EVIDENCE Outline

EVIDENCE | 4 Law School 8/26/19, 11)32 PM
EVIDENCE
EVIDENCE
I. Structure of the Trial and Presentation of Evidence
a. Structure of the Trial-the FRE has not codified the structure.
1st Stage: Plaintiffʼs Case in Chief-the plaintiff must present sufficient

evidence from which a reasonable jury could find that the plaintiff has
proven all of the elements of the claim(s) on which its Cause of Action is
based, (prima facie standard).
-the Defendant can test whether the plaintiff met its burden by Motion for
Directed Verdict. If granted case over, Df wins.
2nd Stage: Defendantʼs Case in Chief-(this stage is optional, that is the Df

can elect to submit the case as presented to the trier of fact for
determination or proceed with its case in chief). Three primary forms:
1) Defendant may offer evidence to disprove the facts the Plʼs witnesses
attempted to establish; or
2) Defendant can present evidence to establish an affirmative defense; or
3) Defendant can offer evidence that attacks the credibility of the Plʼs
witnesses.
3rd Stage: Plaintiffʼs Rebuttal– the Pl has the opportunity to respond to

any affirmative defenses, reinforce its case relative to those issues/facts
being contested by the Df.
4th Stage: Defendantʼs Rejoinder-the defendant has the opportunity to

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respond to any additional facts/issues raised by Plʼs rebuttal.
b. Mode and Order of Presentation and Interrogation
FRE 611(a): The court shall exercise reasonable control over the mode
and order of interrogation of witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the truth; (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.
1. Presentation of Testimony –during each stage of the trial, each side will
present evidence through the testimony of witnesses, of which that
presentation is likewise in stages:
i. Direct Examination -initial presentation of witness by the party who

called the witness. The proponent of the witness, subject to the FRE, can
inquire about firsthand information the witness possesses related to any of
the claims or defenses raised in the COA, and facts related to credibility of
any witness.
ii. Cross Examination –the opposing party can test a witnesses credibility
and the reliability of the information a witness provided.
*FRE 611(b) limits the scope of Cross Examination.
*Most jurisdictions limit the scope of cross examination queries to the

issues the proponent of the witness raised directly or by implication during
Direct Examination.
A. Scope of Cross Examination
FRE 611(b) Cross Examination should be limited to the subject matter of

the direct examination and matter affecting the credibility of the

witness. The court may, in the exercise of discretion, permit inquiry

into additional matters as if on direct examination.
*The exploration of facts relevant to the witnessʼ credibility is always

appropriate on cross examination, because by the presentation of a witness
automatically places that personʼs credibility at issue.
iii. Re-direct Examination–If opposition is successful in attacking credibility

and reliability, and that witness was not is given an opportunity to explain
during cross, the proponent may elicit an explanation during re-direct.
iv. Re-cross Examination–is the final phase of examination, where

opposition is given another opportunity to test any new information that the
proponent may have brought out during direct.
2. Elicitation of Testimony
A. Competency of Witnesses
Common law testimonial disqualifications for witnesses have been

eliminated except for incompetency of witness due to mental disease or
immaturity, and serving as judge or juror in the trial where the testimony is
sought. The presumption is that everyone is competent.
FRE 601: Every person is competent to be a witness except as

otherwise provided in these rules. However, in civil actions and
proceedings, with respect to an element of a claim or defense as to
which State law supplies the rule of decision, the competency of a
witness shall be determined in accordance with State law.
i. United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982), a witness is
competent unless shown not to have “personal knowledge of the matter
about which he is to testify [required by FRE 602], that he does not have
the capacity to recall, or that he does not understand the duty to testify
[pursuant to FRE 603]."
ii. Dead Man Statutes–intended to prevent fraudulent claims against

estates of the deceased. Most states have done away with them, but
some states modified so that it is inapplicable if the deceasedʼs
communication is corroborated, and others limit the rule to oral
communications.
B. Competency of Judge
FRE 605: The presiding judge at the trial may not testify in that trial as a
witness. No objection need be made to preserve the point.
C. Competency of Juror
FRE 606(a) At trial: A member of the jury may not testify as a witness
before that jury in the trial of the case in which he is sitting as a juror. If
he is called so to testify, the opposing party shall be afforded the
opportunity to object out of the presence of the jury.
FRE 606(b) Inquiry into validity of verdict or indictment: Upon an inquiry

into the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the juryʼs
deliberations or to the effect of anything upon his or any other jurorʼs
mind or emotions as influencing him to assent to or dissent from the
verdict or indictment or concerning his mental processes in connection
therewith, except that a juror may testify on the question whether
extraneous prejudicial information was improperly brought to the juryʼs
attention or whether any outside influence was improperly brought to
bear upon any juror. Nor may the jurorʼs affidavit or evidence of any
statement by the juror concerning a matter about which the juror

would be precluded from testifying be received for these purposes.
D. Personal Knowledge
Only if the witness has personal, firsthand knowledge of facts relevant to

the COA may the opposition test the reliability of information elicited by the
proponent on direct.
FRE 602: A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witnessʼ own testimony.
This rule is subject to the provisions of FRE 703, relating to opinion
testimony by expert witnesses.
*Expert witness and admission by party opponents are excluded from the
firsthand knowledge requirement.
E. Questions Calling for Specific Answers
It is the partyʼs responsibility to object to questions that call for inadmissible

testimony. Courts at common law generally required questions eliciting
testimony to be focused, calling for specific and limited answers. FRE 611(a)
relaxes the specific question and answer requirement.
F. Leading Questions
Leading questions suggest the answer the questioner seeks. They are
objectionable because they allow the witness to accommodate a partyʼs
interest with whom they are aligned.
i. ‘Suggestivenessʼ is gauged by the judge, who has discretion in ruling on

the objection, and an appellate court will overturn only on arbitrary abuse of

that discretion.
*The central issue is whether the question propounded was an inquiry

through which substantive information was being elicited or an assertion of
fact for which confirmation was sought.
ii. Loaded Questions–assume the truth of unproven facts, and are

prohibited because they are too suggestive.
G. Exceptions to Leading Question Prohibition
Courts will allow leading questions where the consequences of leading

questions are not significant and the benefits, in terms of efficiency, are
great, or where there is a need for leading questions to develop the
testimony properly.
i. Cross-examination–based on reduced risk, efficiency, and the possibly

an element of need; cross examination by a party with whom a witness is
not aligned in interest with creates a situation where leading questions may
be allowed.
ii. During an examination by a party with whom the witness is aligned,

the party may use leading questions in addressing preliminary matters
or undisputed facts.
iii. Status of Witness
a. Because of the witnessʼ age, mental infirmity, or unfamiliarity with

the English language, leading questions may be allowed.
b. A witness may qualify as an expert, but may lack knowledge of the

facts that are relevant to the case, the court may allow the use of leading
questions to pose hypothetical questions in which the proponent

makes the relevant facts known by the expert.
iv. Despite the exceptions to the leading question rule, United States v.
Clinical Leasing, 982 F.2d 900 (5th Cir. 1992), ruled that the district court
did not abuse its discretion by terminating direct examination of witness
when court had warned attorney no less than seven times to refrain from
using leading questions.
FRE611(c): Leading questions should not be used on the direct

examination of a witness except as may be necessary to develop the
witnessʼ testimony. Ordinarily leading questions should be permitted
on cross-examination. When a party calls a hostile witness, an adverse
party, or witness identified with an adverse party, interrogation may be
by leading questions.
3. Presenting and Excluding Evidence
A. Qualifying and Offering Evidence–FOUNDATION
Before a party may offer any evidence, testimonial or tangible, in any of the
four stages of a trial, that party must first show that the evidence is
related to the COA. This requires the proponent to authenticate the
evidence being offered by laying out a factual foundation through
identification of the evidence and its relationship to the COA.
I. Qualification is synonymous with authentication.
a. For testimonial evidence qualification involves identifying the witness,

establishing that the testimony is based on personal knowledge of the
facts, whether the accounting of those facts are related directly or indirectly
to the incident in question or to questions of credibility.
b. Tangible evidence must be authenticated prior introduction by

establishing its relationship to the COA, whether it is factually related to the

COA (real evidence), or offered solely for its illustrative or explanatory
purposes(demonstrative). **Tangibles must be identified with a reference
mark that will be used throughout the proceedings before introduction.
c. Real evidence –all tangible evidence involved in a COA that a party

introduces as substantive proof , whether directly or circumstantially
relevant. **Real evidence must be authenticated by a sponsor witness
who has been properly qualified.
d. Direct Authentication–testimonial admissions by the party opponent

or the testimony of other witnesses with personal knowledge of the
exhibit, and its relationship to the COA.
e. Chain of Custody –during the process of authenticating real evidence, a

party or a witness must be able to trace backwards from the time it is
offered to the time of the incident.
f. Establishing a Chain of Custody is necessary in two instances:
1) If not a single person can identify the item and connect it back to a
particular event or person; or
2) If the nature of the item is such that the naked eye cannot detect its
alteration and any alteration would significantly affect its relevance.
* A Chain of Custody is not limited to real evidence, demonstrative

evidence such as a tape recording of a statement, where no one has
personal knowledge to verify what was recorded, or its accuracy
would require its proponent to establish C of C.
United States v. Howard, 679 F.2d 363, 366 (4th Cir. 1982), The chain of
custody must be authenticated prior to its admission into evidence. The
purpose of this threshold requirement is to establish that the item to be

introduced is what it purports to be. Therefore, the ultimate question is
whether the authentication testimony was sufficiently complete so as to
convince the court that it si improbable that the original item had been
exchanged with another or otherwise tampered with. Precision in
developing the chain of custody is not an ironclad requirement, and the fact
of a ‘missing link does not prevent the admission of the evidence, so long as
there is sufficient proof that the evidence is what it purports to be and has
not been altered in any material aspect.. ..Resolution of this question rests
with the sound discretion of the trial judge.
g. Demonstrative Evidence –all other tangibles other than those

involved with the COA, used to demonstrate, explain, or illustrate the
substance of testimony and other tangible evidence. *Requires
sponsoring witness prior to introduction, but its foundation only requires a
showing that the evidence sufficiently reflects and duplicates the critical
conditions that existed at the time the COA arose so that it fairly illuminates
the testimonial evidence it is offered to support.
h. If equipment is used to demonstrate or recreate, its proponent must

prove that the equipment accurately recreated or reproduced what
transpired by presenting evidence showing that the equipment was
functioning properly at the time of the recreation and the operator
used the equipment properly.
i. If the evidence is a record of something that a sponsoring witness with

personal knowledge cannot verify is accurate, then the technical accuracy
of the equipment must be established through the testimony of someone
who knows how the equipment works and who tested it at the time the
evidence was recorded.

II. Offering
Once a proponent has laid a proper foundation for the authentication, he

must then orally offer the evidence into the record by identifying the exhibit
to the court. The judge must accept the exhibit as substantive evidence
before the finder of fact can rely on it.
It is at this point that the opposition must make any objection to the
introduction of the evidence. At which point the proponent is entitled
to a ruling by the court.
B. Excluding Inadmissible Evidence
I. Necessity for objection
The court will usually enforce the rules of evidence to exclude evidence
only if the opposing party properly objects to its introduction. It is the
responsibility of the parties to enforce the rules of evidence, not the courtʼs
or judgeʼs.
II. Timeliness
A. A party must make a timely objection to the opponentʼs offers of

evidence. Failure to do so waives the objection, and the finder of fact may
use the otherwise inadmissible evidence. A timely objection occurs when
the objectionable nature of the evidence first become apparent.
i. With testimony this means after the objectionable question is posed,

but before the witness answers.
ii. With tangible evidence, objections usually are appropriate only after
the proponent has called the sponsoring witness, authenticated the
exhibit, and formally offered the exhibit.

iii. In Limine– where a party anticipates that its adversary will attempt to
introduce evidence that is so inflammatory or otherwise sensitive that
its mere mention would unfairly prejudice the jury, this device allows a
preliminary ruling on admissibility or fairness of its use.
iv. Failure to make a timely objection where required results in a waiver of

the error as a ground for appellate review, unless the error constitutes plain
error.
v. Plain errors are those that should have been obvious to the trial
judge and that had a substantial impact on the trial. See Reese v.
Mercury Marine, 793 F.2d 1416 (5th Cir. 1986).
III. Specificity
Objections must be specific in addition to timely, and requires that the

basis of the objection must be specific, whether hearsay, privilege,
violation of the best evidence rule, etc., and the proponent of the
objection must identify the evidence or which portions of it that are
allegedly inadmissible.
FRE 103 (a) Effect of erroneous ruling. Error may not be predicated upon
a ruling which admits or excludes evidence unless a substantial right of
the party is affected, and (1) Objection. In case the ruling is one
admitting evidence, a timely objection or motion to strike appears of
record, stating the specific ground of objection, if the specific ground
was not apparent from the context . . . . Once the court, at or before
trial, make a definitive ruling on the record admitting or excluding
evidence, a party need not renew an objection or offer of proof to
preserve a claim of error for appeal. But if under the courtʼs ruling
there is a condition precedent to admission or exclusion, such as the
introduction of certain testimony or the pursuit of a certain claim or
defense, no claim of error may be predicated upon the ruling unless

the condition precedent is satisfied.
(2) Offer of Proof. In case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked.
(b) Record of offer and ruling. The court may add any other or further
statement which shows that character of the evidence, the form in
which it was offered, the objection made, and the ruling thereon. It
may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the

extent practicable, so as to prevent inadmissible evidence from being
suggested to the jury by any means, such as making statements or
offers of proof or asking questions in the hearing of the jury.
IV. Offers of Proof
Where a party offers testimonial evidence by asking questions of a

witness. Each question constitutes as a formal offer of the response it
seeks. If opposition objects to the introduction of tangible evidence, the
judgeʼs decision is subject to review at the conclusion of trial, and may be
reversed only if ‘harmful errorʼ or the decision probably affected the
outcome of the trial.
i. The law requires that the proponent seeking reversal make an Offer of
Proof at the time the objection was sustained, using several different
methods insuring that the evidence is placed on the record-into the
transcript, (if testimonial), or into the collection of exhibits, (if
tangible). See United States v. Clark, 918 F.2d 843 (9th Cir. 1990)

1. Offer of Proof regarding tangible is accomplished by the proponent

handing the item to the clerk/reporter, and referring to it by exhibit
mark, announces to the court that he is offering it as proof.
2. Proffer is one method of Offering of Proof regarding oral testimony,

where the lawyer states what the witness would have stated if the
court had allowed her to answer. Another method is for the lawyer,
outside the juryʼs presence, question the witness. A third method is for the
proponent to submit the witness testimony in written form–deposition
or affidavit.
ii. Unites States v. Peak, 856 F.2d 825, 832 (7th Cir. 1988), This court does
not require that a formal offer of proof be made or that ground of error be
precisely specified . . . [I]t is enough ‘if the record shows . . . what the
substance of the proposed evidence is.ʼ
iii. When an objection is overruled, the opposing party need only make a
timely objection specifying the nature of the claim raised.
4. Division of Responsibility within the Trial
Responsibility is divided between the parties, the jury, and the judge.
A. The Finder of Fact
Either the jury or a judge, during a bench trial, is responsible for

determining whether a party has satisfied its burden of persuasion–
enough evidence to prove the facts claimed.
B. Parties
1. Satisfying Burdens of Proof

By presenting sufficient, relevant evidence to convince the finder of

facts that their claim or defense is valid under a partyʼs respective
burden of persuasion.
2. Burden of Production
The parties bear the burden of producing sufficient evidence to

establish a prima facie case–one that a reasonable jury could find that
the necessary facts have been established. If not the judge may end
the trial and direct a verdict against a party so failing.
i. At the end of the Plʼs case in chief his COA will proceed in one of three
stages:
a. If the Pl failed to meet its burden of production, then directed verdict;
b. If the burden was satisfied and a reasonable jury could differ on the
resolution, the case will proceed even if there is no immediate legal effect
for the Df;
c. If the Pl has satisfied its burden so convincingly that unless the Df

comes forward with evidence to refute, then a D verdict for the Pl.
ii. If the Df, in its case in chief attempts to refute the Plʼs claim through
an affirmative defense, the Df usually bears the same burden of
production as the Pl did on the original claim. At the end of Dfʼs case in
chief, the judge can direct a verdict for the Pl dismissing the affirmative
defense if the Df failed to satisfy its burden.
iii. If the Df meets the burden of production, (after the Pl met its initial
burden), as well as the burden of producing evidence in support of
affirmative defenses; then the case will proceed to the finder of fact
because a reasonable jury question may be raised, or directed verdict for
Df unless Pl presents additional evidence.
*The burden of producing evidence shifts to Pl on rebuttal.
3. Burden of Persuasion
Where the finder of fact cannot decide who should prevail, the law
allocates among the parties burdens of persuasion on every issue
raised in the case. The party with the burden must convince the finder
of fact that the facts support its position. If unable, then it has failed to
satisfy its burden and will lose on that issue.
i. In civil actions the degree of persuasion is by a preponderance of

evidence;
ii. Criminal cases require beyond a reasonable doubt;
iii. Most jurisdictions require a degree between preponderance, some

require clear and convincing evidence of affirmative defenses which is
between preponderance and reasonable doubt.
4. Allocating the Burden
In the majority of cases the party to whom the ultimate burden of

persuasion is assigned will also be allocated the initial burden of
production. The party with the burden of production and persuasion
will often have the initial burden of pleading–raising the issue at the
beginning of the action. Some courts may assign differing burden of
pleading and the trial burdens.
*Statutes that create a COA, often allocate the burdens of evidence

and persuasion. If the statute does not, the courts allocate the burdens.

i. Basis for allocation:
a. Assignment to the party who seeks to change the status quo, or the
party who instituted the action.
b. Probability. courts may assign to the party who relies on an

improbable fact the responsibility for establishing that fact.
c. Convenience and fairness. Courts will often relieve a party of the

burden of persuasion if imposition of the burden on that party is unfair
in light of the adversaryʼs unique access to exculpatory or inculpatory
evidence. See Summers v. Tice, 199 P.2d 1 (CA 1998); Sindell v. Abbot
Labs, 607 P.2d 924 (CA 1980); Ybarra v. Spangard, 154 P.2d 687 (CA
1944).
d. Nature of the issue. The nature will influence the allocation of the
burdens. See Santosky v. Kramer, 4555 U.S. 745 (1982), the court held that
only the standard of clear and convincing evidence strikes a fair balance
between the rights of the natural parents and the interests of the State in a
proceeding for termination of parental rights.
5. Burden of Persuasion as applied to Admissibility of Evidence
Throughout the trial another burden of persuasion is constantly imposed on

the parties relating to the admissibility of evidence by which the claims and
defenses are being proven. To establish and meet the applicable standards
for testimonial or tangible evidence, often involves factual issues beyond
what is apparent from the general nature of the evidence and from the
context in which it is being offered. That party must persuade a judge, by a
preponderance, that it has met the factual prerequisites during a evidentiary
hearing.

i. Lego v. Twomey, 404 U.S. 553 (1972), The preponderance of evidence

standard for preliminary issues of admissibility is uniformly applicable, even
to the determination of the admissibility of evidence against defendants in
criminal cases.
ii. Under the business records exception to the hearsay rule, the proponent
must prove that the records were made in the regular course of business,
as a routine matter, based on personal knowledge of the facts recorded,
and made at or near the time of the events recorded. Then the records are
deemed trustworthy and admissible unless the opponent can establish that
the source of the information recorded or the methods or circumstances of
the recordʼs preparation indicate a lack of trustworthiness. See Burdens
within Burdens at a Trial within a Trial, 23 B.C. L. Rev. 927 (1982).
C. Judge
The judgeʼs responsibilities are to determine the legal principles that will
control the COA and to supervise, through the enforcement of rules of
evidence and procedure, the partiesʼ presentation of evidence. The judge
must make factual determinations throughout the trial relative to the
applicability of the rules of evidence.
i. Under the best evidence rule, a party proving the content of a writing
must use the original writing (not a copy), at trial unless the original has
been lost or destroyed due to no serious fault of the proponent.
a. If a copy is offered and the opponent objects the judge will resolve by two
factual questions:
1) whether the original is lost or destroyed; and
2) whether the proponent is responsible for the loss or destruction.

ii. A statement against oneʼs own interest made with awareness of that fact
carries with it an assurance of reliability, because it is unlikely that the
declarant would have made the statement insincerely.
a. In determining whether the statement within the exception for

declarations against interest the judge will resolve by two factual issues:
1) whether the statement was made against the declarantʼs interests; and
2) whether the declarant was aware of this fact when uttering.
iii. Orthodox Rule: Preliminary factual issues on the admissibility of evidence

require a proponent to first present sufficient evidence to convince the
judge, by a preponderance, that each of the necessary preliminary facts are
true.
iv. Exception to Orthodox Rule. When the preliminary factual questions on

which the admissibility of evidence turned overlap the factual issues that
form the basis of the COA, the jury should decide to prevent judicial
resolution of the cause of action, except in cases which the evidence is so
insubstantial that a directed verdict otherwise would have resulted.
FRE 104 (a) Questions of admissibility generally. Preliminary questions

concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined by
the court, subject to the provisions of subdivision (b). In making it
determination it is not bound by the rules of evidence except those
with respect to privilege.
....
The only exception to this rule concern issues of conditional relevance,

which, under Rule 104(b), the presiding judge delegates to the jury after
preliminarily screening them.
II. Introduction to Relevance
a. Components of Relevance
All evidence offered must be relevant to the issues being litigated.
1. The evidence must be probative of the proposition it is offered to prove;

the evidence must logically tend to make the proposition more or less likely.
2. The standard of relevance requires the proposition that the evidence

makes more or less likely to be of consequence to the claims or defenses
raised, the credibility of witnesses who have testified, the reliability of
evidence, or the level of damages suffered.
This is referred to as a requirement of materiality, with courts considering

evidence immaterial if it has “some probative value upon an issue in the
action but of such slight value as not to be worth the time, expense and
inconvenience which the process of proving it would require." E. Morgan,
Basic Problems of Evidence p. 183 (1961).
b. Provable Propositions.
In United States v. Staggs, 553 F.2d 1073 (1977), determinations of the

propositions that are provable in a COA depend on the principles of law
brought into play through the pleadings and the courtʼs interpretation of
that law.
i. The court usually determines which propositions are provable in a COA on

the basis of substantive law that controls the rights and liabilities of the

parties. The court determines the controlling substantive principles by

considering the nature of the COA and the defenses raised in the pleadings.
ii. The credibility of all evidence is material to litigation, and therefore would
be relevant.
iii. It is not necessary that the proposition that the evidence tends to prove
be disputed, a court will consider evidence relevant and admissible so long
as the proposition to be proved is probative, or of consequence to,
something in dispute, or the proposition to be proved aids in the
understanding of the case and the resolution of factual issues.
c. Determining Probative Value
Once a proposition is provable in a COA, the court needs to determine

whether a particular piece of evidence is probative of that proposition. The
answer lies in whether there is any acceptable underlying factual premise or
intermediate proposition that connects the evidence and the ultimate
proposition to be proven (both as gen. truth and as a fact under the unique
circumstance at hand); that is, whether there is a premise that logically
allows the fact finder to draw a desirable inference from the fact proven,
based on common experiences/observations, the knowledge acquired from
them.
*The less apparent the logical connection between the evidence offered
and the proposition to be proven, the greater the burden on the proponent
to identify the underlying premises and persuade the judge of their viability
through logical analysis or scientific documentation.
i. The probative value of a piece of evidence involves a measurement of the

degree to which the evidence persuades the trier of fact that the particular
facts exists and the distance of the particular fact from the ultimate issues

of the case. The probative value of evidence generally will depend on two
factors: 1) its probative value with respect to an immediate fact; and 2) the
logical distance between the immediate fact and the ultimate issues of the
case. #1 is merely a quantification of relevance. (See page 75 text). #2 is
unimportant so long as the immediate inference and the ultimate issue are
linked.
d. Circumstantial Evidence and Probative value
The issue of probative value arises only with regard to circumstantial

evidence, because direct evidence, by its definition, is evidence that
immediately establishes the particular proposition being proven.
e. Levels of logical relevance–minimum requirement of Probative value

??????
Requiring a certain level or establishing that a probability prerequisite for a

determination of relevancy is a minority viewpoint. Engle v. United Traction,
96 NE 731 (1911), held that “a fact is admissible as the basis of an inference
only when the desired inference is a probable or natural explanation of the
fact and a more probable and natural one than the other explanations, if
any."
i. Under Engle, if followed literally, offering evidence of design to kill, an

attorney would be obligated to prove, (in order to offer evidence of the
design to kill), that it was more probable than not that A was the killer. This
would lead a reasonable mind to conclude from evidence of design alone
that a person more likely than not killed.
ii. The reliability of evidence is usually so significant that if coupled with the
inherently convincing or inflammatory nature of the evidence, or jurorʼs
inability to properly assess its value, the courts will exclude the evidence,

not b/c itʼs irrelevant but b/c the danger of unfair prejudice substantially
outweighs its probative value.
iii. When determining past facts, all evidence bearing on those facts is
relevant to the extent it reflects on the probability those facts were true or
were not true. Evidence of mathematical probability and statistical
projections provide a means of understanding and evaluating the
substantive evidence presented in a case. They provide no substantive
basis on which the disputed issues can be resolved. * See Statistical–
Probability Evidence and the Appearance of Justice, 103 Harv. L. Rev. 530
(1989).
iv. People v. Collins, 438 P.2d 33 (1968), the court explained that the
probative value of such evidence is dependent on the accuracy of the
factual variables employed in the computation as well as the probabilities
assigned to each of them, the relationship of those variables to one another
(whether independent of each other), and the means by which the
probability is computed. A proponent should make a threshold
demonstration of reliability to the court to avoid exclusion because of the
potential for prejudice far outweighing the probative value.
v. However, in rape case courts have allowed the introduction of statistical

evidence on the percentage of the male population that possesses the
same blood type or seminal characteristics as a defendant, see U.S. v.
Gwaltney, 790 F2d 1378 (9th Cir.1986). As a result courts are careful to
disallow the use of statistics as a means of assigning a number to the
probability of guilt or innocence.
vi. Misuse of statistical evidence by attorneys results from 1) faulty selection

of unqualified expert witnesses, inadequate explanations to the experts of
the kind of statistical evidence needed, and misperceptions of the expertʼs

advice or findings. See Miller, Facts, Expert Facts, and Statistics . .

