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General Laws of Evidence and Evidence Outline


 You don't need to know this page to beat your speeding ticket. It is here for those that want to dig deep, rattle their brains and like to hit their thumb with a hammer.  when things get to deep for you, better yet!  - less painful.

EVIDENCE OUTLINE (some applicable to beating a speeding ticket - The rest - TORTURE)





I. Adversary System

A. We want the jury to make a rational decision- to use reason upon facts

B. Each party has an advocate

C. The trier of fact waits for the evidence to be introduced to them 

D. Inquisitorial System: Trier of fact is more involved in the gathering of evidence

E. A judge calls the balls and strikes in the courtroom

F. We may not reach the ultimate truth, but we want the trier of fact to look at all evidence, rationally weigh the evidence and impartially reach a conclusion that is satisfactory and rational. 



I. Law of evidence looks for:

A. Rational Evidence

B. Relevancy: Rule 401

1.   Must be logically relevant

2.    The piece of evidence does not have to make it more likely than not

3.   Test is whether the fact to be proved is more likely with this evidence- if it is, then it will be admitted

4.   The relevancy threshold is  very low;  key—Does the evidence advance the 



II. Rule: Our system is based upon a search for a rational solution to legal disputes, therefore, an

effort is made to present to the trier of fact only those things which have a logical bearing upon the dispute.  Only  “relevant” evidence is admissible. 


Rules 401, 402, & 403 are the cornerstone of the evidentiary system 

Rule 401: Definition of  “Relevant Evidence”


“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 


Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible 

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.  Evidence which is not relevant is not admissible. 


Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 


III. Relevancy v. Materiality

A.  Evidence that is offered to prove a matter not in issue is immaterial

B.   Evidence offered to prove an issue in a case but which in fact does not tend to    establish that issue is irrelevant

C.   Rule 401 includes materiality in its definition by requiring the evidence  to pertain to a fact “that is of consequence to the determination of the action” 


IV. Two types of evidence


A. Direct

1. Evidence that does not depend on any inference for its relevancy other than the

credibility of the witness through whom the evidence is presented to the court

2. Testimony of a witness that he saw the accused do the very act in question is



B. Circumstantial

1.   Evidence that depends for its relevancy not only upon the credibility of the witness but also upon an inference to be drawn from the evidence

2.   In some cases this may be stronger than direct evidence (dog prints v. didn’t see the dog)

3.   Problems of logical relevancy occur only with circumstantial relevance

4.   It must make the material fact with regard to which it is introduced more probable or less probable than without the evidence 


V. You are always worried about giving a piece of evidence more weight than it deserves 


VI. If a major premise is stronger and the possibility of prejudice is less, then it will usually be found relevant. 


VII.   Exclusion of Relevant EvidenceRule 403  -- although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury…. 

A.  “Substantially outweighed”  --Heavy burden on counsel opposing the admissiblity to prove it should be excluded

B.  For Direct Evidence you do NOT have to test the relevancy – no 401/403 balancing

C.  For Circumstantial evidence you must do the 401/403 balancing

D.  Key Concept:  as the probative value goes up the danger of prejudice goes down 


VIII.  Conditional Relevancy

A.  Rule 104(b): When the relevancy of evidence depends upon the fulfillment of a condition of fact,     the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition

B.  Example:  in a homicide case involving murder by stabbing, a knife found in the accused’s possession may be admitted into evidence provided evidence connection the knife with the crime is also introduced

C.   Bloody glove- if by itself it is not relevant, but if it can be connected to the defendant later, then it can be admitted on condition of later introduction of evidence tying the two together 


IX.  Financial Worth:  Poor v. Rich

A.  Generally, financial worth is not admissible;  there must be another reason for the introduction of the evidence

1.   Too prejudicial

2.    Logical relevance is weak

3.   Probability of misuse by jury is high

4.   If logical relevance is weak and possibility of prejudice/misuse is high, then you exclude


B.  Principles:

1.   Wealth: 

(a) If the only end is showing D is wealthy – NOT admissible; 

(b) If the issue is punitive damages—IS admissible

(c) Hall: Punitive damages

1. Punitive damages only awarded where it will hurt- have to look at net worth

2. Often wealth will be allowed in when punitives are involved


2.  Poverty:

(a) to prove person is generally poor therefore more likely to commit a crime ---NOT admissible

(b) to prove a specific reason or circumstance—IS admissible 


B.  Poverty :  Plumb poverty relevant b/c P had extended credit to D based on his belief that D was an agent ;  people don’t extend money to deadbeat  

1. Strong premise

2. High relevance

3.   Low possibility of prejudice 


VIII. Insurance

A.  Ability to pay usually has nothing to do with the case


B.   Rule 411 standardizes this idea


C.  Rule 411: Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

   1.  See Problem 7-3


 D. Under Common Law (without 411)

1. Ability to pay not a fact of the case

2. Premise that lack of insurance makes you negligent is pretty weak

3.  Prejudice is high


E. The fact that you are insured does not have much probative value


F. The probability of misuse by the trier of fact is great


G. When it is offered as evidence of something else it may have more value (ex. if you have insurance on an automobile, it may be used to show that you own an automobile)


H. Reed v. G.M.

1. There was a defense of ability-to-pay

2. Court said that the inability to pay was not material

3. The fact of insurance does not have independent legal significance

4. Insurance or lack of insurance not admissible to show ability to pay or to show negligence 


IX. Formalized Applications of the Relevancy Concept



1.    Rule:  proof of similar accidents will be admitted if sufficiently probative of issues in dispute

(a) The greater the similiarity of instances the more probative the evidence of the past incident and the less danger of unfair prejudice

(b)  Any difference may go to the weight of the evidence and its admissibility

(c) The burden is on the offeror to est. similarity;  may need expert testimony to attest to similarity

(d) You can use Rules 401-403 to make these conclusions or use Rule 404(b) (this  is usually used for criminal prosecutions) 


2. Collateral Issues:  Diamond Rubber v. Harryman:

a. Plaintiff trips and falls on “goose-neck”

b. Plaintiff seeks to introduce that other people have tripped on the goose-neck

c. Allowing proof of other instances may prejudice the jury

d. Allowing past tripping incidents in would not aid in determining whether or nor the obstruction was dangerous

e. The ct concerned that jury could get wrapped up in consideration of these other collateral issues 


3.   Dangerous Situation:  evidence of other accidents may be admittted to show that the situation as of the time of the accident in question was dangerous

  City of Bloomington v. Legg

1.   Ct allowed evidence of past use and injury regarding horse spout b/c it was relevant to show both dangerous condition ;

2.   Key: Strict requirement of substantial similarity of conditions :  the machine has to be in the same condition as it was at the time of previous injuries

3.    Ct is not as concerned about collateral issues b/c there is a greater similarity b/c past accidents 


4.   Knowledge/Notice:  evidence of other accidents may be admissible to prove that the D knew or should have known of the danger

  City of Bloomington v. Legg – the evidence of past use and injury also relevant to show notice

  Similarity requirement may be relaxed when what is sought to be shown is notice that D had that there was a problem 

(d)  Rebutting claim of impossibility :  when D has asserted that the injury sued for could not have been caused by D’s conduct as alleged, P may rebut by showing other similar occurrences 


5.   CanNOT prove a propensity of negligence through prior accidents- it is too broad and general


6.   Procedure

(a) Often there is a voir dire a hearing outside of the jury’s presence to determine the relevance of the evidence

(b) Motion in limine -- D asks judge for pre-liminary ruling on the evidence and asks to find the evidence admissible. 

  3 Possible Rulings:

1.   Admissible

2.   Inadmissible

3.   Judge refuses to rule and requires counsel to bring it up at trial then judge will rule on it 

  Unclear whether counsel has to renew the motion as trial;  new rules draft~ No, if judge gave clear ruling earlier. 


B.  Absence of Other Accidents (Safety History)

1.   Rule:  although courts generally have been more reluctant to intro. evidence of the absence of other accidents or injuries b/c of reduced probative value, the modern trend is to admit this evidence if sufficiently probative of questions such as the absence of the dangerous situation or the absence of notice


2.  Modern view:   Jones v. Pak-Mor

1.   They want to admit evidence of an absence of prior accidents

2.   The fear was that this evidence may not be too strong

3.   The defendant may not know of the other accident

4.   You must look at each case individually

5.   There must be a mechanism of getting reports of injury;  (ie)  product safety people tracking or gov’t supervision so injuries would be known if they happen. 


XIII. Prior Sales as Evidence of Value of Property


A.  Real Property- General Rule:  most cts will admit evidence of the sales of other real property to show value of disputed property provided that the sales of other tracts were sufficienty near in time and location and that tracts were sufficiently alike in character, situation, usability , and improvement to make them relatively comparable in value. 


1.   Redfield v. Iowa State Highway Commission

a. Ordinarily the value of property is established through expert testimony

b. In cross-examination the expert could be asked about other property

c. Some courts don’t allow this because each piece of property is different- this is really nonsense

d. The experts look at prior sales to make their determination

e. Someone must testify that other sales were similar

f.  If the property is not similar it will not come in

g. It is the same type of test used for prior accidents

h. The key is some evidence of similarity- the amount of similarity needed is determined by the trial judge in looking at relevancy. 


B.  Fungible Property—General Rule:  evidence of sale of other relatively, fungible personal property is generally admissible on the question of value of like disputed property;  evidences similarity not necessary here


C.  Unique Personal Property – General Rule:  unique items like works of art or antiques would be treated like real property and evidence of other sales would be admissible only in the presence of a showing of substantial similarity. 


XIV. Experimental Evidence 


A.  Rule:  evidence of experiments conducted outside of ct will be admissible in the discretion of the trial judge, subject to the riles governing expertt testimony and scientific evidence


B.  Similarity of Conditions:


  1. General Rule:  w/ regard to most experiments, the trial judge will ordinarily require that there have been a high degree of similarity b/t the conditions of the experiment and the conditions of the incident involved in the trial

a. Carpenter v. Kurn- 

  experiment designed to show negligence of train conductor was admissible even though one of conditions was different (instead of travelling 35-40 mph from a train so vision would be shaky, experiment conducted by standing on the tracks)

    Theory under which evidence came in – ct let the questions of lack of similarity go to the weight of the evidence

  Other cts will require strict similarity

  This was a close case on the issue of knowledge of train conductor


  1. When similarity not critical :  when experiment does not depend for its persuasiveness upon the similarity of conditions  (ie) an experiment is offered to rebut a claim that a result could not occur under any circumstance
  2. General Traits or Capacity:  the requirement of similarity of conditions is likely to be relaxed where the purpose of an experiment was only to show a general trait or capacity of a material, particularly when the experiment was conducted for the purposes independent of litigation

a. Foster v. Agri-Chem – ct held experiments not done for trial are admissible as long as they are similar b/c (1) free from taint of interest or bias (2) w/in trial ct discretion to determine if conditions sufficiently similar


C.  Contemporary Experiments:

  1.  lawyers can create a complete computer simulation instead of a live experiment (last 10yrs);
  2. the key is to get an expert to attest to the accuracy of the computer simulation

***  KEY:  for prior accidents, absence of prior accidents, value, and experiments is `SIMILARITY b/t condition/event and current condition/event;  the trial judge must decide whether the jury is going to use it appropriately or overuse it—too many collateral issues, efficiency, farirness??? 


I.  General Rule : Rule 404(a) Evidence of a person’s character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion

A.  Rule 404 is a specific application of 401/403

B.  In a civil trial, you may NOT enter evidence of character to show that the D did a certain act or has propensity to do the act

1.  Policy rationale

a.  probative value relatively weak –people do not always act in conformity w/ character

b.  Danger of prejudice is great

c.  Gets Ct into collateral issues

C. It does not preclude use of character for some other purpose provided that:

1.  It is relevant to that purpose

2.  That purpose is at issue in the case

D. Animials not subject to 404 : 

1.  Rumbaugh

a. With dogs you don’t get into the whole question of character

b. There is an instinctive nature of animals

c. You are not blaming the dog in a moral sense

d.   Less chance of prejudice 

II.  404 (a) (1)-(3) Exceptions  -- (All exceptions deal w/ Criminal Cases):

A.  404(a)(1)The accused in a criminal trial may offer evidence of a pertinent trait of his or her character and the prosecution may rebut that proof

B.  404(a)(2) Evidence of a pertinent character trait of the victim of the crime may be offered by an accused in a criminal case and the prosecution may rebut this proof

1.   Rape Shield Laws are an exception: Rule 412

2.   Rule 412 permits the use of only two kinds of evidence of sexual behavior by  the victim (Court must still weigh probative value against undue prejudice)

a. Behavior with other person which would explain signs of rape

b. Behavior with the accused which would tend to prove consent

C.  404(a)(2) The prosecution may offer evidence of a character trait of peacefulness of the victim of a homicide to rebut any evidence that the victim was the first aggressor

D.  Problem 8-17 Self Defense

1.   Prosecution cannot inject character trait first

2.   D can only attack character of victim if it supports D’s case  (ie)  victim is a violent person or a reputation of violence

3.   D canNOT enter in specific acts of violence as evidence

  Caveat:  specific acts may not be introduced for propensity but may go towards D’s state of mind and knowledge of victims previous acts which goes to reasonableness of D’s acts

4.   If D attacks victims character, prosecution can rebut w/ victim’s peacefulness—404(a)(2)

5.   If D attacks victim’s character, prosecution can bolster character of the victim but can NOT enter evidence of D character. 

