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Course: Evidence 1
School: unknown
Year: 2004
Professor: unknown
Course Outline provided by
(a) Basis for appeal - error requires:
  1. a substantial right of a party affected and
  2. timely and specific objection
  • or Motion to Strike: delayed objection to evidence conditionally admitted where condition later fails.
  • failure to object or move to strike = wiaver
  • but if only one of several parties on same side objects, even silent parties are protected.
  • timely: when grounds for objection first b/c apparent (usually b/f question is answered but not if witness jumps the gun or gives testimony later becoming objectionable)
  • specific: must state grounds for exclusion. NO general objections.
  • But no grounds necc if it is “apparent from the context” (e.g. the parties have previously argued the point - such as via motion in limine*.)
  • *Motion in Limine: evidence objections made in pretrial motion.
  • Optional for both parties and courts (to rule).
  • Usually considered only tentative \
  1. no appeal from such rulings
  2. losing party can put issue up again by offering evidence at trial (but m/n expose sensitive points to jury)
  3. party must renew objection if other side offers it.
  4. Judge may change ruling during trial (e.g. if developments turn out differently than expected at pretrial ruling).
  • Objector may state a “continuing objection” to a line of testimony that makes express what is already implicit in more particular objections.
  • or Offer of proof required. Where excluded evidence - that substance of evidence excluded was made known to the ct. or was apparent from question’s context.
    • Judge should know what he’s ruling on.
    • Can’t prove that substantial right was affected w/o offer of proof.

103 (cont’d)
  • Offer of proof must
  • indicate the nature or content of the evidence and describe its purpose and why its relevant.
  • show evidence is competent
    • Methods of making the offer of proof:
    a) testimony - put witness on stand, ask questions and put his answers in the record.
    1. physical object - mark as exhibit and lodge it w/ the clerk to make it part of the record and make clear to judge that it is being offered into evidence.
    • But no offer of proof necessary if judge has already said evidence w/n be admitted.
    (c) Should try to prevent inadmissible evidence from being suggested to the jury by any means.
    1. ct. may take notice of plain error even if not brought to the attn of the court.
    • A party is limited by its strategy:
    • Invited error: when the witness offers something the questioner might otherwise exclude.
    • Opening the door: one party introduces evidence and another offers counterporoof that may not have been expected by the initial party - objection w/b overruled.
      • limited by issues of:
      • degree and proportion
      • concerns of prejudice and distraction or confusion
        • Also, if a witness gives a nonresponsive or response answer, the examiner can move to strike.
        • Harmless Error - 5 guidelines:
        1. “technicality” s/b avoided unless it affects the rights of the parties (outcome of trial)
        2. Reviewing ct. should appraise error by examining the proceedings in their entirety. (mistakes in s/b viewed in context)
        3. Problem is to decide whether the error affected the outcome, not to assess the sufficiency of evidence to support the result reached.
        4. Precedent is not helpful
        reviewing body should decide whether error affected the judgement, not how outcome s/b in new trial.


(a) Preliminary questions re: quality of witness, existence of privilege or admissibility s/b det. by a ct, who is not bound at this pt by FRE except re: privileges.
  1. If relevancy depends on condition of fact, ct. will admit it after evidence intro. Sufficient to suppt a jury finding that ct. was fulfilled.
(c) Hearings on admissibility m/b made outside hearing of jury.
(d/e) no cross of accused if testifying on prelim matter but evidence to jury re: weight and credibility of evid OK.
Ct. will restrict evid where admissible as to one party or purpose but not admissible as to another party or for another purpose.
  • But how easy can a jury follow a restrictive instruction?
Remainder of or related statements c/b required when part of whole stmt is introduced.
  • But only if distortive otherwise.
  • Allows other side to insist that other relevant parts of a stmt be offered b/f waiting their turn.
  • Only applies to stmts memorialized in permanent form (e.g. written or recorded) But some cts may extend this principle under 401-403.

Preliminary Questions -
(a) Court determines:
  1. qualification of a person t/b a witness
  2. the existence of a privilege
  3. or the admissibility of evidence
Not bound by rules of evidence except re: privileges
  • But jury decides credibility of evidence.
(b) When relevancy depends on a condition of fact, court will admit it subject to the introduction of evidence supporting the fulfillment of the condition.
  • jury has ultimate responsibility to decide whether the preliminary question of fact has been proven. Exclusion only appropriate when no reasonable jury could find that it was heard. (so judge still decides this)
  • but, if the evidence would not be relevant even if the conditional fact is proven, then it still m/b excluded.
  • “connecting up” judge can allow evidence subject to later introducing evidence of the preliminary fact.
Relevant: evidence having
  1. any tendency
  2. to make it more or less probable \ (any probative value) that
  3. a fact of consequence to the determination of the action (includes impeachment of witnesses) occurred. (m/b material)
  4. fact need not be in dispute
  • Primary threshold determination - not admissible unless relevant!
  • Favors admissibility but remote or speculative evidence may not meet minimal stds under 401
  • Ct relies on own experience but counsel can submit addl info not commonly known.
  • Usually applies to circumstantial evidence (from which factfinder can infer an increased probability that the fact exists) vs. direct (actually asserts the existence of fact to be proven).
  • Critical question: Is the “evidentiary hypothesis” valid? (but not the strength of the hypothesis)
  • “Curative admissibility” - once one party opens the door, rebuttal evidence is always relevant, even if initial evidence is irrelevant (unless rebuttal evidence is unfairly prejudicial under 403).


