ADMISSIBILITY

If a proper objection is not made, all but the most clearly improper evidence can be
received and considered at trial.

Admissibility of Real Evidence: Real evidence must be relevant, must not be hearsay,
and must not be privileged. It must meet all additional requirements set by law. The
requirements of law usually include that evidence must not be the result of an illegal
search and seizure, or violate any pretrial order.

Authentication: Before any real evidence may be received in evidence, it must be

authenticated. The proponent must offer a foundation of evidence sufficient to support a
finding that the document is genuine and is what it purports to be. The preliminary facts
relating to the authenticity of real evidence are decided by the jury. Authentication can be
accomplished by showing direct evidence, circumstantial evidence, chain of custody , and
self-authentication. Authentication of real evidence is necessary to prevent objects
different from the one testified about being admitted at trial and to ensure that there have
been no significant changes in the object's condition. Authentication can be accomplished
by direct evidence of authenticity. This includes testimony; the real evidence can be
readily identified by a witness or the opinion of an expert.

Chain of Custody: For chain of custody proof, the proponent must show that there was a
strong probability of correct identification. The proponent need not negate all possibilities
of substitution or tampering in the chain of custody.

Circumstantial Evidence: Circumstantial evidence of authentication can be shown by:

Admission: The fact that a party admitted it was authentic in the past or acted upon it as
if it were authentic.

Authentication by content: A writing contains information that is secret or unique and

would only have been known by the person who is claimed to have written it.

Authentication by a reliable process: Reproduction by X-Ray, computer printout, or

photographic development, etc. Testimony describing the process and its reliability is
sufficient to authenticate.

Ancient documents doctrine: This is authentication by age; a document is presumed to

be authentic if shown to be at least 30 years old and fair on its face. The document must
not create any suspicions as to its authenticity, it was kept or found in a place it would
likely be found if authentic.

Self-Authentication: Certain types of documents require no independent proof of

authenticity. These include official records under seal, notarized documents, certified
copies of public records, commercial paper under UCC 3-307, and items listed under
Federal Rules of Evidence section 902 (5)-(7).
Best Evidence Rule: To prove the contents of a writing, the original writing itself must
be produced unless it is shown to be unavailable. This rule is waived by the opponent's
failure to make a timely and specific objection. This rule is not applicable to official
records. The rule applies only if secondary evidence is offered to prove the contents of an
original writing. It does not apply if the writing is not part of the actual issue. The rule is
not applicable if a party admits the contents of a writing, or if proof is of an oral
statement rather than of the record itself. The rule applies only to affirmative contents and
not to the absence of information. The rule does not apply if it is impossible or
impracticable to produce the original writing when it is lost or destroyed, unobtainable,
too voluminous, or in the possession of the opponent. These issues are decided by the
trial judge alone.

Rule of Preference: When the Best Evidence Rule is not applicable, secondary evidence
is allowed. Most courts have adopted the rule of preference for copies rather than oral
testimony to the contents.

Doctrine of Completeness: Traditional: Each party is free to present evidence as she

chooses. Therefore, a party may elect to introduce only part of a document or writing. It
is up to the adverse party, by cross-examination or rebuttal, to bring out whatever
additional portions of the document are necessary to correct any misleading impression
created by the parts introduced.

Modern View: If a party seeks to introduce only part of a document or recorded

statement, the other party may require the introduction at the same time of any other part
which ought in fairness to be considered contemporaneously with it.

Court and Jury: The admissibility of evidence is determined solely and exclusively
by the trial judge. The weight and credibility of evidence received is always determined
by the jury or trier of fact. Admissibility of evidence is a question of law to be resolved
by the trial court (judge). The weight of the evidence is a matter for the fact finder (jury).

Objections

When the trial judge sustains an objection, the evidence is excluded from the jury's
consideration. When the trial judge overrules an objection, the evidence is received and
can be considered by the jury. Failure to object in a timely fashion at trial is considered a
waiver. The trial judge is not obligated to raise grounds for an objection on his own,
except where receipt of the evidence would constitute "plain error".

Loss of Right to Object: A counsel may lose his right to object because of his own
tactics. If a plaintiff introduces a favorable part of a transaction, the defendant can
introduce any other part in his favor on cross-examination despite an objection by the
plaintiff. The defendant can cross-examine or introduce rebuttal evidence of any other
part of the same transaction necessary to make it fully understandable. Any objection that
the plaintiff might have invoked as to the defendant's evidence is deemed waived because
the plaintiff elected to open the door by introducing part of a transaction. A plaintiff may
also open the door if he introduces evidence that is legally inadmissible and the trial
judge erroneously receives it. The defendant may then rebut with inadmissible evidence
although the defendant's evidence may be equally objectionable.

