is a dealer, but performing the act of calling to get
cocaine. All about context
Non-Assertive Statements and Conduct (Performative): Person didn’t intend to assert anything
- The words are principally about something other than what is asserted – a matter of degree
- If what is asserted must be true in order for it to be relevant, then it posses the hearsay dangers
o Must prove that the actor believes the fact
o Picking someone out of a line-up to prove that he is guilty is an assertion and hearsay
Refreshing Memory: Can use ANYTHING to refresh a witness’s memory
- Can’t use this device to get someone to read an out-of-court statement as though it were their testimony

NONHEARSAY CATEGORIES UNDER 801

Prior Statements by Witness – FRE 801(d)(1): Three Kinds
Prior inconsistent statement under oath (See FRE 801(d)(1)(A)):
o Must be inconsistent: Direct contradiction, omission or addition of detail, or failure to recall what
you should remember
 If the witness on stand claims they don’t remember the event giving rise to the prior
statement, most courts hold that the prior statement is admissible under FRE 801(d)(1)
(A) if the judge finds that the witness is fully aware of the event and it trying to avoid a
negative impact on a party or that the witness is faking the lack of memory
 If the lack of memory is legitimate, the statement doesn’t qualify for admission under this
rule because it isn’t inconsistent
o Must be under oath
 Ex: Grand jury testimony, pretrial testimony, previous trial, hearing, motion
o Has the greatest impact in situations with turncoat witness, but can’t call a witness knowing that
he is going to say something that goes against what he said before just so you can put what he
said before in for impeachment purposes
 Must be surprise
 Must be affirmative damage to the party’s case
o Must be able to cross examine the witness about the prior statement

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 Prior consistent statement under certain circumstances (See FRE 801(d)(1)(B)):
o Generally this isn’t allowed, but can do it in redirect as a rebuttal in two situations:
 An implication of recent fabrication (“recent” is ambiguous)
 An implication that the witness is saying what he’s saying because of improper
inducement
• Closely related to bias
• The prior consistent statement is only admissible if it was made BEFORE the
alleged inducement came into being
o BE SURE the statement came before the inducement
o Declarant must be subject to cross on the statement at trial or hearing
o Prior statement does not have to be under oath or recent to the trial
Statements of identification made upon perceiving someone (See FRE 801(d)(1)(C):
o Policy: In-court identification isn’t very probative because you’re probably going to pick out the
guy in the handcuffs, and so we need an out of court statement to bolster this
o The exception only covers the person making the in-court statement: need to cross
 Many judges will permit a policeman who testifies after the victim/witness to repeat what
the person says if they picked someone out of a lineup
o Prior statements do NOT have to be under oath or made close in time to the trial
 Statement does have to be made AFTER perceiving the person identified
 Police sketch is admissible as a prior statement of identification
o US v. Owens (pg. 165): Man beaten up and can’t remember who did it, but had identified him
while in the hospital.
 RULE: He doesn’t have to remember the guy, but he does have to remember identifying
him.
Admission by Party-Opponent – FRE 801(d)(2): Five Kinds
Personal Admission – FRE 801(d)(2)(A): The accused says “I did it.”
o Anything you say can and will be used against you
 Guilty pleas in a criminal suit are usually admitted in later civil damage suits arising from
the same incident, except for traffic court admissions
o There are almost no limitations on individual admissions
 In criminal trials, involuntary confessions are barred under the 5th Amendment only
where an agent of the state plays some active role
 Statements when sleep talking are not admissible, but drunk statements are
 Admissions by a minor depend on how old the child is
o Policy: Can’t complain that he can’t cross examine himself
Adoptive Admission – FRE 801(d)(2)(B)
o Two kinds
 The declarant says something and the party agrees with him
 Adoption by Silence: The accused doesn’t say anything, implying acceptance
• Doesn’t apply to post-custodial silence (right to remain silent)
• Judges look to whether:
o The statement was heard and understood
o The party had an opportunity to the statement
o The statement is something the party would be expected to deny
o There was not any physical or emotional obstacle to responding