All relevant evidence is admissible unless otherwise provided by the Constitution or other federal statutes/rules. Evidence which is not relevant is not admissible.
  • Exclusionary doctrines not recognized by 402:
  • CL grounds for evidentiary exlcusion
  • state exclusionary rules except where specific FRE defers to state law
But, evidence with low probative value m/b excluded where probative value is substantially outweighed by:
  1. unfair prejudice
  • m/b excessive emotional or irrational effects beyond reasonable persuasive force.
  • two types:
  1. undue emotionalism (inflammatory, shocking or sensational - but gory photos OK)
  2. likelihood that jury will misuse evidence or give it undue weight (most often w/ evidence admitted for a limited purpose under FRE 105)evidence of prior crimes is often found unfairly prejudicial
  • evidence of weapons is often found unfairly prejudicial unless an element of crime charged
  • confusion of issues or misleading jury
    • evidence abt related legal proceedings
    • failure to prosecute other parties
    • reports containing ambiguous legal terminology
    • private agreements to apportion liability between defendants
    • statistical proof (People v. Collins - yellow auto w/ black man and white woman)
    1. undue delay, waste of time, cumulative evidence
    • evidence offered on a point that has already been established by testimony
    • collateral” evidence: evidence far removed from what is important or central in a case (may also be prejudicial)
    1. counterproof may only be admitted to contradict evidence that really counts - not collateral evidence (e.g. what the witness wore when she saw the accident)
    2. but, evidence to refute claims of bias or defects in witness are not collateral
    open door policy still doesn’t allow for evidence on collateral points.
    • Balancing test, but still designed to favor admissibility.
403 (Cont’d)
  • Addl factors in balancing:
  • centrality of point t/b proved
  • need for particular evidence
  • avail of other sources of proof (e.g. stipulations by objecting party - but not if incomplete or unfairly deny full force of evidence)
  • likelihood jury will understand and follow limiting instructs under FRE 105.
  • Surprise not an independent ground for exclusion (but m/b a factor in finding unfair prejudice)
  • Serves to limit admissibility of evidence even if otherwise qualified for admission under another rule. Deference afforded to trial judges in applying 403 b/c
  1. considerations listed in FRE 403 are impossible to define with particularity b/c fact-based.
  2. trial judge in better position than appellate ct to weight probative value against impact on jury.
  • Exclusion during bench trials done to insure integrity of factfinding process.


(b) When relevancy depends on a condition of fact, court will admit it subject to the introduction of evidence supporting the fulfillment of the condition.
  • judge performs screening function - determines whether there is evidence sufficient to support a jury finding of authenticity.
  • still up to the jury, but if proof of authenticity or not is overwhelming, a court may instruct the jury to take it as authentic or exclude it.
  • opponent can still challenge authenticity once admitted as authentic.
Authentication or ID required b/f evidence is admitted (e.g.)
  1. testimony of witness w/ knowledge
  • A basis for ID is required but only if not distinct items personally known to the witness
  • might also have to say that the object appears to be in the same condition as it was at the time of the events giving rise to the litigation.
  • Witness m/h personal knowledge but need not be absolutely certain of the ID.

901 (cont’d)
  • “Chain of custody” useful for fungible evidence, lacking in distinctive means of ID or likely to deteriorate or change in condition. (e.g. bat in trunk for 1 ½ years)
  • est when custody was taken and from whom
  • analyze precautions taken to preserve item
  • item not changed or tampered w/ (reasonable std)
  • when relinquished and to whom.
    1. nonexpert handwriting recog
    • Need not be present @ signing
    • e.g. family members, employers, employees, co-workers
    • but familiarity c/n be acquired for purposes of litigation
    • can’t compare document w/ exemplar (only expert can do that)
    1. expert or trier handwriting comparison
    2. distinctive characteristics
    • code terms
    • reply to previous letter, letterhead
    • peculiar misspelling or jargon
    1. voice ID
    2. outgoing telephone convo
    1. if person - self-identification (this is Wendy)
    2. if business - call made to place of biz and convo related to biz reas done over phone
    • incoming call
    a) voice ID - only casual familiarity is required
    1. peculiarity of content
    1. public records or reports
    • two types
    • writings authorized by law t/b recorded or filed (e.g. deeds)
    • purported public record in any form (e.g. licensing records)
    • 8. ancient documents, process or system, methods provided by statute or rule
      • a specific application of relevancy rule - unauthenticated evidence ¹ relevant


901 (cont’d)
  • applies to every type of evidence except for live testimony - but usually exhibits
  • Demonstrative Evidence (e.g. photos, recordings, drawings, etc.)
1. vivid and immediate effect, first-hand sense impression
  • Only real evidence (thing itself has substantive significance) req authentication
  • not req. for illustrative evidence - only req a “fair depiction.” (a gun like this) \ if you can’t authenticate something, you may change the purpose of using it - use it illustratively instead.
  • photographs: testimony that the photo accurately represents the scene depicted at the relevant time req.
  • “silent witness” - where photots taken by bank surveillance cameras, etc. w/o authenticating witness, must show process by which photo was taken and that it produces an accurate result.
  • “pictoral testimony” vs. “silent witness” - only to illustrate testimony, not independently substantive evidence as w/ silent witness.
  • steps to authentication:
  1. have exhibit marked for ID by the ct. reporter
  2. permit adverse counsel to examine it and object if need be
  3. ask for permission to approach the witness
  4. ask witness to authenticate it
  5. submit into evidence
  6. received by court
  7. ask to present exhibit to jury
“connecting up” - not always possible to lay foundation w/ just one witness, may connect up with other witnesses.
No extrinsic evidence of authenticity required for certain self-authenticating evidence:
  1. domestic public documents under seal.
  • original docs - see 4 for copies
  • must have signature purporting to be an attestation or execution and seal.
  1. domestic public documents not under seal Ok if another public officer certifies it.
  • original docs - see 4 for copies
  • signature of public officer m/b in official capacity.

