Evidence Outline

Fall 2010
Prof. Kirgis Multiple
Choice/Essay

Rule 102: Purpose and Construction: the idea is that if we have a

reasonable fair/efficient system, then at the end of the day, justice/truth
will come out.
Burden of Proof:
1. Burden of Production – test: Evidence sufficient to support a finding
about the element of the crime charged
a. If a party fails to meet the burden of production, the case does
not go to the jury; case dismiss.
2. Burden of Persuasion – test: Persuasion of the jury that the facts are
in such a way to support a verdict.

FRE 104 Preliminary Questions

104(a)→Where the preliminary fact relates to the legal admissibility of
the offered evidence (e.g., the qualifications of an expert), the issue is
determined by the judge. The proponent of the evidence must
establish a preliminary fact by a preponderance of the evidence.
o Has to do with competence, privilege, hearsay etc –
Preponderance of evidence - the question is whether to allow
evidence into trial as evidence:
 What information needs to be consider
 What rule applies
 What standard of proof to apply
o Examples
 With experts, the proponent must persuade the judge
the expert possesses expert qualifications
 With hearsay, the proponent must persuade the judge of
the existence of any facts essential to bring the evidence
within some hearsay exception
 With duplicates, the proponent must show by a
preponderance of the evidence the original was lost
 104(b)→Where the preliminary fact goes to relevancy, credibility, or
weight of the evidence, the trial judge initially determines only
whether there has been a minimal showing of the preliminary fact.
The ultimate determination of the preliminary fact is for the
jury.
o Only admissible evidence may be reviewed
 How do you decided between 104(a) & 104(b)?
o If the evidence is absolutely irrelevant without the preliminary
fact, then 104(a) or 401 applies
o If the evidence is relevant without the preliminary fact, then
104(a) applies
Trial Overviews:
1. Voir Dire (Jury Selection)
2. Opening statement (P –D)
3. P’s Case-in-Chief (P direct and D crosses)
a. Enough evidence must be brought for or case dismiss
4. D’s Case-in-Chief (D directs and P crosses)
5. P’s case in rebuttal (P direct and D crosses)
6. D’s case in Rebuttal (D direct and P crosses)
7. Closing argument
8. Charge: Jury Instruction
9. Verdict

Rule 103(a): “Error must be predicated” –meaning you will not be able to
appeal if you do not object
1. Objections must be made in a timely manner.

RELEVANCY & PROBATIVE VALUE

FRE 401 - Relevance
Relevant evidence is any evidence having any tendency to make a fact
more probable or less probable than it would be without the
evidence that is of “consequence to the determination of the action.”
Relevancy is the sum of two different concepts:
Materiality
1. Relates to whether the evidence is offered upon a matter properly in
issue
2. Some issues are always material→credibility of witnesses
3. Relationship between the point being offered and the element
necessary. “…of consequence to the determination of the action…”
Probativeness
1. Evidence must logically tend to prove the proposition for which it is
offered
2. Probativeness is a matter of sense, logic, and experience
Note: The evidence must not make the proposition substantially more
likely than not but only somewhat more likely than not.

FRE 402
1. Only relevant evidence is admissible
2. The evidence must bear a sufficient relationship to the matters in
dispute
3. The evidence must tend to prove or to disprove any proposition
4. Circumstantial v. Direct Evidence
a. Direct→is establishing an essential element of the case –
involves an eye witness account of the ultimate issue.

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 b. Circumstantial→an essential element not so immediate and
may require intervening inferences – drawing inferences

Rule 104(b) Conditional Relevance: Evidence sufficient to support a

finding test – When the relevancy of evidence depends upon the
admissibility of a conditioned of fact subject to the introduction of
evidence sufficient to support a finding of the fulfillment of the condition

FRE 105
Where evidence is admissible for one purpose (or as to one party), it is not
rendered inadmissible solely because it is improper or irrelevant for some
other purpose.

FRE 403 - Balancing

Evidence may be excluded if its probative value is substantially
outweighed by the danger of:
 Unfair prejudice →refers to the danger that evidence might suggest
an improper basis upon which the jury could decide the case.
o The test is not whether the evidence is detrimental, but
whether it is so unfairly prejudiced as to substantially outweigh
its probative value.
o Evidence can trigger a response that has nothing to do with its
logical connection to a fact of consequence.
o A single item of evidence can generate several different
inferences and be used by the jury in more than one way.
o This rule prohibits the use of prior specific acts to prove action
in conformity with the character.
 Confusion of the issue→evidence confuses the issues when it focuses
the jury’s attention too closely on a factual issue that is not central to
the outcome of the case. Such issues are called collateral
 Misleading the Jury
o A risk that a jury may give a piece of evidence more weight
than it deserves
 Undue delay
 Waste of time
 Needless presentation of cumulative evidence

With 403 you must assess the probative value by examining:

1. Strength of the underlying inferences
2. Certainty of the starting point
a. Judges may not consider the credibility of witnesses, it is the
jury’s job to determine the weight; the judge only determines
the relevancy
3. Need

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 4. When an item of evidence has a proper relevant use to prove a fact
of consequence but also creates the risk of an improper use, the
judge may give a limiting instruction that directs the jury to
consider the evidence only for its proper use.

Objections:
1. Ambiguous or vague
a. Used when a question is unclear
2. Argumentative
a. Used when counsel tries to conceal argument to the jury in the
form of a question. Example: After defendant’s brazen
disregard of the safety of everyone in the store, what did you
do next?
3. Asked and answered
a. Used when a question rehashes testimony already given
4. Assumed facts not in evidence
a. Used when a question presupposes some fact that has not yet
been established by testimony (classic Example: When did you
stop beating the your wife -- assuming no prior testimony that
he did)
5. Badgering the witness
a. Used when the counsel is being argumentative with witness.
6. Calls for narrative response
a. Used in response to question that is so broad and open-ended
as to make it possible for opposing counsel to anticipate
whether the witness will provide relevant, admissible
testimony.
i. Possibility of the witness giving out more than required
ii. Can be damaging
iii. Can be cross on if witness mentioned
iv. Want to know what the witness will mention
7. Compound question
a. Used when questions contains two or more included questions
so that an answer will be ambiguous. Example, did you see the
victim on the night of the allegedly robbery and did she seem
upset?
8. Mischaracterizes the evidence
a. Used when the counsel, when questioning a witness
summarizes prior testimony in a way that distorts it. Example.
Mr. Jones, earlier you testified that you disregard the puddle in
aisle nine…. (Assuming Mr. Jones did not so testify)
9. Nonresponsive
a. Used by questioning attorney to object to testimony that does
not answer the question asked.
10. Leading question: is a question that suggests the answers.

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 1. Should not be used on direct examination of a witness except
as may be necessary to develop the witness’s testimony.
2. A statement and add a question to it.
3. Problems: because we want the testimony to come from a
competent person. A person that have a personal knowledge
of the event.
a. So the attorney asking a leading question is not
competent to testify because they are not there at the
event. Leading question is a way for the attorney to
testify to events when they are not there.
i. Leading rules are not absolute.

FRE 611- Cross -Examination

1. Cross examination is limited to matters on direct examination and
matters affecting the credibility of the witness→
2. 611(b): Questions addressing issues of scope of direct examination
i. Example: Π testifies he was bitten without provocation
by a brown German Shepard with a white paw. Π calls Δ
as an adverse witness and only asks 1 question: Do you
own a brown German Shepard with a white paw. Δ
answers yes. Δ attorney asks Δ that dog is gentle and
never bites without provocation. Π objects. It should be
inadmissible subject to court’s discretion b/c Δ’s answer
goes beyond direct examination.
1. When one party asks the other party as an
adverse witness and asks only one question, the
party is limiting the scope of the testimony to that
one question. The only issue brought up was
ownership.
2. 611(c): Leading questions
i. Generally not allowed on direct examination except
when:
1. Preliminary background information
2. Examination of expert witnesses
3. Child witnesses
4. Hostile or adverse witnesses

FRE 601-602-603-604 – Competency Foundation

Competency/Evidentiary Foundations (Perception, Recollection,
Sincerity, Narrative capacity)
Rule 601 – General Rule of Competency - 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.