.Methods in Litigation, 40 Rutgers L. Rev. 101, 106 (1987), for a breakdown
of three basis methodologies used to develop statistical evidence for
litigation: descriptive, experimental, and quasi-experimental (including
mathematical model applications).
vii. Mathematical probability evidence has been commonly used in litigation

in which the intent to discriminate is at issue. See Castanedo v. Partida, 430
U.S. 492 (1977); Sims v. Georgia, 389 U.S. 404 (1967); and International
Teamsters v. U.S., 431 U.S. 324 (1977)..
f. Defining Relevant Evidence
FRE 401: Relevant evidence means evidence having any tendency to

make the existence of any fact that is of consequence to the
determination of the action more probable or less probable that it
would be without the evidence.
i. “Any tendency" dispels any notion that the concept of relevance requires
that the evidence establish a fact or proposition by any level of
persuasiveness; the Rule does not require that every piece of evidence be
conclusive of a proposition at issue at the trial. FRE 401 distinguishes
questions of admissibility and of the sufficiency of the evidence.
FRE 402: All relevant evidence is admissible, except as otherwise

provided by the Constitution of the United States, by Act of Congress,
by these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not relevant is not
admissible.
i. FRE 402 allows relevant evidence to be excluded only if an exclusionary

rule has been codified in the Federal Rules of Evidence or adopted by either

Congress or the Supreme Court or is compelled by the Constitution. It does

not recognize the common-law power of courts to develop new
exclusionary rules.
g. Relationship to other Rules
Preliminary Questions: Like all other issues of admissibility, the presiding

judge determines the
relevance of evidence by a preponderance of evidence standard. This is the

orthodox approach to the resolution of preliminary factual questions on
which admissibility of the evidence depends. If the evidence is not
probative of the proposition it is offered to prove nor related to a
proposition of consequence in the litigation, the judge will find it irrelevant,
and exclude it from the jury. Evidence need only TEND to make a
proposition more or less likely. A conditional relevance issue arises when
evidence of fact A is relevant, but only if the proponent first has established
fact B. Most courts minimize the number of factual issues unnecessarily
taken from the jury by giving the conditional relevance issue to the jury after
screening the evidence to determine whether the proponent had met its
prima facie standard of admissibility; a reasonable person could find that
the preliminary facts had been established by preponderance.
h. Related Writings or Recorded Statements
Under FRE 106 whenever a writing or recorded statement is offered into

evidence at trial, 106 gives the adverse party the right to compel the
proponent of such evidence to introduce any other writing or recorded
statement that, in fairness, ought to be considered contemporaneously.
“Rule of Completeness" establishes the right of a party to put before the
jury materials that clarify the relevance and probative value of the
adversaryʼs evidence. To lay a foundation for a rule of completeness claim,
the offeror must specify the portion of the writing or recording that is
relevant to the issue at trial and that qualifies or explains portions already
admitted. U.S. v. Sweiss, 814 F.2d 1208, 1212 (7th Cir. 1987).
Does the rule of completeness preempt everything else and permit

introduction of the otherwise inadmissible evidence, or in the alternative,
require the exclusion of the initial writing because its content cannot fairly
be placed in context?
Because Rule 106 limits its requirement of completeness to a “writing or

recorded statement: courts use Rule 611(a) to require the full introduction
of a verbal statement presented in the form of oral testimony to reflect the
statementʼs overall substance and context. i.e. “mode and order"
i. Exclusion of Relevant Evidence–Probative v. Prejudicial
Relevance is the first hurdle evidence must successfully pass. Relevance

does not ensure admissibility ; admissibility depends on the applicability of
other rules based on public policy, the reliability of the evidence, and
fairness. In response to these other rules, the trial judge has discretionary
power to exclude evidence if:
a. Its probative value is sufficiently outweighed by its cost; i.e. danger of

confusions, the evidenceʼs misleading nature, or possibility of unfair
prejudice b/c of the inflammatory character.
b. The probative value is so slight that its use will result in undue delay,
waste of time, or needless presentation of cumulative evidence.
FRE 403: Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative

evidence.
A. Scope of Rule
1. The prejudice rule presumes that the contested evidence is relevant, b/c
if irrelevant, it is inadmissible whether prejudicial, misleading, or
timewasting or not.
2. The rule first allows the exclusion of otherwise admissible evidence; it

does not permit admission of otherwise inadmissible evidence b/c the
probative value outweighs the prejudicial effect. Secondly, the exclusion of
evidence is discretionary and the rule does not compel exclusion, but if it is
found that the probative value is not outweighed by countervailing factors,
he must exclude and lacks the discretion to avoid exclusion.
3. The probative value of a piece of evidence involves a measurement of the

degree the evidence persuades the trier of fact that the particular fact
exists and the distance of the particular fact from the ultimate issues of the
case. The probative value, in general, will depend on two factors:
a. Its probative value with respect to an immediate fact; and
b. The logical distance between the immediate fact and the ultimate issues
of the case.
*the first factor is a quantification of relevance, (to be relevant the evidence

must tend to render the existence of some material fact more or less likely
than it would without the introduction of the evidence); the second is of no
importance so long as the immediate inference and the ultimate fact are
logically linked.
Both relevance and logical distance should be considered for three reasons:
i. By considering the element of logical distance between the fact and the
ultimate issue the judge acquires a better sense of the actual utility of the
evidence.
ii. An initial determination of both will facilitate a finding that the beneficial
effects of admission are outweighed by the prejudicial effects.
iii. The rule itself contemplates a determination of both relevance and log.
dist.
4. Balancing probative value and prejudicial effects is done primarily in two

groups:
a. The probative value must be ‘substantially outweighedʼ by the prejudicial

effects, indicating a preference for more than a mere imbalance of equities.
b. The probative value merely need be ‘outweighedʼ by the prejudicial

effect.
5. The term prejudice does not include all evidence that hurts a case. There
are at least three themes of prejudice:
a. Prejudicial evidence that seeks to irrationally affect the juryʼs perception

of the party, favorably or unfavorably.
b. Evidence of past crimes, bad acts, or association with certain groups to

damage the position of a party.
c. Attempts to excite the juryʼs rage or its lust for vengeance.
6. “Confusion of the issues" as a prejudicial rule consideration, addresses

the doctrine of limited admissibility and the use of evidence from, or the
results of, other trials. Confusion of the issues is not always the same as

prejudice.
7. Evidence that will be given too much weigh by the jury, although neither
prejudicial or involving ancillary issues, will be excluded because it of its
likelihood of misleading the jury.
* The rule, FRE 403, is simply invoked, (a party does not have to identify
which of the three are applicable), and the trial court is bound to decide
under all of them.
8. “Considerations of undue delay, waste of time, or needless presentation

of cumulative evidence are criteria that can be used to limit the number of
witnesses, restrict the amount of questioning, halt the amount of evidence,
or to achieve economies of trial or crowded calendars.
NOTE: The assessment of probative value and the balance of that

value against potential prejudice is highly subjective, which require
judgments influenced by the unique facts/circumstances of each case.
B. Liability Insurance
FRE 401 : Evidence that a person was or was not insured against
liability is not admissible upon THE ISSUE WHETHER THE PERSON
ACTED NEGLIGENTLY OR OTHERWISE WRONGFULLY. This does not
require the exclusion of evidence of insurance against liability when
offered for another purpose, such as proof of agency, ownership, or
control, or bias or prejudice of a witness.
1. Evidence of liability insurance is limited to instances in which the

proponent offers it on the issue of fault. If offered for the other purposes
stated the prohibition is inapplicable. To minimize the risk of misuse after
evidence of liability insurance has been admitted on an issue other than neg

or wrongful conduct, request a limiting instruction under FRE 105. Failure to

do so waives the right to complain on an appeal.
C. Authentication and Identification
A necessary factual condition to the logical relevance of all tangible

evidence is its authentication and identification. Unless it is established that
the evidence is as it is claimed, the evidence has not relationship to the
COA and is probative of nothing.
1. FRE 901 provides a list of ten illustrations of how a proponent can

authenticate a piece of evidence through direct and circumstantial proof.
That rule does not limit or exclude other methods of authentication.
2. FRE 902 identifies ten kinds of documents that courts will consider self-
authenticating.
III. CHARACTER EVIDENCE
Courts have modified the general relevancy requirement based on public

policy concerns and unfair prejudice, and made the rules applicable to
particular kinds of evidence to exclude that evidence no matter how
probative. ex: character and bad habit evidence, evidence of similar
happenings, evidence of subsequent repairs, and evidence of offers of
compromise.
A. Use and Admissibility based on Context
A party may use character evidence in a number of different contexts where

the rules of admissibility differ. Its admissibility is based on several factors:
1) the kind of proceeding (civil or criminal), 2) the purpose of offering, 3)
which party is seeking introduction, 4) what stage of the proceeding the
evidence is being offered.
B. Common Law Usage
1. Using Character Evidence to prove an element of a Claim, Defense,

or Charge.
Character evidence is admissible in both civil and criminal actions where an

individualʼs character is an element of the claim, charge or defense, and no
limitation on the form it must take is imposed. Evidence of reputation,
other personʼs opinion concerning character, and prior specific acts
are all admissible, and may be offered at any time during the trial.
a. Cases where character constitutes an element include defamation; where

the defense of truth, and actions involving negligent entrustment, or
seduction.
2. Using Character Evidence to Establish Propensity from which

Conduct can be Inferred.
a. Use of Propensity is Prohibited Generally
Courts have generally forbidden the introduction of a personʼs reputation,

standing in the eyes of a fellow citizen, or past conduct as proof that the
person acted, or failed to act, in a particular manner, on the occasion in
question, at trial.
i. Because no personʼs behavior is uniformly bad or good, and the

information on which we rely in drawing conclusions about an individualʼs
propensity to act in a certain way is often incomplete, any inference of a
propensity are often inaccurate.
ii. There is the distinct possibility that the jury will accord too much weight
to character evidence alone, and allow its resolution of the issues to be
influenced more by a personʼs character than by the factual evidence.
iii. Introducing issues of character evidence can considerably lengthen the

trial and unfairly surprise the party against whom the evidence is being
offered.
iv. The courts exclude character evidence if it is offered solely to prove that
a party acted in conformity with a character trait, only in civil actions. In
criminal cases the courts allow certain usages of character evidence to
establish a propensity to act in a specific manner.
b. THE Exception: Character evidence of criminal defendant or victim
Courts will allow a criminal Df to initiate the use of character evidence

about either the victim or himself, IF the court has found such
evidence relevant to the charge or defense being asserted.
i. If the Df initiates the use, the court will limit the kind of character evidence
the Df may offer as to the reputation of the victim or Df, and will not admit
evidence of either personal opinions of a personʼs character or specific acts
that reflect on character.
-One, cts believe reputation evidence is more reliable b/c it reflects the
collective judgment of the community derived from a history of conduct;
and
-Two, reputation evidence involves less time and confusion for the jury b/c it
entail less exploration.
ii. A witness giving reputation testimony must be familiar with those who
know the Df or victim and have basis for assessing the collective
community judgment.
-Once qualified the ct will limit the testimony to the reputation trait that is
most pertinent to the charge or defense.
iii. Once introduced the prosecution has the opportunity to respond with
rebuttal reputation testimony addressed to the same character trait.
*Note: To protect criminal defendants from potential abuse by the

prosecution asking “do you know" or “have you heard" questions that
have no basis in fact, court have imposed two safeguards. 1) the
interrogator must have a good faith basis in fact for asking about the
incident, and 2) the incident inquired about must be relevant to the
character trait at issue. Good faith basis in fact does not mean the
incident must be proven as fact, only that if the court inquired, the
prosecutor must have a reason for believing the incident actually
occurred.
iv. The nature of the charge defines the limits of the character traits the
defendant can place in issue, and the defense should be wary about
examining reputation witnesses b/c too broad an inquiry will open the range
of prior acts that the prosecution may inquire.
c. Propensity Evidence–Character of Witness for Truth and Veracity
The law construes the character of each witness as to truth and veracity as
being subject to examination by either party. The reason for the difference
between the cts treatment of evidence of a witnessʼ character and the
partiesʼ character is the enhanced importance and need for character
evidence concerning a witnessʼ credibility and the lack of comparably
probative evidence of credibility.
i. The cross examiner may ask the witness about prior specific conduct that
reflects the witnessʼ character trait of truth and veracity;
ii. If the witness denies having committed those specific acts, the cross

examiner may NOT, by extrinsic evidence, prove the witness did commit
them, UNLESS those acts have resulted in convictions.
iii. A party may call character witnesses to testify to the reputation of any
preceding witness for character trait of truth and veracity, and those
witnesses may only testify as to the reputation of the previous witnesses.
3. Prior Act Evidence Offered for Purpose other than Propensity.
The courts have consistently admitted evidence of prior specific instances

of conduct if offered for a purpose not related to a personʼs propensity, ex:
to prove motive, intent, absence of mistake or accident, common scheme or
design, and identity.
a. The courts establish two requirements:
i. The proponent has to establish both the occurrence of the prior act and
the defendantʼs participation in it by clear and convincing evidence; and
ii. The proponent has to demonstrate that the probative value of and need
for the evidence outweighs its high potential for prejudice to the Df and the
delay and confusion associated with its use.
C. FRE 404 and 405
1. FRE 404: Character Evidence Not Admissible to Prove Conduct;

Exceptions; Other Crimes. (a) Character evidence generally. Evidence of
a personʼs character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular
occasion, EXCEPT:
(1)Character of the accused. Evidence of a pertinent trait of character

offered by an accused, or by the prosecution to rebut the same, or if

evidence of a trait of character of the victim of the crime is offered by

the accused and admitted under subdivision (a)(2), evidence of a
pertinent trait of character of the accused offered by the prosecution;
(2) Character of the victim. Evidence of a pertinent trait of character of

the victim of the crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of peacefulness of the
victim offered by the prosecution in a homicide case to rebut evidence
that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as

provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution
in a criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it tends to introduce at trial.
2. Rule 404(b) represents a codification of the common law, except for the
pre-trial notice requirement that was added to the rule in 1991. It delineates
the eight most common permissible uses of evidence of other wrongs or
acts. If character is an issue, in either civil or criminal, FRE 404 does not
apply because it only establishes a general rule excluding character
evidence if a party uses that evidence to establish the defendantʼs
propensity to act in a particular manner.
i. Because FRE 404 does not govern the admissibility of character

evidence if character is an issue, that evidence, although relevant and

not otherwise excluded by another rule, is admissible under FRE 402.
3. FRE 405: Methods of Proving Character.
(a) Reputation or opinion. In all cases in which evidence of character or

a trait of character of a person is admissible, proof may be made by
testimony as to reputation or by testimony in the form of an opinion.
On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait

of character of a person is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of that personʼs
conduct.
4. FRE 405 addresses the kind of evidence that a party may use to establish
character once the court determines that such evidence is admissible.
i. Under FRE 405(a) if a party introduces character evidence in a

criminal case under one of the exceptions to the general rule against
propensity evidence under FRE 404(a), that party may use either
reputation or opinion testimony. ii. FRE 405 does not allow the use of
specific act evidence to establish propensity.
5. Using Reputation and Opinion Testimony under FRE 405(a)
Under FRE 405(a) if the Df wishes to introduce character evidence into his
criminal trial, for the purpose of establishing innocence through propensity
evidence, he may do so using opinion as well as reputation testimony.
i. United States v. Curtis, 644 F.2d 263 (1981) if only reputation evidence is
elicited on direct examination, only reputation evidence may be tested on
cross.
6. Time Focus of Character Evidence: Time of Offense or Time of Trial?
Curtis established that to be relevant, reputation or opinion testimony

must focus on the time of the act charged, especially under FRE 404(a),
because its purpose is to establish the propensity of the party in the
past. If the focus is on the time after the event, the reputation or opinion
might be unfairly affected by the charge that has been made.
i. If the proponent offers the character evidence pursuant to FRE 608, to

impeach or reinforce the credibility of any witness, the temporal focus of
such truth or veracity evidence is on the time of the trial, when the witness
has testified and has asked the jury to accept him as a credible person.
7. Civil Cases Involving Criminal Conduct.
Although there is a general prohibition on the use of propensity evidence in

civil cases, courts at common law occasionally allow the civil defendant to
introduce such evidence if the action involved an allegation of criminal
conduct.
i. Crumpton v. Confederation Life Insurance Co., 672 F.2d 1248 (1982), The
admission of evidence of character depends on the purpose for which that
evidence is offered. Generally, itʼs offered for two purposes: 1) when a
personʼs particular character trait is an operative fact and is one of the
ultimate issues; or 2) to prove that a person acted in line with his character
on a particular occasion. When used for the 1st purpose, it is not within the
scope of FRE 404. FRE 404(a) governs the admission of character evidence
when used for the circumstantial purpose and generally excludes admission
of such evidence UNLESS within three exceptions. These exceptions are
formulated in terms of whose character is being offered, and which allow

the admission of character evidence to prove action in conformity with

character of the accused, a victim in certain circumstances, and a witness.
8. Permissible Uses of Character Evidence of Prior Bad Acts under FRE

404(b)
i. United States v. Beechum, 582 F.2d 898 (1978), Where the Df testified to
controvert an element of the govtʼs case, such as intent, extrinsic offense
evidence is highly relevant. Two step approach: 1) the extrinsic offense
evidence must be determined to be relevant to an issue other than
character; 2) the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet FRE 403ʼs
requirements. Where the evidence sought to be introduced is an extrinsic
offense, its relevance is a function of its similarity to the offense charged,
which means that in determining relevance ‘a fact is similar to another only
when the common characteristic is the significant one for the purpose of
the inquiry at hand. Once it is determined that the extrinsic offense requires
the same intent as the charged offense and the jury (FRE 104(b)), could find
that the Df committed the extrinsic offense, the evid. satisfies the first step
of FRE 404(b). The next step is determining prob vs prej. “substantially
outweighed" by assessing all of the circumstances surrounding the extrinsic
offense.
ii. Problems with the decision in Beechum
a. The majority believed that FRE 403 requires exclusion only if the extrinsic
evidence “substantially outweighed" its prejudicial effects;
b. The majority misinterpreted the first sentence in FRE 404(b) as being

superfluous, b/c evidence which is probative ‘solelyʼ of bad character and is
not of any relation to the charged crime or elements thereof, is inadmissible
and irrelevant under FRE 401.
c. It conflicts with FRE 609 and 608. Under 609, (which requires probable
cause conviction), if the extrinsic offense occurred more than 10 years
before the current charge, although related, the Dfʼs credibility could be
impeached only if the probative value of the prior offense substantially
outweighed its prejudicial impact on the jury, but if more recent than 10
years the test is simply probativeness vs. prejudice. Under 608, (which
requires clear and convincing), if there was no conviction for the extrinsic
offense, that evidence would be barred unless the Df opened the door on
the stand.
7. The Effect of an Acquittal on the use of prior-act evidence under FRE

404(b)
The primary issue is in determining whether the concept of collateral

estoppel is applicable. The majority of courts, state and federal, have
construed that the concept does not apply to the subsequent use of
evidence of an act as uncharged misconduct. Based on different levels of
persuasion, there is a distinction between where the commission of the
prior bad act is an ‘ultimate factʼ–a fact that is central to the subsequent
prosecution, and where it is only an ‘evidentiary factʼ–a fact that is relevant,
but not critical in proving the commission of the subsequent charge. Where
a Df was previously acquitted, he was not proven guilty by a reasonable
doubt, but that does not mean that he was not proven guilt of a lesser
included offense (by a preponderance or clear and convincing) and
therefore because those standards are that by which the prior acts must be
proved to be admissible as ‘evidentiary fact,ʼ their use is not inconsistent
with the prior judgment.
i. Dowling v. United States, 493 U.S. 342 (1990), Because a jury might
conclude the Df was the masked man who entered the home, even if they
did not believe beyond a reasonable doubt that the Df committed the crime

charged, the collateral estoppel component of the Double Jeopardy Clause

is inapposite. The burden is on the Df to show that the issue whose
relitigation he seeks to foreclose was actually decided in the first
proceeding.
8. Other Crimes, Wrongs, or Acts: Other than What?
i. In United States v. Soliman, 813 F.2d 277(9th Cir. 1987), the court held
that when all the acts proven are inextricably linked to the extent they form
part of a single criminal episode, FRE 404(b) is inapplicable.
ii. In U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992), evidence that a crack
pipe was discovered beside a firearm the Df illegally possessed as a felon,
did not violate FRE 404(b) b/c it was ‘intrinsicʼ to the offense for which he
was charged. Possession of the pipe and the firearm were both parts of a
single criminal episode involving his arrest. This type of intrinsic evidence is
not excludable under FRE 404(b).
iii. U.S. v. Ramirez, 45 F.3d 1096 (7th Cir. 1995), Evidence concerning the
chronological unfolding of events that led to an indictment, or other
circumstances surrounding the crime are not considered evidence of ‘other
actsʼ within the meaning of FRE 404(b).
9. Use of FRE 404(b) Evidence for Other Purposes
a. Other Purposes Not Limited
i. Rule 404(b) eliminates the use of prior crimes, wrongs, or acts for proving
character to show that the Df acted in conformity, but it states such
evidence may be admitted “for other purposes, such as ‘proof of intent,
motive, etc.,ʼ making it clear that the list is only an example. U.S. v. Billups,
522 F.Supp. 935, 955 (E.D. Va. 1981), (quoting U.S. v. Beechum, 582 F.2d

898, 910-11 n.13 (5th Cir. 1978)), ‘The Senate Committee Notes to 404(b)
make clear that the use of the term “may be admissible" does not mean the
court can exclude such evidence if it wishes but “may exclude it only on the
basis of those considerations set forth in Rule 403, i.e., prejudice, confusion
or waste of time." Evidence, then, is admissible if relevant to “any
purpose other than to show a mere propensity" to crime by a
defendant.
b. To Prove Predisposition
ii. Evidence of Dfʼs prior conduct is admissible to prove predisposition after

the defendant raised an entrapment defense. U.S. v. Sonntag, 684 F.2d 781
(11th Cir. 1982); and testimony that Df was a drug addict was admissible to
show Dfʼs predisposition to sell drugs, U.S. v. Salisbury, 662 F.2d 738 (11th
Cir. 1981); but in U.S. v. Porter, 709 F. Supp. 770, 779 n.4 (E.D. Mich. 1989)
the “defense of outrageous government conduct is essentially an
entrapment defense that cannot be rebutted by proof of defendantʼs
predisposition.
c. Doctrine of Chances
iii. When a Df denies guilty knowledge or presence for a particular crime,

the prosecution may employ the ‘doctrine of chances.ʼ This doctrine is a
theory of logical relevance that requiresacts that are charged and
uncharged to be very similar. It is based on the notion that ‘it is unlikely
that the Df would be repeatedly innocently involved in the similar suspicious
situations," and is used to negate a “mere non-nefarious happenstance."
Imwinkelreid, Uncharged Misconduct Evidence, § 5o25 (1984). Therefore,
the objective likelihood that the Df was NOT involved in the crime at issue is
reduced. In order to employ the doctrine, it is unnecessary that the other-
act evidence occur prior to the charged act, but merely that the act show

the repeated occurrences of similar acts within a given time period.