902 (cont’d)
  • four parts to certificate:
  • must make the appropriate statement
  • m/b apparently signed
  • m/b apparently sealed
  • signer m/b a public official w/ official duties in the same district or political subdivision from which comes the document in question.
    1. foreign public documents
    2. certified copies of public records
    3. official publications, newspapers and periodicals, trade inscriptions and the like
    4. acknowledged documents
    5. commercial paper and related documents
    • presumptions under Acts of Congress
    • But only for screening step - authenticity may still be challenged at trial.
    • May also still be excluded under other rules, even if self-authenticating.
    No 104(b) analysis (conditioned on fact), but 104(a) analysis - admissibility , generally, applies to judge.


subscribing witnesses testimony not necc to authenticate a writing unless req by laws of juris governing writing’s validity
To prove content of writing, recording or photograph, original is required.
  • Best Evidence Rule” - Must bring best evidence only when dealing w/ a document, recordings or photographs.
  • usually used to exclude testimony and other secondary evidence offered to prove content vs. duplicates.
  • Applies in two situations (both re: proof of content - not for est making, execution , existence, etc. of doc):
  1. proof of content m/b controlling on issue of substantive law
  2. party strategizes to rely on content to prove a relevant point
  • Proof of absence of content is not covered by this rule. (secondary evidence allowed)

  1. Writings and Recordings: letters, words or #’s or their equivalent set down by
  1. handwriting, typewriting
  2. printing, photocopying, photographing
  3. magnetic impulse
  4. recording, other form of data compilation
(2) Photographs: include still photos, x-ray films, video tapes and motion pics.
  1. Original: writing or recording itself or any counterpart intended to have the same effect.
  • Not necc the first writing, but the one at issue in the litigation!
  • e.g. letters:
  1. to prove notice - delivered writing
  2. to prove knowledge of author - file copy is duplicate of letter received and vice versa.
  • biz records: a regularly made record kept in the regular course of biz activity = original even if prepared from other docs or kept in other versions elsewhere b/c
  • if it satisfies the biz records exception to hearsay rule, it w/b an “original” under BER.
  • Multiple originals OK - e.g. preprinted receipts, credit card vouchers, deposit slips, etc.
  • Inscribed chattels: determination of whether a “writing” based on 7 pt test:
  • length & complexity of inscription
  • importance of the communicative content to the case
  • degree of precision necessary in proving the inscription to avoid misleading trier of fact.
  • reliability of the proffered secondary evidence
  • existence of a dispute as to the inscription’s content
  • ease or difficulty of producing the chattel
  • reasons for non-production


Duplicate admissible (even if original is available) unless
  1. genuine (?) of original’s authenticity or
  2. unfair to use
(e.g. when dups have gaps or omissions or are of poor quality or if originals were destroyed in bad faith)
1003 (Cont’d)
  • Must prove 3 things:
  • that duplicate qualifies under FRE 1001(4)
  • correctly reflects contents of source doc
  • source doc is itself authentic
    • fairly low standard except 3)
    • But even 3) only requires that proponent offer evidence sufficient to support a jury finding that the source doc is genuine.
    • judge may reject duplicate if a genuine question is raised as to the authenticity of the original.
    • opponent of evidence bears bop that “genuine question” of authenticity exists.
    • Modifies BER requirement of original vs. duplicate to requiring original OR duplicate vs. oral testimony or other 2ndary evidence.
    • If authenticity of the duplicate is in question, court may exclude it
    1) under 1003(2) for being “unfair” or
    2) under 1001 (4) if not made by technique accurately reproducing the original.
Duplicate: 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 equivalent technique accurately reproducing the original.
  • carbon copy normally qualifies as duplicate, even if changes or margin notes made to original didn’t come through
  • rerecordings - preparer of “duplicate” will need to testify as to process of rerecording, or witness familiar w/ content of original
  • Transcripts of recordings ¹ duplicates b/c manually prepared
  • photo made from original negative ¹ duplicate but an original, but enlargements and miniatures = dups
  • photo of writing, inscribed chattel or other photo = duplicate
  • computer printout of data not stored on computer, but on original docs = dup, else original
Original not required, secondary evidence ok if:
  1. lost/destroyed w/o bad faith
  2. not obtainable by court process or procedure
  3. in possession of opponent


1004 (Cont’d)
  1. not controlling issue but collateral
  • not even duplicate required in these cases!
  • but no order of preferences among secondary sources (e.g. even if dup available, testimony or other c/b used instead)
  • requirements:
  1. original unavailable
  2. original once existed
  3. original authenticated
Certified copy of public records ok
Summaries of writings, records or photos not conveniently examined in court OK.
Party against whom evidence is offered may admit to contents of writings, recordings or photos rather than produce original.
  1. Court decides: when admissibility depends on condition of fact (under 104)
  2. Trier of Fact decides issue
  1. of whether writing ever existed or
  2. whether another writing produced is the original or
  3. whether other evidence of contents correctly reflects the contents
(a) Character evidence not admissible except:
  1. character of accused (offered by accused or by prosec. To rebut)
  2. character of victim (offered by accused or by prosecution to rebut), except:
  1. peacefulness offered by pros in homicide case to rebut evid that vic was aggressor.
3. character of witness
  1. evidence of other crimes is not admissible to prove character of person to show action in conformity therewith.
  • Exceptions apply mostly to criminal, not civil cases.

  1. where admissible, character m/b proven by testimony as to
  1. reputation or
  • Reputation: what you’ve heard (m/h exposure in appropriate community for enough time)
  • opinion only.
    • Opinion: what you know (m/h knowledge of persons character)
    • On cross, inquiry of specific instances of conduct is allowed.
    • where character is an essential element of a charge, claim or r, proof may be made by reputation, opinion or specific instances.
      • essential element examples:
      • defamation
      • child custody
      • negligent entrustment
      • death penalty
Evidence of habit is admissible.
  • Character - generalized descr. of one’s disposition
  • Habit - one’s regular response to a repeated specific situation.
  • 3 criteria to distinguish:
  1. specificity of conduct
  2. regularity of conduct
  3. volition v. semiautomatic beh.


