TABLE OF CONTENTS: EVIDENCE STUDY OUTLINE

Part 1: Relevance

Part 2: Relevancy-Character Evidence

Part 3: Relevancy- Impeachment

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Part 4: Witness Competence and Testimony

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Part 5: Introducing Exhibits:

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Part 6: Hearsay:

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Part 7: Confrontation:

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Part 8: Expert Testimony

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Part 9: Privilege:

47

Part 10: Judicial Notice

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5 Building Blocks
Relevancy all evidence that is admitted is relevant
Witness Testimony 3 types: character, lay, expert
Exhibits 2 types: real evidence, demonstrative evidence
Hearsay 3 key issues: Is it hearsay? Does it fall within exception? Any confrontational issues?
Privileges
Is it relevant? Under 401
Authenticated? Under 901
Hearsay
Assertion
Out of court statement
To prove TOMA
Exceptions
Even if court admitted under exception still have Confrontation Clause issues
Who is it being offered against?
Prior opportunity to cross-examine?
Prove not available?
Testimonial
Can prove expert witness?
1) Is Evidence Relevant
If relevant, what is my purpose for introducing the evidence (Character/Propensity)
o Permissible Purpose
Limited Purpose, Limiting Instruction
Rule 403
o Impermissible Purpose
Is the witness
o Competent, oath , know, examined correctly
Rule 104(a): judge resolves all legal issues relating to admissibility as well as most factual ones- preponderance of
evidence whether reasonable jury could resolve dispute either way
Huddleston: preponderance standard
Rule 106: Rule of completeness, If a party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part- or any other writing or recorded statement- that in fairness,
ought to be considered at the same time

Oral Statement: Might require under 403 to admit missing portion or Rule 611(a)

Part I Relevance
1) Rule 401: Does the proffered evidence have any tendency to make a material fact of consequence more or less likely
(very low standard)

Rule 402: All relevant evidence is admissible unless other provision excludes the evidence.

2) Rule 403: Probative value has to substantially outweigh prejudicial effect

What is the evidences probative value

o Incremental value that evidence can offer; affected by scarcity or abundance of other evidence on
same point
o Old Chief: Is their evidence in the case that already proves the proposition in question that is less
distracting or prejudicial? If yes, diminished probative value
Evaluate in context of full evidentiary record
What is the danger of 1) unfair prejudice; 2) confusion of the issues; 3) misleading the jury; 4) undue delay; 5)
waste of time; 6) presentation of cumulative evidence
o Unfairly prejudicial: emotional bias, etc.
Basis of decision is something other than law/relevant evidence
o Confusion of the issues: Distracting jury of the proper issues
Propensity evidence can fall under this
Example of fact that other co-conspirators werent arrested, amount of drugs
o Misleading the jury: Possibility that jury might attach undue weight to the evidence (Form of
evidence)
o Undue delay, waste of time, cumulative evidence: efficiency concerns
o Factors: extent to which will arouse irrational prejudice; extent jury might overvalue the evidence;
strength of connection (more likely to admit evidence closely related to essential elements); whether
can prove through alternate means; whether possible to reduce prejudice through redaction/limiting
instruction
Does the danger of prejudicial effect substantially outweigh the Evidences probative value?
o Judges discretion under the Rule, substantially outweighed: tilt to admissibility
Can the danger be mitigated by a limiting instruction under Rule 105, redaction, or instructing attorney to
avoid certain line of questions
o Admissible for limited purpose?

3) If prejudicial effect substantially outweighs probative value, then evidence is excluded. If not, still subject to other
rules, such as hearsay.
Other Relevance Rules
1) Rule 407: Does the evidence include a subsequent remedial measure (in civil case that wouldve made the accident
less likely)

Was the remedial measure or repair taken after the accident

o Introduced to show defendants negligence, culpable conduct, or product liability
If yes, Rule 407 bars admission
o Do other valid reasons render the evidence admissible: Impeachment, feasibility of repair, proof of
ownership, proof of control
Admit with limiting instruction
Impeachment: specific representation that conflicts with subsequent remedial measure,
witness makes absolute declaration (product was perfectly safe), witness making statement
was personally involved in subsequent remedial measure

Does it pass Rule 403 balancing test?

2) Rule 408: Does the evidence arise out Compromise/Settlement Offers in a civil case?

Does the offer, acceptance, statement or conduct occur: Rule 104(a)

o During compromise negotiations; after a claim had arisen; and in connection with a claim that was
disputed?
Was the statement unilateral or did it occur during bilateral discussion; whether either party
made a concrete offer; whether attorneys were involved; whether parties used phrases like
without prejudice
o Applies to all parties, even those not associated with the case
If 2 Ps sue a D, and D settles with one, P cannot introduce settlement as evidence of liable
o Has the disagreement matured into a claim?
Is there a genuine dispute as to validity or amount
Is the statement offered to prove validity or amount of the claim; disprove the validity or amount; impeach a
witnesss testimony through PIS or contradiction
o If yes, excluded under Rule 408
o Potential other permissible purposes: bias, negating claim of undue delay, or proving effort to obstruct
justice.
Is this a criminal prosecution?
o Did the compromise negotiations relate to the claim of a public office exercising its regulatory,
investigative, or enforcement authority? * Doesnt include police
If the evidence is other statements or conduct, admissible subject to Rule 403 and other rules
If the evidence is an offer or acceptance, not admissible under Rule 408
If other valid purpose does the evidence pass Rule 403 balancing test?

3) Rule 409: Payment of Medical Expenses: Does the offered evidence include evidence of offers to pay medical
expenses? Rule 104(a)

Including payment of those expenses, promising or offering to pay?

o Is the evidence offered to prove liability?
Does another purpose exist for offered evidence- example if defendant claimed plaintiff wasnt injured
Does the evidence pass Rule 403s balancing test?

4) Rule 410: Plea Discussion- In a criminal case, does the evidence arise out of:
A withdrawn guilty plea; a plea of nolo contender; surrounding statements concerning a withdrawn guilty plea
or plea of nolo contender; or statements made during plea bargaining with a prosecuting attorney Rule 104(a)
o If no, not excluded under Rule 410. Look to statement of party opponent
Did plea bargaining occur
o 1. displayed an actual subjective expectation to negotiate a plea and
o 2. That expectation was reasonable given the totality of the objective circumstances
Has another statement from the same plea bargaining discussions already been introduced?
o Would fairness dictate that this plea statement also be admitted
Is the statement made in plea discussion being offered in a criminal prosecution for false statement or perjury?
o Was the statement made under oath, on the record, and with counsel present
Evidence is not excluded under Rule 410, admissible as statement by an opposing party
o Was the statement waived-Waiver is permissible, at least to including statements made during plea
negotiations
Does the probative value substantially outweigh the prejudicial effect under Rule 403?

5) Rule 411: Liability Insurance: Does the evidence go to whether a person possessed liability insurance?

Is the evidence concerning liability insurance being offered to demonstrate a purpose other than to prove that a
person acted negligently or otherwise wrongfully?
o If yes, not for purpose excluded by Rule 411
o Need to provide specific other purpose- proving agency, ownership, or control; demonstrating bias of
witness
Dias the probative value substantially outweigh prejudicial effect under Rule 403

Part II: Relevancy- Character Evidence

A. Character Evidence
Policy: unfair surprise and burden on the defendant, confusion of the issues, jurys misuse of propensity evidence,
reliability of propensity evidence is low.
1) Is the evidence propensity evidence?

Yes: character evidence, excluded unless fits into exception or non-character use
o Rule 404(a)(1): Evidence of a persons character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the character or trait.
No: not character evidence and may be admissible because
o Crimes/Wrongs/Other Acts Non-Character Purpose under Rule 404(b)(2): Civil and Criminal
Can jury find by a preponderance of the evidence that the defendant committed the other act
Huddleston: whether knew video tapes were stolen. Prior bad act can be admitted if
judge finds jury could reasonably find committed prior act
What is purpose: motive, intent, mistake or accident (absence of), identity, common plan or
scheme
Absence of mistake (probability of events- death of many wives in same way)
Common plan (burglarizing garage to get stuff to rob bank)
o Setting two fires in past to get insurance money
Motive- previous crime motivated charged crime
o Tax liabilities to show motive for arson
Identity- signature elements of a crime (strong connection, unique)
o Identity must be at issue; strong similarities between charged and other crime
o Hookers able to recognize cop b/c hired regularly
Opportunity- access to a particular place
Knowledge: if element, (convicted of DUI before); breaking into safe shows know
o Jenkins: just using crack in past isnt admissible to show knew that package
contained cocaine
Intent: (poisoning someone, failing, then shooting intent to commit the crime)
o Good as well- hired older worker goes against discrimination
Probative value: Is directed at disputed fact or issue, cannot be cumulative
Such as questioning
Rule 403 balancing: is probative value substantially outweighed by prejudicial effect
Strength of evidence, need for the evidence, proximity in time of other act/ degree of
similarity
How long ago the other crime/act was
Can a limiting instruction minimize the danger?
Notice- on request by defendant, prosecutor must provide notice, before trial
o Rare occasion where character is at issue and specific acts evidence of character admissible under
Rule 405(b)
Direct evidence of character because trait or character is essential element of claim, crime, or
defense
Can introduce extrinsic elements
Defamation, child custody, entrapment, negligent entrustment
Rule 403 balancing test
o Rule 406: Habit Evidence

1) Is it the type of conduct that can constitute a habit; 2) Is the conduct shown to have
occurred with sufficient frequency and regularity; 3) has sufficient evidence been introduced
to establish that particular person possessed the habit?
Doesnt have to be corroborated
specific, repeated responses to particular situation or stimulus, distinct
Generally passes Rule 403 because low risk of prejudice

2) Propensity Evidence, What Exceptions Apply? Is it a civil case?

Yes: only type of character evidence allowed in civil case is character of witnesses.
o Rules 607, 608, 609: Witnesss general tendency of truthfulness and witnesss conviction of certain
crimes can be used to impeach.
Civil case, Rule 412 Rape Shield: Probative value substantially outweighs the danger of harm to any victim
and unfair prejudice to any party, and the victim has placed it in controversy.

3) Rules 607-609: Is Evidence offered of a Testifying Witnesss general character for truthfulness/untruthfulness?

