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Course: Evidence Outline Winter Nofar 2000
School: University of Detroit
Year: 2000
Professor: Mavel
Course Outline provided by





Testimony of a witness who relates - not what he knows but what he has heard said from others. Hearsay includes nonverbal conduct, which is intended to be equivalent to spoken assertions. This is called assertive conduct. OR evidence not proceeding from personal knowledge of the witness but from mere repetition of what he heard others say.


R.801(c) hearsay is a statement (assertion--either oral, written, or implied by conduct), other than the one made by the declarant while testifying at the trial or hearing [must be at a trial, hearing, or deposition, because ACN says senate intended a judicial setting, a police station interview is not w/in the contemplation of a trial, hearing, or deposition.], offered in evidence to prove the truth of the matter asserted.




R.801(d)(1) Prior statements by witnesses. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is [the logic of R.801(d)(1)ACN is that prior statements are more reliable because they were under oath-subject to penalty of perjury, subject to cross examination, prior stmt was made closer to the incident--memory is fresher and no threatening influence as in a trial where the accused may threaten the witness.]


R.801(d)(1)(A) inconsistent (stmts.) 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. [trial judge has the discretion of determining if inconsistency exists R.104(a)]


  • P. 4-A: witness claims that the forgot he grand jury testimony because of bad drugs--so cannot testify at ct. D claims there is not inconsistency because there is no stmt. (D is wrong)

  • (US v. Williams)note-case; Inconsistency can be found in evasive answers/silence or changes in declarant’s position.

  • What about the cross-examination requirement R.801(d)(1) concerning prior inconsistent stmts. R.801(d)(a)(A)?--witness is subject to cross --he’s on the stand even though he cannot answer or refuses to answer (US v. Owen). Don’t have to remember assault -- may only know the assailant.

  • Introduced on cross-examinationR.405(b)


R.801(d)(1)(B) consistent (stmts.) 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 [purpose is to rehabilitate the witness, repair credibility, respond to an attack--rebut charge of fabrication or improper motive] [rule is silent on timing, cmn law is concern w/ timing even though the rule doesn’t mention anything about timing, the consistent stmt must have been made before the alleged influence, or motive to fabricate arose]

  • R.801(d)(1)(B)”not hearsay”--this rule requires that the declarant testify at the trial and be subject to cross-examination concerning a stmt that is consistent with his testimony and “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” The prior consistent stmt must be made before the D acquired the motive to fabricate.

  • (Tome v. US);(Sct)-- father was convicted of sexually abusing his daughter. Prior stmts. by daughter to others were admitted to refute the claim that her wish to live with her mother was motivation for her testimony that her father assaulted her.


R.801(d)(1)(C) identification of a person made after perceiving the person [this rule is a hearsay exception for previous stmts. of identification by a witness after perceiving the subject.]

  • pre-trial identifications maybe more trustworthy. e.g. a line-up is less suggestive vs. pointing him out of a court room -only one D. Prior identifications are more reliable than in court identification--the prior identification doesn’t have to be under oath e.g. identification from a photo album, at a crime scene--a dead body, give a description to police--police sketch.

  • (State v. Motta);(Hawaii Sct)--cashier gave a description to police who then made a composite sketch of D. Is sketch inadmissible hearsay R.802? Ct said that composite sketch is hearsay but is admissible under R. 801(d)(1)(C) because it is being offered as a stmt made out of court to prove what the suspect looked-like (US v. Moskowitz)


ADMISSIONS:--- direct evidence

R.801(d)(2) Admission by a party-opponent. The statement is offered against a party and is


  • EVIDENTIARY ADMISSIONS mean that the admissions are not binding, only admissible, the declarant can still take a conflicting position at trial. (i.e. complaint--it can be amended/revised.

  • JUDICIAL ADMISSIONS, are admissions made to court and bind you in the rest of the case (i.e. an answer to a complaint).

  • Admissions are a very probative class of direct evidence--meaning that they establish the truth of what it is trying to assert. Compare w/ circumstantial evidence--could have one that one explanation.


R.801(d)(2)(A) The party’s own statement, in either an individual or representative capacity or

  • Signing a time [ R.801(d)(2)(A)] is an admission and also a business record [R.803(6)]

  • Stmt is admissible even if the declarant lacks personal knowledge--trumps R.602 which requires personal knowledge.

  • P 4-B: Owner of auto shop made stmt (claim) to insurance company for fire damage, Is the stmt/claim relevant by the car owner of proof of fault? Even if owner didn’t have personal knowledge or witness the incident? yes. This rule says that a party’s own stmt is relevant, it has probative value and low prejudicial effect.

  • P 4-C: Guilty pleas are admissible. The parties stmt is binding because court is relying on plea (its a “judicial admission.” The exception is a misdemeanor infraction; they are not viewed as admissions of guilt or fault. Admissions are direct evidence of guilt. A guilty plea (admission) from a criminal trial is admitted in subsequent civil damage actions arising from the same incident.

