EVIDENCE ARTICLE I. GENERAL PROVISIONS Rule 101.

Scope These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States agistrate judges! to the e"tent and #ith the e"ceptions stated in rule $$%$& o Evidence rules need not be follo#ed in pretrial hearing on continuation of restraint of assets subject to forfeiture on conviction' US v Monsanto Rule 102. Purpose and Construction These rules shall be construed to secure fairness in ad inistration! eli ination of unjustifiable e"pense and delay! and pro otion of gro#th and develop ent of the la# of evidence to the end that the truth ay be ascertained and proceedings justly deter ined& o (e)uire ent of fairness can so eti es shade strict applicability of specific rule of evidence' US v Opager Rule 10 . Rulin!s on E"idence #a$ E%%ect o% erroneous rulin!. Error ay not be predicated upon a ruling #hich ad its or e"cludes evidence unless a substantial right of the party is affected! and *$+ ,bjection& ' In case the ruling is one ad itting evidence! a ti ely objection or otion to strike appears of record! stating the specific ground of objection! if the specific ground #as not apparent fro the conte"to To preserve issue of introduction of conduct testi ony on appeal! accused ust object to it at trial and de onstrate its prejudice to hi ' Ppl v Dunham or *.+ ,ffer of proof& ' In case the ruling is one e"cluding evidence! the substance of the evidence #as ade kno#n to the court by offer or #as apparent fro the conte"t #ithin #hich )uestions #ere asked& ,nce the court akes a definitive ruling on the record ad itting or e"cluding evidence! either at or before trial! a party need not rene# an objection or offer of proof to preserve a clai of error for appeal& o ,ffer of proof ay consist of putting proffered #itness on stand for previe# of actual testi ony or of counsel/s specific su ary of its anticipated contents' Fox v Dannenberg o N,TE' (ulings on evidence cannot be assigned as error unless0 o 1 substantial right is affected! and o The nature of the error #as called to the attention of the judge! so as to alert hi to the proper course of action and enable opposing counsel to take proper corrective easures& o N,TE' 2ith the jury e"cused! you su ari3e #hat the #itness #ould have said if the judge #ould have left the #itness in' to should that the sustain #as i proper o 4ury e"cused' run the #itness thru the rest of the e"a ination! until you get to the point that it #ould be apparent to have the #itness say #hat you needed to' to should that the judges ruling against that #itness #as incorrect& #&$ Record o% o%%er and rulin! The court ay add any other or further state ent #hich sho#s the character of the evidence! the for in #hich it #as offered! the objection ade! and the ruling thereon& It ay direct the aking of an offer in )uestion and ans#er for & #c$ 'earin! o% (ur) In jury cases! proceedings shall be conducted! to the e"tent practicable! so as to prevent inad issible evidence fro being suggested to the jury by any eans! such as aking state ents or offers of proof or asking )uestions in the hearing of the jury& o 4ury should not be sho#n aterial not ad itted into evidence' US v Sutherland o 5ood faith in)uiry entioning insurance is per issible on jury voir dire to ascertain juror bias due to edia accounts of 6 edical alpractice crisis7 or 6insurance crisis7' Kozlowski v Rush o N,TE' If you line of )uestion is i proper* stay a#ay fro it8 #d$ Plain error Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they #ere not brought to the attention of the court&

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To preserve issue of introduction of conduct testi ony on appeal! accused ust object to it at trial and de onstrate its prejudice to hi ' Ppl v Dunham 1llo#ance of opponent/s use of 6Illegal 1lien7 slur #as plain error! causing istrial even #hen party failed to object' Ro as v Ri!hardson

Rule 10+. Preli,inar) -uestions #a$ -uestions o% ad,issi&ilit) !enerall). 9reli inary )uestions concerning the )ualification of a person to be a #itness! the e"istence of a privilege! or the ad issibility of evidence shall be deter ined by the court! subject to the provisions of subdivision *b+& In aking its deter ination it is not bound by the rules of evidence e"cept those #ith respect to privileges& o Trial court can consider inad issible evidence in deter ining #hether attorney'client privilege has been #aived' US v "ampbell o :actual finding #hether victi believed he #as dying for deter ination of ad issibility of victi /s hearsay state ents is for trial judge to ake' #reen v State o Deter ination #hether victi of alleged rape had pre'e"isting se"ual relationship #ith ; rd party as accused clai ed #as for jury to ake' US v Platero o 1ttny'Client privilege0 deter ination of e"istence of e"ception to privilege for co unications in furtherance of illegal conduct is for ct to ake' US v $olin #&$ Rele"anc) conditioned on %act. 2hen the relevancy of evidence depends upon the fulfill ent of a condition of fact! the court shall ad it it upon! or subject to! the introduction of evidence sufficient to support a finding of the fulfill ent of the condition& o Deter ination #hether victi of alleged rape had pre'e"isting se"ual relationship #ith ; rd party as accused clai ed #as for jury to ake' US v Platero o To e"clude audiotape on authentication grounds! court ust ake finding that no rational juror could have decided defendant/s voice #as that on tape' Ri!ketts v "it% o& 'art&ord o 2hen an ite of evidence by itself #ill have no relevance to any issue in a trial but #ould be relevant if the trier of fact also had so e other infor ation' $% #c$ 'earin! o% (ur). <earings on the ad issibility of confessions shall in all cases be conducted out of the hearing of the jury& <earings on other preli inary atters shall be so conducted #hen the interests of justice re)uire! or #hen an accused is a #itness and so re)uests& o 9reli inary hearings on the ad issibility of confessions ust be conducted outside the hearing of the jury& o 2here an accused is a #itness as to a preli inary atter! he has the right! upon his re)uest! to be neard outside the jury/s presence& #d$ Testi,on) &) accused. The accused does not! by testifying upon a preli inary atter! beco e subject to cross'e"a ination as to other issues in the case& #e$ .ei!/t and credi&ilit). This rule does not li it the right of a party to introduce before the jury evidence relevant to #eight or credibility& o 2eight' Sho#ing #hy evidence should be believed not if evidence is ad issible& Rule 100. Li,ited Ad,issi&ilit) 2hen evidence #hich is ad issible as to one party or for one purpose but not ad issible as to another party or for another purpose is ad itted! the court! upon re)uest! shall restrict the evidence to its proper scope and instruct the jury accordingly& o Codefendant/s guilty plea not ad issible to prove accused/s guilt! but is ad issible *#=li iting instruction+ on )uestion of #itness/s credibility' #ov(t o& the )irgin *slands v Mu ahid Rule 101. Re,ainder o% or Related .ritin!s or Recorded State,ents 2hen a #riting or recorded state ent or part thereof is introduced by a party! an adverse party ay re)uire the introduction at that ti e of any other part or any other #riting or recorded state ent #hich ought in fairness to be considered conte poraneously #ith it& o If court ad its incri inating portions of tape recordings! e"culpatory portions should in fairness be ad itted too! regardless of other rules e"cluding the fro evidence' US v Sutton

6,pening the door7 ARTICLE II. 234ICIAL NOTICE

Rule 201. 2udicial Notice o% Ad(udicati"e 5acts #a$ Scope o% rule. This rule governs only judicial notice of adjudicative facts& #&$ 6inds o% %acts. 1 judicially noticed fact ust be one not subject to reasonable dispute in that it is either *$+ generally kno#n #ithin the territorial jurisdiction of the trial court or *.+ capable of accurate and ready deter ination by resort to sources #hose accuracy cannot reasonably be )uestioned& o Ct can take judicial notice of official census bureau statistics' +arber v Ponte o 4udge/s uni)ue personal kno#ledge of fact not co only kno#n does not ake fact ad issible under judicial notice' #riswold v "ommonwealth #c$ ./en discretionar). 1 court ay take judicial notice! #hether re)uested or not& #d$ ./en ,andator). 1 court shall take judicial notice if re)uested by a party and supplied #ith the necessary infor ation& #e$ Opportunit) to &e /eard. 1 party is entitled upon ti ely re)uest to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the atter noticed& In the absence of prior notification! the re)uest ay be ade after judicial notice has been taken& #%$ Ti,e o% ta7in! notice. 4udicial notice ay be taken at any stage of the proceeding& #!$ Instructin! (ur). In a civil action or proceeding! the court shall instruct the jury to accept as conclusive any fact judicially noticed& In a cri inal case! the court shall instruct the jury that it ay! but is not re)uired to! accept as conclusive any fact judicially noticed& ARTICLE III. PRES38PTIONS IN CIVIL ACTIONS AN4 PROCEE4INGS Rule 01. Presu,ptions in General Ci"il Actions and Proceedin!s In all civil actions and proceedings not other#ise provided for by 1ct of Congress or by these rules! a presu ption i poses on the party against #ho it is directed the burden of going for#ard #ith evidence to rebut or eet the presu ption! but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion! #hich re ains throughout the trial upon the party on #ho it #as originally cast& o In absence of evidence to the contrary! presu ption of official regularity re)uires that I(S deficiency notice be presu ed valid' US v ,hrens o ,nce presu ption of receipt of notice of deadline for filing bankruptcy clai is rebutted by testi ony of non'recept! presu ption retains no probative effect' *n re the -oder "omp Rule 02. Applica&ilit) o% State La9 in Ci"il Actions and Proceedin!s In civil actions and proceedings! the effect of a presu ption respecting a fact #hich is an ele ent of a clai or defense as to #hich State la# supplies the rule of decision is deter ined in accordance #ith State la#& o 9resu ption in diversity #rongful death case as to decedent/s e"ercise of due care is governed by state la#' Monger v "essna ,ir!ra&t ARTICLE IV. RELEVANC: AN4 ITS LI8ITS Rule +01. 4e%inition o% ;Rele"ant E"idence; >(elevant evidence> eans evidence having any tendency to ake the e"istence of any fact that is of conse)uence to the deter ination of the action ore probable or less probable than it #ould be #ithout the evidence&

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Sufficiency of relevance for ad issibility depends upon identification of issue for #hich evidence is offered' Knapp v State 9rosecution ay not use accused/s failure to call #itness to suggest that #itness/s testi ony #ould have been unfavorable' State v +rewer To be relevant! evidence ust have sufficient probative value to overco e likelihood of isleading jury' State v Kotsimpulos :or nonoccurrence of accidents at sa e and si ilar locations to be ad issible as si ilar happenings! situations ust be sufficiently si ilar' 'iggins v 'i!ks "O (elevance of other clai s ade by plaintiff depends on their si ilarity to current clai ' +union v ,llstate *nsuran!e "O :or si ilar accidents involving sa e product to be ad issible they ust i plicate the sa e theory of causation' Ponder v .arren /ool "orp0 Evidence of lack of prior clai s against anufacturer of product is ad issible to prove both lack of defective design and lack of notice' 'ines v 1o% Manu&a!turing "O Nonprosecution of insured for arson is ad issible in action for recovery of insurance proceeds' Kell%(s ,uto Parts2 3O0 4 v +oughton Insured/s #illingness to take polygraph e"a ination is ad issible in suit alleging bad faith denial of clai by insured' Murph% v "in!innati *nsuran!e "o 9rejudice inherent in ultiple photographs of injuries is not substantially greater than their probative value' Ppl v Mills 9robability evidence is inad issible #hen based on unproven statistical fre)uencies and #hen it distorts jury/s deliberative function' Ppl v "ollins Testi ony about i unity negotiations is ad issible #hen offered by defendant' US v +iaggi I peach ent0 5ang e bership is ad issible to sho# bias of defense #itness' US v ,bel 5eneral relevance test' does the infor ation ake a signification fact ore likely to be true than it #ould be in the absence of that infor ation' ;?

Rule +02. Rele"ant E"idence Generall) Ad,issi&le< Irrele"ant E"idence Inad,issi&le 1ll relevant evidence is ad issible! e"cept as other#ise provided by the Constitution of the United States! by 1ct of Congress! by these rules! or by other rules prescribed by the Supre e Court pursuant to statutory authority& Evidence #hich is not relevant is not ad issible& Rule +0 . E=clusion o% Rele"ant E"idence on Grounds o% Pre(udice> Con%usion> or .aste o% Ti,e 1lthough relevant! evidence ay be e"cluded if its probative value is substantially out#eighed by the danger of unfair prejudice! confusion of the issues! or isleading the jury! or by considerations of undue delay! #aste of ti e! or needless presentation of cu ulative evidence& o 1llo#ance of opponent/s use of 6Illegal 1lien7 slur #as plain error! causing istrial even #hen party failed to object' Ro as v Ri!hardson o To be relevant! evidence ust have sufficient probative value to overco e likelihood of isleading jury' State v Kotsimpulos o (elevance of other clai s ade by plaintiff depends on their si ilarity to current clai ' +union v ,llstate *nsuran!e "O o :or si ilar accidents involving sa e product to be ad issible they ust i plicate the sa e theory of causation' Ponder v .arren /ool "orp0 o Evidence of lack of prior clai s against anufacturer of product is ad issible to prove both lack of defective design and lack of notice' 'ines v 1o% Manu&a!turing "O o Insured/s #illingness to take polygraph e"a ination is ad issible in suit alleging bad faith denial of clai by insured' Murph% v "in!innati *nsuran!e "o o 9rejudice inherent in ultiple photographs of injuries is not substantially greater than their probative value' Ppl v Mills o 9robability evidence is inad issible #hen based on unproven statistical fre)uencies and #hen it distorts jury/s deliberative function' Ppl v "ollins o Danger of unfair prejudice fro identification of predicate cri e substantially out#eighs evidence/s probative value' Old "hie& v US

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Evidence of prior se"ual assaults is ad issible subject to probative v prejudicial balancing' US v #uardia Evidence of si ilar cri es in child olestation prosecution is ad issible subject to probative v prejudicial balancing' US v Sumner In deciding #hether si ilar cri es evidence is ad issible in child se" offense case! court ust apply probative v prejudicial balancing test so as to allo# )ualifying evidence to co e in' US v 5e"ompte I peach ent0 9ast physical abuse of #itness by accused is ad issible to sho# #itness/s otive to fabricate' US v +ratton I peach ent0 5ang e bership is ad issible to sho# bias of defense #itness' US v ,bel I peach ent0 9olygraph results are inad issible to bolster credibility' +arnier v Szentmiklosi I peach ent0 9rior conviction of civil non'party #itness for felony drug offense can be sufficiently probative of untruthfulness' Radtke v "essna ,ir!ra&t "o0