Rule 608 allows to rebut with proof of a witnesss truthful character

o Form of Impeachment, Propensity evidence on Character of honesty
o All Witnesses in Criminal and civil cases
Rule 609: Exception to ban on propensity evidence, limited to the character of the witnesses
o Within the period of ten years, all convicted conduct concerning crimes involving dishonesty (such as
identity theft, fraud, perjury, tax evasion, embezzlement) admissible to impeach witness

4) Rule 404(a)(2): Does the Criminal Defendant seek to offer Character Testimony (Either reputation or opinion) as
to their own good character about the pertinent trait

Rule 405(a): may be proved by reputation or opinion testimony

o Pertinent trait: (peacefulness + good order; truthfulness & veracity)
o No specific acts obviously: Michelson
Prosecutor can then:
o Cross-Examine the witnesses for the Accused about specific acts of pertinent behavior
Must have good faith belief that specific instance occurred
May not introduce extrinsic evidence to contradict witnesss answer. Has to take.
Specific Act by the defendant must be publicly known/susceptible to public knowledge
Limiting Instruction- only to test knowledge
o Can also rebut Accuseds character evidence with contrary reputation and opinion evidence regarding
the same trait
o Impeach Witnesss credibility: bias, motive, criminal convictions
o Michelson: prosecutor cant be first one to introduce propensity evidence

5) Rule 404(a)(2): Does the Criminal Defendant seek to offer Character Testimony As to Victims Bad Character
about pertinent trait?
If not sexual, Rule 405(a): May be proved by reputation or opinion testimony
o Pertinent Trait: peacefulness and good order; truthfulness & veracity
Prosecutor can then
o Cross-Examine Witnesses for Accused on specific instances of pertinent behavior
Whether knows about good specific acts relevant to trait
Good faith belief, no extrinsic evidence
Limiting Instruction that only to test knowledge
Specific Act by the defendant must be publicly known/susceptible to public knowledge
o Impeach defendants witness credibility: bias, motive, criminal convictions

Offer character evidence (different witness) to rebut evidence about victim through reputation or
opinion
Testifies as to victims good character of same trait
Offer character evidence of the same trait of the Accused through reputation or opinion

6) Rule 404(a)(2): In Homicide case, did Accused offer evidence that Victim was first aggressor?

Rule 404(a)(2): Prosecutor can introduce evidence of victims character for peacefulness+ good order to rebut

7) Rule 412: Does the offered evidence relate do Sexual Disposition/History

Rule 412: If evidence of sexual disposition/history, including dress, only admissible if falls under rape shield
exception
o Specific instance to prove someone else source of physical evidence
o Evidence of specific instance of victim with respect to Accused to prove consent or if offered by the
prosecutor
o reject evidence of the defendants promiscuous reputation to prove that the defendant reasonably
believed that she consented to sexual contact with him
o Greater discretion in civil cases
o Violate constitutional rights
Olden: wanted to show had motive to lie about consensual relationship because seeing Oldens brother
o Wanted to introduce evidence, that was living with brother as motive.
o A defendant has the right to confront a witness against him in a sexual assault case and impeach the
witness for bias through cross examination on certain issues not barred by Rule 412 of the Federal
Rules of Evidence.
Civil case, Rule 412 Rape Shield: Probative value substantially outweighs the danger of harm to any victim
and unfair prejudice to any party, and the victim has placed it in controversy

8) Rules 413-415: Is this a rape/sexual molestation case?

All relevant bad acts of Accused are admissible under Rule 413-414
o No time limit, need not be convicted conduct
o Rule 413: allows prosecutors to introduce evidence of other sexual assaults committed by the
defendant, and to use that evidence for any purpose, including to suggest that the defendant has a
propensity to commit sexual assaults.
o Rule 414: For child molestation, prosecutor can introduce evidence of other molestations, and argue
that defendant has a propensity to molest children
o Rule 415: Same evidence and propensity reasoning in civil cases involving sexual assault or child
molestation.
Doesnt have to be convicted of earlier act, prosecutor has to show under Huddleston that a jury could
reasonably find by a preponderance of the evidence that the defendant committed
Rule 403 applies, but propensity use is not unfair prejudice

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Part III: Relevancy Impeachment

General Rules

Rule 607- Any party can impeach a witness

Questions to ask before impeaching: 1) Is the impeacher matter relevant (must be relevant to issues in case and
credibility of witness); 2) Is the matter collateral or non-collateral (extrinsic evidence)
Witness testimony or out-of-court statement admitted via exemption of Rule 801 or hearsay evidence. Rule
806.
Rule 106: If a party introduces all or part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part or any other writing or recorded statement that in fairness ought
to be considered at the same time
No bolstering credibility until witness has been impeached (limited to rehabilitation)
Party has absolute right to cross-examine witness who testifies live, must be within scope of direct though
Lawyer needs a good faith basis in grounds for impeachment.
All subject to Rule 403; especially waste of time and prejudice

1) Defects of Capacity

Attack witnesss ability to perceive events, recollect events, or accurately recount testimony
o Physical impairment to sight or hearing; a mental defect to cognition or understanding
Substance abuse that interferes with the ability to process information or remember the
incident
If yes, the witness can be impeached for sensory perception and extrinsic evidence of that impairment is
probably admissible
Rule 403 still applies though

2) Contradictory Facts: Showing something that the witness said is actually false

Key issue of whether you can prove up the contradiction with extrinsic Evidence
o Collateral v. Non-Collateral- Does the evidence have any other purpose than to contradict the witnesss
testimony?
If yes: Non- Collateral = can introduce extrinsic evidence to further disprove answer
Bias, motive, interest
Witnesss Convictions under Rule 609
Linchpin Facts: facts negating assumption that witness was in the right place at the
right time to observe what she testified to
Any dual relevancy evidence (impeach and substantive issues at trial)
If no: Collateral = cannot introduce extrinsic evidence, must take answer
Probative of Witnesss Untruthfulness under Rule 608(b)
PIS & Contradictory Facts when only admissible purpose to contradict witness
Specific Relevant Act when cross-examining Character Witness under Rule 405(a)

3) Particular Attack on Witnesss Credibility

A. Bias, Motive, or Interest

No specific federal rule. Relevant, non-collateral, and never beyond the scope of direct-examination
Bias: Anything about the relationship between a party and a witness which might lead the witness to slant,
unconsciously or otherwise, the testimony in favor or against a party. United States v. Abel
o Extrinsic Evidence Allowed

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Examples: Familial relationship or emotional involvement with a party; Business or financial

relationship with a party of interest in the case; Member in an organization that is interested in the
lawsuit; A deal with the government to testify and receive leniency in the pending criminal case?
o Rule 408: Can use evidence of conduct or statement in compromise to show bias
Rule 411: liability insurance
o Rule 403 balancing still applies
Davis: D has confrontation-clause right to cross-examine a witness concerning witnesss prior juvenile
adjudications to show bias
o States interest in protecting juveniles does not trump need to cross-examine about bias
o Would be excluded if offered just to show untruthfulness (but instead, fact that didnt want to lose
probation so would blame someone else)
Interest: where a witnesss relationship to a party or lawsuit is such that he stands to gain or lose (financially or
otherwise) from a particular outcome to the case
Motive: Olden v. Kentucky defendants Sixth Amendment right violated when trial court refused to allow
impeachment of an alleged rape victims testimony when facts reveal motive to fabricate
o

B. Prior Inconsistent Statement (Rules 613, 801(d)(1)(A))

2 Purpose
o 1) Impeachment
2) TOMA => Hearsay Issues
Rule 613(a): When examining about prior statement
o Need not show or disclose to witness, but on request must show to adverse attorney
Rule 613(b): Extrinsic evidence admissible only if
o Witness is given opportunity to explain or deny the statement and
Adverse party is given opportunity to examine the witness
Or if justice so requires
o Does not apply to opposing partys statement under Rule 801(d)(2)
Rule 106: If a party introduces all or part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part or any other writing or recorded statement that in fairness ought
to be considered at the same time
Judges use discretion under Rules 403 and 611 to prohibit extrinsic evidence of a prior inconsistent statement
on a purely collateral matter
o Causes delay and confusion under Rule 403; disrupts under 611
o Under Rule 613, can present extrinsic evidence of non-collateral matter if witness is given opportunity
to explain or deny the statement and adverse party given an opportunity to examine the witness about
it or if justice so requires
Definitions:
o Inconsistent
No requirement of direct contradiction, reasonable tendency to discredit testimony
Impeach by silence: only to show that witness wouldve been reasonably expected to speak
Pre-Arrest: Not barred, rules 401 and 403 though
Post-Arrest: Not barred but often excluded under 403
Post-Miranda: Constitutionally barred, Doyle
o Statement: Can be oral or in writing, sworn or unsworn.
Must be witnesss statement ,not statement of third-party*** Application to hearsay
FRCrimP 26.2 => Either side can request any statement relating to matters opponents witness testified to
o FRCrimP 16(a) => Defendant can request relevant statements made in response to interrogation that
prosecution intends to use
Public Policy: Remember, cant include settlement negotiations, plea discussions Rules 408 & 410

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Limiting Instruction: Show that inconsistency casts doubt on witnesss memory, accuracy, and truthfulness
(offered for judging credibility of witness- not evidence of proof)
Rule 403 Analysis still applies

4) General Attack on Witnesss Character for Truthfulness

A. Prior Conviction (Rule 609)

Rule 609 applies only when a party uses a criminal conviction for a particular purpose: to suggest that a
witness has an untruthful character. The jury may consider that conviction only to assess the witnesss
character for untruthfulness.
Rule 609 has three categories of rules
1) Prior felony convictions used to impeach any witness other than the defendant in a criminal case

Crimes punishable by death or by imprisonment of more than one year

No time had to actually have been served
Prior felony convictions are generally admissible to impeach witnesses other than criminal
defendants. The judge retains the discretion under Rule 403 to exclude a conviction if a party
presuades the judge that the convictions unfair prejudice will substantially outweigh its probative
value
In a civil case or a criminal case in which the witness is not a defendant.
Policy: unfair surprise and burden, confusion of the issue, jurys misuse of propensity evidence,
reliability of propensity evidence
Party resisting impeachment bears burden of proof

2) Prior felony convictions used to impeach a witness who is the defendant in a criminal case: Rule 609(a)
(1)(B)

Rule 609 makes it harder to introduce evidence of a criminal defendants prior felony conviction
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No time had to actually have been served

Admissible against a criminal defendant who takes the stand only if the judge makes a distinctive
finding that the probative value outweighs its prejudical effect to that defendant
o Weighs prejudicial effect only on that defendant not anyo ther person
o Lower threshold for excluding evidence that Rule 403
o Places burden on prosecutor to show that probative value outweighs the prejudical effect, so
that evidence of a prior conviction should be admitted
o Factors that circuit courts have used:
Impeachment value of former crime (truth telling more proabtive value); Timing or
prior conviction (closer=more probative value); similiarity to charged crime and prior
one (higher likelihood of prejudice); Importance of defendants testimony (possibility
wont testify); Centrality of credibility of defendant

3) Prior convictions for any crime involving a dishonest act or false statement, regardless of the witnesss
role or the crimes felony status.

