Evidence Outline Fall ‘17

I. What is Evidence?
CHECK: ARE WE IN FEDERAL COURT?

IF YOU SEE MULTIPLE REASONS TO OBJECT, RAISE ALL OF THEM (on exam)

a. No formal definition of “evidence” in the federal rules.

1. Conceptual definition: "information presented at trial in various forms to a
fact finder in order to render a legal decision." (input being used for some
legal output)
i) This does not say “all” information

b. Evidence is NOT:
i. Statement, arguments, questions and comments by the lawyers trying this
case
ii. Anything seen or heard outside the courtroom
iii. Exhibits that are identified by a party but not offered or received in
evidence
iv. Objections
v. Testimony and exhibits that I strike from the record, or tell you to
disregard

c. Types of Evidence:
i. Oral Testimony
o Majority of evidence used in the U.S.
o 3 types:
 Fact Witness: testifying to things they have observed
relevant to the trial
 Expert Witness: testifying to inform juries about facts
(assists juries to making accurate decisions)
 Character Witness: Often do not testify to the crime or
dispute, but a pure character witness only testifies to the
character of an actor in the case

ii. Real Evidence

o Any physical evidence that a party claims played a direct rule in
the controversy
 All real evidence must be authenticated (ex: a witness
testifying to it)
 Ex: a stick used to kill a victim

iii. Documentary Evidence

o Can be real evidence, or something else; but it encompasses any
type of writing or recording of information

1
  Ex: an eye-witness to a bank robbery noting the getaway
car’s license plate #
 Much of this type of evidence can be derived from sources
that have no direct connection to the litigation

iv. Demonstrative Evidence

o Sometimes physical, but not an object that played a role in the
disputed events
 Evidence created “after the fact”; parties create this to
illustrate concepts or facts to the jury
 Ex: charts, tables, pictures, maps, graphs, etc
 May also be used as a substitute for objects relevant to the
dispute (ex: powdered sugar as cocaine)
 An attorney can also put on a “literal demonstration”; like a
recreation or imitation of some aspect of the controversy
 This can be abused: misrepresentation or overly-
dramatized
o Judges are most cautious about admitting this type of evidence
o Fertile ground for rule 403 objections (potential for prejudice is
high)

v. Stipulations
o Documents where the parties agree on certain facts
o facts that generally take things away to the heart of the
matter
o Both parties must agree to its exact language for trial purposes
o Old Chief Case: Stipulations do NOT destroy relevancy, with
respect to factual concessions (has little effect under FRE 403)
o However, an offer to stipulate does affect prejudice (or
goes toward it)

vi. Judicial Notice

o When a fact is indisputably true, the judge will take notice of it and
uses that in his decision making.
o Fact must be generally known or accurately and readily
determined

vii. Direct Evidence

o Popular sentiment: Direct evidence is "Better" than circumstantial
evidence
o But is it better? It is stronger, but is it better? Sometimes
 Not always a clear line between direct and circumstantial
evidence
o Potential problems with eye-witnesses:
 "Inattentive blindness": problem with eye-witnesses
sometimes

2
  "Change blindness": people don’t notice changes in scenes

viii. Circumstantial Evidence

o The FRE do not use the phrase “circumstantial evidence.”
o Evidence that tends to indirectly prove a factual proposition
through inference from collateral facts
o This is any evidence that requires the jury to make an inference
connecting the evidence with a disputed fact
 Requires an inferential step between evidence and fact
you're trying to prove to fact finder as true
o Distinction between circumstantial and direct evidence has NO
legal effect
 There is no requirement that a D can only be
convicted if there is at least some direct evidence;
on the contrary, a D can be convicted solely upon
circumstantial evidence.
o The most common circumstantial inference we ask jurors to make
is to assume that a person intends the consequences of his actions

II. Scope of Evidence

A. FRE 101: Defines the scope of the rules
a. “These rules apply to proceedings in the United States courts. The specific
courts and proceedings to which the rules apply, along with exceptions,
are set out in Rule 1101.”
b. These rules apply broadly to proceedings in federal court; however, the
federal rules of evidence do NOT govern proceedings before the US
Supreme Court

B. FRE 1101: Applicability of the rules

a. To courts and judges: These rules apply to proceedings before:
i. US District courts
ii. US bankruptcy and magistrate judges
iii. US Courts of Appeals
iv. US Court of Fed. Claims
v. District Courts of Guam, Virgin Islands, and Northern Mariana
Islands

b. These rules do NOT apply to:

i. The court’s determination of a preliminary question of fact
governing admissibility
ii. Grand jury proceedings
iii. Summary contempt proceedings
iv. Preliminary hearings
v. Sentencings
vi. Alternative dispute resolutions/administrative hearings

3
C. Rule 1101(b): Fed. R. of Ev. govern all of these disputes regardless of the
underlying claim:
a. Civil cases and proceedings, including bankruptcy, admiralty, and
maritime cases
b. Criminal cases/proceedings, and
c. Contempt proceedings, except those in which the court may act summarily

d. Rule 1101(c): The rules related to privilege apply in ALL federal court
proceedings

 The rules ONLY apply to the main event of litigation: the trial (no pre-
trial use)
 Almost all the FRE tell us what evidence to exclude, not what evidence to
admit
 No evidence used during jury selection

D. Structure of a Trial
i. Pre-Trial Motions
 Motion in Limine: arguments detailing why information should be
excluded from (or allowed in) evidence

ii. Jury Selection

 “voir dire”: “tell the truth”

iii. Opening Statement

 An effective opening statement:
a. Tells a compelling story
b. Reflects the evidence that will unfold during trial
 The party who bears the burden of proof (P in civil and prosecutor
in criminal) delivers the first opening statement (gives an
advantage to try to win the jury)
 Opening statements are NOT evidence, but lawyers may use
demonstrative evidence during such statements
 Plaintiff's and prosecutors can call witnesses in any order they like
(try to call them in an order that tells a story)

iv. Plaintiff’s/Prosecutor’s Case-in-Chief

 All the evidence
 At the close of a civil plaintiff's case, the D will move for
judgment as a matter of law (Fed. R. Civ. Pro 50), and a criminal D
will move for judgment of acquittal (Fed. R. Crim. Pro 29)
 Judge only grants these if no reasonable jury could find for that
side

v. Defendant’s Case-in-Chief/Case-in-Defense
 There isn’t one

4
  Some D's decide not to present a defense because of prosecutions'
high burden of proof

vi. Plaintiff’s/Prosecutor’s Case-in-Rebuttal

 The P rebutts evidence introduced by the D, but the FRE do not
require this
 May call new witnesses or introduce new evidence, but they both
MUST focus on the issues raised by the defense (scope
requirement)
 Same rules for case-in-chief govern examination and cross-
examination

vii. Defendant’s Case-in-Rebound/Case-in-Rejoinder

 D’s response to the plaintiff’s/prosecutor’s rebuttal

viii. Closing Statements

 Sum of the arguments given to the jury from both the
plaintiff/prosecutor and defendant

ix. Instructing the Jury

 Judges instruct the jury after closing statements, but some judges not
instruct the jury before closing statements, and some give a brief set
of instructions at beginning of trial, and even during the trial itself
 Directions about how to handle items of evidence

x. Deliberation
 Judges exercise discretion with allowing jurors to take different
evidence to the deliberation room with them
o Cannot take witnesses
 FRE 606: jury deliberations are confidential
 Under FRE 104(e), it is the role of the jury to determine the weight
and credibility of the evidence.

xi. Verdict
 Trial concludes with this (and the courts entry of judgment on the
verdict)
o In civil trials, an appeal can follow
 FRE do NOT apply to sentencings

E. Disputing and Defending Evidence

a. FRE 103: (a) Preserving a Claim of Error: a party may claim error in a
ruling to admit or exclude evidence only if
i. the ruling admits evidence, a party on the record:
1. timely objects or moves to strike; and
2. states the specific ground, unless it was apparent from the
context

5
 b. Rule 103(a)(2):
(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial
right of the party and:
(2) If the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent
from the context.

Rule 103 establishes 2 mechanisms for disputing evidence at trial:

i. Objection
• A lawyer registers an objection before the opponent introduces a potentially
inadmissible item into evidence
ii. Motion to strike
• Occurs after disputed evidence has already entered the record
• If a witness’s answer makes testimony improper, like an unresponsive answer, counsel
should move to strike the answer as inadmissible; however, unresponsive answers are
only subject to motions to strike by the examining counsel

Rule 103 allows appellate judges to reverse a trial decision for evidentiary ONLY if the
error affected a substantial right of one of the parties
o A substantial right is affected only if there is a reasonable probability that, if the
judge had made the correct ruling, the outcome of the case would have been
different
 If the error would not have changed the outcome of the case, it is a
harmless error (most evidentiary missteps constitute harmless error)

FRE 103(e):
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial
right, even if the claim of error was not properly preserved.
i. If inadequate objection below, only “plain” errors will be reversed

Sustain: judge agrees with an evidentiary objection

Overrule: judge disagrees with the objection and admit the evidence

Curative instruction: if inadmissible evidence has inadvertently reached the jury, the
judge tells the jury to disregard the evidence

 FRE 105: Limiting Evidence that is not Admissible Against other parties or for other
purposes:
o "If the court admits evidence that is admissible against a party or for a purpose,
but not against another party or for another purpose, the court, on a timely
request, must restrict he evidence to its proper scope and instruct the jury
accordingly."
o One of the few instances when a judge does not have discretion over evidentiary

6
 matters: if evidence is admissible only for limited purposes or against particular
parties, and a party requests an instruction making those limits clear, the judge
MUST give that instruction

FRE 106: Rule of Completeness

 If a party introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part- for any other writing or recorded
statement- that in fairness ought to be considered at the same time
o Counsel does not have to wait for their turn to go; they can stop proceedings
• Judges sometimes allow parties to "complete" oral statements under FRE 611(a)
o Oral statements not covered by FRE 106
• Most circuits interpret FRE 106 as a rule of timing, not admissibility (circuit split)
o Inadmissible evidence cannot be admitted

iii. Relevance
 The Gatekeeper to trial
 On exam, even if something is not relevant, still go on to analyze everything else,
like hearsay and character, etc.

FRE 402: relevant evidence is admissible unless any of the following provides otherwise:
 US constitution
 Federal statute
 These rules or other rules prescribed by the SCOTUS
 Irrelevant evidence not admissible

 No test for admissibility in this rule (have to go to rule 401)

 ALWAYS START WITH THIS TEST FIRST

FRE Rule 401:

 Evidence is relevant if it:
o Has any tendency to make a fact more or less probable than it would be without
evidence, and
o If it is a fact of consequence

 Establishes a LOW threshold for relevancy

o "Any tendency" (not strong tendency)
o "More or less probable (not "likely or unlikely")
o "Fact of consequence" (gives rule 401 some teeth)
i. This rule requires evidence to relate to a “fact of consequence”
1. The evidence must matter to someone who is trying to decide the
case; must be related to the cause of action
ii. A piece of evidence can be relevant even if it does not conclusively

7
 establish any fact on its own
1. To be relevant, evidence need not, by itself, establish an element
that a party must prove, or serve to refute such evidence

"Any Tendency"
 "A brick is not a wall": you want a sufficiency wall when building your case (one piece
of evidence is not a wall)
 Relevance is a binary determination
 Don’t say "very relevant" or "highly relevant", even though the strength of the evidence
is great.
 Evidence may be highly probative, or not so probative (weight of evidence)
o Separate question than whether the question is relevant
 Stipulations have no effect on relevance (Old Chief case)
 Relevancy of evidence is only asked in relation to the ultimate question the court is trying
to answer

iv. FRE 403

FRE 403. Exclusion of Evidence for Prejudice, Confusion, or Undue Delay
“The court may exclude relevant evidence if its probative value is substantially outweighed by
a danger of one or more of the following:
1. unfair prejudice
2. confusing the issues; misleading the jury
3. undue delay, wasting time, or needlessly presenting cumulative evidence

• **Do not jump to this rule before the relevancy inquiry**

 The placement of rule 403 at the end of evidentiary proceedings is particularly
significant. It is an independent check on the suitability of evidence for courtroom use
 This rule is invoked often, and is applicable to almost any evidentiary issue, but it is
limited; judges remain cognizant of the FRE liberal attitude toward admitting evidence
 “Unfair” MUST mean that the evidence “lures the fact finder into
declaring guilt [or liability] on a ground different from proof specific to
the offense charged”
 “The evidence will tempt the jury to decide the case on grounds
different from those the law demands”
 However, evidence that “damages” an adverse party’s case is not
“unfair”
 “Substantially Outweighs” means that if the probative value is equal with
confusion, undue delay, or unfair prejudice, as a matter of the rule, the
evidence will be admitted: No substantial outweighing of evidence
o Unfair prejudice, by itself, is not enough to substantially outweigh
prejudice under FRE 403
 Old Chief: stipulations may affect 403 balance
o For felon-in-possession-of-gun cases, D’s stipulation to prior
conviction excludes other evidence under 403

8
 o In most other cases, offer to stipulate has some effect under 403, but is
not dispositive

 5 factors that influence a judge's decision when applying rule 403:

o The extent to which the evidence will arouse emotions or irrational prejudices
among the jurors.
o The extent to which the jury might overvalue the evidence
o The strength of the connection between the evidence and the elements of the case.
o Whether the advocate can prove the same facts through less-prejudicial or
confusing means.
o Whether it would be possible to reduce prejudice or other harm once the evidence
is introduced.

v. Article VI Social Policy Rules (FRE 407-411)

 Each rule excludes evidence when it is offered for one purpose or some purposes, but not
others
o Think about what the evidence is being used for; to what end

FRE 407: Subsequent Remedial Measures

 Meant to ameliorate future injuries
o Anyone can raise this objection
 This rule encourages prompt repairs.
 Rule 407 precludes evidence of subsequent remedial measures ONLY if the plaintiff
uses the repairs to show that a defendant was negligent or otherwise at fault
 Subsequent: FRE 407 bars evidence of remedial measures that occurred AFTER THE
INJURY
o A remedial measure made after a product was manufactured but before the P was
injured is NOT subject to exclusion under FRE 407
o The party's measure (subsequent remedial measures performed by 3rd parties is
not barred by rule 407: not subject to liability)
 Even if the party is being ordered by a 3rd party to take a subsequent
remedial measure, most courts do not apply rule 407 to that

When measures are taken [by a party] that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
1) Negligence;
2) Culpable conduct;
3) A defect in a product or its design; or
4) A need for a warning or instruction
But the court may admit this evidence for another purpose, such as
1) Impeachment, or
2) If disputed, proving ownership, control, or the feasibility of precautionary measures

 FRE 407 is subject to FRE 105 (limiting instructions) and FRE 403 (unfair prejudice)

9
Impeachment:
 A judge is most likely to admit evidence for impeachment when:
I. A witness makes a specific representation that conflicts with the subsequent
remedial measure
II. The witness makes an absolute declaration like "the product was perfectly safe"
 For a feasibility argument, you want to see superlatives (“best” way or
“safest” way)
III. The witness making the statement was personally involved in implementing the
remedial measure

FRE 408. Settlement Offers

 Anyone can raise this
 Must arise in civil cases
 A person’s conduct or statements made during compromise negotiations with a gov.
agency (e.g. the IRS) during the exercise of its regulatory, investigative, or enforcement
authority may be introduced in a subsequent criminal case against the person

 FRE 408 applies to ALL parties (so parties cannot even admit evidence of their own
offers or statements) (this includes settlements with non-parties)
 Protects all conduct during, or statements made during, compromise negotiations, not just
the operative offers and acceptances
o Look for civil enforcement cases with subsequent criminal case
 Rule 408 excludes evidence only when a party attempts to use that evidence for a
particular purpose

Limits on FRE 408

1. A claim must have matured
 A claim arises once a complaint has been filed; a party hired an attorney; or a party
threatens to sue; ask was the defendant on notice?
2. A dispute must arise with some aspect of the claim
 Compromise negotiations: courts look at …
o Whether the statements were made during unilateral or bilateral discussions
o Whether either party made a concrete offer
o Whether attorneys were involved in the discussions, and
o Whether the parties used phrases like “without prejudice” and “early response”
that are commonly used during settlement negotiations
 If the claim is not disputed as to its validity or amount (i.e. a party admits to both), then a
statement made in connection with an offer to settle for a lesser amount is admissible
3. Excludes statements and conduct made during compromise negotiations only when a party
offers that evidence for one of 3 purposes:
 To prove the validity or amount of a claim
 To disprove that validity or amount (liability)
 To impeach witness testimony through a prior inconsistent statement or contradiction

More Limiting Language

(b). Exceptions: The court may admit this evidence for another purpose, such as

10
 I. Proving a witness's bias or prejudice
a. Bias: One of the most common alternative purposes claims by parties under rule
408 is showing that a witness is biased (exception)
II. Negating a contention of undue delay, or
III. Proving an effort to obstruct a criminal investigation or prosecution

 Rule 408 applies to ALL settlement discussions, even those conducted by parties who are
no longer involved in the case
o Ex: if 2 plaintiffs sue a D, and the D offers a settlement to one of the P1, the P2
cannot introduce the settlement as evidence of the D's liability
 Parties cannot shelter preexisting evidence by discussing it during settlement negotiations
 FRE 403 is particularly important when parties offer settlement evidence for a purpose
other than those prohibited by FRE 408

FRE 409: Offer to Pay Medical Expenses

 Anyone can raise this
 FRE 409 excludes evidence of offers to pay medical expenses, as well as payment of
those expenses, when offered to prove liability
 FRE 409 is broad because it applies in ANY situation in which an individual or
organization pays or agrees to pay medical expenses, unlike rule 408, there need not be a
"claim" or a "dispute" and the statement need not be party of any "compromise
negotiation"
 FRE 409 however only excludes the offer to pay or the furnishing of medical expenses
(actual payment); it does not exclude any other statements that were made
contemporaneously with the offer
o If parties offer evidence of medical payments to prove some other fact of
consequence, other than liability, the evidence is admissible
 "Similar expenses" includes fees for all kinds of medical treatment and physical
rehabilitation, but it does NOT encompass offers to pay lost wages, repair a car, or
compensate injured party for other types of economic or property damage
o FRE 409 only excludes evidence if it is offered to prove liability
 Always remember FRE 403

FRE 410: Criminal Plea Bargaining

 ONLY the D can raise this
 Rule 410 does NOT exclude evidence of final guilty pleas entered as the result of a plea
bargain
o A final guilty plea yields a conviction, which is public record
o Nor does the rule exclude evidence of any statements made during negotiations
that produced the final guilty plea
 Rule 410 prohibits any party from introducing evidence against the D who participated in
the plea bargaining, but allows the D to introduce evidence from that process against
others
 FRE do not apply at sentencing, so if the prosecutor wants to introduce evidence of both
the withdrawn plea and statements during sentencing, they can
 FRE 410 excludes evidence being used for ANY purpose (blanket prohibition)

11
 a) Prohibited uses: In a civil or criminal case, evidence of the following is generally not
admissible against the D who made the plea or participated in the plea discussions:
a. Withdrawn guilty pleas
b. Pleas of no contest (no lo contendere)
i. You accept the penalty, but not accepting responsibility for crime you are
alleged to admit; not accepting responsibility of guilt
c. Statements made while negotiating a plea with a prosecutor (e.g. an offer to plead
guilty)
i. Most statements to the prosecutor (broad rule)
ii. Plea colloquy: if a D is going to plead guilty, the judge will ask questions
(all public and in open court). During the course of this colloquy, the D
admits to guilt, but then withdraws statement within colloquy
d. Statements made during a plea proceeding with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a
later-withdrawn guilty plea

b) Exceptions: The court may admit a statement described in FRE 410(a)(3) or (4):
a. In any proceedings in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be
considered together, or
i. Purposes of completeness, if fairness requires (FRE 106)
b. In a subsequent criminal proceeding for perjury of false statement, if the D made
the statement
i. Under oath
ii. On the record, and
iii. With counsel present

 FRE 410 precludes this evidence only when introduced against the person who, as a
criminal defendant, participated in the plea-bargaining process
o Thus, FRE 410 bars admission of evidence against only one type of party, unlike
other rules
o This rule aims, in part, to protect the criminal D from overreaching during plea
bargaining and prosecution

When does plea bargaining occur?