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 o Every person is competent to be a witness except where state
law supplies the rule of decision.
 Example, in a diversity case where state law supplies the
rule, a child witness to be competent would have to
meet the 3 required elements under common law.
o Test for competency is the minimum competency test
 Requires personal knowledge (FRE 602)
 Requires declaration to testify truthfully (FRE 603)
• Dispense with strict competency requirements and
let the jury weigh the evidence. (104(b))
1. Rule 604 - Narrative capacity – ability to communicate
a. Interpreters – Qualification like an expert; administration of
oath or affirmation to make true translation.
2. Rule 603 – Sincerity – Oath or Affirmation –
a. Witness must promise that he will tell the truth. Two Goals:
Impress upon the witness how serious it is; Set the predicate
for a perjury prosecution.
b. Person must have Capacity to distinguish truth from fantasy
(drugs? Credibility shall be judged by jury)
i. NY removes the oath for witnesses under 9. But - court
still wants to know the child knows the difference
between fact and fiction.
3. Rule 602 – Perception – First-hand knowledge Requirement. –
relevance depends on perception
a. Witness must have personal knowledge of the matter –
evidence sufficient to support a finding (could be based on
witness’s own testimony)

FRE 612 – Refresh Recollection

To refresh recollection: Memory may be refreshed by leading questions or
writings either while testifying or before testifying.
1. Present Recollection Refreshed
a. Triggers current memory
b. W. must testify to a lack of memory & testify that refreshing
item will trigger Memory
c. Item must actually refresh memory
d. Refreshing item must not be admissible, but must be shown to
opposing Counsel
e. Opposing Counsel may introduce into evidence …b
i. Limitations
1. Witness must testify without looking at the writing
(can have a moment to refresh but attorney must
take the writing back).

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 2. Opposing counsel has an absolute right to inspect
the document, to cross examine using the
document, and introduce relevant portions of the
writing.
3. Witness need not have made writing herself.
4. Writing need not be admissible in evidence.
2. Past Recollection Recorded – no present recollection at all
a. Available when W has no memory
b. Record must “correctly reflect W’s prior knowledge
c. Record must have been “made or adopted” by W
d. Record must have been made or adopted when matter was
“fresh” in W’s mind
e. Record is read into evidence but not admitted as exhibit
unless offered by opposing counsel

FRE 605- Competency to Testify

Competency to testify
a. Rule 605. Competency of Judge as Witness –
i. 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.
b. Rule 606. Competency of Juror as Witness –
i. (a) At the trial. - A member of the jury may not testify
as a witness before that jury in the trial of the case in
which the juror is sitting. If the juror is called so to
testify, the opposing party shall be afforded an
opportunity to object out of the presence of the jury.
ii. (b) Inquiry into validity of verdict or indictment. –
They can only testify to:
1. (1) whether extraneous prejudicial information
was improperly brought to the jury's attention,
2. (2) whether any outside influence was
improperly brought to bear upon any juror, or
3. (3) whether there was a mistake in entering the
verdict onto the verdict form.
4. NO – discussing deliberations.

c. Dead Man’s Rule - Prevents living witness fabricating

evidence against a deceased party.
i. New York’s Dead Man Statute - CPLR 4519 
1. Trial on the merits (at the actual trial)
2. [An interested person or predecessor to an
interested person
3. may not testify
4. on behalf of himself or his successor]

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 5. [against the decedent’s representative or
successor]
6. about personal transactions or
communications between witness and
decedent
7. unless waived (anyone from the estate’s side can
waive)
a. DMS – allows testimony as to the facts on
accident not to conversation
b. DMS – is coerced by 104(b) – standard for
determining if DMS applies is by
Preponderance of the evidence

FRE 701 & 702 – LAY & EXPERT TESTIMONY

FRE 701→Lay opinion
Generally, lay witnesses cannot offer testimony opinion, but – standards
for admissibility:
1. A lay witness may testify in the form of opinion or inferences if
opinion are:
a. Rationally based on the perception of the witness AND
b. helpful to a clear understanding of the testimony (leads to
relevancy)
i. Opinion is helpful, if it captured more than the witness
can explain
ii. Convene information is a sufficient way that is more
helpful for the jury to understand it in a concrete way.
c. Must have personal knowledge
d. Scope→ permissible to talk about:
i. Speed and other physical measurements (height,
weight, color)
1 Not to say car was driving recklessly, bridge was
properly constructed→ improper forms of lay
opinions. Legal conclusions must be avoided.
ii. Identity of a person
iii. Sensory descriptions (sound, smell, taste)
iv. Value of property
v. Familiarity with one’s handwriting
vi. Sanity, Emotional State (happy, sad), Irrational Behavior
1 But not mental incompetence
vii. Physical condition (appeared drunk, was intoxicated, but
not alcoholic or schizophrenic→ require expert opinions)
e. Lay witness cannot talk about what’s is the defendant’s head
f. Ultimate issue – the application to the element of the claim –
Witnesses cannot be allow invading the province of the jury.

FRE 702→Qualifications of Expert Witness

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 1. Must be qualified as an expert by knowledge, skill, training,
education, or experience
2. Opinion must be helpful or assist the fact-finder to understand the
evidence or to determine a fact in issue - relevance
3. Must be within the expert’s field of expertise
i. Based upon sufficient facts or data
ii. The product of reliable principles or method; and
iii. W must have applied principles and methods reliably to
the facts
b. Expert truck mechanic may not give an opinion as to the speed of
two vehicles at the point of impact. You would need an expert
on accident reconstruction.
Daubert:
1. Evidence must be scientifically valid
2. Reasoning/Methodology behind evidence can properly be applied to
facts in case

Facts courts consider: Ct should look to determine scientific knowledge:

1. Testability /Falsifiability - Is the theory/technique tested/testable?
2. Publication and Peer Review -Has it been subjected to peer
received?
3. Potential Error rate?
4. Generally accepted?
5. Existence of controlling standards

KUMHO: Judges must serve gatekeeping roles in regards to all expert

testimony
1. Some of Daubert factors does always apply in some non-scientific
testimony
a. In those situation, the Daubert factors are flexible –
i. so court can look at the factors and see which ones
apply
2. The Daubert factors are a non-exclusive list.

Exams Analysis:
1. Is the evidence relevant
a. Is expert testimony must assist trier of facts
2. Is the expert witness competent
3. What is the underlying principle
a. Background knowledge about the world
b. Do we have confidence in the underlying principles the Expert
W is trying to apply.
c. To do that we look at Daubert
d. Go through the factors
4. What is the methods used?
a. How did Expert conduct experiment and reach his conclusion

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 b. Apply the Dauber test again

FRE 703: Bases of Expert Opinion

1. May base opinion on:
a. Facts perceived by her or made known to her at or before the trial
i. Testimony by a coroner as to the findings of an autopsy
ii. Facts about a fatal accident made known to the expert
at trial despite her lack of personal knowledge
iii. Lay vs. opinion: expert need not have personal
knowledge, but a lay witness must have personal
knowledge
b. Facts reasonably relied upon by experts in the particular field
i. An expert opinion may be based on facts not in
evidence or on inadmissible hearsay
c. Opinion based on Hearsay – Expert usually cannot based opinion
on hearsay unless (Exception)
i. If the facts or data are reasonably relied upon by
experts in the same field in reaching their conclusion;
the fact will constitute permissible basis for the expert
opinion even though it is based on hearsay.
1 However, the hearsay will not be allowed to be
repeated to the jury
2 Can based opinion on hearsay but cannot say he
based his opinion on it
3 Opinion that relied solely on hearsay is not
something that would be reasonably relied on by
other expert in that field.
FRE 704 – Expert Testimony as to Ultimate Issue
1. 704(a):
a. An expert witness may testify as to an ultimate issue
i. Contrary to common law rule
2. 704(b):
a. Limited to criminal cases
b. An expert may not give an opinion as to whether a criminal
defendant did or did not have a particular mental state
constituting an element of the crime charged or a defense
thereto.

FRE 705: Cross Examination of Experts

1. An expert need not give the reasons for her opinion on direct
examination.
a. She may be required to disclose such facts on cross-examination.

FRE 901: Authentication and Identification of Exhibits

 All exhibits must be shown to be what they are claimed to be before
they can be admitted into evidence.