III. Putting Character into Issue

A. In a criminal trial a defendant may elect to put his/her conduct “in issue”

B. The defendant has elected to show circumstantially that because he has good character

  traits it is less likely that he committed the crime 

E.   Once the defendant introduces the evidence, then the prosecution can rebut it

1.   Sometimes D will get on the stand to testify and will embellish to the point that it injects character into the case—Renneberg 

E. When this type of evidence is brought in we are only talking about opinion or

     reputation- you can NOT bring in specific good acts

E. Once a defendant testifies as a witness there are certain questions you can ask in order

  to look at credibility of the defendant/witness

F. You can test the knowledge of a witness by bringing up certain acts into evidence; this

  can be done in cross-examination

G. The court may say that even though it is an appropriate topic, it is too remote to be important

H. As a lawyer you want to be very careful when injecting a defendant’s character into a case- only do it if he is
  squeaky clean

I. You could try to get a pre-trial order to exclude a prior bad act-this would be a motion  in limine

J. When you ask for a motion in limine the trial judge may:

1. Grant it

2. Deny it

3. Do nothing- wait until trial

A.  If the judge waits until trials then you can either:

1.  Phrase questions carefully

2.  Keep character witness off the stand

3.   Anticipate cross-exam:  Take the sting out of the cross-examination by bringing up the bad things yourself. 

IV.  Methods of Proving Character : When Character is  NOT in Issue:  

A.  Traditional Rule: When character evidence is admissible but character is not in issue in the case (ex. evidence of good character offered by the accused as circumstantial evidence that he or she did not commit the crime) the traditional rule provided and some jurisdictions still hold that the only way in which character can be proved is by evidence of reputation

B.  Federal Rule: Under Rule 405(a) and in some states, the proof may be made by  testimony, either of reputation or in the form of an opinion

C.  Under Federal Rule 405(a), and in the majority of the states, inquiry is permitted on cross-examination of character witnesses with regard to relevant specific instances of conduct. In states limiting proof to that of reputation, question son cross-examination must usually be phrased in terms of whether the witness “has heard” of a specific instance of conduct

1.   If opinion – the cross exam is did you know?

2.   If reputation – the cross exam is have you heard?

D.  Evidence must still go through the 401/403 balancing

E.   Character Witnesses - Problems 8-15, 8-16

1.   Structure of Direct Exam

a. who the witness is

b.   how/what manner the witness knows D or knows his reputation

F.   Expert testimony on character is admissible under 404 and 405 (subject to 403 limitations)

G.  Testimony by minister on character is admissible under 404 and 405 (subject to 403 limitations)  

V.  When Character is Not An Issue: Evidence of other Crimes, Wrongs, or Acts

A.  404(b) – Other crimes, wrongs, or acts not admissible to prove character of a person but are admissible to show

1.   proof of motive

2.   opportunity

3.   intent

4.    preparation

5.    plan

6.   knowledge

7.    identity

8.   absence of mistake or accident

9.   Includes modus operandi (M.O.) 

B.  This rule is inclusionary;  evidence does NOT have to meet the exact categories listed but just canNOT go to show a propensity

C.  In ruling on the admissibility of evidence of prior acts, the ct will weigh the strength of the evidence of the prior acts and its relevancy to the issue against the possibility that the jury will be unfairly prejudiced (401/403 analysis)

D.  The prosecutor must use his/her imagination to get evidence in

E.    Issues to look at for 404(b):

1.   How much proof of prior acts do you need

a. Not beyond reasonable doubt

b.   Some cts require clear and convincing evidence

c. Some require a preponderance of evidence

2. Once you get it in do you weigh it

F.   Huddleston

1.  All that you need is some evidence from which a jury could make an inference

2.  It doesn’t have to be a conviction; you don’t need a preponderance of the evidence

3.  The court looks at Rule 104(b): Relevancy conditioned on fact- there must be  some fact fulfilled

4.  The court is probably right as a matter of law, but whether it is right as a matter of policy is another question

5.  104(b) is a simple relevancy determination

6.   Many states have refused to follow 104(b) determinations, instead they follow  104(a) determinations

7.   So long as there is some sufficient evidence it will come in

8.   Committee refused to revise Huddleston because the Supreme Court had ruled

9.   Huddleston is still the law in Federal Courts

10. Under Huddleston can get past crimes in generally if they rise to a pattern of conduct :

  Must have enough proof, indication that D involved in past crime in order to get it in under 404(b)

  Cts will take instances together that form a pattern and admit them all. 

F.   To introduce 404(b) evidence, prosecution must give notice to D by pre-trial notice

G.  Problem 8-11 Prior act evidence – Attempt to falsify motel registration

1.   Admissible under 404(b) to show absence of mistake/innocence as to the registration card

H.  S.Ct has held that it is constitutional and not double jeopardy to introduce evidence of past crime that D was tried and acquitted for;  some cts have found this kind of evidence inadmissible under 403

I.   Prior Sex Crimes

1.  Admissible under 404(b) specific purpose

2.  Sex crimes are treated differently

3.  Some courts allow any evidence of past sex crimes to come in in a sex crimes case- this is an exception to Rule 404(a)

4.   Rules 413-415 deals with sexual assault- these rules were proposed by Congress

  allow prior sexual misconduct in for propensity

5.   There are very few cases for sex crimes in Federal Courts- only Indian reservations

6.  Problem 8-14 --it’s a classic M.O. case -- the incidents tied together shows credit cards and attacks were linked

7.  Stipulating as to intent

a.  Hadley

  Sexual assault

  The state offered evidence of past sexual assault to show intent

  The defendant said that he was not contesting intent

  The court didn’t buy this

  Majority of courts say that intent is an element of the crime that the State has to  prove

  A minority of courts have said that defendant can stipulate that whoever did the crime did it with intent, so intent is no longer contested. 

V. Proof of Character for impeachment of witness purposes:

A. Character of a witness, including a party who becomes a witness may be

  attacked subject to rules of impeachment

B. Such evidence is admissible only for purposes of impeachment and not as

  substantive evidence

C.  There are different rules that govern introduction of character of a witness

1.   You can attack the character of a witness

2.    You can attack the bias of a witness

3.   In the Simpson trial they are trying to show racial prejudice; they can use some of the  tape to show that he was biased toward the defendant. 

VI.  When Character is an Issue: Character Evidence:

A.  Rule 405 (b)  Specific Instances of Conduct --If character or a trait of character is itself is an element of a charge, claim, or defense, proof of specific instances of that person’s conduct can come in

B.  Principle cases in which character is an essential element

1.   Defamation

2.   Negligent Entrustment

3.   Character of decedent in wrongful death case

a. Goes to show the amount of damage

b.   You must show what type of companion the person was 

4.   Child Custody

C.  Character itself can never be the issue in a criminal case so the only time its an issue is in civil cases

D.  Guerdon

1.   Evidence of past incompetence was admissible

2.    It was allowed to show that the employer was on notice

3.    The evidence goes to show that the employer was negligent

4.   Character was an element of the case

** Note:  the result in this case differs from what the result would be under the Fed.  

VII.   Three Ways of Proving Character:

A. Reputation

B. Opinion

C. Specific Acts 

  A&B can be used in all cases

  C can only be used when character is at issue

  In a criminal case when you can give evidence of your own character you can only use  ---A&B 


A.  Definition:  while character is a generalized description of one’s disposition, habit describes one’s regular response to a repeated specific situation

1.   Examples :  carefulness, carelessness

B.  Rule 406  -- evidence of habit of person or routine practice of an organization whether corroborated or not and regardless of the presence of eyewitness, is relevant to prove the conduct the person or organization on a particular occasion was in conformity w/ the habit or routine practice

C.   Eyewitness Rule

1.   The federal rules do NOT distinguish between cases in which there are eyewitnesses and those where there are not

2.   At common law, the eyewitness rule was an exception to the character rule

3.   Character evidence was allowed if there were no eyewitnesses (McFerrin)- if there was an eyewitness you could not admit evidence of driver’s habits

D.  Examples:

1.   In a stop sign intersection collision, evidence of D’s 6 citations and 4 accidents

----Probably NOT enough to show habit

2.   McFerrin case: 

Wife wants to give evidence of husband’s never crossing w/o looking both ways and stopping

a. This is a particularized crossing, particularized behavior, particularized response --- This is a Habit

b.   Vs.  the husband just being a careful person ---- This would be Character

E.   Proof of Habit

1. Opinion testimony

2. Specific Instances sufficient, in the discretion of the judge, to establish the habit 

F.   Why don’t we use character?

1.. Not very reliable

2. Fear of collateral issues

3. Undue Prejudice

4. Decreased probative value 

G.  Why do we allow habit?

1. Uniformity is increased; consistency is increased

2. More likely to act in accordance with habits than character traits

3. Habit is a particularized response to a repeated situation

4. How to resolve fuzzy line?- Is it a particularized response to a given set of specific circumstances?

H.  Different Types of Habits

1.  The courts will generally admit habits of drinking a specific amount at a specific time

2.  The court has not treated narcotics the same way- It is treated as a habit- isolated events may be enough

3.   Corporate habits generally come in 

I. See Problems 8-6, 8-9

XXI. Character summary

A. Civil Cases

1.   Not for propensity 404(a)

2.   If character is an essential element it may be introduced by opinion, reputation  405(b)

3.   Specific acts to prove something other than propensity 404(b)

4.   Habit 406--- Particular reaction, sufficient regularity

4. When you become a witness, character for credibility may be attacked 

B. Criminal Cases

1. Not for general propensity 404(a)

2. Defendant may inject own character 404(a)(1)

A.  Must be a pertinent trait

B.  Can use opinion or reputation

C.   Cannot use specific acts

D.  Prosecution may rebut

3. Defendant may attack victim in self-defense case 404(a)(2)

A. Talk about victim’s violent character

B. Can use reputation or opinion

C. Prosecution may rebut with evidence that victim is a peaceful person

5.   Credibility of witness—character may be impeached

6.   Pros. can bring in other crimes if not for propensity (ie) M.O. 404(b)

  May be introduced if for something else besides propensity

  Subject to Rule 403 balancing 

XXII. Summary of other issues

A. Problems regarding 404(b) application

1. Changing nature of intent

2. Sometimes intent not contested

3. General Intent v. Specific Intent- cannot stipulate out of specific intent crimes

4.  Huddleston

A.  Evidence sufficient for jury to find

B.   Series can be used together to show relevancy

C.   An acquittal does not constitutionally prohibit prior criminal acts from coming in

B. List in Rule 404(b) is not exclusive; if outside list use 401/403 test- must go to something other than propensity



Rule 404(a); There is a possibility of undue prejudice; Argument is that the character of the deceased is at issue because it goes to the damages she could get under the wrongful death statute 

First set

(1) It is admissible; the judge may exclude it on 403 grounds

   Tickets over the years not enough to be habit; 4-5 bourbons every day may be habit

(2) It is character proof- not admissible- not enough to show habit; there is a difference between   a generalized character of liking to drink as opposed to a habit of drinking a specific amount   and a specific time each day, week, etc.

(3) Courts are more likely to allow business practices to be habits; businesses often use habits; it   is also less likely to show prejudice; there is an issue of whether the habit shows anything relevant to the case- the evidence could show scope of employment; Eaton case 

Second set 

(1) Not relevant; it only establishes a general driving skill level; it is only a question of character

(2) Not relevant; Checking safety on brakes not relevant unless the issue is negligence in 

  checking brakes

(3) This is a habit; 

(A) The pertinent character trait: honesty- integrity; you have to lay a background that they know one another; ask if he has an opinion on whether Jonathon is honest; for reputation you have to ask if he has discussed the reputation with others; theoretically you do not have to know

the person personally

(B) You can inquire into the conduct of the accused in cross-examination; the rationale is that you are testing the knowledge of the witness 

A minster can testify (more like a lay opinion); The real problem arises with the psychologist (expert opinion); it may go to show violence or capacity; it may be an opinion- applies to lay opinion and expert opinion; must still weigh the probative value against the possible prejudice; judge may see a battle of experts rather than a battle of proof; proof from an expert is admissible in every state except N.C.

 (A) Not admissible, unless it may came in under 404(b)

(B) It is relevant as to the character of the decedent, because it is a self-defense case (Evens);  under 405(a) you can only show it by opinion or reputation not specific acts; could try to use  it to show knowledge of the accused that this guy would stab him- Rule 404(b)

(C) The accused has not put his own character at issue- it has only put the victim’s character at issue

(D) Admissible under Rule 404(a)(2)- it goes to show peacefulness The problem is that it goes to propensity; this is the real reason that it is introduced; even if they use it for a different purpose; most courts would admit this; it has two grounds: opportunity and knowledge- it also has a high probative value; it could only be kept out on Rule 403 grounds- these are rarely overturned These come in under Rule 413 or some part of Rule 404(b); the issue is the quantum of proof

You could look at them collectively- Woods; when they are put together it is unlikely that all of these are untrue; this is an application of Rule 104(b)- the acts taken together increase the relevancy. 


I. Admissibility of Subsequent or remedial measures

A. Common law reasons not to admit

1.   Evidence of subsequent repair not admissible because you want people to feel free to repair without worrying about being sued

2.   The policy of encouraging repair is a consideration outside of probative value and prejudice

B. Rule 407 : 

1.   repairs made subsequent to accident are protected

2.   protected b/c relative weakness of evidence vs. the prejudice

3.   also policy of encouraging repairs

4.   Voluntary recall is w/in the meaning of subsequent repairs

5.   Recall after sale but before accident is NOT protected by 407

6.   Does NOT include Involuntary Recall b/c the policy does not come into play; there may still be a 403 issue

7.   Follows same pattern of Rule 411 (insurance) evidence is NOT admissible to show negligence or wrongdoing but is allowed for other purposes

a. Example:  product made by another company; can be used as rebuttal for issue of control

b.   Can also admit for impeachment to attack credibility of a witness

c. Most common--for lack of feasibility- not feasible to make a better product  

8.   Grenada Steel Case

a. Rule 407 applies in strict liability cases

b. A new draft of 407 not yet out that says that strict liability is included

c. The question is whether recall is different than repair

1. This is usually stronger proof of something wrong

2. Recalls occur when:

 Liability outweighs 407

B. Gov’t forces you to recall

d.  Feasibility is really the issue

1.   Couldn’t do it because state of art: Not admissible

2.   But if say it is impossible and no one could do it: It is admissible

9.  Problem 8-24:  The measures taken had made locking impossible; probative value weak; possibility of prejudice is high; Rule 407 says that it is excluded  

C.  Rule 407 and public policy

1.  Rule 407 involves the relevancy of the public policy of encouraging repair

2.  Must look at how the admission of the evidence may affect public policy

3.  It may be allowed to show ownership, control, etc. (see Rule)- the probative value is greater and public policy reasons are less compelling

4.  It is based upon two theories

a.   Fact that remedial measures were taken has only slight relevancy as proof of negligence

b.   Introduction of such evidence will discourage repairs until after litigation is  over

5.  Evidence can come in to prove ownership or feasibility (if disputed) or for impeachment

6.   Some courts admit evidence of changes in products, recalls, etc. to prove the existence  of defects in strict liability cases (this is the minority view)

II.   Offers of settlement and Rule 408

A. Offers of settlement are NOT admissible to prove liability or nonliability

B. Weak theory of relevancy is overcome by public policy

C. We want to encourage settlement

D.  Under Rule 408, evidence of conduct or statements made in compromise negotiations is likewise not admissible to prove liability or nonliability

1.   This differs from the general rule

2.   General rule allowed statements of fact made during compromise to be proven  unless the parties had taken the care to describe their statement of facts as hypotheticals

E.  These rules only apply when this evidence is offered to show liability or nonliability

F.   Can be used to show bias or prejudice of a witness, negativing a contention of unduedelay or proving an effort to obstruct a criminal investigation or prosecution

G. This only goes to compromise of disputed claims- dispute is to validity or amount

1.   Some case hold that there has to be litigation before there is a dispute

2.   If you are not disputing an amount but are asking to pay less there is not a   compromise

H. Compromises involving third parties get the same protections

I. It is probably better to interpret Rule 408 broadly so that more compromise is  encouraged

J.   The federal rules include exclusion of statements made in the negotiation

K.   . If the statement amounts to an obstruction of justice it will come in 

III. Rule 410 and offers to plead guilty and withdrawn pleas of guilt

A.  These statements can come in prosecutions for perjury or false statements if made by the defendant under oath, on the record and in presence of counsel

B.  Guilty pleas are admissible always

C.  Non-guilty pleas are non admissible for character

D.  Plea bargains may be used against them if admitted guilt

E.   A plea of nolo contendere is generally NOT admissible

F.   Withdrawal of guilty plea not admissible

G.  Problem 8-25(A)

1.   agreement that charges will be dismissed w/ approval by judge

2.   “agree that will no longer engage in price fixing”

3.   can it be used in a civil case?

a.   if said to prosecutor then NO (encourages free flow of info and during plea stage

b.   however, if said in open ct then it is admissible since

4.   Since this statement was in public setting to judge, it is not protected by Rule 410

H.  Problem 8-25(B) :

1.   settlement offer made to dispose of info in civil case

2.   is it admissible under Rule 408?  NO

a.   policy encourages settlement in cases

b.   also want to encourage free flow of info

3.   408 would also apply to ct ordered mediation

4.   Problem w/ this scenerio

a.   No claim filed yet (cts have held as long as there is a dispute, then don’t need to file a claim

b.   Rule 408 does not apply in obstruction of criminal investigation or prosecution (ie) attempt to buy silence


I. Definitions:

A.  Real Evidence: Objects which actually play a direct role in the transaction in question

B.   Demonstrative Evidence: Objects which did not play a role in the transaction in question but rather are introduced for the purpose of making the facts more understandable. 