 It does NOT occur at arrest or police interrogation
 Need an attorney present (Prosecutor at least, but would like defense attorney present
too)
 Promises made? Assurances made?
o Express indications of a deal
 Specifics of settlement/compromise discussions?
 Offer from D to plead guilty for information/a deal?
 Charges already filed
 Government expressed interest in D's offer
 Absence of caveat statements

12
Grey area: when a Police Officer acting like a go-between between DA (prosecutor) and the
defendant

Two-part test: (totality of the circumstances)

 Actual subjective expectation of negotiating a plea
 The expectation was reasonable given the totality of the objective circumstances
o Objectivity from the perspective of the Court, not the average person
o Difficult test for D's to meet (the test is squishy like a hacky-sack)

 If a plea becomes final, but excluded under rule 609 (so it gets rid of conviction), does
FRE 410 prevent teller form introducing statements from plea session?
o No.
o Some people say this is an oversight in the rule, but the plea and statements can
come in
o But always keep FRE 403 in mind

Waiver
 Prosecutors can have D waive away his rights under FRE 410 if the waiver is knowing
and voluntary (thus, D won’t have protection and statements can come in)
 Most US attorneys require waiver of FRE 410 before discussing plea (limits the use of
410)

 Finally, always remember that FRE 403 may be called upon by a defendant when FRE
410 fails to exclude evidence offered against them

FRE 411: Liability Insurance

 Anyone can raise this
 Encourages individuals and organizations to obtain liability insurance (very narrow rule)
 FRE 411 bars most evidence of liability insurance in lawsuits
o Injured P's cannot introduce evidence of a D's liability insurance, hoping that the
availability of this insurance will persuade the jury to award a large recovery
o D's cannot use the existence of liability insurance to attempt to escape liability by
arguing that they are uninsured and would go bankrupt if forced to compensate
the P
 Evidence that a person was or was not insured against liability is not admissible to prove
whether he/she acted negligently or otherwise wrongfully. But the court may admit this
evidence for another purpose, such as:
o Proving a witness's bias or prejudice or
o Proving agency, ownership, or control

Examples of liability insurance:

i. Car insurance
ii. Medical malpractice insurance
iii. Health insurance is NOT liability insurance

13
  The most important limit on FRE 411 is that it only precludes evidence of liability
insurance if it is offered to prove fault; therefore, it can be used as evidence for some
other purpose, with appropriate limiting instructions
o Courts have split over whether indemnity agreements qualify as liability insurance
under Rule 411
 Even when evidence is admissible under FRE 411, the judge might exclude that evidence
under FRE 403

vi. Article VI Rules: Witnesses

A. Who Can Testify?
 The jurors, rather than inflexible rules, decide whether to believe the witness
 A declarant may be impeached as a witness, even if the declarant is not present in court

Putting a Witness on the Stand

 At common law, competency was a question of capacity (4)
b) Inability to communicate
c) Trouble distinguishing truth from non-truth
d) Seeing nothing
e) Cannot trust a witness’s memory
 Narration (FRE 611), sincerity (FRE 603), memory (FRE 602), perception (FRE 602)
(one would have to be completely absent, not just lacking, for a witnesses' testimony to
be barred)
o At the heart of witness testimony, but they exist under the surface of the FRE

FRE Rule 601: Competency to Testify in General

“Every person is competent to be a witness unless these rules provide otherwise”
• But in a civil case, state law governs the witness's competency regarding a claim or
defense for which state law supplies the rule of decision
• A rule of inclusion (like FRE 401), unlike every other rule which is a rule of exclusion
• The default rule is competence
o Another rule must specifically deny competence to exclude a witness from the
stand
• Opposing counsel must object or point out weaknesses for the jury to assess itself
o FRE 601 includes NO standard for defining competence
• Almost all witnesses are competent to testify, regardless of their youth or mental
impairment
o The competence of a child depends on his intelligence, his ability to differentiate
between truth and falsehood, and his understanding/appreciating of the
importance of telling the truth
• A witness is typically competent to testify even if he is connected to the litigation or has a
conflict of interest
• The judge has wide discretion in determining the competency of the witness though

FRE Rule 602: Need for Personal Knowledge

14
"A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter"
 Witnesses must have "seen, heard, or otherwise sensed the matter themselves"
o No speculation allowed
 FRE 602, however, does not limit witnesses to eyewitness accounts of the ultimate facts
disputed at trial; circumstantial evidence can also be relevant to a case
 Personal knowledge implies that a witness is capable of apprehending an event,
remembering it, and describing it to others
o The preference towards admissibility generally prevails
 Evidence to prove personal knowledge may consist of the witness's own testimony
 This rule does not apply to a witness's expert testimony under FRE 703.
o Expert witnesses are allowed to offer opinions related to a controversy even if
they lacked personal knowledge of the underlying facts

ALWAYS ASK: WHAT DOES THE WITNESS ACTUALLY KNOW?

FRE 603: Oath Requirement

 If the witness lacks the ability to understand the truth or to appreciate the seriousness of
testifying in court, then the judge may find that the witness is incapable of taking an oath
or affirmation required by FRE 603.
 FRE 603, however, does not require a witness to utter particular magic words to satisfy
its requirement (it respects religious beliefs)
o No requirement the oath must be to God

FRE 604: Interpreter (must be qualified and give an oath/affirmation)

FRE 605: A judge cannot testify in a case he is presiding
FRE 606: A juror may not testify as a witness before the other jurors at the trial. If a juror is
called to testify, the court must give a party an opportunity to object outside the jury's presence.

FRE 611: Judge’s Discretion/Control Over Trial

 Gives the judges a lot of authority to run their courtrooms in ways that maximizes justice
 Rule 611(a) is the basis for the overwhelming majority of objections at trial
 FRE 611 embodies the Hitchcock rule

1. Control by the court: The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to:
a. Make those procedures effective for determining the truth;
b. Avoid wasting time; and
c. Protect witnesses from harassment or undue embarrassment
2. Scope of Cross-Examination
a. Witness credibility and matters discussed on direct examination (mostly)
3. Leading Questions: Leading questions should not be used on direct examination except
as necessary to develop the witness's testimony. Ordinarily, the court should allow
leading questions:
a. On cross-examination; and

15
 b. When a party calls a hostile witness, an adverse party, or a witness identified with
an adverse party

Leading Questions
 Suggests an answer and adds some type of information
 A spectrum, not dichotomous
o Not a leading question: "what happened next"?
o What did Prof. Sevier do?
o Did Prof. Sevier do anything unusual?
o Did Prof. Sevier throw anything?
o Did Prof. Sevier throw an eraser?
o Leading question: Prof. Sevier threw an eraser, didn’t he?
 The ones in red are the ones courts question

• Leading questions are not allowed when a party is cross-examining an adversary's hostile
witness (so friendly to you, so as if you are conducting a direct examination)

There are 4 contexts in which judges most often allow attorneys to lead witnesses on direct
examination:
1. To establish pedigree information
2. To direct a witness's attention to a relevant place and time
3. To help a witness who is hesitant, confused, or has trouble recalling
4. Hostile witnesses
a. Rule 611 explicitly recognizes that leading questions are appropriate on direct
examination when a party calls a witness who is likely to resist that party's
position.
b. A "hostile" witness is any witness who is evading questions or otherwise being
uncooperative to such an extent that it is interfering with the eliciting of testimony

Courts do allow clarifying questions: clarifying ambiguity in witness's statements

a) Why did the event happen?
b) Who was the event directed toward?
c) What happened after the event?

FRE 614: Judge Calling Witnesses

• Authorizes the judge to call her own witnesses and to interrogate witnesses called by
parties
 Generally limited to mundane, clarifying questions, but the rule technically allows
examination (cannot show any favoritism to any side)
o Parties are allowed to object when the judge does this, and you can wait till the
jury is out to do so

FRE 615: Excluding Witnesses

At a party's request, the court MUST order witnesses excluded so that they cannot hear other
witness testimony. Or the court may do so on its own. But this rule does not authorize excluding:

16
 (a) A party who is a natural person
(b) An officer or employee of a party that is not a natural person, after being designated
as the party's representative by its attorney
(c) A person whose presence a party shows to be essential to presenting the party's claim
or defense
(d) A person authorized by statute to be present

 Can be invoked by either party or the judge

 A victim may be excluded if the court determines, by clear and convincing evidence, that
the victim’s testimony would be materially altered by the victim hearing other testimony

FRE 612: Refreshing a Witness’s Memory

 Used mostly on direct, but can be used on cross and even before trial (controversial rule)
 Allows attorneys to refresh a witness's memory with a document or other item
o The document could be something the witness wrote herself, but it need not be
o Any document can be used, as long as the witness states that it will help her
remember the necessary information
 Can be something the witness wrote, a newspaper article, audiotapes,
videos, photos, electronically stored media, etc.
o Whatever kind of writing is used, the witness must first state that,
(1) She does not remember the answer to the question being asked
(NOT, “I don’t know”), and
(2) Seeing the writing will "refresh her recollection."
o After the witness reviews the writing, the examining attorney will ask whether the
writing has refreshed her recollection
 The "refreshing" party may only introduce writing into evidence if the writing is already
admissible under the rules
 Can only use evidence under FRE 612 as a comparison: what witness knows/remembers
to what actually happened
o Does the witness truly have independent recollection, or are they your sock
puppet?
 Witness CANNOT read from the document
 When refreshment occurs before testifying, the adverse party may examine the materials
when justice requires (sets a norm of no)

Adversary's Options
 Inspect the document, potentially cross examine witness with respect to document, and
enter that document/info into evidence (even though the person producing it can’t)
o Opposing counsel can ask to "voir dire" (examine) the witness on her recollection
by asking questions, trying to persuade the judge the witness does not
independently recall the events recorded in the writing, thus failing to meet the
"personal knowledge requirements" of Rule 602
 Only an adverse party can introduce into evidence a writing used to refresh recollection,
but in a limited way (can only use it to evaluate the credibility of the witness; cannot use
it for substantive measures)
o Usually a hearsay problem if the moving party tries to admit a writing into

17
 evidence
o However, the refreshing party may introduce the writing if it isn't excluded by
another rule
 And if it is entered, it can be used for anything, not just credibility
 The adverse party may introduce a writing used for refreshment into evidence even if the
writing would not otherwise be admissible.
o But solely for assessing witness’s credibility; not for substantive purposes

Mechanics of FRE 612 Refreshing Recollection (7 steps)

I. To questions, the witness should not say "I don’t know" because that ruins foundation;
should say "I don’t recall or I don’t remember"
II. Identify "memory jogger" and ask witness if that might refresh her recollection
III. Show memory jogger to opposing counsel
IV. Show witness the memory jogger
V. Take the memory jogger away, to ensure witness is testifying from her recollection
VI. Ask witness: "does that refresh your memory"?
VII. Ask witness to testify from memory

Limits to Refreshing Recollection

 An attorney may refresh recollection whenever the judge grants permissions because the
authority to refresh recollection is found nowhere in FRE 612, it is under the discretion of
the trial judge under FRE 611
 FRE 612 assumes an attorney has already been given permission by the judge, and 612
lays out the process for how it goes

Can you refresh recollection with illegally obtained information?

 Ex: illegal wiretap?
o Are these admissible or no?
o Courts have been okay with all types of illegally obtained information for
recollection
 Sup. Ct. has not weighed in on this yet, but might
 This encourages illegal behavior on the part of law enforcement
o Tainting judicial process?
o If you don’t allow this sometimes, the refreshing might not lead to more accurate
results
 Runs the risk they won’t be giving accurate information to the court and
their testimony won’t be accurate

vii. Impeaching Witnesses

 Rule 607: allows parties to impeach any witness, including one of their own
 Rule 608: discusses how to attack a witness's character for credibility
 Rule 609: describes when a witness's prior criminal convictions are admissible to
impeach her
 Rule 610: forbids an attorney from impeaching a witness because of her religious beliefs
or opinions

18
Strategies for Impeachment
1. Referee Strategy: exclude evidence under a specific rule (go to the judge and object), or
exclude evidence via prejudice (FRE 403)
2. Offense Strategy: rebut bad evidence with other evidence (direct) affirmatively trying to
elicit facts; can also complete and/or clarify the evidence (cross)
3. Defense Strategy: impeachment (trying to stop your opponent from scoring points/tearing
witnesses down piece by piece)
a. Perception, memory, narration, and bias (questions and extrinsic evidence on
these points are allowed)
i. The most important ways to impeach witnesses
b. Typically, a witness’s testimony is challenged based on her character for
truthfulness, bias, ability to perceive or testify accurately, or a prior statement that
contradicts the witness’s testimony at trial
i. A witness may be impeached by another witness or by extrinsic evidence
that contradicts the witness’s testimony

Purpose of Impeachment: the witness is not believable

 Want to lower probative value of their testimony
 IMPEACHMENT DOES NOT EQUAL INCOMPETENCE
o Impeachment shows deficiency in a testimonial capacity
 Deficiency is a question of weight for the jury; goes to credibility
o Incompetent shows a complete absence of one or more testimonial capacities
 Impeachment evidence is NOT substantive proof of the information contained in the
impeachment evidence
o Impeachment evidence is used solely to evaluate how believable we think the
witness is

FRE 607: Who Can Be Impeached

"Any party, including the party that called the witness, may attack the witness's credibility"
 Parties even sometimes impeach a favorable witness as a way of preempting or "drawing
the sting" of negative information that an opponent most likely will raise on cross-
examination
 By introducing this negative info. On direct examination, the lawyer attempts to gain the
jury's trust and downplay the potentially harmful information
 A witness may not be called to the stand solely for the purpose of impeachment

**Vocab Terms for impeachment through prior inconsistent statements and untruthful
character**
a) Collateral Matter:
 A matter that does not relate to a fact of consequence; so only relates to impeaching the
witness
 Not a direct link to a fact of consequence (an inconsequential matter)
o With a collateral matter, the probative value is much smaller, so the chance of
it getting let in is very small (FRE 403)

19
  BIAS IS NEVER COLLATERAL
o Because a witness may be influenced by his relationship to a party (e.g.
employment), his interest in testifying (e.g. avoidance of prosecution;
testifying in exchange for dropped charges), or his interest in the outcome of
the case (e.g. receipt of inheritance), a witness’s bias or interest is always
relevant to the credibility of his testimony, and consequently, may be
impeached on that ground

b) Extrinsic Evidence:
• Anything that the witness does not say in their testimony during trial is extrinsic evidence
(frequently in the form of documents, or from another witness)
• Parties can rely upon extrinsic evidence to show that a witness's perception was impaired
o Ex: thunder impeding a witness’s ability to hear something or darkness impeding
ability to see
o These types of evidence (to show impairment) are extrinsic (they go beyond
questioning the witness on the stand), but they do not violate FRE 403 or 611
because of their strong probative value

• The bar on extrinsic evidence for collateral matters only applies to a few types of
impeachment:
o Prior inconsistent statements
o Impeachment by contradiction
 An attorney uses evidence other than a witness's prior statements to show
that the witness lied on the stand

Hitchock Rule:
 Parties may NOT use extrinsic evidence (outside documents/other testimony) to impeach
witnesses on collateral matters (impeaching something petty that doesn’t relate to a fact
of consequence)
o All of course subject to judge's discretion, but most of the times judge's follow
this

Intrinsic evidence: asking questions to the witness on the stand

 Consequential: Allowed (best case scenario) (could only be barred by FRE 403)
 Collateral: Allowed (most of the time) (FRE 611/403)

Extrinsic evidence: bringing in outside evidence (a new document or a new witness)

 Consequential: allowed (but increased limitations, particularly with prior inconsistent
statements) (FRE 613/611/403)
 Collateral: prohibited
o The combination of extrinsic evidence and collateral matters is the most
disruptive of all
 For this reason, judges use their discretion under FRE 403 and 611 to
prohibit extrinsic evidence of a prior inconsistent statement on a purely
collateral matter. Evidence of this nature causes delay and confusion that
substantially outweighs its probative value (FRE 403) and disrupts the

20
 orderly presentation of evidence (FRE611)

FRE 613: Impeaching by Prior Inconsistent Statement

(a) Showing or Disclosing the Statement During Examination. When examining a witness
about the witness's prior statement,
1. A party need not show it or disclose its contents to the witness (can surprise them),
2. But the party must, on request, show it or disclose its contents to an adverse party's
attorney
 A lawyer may choose either strategy to impeach a witness with a prior inconsistent
statement

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's

prior inconsistent statement is admissible only
1. If the witness is given an opportunity to explain or deny the statement and an adverse party
is given an opportunity to examine the witness about it, or
2. If justice so requires
 These conditions are easy to satisfy
o The witness’s opportunity to explain or deny the statement need not take place
before the statement is admitted into evidence
 FRE 613(b) raises potential problems only when a lawyer introduces evidence of a
prior inconsistent statement after a witness has left the stand
o FRE 613(b) allows the lawyer to do this, as long as opposing counsel can
recall the witness to the stand

• Judges most often admit these statements when the prior statement occurred before an
event that allegedly changed a witness's testimony
• FRE 613 does not require a party to lay any particular foundation before introducing
extrinsic proof of a witness’s prior inconsistent statement
• Limiting instructions often given along with FRE 613, because when a party offers a
prior statement solely for impeachment purposes, the jury cannot rely upon the substance
of prior statements
• The opportunity to explain or deny a PIS does NOT apply when the statement:
i. Impeaches a hearsay declarant
ii. Qualifies as an opposing party’s statement under FRE 801(d)(2)
• Extrinsic evidence of a PIS cannot be used to impeach a witness regarding a collateral
(i.e. irrelevant) matter; the questioning party is bound by the witness’s answer
o Follows Hitchcock Rule

**Impeachment by Contradiction**
 Close cousin of impeachment by prior inconsistent statement
 Not a prior statement that is impeaching him, but a prior ACT that is impeaching what
he said on the stand (an act that is inconsistent with a prior testimony)
 Because this is also governed by the Hitchcock rule, and is bringing in outside people to
testify, you have to ask if the other testimony is collateral or consequential
o Consequential contradiction -> ultimate legal question (fact of consequence)
 Witness saying two different things in the same testimony

21
 o No FRE governs impeachment by contradiction
 Evidence for impeachment by contradiction can come in the form of a witness for D
saying something contradictory to what a witness for P stated a minute earlier.
o But if the contradicted matter is collateral, most federal courts will exclude
evidence that impeaches a witness by contradiction on a collateral matter using
extrinsic evidence under FRE 403 because it is a waste of time; and calling
another witness is extrinsic

Two questions to always ask:

1. What's the reason (purpose) that I’m introducing this evidence?
2. If not to show untruthful character, what's the nature of the contradiction?
a. Contradiction of a former statement with an act
b. Try to use an act. If you say, "didn’t you say/tell …" then that will implicate FRE 613
(additional rule)

FRE 608: Impeaching Witnesses by Untruthful Character

 Exception to FRE 404(a) bar against propensity reasoning
 Not trying to show any inconsistencies
 The Hitchcock rule applies easily to questions of untruthful character: bars extrinsic
evidence
o But you can be creative without actually entering it into evidence

Chain of inferences:
1. Witness was dishonest before
a. almost always on something totally unrelated to the current controversy
2. Witness has general dishonest character
a. we care about truthfulness so much that we make an exception here to the rule barring
evidence about character
3. Witness is lying on the stand

FRE 608. A Witness's Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by
testimony about the witness's reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. But evidence of truthful character
is admissible only after the witness's character for truthfulness has been attacked

(b) Specific Instances of Conduct. Except for a criminal conviction under FRE 609, extrinsic
evidence is NOT admissible to prove specific instances of a witness's conduct in order to attack
or support the witness's character for truthfulness. But the court may, on cross-examination,
allow them to be inquired into if they are probative of the character for truthfulness or
untruthfulness of:
i. The witness, or
ii. Another witness whose character the witness being cross-examined has testified about

Limits of FRE 608(a):

1. The evidence must be in the form of reputation or opinion only

22
 2. The evidence must relate to the witness's character for truthfulness or untruthfulness
3. Testimony about a witness's character for truthfulness can only be elicited after his
character has been attacked
1. The credibility of a witness may not be bolstered
4. FRE 608(a) only admits evidence related to a witness's character. If an individual does not
testify in court, parties cannot rely upon this rule to attack that person's credibility