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 o Real evidence→documents, writings, voice samples, physical
evidence
o Demonstrative evidence→explanation evidence (visual aids,
charts, maps, etc.)
 FRE 901(a) establishes the evidentiary standard that the proponent of
an exhibit must satisfy for the judge to admit the exhibit.
o There is a relevancy theory requirement—there must be a
connection between the item and the parties or events in the
case.
o There must be evidence sufficient to support a finding.
 Evidence upon which the judge thinks a jury could
reasonably find a fact to be more likely true than not.
 FRE 901(b) sets forth illustrations of the kinds of foundation facts that
the drafters of FRE believe should satisfy that standard.
o There must be some authenticity and identification
o Real evidence—tangible items
o Two principle methods of identification:
 Witness may recognize item
 Chain of custody→to ensure no one has tampered with
the evidence.
1. Distinction between “real evidence” vs. “demonstrative evidence”
a. Real evidence - Actually played a role in the events giving
rise to the litigation (can be used for all purposes)
b. Demonstrative evidence - Created for trial in order to
illustrate and help the jury to understand (more limited
application; not given to jury)
2. Rule 901(a): The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its
proponent claims
3. Process of authentication and identification of exhibits
a. Mark exhibit for identification (Once in evidence, becomes
Π’s/∆’s exhibit – number changes)
b. Show to opposing counsel
c. May I approach the witness?
d. I now show you what has been marked as Ex. 1 for
identification. Do you recognize it? What is it?
e. IF REAL EVIDENCE... (Real evidence – you want to ensure
it gets into evidence.)
i. How do you know it is what you say it is? (standard:
Sufficient to support a finding)
1. 901(b)(1) or (4) - Distinctive objects
(recognition leads to authentication)

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 a. (1) Testimony of witness with
knowledge. Testimony that a matter is
what it is claimed to be.
b. (4) Distinctive characteristics and the
like. Appearance, contents, substance,
internal patterns, or other distinctive
characteristics, taken in conjunction with
circumstances.
2. Non-distinctive objects – Chain of custody -
Must account for its every step between seizure
and use in courtroom
3. Authenticating Writings –
a. 901(b)(1)/(4) - Someone can simply
recognize the writing from seeing it before
and testify to that.
b. 901(b)(2) - Lay witness can recognize
handwriting from knowledge he/she had
from before the litigation (not acquired for
litigation)
c. 901(b)(3) – authentication of the writing
with the original specimen that was written
by the defendant. (can be given to jury to let
them decide whether it’s authentic).
d. 901(b)(5) & (6) - Voice identification &
Telephone calls –Doesn’t matter when or
where witness became familiar with person’s
voice – more distinctive than handwriting
i. Outgoing phone calls – identification
of the person you’re calling b/c they
are at that number – that’s pretty
good.
ii. Incoming phone calls –how can you
be sure that the person on the other
end of the phone is who they say they
are.
e. Reply doctrine - If the circumstances and
contents of a letter indicate that it is a
response to an earlier letter, that is sufficient
to support a finding that the reply was
written by its purported author
f. Self-authentication – 902 – Certification
can authenticate.
i. 902(4) - Government
documents/public records:
ii. 902(11)/(12) - Private business
records:

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 iii. 902(6) - Printed materials
(newspapers and magazines) are self-
authenticating
iv. Certification must indicate that
record was:
1. (A) was made at or near the
time of the occurrence of the
matters set forth by, or from
information transmitted by, a
person with knowledge of
those matters;
2. (B) was kept in the course of
the regularly conducted
activity; and
3. (C) was made by the regularly
conducted activity as a regular
practice.
g. NY 3122(A) – you can do essentially the
same thing – fulfill foundational requirement
by affidavit. A little more technical than
federal statute.
f. IF DEMONSTRATIVE EVIDENCE (potentially prejudicial, so
you need foundation of underlying data).
i. (Photos/videos) Does it fairly and accurately depict
events / locations / etc.
ii. (X-rays, videos, radar, simulations): Was machine
working? Did operator use proper procedures?
1. 901(b)(9) – process or system – does it regularly
produce accurate result?
iii. (Illustrative exhibits) Does it fairly and accurately depict
____? Will it assist you?
iv. I offer what has been marked as Ex. 1 for identification
into evidence as exhibit 1
4. Electronic Data and Evidence – web page / course of dealing via
email
a. Same rules (901(b)(1) person with knowledge; 901(b)(4) –
Distinctive characteristics; Reply Doctrine; signature, email
address, identifying characteristic like meta-data. Hash
markers to distinguish piece of electronic information.

FRE 1002 – Best Evidence Rule

 To prove the contents of a writing, the original must be produced,
unless it is shown to be unavailable.
o Situations where best evidence rule does not apply:
 Merely to prove that a writing existed

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  Merely to prove that a statement was made
 Where the contents of the writing are collateral to the
issues being litigated→FRE 1004
o Situations where the best evidence rule does apply:
 Where the writing itself has independent legal
significance
• Words of a contract, deed, etc.
 Where the writing is offered into evidence to prove an
event
 Where the testimony is reliant on the writing, not reliant
on personal knowledge
o 2 layers of best evidence rule
 Best evidence
 Hearsay
 Example: Witness is listening to police scanner and
hears that red and (speeding) blue car got into an
accident at the corner of Maple and Cedar. Witness lives
at this intersection and goes to her window and sees the
cars in the intersection. At trial, witness is produced by
the Π and asked to testify as to what she heard on the
police scanner. This would be inadmissible as hearsay.
Her testimony as to what she heard was an out-of-court
statement offered to prove its truth. She is testifying as
to the speeding blue car, but she didn’t see the blue car
speed, she only saw them after they crashed at the
intersection. How about the best evidence rule? It
doesn’t apply because there was no writing, recording,
or photograph.
Exam Analysis:
1. Does the evidence involve proof of the contents of a writing? If not,
no best evidence rule
a. Contents – involves asking the jury to draw conclusions on
what the writing said or show
b. FRE 1003
 Duplicates and photocopies are admissible and treated
as originals unless there is a dispute as to the
authenticity of the original or it would be unfair to admit
the duplicate
2. If so, is the original writing being offered? If so no best evidence rule
3. If not, is a duplicate being offered? If so, no best evidence problem
a. If not original or duplicate, can we offered something else?
i. Secondary evidence will probably consist of a testimony
as long as the original/duplicate is not destroyed or lost
in bad faith – Rule 1004

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 4. I f not original or duplicate, is there a reason why the original is not
being offered (e.g., lost, destroyed, beyond power of court, in
possession by the adversary), if so, secondary evidence may be
offered
a. However, if you have the writing but refuses to produce it – the
best evidence rule applies and you cannot offer the contents
of the writing.

Judicial Notice
1. Rule 201. Judicial Notice of Adjudicative Facts –
a. (a) Scope of rule. This rule governs only judicial notice of
adjudicative facts. (basic things that allow people to
communicate)
b. (b) Kinds of facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either.
i. local common knowledge – things that everybody in a
community knows. (territorial jurisdiction of a trial court).
ii. Can be easily or recognize through authoritative articles
- facts that might not be within the common knowledge, but facts
that are not really subject to dispute
2. Judicial notice may be taken at any time of appeal or
proceedings
3. If Appellate Court takes notice – it means the appellate court is
taken it o evidence – it therefore makes it mandatory of the jury.

FRE 407 – Subsequent Remedial Measures

 Evidence of subsequent remedial measures is inadmissible to prove
negligence or culpable conduct in connection with the event:
o Exceptions:
 To prove ownership or control
 To show an attempt to conceal or destroy evidence
 For impeachment of testimony as to the safety of the
condition
 To show precautionary measures were feasible
o Rationale:
 Subsequent repairs do not logically establish prior lack of
care
 Admitting such evidence would tend to discourage
beneficial changes from being made after an accident
FRE 408 Settlement Negotiations

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 Civil Negotiation - Evidence that a Δ has paid or offered to pay money
in a settlement of a disputed claim against her is not admissible to fix
liability as between the parties
 408 – Civil
o Cannot used anything said in settlement negotiation to prove
the element of the case
 Things are protected and anything that was said
in the settlement negotiation
o Public policy→ to encourage out of court negotiations.
o Exceptions:
 To prove bias or prejudice of a witness
 To controvert a contention of undue delay by one of the
parties
 To prove that a party attempted to obstruct a criminal
investigation
FRE 410 Plea Bargain
1. 410 – Criminal
a. Everything is protected as long as the plea bargain does not
go through
b. A guilty plea is admissible in later allegation against the
defendant
c. If the guilty plea does not go through then everything said is
protected
d. I f the plea in nolo contender then it is not admissible

FRE 409 Payments of Medical Expenses

 Evidence that a Δ paid or offered to pay medical, hospital bills is not
relevant to prove the Δ’s liability for injuries.
o But admissions of fact accompanying offers to pay medical
expenses are admissible. The admission of fact is admissible
but the statement regarding offer to pay medical bills is not.

FRE 411 Liability Insurance

 Evidence that a person was insured is not admissible to the issue of
whether a person acted negligently or wrongful. It is admissible for
other purposes than to prove the Δ liable.

FRE 404 – Character Evidence

 Character evidence is evidence of how a person generally behaves, or
behaved on some other occasion.