Grounds for Reversal: On appeal, a trial court's decision may be reversed for improper
receipt of evidence. However, an appellate court will not reverse the judgment unless all
of the following grounds are present: a specific objection was made; it was made in a
timely manner; the grounds for objection were valid; and the error in overruling the
objection was prejudicial.

Erroneous Admissions: If evidence is erroneously admitted and the appellant wants it

excluded, the trial record must show that the appellant made a specific objection based
upon a particular legal grounds or a reason for inadmissibility. The only exception to this
rule is when the grounds for the objection were patently obvious from the context of the
question. Objections such as 'incompetent', 'irrelevant', 'immaterial', and 'object' are not
considered to be specific objections because they give no reasons to preserve the issue on
appeal.

Timely: The objection must be timely. This means that it must be interposed before the
witness answered or before the exhibit was shown to the jury.

Motion to strike: If a question is answered before the opposing party has an opportunity
to object, or if evidence is received which later is revealed to be objectionable, the
opposing party may move to strike the objectionable evidence and ask the judge to
instruct the jury to disregard it even if the jury has already heard the evidence. Grounds
for objection valid: The evidence must have been legally inadmissible for the reason
stated in the objection. Prejudicial error: The admission will not be overruled unless it
has a substantial influence on the verdict or affects a substantial right of the party.

Erroneous Exclusions: The following elements must be established before the appellate
court can reverse the trial court's ruling for erroneous exclusions of evidence: there were
no valid grounds for the objection; an offer of proof was made; or the evidence was
prejudicial.

Preliminary Facts: Before a trial court can rule on the admissibility of offered evidence,
some preliminary or foundational facts must be established. These include answers to
questions such as;
1) Is the witness qualified to testify?
2) Is the witness privileged to not give testimony?
3) Was the accused's confession voluntary?

Role of Judge: Legal Competency: When the preliminary facts relate to the legal
competency of the offered evidence, the outcome is decided by the trial judge alone.
Before the evidence is admitted to the jury, the offeror must establish the preliminary
facts by a preponderance of the evidence. The judge usually determines such issues as
expert qualifications, the existence of a privilege, hearsay exceptions, etc. before the
evidence is admitted to the jury. It would be an error for the judge to allow the jury to
determine the competency of evidence or whether a particular witness is qualified to give
expert testimony. Some jurisdictions allow the jury to reconsider preliminary fact
questions from an involuntary confession or a dying declaration. However, the general
rule requires the trial judge to make all the preliminary fact determinations relating to
legal competency.

Conditional Relevance: If the preliminary fact goes to the relevancy, credibility, or

weight of the evidence, the trial judge must determine whether or not there has been a
minimal showing of the preliminary fact that would be sufficient to sustain a finding of
fact on appeal. After admission, the ultimate decision regarding the preliminary fact is for
the jury.

Presence of jury discretionary: The trial judge decides whether the determination of a
preliminary fact issue shall be conducted in or out of the presence of the jury. Because of
the prejudicial nature of some evidence, the jury may not hear confessions or testimony
by the accused. During this determination, the jurors are excused. However, if the
evidence is given to the jurors after the decision, the jury is not informed of the existence
or nonexistence of the preliminary fact.

Evidence Considered: The prevailing view in state courts is that the trial judge can
consider only admissible evidence in ruling on preliminary fact questions. The Federal
Rule: The trial judge can rely on affidavits and other forms of hearsay to determine the
admissibility of evidence.

BURDEN OF PROOF

A party is obligated to produce the degree of evidence required to prove the facts upon
which the party relies. This is sometimes referred to as the burden of persuasion. The
burden of proof (persuasion) follows the burden of pleading. The plaintiff must prove the
allegations in the complaint and the defendant must prove all affirmative defenses (new
matters) that are required to be specially pleaded in the answer. Thus, if the pleadings are
correct, the allocation of the burden of proof may be determined simply by looking at the
pleadings. The court will instruct the jury as to which party bears this burden.

Quantum of Evidence: Preponderance of evidence: Such evidence as, when weighed

against that opposed to it, has more convincing force; and thus the greater probability of
truth. If the party with the burden of proof (persuasion) on an issue intends to prevail with
the trier of fact, he must show a preponderance of evidence on that issue. If the
preponderance of evidence is against him, or the balance is in equipoise, the party with
the burden of persuasion must lose on the issue.

Clear and convincing evidence: More than a preponderance and less than a reasonable
doubt. For reasons of public policy a higher burden of persuasion is required.
Reasonable doubt: In criminal cases, the guilt of the accused must be established
beyond a reasonable doubt.

Burden of Going Forward with Evidence: The initial burden of introducing evidence
falls upon the party who bears the burden of proof (persuasion) of that issue.