Rule +0+. C/aracter E"idence Not Ad,issi&le To Pro"e Conduct< E=ceptions< Ot/er Cri,es #a$ C/aracter e"idence !enerall) Evidence of a person@s character or a trait of character is not ad issible for the purpose of proving action in confor ity there#ith on a particular occasion! e"cept0 *$+ Character of accused ' In a cri inal case! evidence of a pertinent trait of character offered by an accused! or by the prosecution to rebut the sa e! or if evidence of a trait of character of the alleged victi of the cri e is offered by an accused and ad itted under (ule A%A *a+*.+! evidence of the sa e trait of character of the accused offered by the prosecutiono 1ccused alone possesses option of 6opening the door7 to character evidence' US v #illiland *.+ Character of alleged victi ' In a cri inal case! and subject to the li itations i posed by (ule A$.! evidence of a pertinent trait of character of the alleged victi of the cri e offered by an accused! or by the prosecution to rebut the sa e! or evidence of a character trait of peacefulness of the alleged victi offered by the prosecution in a ho icide case to rebut evidence that the alleged victi #as the first aggressoro E"ceptions to general ban on character evidence ay be invoked in civil case involving issue that is essentially cri inal in nature' Perrin v ,nderson o Evidence of victi /s character #hen not an essential ele ent of the defense ust be proved by reputation or opinion evidence' State v +azan o Bi itations on for victi s character evidence ay take do not apply to proof of accused/s state of ind to establish self'defense' State v "arlson o The D is entitled to introduce evidence about the character of the victi ' C. *;+ Character of #itness ' Evidence of the character of a #itness! as provided in rules D%E! D%F! and D%?& o (eligious belief in nonviolence is i proper #ay to prove defendant/s character and inad issible bolstering of credibility' #overnment o& )irgin *slands v Petersen #&$ Ot/er cri,es> 9ron!s> or acts Evidence of other cri es! #rongs! or acts is not ad issible to prove the character of a person in order to sho# action in confor ity there#ith& It ay! ho#ever! be ad issible for other purposes! such as proof of otive! opportunity! intent! preparation! plan! kno#ledge! identity! or absence of istake or accident! provided that upon re)uest by the accused! the prosecution in a cri inal case shall provide reasonable notice in advance of trial! or during trial if the court e"cuses pretrial notice on good cause sho#n! of the general nature of any such evidence it intends to introduce at trial& o To preserve issue of introduction of conduct testi ony on appeal! accused ust object to it at trial and de onstrate its prejudice to hi ' Ppl v Dunham o Drug paraphernalia is ad issible in #eapons prosecution to sho# otive' US v Fuller o 9rior rapes are ad issible to prove plan! intent! preparation! otive even if accused #as ac)uitted in prior case' Ppl v Oliphant o ,ther cri es evidence is ad issible #hen offered by defendant to prove so eone else/s guilt of cri e charged even if other cri es are not rigorously si ilar to cri e charged' State v #ar&ole o Consent decree in earlier action is ad issible in civil case to sho# otive or intent of defendant! or nonco pliance #ith decree' 1ohnson v 'ugo(s Skatewa% o Evidence of si ilar acts is not ad issible to prove defendant/s plan unless they sho# ore than ere repetition of charged offense' US v Krezdorn o Si ilarity of other cri e to present charge is insufficient basis for ad issibility' US v +u!khart

Evidence of prior conduct is ad issible to sho# action in confor ity there#ith only if repeated consistently enough ti es' 'alloran v )irginia "hemi!als2 *n!0

Rule +00. 8et/ods o% Pro"in! C/aracter #a$ Reputation or opinion. In all cases in #hich evidence of character or a trait of character of a person is ad issible! proof ay be ade by testi ony as to reputation or by testi ony in the for of an opinion& ,n cross'e"a ination! in)uiry is allo#able into relevant specific instances of conduct& o 1ccused alone possesses option of 6opening the door7 to character evidence' US v #illiland o Evidence of victi /s character #hen not an essential ele ent of the defense ust be proved by reputation or opinion evidence' State v +azan o (eligious belief in nonviolence is i proper #ay to prove defendant/s character and inad issible bolstering of credibility' #overnment o& )irgin *slands v Petersen o Bi itations on for victi s character evidence ay take do not apply to proof of accused/s state of ind to establish self'defense' State v "arlson o Specific isconduct of accused is proper subject of cross'e"a ination of accused/s character #itness if relevant to character #itness/s testi ony' US v +right o ,pinion character #itnesses ay be asked 6<ave you heardG7 )uestions as #ell as 6Did you kno#G7 )uestions on cross'e"a ination' Se!urities and 6x!hange "ommission v Peters o I peach ent0 5ood faith basis in fact ust be established before #itness ay be i peached #ith )uestions about accused/s isconduct' US v Davenport #&$ Speci%ic instances o% conduct. In cases in #hich character or a trait of character of a person is an essential ele ent of a charge! clai ! or defense! proof ay also be ade of specific instances of that person@s conduct& o Civil action clai ing negligent hiring or retention of e ployee renders e ployee/s character an essential ele ent of clai ' Panas v 'arakis o 2here evidence of a person/s character is ad issible as an essential ele ent of the defense! the specific acts offered to prove character ust be relevant to that character' State v .oodson o Character evidence offered to sho# negligent entrust ent ust be relevant to issue in case and ust be fresh enough to be probative of current conduct' Ro!k% Mountain 'eli!opters2 *n! v +ell 'eli!opters /extron2 *n!0 o Child custody statute invoking oral fitness of co peting parties renders character as essential ele ent of both parties/ cases' Mintle v Mintle o Character of victi is not an essential ele ent of self'defense' US v Keiser Rule +01. 'a&it< Routine Practice Evidence of the habit of a person or of the routine practice of an organi3ation! #hether corroborated or not and regardless of the presence of eye#itnesses! is relevant to prove that the conduct of the person or organi3ation on a particular occasion #as in confor ity #ith the habit or routine practice& o Evidence of prior conduct is ad issible to sho# action in confor ity there#ith only if repeated consistently enough ti es' 'alloran v )irginia "hemi!als2 *n!0 o Evidence of habit need not be corroborated by testi ony that the person acted in confor ity #ith that habit on the occasion in )uestion' Fren!h v Sorano o <abit evidence ust be sufficiently distinctive and specific to distinguish it fro character evidence' "harmle% v 5ewis o Evidence of co pany/s routine practice of inserting for in ailing is ad issible on )uestion #hether party received for ' Progressive ,meri!an *nsuran!e "ompan% v Kurtz Rule +0?. Su&se@uent Re,edial 8easures 2hen! after an injury or har allegedly caused by an event! easures are taken that! if taken previously! #ould have ade the injury or har less likely to occur! evidence of the subse)uent easures is not ad issible to prove negligence! culpable conduct! a defect in a product! a defect in a product@s design! or a need for a #arning or instruction& This rule does not re)uire the e"clusion of evidence of subse)uent easures #hen offered for another

purpose! such as proving o#nership! control! or feasibility of precautionary easures! if controverted! or i peach ent& o Subse)uent re edial easures are ad issible for li ited purpose of i peach ent if defense #itness e"aggerates virtues of product' Muz%ka v Reminton ,rms "o0 *n!0 o Subse)uent re edial easures are ad issible to sho# feasibility of precautionary easures #hen defense #itness says i prove ents are not feasible' +eing ,irplane "O v +rown o 9ost'accident design change by non'party is ad issible on )uestion of party/s negligence' 'artman v Opelika Ma!hine 7 .elding "ompan% o Evidence about the change suggests that the anufacturer believed that a design incorporating the safety feature #as better than a design that o itted the feature' .$ o Evidence of subse)uent repairs or design changes is a biguousHit ight support a relevant finding that the D/s conduct or design #as substandard! but it ight also support an irrelevant finding that the D/s subse)uent conduct represented greater car than the la# re)uires' .$ Rule +0A. Co,pro,ise and O%%ers to Co,pro,ise #a$ Pro/i&ited uses.BE"idence o% t/e %ollo9in! is not ad,issi&le on &e/al% o% an) part)> 9/en o%%ered to pro"e lia&ilit) %or> in"alidit) o%> or a,ount o% a clai, t/at 9as disputed as to "alidit) or a,ount> or to i,peac/ t/rou!/ a prior inconsistent state,ent or contradictionC *$+ furnishing or offering or pro ising to furnish or accepting or offering or pro ising to accept a valuable consideration in co pro ising or atte pting to co pro ise the clai - and *.+ conduct or state ents ade in co pro ise negotiations regarding the clai ! e"cept #hen offered in a cri inal case and the negotiations related to a clai by a public office or agency in the e"ercise of regulatory! investigative! or enforce ent authority& Per,itted uses. T/is rule does not re@uire e=clusion i% t/e e"idence is o%%ered %or purposes not pro/i&ited &) su&di"ision #a$. E=a,ples o% per,issi&le purposes include pro"in! a 9itnessDs &ias or pre(udice < ne!atin! a contention o% undue dela)< and pro"in! an e%%ort to o&struct a cri,inal in"esti!ation or prosecution. o E"pert/s report prepared e"pressly to facilitate settle ent is not ad issible under 6other#ise discoverable7 clause' Ramada Development "O v Rau!h o Evidence of settle ent negotiations is ad issible on )uestion of plaintiff/s failure to itigate da ages' +handari v First 3ational +ank o& "ommer!e o Betters containing offers to settle are ad issible for purpose of rebutting testi ony of undue delay' Freidus v First 3ational +ank o Third party settle ents are ordinarily inad issible! but are ad issible to sho# bias' 'udspeth v "ommissioner o& *nternal Revenue o 1d issions ade during civil settle ent negotiations are fully ad issible in cri inal case' US v #onzalez o Consent decree in earlier action is ad issible in civil case to sho# otive or intent of defendant! or nonco pliance #ith decree' 1ohnson v 'ugo(s Skatewa% o State ents ade in negotiating ost settle ents! and the fact of an acco plished settle ent itself! are kept fro the kno#ledge of the trier of fact even though any settle ent offers are probably a good indication that the party that offered the settle ent believed that the opponent/s clai s #ere valid' .. o 1 party is entitled to bring the substance of that infor ation into the trial if it is relevant and #as obtainable other than in the settle ent talk' .A o This does N,T prevent the ad ission of an offer of py t' .; Rule +0E. Pa),ent o% 8edical and Si,ilar E=penses Evidence of furnishing or offering or pro ising to pay edical! hospital! or si ilar e"penses occasioned by an injury is not ad issible to prove liability for the injury& o 1d ission of testi ony about defendant/s offer to pay edical e"penses is reversible error' 'ome *nsuran!e "ompan% v Spears o 9roof about edical py ts or offers of edical py ts ade outside of settle ent negotiations is not ad issible to sho# liability for the injury' .C Rule +10. Inad,issi&ilit) o% Pleas> Plea 4iscussions> and Related State,ents

E"cept as other#ise provided in this rule! evidence of the follo#ing is not! in any civil or cri inal proceeding! ad issible against the defendant #ho ade the plea or #as a participant in the plea discussions0 *$+ a plea of guilty #hich #as later #ithdra#n*.+ a plea of nolo contendere*;+ any state ent ade in the course of any proceedings under (ule $$ of the :ederal (ules of Cri inal 9rocedure or co parable state procedure regarding either of the foregoing pleas- or *A+ any state ent ade in the course of plea discussions #ith an attorney for the prosecuting authority #hich do not result in a plea of guilty or #hich result in a plea of guilty later #ithdra#n& <o#ever! such a state ent is ad issible *i+ in any proceeding #herein another state ent ade in the course of the sa e plea or plea discussions has been introduced and the state ent ought in fairness be considered conte poraneously #ith it! or *ii+ in a cri inal proceeding for perjury or false state ent if the state ent #as ade by the defendant under oath! on the record and in the presence of counsel& o Disclosures by accused are inad issible only if ade during plea discussion #ith attorney' US v Robertson o State ents ade unconditionally or in vague hope of benefits are fully ad issible' US v 'are o Testi ony about i unity negotiations is ad issible #hen offered by defendant' US v +iaggi o I peach ent0 9leas of nolo contendere are not inad issible for i peach ent by conviction' US v Sonn% Mit!hell "enter Rule +11. Lia&ilit) Insurance Evidence that a person #as or #as not insured against liability is not ad issible upon the issue #hether the person acted negligently or other#ise #rongfully& This rule does not re)uire the e"clusion of evidence of insurance against liability #hen offered for another purpose! such as proof of agency! o#nership! or control! or bias or prejudice of a #itness& o Evidence of liability insurance is ad issible to prove o#nership and control' Dobbins v "rain +rothers2 *n!0 o Evidence of liability insurance is ad issible to i peach #itness e ployed by defendant/s insurer' "harter v "hleborad o (eferences to insurance are ad issible to account for safety inspections of building' Morrisse% v .elsh o Evidence of lack of alpractice insurance coverage for treat ent of e ployees ay be ad issible to prove doctor/s otive in failing to treat e ployee' Miller v Szelen%i o 5ood faith in)uiry entioning insurance is per issible on jury voir dire to ascertain juror bias due to edia accounts of 6 edical alpractice crisis7 or 6insurance crisis7' Kozlowski v Rush Rule +12. Se= O%%ense Cases< Rele"ance o% Alle!ed Victi,Ds Past Se=ual Fe/a"ior or Alle!ed Se=ual Predisposition o Victi is entitled to appeal ruling ad itting past se"ual history evidence- V/s general reputation is inad issible! but D/s kno#ledge of V/s past se"ual behavior ac)uired before alleged cri e is relevant to D/s intent' Doe v US o V/s reputation as prostitute #ho trades se" for drugs is not relevant #here consent is not basis of accused/s defense to rape charges' US v Saunders o V/s prior charges of se"ual assault against fa ily e bers! subse)uently #ithdra#n! are inad issible in rape prosecution of her uncle' US v "ardinal o 2o an/s prior se"ual history is ad issible in her civil suit for trans ission of genital herpes' 1udd v Rodman #a$ E"idence !enerall) inad,issi&le. The follo#ing evidence is not ad issible in any civil or cri inal proceeding involving alleged se"ual isconduct e"cept as provided in subdivisions *b+ and *c+0 *$+ Evidence offered to prove that any alleged victi engaged in other se"ual behavior& *.+ Evidence offered to prove any alleged victi @s se"ual predisposition& #&$ E=ceptions. *$+ In a cri inal case! the follo#ing evidence is ad issible! if other#ise ad issible under these rules0 *1+ evidence of specific instances of se"ual behavior by the alleged victi offered to prove that a person other than the accused #as the source of se en! injury! or other physical evidence*I+ evidence of specific instances of se"ual behavior by the alleged victi #ith respect to the person accused of the se"ual isconduct offered by the accused to prove consent or by the prosecution- and

*C+ evidence the e"clusion of #hich #ould violate the constitutional rights of the defendant& *.+ In a civil case! evidence offered to prove the se"ual behavior or se"ual predisposition of any alleged victi is ad issible if it is other#ise ad issible under these rules and its probative value substantially out#eighs the danger of har to any victi and of unfair prejudice to any party& Evidence of an alleged victi @s reputation is ad issible only if it has been placed in controversy by the alleged victi & Deter ination #hether victi of alleged rape had pre'e"isting se"ual relationship #ith ; rd party as accused clai ed #as for jury to ake' US v Platero