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 Character evidence (evidence of a person’s character or trait or a
pattern of bad conduct) is not admissible for the purposes of proving
action in conformity therewith on a particular occasion.
o Policy
 People don’t always act within their character
 Juries might be unduly swayed
o Exceptions:
 Where character is an essential element of a claim,
defense, or cause of action, character evidence is
admissible
• Defamation cases
• Child custody cases
 Where knowledge of the character of another is at issue,
character evidence is admissible
• Self-defense
• Negligent entrustment
 Where the accused opens the door under FRE 404(a)(1)
• Δ may offer evidence of good character by
reputation or opinion evidence, not specific acts,
to prove his innocence and the prosecution may
rebut with negative traits
 Bad character of the victim
• To show the victim acted in conformity with
character, then conduct would tend to prove Δ’s
innocence
• Reputation and character evidence
 In civil actions, 404(1) prohibits the use of character evidence to
show conformity, but it may be used in a civil case if the civil action is
based on culpable conduct proscribed by criminal law.
Character Evidence
1. Never Admissible in a Civil Case, Unless Character is an
issue in that case
2. Rule 404a. Character Evidence Not Admissible To Prove
Conduct; Exceptions; Other Crimes –
a. (a) Character traits are not admissible for the purpose of
proving action in conformity therewith on a particular occasion,
except:
i. Criminal defendant may offer his own pertinent
trait of character in Defendant’s case in chief.
1. Pertinent – pertinent to the crime charged.
2. Timely - Trait must have existed at the time of the
crime.

17
 3. Character trait evidence may be introduced to
negate inference that he was less likely to commit the actual crime –
in the form of opinion or reputation
4. In New York – Character evidence can only be
offered in the form of Reputation Only
ii. Prosecution may offer evidence of ∆’s bad
character to rebut evidence of ∆’s good character.
1. Prosecution may not offer character evidence in
their case-in-chief
2. Trait must be pertinent to character trait put in
issue by the defendant.
3. Evidence must be in the form of opinion or
reputation.
4. In New York – Character evidence can only be
offered in the form of Reputation Only

iii. Criminal D may offer evidence of Pertinent

Character trait of Victim’s Character –
1. Trait must be pertinent to defense (self-defense,
etc.)
a. ∆ may offer evidence of V’s bad character to
bolster his defense.
2. Evidence must be in the form of opinion or
reputation
3. In New York - Evidence of victim’s character
not admissible

iv. P may offer evidence of V’s good character to

rebut ∆’s evidence of V’s bad character.
1. Pros. may not offer evidence of V’s character in
their case-in-chief
2. D must open the door by offering evidence of V’s
character (Unless self-defense in homicide case)
3. Evidence must be in the form of Opinion or
reputation
4. Again – evidence of V’s character not
admissible in NY

Prosecution may offer evidence of V’s good

character to rebut evidence that V was first
aggressor in homicide cases: 404(a)(2)
1. D must open the door by raising defense of self-defense and
offered evidence that V was the first aggressor
2. Evidence must be in the form of opinion or reputation
3. Evidence must show V’s character for truthfulness

18
 v. Prosecution may offer evidence of D’s bad
character to rebut evidence of V’s bad character
1. D must open door by offering evidence of V’s
character
2. Evidence must be for the same character traits
3. Evidence must be in the form of opinion or
reputation
4. Evidence not admissible in NY
vi. (3) Character of witness - Evidence of the character of a
witness, as provided in rules 607, 608, and 609 - Only covers
circumstantial use of character.
3. (a)(2)→reputation or opinion testimony regarding a witness’s
good character for truthfulness is not admissible until the
witness’s character has been attacked. Bringing forth prior
convictions, bad acts.

FRE 404(b) – Prior Bad Acts (Non-Conviction Acts)

 Prior Bad Acts: Rule 404b - Character Evidence Not
Admissible To Prove Conduct; Exceptions; Other Crimes -
o (b) Other crimes, wrongs, or act [civil & criminal]
 Not admissible for action in conformity therewith
 Admissible for motive, intent, absence of mistake,
identity/opportunity (modus operandi), common scheme or plan, or
other purposes
• Actus Reus defense – if D claims that he didn’t
do it – then evidence by P that he did that action in the past will not
be allow – Propensity Argument
o Exception: modus operandi
• Mens Rea defense – However, If D is claiming
that he did it BUT he did not Intent to do such action – then P can
bring in evidence that shows D did it in the past.
o Propensity is allow show Mens Rea
• “Other Purposes” background may be a good
enough additional purpose – maybe prior conspiracies or res gestae
information.
 Procedure: Reasonable notice requirement for
criminal cases (on request)
• Criminal case – on request – prosecution must give
notice of 404b evidence it plans to introduce; ∆ may move to
exclude.
• Hearing will involve dispute about whether prior
act actually happened.
o Federal Standard: Conditional Relevance –
sufficient to support a finding that it actually happened.

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  Acquittal does not preclude admission
in Federal Court but does in New York
 New York does not have 404b
 Evidence of other crimes and acts is admissible when it is offered to
show something other than character.
o KIPPOMIA
 Knowledge
 Intent
 Plan
 Preparation
 Opportunity
 Motive
 Identity
 Absence of mistake or accident
 There must be notice of using these other crimes and acts
 Specific trait to be proved must be in issue
 Where evidence of other crimes are admissible to show
KIPPOMIA, it need not be shown that anyone was actually
convicted, just that the other acts occurred.
 Character evidence has low probative value, is highly prejudicial.

FRE 405 – Methods of Proving Character

 Use of Prior Acts as Impeachment tool -
 Where character evidence is admissible, all 3 forms of character
evidence may be used as proof of character.
o Reputation – W has personal knowledge of the reputation
 Allow the jury to inferred from the witness the individual
reputation
 Attack the knowledge of the reputation
o Opinion – Challenge your knowledge
 Specific acts can only be admitted by:
o By inquiry during cross-examination of a witness giving
reputation or opinion evidence (405(a)), or – must have good
basis
 Prior act must be pertinent to triat offered by D
 Extrinsic evidence is not allowed
o In cases where character or character trait is an essential
element of a charge
o New York – If criminal D calls character witness, P may
offer extrinsic evidence of convictions pertaining to
character trait put in issue – CPL 60.40  Strategic
importance of picking traits that don’t open the door to
convictions (don’t say “law abiding” say “peaceful”)

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FRE 406- Habit; Routine Practice
 Evidence of a person’s habit or the routine practice of an organization 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.
 Is highly probative b/c it is an automatic response to an act
 Specific instances of conduct are allowed to show habit b/c habit is
highly probative.
 2 steps Analysis:
o Have we establish an Habit – Arbitrary
o Is the habit we prove sufficiently probative on the relevance
evidence of fact of this case.

FRE 412 – Sex Offenses – Rape Shield

Sex Offense Cases; Relevance of Alleged Victim's Past Sexual
Behavior or Alleged Sexual Predisposition
a. New York – CPL 60.42 – tracks basic idea of federal rape shield
law – keeping out evidence that the rape victim was
promiscuous or behaving in lewd ways.
b. (a) Evidence generally inadmissible.
i. (1) Evidence offered to prove that any alleged victim
engaged in other sexual behavior.
ii. (2) Evidence offered to prove any alleged victim's
sexual predisposition.
c. (b) Exceptions.
i. (1)CRIMINAL - the following evidence is admissible, if
otherwise admissible under these rules:
1. Source of Physical Evidence: (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;
a. Physical evidence (injury, seamen, etc.)
is at issue – Defense is: somebody else
did it, and here’s the evidence.
2. Prior sex with ∆ proves Consent: (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
a. I reasonably believed she wanted to
have sex with me

21
 3. Constitutional Rights: (C) evidence the
exclusion of which would violate the constitutional
rights of the defendant.
ii. (2) CIVIL - reverse 403 balancing
1. Evidence admissible if otherwise admissible and
probative value substantially outweighs the
danger of harm to any victim and of unfair
prejudice to any party. Evidence of an alleged
victim's reputation is admissible only if V opens
the door.
iii. New York – pretty close - proves specific instances of
conduct with the accused.
1. Rebuts evidence of victim’s failure to engage in
intercourse over a period of time
2. Rebuts cause of pregnancy, injury, seamen,
physical evidence -∆ can show that it came as a
result of sexual conduct with someone else.
3. Prostitution conviction in past 3 years
4. Interest of justice.
d. (c) Procedure to determine admissibility.
i. (1) A party intending to offer evidence (A) file a written
motion at least 14 days before trial specifically
describing the evidence and stating the purpose for
which it is offered unless the court, for good cause
requires a different time for filing or permits filing during
trial; and (B) serve the motion on all parties and notify
the alleged victim or, when appropriate, the alleged
victim's guardian or representative.
ii. (2) Court must conduct a hearing in camera before
admitting evidence w/ V and parties. Paperwork must be
sealed.
FRE 413-415
Sex crimes→these rules override 404(b) and allow specific acts of sexual
assault to prove a person’s character or propensity for engaging in such
misconduct to show action on a particular occasion.
 413: When a criminal defendant is accused of sexual assault, the
prosecution may introduce evidence that the defendant committed
other such crimes to show his propensity to commit sexual assault
 414: Same as 413 but for when a criminal defendant is charged with
child molestation
 415: Same as 413 but for civil cases involving sexual assault or child
molestation
This evidence is still subject to 403 balancing

HEARSAY

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Hearsay is an out of court statement been (assertion made or
done by someone other than a testifying witness on the stand
that is) offered into evidence to prove the truth of the matter
asserted.
Approach to hearsay:

1. Is the statement offered to prove the truth of the matter asserted?

a. Is the statement relevant for any purpose other that does not
require accepting the truth of the matter asserted?
2. Is the statement is hearsay, is it nonetheless admissible under and
exception or exemption to the hearsay rule?