A party who wishes to challenge a fact witness's character for truthfulness may do so in any of 3
ways:
1. Cross-examine the witness about specific incidents suggesting a character for
untruthfulness under FRE 608(b)(1)
i. "Evidence of truthful character is admissible only after the witness's
character for truthfulness has been attacked"
2. Offer evidence of the witness's criminal convictions under FRE 609
3. Present a character witness who offers reputation or opinion testimony about the fact
witness's character for untruthfulness under FRE 608(a)
i. However, a character witness offered under FRE 608(a) may not give specific
examples of the fact witness's untruthful behavior
ii. And, apart from introducing evidence of criminal convictions, the party may not
offer extrinsic evidence, such as documents or testimony from other witnesses,
to show specific instances of a fact witness's untruthfulness (if witness says no
or denies specific instance, the prosecutor must accept that)
1. But extrinsic evidence of specific conduct can be admissible to
impeach the witness on other grounds, such as bias

 Aggressively cross-examining a witness about her testimony, pointing out inconsistencies

in that testimony, or showing bias does not attack the witness's general character for
truthfulness (so could not introduce evidence of truthful character after such instances)
 Cross-examination of a character witness can be much more devastating when the
witness testifies about the fact witness's truthful nature
o This type of cross-examination faces 2 limits:
1. Cross-examiners may only ask questions for which they have a good faith
supporting belief
2. The trial judge has discretion to exclude questions when they will create
unfair prejudice substantially outweighing their probative value
 Because of the damaging questions that can be asked on cross-examination, parties are
much less likely to present character witnesses who testify about truthfulness than they
are to offer witnesses who testify about untruthfulness

Four points established by FRE 608(b)

• A party may ask a witness about "specific instances of conduct" on cross-examination to
suggest that the witness has an untruthful character
• Attorney's must limit these questions to actions that are "probative of the witness's
character for truthfulness or untruthfulness."
o An attorney cannot probe other aspects of a witness's character such as
drunkenness, slothfulness, messiness, or meanness

23
 • The judge has discretion to prevent questions cross-examining a witness about specific
acts that reveal untruthful character (under FRE 403 or FRE 611)
• FRE 608(b) bars proof of these specific instances by extrinsic evidence
o Attorney's may cross-examine witnesses about acts that suggest an untruthful
character, but they may not introduce other evidence of those acts, such as
disciplinary reports or testimony from other witnesses
o Because an arrest for misconduct is not itself misconduct, a witness may not be
cross-examined about having been arrested solely for the purpose of impeaching
the witness’s character for truthfulness; however, the witness may be cross-
examined about the underlying conduct that lead to the arrest

 Under FRE 608(b): if you are solely trying to impeach a witness's character for honesty,
it is always collateral (so no extrinsic evidence is admissible)
a. The evidence HAS to bear on truthfulness or untruthfulness
b. A good faith belief under FRE 608(b) is most like the probable cause for a
warrant
i. A good faith belief is one that rests on some evidence, even if the evidence
would not be admissible in court
ii. Low standard and ripe for abuse
 Drug dealing is illegal, but it does not suggest a character of untruthfulness
a. Most courts have barred questions about drug dealing, under FRE 608(b)(1), just
as they preclude questions about other illegal acts that lack an element of deceit

Probative of Character for Truthfulness or Untruthfulness

 Examples of questions an attorney may ask that are "specific examples of conduct
suggesting untruthful character"
A. Using a false name
B. Lying on an employment or loan application
C. Failing to file tax returns
D. Bribing officials

 Examples of acts that are not related to truthfulness, thus barred under FRE 608:
A. Murder
B. Drug use
C. Sexual proclivities
D. Driving over the speed limit

Evidence of Truthful Character

 Can you admit evidence of truthful character?
o FRE 608(b) does NOT apply to direct examination, only cross examination
o No, this is discretionary, and the judge will likely prohibit it
o Judges don’t like "bolstering" the witness
 They already took the oath

FRE 609: Impeachment of Witnesses with Prior Convictions

24
  FRE 609 is still used to show the witness's character for untruthfulness, for a dishonest
act or non-dishonest act (a witness’s character for truthfulness may be impeached with
evidence that the witness has been convicted of a crime, but subject to limitations)
o DOES NOT FOLLOW HITCHCOCK RULE
 FRE 609 Applies ONLY to witnesses
o If D does not testify, you cannot use it against him
o FRE 609 only deals with impeachment
 FRE 609 applies only when a party uses a criminal conviction for a particular purpose: to
suggest that a witness has an untruthful character
o But if a party attempts to introduce a criminal conviction for a different reason,
the rule does not apply
 When a party does use FRE 609 to introduce evidence of a prior conviction, the jury may
consider that conviction only to assess the witness's character for truthfulness
o If the witness is also a party in the case, the jury should not use the conviction as
evidence of guilt or liability
 Evidence of a prior conviction may be produced by way of an admission by the witness,
whether during direct testimony or on cross, as well as by extrinsic evidence (e.g. a
record of the conviction)

Variations on FRE 403 balancing

 Traditional: exclude evidence if probative value is substantially outweighed by danger
of unfair prejudice
o A ton of prejudice and little probative value
o Used on non-criminal defendants
 Modified: exclude evidence if prejudicial effect outweighs the probative value
o Easier test for person trying to exclude the evidence to satisfy (eliminate word
substantially)
o Prejudicial effect only a little more than probative value (and can even be equal)
 Reverse: admit evidence only if probative value substantially outweighs prejudice
o Probative value so high and the prejudice is so low (mirror image of traditional
403)
o Applies even to prior convictions involving dishonesty or false statement,
such as a perjury conviction
o Tough to have admitted

How to Prove Untruthful Character

1. Untruthful acts
2. Bad reputation
3. Past convictions (409)

Continuum of 403 variations

1. Admit (all dishonest convictions)
a. No test (auto admit)
2. Traditional (witness felonies)
a. Most likely to be admitted (just a witness's past conviction, not the defendant, so
prejudice is not so worrisome)

25
 3. Modified (criminal defendant witness felonies) (only one that applies to criminal D's)
a. Doesn’t apply to civil D's (facing jail time, so more concerned about potential
prejudicial effect of past convictions), but still helpful to help us decide if it helps us
see D's truthfulness)
i. Mainly for criminal D's
4. Reverse (old convictions)
a. Prejudice to you is high, so jury may just think you are a bad person (most likely to
result in exclusion)
i. Toughest test
5. Exclude (juvenile (criminal defendants), pardons)
a. Auto exclude: civil and criminal
b. Offenses committed as a juvenile

Three Rules for Three Categories

1. The first rule governs prior felony convictions used to impeach any witness other than the
D in a criminal case
1. The witness need not receive such a sentence (felony conviction) for
impeachment to occur
2. Traditional 403 Test
2. The second rule applies to prior felony convictions used to impeach a witness who is the D
in a criminal case
1. Modified 403 test used
3. The third rule addresses prior convictions for any crime involving a dishonest act or false
statement, regardless of the witness's role or the crime's felony status
1. Conviction of a crime involving a dishonest act or false statement is highly
probative of a witness's character for truthfulness
 Thus, FRE 609 allows litigants to use ANY conviction for a crime of
dishonesty or false statement, no matter what the sentence, to impeach
ANY witness's character for truthfulness
 Misdemeanors: only come in if bear on dishonesty

5 Factors that FRE 609 examines when it creates 3 default types of convictions:
1. Type of witness
a. Criminal D v. other witness (includes civil D's)
2. Type of crime
a. Crimes that involve dishonest act/false statement v. crimes that don't involve this
3. Seriousness of crime
a. Felony v. misdemeanor
i. Almost always dealing with felonies, but one class could be misdemeanor
4. Passage of time since crime occurred
a. Released more than 10 years ago v. less than 10 years ago
5. Extenuating circumstances
a. Juvenile crime? Did the D receive a pardon with the conviction?

What constitutes a dishonest act or false statement for purposes of FRE 609(a)(2)?

26
  Judges generally agreed that crimes of violence, as well as crimes like theft, robbery, and
drug use did NOT qualify as crimes of dishonesty under the rule
 Counterfeiting counted as a crime of dishonesty, but courts split over whether failing to
file an income tax return did
 Now, the category of crimes for dishonest/false statement is limited to crimes for which
the court can readily determine that establishing the elements of the crime required
proving - or the witness's admitting- a dishonest act or false statement
o A dishonest act or false statement must be an element of the crime

For all witnesses, other than a criminal defendant, FRE 609 provides:
1. For a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
i. Must be admitted, subject to FRE 403,
1. In a civil case, or
2. In a criminal case in which the witness is NOT a defendant
 Prior felony convictions are generally admissible to impeach witnesses other than
criminal defendants
o But this is of course subject to traditional FRE 403

When FRE 403 FRE 609(a)(1)(B) FRE 609(b) [any conviction more
Prejudicial [for conviction less than 10 years old]
Effect… than 10 years old]
Is substantially Admits the Admits the Admits the evidence
less than evidence evidence
probative value
Is somewhat less Admits the Admits the Excludes the evidence
than probative evidence evidence
value

27
Equals probative Admits the Excludes the Excludes the evidence
value evidence evidence
Somewhat Admits the Excludes the Excludes the evidence
outweighs evidence evidence
probative value
Substantially Excludes Excludes the Excludes the evidence
outweighs the evidence
probative value evidence

 FRE 609(a)(1)(B) places the burden on the prosecutor to demonstrate that probative value
outweighs prejudicial effect so that evidence of a prior conviction should be admitted
 FRE 403 puts the burden on the party opposing admission to prove that prejudicial effect
substantially outweighs probative value
 FRE 609(a)(2) admits prior convictions for crimes of dishonesty or false statement, even
if they were misdemeanors and without any consideration of undue prejudice

FRE 609(e). Pendency of an Appeal. A conviction that satisfies this rule is admissible even if
an appeal is pending. Evidence of the pendency is also admissible:
• If a criminal defendant does not take the stand, the prosecutor will probably not be able to
introduce evidence of the defendant's prior guilt. But if the defendant does testify, then
FRE 609 gives the prosecutor an avenue for introducing evidence of the defendant's
convictions

FRE 609(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more
than 10 years have passed since the witness's conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only if:
1. Its probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect; and
2. The proponent gives an adverse party reasonable written notice of the intent to use it so
that the party has a fair opportunity to contest its use

Extenuating Circumstances
a. Juvenile offenses (two types of witnesses)
i. Criminal D (and in all civil cases): automatically excluded (no test); limited way
in which you can use a juvenile conviction (so only against witnesses in
criminal cases)
ii. All other criminal witnesses: two-part test
1. Would an adult conviction be admissible to attack the adult’s credibility?
2. Is the evidence necessary to fairly determine guilt/innocence? (is there a
less prejudicial way to get information to the jury that this witness is
potentially untrustworthy without bringing in the prior conviction?)

28
 • But, under 6th amendment, evidence of a witness’s juvenile adjudication can also be used
by a crim. D to impeach a witness’s credibility by showing bias, such as when the
witness’s juvenile adjudication could provide a motive for the witness to lie

b. Pardons
i. Pardons for actual innocence
ii. Pardons for rehabilitation (and no subsequent felonies)
iii. NO TEST (automatically excluded)
iv. In most cases, a conviction that has been subject to a pardon, annulment,
or certificate of rehabilitation cannot be used for impeachment under FRE
609

Review
Criminal D has an embezzlement conviction, judge excludes it under FRE 609, but prosecutor
wants to cross-examine about embezzlement, but not about conviction?
• Is this allowed?
1. Courts are split
2. Courts that exclude this argue it’s an end-run around the spirit of the rules
3. But, FRE 608(b) allows you to ask about instances that bear on
truthfulness/untruthfulness of witnesses

viii. Character Evidence

• Character evidence, which is generalized information about a person’s behavior, such as
information that the D is a criminal, a bad parent, or an inattentive driver, is generally
inadmissible

FRE 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character or
trait
o Ex: a plaintiff cannot introduce evidence that the D is a reckless driver to prove
that the D drove recklessly on the day in question
o Ex: A D is charged with brutally murdering his wife. The prosecution may not
present evidence of the D’s violent nature
1. Ex: someone stole a garden gnome, and the prosecutor wants to bring in a witness
to say that the defendant stole CD's from target.
 This is relevant, but impermissibly relevant under FRE 404(a)

• On its own, this rule would prevent litigants from suggesting that a witness is a generally
untruthful person
• Because untruthfulness is a character trait, FRE 404(a)(1) prohibits a party from arguing
that, because the witness is a generally untruthful person, the witness probably lied on the
stand

29
 1. The key element to applying this rule is identifying the purpose for which a party
is offering evidence
2. If the evidence is being offered to prove that "the person acted in accordance with
the character or trait," it is being offered as propensity evidence and will almost
always be barred
• FRE 404(a)(1) bars evidence of both bad and good character if that evidence is offered to
prove that a person acted consistently with their character on a particular occasion
o If the evidence is not directly related or connected to the claim at issue, it will be
barred
o Unlike FRE 608 and 609, which limit their scope to proof of a witness's character,
FRE 404(a)(1) applies even to people who never appear in the courtroom

 FRE 404(a) is an evidentiary net that excludes most character evidence from the
courtroom in both civil and criminal cases
 FRE 404(a)(1) generally prohibits the use of evidence to suggest that a person committed
a particular act simply because that would be consistent with her character
o FRE 608(b)(1) establishes an exception to that rule for testing the truthful
character of witnesses

• Character evidence is admissible for impeachment purposes. Character evidence may

be introduced to show that the witness is not a person whose testimony should be
believed. In such instances, the witness’s character for untruthfulness is relevant. When
permitted, the witness’s testimony may be supported by testimony as to the witness’s
character for truthfulness.

(2) Exceptions for a defendant or victim in a criminal case. The following exceptions apply in a
criminal case:
1. A defendant may offer evidence of the D's pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to rebut it
a. A D is permitted to introduce evidence of his good character as being
inconsistent with the time of crime charged
1. Ex: A D is charged with brutally murdering his wife. The D may
present evidence of his peaceable nature
2. But proof of good character is only admitted in the form of
reputation of opinion testimony
2. Subject to the limitations in FRE 412 (rape shield), a defendant may offer evidence
of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor
may
a. Offer evidence to rebut it, and
b. Offer evidence of the defendant's same trait
3. In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of
peacefulness to rebut evidence that the victim was the first aggressor

• Once a defendant has introduced testimony of his own pertinent trait, the prosecutor may
rebut the defendant’s evidence and impeach or cross-examine the defendant’s character
witness. FED. R. EV. 404(a)(2), 405(a).

30
 • If evidence supplies motive for a crime (like motive to kill) then that can be admitted for
its substance

MERCY RULE
• Mercy rule (hole in the FRE 404(a) net) (character arguments okay under this rule)
• Applies to ONLY criminal cases (D's)
1. Allows D to introduce evidence about his character OR the victim's character
2. Character trait must be pertinent (means more than relevance; it has to bear
meaningfully on the substantive crime)
3. Prosecutor may respond, but cannot initiate (mercy rule doesn’t make prosecutor
powerless)
 The prosecutor does not have to wait for the accused to introduce
character evidence; the government may respond to any evidence that the
deceased attacked first
• Have to actually point to a character trait (but what exactly is that?)

• Once the door is opened by the defense (for D’s “good character”), the prosecution can
present character evidence for victim or defendant

4 Key Points about these Provisions:

1. These exceptions to the "no-propensity" rule apply only in criminal cases
2. The exceptions allow only proof of "pertinent" character traits.
 Ex: D in a homicide trial claims self-defense and supports that claim by offering
evidence that the alleged victim had a violent character
3. These subsections of FRE 402(a)(2) allow proof about both the defendant's character and
the alleged victim's character
4. The subsections distinguish between when the defendant may introduce these types of
evidence and when the prosecutor may do so

Type of When may D offer When may

Character this? Prosecution offer
Evidence this?
Pertinent trait of Any time To rebut character
D evidence of the same
trait offered by D, OR
to match character
evidence that the D
offered about alleged
victim
Trait of Not applicable: In homicide cases: to
Peacefulness of Defendant would not rebut any evidence that
Alleged victim introduce this the alleged victim was
evidence the first aggressor
In other cases: to rebut

31
 character evidence that
the victim was not
peaceful
Other pertinent Any time, unless Only to rebut evidence
trait of Alleged barred by FRE 412 of the same trait
victim (rape shield law) offered by D; evidence
must comply with FRE
412

Character Evidence
Basic Concepts
1. Acts: need to know what an "act" is. Acts play a key role in character evidence
2. Propensity: different from "acts." Propensity is the tendency to commit an act;
predisposition
3. Reputation: what others think about you; can be based on acts, but presumably based on a
cluster of acts you have performed
4. Character: black box; cannot see it, it is inferred from acts and reputation
a. Underlying assumption is that we have stable personality traits that do not change
over time or across situations

Four Categories of "Character Evidence"

1. Proof of a witness's propensity to lie or tell the truth
a. Under some circumstances, FRE 608 and FRE 609 allow parties to introduce
evidence related to a witness's character for untruthfulness
b. Rule 608 allows a party to introduce evidence that a witness has a reputation for
untruthfulness
c. Rule 609 allows parties to prove that a witness was convicted of crimes of
dishonesty
d. This first category of character evidence depends on the notion of propensity
1. Consistency is key for either party
a. Consistency: propensity to act in a particular way

2. Proof of Conduct by Propensity

a. Parties often argue that, just as witnesses testify consistently with their character
for truthfulness or untruthfulness, people act in other ways that are consistent with
other character traits
b. The prosecutor urges the jury to reason:
i. The defendant committed many violent acts
ii. Someone who has committed many violent acts probably has a violent
character
iii. A person with a violent character has a tendency to commit assaults (or
another violent crime)
iv. Therefore, the defendant assaulted the victim

32
 o FRE 404(a) bars most attempts to prove conduct by propensity, with a few
exceptions

3. Proof of Character or Reputation as Elements

a. A party may offer evidence of character or reputation for reasons that do NOT
depend on an inference of propensity
i. Some crimes, civil claims, or defenses require proof of character or reputation
to establish an element of that claim or defense
b. Reputation itself can be an element of a claim, not just a way or proving character,
like with defamation claims (plaintiff must show injury to reputation)
c. FRE 405 allows evidence of character or reputation to establish an element of a legal
claim

When is Character an Element?

 The most difficult issue that arises in applying FRE 405(b) is determining whether
character truly is an element of the controversy
a. The FRE do not allow character evidence to prove conduct through propensity
 Only four categories of cases account for almost every lawsuit in which character is an
element:
a. Defamation
i. If the allegedly defamatory statements concern the plaintiff's character,
then the parties will dispute whether those statements were true
ii. Also, proving reputation (or injury to it) often overlaps with showing
character
b. Child custody
i. Frequently involves deciding whether each of the litigants is a "good
parent" or "bad parent'
c. Criminal cases when the defendant claims entrapment
i. The entrapment defense requires the defendant to prove that she lacked a
predisposition to commit the crime, so the defendant's criminal or non-
criminal character is an essential element of the defense
d. Negligent entrustment claims
i. Includes character as an element of a civil case
ii. An injured P argues that the D carelessly entrusted a car, gun, or other
potentially dangerous instrument to a person that the D had reason to
know would misuse that instrument
1. The D negligently ignored knowledge

Key points:
1) Is the issue solely what the character is?
a. If so, admissible (doesn’t implicate 404(a))
2) Procedure (Civil)
a. Can prove nearly any way you want: opinion, acts, extrinsic evidence, etc.
3) Procedure (Criminal)
a. Specific instances of a person’s conduct are NOT admissible; only can be proven
by reputation or opinion evidence

33
FRE 405: Methods of Proving Character

(a) By Reputation or Opinion. When evidence of a person's character or character trait is

admissible, it may be proved by testimony about the person's reputation or by testimony in the
form of an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person's conduct.