Rule 609 allows litigants to use any conviction for a crime of dishonesty or false statement, no matter
what the sentence, to impeach any witnesss character for truthfulness
Must be admitted if elements of past crime involved dishonest act or false statement
o No balancing test or reference to Rule 403
Dishonest act or false statement must be element of crime
o Doesnt include violence, theft, robbery, drug use

Time Limits: Barriers to using convictions that are more than ten years old (since the witnesss conviction or
release from confinement- whichever is later). Admissible only if:

Probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect (Reverse 403); and
The proponent gives an adverse party reasonable written notice of the intent to use it so that the
party has a fair opportunity to contest its use.

Was the witness the subject of a Criminal Conviction? (Doesnt include no contest pleas)

Was the crime subject to a pardon or juvenile adjudication (Impeachment not generally admissible then)
o Davis: D has confrontation-clause right to cross-examine a witness concerning witnesss prior juvenile
adjudications to show bias
States interest in protecting juveniles does not trump need to cross-examine about bias
Would be excluded if offered just to show untruthfulness (but instead, fact that didnt want to
lose probation so would blame someone else)
o Pardons, annulments: can only be used if witness has since committed another felony and original
conviction was pardoned for reasons other than innocence
Luce v. United States: Defendant must testify to raise and preserve for review the claim of improper
impeachment with a prior conviction.
o Doesnt apply to motion in limine where the defendant never testifies, even if the defendant does make
the timely and specific motion
Ohler v. United States: If defendant raises prior conviction on direct to lessen the sting , loses right to appeal
admission of evidence of past conviction
Modes of Impeachment under 609
o On cross, can only ask about basic facts reflected on face of judgment (name of offense, time and
place of conviction, and sentence received)

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Cannot go into details of the crime

Introduce certified copy of conviction
Meets authentication requirements of 902(4); Public Records Exemption to Hearsay under
Rule 803(8)

B. Witnesss Character for Truthfulness via Character Witnesss Opinion/ Reputation Testimony (Rule 608(a))
C. Witnesss Conduct Probative of Untruthfulness (Rule 608(b))

Does a party believe that a witness has a general problem with Truthfulness that is not subject of conviction?

Rule 608(a): Opinion and reputation evidence about the witnesss character for lack of truthfulness may be
presented
o Extrinsic Evidence may be used to prove the opinion and reputation evidence
Rule 608(b) The witness may be cross examined about specific instances of lack of truthfulness but questioner
must take the answer, extrinsic evidence cant be introduced.
o Probative of witnesss character for truthfulness: false name, lying on application, failing to file tax
returns (specific acts have to deal with truthfulness)

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Must have good faith belief, cant introduce extrinsic evidence (such as disciplinary report or
testimony from others)
o Judicial Discretion may under 608(b), Rule 403 and 611
o Probative of Witnesss Character for Untruthfulness:
False identification, false statements on forms, giving false testimony, forgery, lying,
embezzling
o Not probative of Ws character for untruthfulness: violence, drug use, bankruptcy, adultery
Rule 403 still applies
Go to Step 5
o

5) Has the witnesss character for truthfulness been Attacked? (Direct attack or line of questioning where conclusion
is that witness is lying)

Attacked: 609+ 609 yes, attacks the general character

o Opponent presents character witness who testifies about fact witnesss lack of character
Cross-examination of fact witness and asks about specific acts of dishonesty under 608(b)
Evidence of conviction under 609
Rule 608(a): Opinion and reputation evidence about a witnesss character for truthfulness can be presented to
rehabilitate the witness.
o Extrinsic evidence is allowed to prove the opinion/reputation that witness it truthful => Step 6
Negative character witness can be cross-examined regarding specific instances of truthfulness, but questioner
must take answer and cant introduce extrinsic evidence
o Probative of Witnesss Character for Untruthfulness:
False identification, false statements on forms, giving false testimony, forgery, lying,
embezzling
o Not probative of Ws character for untruthfulness: violence, drug use, bankruptcy, adultery
Rule 403 still applies

6) Has a witness, as a character witness, offered reputation or opinion testimony concerning the lack of Truthfulness
of another witness?

Yes: As in Step 5, that witness can be impeached concerning own character for truthfulness by reputation and
opinion testimony, and specific instances on cross
o That witness can be asked about specific instances of conduct relating to truthfulness of the witness
whom she provided character evidence.
Must take answer, no extrinsic evidence
o That witness can trigger other witnesses to contradict her, rehabilitating witness she testified against,
with opinion and reputation testimony
No, => Step 7

8) Is the proposed impeachment independently admissible extrinsic evidence that contradicts a witnesss testimony?

Impeachment by contradiction is admissible so long as doesnt fail Rule 403 balance (often waste of time)

LIMITING INSTRUCTION FOR IMPEACHMENT

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Part IV: Witness Competence and Testimony

1) Is the Witness competent (Rules 601, 605, 606)

Rule 601: Everyone competent, unless rules provide otherwise. Minimal physical and mental capacity to
perceive, record, & recollect impressions of fact
In a civil case, state law governs competency where state law supplies rule of decision
o Potential Dead Mans Statute: restricts evidence when a live person asserts a civil claim against a
dead one.
Rule 605: Judges cannot testify as witness (give commentary from bench that amounts to)
Rule 606: Jurors cannot testify as to deliberations. Can testify as to:
o Mistake concerning verdict recording; introduction of extraneous prejudicial information;
improper outside influence

2) Does the witness have personal knowledge (Rule 602) and testify about facts and limited opinion (Rule 701)

Did perceive, record, and recollect impressions tending to establish a fact of consequence
Establish through ones own testimony
Rule 602: Witness can testify to matter only if evidence introduced to show personal knowledge
o Have to lay foundation. Doesnt apply to experts under Rule 703.
Rule 701: if not testifying as an expert, testimony is limited to one that is
o Rationally based on the witnesss perception; helpful to clearly understanding the witnesss
testimony or determining a fact in issue (helps stretch to additional information supplied); and
cannot be based on scientific, technical, or other specialized knowledge within scope of Rule 702
(expert)
Everyday knowledge: even if distinct, drug dealer can testify about quality of cocaine. Everyday person
could offer opinion about defendants sanity

3) Has the witness taken an oath or affirmation (Rule 603)

Declares and understands it, appreciates difference between truth and lie

4) Subject to cross-examination (Sixth Amendment in Criminal)

5) Interpreters: Rule 604 Witness has capacity to comprehend questions and express herself intelligibly where
necessary with an interpreters aid
6) Rule 611: Mode and Order of Examining Witnesses & Presenting Evidence

a) Control over the mode and exercise of examining witnesses and preventing evidence so as to
o Make those procedures effective for determining the truth; avoid wasting time; protect witnesses
from harassment or undue embarrassment
b) Scope of Cross: Cross-Examination should not go beyond the subject matter of the direct examination
and matters affecting the witnesss credibility.
c) Leading Questions: Should not be used on direct, except as necessary to develop witnesss testimony.
Should allow only on cross; or when party calls hostile witness, adverse party, or witness identified with
adverse party.
o Allow on direct to establish pedigree, direct to relevant place and time, help witness who is
hesitant or confused, and hostile witnesses
Any objection to a form of a question is based on Rule 611(a)

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Part V: Introducing Exhibits

1) Relevancy
2) Authenticated- Rule 901: proponent must produce sufficient evidence to support a finding that the items is what the
proponent clams it is (very low threshold)

Helps establish genuine evidence, proper context, shows relevance

Rule 902: Self-Authenticating
o Domestic public documents signed and sealed (or certified), foreign public documents, certified copies
of public records, official publications, newspapers and periodicals, trade inscription, acknowledged
documents, commercial paper, presumptions under a federal statute,
o Certified domestic records of regularly conducted activity- Rule 803(6)(A-C) foreign as well
Rule 901: Need extrinsic evidence to authenticate
o Testimony of witness with knowledge, nonexpert opinion about handwriting, comparison by expert
witness or the trier of fact, distinctive characteristics, opinion about a voice, evidence about telephone
conversation and public records, evidence about ancient documents, evidence about a process or
system
Laying the Foundation, Establishing Chain of Custody
Best Evidence Rule Rule 1002 when the purpose of the evidence is to prove the contents of a writing,
requiring the production of the writing, unless it is unavailable through no fault of the proponent of the
evidence
o Chart on pg. 896
o Three factors court looks at: Centrality of writing/recording to the issues at litigation, Complexity, Is
there a genuine dispute over the contents of the writing
Real Evidence or Demonstrative Evidence?

3) Not Hearsay or Admissible Under an Exception to Rule Barring Hearsay

Purpose of the Exhibit::

o If TOMA => Hearsay => Hearsay Exception => Confrontation Clause
o If impeachment or other purpose, not hearsay

4) Rule 403: Probative value is not substantially outweighed by dangers of unfair prejudice

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Part VI: Hearsay

Is it hearsay, Does an Exception apply, Who Decides, Sixth Amendment, Rule 403
Rule 805 Hearsay Within Hearsay
-One out-of-court statement often is embedded in another out-of-court statement.

A declarant, for example, will report on what someone else told him, or a document will contain a
quote from a third party.
Rule 805 provides that these double hearsay statements are admissible for the truth of the matter
asserted as long as each level of the statement fits into an exception.
However, it may be difficult to lay the foundation for the original out-of-court statement, because the
witness testifying on the stand may not know much about the context of the original declarants
statement.

-Might be multiple statements, but may not be offered for TOMA, therefore no hearsay for one.

I. Is it hearsay?
1)Rule 801: Definition of Hearsay out-of-court statement offered to prove the truth of the matter asserted

Is it a statement? When/Where was assertion made? What is the purpose?

