166 terms


Foundation of all Evidence
1. Is it relevant?
2. Is it credible
3 Steps to an Evidence Analysis
1. Is it relevant?
2. Does another rule exclude it?
3. Does it survive a rule 403 balancing test? Or other named test?
403 Balancing Test
Does the probative value substantially outweigh the prejudicial effect? Leans in favor of admission.
The FRE are designed to allow admission of facts that are relevant and reliable while excluding information that is tangential, confusing, speculative, and unrelated to the issues in the case.
Two types of Evidence
1. Live witnesses
2. Tangible physical evidence
Two types of tangible physical evidence
1. Real
2. Demonstrative
Two categories of Evidence
1. Direct
2. Circumstantial
Rule 102
Role of the Judge - These rules shall be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
Rule 403 - Relevancy
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Rule 611 - Court Control
The court shall exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: make those procedures effective for determining the truth; avoid wasting time; and protect witnesses from harassment or undue embarrassment.
US v Reaves
Judge has the discretion to set time limits as long as they're fair. The judge's client is the public and the interest served is public resources - judicial economy, efficiency
Stone v Peacock
Judge has the discretion to set the order of the witnesses as long as doesn't result in any harm to either side.
US v Yates
Judge has the authority to comment on the evidence presented but he has to be very careful not to prejudice righter the parties or their case.
Rule 614 - Court's Calling or Examining a Witness
The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness; The court may examine a witness regardless of who calls the witness; A party may not object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present. He cannot ask questions that signal his belief or disbelief of a witness because it would usurp the role of the jury in determining the witness's credibility.
Crandall v US
Judge ridiculed plaintiff's expert on the stand and interfered with plaintiff's counsel's cross-exam of the defense's main expert. Court found that the judge had denied the plaintiffs a fair trial.
Rule 103 - Rulings on Evidence
A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party. If the ruling admits evidence, the party on the record must timely object or move to strike and states the specific ground, unless it was apparent from the context. If the ruling excludes evidence, the party must inform the court of its substance by an offer of proof, unless the substance was apparent from the context.
2 reasons to object: to oppose the introduction of evidence and to preserve error in admission of that evidence over objection for appeal. Objection must be made before the witness answers. Failure to object will often waive evidentiary error on appeal.
4 Points about Objections
1. To prevent the introduction of evidence - must be a legal reason behind the objection: hearsay, relevance, etc.
2. To preserve error for appeal when evidence has been admitted over an objection.
3. Failure to object will often waive evidentiary error on appeal.
Offers of Proof
When an objection is sustained, the party whose evidence has been excluded may decide to preserve the ruling for appellate review by making the substance of the evidence known to the court by offer. This is done by examining the witness as intended outside of the presence of the jury. The attorney then summarized the evidence for the record.
Rule 201 - Judicial Notice
Only governs adjudicative facts; legislative and evaluative facts don't count. Does apply to facts that are not subject to reasonable dispute because they are generally known within the trial court's territorial jurisdiction or they can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The court can take notice on its own or must take notice if a party requests it and the court has the necessary info. Notice may be taken at any stage in the proceeding. On timely request, a party is entitled to be heard on the propriety of the taking judicial notice and the nature of the fact to be noticed. In a civil case, the judge must instruct the jury accept the noticed fact as truth. In a criminal case, the jury must be instructed that the fact may or may not be taken as truth.
Adjudicative Facts
Facts which are decided by a jury in a jury trial or by the judge in a bench trial and which would normally be proved by evidence if juridical notice were not taken.
Legislative Facts
Information a court uses to interpret a law or statute to make a ruling.
Evaluative Facts
Information, concepts, and understandings known and shared in common within a society.
US v Gould
Courts can generally take judicial notice of a fact that is caps le of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.
US v Jones
Fact that a particular company was a company engaged as a telephone service carrier is an adjudicative fact.
US v Lewis
Judges are prohibited from relying on their own personal experience to support the taking of judicial notice. A judge can't use his own experience of coming out from under anesthesia to take notice of the fact that people coming out from under anesthesia don't know what they are saying.
Burden of Proof
Burden of production - the amount of evidence sufficient to enable the trier of fact reasonably to find for a particular party if their evidence is credible. Shifts between the parties.
Burden of Persuasion
The evidence presented has to be persuasive enough for the party to win on the legal issues. Always stays with the party who has the initial burden.
Permissive - jury is instructed that they may conclude the presumed fact.
Mandatory - jury is instructed that they must conclude the presumed fact if not contested.
Rule 301 - Presumptions in General in Civil Actions and Proceedings
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. This rule does not shift the burden of persuasion which remains on the party who had it originally.
Three Main Tests for Relevancy
Rules 401, 402, and 403.