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 o The declarant was someone the party could reasonably be expected to
respond to
o The statement, if untrue, would ordinarily call for a denial under the
circumstances
• Most courts require a FRE 104(a) showing regarding the above, except whether
the innocent person would have denied it under the circumstances, which is left
to the jury
Admission by an Authorized Spokesperson – FRE 801(d)(2)(C)
o Policy: When a person hires another to speak for him, it is fair to allow the words of the hired
person to establish facts at a trial against the hirer
 Ex: A lawyer speaking on behalf of his client, pleadings from prior lawsuits, written
interrogatories, admissions filed in request to admit
Admission by an Employee or Agent – FRE 801(d)(2)(D):
o Requirements:
 Statement must be made during the course of employment AND
• Independent contractors are generally not agents
 Statement must be regarding a matter within the scope of employment
• Doesn’t matter whether the agent speaks at the work place or whether he has the
authority to speak
o Can use such statements to establish agency relationship, but you also need independent evidence
for corroboration
 The court must also consider circumstances surrounding the statement, such as the
identity of the speaker, the context in which the statement was made and evidence
corroborating the contents of the statement
 The judge determines whether there was an agency under FRE 104(a) because it is a
matter of competency
Admission by a Co-Conspirator (CIVIL or CRIMINAL cases) – FRE 801(d)(2)(E):
o Co-conspirator statements are admissible if:
 Need a conspiracy (doesn’t have to be charged)
• Conspiracy: Agree, planning, and a step in furtherance of committing a crime
• Statement itself can be used to prove the conspiracy relationship, BUT you need
some other evidence as well
• The words that create the conspiracy can be seen as a verbal act, and so are
nonhearsay anyway
 Statement made during the course of the conspiracy
• Conspiracy ends after the arrest or upon abandonment of the criminal enterprise
• Undercover cop statements are not statements by a co-conspirator
 In the furtherance of the conspiracy
• Conversations about past events are not in “furtherance”
o Spillover Confessions Problem (Bruton): D1 makes statement incriminating himself and D2, and
D1 doesn’t testify. Can only allow admission of D1 against himself, NOT against D2
 Possible Solutions: Severance of case, redact parts of D1’s statement, use separate juries,
find another hearsay exception for it