  • (Bruton v. US)(Sct)--Accomplice testimony. Court said that limiting jury instructions as to an accomplice confession is not admissible in trial where another accused has not confessed (one D’s confession implicates another--spillover confession). Reason is that the statement is too prejudicial. The risk that the jury will not or cannot follow instructions is so great and the consequences or failure so vital to the D, that the practical and human limitations of the jury system cannot be ignored.

  • Pleadings are admissions

  • trying to conceal a body is an admission.


R.801(d)(2)(B) A statement of which the party has manifested an adoption or belief in its truth

  • When silence is relied upon, the theory is that the person would, under the circumstances, protest the stmt in his presence, if untrue, ACN. The court's decision on each case relies on an evaluation of probable human behavior. The suggestion is strong to provoke response--otherwise it’s an adopted admission. R.104 judge has to find if stmt was adoptive & circumstances surrounding the event. Whether an adoptive admission is present is a jury question.

  • (US v. Hoosier);(Ct/app) --D’s girlfriend made a confession to a third party, The stmts were made in the appellants presence--he was silent.--so not to admit anything--he should have denied his girlfriend. The probable human behavior would have been for the appellant to promptly to deny his girlfriend’s stmt if it had not been true.

  • Break down of the burden of proof for silence as an admission. Mueller and L. Kirkpatrick, Federal Evidence: (a) the party heard the stmt; (b) the matter asserted was within his knowledge; (c) the occasion and nature of the stmt were such that he would likely have replied if he did not mean to accept what was said. Silence is very circumstantial --its not direct evidence of fault.

  • (Doyle v. Ohio);(Sct)-- The D’s had a story at trial and were silent at arrest--the officers inferred that the story was fabricated--the state wanted to use the post-arrest silence to impeach D’s testimony. Miranda dictates that an accused has a right to remain silent--way to preserve 5th amendment rights. Every post arrest silence is ambiguous. The use of silence after the D’s were given their Miranda rights cannot be used to impeach the D’s story at trial -- it would violate the due process clause of 14th amendment. This case doesn’t apply to pre-arrests.


R.801(d)(2)(C) A statement by a person authorized by the party to make a statement concerning the subject, or (i.e. attorney, or persons that have power of attorney).

  • Agent’s words commit its agents. An agent is hired to speak for him.

  • Communication to an outsider is generally not thought to be an essential characteristic of an admission. A parties books and records are usable against him, w/out regard to any intent to disclose to 3rd persons ACN.

  • Board of Directors is an agent.

  • Written reports by an agent are admissible under R.803(6)--need authentication.

  • Is the agent/attorney stmt privileged?


R.801(d)(2)(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

  • Was the admission made by the agent--Q. was employee acting in the scope of his employment? Is the matter being talked about within the scope of employment? The stmt must be made while the declarant is still employed -- after EE quits stmt is irrelevant.

  • Exception: An employee is not hired to speak for ER (i.e. government employees).

  • ER doesn’t need actual knowledge R.602.

  • (Mahlandt v. Wild Candid Survival), employee statements (phone and face to face) to employer admitting guilt that the wolf attacked a boy are admissible admission Internal reports come in under this rule. (i.e. an employee writes a report stating that the company is guilty--also admissible under R.803(6).



R.801(d)(2)(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Show 3 elements for admissibility: (1) the declarant and D conspired; (2) the stmt was made during the course of venture (pendancy)(i.e. sychonize watches--planning the crime); (3) & in furtherance thereof.

  • (US v. Inadi)(Sct);Proof of conspiracy is invariably circumstantial; the conspiracy stmts themselves are almost a crime. D will not succeed on a confrontation claim

  • while a stmt by a coconspirator is not hearsay, the stmt alone does not suffice to establish a conspiracy in which the D participated plus one or more overt acts.

  • Proponents want judge to use jury instructions to instruct the jury--reason is to have joint trials -- to conserve funds & avoid delays

  • Agreement to commit a crime plus one or more overt acts (ex. drive a car)

  • Doesn’t need to be a conspiracy case. (i.e. what colleague says can be used against you - like agency R.801(d)(2)(E).

  • (Bourjaily v. US) (Sct)--Judge has to find by a preponderance of the evidence - R.801(d)(2)(E). The offering party must prove (preliminary facts) by a preponderance of evidence

  • Stmts of hearsay alone can be used to establish foundation under the federal rules (called bootstrapping--involves considering the truth of hearsay stmts before they are admitted)



AVAILABILITY OF DECLARANT IS IMMATERIAL declarant doesn’t need to be present--compare with R.801(d)(1) & (2)


R.803(1) Present sense impression--by someone other than the declarant: immediacy is the key time lapses of seconds are tolerated but not usually hours--declarant observes and speaks, describing what he sees as he sees it. Must have personal knowledge R.602--compare w/ R801(d)(1) & (2)-Don’t need personal knowledge.