Rule 401 - Test for Relevant Evidence
Evidence is relevant if it has any tendency to make more or less probable the existence of a fact that is of consequence to determining the action. It is not necessary that the fact that is of consequence be in dispute in the case. Each piece of evidence does not need to be sufficient alone to establish the proposition for which it is offered to be logically relevant.
People v Adamson
Defendant who had ladies stockings in a case where a woman was murdered and her stockings were taken. Demonstrative evidence that tends to prove a material issue or clarify the circumstances of the crime is admissible despite its prejudicial tendencies.
Rule 402 - General Admissibility of Relevant Facts
Relevant evidence is admissible unless provided otherwise by the US Constitution, federal statute, the Federal Rules of Evidence, or other rules proscribed by the Supreme Court. Irrelevant evidence is not admissible.
Rule 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Substantially Outweighed
No black letter definition but generally interpreted to mean that in a case where the probative value and the countervailing factors are close, the judge should admit the evidence.
Unfair Prejudice
Must distort the fact finding function of the trial by allowing the jury to draw inferences that are improper.
Confusion of the Issues and Misleading the Jury
Tendency of the evidence to distract the jury from deciding the case on a proper basis by placing too much emphasis on matters that are not essential to a proper determination.
Undue Delay, Waste of Time, Needless Presentation of Cumulative Evidence
Allows the court to keep the trial streamlined and the fact-finder focused.
Conducting a 403 Balancing Test
1. Determine whether the evidence has probative value under 401 - is there any possibility of making a fact at issue more or less probable than without the evidence? If so, it is presumptively admissible.
2. Estimate the strength of that probative value by looking to the extent to which the evidence will sway the jury in the proponents' favor on a contested issue of fact taking into account the judge's experience, knowledge, and general understanding of the human thought process, as well as the extend to which the facts at issue are established by other evidence, stipulation, or inference.
3. Determine the strength of any counterweights under Rule 403 and decide whether they substantially outweigh the probative value of the evidence.
Carter v Hewitt
Inmate beaten up by prison guards wrote a letter to another inmate about making false claims for brutality by the prison guards. Letter was admissible because it spoke directly to whether or not the plaintiff had been beaten. 403 only protects against unfairly prejudicial evidence because all evidence is prejudicial.
Rule 104(a) - Preliminary Questions in General
The court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those in privilege.
Rule 104(b) Preliminary Questions - Relevancy That Depends on a Fact
When the relevancy of evidence depends on fulfilling a factual condition, the court may admit it on, or subject to, the introduction of evidence sufficient to support a finding that the condition is fulfilled.
Rule 407 - Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or an instruction. But the court may admit this evidence for another purpose, such as impeachment or - if disputed - proving ownership, control, or the feasibility of precautionary measures. SRMs may be used for any relevant purpose other than those listed but they have to be measures that if previously taken should have made the injury or harm less likely to occur. SRMs only apply to parties. The impeachment exception is construed narrowly.
Rule 407 - Balancing Test
The permissible reason to admit versus the possibility that the jury will use the evidence for an impermissible purpose.
Rule 408 - Compromise Offers and Negotiations
Prohibited uses - Evidence of the following is not admissible - on behalf of any party - either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent patient or a contradiction:
- furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a valuable consideration in compromising or attempting to compromise the claim; and
- conduct or a statement made during compromise negotiations about the claim - except when offered in a criminal case and when the negotiations related to a claim by a public office are in the exercise of its regulatory, investigative, or enforcement authority.
The court may admit this evidence for another purpose such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Rule 408 Highlights
- Only matters prepared solely for settlement purposes are excluded.
- Bias exception - 408 admits evidence of offers if it is used to prove something other than the validity of the claim or its amount, such as to prove a witness's bias or prejudice.
- Excludes evidence of settlement or attempted settlement when offered to show liability or value of claim
- Has to be a claim before a conversation can be considered a settlement negotiation.
Pierce v FR Tripler
Where a party is represented by counsel, threatens litigation, and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of 408.
John McShain v Cessna
The fact that a sister corporation of an expert's employer had been released from liability in exchange for his expert testimony cast doubt on the expert's impartiality and thus created bias.
Rule 409 - Payment of Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Does not require that a claim precede the settlement offer. No exceptions to the rule but still requires a 407 balancing test.