II. Sometimes both real and demonstrative evidence are referred to as demonstrative- most evidence in a court room is demonstrative. 

III. Real Evidence

A.  Rule:  real evidence is admissible only upon a showing that the object offered is the object involved in the controversy and that its condition is substantially unchanged

1.   The trial ct has broad discretion w/ regard to the sufficiently of the foundation 

B.   Readily Identifiable Objects

1.   Objects which have characteristics that are readily identifiable and which are relatively unchangeable (ex. revolver with a serial number)

2.    The court may admit these simply on the basis of testimony that it is the one in question and is in a substantially unchanged condition. 

C.  Objects difficult to identify

1.   Objects difficult to identify or subject to tampering or contamination (such as    narcotic drugs)

2.   Judge will require more foundation proof, usually in the form of a “chain of custody” demonstrating that it was improbable that the object was tampered  with or mixed with another object or substance

D.  These things are often stipulated to

E.   Gallagher  “cockroach in bride’s soda bottle” 

1.   In laying foundation for the receipt in evidence of the thing claimed to have caused the injury it is ordinarily sufficient for the witness having knowledge of the object to identify it; 

2.   To justify admission, counsel must show:

a.   that item in the bottle was the substance that it purported to be

b.   the substance is in a condition reasonably the same at the trial as it was at the time of the incident (no material change)

3.   The rule is not so rigid as to render things sometimes called “unique” inadmissible unless absolute continuity of possession and the absence of tampering are first established. 

IV. Demonstrative Evidence :

A.  Rule:   It is admissible in the discretion of the court if it finds the evidence sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact

B.  Example:  A bar fight in which X hits Y with a Bud bottle;  here it is not critical to get the actual bottle used in the fight;  can use any Bud bottle to demonstrate the kind of bottle used

C.    Maps, Models or Charts  :

1.   Common types of demonstrative evidence

2.   Admissible under the discretion of the judge

3.   Must be shown to be substantially accurate representation

4.   Often the scale is important

5.    A diagram not to scale can be authenticated

6.   When the scale becomes important you must show that they did it by the scale

7.   Anything a witness puts on a diagram must be noted in case there is an appeal

8.   Models :

a.   Cases are won and lost on the basis of exhibits shown to the jury

c.   Computer-generated models are used today

d.   So long as your exhibit re-creates things in a way that they are  illustrative you are OK

e.   You must lay a foundation of how it was done

f.    Most states let a jury take the exhibits into the room

g.   In NC you must have consent of the parties to do this; sometimes they  must come into the court to see the exhibits

h.   The judge may withhold exhibits if there is a strong possibility of     misuse

i.    No way to stop jury from fooling w/ model when its in the jury room so critical question is: should the model be let it. 

C. Duplicates :

1.   They may be admissible if the generic characteristics of the object are relevant and

2.   The testimony must confirm that the duplication of those characteristics are relevant and

3.   The testimony must confirm that this is actually a duplicate of those   Characteristics

4.   Example: Beer bottle of the same kind as found at the scene of an assault may be admissible as illustrative of the type of weapon used in the fight. 

D. Photographs, Movies, Videotapes and Sound Recordings:

1.   They are admissible simply upon a showing that they accurately depict a scene  as viewed by the witness

2.   The photographer does not have to be called as long as someone can testify as to the accuracy of the representation

3.   Some states admit sound recordings on the same basis:  the recording is admissible if someone who heard the conversation testifies that the recording is an accurate transcription

4.   Some states require more of a foundation with regard to sound, such as testimony that the recorder was in good working condition and the tape was not altered

5.   Photos are the most common type of demonstrative evidence- it illustrates the testimony of the witness

6.   A frequently occurring problem is the prejudicial photograph 

A.  Evansville Case: Boy in the casket

B.  Usually the fight is in criminal cases with pictures of the victim- gory photographs

7.   For photos you don’t need a chain of custody because the witness testifies that it is an accurate depiction of the scene

8.   Semet case

A. Problem was one of relevancy

B. There was no evidence that the ladder in the photograph was the same as the one in the case 

E. X-rays and Automatic Cameras :

1.   X-Ray are different because they portray a scene that is not actually viewed by anyone

2.   Ordinary foundation for photographs is not admissible-sufficient evidence of the process by which the X-ray was taken must be introduced for foundation

3.   Automatic Cameras/ Surveillance Tapes--get the same treatment

a.   Videotape not used to illustrate someone’s testimony such as an automatic camera raises problems because no one sees the crime

b.   This type of evidence is independent evidence

c.   It can be used as a silent witness- it speaks for itself

d.  You must authenticate the process- how the camera was set-up, etc.

e.  You must show a chain of custody

f.   Ordinarily these types of evidence are viewed first out of the presence of the jury 

F.  When to offer demonstrative evidence (there is debate)

1. Usual method

A. First lay a foundation, then offer it

B. Second, witness talk about it/ witness mark it

C. Offer it a second time

2. Some times you will not offer it into evidence

V. Experiments :

A. Rule: Experiments in court are admissible in the discretion of the judge with due consideration for the increased possibility of jury misuse and the potential for delay and confusion that such experiments may engender

B.  Re-Enactment Video: The question is whether the experiment is done in a situation that it similar

C. Ensor

1. Court looked at whether the experiment was unduly prejudicial

2. This was an in-court demonstration dealing with lack of capacity of child

3. Problems with these demos

A. Similarity

B.  Undue prejudice

C. Must know whether it will work (O.J. and gloves) 

VI. In all of these instances, the other side can still challenge the weight of the testimony 

VII. Views of the Scene :

A.  Rule: Under common law rules and by statute in some states, the trial judge has the discretion to order a view of some place or object relevant to the litigation

B.  The judge will consider the relevancy of the view as opposed to the delay disruption caused by a journey out of the courtroom

C.  Under the laws of many jurisdictions, the view is not itself evidence but is only to    assist the jury in evaluating the evidence

D.  Judges do not grant these very readily

E.   You usually get views in:

1.   Criminal Cases: 

a. Two major issues

  Time and burden

  Whether judge can control what goes on

2.   Condemnation and eminent domain cases

a.   in estimation of property value, the jury views the property and values it higher than the experts did – the jury’s valuation is accepted

F.    Sometimes the conditions may have changed- the question then becomes whether they have changed enough to change the relevancy

G.   Demonstrations at the viewing are within the court’s discretion

H.  An issue is who must be at the viewing

1.   General rule is that they can be conducted without the judge or the parties

2.    If there is going to be a demonstration the judge would be there

3.   In some states the parties have a right to be there as a matter of law

4.   Some argued that they had a right to be present at their own trial-  constitutionally it is ok if they are not there because a view is not evidence

5.   If it is not evidence, then what is it?

a. This has not been cleared up

b.  It is better to say that it is a unique kind of evidence

6. A view has some evidentiary value- a jury can use it for example to make an adjustment of a valuation for a condemnation 

VII.  Problems 

A.  Problem 10-1

1.   How do you deal with a substance that it subject to change?

2.   It is usually done by two witnesses- show how it got to the courtroom

a.  Witness 1 (Chemist): This is the envelope in which I placed the narcotics- envelope is sealed with name across seal; there is another envelope inside, opened by witness, what condition before then: sealed with signature- what did you do to it?  “I analyzed it”

b.   Witness 2 (Police Officer): Seized narcotics from suspect; sealed and gave to chemist; account for seal; one police has sealed and signed they can fed. ex., mail, etc.; as long as the seal is unbroken, the chain is unbroken

B.  Problem 10-3 

1.   Crowbars do not change in condition like narcotics

2.   The crowbar is lost

3.   Must only establish the relevancy of the crowbar

4.   Admissible for illustrative purposes

5.   The only time you would have a problem with this is if it is prejudicial under Rule 403; it has to be clear that this is not the thing itself 

C. Problem 10-5

1.   Photo of decedent w/ 2 yr old niece

2.   Issue:  403 problem misleading the jury

3.   May introduce photo to illustrate witness testimony and bring person alive—its up to discretion of trial judge 

D. Problem 10-7 :

1.   Automatic camera—silent witness

2.   Must lay foundation of the process—how video set up, operating properly, film was taken from camera and not tamepered with 

E.  Problem 10-10

1.   Goes to the introduction of models

2.   Need testimony it was prepared to scale –that is relevant; so that nothing about the model would mislead


I. Stipulation

A. In civil cases, virtually all documents are subjects of stipulation

B. You must know the rules so you know when to stipulate 

II. Authentication

A. Rule of No Assumption of Authenticity:

1.   The mere appearance of a name or signature on a writing or similar object will not be sufficient by itself to authenticate the writing as being what it purports to be—need a witness to say this is what it purports to be.

2.    Greater identification is required in order to guard against fraud or mistaken attribution

3. The written word is given heavy weight, so we must authenticate it 

B. Rule 901: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in   

question is what the proponent claims  (TEST:  for a writing to be admitted, must have evidence in record from which the jury could find authenticity.) 

C.  City of Randelman v. Hinsaw:  Writing introduced without any identification and read to the jury before petitioner presented oral testimony.  Such an admission constituted prejudicial error b/c not properly authenticated.  Before any writing will be admitted into evidence, it must be authenticated in some manner (i.e. its genuineness or execution must be proved).  Even a competent public record or document must be properly identified, verified, or authenticated by some recognized method before it may be introduced into evidence. 

D.  Conclusive evidence is not required 

E.   The sufficiency of evidence is within the discretion of the trial court 

F.   Once it is admitted, evidence challenging its validity can still be introduced by the other side to argue that it is a fraud 

G.  The ultimate question of validity is for the jury 

H.  Authenticity does not equate with admissibility; admissibility deals with whether it meets all of the other rules of evidence

I. Methods by which writings may be authenticated (it may be made by means of   

testimony that a matter is what it is claimed to be- these are examples)


  In civil cases, parties will usually stipulate to the authenticity of documents.  If deny authenticity, then better have a good reason.

  In criminal cases, will have more need to authenticate documents. 

1.  Direct Proof

A. Testimony of person preparing or signing the writing  See Prob 11-8

B. Testimony of a person who was present and saw writing signed

C. Introduction of an admission of a party-opponent with regard to the

genuineness of a writing

D. Identification of a writing as part of the regular records of a business

Ex:  Prob 11-8:  P was the only one who say Dirk sign it.  Could introduce the fact that P had conversations with Dirk about the letter and course of dealings with Dirk.

Ex2:  Prob 11-8:  Don’t have Dirk to identify his own signature, but have his secretary.  Sec could identify signature and how she knows it is his signature.  

2. Proof of Handwriting

A. Nonexpert testimony

1. Persons who have familiarity not acquired for purposes of this   litigation with the handwriting in question may testify  (Ex.  See

secretary example above)

2. See Rule 901(b)(2)

3.  Buckingham Corp. v. Ewing Liquors:  P was required to prove the execution, existence, and authenticity of the agreement before it was admitted into evidence.  IT is the rule that handwriting may be proved by a witness who shows familiarity with it.  The familiarity may be gained from having seen the party actually write, or from having been acquainted with the handwriting in the course of business dealings.  The extent of the witness’ knowledge goes to the weight to be given that person’s opinion. 

B. Experts

1.  May be authenticated through expert comparison with specimens that have been authenticated.  Other side can produce their own expert, but it does mean that it comes in and is for jury to decide.

2. See Rule 901(b)(3)

C. Comparison by Trier of Fact

1.   Proponent can authenticate specimens of the handwriting in  question and invite comparison by the trier of fact 

2.   US v. American Radiator:  In order for documents to be admitted, only a prima facie case of the alleged author’s identity must be established.  Where documents are admitted for purposes other than handwriting comparison, they may be used by the jury as a standard for handwriting comparison if the handwriting is admitted or proved to be that of the alleged author.  It is the trial judge’s duty to determine whether the genuineness of the handwriting on the documents to be used as the standard is sufficiently proven.

  (Part of a document authenticated, but the other part not.  Judge can eyeball and see if it looks enough alike and send it to jury to decide.  VERY RARE.)

3. Circumstantial Evidence

A. Rule 901(b)(4): Authentication may be made by proof of “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”

B. Reply Letter Doctrine

1. If a letter offered in evidence purports to be written by a person to whom an earlier authenticated letter was sent, and the letter offered in evidence either refers to or is responsive to the terms of the first letter, and there has not been an undue amount of  time between the two letters, it will generally authenticate the letter

2. Ex:  If sent D a letter ordering goods and got back letter specifically referring to letter, then sufficient to authenticate. But, modern times, if have response to telephone call, comes with in Reply Letter Doctrine.  Task is authenticate the call. Can be knowledge after the fact with calls, such as voice id-can match voice with info received afterwards.

C. Similar Applications

1. Telegrams and telephone conversations using analogy to reply letter doctrine

2. Sometimes a combination of events will be sufficient to authenticate a letter which refers to an earlier telephone conversation

3. Proof of the contents of the telephone conversation may be enough to authenticate the letter 

D. Custody

1. Proof that a public record or a writing required by law to be filed or recorded was found in the public office where such items are regularly kept

2. Similar proof with regards to corporate records may be allowed 

E. Ancient Writings

1. Proof that a writing has been in existence for 30 years or more, that it was found in place where,
f authentic, it would likely be, and that it is in condition to create no suspicion concerning
authenticity has been sufficient to authenticate the writing

2. Under Rule 901(b)(8) the age is lowered to 20 years

F.  US v. SuttonIssue:  whether four writings were sufficiently authenticated by their interrelated contents, the circumstances under which they were discovered, and a connecting note found on appellant’s person to qualify them for admission into evidence at his trial


1)   Ordinarily, documentary evidence possesses no self authenticating powers; unaided by an operable presumption, its reliability is not automatically presumed.  It is required that its genuineness be shown independently before it is accepted as proof.

2)   That the mere contents of a written communication, pruporting to be a particular person’s, are of themselves not sufficient evidence of genuineness.

3)   Authorship may be shown by circumstantial evidence, where the contents reveal a knowledge or other trait peculiarly referable to a single person, the contents might suffice alone, or where a document makes reference to facts peculiarly known to him.

4)   Test:  to determine error in admitting document is whether, if it is uncontradicted, a reasonable mind might (though not necessarily would) fairly conclude favorably to the fact of authorship. 