Statement: oral, written, or non-verbal assertion
o Nonverbal conduct if intended as an assertion (sign language, pointing finger)
Out-of-court statement: out of current proceeding, even if another court
Truth of the Matter Asserted: If offered to prove TOMA => Hearsay
o Was the trier of fact asked to believe statement was actually true?
o Not TOMA: Simply to prove that assertion was made
Circumstantial Evidence of state of mind of speaker (show mental status)
Declarants mental state
Declarants Intent/Lack of Intent (Fraud=relied on accountants advice)
Effect on Listener (have received notice)
Self-defense, motive (defendant hears someone threaten him)
Consent, reasonableness for acting
Impeachment (through PIS)
When you dont care whether witnesss earlier PIS is true or false, PIS can be
introduced into evidence to impeach witnesss credibility
Purpose to impeach, made earlier statement. Probative value to show is
inconsistent
Verbal Acts (show was alive at time, I accept contract, Why dont you join usconspiracy)
Written/oral contracts, fraudulent statements, defamatory statements
TN v. Street: defendants rights under the confrontation clause were not violate by
introduction of the confession of an accomplice for the nonhearsay purpose of
rebutting a defendants testimony that his own confession was coercively derived from
reading of accomplices
o When dual purposes exist, judge has to consider under Rule 403 whether any unfair prejudice
substantially outweighs the probative value
20

Probative value of the non-hearsay purpose against the unfair prejudice of the hearsay
purpose. Balance tilts in favor of admissibility
o Limiting Instruction introduced as well
Photographs and Videotapes: most do not portray an assertion. Video of defendant pulling a gun
would not be an assertion.
Reasons for hearsay rule: lacks the assurances of reliability such as in-court oath, ability of factfinder to observe witnesss demeanor, possible prosecution for perjury, lack of opportunity for cross

2) Rule 802: Hearsay is not admissible unless any of the following provide otherwise: federal statute, these
rules, or other rules prescribed by the Supreme Court

II. Does it fall within any of the hearsay exceptions?

Rule 801(d) Exemptions = Prior Statements by Witnesses; Statements by Opposing Parties

Rule 803: Availability of Declarant varies: high indicia of reliability, in some cases firsthand
testimony could even be obtained
Rule 804: Declarant Unavailable = Former Testimony, Dying Declaration, Statement Against
Interest, Statement of personal or family history, forfeiture by wrongdoing
Rule 807: Residual Exception = Falls outside other thirty exceptions, but has similar guarantees of
trustworthiness when admission will serve the interests of justice

III. Who Decides: Under Rule 104(a), the judge decides both whether a statement is hearsay and whether
one of the exceptions apply. Party offering the statement must persuade the judge by a preponderance of the
evidence

IV. Sixth Amendment: Crawford v. Washington applies against the prosecution in criminal cases.
Potential Sixth Amendment limit to application of hearsay exception

V. Rule 403
II. A. Rule 801(d) Exemptions
3) Prior Statements by Witnesses, Statements by Party Opponent- Rule 801(d) Not Hearsay
Exemptions
A. Prior Statement by Witness: Rule 801(d)(1)
- Applies even when witness and declarant are same person
-Declarant must testify at trial and be subject to cross-examination on the statement. If that applies, then
three types of prior witness statements are admissible

Subject to cross-examination: witnesses who take the stand and claim loss of memory (whether real
or feigned) are still subject to cross-examination.
o Those who completely refuse to testify by invoking privilege against self-incrimination are
not.
5th amendment selectively might be deemed to
o Memory Loss- Owens: witness placed on stand, under oath, and responds willingly to
questions. Fact that doesnt remember doesnt matter

1. Prior Inconsistent Statement: Rule 801(d)(1) and common-law impeachment

21

a. Common law impeachment: to contradict witness, show unreliability, not for TOMA
Rule 801(d)(1)(A): Impeachment and Substantive evidence (prove TOMA)
b. Rule 801(d)(1)(A): Prior out-of-court statement is not hearsay only if:
Declarant testifies at current trial or hearing and is subject to cross-examination
concerning the prior statement at the current trial or hearing
The prior out-of-court statement is inconsistent with the Declarants current testimony
The prior out-of-court statement was given under oath, subject to penalty of perjury
and
Was made at a trial, other hearing, other proceeding (or deposition)
o Includes grand-jury
If doesnt meet criteria, can be used for impeachment only

2. Prior Consistent Statement: Rule 801(d)(1)(B)

a. Prior consistent statements by an available witness are admissible if :
i. Offered to rebut an express or implied charge against the Defendant of recent
fabrication or improper influence or motive OR
ii. To rehabilitate the declarants credibility as a witness when attacked on another
ground.
b. Statement must have been made before credibility attacked
3. Prior Statements of Identification: Rule 801(d)(1)(C)
a. A witnesss prior statement of identification (which can be reported by others, such as a
policeman who witnessed) is not hearsay, and admissible under Rule 801(d)(1)(C)
b. Policy of how identifications are most reliable at time made
c. Only admissible if witness testifies in court and subject to cross-examination
But, can be brought in through testimony of witness who observed identification
Admissible even if can no longer identify

II. A. Rule 801(d)

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Statements of a Party-Opponent: Rule 801(d)(2)(A-D)

-Essentially, anything a party says or does is admissible if offered by the party opponent. Exception in
criminal cases where Accused didnt receive Miranda rights.
-A statement is not hearsay if: Statement by party-opponent offered by opposing party, and is:

Opposing partys statement in individual or representative capacity

o Criminal defendants: oral or written confessions. Dilemma for defendants with prior
convictions, if defendant takes stand to rebut, may be able to introduce evidence of prior
convictions to impeach
One that they appeared to adopt or believed to be true (Hearing, understanding, response)
o Silence as a statement: A party can make a statement by remaining silent in a situation where
one would expect to make denial if statement was true
Whether circumstances as a whole show lack of denial is so unnatural/ probable
human behavior
For criminal case: presence of governments/ Miranda warnings
o Signing a document
Statement made by a partys agent or employee on a matter within scope of relationship
o Rule 801(d)(2)(C-D). Agents statement admissible if:
(C) Agent was authorized to speak for the principal
(D) Employee was speaking about a matter within the scope of employment
Involves looking to law of agency
Some outside evidence of agency or employment needs to be presented
Statement by partys co-conspirator during course of and in furtherance of conspiracy
o Rule 801(d)(2)(E): Under 104, judge must find four predicate facts
Statement by a co-conspirator
As part of a conspiracy: conspiracy doesnt have to be charged, but opposing party
must prove conspiracy existed through at least some outside evidence
Agreement between at least 2 to accomplish illegal goal, overt act
In furtherance of the conspiracy: Advancing one of the main objectives
In course of: before conspiracy ended.
Conspiracies usually end when co-conspirator in custody

General Rules:

Doesnt have to be against self-interest or based on personal knowledge

Judge may use statement itself to determine whether elements of agency, employment, or conspiracy
exist. But have to have some independent evidence as well.
Rule 403 as always still applies.
Doesnt require party to be available, applies even when defendant invokes privilege.

Relationship to Other Rules: Rule 407 (subsequent remedial measures); Rule 408 (settlement
negotiations); Rule 409 (medical expenses); Rule 403
Multiple Parties: Against an opposing party

May encourage more narrow reading of Rule 801(d)(2), forbid parties from introducing statement of
co-plaintiff or co-defendant
23

Civil Cases: The judge will protect those other parties, from any spillover effects by offer a limiting
instruction, redacting the out-of-court statement, or excluding the statement under Rule 403
Confrontation Clause: If not covered by co-conspirator, applies only when tries the defendant
jointly, and the defendant who made out-of-court statement fails to take the stand at trial
o A statement that explicitly names a codefendant and implicates the defendant on its face
violates Bruton and cant be admitted.
A statement that simply replaces with blanks also violates Bruton
o A statement that does not refer explicitly to a codefendant, and that contains no obvious
omissions tempting the jury to fill in those gaps satisfies Bruton. The prosecutor can admit
statements that satisfy this condition in their initial form or that can be redacted to reach this
form.
Statements are still admissible against only the defendant who made out-of-court
statement, judge will instruct jury not to consider these statements in connection with
any codefendants.
Preliminary Determinations: Under 104, judge makes preliminary determinations. Decide whether
conspiracy exists, out-of-court statement in furtherance of. Dont have to follow FRE, but have to
have more than just the statement

24

II. B. Rule 803

Exceptions
-After decided out-of-court statement offered for its truth, and gone through 801(d) exclusion, consider
whether an 803 exception applies. Remember, if doesnt have personal knowledge=multiple levels of
hearsay. For nearly all, must have personal knowledge (difference from 804(b))
-No requirement on availability of declarant
-Policy behind hearsay exceptions: Specific trustworthiness or reliability, exceptions applied categorically.
1. Present Sense Impression: Rule 803(1)
a. Hearsay exception for a statement describing or explaining an event or condition, made while
or immediately after the defendant perceived it
i. Little chance to fabricate because extremely short time between perception and
utterance
b. When deciding whether present-sense impression, judge must determine under 104(a)
i. Declarant must have personally perceived event (first-hand knowledge)
ii. Must be describing or explaining event, while or immediately after
1. No complex analysis
2. Usually only a few seconds, unless looking for way to communicate
c. Introduce Declarants in-court testimony affirming statement made as perceived or witness
testimony confirming declarant made statement while unfolded
2. Excited Utterance: Rule 803(2)
a. Hearsay exception for a statement relating to a startling event or condition made while the
declarant was under the stress of the excitement that it caused
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i. Startling Event or Condition

ii. Declarant personally observed the startling event
iii. Declarant while under stress, makes an assertion
iv. Assertion relates to startling event or condition
b. Subjective standard actual declarant must be startled/excited
c. Duration of excitement depends on characteristics of declarant/startling event
d. Factors: amount of time lapsed, nature of event, nature of declarant
3. Evidence of State of Mind of Then-Existing Mental, emotional, or physical condition Rule 803(3)
a. Statement of declarants then-existing
i. State of mind (motive, intent, or plan)
ii. Emotional, Sensory, or Physical Condition (mental feeling, pain, bodily health)
b. Includes statements of present intent to do a future act
i. Doesnt include statements of memory or belief unless related to a will
c. Shepard: Out-of-court statements are admissible to prove the declarants thenexisting state
of mind
i. But, unsubstantiated statement about the actions of another individual not admissible
under state of mind exception (husband had poisoned her)
1. Not being introduced to show what defendant actually thought, but introduced
to prove past actions of husband
4. Statements for Medical Diagnosis or Treatment: Rule 803(4)
a. Statement made for and reasonably pertinent to medical diagnosis or treatment and describes
i. Medical history; past and present symptoms or sensations; their inception; or general
cause
b. Statement can be made by either the patient, someone representing the patient, or medical
professional
i. Doesnt require that the statement be made to a physician, so long as for purpose of
obtaining diagnosis or treatment
c. Patients strong motivation to be truthful, but only covers patients statement
d. Applies even if for anticipation of litigation
e. Includes statements when describing cause and source, but not general blame (how, not who)
f. Extra rules for abuse
5. Business Records Rule 803(6)
a. To qualify as a business record exception to hearsay, the document must be
i. A record of an act, event, condition, opinion, or diagnosis
ii. Made at or near the time of the act, event, condition, or diagnosis
iii. By a person with knowledge or made from information transmitted by a person with
knowledge
1. By someone acting in the regular course of business
iv. Made in the course of a regularly conducted activity of a business or organization
v. Created in the regular practice of that business activity
b. Custodian may lay foundation or may be self-authentication
i. Doesnt apply if lack of trustworthiness, usually prepared in anticipation of
litigation
ii. Custodian has to testify to record was kept in course of regularly conducted business
activity, part of regular practice, made by someone with personal knowledge or info
transmitted from that person
c. Only encompasses information transmitted from one organization insider to another. Doesnt
include third parties.
i. Double hearsay if by third parties.
26