Reference U.S. v. Johnson, 934 F. 2d 936, 940 (8th Cir. 1991).
d. At what point during Trial may Prosecution introduce Other-Act

Evidence?
i. Courts have developed a general rule of postponing the admission of such

evidence until the conclusion of the defendantʼs case; it is then that the
court is better suited to weigh the evidenceʼs probative value and the
prosecutionʼs need for it, against the prejudice to the defendant. See U.S. v.
Bendetto, 571 F.2d 1246, 1248-49 (2nd Cir. 1978).
Note: the deferral of presentation is appropriate and fair to the prosecution

ONLY IF the prosecution offers the prior-act evidence on the issue of intent
rather than identity.
ii. United States v. Danzey, 594 F.2d 905 (1990), It was clear to the trial
judge before the case began that the only issue was the identity of the
robbers. There is no way for the Df to remove the identity issue from the
case short of admitting his participation. There is a high degree of similarity
between the robberies admitted to and the one charged here, that the other
crimes lead to the logical inference, by virtue of the combination of
common features, that a common plan or design was at the basis for all the
robberies and hence that it was the Df who committed this robbery. The
Government is permitted to introduce similar act evidence, although
relevant to identity (proof that the defendant did the criminal act), but not if
the evidence is relevant merely to show intent. At a minimum, the govt must
prove that this Df committed the crime he is on trial for, so that identity
evidence may properly constitute part of its case in chief, even if there will
be a defense case.
iii. Delaying the prosecutionʼs use of other-act evidence does not

necessarily mean the prosecution cannot mention the evidence before the
defendant has put on his case in defense. Since the prosecutor is allowed to
present an “objective summary of the evidence reasonably expected to be
produced" in his opening statements, U.S. v. Novak, 918 F.2d 107, 109 (10th
Cir. 1990), and if he had a good faith belief the evidence would be
admissible, he is allowed to mention it during opening, but this does not
allow the prosecution to refer to evidence of questionable admissibility.
Note: U.S. v. Bailey, 505 F.2d 417, 418 (D.C. Cir. 1974), the government
stands to lose nothing if it waits, while the jury may be tainted or prejudiced
against the defendant if prior, uncharged, misconduct evidence is
mentioned or introduced before the court rules on it admissibility. The trial
judge should not have made even a preliminary ruling on the admissibility of
the evidence without requiring a proffer of that evidence outside the juryʼs
presence.
e. On-the-Record Balancing of Probative Value v. Prejudice under

404(b)
i. In U.S. v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983), trial court
articulation of its probative value–prejudice inquiry is required only “when
requested by a party. In the absence of on-the-record findings in response
to such a request, the appellate court will remand, unless the factors upon
which the evaluation was made are readily apparent from the record, and
there is not substantial uncertainty about the correctness of the ruling."
Note: although explicit findings on the record are required under FRE 609,
they are not required under 404(b). See U.S. v. Braithwaite, 709 F.2d 1450
(11th Cir. 1983).
f. Pretrial Disclosures of Similar Act Evidence

i.. Congress amended FRE 404(b) to include a notice provision:
The prosecution in a criminal case shall provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such evidence it
intends to introduce at trial.
Note: the reasonableness of the form and timing is determined on a case-

by-case basis. See U.S. v. Kern, 12 F.3d 122, 124 (8th Cir. 1993).
g. Evidence of Whose Prior Acts
i. The language of 404(b) does not on its face limit its prohibition to
evidence of the defendantʼs prior acts. In U.S. v. McCourt, 925 F.2d 1229,
1231, 1235 (9th Cir. 1991), the court held that 404(b) revealed that
Congress intended to restrain the finder of fact to infer that prior bad acts
breed future bad acts. “Because 404(b) plainly proscribes other crimes
evidence of ‘a person,ʼ it cannot reasonably be construed as extending only
to ‘an accused.ʼ Both prongs of the rule apply to any person and to any
proponent. Evidence of prior criminal conduct, no matter by whom
offered, is not admissible for the purpose of proving propensity or
conforming conduct, although it may be admissible if offered for some
other relevant purpose."
D. Propensity in Sexual Assault Cases
FRE 413: Evidence of Similar Crimes in Sexual Assault Cases. (a) In a

criminal case in which the defendant is accused of an offense of sexual
assault, evidence of the defendantʼs commission of another offense or
offenses of sexual assault is admissible, and may be considered for its
bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under

this rule, the attorney for the Government shall disclose the evidence
to the defendant, including statements of witnesses or a summary of
the substance of any testimony that is expected to be offered, at least
15 days before the scheduled date of trial or at such time as the court
may allow for good cause.
(c) This rule shall not be construed to limit the admission or

consideration of evidence under any other rule.
FRE 414: Evidence of Similar Crimes in Child Molestation Cases. In a

criminal case in which a defendant is accused of an offense of child
molestation, evidence of the defendantʼs commission of another
offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under

this rule, the attorney for the Government shall disclose the evidence
to the defendant, including statements of witnesses or a summary of
the substance of any testimony that is expected to be offered, at least
15 days before the scheduled date of trial or at such time as the court
may allow for good cause.
(c) This rule shall not be construed to limit the admission or

consideration of evidence under any other rule.
FRE: 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault
or Child Molestation. (a) In a CIVIL case in which a claim for damages or
other relief is predicated on a partyʼs alleged commission of conduct
constituting an offense of sexual assault or child molestation, evidence
of that partyʼs commission of another offense or offenses of sexual
assault or child molestation is admissible and may be considered as
provided in Rule 413 and 414 of these rules.
The same fifteen day notice requirement exists of subpart (b), and also the
non-limiting of subpart (c) in both 413 and 414.
NOTE: 413, 414, 415 were passed as part of the Violent Crime Control and
Law Enforcement Act of 1994, and there are no Advisory note because
there was little public debate before they were passed. 414 has no
balancing provisions.
U.S. v. Sumner, 119 F.3d. 658 (8th Cir. 1997), the court held that FRE 414
was “unconstitutional because it allows ‘any kind of evidence to show
propensityʼ without allowing for the application of the Rule 403 balancing
test." The 2nd and 10th Circuits agreed. However, the Supreme Court, in
Green v. Bock Laundry, 490 U.S. 504 (1989), addressing whether 403
modified 609, held that 403 did not because 609 had balancing provisions
in some subsections that overrode the balancing provisions of 403.
E. Admissibility of Habit Evidence
“Habit" is the regular response of an individual to, or the customary practice

of an organization in, the context of a specific situation. The individualʼs
conduct must be highly predictable as a result of the habit in question. The
conduct must be to the point of being virtually automatic—a reflex
response to a particular stimuli. Testimony as to an individualʼs habit or an
organizationʼs custom or practice, or as to specific instances of prior
conduct from which a habit or custom can be inferred, is admissible to
prove conduct consistent with that habit or custom on a particular
occasion.
i. Character v. Habit

Character is a generalized description of a personʼs disposition, or of the

disposition in respect to a general trait, such as honesty, temperance, or
peacefulness. Habit, is more specific. It denotes a personʼs regular
response to a repeated situation.
Note: the determination of the point at which conduct becomes so regular

that evidence of it is admissible as habit calls for the trial judgeʼs reasoned
judgment.
ii. Keltner v. Ford Motor Co., 748 F.2d 1265 (8th Cir. 1984), the court
admitted evidence of the Plʼs past behavior involving the regular
consumption of a six-pack of beer four nights a week, after Ford made an
offer of proof that included the expected testimony of the investigating
officer and the attending physician, that the Pl smelled of alcohol after the
accident.
*The probative value of evidence of habit is significantly greater than that of

character propensity. The potential for prejudice from the jurorʼs emotional
reactions is substantially less.
iii. FRE 406: Habit; Routine Practice. Evidence of the habit of a person or
of the routine practice of an organization, whether corroborated or not
and regardless of the presence of eyewitnesses, is relevant to prove
that the conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.
a. 406 eliminates the requirements of corroboration and the absence of

eyewitnesses.
b. Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989), Under 406 certain

evidence is admissible if it rises to the level of habit. Habit refers to the type
of non-volitional activity that occurs with invariable regularity. It is the non-
volitional character of habit evidence that makes it probative. The conduct
at issue may not have occurred with sufficient regularity making it more
probable than not that it would be carried out in every instance or in most
instances. None of the former patients had ever observed the Dr with
another patient, and before the former patient evidence could be properly
admitted as habit evidence, the witnesses “must have some knowledge of
the practice and must demonstrate this knowledge prior to giving testimony
concerning the routine practice. Where a witness cannot demonstrate such
knowledge, he cannot testify as to the routine nature of the practice."
Laszko v. Cooper Laboratories, Inc., 114 Mich. App. 253 (1982). For the
former patientʼs testimony to be at all probative, it must show that the Dr
responded the same way with each patient as he did with the testifying
patient. The burden of establishing the habitual nature of the evidence rests
on the proponent. Former patient testimony is the type of character
evidence contemplated by 404(b), to show plan, knowledge, identity, or
absence of mistake or accident.
F. Establishing Habit or Custom
Relevancy Unraveled, 5 Kan. L. Rev. 404 (1957), Slough, Prof., establishing

an individualʼs habit or an organizationʼs custom can be accomplished by
direct testimony of persons having personal knowledge of it, stating that
such is the habit, custom, or course of dealing as they have known and
observed it. Where evidence of habit or custom is admissible, the majority
admit evidence of specific instances to prove it provided that the number
offered is sufficient to justify an inference of habit.
i. If a party is seeking to prove habit or custom through evidence of prior

conduct, the courts will be required to balance the probative value of that

evidence against the potential for confusion and delay that arises. See FRE
403, and Zucker v. Whitridge, 205 N.Y. 50, 53-4 (1912).
Note: In Weil, if the court had concluded the evidence was admissible
under 404(b), it should have considered the evidenceʼs designation under
406 as harmless error, and not abuse of discretion.
ii. Organizational custom or practice usually is the product of concerted

planning and is likely to be more stylized and regimented b/c it is the by-
product of efficiency. Courts have shown a greater willingness to receive
evidence of custom than habit. Relevancy Unravled, at 449.
iii. Because organizations act through members, employees, and agents, if

custom is admissible to prove conduct of the organization, it must be
admissible to prove the conduct of the individual who was acting for the
organization. Proof of the organizationʼs conduct through an individual is
generally permissive in civil cases, but it may not be appropriate if individual
criminal responsibility is at issue. See. U.S. v. Angelilli, 660 F.2d 23 (2nd Cir.
1981).
G. Relationship to Other Rules
1. FRE 105: Limited Admissibility. If evidence is admissible for one

purpose, but not for another, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.
Note: 105 requires the judge to give an instruction if the court admits
evidence of a prior act for a limited purpose under FRE 404(b).
2. FRE 410: Inadmissibility of Pleas, Plea Discussions and Related

Statements. Except as otherwise provided in this rule, evidence of the
following is not, in any civil or criminal proceeding, admissible against

the defendant who made the plea or was a participant in the plea
discussions:
i) a plea of guilty which was later withdrawn;
ii) a plea of nolo contendere:
iii) any statement made in the course of any proceedings under Rule 11
of FR of Criminal Procedure or comparable state procedure regarding
any of the foregoing pleas; or
iv) any statement made in the course of plea discussions with an

attorney for the prosecuting authority which do not result in a plea of
guilty or which result in a plea of guilty later withdrawn.
Note: 410, making certain pleas or statements inadmissible, does not

preclude future adversaries from using other evidence to prove the Df
committed the prior offense, if evidence of that prior offense was
admissible, ex: under 404(b) motive, intent, knowledge, common scheme
or design. See U.S. v. Wyatt, 762 F.2d 908, 911 (11th Cir. 1985).
3. FRE 412: Sex Offenses; Relevance of Victimʼs Past Behavior. (At common
law a Df claiming the defense of consent, was allowed to introduce the
victimʼs unchaste character in support of that defense).
(a) Evidence generally admissible. The following evidence is not

admissible in any civil or criminal proceeding involving alleged sexual
misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other
sexual behavior.

(2) Evidence offered to prove any alleged victimʼs sexual

predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise

admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged

victim offered to prove that a person other than the accused was the
source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged

victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional

rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or

sexual predisposition of any alleged victim is admissible if it is
otherwise admissible under these rules and its probative value
substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party. Evidence of an alleged victimʼs reputation is
admissible only if it has been placed in controversy by the alleged
victim.
Note: under 412(c), the proponent seeking admission must file a motion w/i
14 days of trial describing the evidence and its purpose, unless the court,
on good cause shown allows a different time. Said motion must be served
on all parties and the victim, or guardian, must be notified. Before admitting,
the court must hold an in camera hearing, affording the victim and parties

to attend and argue.
i. 412 applies in both civil and criminal proceedings. 412 bars evidence
relating to the alleged victimʼs sexual behavior or alleged sexual
predisposition, whether offered as substantive evidence or
impeachment, except in designated circumstances in which the
probative value of the evidence significantly outweighs the possible
harm to the victim.
ii. 412 does not apply unless the person against whom the evidence is
offered can reasonably be characterized as a “victim of alleged sexual
misconduct."
iii. 412 extends to “pattern" witnesses whose testimony about other

instances of sexual misconduct by the accused. If the case does not involve
alleged sexual misconduct, third party witnessʼ alleged sexual activities is
not within the scope of 412, but the witness may be protected by 404, 403,
and 608.
4. FRE 609(a) Impeachment by Evidence of Conviction of Crime. A

defendantʼs prior conviction that may be inadmissible under Rule
609(a) b/c it was not a felony or one involving dishonest or false
statement or b/c its prejudicial effect outweighed its probative value,
may still be admissible under FRE 404(b) for other purposes, such as
proof of intent, opportunity, and knowledge. See Huddleston v. U.S.,
485 U.S. 681 (1989), where evidence of a defendantʼs previous receipt of
stolen goods was introduced to show that his later possession of stolen
goods likely took place with knowledge they were stolen.
5. FRE 609(b) Time Limit on Use of Prior Convictions. Evidence of these

convictions is usually admissible for impeachment purposes under
FRE 609(a). 609 will generally render these convictions inadmissible if
they are over 10 years old when used solely for impeachment
purposes. But, no time limitation is placed on the use of evidence of
the acts that gave rise to those convictions if such evidence is also
admissible under 404(b). Under404(b) temporal considerations are
only a factor that weakens the probative value, and time is not by itself
dispositive under 403. See U.S. v. Rubio-Gonzales, 674 F. 2d 1067, 1075
(5th Cir. 1982).
6. FRE 702 Testimony by Experts. FRE 405(a) provides may be proven by

opinion testimony as well as reputation testimony, including both
expert and lay opinions. Under 702 opinions by experts is admissible
only if based on an adequate factual foundation. See U.S. v. Hill, 655
F.2d 512, 517 (3rd Cir. 1981).
7. If character is the proper subject of proof through reputation

evidence under 404(a) and 405, it is unclear whether that evidence
constitutes hearsay. If reputation evidence is otherwise admissible, its
hearsay character will not preclude its admission, b/c of an exception
to the hearsay rule.
FRE 803(21) Hearsay Exceptions; Availability of Declarant Immaterial. The

following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(21) Reputation as to Character. Reputation of a personʼs character

among associates or in community.
Note: Exception (21) deals only with the hearsay aspect of this kind of
evidence. Limitations upon admissibility based on other grounds will be
found in FRE 404, relevancy of character generally, and FRE 608, character

of witness.
IV. SIMILAR OCCURRENCES
Evidence of occurrences similar to the event that gave rise to the COA can
be relevant to the determination of facts in the action b/c such evidence
increases the probability that (1) the event giving rise to the COA actually
occurred; and (2) the event occurred in the way the proponent of the similar
occurrence evidence alleges. Again, b/c this type of evidence is often
relevant to material issues in litigation, courts both at the common law and
under FRE will admit, unless its potential to prejudice the opposition is unfair
which outweighs its probative value.
A. Spontaneous Similar Occurrences
1. Spontaneous similar occurrences are those that neither party has caused
or instigated for purposes of the present litigation. Spontaneous similar
occurrences usually occur prior to the event at issue. They do not include
any event that reflects solely on an individualʼs character, b/c it would
violate the prohibition against general propensity evidence in civil
cases.
2. Evidence of spontaneous similar occurrences may be relevant in a trial:

to assist in establishing the nature and condition of certain
instrumentalities; it may be probative of causation; it can help establish
notice of a dangerous condition. The admissibility of such evidence is
governed solely on principles of logical relevance. See FRE 401-403.
i. Simon v. Town of Kennebunkport, 417 A.2d 982 (Maine1980), A blanket

rule of irrelevance is incompatible with modern principles of evidence. B/c
the Rules of Evidence do not bar the use of this type of evidence, its
admissibility must be determined by reference to the general provisions

governing the admission of relevant evidence. MR 401 defines relevancy

in terms of probative value and materiality. MR 402 provides that all
relevant evidence is admissible, but under MR 403 although relevant,
the evidence may be excluded when the danger of unfair prejudice,
confusion or undue delay is disproportionate to the value of the
evidence. Under 401 the judge must first determine whether there is a
substantial similarity between the proffer and the case at bar, and then
if it is probative on a material issue. Then if probative whether that
value is substantially outweighed by prejudice, etc., of 403.
-RULE: Where a proponent can show that other accidents occurred

under circumstances substantially similar to those prevailing at the
time of the injury in question such evidence is admissible subject to
exclusion by the trial court when the probative value of the evidence on
the issues of defect, notice or causation is substantially outweighed by
the danger of unfair prejudice or confusion of the issues or by
consideration of undue delay.
Note: Under the Rule in Simon, there are several associated risks in the use
of similarity evidence. 1) the prejudice that the evidence might create to the
jury; 2) jurors might be prone to overvalue the evidence; 3) evidence may
surprise the opposition; 4) debate on the importance of the evidence may
overwhelm the trial and distract the jury.
3. Similarity Requirements: What Factors Courts Consider and Levels

Required
Courts will first decide what circumstances are relevant in determining

whether the level of similarity between other occurrences and the present
COA to permit admission. Logically, the court will examine factors such as
the nature of the COA, and the conditions that surrounded the occurrence.

Once the relevant factors to determine similarity are identified, the court will
then decide the level of similarity necessary to justify admission. The
standard of similarity will always vary because the purpose that it is being
offered will always vary.
i. Nachtsheim v. Beech Air Craft Corp., 847 F.2d 1261, 1268-69 (7th Cir.
1988), “The foundation requirement that the proponent of similar accident
evidence must establish substantial similarity before the evidence will be
admitted is especially important in cases such as this where the evidence is
proffered to show the existence of a dangerous condition or causation. . .At
the same time the, the danger that the evidence will be unfairly prejudicial
remains."
NOTE: The admissibility of similar-occurrence evidence is primarily an

issue of logical relevance, which should only require that the other
occurrence evidence be similar enough to the event that gave rise to
the COA to be relevant for the purpose for which the party is offering.
ii. Some courts have imposed a ‘sufficiently similarityʼ standard, which may
be appropriate in instances where the dissimilar conditions of the similar
occurrences are subject to the opponentʼs full exploration on cross.
iii. Other courts use a ‘substantially similarityʼ standard as a precondition to

the admission of all similar occurrence evidence. This is appropriate where
proponents are offering similar occurrence evidence to establish causation
and the nature of a condition.
4. Nonoccurrence Evidence: Imponderables of Negative Evidence
A party might offer nonoccurrence evidence to establish the nonexistence

of a defective condition, to prove that a defect did not cause an injury, or to
show lack of knowledge or notice. The use of nonoccurrence evidence

creates two distinct problems.
i. One, how to establishe the fact of a nonoccurrence when by definition

does not exist. Therefore, the relevancy levels of this type of evidence is
diminished.
ii. The second, is establishing that the circumstances during the period of
the nonoccurrence were sufficiently similar to those involved in the COA
that the fact of nonoccurrence is relevant to the litigation. Typically, a party
will rely on circumstantial evidence to establish the condition of
nonoccurrence. Courts use three interdependent factors to assess the
adequacy of the circumstantial evidence:
a. The closeness in time between the period of nonoccurrence and the

event giving rise to the COA;
b. Whether the condition of the instrumentality in question and the

circumstances of its use are static(ex: concrete sidewalk=static vs. the
condition); and
c. The frequency of the instrumentalityʼs use during the period of

nonoccurrence.
B. Experiments and Demonstrations, created similar occurrences
In-court demonstrations and experiments are manufactured similar

occurrences, and are governed by the same principles that govern the
admissibility of evidence of spontaneous similar happenings. A party may
offer such to simulate an actual event or to demonstrate the physical
properties of a material involved. It is relevant b/c it duplicates the
circumstances that existed at the time the COA arose. Courts will
require a party offering such evidence to lay a proper foundation by

showing a “sufficient similarity" (usually a substantial similarity),

between the conditions the experiment or demonstration creates and
those that existed at the time the COA arose.
i. Randall v. Warnaco, Inc., Hirsch-Weis Division, 677 F.2d 1226 (8th Cir.
1982), A court may properly admit experimental evidence if the tests were
conducted under conditions substantially similar to the actual conditions.
Admissibility does not depend on perfect identity between actual and
experimental conditions. Experimental evidence is permissible for the
purpose of demonstrating certain physical properties, but it is
impermissible for the purpose of reenacting the accident for the jury. In
duplicating the accident scene, the Df portrayed to the jury that on the
night in question the Pl, like the five actresses, poured fuel on herself and
the tent. The admission of this evidence could be unduly prejudicial.
C. Relationship to FRE 404 and 405
If the court determines that the evidenceʼs admissibility under character

principles of 404(a) and 405, rather than the general standards of
relevancy and prejudice potential under 401, 402, 403 (governing
admissibility of prior similar occurrences), the court would exclude on two
grounds. 1) FRE 404(a) precludes evidence of a partyʼs propensity offered
to prove past conduct in civil, and only if Df offers first in criminal; and 2)
under FRE 405, even if the court admits character evidence in a criminal
case, proof is limited to reputation and opinion evidence–evidence of prior
specific instances of conduct may not be used.
*However, under 406, exceptions for habit evidence, other-act

evidence that is relevant, such as motive, knowledge, plan, intent the
evidence may be admitted.
i. U.S. v. Beechum, 582 F.2d 898 (1982), ‘substantial similarityʼ is the

requirement set as a precondition of admissibility when proponents have

offered evidence of an individualʼs prior conduct under FRE 404(b) to
establish the individualʼs identity as the perpetrator.
ii. Ramos v. Liberty Mutual, 615 F.2d 334 (1980), when proponents have
offered evidence of prior events under general principles of logical
relevance in FRE 401-403 to identify a condition or instrumentality as the
cause of an injury, ‘substantial similarityʼ is the requirement as a
precondition of admissibility. See also Payne v. A.O. Smith Corp., 99 F.R.D.
534 (Ohio 1983).
D. Subsequent Repairs
Evidence concerning corrective measures is often persuasive to the finder

of facts that a condition was indeed hazardous and that the Df should have
taken precautions prior to the incident in the exercise of due care. Yet,
introduction of that evidence as an admission of negligence would raise
questions of relevance and prejudice. To avoid that dilemma and encourage
upkeep, courts have accorded a privilege status to evidence of
subsequent repairs, holding it inadmissible to prove negligence or
culpable conduct on the part of the one responsible for the corrective
measures. The ruleʼs focus is on unfair admissions of negligence that the
finder of fact might infer from remedial measures.
i. Limitations on Subsequent Repair Prohibition:
a. If evidence of subsequent repair is relevant to, and offered on, any

controverted issue in the litigation other than the Dfʼs negligence or
culpable conduct it is admissible. Ex: issue of ownership or control over
an instrumentality. However, these issues must affirmatively be disputed
before such evidence may be offered to establish them.

b. If the party against whom the evidence is offered was responsible for the
repair, and that party is a third party, then those remedial measures may
have some relevance to the Dfʼs negligence are admissible as proof on that
issue. See Koonce v. Quacker, 798 F.2d 700, 720 (1986); and Grenada Steel
v. Alabama Oxygen, 695 F.2d 883, 889 (5th Cir. 1983).
Note: more often than not, evidence of nonparty design changes will be
excluded b/c it lacks sufficient probative value to overcome the potential
confusion.
c. Concluding that the admission of evidence of subsequent repairs will

jeopardize public safety is not sound. First, that conclusion assumes that
the subsequent repair privilege is well known, when it is not. Second, the
conclusion assumes that people will risk future liability through potential
injuries rather than risk the increased possibility of being found liable for the
injury that has occurred by changing the condition.
ii. Subsequent Repairs and Impeachment
If subsequent repair of the instrumentality can logically be construed

as an admission of the hazardous nature of the condition and of the
Dfʼs negligence in allowing the condition to exist, that act will always
be inconsistent with the Dfʼs testimony, and therefore, admissible for
the limited purpose of impeachment. Reference supra ‘Prior Inconsistent
Statements.ʼ
a. In Probus v. Kmart, 794 F.2d 1207, 1210 (7th Cir. 1986), contradictory
evidence of subsequent remedial measures could not be introduced for
impeachment purposes b/c the recognition of such an exception “would
elevate it to the rule."
b. Generally. If a party responsible for an instrumentality volunteers

testimony about its condition, courts will not prohibit its opponent from
impeaching it through evidence of subsequent repairs. Muzyka v.
Remington Arms, 774 F.2d 1309 (5th Cir. 1985), it was error to prohibit the
Pl from presenting evidence of design changes for the purpose of
impeaching the expert.
NOTE: If the court allows Pls to use evidence of subsequent repairs for the
limited purpose of impeachment, the Df, would be entitled to a limiting
instruction to the jury by the judge telling them that they cannot consider
the evidence for any other purpose.
c. Petree v. Victor Fluid Power, 887 F.2d 34 (3d Cir. 1989), the use of
evidence served to directly contradict the expertʼs claim and therefore
should have been admissible for that purpose.
iii. FRE 407: Subsequent Remedial Measures. When, after an injury or

harm allegedly caused by an event, measures are taken which, if taken
previously, would have made the event less likely to occur, evidence of
the subsequent measure is not admissible to prove negligence or
culpable conduct in connection with the event, or a defect in a product
or its design, or that a warning should have accompanied a product.
This rule does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.
NOTE: The majority of court have interpreted FRE 407 to apply to products
liability actions. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st
Cir. 1991); In re Joint Eastern and Southern District Asbestos Litigation v.
Armstrong, 995 F.2d 343 (2nd Cir. 1993). *Evidence of subsequent
measures that are admissible under the second sentence may be

inadmissible and excluded by FRE 403ʼs dangers of prejudice,

confusion vs. probative value.
iv. Grenada Steel Indus. v. Alabama Oxygen Co., 695 F.2d 883 (5th Cir.
1983), [hx note, case occurred before changes in FRE 407]. B/c FRE 407
does not deal w/ alternative designs or products introduced by third parties,
the applicability of the evidence must be determined first. Evidence of
subsequent repair or change has little relevance to whether the product
was defective at some previous time. Consider the probative value. Was the
product or its design defective at the time the product was sold.
Introduction of evid about subsequent changes threatens to confuse the
jury. 407 must conform to 403ʼs prejudice and confusion policy. 407 does
not exclude evidence of subsequent repairs made by someone other than
the Df.
NOTE: 407 made it clear that its exclusions include negligence and strict
liability.
v. Feasibility of Precautionary Measures
When feasibility is at issue, subsequent remedial measures that are

probative of that question are admissible. The feasibility of precautionary
measures are considered by the court unless the Df is willing to make an
explicit admission on the issue of feasibility. See Rimkus v. Northwest
Colorado Ski Corp., 706 F.2d 1060, 1065 (10th Cir. 1983), Df did not raise
feasibility issue when it asserted safety measures were not necessary, not
that they were impossible.
E. Relationship to Other Rules
1. FRE 105: Limited Admissibility.