#c$ Procedure to deter,ine ad,issi&ilit). *$+ 1 party intending to offer evidence under subdivision *b+ ust '' *1+ file a #ritten otion at least $A days before trial specifically describing the evidence and stating the purpose for #hich it is offered unless the court! for good cause re)uires a different ti e for filing or per its filing during trial- and *I+ serve the otion on all parties and notify the alleged victi or! #hen appropriate! the alleged victi @s guardian or representative& *.+ Iefore ad itting evidence under this rule the court ust conduct a hearing in ca era and afford the victi and parties a right to attend and be heard& The otion! related papers! and the record of the hearing ust be sealed and re ain under seal unless the court orders other#ise& Rule +1 . E"idence o% Si,ilar Cri,es in Se=ual Assault Cases *a+ In a cri inal case in #hich the defendant is accused of an offense of se"ual assault! evidence of the defendant@s co ission of another offense or offenses of se"ual assault is ad issible! and ay be considered for its bearing on any atter to #hich it is relevant& *b+ In a case in #hich the 5overn ent intends to offer evidence under this rule! the attorney for the 5overn ent shall disclose the evidence to the defendant! including state ents of #itnesses or a su ary of the substance of any testi ony that is e"pected to be offered! at least fifteen days before the scheduled date of trial or at such later ti e as the court ay allo# for good cause& *c+ This rule shall not be construed to li it the ad ission or consideration of evidence under any other rule& *d+ :or purposes of this rule and (ule A$C! >offense of se"ual assault> eans a cri e under :ederal la# or the la# of a State *as defined in section C$; of title $F! United States Code+ that involved'' *$+ any conduct proscribed by chapter $%?1 of title $F! United States Code*.+ contact! #ithout consent! bet#een any part of the defendant@s body or an object and the genitals or anus of another person*;+ contact! #ithout consent! bet#een the genitals or anus of the defendant and any part of another person@s body*A+ deriving se"ual pleasure or gratification fro the infliction of death! bodily injury! or physical pain on another person- or *C+ an atte pt or conspiracy to engage in conduct described in paragraphs *$+'*A+& o Evidence of prior se"ual assaults is ad issible subject to probative v prejudicial balancing' US v #uardia o Rule +1+. E"idence o% Si,ilar Cri,es in C/ild 8olestation Cases *a+ In a cri inal case in #hich the defendant is accused of an offense of child olestation! evidence of the defendant@s co ission of another offense or offenses of child olestation is ad issible! and ay be considered for its bearing on any atter to #hich it is relevant& *b+ In a case in #hich the 5overn ent intends to offer evidence under this rule! the attorney for the 5overn ent shall disclose the evidence to the defendant! including state ents of #itnesses or a su ary of the substance of any testi ony that is e"pected to be offered! at least fifteen days before the scheduled date of trial or at such later ti e as the court ay allo# for good cause& *c+ This rule shall not be construed to li it the ad ission or consideration of evidence under any other rule& *d+ :or purposes of this rule and (ule A$C! >child> eans a person belo# the age of fourteen! and >offense of child olestation> eans a cri e under :ederal la# or the la# of a State *as defined in section C$; of title $F! United States Code+ that involved'' *$+ any conduct proscribed by chapter $%?1 of title $F! United States Code! that #as co itted in relation to a child-

o o

*.+ any conduct proscribed by chapter $$% of title $F! United States Code*;+ contact bet#een any part of the defendant@s body or an object and the genitals or anus of a child*A+ contact bet#een the genitals or anus of the defendant and any part of the body of a child*C+ deriving se"ual pleasure or gratification fro the infliction of death! bodily injury! or physical pain on a child- or *D+ an atte pt or conspiracy to engage in conduct described in paragraphs *$+'*C+& Evidence of si ilar cri es in child olestation prosecution is ad issible subject to probative v prejudicial balancing' US v Sumner In deciding #hether si ilar cri es evidence is ad issible in child se" offense case! court ust apply probative v prejudicial balancing test so as to allo# )ualifying evidence to co e in' US v 5e"ompte

Rule +10. E"idence o% Si,ilar Acts in Ci"il Cases Concernin! Se=ual Assault or C/ild 8olestation *a+ In a civil case in #hich a clai for da ages or other relief is predicated on a party@s alleged co ission of conduct constituting an offense of se"ual assault or child olestation! evidence of that party@s co ission of another offense or offenses of se"ual assault or child olestation is ad issible and ay be considered as provided in (ule A$; and (ule A$A of these rules& *b+ 1 party #ho intends to offer evidence under this (ule shall disclose the evidence to the party against #ho it #ill be offered! including state ents of #itnesses or a su ary of the substance of any testi ony that is e"pected to be offered! at least fifteen days before the scheduled date of trial or at such later ti e as the court ay allo# for good cause& *c+ This rule shall not be construed to li it the ad ission or consideration of evidence under any other rule& ARTICLE V. PRIVILEGES Rule 001. General Rule E"cept as other#ise re)uired by the Constitution of the United States or provided by 1ct of Congress or in rules prescribed by the Supre e Court pursuant to statutory authority! the privilege of a #itness! person! govern ent! State! or political subdivision thereof shall be governed by the principles of the co on la# as they ay be interpreted by the courts of the United States in the light of reason and e"perience& <o#ever! in civil actions and proceedings! #ith respect to an ele ent of a clai or defense as to #hich State la# supplies the rule of decision! the privilege of a #itness! person! govern ent! State! or political subdivision thereof shall be deter ined in accordance #ith State la#& o 9rivilege against self'incri ination does not e"tend to concern #ith foreign prosecution' US v +als%s o 1ttny'Client 9rivilege0 Deter ination of e"istence of e"ception to privilege for co unications in furtherance of illegal conduct is for ct to ake' US v $olin o 1ttny'Client 9rivilege0 ,nly confidential disclosures are protected' US v Olo%ede o 1ttny'Client 9rivilege0 Identity of clients is protected if disclosure #ill reveal substance of co unication' US v 5iebman o 1ttny'Client 9rivilege0 Disclosure of identity of ;rd party #ho paid attny fee for D cannot be co pelled #here disclosure #ould reveal purpose for legal consultation' *n re #rand 1ur% Subpoena o 1ttny'Client 9rivilege0 Ioth direct and derivative privilege apply only to disclosures ade for legal representation' US v /edder o 1ttny'Client 9rivilege0 Co unications bt# la#yer and client re ain privileged after client/s death' Swidler 7 +erlin v US o 1ttny'Client 9rivilege0 Intra'Corporate co unications to corporate counsel are protected' Up ohn v US o Spousal 9rivilege0 Testifying spouse possesses federal privilege! not D spouse' /rammel v US o Jarital Co unications 9rivilege0 9rivilege is not available to per anently separated couples' US v +%rd o :ederal privilege is no# recogni3ed for co unications to psychiatrists! psychologists! social #orkers' 1a&ee v Redmond Rule 002. Attorne)*Client Pri"ile!e and .or7 Product< Li,itations on .ai"er #a$ Scope o% 9ai"er. In federal proceedings! the #aiver by disclosure of an attorney'client privilege or #ork product protection e"tends to an undisclosed co unication or infor ation concerning the sa e subject atter only if that undisclosed co unication or infor ation ought in fairness to be considered #ith the disclosed co unication or infor ation& #&$ Inad"ertent disclosure.

1 disclosure of a co unication or infor ation covered by the attorney'client privilege or #ork product protection does not operate as a #aiver in a state or federal proceeding if the disclosure is inadvertent and is ade in connection #ith federal litigation or federal ad inistrative proceedings H and if the holder of the privilege or #ork product protection took reasonable precautions to prevent disclosure and took reasonably pro pt easures! once the holder kne# or should have kno#n of the disclosure! to rectify the error! including *if applicable+ follo#ing the procedures in :ed& (& Civ& 9& .D*b+*C+*I+& #c$ Selecti"e 9ai"er. In a federal or state proceeding! a disclosure of a co unication or infor ation covered by the attorney'client privilege or #ork product protection H #hen ade to a federal public office or agency in the e"ercise of its regulatory! investigative! or enforce ent authority H does not operate as a #aiver of the privilege or protection in favor of non'govern ental persons or entities& The effect of disclosure to a state or local govern ent agency! #ith respect to non'govern ental persons or entities! is governed by applicable state la#& Nothing in this rule li its or e"pands the authority of a govern ent agency to disclose co unications or infor ation to other govern ent agencies or as other#ise authori3ed or re)uired by la#&KLL #d$ Controllin! e%%ect o% court orders. 1 federal court order that the attorney'client privilege or #ork product protection is not #aived as a result of disclosure in connection #ith the litigation pending before the court governs all persons or entities in all state or federal proceedings! #hether or not they #ere parties to the atter before the court! if the order incorporates the agree ent of the parties before the court& #e$ Controllin! e%%ect o% part) a!ree,ents. 1n agree ent on the effect of disclosure of a co unication or infor ation covered by the attorney'client privilege or #ork product protection is binding on the parties to the agree ent! but not on other parties unless the agree ent is incorporated into a court order& #%$ Included pri"ile!e and protection. 1s used in this rule0 *$+ >attorney'client privilege> eans the protection provided for confidential attorney'client co unications! under applicable la#- and *.+ >#ork product protection> eans the protection for aterials prepared in anticipation of litigation or for trial! under applicable la#& ARTICLE VI. .ITNESSES Rule 101. General Rule o% Co,petenc) Every person is co petent to be a #itness e"cept as other#ise provided in these rules& <o#ever! in civil actions and proceedings! #ith respect to an ele ent of a clai or defense as to #hich State la# supplies the rule of decision! the co petency of a #itness shall be deter ined in accordance #ith State la#& o Child is presu ed co petent to testify absent sho#ing of dis)ualifying fact' State v Roman o 6:acilitated7 testi ony is ad issible if trial judge is satisfied facilitator is not influencing #itnesstesti ony challenging validity of facilitated testi ony is also ad issible' State v .arden o State la# barring testi ony applies in federal civil action' +rand v +rand o 2itness #ith faulty e ory is not inco petent to testify if she possesses general recollection of personal kno#ledge' US v Pe%ro Rule 102. Lac7 o% Personal 6no9led!e 1 #itness ay not testify to a atter unless evidence is introduced sufficient to support a finding that the #itness has personal kno#ledge of the atter& Evidence to prove personal kno#ledge ay! but need not! consist of the #itness@ o#n testi ony& This rule is subject to the provisions of rule E%;! relating to opinion testi ony by e"pert #itnesses& o 2itness #ith faulty e ory is not inco petent to testify if she possesses general recollection of personal kno#ledge' US v Pe%ro o Trial court has discretion to deter ine #hether #itness #as in position to observe events he proposes to testify about! and to e"clude testi ony if #itness could not have observed events in )uestion' M!"rar%86l v Shaw

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<ypnotically induced identification of person #ho #itness previously kne# #as under suspicion is inad issible' *S v )aldez To satisfy the personal kno#ledge re)uire ent! the proponent of the #itness ust introduce evidence that provides a basis on #hich a jury ot a judge sitting as trier'of'fact could reasonably conclude that the #itness has personal kno#ledge of the subject atter of his or her testi ony' $AD

Rule 10 . Oat/ or A%%ir,ation Iefore testifying! every #itness shall be re)uired to declare that the #itness #ill testify truthfully! by oath or affir ation ad inistered in a for calculated to a#aken the #itness@ conscience and i press the #itness@ ind #ith the duty to do so& o 1ccused #ho refuses to s#ear or affir he #ill tell the truth! forfeits the right to testify' US v Fowler Rule 10+. Interpreters 1n interpreter is subject to the provisions of these rules relating to )ualification as an e"pert and the ad inistration of an oath or affir ation to ake a true translation& o Trial judge ust evaluate accused/s need for interpreter outside presence of jury! and ust provide one if accused/s language skills effectively prevent hi fro e"ercising right to testify' US v Ma%ans Rule 100. Co,petenc) o% 2ud!e as .itness The judge presiding at the trial ay not testify in that trial as a #itness& No objection need be ade in order to preserve the point& o Trial judge ay not testify or take into account his o#n testi ony based on his personal kno#ledge of facts of case' Fox v "it% o& .est Palm +ea!h o 4udge/s interruption and correction of counsel on point of la# is not i per issible judicial testi ony' US v Ma!eo Rule 101. Co,petenc) o% 2uror as .itness #a$ At t/e trial. 1 e ber of the jury ay not testify as a #itness before that jury in the trial of the case in #hich 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& o Je ber of grand jury that indicted accused ay not testify as #itness in sa e case' State v ,aron #&$ In@uir) into "alidit) o% "erdict or indict,ent. Upon an in)uiry into the validity of a verdict or indict ent! a juror ay not testify as to any atter or state ent occurring during the course of the jury@s deliberations or to the effect of anything upon that or any other juror@s ind or e otions as influencing the juror to assent to or dissent fro the verdict or indict ent or concerning the juror@s ental processes in connection there#ith& Iut a juror ay testify about *$+ #hether e"traneous prejudicial infor ation #as i properly brought to the jury@s attention! *.+ #hether any outside influence #as i properly brought to bear upon any juror! or *;+ #hether there #as a istake in entering the verdict onto the verdict for & 1 juror@s affidavit or evidence of any state ent by the juror ay not be received on a atter about #hich the juror #ould be precluded fro testifying& o 4uror ay testify about e"traneous prejudicial infor ation concerning accused/s prior conviction that #as brought to jury/s attention during deliberations' US v Swinton o Trial court cannot take juror testi ony about deliberations to i peach verdict' US v Straa!h Rule 10?. ./o 8a) I,peac/ The credibility of a #itness ay be attacked by any party! including the party calling the #itness& o I peach ent0 9ast physical abuse of #itness by accused is ad issible to sho# #itness/s otive to fabricate' US v +ratton o I peach ent0 9er issible subjects of cross'e"a ination of eye#itness include )uality of #itness/s eyesight' +attle v US o I peach ent0 :or #itness/s narcotics use to be ad issible! connection ust be established bet#een drug use and subject of testi ony' 'enderson v De/ella o I peach ent0 Iias is relevant enough that denial of right to i peach can preclude su ary judg ent' .ilmington /rust "o v Manu&a!turers 5i&e *nsuran!e "o

o o o o o o o o

I peach ent0 (elationship bet#een prosecution #itness and investigating officer is ad issible' US v +u!hanan I peach ent0 5ang e bership is ad issible to sho# bias of defense #itness' US v ,bel I peach ent0 2itness/s ental illness is ad issible to suggest vendetta against accused' US v 5indstrom I peach ent0 E"pert #itness ay be asked about fees earned in prior cases' "ollins v .a%ne "orp0 Confrontation Clause' I peach ent0 Denial of opportunity to cross'e"a ine #itness concerning bias because of state/s dis issal of charge against #itness violates clause subject to har less error analysis' D6 v )an ,rsdall I peach ent0 Cross'e"a ination concerning past alcohol use is li ited to situations #here alcohol use ay have affected perception or testi ony- e"trinsic evidence is i per issible to i peach #itness' US v DiPaolo I peach ent0 9sychiatric history of delusions is ad issible to i peach credibility of #itness- failure to file inco e ta" returns is probative of untruthfulness' "hnapkova v Koh I peach ent0 4uvenile offenses are ad issible for i peach ent #hen andated by confrontation clause' Davis v ,laska