1. Information perceived directly by employees falls within business records

2. 3rd party must have hearsay exception (present sense impression when
customer service guy writes down callers answer)
d. Policy: habit and system ensures accuracy, checks-and-balances (self-detection of errors),
incentive in company to be right

3 for 1 Business Records

Authentication: In one declaration,
company can:
-Authenticate under 902(11,12) or
18 U.S.C. 3505 (foreign in criminal)
-Establish elements for business
records exception under Rule 803(6)
-Attach a copy of business record in
lieu of original under Best Evidence

6. Public Records Rule 803(8): Record or statement of a public office that sets out
a. The offices activities
b. 803(8)(A)(ii) A matter observed while under a legal duty to report
i. Not including, in a criminal case, a matter observed by law-enforcement personnel
c. 803(8)(A)(iii) factual findings resulting from an investigation made pursuant to legal
authority, applies in both civil and criminal cases
i. Criminal case: only Accused can use against government
d. Like business judgment rule, can exclude if find a lack of trustworthiness
e. Beech Aircraft Corp. v. Rainey: conclusions or opinions in public agency investigative reports
are admissible as long as the conclusion or opinion is based on the factual investigation
i. JAG report about plane found to be trustworthy, dont have to parse public records to
determine which statements are facts and which are opinions.
ii. All statements contained in report of government investigation are Factual findings
under Rule 803(8)(A)(iii)
f. Other Rules: must comply with other evidentiary rules, prior bad act might violate Rule 404.
i. Overly technical might lead to confusion under Rule 403.
ii. When information in public record violates another rule, trial judge can redact
inadmissible evidence and admit any remaining portion
g. Hearsay within hearsay:
i. When report contains statements of third parties, might be admissible under 803(8) but
has to redact unless another hearsay rule
ii. Can say Based on x,y,z, I conclude spill 15 hours ago but not a local told me spill
started 15 hours ago
iii. Investigators may rely on third party statements to generate conclusions
h. Policy:
i. Criminal Cases- Defendants 6th Amendment Right
ii. Assumption that public officials perform duties properly
27

1. Necessity: inconvenience of requiring public officials to testify to SM of

reports, unlikelihood that Declarant will remember, declarants duty to make
accurate reports
7. Absence of Business or Public Records Rule 803(7) and (10)
a. 803(7): Evidence admitted to prove that matter did not occur or exist, record regularly kept
for matter of that kind, neither the possible source of the information nor other circumstances
indicate a lack of trustworthiness
b. 803(10) Testimony or certification under Rule 902 that a diligent search failed to disclose a
public record if admitted to prove that record does not exist or the matter did not occur or
exist, if a public office regularly kept record of that kind
8. Past Recollection Recorded: Rule 803(5) hearsay exception when
a. A witness once had knowledge of a matter in record, but not cannot remember it enough to
testify fully and accurately,
i. The record was made or adopted by the witness when the matter was fresh in the
witnesss memory, and
ii. The record accurately reflects the witnesss knowledge at the time
b. If the witness has a complete memory, or if no memory now, doesnt apply
c. If admitted, can be read into evidence. Not admitted unless offered by opposing party.
d. Policy: Necessary when insufficient memory. Can trigger memory, closer to event. Not
refreshing memory though.

Chapter 16: Refreshing a Witnesss Memory

-Trial judges often allow parties to refresh a witnesss recollection by showing the witness a document or
other reminder. Once memory has been refreshed, the witness must testify from memory rather than reading
aloud from the document.
-Rule 612 allows parties who did not initiate the refreshment to inspect any document used in this manner, to
cross-examine the witness about the document, and to introduce into evidence portions of the document
related to discovery.
-Documents introduced under Rule 612 however, may only be used to assess a witnesss credibility; the jury
may not use them as independent evidence of matters asserted in the documents unless the documents are
also admissible under other rules. If a document admitted under Rule 612 is not otherwise admissible, the
judge will give the jury a limiting instruction directing them to use the document only to assess credibility.

28

II. C. Declarant Unavailable- Rule 804

Rule 804: Declarant Unavailable = Former Testimony, Dying Declaration, Statement Against
Interest, Statement of personal or family history, forfeiture by wrongdoing
For an 804 exception to apply, the Declarant must be unavailable

Proponent must first show & judge determine under Rule 104(a) that Declarant, through no fault of the
proponent, is unavailable
Rule 804 sets out five types of unavailability

Privilege: If privilege shields the witnesss testimony, then 804(a)(1) declares the witness unavailable
o To show unavailability, party usually most call the declarant to the stand and force to invoke
o In case of privilege against self-incrimination, usually obvious and dont have to call.
Refusal to Testify: Refuse to testify despite court-order to do so. May claim privilege court doesnt
recognize, refuse to testify because family member.
o Party must call to the stand. Often outside the juries presence
Lack of Memory: Court does not have to find that witness has actually lost memory, whether real or
feigned, witness is unavailable to testify about desired subject matter.
o Just lack of memory about subject matter of statement
o Party must call to the stand. Often outside the jurys presence
Death, Physical Illness, or Mental Illness
o Show death certificate.
o If illness, have to show not likely to recover within reasonable time.
29

Absence: Most common when the party cannot find the declarant after making a diligent search or
the declarant refuses to come to court and is currently outside the courts jurisdiction.
o Party must use reasonable means in addition to serving a subpoena to persuade the declarant
to attend the trial. (Example in civil trial of paying expenses)
o Proponent must use reasonable means to procure the declarants deposition if the declarant
will not attend the trial.
o Party must show that good faith, genuine effort to procure the defendants attendance

Wrongdoing Caveat: A party offering the witnesss out-of-court statement cannot cause the unavailability
through wrongful means.
Good Faith Attempt to Get Witness

Subpoenaed the witness and

o Civil Federal/Criminal cases: reach anywhere in US, civil-state (100 mile bulge)
Good faith effort to get witness there
o Designed to get witness to come (such as voluntarily pay for expenses)
o Heightened duty in criminal cases, all reasonable means
If proponent can foresee that the declarant will not be able to testify, should make reasonable effort to
depose the witness so opponent will have opportunity to cross during dposition

Proponent must then show and judge determine that Hearsay falls within one of Rule 804(b)s 5
Exceptions
1. Former Testimony: Rule 804(b)(1)= Must show declarant is unavailable and, testimony that
a. Was given as a witness at a trial, hearing, or deposition, whether given during the current
proceeding or a different one
b. Is now offered against a party who had or in a civil case- whose predecessor in interest had
an opportunity and similar motive to develop it by direct, cross, or redirect
i. Predecessor in interest: prior interest in litigation or who was otherwise in Privity with
a party
c. If witness is available, can be used to impeach with PIS or rehabilitate with PCS, but Rule
804(b)(1) offered for TOMA
i. Court can admit deposition testimony of unavailable witness under FRCP 32
ii. If prior testimony of party-opponent, admissible under 801(d)(2)

Declarant

Content of Statement
Context of Prior Statement

PIS by Witness- Rule 801(d)(1)

(A)
-Must testify at current hearing or
trial
-Must be subject to crossexamination concerning
statement
Inconsistent with current
testimony
Must have been made under
penalty of perjury
Made at any other prior trial,
hearing, or other proceeding or

Former Testimony- Rule 804(b)

(1)
-Must be unavailable

Any context
Must have been given as a
witness, which implies under
penalty of perjury
30

deposition

Made during trial, hearing, or

deposition, at which current
opponent (or predecessor in
interest) had opportunity and
similar motive to develop
testimony

2. Dying Declaration: Rule 804(b)(2)

a. Declarant must be unavailable
b. Admits only in civil cases and homicide prosecutions
c. Only admissible if they concern the cause or circumstances of the declarants death
d. Must belief that death is imminent (subjective)
i. Sincere belief that death will occur swiftly
e. Often qualify as medical treatment, state of mind, forfeiture
f. Rule 104(a): judge will determine whether declarant sincerely believed death was imminent.
Rely on statements by declarant, medical personal, nature of illness, length of time opinion of
medical personnel
g. Shepard: not dying declaration because made statement when appeared to be on path to
recovery, not impending death
3. Statement Against Interest: Rule 804(b)(3): Self-inculpatory statement if declarant is unavailable
and a statement that:
a. A reasonable person in the declarants position would have made only if the person believed
it to be true when made it
i. Was contrary to the declarants proprietary or pecuniary interest
ii. Had so great a tendency to invalidate declarants claim against someone else
iii. To expose the declarant to civil or criminal liability
b. Is supported by corroborating circumstances that clearly indicate its trustworthiness if it is
offered in a criminal case, as one that tends to expose the declarant to criminal liability
i. In criminal cases, statements made while in police custody are questionable as to
whether survives confrontation clause, not purely against interest
4. Forfeiture by Wrongdoing: Rule 804(6)
a. When declarant is unavailable as a witness
i. A statement offered against a party that wrongfully caused-or acquiesced in
wrongfully causing the declarants unavailability as a witness, and did so intending
that result
1. Must have intended to, and done so
2. Murder/intimidation/bribery, but doesnt have to be criminal (can be threats,
bribes, diversion)
ii. Courts tend to apply cautiously
5. Residual Exception: Rule 807: Residual catchall exception, must have
a. guarantees of trustworthiness equivalent to other exceptions
b. Be more probative on point than any other reasonably obtained evidence
i. To material point
c. Be in interest of justice, in accordance of rules
d. Preserved only if opponent receives notice
e. Not near miss exception

31

Chapter 57: Attacking a Declarants Credibility

A. Introduction and Policy
Rule 806 gives parties a way to attack a declarants credibility, whether or not the declarant appears as a
witness. The rule allows parties to impeach in any way recognized by Article VI (may show declarants bias
or incapacity, offer character witnesses to prove the declarants reputation for dishonesty, or show the
declarant has been convicted of crime admissible under Rule 609). Also, once declarants credibility has
been attack, can rehabilitate using Article VIs tools.
B. The Rule. Rule 806

Applies to all hearsay statements and statements and declarations made by an opposing partys agent,
spokesperson, or coconspirator.
o Doesnt apply to statements that are not hearsay
Allows party to attack declarants credibility by introducing any evidence that would be admissible if
declarant had testified as a witness
o Evidence of declarants bias, prejudice, or interest
o Statements made by the declarant that are inconsistent with hearsay statement (Rule 613)
o Evidence that the declarant lacks personal knowledge (Rule 602) or ability to testify truthfully
(Rule 603)
o Reputation or opinion evidence given by a character witness that the declarant is untruthful
(Rule 608(a))
o Any criminal convictions allowed by Rule 609
OMITS questions about dishonest acts on cross under Rule 608(b)
Once a declarants credibility has been attacked, the other party can rehabilitate the witness (offer
evidence rebutting allegations of bias, prejudice, incapacity, or interest; introduce consistent
statements; and call positive character witnesses
Allows party to present declarants inconsistent statements by declarant without giving declarant
opportunity to explain or deny (like under Rule 613)
Can impeach any hearsay declarant, even own
If a declarants out-of-court statement is admissible, then a party an introduce that statement without
subjecting the declarant to cross-examination

C. In the Courtroom
1. Statements that are not hearsay: Doesnt allow impeachment of a declarant under Rule 806 for
declarants statement offered for purpose other than to prove the truth of the matter asserted.
Doesnt apply to when court admits prior statement by a witness under Rule 801(d)(1) where declarant will
appear as a witness. Also doesnt apply to out-of-court statements made or adopted by an opposing party.
Wouldnt hurt own credibility.
Does apply to statements of opponents agent, spokesperson, or coconspirator.
2. Evidence of Specific Acts
United States v. Lawson
Defendant was convicted in the United States District Court for the Middle District of Tennessee, L. Clure
Morton, Chief Judge, of uttering and possessing counterfeit money, and he appealed. The Court of Appeals
32

held that where defense counsel cross-examined government witness to bring out that defendant had
consistently denied any involvement in the counterfeiting scheme, and introduced written statement in which
defendant denied all complicity in counterfeiting activities, defendant's credibility was made an issue in the
case, so that evidence of defendant's prior felony convictions was admissible on issue of credibility, even
though defendant never testified himself.