RELEVANCE -Specific Exclusions
Evidence of measures taken after an inquiry or harm has occurred which would have made the inquiry less likely to occur is not admissible to prove:
  • negligence
  • culpability
  • defect (product)
  • design defect
  • need for warning/instruction
RELEVANCE -Specific Exclusions (Cont’d)
407 (Cont’d)
  • must be a voluntary measure
  • usually applied also to strict liability actions but not in all states.
But such evidence is admissible for other purposes, eg.
  • proving ownership, control or feasibility of precautionarymeasures
  • But only if controverted.
  • impeachment
Evidence of an offer to compromise a claim is not admissible as an admission of the validity or invalidity of the claim.
--evidence of conduct/statements made in compromise negotiations
But not:
--other evidence otherwise discoverable but presented during compromise negotiations.
--evidence offered for another purpose, e.g.
+proving witness’ bias or prejudice
+negating a contention of undue delay
+proving an effort to obstruct a criminal investigation or prosecution
  • One rationale of this rule is to encourage settlement. Else, in such discussions, one would have to speak hypothetically.
Payment of Medical and Similar expenses is not admissible to prove liability for the injury.
  • But, unlike with 408 and 410, accompanying statements are not covered by this rule. E.g. “I’m guilty,” added to offer to pay med expense w/b admissible.
Pleas, plea discussions & related statements not admissible against r (such evidence is admissible against p.) who made plea or who was a participant in plea discussions. Includes:
  1. guilty plea later w/d
  2. plea of nolo contendre
  3. stmts made under Rule 11 FRCP (plea bargaining) or state procedure regarding these two pleas
  4. stmts made during plea discussions w/ an attorney for the prosecution (or if r reasonably believes he’s dealing w/ prosecuting attny) which don’t result in a guilty plea or which do but are later w/d
RELEVANCE -Specific Exclusions (Cont’d)
410 (Cont’d)
Doesn’t include:
  1. in proceeding where stmt made in course of the same plea h/b introduced and the stmt in fairness ought to be considered along w/ it,
in a criminal proceeding for perjury or false stmt if made by r under oath, on record and in presence of counsel.


Evidence that a person did or didn’t have liability insurance is not admissible to prove negligence.
But is admissible to prove agency, ownership, control, bias or prejudice. (need not controverted)
  1. evidence that any alleged vic engaged in other sexual behavior not admissible.
  • may not apply to letters, etc. (goes to character)
  • applies to lack of sexual conduct also.
  • behavior need not be voluntary
  1. evidence of alleged vic’s sexual predisposition not admissible.
  1. In crim case:
--evidence of specific instances to prove that a person other than accused was source of semen, injury or other phys evidence
  • not available if r admits to intercourse but claims consent
  • Inapplicable to prior false charges
--evidence of specific instances by the alleged vic w/ respect to person accused if misconduct to prove consent or by prosecution
  • available only where consent appears to be a genuine issue
--evidence the exclusion of which would violate the constitutional rights of the r.
  • 3 possible provisions:
  • guarantee of confrontation
  • compulsory process
  • due process
RELEVANCE -Specific Exclusions (Cont’d)
412 (Cont’d)
  1. In civil case:
--sexual behavior or predisposition admissible if probative value substantially outweighs the danger of harm to the victim or unfair prejudice. Reputation evidence only admissible if placed in controversy by alleged victim.
Procedure to determine admissibility:
  1. Notice. Party wishing to offer evidence must
--file written motion 14 days b/f trial specifically describing the evidence & stating the purpose for which its offered.
--serve motion on all parties & notify alleged vic.
  1. Court must conduct hearing in camera & afford vic & parties a right to attend and be heard.
  2. Proof. Papers m/b sealed.
  3. Balancing test. Used by court to decide whether evidence is relevant and whether its probative value outweighs the danger of unfair prejudice.
  • includes embarrassment of exposure and questioning.
  • bias against admissibility.
Relevance - Specific Inclusions
  1. Evidence of crim r’s commission of another offense or offenses of sexual assault admissible if accused of sexual assault.
  2. Govmt must disclose evidence to r 15 days f/b trial date.


(a) Evidence of crim r’s commission of another offense or offense of child molestation is admissible if r is accused of child molestation.
  1. Govmt must disclose evidence to r w/I 15 days of trial.
  2. Child = person under age 14
(a) Where civil claim is based on conduct constituting sexual assault or child molestation, evidence of r’s other offense or offenses of sexual assault or child molestation is admissible.
(b) disclosure to r w/I 15 days of trial required.

  • Phases of a case:
  • p presents his case-in-chief, then rests
  • r presents her case-in-chief, then rests
  • p presents his case-in-rebuttal
  • r presents her case-in-rejoinder
  • each side may present further cases-in-rebuttal or rejoinder
    • Phases of examination:
    1. direct examination by calling party
    1. cross by adverse parties
    2. redirect by calling party
    3. recross by adverse parties
    4. further redirect and recross as necc.
    b) Cross is limited to 1) subject of direct exam and 2) credibility of witness
    But court may at its discretion, permit inquiry into addl matters.
    • cts have discretion to take 1) a restricted or 2) open-ended approach to scope of cross
    • not applied as stringently when witness is a party
    • cts. may make allowance for broader and narrower cross where needed for orderly presentation.
    c) Leading (?’s) only in Cross, not direct, except:
    1. hostile witnesses
    • ct has discretion
    • children, mentally weak, ignorant, uncomprehending or unresponsive
    • infirm b/c of sickness or age
    • preliminary info.
      • or uncontested matters
      • e.g. name, address, occupation of witness
      • Leading Questions also allowed for:
      1. expert wintesses
      2. refreshing memory of wintess
      3. Where allowed, ct. may regulate questioning by:
  1. requiring questioner to show the factual basis of questions he intends to ask and disallow them if foundation is too thin,
  2. requiring the questioner to allude to the statement in a way only specific enough to jog the memory of the witness but not so detailed that it exposes the substance of the statement
  3. putting a stop to the inquiry after the question has had a chance to prod the witness
  4. requiring questions designed to refresh recollection to be asked outside presence of jury.
  • Leading question: one that suggests an answer
  • phrasing
    1. “isn’t it a fact that” - leading
    2. did you call him or did he call you - not leading
    1. context
    1. who asks the question - r or p
    2. inflection, facial expression, voice dynamics, etc.
    • Direct examination:
    • calling party must proceed by question and answer vs. by narrative recitation
    • questions m/n/b leading.
      • usually rules for direct @ rules for redirect
      • Right to Cross-exam - very important, \
      1. If witness dies or b/c ill, direct usually is
      2. If temporary problem, a continuance or order striking only part of testimony is possible
      3. No striking if:
      1. purpose of cross-examiner was substantially accomplished even if not finished
      2. if testimony was only cummulative or rel. to collateral matters or issues relating to veracity.