(b) By Specific Instances of Conduct. When a person's character or character trait is an

essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person's conduct
 Evidence of specific conduct offered under FRE 405(b) must satisfy the other FRE
o Ex: a party cannot prove specific instances of conduct through a witness who
lacks personal knowledge of those instances

FRE 405(b): when character is an element (have to prove character): so, can show by specific
instances on direct
 Justification: a lot of equity concerns; goes to heart of what the court is trying to decide
 FRE 405(b) allows evidence of specific acts in any form
 When character is an element of a crime, claim, or defense, ALL evidence related to that
character is central to the case
o Applies when mercy rule applies, by reputation/opinion, can cross on specific
incidents, no extrinsic evidence allowed (must accept what witness states)
 FRE 405(a) - testimony is limited to only reputation/opinion evidence on direct, but on
cross, the court may allow inquiry into relevant specific instances of the person's conduct
o Same procedure as in FRE 608
 As in other contexts, a cross-examiner cannot ask a character witness about speculative or
imaginary acts; the attorney must have a good faith belief that the incidents occurred
o Not a very high standard
 Can establish this belief through hearsay and other weaker forms of
evidence (evidence to prove belief does not have to be admissible)

4. Proof of Other Acts for Non-Propensity Purposes

a. A single action can support dozens of different inferences about character traits,
mental states, or circumstances
b. When parties offer evidence of an action for a purpose other than to prove
character and a propensity to act in a particular way, FRE 404(b) often allows that
evidence
i. Ex: use the evidence to simply show that the defendant had essential
knowledge to commit the crime
c. When a crim. D requests, the prosecution must provide reasonable notice of the
general nature of such evidence that the prosecution intends to offer at trial
(usually given before trial, but doesn’t always have to be)

FRE 404. Character Evidence; Crimes and Other Acts

34
(b) Crimes, Wrongs, and Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular occasion the person acted in
accordance with the character
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in
a criminal case the prosecutor must …
(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
(B) do so before trial - or during trial if the court, for good cause, excuses lack of
pretrial notice

• Ex: a driver is sued to recover for injuries inflicted on the plaintiff allegedly due to the
driver’s negligent failure to stop at a stop sign. The plaintiff cannot introduce testimony
by a witness that the driver failed to stop at the same stop sign the day before the accident
in question for the purpose of proving that the plaintiff failed to stop at the stop sign on
the day of the accident.

Other Purposes
1. Motive
a. A prosecutor may argue that a previous crime or other bad act is admissible because it
motivated the charged crime
b. Motive suggests the cause: you did this act because you needed this thing
c. Very probative evidence, so FRE 403 challenges usually fail
2. Identity
a. Signature elements of a crime may also allow the prosecutor to prove identity by
introducing evidence of the defendant's other crimes or bad acts
1. "unusual feature" of a crime
b. Identity under FRE 404(b) only works if 2 conditions are met:
1. Identity must be at issue
2. There must be strong similarities between the charged crime and the other crime
3. Opportunity
a. Commission of a crime sometimes requires a particular opportunity, such as access to
a protected place or special tools.
1. To prove that the D had the opportunity to commit a crime like this, the
prosecutor may offer evidence that the D enjoyed access to the protected place
or special tools on another occasion (ex: a prior crime or bad act)
b. As long as the evidence establishes a needed opportunity, it avoids the propensity
inference forbidden by FRE 404(a)
4. Knowledge
a. As long as the other act proves a relevant fact without using the propensity inference,
the evidence is admissible regardless of what it is called
1. Prosecutors often cite "knowledge" as a purpose for introducing evidence of
other crimes or bad acts when knowledge of a particular fact is an element of
the crime

35
 2. Evidence of another crime sometimes demonstrates that the D possessed that
knowledge
5. Pattern/Plan
a. “Doctrine of chances”: cannot be a coincidence
6. Modus Operandi
a. A particular way or method of doing something, especially one that is
characteristic or well-established.
7. Intent
a. Need to prove intent to commit an act (like deal cocaine)
b. Chain of inferences: D did it once, so likely to do it again, therefore he has the
intent to commit the act
1. Just like forbidden propensity argument…
c. A way to reign this is: instead of D sold cocaine 3 years ago and is intending to
sell it now; think of a man committed vehicular homicide 3 years ago, and then
poisoned someone yesterday: intent to show trying to commit homicide
d. Different because different act; Look to see similarities between past acts (this
goes toward intent) but most courts don’t do this, they simply allow this in
1. Of course, subject to FRE 403

Civil Cases
 When a party claims that the jury should consider the entire history of events to infer an
intent, rather than use a known intent from one occasion to infer intent at another time,
this is allowed.
o This distinction -- reasoning from an overall pattern rather than reasoning by
propensity -- is subtle, and most courts don’t focus on it; it is allowed

OVERALL
 Ban character to prove propensity
o Exceptions:
 Character for truthfulness (impeachment) (FRE 608)
 Mercy rule in criminal cases (D often making character arguments, so the
forbidden inference, but we make a carve out)
o Exemptions:
 When character is an element of the offense
 When character is used for some other purpose (FRE 404(b))
 Evidence of a bad act that is otherwise admissible is especially subject to challenge under
FRE 403, so the court may exclude such character evidence of a bad act when its
probative value is substantially outweighed by the danger of unfair prejudice

Quick recap
• Proof of witness’s propensity to lie or tell the truth: admissible 608, 609
• Proof of conduct by propensity: not admissible
• Proof of character or reputation as elements: admissible
• Proof of other acts for non-propensity purposes: admissible
 FRE 610: no admission of proof through religious beliefs

36
ix. Habit

FRE 406. Habit; Routine Practice

Evidence of a person's habit or an organization's routine practice may be admitted to prove that
on a particular occasion the person/organization acted in accordance with the habit/routine
practice. The court may admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness

 Specific, repeated responses to a particular situation or stimuli"

 An individual who is placed in a particular situation will respond over and over again
with the same specific behavior
 FRE 406 allows litigants to present past examples of this specific behavior to prove that
an individual behaved the same way during the incident that is the subject of the litigation

Habit is…
1. Specific conduct
2. Invoked in distinctions/specific situations (stimulus)
3. Has to happen on a regular basis
o Up for courts to determine: the more it happens the more it looks like habit
4. Lack or moral overtones
o You can use extrinsic evidence to prove habit

 Sometimes, if something doesn’t look like habit evidence, you could still get it in under
FRE 404(b) if it fits
 The more specific the act looks, the more it looks like habit

Distinguishing factors between propensity and habit:

1. The specificity of the conduct
a. Very specific conduct that arises regularly in an identifiable context is most likely to
constitute habit
1. Look for words like “always” or “every time.”
2. Words like “often” or “frequently” usually imply character evidence
2. The distinctiveness of the situation producing the conduct
3. The regularity of the conduct

 FRE 406 does not define "habit" or "routine practice"

o Routine practice is the equivalent of a habit for an organization
o A person can testify about her own habit even if no one else has ever seen her act
in that way
 Here, the existence of habit is a question of credibility
 FRE 406 is silent about how to prove habit
o Can be proven through opinion testimony and specific instances of conduct

x. Hearsay

37
  FRE 801
 All else equal, we want the person who has the direct knowledge, not the person who
is reporting what they heard someone to say
 Secondhand reports double the risk of unreliable information, eliminate the fact
finder's opportunity to cross-examine the original speaker, and deprive the fact finder
of the opportunity to observe the initial speaker's demeanor, directly assessing his
credibility
o With firsthand statements, you can test the speaker's perception, memory,
clarity, and sincerity

Secondhand reports pose 4 problems:

1. Problem of perception
2. Problem of memory
3. Problem of problem of clarity
4. Problem of sincerity

Why we prefer in-court statements

 Reduces chance of error in statements
 Assess credibility (cannot do this with out-of-court declarant)
 Test through questions/impeachment techniques
 Oath and formality

 Hearsay (out-of-court) Declarant: often times different from testifying witness

 Problem with hearsay: dealing with 2 people
o Cannot comment on underlying substance of what she is telling you (the person
who has something to say about it is out of court, and can only test one
testimonial capacity)
 Can only use tools of impeachment on one person who has uttered
something

A. What Is Hearsay?

FRE 801. Definitions that Apply to This Article; Exclusions from Hearsay
(c) Hearsay. "Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) A party offers in evidence to prove the truth of the matter asserted in the statement

**3 Parts:**
1. Out of court statement (anything not said by the witness on the stand)
2. Used as evidence in court
3. To prove the truth of the matter asserted

 ALWAYS ASK: does it matter whether the thing asserted is true or not
 The first step in applying the hearsay rules is to suspect ANY testimony that refers to a
statement made anywhere but on the witness stand in the current proceeding

38
  If the declarant offers firsthand information about a fact relevant to the lawsuit while
testifying at trial, the statements are not hearsay
o If the declarant makes a statement reporting the information outside the
courtroom, and someone repeats the statement at trial, it is hearsay
 So, the declarant/witness should not say what he said that he saw, but only what he saw
 Even if a witness quotes her own out-of-court statement, that statement is hearsay

B. Who Is a Declarant?

FRE 801. Definitions that Apply to This Article; Exclusions from Hearsay
(b) Declarant. "Declarant" means the person who made the statement
 Needs personal knowledge

 A declarant who testifies at a trial or hearing is a witness; a declarant who speaks outside
the courtroom is just a declarant
o So, all witnesses are declarants
o But declarants are witnesses only when they testify under oath at a trial or hearing
 A statement made by a declarant while testifying at trial is not hearsay for purposes of
that trial; all other statements constitute potential hearsay
 FRE 801 "statement" is a communication that reflects the speaker's personal knowledge

C. What Is a Statement?

FRE 801. Definitions that Apply to This Article; Exclusions from Hearsay
(a) Statement. "Statement" means
 A person's oral assertion,
 Written assertion, or
 Nonverbal conduct (courts look at context)
o If the person intended it as an assertion (if there is no intended communication,
not hearsay)

 An assertion is any action undertaken by the declarant that is intended to communicate

a fact
o Any time a person asserts a fact, she makes a statement
 A question is not a statement for the purposes of hearsay

 Key: words alone do not count as a statement

o There has to be a declarant (a human)
o There has to be an assertion (intentional communication)

 Ex: a dog who signals to the handler that there are drugs somewhere, the handler testifies,
it is not hearsay because the dog is not a human (not a statement)
o We don’t think animals lie, so the cross-examination of the handler is reliable
enough

 Ex: Technology. These media almost always contain statements:

39
 1. Emails
2. Audiotapes/soundtracks
3. Web pages with words
4. Faxes
 These potentially have hearsay problems because they are statements, and you may not
be able to use the statements to prove substantive content unless there are exceptions

 These media are more likely to include material that is not a statement:
1. Photos
2. Videos
3. Websites without words
 These do not assert anything; no communication really
o Hearsay is not a question of reliability (authentication)

Example 1: (technology)
 D accused of murder on March 15, 2008 at 6pm
 D offers a receipt to show that he was drinking at a restaurant at 6:06pm (alibi)
o These are not statements because there is no declarant here who made that assertion
 There is an implied assertion that D was conducting business on March 15, at
6:06pm
 But this is a nonhuman declarant; this is an algorithm, no human involvement
 Ex: motion detector alarm
 Thus, not subject to hearsay rule, so can come in if not barred by
another FRE

 But if a human has to type in a code to show its them as the server on the receipt, this is a
declarant (human touch is more direct)
o Ex: pushing a panic button
o Different from algorithm that spits out the time

 Receipts are ripe for bar testing

 Fully automatic processes: not a statement
 Information or signal originates from human: statement
o Between these two poles, which way does you example move you?

Assertive Conduct
Ex:
 "X" on the back of a hand to show under 21
o Yes, a statement (implied assertion, communicating to bartender the person is under
21. The declarant is the person who put the "X" on the hand)
 Thus, if a witness testifies about seeing the "X" to show that Daniel is under 21, this would
be excluded as hearsay

Silences
 What would a reasonable person do in the situation
o But not all silences are the person communicating with you

40
  Look for a "pointed silence"

Out of Court Statement

 The Hearsay Four:
1. Is the witness referring to a statement that occurred outside the courtroom?
2. Are you sure it is a statement?
3. Is a party offering the statement to prove the truth of the matter asserted?
i. After these steps, you know whether something is hearsay or not
(ALWAYS DO THESE FIRST BEFORE EXCEPTIONS)
ii. If it is hearsay …
4. Does an exception apply [rare, but does it violate 6th Amendment? (confrontation
clause]

D. Truth of The Matter Asserted

 Depends on the purpose for which a party introduces an out-of-court statement
 We want witnesses to speak from personal knowledge; not report from someone else's
personal knowledge
o Whose personal knowledge is it
 Looks specifically at the statement; what is the substance; and to what purpose are we
trying to use the statement?
o If trying to use statement that parallels the substance, you have a potential hearsay
problem

 Is a party using an out of court statement as part of the witness's personal knowledge?
o NOT hearsay
o Ex: if the party introduces an out-of-court statement only to demonstrate that the
statement was made
 If the party is using the statement to show something that the out of court declarant knew
o IS hearsay

 For the purposes of impeachment, is a prior inconsistent statement from the actual
witness hearsay?
o No. Trying to show inconsistency, not the truth of the matter asserted
o We don’t care which is actually true, just want to show she is telling different
stories
o NOT HEARSAY WHEN USED TO IMPEACH, but might have hearsay problem
when used to show the content is false or true
 When looking at block quotes; pull out what the truth of the matter is, and then look at
what is being proven?
o Could be motive instead of truth
 If a party is not using someone's words to establish the truth of the matter, those words
can be used as circumstantial evidence (e.g. a statement offered as circumstantial
evidence of the declarant’s mental state is NOT hearsay)
o If someone testifies about what someone said, without regard to whether the truth
of that person's statement was correct, and the testifying person has firsthand
knowledge of the words, that is allowed

41
Some common purposes for out-of-court statements that do not depend on the truth of the matter
asserted. Statements like these are not hearsay if offered for the purposes identified below:
1. Knowledge of the speaker
2. Notice to a listener (knew statement was uttered, like a warning)
3. Publication in a defamation case
4. Effect on the listener
5. Legally binding statements (a statement offered to prove that the statement was made,
regardless of its truth, is NOT hearsay)
a. The truth of these statements doesn’t matter; even if the speaker was lying, the
words establish consent

E. Hearsay Exceptions

Categories of Hearsay Exceptions

1. Rule 801(d): "Not" hearsay, but really is, just an exemption
a. Prior statements
b. Statements of opposing parties
2. Rule 804: declarant not available
a. Ex: declarant died, privilege, etc.
3. Rule 803: availability immaterial (23 exceptions here)
a. No requirement that the declarant be unavailable

Exception Rationales
1. Heightened reliability
2. Heightened need

FRE 801: Hearsay “Exemptions”: NOT Hearsay

1) Prior Statements
 FRE 801(d)(1)(A): This rule recognizes 3 types of prior witness statements that are
admissible:
1. Statements that are inconsistent with the witness's courtroom testimony
2. Statements that are consistent with that testimony, and
3. Pretrial identifications of a person

 Witnesses who take the stand and claim lack of memory (real or feigned) are still
subject to cross-examination, while those who completely refuse to testify be
invoking the privilege against self-incrimination are not

FRE 801. Definitions that Apply to This Article; Exclusions from Hearsay
(d) Statements That are Not Hearsay. A statement that meets the following conditions is not
hearsay:
(1) A Declarant-Witness's Prior Statement
o The declarant MUST testify and

42
o Is subject to cross-examination about a prior statement

(A) Is inconsistent with the declarant's testimony and was given under oath and
under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition (a
sworn statement to police officers do not count)
 Must be inconsistent with the witness's current statement (ensures that
the admitted evidence is particularly useful), made under penalty of
perjury, and occurred at a deposition or during a trial, hearing, or other
proceeding (both help to ensure the statement's reliability, and ensure it
was recorded in some form)
 P.I.S may be admissible to impeach the declarant’s credibility and as
substantive evidence
o Inconsistent statements not made under penalty of perjury may
be admissible to impeach a witness, but is not admissible as
substantive evidence
 Refusal to testify and memory loss is considered inconsistent with a
prior statement

(B) Is consistent with the declarant's testimony and is offered:

i. To rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying, or
ii. To rehabilitate the declarant's credibility as a witness when attacked on
another ground (inconsistency or memory usually)
 Does not require the witness's prior statement be under oath or at a
proceeding
 Ties admissibility to rehabilitation of a witness's credibility
(1) the witness’s credibility has to be attacked
(2) the prior consistent statement has to have probative value in
rehabilitating credibility

 Grand jury testimony often times is the wrong answer here

 Timing is critical to the extent these are prior statements (timing may
affect its admissibility)
 This rule allows introduction of consistent statements that are
probative to explain what otherwise appears to be an inconsistency in
the witness's testimony, or to rebut a faulty memory
 Statements falling within subsection 801(d)(1)(B)(i) are admissible
only if those statements occurred before the motive to lie or improper
influence arose
 When a prior consistent statement satisfies the requirements of FRE
801(d)(1)(B), it can be used both to support the witness’s credibility
and to prove the truth of the matter asserted

(C) Identifies a person as someone the declarant perceived earlier

**Requirements:**

43
 1. Declarant testifies at trial (promotes reliability)
2. Declarant/witness is subject to cross-examination
3. Prior statement was an identification of a person
• May be admissible as substantive evidence
• Even if the witness has no memory of the prior identification, it will
be admissible because the witness is subject to cross about the prior
identification

FRE 613: Impeachment by P.I.S. FRE 801(d)(1)(A): Hearsay Exception for

Witness’s Prior Statement
Any prior inconsistent statement related to a Prior inconsistent statement must have been
fact of consequence is admissible made under penalty of perjury and at a trial,
hearing, or other proceeding, or deposition
Statement is admissible ONLY to impeach P.I.S may be admissible to impeach the
the witness’s credibility declarant’s credibility and as substantive
evidence

Judge will instruct the jury to use the prior No limiting instruction
statement only to assess witness’s credibility

2) Statements by An Opposing Party

 ON EXAM, IF A PARTY SAID SOMETHING, think of this exception first!!!
o Even if the declarant said it on a piece of paper or through an email
 FRE 801(d)(2)
Rule 801. Definitions that Apply to This Article; Exclusions from Hearsay
(d) Statements that are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(2) An Opposing Party's Statement. The statement is offered against an opposing party
and:
(A) was made by the party in an individual or representative capacity; and
(B) is one the party manifested that it adopted or believed to be true;
 FRE 801(d)(2)(B) provides that a party's statement need not consist of
the party's own words
o It is sufficient if the party "manifested that it adopted" a
statement or "believed the statement to be true"
o One common way to adopt a statement is to sign a document
prepared by others
 An individual's silence can constitute an adoptive admission, but the
circumstances must be such that a reasonable person would speak up
rather than remain silent
o Once a D has received, or should have received, Miranda
warnings of the right to remain silent, the D's silence can no
longer be held against him
(C) was made by a person whom the party authorized to make a statement on the
subject; and

44
  EX: a party might authorize another person to speak on just a single
subject or single occasion
(D) was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed.
 An agent is someone authorized to act for a party on a particular
matter
o Attorneys are agents of their clients
 A party-opponent’s authorized or agent’s admission may not be
offered to prove the existence or scope of the relationship

FRE 801(d)(2)
1. Applies to ANY Statement by a party (any time, place, person)
a. Don’t have to have taken an oath, and it doesn’t matter whether it is made in
anticipation of litigation or not
2. Statement does NOT have to be an admission
a. Doesn’t have to be against your interest
b. And the “statement” can be in writing too
3. Party's availability is immaterial
4. FRE 801(d)(2) holds a party responsible for every statement that he makes, even if he made
that statement without any personal knowledge, and even if there is evidence that he was
mistaken or lying when he said it
a. Even when a crim. D invokes the self-incrimination privilege and declines to take
the stand, the gov. may introduce evidence of the D's out of court statements

2 Limits
1. Declarant must be a party
a. A victim in a criminal prosecution is not a party
b. A D cannot "testify" through the artifice of asking another witness to relay his
statements
2. Statement must be offered against the party/declarant who is speaking
a. Self-serving (own, personal) statements would get in and evade cross

Criminal Defendants
 FRE 801(d)(2) admits party statements in both civil and criminal cases
o Prosecutors commonly use FRE 801(d)(2) to admit a crim. D's oral or written
confessions
 Creates a dilemma for D's with prior convictions
 If a D takes the stand to rebut or explain the out of court statements, the prosecutor may be
able to introduce evidence of the prior convictions to impeach the D as a witness
o But if the D leaves the out of court statements unexplained, that statement may
unfairly suggest guilt

Relationship to Others
 FRE 801(d)(2) sheds new light on FRE 407 (Sub. Remedial measures); 408 (settlement
negotiations); and 409 (medical expenses)
 The dance of admission and exclusion for this type of evidence unwinds as follows:

45
 1. A party's concession of liability during a settlement negotiation, if offered to establish
liability at trial, would be hearsay
2. FRE 801(d)(2) however would allow an opposing party to introduce this concession
as an opposing party's statement
3. But FRE 408 will exclude the concession as a statement occurring during a settlement
negotiation, assuming that the requirements of FRE 408 are met