4. Self-Authentication

A. Writings generally held to be self-authenticating

1. Public documents under seal

2. Documents not under seal but which are certified under seal as genuine

3. Foreign public documents certified by a U.S. official

4. Certified copies of public records

5. Official publications

6. Certain types of commercial paper

B. Self- authenticating documents under Rule 902

1. Newspapers and periodicals Also, burden shifts to newspaper to show it was not their newspaper that got it wrong. 

2. Trade inscriptions

A.  Trade inscriptions (Kegan v. Green Giant Co.:  902(7) will be enough to self authenticate it.  If false can of peas, for example, company is in best place to show that.  Shifts burden to company). 

  Trademarks may present a problem

B. Now with trademarks and inscriptions it is enough to admit

C. If it is fake, the burden is on the manufacturer of the product- they are in a better position to tell 

3.  Documents acknowledged by a notary or similar official 

5. Authentication can be made by agreement of the parties or by use of requests for admission 

6.  What about unsigned document received in mail?  Cts generally have not permitted letter head authentication. 

I. Voice Identification

1. Oral Communications must be authenticated

2. Usually use voice authentication through the opinion of some person familiar with the voice

3.  Rule 901(b)(5): The voice may be heard firsthand or through electronic transmission

4. You can gain familiarity with the voice in preparation for litigation 

J. Telephone Conversations

1. May be authenticated by evidence that the number dialed was the number of the person or business called and
showing that person or business answering was the one called

2. Out-going calls: (SEE PROB 11-8) If you call and they say that this is “so and so” then it is enough to establish that it was them-if it is not them, the company is in the best position to establish that it was not them.  May be authenticated by evidence at the number dialed was the number of the person or business called and a showing of circumstances which demonstrate that the person or business  answering was the one called.

a.   With individuals, self-identification will be enough

b.  With a business it is enough that the conversation related to business reasonably transacted over the

3.  Incoming calls: Rule 901(b)(5):  must be authenticated by voice identification or through other circumstances such as those sufficient for a writing under the reply letter doctrine- Lynes case: He was looking for Speedy and Speedy replied by phone

4. To authenticate there only has to be prima facie evidence

K. Email:  Is circumstantial and identification of email by info came in, content of communication, email relationship.  Do not have to have a signature to authenticate.

L.   4 Rules for Documents:

1.   Must get document authenticated.

2.   Is it relevant?

3.   Is it an original?

4.   Statements in document may be hearsay—Town of 96 v. Southern Railway Co. 


III. Contents of Writings (Best Evidence Rule or Documentary Original Rule) 

A.  Rule: The best evidence rule applies only to writings.  Subject to numerous exceptions, when a party seeks to prove the contents of a writing, the original of that writing must be produced or must account for its absence.  Why? 

a)   Inaccuracy of person’s memory of words; concern for accuracy

b)   B/c document is so important with jury, we want to guard against fraud.

c)   There is a concern that things are copied correctly

d)  Written word has an important place in the law

e) You can better protect against forgeries if you have the original Application of Rule:  “Document speaks for itself”- show document to witness, authenticate signature, enter into evidence, publish to jury, read document to jury.  Can’t have witness talk about document before entered into evidence. 

B. General

1.  Only applied to writings and like objects where there is a need for precise information about contents

2.  Rule 1001: Writings, recordings, photographs, X-rays, videotapes and motion pictures are all included within the rule

3. Writings and recordings are defined as consisting of “letters, words or their  equivalent, set down by handwriting,  typewriting, printing, photostating, photographing, magnetic impulse mechanical or electronic recording, or other  form of data compilation

4. It is in the discretion of the trial judge as to whether it will apply

5. If a witness testifies that a document is accurate, then it is in effect an  original

6. If a witness is testifying as to what he saw, and coincidentally there is a video,  this does not involve the best evidence rule 

C. The rule only applies to proof of contents

1. Does not apply for anything which is introduced to show something about a writing other than its terms

2. Ex. Does not apply to evidence that a writing is in existence, or was executed or was delivered 

D. Applications of the Rule

1.   When the substantive law requires that a transaction be in writing, the original of the writing must be produced or accounted for under the rule 

2.  When the substantive law does not require that a transaction be in writing, the  party may elect to prove the
  transaction by evidence other than a writing. Even if a written record of the transaction exists, the original writing
  need not be produced in such instances

 EX:  1)  Evidence of payment of a debt may be given without production of  a receipt.

2)   A witness may testify to his version of an event even though he has also given a written statement about the event.

3. Even though the substantive law does not require production of the record, if a party attempts to prove the  existence of a transaction through reference to a writing, the original of that writing must be produced or accounted for under the rule

 EX:  1)  If a party seeks to show a receipt as evidence of payment, the original of the receipt must be produced or accounted for.

2)   If a party seeks to introduce the contents of a witness’ written statement about an event rather than having the witness testify independently about the event, the statement itself must be produced or accounted for. 

4. It does not apply to the absence of evidence- this doesn’t go with the policy  reasons of worrying about  mistransmissions- with absence, you are not looking at content under Rule 1002 

5.  Some courts will allow best evidence to apply to the absence of information  within documents

6. If a witness says that he examined the books and found nothing, it may be a  statement about the contents

7. Sometimes there is an original and it has disappeared; at that point are you compelled to introduce a copy or a
handwritten copy before using oral testimony? Answer: NO; Once an original has been destroyed in good faith it
is up to you what to use; there are no degrees of secondary evidence; if they are satestifying about seeing a
duplicate then it becomes the original for evidentiary reasons

E. Originals under the Rule

1. Rule 1001(3): An original of a writing includes not only the writing itself but any counterpart intended to have the same effect by a person executing or issuing it


F. Duplicates

1.   Federal Rules 1001(4) and 1003


2. Duplicates are admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or unless the circumstances are such as to make it unfair to admit the duplicate in lieu of the original.  Duplicates are defined as including carbon copies and various kinds of chemical, mechanical and photographic reproductions


3. Originally, the best evidence rule was used because people made hand- copies; Photocopies don’t
   make the same mistakes


4. If there is a genuine issue as to fraud then the photocopy may not be admitted


5. If a photocopy is poorly done, then there may also be a problem


6. Duplicate original: when every copy is intended to be an original (or copies are treated as originals if they fall within statutes such as the Federal Business Records Act.)


7.   Examples: 

a. In a case in which the issue is the interpretation of a K term, a photocopy, rather than the original, of the K may be introduced under the Fed Rules as if it were an original.

b.  In a case in which the issue is whether the original K had been tampered with so as to vary one of its terms, a photocopy could be introduced only if the proponent can provide a sufficient excuse for nonproduction of the original.


G. Tape Recordings

1. You can testify if he knows of the existence of the tape

2. The tape recording is coincidental to what went on

3. Anybody who was present can testify as to what went on

4. If you are not testifying as to what the tape says, then you can testify as to the    event


H.  Court Reporters Transcript of Trial:  Meyers p. 445  Party may testify as to their recollection. 


I.  Excuses which can be used for nonproduction of original (Rule 1004)


1. You don’t get to 1004 analysis unless you get past Rule 1003


2.  Rule 1004 gives the exceptions to the rule

A. Originals lost or destroyed: Rule 1004(1)

1. Destruction must be in good faith

2. Whether it is good or bad faith is a matter of discretion for the judge

3. This discretion is done under Rule 104(a)

4. As a trial judge it is hard to tell- it matters who has the burden    of showing good or bad faith.

5. When it is a question of good or bad faith, the party who was in     possession of the evidence has the burden of showing that it    was good faith

6. If the evidence was at a neutral site, the person trying to admit   the evidence will have the burden of showing bad faith


B. Originals not obtainable: Rule 1004(2)

1. Cannot be obtained by any judicial process or procedure

2. Ex. Original in a foreign country


C. Original in possession of opponent: Rule 1004(3)

1. At a time when an original was under the control of a party  against whom it was offered, that party was put on notice that

the contents would be a subject of proof at the hearing and he or  she does not produce the original at the hearing

2. The notice may be by the pleadings or otherwise


D. Collateral Matters: Rule 1004(4)

1.   Writing not closely related to a controlling issue

2.   EX:  In a case in which the P seeks to show that a telephone call was placed to a number listed for the D in the phone book, the Ct would probably find the phone book to be collateral and not require that it be produced.


E. Public Documents: Rule 1005

1. May be proved by a certified copy


F. Summaries: Rule 1006

1. Voluminous writings may be presented in the form of a   summary, so long as the originals are available for inspection

  by the opposing party

2.  A set of records, photos, etc. may be presented in the form of a   chart, summary or calculation

3.   The records examined must be originals under Rule 1003

4.   EX:  In a case involving a corporate dispute, an accountant may testify to or provide a summary of the corporation’s records without introducing the originals.


G. Admissions of Party-Opponent: Rule 1007

1.  Contents may be proved by the testimony, deposition, or     written admission of the party against whom it is offered


H. Under the Federal Rules, if the production of the original is excused, the party proving contents may prove them as he or she sees fit.  No requirement that you introduce a duplicate. 


J. Rule 1008: Functions of Judge and Jury

1. When issue depends on the fulfillment of a condition of fact, the question   whether the condition has been fulfilled is ordinarily for the court to determine   in accordance with Rule 104


2. However, the issue is for the trier of fact to determine when the issue is raised

a) whether the asserted writing ever existed, or

b) whether another writing, recording, or photograph produced at trial is     the original, or

c) whether other evidence of contents correctly reflects the contents


3. Selier v. Lucasfilm

A. Selier claims that Lucas stole the idea for a design of the Imperial



B. Judge finds that P hasn’t demonstrated a good faith destruction

C. Why doesn’t Rule 1008 apply?

1. Judge says no

2. There are not two competing documents

3. All that he has is his recreation of what the originals were

D. Rule 1008 doesn’t apply when someone recreates what a document   said


K. Introduction of a Contract (What does an attorney think about?)

1. Authentication

2. Relevancy- this usually takes care of itself

3. Best Evidence

4. Hearsay


L. You can ask for leave of court to enlarge a letter once it is admitted; Nothing counts   unless the jury reads it




Rule 901: Requirements of Authentication or Identification


(a) General Provision

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims


(b) Illustrations

By way of illustration only, and not by way of limitation the following are examples of authentication or identification conforming with the requirements of this rule


(1) Testimony of witness with knowledge

Testimony that a matter is what it is claimed to be


(2) Nonexpert opinion on handwriting

Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation


(3) Comparison by trier or expert


Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated


(4) Distinctive characteristics and the like


Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances


(5) Voice identification

Identification of voice, whether heard firsthand or through mechanical or electric transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker


(6) Telephone Conversations

Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A)in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone


(7) Public Records or Reports

Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept


(8) Ancient Documents or data compilation

Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C)has been in existence 20 years at the time it is offered


(9) Process or system

Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result


(10) Methods provided by statute or rule

Any method of authentication provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority


Rule 902: Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents under seal

A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, etc.

(2) Domestic Public Documents not under Seal

A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine

(3) Foreign Public Documents


See Rule

(4) Certified Copies of Public Records

See Rule

(5) Official Publications

Books, pamphlets, or other publications purporting to be issued by public authority

(6) Newspapers and periodicals

Printed materials purporting to be newspapers or periodicals

(7) Trade Inscriptions and the like

Inscriptions, signs, tags, or labels, purporting to have been affixed in the course of business and indicating ownership, control or origin

(8) Acknowledged documents

Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments

(9) Commercial paper and related documents

Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law

(10) Presumptions under Acts of Congress

Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic

Rule 1001: Definitions

For purposes of this article the following definitions are applicable

(1) Writings and recordings

“Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation

(2) Photographs

“Photographs” include still photographs, X-ray films, video tapes, and motion pictures

(3) Original

An “original” of a writing or recording is the writing itself or nay counterpart intended to have the same effect by a person executing or issuing it.  An “original” of a photograph includes the negative or any print therefrom.  If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original

(4) Duplicate

A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original


Rule 1002: Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress




Rule 1003: Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original


Rule 1004: Admissibility of Other Evidence of Contents

The original is not require, and other evidence of the contents of a writing, recording or photograph is admissible if-

(1) Originals Lost or Destroyed

All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith


(2) Original not obtainable

No original can be obtained by any available judicial process or procedure


(3) Original in possession of opponent

At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing


(4) Collateral Matters

The writing, recording or photograph is not closely related to a controlling issue


Rule 1005: Public Records

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilation in any form, if otherwise admissible, any be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original.  If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given


Rule 1006: Summaries

The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation.  The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.  The court may order that they be produced in court.


Rule 1007: Testimony or Written Admission of a Party

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original


Rule 1008: Functions of Court and Jury


When the admissibility of other evidence of contents of writings, recordings or photographs under these rules depends on the fulfillment of a condition of fact, the question    whether the condition has been fulfilled is ordinarily for the court to determine in accordance with Rule 104.  However, when an issue is raised a) whether the asserted writing ever existed, or

b) whether another writing, recording, or photograph produced at trial is the original, or c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.





a) all he has to do is identify his signature- he doesn’t have to remember anything about the letter

b) ask her how long she worked there; have her testify that she had opportunity to know his signature and that this was actually his signature

c) by showing the normal course of sending letters you can try to show that business was transacted based upon these letters; this would help show that they are not fake; if you don’t have anybody that can identify the document, the particular circumstances may authenticate; the circumstances of the phone call and the response may help; you could try to call Mr. Apple; You must establish that he had dialed the number and reached Cargon; the fact that he said “this is Allen Dirk” is enough to establish that it was him; First, authenticate the call.  Second, establish that the letter refers to the content of the call; this is similar to the common law reply letter doctrine




It is not likely that this is a forgery or a fraud




He is testifying to the contents of something; there is an original out there




He can testify if he knows of the existence of the tape; the tape recording is coincidental to what went on; Anybody who was present can testify as to what went on; If you are not testifying as to what the tape says, then you can testify as to the event




1) The circumstances under which the documents were destroyed and copied gives rise to issue of possible tampering

2) Any time you are looking at a sequence of documents it may be better to see the original; the order of the documents is significant in this case; you may want to look at whether someone tampered with page numbers, etc.; you could also look at Rule 1004


The best thing to show is that the person doing the destruction had no knowledge of the case or issue; the court would probably exclude this evidence; you cannot use Rule 1006 because the documents are not covered under 1003, 1004; if the original documents were destroyed in good faith, either the duplicate or oral testimony could be used




How get around best evidence rule? (Rule 1008)  Conflict in documents and both purport to show original document so let both come in and let jury decide who was telling the truth.



I. Qualifications of Witnesses

A.  Common Law Rule: Witness must feel a duty to tell the truth and must have  intelligence enough to make it worthwhile to hear him or her (witness must have the intelligence enough to understand the nature and obligation of the oath.)

EX:  In a case involving the sexual abuse of a four-year-old, the Ct will conduct a hearing outside the presence of the jury to determine whether the child is competent to testify.  Based upon that hearing, the judge will determine whether the child fees a duty to tell the truth and whether she is sufficiently intelligent and mature to make it worthwhile for the jury to hear her.