HEARSAY EXCEPTIONS
FRE 803. Hearsay Exceptions – Availability of Declarant Immaterial
FRE 803(1). Present sense impression: A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter.
o Someone else can testify that the declarant says it, even if the declarant denies it
o The time element is key
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FRE 803(2). Excited Utterance: A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
o The statement itself can be sufficient proof of the startling event
o Under FRE 104(a), the judge will look to:
 The lapse of time between event and statement (more relaxed)
 The age of the declarant
 The physical and mental condition of the declarant at the time of the statement
 The nature of the event that gave rise to the statement
 Whether the statement was spontaneous or was the result of questions asked of the
declarant (questions are okay as long as they are excited)
o Okay to admit opinions
FRE 803(3). Then existing mental, emotional, or physical condition: A statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health).
o Must relate to present condition and be relevant
o Cannot be used to show other person’s purpose for acting
o Cannot use declarations of memory or belief about the conduct of others that point back in time
 Exception: To show intent for wills
o Still must consider FRE 403 – can always use limiting instruction
o With intent, must have corroborating evidence that the declarant did what he said he was going to
do AND corroborating evidence that the 3rd party acted
o US v. Pheaster (pg. 248): Implication of a 3rd party’s behavior
FRE 803(4). Statements for purposes of medical diagnosis or treatment: Statements made for purposes
of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
o Policy: Patient has incentive to tell the truth in order to get effective treatment
o Can be made by Dr., nurse, paramedic, etc., and doesn’t have to be made directly to Dr.
o Cannot be admissible to show fault
 Child outcry exceptions: States have admitted child’s statements of fault, especially in
cases of sexual assault (helps Dr. understand emotional state of declarant)
FRE 803(5). [Past] recorded recollection: A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s
memory and to reflect that knowledge correctly.
o If admitted, the record may be read into evidence, but may not itself be received as an exhibit
unless offered by an adverse party UNLESS it qualifies as a business record
o Must show:
 Can’t remember the event fully
 A record was made
• Doesn’t have to be the witness who wrote the record as long as he adopted it
 At the time the record was made, the experience was fresh in their minds
 The record was accurate
o Different than refreshing memory rule of FRE 612
 If the Dr. doesn’t remember making a specific report or seeing a specific patient, you can
establish the foundation by asking him about the routine and practice of writing reports
Business Record – FRE 803(6)
o Four elements
 Regularly conducts business, kept record in ordinary course of business
• Business is any calling: Construed liberally – don’t even have to have profit
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 • Regularly: Activity that is regular to that particular business, including habits
 Personal knowledge of the source: Creator of the record is someone with knowledge of
the events describes and works for the business organization
 Contemporaneity: Record made at or about the time of the events
 Foundation testimony: Must have testimony by the custodian of the records or other
qualified witness about the manner in which the records are prepared and kept
o Exception: If the author of the business record anticipates that she may be hailed into court as a
D, than the reliability of the record is not good enough
o FRE 902(11). Self Authentication: You don’t need extrinsic evidence for admissibility when
(a) the document is certified, (b) was made at or near the time of the occurrence of the matters set
forth by or from information transmitted by a person with knowledge of these matters, (c) was
kept in the course of the regularly conducted activity AND (d) was made by the regularly
conducted activity as a regular practice.
o Policy: Businesses have motivation to keep accurate business records, convenient
o Can also use the absence of regularly kept business records to prove nonoccurrence of an event –
FRE 803(7) unless the source of information or other circumstances indicate a lack of
trustworthiness.
Public Records and Reports – FRE 803(8): Admissible because it’s a public record, and not because it was
kept in any particular way
o Foundation Requirement: Must show that you’re talking about a public agency
o Three kinds of records and reports
 FRE 803(8)(A): The activities of office or agency that they are required to record
• No limitations for either side on using these public records
• Authentication can be done by certification
• PROBLEM – Jail Intake Records: Might be offered where an accused claims
that he was coerced into confessing, and the intake record indicates bruises and
abrasions – are these reports of activities of the agency?
 The next two categories describe documents that the gov’t can’t use against the accused,
and they can’t use the business records exception as a backup to avoid these limitations
(can still use a record as a past recollection recorded):
• FRE 803(8)(B): Matters observed, pursuant to legal duty (excluding matters
observed by police in a criminal case)
o United States v. Oates: You can’t use business records exception to get it
in, but you can use past recollection recorded to refresh memory or
present sense impression
• FRE 803(8)(C): In civil actions and against gov’t in criminal cases, factual
findings resulting from official investigations
o In a CRIMINAL case, you cannot offer investigative findings of a gov’t agency against the
criminal D, but the criminal D can use the record to help him.
o Records of a public library are not adversarial, and can be admitted in a criminal or civil case
o Other public records that fit into hearsay exceptions
 FRE 803(9). Records of vital statistics
 FRE 809(10). Absence of public record or entry
 FRE 803(14). Records of documents affecting an interest in property
- Public Records vs. Business Records:
Business Record Public Record
Regularly conducted business Can be a one-time disaster/investigation
At or about time the event Ongoing when reached – what matters is when the
occurred conclusion is made
Declarant is employee of the Statements by anyone agency decides. BUT if public record
business quotes people who don’t work for the agency, it is NOT
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 admissible for the truth of the matter asserted. ONLY
admissible for the basis of the agency’s conclusions
Learned Treatise Exception – FRE 803(18): An authoritative work can be admitted, and the statements in
that authoritative work can be admitted as fact in some circumstances. Usually can be proved as a learned
treatise with a witness who says it is.
o Can also be used to impeach an expert witness.
- Judgment of Previous Conviction – FRE 803(22): Allows us to use a record of the conviction to prove
the prior behavior
o Foundation requirements
 Must be a final judgment
 Must come from a trial or a plea (other than a plea of no contest)
• Pleas to lesser crimes are thought to be less probative of belief in guilt because
parties are less likely to contest lesser crimes
 The fact/behavior you’re trying to prove must be nessa to the conviction, or he must have
admitted that behavior
• To prove this, can use jury instructions, transcript of the trial, indictment, etc.
 The conviction must be for a crime punishable by death or imprisonment for one year
o If offered by gov’t, must be for impeachment purposes OR about the accused
FRE 804. Hearsay Exceptions – Declarant Unavailable
FRE 804(a). Definition of unavailability: If an out-of-court declarant is unavailable, then he doesn’t have
to be available to be called as a witness  “PRISM”
o Privilege asserted by declarant (usually under the 5th Amendment)
o Refuses to testify despite an order of the court
o Ill, incapacitated or dead
o Subpoena is ineffective  can’t procure declarant’s attendance
 CIVIL case: Need to show due diligence to serve person, but declarant is outside
jurisdictional power of court
 CRIMINAL case: Must show service plus other acts for gov’t witness, must be more than
a subpoena – can’t let a material witness go if you have found him
o Memory on the subject matter is not available
 Witness must be on the stand and subject to cross on his claim of failed memory
FRE 804(b)(1). Former testimony: Testimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.
o Declarant must be unavailable
o The party it was offered against must be present at both the earlier hearing and the present one
OR
 Predecessor in interest must have been present at both
o The party had an opportunity and a similar motive to develop the witness testimony in the earlier
hearing
 Just must be an opportunity – didn’t actually have to examine them
 Not satisfied if the judge unduly limited the examination, but doesn’t matter that he had a
poor lawyer at the time
 Must have been a similar motive, and similar issues at the trials
• Deposition testimony can be offered as former testimony
FRE 804(b)(2). Statement under belief of impending death: In a prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant while believing that the declarant’s death was
imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