  • (Nuttall v. Reading);(Ct/app) --ER forced a sick EE to work and he died. Wife talked about his physical appearance. Affidavits are hearsay and not present sense impressions

R.803(2) Excited utterances: Excitement is the key --declarant sees a startling event that rivets his attention and then speaks in reaction. /must be under the stress of an exciting event.

  • (US v. Iron Shell),(Ct/app)--a person must be under the stress of the event and the stress relates to the event. Federal Rules do not require independent evidence to collaborate stmt.

  • Has stress/excitement dissipated? (e.g. the stress from a sexual assault may last for hours)

  • (US v. Napier), (Ct/app)--Excitement can be rekindled long after the event. (e.g. if the declarant is suddenly reminded of a traumatic experience --i.e. sees newspaper picture of D and scream.

  • (Chestnut v. Ford Motor),(Ct/app)--when someone drifts in and out of consciousness or lucidity for many hours after being in an accident, the stress of the event and ensuring trauma endures. Look to see when the person regains his reflective powers.

R.803(3)Then existing mental, emotional or physical condition (state of mind). R803(3) enhances R.803(1).

  • the state of mind exception is used to prove declarant’s then existing physical condition, then existing mental or emotional condition; his subsequent conduct; facts concerning his will.

  • Declarant’s then existing physical condition--In personal injury suit--stmt describing aches & pains --so long as his words describe how he feels as he talks.

  • (Morris Jewelry v. General Elec.);(Ct/app)--complaints and expressions of anger in letters to customers were admissible to prove state of mind.

  • (Bartlett & Co. v. Merchants Co.);(Ct/app)--The hearsay exception reaches only statements of present mental state. Hence what a party says on Wednesday about his mental state on Monday is not within the exception.

  • Ex. my head hurts (this is state of mind) however, cannot state whose at fault

  • PAST V. PRESENT & RELEVANCY--“I went to the ballgame last night”--this is not a hearsay exception under R.803(3). Past events are not relevant. Compare to “I plan to go the game tomorrow”--this is the existing state of mind; statements that look forward are PROBATIVE/relevant.

  • (Mutual Life v. Hillman);(Sct)--The letters from Walters, oral evidence of which was held admissible, was actually a declaration of a Walters’ intention not simply to travel to Colorado but to travel with Hillmon, and the inference the jury would draw was that this represented a previous arrangement between them. There is a probative connection between things you say you are gonna do and you actually do. Statements that look forward are relevant.

  • the rule doesn’t require declarant to be at trial--he can even be dead.


R.803(4) Statements for purposes of medical diagnosis or treatment. (Stmts by physicians, nurses, psychiatrists, and clerks at clinics, good Samaritan who brings patient to hospital)-(Descriptions of both present and past symptoms that they be pertinent to diagnosis(evaluation) or treatment (emergency room). Reason for rule is that the rule focuses upon the patients and relies upon the strong motive to tell the truth because diagnosis or treatment will depend in part upon what patient says (stmt are trustworthy)

  • R803(4) admits 3 type of stmts (1) medical history; (2) past or present sensations; (3) inception or general cause of the disease or injury.

  • (US v. Iron Shell), (Ct/app)--D said that the physician stmts were not pertinent to diagnosis or treatment. Ct said that stmts on cause of the injury was important to provide guidelines for his examination.“ R.803(4) clearly permits the admission into evidence of what the P told the physician about her condition and its origin as long as the physician in formulating his opinion relied it upon. Stmt--”he tried to put something in my vagina that hurt”; was the stmt pertinent to diagnosis or treatment? yes; what if assailant had AIDS?

  • ACN on R.803(4) states that statements as to fault are not admissible. A patient’s stmt that he was struck by an auto would qualify but a stmt that the car was driven through the red light. The fact that a patient strained himself while operating a machine may be significant to treatment but the fact that the patient said the machine was defective may not. (Stewart v. Baltimore & O.R. Co.)


R.803(5) Recorded recollections (past recollections recorded). When a witness cannot recall his past stmts; try to remind/refresh the recollection of the witness by quoting relevant portions or showing him the document. To do so must demonstrate that (1) the witness lacks recollection of the matter; (2) the stmt accurately reflects knowledge he once had; (3) he “made” or “adopted” (by writing and signing) the stmt and (4) he did so while the matter was “fresh” (the stmt displayed no lapse of memory and was specific in detail. Gaps or qualifications on the face of a stmt reflecting incomplete or uncertain memory suggests it is stale) in his mind. See R.612

  • (Ohio v. Scott),(Ohio Sct)--Witness’ stmt consisted of facts of which the witness had firsthand knowledge; the written stmt was the original memorandum made near the time of the event while the witness had a clear and accurate memory of it; the witness lacked a present recollection of the words used by the D in the conversation; and the witness stated that the memorandum was accurate. Under R.104 the judge decides if witness lacked such recollection.