Exemptions→statements offered for their truth but still not considered

hearsay
Exceptions→statements acknowledged to be hearsay but still admissible

 Pay close attention to the facts for suggestions of exceptions

 Be sure that all the technical requirements of an exception are met
before deciding that the exception does in fact apply

Concerns: reliability, sincerity, perception and memory problems

The hearsay rule is not applicable where evidence of the out-of-

court words or actions is offered only to show that the statement
was made or that it had a certain effect on a listener or observer,
rather than to prove the truth of the matter asserted.

FRE 801- Hearsay Rule

 Statement is an (1) oral or written assertion or (2) non-verbal conduct
of a person if it is intended by the person as an assertion.
o Includes assertive conduct→actions that are the equivalent of
words are treated as hearsay if the words would be hearsay
o Nonassertive conduct is not treated as hearsay and is
admissible not only to show the declarant’s state of mind but
also to prove the truth of the matter asserted (there are no
issues of trustworthiness)
 Declarant – the person who made the out-of-court statement
 Hearsay – the person who is testifying in court
I. How to spot Hearsay:
1. What propositions is the statement being offered to prove?
2. Is the jury being asked assess the declarant’s testimonial
capacity (perception, memory, sincerity, narration)?
a. If offered for effect on listener
b. . . . . independent legal significance
c. If prior inconsistent statement to impeach, no;

23
 3. If so, did declarants intend to assert the proposition the
statement is being offered to prove?
II. How to spot Hearsay
1. What proposition(s) is the statement being offered to prove
2. Does the statement assert those propositions?
III. Exam Analysis

FRE 801(d): Hearsay Exemptions

Hearsay for class purposes but Exempted
1. Effect on the Listener – statement to show what effect the
statement had on the declarants head
2. Independent Legal Significance – such as “I do” in a wedding
3. Prior inconsistent statements by witness→801(d)(1)(a)
a. Statement inconsistent with testimony given at trial
b. W now testifying
c. W now subject to cross
d. Made under oath
e. in a proceeding (formal papers; depositions; grand jury –
statement given at a police house even though sworn does not
fit the proceedings req.)
i. Prior inconsistent statements not sworn are only
admissible to impeach
ii. New York Criminal Cases – We don’t allow Prior
Inconsistent statements substantively, regardless
of the circumstances under which they were made.
1. Admissible for impeachment.
iii. New York Civil Cases – Letendre v. Hartford, 289
N.Y.2d 1983 (NY 1968) – Π sued insurance company to
recover on policy covering employee theft. Only
evidence of theft was employee’s prior inconsistent
statement.
1. Could be used for impeachment – but they don’t
even survive motion to dismiss.
2. Court admitted it substantively for its truth –
they did not apply safeguards; not hearing, not
oath; but they allowed insurance adjustor guy to
come testify. They said it was admissible b/c it was
reliable
3. Seem to be admissible, at least where there is
some indicia of reliability.
4. Some courts have said that PIS are admissible -
Others apply a vague reliability test.
4. Prior consistent statements by witness→801(d)(1)(b)
1. Admissible only where:
i. Declarant testifies and is subject to cross

24
 ii. Used to rebut an express or implied charge of recent
fabrication or improper influence or motive on the part
of the witness
iii. Not necessary (or sufficient) for prior inconsistent
statement be introduced first
1. In Federal Court – admissible substantively under
FRE 801(d)(1)(b)
2. New York: admissible only for non-hearsay
purpose of rehabilitating witness’s
credibility.
5. Prior Identification (C) one of identification of a person made after
perceiving the person;
2. In Federal Court - Declarant testifies and is subject to cross
3. New York Identification: Criminal Proceeding where ∆’s
commission of offense is at issue,
a. Declarant must have previously made ID but be unable
to at trial b/c of failure to recollection OR;
b. Declarant must have made ID at trial, in which case
declarant may also testify to earlier ID
c. Prior ID must be in person, no photo IDs
6. Admission by party-opponent→801(d)(2)
a. Direct admission→(a) Statement is offered against a party
and is
i. (A) the party's own statement, in either an
individual or a representative capacity
1. Δ comes up to Π after car accident and says, “It
was my fault.”
b. Admission by conduct or silence (Adopted Admission)→(b)
a statement of which the party has manifested (action
indicating belief) an adoption or belief in its truth,
i. Judge decides under 104(a) whether the party’s conduct
does manifest the belief.
ii. Π suing former employer after longterm exposure to a
chemical causing leukemia. Δ denies chemical was
unsafe and they knew there was any special danger
caused by exposure. Π offers a report complied by Δ to
a federal agency detailing the harmful effects of the
chemical. Upon objection, it will be admissible.
1. At trial, they deny danger. But report they
conducted says it is. This is the inconsistency.
c. Speaking Authority - Authorized admission→(c) a statement
by a person authorized by the party to make a statement
concerning the subject, or
1. New York (agent rule, covered by 801b2c) –
agents who have speaking authority.

25
 a. You have to be careful about who you sue if
there is a hearsay statement. Employee is
not representative. You’d have to join him.
d. Agency admission→(d) ) a statement by the party's agent
or servant concerning a matter within the scope of the
agency or employment, made during the existence of
the relationship, or [Does not exist in New York (only
persons authorized)]
e. Co-conspirator’s admission→(e) a statement by a co-
conspirator of a party during the course and in furtherance
of the conspiracy.
1. Evidence of co-conspirators are often highly
relevant and critical to the case (these guys are
trusting each other to act on their behalf).
2. Some things in a conspiracy also have
independent legal significance.
ii. Under C, D, or E - you can’t object on the ground that
the person didn’t know what they were talking about –
I’m not bound by what those people say
iii. Proving Agency /Conspiracy - Proving C, D, or E.
1. Federal: (more evidence, higher burden)
a. Offering party must show by
preponderance of evidence existence of
agency relationship or conspiracy.
b. Statement being offered may be
considered but is not sufficient to establish
agency/conspiracy.
i. Fact that statement comes true is
additional element. Some courts would
let it in.
2. New York: (less evidence, lower burden)
a. Offering party must show by prima facie
evidence [sufficient to support a finding]
existence of speaking authority or
conspiracy
b. Statement being offered may not be
considered – other evidence only.
c. Practically, there is probably no difference.

FRE 803: Hearsay Exceptions

 Can be invoked whether the declarant is available or not
 Always a requirement of 1st hand knowledge
 Credibility may be attacked as if the declarant was available
 Judges have no discretion as to admit or not admit this evidence

26
 1. Present sense impression 803(1): A statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter. (New
York adopts – pretty standard nationwide)
Elements:
1. Declarant is describing the event or condition as it happens.
2. Statement must be made Contemporaneously with the event
(strict)
3. Foundation:
i. Declarant’s personal knowledge (perception); and
ii. some corroboration that the event occurred – evidence that
the declarant was present is sufficient.
1. Policy: Why does this come in?
a. Sincerity - Hard to fabricate b/c it happens
so fast. Memory – more accurate when it’s actually happening.
Perception – you know the guy saw it. Narrative Capacity – he’s
actually talking about it
2. Excited utterance 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.
Elements (Facts that must be proven):
1. Statement must relate to event, does not have to describe it.
2. Event must be startling
3. Statement made under stress of excitement caused by the
event
4. Foundation:
a. Declarant’s personal knowledge. No need for corroboration;
statement itself may prove event.
1. Policy: Sincerity – stress makes people honest;
reaction - not intended assertion. Perception/narrative capacity –
problematic.
3. (3) Then Existing physical condition 803(3):. A statement of
the declarant's then existing state of sensation, or physical condition
NOT memory or belief of state, except w/r/t declarant’s will.
1. Physical Condition Elements:
a. Statement may be made to anyone for any
reason
b. Statement must describe declarant’s then –
existing physical condition
c. May not describe past medical history.
d. NO! Statements assigning blame.
2. Policy - little risk of perception problem and
memory problem – sincerity concerns generally relieved, especially
when you’re seeking treatment. Also pragmatic – how do we know
how a person feels unless they tell us?