FRE 801(d)(2) and Multiple Parties

Offensively
P v. D1 (classic way)
P v. D2? (courts split)
• As long as a party offers a statement against a co-plaintiff or co-D, FRE 801(d)(2)
supports introduction of the statement
• Not an opposing party. Maybe adverse to each other, but not opposing party
 But despite what might be in the text, as noted above, what is the argument that says
don’t be so literal?
o They have adverse interests to each other (burden shifted to them to prove fault or
disprove fault) that look a lot like adverse interests of opposing parties
(functioning like opposing parties, so let D1 use it against D2)

Defensively: one party trying to ensure that a statement entered under FRE 801(d)(2) is not
attributed to them (not trying to use it against another party)
• Turns on the identity of the speaker
o Bruton only an issue with defensive way
o Somebody else’s statement that implicates you when they don’t testify
(unavailability is key)
 Gets in under opposing party statement, but it implicates you, so they
become your accuser, so confrontation clause problem because they are
unavailable
 Has to be a testimonial statement (statements to police)

 Civil Solutions: (Co-D's)

1. Redact the statement (difficult),
2. Try to make it a joint statement (adoption, agency, or authorization to speak),
3. Identify another hearsay exception (maybe statement against interest?)
4. Instruct the jury to consider the statement only with respect to Todd's liability
(routine solution: bring it in with its entirety (limiting instruction), and trust the
jury…HA, right)

 Criminal Issues:
1. Sixth amendment: D has right to confront witness
a. Confrontation = cross-examination
2. If declarant is a "witness" against a D, D must have opportunity to cross-examine
them
a. No problem with a D's own statement

46
 3. But using the statement in a joint trial including D2 raises 6th amendment
concerns with respect to D2 (especially if D1 doesn’t testify (not subject to cross),
but if D1 does testify, then you can give a limiting instruction and no Bruton
problem)
a. Cannot be used against D2
b. If the statement only implicates the co-D after being linked with other
evidence, introduction of the statement does not violate Bruton
i. Implicit links to a co-D is okay

Criminal Solutions:
1. NO limiting instructions allowed (opposite of civil), unless D1 testifies
2. Redact statement (but cannot just take name out; confrontation clause violation)
(cannot be obvious to jury who identity of person redacted is)
a. Gray v. Maryland: The Court held that a redacted confession that simply
"blanks out" a co-D's name may violate Bruton
3. When a confession simply substitutes blanks for names, it is too easy for the jury
to fill in those blanks with a co-D's name
4. Adoption, agency, authorization still applicable (she makes it her statement, so no
constitutional violation)
5. Find another hearsay exception that doesn’t violate constitutional rights

• These guidelines ONLY apply when the gov. tries the D's jointly and the D who made
the out of court statement fails to take the stand at trial
o Most prosecutions raise no Bruton issues

FRE 801(d)(2)(E): Statements of Co-Conspirators in Criminal Cases

Although a statement made by one co-party is NOT admissible against another co-party based
solely on their status as co-parties, a statement made by a co-conspirator during and in
furtherance of the conspiracy is admissible as an opposing party’s statement against other co-
conspirators

Rule 801. Definitions that Apply to This Article; Exclusions from Hearsay
(d) Statements that are Not Hearsay. A statement that meets the following conditions is not
hearsay:
(2) An Opposing Party's Statement. The statement is offered against an opposing party and:
 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)

• Can get around Bruton problem by saying people are co-conspirators

• This exception for co-conspirators makes everyone in the conspiracy acting as one person
(statement applies to all people in conspiracy)
• One co-conspirator cannot claim that another co-conspirator's statement is unreliable
• Even if a statement does not satisfy the co-conspirator exemption, it may satisfy one of
the other opposing party exemptions

47
Out of Court statement is admissible against a party if it was:
1. Made by a co-conspirator (have to both be in a conspiracy)
a. "joint-ventures" (not criminal conspiracy; no need for overt act)
b. Identity prong (broad); just need to show some sort of concert of action
2. Statement made during course of the conspiracy (timing prong)
a. Once there is an arrest, usually end of conspiracy
b. Also, unilateral steps by one conspirator to cover up a crime do not signal an
ongoing conspiracy
• If no evidence that co-conspirators agreed to adopt any and all stratagems
to cover up a crime, nor any evidence that they had discussed a co-
conspirators specific plan with another, this shows no "adoption" and the
conspiracy ended
3. Statement has to be in furtherance of the conspiracy (action prong)
a. Confessing to the police is not in furtherance of the conspiracy
b. Statements to the police doesn’t meet timing prong or action prong
c. A statement may be admissible even if it does not successfully secure some
objective or otherwise advance the criminal enterprise
• The statement merely must bear some positive relationship to the
conspiracy's goals

• Always remember all other hearsay exceptions

LOOK AT WHO THE DECLARANT/SPEAKER IS

• In criminal cases, in proving a conspiracy existed, and the co-conspirator exception

should apply, the prosecutor may rely on the statement with other evidence
o CANNOT RELY JUST ON THE STATEMENT, need some corroboration
 Can also apply in civil cases, but rare
 Under FRE 104(a), the judge decides whether the factual conditions necessary to support
admission of a statement under FRE 801(d)(2)(E) exist
o Thus, a judge decides whether a conspiracy exists, whether the out of court
statement was made during the conspiracy, and whether the statement was in
furtherance of the conspiracy
 The proponent of the statement must prove these facts by a preponderance
of the evidence

FRE 803: Hearsay Exceptions Where Availability is Immaterial

1) Present Sense Impression

 The judge will decide under FRE 104(a) whether the facts exist to support this exception
o The judge determines whether the factual conditions for this (and excited
utterance) exceptions are met
 On Sevier Exam, could have something that is neither, one, the other, or both (know
these)

48
 o Not mutually exclusive, they can overlap

FRE 803. Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant is
Available as a Witness
The following are NOT excluded by the rule against hearsay, regardless of whether the declarant
is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition,
made while or immediately after the declarant perceived it
o The exception only applies to descriptions or explanations of events
 Any statement that allows for reflection is not excepted because it allows time for
deception
o Also, only a few seconds of leeway here (no time to create a lie)
o Does not require excitement

Present Sense Impression

 Classic example: sportscaster
o Description/explanation of an event or condition, but has to be an external
condition, made while perceiving the event or immediately thereafter
 Usually simultaneous or immediately after
 Ex: "touchdown!" this may not be a straight up report of something happening (so may
not be a present sense impression)
o Requires analysis? Courts are split on issues like this
 But how much analysis really goes into this word while reporting what
you are seeing?
 When there is ambiguity, look to see if there are plain reports, or if there is any analysis

2) Excited Utterance
FRE 803. Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant is
Available as a Witness
The following are NOT excluded by the rule against hearsay, regardless of whether the declarant
is available as a witness:
(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.
o Declarant must speak while excited by a startling event
 Subjective rather than objective standard: the particular declarant must have been
excited by the event
 The excitement must be great enough that the particular declarant would have had
difficulty formulating a lie while speaking
o The utterance must relate to the startling event
 Unrelated comments are not admissible under this exception, even if the declarant
makes them while still excited

Excited Utterance
 Much broader than present sense impression
 The statement has to be related to a startling event, and had to be made while under the
stress/excitement the event caused

49
 o May include some analysis
o This standard is subjective (rare)
o We look at mannerisms and tone, and timing between event and utterance
(characteristics about person)
 Look to "the constitution of the person" (type of job, nature of the event,
relationship to parties, psychological issues, etc.)
 Can blurt out statement after the event, even significantly after the event (different from
present sense impression)
o Preponderance of the evidence standard when presenting to judge
 (look for exclamation points, yawns, screeches, etc.)
 It is not enough that an event would have excited a reasonable person; the declarant must
have been subjectively excited while making the statement
o But it also varies with the individual
 No absolute bar against admitting written statements as excited utterances
o The judge will examine the facts that surround the writing, just as with oral
statements

With Regards to Twitter

 Can you analogize a tweet to a present sense impression or excited utterance?
o Maybe a present sense impression, but no answer to this yet
o You're typing, so thinking about what you are typing…

 911 calls: exception to out of court statements to 911 operators?

o Look to present sense impressions
o No qualms with timing requirement, but maybe with description/analysis
requirement
 Look subjectively, even though a situation may objectively look terrifying
(but if they don’t sound excited, you have to balance it)

 Tranquilizers: courts are split as to whether taking these precludes excited utterances
 Lineups require analysis, so probz no present sense impression
o If new excitement generated by photo lineup, some courts may let this in as an
excited utterance
 But the event that precipitated the excitement is supposed to be the only
thing?
 Can you be excited if you created the event? Probz not

3) State of Mind Exception

 The contemporaneous expression of an internal state is analogous to the immediate
reporting of an external event (internal monologue to present sense impression)
o To fall under this hearsay exception, the statement must be offered to prove that
the declarant acted in accordance with his stated intent
 Expression of a declarant's state of mind cannot suffer from a faulty memory (one of the
4 flaws that can diminish the reliability of a declarant's statement)

50
 o The declarant does not need to recall anything because he is expressing (voicing)
his immediate feelings
 Statement must refer to an internal state, not the external events that caused it
o Might have to parse statements apart
 A comment about something that happened to the declarant is not a report about a mental
state
o Ex: "I won the lottery!"
 But, "I have a plan to take a trip to Europe" is an example of a state of
mind report

Think of State of mind exception as an umbrella term:

1) Physical conditions ("I am hurt"
a. When a declarant’s physical condition at a particular time is in question, a
statement of the declarant’s mental feeling, pain, or bodily health made at that
time can be used to prove the existence of that condition, but not its cause
2) Sensory perceptions ("I am hungry”)
a. NOT: "because I only had salad for lunch" (not a state of mind; will be redacted)
3) Emotional perceptions ("I am sad")
a. NOT: "because Tim stole $20 from me"
4) Future plans ("I am planning to cut class")

FRE 803. Exceptions to the Rule Against Hearsay -- Regardless of Whether the Declarant
is Available as a Witness
The following are NOT excluded by the rule against hearsay, regardless of whether the declarant
is available as a witness:
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's
then-existing
o State of mind (such as motive, intent, or plan), or
o Emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health),
But not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the validity or terms of the declarant's (living) will

1a: Traditional Application of State of Mind Exception

 Ex: "I am scared, the fires have been raging for weeks"
 What can get in under state of mind exception?
o "I'm scared.": this can get in as state of mind exception
o "The fires have been raging for weeks"
 This cannot get in because not a state of mind (external reason for internal state)
and not a present sense impression because of the time period of the fires, and
not an excited utterance

1b: Statements of Belief

 If offering to use statement to show that a person had a belief, the state of mind exception
allows you to do this
 Ex: Declarant states "I believe the danger to our house is past"

51
 o Can a 3rd party report this out of court statement by the declarant?
o State of mind exception: depends on purpose for using it
 Can use it if trying to show that the person believed that the fires had past
 Cannot use it to show that the fires had actually past
 Can use to show belief, not that the underlying fact is true
o And belief has to be relevant (FRE 402)

Ex: "I remember that the fire reached our property on Tuesday"
 Looks like an internal state ("I remember")
o Can only bring this in under FRE 803(3) that he believed at the time he spoke

Don’t be fooled by buzzwords:

1. I believe
2. I remember
3. I think
 Cannot turn a declarative external statement into an internal state of mind
o Belief, memory, or thought itself has to be relevant
 These words are often inadmissible assertions masquerading as mental states:
o Ex: "I remember I had chicken for dinner last night"

State of Mind Exception (one exception 4 ways)

1. Statements of current (internal) mental states used as direct evidence that the mental state
occurred
o Ex: “I am hungry” to signify I am hungry right now
2. Direct statement of current mental state as circumstantial evidence of past states
o Ex: “my head hurts now” as circumstantial evidence that my head hurt yesterday
1. NOT: “my head hurt yesterday”
3. Direct statements of current mental states as circumstantial evidence of future thought or
future act
o Ex: “I plan to go to the mall” as circumstantial evidence that she did go to the
mall
4. External (non-"state of mind") statements used as circumstantial evidence of "state of
mind" (if at issue) (FRE 801(c))
o External events in your life to show you are not depressed or you are happy
o Suicidal lottery winner

Backward-Looking Statements
 Ex: On Tuesday, Ginger says "my head started hurting yesterday:"
o Can a friend in court report this out of court statement under state of mind exception?
o No, this is hearsay. Ginger is not saying my head hurts now, this is about yesterday.
 Ex: "My head hurts"
o Friend gets up in court and says Ginger told me on Tuesday "my head hurts" and this
is being used to show her head hurt on Monday
 Allowed in?

52
  Yes, under state of mind exception because this is not irrelevant (moves needle
slightly): tiny bit more likely that her head hurt yesterday so it could likely hurt
today

Forward-Looking Statements
 Ex: "I plan to pay off my loans by selling this cocaine"
o FRE 803(3) allows/covers circumstantial proof of conformity with future plans
o Can use to show intent (possession with intent to sell)
o And can use to prove conduct (the cocaine belonged to her)
 "If", conditional statements, are allowed in
o "if he finds out, I will have to disappear": this can be let in under FRE 803(3) even
though it is conditional (4 testimonial capacities are not more implicated by these
statements)

Hillmon Doctrine: Allows evidence of intention as tending to prove the doing of the act
intended for whoever involved
 However, many scholars believe the Hillmon doctrine is limited so as to render
statements of intent by a declarant admissible only to prove HIS future conduct, not the
future conduct of another person
o So, a declarant's expressed intention is admissible to prove the declarant's
subsequent acts"
o Ex: "I plan to go to Topeka with Mary"
 This is admissible to prove you planned on going to Topeka, but is NOT
admissible to prove that Mary did go to Topeka
 Many courts favor Hillmon's broad approach however
o FRE 803(3) may overrule it, but many courts allow parties to introduce state of
mind referring to future actions of another
o Irresistible appeal of a missing victim's parting words

4) Statements for Medical Treatment and Diagnosis Exception

SIDENOTE: Many 803 exceptions overlap, so make sure to look at all exceptions and include
all of them that apply in the answer

FRE 803. Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant is
Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
(4) Statement Made for Medical Diagnosis or Treatment. A statement that
(A) is made for - and is reasonably pertinent to - medical diagnosis or treatment; and
(B) describes:
1. Medical history
2. Past or present symptoms or sensations
3. Their inception, or their general cause

Requirements:

53
 1. The statement must be made for purpose of obtaining a medical diagnosis or treatment
o Subjective requirement (the patient must actually be seeking medical care)
2. The statements must be reasonably pertinent to the diagnosis or treatment
o Objective counterpart
o Broadly construed by courts
3. The statements must fit within one of the 3 categories listed by the rule:
o Accounts of medical history
o Descriptions of past or present symptoms or sensations
o Reports about the "inception" of the condition or its general cause
i. These are broad and most statements made while seeking medical diagnosis or
treatment fall within them
1. Most courts assume that FRE 803(4) encompasses all statements
made for purposes of obtaining medical treatment when the
symptoms are psychological
ii. These categories attempt to exclude statements that blame a particular person or
organization for causing the condition

Limits to FRE 803(4)

1) Very broad rule with respect to time and scope
a. No limitation on time (unlike present sense impression)
b. Can cover nearly everything; not just internal experience, but surrounding context
i. Sometimes other people can speak on your behalf, and those are
admissible too
1. Look at the relationship between the declarant and the patient
ii. Statements made to anyone, as long as the declarant made the statement
for the purpose of medical diagnosis/treatment
2) No blaming (unless necessary, in some courts: child and spousal abuse)
3) Purpose (pertinence of the statements you are giving to the medical professional: is it
objectively pertinent for the purpose of medical treatment?)
a. NOTE: a statement that falls within this hearsay exception may still be
inadmissible if it is protected by the physician-patient privilege

Ex: "My foot started hurting last week"

 No good under state of mind if using to show that the foot started hurting last week
 But under medical treatment: admissible if it pertains to the foot

• FRE 803(4) does not cover statements doctors make back to you
 FRE 803(4) allows parties to admit statements made to doctors who they consulted
purely to prepare for litigation
o A doctor's expert witness about a patient's condition is a type of diagnosis, even if
the doctor renders that opinion only for purposes of pending litigation
 A patient may even obtain this type of diagnosis after the condition has
been treated and cured by other doctors

5) (Past) Recorded Recollection

54
  FRE 803(5), unlike the other 803 exceptions, requires that the declarant actually be
available, because the rule applies only when the declarant testifies as a witness
 FRE 803(5): Easy to confuse with FRE 612 ((present) recollection refreshed)

FRE 803. Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant is
Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
(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

(Past) Recollection Recorded

 You are not testifying, the document is (present recollection refreshed is different; you are
testifying from refreshed personal knowledge)
 Even seeing the document wont refresh your recollection. Because you have no memory
o Hearsay problem because document is testifying: you are parrot/mouthpiece of
document on the stand, so we need to make sure we can trust this

6 requirements: after saying no document could ever refresh my recollection: memory forgotten
1. Record
2. Witness made or adopted that record
a. Ex: like signing a document
3. Witness once had personal knowledge
4. Witness made or adopted the record when that knowledge was fresh
5. Witness testifies (in court) that information was accurate
6. Witness has forgotten
• MEMORIZE THESE

 Must read it out loud, not put into evidence (jury would put too much weight on
document)
o But adverse party has right to put document into evidence

6) Hearsay Within Hearsay

• Bracket things (statements)

FRE 805. Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule

55
 • FRE 805 allows hearsay within hearsay to be admitted as long as each out of court
statement is admissible under an exception
o Each layer of hearsay must fit into its own hearsay exception
 If either of the layers fails to satisfy an exception, the entire statement is
inadmissible to prove the truth of the matter asserted by the original
declarant

ASK:
1) Do we have multiple statements?
2) Are the statements being used for the truth of the matter asserted?
i. If one is not, just cross it out because not hearsay
3) If you do, find an exception that fits them
i. Spoken statements: if no exception, statement is just inadmissible
ii. Written: may redact some stuff in documents

• Don’t forget: documents themselves count as layers!