B. Federal Rules

1. Rule 601: Every person is competent to be a witness, except that when state    law supplies the rule of decision, the competency of a witness is to be

  determined in accordance with state law

2. Every person is deemed to be competent

C. The witness needs to be able to communicate- most problems can be dealt with    by translation

D. A child who cannot speak, cannot testify

E. Common law rule is still used

F. If they are not competent then there is a problem of undue prejudice

G. You put a witness under oath, to emphasize the importance of the duty

H. Under the Federal Rules (601), you can use a 401 and 403 analysis to look at relevancy and undue prejudice of the testimony

I.  Can the court order a psychiatric evaluation of a witness

1. The general ruling is that there is an inherent power of the court to order an evaluation of a witness

2.   Court loathe to do this; it is too great of an invasion

3.   Any time subject person to an evaluation, must have a GOOD reason.


J. Parties in the case

1. At common law, they were not seen as competent witnesses

2. This has been done away with

3. One vestige of this is that if you have two parties and one dies, the second

party cannot testify (Dead Man’s statute)  The estate of the dead person can keep the opposing party from testifying about a transaction with the deceased. 

4.   This is a basic notion of fairness- the dead person cannot give their side- the    

  statutes have become enormously complex

5.  Limitations:  If the opposing party’s own testimony (about a transaction with the deceased) is essential to prove his claim, the estate can defeat that claim by barring the opposing party’s testimony, but only the opposing party (and in some states other interested witnesses) can be prevented from testifying.  Any other witness can take the stand and prove the claim. 

6. In NC this applied to transactions and occurrences; this made no sense; later it  was limited to transactions

7. Dead Man’s statute is now part of Rule 601; there is no federal Dead Man’s    Act-varies from state to state.


K. Some states that one spouse is incompetent to testify against the other- there is a   trend to eliminate this


II.  Sequestration of Witnesses

A. Lawyers are afraid that witnesses will listen to other witnesses and adapt their    testimony to that of other witnesses


B.  There is the ability to ask the court to sequester witnesses- once you make the motion it is mandatory under the Federal Rules; in state courts it is discretionary

C.  If invoked and the witness is present where should not be, then barred from testifying.

D. The exceptions are under Rule 615 (number 3 is not often litigated)

(1) A party who is a natural person

(2) An officer or employee of a party which is not a natural person designated as  its representative by its attorney

(3) A person whose presence is shown by a party to be essential to the presentation of the party’s cause

(4) A person authorized by statute to be present (enacted after OK City bombing to let families stay.)

E. In a criminal case, number 3 will often be a police officer

F. If a case has a lot of publicity it is hard to have an effective sequestration


III. Forms of Questions on Direct Examination (General)

A.  RULE:  The trial judge has the discretion to control the form of direct examination of witnesses in order to facilitate the clear and expeditious presentation of evidence


B. Witnesses may be interrogated on direct examination either by:

1. Succession of questions about specific facts

2. Narrative questions

A.  General question asking the witness to relate a sequence of events

B. There is nothing inherently wrong with them

C. They don’t allow for objections- this may be a problem so sometimes prohibited b/c of the danger that the witness will relate incompetent evidence before opposing counsel has an opp to object.

D. You often see these questions for expert witnesses- “Doctor, will you    explain that to the jury?”

E. You can jump in and object to a narrative questions- you would have to    ask that the testimony be stricken from the record- if it is too

  prejudicial you can ask for a mistrial

F. If you ask a question and the objection is sustained you have to let the

judge know what the answer would have been in case there is an  appeal- this is an offer of proof- you could do this at side bar; you

    could ask the jury to be excluded and then ask the question


C. A narrative question is sometimes prohibited by the trial judge because of the danger   that the witness will relate incompetent evidence before opposing counsel has an

opportunity to object


IV. Leading Questions

A. A leading question is one which suggests an answer to the witness

1. The examiner is in essence testifying and you want the witness to testify

2. Many judges don’t care- atty’s use leading questions all of the time

3. It is probably better not to use leading questions because it is good for the jury   to hear the witness use her own words

4. The best way to avoid leading questions is to set a scene, figure out who was   there and then go chronologically


B. Leading questions should not be asked on direct examination--Rule 611 (c)

C. The rule is discretionary with the judge


D. Almost all questions are leading to some extent

E.   The extent to which the rule will be enforced will depend largely upon the degree of   the suggestion and the importance of the answer to the trial

Some leading questions are overlooked by counsel if the issues are not contested.  (moves trial along)  But, when get to a critical point, then will hear objections.


EX:  “What happened then?”  This is not a leading question, but still could have an objection b/c it is a narrative.  Why?  If witness has infor that may be inadmissible, then will object to the narrative b/c can’t anticipate when he will testify as to the inadmissible stuff.  Judge usually buys this, but is discretionary on part of judge.


Don’t want questions to look coached, so better advocacy is to let the answers come from the witness and not be leading questions.


F.   Objections for Leading Ques must be made before the witness answers the question.  Once witness has answered, it is too late.  Then, you must object to the question and move to strike.  If so damaging, then may need to move for a mistrial.  The objection and the motion must be made timely.


G.  Offering the Proof:  RULE 103(a)(2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the ct by offer or was apparent from the context within which questions were asked.

Must make the offer of proof if want to preserve it for appeal.  Ways to offer proof:

a. Jury excused and witness testifies as to the excluded evidence (prob:  takes a lot of time)

b.   Sidebar:  conference between lawyer and judge without jury.

c. If witness permitted to answer, then she testifies and that is the offer of proof.  Lawyers should insist on the offer of proof.


H. Exceptions

1. Preliminary and Foundational Matters

A. Name and address of witness

B. Undisputed time and place of the incident

C. A question that merely calls the witnesses attention to a topic will be    nonleading

D.  Foundational:  Show witness an exhibit and ask: “Is this a fair and accurate Description of the scene?”


2. Children and others having communication difficulties

A. Children

B. Persons of less than average intelligence

C. Those who don’t speak very much English


3. Memory Exhausted

A.  Witness must testify in response to nonleading questions that his/her memory is exhausted


4. Adverse Witness

A. Adverse parties and certain other persons may be called as witnesses    and examined by leading questions (Cross-examination)

B. See Rule 611[c]

5. Hostile Witness

A. Witnesses declared by the court to be hostile may be examined by leading questions

B. Trial judge should look at whether the relationship between the witness

  and the examining attorney is such that the witness is unlikely to be

  susceptible to suggestions made by the examiner

C. It is up to you to establish the hostility of the witness

D. It is a discretionary ruling by the court

E.  EX:  A neighbor or acquaintance of a party, although not considered to be a witness identified with an adverse party, by reason of hostility or reluctance in answering non-leading questions, may be declared to be hostile.


I. There is a distinction between leading questions and argumentative questions


V. Refreshing Recollection

A. Rule: Examining counsel may show a writing (or other thing) to a witness for the    purpose of refreshing the recollection of a witness

B. In most jurisdictions there is no requirement that the writing have been prepared by   the witness or that it may be in any way identified with him, so long as, after   reviewing it, the witness can testify that he now remembers the matter in question

C. No present recollection

1. The question of whether the witness’ recollection is in fact being refreshed by   the writing is within the discretion of the judge

2. Some courts require the witness to first testify that he or she has no present   recollection of the matters in the writing

3.  Other courts require a statement by the witness that the writing may assist him    or her in giving testimony

D. Speaking independently of the writing

1. Some court require that the witness, having reviewed the writing, must then   speak independently of it

2. Other courts rule that the matter is discretionary and that the witness may be    permitted to consult the writing when testifying particularly when it is lengthy

3. Courts usually permit professional witnesses such as experts or police officers     to testify from notes


C. Must distinguish “Present Recollection Refreshed” from “Past Recollection Recorded”

1. Present Recollection Refreshed

A. Lawyer showing the witness something that is jogging his memory

B. The document is irrelevant- it just helps to recall

C.  He can be cross-examined about his present recollection

D. There are no evidentiary requirements- the only requirement is that the   other side can see it- Rule 612

1. This allows you to prepare for cross-examination

2. You must make sure that the show t to the other side or that they

  already have a copy

3. It is unclear when you have a right to see it

E. The document is hearsay and cannot be admitted into evidence except    by opposing counsel

F. The writing is merely a stimulus to memory


2.  Past Recollection Recorded

A. It is an exception to the hearsay rule

1. Rule: If a witness testified that he once knew facts which he

cannot now remember and that those facts were correctly

recorded in a writing which he made or adopted, the statements

of those facts from the writing are admissible as an exception to

the hearsay rule

2. Recorded statements in the writing are the evidence and should be read into the record


B.  This is saying “I remember the document that I prepared”

C. When they are shown the document, you have to lay a foundation for the admission of the document- Rule 803(5)

D. Must be made or adopted by the witness when the matter was fresh in he witness’ memory

E. It may raise issues under the best evidence rule

F. Witness must have “insufficient recollection to enable the witness to testify fully and accurately”

G. If you prepare a list that summarizes a document, the document is part of the exception, but the list is not

D. Inspection by Opposing Counsel

1. If a witness uses a writing to refresh his or her memory while testifying,   opposing counsel has a right to inspect that writing, to cross-examine the    witness with regard to it, and to introduce any relevant portion of it into


2. Under Rule 612, the same rights exist in regard to a writing used before

  testifying “if the court in its discretion determines that it is necessary in the

  interests of justice”

3. Protective Orders: Protective orders are available with regard to matters in  writings not related to the subject matter of witness’ testimony

4. Jencks Act: Rule 612 does not apply to statements of gov’t witnesses

5. If a list was memorized, it should still go to the opposing counsel

6. If the witness is using a sheet prepared by counsel, the other side probably does   not have to have it- work product privilege (this also goes for a mock

testimony on video)


Opinion Rule

I. Requirement of Knowledge from Observation

A. A lay witness may not testify to a matter unless evidence is introduced sufficient to    support a finding that the witness has personal knowledge of the matter...”(Rule 602)

B. This is not the same as the hearsay rule-unless there is an attempt to relate the     statements of others, the proper objection to testimony based on such statements is

  absence of first-hand knowledge

C. The use of phrases such as “I believe” will not exclude testimony unless it appears that    the witness is speaking from conjecture

D. It is acceptable to rehearse with a witness

E. Hypnosis

1. It is a common technique to get someone to remember what occurred in the    past

2. There is a nearly unanimous rule that it is excluded

3. It gives you a sense that you are remembering things- however, it gives you a  false memory- you fill in the details- they have no basis in truth

4. When the witness wakes up, they believe the thing happened

5. When it first was used courts said three things

A. Let jury decide- go to weight rather than admissibility (if it only goes    to weight you have a real 403 problem)

B. Hypnotist may have been unduly suggestive

C. Exclude- this is done now

6. The witness may testify to those facts that have been disclosed prior to   hypnosis

7. People v. Zayas: relies on idea that hypnosis is generally not accepted


II. Opinion Testimony of Lay Witnesses

A. Rule 701: If the witness is not testifying as an expert, the witness’ testimony in the     form of opinions or inferences is limited to those opinions or inferences which are


(a) rationally based on the perception of the witness

(b) helpful to a clear understanding of the witness’ testimony or the determination of a   fact in issue


B. Opinion refers to an inference or conclusion as distinguished from a statement of fact

C. General Exceptions

1. Inferences may be permitted when it is not practicable to place before the jury   all the primary facts

2. May be allowed if the inference is only a short-hand rendition of the facts


D. Strickland Transportation Co. v. Ingram

1. Lay witnesses can only testify to those things that they have sensed

2. You must put the witness at the scene

3. Must be first-hand knowledge

4. There was nothing in the record to indicate what the basis of the knowledge    was

5. Rule 602

A. This is a trial rule

B. The lawyer force the other side to put the witness in a position

  To have seen the event

6. Once it is shown that the witness was at the scene it is less likely to be    overturned on appeal


E. Jackson v. Leach

1. Witness was put at the scene and was looking in the right direction

2. He testified as to speed

3. He testified as to speed, but he only saw the car for a short time

4. Rule: There must be sufficient opportunity to testify to what you are testifying   about

5. Courts usually let speed in as an opinion- you need to have enough opportunity   to observe

6.  The reason that it is let in is the second part of Rule 701- it is helpful to a clear   understanding of the witness’ testimony or the determination of a fact in issue

7. The witness is expressing his statement as tightly as he can in MPH

8. You can explain in a helpful way what a car was doing so the jury can make its   own conclusions (you could not say that you think they were driving drunk-     this is an application of Rule 701)


F. Parker v. Hoeffer

1. Illustrates the “collective facts”, “congeries of circumstances” or “shorthand  rendition”

2. As a general rule, witnesses are to state facts and not give their inferences or   opinions

3. There is an exception to say that he appeared “fine”, “worried” or “intimate”


4. We usually permit witnesses to talk in normal terms- they can make some     inferences

5. It may not be possible to express it in any other form


G. Krueger v. State Farm

1. Castelli gave his rendition of the facts- the jury could make an inference

2.  There was no need for a short-hand rendition

3. Courts tend to admit statements of the driver about what they would have    done- there is some intangible quality to this

4. Castelli was not the driver so he could just tell the facts- no need to make an   inference


H. Summary

1. If there is a perception and it will help the jury it will usually be permitted

2. It is a matter of preference

3. The tendency is usually to admit if it is related to certain human characteristics

4. A lot of it involves discretion by the trial judge


5. Lay opinion as to sanity

A. Lay opinion as to mental condition is currently admitted in almost all  jurisdictions

B. Usually you must give a recitation of the facts to say that someone is insane- must say why they appear insane

C. No matter how powerful scientific evidence is, it is up to the jury to determine the weight


III. Expert Testimony

A. Subject Matter and Qualifications

1. Rule 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise

A. It is a two part test:

1. Is it the appropriate subject matter for expert testimony

2. Is the person qualified by reason of background to give an expert opinion- qualifications are not subject to much dispute

A. You may still put out credentials if you don’t need them- it will build up their weight with the jury

B. You need credentials to:

1. Get them admitted as an expert

2. Build them up to the jury

C. Academic credentials standing alone usually won’t be    enough

D. Personal experience is often sufficient



2. Subject Matter

A. The subject of the inference must be so distinctly related to some     science, profession, business or occupation as to be beyond the ken of     the average layman

B. The test has not been so rigidly applied as to exclude expert testimony    on a question on which the jurors may have some general knowledge    but on which they may still receive some assistance from an expert


C. Alexander

1. Rule 702 admits expert testimony if it will assist the trier of fact

2. The defense seeks to bring in experts to compare the photos  from the camera with other photos

3. No one questioned the ability of lay people to make these    comparisons

4. The trial court said it was an opinion appropriate for lay persons   but not an expert

5. The jury is capable of doing it themselves- it would not assist  the jury

6. You would be turning the expert into an expert observer

7. The court is not giving the expert a stamp as an expert

A. Some courts give an expert a stamp of approval

B. This probably gives experts more credence than they     deserve

8. The Ct. of Appeals said that it should have been admitted-  ordinarily this doesn’t happen- the Ct. of Appeals said it would   be helpful (this is the test)


D. Eyewitness Testimony

1. It is frequently said by experts that eyewitness testimony is not   credible

2. Court generally only admit this testimony when there is a single    eyewitness-otherwise, courts say it is a waste of time


3. Qualifications

A. The courts generally have a great deal of discretion in deciding   whether a particular person offered as an expert has sufficient learning    or experience to qualify under the rule