Rule 410 - Pleas, Plea Discussions, and Related Statements
Evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
- a guilty plea that is later withdrawn
- a nolo contendere plea
- a statement made during a proceeding on either of those pleas under FRCP 11 or a comparable state procedure; or
- a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
Exceptions to Rule 410
The court may admit a statement described in 410 if:
- in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together
- In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the records, and with counsel present
- Can be waived
Admissible under 410
- Guilty plea that was later withdrawn
- Nolo contendre - no contest
- A statement made during a proceeding on either of those pleas under FRCP 11 or a like state statute
- A statement made during plea discussions with an attorney for the prosecutor if the discussions didn't end in a guilty plea
Proffer Agreement
Agreement made between a prosecutor and a defendant where the prosecutor basically says:
- Tell us everything you know and we'll decide how much it's worth
- If we think you've lied or left stuff out, the deal is off
- Anything you say can be used against you - waiving 410 rights
- We can make you take a lie detector test and we can make you work undercover for us
Rule 411 - Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But, the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control
Character Evidence
Rules 403, 404, 405, 407, 412, 413, 414, 415 govern character evidence. Admissibility of character evidence is an issue of relevance under 403. Rule 404 deals with when character evidence is admissible and 405 deals with what type of character evidence is admissible
Three Types of Character Evidence a Witness May Testify To When Character Evidence is Admissible
1. That person's reputation in the community for that character trait - testimony about what others in the community think about a person's character traits;
2. The witness's opinion as to that person's character traits - What a witness personally knows about another's character traits;
3. A specific act which reveals that person's character trait - Witness testimony that describes the way a person has demonstrated a particular character trait through his/her actions

The trait has to be some trait that is related to the crime or issue. Assault:Peacefulness; Embezzlement:Honesty
Rule 404(a) - Character Evidence; Crimes or Other Acts
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 that character trait.
Rule 404(a)(1) - The Mercy Rule
The Mercy Rule allows the defendant to present evidence of his good character to the degree it is pertinent to the crime with which he is charged. Under 405(a), Mercy Rule witnesses can only testify as to their knowledge of the defendant's reputation or their opinion of the defendant's relevant character trait but not as to the specific acts that form the basis of their testimony. Mercy Rule defense witnesses can be crossed by asking them about any of the defendant's prior acts that demonstrate that his character is contrary to what the witness testified to. Can't ask about the details or imply that the acts actually occurred.
Rule 404(a)(2) - The Victim's Character Generally in Criminal Cases
The defendant can present evidence concerning the character of a victim as along as it relates to a pertinent trait. A pertinent trait is determined by the charges in the case. In response a PA can:
1. cross the defendant's witness who attacked the victim's character with specific facts showing the opposite of the victim
2. Present reputation and opinion witnesses on rebuttal who testify that the victim was the opposite of what the defendant's witness said.
3. Present reputation and opinion witnesses who attack the defendant's character for having a certain trait
Rule 404(B) - The Prosecutor's Rule
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.

The 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 the defendant in a criminal case, the PA must:
- provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
- do so before trial - or during trial if the court, for good cause, excuses lack of pretrial notice
Rule 405 - Methods of Proving Character
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 of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
US v Hearst
Patty Hearst argued that evidence that she had been involved in a prior kidnapping and robbery was inadmissible. Court found that it was relevant because it tended to show that she willingly engaged in other criminal activity with the same group of people.
US v Carroll
Plan evidence. Defendant appealed admission of evidence as,plan evidence, of other robberies where the perpetrator carried a gun, wore a mask, and hurdled a counter. The facts that distinguished the crimes and the proximity of the crimes in time in space were not sufficient enough for it to be plan evidence.
Rule 413 - Similar Crimes in Sexual Assault Cases
In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

If the PA intends to offer this evidence, the PA must disclose it to the defendant, including W's statements or a summary of the expected testimony. The PA must do so at least 15 days before trial or at a later time that the court allows for good cause.

Doesn't limit the admission or consideration of evidence under any other rule.
Definition of Sexual Assault for Rule 413
Sexual assault means a crime under federal law or under state law involving.
Rule 414 - Similar Crimes in Child-Molestation Cases
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
- Must be disclosed to defendant at least 15 days before trial
Rule 415 - Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
- Must be disclosed to the defendant at least 15 days before trial
US v Lemay
Factors for determining whether 414 evidence is admissible:
- similarity of the prior acts to the acts charged
- closeness in time of the prior acts and the acts charged
- frequency of the prior acts
- presence or lack of intervening circumstances
- necessity of the evidence beyond the testimonies already offered at trial
Rule 412 - Sex Offense Cases; Rape Shield
Evidence offered to prove that victim engaged in other sexual behavior or to prove a victim's sexula predisposition are not admissible in a civil or criminal proceeding involving alleged sexual misconduct.
Rule 412 Exceptions - Criminal Cases
In criminal cases, the court may admit the following evidence:
- evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence
- evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor
- evidence whose exclusion would violate the defendant's C rights
Rule 412 Exceptions - Civil Cases
In civil cases the court may admit evidence offered to prove a victim's sexual behavior or predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.