How burden is met: A party satisfies the burden of going forward with the evidence by
introducing legally sufficient evidence on the issue (evidence from which a reasonable
jury could infer the fact alleged from the circumstances proved). By meeting the burden
of going forward with the evidence, the party has raised an inference in its favor.

Effect of failure to meet burden: The penalty for failing to meet the burden of going
forward with the evidence is that the judge can direct a verdict against the proponent. If
the burden is not met, the jury will not be presented the issue for deliberation.

Inference: An inference is a deduction of fact made by the jury from the evidence
presented. Shifting of burden: If a party with the burden of introducing evidence meets
and exceeds that burden, it places the burden of introducing evidence on the opposing
party.

Presumptions: A presumption is a deduction which the law requires the trier of fact to
draw from particular facts in evidence. In the absence of a sufficient showing to the
contrary, the presumption shifts the burden of going forward with the evidence, and
imposes on the party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption.

How presumption arises: Before a presumption comes into effect, the party seeking its
benefit must first establish the basic fact that is a condition to the presumed fact. If a
presumption is created by statute, it must appear that there is some rational connection
between the basic fact proved and the ultimate fact presumed.

Basic Fact Disputed: If the basic fact is disputed, the jury must be instructed to make a
finding of the existence or nonexistence of the basic fact. If the basic fact is found to be
nonexistent, the presumption does not arise.

Basic fact established: If the basic fact is established (either not disputed or established
by jury finding), the presumption arises.

Classification: Conclusive: Conclusive presumptions are rules of substantive law and

are not presumptions.

Rebuttable presumptions: All rebuttable presumptions have the effect of placing the
burden of going forward with the evidence (or else having a directed verdict entered
against it) upon the opposing party. If the party against whom the presumption operates
meets its burden of going forward with the evidence, the case goes to the trier of fact.
Effects: Minority view: A presumption is evidence. If contradictory evidence against the
inference of the presumption is received, the trier of fact is entitled to weigh the
presumption against the conflicting evidence.

Majority view: A presumption itself is not evidence, but merely a deduction which the
trier of fact is required to draw from the evidence in the absence of a contrary showing.

Bursting bubble theory: Thayer and Wigmore assert that a presumption is merely a
preliminary assumption of fact. It disappears from the case upon the introduction of
evidence sufficient to sustain a contrary finding (no preponderance required). The burden
of persuading the jury of the existence of the fact in question remains where it was at the
outset. Most courts today follow this approach. Note: Federal Rules concur except in
diversity cases, where federal courts look to state law to determine the effect of
presumptions.

Presumption not dispelled: A presumption remains in the case until the other party
produces a preponderance of evidence of the nonexistence of the presumed fact; it
switches the burden of persuasion.

California: Presumptions designed to implement public policy remain. Examples: a

person not heard from in seven years is dead; that official duties have been regularly
performed. Presumptions not designed to implement public policy are dispelled.
Examples: a letter duly mailed has been received in the ordinary course of mail; a writing
was executed on the date it bears.

Res ipsa loquitur: Minority view: Res ipsa loquitur is a rebuttable presumption which
can be overcome only by preponderating evidence of no negligence by the defendant.
Majority view: Res ipsa loquitur is nothing more than a permissible inference, its weight
depends on the circumstances of the case.

Criminal cases: The requirement that the prosecution prove all elements of a crime
beyond a reasonable doubt limits the use of presumptions in criminal cases. If a presumed
fact establishes guilt, an element of the offense, or negates a defense, the presumed fact
by itself cannot overcome evidence which creates a reasonable doubt.

COMPETENCY

Competency is the willingness of the court to hear evidence from a particular witness. At
common law, a person could be disqualified from giving testimony by having a financial
interest in the outcome of the suit, by being married to a party, by having a lack of
religious belief, by having been convicted of a felony, or due to race, infancy, or insanity.
Under the modern trend, any person can testify as a witness if they are physically and
mentally qualified. However, the credibility of the testimony may be affected by their
financial interest, a felony conviction, etc. The Federal Rules adopt the trend toward
abolition of rigid grounds for disqualification, except in diversity cases where jurisdiction
turns on state law. There are four requirements:
1) Ability to communicate: The witness must be capable of expressing himself so as to
be understood by the jury. If the witness testifies through an interpreter, it must be
shown that the interpreter is qualified in the foreign language in question and is under
oath to make a true translation.
2) Personal Knowledge: A witness may only testify to matters of personal knowledge.
Such knowledge must be garnered through the witness' senses (typically sight or
hearing). Personal knowledge is a jury question subject to a judge's finding of
sufficient evidence. The only exception is an expert witness.
3) Obligation of truthfulness: The witness must be capable of understanding the duty
to tell the truth.
4) Time of competency: Competency relates to the condition of the witness at the time
he is called to testify. A loss of memory after the event in question, with a restoration
prior to trial, does not render a witness incompetent.