Under 407 a party can offer evidence of subsequent remedial measures for
purposes other than negligence or strict liability, such as ownership,
control, or feasibility of precautionary measures, if relevant to the COA and
those issues are contested. Plus, a party can offer such evidence to
impeach if the Df has given testimony that is inconsistent with the
substance of what he has communicated through his act of repair. FRE 105
requires that a court, on DFʼs request, instruct the jury on the proper
use of the evidence if used for limited purpose. See Warner v. Upjohn,
628 F.2d 848 (4th Cir. 1980).
2. FRE 607 and 613. The credibility of a witness may be attacked through
the introduction of prior inconsistent statements, that can be in the form of
utterances, or indirect communications. So long as a party did not testify in
superlatives about the superiority of his product. See Muzyka v. Remington
Arms, 774 F.2d 1309 (5th Cir. 1985), it has bee generally held that
“evidence of subsequent measures is no more admissible to rebut a claim
of non-negligence than it is to prove negligence directly."
3. Under FRE 802(a), admissions are no longer included within the definition
of hearsay. The federal hearsay rule allows evidence of admissions.
Subsequent remedial measures are a form of an admission, that is the
conduct acts as an implied admission that the product needed repair. FRE
802(a) provides that conduct from which communication is inferred is only
considered a “statementʼ" within the meaning of FRE 801(c), hearsay–an
out of court statement offered into evidence to prove the truth of the matter
asserted–if the actor intended the conduct to be an assertion.
4. Offers of Compromise
Cts at common law will not admit evidence of offers to compromise claims
as admissions of either validity of the claim or amount. The compromise

rule does not bar the use of this evidence if offered for some purpose other
than proving the claimʼs validity or amount, and includes impeachment of a
witnessʼ credibility. Most cts have prohibited the use of a witnessʼ prior
settlement to impeach his testimony in the belief that the evidence has no
relevance to the witnessʼ bias.
i. Esser v. Brophey, 212 Minn. 194, 3 N.W.2d 3 (1942), the admissibility of

a compromise is dependant on its tendency to prove an admission by
conduct. Where an admission of liability is made it is admissible. Where
there is no compromise, but a payment of a claim asserted, the payment
permits an inference of admission of liability b/c a claim was made with a
yielding to it. Admissibility depends on whether an offer or payment was
intended as an admission of liability or an effort to settle a dispute.
Testimony that concerned a settlement, as an admission by the witness that
he was the cause of the accident and not the Dfʼs negligence, is admissible
b/c it was not relevant to show either an admission of liability or the witnessʼ
hostility to the Df.
FRE 408: Compromise and Offers to Compromise. Evidence of 1) furnishing

or offering, or promising to furnish, or 2) accepting or offering or promising
to accept, a valuable consideration in compromising or attempting to
compromise a claim which was disputed as to either validity or amount, is
not admissible to prove liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise negotiations is
likewise not admissible. This rule does not require the exclusion of evidence
otherwise discoverable merely b/c it is presented in the course of
compromise negotiations. This rule does not require exclusion when the
evidence is offered for another purpose, such as proving bias or prejudice
of a witness, negativing a contention of undue delay, or proving an effort to
obstruct a criminal investigation.

NOTE: 408 makes privileged all statements made during settlement

negotiations, and provides the same protection to completed
compromises as offers and settlement discussions. The prohibition on
the use of all compromises, includes those a party subsequently
repudiates. The language of the rule protects the offer, the
acceptance, and statements made in the course of compromise
negotiations. FRE 410 states that the actions and statements covered
by the rule are not admissible ‘in any civil or criminal proceeding.ʼ
ii. Fasanaro v. Mooney Aircraft, 687 F.Supp. 482 (Cal. 1988), 407 was
inapplicable b/c it “includes only the actual remedial measures themselves
and not the initial steps toward ascertaining whether any remedial measures
are called for."
* Regular reports after an accident that document and assess conditions

should not be excluded under 407. Some portions referencing voluntary
remediation may be omitted. See McFarlane v. Caterpillar, 974 F.2d 176, 181
(D.C. Cir. 1992); and Odell v. Hercules, 904 F.2d 1194, 1205 (8th 1990).
iii. Alpex Computer Corp., v. Nintendo, 770 F. Supp. 161 (NY 1991),
publicized settlement negotiations are irrelevant to the courtʼs analysis
under 408.
iv. 408 precludes a party from taking the documents and information most
damaging to its case and giving them to its opponent during settlement
negotiations to bar the opponent from using them at trial. The only kind of
documents that 408 will protect from use at trial b/c of disclosure at
settlement negotiations are those actually prepared for the negotiations.
See Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th 1981).
v. In Big O Tire v. Goodyear, 561 F.2d 1365,1368, 1372-73 (10th 1977), talks
regarding the potential for a legal claim were considered “business
communications" not a ‘claim which was disputed.ʼ The communications

had not ‘crystallized to the point of threatened litigationʼ for the purposes of
triggering FRE 408ʼs prohibition. However, Affiliated Mfrs. v. Aluminum Co.
of Am., 56 F.3d 521, 527 (3rd 1995), held that 408 exclusions apply where
an actual dispute or difference of opinion exists, rather than when
discussions crystallize to the point of threatened litigation.
vi. There must be a claim made and an existing dispute with regard to
either the validity or amount of the claim for offers of compromise to
be privileged under FRE 408.
FRE 410: In either civil or criminal proceedings, evidence of Pleas; nolo

contendere or guilty; or Plea Discussions, and Statements made in the
course of plea discussions which do not result in a plea or a plea that is later
withdrawn, are inadmissible. However, such a statement is admissible
where a separate statement, made in the course of the same plea or
discussion has been introduced and the statement in the interest of
fairness ought to be considered contemporaneously with it, or in a criminal
proceeding for perjury or false statement, if made under oath, on the
record and in the presence of counsel.
NOTE: Unwithdrawn guilty pleas are allowed for use as admissions in

subsequent civil litigation of the facts that were necessary to the
determination of guilt on each charge. Some jurisdictions prohibit minor
charges being used b/c these pleas are irrelevant where the Df only wanted
to dispose of the matter quickly rather than prove innocence.
vii. 410 does not preclude the use of statements made in the course of
Plea discussions that resulted in an unwithdrawn guilty plea. 410 only
protects discussions to withdrawn pleas, and the ruleʼs protection applies
only if there was no resulting plea or if there was a plea that was

withdrawn. There is no protection to plea discussions related to pleas

that were NOT withdrawn. 410 is limited to statements made to an
attorney for the prosecuting authority. Some jurisdictions have explained
that to mean one who is acting on behalf or who has been given express
authority to act for the prosecuting authority. See U.S. v. Lawrence, 952
F.2d 1034, 1037 (8th Cir. 1992).
viii. 410 precludes the use of prior withdrawn pleas, and statements only if
used “against the defendant." Rule 410 does not extend to testimony
given before a grand jury after the negotiations have been completed, even
if that testimony was the product of the negotiations. See U.S. v. Davis, 617
F.2d 677, 685-86 (1979).
In U.S. v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a
defendant can waive the protections of Rule 410 where the U.S. Attorney
believes the Df will not be completely truthful with authorities.
ix. A conflict with 410 exists under 803(22), where a judgment of a previous
conviction, or evidence of a final judgment, entered after a trial or upon a
plea of guilty (not nolo), if punishable by death or prison in excess of one
year, are admissible to prove any fact essential to sustain the judgment, but
not including, when offered by the Govt in a criminal proceeding for
purposes other than impeachment, judgments against person other than
the accused. *The conflict has not been challenged as of 2002.
V. HEARSAY EVIDENCE
1. OVERVIEW: The Hearsay Rule of today, under federal law, applies

when an utterance, be it oral or written or act, if intended, is offered to
prove the truth of the assertion, and such evidence is relevant. Any
other proper use of an out-of-court utterance, such as witness
impeachment, memory refreshment, evidence of verbal act evidence,
declarations for the purpose of establishing an independent legal

entity (such as a contract), libelous statements, or statements which
are used to show human impact changes, is outside the definition of
hearsay, and their admission or exclusion depends upon other rules of
evidence, and not the Hearsay Rule. The FRE are not the only rules
governing hearsay analysis, many common-law rules dictate that some out-
of-court utterances are not hearsay. Verbal acts, verbal parts of acts,
utterances, and writings offered to show effect on the listener, implied
assertions, and state of mind exclusions are some assertions that are not
hearsay in nature.
a. “Evidence of a statement made outside the proceedings in which it is

being offered to prove the truth of the matter being asserted in the
statement." NOTE: Hearsay is generally inadmissible, because the court
cannot test it against faulty perception, inaccurate memory, insincerity, and
ambiguity. If offered for the truth of its content, a statementʼs probative
value turns on the credibility of both the declarant, who observed the event
and made the statement describing it, and the witness who is testifying
about what she heard the declarant say.
1) U.S. v. Brown, 548 F.2d 1194 (1978), the jury had no way to examine the
trustworthiness of the agentʼs testimony, b/c it could not examine the
statements of the declarant taxpayers or others on which her testimony was
directly and substantially founded. B/c her testimony had to have been
based directly on the out of court statements by the taxpayers, the Df had
no opportunity to cross examine and test their assumptions.
b. The FRE have adopted the categorical exception model, with some
modification. Some out of court utterances, by definition and historic use,
are not hearsay, and therefore their admission or exclusion rest on
principles apart from the FRE.

c. Categories of Hearsay
1) Words
i. Indirect Message
A. Unintended Message–ex: “I am the pope," offered to prove that the

person thought they were the pope, and is therefore insane.
B. Intended Message–ex: “You dirty stinking rat," to prove the Df was a

cheat.
ii. Direct Message–the message is intended. Ex: witness to auto accident

states “The yellow car was at fault," then at trial for wrongful death, listener
testifies to hearing the statement to prove who was at fault.
2) Conduct
i. Indirect Message
A. Message was Intended. In response to question, who cheated on the

exam, W points his finger at D.
B. Message was Unintended. Ex: ship captain inspects the ship prior to
leaving, and after finishing allows his family to board for a long trip. Boat is
Safe!
2. Common-Law Hearsay
a. Exemptions from Hearsay
1) Verbal parts of acts (Communications by Conduct); the terms have

been applied repeatedly to language that is not legally operative, but merely
explaining the declarantʼs contemporaneous nonverbal conduct. Since

almost any utterance helps to explain conduct, the “verbal act" category
provides a discretionary hearsay escape that can be invoked without the
necessity of explaining why the evidence is trustworthy or meeting the
other requirements of the residual hearsay exceptions. Ex: A bar challenging
the suspension of its license for solicitation of prostitution within the bar. An
investigator has a woman approach him and stated “Want a good time,"
constitutes a verbal part of an act b/c an out of court verbalization “Want a
good time" gives meaning to an otherwise ambiguous gesture.
i. People v. Barhart, 153 P.2d 214 (1944), The evidence of the telephone
conversations was pure hearsay. Evidence of the fact that a conversation
was received would be admissible for the purpose of proving that the
telephone was in order and functioning, but for no other purpose.
ii. “Statements made in connection with activities taking place on the

premises" are “verbal parts of acts" when used to show the “character of
an establishment." See McCormick, 65 Minn. L. Rev. 423,445-449 (1981).
iii. Unintended Communications. The intention with which the message was
conveyed is unrelated to the accuracy of its content. If a statementʼs
accuracy is critical for its admission into evidence, b/c its relevance turns on
its truth, courts should apply the H R w/o reference to the speakerʼs
intention.
2) Operative facts; Statements that have legal significance b/c of their

utterance under designated circumstances are not H if repeated in ct to
establish the occurrence of the legal event, ex: statements of conveyance,
slanderous statements, and creating Contracts–the legal relationship by the
oral exchange that has been reduced to writing. Ex: “I accept your offer," is
used to show acceptance; or “This is a gift," is used to establish a transfer
of a gift. Legally operative language is being used to show the existence of

the legal relationship that it creates. By contrast, if one assumes that

attempting to bet is a crime and hence the bookmakerʼs calls were legally
operative, the utterances were not being used for what they did, but to
show what they expressly or implicitly said(that the bookie was a bookie);
and when used in this fashion, operative language is not necessarily
inadmissible.
i. Freeman v. Metropolitan Life, 468 F. Supp. 1269 (1979), Statements of

the offer and acceptance that formed the contract were verbal acts or
operative facts demonstrating the creation of the contract. The statement “I
want to cancel," the group policy with the employer constitutes a “verbal
act." Whether he wanted to cancel his coverage is irrelevant. The statement
made is important b/c it was made in the witnessʼ presence, and bears on
his reasonableness in acting in accordance with it.
Rationale Background for Hearsay: The H.R. is based on experience and

grounded in the notion that untrustworthy evidence should not be
presented to the triers of fact. Out of court statements are traditionally
excluded b/c they lack the conventional indicia of reliability; they are usually
not made under oath or other circumstances that impress the speaker with
the solemnity of his statements; the declarantʼs word is not subject to
cross-examination; and he is not available in order that his demeanor and
credibility may be assessed by the jury.
3) Impact on the Listener–a statement is not hearsay if the issue is the

statementʼs effect on the hearer, not whether the statement itself is true.
Ex: If the Reasonableness of a personʼs conduct is in issue, information
brought to that personʼs attention through the statements of others is
relevant, regardless of whether the statements are true. Such as where a Df
claims R apprehension, and therefore justification in responding to
anotherʼs actions based on the fear he Reasonably felt after hearing and

believing anotherʼs statement.
i. If the out of ct declarantʼs knowledge is relevant, statements of fact

reflecting knowledge of those facts by the individual uttering them, are not
H b/c their value to the litigation is not dependent on belief in the truth of
their content.
ii. U.S. v. Parry, 649 F.2d 292 (1981), statements offered to establish
knowledge of identity are not H. Using an out of court utterance as
circumstantial evidence of the declarantʼs knowledge of the existence of
some fact, does not offend the hearsay rule.
iii. U.S. v. Cantu, 876 F.2d 1134, 1137 (5th 1989), statements made to the Df
by a paid informant were hearsay when offered to show that the govt
induced Df to commit the offense. The statements were not offered “as an
assertion of a fact, but, rather as the fact of an assertion." In other words, it
is the mere utterance of the informantʼs suggestion to the Df that made the
statements relevant, b/c the effect of the statements had on the Dfʼs
inclination to commit the offense. It was not offered for the truth of the
matter asserted.
4) Impeachment
5) Refreshment-recollection
6) Warning–WATCH OUT! Cautionary statements are exempt from HR.
7) State-of-Mind
i. Implications of verbal communications are most often relevant to prove

the declarantʼs state of mind and, therefore, would be admissible under the
state of mind exception.

b. If a party offers testimony that there have been no complaints about a

particular situation as evidence that there was nothing to complain about,
that silence is hearsay. The silence is being offered for the truth of the what
was impliedly communicated through the failure to speak. See Menard v.
Cashman, 94 N.H. 428 (1947). However, in St. Louis v. Arkansas & T. Grain,
42 Tex. Civ. App. 125 (1906), lack of complaints from other purchasers from
the same lot of corn was not hearsay b/c the witness simply stated a fact
w/i his own knowledge; that he did sell the corn and no complaints were
ever made. These are facts not declarations of third persons. See also
Falknor, Silence as Hearsay, 89 U.Pa.L.Rev. 192(1940)
c. Communications by Machines
i. To ascertain the time by inquiring of someone else and then later asked to
establish the time of an event that immediately followed constitutes
hearsay. See U.S. v. Brown, 548 F.2d 1194 (5th 1977). With all mechanically
produced evidence (looking at the watch itself), the proponent must
demonstrate, through a qualified witness, that the equipment was
functioning properly at the time in question. See City of Webster Grove v.
Quick, 323 S.W.2d 386 (1959).
3. FRE–CODE HEARSAY
a. Overview
1) 801 contains definitions of hearsay
2) 802 prohibits the use of hearsay as evidence
3) 803 and 804 govern the admissibility of hearsay through the exception
of 802.
b. 801(a), “Statement," any oral, written assertion by a person, or

nonverbal conduct if it is intended by the person as an assertion.

Communications are “statements" only if the declarant intended to convey
a particular thought. Under 104 the trial judge must resolve whether the
statement is admissible, or relevant conditioned upon a fact beforehand.
*Not assertions by animals. Implied utterances do not apply.
1) Wright v. Tatham, 7 Ad. & El. 313 (1837), implied communications have
nothing to do with the Hearsay Rule. Proof of a particular fact, which is not
of itself a matter in issue, but which is relevant only as implying a statement
or opinion of a third person on the matter in issue, is inadmissible in all
cases where such a statement or opinion not on oath would be of itself
inadmissible.
2) “Assertion" has not been legally defined, so the courts are free to
determine within their discretion. *Commands are not assertions.
i. If the declarant did not directly state the words challenged as hearsay,
courts do not consider the statement as having been “asserted," for
hearsay purposes.
3) INTENT of Person–this is a hard sell b/c the interpretation of what an

‘actʼ “intends" within the confines of an oral, written communication or
assertion, varies from person to person.
i. U.S. v. Zenni, 492 F. Supp. 4664 (1980), The drafters of the FRE agreed
that implied assertions should be treated as hearsay. FRE 801(a)(2)
removes implied assertions from the definition of statement and
consequently from the operation of the hearsay rule. They did this by
providing that no oral or written expression was to be considered hearsay,
UNLESS it was an “assertion" concerning the matter sought to be proved
and that no nonverbal conduct should be considered hearsay, UNLESS it
was intended to be an “assertion" concerning said matter. The key to the
definition of “STATEMENT" is that nothing is an assertion unless intended to

be one.
ii. U.S. v. Reynolds, 715 F.2d 99 (1983), If the significance of an offered

statement lies solely in the fact that it was made, no issue is raised as to the
truth of anything asserted, and the statement is not hearsay. (801[c]).
Statements containing express assertions may also contain implied
assertions qualifying as hearsay. The statement was not offered for the
purpose of proving its express meaning, it was offered for the implied
assertion that one Df was involved in the crimes for which the two were
charged and tried. The statements were hearsay and inadmissible.
NOTE: The H R forbid merely the use of extrajudicial utterances as an

assertion to evidence the fact asserted. This would be testimonial. What the
H R forbids is the use of testimonial evidence i.e. assertions–uttered not
under cross-examination. See Wigmore, Evidence § 1788 (1976).
d. Implied Assertions as Hearsay.
1) Inferential conduct has hearsay implications that litigants frequently

overlook. Ex: evidence of a person having stopped his car at an intersection,
offered to prove that the light was red. This evidence is hearsay b/c an
objective fact is being proved through the message that the conduct
communicates.
e. Conduct that was Intended as an Assertion
1) The burden of establishing whether the conduct offered as evidence was

intended as an assertion rests with the opponent. When evidence of
conduct is offered on the theory that it is not a statement, and not hearsay,
a preliminary determination will be required to determine whether an
assertion was intended. The rule is so worded as to place the burden on the

party claiming that the intention existed; ambiguous and doubtful cases will
be resolved against him and in favor of admissibility. Advisory Committee
Note on FRE 801(a).
e. To determine whether the offered Evidence is admissible :
1) Why is this statement Relevant (if relevant to the proof of a proposition

solely b/c of the fact that the word was uttered, there is no hearsay) ; and
2) 403: Not prejudicial or confusion; and
3) C.L. 1-6; or
4) 801(d)(1),(2),(3)
4. Code Exemptions from Hearsay
a. All party admissions (five different types under 801(d)(1)(2)), are

admissible and exempt from Hearsay Rule, no matter their form, and the
statement is :
b. FRE 801(d)(1),
A) One of Identification of a person made after perceiving the person,
ex: –“thatʼs the guy," during a police line-up; or
B) Inconsistent with declarantʼs testimony; or
C) Consistent with declarantʼs testimony and is offered to rebut an express

or implied charge of recent fabrication, improper influence or motive.
5. Inconsistent Statements
a. 801(d)(1)(A) allows inconsistent statements to come into evidence for

their truth, as well as for impeachment purposes, but their use is

limited to situations where the declarant made the statement while
under oath, subject to perjury at trial, hearing or other proceeding. If
not made under oath, a prior inconsistent statement is considered
hearsay if used to prove the truth of its contents–the truth about what
it asserts.
i. State v. Smith, 97 Wash.2d 856 (1982), Historically, “Other proceeding,"

as used in the rule, includes grand jury proceedings. The 9th Cir interpreted
it to be open ended and not restricted just to grand jury proceedings, it
compared grand jury proceedings with immigration proceedings and held
the two shared enough similarities to admit statements. Thereʼs no question
that the statement was made b/c she testified to that fact. Minimal
guarantees of truthfulness were met since the statement was attested to
before a notary, under oath, and subject to penalty for perjury, plus the
witness wrote it in her own words. During her testimony the jury could
evaluate the explanation of the inconsistency and determine whether true
or not.
ii. Courts have generally concluded that sworn statements made during
investigations to police and govt investigators are not statements made in a
proceeding, under the “other proceeding" clause. See U.S. v Day, 789 F.2d
1217 (6th 1986); U.S. v. Ragghianti, 560 F.2d 1376 (9th 1977); Martin v. U.S.,
528 F.2d 1157 (4th 1975); U.S. v. Livingston, 661 F.2d 239 (DC 1981).
b. Former Testimony–if the witness is unavailable at a second trial, the only

way that his testimony from the first trial can be offered as substantive
evidence is through the former testimony exception contained in 804(b)(1).
That requires: 1) the testimony was given in an adversarial proceeding
where the opponent had an opportunity to direct, cross, or redirect, and 2)
the opponent is a) the same party if itʼs a criminal case, or b) a predecessor

in interest if its is civil case. When the witness is available, 801(d)(1)(A), like
804(b)(1) requires that the prior statement was given under oath, but does
not require that it was given in an adversarial proceeding.
c. Prior Identification–if a witness gives sworn testimony before a grand

jury and identifies the Df, but subsequently recants at the Dfʼs trial, the prior
identification could be admissible either as a prior inconsistent statement
under 801(d)(1)(A),or as a prior identification under 801(d)(1(C). See U.S. v.
Marchand, 564 F.2d 983 (2d 1978).
d. If the witness did not make a prior inconsistent statement under oath, its
use is limited to impeachment. Its admissibility is enhanced in one respect
b/c hearsay concerns are avoided. If there is potential unfair prejudice from
the use of such evidence, its admissibility may be affected negatively. When
used for impeachment the balancing of probative v. unfair prejudice may
call for exclusion under 403.
6. Consistent Statements
a. 801(d)(1)(B) excludes prior consistent statements from H R, and

allows them to be used for rehabilitation and as substantive evidence.
The Rule Applies only after a party ATTACKS a witnessʼ credibility by
an express or implied charge of recent fabrication, or improper
influence or motive. See Morgan, Hearsay Dangers . . ., 62 Harv. L. Rev.
177, 192(1948).
NOTE: Cts gen. consider a witnessʼ prior statements to be H if offered to

prove the truth of their content; a party may not introduce these statements
into evidence unless otherwise admissible under one of the exceptions to
the H. R.
b. For Rehabilitation an Impeached Witness–Scope

1) Consistent statements are not admitted as substantive proof of facts

stated, they are admitted only for the purpose of showing that act of
making the consistent statement.
2) The scope is limited to the fact of assertion, not the facts asserted. To
determine correctly the issue which the evidence is offered to prove, look
carefully at the type of impeachment, and determine how that particular
evidence serves to discredit the witness. See Thomas, Rehabilitating the
Impeached Witness . . ., 32 MO. L. Rev. 472, 473-488 (1967). *If the motive
to Fabricate arose from the existence of a bias, only those statements made
before the time of the claimed bias are relevant to rehab.
Note: Most states admit certain consistent statements for the rehabilitation
of a witness impeached by a showing of bias, interest, or corruption.
3) Tome v. United States, 513 U.S. 150 (1995), 801(d)(1)(B)–prior

consistent statements are not hearsay, only if they are offered to rebut a
charge of “recent fabrication or improper influence or motive."
A witnessʼ consistent statement is placed in the same category as a

declarantʼs inconsistent statement made under oath. Prior consistent
statements may not be admitted to counter all forms of impeachment or to
bolster the witness merely b/c she has been discredited. The conditions
that 801 allows prior consistent statements to be used makes it all the more
important to observe the preconditions for admitting the evidence in the
first place. Hearsay is often relevant, and relevance is not the sole criterion
for admissibility. 801 permits introduction of a declarantʼs out of court
consistent statements to rebut a charge of recent fabric, improper influence
or motive only when those statements were made before the charged
recent fabrication or improper influence or motive.
A. 801(d)(1)(B)–all out of court statements offered to prove the truth of the

matter asserted are hearsay, and prior inconsistent statements should not
be classified as hearsay if the declarant is testifying and repeating his own
statement. It excludes consistent statements ONLY IF there had been an
express or implied charge of recent fabrication or improper influence or
motice AND the statements are offered in rebuttal.
c. Recent Fabrication –Another type of impeachment is where consistent

statements are relevant for rehabilitation is called “recent fabrication" or
“recent contrivance." These cases involve impeachment by a charge that
the testimony is a fabrication of recent date, or complaint only recently
made. The implication that the testimony is not the story told by the witness
from the beginning, but is one concocted for the purpose of the trial.
Impeachment can be refuted in two ways with consistent statements:
i. It may be shown that the witness was not silent as alleged, but in fact
made the statements claimed to have been omitted. The relevance is
obvious; they directly contradict the charge of silence.
ii. By showing consistent statements made at a time near the alleged

silence although not on that particular occasion. It is relevant b/c it explains
the ambiguous nature of the silence.
iii. Oversight and forgetfulness also explain silence.
d. Courts vary on what constitutes an implied charge, see U.S. v. Herring,

582 F.2d 535 (10th 1978); and U.S. v. Icanonetti, 406 F. Supp. 54 (1976);
U.S. v. Majors, 584 F.2d 110 (1978).
i. Judge Weinstein, “normal usage would argue that the words ‘fabrication,ʼ
influence,ʼ and ‘motive,ʼ are only intended to cover situations where the
witness deliberately changes his story." 5 WEINTSTEINʼS FEDERAL
EVIDENCE, § 801.12[2][b], at 801-31.

ii. Merely raising testimony that contradicts the testimony of a preceding

witness has not been considered sufficient to raise an implied charge, see
Breneman v. Kennecott Corp, 799 F.2d 470 (1986); and usually the
proponent of the consistent statement must “point to specific questions
during his adversaryʼs examination that suggest fabrication or bias." See
U.S. v. Lozado-Rivera, 177 F.3d 98 (1999).
e. Rehab after Impeach by Inconsistent acts. Upon a charge that a

witnessʼ testimony is inconsistent with his prior conduct, the witness may
be rehabilitated by offering the statements that the witness made at or near
the time of the conduct. Those statements are relevant to explain the acts
and thus refute the inconsistency.
f. Rehab after Impeach by Inconsistent statements. Most states reject

consistent statements where the impeachment is by inconsistent
statements. Inconsistent statements cannot be admitted to prove the truth
of the statement, b/c that violates the H.R. This theory of impeachment
depends only on showing that the act of making the inconsistent statement.
The out of court statement is offered to show that this witness is capable of
making errors in his story, and from this the jury is asked to infer that he is
capable of making other errors; therefore, his testimony is unreliable. When
both statements are placed side by side, both cannot be correct. This raises
doubt as to the truthfulness of the statements. A consistent statement fails
to rehab at this point b/c it does not refute the discredited fact.
i Michigan Rule: Consistent statements after impeachment by inconsistent

statements are excluded on some occasions and admitted on others. Proof
that the witness told the same story on a prior occasion does nothing to
show the truthfulness of his testimony. Consistent statements are not
admitted for this purpose, but they are admitted for consideration in
determining whether the witness made the alleged inconsistent statement.

g. Historical Significance behind the H.Rule
1) The Hx significance may assist an attorney to successfully argue

admission/exclusion to the court. Tradition provides that only challenges to
relevancy may be made, with 3 safeguards:
i. If evidence canʼt be cross-examined, or
ii. Put under oath, or
iii. Gauge the sincerity through review (judge or juryʼs presence);
Then it may be within the CLAW of the H. Rule=Hearsay. Not every

utterance, document, or at rose to the level of Hearsay.
2) Conditions where offering are made w/o reference to the truth of the
matter asserted are determined by examining the Pleadings. What is being
claimed? Ex: PL sues Df for prod liability. Testimony of condition is not
testimony of the truth of liability. Ex: While dying, the declarant “Iʼm a
banana." It is an out of court declaration which cannot be cross examined,
but if offered to show the declarant was alive and suffering, it is only
admissible, if relevant, when offered to prove something other than the
truth of the matter; such as pain and suffering, rather than negligence.
7. Statements of Identification
a. 801(d)(1)(C): A statement is not hearsay if the declarant testifies at

the trial or hearing and is subject to cross-exam concerning the
statement, AND the statement is one of identification of a person made
after perceiving the person . . .
b. “After Perceiving the Person." U.S. v. Marchand, 564 F.2d 983 (1977)
interpreted the Rule to allow witness identifications from photographs and

sketches of a person the witness had “initially perceived." However, U.S. v.