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 o Such statements can be offered in any CIVIL case, but only homicide CRIMINAL cases
o Declarant must have personal knowledge of cause or circumstances of death
o It is a FRE 104(a) decision as to whether he actually believed he was dying
Statement against interest – FRE 804(b)(3): A statement against pecuniary (financial), proprietary (property),
or penal (subjects the declarant to criminal liability) interests
o Must look at the circumstances using a reasonable man test – would a reasonable person in the
declarant’s position not have made the statement unless he believed it was true?
o Statement against financial interest: At the time declarant made the statement, it was
predominately against his financial interest that declarant would not have said it unless it was true
 Examples: Assumes financial obligations, discharges a debt
o Statement against criminal interest
 Three scenarios:
• Statement implicates declarant and is being offered against the D too
o Post-custodial statements against interest which also implicate someone
else are considered inherently unreliable, because people in custody are
motivated to shift blame
• Statements accusing someone else are inherently unreliable
• Statements by declarant exonerating the accused require corroboration –
independent evidence that directly or circumstantially tend to prove the same
points on which the statement is offered
Statement of personal or family history – FRE 804(b)(4):
o Statement concerning the declarant’s own birth, adoption, marriage, divorce, etc.  even when
the declarant had no means of acquiring personal knowledge of the matter stated
o Statement concerning the death of the declarant’s family member  so intimately related to have
accurate information
FRE 804(b)(5). Forfeiture by wrongdoing: A statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.
o Declarant’s statement is offered against a criminal D and that D was the one who made the
declarant unavailable  by killing, injuring, threatening or bribing the declarant
FRE 807. Residual Exception: A statement not specifically covered by FRE 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if….
o Requirements:
 Must go to a material, probative issue or material fact of the case
 There is no other way to prove it (highly necessary)
 It must be reliable – sufficient indicia of reliability
• Ex: Personal knowledge, age/education of declarant, declarant’s mental state
(bias), circumstances of making the statement, motive and character of the
declarant for truthfulness and honesty
 It would serve the ends of justice
 Must provide notice to the other side to use this hearsay exception
o Court uses FRE 104(a) discretion
Other Exceptions
FRE 805. Hearsay within Hearsay: Hearsay included within hearsay is not excluded under the hearsay rule
if each part of the combined statements conforms with an exception to the hearsay rule provided in these
rules.
Attacking and Supporting Credibility of Declarant – FRE 806
o The credibility of a hearsay declarant may be attacked, and if attacked may be supported by any
evidence which would be admissible for those purposes if the declarant had testified as a witness