Part VII: Confrontation

Confrontation Clause Analysis
33

3 Confrontation Clause Questions:

1. Is it hearsay?
2. If it is, does it fall within a hearsay exception?
3. Is the proffered statement testimonial?
a. Declaration or affirmation made for purpose of establishing or proving some fact
b. Ex: formal statements during litigation, statements responding to police interrogation
c. Grand jury testimony testimonial
d. NOT testimonial: business records, statements in furtherance of conspiracy, defendants own
statements, statements admitted to prove point other than truth of matter asserted
e. Hard Cases:
i. Statements to law enforcement outside interrogation
1. Look to primary purpose if to establish or prove past events potentially
relevant to later criminal prosecution then its testimonial, if it has another
primary purpose like to enable police help in emergency then not testimonial
ii. Lab Reports
1. Testimonial if made under circumstances which would lead objective witness
to reasonably believe that statement would be available for use at later trial
2. Not testimonial if fails both Williams targeted individual standard & Justice
Thomass formality line
iii. Statements Among Private Parties usually not
4. If so, is the declarant available for cross-examination?
a. Satisfied as long as witness testifies under oath & responds to cross-examination, their
memory or knowledge doesn't matter
5. If statement is testimonial & declarant is not currently available for cross-examination, can the
prosecutor establish both that declarant is unavailable & that defendant had prior opportunity to
cross-examine the declarant?
a. Exceptions to confrontation statements that satisfied forfeiture exception, dying declarations
b. If no to all of the above then statement is excluded under the 6th amendment
If statement not offered for its truth then isnt hearsay and 6th amendment doesn't apply
Hypo: deposition, declarant cross-examined: still have to show that theyre unavailable
Governments burden to prove that defendant was unavailable
Factors to determine whether testimonial or non-testimonial

Primary purpose of interrogation

o Testimonial: Establish or Prove past Events potentially relevant to criminal prosecution
(Crawford)
o Non-Testimonial: Enable Police Assistance to meet ongoing emergency. Davis
Whether there is an on-going emergency
o Factors:
Wife in Crawford described past events. Victim in Davis was speaking about events
as they were actually happening
Nature of what was asked and answered when viewed objectively
o Crawford: Elicited statements were required only to learn what happened in past
o Davis: Elicited statements necessary to resolve present emergency
Level of Formality of Interview
34

o Crawford: wife calm while officer taped, statements long after events over
o Davis: victims answers given over phone in not safe environment. Victim in immediate
danger

Chapter 21: Hearsay and Confrontation

A. Introduction and Policy: Supreme Court, in its decision in Crawford v. Washington, ruled that the
Confrontation Clause established procedural rather than a substantive guarantee of cross-examination.
Under Crawford, a criminal defendant has the right to cross-examine any person who makes a testimonial
statement against him.
B. Confrontation and Crawford basics
-Out-of-court statements must satisfy both the hearsay rule and the Confrontation clause. Limits only
hearsay evidence offered in criminal cases against a defendant.
-Stemming from Sixth Amendment right for every criminal defendant: to be confronted with the witnesses
against him. Under Crawford= right to cross-examine people who make testimonial statements against him.
-Prosecutors Sixth Amendment obligations:

The prosecutor may introduce nontestimonial hearsay as long as those statements comply with the
hearsay rules. Sixth Amendment doesnt limit admission of nontestimonial hearsay.
The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules,
and the declarant is available as a witness. Defendant then has a chance to cross-examine.
35

If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may
offer the statement only if the declarant had a prior opportunity to cross-examine the declarant.

C. What Statements are Testimonial

-Statements that resemble in-court testimony, where bear testimony against the accused. Court has offered
several verbal formulas

Solemn declaration or affirmation made for purpose of establishing/proving some fact

Made under circumstances which would lead objective witness to reasonably believe that statement
would be available for use at a later trial
o Primary purpose of creating out-of-court substitute for trial testimony
o Primary purpose is to establish or prove past events potentially relevant to criminal
prosecution

1. Straightforward Cases
Testimonial
Formal Statements during Litigation: Sworn statements that occur before grand juries, at pretrial hearings,
during trial, and at post-trial proceedings.
Depositions, affidavits, confessions, and similar pretrial statements that declarants would reasonably
expect to be used prosecutorially: Crawford
Statements Responding to Conventional Police Interrogation: in response to interrogations by law
enforcement officers. Prosecutorial purpose of solving and prosecuting crimes.

Crawford: Wifes statement in custody at the police statement

Not Testimonial
Business Records: Supreme Court has noted repeatedly in dictum that many business records arent
testimonial. Created for administration, not for proving fact at trial. (Example of cell-phone records).

Some business records are testimonial because created for use at trial. These are already excluded for
a lack of trustworthiness under Rule 803(6) though. (Shoplifting offense notes)

Statements in Furtherance of a Conspiracy: Not made under circumstances to reasonably believe would be
available for trial, but only if made in furtherance of a conspiracy.
The Defendants Own Statements: No restrictions on defendants confession or other incriminating
statements.
Statements Admitted to Prove a Point Other than the Truth of the Matter Asserted: if not offered for its
truth, then doesnt testify to anything. (Phone call to show motive for retaliatory killing)
2. Hard Cases
Statements to Law Enforcement Outside Traditional Interrogation: Stationhouse interrogations versus
wife calling 911/guy telling police he stole my wallet

Primary Purpose of the interaction: If the primary purpose Is to establish or prove past events
potentially relevant to later prosecution=testimonial (Hammon case in Davis)
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o Wife giving battery affidavit because statements deliberately recounted in response to police
questioning how events happened. (Negative factors of shortly after attack, near crime
scene)
o Objectively viewed to see primary purpose to investigate possible crime
If another primary purpose, such as enable police assistance to upcoming emergency, then not
testimonial
o Talking to 911 operating saying the defendants name and accusing him of assault (Davis)
o Although to law enforcement, was speaking about events while happening; facing ongoing
energy and clearly a call for help; questions were necessary to resolve present emergency;
less formal and more frantic.
Bryant: police received call man shot. As officers arrived, asked him what happened, victim told
them that rick had shot him at house.
o Shooting was over, occurred several blocks from crime scene, repeatedly questioned victim
to get identification; asked for details of crime
o Police didnt know when or where had been shot; questioned to see if crime was ongoing;
seriously wounded so couldnt deliberately recount; questions was disorganized and not
structured. Majority found that statements were nontestimonial.

Lab Reports: Melendez-Diaz: lab reports (cocaine and amount of cocaine) were testimony statements
requiring cross-examination. Affidavit, for solemn declaration of establishing some fact, made under
circumstances that would lead an objective witness to reasonably believe statement would be available for
use at a later trial.

Bullcoming: BAC reports are testimonial. Testimony has to come from an analysist who signed the
certificate, or personally performed or observed the performance of the test.

Williams: (DNA swabs) changed everything up by introducing targeted individual and formality tests.

Lower court guidelines: A laboratory report is not testimonial if it fails Williams plurality targeted
individual standard and Justice Thomass formality line
o Targeted Individual: Accusing a targeted individual
o Formality: Notarized, certificate of analysis
If a report satisfies both the plurality standard and Thomas lime then it is testimonial
A highly formalized report, prepared under circumstances which would lead an objective witness
reasonably to believe that it would be available for use at a later trial, is testimonial even if it does not
accuse a targeted individual.
A lab report that accuses a targeted individual but not formal is also testimonial

Statements Among Private Parties: Supreme Court dicta strongly suggest that most statements among
private parties are not testimonial.
C. Availability and Cross-Examination: Declarant must be unavailable for Confrontation Clause to come
into play
1. Currently Subject to Cross-Examination: If the witness is subject to cross-examination in the
courtroom, the Sixth Amendment allows the prosecutor to introduce any hearsay statement by that witness;
doesnt have to be at the same time as a testimonial statement.

37

Availability for Cross-Examination (Owens): Witnesses who suffer real or feigned memory loss but
who respond willingly to questions on the stand are available for cross (similar to prior statement)
o As long as witness testifies under oath and responds to cross-examination
Witness who invokes a privilege in response to cross-examination usually is not available.

2. Unavailability and Cross-examination: If declarant is not subject to cross-examination, the prosecutor

must 1) prove that the declarant is in fact unavailable; and 2) Demonstrate that the defendant had a prior
opportunity to cross-examine the defendant.

Unavailability: good faith effort to secure witnesss testimony

Prior Cross-Examination: If defense did have opportunity to question the declarant, court must still
determine whether that opportunity sufficient to satisfy Sixth Amendment.
o Analogous to prior testimony under Rule 804(b)(1): similar motive

3. Exceptions to Confrontation

Forfeiture: Defendant must have acted with the specific purpose of preventing a witness from
testifying (Giles). Thats federal rule, but this exception applies to states forfeiture exception.
Dying Declaration: State courts have held that dying declarations require no confrontation- even
when statements were testimonial accusations to police officers.