  • Note the difference between refreshing the recollection and restoring the written stmt. Refreshing under R.612 means refreshing the witness--not the jury, the jury doesn’t get to see it.

  • Compare R.801(d)(1)(B) prior consistent stmts with R.803(5).

R.803(6) Records of regularly conducted activity. the 4 elements to the exception

  • K.R.A.P. Kept in regular course of business; Regular activity--done often; At or near event-contemporaneous record; generated by a Person with knowledge.

  • (1) Regular business; regularly kept record. the exception embraces only records of a “business, institution, profession, occupation or a calling, schools, churches, and hospitals--it need not generate profit.

  • (2) Regularly generated. ex. charge out slips from the library.

  • (3) Timely--Contemporaneity; the information of the report must be recorded at the time of or close to the time of the event.

  • (4) Personal knowledge of source; the source of the information must be a person with knowledge. However, the person who makes the entry need not have such knowledge--allows multiple hearsay.

  • Foundation testimony; every hearsay exception requires a foundation.

  • (Petrocelli v. Gallison);(Ct/app)--to be admissible as a “business record” under R.803(6), the notations written down by the doctor would have to represent either opinions or diagnosis of doctors . If the entries were merely relaying what P or his wife told the physician--the matter would not be admissible under R.803(6). This rule requires that information in a business record be transmitted by a person with knowledge acting in the course of regularly conducted business activity. REQUIRES PERSONAL KNOWLEDGE

  • (Lewis v. Baker); (Ct/app)--accident report needs to be made at or near the time of the accident. Police report.

  • A calendar/schedule--is this a business record--is relevant? Probative? Is it a regular business practice?

  • (Palmer v. Hoffman), (Sct)note case--Sct found that an accident report made by a railroad’s engineer who almost certainty affected by the prospect of litigation was seeking to hold him personally accountable for the mishap was not made in the regular course of business under 28 USC §1732(a). Report preparer was a potential D-- therefore he was untrustworthy. Look to the maker of the report; would he be a potential D? The police record in Baker is double hearsay under R.805. 1st, The record is the facts as recorded by the police officer. 2nd, the stmt from truck driver R.801(d)(2)(A). The total report is the conclusion is admissible. The only part of R.803(8) that is admissible in court is part (C)--the factual findings--in this case the police report.


R.803(8) Public records and reports;


  • Clause (A) embraces mundane documents describing “activities of the office or agency.” Ex. court transcripts to prove testimony, a marshals return to indicate service of process, an order committing a criminal D, a process sheet prepared by the treasury department describing the processing and mailing of numbered government checks.

  • Clause (B) embraces “matters observed” by public officials, subject to certain restriction taken up below. Ex. include reports by building inspectors indicating code violations, a legislative preamble from a state law enacted in 1807. Restriction: barring “in criminal cases matters observed by police officers and other law enforcement personnel.”

  • Clause (C) embraces “factual findings” (they make a conclusion-this is the only finding that is admitted) from official investigations, subject to certain restrictions. Ex. findings of employment discrimination based on race and gender by EEOC, studies on toxic shock syndrome by CDC, reports on power tool accidents.

  • (US v. Oates), Report by US Customs Chemist to prove substance of D had in his possession was heroin was inadmissible as evidence under R.803(8) an evaluation is not a public record. FACTUAL FINDINGS

  • R.803(8) does not apply to criminal cases.

  • Polygraph tests--examination results are they routine? Could they be the conclusion? Is it a business record under R.803(6)?



R.804(a) Unavailability as a witness; (1) claim of privilege; (2) refusal to testify; (3) lack of memory; (4) death/illness; (5) unavoidable absence.

  • (Barber v. Page); (Sct)--Witness was incarcerated in an out of state prison. Prosecution could have made a phone call or obtained an order to produce prisoner (habeas corpus). Must make a good faith effort to obtain presence at trial. Witness was therefore available.


R.804(b)(1) Former Testimony; It embraces depositions and testimony given in preliminary heading in criminal cases. It requires that stmts to be given in a proceeding but does not require a “judicial” proceeding

  • The main limit in R.804(b)(1) is the cross-examination requirement. The language of the rule says the former testimony exception is available in civil cases if the party against whom it is offered or hid “predecessor in interest” had a chance to cross-examine the declarant in the prior proceedings. In criminal cases the requirement is stricter

  • The difference between this exception and the one for prior inconsistent stmts. Both require a chance for cross-examination, and the justification for each exception rests heavily on this point. R.804(b)(1) requires a prior chance to have cross-examined the declarant. R.801(d)(1)(A) requires a present opportunity to cross-examine the declarant concerning his stmts.