  1. Competency of witnesses presumed.
  2. But in civil action where state law governs, competency is determined by state law.
  • 3 issues of competency:
  • child
    • c/b excluded under 403 (low probative value)
    • c/b excluded under 603 since a child can’t take an oath designed to awaken witness’ conscience and impress the witness’ mind w/ the duty to do so.
    1. dead man’s statute - you can’t collect on an oral agreement if party to it is dead \ no testimony regarding convos or testimony of deceased allowed.
    2. hypnotically refreshed testimony - various approaches:
    --per se barring
    --as long as requirements met, hypnotized test. admissible.
Witness can only testify if evid is introduced that he had personal knowledge of the matter.
  • firsthand knowledge:
  • perception
  • memory
    • foundation c/b
    1. testimony by witness herself (e.g. that she was at the scene and saw the accident - THEN ask what she saw)
    1. or testimony by other witnesses
    2. or other evidence
    • an element of competency:
    1. ct determines competency: that a reasonable jury would find personal knowledge
    1. jury decides the ultimate determination of whether the witness in fact has personal knowledge.
    • Witness need only have actually heard or perceived overheard statement, not have any personal knowledge of the subject matter of stmt.
    • Witness need not be certain: impressions, what he thinks, believes, etc. is OK.
Witness must take oath of truthfullness.
  • an element of competency
  • Refusal to testify = contempt so probably refusal to take oath also = contempt.
Interpreter OK if needed.
Judges can’t be witnesses.
Juries can’t be witnesses
  1. at the trial or
  2. in inquiries into the validity of a verdict.
  • Neither can lawyers if its a case he’s litigating.
The credibility of any witness may be impeached by either party, including the party calling the witness.
  • Impeachment evidence is always relevant.
  • 5 categories of impeachment
  1. Bias
  2. Sensory/Mental Defect
  3. Contradiction
  4. By disposition witness is untruthful
  5. Contradictory statements made by the witness


  1. Credibility may be attacked or supported by opinion or reputation evidence except:
  1. evidence must refer only to character for truthful or untruthfulness
  2. evidence of truthful character only admissible if attacked.
Repairing and supporting witnesses
  • Limits:
  • can’t repair or rehabilitate b/f attack is made
  • repair must respond to the attack
    • But -
    • calling party may anticipate an attack and bring out impeaching facts at outset so it doesn’t look like he’s hiding the truth.
  1. “framework” evidence by expert witnesses designed to support testimony may be admissible even if truthfulness not attacked.
  1. Specific instances of conduct of witness may not be provided by extrinsic evidence but may be asked about on cross of witness concerning
  1. witness’ character for truthfulness or untruthfulness or
  2. the character for truthfulness or untruthfulness of another witness as to which he has testified.
  • Impeaching attacks may be specifically rebutted.
  • Redirect can be used to repair damage by asking about misconduct asked about in cross or other circumstances valuable to evaluating the conduct.
  • Experts cannot testify that witnesses are truthful.
  • Supporting character witnesses are subject to cross just like regular witnesses.
  • Usually done by testing the supporting witness’ knowledge (does she really know X’s rep), and judgment.
  1. Prior crimes admissible to attack credibility of
  1. witness other than accused if crime punishable by death or imprisonment > 1 year (per se dishonest)
--subject to Rule 403 balancing
if the accused, previous conviction allowed only if probative value of evidence > prejudicial effect
  • Factors:
a) nature of prior crime (did it involve deceit?)
b) recency or remoteness
c) similarity to charged crime
d) extent and nature of record
e) importance of r’s testimony
f) importance of credibility issues
  1. special facts surrounding crime
  1. conviction is admissible if involving dishonesty or false statement, regardless of the punishment.
  1. m/b conviction w/I 10 years unless probative value > prejudice.
If under 10 years adverse party w/b given sufficient notice of intent to use such evidence.
(c) not admissible if pardonned, annulled, etc.
  1. --based on finding of rehab and no subsequent crime (felony)


609 (Cont’d)
--or based on finding of innocence.
  1. juvenile adjudication not admissible. But in crim case, m/b admissible if witness other than the accused is juvenile and if it is necc to establish guilt or innocence.
evidence of pendency of appeal doesn’t make evidence of conviction inadmissible.
Evidence of religious beliefs or opinions not admissible to show that by their nature the witness’ credibility is impaired or enhanced.
Prior Inconsistent Statements
  • inconsistency = the thrust of prior statement differs significantly from the thrust of trial testimony
  • inconsistency = trial testimony suggests the witness has changed his view or made a mistake that matters.
  • inconsistency = prior statement omits a material detail but trial testimony includes it.
  • inconsistency = claims of lack of memory or knowledge that are false or feigned.
--but difficult to prove
  1. If examining witness re: prior statement made, need not show him the statement but may be shown to opposing counsel on request.
  2. No extrinsic evidence of prior inconsistent statement unless witness has a chance to deny it and the opposite party has afforded an opportunity to interrogate the witness.
  • Two Exceptions:
  • doesn’t apply to admissions by a party opponent
  • judge need not enforce the conditions if the interests of justice otherwise require.
    • No impeachment by silence allowed. (Miranda/Doyle)
    • Limitations to Doyle:
    1. doesn’t bar gaps in positive statements - P can ask about gaps in D’s earlier statements given to officers while in custody after being warned.
    2. doesn’t bar questioning about pre-arrest silence
    3. doesn’t apply to post-arrest, pre-warning silence - warning necc only for questioning, not arrest.
    4. if D testifies to exculpatory version of events and claims to have told the police the same thing on arrest, P can challenge whether he actually did tell police.
    • Probably doesn’t apply to silence by defense witnesses or silence in face of statements by people who are not police officers or law enforcement.