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 o Declarant can be attacked regardless of whether he was afforded an opportunity to deny/explain
 Exception to FRE 613 – don’t have to give notice to opposing counsel
- Even if evidence falls under an exception, that doesn’t mean it is admissible
o It must be relevant under FRE 401-402 and the special relevancy rules of FRE 404-406
o Must also pass the personal knowledge requirement of FRE 602, except for FRE 804(b)(4)
o Must meet authentication requirements of FRE 901-902 if it is oral or written
o If written or recorded it must satisfy the original writings rules of FRE 1001-1008

CONSTITUTIONAL LIMITS ON HEARSAY

6th Amendment: “The accused shall enjoy the right… to be confronted with the witnesses against him.”
Hearsay Being Offered Against Criminal Defendant Under an Exception
- Current hearsay analysis in a criminal case when offered against defendant

Is it Prior opp to Yes Admit

testimonial? Yes cross-exam if
declarant is
unavailable No Not allowed
now? (Crawford)
No

Yes Admit
Firmly rooted
exception?
court can only consider circumstances
No surrounding the making of the statement
itself to determine its reliability

o Is it testimonial? Open for interpretation (scailia’s statements that a reasonable person would
realize would be used by the state)
 Can anticipate that statement will be used in court when you make the statement
 Ex: Statement made in front of police after a Miranda warning
o If Yes, Testimonial Statement
 Is the declarant unavailable now?
• If Yes  Was there a prior opportunity to cross examine the now-unavailable
declarant?
• If No  If there was no prior opportunity to cross examine the defendant, then
the statement is NOT admissible
o If No, Not Testimonial Statement: Is it a firmly rooted hearsay exception?
 Yes, Firmly Rooted IF:
• Present sense impression – no time to reflect
• Excited utterance – no time to reflect
• Then-existing state of mind as proof of future conduct  If you say you’re
going to do something, then best evidence that you did it
• Statement to Dr. for purpose of treatment or diagnosis
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 • Past recollection recorded
• Business records
• Public records
• Admissions
• Statements of identification
• Dying declarations
• Anything NOT hearsay by definition in FRE 801
 No, Not Firmly Rooted: The court can only consider circumstances surrounding the
making of the statement itself to determine its reliability
• Statements against interest are not firmly rooted nor reliable
• Catchall exception is not firmly rooted – FRE 807
o Hearsay being offered in support of the criminal defendant and against the gov’t
 Hearsay that doesn’t fit into any exceptions may be admissible if this is the only way that
the defendant can confront the govt’s case.
• Only where the defendant is facing the death penalty or a life sentence