Rule 10A. E"idence o% C/aracter and Conduct o% .itness #a$ Opinion and reputation e"idence o% c/aracter. The credibility of a #itness ay be attacked or supported by evidence in the for of opinion or reputation! but subject to these li itations0 *$+ the evidence ay refer only to character for truthfulness or untruthfulness! and *.+ evidence of truthful character is ad issible only after the character of the #itness for truthfulness has been attacked by opinion or reputation evidence or other#ise& o I peach ent0 Veracity #itness ay co ent only generally on #itness/s truthfulness- ay not state he doesn/t believe #itness/s testi ony' US v Malad% o I peach ent of #itness regarding untruthfulness of hearsay state ent of non'testifying accused opens door to rehabilitation of accused/s truthful character' US v 5e!ho!o o 1 party seeking to i peach the credibility of a #itness ay introduce evidence sho#ing that the #itness is the type of person #ho is likely to lie' $D% o 1n i peaching #itness is allo#ed to provide the fact finder #ith negative infor ation about the testifying #itness/s untruthful nature by either0 describing the testifying #itness/s reputation for truth'telling or by giving an opinion about the testifying #itness/s typical truthfulness' $D% o Evidence about truthfulness is not per itted until there has been an attack on a #itness/s credibility e"cept0 o In cri inal cases! a D ay co ent on their o#n truthfulness if truthfulness is a trait pertinent to the charged cri e! #hether or not there has been a character'based attack on the D/s truthfulness' $D$ 2hen Jay Character Evidence on Credibility Ie 1d ittedG *$D.+ ,ccasions for Use of 9roof 9rior to ,ther Credibility During Direct E"a ination During Cross'E"a ination Evidence Mes Mes Mes Mes Mes No No Mes No Mes No Mes Mes Mes Mes

Type of 9roof Convictions sho#ing truthfulness ,pinion or reputation sho#ing untruthfulness 9ast acts sho#ing untruthfulness ,pinion or reputation sho#ing untruthfulness 9ast acts sho#ing truthfulness

#&$ Speci%ic instances o% conduct. Specific instances of the conduct of a #itness! for the purpose of attacking or supporting the #itness@ character for truthfulness! other than conviction of cri e as provided in rule D%?! ay not be proved by e"trinsic evidence& They

ay! ho#ever! in the discretion of the court! if probative of truthfulness or untruthfulness! be in)uired into on cross' e"a ination of the #itness *$+ concerning the #itness@ character for truthfulness or untruthfulness! or *.+ concerning the character for truthfulness or untruthfulness of another #itness as to #hich character the #itness being cross' e"a ined has testified& o I peach ent0 Cross'e"a ination concerning past alcohol use is li ited to situations #here alcohol use ay have affected perception or testi ony- e"trinsic evidence is i per issible to i peach #itness' US v DiPaolo o I peach ent0 9sychiatric history of delusions is ad issible to i peach credibility of #itness- failure to file inco e ta" returns is probative of untruthfulness' "hnapkova v Koh o I peach ent0 5ood faith basis in fact ust be established before #itness ay be i peached #ith )uestions about accused/s isconduct' US v Davenport o 1 #itness ay be )uestioned about past acts that did not lead to a conviction if they are relevant to the #itness/s character for truthfulness! but proof other than this testi ony is prohibited' $C? o Control of this infor ation0 the )uestioner ust have good faith belief that the event actually occurred or else ay not ask )uestions about it& The )uestions ust be asked during cross' e"a ination! not during direct e"a ination& The )uestioner ay not introduce other proof about the alleged past act by testi ony fro other #itnesses or by any other ethod' $C? The giving of testi ony! #hether by an accused or by any other #itness! does not operate as a #aiver of the accused@s or the #itness@ privilege against self'incri ination #hen e"a ined #ith respect to atters that relate only to character for truthfulness& o (e)uire ent of fairness can so eti es shade strict applicability of specific rule of evidence' US v Opager o I peach ent0 9olygraph results are inad issible to bolster credibility' +arnier v Szentmiklosi Rule 10E. I,peac/,ent &) E"idence o% Con"iction o% Cri,e #a$ General rule. :or the purpose of attacking the character for truthfulness of a #itness! *$+ evidence that a #itness other than an accused has been convicted of a cri e shall be ad itted! subject to (ule A%;! if the cri e #as punishable by death or i prison ent in e"cess of one year under the la# under #hich the #itness #as convicted! and evidence that an accused has been convicted of such a cri e shall be ad itted if the court deter ines that the probative value of ad itting this evidence out#eighs its prejudicial effect to the accused- and o I peach ent0 Cross'e"a ination of accused regarding prior for sa e conduct as current charge is too prejudicial' US v Sanders o I peach ent0 Details surrounding prior conviction are inad issible for i peach ent of #itness' .ilson v "it% o& "hi!ago o I peach ent0 Specific details of #itness/s prior conviction are ad issible on cross'e"a ination only if #itness first volunteers details to e"plain a#ay or ini i3e his guilt' US v Swanson *.+ evidence that any #itness has been convicted of a cri e shall be ad itted regardless of the punish ent! if it readily can be deter ined that establishing the ele ents of the cri e re)uired proof or ad ission of an act of dishonesty or false state ent by the #itness& o I peach ent0 9rior conviction for cri e of dishonesty is ad issible to i peach #itness #ithout regard to conviction/s prejudicial effect' US v /one% o I peach ent0 Theft isde eanor does not ordinarily involve dishonesty or false state ent' State v 6llis o I peach ent0 9rior conviction of civil non'party #itness for felony drug offense can be sufficiently probative of untruthfulness' Radtke v "essna ,ir!ra&t "o0 o I peach ent0 9leas of nolo contendere are not inad issible for i peach ent by conviction' US v Sonn% Mit!hell "enter o The (ule varies the availability of proof of past convictions for i peaching the credibility of a #itness in accordance #=factors like0 #hether the #itness sought to be i peached is a cri inal D! the type of cri e co itted! and the likely balance bt# probative value and prejudice' $CC

If a cri e/s ele ents re)uire proof of dishonesty or false state ent to support conviction! evidence that any #itness #as convicted of it is usually ad issible to i peach that #itness/s credibility in the current trial' $CC o 9roof of conviction of cri es that do not involve 6dishonesty or false state ent7 is also ad issible! subject to . )ualifications0 the cri e ust have been punishable by death or i prison ent in e"cess of $ yr! and the evidence ust pass a balancing test co paring its probative value to certain risks of isuse' $CC o If the #itness is anyone other than the D in a cri inal trial! the evidence is e"cluded only if it probative value is substantiall% out#eighed by its prejudicial effects& The balancing test for #itnesses other than the cri inal D is the test set out in 6unfair prejudice7' (ule A%;' $CD& o This (ule treats nontruth'telling offenses as related to a #itness/s likely truthfulness #hile testifying& Cts usually focus on #hether the #itness/s credibility is particularly i portant in the trial and on #hether there are other eans to give the jury a basis for assessing that credibility *in evaluating probative value+'$CD #&$ Ti,e li,it. Evidence of a conviction under this rule is not ad issible if a period of ore than ten years has elapsed since the date of the conviction or of the release of the #itness fro the confine ent i posed for that conviction! #hichever is the later date! unless the court deter ines! in the interests of justice! that the probative value of the conviction supported by specific facts and circu stances substantially out#eighs its prejudicial effect& <o#ever! evidence of a conviction ore than $% years old as calculated herein! is not ad issible unless the proponent gives to the adverse party sufficient advance #ritten notice of intent to use such evidence to provide the adverse party #ith a fair opportunity to contest the use of such evidence& o I peach ent0 To deter ine if #itness/s conviction is too old! probationary period is not 6confine ent7' US v Daniel o The $% year staleness provision applies to dishonesty or false state ents! and other cri es covered by the i peach ent rules' $CE #c$ E%%ect o% pardon> annul,ent> or certi%icate o% re/a&ilitation. Evidence of a conviction is not ad issible under this rule if *$+ the conviction has been the subject of a pardon! annul ent! certificate of rehabilitation! or other e)uivalent procedure based on a finding of the rehabilitation of the person convicted! and that person has not been convicted of a subse)uent cri e that #as punishable by death or i prison ent in e"cess of one year! or *.+ the conviction has been the subject of a pardon! annul ent! or other e)uivalent procedure based on a finding of innocence& o If a pardon #as based on finding of innocence! evidence of the conviction for #hich the pardon #as granted is inad issible' $CF o If a pardon #as based on factors such as rehabilitation! evidence of the conviction is si ilarly inad issible unless the person has subse)uently been convicted of a serious cri e' $CF #d$ 2u"enile ad(udications. Evidence of juvenile adjudications is generally not ad issible under this rule& The court ay! ho#ever! in a cri inal case allo# evidence of a juvenile adjudication of a #itness other than the accused if conviction of the offense #ould be ad issible to attack the credibility of an adult and the court is satisfied that ad ission in evidence is necessary for a fair deter ination of the issue of guilt or innocence& o I peach ent0 4uvenile offenses are ad issible for i peach ent #hen andated by confrontation clause' Davis v ,laska o TC has the discretion to ad it juvenile adjudications if necessary for fair evaluation of a #itness/s testi ony #ith regard to guilt or innocence of a cri inal D' $CF #e$ Pendenc) o% appeal. The pendency of an appeal therefro does not render evidence of a conviction inad issible& Evidence of the pendency of an appeal is ad issible& o Is Evidence of a 2itness/s 9ast Conviction 1d issibleG *$CF+ Ialance bt# 9robative Value and (isk of 9rejudice Substantially Jore Jore 9robative than Jore 9rejudicial than 9robative than 9rejudicial 9robative 9rejudicial Mes Mes Mes

Type of Conviction and Type of 2itness Cri e involved truth telling- any #itness

Substantially Jore 9rejudicial than 9robative Mes

Cri e did not involve truth'telling- any #itness e"cept a cri inal D Cri e did not involve truth'telling- cri inal D #itness 1ny cri e ore than $% yrs old- any #itness

Mes

Mes

Mes

No

Mes Mes

Mes No

No No

No No

Type of 9roof Convictions sho#ing untruthfulness ,pinion or reputation sho#ing untruthfulness 9ast acts sho#ing untruthfulness ,pinion or reputation sho#ing truthfulness 9ast acts sho#ing truthfulness

2hen Jay Character Evidence on Credibility Ie 1d ittedG *$D.+ ,ccasions for Use of 9roof 9rior to other Credibility During Direct E"a ination Evidence Mes Mes Mes Mes No No Mes No Mes No

During Cross'E"a ination Mes Mes Mes Mes Mes

Rule 110. Reli!ious Felie%s or Opinions Evidence of the beliefs or opinions of a #itness on atters of religion is not ad issible for the purpose of sho#ing that by reason of their nature the #itness@ credibility is i paired or enhanced& o (eligious belief in nonviolence is i proper #ay to prove defendant/s character and inad issible bolstering of credibility' #overnment o& )irgin *slands v Petersen o I peach ent0 State ents of religious belief in connection #ith difficulty attending church b=c of edical condition are not inad issible bolstering of credibility' Mauldin v Up ohn "ompan% o I peach ent0 (eligious affiliation of #itness is ad issible to e"tent relevant to sho# #itness/s bias! but not to under ine credibility by depicting religious e"tre is ' Firemen(s Fund *ns "o v /hien o If a #itness/s religious belief or e bership in a religious organi3ation could be a basis for bias to#ards or against a party! then proof related to religion #ould be proper b=c kinship or antipathy #ould be the basis for the clai of relevance' $D; Rule 111. 8ode and Order o% Interro!ation and Presentation #a$ Control &) court. The court shall e"ercise reasonable control over the ode and order of interrogating #itnesses and presenting evidence so as to *$+ ake the interrogation and presentation effective for the ascertain ent of the truth! *.+ avoid needless consu ption of ti e! and *;+ protect #itnesses fro harass ent or undue e barrass ent& o Trial court has discretion to allo# defense and rebuttal #itnesses to be called out of order so long as no actual prejudice to either party results' +erro%er v 'ertz o Trial judge controls the ode and order of presentation of each party/s case' $A? o Trial judge ay )uestion #itnesses' $A? o The judge/s otive for )uestioning should al#ays be to increase the clarity of the testi ony rather than to influence the result in the case' $C$ #&$ Scope o% cross*e=a,ination.

Cross'e"a ination should be li ited to the subject atter of the direct e"a ination and atters affecting the credibility of the #itness& The court ay! in the e"ercise of discretion! per it in)uiry into additional atters as if on direct e"a ination& o Court has discretion to li it cross'e"a ination regarding collateral atter not sho#n to have likelihood of connection to case' +ishop v State o Trial court has broad discretion in deter ining if )uestions on redirect e"a ination are per issible despite falling outside scope of direct or cross'e"a ination' US v /a%lor o Cross'e"a ination is li ited to . area of in)uiry0 *$C%+ o Topics involved in the #itness/s direct e"a ination and o Topics concerning the #itness/s credibility #c$ Leadin! @uestions. Beading )uestions should not be used on the direct e"a ination of a #itness e"cept as ay be necessary to develop the #itness@ testi ony0 Ordinaril% leading 9uestions should be permitted on !ross8examination& 2hen a party calls a hostile #itness! an adverse party! or a #itness identified #ith an adverse party! interrogation ay be by leading )uestions& o 1 leading )uestion is one that suggests its ans#er' $A? Rule 112. .ritin! 3sed to Re%res/ 8e,or) E"cept as other#ise provided in cri inal proceedings by section ;C%% of title $F! United States Code! if a #itness uses a #riting to refresh e ory for the purpose of testifying! either'' *$+ #hile testifying! or *.+ before testifying! if the court in its discretion deter ines it is necessary in the interests of justice! an adverse party is entitled to have the #riting produced at the hearing! to inspect it! to cross'e"a ine the #itness thereon! and to introduce in evidence those portions #hich relate to the testi ony of the #itness& If it is clai ed that the #riting contains atters not related to the subject atter of the testi ony the court shall e"a ine the #riting in ca era! e"cise any portions not so related! and order delivery of the re ainder to the party entitled thereto& 1ny portion #ithheld over objections shall be preserved and ade available to the appellate court in the event of an appeal& If a #riting is not produced or delivered pursuant to order under this rule! the court shall ake any order justice re)uires! e"cept that in cri inal cases #hen the prosecution elects not to co ply! the order shall be one striking the testi ony or! if the court in its discretion deter ines that the interests of justice so re)uire! declaring a istrial& o Je ory of #itness ay be refreshed #ith inad issible #riting' .ilson v State o 2riting used to refresh recollection need not have been prepared by or even previously seen by #itness' R,+ v State o Use of intervie# su aries to refresh #itness recollection a ounts to #aiver of attorney'client and #ork product privileges! entitling adverse party to inspect the ' Samaritan 'ealth Servi!es2 *n! v Superior "ourt o Can put a #riting or anything else *diary! hu ing a tune! etc+' can/t offer into evidence but can use it to refresh e ory' the other side can ad it it into evidence b=c they can inspect it Rule 11 . Prior State,ents o% .itnesses o I peach ent0 Evasive! e)uivocal testi ony is sufficiently inconsistent #ith prior state ent to allo# state ent/s use to i peach #itness' Ppl v Petersen o I peach ent0 Silence of accused is not prior inconsistent state ent nor ad ission by silence' Do%le v O' #a$ E=a,inin! 9itness concernin! prior state,ent. In e"a ining a #itness concerning a prior state ent ade by the #itness! #hether #ritten or not! the state ent need not be sho#n nor its contents disclosed to the #itness at that ti e! but on re)uest the sa e shall be sho#n or disclosed to opposing counsel& #&$ E=trinsic e"idence o% prior inconsistent state,ent o% 9itness. E"trinsic evidence of a prior inconsistent state ent by a #itness is not ad issible unless the #itness is afforded an opportunity to e"plain or deny the sa e and the opposite party is afforded an opportunity to interrogate the #itness thereon! or the interests of justice other#ise re)uire& This provision does not apply to ad issions of a party' opponent as defined in rule F%$*d+*.+& o I peach ent0 2itness need not be cross'e"a ined about all details of prior inconsistent state ent before e"trinsic evidence of sa e is ad issible' US v M!5aughlin

o o o

E"trinsic evidence of prior inconsistent state ent is per issible i peach ent of hearsay declarant despite failure to satisfy foundational re)uire ents of :(E D$;*b+' Smith v Fairman <earsay declarant ay be i peached #=prior inconsistent state ent' US v .uagneux If e"trinsic evidence of a past state ent is introduced! the #itness #ho ade the current and past state ents ust be given an opportunity to e"plain the past state ent- this ay co e before or after e"trinsic evidence of the state ent is introduced' $DC