If not an expert, testimony on opinion or inference is limited to those which are
  1. rationally based on the perception of the witness and
  2. helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
Experts may testify in the form of opinion or otherwise so long as:
  1. qualified
  • by knowledge or expertise
  • his scientific, technical or specialized knowledge helps the trier of fact to understand the evidence or determine a fact in issue.
    • usually cts. reject exp test as to whether a witness h/b truthful
    • but syndrome testimony allowed
--Facts/data upon which expert bases his opinion m/b those perceived by or made known to the expert at or before the hearing.
--If data is type reasonably relied upon by experts, the facts/data need not be admissible in evidence.
--Expert may give reasons for opinion w/o first testifying to the underlying facts or data.
--But may be required to disclose the underlying facts or data on cross.
  • Trad: Frye Test - required proponent of evidence to show that the experiments or procedures are generally accepted in their field
  • FRE: scrutiny by trial judge of scientific reliability of evidence (generally accepted practice is but a factor).
--two difference aspects t/b evaluated:
  1. its scientific method
  2. application of the method to the factual inquiry under consideration.
--experimental testimony m/b based on a
  1. principle that supports what the testimony purports to show and
  2. consistent results from repeated applications of the principle m/b shown.
Generally, experts may state their opinions in any way they choose, except in criminal cases:
  1. usually testimony can’t be objectionable just b/c it embraces an issue t/b decided by trier of fact but
  2. experts in crim cases can’t explicitly say anything about whether a r possessed a specific mental state that is an element of a charged crime.
In civil actions, the burden of production is shifted to the party against whom a presumption is imposed.
  • i.e. if opponent introduces some evidence contradicting the presumed fact, the presumption loses its effect and the jury decides based on the evidence.
Opponent’s response Outcome
--no evidence on basic or presumed fact --proponent entitled to directed verdict on presumed fact.
--evidence that could suppt finding that basic --jury instructed to find the presumed fact if it finds the basic
fact doesn’t exist fact.
--evidence that contradicts the existence of the --no jury instruction requiring a finding; possible instruction
presumed fact. Allowable inference from the p’s evidence.


In civil actions, the effect of a presumption is determined to state law which supplies the rule of decision on the fact or claim.
--Privileges are t/b governed by CL as interpreted by fed cts.
--But in civil action where state law supplies the rule of decision, the privilege s/b det under state law.
  • Only prospective witness can exercise privilege (used to be that one spouse could prevent the other from testifying).
  • Applies to protect against revealing private statements, not information that the person knows, whether or not he may have communicated that info in privileged convos.
  • Compare to “spousal disqualification” - confidential communication can’t be subject to testimony by anyone, where disqualification means that only spouse can’t testify.
  • m/b married at time of communication
  • “communication” means verbal & non-verbal acts meant to convey info. (i.e. mere observation of a spouses’ noncommunicative behavior, appearance, physical or emotional condition, etc. ¹ communication)
  • Topic of communication m/h some relationship to the marriage (e.g. not biz).
  • Applies even after marriage ends (death or divorce).
501 (Cont’d)
  • No privilege when spouses litigate against each other
  • No privilege in criminal proceedings involving intrafamilial wrongdoing (assault on spouse or child).
  • no “confidentiality” if 3d party (except young children or interpreters) is present, or if intended t/b disclosed to others.
Recall: privileges are the only thing limiting 104(a) judge’s gatekeeping function.
Def of hearsay: out-of-court statement by a declarant to prove the matter asserted.
  1. statement: an oral or written assertion or nonverbal conduct of person if intended as an assertion.
  • c/b tape recording that stmt was made
  • c/b writing that stmt was made
  • includes human verbal behavior w/ purpose to express & communicate
  • includes “objective facts” (e.g. acts, events, etc and mental states*, scientific theories or opinions)
  • includes questions or commands that make claims about events & conditions (e.g. don’t trip on that!)
  • includes vague & indirect rhetoric, street slang, etc.
  • includes coded expressions
  • includes nonverbal expressive behavior (e.g. nodding head “no”)
  • “hearsay at one remove” - if rather than “x told me she was there,” observer states “she was there” when based only on what X told him, = hearsay.
  • “indirect account” - description of half a conversation suggests content of remainder \ still hearsay.
  • hearsay rule relaxed as to stmts about personal background (e.g. I was born on a certain date)
  • experts allowed to use info learned outside courtroom (FRE 703) but must be used in part to present their own conclusions.


801 (Cont’d)
  • reflexive, unthinking stmts (e.g. “ouch”) ¹ hearsay
  • social pleasantires (“hi, how are you”) ¹ hearsay
  • sleeptalk and delusional utterances (non volitional but still hearsay b/c untrustworthy)
  • conduct not intended as an assertion (e.g. stmt that bankrobbers wore masks, etc. ¹ hearsay)
  • behavior that is at least partly verbal and both assertive (expressive) and performative (doing things) ¹ hearsay
  • silence ¹ hearsay if no assertive intent (unless silence w/n normally be expected - eg. Speak if you feel pain)
“offered to prove truth of matter asserted”
  • m/b match b/t what proponent seeks to prove and what declarant says.
  • even if non-hearsay purpose, m/b excluded if jury is likely to misuse it as hearsay.
  • points closely connected w/ observers expressive intent s/b viewed as part of what was intentionally said.
  • indirect assertions (use of non-literal language) = hearsay if speaker meant to assert the point for which the stmt was offered.
  • *usually stmts used to prove s/t abt speaker’s state of mind = hearsay (indirect assertion) but not non-hearsay circumstantial evidence used only to prove state of mind - e.g. (nonsensical statements used to prove sleepwalker’s insanity)
non-hearsay uses:
  • Impeachment - prior stmts used for impeachment ¹ hearsay
  • use of stmts heard, read, etc. by a person to prove what a person actually knew or understood ¹ hearsay
  • “verbal objets” ¹ hearsay (e.g. testimony of license plate #)
  • “verbal markers” - words used to mark a moment in time or a specific person
  • circumstantial evidence of speaker’s knowledge acquired by reason of having experienced something:
  1. stmt must describe s/t unique or unusual
  2. act, event or condition shown by independent evidence
  3. circumstances strongly suggest declarant w/n know of act unless he’d actually experienced it.
HEARSAY - Exclusions
Admissions by opponent are excluded from hearsay rule. 5 types:
  1. party’s own statement
  2. stmt which party has manifested an adoption or belief in its truth (sometimes includes silence)
  3. stmt by a person authorized by the party to make a statement concerning the subject.
  4. stmt by the party’s agent or servant w/I scope of agency or employment made during the existence of the relationship. (s/t even if agent not authorized to make statement)
  5. stmt by a conspirator of a party during the course & in the furtherance of the conspiracy.