Rule 412 - Procedure to Determine Admissibility
If a party intends to offer evidence under 412, the party has to file a motion that specifically describes the evidence and why it's being offered at least 14 days before trial, serve the motion on all of the parties, and notify the victim or the victim's guardian or representative.
Rule 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 or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness or not.
Habits and Routine Practices for Rule 406 Purposes
Habits refer to actions of an individual whereas routine practices refer to procedures of an organization. Character evidence is more general and shows a mere tendency of a person to act in accordance with a particular character trait. Habit is more specific and shows a stronger likelihood that a person acted in accordance in a particular way because that person has done so repeatedly, almost automatically, in response to a specific situation that occurs over a period of time.
A statement other than the one made by the declarant while testifying at the trial or other hearing, offered to prove the truth of the matter asserted.
- What one person hears another person say
- The ability to validate a statement at the time it is made is very important
- Hearsay is not made under oath
- Factfinder was not present at the time the statement was made and could not evaluate the speaker's demeanor
Elements of Hearsay
- Statement
- Made outside of court
- Offered to prove the truth of the matter asserted

Can offer hearsay for other reasons:
- impeachment of witness
- Effect on the listener or reader
- Statement offered to show independent legal significance or "verbal acts"
- Circumstantial evidence of memory or belief of the declarant
Four Lines of Inquiry for Cross
1. Memory - the person's cognitive ability to record, retain, and recall accurately what that person perceived.
2. Perception - Whether a person was in a position to, and actually did, perceive what that person claimed she observed.
3. Narration - the witness's ability to accurately relate her "story" so that it correctly reflects what she perceived and remembered.
4. Sincerity - the credibility of the witness.
Rule 801 - Hearsay Definitions
1. Statement - a person's oral assertions or a person's non-verbal conduct if they intended it as an assertion.
2. Declarant - the person who made the statement
3. Hearsay - a prior statement - one the declarant does not make while testifying at the current trial or hearing - that a party offers as evidence to prove the truth of the matter asserted by the declarant.

Generally film and photos are NOT hearsay and animals and machines are not declarants
Non-Hearsay Because it is Not Offered for the Truth of the Matter Asserted
Statements having independent legal significance or "verbal acts."
Words of legal significance: statements of offer, acceptance, rescission relating to contract, defamatory statements, verbal parts of an act, threats in a prosecution for threatening court officers. Their significance lies solely in the fact that the statements were made, so there's no issue raised as to the truth of the matter asserted.
Rule 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.
Rule 801(d) - Non-Hearsay: Declarant-Witness
A declarant-witness's prior statement - the declarant testifies and is subject to cross-exam about the prior statement, and the statement: is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; is consistent with the declarant's testimony and is offered 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 it identifies a person as someone the declarant perceived earlier.
Rule 801(d) - Non-Hearsay: Opposing Party
The statement is made against an opposing party and:
a. was made by the party in an individual or representative capacity, b. is one that the party appeared to adopt or accept as true,
c. was made by a person whom the party authorized to make the statement on the subject,
d. was made by the party's agent or employee on a matter within the scope of that relationship and while it existed or
e. was made by the party's conspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under the existence or scope of the relationship under c; the existence or scope of the relationship under d; or the existence of the conspiracy or participation in it under e.
1. Prior statements
2. Admissions of a party opponent
Three Types of Prior Statements that are Excluded as Hearsay
1. Prior inconsistent statements
2. Prior consistent statements to rebut
3. Prior statement of identification of a person
What is Prior Statement
A statement previously made out of court by a currently testifying witness. Prior statements are still considered hearsay if they are offered to prove the truth of the statement's direct assertion.
Prior Inconsistent Statements
To be admissible as non-hearsay, a prior statement must meet the following criteria:
1. The witness is currently testifying and subject to cross-examination
2. The prior statement is inconsistent with the witness's in-court statement
3. The witness's prior inconsistent statement was made under oath, subject to the penalty for perjury, at a prior trial, hearing or other proceeding or in a deposition

When a PIS is offered for the truth of the direct assertions in the prior statement it is hearsay. When a PIS is offered to impeach or show the inconsistency in the witness's in-court testimony it is non-hearsay. When a PIS is offered for the direct assertions in the prior statement if the statement was made under oath at a prior trial, deposition or other proceeding it is non-hearsay.
Prior Consistent Statements
PCSes of a presently testifying witness are admissible as nonhearsay if they are offered to rebut an express or implied charge of recent fabrication or improper influence or motive.

They are admissible if there has been some type of attack on the presently testifying witness. To trigger the rule, the attack may simply result from the central theme of the opponent's case and doesn't have to be express.
Tome v US
Dad accused of molesting his four year old daughter. Daughter wouldn't testify so they used six witnesses who testified about comments the girl made to them about the abuse.