B. Bases of Opinion Testimony by Experts

1. Rule 703: The facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by or made known to the

expert at or before the hearing


2. Three Bases for an expert opinion

A. Facts Perceived by the Witness


1. The expert witness may give an opinion based upon facts which

that expert has perceived

2. There is not a need for a hypothetical question with regard to  such opinions


B. Facts in Evidence at the Hearing and Made Known to the Witness at or

  Before the Hearing

1. Can do this by means of a hypothetical question or by having  the expert attend the trial and listen to testimony

2. Under Rule 705 these two methods are not required

A. Theory is that the jury needs to know what the

   testimony is based on

B. Hypothetical questions were becoming too long and

  involved- they lost any advocacy purpose

3. The expert can base his decision on facts in evidence at the trial    even if he has not attended the trial and the facts are made    known to the expert by counsel outside the courtroom


C. Facts or Data Reasonably relied upon by other experts

1. Rule 703: If of a type reasonably relied upon by experts in the    particular field in forming opinions or inferences upon the     subject, the facts or data need not be admissible in evidence


3. Disclosure of basis to jury

A. Before (Hypothetical)[court may require]

B. After

C. Cross-examination

1. This is probably not the best advocacy

2. You probably don’t want to bite on this on cross-examination

4. Many lawyers sill use hypos to summarize what the basis is

5. It is up to the trial lawyer how the basis is disclosed  

6. Under Rule 705 the court may require the basis to come out prior to testimony-

this is rarely done- it may be done if there is a serious challenge to the basis


C. Form of Expert Testimony

1. Rule 705: Expert may testify in terms of opinion or inference and give reasons    therefor without prior disclosure of the underlying facts or data, unless the   court requires otherwise

2. The expert may in any event be required to disclose the underlying facts or   data on cross-examination


IV. Opinions on the Ultimate Issue of the Case

A. Rule 704: Except as otherwise provided, testimony in the form of an opinion or   inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact

B. Old rule was that neither experts nor lay witnesses could give an opinion on an   ultimate issue

C. The opinion must still help the jury under Rule 701 or 703 to be admissible

1. Due to this, opinions which are based on the witness’ interpretation of the law     are usually excluded

D. Exception (Rule 704)

1. No expert testifying with respect to the mental state or condition of a  defendant in a criminal case may state an opinion or inference as to whether the

defendant did or did not have the mental state or condition constituting an

element of the crime charged or a defense thereto

2. These ultimate issues are for the trier of fact alone

3. May testify to the accused’s mental illness, but not to the applicable test for   criminal insanity

4. This was done to stop experts from going back and forth (really in response to    Hinkley case)

5. Psychiatrist cannot testify to exact characteristics of a legal rule- they can   testify to characteristics and effects of a mental disease

6. The jury can make the jump to legal test

7. Psychiatrists like this because they can use their own terms, not legal terms


E. Carr v. Radkey

1. The issue was whether she had the capacity to write the will

2. The trial judge was concerned that this was an ultimate issue in the case

3. Using an expert could lead to trial by expert

4. Appeals court was concerned that there a lot of issues that could be ultimate    issues

5. Federal Rule 704(a) allows opinions on ultimate issues

6. Only a bar with regard to mental state in a criminal case


V. The court does have the power to appoint a neutral expert under Rule 706- Lawyers don’t like this




Rule 601: General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules.  However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.


Rule 602: Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.  This rule is subject to the provisions of Rule 703, relating to opinion testimony by an expert witness.


Rule 611: Mode and Order of Interrogation and Presentation

(a) Control by court

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (2) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.


(b)Scope of cross-examination

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.  The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.


c) Leading questions

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.  Ordinarily leading questions should be permitted on cross-examination.  When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.


Rule 612: Writing used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of Title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either-

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.  If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitle thereto.  Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.  If a writing is not produced or delivered pursuant to an order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.


Rule 615: Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion.  This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or 93) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.


Rule 701: Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ testimony in the form of opinion or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness


(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue


Rule 702: Testimony by Experts

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience training, or education, may testify thereto in the form of an opinion or otherwise


Rule 703: Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular filed in forming opinions or inferences upon the subject, the facts or data need not be admissible.


Rule 704: Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. These ultimate issues are for the trier of fact alone.


Rule 705: Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.  The expert may in any event be required to disclose the underlying facts or data on cross-examination.


Rule 706: Court Appointed Experts

See rule


Rule 803(5): Recorded Recollection

A memorandum or record concerning a matter about which a witness once had knowledge but know has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.





You may want the jury to see the questioning for competency so that the jury can take it into account in order to judge her credibility; Most courts do this outside the presence of the jury; common law rule was a matter of discretion for the judge; a problem is that there was no oath; this is part of the testing; when you get to the point that he child is essential to the case, you will see more leniency by the court; this makes it difficult for the Defendant because it is difficult to cross-examine a child; there are other methods to allow the child to testify: out-of-court statements, closed-circuit T.V., etc.



The language in Rule 615 seems to say “a” person


12-9 (alternative)

A) the question is leading; if you say “whether or not,” it may be allowed; it is a question in the alternative; depends on the judge; see State v. Scott

How might you phrase it?

1) Tell what happened?

This may lead to narrative answers- the problem with this is that it makes it hard to object

2) Ordinarily you pick an uncontroverted time- At 3 o’clock where were you?

The best way to do it is to set a scene


B) These questions cross the line into argumentative questions- it takes a fact and contests it- all that you are doing is arguing with this witness



First ask questions having to do with the other side to show that he is hostile



A) The opposing counsel has a right to see it, it is not clear when, however

This is a past recollection recorded; he recorded the dates and is reading from it; most judges will let expert witnesses testify with their notes because they have a lot to deal with; this also goes for police officers





I. General

A. Scientific evidence may be offered in a case as a means of obtaining:

1. Specific data (ex. use of microscope to see things not visible to the naked eye)   or as a means of evaluating

2. The significance of data (testimony of a chemist as to the significance of a   particular chemical test)

B. Scientific is almost invariably introduced through an expert and is thus subject to the     rules governing expert testimony

C. There are instances when scientific proof is essential if you are going to get to the jury

D. In a medical malpractice case you need to talk to an expert about the standard of care


II. Frye rule (old rule)

A. Evidence of a scientific principle is inadmissible unless the principle has gained    scientific acceptance

B. Many courts followed this rule

C. It was difficult to know which group had to accept it and what has to be accepted

1. Most courts just pay lip service to the general scientific acceptance test

2. What does “general” mean?- all scientists; a school of thought; scientists in the   U.S.

3. General acceptance of what?; whether it can be done; whether it is accurate

D. Many courts have know implicitly adopted a different approach which treats scientific    evidence under a relevancy examination

E. Many courts would admit the evidence if they were comfortable with the area of    science- blood tests, chemical tests, etc.

F. With polygraphs and spectrographs the court is not used to the evidence and will look    more at acceptance

G. There is nothing in the Federal Rules that requires general acceptance- the rules that  cover this are Rules 401 and 702


III. Toy v. Mackintosh

A. Need expert to show causation- not standard of care

B. Most scientific proof is subject to controversy

C. What causes problems are novel scientific techniques


IV. People v. Kelly

A. Deals with voice prints and spectrographs

B. An analogy was made with these to fingerprints

C. The Frye test was used- Frye dealt with a polygraph

D. The test was whether it was generally accepted in the particular field in which it     belongs


V. Federal Rule (Daubert v. Merrell Dow)

A. Daubert fully supplanted Frye

B.  The Court held that scientific evidence is admissible if it assists the trier of fact under Rule 702 and meets the relevancy standards of Rule 401-403

C.  The issue in Daubert is whether the medicine caused the birth defects

D. How is the determination made

1. The first thing the Court looks to is scientific validity

A. Validity is a 702 test of helpfulness

B. What do you look to:

1. Whether the scientific theory or theory can and has been tested

2. Whether it has been subject to peer review and publication

3. Potential rate of error of the technique and existence and  maintenance of standards controlling the technique’s operation

4. General scientific acceptance can have a bearing, but it is not  controlling

2. It also has to be reliable so that it fits the facts- this goes to relevancy

A. Does scientific theory have any relevancy to the case; is there a fit

B. Must be done correctly (Martinez)


E. Rehnquist

1. Concurs in part and dissents in part

2. He agrees with rejecting Frye

3. He thinks it should be worked out in the lower courts

4. Judges are not scientists

F. Daubert was remanded and the court again sustained the summary judgment under the   new test

1. The court said that there was no showing of validity and no showing of causation

2. Lack of causation was not enough to establish a preponderance of the evidence

G. The new test is still very conservative as was Frye


VI. State v. Bowler

A. Circumstantial evidence case- murder

B. Footprint- part of evidence

C. Called a Doctor of Anthropology as an expert

1. Had developed a technique for determining identity of person leaving footprint

2. Dr. used form rather than ridges

3. No on else in the U.S. doing this- some in Europe

4. He had published it

D. The NC Supreme Court accepted it 10 years before Daubert 

E. Court looked to these factors

1. Impeachable credentials

2. Published result

3. No contrary indications of false results of this test type


4. Technique independently produced- not for litigation

5. Illustrated opinion/technique- used pictures, etc. so jury could follow and  actually check the work

F. There was no general accpetance because no one thought about it

G. The result is consistent with Daubert

1. Testable

2. Peer review

3. False data produced


VII. General scientific acceptance is still a good safe haven for junk science

VIII. The more technical the evidence, the more the scientific acceptance may be needed


IX.  Judicial Notice of Scientific Method

A. Most courts take notice of the general scientific principles behind commonly used types     of scientific proof

B. In these instances, the prinicple has achieved general scientific acceptance

C. Examples

1. Fingerpirnting, chemical drug analysis, firearm identification

2. Chemical tests for intoxication

3. Speed detection

4. Blood tests for identification and to determine non-paternity

5. Certain techniques for evaluation of questioned documents


X. Foundation of Proof

A. Even though courts will judicially note the scientific principles involved in the above   proof, foundation proof must be laid with regard to the particular application

B. Ex. The party offering the proof of a blood alcohol test result must intropduce proof   and qualifications of the person or persons conducting the test and show that the tests used on this occassion were carried out according to scientific theory


XI. Types of evidence generally excluded

A. Exclusion is due to prejudice

B. Types

1. Results of lie detector tests- parties may stipulate to admissibility

2. Statements made while under the influence of drugs or hypnosis

3. Voice identification- this is a little up in the air- usually excluded now

XII. Martinez

A. Application of Daubert to DNA proof

1. FBI agent testifying- highly qualified, strong credentials

2. Whether has been and can be tested

3. Peer review\ publication

4. Known rate of error?

5. Whether generally accepted? Yes

B. Conclude that they can take judicial notice of DNA profile reliability- dispense of need   for qualified expert


C. If you fall short of general scientific acceptability, you need an expert

D. Must establish

1. Scientific validity (may be established by judicial notice)

2. Reliable and correct application of technique


E. Part II of Martinez

1. Court excluded probability evidence

2. 1 in 2600 Native Americans

3. It just said it “fits the DNA profile”

4. The compund probability was less than .01%

5. The compound probability was excluded but it gave the impression that he was  the only possible suspect


XIII. Probability Evidence

A. Frequency of coincidence of characteristics

B. If expert can give evidentiary reasons relied upon by other experts showing percentage,     then expert can say compound probability theory

C. Courts universally allow parties to come up with percentage of frequency in population   at large

D. This is different than expressing the odds

1. There is a presumption that odds are based on estimates

2. Odds are a yes\no proposition

3. You cannot say that the odds are that this is the guy

4. The only place where odds are allowed is in paternity suits


XIV. Sneed

A. Mathematical odds not admissible to identify defendant in a criminal proceeding

B. Odds are based on estimates, validity of which has not been demonstrated

C. No reasonable basis for underlying determination- arbitrary probabilities

D. Testimony creates more certainty in minds of jurors than is deserved- increased chance   of prejudice

E. This is a classic relevancy determination

F. You can say “what a coincidence”, but not odds - it gives a false sense of certainty

G. Even if expert deducts combination probability you can still attack

1. Admissibility

2. Weight given


XV. Use of numbers

A. If you speak in numbers you need more certainty

B. You should put it into words- “Reasonable medical certainty”

C. Quantifying reasonable doubt

1. You cannot do this

2.   Mathematics do not apply in courtroom setting

3.   If you do this it is irrelevant because it becomes unduly prejudicial




I. Who may be impeached

A. Rule 607: The credibility of a witness may be attacked by any party, including the party     calling the witness

B. Party may attack his or her own witness regardless of the lack of surprise or positive   harm

1. Old common law rule required surprise\unexpected hostility or positive harm

2. Reasons for not allowing attack on own witness

A. Vouching for credibility as own witness

B. Power of coercion- if you don’t give consistent testimony

C. Most cases allow a party to impeach his or her own witness unless it is shown that the witness has been called as a mere subterfuge to permit the use of an otherwise inadmissible prior inconsistent statement for purposes of impeachment

D. A few cases have held that even under Rule 607, surprise and positive harm must be   shown- these cases reason that there can be no true impeachment unless these elements   are present and that the evidence should be excluded under relevancy considerations

E. To impeach you can show:

1. Prior crimes/bad acts

2. Bias

3. Prior inconsistent statements


II. Intrinsic v. Extrinsic Evidence

A. Intrinsic

1. Evidence brought out of cross-examination of the very witness being impeached

2. You can test memory

3. You must take the witness’ answer


B. Extrinsic

1. Extrinsic to the cross-examination

2. Any other evidence, including the evidence of other witnesses on the same point

3. You can bring extrinsic evidence in to rebut only if relevant to the case

4. You can bring it in to show bias (ex. Mark Fuhrman)


III. Contradiction

A. Evidence which contradicts a witness but which is collateral to the lawsuit and    introduced solely for the purpose of attacking the witness’ credibility may be brought out on cross-examination of the witness subject to the discretion of the trial judge

B. Other evidence (extrinsic evidence) with regard to collateral matters (such as the   testimony of other witnesses on the question) may not be introduced


C. Evidence is not collateral if:

1. It is otherwise relevant to the litigation


2. The evidence is of facts which would be independently provable by extrinsic    evidence to impeach or disqualify the witness, such as evidence of bias, interest,   conviction of crime, or want of capacity or opportunity for knowledge

3. The evidence concerns a contradiction of a part of the witness’ account of the     circumstances of a material transaction, about which, as a matter of human experience the witness would not have been mistaken if his or her story were  true


IV. Prior Inconsistent Statements

A. Admissibility for Purposes of Impeachment or as Substantive Evidence

1. This is the most common way to impeach a witness

2. It calls into question the truthfulness of the witness, regardless of the truth or    falsity of either of the statements

3. Under Rule 801(d)(1) prior inconsistent statements are admissible for     substantive purposes as well as for impeachment

A. You can introduce a witness for the sole purpose of entering the prior  inconsistent statement

B.  If the sole reason of calling a witness is subterfuge and there is no good  faith, then it will probably be excluded


B. Degree of inconsistency required

1. There must be a material variance between the statement and the testimony   given at trial


C. Subject Matter


1. Cross-Examination

A. The trial judge has wide discretion to permit inquiry into prior inconsistent statements on cross-examination regardless of the relevancy of those statements to the issues in the lawsuit


2. No extrinsic evidence of collateral matter

A. Where the subject matter of the prior statement is “collateral” to the    proceedings, the cross-examiner must “take the answer” of the witness