Prior statements.
  1. prior inconsistent statements - c/b used for more than just impeachment (to prove truth of matter asserted) if:
  1. stmt is inconsistent w/ later trial testimony
inconsistency includes:
  • conflict by implication
  • one includes a part the other omits
  • one is pointed and specific but other is qualified/general
  • previous positive stmt followed by “lack of memory at trial.”
  1. made under oath @ trial, hearing, etc. (formal proceeding)
  • stmts made in separate proceedings involving different parties and transactions
  • official record m/b routinely kept
  • administrative proceedings, grand jury proceedings
  • not necc. an affadavit unless witness admits in trial that he made it and swore to it.
  • not declaration to law enforcement agents on street or in stationhouse.
  1. speaker subject to cross on earlier stmt
  • where spker c/b questioned abt. stmt but not acts, events or conditions described it it.
  • where witness stonewalls and completely remembers nothing about the situation in which prior statement was made (see Owens case)
HEARSAY - Exclusions (CONT’D)
801(d)(1) (Cont’d)
  1. prior consistent statements (response to impeachment) not hearsay if:
  1. stmt consistent w/ present testimony
  2. admissible to rehabilitate him & tends to rebut a charge of “recent fabrication or improper influence or motive”
  3. speakers m/b subject to cross on statement.
  • setting of stmt irrelevant (e.g. need not be sworn, etc.)
  • need not be on redirect, c/b extrinsic evidence
Consistency includes:
  • trivial and inevitable variations in wording
  • not new points not covered in testimony by speaker (unlike 801(d)(1)(A))
  • prior consistency must come before the motive or influence took effect.
Attack & Refutation requires:
  • m/b an attack that intends to and does raise recent fabrication or improper influence
  • must tend to refute the charge
  1. statement identifying a person excluded from hearsay rule
  • c/b made by witness or PO who saw/ran lineup
  • not just line up situation; anyone who makes ID or hears someone make ID can testify.
HEARSAY - Exceptions - where it doesn’t matter whether declarant is available. (low risk situation)


  1. Present sense impression
  • declarant describes or explains an event or condition made while he was perceiving it or immediately thereafter
  • rule doesn’t require that the stmt be made to anyone who was in a position to correct the stmt if it was wrong.

HEARSAY - Exceptions - where it doesn’t matter whether declarant is available. (low risk situation)
(2) Excited utterances
  • smt relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.
  • Treated almost like present sense impression
  • unconscious person can wake up and say something about cause of injury even if long pd. Of time b/t stimulous & stmt.
  • some courts: not excited utterance if made in response to someone’s question.
  1. Then existing Mental, Physical or Emotional Condition
--What a person is feeling at the time he speaks (e.g. intent, plan, motive, design, pain, etc.)
--Not including a statement of memory or belief to prove a fact unless it relates to the execution, revocation, ID or terms of a decedent’s will.
  • “mental state exception” - proof of a person’s feeling not admissible to prove that a remembered fact is true.
+ “I saw Bill yesterday” is admissible to prove declarant thought he had seen Bill yesterday but not that it was true.
  • Statement of a person’s plan or intention admissible on:
  • whether declarant had that plan and
  • whether declarant carried out the plan
  • + but statement about past act = hearsay if offered to prove the act occurred.
    • mental state exception c/b used to show the conduct of another person. (that the other person acted as declarant expected.)
    • Often used to imply that the speaker was insane by showing that the stmt reflected the speaker’s belief.
    (4) Statements for Medical Diagnosis or Treatment
    --and statements describing medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof, reasonably pertinent to diagnosis or treatment.
    • overlaps with 803(3)
    • some courts allow stmts made to non-treating physicians for testimony purposes


HEARSAY - Exceptions - where it doesn’t matter whether declarant is available. (low risk situation)
  • need not be made by person needing medical help (e.g. c/b family member, etc.)
  • need not be made to doc (nurse, etc. OK).
  • doesn’t apply to statements regarding causation - e.g. “Car was driven through red light.”
  • particularly applicable in child sex abuse cases.
Past Recollection Recorded
Records concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately ¹ hearsay.
  1. witness once had knowledge abt the subject
  2. witness does not have adequate recollection to testify “fully & accurately”
  3. witness made or adopted the record when he had a fresh memory of the info
  4. assurance by witness that the record is accurate
  • won’t be admitted as evidence, but read to the jury.
  • opponent has option to admit as exhibit (to show jury that the doc is unreliable)
  • contrast w/ 612 Present Recollection Refreshed - not jogging a person’s memory so that he can testify on his refreshed recollection, but merely that he used to know something.
Business Records: records of
  1. regularly conducted activity
  2. made at or near the time by a
  3. person w/ knowledge
  4. kept in the course of regularly conducted business activity
  5. if it was the regular practice of that business activity to make it.
  • witness must testify about how record meets these requirements
  • may not meet exception if circumstances of preparation or source of the info seems unreliable
  • once admitted into evidence, its contents can be discussed
HEARSAY - Exceptions - where it doesn’t matter whether declarant is available. (low risk situation)
803(6) (Cont’d)
  • includes simple (e.g. invoice) records or complex (e.g. medical) records.
  • “opinions or diagnoses” language intends to include those made in course of biz (e.g. medical records) but opinion evidence still subject to opinion and relevance rules.
  • hearsay w/I hearsay - each stmt w/I the biz record must meet an exception or exclusion.
  • BUT - duty to report - if all declarants in a chain of hearsay had a duty to report the contents of their statements, biz records exception is satisfied.
unless the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness…
  • e.g. RR accident report prepared w/ litigation in mind (not determinative)