Prior Statement of Identification of a Person
Admits a statement made out of court by a presently testifying witness if that statement is one identifying a person.
Wrong ID on the Stand Lady
A victim ID'd a cop as the bank robber. She was able to ID the robber using the pictures she was given to ID him before. The photos were admitted into evidence.
Questions for Admissions of a Party Opponent
1. Who is the declarant?
2. What is the association between the declarant and the party?
3. If the declarant is a party, admissions of a party opponent might apply.
4. Personal knowledge is not required.
5. No self-serving statements.
Admissions of a Party Opponent
- Do not need to be statements of fault
- Does not need to be against the party's interest

In order for a statement to be an admission of a party opponent it must have been offered against an opposing party and was
- made by the party in an individual or representative capacity
- one that party manifested, adopted, or believed to be true
- made by a person authorized to make a statement on the subject
- made by the party's agent or employee on a matter within the scope of that relationship and while the relationship existed
made by the party's co-conspirator in furtherance of the conspiracy
Adopted Statements
A party can expressly or impliedly adopt someone else's statement as their own. This can be done expressly. This can be done non-verbally; can be done by not responding at all:
- hears the statement
- understands the statement
- has knowledge of the matter
- circumstances are such that he would have likely replied
Statements Made by Authorized Persons
Whether or not the person had authority to make the statement must be established at trial.
- Authority may be express or implied
- Persons who can be authorized include: lawyers, CEOs, employees, accountants
- Court can consider the contents of an alleged agent's statements in determining whether the agent was authorized by a party to make a statement about the subject matter
- Determining authorization is made by examining the acts or the conduct of the principal or the prinicipal's statements to agent or a third party regarding the agent
- A party's books and records fall within this rule and are admissible against the party without regard to whether the party intended to disclose them to a third party.
Statements by Coconspirators
Prelim determinations:
- was there a conspiracy?
- was the defendant a member of the conspiracy?
- were the statements made while the conspiracy was in existence?
- were the statements made in furtherance of the conspiracy?

When making the prelim showing, the court must consider the content of the statement alone is not enough to establish a conspiracy.
Rule 803 - Hearsay Exceptions - Regardless of Declarant's Availability
These are hearsay but are admissible for the truth of the matter anyway. There are 23 but only the first nine are very common. 10 to 23 are very specific. There are two categories: those that apply whether or not the declarant is available or not. Rule 803 covers those. 804 covers the weak exceptions that only apply if the declarant's live testimony cannot be obtained.
Nine Common Exceptions
1. Present sense impression
2. Excited utterance
3. Then existing mental, emotional, or physical condition
4. Statements made for purposes of medical diagnosis or treatment
5. Past recorded recollection
6. Records of regularly conducted activity
7. Absence of a record of regularly conducted activity
8. Public records or reports
9. Public records of vital statistics
Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter - play-by-play announcer. The more time you have to reflect upon what you will say, the less present it is.
Excited Utterance
A statement related to a startling event or condition, made while the declarant was under the stress of excitement. Factors include:
1. How exciting was the event?
2. The period of time between the event and the statement.
3. Was the statement a response to a question?
4. Was the declarant a bystander or participant?
Then existing mental, emotional, or physical condition
I'm angry, I'm hungry, my stomach hurts.
Statements Made for Purposes of Medical Diagnosis or Treatment
Based on the premise that people won't lie to their doctors. Factors include:
- must be made for getting treatment
- must describe or relate to medical history or past or present symptoms, pain, or sensations.
- must be reasonably pertinent to diagnosis or treatment
- statements of guilt or fault are not admissible because they are not necessary for treatment and don't fall under the exception - fault could come in if identifying person would affect the treatment, i.e. rape victim who knows the rapist has an STD
Past Recorded Recollections
- Witness once had personal knowledge of the matter
- Witness now has insufficient recollection to enable the witness to testify fully and accurately
- the memorandum or record is shown to have been made or adopted by the witness when the matter was fresh in the witness' memory
- the memo or record is shown to reflect that knowledge correctly
- different from refreshing the memory; here the entire document is read into evidence by the witness, there the witness is given the document to briefly review before returning to the examining attorney and then continuing with questioning
State v Moen
Lady whose son-in-law was crazy sought treatment from her doctor for depression and anxiety caused by her crazy son-in-law who lived with her.
Records of Regularly Conducted Activity
- Evidence must be in a memo, report, or data compilation in any form
- Evidence must be proffered by a witness who is the custodian or other qualified witness
- Must have been kept in the course of a regularly conducted business activity

Any indicia of unreliability will prevent a piece of evidence from being admitted - records made in contemplation of litigation.