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 Impeachment
METHODS OF IMPEACHMENT
Non-Specific Methods of Impeachment
- Bias or Interest – FRE 608(a): Bias is ALWAYS relevant, never collateral, and you can prove it with
extrinsic evidence
o Never beyond the scope of direct examination
o Still subject to FRE 403 limitations
o CRIMINAL CASE: If a witness because of association or friendship will lie, the jury is entitled
to hear about the relationship
 Even without proof that witness adopted the tenets of that association
o CIVIL CASE: Can show that an expert is paid
- Lack of Sensory or Mental Capacity: Must link the witness’s capacity to their ability to perceive, recall
or communicate
o Limitation: Can’t harass or embarrass the witness
- Character for Truth or Veracity
o Cross examine on non-conviction misconduct – FRE 608(b)
 Specific instances of misconduct relating to dishonesty of witness
 If evidence comes in solely to discredit the witness, you must accept his answer
 If evidence comes in for any other purpose, you may prove it up
o Cross-examine on conviction – FRE 609(a)
 Who is the witness?
 What type of conviction?
 Timing of conviction
o Use other character witnesses
Specific Methods of Impeachment
- Prior Inconsistent Statements (UNSWORN statements) – FRE 613
o It has to be inconsistent and it does NOT come in for the truth of the matter asserted
o Extrinsic evidence of a prior inconsistent statement is NOT admissible UNLESS the witness is
afforded an opportunity to explain or deny
 Ex: You use his statement with another witness after he’s gone
o Can impeach by using a statement that is in violation of the 5th Amendment or the 4th Amendment
o Doesn’t have to be directly inconsistent
 Can be evasive, a change of position, clear memory on the stand when unclear before
 Not inconsistent to be clear before but unclear on the stand unless it’s in bad faith
o Omission of something before, that he brings up now on stand
o Impeachment by silence
o Can not paraphrase statements – must read them verbatim
- Contradiction: When you have outside evidence that contradicts the witness’s statements on the stand
o Comes in during your own case and not on cross
o No concern for confrontation
o Don’t forget about FRE 403
o No Collateral Evidence Rule: The extrinsic evidence must come in for a purpose other than
contradiction in order for it to be used for impeachment purposes
 Ex: Bias, ability to perceive, recall, for merits of case
 Rule of judicial economy: Don’t want to let in extrinsic evidence just for one purpose
 Must be an important inconsistency, and go to something material in the case
o This is an area for advocacy, and you must provide arguments for either side
o If admitted, impeached
 If not admitted, and collateral, then must move on
 If not admitted and non-collateral, must be proved with extrinsic evidence

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Convictions for Impeachment – Prior Bad Acts
- Can be a conviction as impeachment under FRE 609 if it’s a felony conviction
o Always keep prejudice in mind
- Must be a crime of dishonesty or misstatement, or require those as an element
- FRE 803(22): Must be a felony and the behavior must have been an element of the crime for which he
was convicted
Appellate Remedies for Criminal Defendant
- If the trial court allows the Pros. to impeach the Def. with a prior garden-variety felony conviction, then
you decide not to call your Def. client to testify, the issue is NOT appealable if the Def. doesn’t testify
- A lawyer may not appeal evidence he introduced himself
To Rehabilitate Credibility of a Witness
- Rebut impeaching attacks
o Bring evidence out on direct if anticipating impeachment – chance to present it in a better light
o BUT you can’t repair your witness unless the attack occurs
 Exception – Mercy Rule: Only the Def. can have witnesses tell the jury that he is a good
person BEFORE he takes the stand
- Evidence of good character: Opinion or reputation testimony allowed to support that the character of the
witness is truthful
- Prior Consistent Statements (see in hearsay exceptions)
- Procedure for rehabilitating
o Can only rehabilitate if it’s been impeached
o If impeached with prior inconsistent statement, can rehabilitate with prior consistent statement
Kinds Cross Examination Extrinsic Evidence Applicable Rules
Bias Yes Yes (always)
Prior Conviction Yes Yes, but  FRE 609
Prior Inconsistent Yes – does collateral Depends  Collateral evidence rule
Statement evidence rule apply on (not an FRE); 611, 613
cross?
Prior bad acts Yes (have to be) No (per se) 608(b)
Character for truth Yes, but doesn’t make Yes 608(a)
sense to do it here
Sensory/memory defects Yes Yes