• ALWAYS REMEMBER THAT OUT OF COURT STATEMENTS ARE ONLY
HEARSAY WHEN A PROPONENT OFFERS THEM FOR THE TRUTH OF THE
MATTER ASSERTED
o A statement offered for some other purpose is not
• One out of court statement may include another statement that is offered to prove
something other than the truth of its contents
o The embedded statement then is not hearsay
• With multiple hearsay, the courtroom witness usually lacks information about early
declarants in the communication chain. Without such information, it can be challenging
to establish the foundation needed to admit those initial statements

7) Business Records Exception

FRE 803(6)
FRE 803. Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant is
Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(a) the record was made at or near the time by - or from information transmitted by -
someone with knowledge
(b) the record was kept in the course of a regularly conducted activity of a business
organization, occupation, or calling whether or not for profit
(c) making the record was a regular practice of that activity
(d) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with FRE 902(11) or (12) or with
a statute permitting certification, and
(e) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness
i. Opponent has to raise the issue

56
Can satisfy this exception in 4 steps:
1. Need a "business" and some records
o "Business" is broadly defined (Businesses have a strong self-interest in keeping
accurate records)
o Ex: self-employed entrepreneur
 Also used with RICO actions (people acting in concert)
o BUT, someone who just keeps meticulous records (like personal accounting) does not
count under this exception
o Medical records are considered business records to the extent that the entries relate to
diagnosis or treatment (but still no blaming allowed)

2. Need a qualified witness or certification to lay foundation

o Ex: custodian; often times someone from organization, but doesn’t even have to be
from the organization
o The person who lays the foundation does not have to be the person who made the
record, nor does the witness even need to know exactly who made the record, as long
as the witness knows the organization's record-keeping practices
 FRE 803(6) may be satisfied by the testimony of anyone who is familiar
with the manner in which the document was prepared, even if he lacks
firsthand knowledge of the matter reported, and even if he did not himself
either prepare the record or even observe its preparation

3. ****Lay this foundation:

o Record made by a person with knowledge of content (doesn’t have to be person on
stand)
o At or near the time the event happened (reliability: memory is good)
o In the course of a regularly conducted business activity
 Be the type of document an organization would regularly record
o It was the business's regular practice to make record
 Organization has to actually do it

4. Finally, you (proponent) rebut any showing that circumstances indicate lack of
trustworthiness
o Documents created in anticipation of litigation are often times questionable
o The party offering the records must establish other elements of the exception, but the
court will assume records are trustworthy unless the opponent argues otherwise
o Palmer v. Hoffman: if the document is not for “the systematic conduct of the
enterprise as a [railroad] business, like payrolls, accounts receivable, accounts
payable, bills of lading and the like,” the document probz won’t be admissible

• Exception applies to ANY record

o FRE 101(b)(4) defines record expansively to include any memorandum, report, or
data compilation
o Data in record may contain information about an event, act, condition, opinion, or
diagnosis

57
 o Very broad. The information does not have to be a fact; it could be a conclusion,
analysis, or opinion
• Don’t think only "for-profit" businesses fall into this exception; non-profits count too
• A "one-off", like a letter or rant, is not a business record (even if written by like the head
of an organization)
• If you have an outsider not a part of the organization speaking to the event or what not,
usually double hearsay and will be inadmissible
• FRE 803(6) encompasses only information transmitted from one organizational insider to
another
o The "transmitted by" language does not include customers or other third parties
who provide information to an organization
 These do not fall into the exception even if the organization collects the
information as part of a regularly conducted business activity
• If the info originated from a member of the organization, and if it traveled a route
composed exclusively of organizational insiders, then the info falls within FRE 803(6)
• Information originating from outsiders do not fall within FRE 803(6)
o To admit this info for the truth of the matter asserted, a separate hearsay exception
must support its admission

2 regularity requirements:
1. That the record was kept in the course of a regularly conducted activity
a. This ensures that the organization relies on the document as part of its regular
business (special indicia of reliability)
2. That making the record was a regular practice of that activity, meaning that the
organization must make this type of record on a regular basis (enhances reliability)

8) Public Records Exception

FRE 803(8)
 Creates a hearsay exception for:
1. Activities of a public office (A)(i)
2. Observations pursuant to a duty as a public official (A)(ii)
 Except for an observation of a law enforcement officer offered in a
criminal case
3. Results (factual findings, opinions, evaluations, and conclusions) of public
investigators (A)(iii) in civil actions and against the gov. in criminal cases, unless the
info or its sources indicate a lack of trustworthiness

Top ten points:

1. Make sure you have a public record (public organization)
o Ex: a document from democratic national committee: not public
o Private/non-profits are not public
o Statements to the police are not public record, and neither are statements you
make in public to like TV stations
i. But most documents from law enforcement won’t fit this exception (even
though they are public organizations; worry about bias)

58
 2. If you do have a public record, it must satisfy FRE 803(8), not just 803(6) (business and
public records exception)
3. Records of the office's activities generally are admissible
o Ex: roll call
4. Observations pursuant to a duty are generally admissible
o Ex: observations by national weather service
5. Except, matters observed by law enforcement personnel are not admissible against criminal
D's (questions of trustworthiness)
6. Unless, the observation was ministerial (like observing/recording license plates)
7. Results of an investigation by any public office are not admissible against a crim. D
o Ex: full blown investigative report of. Crim. D (not neutral, so can’t trust reliability)
8. "Factual findings" in those reports, provided that are admissible, resulting from an
investigation including opinions and conclusions
9. Records are not admissible if they lack trustworthiness (same idea as business records
exception)
10. Statement by 3rd parties require a separate hearsay exception
o i.e. watch out for hearsay within hearsay (outsider speaking on a document, need a
hearsay exception for that outsider)
• Certain types of public records may be admissible as an exception to the rule against
hearsay: records or statements of an office’s activities; records or statements by public
officials under a legal duty to report the matter; and factual findings from legally
authorized investigations, if offered in a civil case or against the government in a criminal
case.

Written Statements/Lab Reports

Melendez-Diaz Case: court held that affidavits (lab tech's reports showing what a substance is)
are hearsay and "testimonial statements"
• And also, you cannot bring in another tech to discuss test; need person who actually did
the test (Bullcoming case)
Williams Case: A report is testimonial if it:
1. Plurality: has the "primary purpose of accusing a targeted individual of engaging in
criminal conduct" (not admissible)
2. Thomas: an out of court statement is testimonial is it is "formalized" (sworn to)
3. Scalia: "establishes some fact in a criminal proceeding and an objective witness would
reasonably believe that it would be available for use at a later trial"
a. This looks a lot like the definition we use now (Crawford)

Formal and accusatory: testimonial (needs cross)

Formal not accusatory: probably testimonial
Accusatory but not formal: probably testimonial
Neither: not testimonial
OVERALL:
"Witness in the courtroom" exceptions
1. Prior Inconsistent Statement
2. Prior Consistent Statement
3. Identification

59
 4. (Past) Recorded Recollection

"Immediacy" Exceptions (temporal requirement)

1. Present Sense Impression
2. Excited Utterance
3. State of Mind

"Self-Interest" Exceptions
1. Medical Diagnosis/Treatment
2. Business Records
3. Public Records

Miscellaneous Exceptions
1. Absence of Records (public or business record)
a. Lay foundation the same way you do for the presence of business or public record
2. Ancient Documents
a. Document that has to have existed for 20 years or more (authenticity established
because they have been around for so long)
i. Watch for hearsay within hearsay (to the extent that emails count in this)
3. Market reports and Similar Commercial Publications
a. Data compilations, fantasy football stats, etc. (like a phone book)
ii. Really no commentary on these
4. Learned Treatises
a. Comes in as substantive evidence
b. As long as it is excepted as a reliable authority (if proffering it, you have to prove it)
c. Two peculiarities:
i. Must come in through an expert testifying
ii. Read excerpts into record, cannot dump documents onto jury
1. A book may be admissible under this exception, and considered for
TOMA, so long as it is well-respected, and only read into
evidence, not admitted into evidence

xi. Unavailability Exceptions

• Have to show that the declarant is unavailable at the outset
o Not unavailability of you, but unavailability of your words
• Rationale: Heightened need: declarant unavailable

FRE 804(a)
Unavailability Exceptions
1. Privilege (you are there on the stand, but taking 5th amendment)
2. Refusal to testify (potentially under penalty of contempt of court)
3. Lack of memory (real or feigned)
4. Death or illness
5. Absence from jurisdiction

60
FRE 804. Exceptions to the Rule Against Hearsay - When the Declarant is Unavailable as a
Witness
(a) Criteria for Being Unavailable. A declarant is considered unavailable as a witness if the
declarant:
(1) is exempted from testifying about the subject matter of the declarant's statement
because the court rules that a privilege applies
(2) refuses to testify about the subject matter despite a court order to do so
(3) testifies to not remembering the subject matter
(4) cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness; or
(5) 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 FRE
804(b)(1) or (6); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception,
under FRE 804(b)(2), (3), or (4)
But this subdivision (a) does not apply if the statement's proponent procured or wrongfully
caused the declarant's unavailability as a witness in order to prevent the declarant from attending
or testifying

Privilege
• Furthers social interest, like the need to assure effective attorney-client relationships
o The privilege shields the witness's testimony, so FRE 804(a)(1) declares the
witness unavailable
 Can lay foundation before or during trial
 Get person on stand an elicit testimony on the stand that makes it clear they are asserting
privilege

Refusal to Testify
• Some witnesses refuse even despite a court order to do so
o I all of a sudden do not remember"
o "I assert a non-existent privilege" (refusal to testify)
• "journalist-source" privilege, protecting a family member, fear of retaliation
o Under any of these, a judge may hold the witness in contempt and impose a
penalty for their refusal to testify
• But the party who called the uncooperative witness should not suffer unfairly due to the
witness's failure to testify
o Thus FRE 804(a)(2) deems witnesses who refuse to testify despite a court order
unavailable for the purposes of the rule

Lack of Memory (real or feigned)

 A witness who claims that he lacks memory about the subject matter of a previous
statement is unavailable under FRE 804(a)(3). The court need not find that the witness has
actually lost his memory
o Whether the memory loss is real or feigned, the witness is unavailable to testify about
the desired subject matter

61
 o "the crucial factor is not the unavailability of the witness, but the unavailability of his
testimony"
 Lack of memory of the details is not sufficient to show unavailability

Death or Illness
• The physical or mental illness must be sufficiently disabling that (a) the declarant cannot
come to the court to testify, and (b) there is little likelihood of recovery within a
reasonable time
o Death certificate or doctors note

Absence from Jurisdiction

 A declarant is unavailable under FRE 804(a)(5) if a party shows that she tried to find the
declarant and bring him to the hearing, but was unable to do so
o Most commonly arises when:
A. The party cannot find the declarant after making a diligent search, or
B. The declarant refuses to come to court and is currently outside the court's
jurisdiction (here, court lacks power to subpoena absent declarant)
1. This is not sufficient by itself to make a declarant unavailable. FRE 804(a)
(5) imposes two additional obligations on a party attempting to introduce
the declarant's statements
a. The party must use any "reasonable means" in addition to serving a
subpoena (ex: pay declarant's travel expenses as incentive)
b. The proponent must use reasonable means to take the declarant's
deposition if the declarant will not attend the trial (FRE 804(a)(5)
(B): deposition preference)
• Can lay foundation by: Subpoena's, plane tickets, residence outside of jurisdiction, and
even trying to set up a deposition

Former Testimony (FRE 804(b)(1))

• With any FRE 804 exception, the attorney must show at the outset that the declarant is
unavailable
o You could have one, the other, neither, or both
o Memory plays into both of these, but different roles

FRE 804. Exceptions to the Rule Against Hearsay - When the Declarant is Unavailable as a
Witness
(b) The Exceptions. The following are NOT excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(1) Former Testimony. Testimony that:
(a) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
(b) is now offered against a party who had - or in a civil case, whose predecessor in
interest had - an opportunity and similar motive to develop it by direct, cross, or
redirect examination

FRE 804(b)(1): Former Testimony

62
Very hard to meet the requirements
1. Declarant is unavailable (threshold issue)
2. Prior statement is given at a trial, hearing, or deposition (can be, but does not have to be
same trial/hearing/deposition)
3. Opponent (predecessor) had opportunity to develop (doesn’t have to be at cross, but
usually that is where it ends up) testimony (opportunity to question the declarant in the
prior trial or other proceeding)
i. Predecessor: Courts look to the similarity of issues between the prior case
and the current one and the purpose for which the prior testimony was
given
o In a criminal case, the party with the opportunity to question the declarant in the
prior hearing must have been the same party as the opposing party in the current
case
4. Opponent had similar motive to develop testimony (similar motive in questioning during
cross)
o Motive and opportunity tend to go hand in hand
i. If the stakes in the previous proceeding were different than in the current
one, the opposing party might not have cross-examined the witness in the
same manner that the party would employ at the current hearing
o Similar Motives: "type of proceeding in which the testimony was given?”
different trial strategies (mode of attack with respect to cross or development of
testimony?; Potential penalties/financial stakes; number of issues/parties?

TAKE YOUR TIME WITH MEMORY LOSS

Former Testimony v. Prior Statements Exception

FRE 801(d)(1)(A) (P.S.) (cross examining now)
1. Declarant on stand, subject to cross
2. Prior I.S., made under penalty of perjury, in a proceeding

FRE 804(b)(1) (F.T.) (cross-examine back then, or had opportunity to)

1. Declarant unavailable
2. Prior testimony, made in a proceeding (oath), with opportunity and motive to develop

 Think about when cross-examination is happening

FRE 804(b)(1) and FRE 801(d)(1)(A)

 FRE 801(d)(1)(A): exemption for a witness's prior inconsistent statement

Prior Inconsistent Former Testimony under FRE

Statements by Witness 804(b)(1)
under FRE 801(d)(1)(A)

Declarant Must testify at current Must be unavailable

hearing or trial, and must be
subject to cross concerning
the statement

63
Content of Inconsistent with current Any content
Statement testimony

Context or Must have been given under Must have been given as a
Prior penalty of perjury, and made witness, which implies that it
Statement at any prior trial, hearing, or was under penalty of perjury,
other proceeding, or and must have been made
deposition during a trial, hearing or
deposition at which the current
opponent (or in a civil case, a
predecessor in interest) had an
opportunity and similar motive
to develop the testimony

Dying Declarations
FRE 804. Exceptions to the Rule Against Hearsay - When the Declarant is Unavailable as a
Witness
(b) The Exceptions. The following are NOT excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a
civil case, a statement that the declarant, while believing the declarant's death to be
imminent, made about its cause or circumstances

• Applies only if the declarant is unavailable (as with all FRE 804 exceptions)
• The limit to civil and homicide cases recognizes the criminal D's constitutional right to
confront witnesses, as well as policy concerns with convicting defendant's based on
secondhand statements (excludes regular criminal cases, like assault)
• Subjective belief of imminent death (inevitable and swiftly)
• The content of the statement must concern the cause of circumstances of the declarant's
death
• Many dying declarations are also admissible under excited utterances, state of mind, and
statements to obtain medical treatment, and forfeiture
o So think about everything when you see statements just before someone dies

Statements Against Interest

 "Why in the world would you say that [if it weren't true] exception"?
 Not any statement, but only specific types

FRE 804. Exceptions to the Rule Against Hearsay - When the Declarant is Unavailable as a
Witness
(b) The Exceptions. The following are NOT excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the
person believed it to be true because, when made, it
 Was so contrary to the declarant's proprietary or pecuniary interest, or

64
  Had so great a tendency to invalidate the declarant's claim against someone else,
or
 To expose the declarant to civil or criminal liability, and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability

Test:
1. Declarant unavailable (FRE 804: threshold showing)
2. Statement was against interest
3. The statement must be against the declarant's interest when made
4. Need corroboration for statements against penal interest when offered in a criminal case
i. To prevent abuse by either the prosecutor or the defendant, in criminal cases, FRE
804(b)(3) requires corroboration in criminal trials for statements offered under
that section
ii. The party offering the statement must point to corroborating circumstances that
demonstrate the trustworthiness of the 3rd party's alleged confession
iii. Judge decides whether corroboration suffices (weighs totality of circumstances)
1. Wide range of factors
iv. Even when factors are basically satisfied, the courts are reluctant to admit these
statements (presumption that these people are full of it; need more than just a
preponderance)

No reasonable person would have made the statement unless it were true because… (Court
applies objective standard) (personal circumstances taken into account, but not personal
idiosyncrasies)
1. Harms a pecuniary or proprietary interest (monetary) (has to be your own interest, not
anyone else's, like your family's)
2. Creates civil or criminal liability for you if said (penal interest)
3. Renders a claim invalid (legal claim against someone, and you say something that
damages your legal claim against them)
i. HAS TO BE ONE OF THESE 3 THINGS
i. Bodily integrity is not one

What a reasonable person would do:

 Seek immunity and then talk (this is reasonable)
 Minimize guilt by mentioning others (shifting blame to others)
o Not the same as simply mentioning others
 Because a reasonable person would do/say these things, they do not fit into the exception

EXAMPLE:
Classic Case: Informer
 Hardin arrested for stealing
 Hardin cut a deal
 Hardin agrees to wear a wire and talks with a guy named Stone
 Stone describes crimes committed with Johnson (3rd person not there or talking) (arson)

65
  Prosecutor goes after Stone and Johnson on the basis of these statements when Johnson
wasn’t even around
 Stone is the declarant: he made the out of court statements
o Stone, at trial, invokes a privilege of self-incrimination
 So, can these statements come in?
o In Stone's trial, yes
o With respect to Johnson, yes, even though he wasn’t there, the statement was against
Stone's interest, and it inculpated Johnson, and so too bad for Johnson (doesn’t violate
Confrontation Clause)

 FRE 804(b)(3) does not directly recognize these other types of interests (like physical
retaliation or family standing); it admits only statements against pecuniary or proprietary
interests, those that subject the speaker to civil or criminal liability, and those that
extinguish a legal claim held by the speaker
 If a criminal suspect gives police long narratives that include a mixture of incriminating
statements, neutral statements, and exculpating statements, the courts must parse these
out, admitting only the portions of the narrative that were against the declarant's interest

6 Factors in determining whether a statement is sufficiently trustworthy under FRE 804(b)(3):

1. Whether the declarant had pled guilty before making the statement or was still exposed to
prosecution (how far against the declarant's interest the statement was at the time)
2. The declarant's motive in making the statement and whether there was a reason for the
declarant to lie
3. Whether the declarant repeated the statement and did so consistently
4. The party/parties to whom the statement was made
5. The relationship of the declarant with the accused
6. The nature and strength of independent evidence relevant to the conduct in question

 The judge determines trustworthiness under FRE 104(a), so a party who offers an
exculpatory statement under FRE 804(b)(3) bears the burden of proving trustworthiness to
the judge by a preponderance of the evidence

Forfeiture
• If a party uses physical threats or other wrongful behavior to prevent a witness from
testifying, the least we can do is admit the witness's hearsay statements against that party
 This exception aims to prevent wrongdoers from profiting from their misconduct
 Forfeiture waives a D’s Confrontation clause rights

FRE 804. Exceptions to the Rule Against Hearsay - When the Declarant is Unavailable as a
Witness
(b) The Exceptions. The following are NOT excluded by the rule against hearsay if the declarant
is unavailable as a witness:
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's
Unavailability. A statement offered against a party that wrongfully caused - or acquiesced
in wrongfully causing - the declarant's unavailability as a witness, and did so intending that
result.

66
Forfeiture rests on 4 requirements:
1. Declarant HAS to be unavailable
2. The opposing party must have "wrongfully" caused or acquiesced in the witness's
unavailability (need something that looks like a threat, or plain murder)
A. This exception does not apply to parties who use legitimate means, such as offering
information about a privilege, to dissuade a witness from testifying
B. Persuasion and “begging” are not wrongdoing
1. Classic wrong example: domestic violence case; person persuading not to
testify someone they hurt (telling them or giving them options is not
enough)
C. Courts construe acquiescence once wrongdoing and intent are present very
broadly (context of conspiracy)
1. If one member coerces/kills a potential witness, under this exception, that
intent is imputed to everyone in conspiracy
2. Even if separate trials
3. The opposing party must have intended to make the declarant unavailable
A. If a party did not INTEND to prevent a witness from testifying, there is no reason to
invoke the exception (a declarant's unavailability as an unintended consequence of the
party's wrongdoing does not count)
a. Does not have to be the ONLY motive; if the opposing party was motivated in part by
a desire to silence the witness, the forfeiture exception applies Must intend the
consequence of declarant becoming unavailable
b. Cannot be just a natural consequence of a crime
i. The rules would allow everything to come in by that witness pursuant to this
exception, so this specific intent is required (this exception would swallow
hearsay rule)
B. Don’t be fooled by causation problem (have to cause wrongdoing; guilty mind is
not enough)

Carryover Doctrine and Potential Witnesses Doctrine

• Carryover: to the extent I try to bump him off so he won’t testify in a criminal case, we
can use his statements in a civil case (on the same facts) (like RICO)
• Potential Witnesses: killed a declarant before charges are brought, still susceptible to
forfeiture exception (reasonably assumed they were killed before charges to make
testimony unavailable)

• The wrongdoing does not have to be a criminal act, but it has to be improper in some way
o "coercion, undue influence, or pressure to silence testimony and impede the truth
finding function of trials"
o Merely persuading a witness to claim a privilege or forego testifying, does not fall
within FRE 804(b)(6)
 Persuasion with a gun? Iffy (have to convince a judge; looks like an
implied threat)
 Procedural question: standard by which you have to prove to judge?