- must have been made at or near the time of the acts
- made as part of the regular practice of the business activity
- must have been kept in the course of a regularly conducted business activity
Absence of Entry of Records Kept in Accordance
The lack of a record may be a record. When something is not recorded that would normally be recorded, then the non-recording may be offered to prove the non-occurrence or non-existence of the matter and constitutes a hearsay exception.
Public Records
Record or statement of public office or agency
JAG report on an investigation of a military plane crash. Factors included:
- timeliness of the investigation
- investigator's skill or experience
- whether a hearing was held
- possible bias when the report was prepared
Rule 804 - Exceptions - When the Declarant is Unavailable
Only apply when the declarant is unavailable. Used as a last resort to get the evidence in.
- Privilege
- Refuses to testify despite a court order
- Doesn't remember
- Illness or death
- Absent and the proponent has been unable to procure attendance - usually must show that they did everything they could to find the witness
Categories of 804 Exceptions
1. Former testimony
2. Statement was made under belief of impending death
3. Statement against one's own interest
4. Statement of personal or family history
5. Forfeiture by wrongdoing
Former Testimony
Witness is unavailable. Testimony was given in a prior proceeding or deposition and the party against whom the evidence is now offered must have had an opportunity and similar motive to develop the testimony through either direct, cross, or redirect examination
Statement Made in Belief of Impending Death
- Witness is unavaliable
- In the criminal realm, only applies in homicide cases
- In the civil realm, applies across the board
- Statement must concern the cause or circumstances of impending death
- The declarant must believe death is imminent when making the statement
Statement Against Interest
- Witness must be unavailable
- Witness made a statement that when looked at objectively would cost the declarant money, property, or subject them to liability.

If in a criminal case and being used by the defendant, there are additional requirements:
- if the statement is one which would expose the declarant to criminal liability and
- the statement is being used to exculpate the accused
- the statement must be corroborated to prove the declarant is not just taking the fall for someone else
Statement of Personal or Family History
Permits statement where the declarant is unavailable in specific situations related to declarant's personal or family history
Forfeiture by Wrongdoing
If the party is responsible for the unavailability of a witness, they don't get to benefit from that unavailability by using a hearsay exception
Rule 807 - The Residual Exception
A mechanism through which otherwise inadmissible evidence may be admitted without meeting a specific hearsay exception. Such evidence may be admitted if it meets the following criteria:
- reliability
- materiality
- probative
- serves the interests of justice
Cannot use just because you can't quite get one of the others to fit.
Witness Competency
A fact witness is someone who testifies as to what she saw or otherwise perceived about the events underlying a case. Rule 601 presumes all witnesses are competent to testify and rules 602 and 603 require testifying fact witnesses to have personal knowledge of the facts and be willing to take an oath or affirmation to tell the truth.
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.
US v Roach
Robbers and the drug addicted girlfriend. In general:
- appellate courts will seldom overturn a trial court's competency determination
- when reversals do occur it is most frequently because the trial has found a witness incompetent
- generally, courts cannot order non-party witnesses to be examined by a psychiatrist, although they can condition admissibility of their testimony on such an examination. Additionally, there is great reluctance to admit expert testimony as to issues of competence or credibility
Child Witnesses
Difficult to show that a child who is 3 or younger is competent to testify. Children 4 and beyond give the trial courts more discretion as far as admitting their testimony. In general:
- child must be able to tell the difference between the truth and a lie and be able to remember and coherently narrate events.
- Congress has enacted special rules regarding child testimony in federal courts - children are competent witnesses and permits the exclusion of child testimony only for "compelling reasons" other than the age of the child. Allows a child to give live testimony in court through a closed circuit television if the trial judge finds that procedure necessary
Previously Hypnotized Witnesses
Shouldn't be excluded per se. Has to be analyzed like any other evidence for accuracy.
Rule 605 - Competency of Judge as Witness
A presiding judge may not testify as a witness at trial. A party need not preserve the issue for an appeal.
Rule 606 - Juror's Competency as Witness
At the trial, a juror can't testify as a witness before the other jurors. During an inquiry into the validity of a verdict or indictment: cannot testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on any juror's vote; or any juror's mental processes concerning the verdict or indictment.
Rule 606 Exceptions
Unless extraneous prejudicial information was improperly brought to the jury's attention; an outside influence was improperly brought to bear on any juror or a mistake was made in entering the verdict on the verdict form.
State Dead Men's Statutes
Limits survivor testimony against the deceased in a case where the deceased is a party. Since the deceased doesn't have a voice to combat the survivor's voice, the law will silence the survivor. usually it prohibits the testimony of a party or interested witness concerning any tort, contract, transaction, or communication with a decedent even if relevant to the lawsuit.
Oath or Affirmation
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
Rule 602 - Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.