Rule 11+. Callin! and Interro!ation o% .itnesses &) Court #a$ Callin! &) court. The court ay! on its o#n otion or at the suggestion of a party! call #itnesses! and all parties are entitled to cross' e"a ine #itnesses thus called& #&$ Interro!ation &) court. The court ay interrogate #itnesses! #hether called by itself or by a party& o Interrogation of #itnesses by trial judge ust be fair! i partial' US v 'i!kman #c$ O&(ections. ,bjections to the calling of #itnesses by the court or to interrogation by it ay be ade at the ti e or at the ne"t available opportunity #hen the jury is not present& Rule 110. E=clusion o% .itnesses 1t the re)uest of a party the court shall order #itnesses e"cluded so that they cannot hear the testi ony of other #itnesses! and it ay ake the order of its o#n otion& This rule does not authori3e e"clusion of *$+ a party #ho is a natural person! or *.+ an officer or e ployee of a party #hich is not a natural person designated as its representative by its attorney! or *;+ a person #hose presence is sho#n by a party to be essential to the presentation of the party@s cause! or *A+ a person authori3ed by statute to be present& o (ight to se)uester #itnesses does not apply to la# enforce ent officer in charge of investigation of case' +urke v State o Unintentional violation of se)uestration order should not result in e"clusion of defense #itnesses unless necessary to preserve integrity of trial' State v +urdge o 1 person ay not be se)uestered if his or her presence #hen not testifying is sho#n to be necessary to a party/s representation' $C. o 2hen a party is an entity rather than a person! a representative of that entity is treated as e)uivalent to a person #ho is a party and is protected fro se)uestration as #ell' $C. ARTICLE VII. OPINIONS AN4 EGPERT TESTI8ON: Rule ?01. Opinion Testi,on) &) La) .itnesses If the #itness is not testifying as an e"pert! the #itness@ testi ony in the for of opinions or inferences is li ited to those opinions or inferences #hich are *a+ rationally based on the perception of the #itness! and *b+ helpful to a clear understanding of the #itness@ testi ony or the deter ination of a fact in issue! and *c+ not based on scientific! technical! or other speciali3ed kno#ledge #ithin the scope of (ule E%.& o Bay #itness ay give esti ate of speed of vehicle' Smith v Praegitzer o 2itness ay be asked if accused #as defending hi self #hen he attacked victi ' State v Salazar o Bay opinion testi ony identifying subject in photograph is ad issible if #itness is in position to ake ore accurate identification than jury' US v Robinson o Into"ication is proper subject of lay opinion testi ony' 5oo& v Sanders o Non'e"pert opinion is ad issible regarding likely injury fro accused/s knife' 5ewis v State o 1uthor of notation 6 entally unbalanced7 on #itness/s probation file ust be present for conclusion to be ad issible lay opinion' US v ,nthon% o 1d issible lay opinion testi ony ay be based on revie# business records or on industry e"perience' +urlington 3orthern Railroad "O v State o& 3ebraska o This rule provides that unless a #itness is testifying as an e"pert! state ents of opinion or inference is based on so e perception by the #itness& It ust also be sho#n that the opinion or inference is based on so e perception by the #itness' $C$

Rule ?02. Testi,on) &) E=perts If scientific! technical! or other speciali3ed kno#ledge #ill assist the trier of fact to understand the evidence or to deter ine a fact in issue! a #itness )ualified as an e"pert by kno#ledge! skill! e"perience! training! or education! ay testify thereto in the for of an opinion or other#ise! if *$+ the testi ony is based upon sufficient facts or data! *.+ the testi ony is the product of reliable principles and ethods! and *;+ the #itness has applied the principles and ethods reliably to the facts of the case& o 9robability evidence is inad issible #hen based on unproven statistical fre)uencies and #hen it distorts jury/s deliberative function' Ppl v "ollins o E"pert testi ony ust be helpful to trier of fact to be ad issible' US v ,maral o 9olice officer/s e"pert testi ony interpreting records of drug transactions is ad issible b=c helpful' US v de Soto o E"pert opinion testi ony ay be based on skill and e"perience alone #=o training or education' US v : o 65eneral 1cceptance7 test for scientific evidence is replaced by responsibility of trial judge to ensure reliability of scientific ethods and procedures generating proposed evidence' Daubert v Merrel Dow Rule ?0 . Fases o% Opinion Testi,on) &) E=perts The facts or data in the particular case upon #hich an e"pert bases an opinion or inference ay be those perceived by or ade kno#n to the e"pert at or before the hearing& If of a type reasonably relied upon by e"perts in the particular field in for ing opinions or inferences upon the subject! the facts or data need not be ad issible in evidence in order for the opinion or inference to be ad itted& :acts or data that are other#ise inad issible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court deter ines that their probative value in assisting the jury to evaluate the e"pert@s opinion substantially out#eighs their prejudicial effect& o E"pert testi ony based on inad issible hearsay is ad issible if the e"pert/s reliance on the hearsay is reasonable and custo ary' State v 'enze o Charts su ari3ing e"pert/s econo ic da ages testi ony are ad issible' "arter v .iese "orp Rule ?0+. Opinion on 3lti,ate Issue o ,pinion on ulti ate issue is ad issible if helpful and other#ise )ualified' Redman v Ford Motor "o *a+ E"cept as provided in subdivision *b+! testi ony in the for of an opinion or inference other#ise ad issible is not objectionable because it e braces an ulti ate issue to be decided by the trier of fact& *b+ No e"pert #itness testifying #ith respect to the ental state or condition of a defendant in a cri inal case ay state an opinion or inference as to #hether the defendant did or did not have the ental state or condition constituting an ele ent of the cri e charged or of a defense thereto& Such ulti ate issues are atters for the trier of fact alone& Rule ?00. 4isclosure o% 5acts or 4ata 3nderl)in! E=pert Opinion The e"pert ay testify in ter s of opinion or inference and give reasons therefore #ithout first testifying to the underlying facts or data! unless the court re)uires other#ise& The e"pert ay in any event be re)uired to disclose the underlying facts or data on cross'e"a ination& o E"pert ust be per itted to disclose basis for opinion that D accused of urder is schi3ophrenic' State v ,llison o If e"pert #itness declines to disclose underlying facts or data! ct ay e"clude e"pert/s opinion testi ony' Forehead v #alvin Rule ?01. Court Appointed E=perts o 1ppoint ent of an e"pert #itness by Ct is ordinarily discretionary' State v ,r!hambeau #a$ Appoint,ent. The court ay on its o#n otion or on the otion of any party enter an order to sho# cause #hy e"pert #itnesses should not be appointed! and ay re)uest the parties to sub it no inations& The court ay appoint any e"pert #itnesses agreed upon by the parties! and ay appoint e"pert #itnesses of its o#n selection& 1n e"pert #itness shall not be appointed by the court unless the #itness consents to act& 1 #itness so appointed shall be infor ed of the #itness@ duties by the court in #riting! a copy of #hich shall be filed #ith the clerk! or at a conference in #hich the parties shall have opportunity to participate& 1 #itness so appointed shall advise the parties of the #itness@ findings!

if any- the #itness@ deposition ay be taken by any party- and the #itness ay be called to testify by the court or any party& The #itness shall be subject to cross'e"a ination by each party! including a party calling the #itness& #&$ Co,pensation. E"pert #itnesses so appointed are entitled to reasonable co pensation in #hatever su the court ay allo#& The co pensation thus fi"ed is payable fro funds #hich ay be provided by la# in cri inal cases and civil actions and proceedings involving just co pensation under the fifth a end ent& In other civil actions and proceedings the co pensation shall be paid by the parties in such proportion and at such ti e as the court directs! and thereafter charged in like anner as other costs& #c$ 4isclosure o% appoint,ent. In the e"ercise of its discretion! the court ay authori3e disclosure to the jury of the fact that the court appointed the e"pert #itness& #d$ PartiesD e=perts o% o9n selection. Nothing in this rule li its the parties in calling e"pert #itnesses of their o#n selection&

ARTICLE VIII. 'EARSA: Rule A01. 4e%initions The follo#ing definitions apply under this article0 #a$ State,ent. 1 >state ent> is *$+ an oral or #ritten assertion or *.+ nonverbal conduct of a person! if it is intended by the person as an assertion& o <earsay Definition0 :or nonverbal conduct to be hearsay! it ust be intended to be an assertion by 6Declarant7' *n Re Dependen!% o& Penelope +0 #&$ 4eclarant. 1 >declarant> is a person #ho akes a state ent& #c$ 'earsa). ><earsay> is a state ent! other than one ade by the declarant #hile testifying at the trial or hearing! offered in evidence to prove the truth of the atter asserted& o <earsay Definition0 State ent is not hearsay #hen offered as circu stantial evidence of state of in' US v 6mmons o <earsay Definition0 State ents to party are ad issible as #arnings- conse)uent state ent by party is ad issible as party ad ission despite lack of personal kno#ledge' Smedra v Stanek o <earsay Definition0 1ct of voting is verbal act! not offered for truth of any assertion' 5o!al ;4< o <earsay Definition0 State ents are not hearsay #hen offered for their independent significance to the cri e charged or to the establish ent of a conspiracy' US v ,losa o <earsay is a type of evidence that ay not be ad itted! and there are e"ceptions to the 5( of e"clusion are available in any situations' D; #d$ State,ents 9/ic/ are not /earsa). 1 state ent is not hearsay if'' *$+ Prior statement b% witness& The declarant testifies at the trial or hearing and is subject to cross' e"a ination concerning the state ent! and the state ent is *1+ inconsistent #ith the declarant@s testi ony! and #as given under oath subject to the penalty of perjury at a trial! hearing! or other proceeding! or in a deposition! or o :eigned loss of e ory by #itness renders prior state ents 6inconsistent7' )an'attan v State *I+ consistent #ith the declarant@s testi ony and is offered to rebut an e"press or i plied charge against the declarant of recent fabrication or i proper influence or otive! or o 9rior consistent state ents of #itness is ad issible only if ade before otive to fabricate arose' /ome v US *C+ one of identification of a person ade after perceiving the person- or

o ,ut'of'Court identification is ad issible only if declarant testifies at trial' State v +arela *.+,dmission b% part%8opponent0 The state ent is offered against a party and is *1+ the party@s o#n state ent! in either an individual or a representative capacity or o <earsay Definition0 State ents to party are ad issible as #arnings- conse)uent state ent by party is ad issible as party ad ission despite lack of personal kno#ledge' Smedra v Stanek o 1ccused/s holdup note is party ad ission and as such is substantive evidence of note/s contents' +eamon v State o 1d ission in pleadings in another case is not 6judicial ad ission7 in current case! but is ad issible *and rebuttable+ as a party ad ission' "ameron "ount% v )elas9uez o Evidence of speaker/s identity as party ay be circu stantial to render ad issible #ords heard by #itness #ho cannot identify speaker' State v Mani!!ia *I+ a state ent of #hich the party has anifested an adoption or belief in its truth! or I peach ent0 Silence of accused is not prior inconsistent state ent nor ad ission by silence' Do%le v O' <earsay Definition0 State ents to party are ad issible as #arnings- conse)uent state ent by party is ad issible as party ad ission despite lack of personal kno#ledge' Smedra v Stanek (eliance on deposition in legal proceedings a ounts to adopting it for ad issibility as adoptive ad ission' Saudi ,rabian ,irlines "orp v Dunn 2ords spoken to party are ad issible as adoptive ad ission if sufficient facts are introduced for jury to conclude party heard! understood! and acceded to state ent' US v Monks 1ccused/s nod is ackno#ledg ent of characteri3ation by another renders characteri3ation ad issible as adoptive ad ission' US v .iseman *C+ a state ent by a person authori3ed by the party to ake a state ent concerning the subject! or o 1d ission in pleadings in another case is not 6judicial ad ission7 in current case! but is ad issible *and rebuttable+ as a party ad ission' "ameron "ount% v )elas9uez o Doctor/s state ent about patient to specialist authori3ed by patient #ho sought referral is ad issible as party'authori3ed ad ission' "ovington v Saw%er o Nuestion can be state ent against penal interest' State v Saunders *D+ a state ent by the party@s agent or servant concerning a atter #ithin the scope of the agency or e ploy ent! ade during the e"istence of the relationship! or o :or state ent of purported agent to be ad issible against principal as agent'ad ission! the agency relationship ust be established by ore than conduct of purported agent alone' Przeradski v Rexnord2 *n!0 o Internal corporate e orandu bet#een party/s e ployees is ad issible against corporate party as agent' ad ission even is self'serving' S!ienti&i! ,ppli!ations2 *n! o State ent by gov/t agent cannot be party=agent'ad ission in cri inal prosecution' US v Santos o 1gent'ad ission by gov/t depart ent is ad issible in civil case' +urke% v 6llis *E+ a state ent by a coconspirator of a party during the course and in furtherance of the conspiracy& The contents of the state ent shall be considered but are not alone sufficient to establish the declarant@s authority under subdivision *C+! the agency or e ploy ent relationship and scope thereof under subdivision *D+! or the e"istence of the conspiracy and the participation therein of the declarant and the party against #ho the state ent is offered under subdivision *E+& <earsay Definition0 State ents are not hearsay #hen offered for their independent significance to the cri e charged or to the establish ent of a conspiracy' US v ,losa 1gree ent to conceal cri e does not e"tend life of conspiracy for purpose of 6during the course7 clause' State v -slas 6In furtherance7 re)uire ent for ad issibility of co'conspirator ad ission is separate and distinct fro 6during the course7 re)uire ent' .illiamson v State

Telephone call recruiting additional participant is ad issible as co'conspirator ad ission if other evidence is ade)uate to establish prior conspiracy- post'arrest state ent is inad issible b=c conspiracy ter inated' +ergeron v State