67
  Preponderance of the evidence; more likely than not (lower
threshold, even though it’s a criminal case)

Brief Overview:
FRE 801 "Exemptions"
 Prior statements, opposing parties, co-conspirators
FRE 803 "Reliability" exceptions
 Present sense impression, excite utterance, state of mind, medical, business/public records,
etc.
FRE 804 "Necessity" exceptions (unavailable declarants)
 Former testimony, dying declarations, statements against interest, forfeiture

FRE 807: Residual Exception

• Almost always lose with this exception

FRE 807. Residual Exception

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not specifically covered by a hearsay exception in
FRE 803 or FRE 804
a. The statement must not be specifically covered by a hearsay exception in FRE 803 or 804
(1) the statement has equivalent circumstantial guarantees of trustworthiness
a. A statement admitted under FRE 807 must have "circumstantial guarantees of
trustworthiness" that are "equivalent" to those found in the enumerated exceptions of FRE
803 and 804
b. The trial judge decides whether a statement meets the trustworthiness requirement
(2) it is offered as evidence of a material fact
a. Redundant: Duplicates FRE 402's relevance requirement
(3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
a. The proffered hearsay must be "more probative" of the information it conveys "than any
other evidence that the proponent can obtain through reasonable efforts"
(4) admitting it will best serve the purposes of these rules and the interests of justice
a. Means little in practice; it only reiterates FRE 102's fairness requirement

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to offer the statement and its particulars, including
the declarant's name and address, so that the party has a fair opportunity to meet it
a. The opposing party must give "reasonable notice" so that the opposing party may prepare a
response

3 key requirements:
1. The judge must determine that the proffered statement has sufficient guarantees of
trustworthiness
2. The statement must be the most effective way to prove a fact in consequence, despite
reasonable efforts to find otherwise admissible evidence, and
3. The proponent of the evidence must give notice of her intent to use the statement at trial

68
The "Near Miss" Doctrine
 Majority View: "near-misses" qualify as exceptions under this exception.
 FRE 807 can "rescue" the near-miss
 Minority View: the "near-miss" is covered by the existing hearsay exceptions. So to use
FRE 807, the statement has to be totally different in kind than the exceptions enunciated in
FRE 801, 803, and 804

Trustworthiness
 Factors courts consider in determining trustworthiness:
1. Whether the statement was made under oath
2. Whether the declarant had first-hand knowledge of facts in the statement
3. Whether the declarant ever recanted the statement
4. Whether other evidence corroborates the statement
5. Whether that corroborating evidence is subject to cross
6. Whether the evidence undermines or contradicts the statement
7. Whether the declarant had any incentive to lie when making the statement

xii. The Sixth Amendment and the Confrontation Clause

• ALWAYS CHECK AFTER A [CRIMINAL] HEARSAY EXCEPTION IS
FOUND

6th amendment:
1. In all criminal prosecutions
a. Applies ONLY to criminal cases, not civil
2. The accused shall enjoy the right
a. It protects statements used against the accused, not the against the prosecutor (if D
using statement against gov. that is okay, no confrontational problem)
3. To be confronted
a. "confronted" means ability to cross-examine
1. except forfeiture and dying declarations
4. With the witnesses against him
a. A witness is a person that gives "testimonial" evidence
b. A statement is testimonial if the “primary purpose” of the conversation was to create
an out-of-court substitute for trial testimony

Ohio v. Roberts (1980)

The "Old" Approach
• The confrontation clause poses no issues for hearsay exceptions in criminal cases (not in
tension)
• If the out of court statement has "indicia of reliability" (think about residual exception) or
falls within a "firmly rooted hearsay exception," confrontation is not necessary
Crawford v. Washington (2004)
The "New" Approach

69
 • "Confrontation" means cross-examination, and "indicia of reliability: do not adequately
substitute (hard line; need cross-examination- no substitutes for it)
• But if we take this to its logical conclusion, all hearsay exceptions would be rendered
unconstitutional (where person is not live testifying in court)
• "Out of court statements that are "testimonial" in nature require cross-examination or they
must be excluded"

5 Principles in New Era of Hearsay:

1. All evidence must still satisfy the FRE
a. Exam: even if you think the FRE are dispositive for exclusion, say "if I'm wrong, here
is the analysis"
b. FRE don’t admit all evidence the confrontation would allow
2. 6th amendment applies ONLY to evidence offered against the accused
3. If a statement is non-testimonial, it satisfies the 6th amendment
4. If a statement is testimonial, the accused MUST have a CHANCE (opportunity) to cross-
examine the declarant
a. Similar to former testimony exception
5. If the accused cannot examine the out of court declarant at trial, the prosecutor must then
establish
a. Unavailability, and
b. A prior opportunity to examine witness if D cannot do it here

Key points for Confrontation Clause

1. Be in the correct context
a. Criminal
2. ALWAYS do FRE analysis first (like hearsay)
a. Is it being offered for truth of the matter asserted? If yes,
b. Does an exception apply?
3. Do the confrontation clause analysis?
a. Is it a testimonial statement? If not, don’t have to worry about clause
b. If it is, is the declarant unavailable and is there an opportunity to cross-examine with
similar motive?

6 factors in applying "primary purpose" test:

1. Whether the interrogator was a law enforcement official.
2. The presence or absence of an “ongoing emergency
3. The “informality of the situation
4. Whether similar evidence was regularly admitted “at the time of the founding
5. The age of the declarant
6. Absence of other indications that “the primary purpose of the conversation was to gather
evidence for . . . prosecution

What is Testimonial ("Primary Purpose" test) (Crawford Case)

1. Look for statements given at a formal proceeding or some kind of solemnity
a. Statements at depositions always testimony and prelim hearings

70
 2. Looks for statements to the government (custodial interrogations; particularly if there is no
danger and they're referring to the past), instead of private parties; but be careful
a. Private actors talking to other private actors are not generally testimonial statements
b. Need intent/knowledge of what you're saying might or will end up in court
i. This is not absolute, but rare
1. Like talking to law enforcement, but what is primary purpose? To give
statements for court, or to get help?
3. Statement is testimonial if made to prove a fact related to a crime, rather than seeking help
a. Bryant case: key grey area for what constitutes a testimonial statement (guy shot and
is dying, but looks like trying to get help, but also being asked what looked to be
testimonial statements from officers) (court held non-testimonial)

• Need an expectation that statement would be used in court later

o Statements made to the police will be considered non-testimonial, if they are
made for the primary purpose of aiding police response to an emergency
• Is it a statement that a declarant would reasonably expect to be used prosecutorially?
o If the statement is iffy, use primary purpose test
• Former testimony hearsay exception overlaps perfectly with confrontation clause (THIS
IS GREAT)
o Both concerned with the same thing
• Dying declarations may not pose 6th amendment concerns (founding fathers didn’t want
them to be barred)

Hearsay Exceptions that NEVER Raise 6th Amendment Issue: (all must be on stand subject to
cross)
a. FRE 801(d)(1): Declarant/Witness’s Prior Statement
b. FRE 801(d)(2): An Opposing Party’s Statement
c. FRE 803(5): (Past) Recollection Recorded
d. FRE 803(6): Business Records
e. FRE 803(10): Absence of a Public Record
f. FRE 804(b)(1): Former Testimony
g. FRE 804(b)(2): Dying Declaration
h. FRE 804(b)(6): Forfeiture

Hearsay Exceptions that MIGHT raise 6th Amendment Issues:

1) FRE 803(4): Medical Diagnosis/Treatment (litigation motives)
2) FRE 803(7): Absence of a Business Record
3) FRE 803(17): Market Reports and Similar Commercial Publications
4) FRE 803(18): Learned Treatises

Hearsay Exceptions that raise SIGNIFICANT 6th Amendment Issues: (Because they’re
testimonial in nature)
1) FRE 803(1) and (2): Present Sense Impression and Excited Utterances
2) FRE 803(3): State of Mind
3) FRE 803(8): Public Records
4) FRE 803(16): Ancient Document

71
 5) FRE 804(b)(3): Statement Against Interest
6) FRE 807: Residual Exception

xiii. Article VII: Lay Opinion and Expert Opinion

FRE 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness's perception (personal knowledge)
(b) helpful to clearly understanding the witness's testimony or to determining a fact in
issue (can’t parrot legal conclusions), and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
FRE 702.

3 requirements:
1. Opinion must be rationally based on the witness's perception/personal knowledge
o Resembles personal knowledge condition of FRE 602.
o When offering a lay opinion, a trial lawyer must establish that the witness has
personal knowledge of both the opinion and the fact it draws upon
o Opinion be one that a reasonable person could reach
o Judges use this prong most to exclude law opinions that are speculative or that rest
upon hearsay
2. Opinion must help the factfinder
o Opinions often help a lay witness convey his factual impression
 Allowing law witnesses to describe individuals as "happy, sad, angry, or drunk,
etc."
o Lay opinions can give additional information to help the jurors inability to view the
underlying facts and form their own opinions
o This is a test, not a bright line rule, and can move depending on inclinations of judge
you are in front of
 Self-serving statements don’t matter; leave those to the jury to decide
3. Opinion must be non-technical
o This is here to prevent parties from proffering experts in a lay witness's clothing
o Mainly focus on opinions based on everyday observations and experiences, such as
the slipperiness of a sidewalk or the color of a getaway car
o Judges allow lay witnesses to give opinions based upon their distinctive experiences,
as long as those events don’t reflect specialized training
 The rule only excludes "know-how" gained through specialized training,
education, or professional experience

• You can have a witness be a lay witness (701) and an expert witness (702) in the same
testimony
o Flexibility for witnesses to move
• But a lay witness is generally not permitted to testify as to his opinion, unless it meets the
3 requirements above

72
FRE 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
1. Expert must base their opinion on reliable principles and methods
a. Approach must make sense as a general matter; be reliable
2. Technique has to be reliably applied
a. Is the expert qualified to use technique properly?
3. The evidence has to "fit" the facts
a. Helpful to the fact-finder; outside the scope of what the jury is going to know on its
own, but cannot just be anything. Must be tailored to specific facts in dispute in the
case
b. Unsupported speculations and conclusions do not meet the reliability requirements of
Daubert
4. Expert must be qualified
a. The expert must also possess a reasonable degree of certainty in her opinion,
which may be expressed using language such as “probably”
5. Even if you satisfy 1-4, FRE 403 may still apply

FRE 702 principles:

1. The court must find the witness qualifies as an expert before he/she may offer an opinion
on technical or scientific matters
2. If the judge rules that a witness's testimony invokes scientific, technical, or other
specialized knowledge, then the requirements of FRE 702 apply
3. Expert testimony must "help" the trier of fact
a. Ex: testimony that asbestos causes lung disease won’t help the fact finder if the
plaintiff cannot prove that she was exposed to asbestos
i. Fit" is stricter than mere relevance

Prong 1: Reliable Principles/Methods

Frye v. United States (District of Colombia) (1921) (Dealt with a crude lie detector test dealing
with blood pressure)
• Is the expert’s testimony "sufficiently established to have gained general acceptance in
the particular field in which it belongs"?
o “General acceptance” standard
o Scientists and other experts set the bounds of reliability in their fields
 Problem of changing community standards and problem of entrenchment
(problem with junk science; asking people in the field whether their field
is legit. Often times will get a yes even though it should be no)
• The judge only has rudimentary control over this; looks to outside help to show that the
field considers technique legitimate
o If you cannot do that, it is excluded

Daubert v. Merrell Dow Pharmaceuticals (1993)

• Gate-keeping role shifted to judges

73
 o Before allowing an expert to testify, the judge must determine that both the field
of expertise and the expert's application of that knowledge are reliable
• The principles underlying an expert's testimony do not have to satisfy ALL of the factors
listed in Daubert
• Even if you satisfy all requirements, FRE 403 may still apply

Daubert Factors: (flexible guidelines, not a rigid test)

1) Whether the theory or technique has been tested
i. Imagining a model of science and you have hypothesis and try to falsify it
ii. Some courts say not only can you test it, but did you
2) Whether it has been subject to peer review and publication
i. Double-bind evaluation by people who work in the same field/level as you
3) The technique's error rate (if we can, then what is it?)
i. Like 2-pronged
4) The existence of standards controlling the techniques application
5) Whether the theory or technique has been generally accepted in the relevant
scientific community
i. Incorporates Fyre standard
ii. So Daubert did not overturn Fyre, just expanded upon it (but narrowed it)

• Person proffering evidence bears burden of satisfying the 5 factors

• Some lower courts use factor that "if there was testing done, was it done in anticipation of
litigation"? Courts look at this more skeptically
• These factors are not exhaustive; judges may consider any factor useful in determining
"the scientific validity, and thus the evidentiary relevance and reliability, of the principles
that underlie" proposed expert testimony
• Does Daubert apply to other fields of expertise?
 Yes, Kumho Tire Co. v. Carmichael, but courts are skeptical. Court said
Daubert applies to all types of experts, not just social scientists and physical
scientists that have experiments to falsify hypotheses

Prong 2: Principles Reliably Applied

• Look to see if witness followed a technique generally accepted and appropriate under
Daubert standard
• Did the witness apply it in the proper context?
• Has the proposed expert ruled out any other explanations for their result, if appropriate?

Prong 3: “Fit” Requirement

• Does testimony "fit" the dispute/facts?
• Does it add a perspective that the jurors couldn’t provide on their own?
o If expert regurgitating what jury already knows, this is not "fit"
o Usually the testimony will be about a central matter of the case
• Does the testimony make sense?

Ex of helpful: FBI agents testifying to code words

 This would add a perspective that jurors would not have on their own

74
 o "Only the boss can order an execution"
 Assuming it fits the facts, it helps the jury
o Giving the meaning of "consigliere" in a crime family

Ex of Not helpful:
 Family driving in Maine collide with a deer, and sued Subaru for negligence (should have
made car more crashworthy)
 P's offer an expert to say that collisions between cars and animals are not foreseeable
o Sun sets in the west
 Jury can think that in a rural area this could be foreseeable….
 So why did P put on this expert?
o "coming from an expert's mouth"
Split in the Court with Helpfulness: "Social framework evidence"

Prong 4: Qualifications (FRE 702)

3 stages for qualifying as an expert:

1. The attorney who called the expert lays a foundation for the witness's expertise by asking
questions about the witness's credentials and qualifications
a. Attorney may use leading questions (even though its usually during direct)
b. After asking questions laying the foundation, the attorney will ask the judge to move
to qualify the witness as an expert in the specific field
2. After laying foundation, most judges allow "voir dire" from the opposing counsel for them
to have a chance to ask the witness questions in order to "test" his credentials
a. Very hard to persuade judge witness is unqualified
b. Once Daubert's reliability, fit, and FRE 403 requirements have been met, the judge
will certify almost any witness with specialized training or experience in the field
c. After voir dire, opposing counsel decides whether to object to the witness's
certification as an expert
3. The judge rules on the motion to certify the witness
a. Usually the judge certifies the witness
b. Parties can shorten this process by stipulating the witness is an expert
c. The party offering the witness usually refuses to stipulate though because they want
the jury to trust the witness's expertise on critical issues
i. When a battle of the experts occur (both sides), the jury often relies on the
qualifications of the competing experts to decide which opinion to believe

The witness may establish her qualifications by pointing to a number of different factors:
1. Her knowledge
2. Skill
3. Experience
4. Training, or
5. Education (not essential to qualify as a witness)

• You can have expert witnesses testify on fields that don’t require formal training

75
 o Ex: business practices, cultural attitudes, anti-cult movements, refugees, police
officers testifying on criminal practices, etc.
• Because this stage is usually preliminary, the FRE do not apply, but many judges will
simply follow the FRE
• LOTS OF ROOM FOR JUDICIAL DISCRETION

Prong 5: FRE 403

• Expert evidence can be both powerful and quite misleading because of the difficulty in
evaluating it
o Because of this risk, the judge in weighing possible prejudice against probative
force under FRE 403 of the present rules exercises more control over experts than
over lay witnesses
• You can satisfy all prongs of FRE 702, but the judge could still bar expert to testify under
FRE 403
• Judges really concerned about experts who are potentially not reliable enough even if
they meet requirements under FRE 702
o Juries rely heavily on them

FRE 703: Bases for Expert Opinions

• FRE 703: tells us what the expert can rely on, and when that can be disclosed to the jury,
if ever

FRE 703. Bases of an Expert's Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed. If experts in the particular field would reasonably rely on the
subject, they need not be admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect

Experts
1. Can remain in courtroom even when not testifying, even if the judge excludes other
witnesses under FRE 615 (lay witnesses cannot)
2. Can give more complex opinions (whole point of FRE 702)
a. They may state conclusions based on their special training or expertise
3. Can certify documents as learned treatises (FRE 803(18)) (if no expert, cannot get info
from learned treatises)
a. Cross-examination rules bar interrogation from obscure or unrecognized texts.
Hence there is a requirement that the treatise be confirmed by expert opinion
(either the testifying witness or another) or be of such reliable character that it
may be judicially noticed. FRE 803(18)
4. Not bound solely by their personal observations (FRE 602 is not required for experts)
a. Usually don’t have 1st hand experience
i. "Facts they become aware of"

76
 a. Through in-court testimony (watching the trial) (but can get
expensive)
b. Through hypotheticals (with some caveats) (cannot ask lay
witnesses hypotheticals). Cannot bring in outside facts in evidence
(have to be facts already in evidence)
ii. Admissible evidence in court, and inadmissible evidence, pursuant to
some caveats

• An expert witness may offer an opinion based on inadmissible evidence, but ONLY IF
experts in that field reasonably rely upon that type of information
• The default rule is that an expert may NOT disclose inadmissible information to the jury
o If experts in their field reasonably rely on the inadmissible evidence, then that
gives the expert an opportunity to reveal it; experts will still have to meet Reverse
403 balancing
 The party sponsoring the expert to try to admit the facts during direct
examination (but expert never has to disclose basis for opinion on direct)
 The party will argue that knowledge of the underlying facts is essential for
the jury to understand and evaluate the expert's opinion
 FRE 703 directs the judge to apply a reverse-403 balancing test in
this situation
o Admit evidence only if probative value in helping the jury
evaluate the opinion substantially outweighs prejudice
o Only takes into consideration the probative value of the evidence "in helping the
jury evaluate the expert’s opinions"
• If independently admissible: may use evidence to show the TOMA and to evaluate
expert's opinions
• Inadmissible evidence under FRE 703: admit evidence only to evaluate the expert's
opinion
o Assuming it can come in under reverse 403
• A party can challenge the credibility of an expert witness on cross by attacking the
adequacy of the expert’s knowledge, both their general knowledge in their field of
expertise and their specific knowledge of the facts underlying their testimony

FRE 703 and the Confrontation Clause

• Melendez-Diaz case comparison
• No answer with whether expert testimony can violate 6th amendment (no majority
consensus)
• Can a D cross-examine an expert witness about underlying materials?
o Williams: had opportunity to clarify this, but punted on it
o On direct, 703 reverse balancing test and whether it violates 6th amendment
o Now the D is asking during cross:
 Yes (FRE 705 explicitly allows this)
 Meaningful cross sometimes requires you to get into underlying facts
(even though its inadmissible)
 If coming from D, no confrontation problem (or they waived it)

77
 FRE 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.
 If opposing party wants to ask about underlying info, even if inadmissible, that’s allowed
under FRE 705 because no confrontation clause because deemed to have waived it
because you asked about it

xiv. Limits to Expert Opinion/Testimony

• FRE 704(a): declares that testimony is not objectionable just because it embraces an
ultimate issue
• But judges still reject testimony that threatens to supplant the judge's power to declare
the law, the jury's authority to apply the law to the facts, or the jury's task of resolving
credibility

FRE 704. Opinion on an Ultimate Issue

(a) In General - Not Automatically Objectionable. An opinion is not objectionable just because
it embraces an ultimate issue (including D’s state of mind)
(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.
• Section (b) primarily restricts the type of words experts use rather than the content of the
opinions (judges very hostile to this rule)
• Under FRE 704, the judge focuses on whether the opinion will help the fact finder and
whether the testimony is unduly prejudicial
o Courts restrain experts from giving their opinion about whether a criminal D had
the requisite mental state of any element of the crime charged or a defense (this is
left for the trier of fact), but they allow experts to testify that the circumstances
were consistent with that mental state (APPLIES ONLY TO CRIMINAL
CASES)
 This distinction prevents witnesses from uttering legal conclusions, while
allowing them to come as close as possible to that line
 Instead of saying “the D’s disease created/caused a symptom/reaction
leading to an event,” just say “in my expert opinion, the D’s behavior was
consistent with an intent to do something,” not “D actually did intend to
do something.”