Public Agency Records
3 categories:
  1. activities of govmt entity (e.g. personnel records)
  2. matters observed & reported under legal duty; except in criminal matters observed by police (s/t this exception only applies to prosecution)
  3. factual finding resulting from legally authorized investigations. (evaluating report) - only in civil actions and against govmt in criminal cases
unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness…
HEARSAY - Exceptions - only if declarant is unavailable (higher risk situation)
Unavailable = declarant:
  1. has privilege to refuse to reveal a communication
  • court must be fairly formal about ruling about privilege
  • refuses to testify about the subject of the statement
  • cannot remember the subject
  • presence is prevented by death or illness

HEARSAY - Exceptions - only if declarant is unavailable (higher risk situation)
Former Testimony: In criminal or civil cases, testimony at an earlier proceeding or depo is admissible if the party against whom the testimony is offered had opportunity and motive to cross-examine that is similar in both trials.
  • s/t includes predecessor in interest of party
  • if witness’ testimony or suit was unimportant to the party but is important to new case, not admissible (e.g. in depos you want to find out anything you can but in trial you may not want it all to come out)
Dying Declarations
  • only c/b used for one topic - declarant’s belief about the cause of what he believed to be his impending death
  • civil cases & homicide prosecutions only.
  • declarant need not actually die (but might be otherwise unavailable)
  • requires some knowledge of the matter.
Statements Against Interest
  • declarant need not be a party
  • doesn’t matter in whose favor the statement is sought to be introduced
  • declarant m/b unavailable
  • when declarant made the statement, it had the potential to harm an important interest of the declarant
--“reasonable person’s” interests might be affected by the statement (monetary, proprietary or criminal but not social)
--if a statement exposing declarant to criminal liability is offered to exculpate another person, the statement will be admissible only if corroborating circumstances clearly indicate that it is trustworthy.


Statement concerning declarant’s own birth, adoption, marriage, divorce, legitimacy, etc.
  • no personal knowledge required
  • close friends of family OK.
Residual Exception
  • stmt offered vs. party who’s engaged in wrongdoing intended to cause unavailability of declarant ¹ hearsay.

HEARSAY - Miscellaneous
Treatises are excepted from hearsay rule.
  • Even for purposes other than to impeach (not used to prove truth of matter asserted) expert witness
Residual Exception - evidence that doesn’t fit any other exceptions must be excluded if:
  1. trustworthy (no one would make up a story about a fire in a small town)
  2. necessary
  3. reasonable efforts made to procure other evidence
  4. interest of justice w/b served.
mostly used for:
  • sexual abuse of children
  • use of grand jury testimony
  • Multiple Hearsay Rule - hearsay w/I hearsay - each stmt w/I the stmt must meet an exception or exclusion.
  • Attacking and Supporting Credibility of Declarant
--If a hearsay stmt is admitted, the opponent may treat the declarant as if he’d come to court for purposes of impeachment
--i.e. can impeach based on bias, interest, motive, mental defect and by
  1. reputation or opinion
  2. prior convictions or
  3. evidence of prior non conviction misconduct
--for inconsistent statements, no need for witness to have oppty to deny or explain (as in 613)
--If opposing party calls declarant (he’s available) as a witness, the party is entitled to examine the declarant as if on cross.
Voluminous evidence may be presented in the form of a chart, summary or calculation.
  • includes graphics (e.g. pie charts)
  • can offer original and/or summary - need not choose b/t them

Judicial Notice
Judicial Notice of Adjudicative Facts
  1. m/b adjudicative fact
  • those to which the law is applied to prove question of fact
  • those that would normally go to the jury
  • usually doesn’t apply to law but could argue that law is a special kind of fact
  • types of adjudicative facts:
  1. geography
  2. history
  3. science
  4. health
  5. economics
  6. politics
  7. govmt recordkeeping
  8. calendars
  1. m/n/b subject to reasonable dispute
  1. generally known (every damn fool principle) w/I jurisdiction of the court OR
  2. capable of accurate & ready determination
  • BOP on requesting party to show fact is undisputed
  • and accuracy of source (but in proving this, party need not comply w/ evidence rules)
  • focus is on certainty of proposition, not specificity (even general stmts c/b undisputed)
  • judge’s personal knowledge is irrelevant, so long as known by people in the area
  • but if he doesn’t know, how do you prove its generally known
  1. court has option to take judicial notice (even if not requested)
  • but usually won’t do so if party prefers to use evidence
  • court must take judicial notice if requested and supplied w/ necc. info
  • party has right to be heard re: propriety of taking judicial notice
  • judicial notice c/b taken at any stage of proceeding
  • in civil action, ct will instruct jury to accept judicially noticed facts as conclusive
    • but in crim case ct. will instruct jury only that they may accept such facts as conclusive.


Judicial Notice (Cont’d)
201 (Cont’d)
  • s/t cts take notice to reject the truth of facts alleged
  • when ct. decides motion for directed verdict, it considers all the facts in light most favorable to party against whom the motion is made, but disregards evidence contradicted by judicially noticed facts.
  • judicial notice is used after the conclusion of trial to remedy gaps in proof
--but not allowed in criminal cases
--and s/t prohibited in civil trials where one party adversely relied on the other’s failure to prove subsequently noticed facts.
  • generally judicial notice isn’t taken on appeal (b/c appellate cts have limited factfinding functions)






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