Rule A02. 'earsa) Rule <earsay is not ad issible e"cept as provided by these rules or by other rules prescribed by the Supre e Court pursuant to statutory authority or by 1ct of Congress& Rule A0 . 'earsa) E=ceptions< A"aila&ilit) o% 4eclarant I,,aterial The follo#ing are not e"cluded by the hearsay rule! even though the declarant is available as a #itness0 *$+ Present sense i,pression& 1 state ent describing or e"plaining an event or condition ade #hile the declarant #as perceiving the event or condition! or i ediately thereafter& o <earsay E"ception0 9resent sense i pression is ad issible even if declarant is not identified' 4st +nk o& Denton v MD "asualt% "O0 o <earsay E"ception0 State ent ade several inutes after event is too late for ad issibility as present sense i pression' 'ewitt v #rand /runk .estern RR "o0 o <earsay E"ception0 Unverifiable state ent by absent declarant clai ing urder victi #as seen after alleged date of urder is too unreliable for ad issibility' State v "ase *.+ E=cited utterance& 1 state ent relating to a startling event or condition ade #hile the declarant #as under the stress of e"cite ent caused by the event or condition& o <earsay E"ception0 2itness/s testi ony that declarant #as visibly shaken upon learning his ta" liability #as far greater than e"pected is ade)uate foundation for e"cited utterance' 5ewin v Miller .agner o <earsay E"ception0 E"cited utterance identification ade #eeks after assault is still ad issible' US v 3apier o <earsay E"ception0 E"cited utterance is reliable although declarant is unidentified' "ole v /ans% *;+ T/en e=istin! ,ental> e,otional> or p/)sical condition& 1 state ent of the declarant@s then e"isting state of ind! e otion! sensation! or physical condition *such as intent! plan! otive! design! ental feeling! pain! and bodily health+! but not including a state ent of e ory or belief to prove the fact re e bered or believed unless it relates to the e"ecution! revocation! identification! or ter s of declarant@s #ill& o <earsay E"ception0 State ent of plan is ad issible as state of ind! relevant to prove conduct as conse)uence of plan' Mutual 5i&e *ns "o v 'illmon o <earsay E"ception0 Declarant/s state ent about threats by accused is ad issible to sho# declarant/s fear! unlikelihood of accused/s version of events' State v ,uble o <earsay E"ception0 State ent that declarant had 6heard voices7 described past sensation! so #as inad issible under e"ception for then'e"isting state of ind' State v 3%e o <earsay E"ception0 State ent of belief about past event is dis)ualified fro ad issibility as state of ind' Ppl v "arlson *A+ State,ents %or purposes o% ,edical dia!nosis or treat,ent & State ents ade for purposes of edical diagnosis or treat ent and describing edical history! or past or present sy pto s! pain! or sensations! or the inception or general character of the cause or e"ternal source thereof insofar as reasonably pertinent to diagnosis or treat ent& o <earsay E"ception0 State ent for purposes of edical diagnosis or treat ent applies to patient/s state ent to doctor! not to doctor/s state ent to patient' +ulthuis v Rexall "orp o <earsay E"ception0 Jother/s relating of child/s state ent to doctor )ualifies for ad ission as state ent for edical diagnosis and treat ent' State v 1ustiniano o <earsay E"ception0 Declarant/s state ent about cause of injury in se"ual assault prosecution is ad issible if pertinent to diagnosis or treat ent' US v *ron Shell o <earsay E"ception0 State ent to doctor regarding cause of depression is not e"cludable just b=c it na es accused as cause' State v Moen o This is the patient talking o This could also be the child talking to the other #ho is talking to the a bulance person! #ho talked to the edical care person

*C+ Recorded recollection& 1 e orandu or record concerning a atter about #hich a #itness once had kno#ledge but no# has insufficient recollection to enable the #itness to testify fully and accurately! sho#n to have been ade or adopted by the #itness #hen the atter #as fresh in the #itness@ e ory and to reflect that kno#ledge correctly& If ad itted! the e orandu or record ay be read into evidence but ay not itself be received as an e"hibit unless offered by an adverse party& o <earsay E"ception0 Ba# enforce ent agent report is ad issible as recorded recollection' US v Pi!!iandra o <earsay E"ception0 (ecorded recollection ust be ackno#ledged as accurate by #itness to be ad issible' State v /hompson *D+ Records o% re!ularl) conducted acti"it). 1 e orandu ! report! record! or data co pilation! in any for ! of acts! events! conditions! opinions! or diagnoses! ade at or near the ti e by! or fro infor ation trans itted by! a person #ith kno#ledge! if kept in the course of a regularly conducted business activity! and if it #as the regular practice of that business activity to ake the e orandu ! report! record or data co pilation! all as sho#n by the testi ony of the custodian or other )ualified #itness! or by certification that co plies #ith (ule ?%.*$$+! (ule ?%.*$.+! or a statute per itting certification! unless the source of infor ation or the ethod or circu stances of preparation indicate lack of trust#orthiness& The ter >business> as used in this paragraph includes business! institution! association! profession! occupation! and calling of every kind! #hether or not conducted for profit& o <earsay E"ception0 I(S ta" records are ad issible as business records unless specifically sho#n to be untrust#orthy' US v 'a%es o <earsay E"ception0 Co plaint for s received by business are not ad issible as business records b=c not ade by persons acting under business duty' /hirsk v 6thi!on2 *n! o <earsay E"ception0 Co puter printouts are ad issible despite failure of business to rely on the ' US v "atabran o <earsay E"ception0 (egular course of business does not include preparation for litigation for business records e"ception' Palmer v 'o&&man o <earsay E"ception0 1bsence of records of py t is ad issible to prove nonoccurrence of py t' She%enne )alle% 5umber "o v 3okleberg o <earsay E"ception0 (eport ineligible for ad ission as public record b=c of la# enforce ent personnel e"clusion is also thereby inad issible as business record' State v Rivera o Su aries of ad issible business records are ad issible if original records are too volu inous to be conveniently e"a ined' Ford Motor "omp v ,uto Suppl% o (ecord kept in regular course of business activity 1ND it/s their regular practice to keep the record o No li itation on #hat for record can take *E+ A&sence o% entr) in records 7ept in accordance 9it/ t/e pro"isions o% para!rap/ #1$& Evidence that a atter is not included in the e oranda reports! records! or data co pilations! in any for ! kept in accordance #ith the provisions of paragraph *D+! to prove the nonoccurrence or none"istence of the atter! if the atter #as of a kind of #hich a e orandu ! report! record! or data co pilation #as regularly ade and preserved! unless the sources of infor ation or other circu stances indicate lack of trust#orthiness& o <earsay E"ception0 1bsence of records of py t is ad issible to prove nonoccurrence of py t' She%enne )alle% 5umber "o v 3okleberg o If it #ould have happened #e #ould have had a record of it! I looked and there #as no record of it *F+ Pu&lic records and reports& (ecords! reports! state ents! or data co pilations! in any for ! of public offices or agencies! setting forth *1+ the activities of the office or agency! or o <earsay E"ception0 (eport ineligible for ad ission as public record b=c of la# enforce ent personnel e"clusion is also thereby inad issible as business record' State v Rivera *I+ atters observed pursuant to duty i posed by la# as to #hich atters there #as a duty to report! e"cluding! ho#ever! in cri inal cases atters observed by police officers and other la# enforce ent personnel! or o <earsay E"ception0 (eport ineligible for ad ission as public record b=c of la# enforce ent personnel e"clusion is also thereby inad issible as business record' State v Rivera o (outine! echanical observations not part of cri inal investigation #hen ade are not e"cluded fro hearsay e"ception just b=c ade by la# enforce ent personnel' US v Puente

*C+ in civil actions and proceedings and against the 5overn ent in cri inal cases! factual findings resulting fro an investigation ade pursuant to authority granted by la#! unless the sources of infor ation or other circu stances indicate lack of trust#orthiness& o <earsay E"ception0 9ublic records e"ception includes conclusions as #ell as factual findings' +ee!h ,ir!ra&t "orp v Raine% o <earsay E"ception0 9olice report is ad issible as public record #hen offered by accused in absence of specific proof de onstrating report/s untrust#orthiness' US v )ersaint o 1uthentication0 EE,C Investigative reports and deter ination are ad issible as authenticated public records' #ar!ia v #loor o ; kinds of public records that co e in' activities of officer or agency! atters observed #hile under a legal duty to report! and factual findings fro a legally authori3ed investigation *?+ Records o% "ital statistics& (ecords or data co pilations! in any for ! of births! fetal deaths! deaths! or arriages! if the report thereof #as ade to a public office pursuant to re)uire ents of la#& o <earsay E"ception0 State ent in death certificate that decedent #as 6passenger7 in vehicle is not ad issible to prove #ho #as driving' State v #ould *$%+ A&sence o% pu&lic record or entr)& To prove the absence of a record! report! state ent! or data co pilation! in any for ! or the nonoccurrence or none"istence of a atter of #hich a record! report! state ent! or data co pilation! in any for ! #as regularly ade and preserved by a public office or agency! evidence in the for of a certification in accordance #ith rule ?%.! or testi ony! that diligent search failed to disclose the record! report! state ent! or data co pilation! or entry& o <earsay E"ception0 Certificates of county clerks stating no voter registration records #ere found for persons #ho signed petition are ad issible to invalidate petitions' +arda!ke v Dunigan *$$+ Records o% reli!ious or!aniHations& State ents of births! arriages! divorces! deaths! legiti acy! ancestry! relationship by blood or arriage! or other si ilar facts of personal or fa ily history! contained in a regularly kept record of a religious organi3ation& o <earsay E"ception0 State ents of financial contribution to church are not personal infor ation re)uired for ad ission as religious records' 'all v "ommissioner o& *nternal Revenue *$.+ 8arria!e> &aptis,al> and si,ilar certi%icates & State ents of fact contained in a certificate that the aker perfor ed a arriage or other cere ony or ad inistered a sacra ent! ade by a clergy an! public official! or other person authori3ed by the rules or practices of a religious organi3ation or by la# to perfor the act certified! and purporting to have been issued at the ti e of the act or #ithin a reasonable ti e thereafter& o <earsay E"ception0 :oreign certificates of birth! death and arriage are ad issible to prove heirship' Matuszewski v Pan!oast *$;+ 5a,il) records& State ents of fact concerning personal or fa ily history contained in fa ily Iibles! genealogies! charts! engravings on rings! inscriptions on fa ily portraits! engravings on urns! crypts! or to bstones! or the like& o <earsay E"ception0 9ostcard #=photograph and state ent of identification is ad issible as inscription on fa ily portrait' Matter o& 6state o& 6gbert *$A+ Records o% docu,ents a%%ectin! an interest in propert)& The record of a docu ent purporting to establish or affect an interest in property! as proof of the content of the original recorded docu ent and its e"ecution and delivery by each person by #ho it purports to have been e"ecuted! if the record is a record of a public office and an applicable statute authori3es the recording of docu ents of that kind in that office& o <earsay E"ception0 Docu ents affecting an interest in property are deeds! ortgages! leases! etc&! but do not include affidavits of heirship' "ompton v ..) 6nterprises o <earsay E"ception0 4udg ent establishing creditor/s rights is ad issible as record of those rights' #re%!as2 *n! v Proud *$C+ State,ents in docu,ents a%%ectin! an interest in propert) & 1 state ent contained in a docu ent purporting to establish or affect an interest in property if the atter stated #as relevant to the purpose of the docu ent! unless dealings #ith the property since the docu ent #as ade have been inconsistent #ith the truth of the state ent or the purport of the docu ent& o <earsay E"ception0 Docu ents affecting an interest in property are deeds! ortgages! leases! etc&! but do not include affidavits of heirship' "ompton v ..) 6nterprises o <earsay E"ception0 4udg ent establishing creditor/s rights is ad issible as record of those rights' #re%!as2 *n! v Proud

<earsay E"ception0 (ecital of arital status in deeds is strong! ad issible evidence of facts recited' "ompton v Davis Oil "o *$D+ State,ents in ancient docu,ents& State ents in a docu ent in e"istence t#enty years or ore the authenticity of #hich is established& o <earsay E"ception0 :or state ent in ancient docu ent to be ad issible! docu ent ust be ore than ere proposal to settle case involving disputed facts' Moore v #oode o <earsay E"ception0 Corporate docu ents ore than .% yrs old! found #here e"pected and appearing as e"pected! are ad issible as ancient docu ents' /hreadgill v ,rmstrong .orld *ndustries *n! *$E+ 8ar7et reports> co,,ercial pu&lications& Jarket )uotations! tabulations! lists! directories! or other published co pilations! generally used and relied upon by the public or by persons in particular occupations& o <earsay E"ception0 69hysicians desk reference7 is not ad issible as data co pilation b=c it contains directions! opinions! suggestions and reco endations' #arve% v O(Donaghue *$F+ Learned treatises& To the e"tent called to the attention of an e"pert #itness upon cross'e"a ination or relied upon by the e"pert #itness in direct e"a ination! state ents contained in published treatises! periodicals! or pa phlets on a subject of history! edicine! or other science or art! established as a reliable authority by the testi ony or ad ission of the #itness or by other e"pert testi ony or by judicial notice& If ad itted! the state ents ay be read into evidence but ay not be received as e"hibits& o <earsay E"ception0 Treatise cannot be used for cross'e"a ination of e"pert unless its authority is established by testi ony of so e e"pert during trial' Molkenbur v 'art o <earsay E"ception0 State ents in articles ay be read to jury on direct e"a ination if e"pert testifies to their reliable authority' State v Rangits!h *$?+ Reputation concernin! personal or %a,il) /istor)& (eputation a ong e bers of a person@s fa ily by blood! adoption! or arriage! or a ong a person@s associates! or in the co unity! concerning a person@s birth! adoption! arriage! divorce! death! legiti acy! relationship by blood! adoption! or arriage! ancestry! or other si ilar fact of personal or fa ily history& o <earsay E"ception0 (eputation concerning personal or fa ily history includes D/s reputation for using a certain alias' US v ,llen *.%+ Reputation concernin! &oundaries or !eneral /istor)& (eputation in a co unity! arising before the controversy! as to boundaries of or custo s affecting lands in the co unity! and reputation as to events of general history i portant to the co unity or State or nation in #hich located& o <earsay E"ception0 ,ut'of court state ent as to lot boundaries ust be in for of reputation *general consensus of opinion+ not a personal observation' #oodover v 5inde%(s2 *n! *.$+ Reputation as to c/aracter& (eputation of a person@s character a ong associates or in the co unity& o <earsay E"ception0 Character evidence ust be ad issible under another substantive rule *A%A! A%C! or D%F+' State v 1ohnson o <earsay E"ception0 (eputation for honesty ust be in co unity larger than Fth floor of county jail to be ad issible' Ferguson v State *..+ 2ud!,ent o% pre"ious con"iction& Evidence of a final judg ent! entered after a trial or upon a plea of guilty *but not upon a plea of nolo contendere+! adjudging a person guilty of a cri e punishable by death or i prison ent in e"cess of one year! to prove any fact essential to sustain the judg ent! but not including! #hen offered by the 5overn ent in a cri inal prosecution for purposes other than i peach ent! judg ents against persons other than the accused& The pendency of an appeal ay be sho#n but does not affect ad issibility& o <earsay E"ception0 4udg ent of conviction based on guilty plea is ad issible as party ad ission' Sa&e!o *ns "ompan% o& ,meri!a v M!#rath *.;+ 2ud!,ent as to personal> %a,il) or !eneral /istor)> or &oundaries & 4udg ents as proof of atters of personal! fa ily or general history! or boundaries! essential to the judg ent! if the sa e #ould be provable by evidence of reputation& o <earsay E"ception0 4udg ent of citi3enship status is ad issible to prove #orkers #ere aliens' #rant +rothers "onstru!tion "o v US *.A+ OOt/er e=ceptions.KOTransferred to (ule F%EK o Rule A0+. 'earsa) E=ceptions< 4eclarant 3na"aila&le #a$ 4e%inition o% una"aila&ilit). >Unavailability as a #itness> includes situations in #hich the declarant''