D. Putting it all Together: Combining the Rules and the Constitution Out of court statements are
admissible only if they satisfy both the Confrontation Clause and the hearsay rule. Does not apply to civil
cases or to evidence offered by the Accused against the government.
Chart on pg. 729
Hearsay Exceptions that Never Raise Confrontation Clause Issues
Rule 801(d)(1): Declarant-Witnesss Prior Statement: Admissible only if declarant is on stand
Rule 801(d)(2): Opposing Partys Statement: Defendant cant confront themselves.
Rule 803(5): Recorded Recollection: Statements are admissible only if declarant is on the stand.
Rule 803(6): Business Records: Only testimonial records would be excluding for untrustworthiness
(prepared in anticipation for litigation); Public records must satisfy Rule 803(8)s more stringent standard
Rule 803(10): Absence of a Public Record: Absence of entry is not a statement. A witness who testifies
about a missing record is subject to cross-examination. Notice and demand procedure would lead to
prosecutor to offer live testimony. (Melendez-Diaz)
Rule 804(b)(1): Former Testimony: Admissible in criminal cases only if defendant had opportunity and
similar motive to cross-examine the declarant.
Rule 804(b)(2): Dying Declarations: Founding-Era exception that Supreme Court appears to have
grandfathered in.
Rule 804(b)(6): Forfeiture: Found-era exception. Defendant must have specifically intended to prevent
witness from providing evidence against him.
Hearsay Exceptions that Rarely Raise Confrontation Clause Issues
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Rule 803(4): Statements made for Medical Treatment/Diagnosis: Usually nontestimonial because to private
parties and/or for purpose of obtaining medical care. Exception includes statement though for purpose of
obtaining diagnoses related to litigation; identity of abusers could qualify as testimonial.
Rule 803(7): Absence of a Record of a Regularly Conducted Activity: Absence of entry is not a statement
but if a witness searches business records to provide evidence for the prosecutor, statement declaring the
absence of those records most likely is testimonial. Witness must testify life about absence of the records.
Rule 803(17): Market Reports and Similar Commercial Publications: If published by Law Enforcement
Rule 803(18): Statements in Learned Treatises, Periodicals, or Pamphlets: If specifically published by law
enforcement
Hearsay Exceptions that Regularly Raise Confrontation Clause Issues
Rule 803 (1) & (2): Present Sense Impression and Excited Utterances: When made to private parties,
probably do not raise Confrontation Clause issues. If made to law enforcement for primary purpose of
obtaining immediate aid, then satisfy the Sixth Amendment. But, when made to law enforcement for
primary purpose of creating evidence, trigger defendants confrontation rights.
Rule 803(3): Then-Existing Mental, Emotional, or Physical Condition: Under some circumstances, when
made to law enforcement that are gathering evidence for the prosecution.
Rule 803(8): Public Records: Many public records are testimonial, but exception already restricts admission
against criminal defendants.
Rule 803(16): Statements in Ancient Documents: Confessions, police reports, and other testimonial
statements do not lose their testimonial character with time.
Rule 804(b)(3): Statement Against Interest: Probably not to private parties, but those to government agents
often are. Especially when prosecutor attempts to introduce one perpetrators confession against another
participant in the crime.
Rule 807: Residual Exception: Before Crawford, courts often used this rule to admit grand jury testimony.

Part VIII: Expert Testimony

Lay Opinion
1) Is the witness testifying as an expert?
39

If yes, go to step 2
Is the opinion rationally based on the witnesss perception
o Is the lay opinion helpful to the finder of fact because it clarifies the witnesss testimony or
helps to determine a disputed fact

Expert Opinion
2) Is the witness qualified by her education, experience, knowledge, or skill to render an expert
opinion?

Does the experts opinion derive from personal knowledge, any information the expert learned in
preparation for testimony, or training and study?
Does the experts opinion rely on inadmissible evidence?
o Do experts in the field reasonably rely on these kinds of facts or data?
o Is the experts opinion based on sufficient facts or data?
Is the experts opinion the product of reliable principles and methods?
o Theory or technique underlying the expert testimony can/has been tested
o Controls and standards were maintained
o Theory subject to peer review and publication
o Known error rate
o Field of expertise claimed is known to reach reliable results
o Theory accepted in scientific community
Did the expert apply the scientific or technical principles correctly

Expert Witnesses give testimony based on their scientific, technical or other specialized knowledge
Frye Test whether principle underlying experts opinion was sufficiently established to have gained general
acceptance in the particular field
Daubert Test judges determine reliability of expert testimony, judges should consider these factors:
Whether theory has been tested
Whether it has been peer reviewed or published
Techniques error rate
Existence of standards controlling its application
Whether theory has been generally accepted in relevant scientific community
Rule 701: Opinion Testimony By Lay Witness
If witness is not testifying as an expert, testimony in form of opinion is limited to one that is:
(a) Rationally based on witnesss perception
(b) Helpful to clearly understanding witnesss testimony or to determining a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge w/in scope of Rule 702
Notes:
Experts are increasing staple at trial
Increasing role of district courts to examine expert testimony
Expert Testimony in Civil Trials
o 1st Expert Report under FRCP 26(a)(2) & (e)(1)
Requires them to show compensation, list of all other cases testified at
40

o 2nd Deposition of expert under FRCP 26(b)(4)(A)

Party may depose any person who has been identified as expert whose opinions may
be presented at trial
If Rule 26(a)(2)(B) requires report from expert, the deposition may be conducted only
after the report is provided
o 3rd Daubert Hearing
o 4th Expert Testifies at Trial

Rule 702: Testimony By Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) The experts scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) Testimony is based on sufficient facts or data;
(c) Testimony is product of reliable principles and methods; and
(d) Expert has reliably applied the principles and methods to the facts of the case
Rule 702 requires two types of reliability:
Reliable principles underlying experts approach
Reliable application of those principles to the facts of the case
3 Overarching Requirements:
Reliability
Relevance & Helpfulness
Source Persons Qualification as an Expert
The 3 Rs
Field of expertise well-grounded & Reliable
Experts opinion not speculative & based on sufficient & Reliable facts & data
Experts methods are well-reasoned & Reliable, Expert reliably applied expertises reliable principles
to sufficient & reliable facts & data
When Assessing Expert Evidence:
1. Is the evidence reliable, both in its underlying principles and its application to the case?
2. Does the evidence fit the case and help the trier of fact?
3. Even if the evidence satisfies these requirements, does the danger of unfair prejudice, confusion, or
misleading the jury substantially outweigh the probative value?
Daubert Hearing pretrial proceeding to evaluate expert witnesses, if not allowed then party may not lack
sufficient evidence to go trial
CH. 62: Qualifying Experts
How to qualify an expert Lay the foundation of their background, opposing counsel voir dires the witness
to test their credentials (and show limits to their qualifications), then judge certifies the witness as expert
Formalized education is not always necessary for an expert
Once Dauberts reliability, fit and Rule 403 requirements have been met, judge will certify them
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Opposing party can stipulate the witness is an expert

CH. 63: Bases of Expert Opinion

4 powers given to expert witnesses as compared to lay witnesses:
1. If experts testimony requires knowledge of other trial testimony, expert may remain in courtroom
even if judge excludes other witnesses under Rule 615
2. Experts are only witnesses who can certify docs as learned treatises under Rule 803(18)
a. Treatises may then be read to jury & considered for TOMA even though they are hearsay
3. They may state conclusions based on their special training or experience
4. Experts may rely on wide range of data including info such as hearsay evidence, that is not
admissible in court
Rule 703: Bases of Experts Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed. If experts in particular field would reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
But if facts/data would otherwise be inadmissible, the proponent of opinion may disclose them to jury only if
their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect
*Default rule is that expert may not disclose inadmissible info to the jury
3 Sources of Facts & Data for Expert to Render Opinion Under Rule 703
1. Experts First-Hand Observation, w/ opinions based thereon
a. Ex: Doctor examines plaintiff & renders medical opinion
2. Presentation at Trial
a. Expert attends trial, hears and sees all evidence & renders an opinion OR
b. Expert given hypothetical premises & asked to draw conclusion
3. Expert is given facts & data pretrial & then renders an opinion at trial (focus of Rule 703)
Inadmissible Facts & Data
Expert can discuss facts & opinion on direct only if all 3 safeguards met under Rule 703
On cross party opponent can open back-door and inquire about inadmissible facts & data
Safeguards to Prevent Party Backdooring Otherwise Inadmissible Evidence Through Its Expert
Trial court must first find that the facts/data are of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject
o Underlying data wont come in and the opinion itself wont come in
If so, judge can admit the experts opinion under Rule 703
If proponent also seeks to introduce the basis of the experts opinion, the trial court must find that the
facts/datas probative value in helping the jury evaluate the experts opinion substantially outweighs
the prejudicial effect (reverse 403 test) (how expert came to opinion rather than opinion itself)
o Evidence not coming in for truth, only for purpose of allowing jury to assess expert opinion
o Less prejudicial the techniques generally
o More prejudicial statements against accused, hearsay & confrontation clause concerns
If facts/data are admitted, then trial court must give a limiting instruction, upon request, of the
underlying facts/datas limited purpose to assist the jury in evaluating the experts opinion and not
be used as substantive evidence (TOMA)
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o Facts & Data admitted into evidence expert can discuss facts & data on direct
o Can show basis for experts opinion, for TOMA
Rule 705: Disclosing the Facts or Data Underlying an Experts Opinion
Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first
testifying to the underlying facts or data. But expert may be required to disclose those facts/data on crossexamination.
On Direct can just ask expert their qualifications & their opinion
On Cross expert may have to disclose those facts or data
Admitting underlying facts that are otherwise inadmissible
1. Party opposing expert always has right to ask expert to divulge the basis of her opinion during crossexamination
2. Party sponsoring expert tries to admit facts during direct
a. Party will argue that knowledge of underlying facts is essential for jury to understand &
evaluate experts opinion
b. Rule 703 directs judge to apply reverse 403 balancing test
3. If facts underlying experts opinion are themselves admissible, then parties may freely introduce
Daubert Analysis:
Are experts methods & techniques reliable in general?
o Whether technique or theory can be or has been tested
o Existence & maintenance of standards controlling the techniques operation
o If experts theory or technique is testable, what is known or potential rate of error of
technique/theory when applied?
o Has experts technique or theory been tested in the marketplace? Has it been subject to peer
review & publication?
o Has technique/theory been generally accepted in scientific community?
o Has experts technique or theories grown materially or directly out of research expert
conducted independently of litigation or developed expressly for litigation?
o Correlation does not mean causation
Has expert reliably applied methods & techniques to facts in this case?
o Any step that renders analysis unreliable renders experts testimony inadmissible
o This is true whether step completely changes a reliable method or merely misapplies that
methodology
Confrontation Clause Issues with 703?
If expert relies on out of court statement that is non-testimonial there is no 6th Amendment conflict
If prosecutor asks expert hypothetical question and expert basis opinion solely on facts stated in
hypothetical then there is no 6th Amendment problem
Split on a rule for this Williams plurality held that Cellmarks report was non-testimonial partly
because they believed the report was reliable, dissent stuck to Crawford (procedural guarantee of
cross-examination)
Problematic Expert Opinions
2. Prosecutorial discretion goes to issue of s guilt?
3. State of mind of one of the parties expert in no better position that jury
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4. Conclusory opinions
CH. 64: Limits on Opinion & Expert Testimony
Rule 704 removed the strict rule against testimony on ultimate issues, but courts continue to patrol
Rule 704: Opinion on an Ultimate Issue
(a) In General Not Automatically Objectionable. An opinion is not objectionable just because it
embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.
Notes:
Rules 403 & 701-702 judges have authority to restrict testimony that treads too far on the fact
finders role
The type of words experts use rather than the content of their opinions is what matters
Experts diagnoses of someones mental disorder does not express an opinion about defendants
mental state at the time of the crime
Court will reject probability evidence if it lacks a sufficient factual foundation, contains technical
flaws, distracts the jury from important credibility issues, or confuses the rarity of an event w/
probability of the defendants guilt may hold that testimony is unhelpful or unfairly prejudicial
Polygraphs
o Judges reluctant to admit when admitted its assumed that its correct, cant assess the
credibility of a test
Testimony About Eyewitnesses
o Expert may only describe general findings about eyewitness testimony
o Most courts allow expert testimony about eyewitness reliability only when circumstances
suggest that eyewitness identification is less reliable than usual
Expert Witness Must Possess Requisite Qualifications
1. Proponent must show that witness has:
a. Minimally sufficient skill/knowledge
b. Related to pertinent field or calling
c. That her inference will probably aid the fact finder in search for truth
d. **Dont need the best or most specialized expert in that field just the minimally competent
2. Proponent can establish witnesss expertise in that particular field through any of 5 routes cited in
Rule 702
a. Knowledge, skill, experience, training or education
3. Witnesss qualifications as an expert must be measured w/ respect to the opinions that the witness
seeks to give
Ways to Impeach Expert
Defects of Capacity
Contradictory Facts
Particular Attack on Witnesss Credibility
o Bias, Motive, Interest
o Prior Inconsistent Statement (Rules 613, 801(d)(1)(A))
o General Attack on Witnesss Character for Truthfulness
44