- low threshold - testimony should not be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the ability and opportunity to perceive the event that he testified about. Absolute certainty is not required. Broad general recollection is permissible.
Reasonable Inferences
Personal knowledge may include reasonable inferences but those inferences must be grounded in observation or other first-hand personal experience.
Rule 611 - Mode and Order of Examining Witnesses and Presenting Evidence
Court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment. Cross should not go beyond the scope of direct and matters re credibility of the witness.
Leading Questions
Leading question should not be used on direct except as necessary to develop the witness's testimony. Leading questions are allowed on cross and with hostile witnesses, adverse parties, or witnesses identified with adverse parties
Witness's credibility may be attacked by asking questions that relate to four areas: the witness's perception, memory, communication of the story, and their own truthfulness
A witness's credibility may be undermined by casting doubt on the witness's ability to perceive what he claims to have witnessed.
If a witness has difficulty remembering an incident or a particular set of circumstances, that witness's credibility is called into question. Although the witness's recollection may be refreshed under 612, the very fact that the witness's recollection of events needs refreshing raises concern about the reliability of the testimony.
Even if a witness has adequately perceived and can sufficiently recall events, she may not be able to explain or effectively communicate them. in addition, a witness's story may not make sense, or may be contradictory, logically impossible, or implausible
Rule 612 - Writing Used to Refresh Memory
A writing may be used to refresh a witness's memory. The proponent of the evidence must show the writing to opposing counsel and wait for an objection. If there is no objection or all are overruled, the proponent then shows the writing to the witness and asks her to read it to herself. The proponent takes the writing back. If the writing successfully jogs the witness;s memory, the witness then testifies from the refreshed memory. If not, the proponent usually tries to get the writing itself in. Often under 803(5).
Rule 607 - Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness's credibility.
Evidence to enhance a witness's credibility cannot be offered unless the witness's credibility has been attacked.
Impeaching a Witness's Character for Honesty
Rules 608 and 609 provide three ways in which to attack a testifying witness's character for honesty:
1. By offering a second witness to testify that the first witness has a dishonest reputation in the community
2. By putting a second witness on the stand to testify that in her opinion, the first witness is dishonest
3. By asking the testifying witness about his specific acts of dishonesty
Rule 608 - Witness's Character for Truthfulness or Untruthfulness - Reputation or Opinion Evidence
A witness's credibility can be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or by testimony in the form of an opinion about the witness's character. Evidence supporting the witness's truthfulness can only be admitted after their character has been attacked.
Rule 608 - Witness's Character for Truthfulness or Untruthfulness - Specific Instances of Conduct
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. You can ask about specific instances if they are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness being cross-examined has testified about.
Rule 608(a)
In order to offer reputation evidence, a party must establish that the character witness is qualified by having an acquaintance with the witness, his community, and the circles in which he has moved as to speak with authority of the terms in which generally the witness is regarded.
Rule 608(b)
Testifying witness may be crossed with the witness's own specific acts of dishonesty by allowing a cross examiner to question the witness directly about the act, regardless of whether or not they resulted in conviction. Trial judge has discretion to determine whether the acts are sufficiently probative of dishonesty to be admissible. If the witness denies dishonest acts, the questioner must take the witness's answer and cannot bring in extrinsic evidence to refute the denial.
Rule 609 - Impeachment by Evidence of a Criminal Conviction
Crimes are divided into two categories: crimes punishable by death or imprisonment for more than one year and crimes whose elements require proof or admission of an act of dishonesty or false statement. For crimes punishable by death or imprisonment for more than a year, following applies:
- Judge must balance the convictions probative value for proving dishonesty against its unfair prejudice
- To impeach a witness other than a criminal defendant, the conviction's probative value for dishonesty must not be substantially outweighed by the conviction's unfair prejudice
- To impeach a criminal defendant, the conviction's probative value for showing dishonesty must outweigh the conviction's unfair prejudice to the defendant - weighted in favor of admissibility for witnesses other than criminal defendants and in favor of exclusion for defendants
Factors for Using Prior Convictions to Impeach
1. The impeachment value of the prior crime - robberies, rapes, murders, arsons, have low probative value for showing untruthfulness. Embezzlement, fraud, perjury, false pretenses, etc. have high probative value for showing untruthfulness
2. The remoteness of the crime
3. The degree the which the witness's credibility is at issue in the case. The more essential the credibility is to a party's case, the more likely the conviction will be admitted.
4. The importance of the criminal defendant's testimony. The decision to testify may rely on whether or not the prosecution can impeach him with a prior conviction.