*$+ is e"e pted by ruling of the court on the ground of privilege fro testifying concerning the subject atter of the declarant@s state ent- or o Declarant is not 6unavailable7 b=c of privilege against self'incri ination unless ct has issued its order e"e pting declarant fro testifying' Ppl v Rosenthal *.+ persists in refusing to testify concerning the subject atter of the declarant@s state ent despite an order of the court to do so- or *;+ testifies to a lack of e ory of the subject atter of the declarant@s state ent- or *A+ is unable to be present or to testify at the hearing because of death or then e"isting physical or ental illness or infir ity- or *C+ is absent fro the hearing and the proponent of a state ent has been unable to procure the declarant@s attendance *or in the case of a hearsay e"ception under subdivision *b+*.+! *;+! or *A+! the declarant@s attendance or testi ony+ by process or other reasonable eans& 1 declarant is not unavailable as a #itness if e"e ption! refusal! clai of lack of e ory! inability! or absence is due to the procure ent or #rongdoing of the proponent of a state ent for the purpose of preventing the #itness fro attending or testifying& o <earsay E"ception0 Declarant is not 6unavailable7 #here proponent of out'of'ct state ent akes no effort to identify or locate declarant' "ummiske% v "handris2 S, #&$ 'earsa) e=ceptions. The follo#ing are not e"cluded by the hearsay rule if the declarant is unavailable as a #itness0 *$+ Former testimon%& Testi ony given as a #itness at another hearing of the sa e or a different proceeding! or in a deposition taken in co pliance #ith la# in the course of the sa e or another proceeding! if the party against #ho the testi ony is no# offered! or! in a civil action or proceeding! a predecessor in interest! had an opportunity and si ilar otive to develop the testi ony by direct! cross! or redirect e"a ination& o <earsay E"ception0 5rand jury testi ony is inad issible if party lacked si ilar otive to develop it' US v Salerno o <earsay E"ception0 Deposition fro earlier case against party is inad issible #hen otive to develop testi ony #as different based on different clai s against party' 5ohrmann v Pittsburgh "orning "o *.+ Statement under belie& o& impending death& In a prosecution for ho icide or in a civil action or proceeding! a state ent ade by a declarant #hile believing that the declarant@s death #as i inent! concerning the cause or circu stances of #hat the declarant believed to be i pending death& o :actual finding #hether victi believed he #as dying for deter ination of ad issibility of victi /s hearsay state ents is for trial judge to ake' #reen v State o <earsay E"ception0 Ielief of i pending death is necessary for ad issibility of dying declaration' Shepard v US o <earsay E"ception0 Ct ay infer fro circu stances attending state ent that declarant #as conscious of i pending death' Ppl v Siler =>? Statement against interest& 1 state ent #hich #as at the ti e of its aking so far contrary to the declarant@s pecuniary or proprietary interest! or so far tended to subject the declarant to civil or cri inal liability! or to render invalid a clai by the declarant against another! that a reasonable person in the declarant@s position #ould not have ade the state ent unless believing it to be true& 1 state ent tending to e"pose the declarant to cri inal liability and offered to e"culpate the accused is not ad issible unless corroborating circu stances clearly indicate the trust#orthiness of the state ent& o <earsay E"ception0 State ent by party/s deceased predecessor in title is ad issible as state ent against interest' Sa!kett v ,t%eo o Nuestion can be state ent against penal interest' State v Saunders o <earsay E"ception0 State ent against penal interest offered to e"culpate accused ust be corroborated and ust strongly indicate trust#orthiness' US v Salvador o <earsay E"ception0 1d issibility of state ents against penal interest does not e"tend to collateral state ents that are not self'inculpatory' .illiamson v US *A+ Statement o& personal or &amil% histor%& *1+ 1 state ent concerning the declarant@s o#n birth! adoption! arriage! divorce! legiti acy! relationship by blood! adoption! or arriage! ancestry! or other si ilar fact of personal or fa ily history! even though declarant had no eans of ac)uiring personal kno#ledge of the atter stated- or *I+ a state ent concerning the foregoing atters! and death also! of another person! if the

declarant #as related to the other by blood! adoption! or arriage or #as so inti ately associated #ith the other@s fa ily as to be likely to have accurate infor ation concerning the atter declared& o <earsay E"ception0 State ent of personal or fa ily history does not include background circu stances leading up to or surrounding birth or death' Ppl v Ra&&aelli *C+ OOt/er e=ceptions.KOTransferred to (ule F%EK o <earsay E"ception0 1ccused #ho arranges urder of declarant forfeits objection to ad ission of declarant/s hearsay state ents' US v Mastrangelo *D+ :orfeiture by #rongdoing& 1 state ent offered against a party that has engaged or ac)uiesced in #rongdoing that #as intended to! and did! procure the unavailability of the declarant as a #itness& Rule A00. 'earsa) .it/in 'earsa) <earsay included #ithin hearsay is not e"cluded under the hearsay rule if each part of the co bined state ents confor s #ith an e"ception to the hearsay rule provided in these rules& o <earsay E"ception0 If each hearsay co ponent of a state ent containing ultiple hearsay state ents is separately ad issible under an e"ception or e"e ption! the co bined state ent is ad issible' US v Portsmouth Paving "orp o Double hearsay or hearsay #=in hearsay is ad issible only if both state ents are separately ad issible under an e"ception or e"e ption' 'art v O(+rien o :ind a #ay to ad it each part separately and if you can then the #hole thing co es in Rule A01. Attac7in! and Supportin! Credi&ilit) o% 4eclarant 2hen a hearsay state ent! or a state ent defined in (ule F%$*d+*.+*C+! *D+! or *E+! has been ad itted in evidence! the credibility of the declarant ay be attacked! and if attacked ay be supported! by any evidence #hich #ould be ad issible for those purposes if declarant had testified as a #itness& Evidence of a state ent or conduct by the declarant at any ti e! inconsistent #ith the declarant@s hearsay state ent! is not subject to any re)uire ent that the declarant ay have been afforded an opportunity to deny or e"plain& If the party against #ho a hearsay state ent has been ad itted calls the declarant as a #itness! the party is entitled to e"a ine the declarant on the state ent as if under cross'e"a ination& o E"trinsic evidence of prior inconsistent state ent is per issible i peach ent of hearsay declarant despite failure to satisfy foundational re)uire ents of :(E D$;*b+' Smith v Fairman o <earsay declarant ay be i peached #=prior inconsistent state ent' US v .uagneux o I peach ent of #itness regarding untruthfulness of hearsay state ent of non'testifying accused opens door to rehabilitation of accused/s truthful character' US v 5e!ho!o o 2hen hearsay evidence is ad itted! any party is per itted to i peach the credibility of the hearsay declarant' $DD o Inconsistent state ents' ay be introduced only if the #itness is given an opportunity at so e ti e in the trial to e"plain or deny the ' $DD Rule A0?. Residual E=ception 1 state ent not specifically covered by (ule F%; or F%A but having e)uivalent circu stantial guarantees of trust#orthiness! is not e"cluded by the hearsay rule! if the court deter ines that *1+ the state ent is offered as evidence of a aterial fact- *I+ the state ent is ore probative on the point for #hich it is offered than any other evidence #hich the proponent can procure through reasonable efforts- and *C+ the general purposes of these rules and the interests of justice #ill best be served by ad ission of the state ent into evidence& <o#ever! a state ent ay not be ad itted under this e"ception unless the proponent of it akes kno#n to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party #ith a fair opportunity to prepare to eet it! the proponent@s intention to offer the state ent and the particulars of it! including the na e and address of the declarant& o <earsay E"ception0 Necessary and reliable hearsay not covered by categorical e"ceptions is ad issible under residual e"ception' Dallas "n% v "ommer!ial Union ,ssuran!e "o o <earsay E"ception0 <earsay state ent offered under residual e"ception ust be sho#n to be trust#orthy' US v /ru illo ARTICLE IG. A3T'ENTICATION AN4 I4ENTI5ICATION

Rule E01. Re@uire,ent o% Aut/entication or Identi%ication #a$ General pro"ision. The re)uire ent of authentication or identification as a condition precedent to ad issibility is satisfied by evidence sufficient to support a finding that the atter in )uestion is #hat its proponent clai s& o To e"clude audiotape on authentication grounds! court ust ake finding that no rational juror could have decided defendant/s voice #as that on tape' Ri!ketts v "it% o& 'art&ord o 1uthentication0 Testi ony about retrieval of co puter printouts co bined #=e"pert testi ony interpreting the is sufficient for ad issibility' US v .hitaker o 1uthentication0 :or testi ony of laboratory analysis of suspected narcotic to be ad issible! prosecution ust establish continuous chain of custody prior to analysis to connect drug #=accused' #raham v State o 1uthentication0 9hysical evidence not susceptible to ta pering is ad issible if evidence is sufficient for judge to find it has not been changed in any i portant respect' US v 'arrington o 1uthentication0 1TJ photograph of accused is ad issible despite failure to eet re)uire ent for #itness #=kno#ledge of accuracy of process producing i ages' US v Rembert #&$ Illustrations. Iy #ay of illustration only! and not by #ay of li itation! the follo#ing are e"a ples of authentication or identification confor ing #ith the re)uire ents of this rule0 *$+ /estimon% o& witness with knowledge& Testi ony that a atter is #hat it is clai ed to be& o 1uthentication0 (eal evidence is ad issible if #itness testifies it is si ilar to object used' State v Kroeplin *.+ 3onexpert opinion on handwriting& None"pert opinion as to the genuineness of hand#riting! based upon fa iliarity not ac)uired for purposes of the litigation& o 1uthentication0 <and#riting can be authenticated by none"pert testi ony that #itness is fa iliar #=#riter/s hand#riting through #orking relationship #=#riter' State v Stotts *;+ "omparison b% trier or expert witness& Co parison by the trier of fact or by e"pert #itnesses #ith speci ens #hich have been authenticated& o 1uthentication0 E"pert testi ony co paring signatures #=kno#n speci en of accused/s hand#riting is sufficient to authenticate signature for ad issibility' State v Reasoner *A+ Distin!tive !hara!teristi!s and the like& 1ppearance! contents! substance! internal patterns! or other distinctive characteristics! taken in conjunction #ith circu stances& o 1uthentication0 Circu stantial proof is per issible to authenticate #riting' US v .ilson o 1uthentication0 Bink of shipping receipt to accused can be established #=circu stantial evidence' State v +est *C+ )oi!e identi&i!ation& Identification of a voice! #hether heard firsthand or through echanical or electronic trans ission or recording! by opinion based upon hearing the voice at any ti e under circu stances connecting it #ith the alleged speaker& o 1uthentication0 2itness fa iliar #=voice of accused can identify it on tape recording *D+ /elephone !onversations& Telephone conversations! by evidence that a call #as ade to the nu ber assigned at the ti e by the telephone co pany to a particular person or business! if *1+ in the case of a person! circu stances! including self'identification! sho# the person ans#ering to be the one called! or *I+ in the case of a business! the call #as ade to a place of business and the conversation related to business reasonably transacted over the telephone& o 1uthentication0 Circu stantial evidence can authenticate identity of telephone caller to corroborate caller/s self'identification' State v 'amilton *E+ Publi! re!ords or reports& Evidence that a #riting authori3ed by la# to be recorded or filed and in fact recorded or filed in a public office! or a purported public record! report! state ent! or data co pilation! in any for ! is fro the public office #here ite s of this nature are kept& o 1uthentication0 EE,C Investigative reports and deter ination are ad issible as authenticated public records' #ar!ia v #loor *F+ ,n!ient do!uments or data !ompilation& Evidence that a docu ent or data co pilation! in any for ! *1+ is in such condition as to create no suspicion concerning its authenticity! *I+ #as in a place #here it! if authentic! #ould likely be! and *C+ has been in e"istence .% years or ore at the ti e it is offered& o <earsay E"ception0 Corporate docu ents ore than .% yrs old! found #here e"pected and appearing as e"pected! are ad issible as ancient docu ents' /hreadgill v ,rmstrong .orld *ndustries *n!

1uthentication0 A% yr old corporate papers found in likely location are sufficiently authenticated for ad issibility' 5o!kwood v ," *?+ Pro!ess or s%stem& Evidence describing a process or syste used to produce a result and sho#ing that the process or syste produces an accurate result& o 1uthentication0 1TJ photograph of accused is ad issible despite failure to eet re)uire ent for #itness #=kno#ledge of accuracy of process producing i ages' US v Rembert *$%+ Methods provided b% statute or rule& 1ny ethod of authentication or identification provided by 1ct of Congress or by other rules prescribed by the Supre e Court pursuant to statutory authority& o Rule E02. Sel%*aut/entication E"trinsic evidence of authenticity as a condition precedent to ad issibility is not re)uired #ith respect to the follo#ing0 *$+ 4o,estic pu&lic docu,ents under seal& 1 docu ent bearing a seal purporting to be that of the United States! or of any State! district! Co on#ealth! territory! or insular possession thereof! or the 9ana a Canal Pone! or the Trust Territory of the 9acific Islands! or of a political subdivision! depart ent! officer! or agency thereof! and a signature purporting to be an attestation or e"ecution& 1uthentication0 9ostal service certificate of ailing is self'authenticating! needing no e"trinsic foundational testi ony' US v Moore *.+ 4o,estic pu&lic docu,ents not under seal& 1 docu ent purporting to bear the signature in the official capacity of an officer or e ployee of any entity included in paragraph *$+ hereof! having no seal! if a public officer having a seal and having official duties in the district or political subdivision of the officer or e ployee certifies under seal that the signer has the official capacity and that the signature is genuine& o 1uthentication0 No certification of delegation of authority is necessary to authenticate custodian/s report that firear s registry lack entry for accused/s firear ' US v "ombs *;+ 5orei!n pu&lic docu,ents& 1 docu ent purporting to be e"ecuted or attested in an official capacity by a person authori3ed by the la#s of a foreign country to ake the e"ecution or attestation! and acco panied by a final certification as to the genuineness of the signature and official position *1+ of the e"ecuting or attesting person! or *I+ of any foreign official #hose certificate of genuineness of signature and official position relates to the e"ecution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the e"ecution or attestation& 1 final certification ay be ade by a secretary of an e bassy or legation! consul general! consul! vice consul! or consular agent of the United States! or a diplo atic or consular official of the foreign country assigned or accredited to the United States& If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official docu ents! the court ay! for good cause sho#n! order that they be treated as presu ptively authentic #ithout final certification or per it the to be evidenced by an attested su ary #ith or #ithout final certification& o 1uthentication0 Docu ents generated by foreign gov/t #=verifying certificate are self'authenticating as foreign public docu ents- private docu ents filed #=foreign gov/t acco panied by sa e certificate are self'authenticating as public record' US v Do%le *A+ Certi%ied copies o% pu&lic records& 1 copy of an official record or report or entry therein! or of a docu ent authori3ed by la# to be recorded or filed and actually recorded or filed in a public office! including data co pilations in any for ! certified as correct by the custodian or other person authori3ed to ake the certification! by certificate co plying #ith paragraph *$+! *.+! or *;+ of this rule or co plying #ith any 1ct of Congress or rule prescribed by the Supre e Court pursuant to statutory authority& o 1uthentication0 Docu ents generated by foreign gov/t #=verifying certificate are self'authenticating as foreign public docu ents- private docu ents filed #=foreign gov/t acco panied by sa e certificate are self'authenticating as public record' US v Do%le o 1uthentication0 Copy of state ct judg ent of conviction is self'authenticating in prosecution for possession of firear by felon' US v Dan!% *C+ O%%icial pu&lications& Iooks! pa phlets! or other publications purporting to be issued by public authority& o 1uthentication0 Irochure issued by district housing authority is self'authenticating as official publication' Silverman v +arr% *D+ Ne9spapers and periodicals& 9rinted aterials purporting to be ne#spapers or periodicals& o 1uthentication0 Jaga3ine article is self'authenticating' Sn%der v .hittaker "orp o