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Hearsay Quiz, pg. 153
1. Not hearsay – Offered to prove a state of mind, and not that he is(n’t) Woody Allen. This is the nonsense
statement, which is closely related to a lie. On the surface, it seems not to be hearsay because it isn’t
offered for its truth. Problem: Even with a nonsense kind of statement, you need to know the context in
which the speaker spoke. Objection: Want to cross examine the speaker to see if he believes what he’s
saying or to know something about the context/whether it’s a single statement.
2. Not hearsay – Not trying to prove that the brakes were defective, but just trying to prove the effect on the
listener to show that he assumed the risk.
3. Hearsay to prove there is agency, but can be used by the judge under FRE 104(a) along with other
evidence to determine whether there is an agency.
4. Not hearsay – the lie is a performative. As long as the context is important to the speaker, ling shows that
something is probably wrong. Objection: A lie is an intentional false statement, and so the narrative
dangers are present just as they are when a true statement is made. It could also be a verbal act.
5. Not hearsay, but a nonassertive behavior. The behavior of someone is described, and the hearsay issue is
whether the behavior by the person was intended to communicate something, which is not the case here.
This is an involuntary action rather than a communication.
6. Not hearsay, but a verbal marker. The testimony is marking time as an assertion. The clue here is that
two witnesses are involved. The time that the words were uttered is the objective to be proved, and the
testimony of both witnesses allows us to do that. We don’t have to rely on what was said to prove the
time. We have someone here to cross examine, and the words are offered to show not whether they are
true, but to show when they were spoken.
7. Not hearsay, but identification under FRE 801(d)(1)(C). A person may corroborate a statement that he
picked someone out of a lineup. This exception pertains to the person who has made the identification
only. If an officer testifies after this person has confirmed this, then they may also probably mention it.
8. No answer: The declarant here is whoever permitted the girl to take the French course. Objection:
Whoever permitted the girl to take the class meant to communicate that the girl was good at French.
Response: The hearsay dangers aren’t present because it’s nonassertive conduct. Conclusion: There’s
really no answer for this either way, and you must just be the best at persuading the judge.
9. Not hearsay, but effect on the listener. The words are designed to show what was in his mind, which is
relevant because he’s claiming duress. What he was told makes up his understanding.
10. Not hearsay, but nonassertive conduct offered to prove the person’s convictions against drunk driving.
The evidence could take different forms, but it’s used to show that she joined MADD. She didn’t join the
group in order to assert that she didn’t like drunk driving. Objection: Why would you join a group if you
didn’t believe in their main principle. Conclusion: The burden is on the party claiming that her joining
the group was intended to be a statement by her that she favored increased penalties for drunk driving. If
MADD’s single issue is that, then you’re probably going to win.
11. Hearsay, because it’s assertive conduct. He was asserting that it was T’s pistol. He went and got the
pistol as an action to show that it was T’s. When a person acts in response to a question, there is a strong
inference that it is conduct intended as an assertion. It could also be admissible as identification, but only
if the father is available for cross. Could also be admissible as present sense impression.
12. Not hearsay, but effect on the listener. The police officer took what the guy said as a reason to arrest the
other guy. They are not trying to prove that there was actually probable cause, but only that the officer’s
actions were reasonable. If it had happened after the arrest, then it would be hearsay.
13. Not hearsay: Assuming a “grade school bet,” the parting of money is not an assertive act. It’s an
example from the Wright case. It’s performative rather than a verbal act.
14. Hearsay
15. Hearsay
16. Hearsay
17. Not Hearsay, but a verbal act. Words that accompany money in transfer give it definition
18. Hearsay – a video tape is not a statement by a machine
19. Not Hearsay – Transfer of the car keys is the statement. It’s a verbal act limiting the transfer. With a
transfer of money or property, any words accompanying it give it limit or definition.

22
20. Not Hearsay, but a verbal act. Words of termination are legally operative language.
21. Not Hearsay: Absence of a complaint is not hearsay
22. Not Hearsay: Circumstantial proof of declarant’s knowledge
23. Not Hearsay, but verbal object/marker
24. Not Hearsay, but verbal act
25. Hearsay – not legally operative, but offered strictly for truth of the matter asserted
26. Not Hearsay, but a verbal marker. Gives definition to out-of-court statement
27. Hearsay – Conduct of giving poor credit rating is intended to assert that someone is a credit risk
28. Not Hearsay, but effect on the listener. Offered to show that they acted reasonably.
29. Hearsay. Statement is conduct of placing him in the intensive care unit.
30. Not Hearsay
31. Hearsay

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