R.804(b)(2) Dying Declarations--stmt under belief of impending death

  • This exception embraces only those stmts “concerning the cause and circumstances” of impending death. Remarks identifying the assailant and descriptions of the accident or catastrophe apply. Conner v. State, run over by her husband, dying wife declares, “It was no accident.” It also embraces descriptions of prior threats and quarrels, physical pain or sensation, and matters inhaled, injected or ingested.

  • This exception applies in civil cases as well.

  • How do we know the declarant had an expectancy of imminent death? Mattox v. US, court relied on nature of wounds and advice by attending physician that declarant had no chance to survive.

R.804(b)(3) Stmts (declarations) against interest--

  • Declarations against interests are thought to be trustworthy on the grounds that a person is unlikely to state facts harming his own interest unless they are true.

  • (Williamson v. US);(Sct) Held that R.804(b)(3) does not reach associated stmts. Those that are merely related or collateral to against-interest stmts. Instead, any stmt admitted under the exception must itself be against interest. For a stmt to be against interest “a reasonable person in the declarants position would not have made the stmt unless believing it to be true.”

R.804(b)(4) stmts of personal or family history. This rule applies despite that the declarant conveys what he heard from another and thus lacks personal knowledge

  • R.804(b)(4)(A) declarant speaks mostly about himself.

  • R.804(b)(4)(B) declarant is “intimately associated” with family or the person he describes.




CHARACTER EVIDENCE--prohibition against admitting evidence

Character suggests a particular combination of human qualities that define a person. If someone is combative, careless brave, these traits shape his natural tendencies. While these traits are descriptive, suggesting probable patterns of behavior and thus telling us something about the likelihood that a person would or would not do certain acts. Emphasizing the predictive aspect of character traits. It is hard to measure the probative value of the character traits. Probative worth is decided by intuition and judgment.


R.404--CHARACTER EVIDENCE- Where character is an essential element in a case--WRONGFUL DEATH; DAMAGES; NEGLIGENCE. 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 except:


R.404(a)(1) Character of accused--Criminal D’s pertinent character traits that are inconsistent with charged offense. (i.e. he’s impotent) (A trait depends on what the charge is--to be pertinent)

R.404(a)(2) Character of victim--Victims pertinent character traits


R.404(a)(3) Character of witness--Witnesses character for telling the truth on or off the witness stand


R.404(b) Other crimes, wrongs, or acts--evidence of other crimes is not admissible, unless, used as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown. NO SIMILARITY REQUIRED.


R.404(b)Other crimes, wrongs or acts. Permits proof of previous “bad act” to prove state of mind (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge. The courts must carefully analyze the probative worth and the risks of unfair prejudice and confusion of issues under R.403.

R.404(b) requires a prosecutor to give notice, before trial if the defense requests “or during trial if the court excuses pretrial notice on good cause shown,” of “the general nature” of evidence of prior acts or wrongs that it intends to introduce.

  • (US v. Loera;) (Ct/app)-- INTENT; on the question of malice, court properly admitted prior misdemeanor convictions for drunk driving for these showed D had reason to know the risks his drinking and driving posed to others

  • (US v. Dornhofer);(Ct/app) INTENT; in prosecution for possession of child pornography, court properly admitted evidence that D had other similar material as proof of “intent and lack of mistake or accident.

  • (Sorrells v. US);(Sct)--INTENT; the entrapment defense raises the Q of intent. The heart of this defense is that government action induced a crime the D would not otherwise commit, and the usual response to the prosecutor is to offer proof that D committed similar crimes on other occasions--this type of proof is admissible.

  • (US v. Haney);(Ct/app)-- Do features known to be common to both what a Tim did before and on the charged offense amount to a “signature” or distinctive IDENTITY; MODUS OPERANDI?--suggesting that Tim probable committed the latter since we know he committed the former? In the instant case a prior bank robbery properly shown as a “signature crime” since it, like the charged offense involved a pistol. a warning against using a dye packs, a getaway car and a police scanner--this was used as proof of modus operandi.

  • (People v. Ewoldt); PRIOR ACTS OFFERED TO PROVE A PLAN, DESIGN; in trial of man for sexual assaults over a 3yr period against wife’s daughter J when she was 11 to 14 yr. old, involving touching and attempted penetration in bedrooms at home, admitting proof of other acts with J and her sister N, acts may prove a common design or plan if “similar” to charged offense even if not part of “single continuing conception or plot.”

  • (US v. Palmer);(Ct/app)--OTHER PURPOSES; MOTIVE AND OPPORTUNITY ;(often in the sense of skill or capacity to do criminal acts); courts admit previous abuse. In a tax evasion case, court properly admitted proof that D trafficked in drugs as evidence of his motive in using currency and failing to keep records. (MOTIVE--he’s a crack addict so he needed to rob a bank.