27
4. Statements for purposes of medical diagnosis or treatment
803(4): Describing medical history, 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.
1. Must be made for purposes of medical
treatment (might even let in statements made to expert witness
w/r/t diagnosis)
2. May describe medical history, present or past
condition, or cause of condition if necessary for treatment.
a. Statements assigning blame: only if
pertinent to diagnosis or treatment.
3. May not ascribe fault – Declarant’s intent to giving
the statement
a. Does not have to be your own physical
condition, as long as statement is made by someone seeking
treatment, even if for another person.
b. New York - Restriction on common law, for both then-existing
physical injuries &
1. Statements must be for purposes of medical diag.
or treatment
2. Statement must be made to a treating
physician.
a. Exception may be liberalized (Caccese -
allowing statement of cause of injuries made to nurse in child abuse
prosecution).
1. Statement must describe then existing
physical condition – not past medical history or causation
b. But – think about opposing party admission.
5. Then Existing mental state – person is thinking, feeling,
intending, planning. (such as intent, plan, motive, design)
1. You can describe state of mind to any person in
any circumstance and it will come in.
a. Feds and New York - You can use statement
of a joint plan to show that both people had a plan (Hillman)
2. Doesn’t include statements of memory of a belief,
or the fact of a memory believed.
a. Exception: Formation/Revocation of
will.
b. Testator’s will - Past mental state regarding a
declarant’s will is permitted.
i. “I revoked my will last week”
6. Recorded recollection 803(5): A memorandum or record
concerning the matter -
1. W must have once had knowledge, but have no current
memory

28
2. Record must have been made or adopted by W
3. When the matter was fresh in the W’s memory.
4. Record had to correctly reflect W’s knowledge at that
time.
5. Read into evidence, not received into evidence unless
introduced by adverse party.
7. Records of regularly conducted activity – Business
Records -803(6)
1. Record must be kept in the course of regularly
conducted business activity; and
a. Business, institution, association, occupation, or calling, for or
not for profit.
2. Must be regular practice to keep such records.
a. Broad range – memorandum, reports, records, data
compilations in any form of arts, events, conditions, opinions, or
diagnoses. Covers emails, virtualy anything.
3. Must have been made at or near the time of the
transactions
4. Record made by person with knowledge
a. Perception concern - Issues actually arise here – some
allowance for multiple people contributing to records, which may
reflect conveyed information.
b. Person who made record had to have personal knowledge, or
had to learn what they wrote down from someone who had personal
knowledge and a business duty to report that to them.
c. Or certification under 902 (11&12)
8. Public records and reports 803(8) Records of public offices or
agencies, setting forth
1. (A) ACTIVITIES - the activities of the office or
agency, or clerical records of government entity:
a. Payroll and personnel records; receipts and
disbursements; routine public records like docket entries, licenses,
birth, death, marriage, and property records.
2. (B) OBSERVATIONS - matters observed
pursuant to duty imposed by law as to which matters there was
a duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement
personnel, or
a. Records of external matters that agency
observes – statistics – sociological, demographic, meteorological,
etc. But,
b. We don’t want public record offered by
prosecution against criminal defendant, unless ministerial in nature.
c. You can’t circumvent Public records
exceptions with business records exception.

29
 3. (C) INVESTIGATIONS - 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
a. Not just record keeping – but factual findings
and investigations – drawing conclusions about events out in the
world:
i. Accident investigations (NTSB, FTA,
OSHA) ,Admin findings in Emp. Disc. Proceedings (EEOC),
Investigations by law enforcement agencies.
b. Factual findings from an investigation are
not admissible against a criminal defendant, but are against the
government
c. Essentially like an expert witness; report is
treated like expert testimony, and clear same hurdles (qualifications,
bases for conclusions; hearsay via the report, but – implied duty
rule. If you’re interviewing people who are under an affirmative duty
to tell the truth, their statements may come in.
4. Unless the sources of information or other
circumstances indicate lack of trustworthiness.
5. New York – Public records come in under business
records exception – no difference, it’s just that mechanics are
different.
a. Same – including exclusion of public records
by government against criminal defendant, etc.
9. Absence of public record or entry 803(10)
a. Same as business records; diligent search should include
search for all known aliases.
10. (18) Learned treatises.
1. treatises, periodicals, pamphlets on history,
medicine, science or art, that are reliable authority
2. Admitted on direct or cross
3. Introduced through expert witness
a. Expert may admit it’s authoritative
b. Judicial notice (with expert on stand).
4. Statements read into evidence, not admitted.
a. Admissible substantively or to impeach.
5. New York – Limited: Never admissible for
substantive purposes, only on cross to impeach, if opponent’s expert
acknowledges treaty is authoritative.

FRE 804: Hearsay Exemptions--Declarant Must Be Unavailable

**Remember definition of unavailable
 May arise in the following forms:
o Assertion of a privilege
o Refusal to testify
30
 o Lack of memory
o Absence due to death, illness, or injury
o Absence from the court’s jurisdiction
 104(a) decision
804(a) Definition of unavailability. "Unavailability as a witness"
includes situations in which the declarant—(It’s not that witness is
unavailable, it’s that testimony is unavailable.
1. Privilege (1) is exempted by ruling of the court on the ground of
privilege from testifying w/r/t the subject matter of the declarant's
statement; or must have judicial ruling upholding privilege.
2. Refusal (2) persists in refusing to testify concerning the subject
matter of the declarant's statement despite an order of the court to
do so; or
a. Not Recognized in New York
3. Recollection (3) testifies to a lack of memory of the subject
matter of the declarant's statement; or
a. Not recognized in New York
4. Death/Illness (4) is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or
infirmity; or
5. Absence (5) is absent from the hearing and the proponent of a
statement has been unable to procure the declarant's by process or
other reasonable means.
1. show that you tried to subpoena them, but were
unsuccessful, and for (b2,3,4) – you must show
unsuccessful attempt to procure deposition
by process or other reasonable means
A declarant is not unavailable as a witness if [unavailability]
is due to the procurement or wrongdoing of the proponent of
a statement for the purpose of preventing the witness from
attending or testifying.

804(b) Exceptions:
1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered,
or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
ii. Hearing of same or different proceeding, or deposition
iii. Party against whom testimony is being offered (or
predecessor in interest) had similar motive to develop
testimony.
1. Grand Jury - ∆ is free to use that against the
prosecution if he is unavailable (including the
31
 fifth), but Π cannot use it against ∆ b/c ∆ does not
appear at grand jury.
2. New York Rule for former testimony – Civil cases (pretty
much same as federal)
1. Former testimony may be from:
a. CPLR 4517 - Prior trial – exact same
parties, same subject matter.
i. Flexibility on the parties – more
concerned with party against whom
the testimony is being offered.
b. CPLR 3177 - Deposition – you can preserve
testimony
c. Other proceeding involving cross
examination (common law).
2. Either proceeding must have involved
a. Same subject matter AND
b. Same parties or their representatives
3. New York Rule for former testimony – Criminal cases
(narrower than federal, must be same adjudication)
1. Former testimony must be from
a. Related prior criminal trial (involving
same charge)
i. Usually a mistrial being re-trialed.
b. Preliminary hearing in the same case
i. Hearing under CPL 660 – criminal
version of deposition rule.
c. Former testimony may not be from
suppression hearing, grand jury, admin
proceeding, trial of co-defendant.
d. Must have had similar motive to cross
examine.
2) Dying Declarations. In a prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant while
believing that the declarant's death was imminent, concerning the
cause or circumstances of what the declarant believed to be
impending death.
i. Subjective Belief of imminent death (won’t meet your
maker w/ a lie on your lips?)
1. Preponderance of Evidence: proved by
declarant’s statements and actions expressing
belief that he/she is dying, someone says he’s
dying, etc. Civil trial→party against or predecessor
1. Includes identifications of perpetrator and
descriptions of accidents of past events that led up
to the mortal injury or disease.
ii. Statement must concern cause of death

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 iii. Homicide cases or civil cases only (attempted
murder ok)
1. New York: Homicide Prosecution Only -
declarant must have been victim of homicide
(not attempted).
3) Statement against interest. Reasonable person in declarant’s
position would not have made the statement unless believing it to
be true.
i. Statement against to pecuniary (property), civil, or
criminal liability
ii. By any person
iii. Declarant must be unavailable
iv. Offered against any party
v. Declarant must have personal knowledge
b. Admissions:
i. Any statement
ii. By Party opponent
iii. Availability irrelevant
iv. Offered against declarant
v. Personal knowledge not recognized
Forfeiture by wrongdoing 804(b)(6)- 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.
ii. Statement must be made by declarant who was a
witness or potential witness
iii. Statement must be offered against a party
iv. Party must have engaged in wrongdoing that was
intended to, and did, procure the unavailability of the
declarant as a witness or potential witness
1. Subject matter of the statement is not limited in
any way
2. Preliminary question (preponderance) – establish
that ∆ intended to and did in fact procure
unavailability.