Hudson, 564 F.2d 1377, 1379 (1977) held that the nature of the out of court
i/d has no effect on the evidenceʼs admissibility. “Though a prior i/d may be
equivocal, the jury is entitled to give it such weight as it will after hearing the
testimony under direct and cross. FRE 801(d)(1)(C) governs admissibility,
not sufficiency."
c. The rule has not been interpreted to mean that only the declarant can
testify to his or her out of court identification. U.S. v. Elemy, 656 F.2d 507
(1981), as long as the declarant was available at trial for cross, anyone could
testify to the identification, including an FBI agent regarding the declarantʼs
out of court i/d. In U.S. v. Owens, 484 U.S. 554 (1988), a declarantʼs loss of
memory does not preclude a prior i/d from being admitted under Rule 801,
even though it makes the witness technically unavailable under 804(a). The
Confrontation Clause guarantees only ‘an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent wished.
VI. EXCEPTIONS TO THE HEARSAY RULE
A. Categories of Hearsay Exceptions. FRE 803 addresses (23) referenced

exceptions for which the declarantʼs availability is immaterial; and FRE 804
addresses four (4) exceptions that require, as a prerequisite to admissibility,
a showing that the declarant is unavailable; and under FRE 807 an additional
exception exists which operates irrespective of the declarantʼs out of court
presence.
1. Those that require a showing that the out of court declarant is unavailable
to testify;
2. Those that do not require a showing that out of court declarant is

unavailable to testify.
B. Exceptions in which Declarantʼs Unavailability is Material as

Requisite to Admissibility. There are four exceptions:
1. Dying declarations.
2. Former testimony.
3. Declarations against interests.
4. Statements of personal or family history.
C. Common Law Unavailability.
Unavailability refers solely to the absence of a witnessʼ live testimony, but it

is not limited to physical absence. Where a witness is present but asserts a
privilege, or refuses to cooperate, or has a mental or physical condition that
prevents testimony, that witness is unavailable.
D. Codification
FRE 804, established that no basis of unavailability will be sufficient if it has

been procured by, or is the product of, wrongdoing on the part of the
hearsay proponent.
1. FRE 804(a) Unavailability as a witness includes situations where the

declarant–is exempted by a ruling from the court; or refuses to testify
despite court order; or testifies to lack of memory; or is unable to be
present or testify b/c death, illness, or infirmity; or is absent and the
proponent cannot procure the declarantʼs attendance (or in the case of
a hearsay exception under 804(b)(2),(3), or (4), the declarantʼs
attendance or testimony) by process or other reasonable means. A
declarant is unavailable if his exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or

wrongdoing of the proponent for the purpose of preventing the

witness from attending or testifying.
2. Changes in the Rule from the Common Law.
i. The Rule does not differentiate between memory loss and the refusal to
testify.
ii. If a hearsay declarant (witness) is w/i the courtʼs jurisdiction, and his
whereabouts can easily be ascertained, the proponent of hearsay
statements under an exception requiring a declarantʼs unavailability to use
the courtʼs subpoena power. See U.S. v. Lopez, 777 F.2d 543(1985); and
U.S. v. Kehm, 799 F.2d 354 (1986). In addition to a showing that declarantʼs
personal attendance was impossible, the Rule also requires the proponent
prove he made a good faith but unsuccessful efforts to locate him or
unsuccessfully subpoena him, the dying declaration a declarant, a
declaration against interests, or a statement of personal or family history
also must show that the declarantʼs testimony is unavailable. This requires a
showing that the proponent unsuccessfully attempted to obtain the
testimony through depositions and interrogatories.
iii. If the hearsay declarant is outside the courtʼs jurisdiction, under 804, the
proponent of the hearsay statement is required to attempt to obtain the
witnessʼ presence by process “or other reasonable means."
3. Unavailable upon a Claim of Privilege.
A claim of privilege satisfies the unavailability requirement only if the

witness is actually called to testify and responds with a claim of privilege.
i. U.S. v. Pelton, 578 F.2d 701, 709-10 (1978); and U.S. v. Williams, 927 F.2d
95, 99 (1991) where the ct held that while personal appearance to claim the

privilege often is the preferred practice, it acts as a meaningless gesture in

others.
4. Refusal to Testify
Under 804(a)(2) a proponent will not have made a sufficient showing of

unavailability UNLESS the court has ordered a witness to testify and he still
refuses to do so.
i. U.S. v. Oliver, 626 F.2d 254, 261 (1980), where the trial judge ruled the
witness against the Df was unavailable for refusal to testify and allowed the
introduction of the witnessʼ confession, and the judge informed the witness
that he had no Fifth Amend privilege not to testify and his refusal would
nullify his plea bargain, the App Ct ruled this warning constituted judicial
pressure. Therefore, the govt could not prosecute the recalcitrant witness
because the court never ordered him to testify as a requisite to the
invocation of 804(a)(2).
5. Lack of Memory, Physical and Mental Incapacity—Duration.
Absence due to physical or mental incapacity and loss of memory differ

from other grounds of unavailability. If a proponent relies on loss of memory
or physical or mental incapacity, then the proponent must establish that the
duration of the declarantʼs absence probably will be sufficiently long that
the need for the evidence contained in the hearsay statement cannot be
met by a temporary delay in the trial. The imposition of the requirement is
discretionary, and will turn on a balance of the nature of the unavailability
condition and the testimonyʼs importance to the fair resolution of the issues.
i.U.S. v. Amaya, 533 F.2d 188 (1976), Unavailability of a witness is an

exception to the hearsay rule where the declarant is unable to be present or
to testify at the hearing b/c of death or then existing physical or mental

illness or infirmity. The duration of an illness is a proper element of a

determination of unavailability, but the establishment of permanence as to
the particular illness is not an absolute requirement. The duration of the
illness need only be in probability long enough so that, with proper regard
for the importance of the testimony, the trial cannot be postponed. With
memory loss there is no guarantee that the witnessʼ memory will ever
return.
ii. North Mississippi Comm. V. Jones, 792 F.2d 1330, 1336 (1986), the
degree is as important as duration. Where loss of recollection about some
detail is not sufficient to make the witness unavailable and his prior
testimony admissible. The level of detail lost, and its importance to the
testimony are important factors.
6. Intentionally or Recklessly Causing Unavailability
The proponent of hearsay statements, who seeks a finding of a declarantʼs

unavailability will be precluded from using the statements if the proponent
intentionally or recklessly caused the unavailability. See U.S. v. Pizarro, 756
F.2d 579 (1985).
i. U.S. v. Mathis, 550 F.2d 180 (1976), illustrated the scope of recklessness
required.
ii. A court will preclude hearsay statements that fall within one of the
exceptions of 804 if the proponent intentionally or recklessly causes the
unavailability. Cts have held that seeking a grant of immunity to overcome a
witnessʼ assertion of a privilege is not a prerequisite to the claim of
unavailability before it can use the hearsay statement. U.S. v. Lang, 589 F.2d
92 (1978).
a. U.S. v. Morrison, 535 F.2d 223, 229 (1976), the ct found that the U.S.

Attorney had an obligation to overcome the defense witnessʼ unavailability,

which it had caused, by seeking immunity for the witness.
E. Former Testimony
Former testimony denotes a witnessʼ statement under oath at a trial,

hearing, or other proceeding, or at a deposition prior to a proceeding which
is being offered into evidence.
1. Common Law
Though classified as hearsay, cts have considered former testimony to be

reliable b/c it provides: 1) some assurance of sincerity–given under oath;
and 2) it provides some test of accuracy and reliability b/c it was subject to
cross examination.
i. Cts developed three requirements to ensure the reliability of former

testimony evidence and the fairness of its use:
a. The witness must be unavailable;
b. The witness must have been subject to cross-exam when previously

testified;
c. There must have been an identity of the parties and the issues in the two
proceedings.
Note: the party against whom the testimony was being offered against need
only have been afforded the opportunity to cross-examine in the prior
proceeding. If a party decided not to exercise that right, that party must
abide by that waiver in subsequent proceedings and cannot object if that
testimony is subsequently offered against him. See Hendrix v. Raybestos,
776 F.2d 1492, 1506 (1985); and Wright Root Beer v. Dr. Pepper, 414 F.2d

887, 890 (1969).
ii. To ensure that cross examination was adequate to meet the needs of the
subsequent litigation in which it is being offered, cts require that the issues,
as well as the parties, be identical in both proceedings, but some cts have
relaxed the standard from total identity to substantial identity all the way to
the same interest and motive to delve into and test the testimony in
question.
iii. A proponent can introduce former testimony as evidence in two ways: 1)

through the testimony of an observer w/ firsthand knowledge of that to
which the witness had previously testified; or 2) through the official
transcript made at the prior proceeding.
a. IF a transcript is used a new level of hearsay is introduced. The transcript

is ‘testifyingʼ to what the court reporter ‘toldʼ it what the witness stated. The
transcript is being offered for the truth of what the court reporter asserted,
namely, that the witness uttered certain words. If the witnessʼ words are
being offered for their truth, two levels of hearsay are opened, and the
proponent may introduce the transcript ONLY IF hearsay exceptions are
applicable to both levels.
b. The proponent may resolve the first level of hearsay, concerning the fact
of the assertion, through the past recollection recorded exception
(assuming the ct reporter is available to qualify it), or the business records
exception.
c. The second level of hearsay, relating to the contents of the transcript

being offered for the truth of the matter being asserted, may be resolved by
the former testimony exception.
NOTE: If the prior testimony is proved through audio or videotape rather

than transcript, only the second level–the utterance itself–is implicated, and
if the mechanical reproduction is properly authenticated, the hearsay
dangers of perception, memory, and sincerity are nonexistent.
2. Interpretation by FRE
A. FRE 804(b)(1): If the declarant is unavailable as a witness, testimony

given as a witness at another hearing, proceeding, or deposition, is not
excluded by the hearsay rule, if the party against whom the testimony
is now offered, or a predecessor in interest, had an opportunity and
similar motive to develop the testimony by direct, cross, or redirect.
i. Under the FRE, former testimony, to be admissible is a subsequent

proceeding must have been offered against a “predecessor in interest." 804
relaxed the standard concerning the identity of the issues by requiring on
that the predecessor have had a “similar motive to develop the testimony."
This standard is equivalent to “substantial similarity."
ii. Lloyd v. American Export Lines, 580 F.2d 1179 (1978), The investigating
officer was the litigantʼs predecessor in interest b/c he had an opportunity
and similar motive to develop the Dfʼs testimony about the same material
facts at the former hearing. If it appears that in the former suit a party
having a like motive to cross-examine about the same matters as the
present party would have, was accorded an adequate opportunity for such
examination, the testimony may be received against the present party.
B. Opportunity and Similar Motive to Develop Prior Testimony
Former testimony should be considered to have fulfilled the requirement of

opportunity for cross examination only if there was a meaningful
opportunity to develop the testimony in the prior proceeding.

i. Opportunity–This means that the ct in the prior proceeding must not have
restricted either the manner or scope of the inquiry beyond what would
have been possible and reasonably necessary in the proceeding in which
the testimony is subsequently offered. The fact that the opponent did not
take advantage of an earlier opportunity is irrelevant, but if that party was
not the same opponent in the prior as the current, a ct might not hold
against a successor the predecessorʼs failure to exercise the opportunity to
develop the testimony.
ii. Similar Motive–Cts determine similar motive based on whether the issues
as to which the testimony was offered in the prior and subsequent
proceedings are sufficiently similar that the forerunner of the party against
whom it is now offered would have been prompted to test it adequately on
cross so that the testimonyʼs reliability is apparent. This determination
requires that the issues in the two proceedings be the same or substantially
similar.
NOTE: 804 does not limit the use of former testimony, it can be used
against any party, including the party who previously offered it.
iii. In U.S. v. Salerno, 505 U.S. 317 (1992) the Court held that unless there is
a specific showing of “similar motive" by the proponent, grand jury
testimony is not admissible pursuant to Rule 804(b)(1).
iv. In criminal actions, former testimony may be used only against the same
party against whom it was previously offered. The 6th Amendment right to
confrontation does not appear to compel a hard and fast rule excluding
former testimony.
a. Ohio v. Roberts, 448 U.S. 56 (1980), the Confrontation Clause

guarantees only that the prosecution in a criminal case must 1) use
reasonable efforts to locate the witness and produce her at trial, and 2) that
the evidence employed in lieu of live testimony bear adequate “indicia of

reliability," through factors such as prior testimony under oath, party had an
opportunity to cross examine, and the proceedings were conducted by a
judicial tribunal equipped to provide a record of the hearing. Both 1-2 are
factors that come into play when the prosecution seeks to admit testimony
from a prior judicial proceeding of an unavailable witness, in place of live
testimony at trial.
C. Former Testimony in Criminal Cases
The Sixth Amendmentʼs Confrontation Clause neither compels nor justifies

precluding a criminal defendantʼs use of prior testimony against the
prosecution, even if the testimony was previously used against a different
party. Under Rule 804(b)(1) the party against whom prior testimony is
offered in a criminal case, whether the defendant or prosecution, must be
the same.
F. Dying Declarations
1. FRE 804(b)(2): The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness: (2) In a prosecution for
homicide or in a civil action or proceeding, a statement made by a
declarant while believing that the declarantʼs death was imminent,
concerning the cause or circumstances of WHAT THE DECLARANT
BELIEVED to be his impending death.
Note: The Rule no longer requires the declarant to be dead for the
exception to apply.
a. Johnson v. State, 579 P.2d 20 (1979), The admission of dying

declarations, under certain conditions, is a well recognized exception to the
rule excluding hearsay testimony. The basic reasons are necessity–because

of the witnessʼ death–and a belief that the approach of death removes

ordinary motives to misstate. FRE no longer require abandonment of all
hope of recovery, because such a standard is overly demanding and it rarely
exists. What is required is that the declarant have such a belief that he is
facing death as to remove ordinary worldly motives for misstatement. The
ct should consider the totality of circumstances including the presence or
absence of a motive to falsify and the manner the statement was
given/received. The proper standard is ‘awareness of impending death.ʼ
i. The judge must decide the issue of whether the proponent has satified
each factual element of the dying declarations exception using FRE 104(a)
during the Preliminary questions.
ii. FRE 804(b)(2) does not explicitly require the declarant to have firsthand
knowledge of the thing about which he speaks. FRE 602 requires that all
witnesses testify from firsthand knowledge, except for admissions by a
party opponent under 801(d)(2), findings of fact under 803(8)(C), and
expert testimony under 703.
iii. Introducing a dying declaration, is an offering of a statement by an

unavailable declarant, and therefore subject to reputation attack for truth
and veracity. May not attack their credibility through a showing of a lack of
religious belief, but may discredit the reliability by proving lack of belief in a
superior being. See State v. Quintana, 98 N.M. 17 (1982).
iv. As an alternative to a dying declaration, the proponent may be able to

demonstrate that the statement was an excited utterance because the
trauma caused by anticipated death is of a nature to create lasting stress.
This offers the assurance of spontaneity and reliability under 803(2).
G. Declarations Against Interests

1. FRE 804(b)(3): The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness: (3) A statement which was at
the time of its making so far contrary to the declarantʼs pecuniary or
proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against
another,that a reasonable person in the declarantʼs position would not
have made the statement UNLESS [he believed] it to be true. A
statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is NOT ADMISSIBLE UNLESS
corroborating circumstances clearly indicate the trustworthiness of
the statement.
i. The common law required the declarant to be unavailable for live

testimony, with personal knowledge, and only applied to pecuniary or
proprietary interest, not criminal. The FRE extended that principal.
ii. Chambers v. Mississippi, 410 U.S. 284 (1973), The right of an accused
in a criminal trial to due process is, in essence, the right to a fair opportunity
to defend against the Stateʼs accusations. The rights to confront and cross-
examine witnesses and to call witnesses in oneʼs own behalf are essential to
due process. Df was denied the opportunity to subject the witnessʼ
damning repudiation and alibi to cross-examination. He was not allowed to
test the witnessʼ recollection, to probe into the details of his alibi, or to ‘siftʼ
his conscience so that the jury could judge for itself whether it was
trustworthy or not. Under circumstances that assure reliability and thereby
compensate for the absence of an oath and opportunity to cross-examine,
declarations against interest are an exception to hearsay. This exception is
founded on the assumption that a person is unlikely to fabricate a statement
against his own interests at the time it was made.

Note: The Ct concluded that b/c the circumstances of the case

demonstrated that a third partyʼs admissions of guilt were assured of being
trustworthy, the trial ct should have admitted the statements under the
declaration against interests exception, even though the proponent had not
satisfied the requirements of that exception. @ 302: The HR may not be
applied mechanistically to defeat the ends of justice.
iii. Williamson v. U.S., 512 U.S. 594 (1994),[this decision was only an
interpretation of FRE 804(b)(3) and is not binding precedent on the states.].
804 cannot be read to mean that collateral statements–even ones that are
not in any way against the declarantʼs interest–are admissible. The question
to resolve under 804(b)(3) is whether the statement was sufficiently
against the declarantʼs penal interest such that a reasonable person in the
declarantʼs position would not have made the statement unless believing it
to be true. This must be answered after taking in all the surrounding
circumstances.
Note: Under Williamson, 804(b)(3) does not include statements made that
collaterally inculpate third parties. Statements that do not serve to inculpate
the declarant are inadmissible. To be admissible statements must be ‘truly
self-inculpatory, rather than merely attempts to shift blame or curry favor.ʼ
iv. Statements against an unavailable declarantʼs interests can be relevant in

the trial of a third party IF portions of those statements either inculpate or
exculpate that third party. This is true in civil or criminal settings. Ex: A
woman was raped by one man. The declarant states “I raped that woman."
This statement is against penal interest, and the exculpatory value for
another man on trial for the same rape is direct, not collateral. By
inculpating himself the declarant exculpates the other.
v. Lilly v. Virginia, 527 U.S. 116 (1999), When a person accuses another of

a crime where the declarant stands to gain, the accusation is suspect and
must be subjected to scrutiny of cross. An accompliceʼs statement against
his own penal interest cannot be used against the Df without being subject
to trustworthiness. Williamson. Precedent holds that an accompliceʼs
statements that shift blame to a Df fall outside hearsay exceptions that are
so trustworthy that adversarial testing would add little to its reliability. To be
admissible under the Confrontational Cl. hearsay evidence used to convict a
Df must possess indica of reliability by virtue of its inherent trustworthiness,
not be reference to other evidence at trial.
NOTE: The Lilly decision does not preclude State Courts from continuing to
admit collaterally inculpatory and exculpatory statements in civil litigation
and against the Govʼt in state criminal proceedings because the 6th
Amendment doesnʼt apply.
2. The Rule contains an express limitation: exculpatory portions of

declarations against interest are admissible ONLY IF ‘corroborating
circumstances clearly indicate the trustworthiness of the statement.ʼ The
Committee Notes indicate that “the requirement of corroboration should be
construed in such a manner as to effectuate its purpose of circumventing
fabrication."
i. None of the elements of the declaration against interest exception

designed to ensure reliability are applicable to statements made by a party
opponent, b/c under 801(d)(2) all party admissions are admissible. All
declarations against interest are admissions if used against the declarant.
3. Trustworthiness is determined by analyzing two elements: the probable

veracity of the in-court witness; and the reliability of the out-of-court
declarant.
i. Under the legislative history of 804 and the Williamson decision it is clear
that declarations against interest that are directly inculpatory of third

parties are admissible in the absence of a Confrontational Cl. issue.
ii. Supreme Court decisions have since decided that the Confrontation right
no longer requires a demonstration of the unavailability of the hearsay
declarant. If a hearsay statement falls within the exception, and carries
indica of reliability, the Confrontational Cl. is not implicated. See U.S. v.
Inadi, 475 U.S. 387 (1989); and Bourjaily v. U.S., 483 U.S. 171 (1987), where
theGlasser rule (requiring independent corroboration of the existence of the
conspiracy and of the Dfʼs participation in it) was abolished.
H. Party Admissions
1. FRE 804 (b)(6): The following are not excluded by the hearsay rule IF
the declarant is unavailable as a witness: A statement offered against a
party that has engaged or acquiesced in wrongdoing that was
intended to, and did procure the unavailability of the declarant as a
witness.
Note: The exception is not premised on the reliability of the hearsay

statements, but it is premised on the necessity created by the opposing
partyʼs intentional wrongdoing. A party forfeits the right to object on
hearsay grounds to the admission when the partyʼs deliberate wrongdoing
or acquiescence procured the unavailability. The wrongdoing need not
consist of a criminal act, and the rule applies to all parties, including the
GOVT.
i. Under 804(b)(6) a party would not only be responsible for his own actions
but also for the conduct of others in which he is perceived as acquiescing.
The acquiescence standard places an affirmative duty on the parties to
prevent any known outside actor from causing the declarant to become
unavailable.
ii. Under 801(d)(2) A statement is not hearsay if the statement is offered

against a party and is (A) the partyʼs own statement, in either an
individual or representative capacity; or (B) a statement of which the
party has manifested an adoption or belief in its truth, or (C) a
statement by a person authorized by the party to make a statement
concerning the subject, or (D) a statement by the partyʼs servant
concerning a matter within the scope of the agency or employment,
made during the existence of the relationship, or (E) a statement by a
co-conspirator of a party during the course and in furtherance of the
conspiracy. The contents of the statement shall be considered but are
not alone sufficient to establish the declarantʼs authority under (C), . .
.(D), or the existence of the conspiracy and the participation . . (E).
i. Under 801(d)(2)(A), Individual admissions are simply statements by a

party to the litigation that are offered against it. The can be either oral or
written, and the party need not be present, available, or even alive when
they are offered against it. See Savarese v. Agriss, 883 F.2d 1194, 1200-01
(1989).
2. Contractor Utility Sales v. Certain-Teed Products, 638 F. 2d 1061