B. The cross-examiner may not bring on other witnesses to prove the   making of the statement

C. Collateral Evidence

1. Does not go to the facts in the evidence at trial or his bias

2. If it is collateral, cross-examination may be proper, may not be  proper but extrinsic evidence may not be introduced

A. Ex. Impeaching a witness over the clothes they were   wearing- mark Fuhrman says blue sweat suit and witness says green


3. Lynch-pin rule

A. There are some cases that say that if the truth of the testimony seems to turn on a particular fact the court will give the opposing party some leeway

B. If the evidence goes solely to misconduct it will not be admitted unless it    is the lynch-pin


4. Collateral evidence of  wrongful conduct short of a conviction will not be  allowed in


5. Bias

A. Evidence of bias of a witness generally requires strong proof- you are    not bound by the collateral evidence rule

B. You want the jury to look at the motivation of the witness


D. This is the most common type of impeachment


V. Necessary Foundation for the Introduction of Extrinsic Evidence of Prior Inconsistent


A. Federal Rule 613

1. The witness must be afforded an opportunity to explain or deny the statement

2. No time sequence is expressed

3. No foundation need be laid during cross-examination so long as the witness is    available to take the stand and explain the statement after it is brought out

B. Exceptions

1. The court has discretion to dispense with foundation under Rule 613

2.  Under Rule 806 and in most states foundation proof is not required with regard   to inconsistent statements introduced to impeach the credibility of declarants making statements under exceptions to the hearsay rule

3. Admissions of part of party-opponent

A. Under Rule 613(b) and in most states, foundation proof is not required with regard to admissions of a party-opponent, even though the party may also be a wintess in the proceeding

C. As a matter of strategy, most lawyers will confront the witness in cross-examination

D. If the inconsistency goes to the subject-matter of the case, extrinsic evidence will be   admissible; it will also be admissible if it goes to bias

E. It will not be allowed if it is a collateral issue- you can inquire in cross-examination, but   you cannot bring in extrinsic evidence

F. Anything not said by a witness on cross-examination is extrinsic evidence


VI. Necessity for showing prior statements to the Witness

A. In examining a witness concerning a prior statement made by the witness, whether    written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing  counsel- Rule 613(a)

B. Rule 613(a) eliminates the requirement imposed by many states that a cross-examiner    cannot ask a witness about statements made by the witness in writing without first showing the witness the statement and permitting him or her to examine it


VII. Using a treatise to impeach a witness

A. Originally the witness would have to recognize the treatise as an authority

B. The treatise is itself hearsay

C. The way of dealing with it is an exception to the hearsay rule- Rule 803(18)

D. You can also use this in direct examination so the expert can say they relied on the   treatise

E. The treatise may be read into evidence but not put in as an exhibit


VIII. Attack on Character


A. This presents problems of undue prejudice, particularly where the witness is accused in a criminal case and of undue consumption of time


B. Proof of Conviction of a Crime

1. It is admitted under the theory that the witness is less likely to be telling the   truth

2. Federal Rule 609 covers this issue


3. What crimes may be shown


A. Crimes Punishable by Death or Imprisonment in excess of one year:    Rule 609(a)(1)

1. These are subject to Rule 403

2. The key is how much the past crime effects credibility, not how   relevant that crime is to present crime (strong substantive     association between two crimes may make it too prejudicial)


B. Crimes involving dishonesty or false statement regardless of     punishment: Rule 609 (a)(2)

1. Doesn’t necessarily have to be an element of the crime (could    just be deception in the case)

2. May look to the circumstances of the case 


4. With regard to all witnesses in civil cases and witnesses other than the accused    in a criminal case a judge may exclude evidence of convictions not involving dishonesty or false statement under Rule 403

5. The judge has no discretion under 609(a)(2) to exclude evidence of convictions     of crimes involving dishonesty or false statement by use of Rule 403 (Altobello)


6. You must decide whether to put defendant on the stand:

A. If believable and articulate, then yes


B. You must look at whether past crimes will be excluded

1. You can test the water with a motion in limine

2. Unless it is under Rule 404(b), the jury will find out about prior   convictions

3.  Under Luce (U.S. Supreme Court), if you file a motion in limine    and the judge rules against you, you must have the defendant

  take the stand or you will not be able to preserve the error


7. Time Limit

A. Evidence of a conviction is not admissible for more than 10 years after either conviction or release of the defendant from confinement, unless   the judge determines that the probative value of the specific facts    outweighs the prejudicial effect

B. When a conviction more than 10 years old is to be offered, written   notice must be given to the opposing party, plus you have the burden to    show that probative value substantially outweighs prejudice

C. Exceptions tend to be :

1. Things that go to credibility

2. Boy Scout rule: cannot hold self out to have blameless life


8. Effect of Pardon

A. Evidence of a conviction is not admissible if it has been the subject of a     pardon provided that the pardon was based on;

1. A finding of rehabilitation if the person has not been convicted    of a subsequent crime punishable by death or imprisonment in

excess of one year

2. A finding of innocence


9. Juvenile Adjudications

A. Except in limited situations involving witnesses in criminal cases other   than the accused, evidence of juvenile adjudications is not admissible


10. Pendency of appeal

A. The pendency of an appeal is admissible, but does not render the     conviction itself admissible


11.  Method of Proof

A. It may be established at any time during cross-examination of the     witness or after the witness has testified


12. Extent of Proof

A. Most jurisdictions only allow:


1. Name of the crime

2. Time and place of conviction

3. Punishment


13. Rule 609/ 403 Flip

A. Under Rule 403, the burden is on the opponent to show that the   prejudice substantially outweighs the probative value

B. Under Rule 609(a), the burden is on the proponent to show that the    probative value outweighs the prejudice

C. Courts have differing views on this

1. Some think the nature of the crime doesn’t matter

2. Only crimes going to honesty

3. Middle View--Conviction of “infamous” crime (murder, rape,    etc.) is admissible; at least in case ofaccusedd you must weigh

  impact of the proof regarding prejudice

4. Under Federal Rules, they have already done the weighing and   found the probative value higher and prejudice lower after one



14. Summary

A. Serious crime (more than one year)

B. Probative value must outweigh the prejudice

C. Burden on Prosecution


15. Approaches for Advocacy

A. Motion in limine

B. If denied, decide whether to call witness

C. If you call the witness decide whether to bring it out in direct or cross


C. Misconduct other than a Criminal Conviction

1. Under Rule 608(b) the trial court, in its discretion, may permit a witness to be     asked on cross-examination about specific instances of misconduct if probative

  of truthfulness

2.  Some courts prohibit it because of the danger of undue prejudice, both to the     party and to the witness

3. Courts who permit inquiry will weigh factors such as

A. The importance of the witness’s testimony

B. Relevancy of the act of misconduct to the credibility of the witness

C. Nearness in time of the conduct

D. Likelihood of time-consuming explanations

E. Possibility of undue humiliation of the witness


4. Specific instances of conduct, other than conviction of a crime, may not be    proved by extrinsic evidence


5. The giving of testimony by an accused or any other witness does not operate as     a waiver of the witness’ privilege against self-incrimination when examined    with respect to matters which relate only to credibility

6. Good Faith

A. The cross-examiner must have a good faith basis for believing that the    witness has in fact committed the act about which he asked


D. Reputation or Opinion of Truthfulness


1. The credibility of witness may be attacked by reputation evidence of the    witness’ character: Rule 608(a) continues this

2. Limited Reputation for Untruthfulness: Reputation proof must be limited to the    character trait of untruthfulness

3. Proof may also take the form of opinion of the witness’ character for  untruthfulness


E. Three Possible Approaches

1. Rule 608(b): If goes to truthfulness might be let in but limited to cross-  examination

2. Rule 609: if there is a conviction

3. Rule 404(b): When dual witness and defendant, if sufficient to go to knowledge,    intent, etc.; prosecution wants to use this because then you can introduce extrinsic evidence


F. Remember, if witness has a dual role as witness/defendant

1. Character as witness (608/609)

2. Conduct for substantive purposes (404)


G. Analysis of Self-Defense Case

1. Past acts to justify reasonableness of fear

2. 404(b): More likely than not that person was agressor

3. 404(a)(2): Reputation or opinion as to reasonableness

4. 609(a): If on stand

5. 608(b): Maybe, but only if to truthfulness

6. 608(b): Pattern of conduct-acts as aggressor


H. Rape Shield Law

1. Prior to rape shield laws, the above analysis was used for rape cases

2. Reasonableness can still be used

3. Policy

A. Help protect victim while balancing defendant’s need to introduce some    evidence

B. Don’t want to deter reporting

C. Want to protect defendant’s rights


4. Covers civil and criminal contexts


5. Civil: Rule 412 (b)(2)

A. Not an absolute prohibition

B. Use a balancing test in Rule 412(b)(2)

C. Probative value must substantially outweigh prejudice

D. Burden is on proponent of evidence like Rule 609

E. Reputation may be admissible


6. In criminal context, reputation not admissible

7. Rule 412 (a): In civil or criminal case involving alleged sexual misconduct the   following evidence is not admissible

A. Evidence offered to prove that any alleged victim engaged in other   sexual behavior

B. Evidence offered to prove that any alleged victim’s sexual predisposition


8. Exceptions: Rule 412 (b)

A. Criminal: Rule 412(b)(1)

(A) Specific instances of sexual behavior by the alleged victim  offered to prove that a person other than the accused was the

source of semen, injury, or other physical evidence;

(B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual

misconduct offered by the accused to prove consent or by the prosecution; and

(C) Evidence the exclusion of which would violate the constitutional rights of the defendant


9. Procedures to determine admissibility: Rule 412(c)

A. Rule 412(c)(1): Party intending to offer evidence under subdivision (b)   must:

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose fro which it is offered, unless the court for good cause requires a different time

(B) Serve the motion on all parties and notify alleged victim

B. Rule 412(c)(2)

Before admitting evidence under this rule the court must conduct a   hearing in camera and afford the victim and the parties a right to attend and be heard.  The motion and record of the hearing must be sealed and remain under seal unless the court orders otherwise.


10. Doe v. United States

A. Can get an interlocutory appeal so the victim can appeal admissibility   before trial-- this is in line with the policy behind Rule 412

B. They allowed evidence in of telephone conversation and defendant’s   state of mind as a result of what he knew of her reputation

C. This goes to his intent, not the victim’s consent or her veracity

D. It goes to whether he reasonably believed that she was consenting

E. This case drives a tremendous exception into Rule 412

F. Rule 412(a)(2) may take care of this now: Evidence of any alleged   victim’s predisposition (this was originally done to exclude evidence of     what the victim was wearing)

G. Remember that this is just a 4th Circuity interpretation of the old Rule     412


11. You can argue that you have a constitutional right to enter favorable evidence  A. It is hard to draw the line on these cases

B. There is a line between 404(b) admissibility and 412(b)(1)(C)    declaration of constitutional right

C. Courts have lately been strict in determining constitutionality


12. Rule 412(b)(1)(B) codifies constitutional right of defendant to this highly probative evidence of prior sex acts with accused- a 403 weighing may still exclude it

A. This ensures that date rapes and married women won’t be protected

B. The defense to this is that it is a weighing process


13. Rule 412(b)(1)(A)

A. “Semen or injury”

B. If there is some other explanation then it comes in, but it is still subject    to Rule 403- the court still has to look at relevancy (Ex. Azure- no proof that the other boy caused the injury)


14. Cardinal

A. Wanted to bring in evidence of prior false accusations

B. It was excluded here

C. Court said it was interrelated to sexual activity

D. This probably shouldn’t be governed by Rule 412; should be under Rule   401/403- you don’t know whether the claims were false


IX. Capacity of a witness

A. You can attack the capacity of the witness

B. You can also introduce evidence regarding other limitations- sight, hearing, etc.

C. How do you confirm this?

1. There is some inherent power of the judge to order an examination of the   witness 

2. This is a tremendous invasion of privacy

3. Judges hesitate to do this


X. Rehabilitation

A. The court may let you explain the circumstances of your conviction- it is within the  court’s discretion

B.  There also may be an explanation of certain prior inconsistent statements (Ex.- a cop   was holding a gun at the head of the witness when statement was made)

C. You can rehabilitate a witness from attack in order to rehabilitate his character

D. You can not seek to rehabilitate a witness until the witness’ credibility has been attacked




Rule 412: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

See Outline


Rule 607: Who may impeach

The credibility of a witness may be attacked by any party, including the party calling the witness


Rule 608: Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness, and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise


(b) Specific instances of conduct

Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.  They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness

(1) concerning the witness’ character of truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified


The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters which relate only to credibility




Rule 609: Impeachment by Evidence of Conviction of Crime

(a) General Rule

For purposes of attacking the credibility of a witness,


(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death, or imprisonment in excess of one year under the law under which the witness was convicted, and evidence of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused;


(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment


(b) Time Limit

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.  However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.


(c) Effect of Pardon, annulment or certificate of rehabilitation

See Rules


(d) Juvenile Adjudications

See Rules


(e) Pendency of appeal

See Rules


Rule 613: Prior of Statements of Witnesses

(a) Examining witness concerning prior statement

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents discloised to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel

(b) Extrinsic Evidence of prior inconsistent statement of a witness

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the saem and the opposite is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defiend in Rule 801(d)(2)


Rule 801(d): Statements which are not hearsay

(1) Prior Statement by witness


The declarant testifies at the trial or hearing as is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of indentification of a person made after perceiving the person; or


(2) Admission by Party-opponent

The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.


Rule 803(18): Learned Treatises

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.


Rule 806: Attacking and Supporting Credibility of Declarant

When a hearsay statement or a statement defined in Rule 801(d)(2), (C), (D), (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.  Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.  If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.