FRE 805 - MULTIPLE HEARSAY

Rule 805- Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule.
a. Each level of hearsay must fit into a given exception.
b. Example: Π is in hospital, Π’s mother testifies as to a nurse’s
statement of what the doctor told her about the Π’s condition.
 For multiple hearsay to be admissible, each layer must be
separately admissible, either under an exception or a form
of non-hearsay.

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 o Doctor’s statement could be a business record
o Nurse’s statement might be hearsay but possibly
the statement is made to the nurse to show state
of mind, knowledge, notice

FRE 806 – Residual Exception

Rule 807: Residual Exception - A statement not specifically covered by
Rule 803 or 804 but
a. Statement must have circumstantial guarantees of
trustworthiness
i. Reduction in testimonial information
ii. Lack of motive to fabricate
iii. Corroboration
b. Statement is offered for material fact
c. Statement is more probative on the point for which it is offered
than any other evidence that can be secured through
reasonable efforts
d. Admission will serve the general purposes of the rules and the
interests of justice
e. Notice is given to the opponent.

Confrontation clause
1. In all criminal prosecutions, the accused shall have the right to
confront witnesses confronting him.
a. Right to face and accuser in person, physically present in the
courtroom.
i. Child Abuse cases – have a child testify by closed circuit
television, but child doesn’t actually have to see the
defendant.
ii. Maryland v. Craig – state has to show that the witness
would suffer severe emotional harm from being
physically present in a room w/ the defendant.
2. Right to cross examine the witnesses against him.
a. Satisfaction of hearsay rule used to be enough; not any more.

Important terms under CC:

1. Testimonial statement – statement are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal
prosecutions
2. Non-Testimonial - are statement when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency

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 3. Types of statement that are Testimonial:
a. Ex-Parte in Court testimony or its functional equivalent
affidavit, custodial examinations, prior testimony that the D
was unable to cross or similar pre-trial statements that
declarants would reasonably expect to be used prosecutorally.
b. Extrajudicial statements contained in formalized testimonial
material such as affidavit, deposition, prior testimonial or
confessions
c. Statement made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial.

Confrontation Clause Exam Analysis:

i. Is the statement being offered by the prosecution
against a criminal defendant (Does Not protect the
state).
1. If not, no CC problem
ii. Is declarant subject to cross-examination on the
statement?
1. If so, no CC problem
iii. Is the statement “testimonial”? (holding of Crawford,
explained by Davis) – Was declarant’s purpose to
preserve testimonial for trial?
1. Was the purpose to meet an ongoing emergency
or to gather information of past facts?
a. Contemporaneous with the events or later?
b. Did declarant make statement w/ intention
of getting help or to give testimony?
c. Interrogator’s purpose (consider whether
testimony to police or otherwise)
d. Subjectively – what did they look like?
iv. If testimonial, Admissible only if:
1. Declarant is unavailable and prior opportunity for
cross examination under 804(b)(1)
2. Forfeiture by wrongdoing under 804(b)(6).
a. Rules are unclear on standard of forfeiture
by wrongdoing.
For exam purposes – Tackle the hearsay problem first – if problem
stays out under hearsay, then no need to go into CC BUT FOR
EXAM – STILL TALK ABOUT IT

FRE 502 – Attorney – Client Privilege

a. Confidential – at the time they were made, and had to
remain confidential.

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 i. Things that are told to the attorney, with understanding
that that will be revealed to a third party – that is not confidential.
ii. Attorney’s Agents/employees, who are part of the
relationship (e.g. accountants calculating damages), are
confidential. Not expert witnesses.
iii. Common representation / joint defense: Any
communications among them will be protected, but adversarial
posture removes privilege.
iv. Reasonable Expectation of Privacy (email, phone,
etc.)
b. Communication – even preliminary conversations protected.
i. Underlying facts of communication are not protected.
ii. Existence of relationship not protected, unless disclosing
representation would indirectly disclose underlying communications.
c. Between client and attorney (some protect only one way –
from client to attorney – but most the go both ways.).
i. Key factors is that clients belief that she is consulting
lawyer in lawyer’s legal capacity for purposes of obtaining legal
advice
d. For purposes of obtaining legal advice. (use of legal
judgment)
i. Advice involves use of legal judgment
ii. Client is consulting with lawyer in lawyer’s legal
capacity for purposes of obtaining legal advice.
iii. Regular business communications: Primary purpose
of communication must be to give legal advice.
e. Application to corporations
i. Corporation can invoke privilege w/r/t communications
from its own in-house counsel and w/r/t communications w/ outside
counsel.
ii. Upjon – Subject matter test – employee’s status no
longer matters.
1. INTENT - Were communications intended to
be and in fact confidential?
2. PURPOSE - Was employee aware that
communications were for purposes of obtaining legal advice
for the corporation?
3. SCOPE - Did communications concern matter
w/in scope of employee’s corporate duties.
f. Crime-Fraud exception:
i. Applies only if communication advances an ongoing
crime or fraud.
ii. Judge may look at allegedly privilege document in
camera, if sufficient evidence exists to support good faith belief that
is camera review to reveal improper use of communication

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 iii. Judge then determines whether privilege communication
used to further crime or fraud is preponderance of the evidence.
iv. Distinction between past crimes and present crimes.

FRE 607 - IMPEACMENT

Intrinsic impeachment→ evidence brought out from the mouth of the
witness herself
Extrinsic impeachment→ all other evidence not from the mouth of the
witness (contradictory evidence from other witnesses discrediting the
testifying witness)

 Not Collateral – very important/contradiction – goes to the issue been

litigated
o Extrinsic evidence is allowed to discredit the witness
 Collateral Matter rule→ issue not material to the issue being litigated
o Collateral evidence used to discredit a witness may be
inquired into on cross examination - intrinsically→
o Extrinsic evidence on the same question with regard to
collateral matters may not be introduced.
 Witness testifies Δ is a honest man. On cross, witness
may be asked if he know Δ committed 3 burlgaries. This
in intrinsically.
 Π’s witness testifies that Δ drove through the
intersection and was wearing a green shirt. Δ cannot
then bring forth a witness to testify that Δ was wearing a
blue shirt. This is extrinsic evidence and not admissible.
1. Rule 607. Who May Impeach - The credibility of a witness
may be attacked by any party, including the party calling the
witness.
a. Voucher Rule – Old Rule – you would win by getting people to
vouch for you, but you have no choice of witnesses, who saw the
events, so fuck it.
b. Abolished in Federal Court by FRE 607
c. New York – maintains voucher rule, with exceptions
i. Civil Cases – CPLR 4515 – party may impeach its
witness only with prior inconsistent statement, oral or in writing,
made while under oath.
1. You probably have reason to think they are going
to say something from a deposition; you can then use it to impeach
them.
ii. Criminal Cases –CPL 60.35 – Party may impeach
witness only with prior inconsistent statement (in writing or oral
under oath), but only if witness, on direct, makes a statement
tending to disprove the party’s case. (higher standard than civil)

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 d. Witness must have written the statement or if someone else
did – needs to be authenticated.