(1981), Although prior pleadings cease to be conclusive judicial admissions,
they are admissible in a civil action as evidentiary admissions. . . .When a
pleading is amended or withdrawn, the superceded portion ceased to be a
judicial admission, but it still remains as a statement once seriously made by
an authorized agent, and as such it is competent evidence of the facts
stated, though controvertible, like any other extrajudicial admission made
by a party or his agent. (Nisbet v. Van Tuyl, ruled that although a prior
complaint was not to be considered on a motion for summary, it would have
been admissible at trial).
i. Statements in briefs can be used as evidentiary admissions against the

party who filed them. See Kassel v Gannett Co., 875 F.2d 935, 951-2 (1989)
ii. Evidentiary admissions must be distinguished from judicial admissions. A

judicial admission is a formal acknowledgment or concession by a party or
counsel of an element of a claim or defense in the proceeding in question. It
conclusively determines that element, and dispenses with the need for
evidence. The conclusive effect is limited to the litigation in which it is
made. However, in subsequent litigation, the admission is admissible but it
is treated as a mere evidentiary admission that can be explained, denied, or
rebutted.
a. Failure to deny allegations in the opponentʼs pleadings, in responses to

requests for admissions, and in interrogatories, statements by a partyʼs
attorney or testimony by the party are examples of judicial admission arising
prior to trial or at trial.
b. 803(22) permits evidentiary use in subsequent civil proceedings of a final

judgment in a criminal proceeding to prove any fact essential to sustain the
previous criminal judgment, but only if the conviction was for a crime
punishable by death or +1 year.
3. United States v. Flecha, 539 F.2d 874 (2d Cir. 1976), Before receiving an
admission by silence the court must determine, inter alia, whether the party
is in such a situation that he is at liberty to make any reply and whether the
statement is made under such circumstances as naturally to call for a reply
if he did not intend to admit it. The Df was under arrest, and it is clear that
arrested people know without benefit of Miranda warnings that silence is
usually golden. It was natural for the Df to say nothing.
i. Under 804(d)(2)(B) a party may adopt an admission either by affirmatively

responding to the statement of another through words or conduct or by
failing to object to the assertion of another. If the party expressly adopts the
admission of another, the content of that statement by the third party is

irrelevant to whether there was an adoption. This is not true when the party
has allegedly adopted the admission by silence. Tacit admissions require a
careful analysis of the surrounding circumstances.
ii. In general, an adoptive admission ‘may be oral or written or by conductʼ

See Grundberg v. Upjohn, 137 F.R.D. 365, 369-70 (1991); and U.S. v. Joshi,,
896 F.2d 1303 (1990).
4. Mahlandt v. Wild Canid Survival and Research, 588 F.2d 626 (1978),
The employee did have actual physical custody of the wolf, and his
opinions, conclusions were adopted by the Board of Directors as the basis
for action by his principal. Once agency, and making the statement while
the relationship continues, are established, the statement is exempt from
the hearsay rule so long as it relates to a matter within the scope of the
agency. 801(d)(2)(D) does not include an implied requirement that the
declarant have personal knowledge of the facts underlying his statement.
The statements by the employee were admissible against the Df.
i. Vicarious [acting for another] admissions are not limited to statements

made in the normal course of employment–while working for the employer.
They need only be made during the existence of the employment
relationship. Therefore, statements made in interviews with opposing
counsel after litigation has commenced are still admissible under 801(d)(2)
(D). See U.S. v. Chappell, 698 F.2d 308 (7th Cir); and Harrow v. Liberty
Mutual, 833 F. Supp. 1239 (Mich 1993).
ii. Most court have consistently held that admissions by government

employees are outside the vicarious admissions exclusion if used against
the Govt in criminal cases. U.S. v. Kampiles, 609 F.2d 1233 (1979). The
same is not true for attorneys representing the Govt in civil litigation. Given

that the Govt can use co-conspiratorsʼ admissions against criminal Dfs, the
exclusion of vicarious admissions by Govt agents violates the criminal Dfʼs
right to equal protection under the law. Imwinkelreid, 71 Minn. L. Rev. 269
(1986).
I. Admissions/Excited Utterances/Present Sense Impressions and

Declarations of State of Mind
1. Admissions
a. U.S. v. Dietz, 515 F.2d 892 (1975), the statement must have been made
during the course of the conspiracy, and must also serve to further the
illegal partnership. Because concealment was part of the conspiratorial
plan, deceptive statements made after were in furtherance of the illegal
purpose. Apprehension will not end the conspiracy, and the co-
conspiratorʼs admissions rule will be applicable–trial ct properly admitted
the statements under the co-conspiratorsʼ exception to the hearsay rule.
*If the co-conspirator against whom a statement is being offered has

withdrawn from the conspiracy prior to the utterance, then the conspiracy
has ended for him and the statement by a co-conspirator would be
inadmissible against him. See U.S. v. Dorn, 561 F.2d 1252 (1977).
Note: FRE 801(d)(2)(E) “contents of the statement shall be considered but

are not alone sufficient to establish. . . the existence of the conspiracy and
the participation therein of the declarant and the party against whom the
statement is offered under subdivision (E)." Thus, independent evidence is
required to corroborate conspiracy participation.
b. U.S. v. Inadi, 475 U.S. 387 (1986), a rule requiring each invocation of
FRE 801(d)(2)(E) to be accompanied by a decision on the declarantʼs
unavailability would impose a substantial burden on the entire criminal

justice system. A distinction exists between prior testimony and co-

conspirator admissions. One, prior testimony was “intended to replace live
testimony." Second, co-conspiratorsʼ statements are different because they
have “independent evidentiary significance," arising from the fact that they
must have been made during the course of the conspiracy and in
furtherance of it. Where the declarantʼs assertions at trial will inevitably be
different from his prior statements made during the course of the
conspiracy, there is no utility in requiring the Govt to make reasonable
efforts to produce him. A showing of unavailability is not required when
the hearsay statement is the out of court declaration of a co-
conspirator.
c. Bourjaily v. U.S., 483 U.S. 171 (1987), When Preliminary Facts relevant to
FRE 801(d)(2)(E) are disputed, the offering party must prove them by a
preponderance of the evidence. FRE 104 allows the judge to consider any
evidence whatsoever and he “is not bound by the rules of evidence except
those with respect to privileges." The existence of a conspiracy and a
partyʼs involvement in it are preliminary questions of fact that must be
resolved by the court pursuant to FRE 104. A per se rule barring
consideration of hearsay statements during preliminary factfinding is not
required. Because “hearsay rules and the Confrontation Clause are
generally designed to protect similar values," California v. Green, 399 U.S.
149, 155 (1970), and “stem from the same roots," Dutton v. Evans, 400 U.S.
74, 86 (1970), Roberts concluded that no independent inquiry into reliability
is required when the evidence “falls within a firmly rooted hearsay
exception." 448 U.S. 56, 66 (1980). The co-conspirator exception is firmly
enough rooted in our jurisprudence that a court need not independently
inquire into the reliability of such statements.
Co-conspirator statements, when made in the course and in furtherance of

the conspiracy, have a history of being outside the compass of the general

hearsay exclusion. The Confrontational Clause does not require a court to

embark on an independent inquiry into the reliability of statements that
satisfy the requirements of FRE 801(d)(2)(E).
2. Present Sense Impressions
a. Common Law
i. Houston Oxygen v. Davis, 139 Tex. 1 (1942), The report or statement at

the moment of the thing then seen, heard, felt, etc, at the very time that he
is perceiving the impression, is safe from any error of defect of memory of
the declarant because it is sufficiently spontaneous to save it from
suspicion of being manufactured, and it is usually made to another who
would have an equal opportunity to observe and check. It is believed that
such comments, strictly limited, to reports of present sense impressions,
have such exceptional reliability as to warrant their inclusion within the
hearsay exception for Spontaneous Declarations. If they sprang out of the
principal transaction they tend to explain it and were voluntarily and
spontaneously made at a time so near it as to preclude the idea of
deliberate design, they may be regarded as contemporaneous in time and
the declarations may either precede the transaction or follow it.
b. FRE 803(1): The following are not excluded by the hearsay rule, EVEN
THOUGH THE DECLARANT IS AVAILABLE as a witness: A statement
describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately
thereafter.
i. See also Teree E. Foster, Present Sense Impressions. . . 10 Loy. Chi. L.J.
299, 300-306 (1977); and Thayer, Bedingfieldʼs Case . . . 15 Am. L. Rev. 1
(1881); res gestae= “the facts talking through the party, [not] the party
talking about the facts." Accordingly, res gestae, if correctly used in
connection with evidence law, embraces circumstantial proof that is not

hearsay at all, as well as hearsay that is admissible. Thayer outlined three
conditions that if satisfied, lead to the admissibility and provide assurances
of reliability with present sense impressions: 1) a spontaneous declaration
describing an event observed by the declarant; 2) made at the time of the
observation; 3) which is also observed, and thereby verified by the witness
who reports the statement to the trier of fact.
Modern courts that apply the Present Sense Impression Exception use
three Factors:
1) the proximity of the statement to the event that it addresses;
2) the declarantʼs firsthand knowledge; and
3) the need for corroboration and its effect on the exception applicability.
NOTE: 803(1) requires that the statement describe or explain the event
perceived to assure spontaneity.
ii. U.S. v. Blakely, 607 F.2d 779 (1979), It isnʼt necessary that the witnesses
be in the same position to observe the event as the declarant; it is only
necessary that they be able to corroborate the declarantʼs statement.
Although the lapse in time between the event and the statement ranged
from 7 to 23 minutes, the transcript would support a finding that the
declarantʼs statements were made soon after Dfʼs departure. Therefore the
statements were made contemporaneously with the event because the
admissibility of the statements under the present sense exception depends
on the facts of the particular case.
NOTE: Corroboration is not required, but it does enhance the declarantʼs

credibility.

c. The Present Sense exception differs from the Excited Utterance

exception in three ways. 1) it does not need to be a response to an excited
event; 2) it must be made much closer in time to the event perceived; and
3) it must describe or explain the event as opposed to simply “relate" to it.
i. FRE 803(2): A statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused
by the event or condition.
ii. U.S. v. Napier, 518 F.2d 1290 (1975), where declarant, under the stress
or nervous shock of having viewed a photo of the Df, immediately pointed
to it and made a distressed and horrific statement linking the Df to the
crime, that statement was admissible. The display of the photo qualifies as
a sufficiently “startling" event to render the statement admissible when
made in response to her assault leading to her hospitalization. A startling
event is not limited to accidents, or assaults, but includes events that cause
adequate excitement and provided adequate safeguards against reflection
and fabrication are in place.
NOTE: At Common Law the requirement was that the utterance be made
immediately after the event it described or so close that the statement
could be considered spontaneous. The focus was centered on the
statementʼs spontaneity and the greater the distance in time between the
event and the statement, the more reluctant courts are to let it in.
iii. Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50 (1977), the
excited utterance exception is based on spontaneity and stress which
endow such statements with sufficient trustworthiness to overcome the
reasons for exclusion as hearsay. In determining whether a statement
qualifies, the important factors are timing and stress. Thus, statements of
declarants whose condition at the time of their declarations indicates that

they are still under the shock of their injuries or other stress due to special
circumstances, will be admitted.
iv. See Imwinkelreid, The Importance of the Memory Factor . . . 41 Fla. L.

Rev. 215 (1989), for attacks on reliability of excited utterances.
3. State of Mind Exception
a. Common Law Elements–1) the declaration must be of the declarantʼs

own state of mind (declarant is describing only what he perceives to be his
state of mind); 2) the declaration must be indicative of the declarantʼs state
of mind as of the time the statement was made; 3) the declarant must have
made the declaration under conditions of apparent sincerity; and 4) the
declarantʼs state of mind must bear independent relevance to the particular
case (for there to be independent relevance, the state of mind must be
either an element of the COA or defense [e.g. intent in all specific intent
crimes], or tend to prove the conduct of the person possessing it [e.g.
depression or statement of intent to takes oneʼs own life as evidence of
suicide]).
i. Mutual Life Ins. v. Hillmon, 145 U.S. 285, 296 (1892), evidence of
intention of a material fact to be proved, or as tending to prove the doing of
the act intended is admissible. There are times when a state of mind, if
relevant, may be proved by contemporaneous declarations of feeling or
intent. The state of mind of the declarant is not required to be an actual
issue in the case. The state of mind of the declarant is used
inferentially. When the performance of a particular act by an individual
is an issue in the case, his intention (state of mind), to perform the act
may be shown. From that intention, the trier of fact may draw the
inference that the person carried out his intention and performed the
act.

NOTE: In Hillmon, the present state of mind is circumstantial evidence of a

future state of mind. Walters wrote a letter expressing his intent to go to
Crooked Creek, which that intention continued into the future until he
arrived at Crooked Creek. Its probative value will turn on such factors as the
strength of the present resolve and the time lapse between the present
intent and the anticipated action. Likewise, the present state of mind is also
circumstantial evidence of a past state of mind. Ex: Where Joe had been
assaulted in the past and the declarant presently states “I would like to kill
Joe." The existence of the present state of mind, as indicated by the
statement, increases the probability that the declarant had the same state
of mind in the past and therefore acted consistently with it. Thus, the
statement has independent relevance. * A proponent cannot use the state
of mind exception to prove a past act or occurrence where the declarant
was only a witness and not a participant because then, the declarantʼs past
actions are irrelevant to the eventʼs occurrence or his past state of mind
that controlled the conduct. His present and past states of mind have no
independent relevance, b/c the events being proven through the statement
were merely those that the declarant perceived and remembered–events
recorded in his mind, not controlled by his mind.
ii. FRE 803(3), The following are not excluded by the hearsay rule, even
though the declarant is available as a witness: THEN EXISTING
MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. A statement of the
declarantʼs then existing state of mind, emotion, sensation, or physical
condition (Such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but NOT including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of the declarantʼs will.
NOTE: Remember it is the declarantʼs OWN personal state of mind,

emotion, sensation, or physical condition at the immediate time period.

803(1) eliminated the need for (3) b/c (1) and (3) both consider the same
types of statements and Time periods. 803(1), by its terms, renders 803(3)
redundant b/c all statements of oneʼs “then existing state of mind, emotion,
or sensation" also would constitute descriptions or explanations of those
same conditions. The focus of 803(1) is on observed events rather than
subjective states of mental or physical conditions.
iii. U.S. v. Pheaster, 544 F.2d 353 (1976), a declarantʼs statement of

intentions may be used as circumstantial evidence of the conduct of a third
person with whom the declarant intended to act. See U.S. v. Delvecchio,
816 F.2d 859 (1987) ct imposed a corroboration requirement on the use of
the declarantʼs statement; i.e. independent evidence connecting the
statement with the activity.
4. State For Purposes of Medical Diagnosis or Treatment
a. Common Law: statements of present physical conditions that the
declarant was experiencing are not excluded by hearsay rule under the
common law. The statementʼs spontaneity diminishes the hearsay
consideration for sincerity. The proponent must demonstrate two things:
i. The statement was describing a present physical condition–not assertions

of past pain or of the cause of the present condition; AND
ii. The statement was a natural and spontaneous expression of that

condition and not a response to a question or made under other conditions
of apparent insincerity.
NOTE: This exception is applicable regardless of the person to whom the

declarant made the statement, b/c the statementʼs reliability stems from its
spontaneous nature, not from the purpose for which the declarant made the

statement. Cts. consider statements to medical personnel trustworthy.
b. Some cts precluded statements to a physician in response to questions

related to the declarantʼs medical history when asserted for the purpose of
proving the truth of what the patient previously said, b/c those statements
gave rise to memory problems. However, many cts did allow doctors to
repeat all of the patientʼs statements of present and past symptoms of
illnesses for the purpose of proving the truth of what the patient asserted.
c. More progressive cts fell that if the patientʼs primary purpose for
consulting the physician was to obtain treatment, then there is adequate
assurance of trustworthiness. If the patient was developing the physicianʼs
testimony for litigation, those ct use that as a factor in assessing the
statementʼs credibility when determining the admissibility of the statement.
The Majority of courts hold that the requirement that the sole purpose
of the consultation is for obtaining treatment.
b. FRE 803(4), The following are not excluded by the hearsay rule, even
though the declarant is available as a witness: Statements made for
the purposes of medical diagnosis or treatment AND describing
medical history, or past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment.
NOTE: A patientʼs statements concerning the cause of his injury or illness

are admissible for TRUTH, if they are reasonably pertinent to diagnosis or
treatment. A causational statement need only be “pertinent" to diagnosis or
treatment to be admissible. Statements to “hospital attendants, ambulance
drivers, or even members of the family might be included," Advisory
Committee Notes. If the proponent can establish that the declarant sought
medical treatment through the communication, it may not matter whether

the person to whom the declarant made the statement was medically
trained or whether the person was expected to report to one who was
medically trained. 803(4) may include not only statements to family, friends,
but also coaches and trainers.
i. U.S. v. Narciso, 446 F. Supp. 2552 (1977), FRE 803(4) is limited to

related facts which are “reasonably pertinent to diagnosis and treatment."
The admissibility of a statement by a patient is tested by whether the doctor

would rely on the facts contained in the statement solely for treatment, and
also the patients motivation for giving the information. If his motive was to
aid in his own treatment/diagnosis, then it is assumed to be trustworthy. If
the declarantʼs motive is to indicate who is civilly or criminally culpable, his
response is then considered accusatory and the statementʼs reliability is
destroyed.
*To prove the truth of the statements through these records = Dbl Hearsay.
The records are testifying that the person creating them “told" it what the
patient said. 803(6) + 803(4).
*See Weinstein EVIDENCE § 803.09(4), “the test is whether the declarant

thought it relevant, and also whether the doctor would reasonably have
relied upon such a statement in deciding a course of treatment."
ii. Statements to a doctor for any purpose other than diagnosis or treatment
are inadmissible. There are no limitation on the kinds of diagnosis or
treatment that a patient must seek for his statements of past or present
symptoms or conditions to be admissible. [Psychiatric] Patients cannot
testify about the doctorʼs statements unless excited utterance or another
exception to hearsay. The Dr. Patient privilege is Waived if the patient calls
the doctor to testify. Statements of causation are admissible for truth under
803(4). However, the Advisory Notes made it clear that “statements as to
fault ordinarily would not qualify," for admissibility under the rule. Ex:
patientʼs statement he was struck by a car–admissible. Statement that he
was struck by a car that had run a red light-inadmissible.
iii. FRE 803(4) permits a court to admit a patientʼs statements of medical

history for the truth of the matter asserted.
iv. OʼGee v. Dobbs Houses, Inc., 570 F.2d 1084 (1978), 803(4) permits the
admission of what the patient told the doctor about her condition, so long
as the doc relied on it in formulating his opinion. The Rule permits the doc
to testify about the patientʼs recollection of former doctorsʼ opinions where
the testifying doc has before him their reports and the Dfs were aware of
what those reports showed.
5. Recorded Recollection Exception
a. FRE 803(5), The following are not excluded by the hearsay rule, even
though the declarant is available as a witness: A memorandum or
record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness
to testify fully and accurately, shown to have been made or adopted by
the witness when the matter was fresh in the witnessʼs memory and to
reflect that knowledge correctly. IF admitted, the memorandum or
record may be read into evidence but MAY NOT be received as an
exhibit UNLESS offered by an adverse party.
NOTE: an out of ct statement can be adopted by another declarant and

admissible b/c its use is only to trigger the memory of the witness.
ANYTHING can be used to refresh a witnessʼ memory: documents, audio,
video, computer data/disc, pictures. The correct standard of proof is a
“Insufficient recollection," which is not total failure of present
memory. The second portion is equally demanding; hence, if the
witness is unable to testify “fully and accurately," does not mean that
the witness must be able to duplicate every word of the report during
testimony in order to introduce the evidence. IF the witness can
remember basically what was in the recorded statement, even if he needs
to look at it to refresh, the proponent may not supplement that testimony
with the written statement.
b. U.S. v. Williams, 571 F.2d 344 (1978), to be admissible (as Past

Recollection Statement), the memorandum or record must have been
made “or adopted by the witness when the matter was fresh in his mind and
to reflect that knowledge correctly." By signing and swearing to the
statement the witness adopted it. He testified that the contents were fresh
in his mind when he made it and that it was true and accurate at that time.
The Rule applies only to memorandum or records of matter that “a witness
once had knowledge but now has insufficient recollection to enable him to
testify fully and accurately." Once established that the in ct testimony would
be incomplete b/c of insufficient recollection, the statement adopted when
the events were fresh and which the witness testified to its truth and
accuracy, it became admissible. Committeeʼs Notes make it clear that the
method of establishing the initial knowledge of the declarant and the
accuracy of the material sought to be introduced must be determined from
the circumstances of each case.
c. Blakely, Past Recollection Recorded . . ., 17 Hous. L. Rev. 411, 446-461

(1980), in summary, cts require, as traditional foundation, a proponent of
past recollection recorded statements before admitting it as evidence 1) the
recollection must have been reduced to writing; 2) the maker of the record
must have had firsthand knowledge of the facts recorded; 3) the record
must have been made at the time of the event, or while fresh in the makerʼs
memory; 4) the witness must verify at trial that the record accurately
reflected his knowledge at the time it was made; 5) the original writing must

be produced in court and offered to the opponent for inspection and cross.
In the MAJORITY of cts the witness must lack present memory of the facts
contained in the writing.
d. A recorded recollection is not admissible as an exhibit UNLESS the

adverse party offers it. The proponent may introduce its contents into
evidence only through the testimony of someone who reads it into the
record. It s not a substitute for memory.
e. Under 803(5) the declarantʼs availability and unavailability are material.

The declarant must be available to verify the writingʼs accuracy, but
unavailable due to loss of memory, to testify to the writingʼs substantive
content.
* FRE 703 allows experts to base their opinions on otherwise inadmissible

facts or data, so long as they are of the type reasonably relied on by experts
in the particular field.
f. If a declarantʼs present sense impression statement is made in writing,

803(1) offers a way to circumvent the limits of 803(5). No need for
availability to authenticate, or unavailable for the inability to testify.
6. Business Records, Learned Treatise, and Residual Exceptions
a. Common Law Elements–Documents maintained in the routine course of

business for the purpose of furthering business ends are sufficiently reliable
to be admissible for the truth of the matter that was recorded. There is no
need to test the documentʼs reliability through cross exam if the custodian
can establish that the entries had been made:
i. In the regular course of business, pursuant to a business duty;
ii. By Someone with personal knowledge of the facts recorded or by

someone with whom another person with personal knowledge and a

business duty had reported; and
iii. At or near the time of the recorded transaction.
NOTE: Entries made pursuant to a business duty diminishes sincerity

problems; requiring that the entry be based on facts personally
observed by someone with a duty to report them lessens the problems
with perception; and the business itself, in reliance on the records,
decreases any accuracy problems.
1. Johnson v. Lutz, 253 NY 124 (1930), a business record is admissible if it

is made in the regular course or dealings of any business, profession,
occupation, or calling, and the person making the record had duty to report
those facts or report them to another for recording and had personal first-
hand knowledge.
NOTE: the statementʼs relevance, it truth, created a double hearsay

problem, b/c the witness to the accident made a statement that was
overheard by the officer, who in turn recorded it. Yet, the mere
utterance could have had relevant value aside from the truth if the
witness had testified at the trial inconsistently with his prior statement
to the officer. In such a case, a party could offer the prior statement
for impeachment purposes.
2. [If the Business Records Are Prepared under Conditions That Would
Indicate a Lack of Trustworthiness, a Court must Exclude Them.] Palmer v.
Hoffman, 318 U.S. 109 (1943), the fact that a company makes a business
out of recording its employeesʼ versions of their accidents does not make
them records made “in the regular course of business." Records calculated
for use in litigation or created for litigation are inadmissible b/c they were
not made in the regular course of railroading. “Regular course" of business
must find its meaning in the inherent nature of the business in question and
in the methods systematically used for the conduct of the business as a
business.
b. FRE 803(6), A memorandum, report, record, or data compilation, in

any form, of acts, events, conditions, opinions, or diagnosis, made at
or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of regularly conducted business, and
if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, or by
certification, (902[11] or [12]), or a statute permitting certification,
UNLESS the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term “business" as
used . . .includes business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit.
1. The difference between 803(6) and the C.L. is 803 allows the admission
of opinions in all business records without qualification, so long as the other
elements of the rule; timeliness, personal knowledge and business duty, are
satisfied, and the opponent makes no showing that the source of the
information recorded or the circumstances of its preparation indicate a lack
of trustworthiness.
2. A proponent must show that the person called to authenticate a

document as a business record has sufficient knowledge about the
company and its record-keeping practices to be able to vouch that the
requirements of 803(6) are satisfied.
3. FRE 902(11) and (12) spell out the existing foundation requirements for
business records under 803(6)-and include 1)written notice; and 2) that the

records be made available to the adverse party.
4. So long as the elements of the business records exception are

established through the testimony of a qualified person, neither the nature
of the business nor the form of the record will preclude its admission.
scrapbook clippings, pocket calendars, handwritten notes. Even regularly
kept records of illegal activities qualify for admission so long as they were
systematically maintained and relied upon by the maker. See U.S. v.
McPartlin, 595 F.2d 1321 (1979); and U.S. v. Hedman, 630 F.2d 1184, 1189
(1980).
5. Relative to computer records, the requirement that the records be

prepared in the course of a regular activity pertains only to the manipulating
of the data, and NOT to any subsequent production of that information,
even if made in the preparation of litigation. See U.S. v. Hernandez, 913 F.2d
1506, 1512-13 (1990), “so long as the computer data compilation was
prepared pursuant to a business duty in accordance with regular business
practice, the fact that the hard copy offered as evidence was printed for
purposes of litigation does not affect its admissibility."
i. The reliability of the computer printout is the most important factor in

determining whether the record should be admitted under the business
record exception. There are three basic sources of computer mistakes:
human error, mechanical error, and deliberate falsification. The latter being
the most serious.
ii. Because of the inherent efficiency regarding tasks performed by

computers, the number of persons familiar with the record keeping process
involved decreases. A computerized system updates records by combining
new and old entries, destroying the latter. This results in the loss of
intermediate records, which can be not only a valuable evidentiary aid in

establishing reliability of the offered evidence, but also a deterrent to a

party contemplating falsification.
iii. Unless a court imposes foundation requirements specifically developed

to test the reliability of the computerʼs data base, the chance of admitting a
printout containing falsified information increases significantly. Two false
problems are posed to courts in determining the reliability of the computer
printout: 1) the reliability of the hardware per se is irrelevant; and 2) the
requirement that a “transaction be recorded at or near the time of its
occurrence" is irrelevant to determining a printoutʼs dependability. Input
procedures, the data base, and programs are unaffected by the passage of
time.
6. Under Palmer v. Hoffman, the trial judge is permitted to exclude