  • (US v. Mendez-Ortiz);(Ct/app)--evidence that D sought to bribe a witness was properly admitted to show his consciousness of guilt.

  • (US v. Huddleston);(Sct)note case--the rules do not require a “preliminary finding” by the court that the government has proved a prior act by a preponderance, but require only a “threshold” decision whether the evidence is probative of a material issue other than character. Proof of a prior crime is relevant if the jury R.104(b) “can reasonably conclude that the act occurred and the D was the actor,” the jury decides whether the government has shown these points by a preponderance of the evidence.



R.405(a)--use on direct (opinion & reputation)

R.405(b)--use on cross (specific instances)



Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

CHARACTER: a description on one’s disposition in respect to a general trait such as honest, temperance, or carefulness. Habit is more specific.

HABIT: Habit denotes one’s regular response to a repeated situation. Certain conduct follows or responds in response to a particular stimulus. Habit is a person’s regular response to a particular kind of situation with a specific type of conduct. ex. driving without a seatbelt, skipping every other stair step--it becomes “semi-automatic”;“mechanistic”; “reflex behavior”; i.e. putting on your turn signal before changing lanes. A witness’ recollection that someone did something several times (it must be a recurring situation--not just once and awhile) does not suffice to show habit--its not sufficient to establish a mode of behavior. NO EYEWITNESS NECESSARY


  1. Need personal knowledge --not that they told you what happened.

  2. Must be specific conduct to a recurring situation

  3. Frequency--routine practice--regularity

  4. Unreflective behavior--”unconscious thought”

  • Mechanical parts are not character traits under R.404. R.404 only applies to persons and corps. The absence of other complaints doesn’t mean there is nothing to complain about.

  • Habit must be of a specific type of conduct--not just being “aggressive” a habit is a specific response to a specific situation. “Being careful” is not habit evidence. It must be specific conduct. i.e. slow down toward a yellow light, always drive under the speed limit--this would be relevant if the charge is that speeding caused the accident, Habit of always crossing to the parking lot in the middle of the street and not using the crosswalk. Always stopping over the crosswalk stripes.




When after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.

  • After an accident has occurred, one of those involved takes steps to avoid future mishaps. i.e. physical modification of the machine, change label or instructions, fire an employee thought to be responsible. These subsequent remedial measures are excludable when offered to prove that the person in question was somehow at fault before. This exclusionary doctrine rests on policy, relevance, and confusion of the issues

  • Not an admission by conduct.

  • Flaminio v. Honda.



Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which is disputed is not admissible to prove liability or invalidity of a claim or its amount. EXCEPTION: The rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

  1. Must have an offer or a demand. Acceptance (which is a demand letter) offering to accept

  2. must have a claim that is disputed as to validity or amount. Must be a dispute to compromise. Something contested exchange of negotiations.

  • Admitting the validity of a claim--”I know I owe you 50K--but I’ll pay you 10K to avoid Ct.”



Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

  • It’s not an admission by conduct.



  • R.410(1)Pleas that don’t result in guilty verdicts; i.e. nolo contentere, withdrawn guilty plea are not admissible in any civil or criminal proceeding.

  • R.410(4) any stmt in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty are not admissible in any civil or criminal proceeding.

  • (1) it must be a plea discussion; (2) prosecuting attorney must be present.



  • Rape shield prevents evidence of victims other sexual behavior. We don’t want to make them a victim twice. Don’t have to satisfy R.404 in order to test R.412. R412 overrides R.404(a)(2).

  • EXCEPTIONS R.412(b)(1)(A):Evidence of a specific instance 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; (i.e. victim had sex with her boyfriend just before her alleged rape)

  • EXCEPTIONS R.412(b)(1)(B):Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused to prove consent. (i.e. they had sex before)

  • EXCEPTIONS R.412(b)(1)(C):Evidence the exclusion of which would violate the constitutional rights of the D.

  • (Olden v. Kentucky); R.412(b)(1)(C), exception to using victims other activity.







R.601 GENERAL RULE OF COMPETENCY- Every person is competent to be a witness....

  • (US v. Lightly);(Ct/app)-- eyewitness’ physician indicated that witness had a sufficient memory and he understood the oath and could communicate what he saw. Every witness is presumed to be competent to testify unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he doesn’t understand the duty to testify truthfully.

  • (US v. Raineri);(Ct/app)-- in exercising its discretion the court must consider the infringement on a witness’ privacy, the opportunity for harassment, and the possibility that an examination will hamper law enforcement by deterring witnesses from coming forward.


R.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.





R.603 OATH OR AFFIRMATION. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.