To impeach, you can show

1) Can show prior crime/bad acts

2) bias

3) Prior Inconsistent statements

Can impeach, no subterfuge, good faith, allow introduction of prior inconsistent statement to impeach



You can bring it up if an expert is being paid and how much they are being paid; the jury can take this into account


12-35 (alternate)


Marijuana being transported on an airplane



Under Rule 609(a)(2) you look to see if it is a crime of dishonesty, assault and battery doesn’t meet that

Under 609(a)(1) look to state law to see what it is punishable law--it is law under which witness is convicted

You look to Tennessee law-- Is it “punishable” by excess of one year then the next step is to do a Rule 403 test--the burden is on the opponent of the evidence under Rule 403, but under Rule 609(a) the burden is on the proponent to show probative value outweighs its prejudice

Doesn’t go to credibility or honesty; crime will be excluded- it is purely violent


(2) Under Rule 609(b) you use date of release or date of conviction whatever is later

If conviction is more than ten years old than you need advanced notice

Goes to credibility, so automatically admissible--don’t need to use Rule 403


(3) Idea of automatic credibility must go directly to credibility

Have to look at how done, where it was done--probably automatic in this case


(4) “Punishable” for more than one year so you go under Rule 609(a)(1) and weigh it

It is likely to come in


Acts less than conviction


(5) Bar fights don’t go to truthfulness

Must be “convicted” under Rule 609

Under Rule 608(b)

Cannot introduce extrinsic evidence; you can inquire on cross-examination, but must take the answer


(6) Does go to truthfulness; it is an exception example under Rule 608(b)- it is a specific instance of conduct; you need a good faith basis for the question- need the application


(7) Rule 608(b)--close call regarding truthfulness

If defendant says “no” you are stuck b/c you can’t bring in extrinsic evidence


Rule 12-37 (Facts from 12-37)

(A) Witness other than accused

Punishable > 1 year

Rule 403 balancing

(B) It is the same for a civil case




I. Definition of Hearsay


A. Effect of Hearsay

1. If evidence is hearsay, it is not admissible unless it qualifies under one of the many exceptions to the rule against hearsay


B. Hearsay is a way of using evidence

1. A piece of evidence may be hearsay for one purpose and not hearsay for another


C. Definition at common law

1. It includes any statement made outside the present trial which is offered as evidence of the truth of the matters asserted therein


D.  Nonhearsay purposes for which an out-of-court statement may be offered

1. A statement is offered for a nonhearsay purpose when it is to be used only to show that he statement was made and not to show the truth of matters asserted in the statement

2. There still must be relevancy

3. Types of situations

A. Verbal Acts

1. There are situations in which legal consequences flow from the mere fact that words were said

2.  The words themselves have independent legal significance

3. Ex. the words of offer and acceptance which create a contract or words of slander upon which an action for damages is based)


B. Verbal Parts of Acts

1. A combination of a statement and an action

2. The words lend credence to the act

3. Ex. A gift consists of both a physical transfer and words to  explain and give character to the transfer--”Here is my diamond  necklace; I intend for you to have it”

4. The words are therefore admissible as nonhearsay


C. Notice or Knowledge

1. If the fact that someone was put on notice as to certain facts is   relevant, a statement which outs them on notice as to those facts

is nonhearsay 

2. It must be introduced for the limited purpose of showing that   notice was given


D. Impeachment


1. The fact that a witness made an inconsistent statement out-of-  court may be relevant for the limited purpose of suggesting that he is not a trustworthy witness

2. They go to credibility; it doesn’t matter if they are true


E. Competency

F. Other examples

1. To prove someone is alive

2. Prove that they speak English, etc.


E. Declarant: The person who makes the statement

F. Witness: The person who relates the hearsay statement

G. If it is:

1. An out-of-court statement

2. Offered for the truth of the matter asserted Then it is hearsay

H. A metaphorical equivalent will be hearsay if what it is meant to say goes to the truth of    the matter asserted--”he was color blind” (trying to say he ran a red light)

I. Something will generally not be hearsay if it is not for the truth of the matter asserted   (broadened just slightly to include metaphorical speech)

J. If you are unclear about whether something is hearsay you can look at it under a Rule  401/403 analysis


II. Problems with not being able to cross-examine a witness

A. 4 questions that cross-examination can answer

A. What he meant- Narration

B. Whether he perceived it

C. Sincerity

D. His memory--whether he remembers it

B. When there is no need to deal with these things, the issue is not hearsay; this is a    double-check

C. Example

If the issue is whether a person speaks English and he said, “the car ran a red light”  it would be admissible

You would not be worried about the truth; the four concerns are not present


III. Differences between common law definition of hearsay and the definition in Federal Rule 801

A. Federal Rule adopts the common law definition that hearsay includes any statement

  made outside the present trial which is offered as evidence of the truth of the matter

B. The Federal Rules exclude certain things from the definition of hearsay

1. Admissions of a party-opponent

2. Certain prior statements by the witness himself

3. Statements made through non-assertive conduct


C. In most cases, both the common law and the federal rules produce the same result


IV. Triangulating Hearsay (see book)

A. If you don’t understand it don’t worry about it

B. It tries to explain perception, memory, sincerity and narration


V. Non-assertive conduct

A. It is difficult to say that silence is an assertion

B. The burden is on the party contending that an intent to assert is present

C. Ambiguous and doubtful cases will be resolved in favor of admissibility


VI. Muscato

A. Dealt with the manufacture of pen-guns

B. Ways to view the issue

1. A trace of knowledge in the declarant’s mind

A. It is circumstantial evidence that they had contact with the thing

B. It is not being admitted for the truth, but rather for circumstantial    evidence

2. Statement made for truth of the matter asserted

C. It may be a matter of definition whether you include knowledge as truth

D. There is a 401/403 analysis

E. When you are faced with an out-of-court statement, you look at:

1. Is it hearsay under the definition

2. Is it one of the exceptions


VII. Conduct, Nonassertive Conduct and Implied Assertions


A. Assertive Conduct

1. Hearsay includes nonverbal conduct which is intended to be the equivalent of a  spoken assertion

2. Ex. Shaking your head yes or no

3. If it is offered to prove the truth of the matter asserted it is hearsay


B. Nonassertive Conduct and Implied Assertions

1. Example: You see someone put up an umbrella--This is nonassertive conduct

2. Example: “Help me with this paper”--there is an implied assertion that the    person is competent

3. Under the Federal Rules these are not hearsay

A. Nonassertive conduct is not part of the definition of  “statement” under   the Federal Rules


VIII. Prior Statements by Witnesses


A. A prior statement by a witness may be hearsay


B. Rule 801(d)(1) carves an exception from the definition of hearsay for:

1. If the declarant testifies at trial and is subject to cross examination, a prior    statement may be admissible if it is one of the following:

A. Inconsistent statements that were given under oath subject to perjury at     a trial, hearing, or other proceeding or in a deposition

B. Consistent statement offered to rebut an express or implied charge   against the declarant of recent fabrication or improper influence or     motive

C. Identification of a person made after perceiving the person

2. Other out-of-court statements may still be admissible for nonhearsay purposes

C. Inconsistent Statements

1. These may be offered on the theory that the mere fact that the witness     has been inconsistent shows that he is not trustworthy and impeaches

  his present in-court testimony

2. Impeaching your own witness

A. If the early statement is available only for credibility (not under oath)    and the prosecution calls him and attacks him it is subterfuge

B.  If the earlier statement was done under oath in a proceeding it may be available for substantive purposes--you can call the witness and they   can deny it--the prosecutor is only following the rules

D. Consistent Statements

1. The fact that consistent statements are consistent may be offered to show that     the present testimony is likely to be trustworthy

2. Under the Federal Rules they must be consistent with the declarant’s testimony   and:

A. Offered to rebut an express or implied charge of recent fabrication


B. Improper influence or motive


3. Example: Recent Fabrication


6 mos.  2 mos.  1 mo.  

Before  Before  Before  Trial

Red   Green   Red   Red


The claim 6 months before that is was red could be used to show that the  claim one moth before was not a recent fabrication


4. Example: Improper Motive  

Anita Hill and Clarence Thomas


5 years before  Nomination   2 months before   Hearing

Harassed me Harassed me Harassed


A statement made prior to nomination goes to rebut a claim of improper   influence or motive


5. Is it possible that a prior consistent statement can come under something beside    Rule 801(d)(1)(B)?

A. Example: Defendant claims he never made a prior inconsistent statement

  Look to consistent statement near that time

  The test for the admissibility of this is a 403 test--is it relevant?


E. Statement of Identification

1. It doesn’t matter if they were under oath or during a proceeding

2. Under Owens it doesn’t matter if the witness can remember

3. This rule is due to a belief that this better than the testimony at trial

4. This rule also goes for a picture


IX. Admissions of a Party-Opponent

A. It is any statement or act by a party to an action which tends to support the case against    him 

B. An admission by a party-opponent is admissible to prove the truth of whatever it admits


C. Rule 801(d)(2): A statement is not hearsay if it is offered against a party and is:

(A) the party’s own statement, in either an individual or representative capacity; or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement

   concerning the subject, or

(D) a statement by the part’s agent or servant concerning a matter within the scope

   of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy


D. Judicial Admissions v. Evidentiary Admissions

1. Judicial Admission

A. Something you admit in a pleading

B. Currently enforced pleadings and responses to requests to admit

2. Evidentiary

A. Any other kind of admission-- A pleading in another case, etc.

B. These can be used against you but they are not controlling


E. Distinguished from declarations against self-interest

1. Admissions of a party-opponent do not have to satisfy many of the requirements   which apply to declarations against self-interest

2. No requirement that the speaker be unable to testify at trial

3. No requirement that the interest have been against the party’s interest at the


time it was made

4. No requirement that the party-opponent have had any knowledge of the facts    admitted

5. An admission of a party-opponent is usually admissible even though it is in the    form of an opinion


F. Admissions by silence

1. A failure to deny statements that a party would naturally be expected to deny if  they were untrue is admissible against that party as an admission of the truth of

those statements

2. It is difficult to know when they would “naturally be expected to deny”

3. Under Miranda, a person in custody has the right to remain silent

4. These are more of a relevancy problem

5. The probative value goes up if you are in a place where it would be reasonable   to respond

6. Some requirements under Wilson

A. Must be heard

B. Must be understood

C. Must have been able to speak

D. the speaker or his relationship to the party or event must be such as to   reasonably expect a denial

E. the statement itself must be such that, if untrue, under the   circumstances, it would have been denied


G. Admissions by conduct

1. Evidence of conduct by a party which reasonably supports an inference     inconsistent with his position is admissible as an admission by conduct

2. In cases involving bribery or destruction of documents the court will usually  resolve in favor of admissibility


H. Representative Admissions

1. Adoptive Admission

A. If a party indicates that he adopts a statement or that he believes it to be    true, it may be admitted against him as an admission

B. If you merely repeat a statement you have heard you have not adopted it

C. If you state that it is true or try to use it as true it will usually be adopted

D. Example: If someone says: “ A said X and I’ve got to go with that” it   will be an adoption But if they just say “I wasn’t there but A told me X”--’I wasn’t there is  an admission and the second part is not an adoption--it has to qualify as non-hearsay or an exception to the rule


2. Statements by Co-conspirators


A. A statement by a co-conspirator made during the course and in     furtherance of the conspiracy is admissible as an admission against a party who was a member of the conspiracy


3. Bootstrapping v. Independent Evidence: The question of whether independent   evidence of the existence of the relationship is required before admissions by co-

conspirators, agents and servants can be used against a party

A.  Argument that a claim made by an alleged co-conspirator that he or she was a co-conspirator can be used as part or all of the evidence to prove that the described conspiracy existed is called “bootstrapping” because critics considered it to be the equivalent of a man wearing boots attempting to pull himself up by his own bootstraps

B. In Bourjaily, the Court suggested that the Federal Rules had dropped     the common law requirement of independent evidence

1. This may allow the statement to be enough proof

2. The Court held that the question of whether a conspiracy existed   was a question of fact for the judge under Rule 104(a)

3. The Court can consider:

A. The statement itself


B. Any other evidence


4. Statements by Agents or Servants

A. All jurisdictions will allow a statement by an agent or servant who was    authorized to make such a statement

B. Under the Federal Rules, a statement made by a party’s agent or servant   “concerning a matter within the scope of employment, made during the

  existence of the relationship” will be allowed

C. Must be:

1. Within the scope of employment

2. They must be still employed when they made the statement


D. Communication among employees or to the employer are included as     admissions under the Federal Rules

E. Under the draft of the rules you have to have the statement plus     something else




Rule 801 Definitions


(a) Statement.  A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a 

  person, if it is intended by the person as an assertion.

(b) Declarant.  A “declarant” is a person who makes a statement.


(c) Hearsay.  “Hearsay” is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay.  A statement is not hearsay if--

(1) Prior statements by witness. The declarant testifies at trial or hearing and is subject to    cross examination concerning the statement, and the statement is

(A) inconsistent with the declarant’s testimony and was given under oath subject  to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition

(B) consistent statement with the declarant’s testimony and is offered to rebut an   express or implied charge  against the declarant of recent fabrication or  improper influence or motive

(C) one of identification of a person made after perceiving the person; or

(2) Admissions by party-opponent.  The statement is offered against a party and is

(A) the party’s own statement, in either an individual or representative capacity; or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the part’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy





A) Yes

B) Yes- can be oral or written

C) No- there is no out-of-court statement; could be inadmissible under first-hand knowledge

D) No- animals not subject to hearsay rule

E) You could say that you are offering it to prove notice

F) No-he observed it; there is no statement

G) No- not an assertion- all that he is doing is acting

H) No-this is conduct; there is no question of sincerity; the admissibility depends on relevancy

I) No- conduct; she is not making a statement

J) Similar to Silver; this is a close question; it is difficult to say that silence is an assertion under  the Federal Rules

K) Yes- This is an out-of-court assertion offered to prove the truth of the matter asserted; he is incorporating their statements into his

L) This is probably a statement; it does not have to be verbal

M) Yes- This is metaphorical speech; it is the functional equivalent of saying that he ran the red light

N) Yes- it is an assertion

O) No- it is not an assertion; the assertion is only for the person making the film



(A) His state of mind is not at issue; the words have an independent legal significance; he has   given authority

(B) Yes--you are relying upon Donald’s credibility

(C) Yes for the first sentence--there are two statements You could say that this gives notice; it is a negligent entrustment case; the fear is that the jury will misuse it for its non-hearsay purpose; it goes to notice; it does not matter if it was truthful


(D) It is trying to show a prior inconsistent statement; this goes to credibility; it doesn’t matter if   it is true; it just shows some contradiction



(A) Not hearsay--it goes to the question of knowledge It is a question of what Donald could say

(B) Hearsay--it goes to the truth of the matter asserted



It doesn’t go to the truth of the matter asserted; you are not trying to say that he is invading England

What if he is faking it?

This is not hearsay under the Federal Rules--not proof of matter asserted but as a verbal act expressing delusion



(A) Defendant offers this to show that if she wanted his help she didn’t think he did it

   It doesn’t go to the truth of the matter asserted; you are offering it for the implied assertion   not the direct assertion

   You could say that this is wrong because it is analogous to the metaphorical equivalent

(B) Non-hearsay--not an assertion

(C) Non-hearsay--conduct; not admissible because of no first hand knowledge



(A) Rule 801(d)(2)(A)--is it the party’s own statement  This is an earlier complaint The lawyer was a statement from someone authorized to make the statement--Rule  801(d)(2)(C) or it may be an adoption under Rule 801(d)(2)(B)


(B) Could be viewed as an adoption

   What if you never look at it?

   He is either authorized by the party to make a statement or it is an adoption



(a) At the time he made the statement it was in his best interest--he wanted the dog


(b) (i) “I know the dog bit you”--first hand knowledge does not matter, because you are   responsible for what you say, this is part of the adversary process; it is admissible


“I wasn’t there, but Arthur told me the dog bit you”

No adoption of Arthur’s rule--this is hearsay within hearsay

“Well I wasn’t there” is an admission

Unless the second part is an adoption then you have a problem unless it is non-hearsay or an exception--this could qualify as a vicarious admission under Rule 801(d)(2)(D)


(ii) He was hired to take good care of the dog; if it is within the scope and he is still employed then his statement will be good against Dennis



(A)There was an accusation of price fixing to which there was no response

   An admission

(B) This is arguably a section (C) admission

Authorization does not have to be authorization to make a statement externally

If  he was making a statement of statements of other employees: His statement would come

under (C) and their statement would come under (D) if it was within the scope of their jobs

and they were still employees




Fact that he was driving a truck with a logo plus the statement can be considered regarding agency


Often Imitated but Never Duplicated