Legal Conclusions
• Most judges prefer witnesses to avoid legal terms like "negligent" or "guilty beyond a
reasonable doubt"
o So, most judges rule that testimony expressing legal conclusions either is not
helpful to the jury or violates FRE 403
 Ex: it is okay to say the D "drove safely," but not "he exercised reasonable
care"

78
 • The line between helpful testimony and legal conclusions is so thin though that even a
verb form can make a difference
o Ex: "the cocaine was intended to distribution," rather than "the defendant intended
to distribute cocaine"

Limitations in Action
• Expert conclusions dealing with numbers & the potential dangers of jury perception (FRE
403 inquiry: courts don’t like exerts testifying on percentages)
o Not helpful to jury and may not “fit” the facts
• DNA cases are the classic example of an expert testifying about probabilities
o When DNA scientists examine portions of DNA strands that tend to vary greatly
among individuals, this type of comparison is very effective at ruling out the
possibility that crime-scene tissue came from a particular suspect
 However, using DNA to LINK a suspect to a crime is somewhat less
certain
o The supreme court stated, "given the persuasiveness of DNA evidence, it is
essential to present that evidence in a fair and reliable manner"
• Polygraphs: Polygraphs intrude on the jury's right to assess a witness's credibility
o Judges rarely admit this unless all parties stipulate to its admission
• Testimony about eyewitnesses:
Two limits of expert testimonies about eyewitnesses:
1. The expert may only describe general findings about eyewitness testimony; the
expert may not offer an opinion about whether a particular eyewitness is reliable
2. Most courts allow expert testimony about eyewitness reliability ONLY when
circumstances suggest that an eyewitness identification is less reliable than usual
 In more routine cases, courts hold that the jurors "common sense" and the
adversary's skillful cross-examination" are sufficient to expose any
weaknesses in the testimony

Potential Defects in Expert Testimony:

1. Expert's calculation lacked proper factual foundation
a. Jurors can get lost with the facts
2. The calculation was technically flawed
a. Biggest issue here is assuming probabilities are independent
b. But, expert opinion on the proof of causation by probability is sufficient in the
majority of states and under Federal Rules
c. When future injuries are sought to be established, a higher level of conviction
may be called for than is the case with the initial connective proof
3. The calculation distracted the jury from assessing conflicts in the eyewitness's testimony
a. By ignoring these differences, the probability calculation encourages juries to
overlook its crucial role in resolving testimonial conflicts
b. The expert can do interpretations on a position of a disputed facts
4. The prosecutor's use of testimony may confuse the rarity of an event with the probability
of the D's guilt
a. Most courts will not let you give an expert opinion on the trustworthiness of an
expert. That is on the fact finder (infringes the province of the jury)

79
 • Under any of these circumstances, a court may hold that the testimony is unhelpful or
unfairly prejudicial

xv. Privileges
• The rules on privilege apply to all stages of a case or proceeding, not just the trial

Purposes
i. Protect the jury from misleading or unreliable information
ii. Protect a social interest
a. Most akin to 407-411; a lawyer is a source of a lot a of potentially damaging
information and we want to encourage information disclosure for the sake of
efficiency; also, privacy, trust, and protecting valuable relationships
b. Two kinds of justifications support the evidentiary privileges.
i. Utilitarian: argues that privileges are essential to protect certain socially
beneficial relationships
ii. Rests on the inherent value of privacy

FRE 501: Privileges Governed by Common Law

The common law — as interpreted by United States courts in the light of reason and experience
— governs a claim of privilege unless any of the following provides otherwise:
1. the United States Constitution
2. a federal statute; or
3. rules prescribed by the Supreme Court

But in a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of decision
• When state law governs civil claim or defense, state law determines privilege

In federal question case?

• Use federal privilege law (even if federal law incorporates state law by reference)
In diversity case?
• Use state privilege law (and use forum state’s choice of law rules to determine which
state’s law to use)
If both federal and state claims?
• Most courts just apply federal privilege law, although some try to mix and match in order
to give proper effect to the rule’s wording
• The Federal Rules of Evidence do not codify any privileges; they leave privileges to
common-law developments in the courts (got this after Watergate Scandal)

Attorney-Client Privilege
• A confidential communication between a client and an attorney for the purpose of
seeking legal advice or representation

80
 o Effective legal representation, moreover, requires open, honest communication
between the lawyer and client
• The evidentiary privilege is stronger than the professional obligation; it protects attorney-
client communications even if the attorney is subpoenaed to testify in court; but the
evidentiary privilege is also narrower than the professional obligation; it covers only
confidential communications made to obtain legal services
• Both communications from client to attorney and from attorney to client are protected,
the privilege protects only the fact that information was communicated and does not
preclude disclosure of the underlying facts conveyed in those communications.

Basics:
1. Has to be a communication (broadly defined) (equal to hearsay; nonverbal counts as well
as verbal)
a. ACP only protects the communication, not the underlying substantive facts (these
could be found some other way that involves not violating this privilege)
i. Cannot use ACP to shield underlying facts, just the communication
1. Ex: a client cannot refuse to reveal a fact within her knowledge
merely because she told that fact to her attorney
b. The communication must be for the purpose of seeking legal advice or
representation, but the attorney does not need to give advice or agree to the
representation for the privilege to exist
c. The communication must be intended to be confidential in order to be
privileged
2. Has to be between a client (singular person; even an authorized agent could be a client)
a. Most controversial: a company/corporation can be clients
3. And between a lawyer (licensed attorney, or the client needs a subjective, reasonable
belief that the attorney is licensed)
a. Doesn’t require the attorney have to be licensed in jurisdiction where crime
occurred
b. Lawyer must be acting in a lawyer-y capacity
4. Communication is confidential
a. Talking about your case with lawyer or their agents is protected
b. If you can show you used reasonable efforts to keep conversation private, the
ACP won’t break
c. What about identity of person seeking representation?
i. Usually default rule is that the mere fact you sought representation does
not fall within ACP, but certain types of cases where P goes sniffing
(circumstantial evidence that you sought a particular lawyer about a
certain type of topic)
1. So sometimes seeking a lawyer can be covered by ACP
1. Must concern legal advice
a. If a lawyer (general counsel) is also the VP of a company, and reports minutes for
board meeting, this does not fall under ACP because this is not legal advice of
counsel
i. This person wears "two hats," so have to figure out which hat they're wearing
when they say something

81
Key Elements of ACP between one human and their lawyer:
1. Duty of attorney to assert/invoke privilege on client’s behalf (must do this when it comes
up)
a. Although the client holds the privilege, his attorney often asserts the privilege on
his behalf
2. If a client is no longer a client, the privilege still exists (it survives past the retention of you
as an attorney)
3. Absolute privilege; showing of a compelling need is enough to upend a qualified privilege,
but not an absolute privilege, like ACP, with 3 exceptions:
a. Communications made to enable or aid the commission of what the client knew or
should have known was a crime or fraud (applies to psychiatrists in some
instances, but majority says no)
i. Statements made by client would tend to further the commission of a
crime
ii. The crime-fraud exception applies even if the lawyer is ignorant of the
client’s intent or illegal plans
b. Communications relevant to a dispute between attorney and client
(MALPRACTICE)
c. Communications relevant to a dispute between parties who claim through the
same deceased client
d. Communications between former co-clients who are now adverse to each other

4. ACP forbids you from revealing a confession even though someone else is on trial for the
death penalty for that crime he confessed to
a. EXCEPT: can potentially go to police/prosecutor and invoke the model rules of
professional responsibility (rule 1.6) when it is reasonably necessary to avoid
reasonably certain death or serious bodily injury, then you can reveal client
confidences and it is not in court/at trial
i. Not totally settled law

Corporate Parties and ACP:

1. A middle manager employee's letter to her company's counsel; is letter privileged?
a. Probably yes under Upjohn
i. Upjohn: Supreme Court gave balancing test for when employees should be
treated as clients for ACP:
1. Info directly to company counsel for legal purposes?
2. Knew this was the purpose in supplying info?
3. Provided info in response to superior’s request?
4. Communications related to scope of duties?
5. Other employees couldn’t provide the info to the counsel?
6. All parties treated communications as highly confidential?
2. The privilege extends to communications by a non-control-group employee about matters
within the employee’s corporate duties made for the purpose of securing legal advice for
the corporation

82
 a. Upjohn: protected communications by lower-level employees who were directed
by their superiors to communicate with the corporation’s attorney
3. REMEMBER: ACP privilege is only the communication; not underlying facts that are the
basis of the communication

Waiver of ACP by corporation:

 CEO can waive privilege (doesn’t need any consent)
o Also comes from Upjohn case: if you are within a corporation and you are within
scope of your duties, you are going to be a client for purpose of ACP if you discuss
things with the general counsel of company
o But for waiver, you are not the client. You can create privilege, you cannot waive it;
only the CEO or President, people who control corporation, can waive
 Maybe some incentive to throw some people under the buss
 Upjohn warning: to the extent you are interviewing/deposing people within a
company, the lawyer works for the company, and the lawyer can disclose any
communication

Work-Product Privilege
 Sometimes ACP and this overlap and sometimes they are separate
o Some ways broader, some ways narrower
 WP: only those documents that are made in anticipation of litigation
o Documents prepared by an attorney for his own use in connection with the
client’s case are not covered by ACP because they are not communications
o Mental prep/thoughts/impressions/conclusions/trial tactics of lawyers: absolutely
privileged
 Privilege held by attorney and waived by attorney
 Any documents prepared, not just communications between the client and lawyer
 Such documents are protected under WP doctrine and are not subject to discovery unless
the party seeking disclosure:
i. Demonstrates a substantial need for the information
ii. Cannot obtain the information by any other means without undue hardship

Attorney-Client Privilege Work Product

Any receipt of legal services Only in anticipation of litigation

Communications between client & lawyer Any documents prepared

Absolute privilege Qualified for facts about the dispute

FRE 502: Waiver (back to FRE)

 Governs waiver of both ACP and WP

83
  The client holds the privilege and is the only one who may waive it; but, attorney must
assert privilege on client’s behalf to protect the client’s interests
o Privilege exists until it is waived, and it can survive a client’s death
 Intentional waivers and inadvertent (unintentional; "oops") disclosures
o Want to be as close to a mechanical mistake as possible to be able to invoke FRE 502

Intentional waivers: (FRE 502(a))

When made during a federal proceeding, the intentional disclosure of privileged material
operates as a waiver of the ACP. The waiver extends to undisclosed information only in those
unusual situations in which
i. The disclosed and undisclosed material concern the same subject matter, and
ii. Fairness requires the disclosure of related information because a party has disclosed
information in a selective, misleading, and unfair manner
• A waiver has occurred where a party raises a claim or defense that puts privileged
communications in issue

Inadvertent disclose: (FRE 502(b)) (how to get info back) ("claw-back" letters)
When made during a federal proceeding, the inadvertent disclosure of privileged communication
or information does not waive the privilege if the holder of the privilege:
i. Took reasonable steps to prevent disclosure; and
a. Look at facts such as the number of documents to be reviewed, the time
constraints for production, or the existence of an efficient records-management
system may be relevant
ii. Promptly took reasonable steps to rectify the error

i. The following provisions apply, in the circumstances set out, to disclosure

of a communication or information covered by the attorney-client
privilege or work-product protection
1. (a) Disclosure Made in a Federal Proceeding or to a Federal
Office or Agency; Scope of a Waiver. When the disclosure is made
in a federal proceeding or to a federal office or agency and waives
the attorney-client privilege or work-product protection, the
waiver extends to an undisclosed communication or information in
a federal or state proceeding only if:
a. (1) the waiver is intentional;
b. (2) the disclosed and undisclosed communications or
information concern the same subject matter; and
c. (3) they ought in fairness to be considered together
2. (b) Inadvertent Disclosure. When made in a federal proceeding or
to a federal office or agency, the disclosure does not operate as a
waiver in a federal or state proceeding if:
a. (1) the disclosure is inadvertent;
b. (2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and

84
 c. (3) the holder promptly took reasonable steps to rectify the
error, including (if applicable) following Federal Rule of
Civil Procedure 26 (b)(5)(B)

xvi. Other Privileges

• All of these rest of the principle that for there to be a privilege, the person must be using
it for a specific purpose, like must obtain treatment/counseling for a particular purpose

1) Spousal Testimony Privilege

a. Only can be used at grand jury or one spouse is criminally accused
i. Testimonial privilege
b. Can refuse to testify about anything within life of the marriage (not just
communications, but also acts (non-assertive))
c. Scope: before and during the marriage (need to be spouses) (not testifying at all)
(broad)
d. Waiver: witness spouse (one who is testifying) can waive this privilege (wants to
testify against spouse)
i. Can waive unilaterally (but cannot testify about stuff contained in marital
communications)
ii. If spouse wants to testify, not use in preserving marriage (reflecting
reality) (witness spouse holds and can waive)
e. Exception: Intra-family crime
i. Spouse is usually only witness to testify to facts at trial, so rules create a
carve out for the need for spouse to potentially testify

2) Marital Communications Privilege

a. Can be invoked anywhere (only focuses on one aspect)
i. Not a pure testimonial privilege
b. Can only refuse to testify about confidential communications
i. Observing something from spouse that is not meant to be communicative
is not covered by this
ii. Encourages communication to preserve sanctity of marriage
c. Scope: only covers things that happen during the marriage, but can invoke this
privilege after you have been divorced (unlike spousal testimony privilege)- have
to be spouses
d. Waiver: both spouses have privilege and both need to waive I before you can
waive this privilege
i. Has to be a bilateral waiver (makes a lot more sense after divorce)
e. Exception: Intra-family crime
i. Spouse is usually only witness to testify to facts at trial, so rules create a
carve out for the need for spouse to potentially testify
f. Third party waives unless very young children
i. Difficult when one spouse tells a 3rd party w/o other’s consent

3) Psychotherapist-Patient Privilege

85
Attorney-Client Psychotherapist-Patient

Client Patient

Attorney Psychotherapist

Communication Communication

Confidential Confidential

To obtain legal services To obtain psychotherapy

 Is recognized by Supreme Court, but controversial because no Doctor-Patient privilege
 What constitutes a psychotherapist is broad (don’t have to be licensed, but many require
it)
o Can be a social worker, and courts look to broad interpretations of mental health
professional
• Must be going for treatment (obtain psychotherapy)
o Establish someone is talking to a mental health professional, for the purpose of
psychotherapy
o Look to purpose of what they're saying and if it is pertinent to diagnosis of
treatment
• Split in courts about whether this is an absolute privilege or qualified privilege
o Some courts say if D can show a compelling need, it can overcome privilege
• Privilege held by person seeking treatment

4) Clergy-Communicant Privilege

Attorney-Client Clergy-Communicant

Client Any person

Attorney Member of the clergy

Communication Communication

Confidential Confidential

To obtain legal services To obtain spiritual counseling

• Things you talk about to your religious adviser will not be used in court against you
(somewhat rests on a free exercise 1A rationale, and privacy)

86
 • Debatable if there is even a privilege (Sup. Ct. has not said, but unanimous agreement
that it should exist from lower court dicta)
o No definitive ruling though that it exists (no binding precedent, but no dissent);
Acting on assumption it is a recognized privilege
• Not client or patient, but ANY person speaking to a member of the clergy (unclear how
broad; ordained minister or less than that?) (but potentially broadly construed)
• Confidential communication doesn’t need to be read too literally (can have group therapy
so long as it stays within group; same with psychotherapy privilege)

5) Self-Incrimination Privilege
• Absolute privilege, but can be overcome by an agreement for transactional immunity

Factors:
• Available to ANY witness in ANY proceeding (don’t have to be a crim. D)
• Protects people, not organizations (no corporations, but individual within company with
respect to themselves, but not invoked on behalf of company)
• Applies only to any statement that could give rise to criminal liability (can’t invoke this
for civil liability, but can in a civil trial because if you talk, that might be used later in a
potential criminal proceeding)
• Applies to testimony (things you say) (any context that can put you in hot water)
• Waived by immunity
• Does not cover fingerprints, DNA, non-assertive conduct, etc.

• If a D confesses to police, can he still assert self-incrimination privilege at trial?

o Yes, can still invoke it
o No waiver if confess to police (evidentiary rule AT TIME OF TRIAL)
• But if D refuses to testify, can prosecutor introduce confession?
o Confession is conceptually hearsay, but opposing party statement
o No confrontation clause problem if D is the declarant
o Assuming confession is voluntarily made, P can put in statement

xvii. The Role of the Jury

FRE 606(b): forbids jurors from testifying about most things that were said, done, or even
thought about during the jury deliberations
 FRE 606(b) throws a blanket of secrecy over jury deliberations by declaring juror’s
incompetent to testify about that process
o Jurors can talk about the deliberations with friends, lawyers, and even reporters,
after verdict is rendered, but this is not competent evidence
 Jurors give the judicial process legitimacy
o Cannot examine or challenge the internal workings of jury deliberations
 To protect the finality and legitimacy of jury verdicts, Rule 606(b) greatly restricts the
power of judges to admit testimony, affidavits, or other statements from jurors that reflect
the jury’s decision-making process.

87
  FRE 606(a) prohibits a jury from testifying as a witness in the same case in which they
juror serves
 FRE 606(b) addresses a juror’s competence to testify about the jury’s decision-making
after the verdict or indictment has been rendered.
o (a) and (b) have two very different purposes

FRE 606. Jurors Competency as a Witness

(b) During an Inquiry into the Validity of a Verdict or Indictment
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or
indictment, a jury may testify about
i. any statement made or incident that occurred during the jury’s deliberations;
ii. the effect of anything on that juror’s or another juror’s vote; or
iii. any juror’s mental processes concerning the verdict or indictment
The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters

(2) Exceptions. A juror may testify about whether;

i. extraneous prejudicial information was improperly brought to the jury’s attention;
ii. an outside influence was improperly brought to bear on any juror; or
a. e.g. a threat was made on the life of a juror’s spouse
iii. a mistake was made in entering the verdict on the verdict form (clerical error)

 Whether jurors misunderstood the instructions is not clerical; does not overcome 606(b)
(inadmissible)
 FRE 606(b) does not come into play until after the jury reaches a verdict
 Jurors may testify about may attempts to bribe, coerce, or otherwise influence a jury
improperly
 The Supreme Court has ruled that in a criminal case in which the D was found guilty, the
6th amendment’s guarantee of a fair and impartial jury will override FRE 606(b) in one
specific circumstance: when a juror’s statement indicates she acted out of racial
stereotypes of animus
o A convicted defendant must show “that one or more jurors made statements
exhibiting overt racial bias that cast serious doubt on the fairness and impartiality
of the jury's deliberations and resulting verdict.” In addition, those statements
“must tend to show that racial animus was a significant motivating factor in the
juror’s vote to convict
 FRE 606(b) allows testimony of external influences, but not internal deliberations
o A jury’s internal behavior and decision-making processes (like drinking alcohol
and doing drugs) may resemble “allegations of the physical or mental
incompetence of a juror,” which courts have historically treated as “internal”
rather than “external matters”
o Rule 606(b) “generally prohibits a juror from testifying about her or other jurors’
mental processes during jury deliberations.” The principle behind this prohibition
extends to testimony about what those mental processes would have been had the
evidence at trial been different

88
  Even when a juror offers testimony about improper external influences,
the judge will redact any description of how the outside influences
affected the juror’s mental processes or the jury’s deliberations.
 The court only probes into existence of external information, rather than
the effect of that information on a juror
 The Supreme Court in Tanner confirmed that an influence is external only if it comes
from outside the jury room rather than originating with the jurors themselves.
o But “internal” influences can originate outside the jury room as well (ex: two
jurors having sex)
 Rule 606(b) allows inquiry into external influences on a verdict such as a juror
conducting outside research or investigation; jurors reading media accounts about the
case; one of the jurors possessing prior knowledge about a party or a witness that was not
disclosed; jurors reviewing documents or items that had not been admitted into evidence,
and any kind of contact between jurors and outsiders regarding the case.

Testimony by Non-Jurors
 Bailiffs, attorneys, and any other person who obtains personal knowledge related to a
jury deliberation may testify about information regarding the juror’s decision-making.
o These individuals may testify about both internal jury processes and external
influences, as long as their information stems from personal knowledge rather
than secondhand juror reports

SPLIT: Supreme Court says:

• Pena-Rodriguez v. Colorado (2017)
• 5-3 decision authored by Justice Kennedy
• Creates a narrow 6th amendment exception to FRE 606(b) (ignore due process and EP
claim)
• Appears limited to statements of overt racial bias
 Implied racial bias (not sure about this) (race only; history of insidious racial
discrimination)
 Not applied to gender or sexual orientation bias
o Must tend to show that racial animus was a "significant motivating factor" in verdict

Overall
 Rule 606(b) prevents a court from considering a juror’s statements about what any juror
said, thought, or did during deliberations. The rule forbids statements about any internal
matters, including juror intoxication, a juror’s mental or physical incompetence, and
coercion by some jurors against others. The rule does not prevent jurors from testifying
about external influences, such as threats stemming from non-jurors, exposure to media
reports about the trial, or independent research conducted by the jurors.

89