*E+ Trade inscriptions and t/e li7e& Inscriptions! signs! tags! or labels purporting to have been affi"ed in the course of business and indicating o#nership! control! or origin& o 1uthentication0 Inscription on gun indicating country of anufacture is ad issible as self' authenticating' US v ,lvarez *F+ Ac7no9led!ed docu,ents& Docu ents acco panied by a certificate of ackno#ledg ent e"ecuted in the anner provided by la# by a notary public or other officer authori3ed by la# to take ackno#ledg ents& o 1uthentication0 Notari3ed affidavit pf personal officer that accused #as not e ployed is ad issible as self' authenticating' US v M(+i%e *?+ Co,,ercial paper and related docu,ents& Co ercial paper! signatures thereon! and docu ents relating thereto to the e"tent provided by general co ercial la#& o 1uthentication0 Checks are self'authenticating as co ercial paper in check'kiting prosecution' US v 5ittle *$%+ Presu,ptions under Acts o% Con!ress& 1ny signature! docu ent! or other atter declared by 1ct of Congress to be presu ptively or pri a facie genuine or authentic& o 1uthentication0 :ederal statute providing for authentication of foreign business records by certificate renders foreign bank records acco panied by certificate self'authenticating' US v Sturman *$$+ Certi%ied do,estic records o% re!ularl) conducted acti"it). The original or a duplicate of a do estic record of regularly conducted activity that #ould be ad issible under (ule F%;*D+ if acco panied by a #ritten declaration of its custodian or other )ualified person! in a anner co plying #ith any 1ct of Congress or rule prescribed by the Supre e Court pursuant to statutory authority! certifying that the record0 *1+ #as ade at or near the ti e of the occurrence of the atters set forth by! or fro infor ation trans itted by! a person #ith kno#ledge of those atters*I+ #as kept in the course of the regularly conducted activity- and *C+ #as ade by the regularly conducted activity as a regular practice& 1 party intending to offer a record into evidence under this paragraph ust provide #ritten notice of that intention to all adverse parties! and ust ake the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party #ith a fair opportunity to challenge the & o The business record #ill be ad itted #=o anyone vouching for it *$.+ Certi%ied %orei!n records o% re!ularl) conducted acti"it). In a civil case! the original or a duplicate of a foreign record of regularly conducted activity that #ould be ad issible under (ule F%;*D+ if acco panied by a #ritten declaration by its custodian or other )ualified person certifying that the record0 *1+ #as ade at or near the ti e of the occurrence of the atters set forth by! or fro infor ation trans itted by! a person #ith kno#ledge of those atters*I+ #as kept in the course of the regularly conducted activity- and *C+ #as ade by the regularly conducted activity as a regular practice& The declaration ust be signed in a anner that! if falsely ade! #ould subject the aker to cri inal penalty under the la#s of the country #here the declaration is signed& 1 party intending to offer a record into evidence under this paragraph ust provide #ritten notice of that intention to all adverse parties! and ust ake the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party #ith a fair opportunity to challenge the & Rule E0 . Su&scri&in! .itnessD Testi,on) 3nnecessar) The testi ony of a subscribing #itness is not necessary to authenticate a #riting unless re)uired by the la#s of the jurisdiction #hose la#s govern the validity of the #riting& o 1uthentication0 Signed e ploy ent records are ad issible #=o authenticating testi ony of e ployee #ho signed the ' M!@ueene% v .ilmington /rust "omp ARTICLE G. CONTENTS O5 .RITINGS> RECOR4INGS> AN4 P'OTOGRAP'S Rule 1001. 4e%initions :or purposes of this article the follo#ing definitions are applicable0

*$+ .ritin!s and recordin!s& >2ritings> and >recordings> consist of letters! #ords! or nu bers! or their e)uivalent! set do#n by hand#riting! type#riting! printing! photostating! photographing! agnetic i pulse! echanical or electronic recording! or other for of data co pilation& o 1rtist/s dra#ings are 6#ritings7 for purpose of original #riting rule' Seiler v 5u!as&ilm2 5td0 *.+ P/oto!rap/s& >9hotographs> include still photographs! Q'ray fil s! video tapes! and otion pictures& o Diagnostic'Nuality copy of "'ray fil ay be an original for purpose of rules' US v 5eight *;+ Ori!inal& 1n >original> of a #riting or recording is the #riting or recording itself or any counterpart intended to have the sa e effect by a person e"ecuting or issuing it& 1n >original> of a photograph includes the negative or any print therefro & If data are stored in a co puter or si ilar device! any printout or other output readable by sight! sho#n to reflect the data accurately! is an >original>& o Diagnostic'Nuality copy of "'ray fil ay be an original for purpose of rules' US v 5eight o 9hotocopy of altered receipt is treated as original #hen accused sub itted photocopy for rei burse ent of false a ount' US v Rangel *A+ 4uplicate& 1 >duplicate> is a counterpart produced by the sa e i pression as the original! or fro the sa e atri"! or by eans of photography! including enlarge ents and iniatures! or by echanical or electronic re' recording! or by che ical reproduction! or by other e)uivalent techni)ues #hich accurately reproduces the original& o 9hotocopy of altered receipt is treated as original #hen accused sub itted photocopy for rei burse ent of false a ount' US v Rangel o Copies sho#n to be accurate reproductions of audio tapes of telephone conversations are ad issible as duplicates' US v DiMatteo Rule 1002. Re@uire,ent o% Ori!inal To prove the content of a #riting! recording! or photograph! the original #riting! recording! or photograph is re)uired! e"cept as other#ise provided in these rules or by 1ct of Congress& o To prove result of prior litigation! judg ent is re)uired to be ad itted into evidence- testi ony about result is inad issible' US v 'umphre% o Ba# enforce ent officer ay testify to contents of intervie# #ith accused despite availability of tape recording of intervie#' US v Fagan o Insurance policy itself need not be produced to prove bank #as insured at ti e of fraud' US v Sliker o Testi ony #itness is sufficient #=o #ritten invoices to establish cost of goods purchased' R7R ,sso!iates2 *n! v )isual S!ene2 *n! Rule 100 . Ad,issi&ilit) o% 4uplicates 1 duplicate is ad issible to the sa e e"tent as an original unless *$+ a genuine )uestion is raised as to the authenticity of the original or *.+ in the circu stances it #ould be unfair to ad it the duplicate in lieu of the original& o 9hotocopy of altered receipt is treated as original #hen accused sub itted photocopy for rei burse ent of false a ount' US v Rangel o Copies sho#n to be accurate reproductions of audio tapes of telephone conversations are ad issible as duplicates' US v DiMatteo Rule 100+. Ad,issi&ilit) o% Ot/er E"idence o% Contents The original is not re)uired! and other evidence of the contents of a #riting! recording! or photograph is ad issible if'' *$+ Ori!inals lost or destro)ed& 1ll originals are lost or have been destroyed! unless the proponent lost or destroyed the in bad faith- or *.+ Ori!inal not o&taina&le& No original can be obtained by any available judicial process or procedure- or *;+ Ori!inal in possession o% opponent& 1t a ti e #hen an original #as under the control of the party against #ho offered! that party #as put on notice! by the pleadings or other#ise! that the contents #ould be a subject of proof at the hearing! and that party does not produce the original at the hearing- or *A+ Collateral ,atters& The #riting! recording! or photograph is not closely related to a controlling issue& o 2itness ay testify to contents of brochure destroyed by fire to establish #arranty' 3eville "onstru!tion Rule 1000. Pu&lic Records

The contents of an official record! or of a docu ent authori3ed to be recorded or filed and actually recorded or filed! including data co pilations in any for ! if other#ise ad issible! ay be proved by copy! certified as correct in accordance #ith rule ?%. or testified to be correct by a #itness #ho has co pared it #ith the original& If a copy #hich co plies #ith the foregoing cannot be obtained by the e"ercise of reasonable diligence! then other evidence of the contents ay be given& o 9hotocopy of auto obile certificate of title is ad issible in absence of clai of inaccuracy' US v Rodriguez Rule 1001. Su,,aries The contents of volu inous #ritings! recordings! or photographs #hich cannot conveniently be e"a ined in court ay be presented in the for of a chart! su ary! or calculation& The originals! or duplicates! shall be ade available for e"a ination or copying! or both! by other parties at reasonable ti e and place& The court ay order that they be produced in court& o Su aries of ad issible business records are ad issible if original records are too volu inous to be conveniently e"a ined' Ford Motor "omp v ,uto Suppl% o Su aries of inad issible evidence are like#ise inad issible' US v 1ohnson Rule 100?. Testi,on) or .ritten Ad,ission o% Part) Contents of #ritings! recordings! or photographs ay be proved by the testi ony or deposition of the party against #ho offered or by that party@s #ritten ad ission! #ithout accounting for the nonproduction of the original& o 9roduction of original release is not re)uired if 9 ad its e"ecuting one' +D "li!k "omp v US Rule 100A. 5unctions o% Court and 2ur) 2hen the ad issibility of other evidence of contents of #ritings! recordings! or photographs under these rules depends upon the fulfill ent of a condition of fact! the )uestion #hether the condition has been fulfilled is ordinarily for the court to deter ine in accordance #ith the provisions of rule $%A& <o#ever! #hen an issue is raised *a+ #hether the asserted #riting ever e"isted! or *b+ #hether another #riting! recording! or photograph produced at the trial is the original! or *c+ #hether other evidence of contents correctly reflects the contents! the issue is for the trier of fact to deter ine as in the case of other issues of fact& o 4udge ust deter ine #hether there is pri a facie evidence supporting docu ent/s authenticity! then jury ust deter ine sufficiency of authenticating facts and #eight to accord docu ent' Fox v Pe!k *ron ARTICLE GIC 8ISCELLANEO3S R3LES Rule 1101. Applica&ilit) o% Rules #a$ Courts and (ud!es. These rules apply to the United States district courts! the District Court of 5ua ! the District Court of the Virgin Islands! the Disrict Court for the Northern Jariana Islands! the United States courts of appeals! the United States Clai s Court! and to the United States bankruptcy judges and United States agistrate judges! in the actions! cases! and proceedings and to the e"tent hereinafter set forth& The ter s >judge> and >court> in these rules include United States bankruptcy judges and United States agistrate judges& #&$ Proceedin!s !enerall). These rules apply generally to civil actions and proceedings! including ad iralty and ariti e cases! to cri inal cases and proceedings! to conte pt proceedings e"cept those in #hich the court ay act su arily! and to proceedings and cases under title $$! United States Code& #c$ Rule o% pri"ile!e. The rule #ith respect to privileges applies at all stages of all actions! cases! and proceedings& #d$ Rules inapplica&le. The rules *other than #ith respect to privileges+ do not apply in the follo#ing situations0 *$+ Preliminar% 9uestions o& &a!t& The deter ination of )uestions of fact preli inary to ad issibility of evidence #hen the issue is to be deter ined by the court under rule $%A& *.+ #rand ur%& 9roceedings before grand juries&

*;+ Mis!ellaneous pro!eedings& 9roceedings for e"tradition or rendition- preli inary e"a inations in cri inal cases- sentencing! or granting or revoking probation- issuance of #arrants for arrest! cri inal su onses! and search #arrants- and proceedings #ith respect to release on bail or other#ise& #e$ Rules applica&le in part. In the follo#ing proceedings these rules apply to the e"tent that atters of evidence are not provided for in the statutes #hich govern procedure therein or in other rules prescribed by the Supre e Court pursuant to statutory authority0 the trial of isde eanors and other petty offenses before United States agistrate judge- revie# of agency actions #hen the facts are subject to trail de novo under section E%D*.+*:+ of title C! United States Coderevie# of orders of the Secretary of 1griculture under section . of the 1ct entitled >1n 1ct to authori3e association of producers of agricultural products> approved :ebruary $F! $?.. *E U&S&C& .?.+! and under section D and E*c+ of the 9erishable 1gricultural Co odities 1ct! $?;% *E U&S&C& A??f! A??g*c++- naturali3ation and revocation of naturali3ation under sections ;$% ' ;$F of the I igration and Nationality 1ct *F U&S&C& $A.$ ' $A.?+- pri3e proceedings in ad iralty under sections EDC$ ' EDF$ of title $%! United States Code- revie# of orders of the Secretary of the Interior under section . of the 1ct entitled >1n 1ct authori3ing associations of producers of a)uatic products> approved 4une .C! $?;A *$C U&S&C& C..+- revie# of orders of petroleu control boards under section C of the 1ct entitled >1n act to regulate interstate and foreign co erce in petroleu and its products by prohibiting the ship ent in such co erce of petroleu and its products produced in violation of State la#! and for other purposes>! approved :ebruary ..! $?;C *$C U&S&C& E$Cd+- actions for fines! penalties! or forfeitures under part V of title IV of the Tariff 1ct of $?;% *$? U&S&C& $CF$ ' $D.A+! or under the 1nti'S uggling 1ct *$? U&S&C& $E%$ ' $E$$+- cri inal libel for conde nation! e"clusion of i ports! or other proceedings under the :ederal :ood! Drug! and Cos etic 1ct *.$ U&S&C& ;%$ ' ;?.+- disputes bet#een sea en under sections A%E?! A%F%! and A%F$ of the (evised Statutes *.. U&S&C& .CD ' .CF+- habeas corpus under sections ..A$ ' ..CA of title .F! United States Codeotions to vacate! set aside or correct sentence under section ..CC of title .F! United States Code- actions for penalties for refusal to transport destitute sea en under section ACEF of the (evised Statutes *AD U&S&C& DE?+actions against the United States under the 1ct entitled >1n 1ct authori3ing suits against the United States in ad iralty for da age caused by and salvage service rendered to public vessels belonging to the United States! and for other purposes>! approved Jarch ;! $?.C *AD U&S&C& EF$ ' E?%+! as i ple ented by section EE;% of title $%! United States Code& Rule 1102. A,end,ents 1 end ents to the :ederal (ules of Evidence States Code& ay be ade as provided in section .%E. of title .F of the United

Rule 110 . Title These rules ay be kno#n and cited as the :ederal (ules of Evidence&