  • (US v. Fowler);(Ct/app)--the purpose of the oath is to impress on the mind of the witness a duty to speak only the truth

  • (Ricketts v. Delaware);(Delaware Sct)--Minor rape victim (6 yr. old) was allowed to testify--her promise to “tell the truth” was an affirmation sufficient to impress on her mind her duty to be truthful.

  • An affirmation differs from an oath by eliminating reference to swearing and to divine power. The precise words and ceremony that must be used in administering an oath or affirmation are not specified. i.e. a Mohammedan to bow before the Koran and touch it to his head


R.606 COMPETENCY OF JUROR AS WITNESS. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.

  • (Tanner v. US);(Sct)--Post verdict testimony by a juror is prohibited. A juror came forward after verdict but before sentencing. Juror testimony on intoxication was inadmissible under R.606(b) to impeach jury’s verdict. The only exception is when the jury conducted experiments without judge’s permission. Or there must be some outside influence.

  • Juror intimidation by other jurors to vote a certain way is inadmissible.




R.608(a)Opinion and reputation of character.

  • (US v. Abel);(Sct)--Sct held that evidence as to whether the D and the defense witness were members of a secret prison organization that required its members to lie for each other was sufficiently probative of bias to warrant its admission. The court also noted that FRE do not specifically address impeachment by bias and that practice existed at common law and was unregulated by the rules. The court defined bias as “a term used in the common law of evidence to describe the relationship between a party and witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor or against a party.” Ct to use its discretion. A cohort squealed on D to get a lighter sentence. This is bias that the D can use to impeach cohorts testimony. R.401 & R.403 apply.

  • (Simmons v. Pinkerton); R.608(b)--the fact that witness lied about the lie detector test and its results was to be shown that the witness was untrustful. However, the results of the tests are not admissible in court anyway. COLLATERAL-- means that if cannot be introduced into evidence as substantive proof, then it cannot contradict witness’s testimony for impeachment.

R.608(a)(2) REPAIRING CREDIBILITY--evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence. Two conditions: (1) courts disallow any attempt to repair credibility before an attack has come. (unless W is a hostile witness (2) the repair should be made at the point of attack.


R.608(b): specific instances of conduct can only be elicited on cross examination of a witness (i.e. prior inconsistent stmts, mental defect, attacking character, contradictory evidence).



R.609(a)(1)evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to R.403 (if its probative value outweighs its prejudicial effect to the accused), if the crime was punishable by death or imprisonment in excess of one year (felony):

  • (US v. Lipscomb);(ct/app); A prior conviction makes a witness less credible. The witness maybe competent under R.601 but will get beat-up under R.609(a)


R.609(a)(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false stmt, regardless of punishment.

  • i.e. perjury or filing a false tax return.


R.609(b) Time Limit: Evidence of a conviction is not admissible if a period of more than ten years has lapsed since the date of the conviction or the release of the witness from confinement






1. Gives the jury a reason to reject the story 1. Specific story/testimony, the blue car ran the red light i.e. Bias, prejudice, corruption, affiliation, interest

yes to extrinsic evidence


2. Physical & mental perception difficulties 2. Contradiction

yes to extrinsic evidence yes to extrinsic evidence


3. R.404(a)(3) untruthful or truthful disposition 3. Prior inconsistent stmts

R608(a) character for untruthfulness yes to extrinsic evidence

yes to extrinsic evidence

R.608(b) nonconvition misconduct

NO to extrinsic evidence

R608(c) conviction

yes to extrinsic evidence





R.701 OPINION TESTIMONY BY LAY WITNESS. If W is not testifying as an expert, the witness’ testimony in the form of opinions or inference is limited to opinions or inferences which are (a) rationally based on the perception of the W, (2) helpful to a clear understanding of the witness’ testimony or determination of a fact in issue.

  • R.602 requires lay witnesses to have “personal knowledge”

  • Lay opinion is permissible if it is rationally based on the perception of the witness and helpful to a clear understanding of the issue in the case.


R.702 TESTIMONY BY EXPERTS If scientific, technical, or other specialized knowledge will assist the tier of fact to understand the evidence or to determine a fact in issue, (1) a witness qualified as an expert by knowledge, skill, experience, training, or education, (2)may testify thereto in the form of an opinion or otherwise--assist the tier of fact.

  • ex. physicians, engineers, geologist Garret v. Desa Indus; a person holding a masters degree in engineering qualified as expert. The expert puts facts into perspective for jury. A fact witness must have personal knowledge. Experts need specialized knowledge.

  • Use facts made at or before the hearing; might learn facts at trial---i.e. listen to the witness’; super-hearsay exception R.703--rely on out of court stmts to make an opinion

  • R.702 embraces persons with practical experience but no formal training. ACN--skilled W’s i.e. banker, landowners. Farmers and rancher may testify as to the value of their crops. Same with a landowner.