2. Modes of impeachment
a. Character – prior bad acts, convictions, reputation or opinions
for truthfulness.
i. Rule 404 – character to show ∆’s predisposition on a
pertinent trait. 405 – You can use specific instances to rebut.
ii. Rule 404(a)(3)- evidence of the character of a witness
in 608, 609 is allowed.
b. Contradiction – prior inconsistent statements; factual
contradiction [Reputation/Opinion Never Collateral]
c. Testimonial Capacity – oath, perception, recollection,
communication [Not Collateral]
a. Bias – Bias, interest (in the outcome), prejudice, corruption
(bribery or something). [Not Collateral]
1. 4 ways to show bias
1. Interest in the outcome
2. Economic or marital relationship
3. Hostility or favoritism
4. The fee paid to an expert witness
a. Bias is always material and never collateral

Four Modes/Methods of Character Impeachment

FRE 609 – Impeachment by Conviction

1. Impeachment by Prior bad acts – First Method
2. Rule 609. Impeachment by Conviction of Crime- Second
Method
d. What can be brought in?
i. Is conviction juvenile or adult? [adults only, unless
constitutionally required]
ii. Did conviction [elements of the crime] involve falsity?
1. If so, and if less than 10 years old – always
admissible.
2. If so, and more than 10 years old – admissible if
probative outweighs prejudice.
iii. If NOT crime of falsity, is it a felony or misdemeanor?
1. If misdemeanor, not admissible
2. If not misdemeanor, admissible
iv. Balancing for felony conviction (not crimes of falsity)
a. If W is NOT criminal ∆, admissible subject to
403 balancing (almost always admissible)
b. If W is criminal ∆, admissible if probative
value outweighs the risk of unfair prejudicial (slight
presumption against admissibility)

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 v. If any crime is more than 10 years old, for any W, only
admissible if probative value substantially outweighs
prejudicial effect. (Reverse 403).
Time measure is based on time of release from
prison.
vi. If pardon, annulment, or cert of rehab., not admissible
1. Does not matter, if civil or criminal
2. Nolo Contendre is admissible. (controversial)
 Civil Cases
3. No criminal defendants, so apply balancing test –
much less risk of unfair prejudice.
 New York –
4. If W is NOT criminal defendant, any prior adult
conviction is admissible, subject to 403 balancing.
5. If W is criminal defendant, any prior adult
conviction is admissible, unless probative value is outweighed
by prejudicial effect.
e. Procedure
i. Ask about prior crime, if denied, you can bring in facts in
the public record (self-authenticating) of the conviction, and possibly
the plea allocution.
ii. ∆ moves, in limine, to exclude prior crimes. Judge
denies.
1. Fed: if the judge rules on pre-trial that
convictions are admissible – D must testify to preserve
appeal; furthermore, if D opens the door himself, he can’t appeal on
that decision.
2. New York – Pre-trial ruling is appealable even if D
does not testify.
Grand larceny is a crime of falsity
Petty larceny is a misdemeanor

FRE 608 – Evidence of Character and Conduct of Witness

Third method –
f. (a) Opinion and reputation evidence of character. The
credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but
i. (1) ONLY opinion/reputation on truthfulness or
untruthfulness, and
1. W in Prosecution Rebuttal case can only
testify as to D’s reputation or opinion not specific instances
of conduct.
2. Reputation – knowledge in the community as
being a liar.
3. Truthfulness and unlawfulness are not the
same- can only attack W’s truthfulness
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 g. (b) Specific instances of conduct. (prior bad or good
acts)
i. You can use specific instances of conduct, on cross-
examination, to impeach Witness on the stand –
1. Prior act must be probative of truthfulness or
untruthfulness
a. W is not criminal defendant, so we allow
stuff to come in
b. Rule doesn’t distinguish Ds and Ws, but if
criminal D, we’d be much more concerned about unfair prejudice
(403). You would have to have a hearing ahead of time.
2. Prosecutor must have good faith basis for asking
the question.
3. Intrinsic evidence only! No Extrinsic Evidence
(unless admissible under 404b during a crime involving falsity)

CONTRADICTION:
Impeachment through contradiction
1. Self-contradiction – prior inconsistent
2. Factual contradiction – D say something happened and you offered
evidence that another thing happen
Prior Inconsistent Statements
1. Is the P statement inconsistent with the current testimony
2. What foundation must be laid before questioning W about the prior
inconsistent statement?
a. Queen Caroline:
i. Whether written or not, the statement need not be shown, or
disclosed to the witness at that time; but on request – must be
shown on opposing counsel.
b. Rule 613a – No need for foundation in federal court but
should do it anyway
i. Common Law / New York – has to draw attention to
circumstances
1. Oral Statements
a. Party offering statement has to direct the witness to the
circumstances surrounding the statement.
i. “do you remember that you spoke with an investigator shortly
thereafter?
ii. Do you remember that the investigator asked you about this?
iii. Do you remember that you told the investigator something
you didn’t tell us here?
2. Written statements
a. You have to show the written statement to the witness.
i. Do you remember that you made a written statement
ii. I now show it to you, do you recognize it?
iii. What did you say in that statement

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 c. Rule 613b –PIS not admissible unless W afforded opportunity
to explain or deny statement.
i. Extrinsic evidence allowed only on non-collateral matters.
ii. or if relevant on another impeachment ground besides
contradiction (like bias)
1. You no longer have to give the witness to explain at the time it
is introduced.
2. If W denies it, after he leaves the stand, you can bring in
extrinsic evidence with another witness who can testify to the prior
statement
3. You have to keep that W under subpoena until after the
witness impeaching by extrinsic evidence.
3. When may extrinsic evidence of the prior statement be offered? On
non-collateral matter

Impeachment – Capacity
1. Oath – FRE 610
a. May not ask about religious belief to attach credibility
2. Perception and memory
a. Lack of opportunity to perceive; time lapse; physical or mental
infirmity; drug or alcohol use
b. Extrinsic evidence is permitted, subject to 403 balancing
i. Can introduce extrinsic evidence on non-collateral
matter
1. Problems 10.119.3 – with wearing glasses to
perceive – Extrinsic will be allowed subject to 403 –
need to show more before
2. Problem 10.19.4 – cross on substance abuse –
Drug abuse can affect ability to perceive events
a. Where you on drug at the time that will
affect your ability to perceive
i. Depending – expert testimony may be
needed
b. What if you have someone who is an
artibitual drug or alcohol uses – who ability
to perceive has been compromise with long
time effect
i. NO CLEAR RULE ON THIS
3. 10.19.1 – Metal illness – whether it affected his
ability to testify or remember things accurately –
things we want to know
4. 10.19.2 – call a staff of the hospital that Roy is a
member – extrinsic evidence – less likely to allow
5. 10.19.2 – allow expert testimony that b/c of mental
condition – the W is not going to testify truthfully

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 a. In all of these area – Look at things on a
case by case basis
i. Probative of the condition – get into
the facts
ii. Factors weighing on the other side
1. Not relevant
2. Embarrassing
Impeachment by Bias
1. No specific rule mention
2. Examples
a. Affiliation b/w W and party
b. Animosity between W and Party
c. Financial or other incentives to testify
i. Informants
3. Otherwise inadmissible evidence might be admissible – see FRE 408,
411
a. 408 – Civil cases – party will settle out and part of the
settlement party agrees to testify against another
i. Problem 10.17 – Arlo’s mother testify for son – to cover
for alibi- Affiliation + financial
4. Extrinsic evidence is permitted, subject to 403 balancing

1. Impeachment discredit W and now it’s time to …

2. General policy: we don’t want to spend time bolstering the credibility
of the W until the W has being attack
3. General Rule: You can get out basis thing in the beginning like – job,
life – to show functioning credible member of the society

FRE 608 (a)(2) - Rehabilitation

Rehabilitation: Types of Rehabilitation allowed and what can of
impeachment will calls for it:
1. 608(a)(2):Character for truthfulness (reputation or opinion)
a. Permitted only after character for truthfulness has been
attacked by reputation or opinion, or otherwise
i. In the impeachment just suggesting that you were
wrong? then rehabilitation is not allowed
ii. What constitutes an attack?
1. Prior inconsistent statement, if there is more there
to show that she’s lying.
2. Insinuating that the person is lying.
3. You can always allow witness to explain away
inconsistency.
4. Just showing predisposition for bias is not an
attack, but evidence of corruption (getting benefit
from relationship) might be.
2. 608(b)(2) - Prior acts of truthfulness

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 a. Permitted only on cross of W who has testified to other W’s
character for truthfulness
b. On redirect or W whose character for truthfulness has been
attacked on cross, to explain or mitigate - FRE 608(b)(1)
contemplates even though it does necessary say that
3. Prior Consistent Statement
a. Permitted only to rebut charge of recent fabrication

FRE 806
Impeaching of Hearsay Declarants:
1. Hearsay declarant are considered W
2. Hearsay statement are testimonial
3. Can Impeach a hearsay declarant by the use of all modes of
impeachment through Extrinsic evidence

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 Review Questions
1. Everything in 801(d) are hearsay but exempted under hearsay rule
2. Testator’s will – 803(3) – should we not consider the dead man
statute
a. DMS will not normally keep that out
b. What cannot be offered is my interaction/conversion with that
dead man
c. Whatever the dead man statement is admissible so long as it
is brought him but someone else who heard it or if it was
written in.
i. No dead man statute in FEDERAL COURT just in NY
3. 803(3) – Declarant then existing physical condition
4. I WONT ASK ABOUT TAX INVASION
5. Forfeiture by wrong doing
a. Two issues
i. Hearsay
ii. Confrontation
6.

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