5. The similarity between the crime for which the defendant was convicted and with which he is being charged.
Rule 613 - Witness's Prior Statement
When examining a witness about the witness's prior statement, you don't have to show it or disclose its contents to the witness but the party must, on request show it or disclose it to an adverse party's attorney. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about or if justice so requires.
Extrinsic Evidence
May be used if a witness denies prior convictions, prior inconsistent statements on a material issue or bias.
Rule 701 - Opinion Testimony by a Lay Witness
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: rationally based on the witness's perception; helpful to clearly understand the witness's testimony or to determine a fact in issue; and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Rule 702 - Testimony by an Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the for of an opinion or otherwise if:
- the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a face in issue:
- the testimony is based on sufficient facts or data
- the testimony is the product of reliable principles and methods
- the expert has reliably applied the principles and methods to the facts of the case.
Three Questions Regarding Experts
1. Who - Expert Qualifications - Knowledge, skill, and experience. An expert doesn't have to have a degree or certification to vibe an expert. Only has to be able to assist the trier of fact.
2. What - Field of Expertise - Precisely; "expert in the field of water heater testing"
3. How - Methodology - How does the expert know what they know?
Two Parts to an Expert's Testimony
1. Testimony about their qualifications
2. Expert's opinions after they've been admitted.
Dauber Factors/Reliability of Expert Testimony
Factors include:
1. Whether their information has been or can be tested
2. Subjected to peer review and publication
3. It is known or there's a potential to know the rate of error
4. Existence of maintenance standards and controls
5. Whether the technique or theory has ben generally accepted in the scientific community
Rule 703 - Basis of Opinion Testimony by Experts
The data and facts relied on by an expert to form their opinion doesn't have to be admissible as long as experts in that particular field would reasonably rely on those kinds of acts or data in forming an opinion on the subject. If you want to disclose the data to the jury, you have to do a reverse balancing test. The facts can be disclosed only if their probative value in helping the jury evaluate the opinion substantially outweighs the prejudicial effect. Basically, you can get in the data and facts even if they are inadmissible. If the probative value doesn't substantially outweigh the prejudicial effect, the opinion still comes in, just not the data.
Rule 704 - Opinion on Ultimate Issue
Not automatically objectionable just because it embraces an ultimate issue. Except 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.
Rule 705 - Disclosure of Facts or Data Underlying Expert
An expert opinion may be given even though the expert does not first disclose the facts or data underlying the opinion. Expert may have to disclose if the court requires it or if requested to on cross.
Rule 706 - Court Appointed Experts
The court can appoint neutral experts for either party or both parties.
Rule 501 - Privileges
In a civil case state law governs privileges if statue law supplies the rule of decision. The two main privileges are attorney/client and marriage.
Client has the privilege but it may be claimed on the client's behalf. Includes support staff. Run into trouble with third parties. If that's the case, look at what the 3rd party is doing. Just sitting and listening for experience, no privilege, actively working on the case, privileged. Privilege is waived by disclosure to third party.
Upjohn Co v US
Corporate client factors:
- Did the communication take place between the employee and corporate counsel at the direction of corporate counsel in order to secure legal advice?
- Were the employees so informed and told that the communications were confidential?
- Were the communications within the scope of the employee's duties?
Work Product
Cannot have access to things prepared by an attorney in anticipation of litigation unless OC can show a "substantial need" and that the seeking party can't get it without undue hardship
Crime Fraud Exception
If the client communication is to enable client to commit crime or fraud the privilege is waived.
Spousal Privilege
Adverse testimonial privilege
- only in criminal cases
- spouse can refuse to testify against spouse as to any matter
- only witness spouse alone has the privilege to not be forced to testify
- have to be married at the time of trial
Marital Communication Privilege
Privilege for communication made between spouses during marriage
- both civil and criminal cases
- can be defeated if purpose of the spouse's communication is to commit fraud or crime
- protects statements not facts
- statements must have been made during the marriage
- doesn't apply in domestic assault or child abuse cases
Fungible items - have to establish chain of custody
Unique items - don't have to establish chain of custody. Short breaks in custody go to weight and not admissibility. Longer breaks are weightier.
Rule 901
Produce sufficient evidence that item is what you say it is. Examples:
- testimony of a witness with knowledge
- nonexpert opinion on handwriting
- comparison by an expert witness or the trier of fact
- distinctive characteristics and the like
- opinion about a voice
- evidence about phone conversations
- evidence about public records
Rule 901 Requirements
1. Authentication is a condition precedent to admissibility
2. Condition is satisfied by evidence which supports the finding
3. Finding must be that the matter in question is what proponent claims it to be
Differences in Balancing Tests
403 - Relevancy - probative value is substantially outweighed by prejudicial effect.
412 - Rape Shield - probative value substantially outweighs the prejudicial effect.
609 - Prior Convictions - probative value outweighs the prejudicial effect