  • Rules that apply R.401; R.403; R.104(a); R.801--hearsay exception; R.703 knowledge




  1. An expert may rely on facts or data that he learns by firsthand observation “before the hearing”. R.602--personally observes, diagnosis, examines or tests the very place, object, or person to be described in his testimony

  2. An expert may rely on facts or data that he learns “at the hearing”. i.e. while sitting in the courtroom listening to other testimony before taking the stand himself.

  3. An expert may rely on what amounts to outside data, meaning information that he gleans before trial by consulting other sources. i.e. company catalogs, market share data, and conversations with others--that is experts on outside data.





Burden of proof (presumptions): burden of production

burden of persuasion

R.301 Presumptions in general in civil actions and proceedings

  • Presumed fact-put letter in the mail and jury must find that the recipient rec’d it. D then must offer evidence to the contrary; i.e. “I swear I never rec’d it”

  • (Texas Dept of Comm v. Burdine);(Sct)-- P made a prima facie case by showing that she was a member of the protected class applied for a job and was qualified for the job and the job went to someone outside the protected class. P retains the burden of persuasion. CIVIL CASE

  • (Sandstrom v. Montana); (Sct)--The jury instruction was unconstitutional--it deprived the D of right to due process. In criminal cases the due process clause of the US constitution places limits on the extent to which the burden of proof may be placed on the D. A jury cannot be forced to convict in a criminal case. CRIMINAL CASE.




R.201 Judicial notice of adjudicative facts; judicial notice is a shortcut to proofs (relaxes the need for formal evidence). The court uses circumstantial evidence to prove facts. This eliminates the need for formal evidence. No foundation is needed. Compare with all other evidence--foundation is needed

  • Gov. of the Virgin Islands v. Gereau; Judges may not base judicial notice on personal knowledge. If a judge takes judicial notice its determinative, not contestable.

  • ex. exchange rate







  1. need confidential communication

  2. between the attorney & the client

  3. for the purposes of legal services

  • (People v. Meredith); (Cal Sct)--Attorney doesn’t have to turn over evidence that he comes across as part of his discovery--as long as the attorney doesn’t disturb it

  • (US. v. Kovel); (Ct/app)--the presence of an accountant hired by the law firm was relating complicated tax story to the lawyers. This was privileged info-the analogized it with that of a translator. What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.

  • (UPJOHN .v US);(Sct)--Sct addressed the question of who personifies the corporation as a client in its relationship with counsel. The court rejected the control group test (only applied to mgt. & executives) of a corporation. Ct seems to require a case by case analysis of the facts surrounding the communication by the employee to corporate counsel. The court emphasized that the communications in response to the questionnaire were made at the direction of corporate officers and for the purpose of securing legal advise from the corporate counsel. Under such circumstances the court held that the attorney client privilege applied. The ct said the same 3 questions for individuals apply to corporations to determine if a employee’s communication with an attorney for the corporation is privileged.

  • (State v. Phelps); (Oregon Ct/app)-- clients notice to commit a future crime or fraud is not privileged.

  • the mere transferring of a document to an attorney does not make it privileged.

  • Marital privilege: confidential communications made during the marriage are forever privileged even when divorced--as long as it was made during the course of the marriage. EXCEPTIONS:


















  1. R.404(a)(1)&(2); character evidence to prove conformity with that character

  2. R.801(d)(2)(B); Silence, adoptive admission

  3. R.801(d)(2)(E); stmt by co-conspirators

  4. R.406; habit evidence

  5. R.608(a); evidence of character and conduct of witness

  6. Flight of an accused--look to the D’s consciousness of guilt

  7. Alias; names; destroying documents, tampering with a witness



  1. Direct evidence requires exhibit testimony--direct evidence is always relevant.

  2. R.803(6), (8)

  3. R.801(d)(2)a,b,c,



essay format



R.401 R.404(a)&(b)

R.402 R.405(a)&(b)

R.403 R.406

need personal knowledge R.602





R.801(d)(1) &(2)

R.803( )


Personal Knowledge R.602

Cts discretion R.104(a)







R.901--for exhibits






R.608--based on character

R.609--based on crime, §(b) based on R.401




R.701--lay witness needs R.602

R.702--expert doesn’t need R.602
















R.404(b) MI requires a mandatory pretrial notice and the particulars of “rational” i.e. motive, opportunity. FRE must ask for it “general nature of evidence”


R.410 MI if nolo pleader suits, i.e. sue for the insurance money, plea can be used offensively


R.413-415 MI has none.


R.609(a)(1) felony-requires balancing. MI must involve an element of theft


R.609(a)(2) MI doesn’t have this


R.703 MI--court may require the underlying facts be in evidence


R.803(4) MI has to be treatment based for purposes of diagnosis in connection of treatment

R.803(8)(c)--MI has none







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