business records that otherwise qualify for admission under the b. r.
exception IF the opponent can demonstrate that either the “source of the
information" contained in the records, or “the method or circumstances of
[their] preparation" indicate that they may not be trustworthy, e.g., motive
to fudge the truth.
NOTE: Business records often contain opinions. FRE 803(6) makes opinion
evidence admissible. McCormick On Evidence, § 307 at 875; § 18 at 46 (3rd
ed. 1984).
7. 803 does not provide that the contents of documents kept in the course
of regularly conducted business are necessarily admissible, (6) merely
provides that the documents, which may contain opinions, are not excluded
by hearsay. Under 701, “if the witness is not testifying as an expert," his
opinions are admissible only if they are based on his own perceptions.
Under 702, only a witness “qualified as an expert by knowledge, skill,
experience, training, or education," may testify in the form of an opinion as

to scientific, technical, or other specialized knowledge. 705 “the expert may

in any event be required to disclose the underlying facts or data on cross."
In other words, unless 803(6) overrides the opinion rules, it should not be
used to allow introduction of expert opinions without an opportunity to
ascertain the qualifications of the maker.
i. Reports which are prepared to state or to support expert opinions are not
admissible without the preparer being present in court to testify as to his
qualifications as an expert and to be cross examined on the substance,
pursuant to 702 and 705. Forward Communications v. U.S., 608 F.2d 485,
510-11 (1979).
8. If the business record contains an admission by the party-opponent it

does not create a hearsay problem so long as someone can authenticate
the record as having been made by the opponent or his authorized agent.
See U.S. v. Smith, 609 F.2d 1294 (1979).
9. Under 803(6) the record, as all tangible evidence, must be authenticated

in order to be relevant. It must be established that the record was made by
someone with personal knowledge of the facts and who recorded the
information pursuant to a business duty and as a routine practice in the
regular courses of business. This is accomplished by the “custodian or
other qualified person."
10. Under 1006, the best evidence rule requires that the original of
documents be used at trial when their contents are being proved, however a
summary form is allowed if the opponent is permitted to examine. However,
if the content of the summary are offered for the truth of their truth and the
summary is written rather than orally presented, a double hearsay problem
exists. The summary rule is only an exception to the best evidence rule, not
the hearsay rule. To be admissible, the proponent must find an applicable

exception for each hearsay level. Yet, if the summary is created specifically
for the litigation, they do not qualify under the business records exception,
but under past recollection record 803(5) may be applicable.
c. FRE 803(7) Evidence that a matter is not included in the memoranda,

reports, records, or data compilations, in any form, kept in accordance
with the provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of which the
memoranda, report, record, or compilation was regularly made and
preserved, UNLESS the sources of the information or other
circumstances indicate lack of trustworthiness.
1. Failure of a record to mention a matter which would ordinarily be

mentioned is satisfactory evidence of its nonexistence. The negative side of
the business records exception has been used to establish that no offer had
been made prior to the statutory cut-off date, and an affidavit was
submitted in which it stated that a the Park Foundation had no record of any
offer, written or oral. See U.S. v. 34.60 Acres of Land, 642 F.2d 788 (1981).
d. FRE 803 (8), Records, reports, statements or data compilations, in

any form of public offices or agencies, setting forth (A) the activities
of the office or agency, or (B) matters observed pursuant to a duty
imposed by law as to which matter there was a duty to report,
excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, or (C) in civil actions
and proceedings and against the Government in criminal cases, factual
findings resulting from an investigation made pursuant to authority
granted by law, UNLESS the sources of information or other
circumstances indicate a lack of trustworthiness.
Advisory Committee Notes provided four factors in assessing

trustworthiness, but did not intend to be the sole criteria,

“Trustworthiness may be assessed by 1) the timeliness of the
investigation; 2) the special skill or experience of the official; 3) whether a
hearing was held and the level at which conducted; 4) possible
motivation problems suggested by Palmer v. Hoffman.
Credibility is not the focus of the trustworthy inquiry.
1. For a public record at C. Law to be admissible, public employees had to

have made the entries contained pursuant to a public duty and the entries
must have been made based on the firsthand knowledge of the recorder or
someone with a public duty who reported to the recorder. Public records
are reliable b/c of the repetitive nature and routine manner they are created.
2. 803(8) does not permit the government to use records or reports of law
enforcement against criminal defendants to the extent that such records or
reports include either matters observed or facts otherwise found after
authorized investigations.
3. Public offices or agencies do not encompass courts. U.S. v. Jones, 29

F.3d 1549, 1554 (1994); Nipper v. Snipes, 7 F.3d 415, 418 (1993). 803(8) is
specifically limited to records or reports by “public" agencies and offices.
When a public agency delegates its administrative responsibilities to private
companies, reports of these independent contractors working under the
governmentʼs supervision are inadmissible. U.S. v. Blackburn, 992 F.2d 666,
672 (1993), but they may be admissible under 807.
4. 803(8)(C) provides for the admissibility of findings of fact in situations in

which a public official prepared the record as a result of an investigation
made pursuant to law, specifically excluding public investigative records in
criminal trials ONLY if the prosecution offers them.

i. Meanwhile 803(8)(B) excludes the most reliable public records–those that

are based on a public officialʼs observations–from criminal trials, regardless
of who offers them.
5. Beech Aircraft v. Rainey, 488 U.S. 153 (1998), factually based

conclusions or opinions are not excluded from the scope of 803(8)(C). The
requirement that reports contain factual findings bars the admission of
statements not based on factual investigation. The trustworthiness
provisions requires a determination as to whether the report is trustworthy.
Portions of an investigatory report, otherwise admissible under 803(8(C)
are not inadmissible merely because they state a conclusion or opinion. As
long as the conclusion is based on a factual investigation and satisfies the
trustworthy requirement, kit should be admissible along with other portions
of the report.
6. Zenith Radio v. Matsushita Electrical, 505 F.Supp. 1125 (1980), all exhibits
and data that might accompany a staff report are inadmissible as a group
under 803(8)(C), the drafters did not intend to piggy back the whole
administrative proceeding on top of a trial. That result would offend 102 and
403. Unless independently admissible, the exhibits do not come along as
“excess baggage," and transcripts of agency hearings are not admissible
under 803(8)(C), but may be admitted under 804(b)(1).
e. FRE 803(9), Records or data compilations, in any form, of births, fetal

deaths, deaths, or marriages, if the report thereof was made to a
public office pursuant to requirements of law.
NOTE: records of vital statistics are commonly subject to particular

statutes; Uniform Vital Statistics Act, 9C U.L.A. 350 (1957).
f. FRE 803(10), To prove the absence of a record, report, statement, or

data compilation, in any form, or the nonoccurrence or nonexistence of
a matter of which a record, report, statement, or data compilation, in

any form, was regularly made and preserved by a public office or
agency, evidence in the form of a certification in accordance with rule
902, or testimony, that diligent search failed to disclose the record,
report, statement, or data compilation, or entry.
1. Although the absence of a public record or entry in such record may not
be hearsay under 801, Congress enacted 803(10) to ensure its admissibility
in the event a court construed it as such.
2. The principle of proving a nonoccurrence of an event by evidence of the

absence of a record evolved from 803(7), for examples of federal statutes
recognizing methods of proof see 8 U.S.C.A. § 1284(b); 42 U.S.C.A. §
405(c)(3), (4)(B), and (4)(C). The rule includes situations where the
absence of a record may itself be the ultimate focus, see People v. Love,
310 Ill. 558 (1923); and also 5 Wigmore § 1678(7). Congress has
recognized certification as evidence of the lack of record, 8 U.S. C. A. §
1360(d).
g. FRE 803(11), Statements of births, marriages, divorces, deaths,

legitimacy, ancestry, relationship by blood or marriage, or other similar
facts of personal or family history, contained in a regularly kept record
of a religious organization.
1. Religious organization records are recognized under the business records

exception, 5 Wigmore § 1523, p. 372, but both 803(6) and (11) require that
the person furnishing the information be one in the business or activity. See
also Daily Grand Lodge, 311 Ill. 184 (1924), where a church record is
admissible to prove fact, date, and place of baptism but not age of child,
except that he had at least been born at that time.
h. Ancient Documents–Under the C. Law if the document were thirty years

old, unsuspicious in appearance, and produced from a place of proper

custody by a person who naturally would have custody, then the courts
accepted its authenticity.
NOTE: Authenticity and age do not equal accuracy of perception, reliability,

sincerity, or trustworthiness. The true reason for admitting these types of
documents, both at C. Law and FRE, is necessity.
1. FRE 803(16), Statements in a document in existence twenty years or

more the authenticity of which is established.
i. Dallas v. Commercial Union, 286 F. 2d 388 (1961), in matters of local

interest, when the fact in question is of such a public nature that it would be
generally known throughout the community, and when the fact occurred so
long ago that eyewitness testimony would probably be less trustworthy
than a contemporary newspaper account, the rule excluding evidence may
be relaxed out of necessity(not absolute inaccessibility), and
trustworthiness, an ancient document–(30) years or older–may be admitted
where ordinary evidence of signatures or handwriting are unavailable. This
is not a case of hearsay or its exceptions.
2. FRE 803(18), to the extent called to the attention of an expert witness

upon cross examination or relied upon by the expert in direct
examination, statements contained in published treatises, periodicals,
or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the
witness or by other expert testimony or by judicial notice. If admitted,
the statements may be read into evidence but may not be received as
exhibits.
i. Tart v. McGann, 697 F. 2d 75 (1982), the rule permits the admission of

medical literature as substantive evidence “to the extent called to the
attention of an expert witness upon cross examination or relied upon by him

in direct examination," as long as it is established that such literature is
authoritative. The Rule permits the admission of learned treatises as
substantive evidence, but ONLY when “an expert is on the stand and
available to explain and assist in the application of the treatise." IF the
literature is relevant and authoritative it may be read into the record.
ii. Limitations on the Rule: 1) If the treatise is offered to support the

direct testimony of an expert, that expert must have recognized the
treatise as authoritative AND relied upon it; or if offered to contradict
expert testimony, the proponent must call the treatise into question on
cross, AND if the expert does not recognize it as authoritative, then
another expert must or the court must take judicial notice; 2)Once
admissible, the relevant passages from the treatise may ONLY be read
into the record, it will not be accepted as an exhibit. TREATISES MAY
BE USED TO CONTRADICT OR IMPEACH A WITNESSʼ TESTIMONY.
NOTE: mere publication does not establish either the work or the author as
authoritative, see Meschino v. N. American Drager, 841 F.2d 434 (1988).
iii. In U.S. v. Mangan, 575 F.2d 32 (1978), may not be possible for a chart,
from learned treatises, to be read into evidence, there is not err if the ct
permitted the jury to examine them while they are being discussed.
i. FRE 803 (17), Market quotations, tabulations, lists, directories, or

other published compilations, generally used and relied upon by the
public or by persons in particular occupations.
1. Examples: price listings, market quotations, telephone directories, and

mortality tables, or a catalog of a wholesaler. See U.S. v. Grossman, 614
F.2d 295 (1980).

2. Under 803(17), if the custodian or other qualified person is unavailable as

a sponsoring witness, they can be admissible under 902(6) as printed
material purporting to be a periodical, or 902(7), inscriptions, signs, tags,
labels indicating ownership, control, or origin; both would be self
authenticating.
NOTE: If the custodian or other qualified person is unavailable to

authenticate a business record under 803(6), then the court may admit
under 807 and the court can take judicial notice of a fact or circumstance
and find the record, ex: transcript from a college, to be self authenticating
under 902 if it has sufficient guarantees of trustworthiness.
j. FRE 803(22), Evidence of a final judgment, entered after a trial or

upon a plea of guilty, (but not nolo contendre), adjudging a person
guilty of a crime punishable by death or imprisonment in excess of one
year, to prove any fact essential to sustain the judgment, but not
including, when offered by the Government in a criminal prosecution
for purposes other than impeachment, judgments against person other
than the accused.
1. When the status of a former judgment is under consideration in

subsequent litigation, three possibilities must be noted: 1) the former
judgment is conclusive under res judicata, either bar or collateral estoppel;
or 2) it is admissible in evidence for what it is worth; or 3) it may be of no
effect at all. When res judicata does not apply to make the judgment either
bar or collateral estopped, a choice is presented between 2) and 3).
2. When the jury returns a general verdict of guilty, a subsequent court

cannot determine which facts were essential to sustain the judgment with a
sufficient degree of accuracy to allow the judgment to be used as evidence
in the subsequent case. See Emich Motors v. G.M., 340 U.S. 558, 568-69

(1951). A prior conviction for conspiracy was excluded because it was

impossible to determine the reasons or overt acts for which the jury had
convicted the defendants. See Columbia Plaza v. Security Nat., 676 F.2d
780, 785 (1982).
3. Judgments of acquittal are not admissible to prove innocence. U.S. v.

Kerley, 643 F.2d 299, 300-01 (1981), evidence of prior acquittal is not
relevant b/c it does not prove innocence, but rather merely indicates that
the prior prosecution failed to meet its burden of proving beyond a
reasonable doubt at least one element of the crime.
k. 1. FRE 803 (12), statements of fact contained in a certificate that the

maker performed a marriage or other ceremony or administered a
sacrament, made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization or by
law to perform the act certified, and purporting to have been issued at
the time of the act or within a reasonable time thereafter.
2. FRE 803(13), Statements of fact concerning personal or family

history contained in family Bibles, genealogies, charts, engravings on
rings, inscriptions on family portraits, engravings on urns, crypts, or
tombstones, or the like.
3. FRE 803 (14), The record of a document purporting to establish or

affect an interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person by
whom it purports to have been executed, if the record is a record of a
public office and an applicable statute authorizes the recording of
document of that kind in that office.
4. FRE 803(15), A statement contained in a document purporting to

establish or affect an interest in property if the matter stated was
relevant to the purpose of the document, UNLESS dealings with the

property since the document was made have been inconsistent with
the truth of the statement or the purport of the document.
5. FRE 803(19), reputation among members of a personʼs family by

blood, adoption, or marriage, or among his associates, or in the
community, concerning a personʼs birth, adoption, marriage, divorce,
death, legitimacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of personal or family history.
6. FRE 803(20), reputation in a community, arising before the

controversy, as to boundaries of or customs affecting the lands in the
community, and reputation as to events of general history important to
the community or State or nation in which located.
7. FRE 803(23), Judgments as proof of matters of personal family or

general history, or boundaries, essential to the judgment, if the same
would be provable by evidence of reputation.
l. Residual Exceptions–FRE 807, a statement not specifically covered by

803 or 804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a material
fact; (B) the statement is more probative on the point for which it is
offered than by any other evidence which the proponent can procure
through reasonable efforts; AND (C) the general purposes of these
rules and the interest of justice will best be served by admission of the
statement into evidence. However, a statement may not be admitted
under this exception UNLESS the proponent . . . makes it known to the
adverse party sufficiently in advance of trial or hearing to provide . . .a
fair opportunity to prepare to meet it, the proponentʼs intention to offer

the statement and the particulars of it, including the name and address
of the declarant.
1. B/c the statement must be more probative on the point for which it is
offered than any other reasonably obtainable evidence, the declarantʼs
unavailability should be a prerequisite to admission of the evidence.
Otherwise, if available, her testimony, and not the hearsay statement would
be the most probative evidence on the point. See Southern Stone v. Sam
Singer, 665 F.2d 698 (1982); and U.S. v. Mathis, 559 F.2d 294 (1977). Also
note that the second necessity standard of 807 requires a demonstration
that other sources of the same evidence are unavailable.
2. For statements to fall within this exception, 807 requires that the
statements in question have “equivalent" guarantees of trustworthiness.
That is equivalent to statements admissible under other traditional
exceptions to the hearsay rule. See Note, The Residual Exceptions . . ., 31
Rutgers L. Rev. 687 (1978).
3. U.S. v. Medico, 557 F.2d 309 (1977), the trustworthiness and necessity
for the admission of the statement and the specific facts and circumstances
warranting allowing the witnessʼ testimony to come before the jury are on
par with those which justify other enumerated exceptions. However, the
Dissent correctly identified that the information that the witness testified to
created a double hearsay problem.
NOTE: as in U.S. v. AT&T, 516 F. Supp. 1237 (1981) satisfying the

requirements of 803(1), plus 804(b)(3) usually provides sufficient
trustworthiness under 807.
4. The credibility of a witness has nothing to do with whether or not his

testimony is probative with respect to the fact which it seeks to prove.
Relevance and probativeness are closely related, but credibility is not a
component of either. U.S. v. Welsh, 774 F.2d 670, 672 (1985).
5. The more common types of evidence admitted under this exception b/c
they are more probative than other reasonably procurable evidence are
polls and surveys, provided that their trustworthiness is established by a
demonstration that they were conducted according to accepted scientific
principles. See Brunswick v. Sprint, 832 F.2d 513 (1987); Pittsburgh Press
Club v. U.S., 579 F.2d 751 (1978).
6. U.S. v. American Cyanamid, 427 F.Supp. 859 (1977), Rule 807

establishes sufficient express criteria which must be satisfied before an
item of hearsay will be admissible. Since the exhibits listed conform, they
should be received. There is no requirement that the Court find a case to be
“exceptional" as a condition to receipt of the evidence. To imply such a
provision, would negate FRE 102, that “these rules shall be construed to
secure fairness in administration, elimination of unjustifiable expense and
delay, and promotion of growth and development of the law of evidence to
the end that the truth may be ascertained and proceedings justly
determined."
7. In U.S. v. Oates, 560 F.2d 45, 71-72 (1977), the ct held that public
reports which do not comply with the requirements of 803(8) were not
admissible under the open-ended provisions of 807.
V. CROSS EXAMINATION AND IMPEACHMENT OF WITNESS
A. Background
1. Witnesses
i. Lay Witness
ii. Expert Witness

2. Types of Testimony
i. Factual Testimony–Although courts continue to struggle with a clear

definition of what constitutes a “fact" the federal rules permit a lay witness
to testify to both inference and opinion in a limited sense; see FRE 601, 602,
and 701; see also 7 Wigmore Evidence § 1919).
a. FRE 701 provides, (regarding lay witnesses), that their opinion testimony
is limited: 1) rationally based on the perception of the witness (opinion
that a normal person would form from those perceptions); and 2) must be
helpful (in resolving issues), to a clear understanding of the testimony or
the determination of a fact at issue; and 3) not based on scientific,
technical, or other specialized knowledge.
b. “A witness who testifies to a fact which can be perceived by the senses

must have had an opportunity to observe, and must have actually observed
the fact. . . ." McCormick § 10, p.19
c. Evidence of personal knowledge, (foundational requirements), may be

furnished by the testimony of the witness himself; therefore personal
knowledge is not an absolute but may consist of what the witness thinks he
knows from personal perception. 2 Wig. § 650.
ii. Opinion Testimony
a. FRE 702 provides that a lay witness cannot establish scientific

fact/conclusion/opinion. FRE 702 If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of opinion or otherwise, if: 1) the testimony
is based on sufficient facts or data, 2) the testimony is the product of

reliable principles and methods, and 3) the witness has applied the
principles and methods reliably to the facts of the case.
i. The standard for admissibility under 702 is whether the specialized

knowledge “will assist the trier of fact to understand the evidence or to
determine a fact in issue. . ."
NOTE: Knowledge of what others believe can be admissible if it was

acquired from surveys conducted for the purpose of litigation where the
testimony is offered, but knowledge acquired in this manner would not be
an adequate basis for the witness to give a personal opinion of the
individualʼs character as to her opinion of what the communityʼs opinion is,
it would not be adequate basis b/c the witness has no personal knowledge
of the individual. See U.S. v. Pacione, 950 F.2d 1348 (1991).
iii. FRE 704: testimony in the form of an opinion
3. Qualification of Witness
i. Expert Witnesses qualify based on their level of skill, experience,

knowledge, and training within a specific area or expertise. It is the judge
who determines whether a witness has qualified as an expert or not.
4. Foundation–ask for what use is the evidence being offered; ex:

impeachment, (refreshment, warning—H.R. is not applicable). If character
evidence is offered, then see if FRE 403 or 404 applies, if not, then proper
foundation by 405. If a negligence case, then check if evidence falls under
subsequent repair, then check if FRE 407 is applicable, then proper
foundation.
i. Scientific Evidence–the foundational requirement with regard for expert

witnesses is shown through the knowledge, skill, education, and training of

the proposed witness.
ii. Testimony–Personal Knowledge, and Competency are foundational

requirements for lay witnesses, see FRE 601, 602.
B. Examples of Objections
1. Relevance
2. Prejudice
3. Lack of Foundation
4. Improper Character
5. Prosecutorial Misuse of Character Evidence
6. Hearsay
7. Subsequent Repair
8. Misuse of Insurance Policy
C. Cross Examination
1. Purpose–Cross Examination is the second stage in examining the

witnesses. It provides the opponent the opportunity to further explore and
clarify those matters that the proponent raised during direct examination,
and to plant the seeds of doubt regarding the witnessʼ credibility and the
reliability of her testimony.
i. Because the witness is adverse to your case, you must rely on

depositions, written statements, interviews, and prior testimony, to
determine what the person will likely say on the stand. Limit the scope of

cross examination to a few key points. At a minimum remember that cross

examination is only a small part of the trial.
2. Planning Cross Examination–Brilliant cross examination is the result of

thorough investigation, research, and planning. To effectively plan your
cross examination
i. As a preliminary matter: 1) interview ALL potential witnesses; and 2) visit

and diagram the areas in controversy; and 3) obtain ALL potential exhibits
and documents; 4) investigate the background of ALL witnesses; and 5)
develop your theory.
ii. Identify your goal. Either elicit testimony that will help your case, or elicit
testimony that will weaken your opponentʼs case.
a. To help: obtain facts that will corroborate your witnessʼ testimony, and
facts that bolster your theory.
I. The most bountiful line of inquiry concerns the opportunity for your
witness to observe the events. If oppositionʼs witness claims to have had
the ability to see the entire seen clearly, then use that witness to
corroborate facts in your witnessʼ testimony.
b. To weaken: attack the credibility, or point out mistakes, or emphasize

inconsistencies between different witnesses for the opposition.
I. Common forms of impeachment used to attack a witness personally are:

proof of bias, prejudice, or an interest. When this is shown the jury may
perceive that the witness has a personal motive to testify falsely.
II. As an alternative, you may want to attack the accuracy of the testimony
itself, by implying to the jury that for some excusable reason, poor memory,
or unfavorable vantage point, the testimony canʼt be relied upon. Show that
the witnessʼ memory is unreliable through prior inconsistent statements,

circumstances showing she had not reason to remember, inability to recall
collateral details, passage of time, or a medical condition. Attack the
accuracy of the witnessʼ perception by asking about physiological
limitations, ex: poor eyesight or hearing, intoxication, or fatigue. Physical
conditions limiting her ability to accurately perceive the events, or
obstructions to her view, or inadequate lighting, or distance, or a short
period of time in which to make an observation.
NOTE: jurors identify with witnesses more than with lawyers, so donʼt risk
their resentment for an unsuccessful attack on a witness.
D. Impeachment: Character Evidence
1. Common Law
i. Character Evidence was prohibited under the common law to prove the
individual acted in conformity with that character. Impeaching a witnessʼ
credibility with character evidence is the exception.
ii. Reputation Testimony –there are limitations on the timing and manner of
presentation of character witnesses called to challenge or reinforce the
credibility of other witnesses, and other character witnesses may be used
to challenge or reinforce. Cts have imposed two limits on cross examining
reputation witnesses: 1) the cross-examiner must have a good faith basis
for believing that the conduct about which she asks has a basis in fact; and
2) that conduct must be relevant to the character trait the reputation
witness has testified about. Ex: if testified about a prior witnessʼ credibility,
then the relevant character trait would be truth and veracity.
iii. Specific Instances of Conduct. Evidence of prior instances of conduct

to establish a partyʼs propensity to act in a particular manner are

inadmissible, unless a party offers character/reputation evidence to

impeach. If offered to prove that a witness is presently not credible because
of her propensity to fabricate or exaggerate, then a party may offer
evidence of a witnessʼ prior conduct that shows the witnessʼ character
traits for truth and veracity or her propensity to lie. This can be
accomplished through cross, with some limitations, or through independent
testimony from other witnesses when that conduct resulted in a conviction.
a. The majority permit the cross examiner to inquire about a testifying

witnessʼ prior acts that negatively reflect on the witnessʼ credibility, but if
the witness denies the prior act, the cross examiner must “take the witnessʼ
answer," and cts will not permit the cross examiner to prove perjury with
additional witnesses.
E. Federal Rules–Impeachment: Character Evidence
1. FRE 601 provides that anyone who is competent, unless otherwise

prohibited, may be a witness. If, in a civil case respecting a claim or
defense that State law governs, then competency must be determined by
State law.
2. FRE 602 provides that a witness may not testify unless evidence is
introduced to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may,
but need not, consist of the witnessʼ own testimony. This Rule is
subject to FRE 703 relating to opinion testimony by expert witnesses.
3. FRE 603 requires every witness to declare that he will testify

truthfully, by oath or affirmation administered in a form calculated to
awaken the witnessʼ conscience and impress the witnessʼ mind with
the duty to do so.