Prior Conviction (Rule 609)

Witnesss Character for Untruthfulness via Character Witnesss Opinion/Reputation
Testimony of Untruthfulness (Rule 608(a))

Impeachment Technique that is Unique to Experts!!

Expert Testimony: Treatises
Rule 803(18) Statements in Learned Treatises, Periodicals, or Pamphlets
A statement contained in a treatise, periodical, or pamphlet if:
(A) The statement is called to attention of expert witness on cross-examination or relied on by expert
on direct; and
(B) Publication is established as reliable authority:
o By experts admission or testimony,
o By another experts testimony, or
o By judicial notice (only when publication particularly well known & respected)
If admitted, statement may be read into evidence but not received as an exhibit
Show: Reliability, Written for professionals in the field, Can only be used with an expert witness
**Can be read into evidence but book itself not admitted
Notes on Rule:
Can use on direct to support a point
Can use on cross to point out treatise different from experts testimony
Either way party cant introduce treatise itself into evidence
o Witness may read portions of treatise into evidence but book itself will not be admitted
Exception to the hearsay rule allows jury to consider info read aloud for TOMA
Can accomplish two goals on cross-examination: disprove what the expert testified to by using a
treatise, and giving jury substantive evidence of what the truth is

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46

Part IX: Privilege

1) Does federal law apply to the substance of the case?

If no, according to Rule 501, any privilege from state federal law

Spousal Testimony
2) Is the privilege being asserted against an attempt to obtain a spouses testimony, deposition, police inquiry,
or other formal mechanism to extract information about the other spouse?

Is the couple currently married?

Is this a criminal case?
o Does the spouse from whom the adverse testimony is sough wish to testify
Does the potential testimony relate to a confidential communicate made between spouses while they
were married?
o Has the spousal confidential communication privilege been waived by
Inadvertent waiver, waiver because of testimony, joint participation in a crime or
fraud, domestic violence

Privileges
I.

Rule 501: Privilege in General

a. The common law as interpreted by United States courts in the light of reason and experience governs a
claim of privilege unless any of the following provides otherwise:
i. the United States Constitution;
ii. a federal statute; or
iii. other rules prescribed by the Supreme Court.
b. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule
of decision.

Spousal Privileges
I.

Federal Privilege Against Adverse Spousal Testimony

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a.

II.

Other details of privilege (vary from state to state)

i. Privilege only applies to statement that are actually adverse in some courts. There is not bar to asking
the spouse purely objective facts.
ii. Doesnt apply after a divorce.
b. Policy behind privilege
i. To prevent alienation of spouses. To not pit one spouse against the other.
c. When should privilege issues be raised?
i. Before trial whenever possible.
d. What time period does the privilege apply (Sham marriage concern)?
i. Majority:
1. Most courts say that to stay inline with the policy reasons of the privilege, then the privilege
protects communications that were both before and during the marriage.
2. If they believe the marriage is a sham, then the privilege just doesnt apply.
ii. Minority:
1. Privilege applies to communication before and during marriage.
2. If court thinks marriage is a sham, they sometime limit the privilege to apply only to
communications made during marriage. This helps prevent circumventing testifying by sham
marriages.
Spousal Privilege Protecting Confidential Marital Communications

a.

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b.
c.
d.

e.

Communication must happen during the marriage to be protected; however, communications made during the
marriage remain protected after the marriage. (your divorced wife cant screw you by telling your secrets in
court after divorce)
The interspousal communication privilege is recognized in all jurisdictions and usually applies to both civil and
criminal cases.
The biggest problem that surfaces with Interspousal privilege:
i. What constitutes confidential communications.
ii. Most courts hold that so long as the spouses take reasonable steps to assure confidentiality in the
communication, the privilege attaches.
1. So cant talk in front of other people and expect privilege to attach.
Joint Present and Future crimes exception:
i. The determinative point in time to determine Present/future is the time at which the communication in
question is made.
1. So if husband comes home and says I robbed a bank, that is a past crime.
2. If husband then ask wife if she can help him launder the money and she agrees, that is a
communication regarding a present/future crime in which the spouse is a participant.

Attorney-Client Privileges
I.

II.

III.

Policy:
a. Theory rests on 3 propositions:
1st
The law is complex and in order for citizens to comply with the law in the management of their
affairs and settlement of their disputes, they require the assistance of lawyers.
2nd
Lawyers cannot discharge this function without the fullest possible knowledge of the facts of
their clients situations.
3rd
Client cannot be expected to place the lawyer in the full possession of the facts without the
assurance that the lawyer cannot be compelled, over the clients objection, to reveal the confidences in
court.
b.

Exceptions:
a. When using Joint client exception, you need to have a joint defense agreement in place to ensure that
confidentiality is protected (i.e., that the other side doesnt disclose your clients CI).
Corporate Clients
a. Leading case on attorney-client privilege where client is a corporate entity is Upjohn Co. v. US, 449 U.S. 383
(1981).
b. Upjohn declines to articulate a test for all future situations, but outlines several factors where attorney-client
communication likely to be found in corporate context:

49

IV.

V.
VI.
VII.

i. Corporate employees communicate to corporate counsel who were acting in their capacity as counsel
for the corporation.
ii. Employees were acting at the behest of their corporate superiors.
iii. Communications were made to enable the corporation to secure legal advice from its counsel and the
employees were aware of this.
iv. Communications concerned matters within the scope of employees duties.
v. Communications were considered highly confidential when made.
c. When talking with company employees, you should always explain that you represent the company and not the
employee in his individual capacity.
Waiver of Attorney-Client Privilege
a. CLIENT can waive privilege by
i. Testifying about portions of the attorney-client communications
1. As my attorney advised me . . .
ii. Asserting as a legal defense the clients reliance on the attorneys advice
iii. Claiming ineffective assistance of counsel in habeas proceeding client waives privilege regarding the
attorneys strategies
iv. Alleging a breach of duty by the attorney
v. Voluntarily disclosing privileged communications to a third-party
1. Producing a privileged document to the government.
Rule 502: Attorney-Client Privilege and Work Product
Fed. R. Civ. P. 26(b)(5): Claiming Privilege or Protecting Trial-Preparation Materials.
Fed. R. Civ. P. 26(f): Conference of Parties; Planning for Discovery.
. . . (3) Discovery Plan. A discovery plan must state the parties' views and proposals on: . . .
(D) any issues about claims of privilege or of protection as trial-preparation materials, including if the parties
agree on a procedure to assert these claims after production whether to ask the court to include their
agreement in an order . . .

Rule 503. Lawyer-Client Privilege Exceptions

[Extension of 502: Not enacted, but courts still consider it]

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to
commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim
through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos
transaction; or
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his
client or by the client to his lawyer; or
(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which
the lawyer is an attesting witness; or
(5) Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the
communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of
the clients.

**Dont want to assist your client in breaking the law or destroying documents**

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X. Judicial Notice

Judicial Notice of Presumptions

I.
II.

III.

Judicial Notice:
a. See Rule 201
Presumptions (3 important things to know)
a. Rule 301. Presumptions in Civil Cases
i. In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption. But this rule
does not shift the burden of persuasion, which remains on the party who had it originally.
b. Rule 302. Applying State Law to Presumptions in Civil Cases
i. In a civil case, state law governs the effect of a presumption regarding a claim or defense for which
state law supplies the rule of decision.
c. What standard of proof applies?
i. ?
ii. ?
iii. Beyond a reasonable doubt
U.S. v. Microsoft Corp.
a. From a century of case law on monopolization under 2, however, several principles do emerge.
b. First, to be condemned as exclusionary, a monopolist's act must have an anticompetitive effect. That is, it must
harm the competitive process and thereby harm consumers. In contrast, harm to one or more competitors will not
suffice. The [Sherman Act] directs itself not against conduct which is competitive, even severely so, but against
conduct which unfairly tends to destroy competition itself.
c. Second, the plaintiff, on whom the burden of proof of course rests, must demonstrate that the monopolist's
conduct indeed has the requisite anticompetitive effect.
d. Third, if a plaintiff successfully establishes a prima facie case under 2 by demonstrating anticompetitive effect,
then the monopolist may proffer a procompetitive justification for its conduct. If the monopolist asserts a
procompetitive justification-a nonpretextual claim that its conduct is indeed a form of competition on the merits
because it involves, for example, greater efficiency or enhanced consumer appeal-then the burden shifts back to
the plaintiff to rebut that claim.
e. Fourth, if the monopolist's procompetitive justification stands unrebutted, then the plaintiff must demonstrate
that the anticompetitive harm of the conduct outweighs the procompetitive benefit.

51