4. FRE 604 provides that interpreters are subject to the provisions of the
Rules relating to qualification as an expert and the administration of an oath
or affirmation to make a true translation.
5. FRE 605 states that The judge presiding at the trial may not testify in
that trial as a witness. No objection need be made in order to preserve
the point.
6. FRE 606 provides that a juror may not testify as a witness before that
jury in the trial in which the juror is sitting. If the juror is called to
testify, the opposing party shall be afforded an opportunity to object
outside the presence of the jury. Upon an inquiry into the validity of a
verdict or indictment, a juror may not testify as to any matter or
statement during deliberations or to the effect upon that or any other
jurorʼs mind or emotions as influencing the juror to assent or dissent or
concerning the jurorʼs mental processes, Except that a juror may
testify on the question whether extraneous prejudicial information was
improperly brought to the juryʼs attention or whether any outside
influence was improperly brought to bear upon any juror.
7. FRE 607: Who May Impeach. The credibility of a witness may be

attacked by any party, including the party calling the witness.
NOTE: Some states do not allow the proponent to attack the credibility of its
own witness.
8. FRE 608: Evidence of Character and Conduct of Witnesses.
a) The credibility of a witness may be attacked or supported by

evidence in the form of opinion or reputation, but subject to these
limitations: 1) the evidence may refer only to character for truthfulness
or untruthfulness, and 2) evidence of truthful character is admissible

only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
[i. Permits a party to bolster a witnessʼ credibility through testimony of

character witnesses only after the opponent has attacked the witnessʼ
character trait for truthfulness. Opinion or reputation that the witness is
untruthful qualifies as an attack, and evidence of misconduct, including
conviction of crime, and of corruption, however, Evidence of bias or interest
does not.]
b) Specific instances of the conduct of a witness, for the purpose of

attacking or supporting the witnessʼ credibility, other than conviction
of crime as provided in Rule 609, may not be proved by extrinsic
evidence. They may, in the discretion of the ct, if probative of
truthfulness or untruthfulness, be inquired into on cross examination
of the witness 1) concerning the witnessʼ character for truthfulness or
untruthfulness, or 2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness
being cross examined has testified.
The giving of testimony, whether by an accused or by any other

witness, does not operate as a waiver of the accusedʼs or the witnessʼ
privilege against self-incrimination when examined with respect to
matters which relate only to credibility.
i. A party may offer character evidence in the form of either reputation or

opinion testimony consistent with 405 (controlling the manner of proof), if
offered pursuant to 404(a), as circumstantial evidence of past conduct. The
cross examiner may ask the reputation witness whether she “heard" of
specific instances of the preceding witnessʼ past conduct that are
inconsistent with their testimony. The cross examiner may ask an opinion

witness, whether she “knows" about the same prior acts. The only limit on
the cross examiner is that the examiner must have a good faith factual basis
for inquiring about the incident, and each incident must be relevant to the
character trait the character witness has testified about–truth and veracity.
ii. U.S. v. Medical Therapy, 583 F.2d 36 (1978), it is the judgeʼs discretion
to allow or disallow the use of character evidence in a case where
impeachment problems of the witness have been brought out on direct,
during cross examination. When prior convictions are used for
impeachment purposes, the door is opened to the introduction of evidence
in support of truthfulness. A proponent cannot bolster her own witnessʼ
credibility after bringing our the impeachment herself on direct, this
material, brought out on direct is not perceived as an attack on credibility.
iii. 608(b) provides that a party may cross-examine a witness about prior
conduct that is inconsistent with the witnessʼ credibility. The conduct must
be probative of the witnessʼ character for truthfulness and its probative
value must not be substantially outweighed by the danger of unfair
prejudice, see 403. In determining whether prior conduct is probative of
credibility, courts examine the specific nature and character of the conduct.
iv. If a party brings out a witnessʼ specific instances of conduct during

cross, the examiner must “take the witnessʼ answer" if the witness denies
the truth of the alleged instances of conduct, and may not use extrinsic
evidence to prove the denial was false. It does not mean that the examiner
may not press those matters further. If the witness denies the misconduct,
the restriction on introducing extrinsic evidence is inapplicable where the
prior act was a crime the witness was convicted of.
v. Carter v. Hewitt, 617 F.2d 96 (1980), when extrinsic evidence is

obtained from and through examination of the very witness whose

credibility is under attack, renders 608 inapplicable. There can be no

violation of the Rule where the witness conceded authorship of the extrinsic
evidence and adopted it as an admission of the act used to impeach him.
Extrinsic evidence may not be used to refute a witnessʼ denial of specific
acts, even if this evidence might be obtained from the witness sought to be
impeached.
vi. Cts consider prior bad acts not resulting in a conviction “collateral"
because they have relevance only because of their impeachment value.
However, if the impeachment evidence is relevant to a material issue in the
litigation, it is not considered collateral. See U.S. v. Opager, 589 F.2d 799,
801 (1979).
vii. IF a party offers impeachment evidence solely for the purpose of

contradicting a witness on a collateral matter 608 compels exclusion of that
evidence. Cts distinguish between collateral matters the opponent elicited
or invited on cross and matters that the witness volunteered on either direct
or cross. In U.S. v. Flemming, 19 F.3d 1325,1331 (1994) the ban on extrinsic
evidence “does not apply . . .when extrinsic evidence is used to show that a
statement made by a defendant on direct examination is false, even if the
statement is about a collateral issue . . .A defendant may not make false
statements on direct and rely on the governmentʼs inability to challenge his
credibility as to the truth of those statements."
viii. 608 allows witnesses to be called to give their opinions about the
credibility of another witness. Therefore, one can circumvent 608(b) by
calling the witness and asking her to give her opinion about the prior
witnessʼ credibility, rather than asking about the prior act. Then to establish
the reliability of that opinion, ask the second witness to explain the basis for
her opinion of the preceding witnessʼ credibility.

ix. Other ways a party may introduce evidence that 608(b) excludes: 1) if
the preceding witnessʼ prior conduct is relevant to an issue in the action, ex:
knowledge or intent, then evidence of prior conduct is independently
admissible under 404(b); 2) if the prior act demonstrates the preceding
witnessʼ bias, it may be proven once denied; and 3) if the cross examiner
attacks the preceding witnessʼ credibility and the party who called the prior
witness puts on character evidence to bolster the preceding witnessʼ
credibility, the cross examiner may ask that character witness on cross
whether the character witness “has heard" or “knows" of the preceding
witnessʼ prior conduct that the preceding witness has denied.
x. 608 governs the offer of character evidence when any witness testifies in
any litigation. Evidence that is inadmissible under 608(b) may be admissible
under 404(b) for other purposes, intent or knowledge.
F. Impeachment: Conviction of Crime
1. Common Law
Most jurisdictions have limited admissibility to convictions for all felonies or

other crimes (misdemeanors) involving moral turpitude. Thus, almost any
crime. IF a criminal statute provides for a potential penalty of over one year,
the crime is a felony, regardless of the nature of the conduct or the actual
sentence imposed. The defendant has no control over the admissibility of
character evidence for impeachment purposes other than by refusing to
testify.
i. In exercising discretion, a number of factors might be relevant, such as

the nature of the prior crimes, the length of the criminal record, the age and
circumstances of the defendant, and Above All, the extent to which it is
more important to the search for truth in a particular case for the jury to
hear the defendantʼs story than to know of a prior conviction. Luck v. U.S.,
348 F.2d 763, 768-769 (1965).
ii. Gordon v. U.S., 383 F.2d 936 (1967), in exercising its discretion, the ct
should look to the legitimate purpose of impeachment–to show background
facts which bear directly on whether jurors ought to believe the witness,
such as convictions b/c they rest on dishonest conduct related to credibility.
The ct must also balance the nearness or remoteness of the prior
conviction. When the prior conviction is for the same or substantially the
same conduct, those convictions should be used sparingly. Even if the prior
convictions are relevant to credibility and the risk of prejudice is low, the
judge may conclude that the jury may benefit from the defendantʼs version
of the case than to have the defendant remain silent out of fear of
impeachment.
2. FRE 609: Impeachment by Evidence of Conviction of Crime.
a) For purposes of attacking credibility, 1) evidence that a witness

other than the accused has been convicted of a crime shall be
admitted, subject to 403, if the crime was punishable by death or
imprisonment in excess of one year, and evidence that an accused has
been convicted of such a crime shall be admitted if the court
determines that the probative value outweighs the prejudicial effect to
the accused; AND 2) evidence that any witness has been convicted of
a crime shall be admitted if it involved dishonesty or false statement,
regardless of the punishment.
b) Evidence of a conviction is not admissible if a period of more than

ten years has elapsed since the date of the conviction or of the release
from confinement, whichever is later, UNLESS the ct determines, in the
interests of justice, that the probative value of the conviction
supported by the specific facts and circumstances substantially

outweighs its prejudicial effect. Evidence of a conviction more than 10
years old is not admissible UNLESS the proponent gives the adverse
party sufficient advance written notice of intent to use such evidence.
c) Evidence of a conviction is not admissible if 1) the conviction has

been the subject of a pardon, annulment, certificate of rehabilitation,
or other equivalent procedure based on a finding of rehabilitation of
that person, AND that person has not been convicted of a subsequent
crime punishable by death or imprisonment in excess of one year, or 2)
the conviction has been the subject of a pardon, annulment, or other
equivalent procedure based on a finding of innocence.
d) Evidence of juvenile adjudications is generally not admissible,

however in a criminal case evidence of juvenile adjudication of a
witness other than the accused may be allowed if conviction for the
offense would be admissible to attack the credibility of an adult AND
the ct is satisfied that admission is necessary for a fair determination
of the issue of guilt or innocence.
e) Pendency of an appeal does not render evidence of conviction

inadmissible. Evidence of pendency of appeal is admissible.
NOTE: 609(a) is an exception to both 405(a), [prohibition on the use of

character evidence to prove propensity] because prior conviction evidence
is admissible to impeach all witnesses in all types of litigation; and 405(b),
because 609 constitutes evidence of prior specific conduct. Specific
instances of conduct are admissible under 404 IF they are relevant to the
defendantʼs mindset at the time of the occurrence. Regardless of whether
admissible under 609, a prior conviction may be admitted as evidence of
prior conduct that gave rise to the conviction through intent, knowledge, or

common scheme.
i. Under 609(a)(2) all such convictions are automatically admitted, but

under 609(a)(1)(balancing) felonies punishable by death or in excess of one
year are admitted only if the proponent demonstrates and the ct finds that
the “probative value of admitting the evidence outweighs the prejudicial
effect to the defendant." The burden SHIFTS to the proponent to establish
the value.
a. The higher the crime ranks on the scale of veracity-related crimes, the
more probative value it has on the issue of the defendantʼs credibility.
Perjury, forgery, and embezzlement rank at the high end.
b. The point in time of the conviction and the subsequent criminal history of
the witness also relates to the probative value of prior conviction, which
decreases as it becomes more remote in time or as rehabilitation is
demonstrated.
c. The degree of similarity between the past crime and the current crime
relates to the prejudicial effect: the greater the similarity, the greater danger
to the jury.
d. The importance of the defendantʼs testimony is assessed as a “need" of

the defendant to be able to testify without being subjected to prior
conviction impeachment. SeeU.S. v. Paige.
e. The centrality of the credibility issue should be interpreted as a factor

applying only where the special circumstances of a particular case give rise
to a more-than-average need on the part of the government to be able to
impeach the credibility of the defendant by the use of prior conviction
evidence.

NOTE: Surratt, Prior Conviction Impeachment under the Federal Rules of . . .

. Applying the Balance Approach of 609(a), 31 Syracuse L. Rev. 907, 928-
939 (1980).
ii. For all witnesses, other than the accused, felony convictions will be
excluded ONLY if the potential prejudice substantially outweighs its
probative value. If offered against the accused the evidence is admissible
ONLY if the value outweighs the potential prejudice. All felonies or
misdemeanors that involve dishonesty or false statements are automatically
admitted.
iii. 609(b) imposes 3 conditions for admitting evidence of convictions that

are older than 10 years:
a. The proponent must give sufficient advance written notice of intent to

use;
b. The proponent must demonstrate that the convictionʼs probative value

substantially outweighs the potential for prejudice–see 609(1) requiring only
that the probative value outweigh the prejudicial effect; U.S. v. Cathey, 591
F.2d 268 (1979); and U.S. v. Sims, 588 F.2d 1145 (1978); and
c. The ct must make a finding on the record that the proponent has met the
standard for admissibility. See U.S. v. Mahler, 579 F.2d 730 (1978), but
rejected in U.S. v. Holmes, 822 F.2d 802 (1987).
NOTE: If the conviction is introduced to “contradict specific

statements made by a witness on direct" rather than as an attack on
the witnessʼ credibility, 609 is inapplicable.See U.S. v. Leavis, 853 F.2d
215, 220 (1988).
iv. 609(b) is not limited to criminal defendants.

v. 609(c) bars the use of all convictions, regardless of nature, if they were
set aside by annulment, pardon or other comparable procedure based on
either a finding of rehabilitation or innocence. Pardons intended solely to
restore civil rights lost by the conviction will not affect the convictionʼs
admissibility. See U.S. v. Jones, 647 F.2d 696 (1981). IF the pardoned
witness has been convicted of a subsequent felony, the prior pardoned
conviction is rendered admissible, but not a subsequent misdemeanor.
vi. 609(d) makes juvenile adjudications admissible in criminal cases if: 1)

offered against a witness other than the accused; 2) the juvenile
adjudication was for an offense that would have constituted an admissible
conviction if the youth had been an adult; and 3) the court is satisfied that
admission is necessary for a fair determination of guilt or innocence. If the
conduct giving rise to a juvenile adjudication is probative of the witnessʼ
credibility, the cross examiner is allowed to inquire, even if the cross
examiner may not mention the adjudication based on that conduct. See
608(b). The Confrontation Clause, regarding the cross examination of
prosecution witnesses, ensures the defendantʼs right to use juvenile
adjudications for impeachment purposes. See Davis v. Alaska, 415 U.S. 308.
vii. Cts allow parties to elicit the Name of the crime, the Time and Place of
the conviction, and the Punishment, but no inquiry into the details of the
crime. See U.S. v. Boyce, 611 F.2d 530 (1979); U.S. v. Wolf, 561 F.2d 1376,
1381 (1977); and U.S. v. Callison, 577 F.2d 53 (1978)
viii. U.S. v. Smith, 551 F.2d 348 (1976), 609 allows impeachment by prior
felony convictions (for a crime involving dishonesty or false statements),
“only if . . .the court determines that the probative value of admitting the
evidence outweighs the prejudicial effect to the defendant." Dishonest and
false statements means crimes such as perjury, or subornation of perjury,
false statements, criminal fraud, embezzlement, or false pretense, or others

that involve some element of falsification or untruthfulness bearing on the

accusedʼs propensity to testify truthfully.
NOTE: For an illustrative list of prior convictions, both admissible and

inadmissible, see Rice, Evidence: Common Law and Federal Rules of
Evidence, p. 855, 4 ed. (2000).
ix. Luce v. U.S., 469 U.S. 38 (1984), a defendant who did not testify at trial
because the trial court had determined that the defendantʼs prior
convictions were admissible for impeachment purposes was not entitled to
review that determination admitting the convictions even if the defense
made an offer of proof. To raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant must testify.
x. A witnessʼ credibility can be challenged or tested by cross

examination under 608, but that challenge is limited to the answer of
the witness without extrinsic evidence, Except for a conviction under
609, then extrinsic evidence may be used, Unless probative vs.
prejudice.
3. FRE 610: Evidence of the beliefs or opinions of a witness on matters

of religion is not admissible for the purpose of showing that by reason
of their nature the witnessʼ credibility is impaired or enhanced.
i. Although the cross examiner can inquire into character evidence in the
form of a witnessʼ prior conduct during that witnessʼ cross examination for
the purpose of challenging her character trait for truth and veracity, 610
precludes even inquiry into religious beliefs or opinions. See U.S. v.
Kalaydjian, 784 F.2d 53 (1986).
4. FRE 611 Mode and Order of Interrogation and Presentation.

a) The ct shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to 1) make the
interrogation and presentation effective for the ascertainment of the
truth; 2) avoid needless consumption of time, and 3) protect witnesses
from harassment or undue embarrassment.
b) Cross examination should be limited to the subject matter of the

direct examination and matters affecting the credibility of the witness.
The ct may permit inquiry ? into additional matters as if on direct
examination.
c) Leading questions should not be used on the direct examination of a

witness Except as may be necessary to develop the witnessʼ
testimony. Ordinarily leading questions should be permitted on cross
examination. When a party calls a hostile witness, and adverse party,
or a witness identified with an adverse party, interrogation may be by
leading questions.
i. 611 generally limits the scope of cross to the scope of direct, that is only
subjects that a proponent raises on direct can be explored under cross.
This does not apply to the issue of a witnessʼ credibility under 608.
5. FRE 612: Except as otherwise provided in criminal proceedings by section

3500 of title 18, United States Code, if a witness uses a writing to refresh
memory for the purpose of testifying, either 1) while testifying, or 2)
before testifying, if the ct determines it is necessary in the interests of
justice; and adverse party is entitled to have the writing produced, to
inspect it, to cross examine the witness therefrom, and to introduce in
evidence portions which relate to the testimony of the witness. If it is
claimed that the writing contains matters not related to the subject
matter of testimony the ct shall examine the writing in camera, excise

any portions not so related, and order delivery of the remainder to the
party entitled thereto. Any portion withheld over objections shall be
preserved and made available to the appellate ct. If a writing is not
produced or delivered, the ct shall make any order justice requires,
Except in a criminal case, the order shall be one striking testimony, or
declaring a mistrial.
6. FRE 613: Prior Statements by Witnesses
a) In examining a witness concerning a prior statement, the statement

need not be shown nor its contents disclosed to the witness at that
time, but on request the same shall be shown or disclosed to opposing
counsel.
b) Extrinsic evidence of a prior inconsistent statement by a witness, is

not admissible UNLESS the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness. THIS PROVISION DOES NOT
APPLY TO ADMISSIONS OF A PARTY OPPONENT AS DEFINED BY RULE
801(D)(2).
i. The Common Law– Ladd, Some Observations on Credibility: . . ., 52

Cornell L.Q. 239 245-49 (1967);
a. The impeachment by proof of prior inconsistent statements occurs when

the attempt to refresh recollection fails because the witness denies making
the out-of-court statement and extrinsic evidence is admitted to prove that
he did in fact make it.
b. Most C.L. jurisdictions require, before proof of the statement or

introduction of the writing, that the statement must be made known or the
writing shown to the declarant so that he will have an opportunity to identify

and explain or deny it.
c. A common practice is to proceed as though attempting to refresh the

recollection of the witness, then if he denies making the statement, offering
proof by extrinsic evidence. However, a foundation should be laid,
identifying the Time, Place, Occasion, and the Person to whom it is claimed
the declaration in question was made.
ii. U.S. v. Barrett, 539 F.2d 244 (1976), to be received as a prior

inconsistent statement, the contradiction need not be “in plain terms. It is
enough if the proffered testimony, taken as a whole, either by what it says
or by what it omits to say, affords some indication that the fact was different
from the testimony of the witness whom it is sought to contradict." 613
requires that the court afford the witness, who was asked about the
inconsistency during cross, an opportunity at some time during the trial to
admit and explain, or deny. While good practice calls for the laying of a
foundation, one is not absolutely required prior to proving the utterance of
the inconsistent statement through extrinsic evidence, under 613. Failing to
inquire about inconsistencies on cross examination can result in evidence of
inconsistent statements being excluded if the witness subsequently cannot
be confronted because he cannot be recalled.
iii. In U.S. v. Morgan, 555 F.2d 238 (1977), it was held that if a witness gives
an account of a transaction with detail and precision on one occasion and
then is either evasive or selectively forgetful on another, the witnessʼ
subsequent statement is inconsistent.
iv. 613 expressly excludes conduct from the rule, the Committee Notes ‘the
rule does not apply to impeachment by evidence of prior inconsistent
conduct." 56 F.R.D. 183, 279 (1972).
v. 613(b) states ‘this provision does not apply to admissions of a party

opponent," and therefore, if there is an independent basis for admissibility,

613 is inapplicable. See U.S.v. I.B.M., 432 F. Supp. 138, 139 (1977).
vi. If the Government obtains the prior inconsistent statement as a result of

a violation of the defendantʼs 4th Amendment Search and Seizure
protections, or the 5th Amendment privilege against compelled self
incrimination, the exclusionary rule prohibits the Government from using the
statement in establishing the defendantʼs guilt. The Government may use a
defendantʼs prior inconsistent statement to impeach, by way of
contradicting testimony that the defendant gave on either direct or cross,
so long as the cross examination is within the scope of the subject matter
that the defendant voluntarily opened in her direct testimony. A defendantʼs
statements made in response to proper cross examination reasonably
suggested by the defendantʼs direct examination are subject ot otherwise
proper impeachment by the government, albeit by evidence that has been
illegally obtained and that is inadmissible on the governmentʼs direct case,
or otherwise, as substantive evidence of guilt. U.S. v. Havens, 446 U.S. 620,
626-28 (1980).
vi. Experts who give inconsistent opinions, or who assert inconsistent facts
from one case to another may be impeached with their previous
statements. Because of the technical nature of the testimony by experts, it
is more difficult for trial cts to determine that the testimony is inconsistent.
See Collins v. Wayne Co., 621 F.2d 777 (1980).
Judicial Notice
A. Facts known or easily ascertained within the jurisdiction or territory of the

court, sufficient to avoid introduction through formal proofs, such as:
i. Testimony

ii. Circumstantial Evidence
iii. Direct Evidence
iv. Written Evidence
v. Demonstrative Evidence
Ex: There is no need to bring into court an expert to explain the effects of
gravity in a case involving a tree limb causing property damage.
B. As a Shortcut to Proof, FRE 201: 1) must be generally known within the

trial courtʼs territorial jurisdiction, OR 2) capable of accurate and ready
determination by resort to sources whose accuracy canʼt be
questioned (dictionary definition of “local color"). Judicial Notice is
discretionary with the court whether requested or NOT, but if
requested by a party AND necessary information is supplied Judicial
Notice is mandatory.
*IF JUDICIAL NOTICE IS GIVEN, STOP, DONʼT ARGUE RELIABILITY, IT IS

NOW PROPERLY ADMITTED EVIDENCE.
Privilege
A. Relevant information that breaches a legal privilege is inadmissible. Legal

Privilege is controlled by Common Law–State Rules. There are no FRE. Look
at the circumstances surrounding any claimed privilege to determine
applicability. The privilege must be affirmatively asserted by the person
claiming it exists. A bona fide privilege bars relevant evidence because the
value in preserving constitutional issues is higher.
i. Attorney-client: but if other people are present there is no privilege. Also

remember work-product privilege. The memorialized strategies, thoughts

and ideas of the attorney in anticipation of litigation are protected. Work-

Product Privilege does not extend to those items not produced in
anticipation of litigation.
ii. Doctor-Patient: communications between the doctor and the client are
privileged, however if the client signed a waiver/agreement the
communications are no longer protected.
iii. Husband-Wife: generally their communications are privileged, but if no

binding marriage; such as same sex, or co-habitation, then no privilege
exists. Two major exceptions: In cases involving child abuse- – no privilege;
and in divorce cases – – No marriage, no privilege.
iv. Constitutional: 4th , 5th, and 6th Amendments provide explicit privileges.

EVIDENCE Outline

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EVIDENCE | 4 Law School 8/26/19, 11)32 PM

I. Structure of the Trial and Presentation of Evidence

a. Structure of the Trial-the FRE has not codified the structure.

1st Stage: Plaintiffʼs Case in Chief-the plaintiff must present sufficient

2nd Stage: Defendantʼs Case in Chief-(this stage is optional, that is the Df

2) Defendant can present evidence to establish an affirmative defense; or

3rd Stage: Plaintiffʼs Rebuttal– the Pl has the opportunity to respond to

4th Stage: Defendantʼs Rejoinder-the defendant has the opportunity to

respond to any additional facts/issues raised by Plʼs rebuttal.

b. Mode and Order of Presentation and Interrogation

i. Direct Examination -initial presentation of witness by the party who

*FRE 611(b) limits the scope of Cross Examination.

*Most jurisdictions limit the scope of cross examination queries to the

A. Scope of Cross Examination

FRE 611(b) Cross Examination should be limited to the subject matter of

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witness. The court may, in the exercise of discretion, permit inquiry

*The exploration of facts relevant to the witnessʼ credibility is always

iii. Re-direct Examination–If opposition is successful in attacking credibility

iv. Re-cross Examination–is the final phase of examination, where

Common law testimonial disqualifications for witnesses have been

FRE 601: Every person is competent to be a witness except as

ii. Dead Man Statutes–intended to prevent fraudulent claims against

FRE 606(b) Inquiry into validity of verdict or indictment: Upon an inquiry

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would be precluded from testifying be received for these purposes.

Only if the witness has personal, firsthand knowledge of facts relevant to

FRE 602: A witness may not testify to a matter unless evidence is

E. Questions Calling for Specific Answers

It is the partyʼs responsibility to object to questions that call for inadmissible

i. ‘Suggestivenessʼ is gauged by the judge, who has discretion in ruling on

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*The central issue is whether the question propounded was an inquiry

ii. Loaded Questions–assume the truth of unproven facts, and are

G. Exceptions to Leading Question Prohibition

Courts will allow leading questions where the consequences of leading

i. Cross-examination–based on reduced risk, efficiency, and the possibly

ii. During an examination by a party with whom the witness is aligned,

iii. Status of Witness

a. Because of the witnessʼ age, mental infirmity, or unfamiliarity with

b. A witness may qualify as an expert, but may lack knowledge of the

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makes the relevant facts known by the expert.

FRE611(c): Leading questions should not be used on the direct

3. Presenting and Excluding Evidence

A. Qualifying and Offering Evidence–FOUNDATION

I. Qualification is synonymous with authentication.

a. For testimonial evidence qualification involves identifying the witness,

b. Tangible evidence must be authenticated prior introduction by

establishing its relationship to the COA, whether it is factually related to the

c. Real evidence –all tangible evidence involved in a COA that a party

d. Direct Authentication–testimonial admissions by the party opponent

e. Chain of Custody –during the process of authenticating real evidence, a

f. Establishing a Chain of Custody is necessary in two instances:

* A Chain of Custody is not limited to real evidence, demonstrative

purpose of this threshold requirement is to establish that the item to be

g. Demonstrative Evidence –all other tangibles other than those

h. If equipment is used to demonstrate or recreate, its proponent must

i. If the evidence is a record of something that a sponsoring witness with

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Once a proponent has laid a proper foundation for the authentication, he

B. Excluding Inadmissible Evidence

I. Necessity for objection