Application: Preliminary Fact: The witness' competency is a preliminary fact question.

The trial judge must determine competency before a witness is permitted to testify.

Children: A child of any age may be permitted to testify as long as the trial judge is
satisfied that the child possesses the ability to observe, recollect, and communicate.

Mental incompetents: The mental disease or defect must be of such a degree that the
person's ability to perceive, recall, and testify is so impaired that the testimony is
worthless.

Criminals: A convicted felon may give testimony. The fact of the conviction may serve
as a basis for impeachment.

Atheists: Lack of religious belief has no effect on a witness' competency, nor may it be
considered as affecting credibility. It does not affect either the admissibility or the weight
of the testimony.

Narcotics addiction: Addiction goes only to weight.

Personal Knowledge: Only expert witnesses are competent to testify about matters in
dispute without direct personal knowledge.

Judge as Witness: A judge is not disqualified as a witness merely by virtue of judicial

office. Judges may be subpoenaed or appear voluntarily to testify just as any other
person. However, serious problems of possible prejudice arise if a judge takes the witness
stand in the very case over which he is presiding. The majority view holds that it is up to
the judge to determine whether being called as a witness might deprive either party of a
fair trial. Some statutes provide that the trial judge cannot testify if either party objects.
Under the Federal Rules, no objection is necessary; the presiding trial judge is absolutely
incompetent to testify.
Juror as Witness: Traditional: The prevailing view is that a juror is competent to testify
in the case in which he is serving. Modern: A juror cannot testify (or give an affidavit) if
either party objects.

Testimony to jury deliberations: At common law a juror was never allowed to impeach
his own verdict. Jurors were incompetent to testify in post-verdict proceedings for the
purpose of attacking or supporting the jury verdict. The modern trend is to allow a wider
latitude of juror testimony, but to restrict the grounds on which jury verdicts may be
overturned. Under the Federal Rules, juror testimony or affidavits are admissible only to
show any outside influences improperly brought to bear on any member of the jury
(threats to family), or extraneous prejudicial information improperly brought to the jury's
attention (news releases).

Attorney as Witness: An attorney is a competent witness, even in a trial in which he is

involved. However, this may raise serious ethical and professional responsibility issues
depending on the nature and scope of the testimony.

Party Testimony: A party to a civil action under common law was incompetent to testify.
The party was deemed to be too interested to give reliable testimony.

Dead man statutes: A party is incompetent to testify to any matter or fact occurring
before the death of a deceased party to the action. Because of the frequent unfairness
involved, these statutes are narrowly construed to only apply if a money judgment is
sought and only when the action is against the estate. An executor may waive a dead man
statute by consent or failure to object to the testimony.

RELEVANCY

Relevancy is the relationship between an item of evidence and a proposition sought to be

proved. If an item of evidence tends to prove or to disprove any proposition, it is relevant
to that proposition.

Materiality: The test of materiality relates to whether the evidence is offered upon a
matter properly in issue.

Probativeness: The evidence offered must logically tend to prove the proposition for
which it is offered.

Test: Probativeness is a matter of common sense, logic, and experience.

Degree of probativeness required: To be relevant, all the evidence need do is make the
fact somewhat more likely than it would be without the evidence. The evidence need not
be absolutely determinative of the fact to which it is directed. There is no requirement
that it be conclusive. Effect: A determination of probativeness results in the legal
conclusion that there exists a sufficient relationship between the evidence offered and the
fact sought to be proved, so that a reasonable person might be helped in inferring one fact
from the other.

Admissibility: All relevant evidence is admissible unless excluded by some specific rule.
To determine the relevancy of any item of proof, the purpose for its introduction must
first be determined. If evidence is admissible for one purpose or pertains one party, it is
not rendered inadmissible solely because it is improper or irrelevant for some other
purpose. This is known as the rule of limited admissibility.

Discretionary Exclusion: In modern practice, the trial judge is vested with a broad
discretion to exclude evidence, no matter how relevant, if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Extent: The trial judge's discretion is reviewable on
appeal, but only if it seems that the trial judge abused his discretion.
1) Previous Torts: The mere fact that a plaintiff has filed claims for injuries in previous
accidents is not relevant in a personal injury case. The probative value is outweighed
by the risk of confusion of issues. The exceptions are if there is injury to the same
part of the body, if the prior claims were false and therefore raise the issue of
credibility, or if the prior false claims were part of a fraudulent scheme.
2) Prior Accidents: Evidence of prior accidents or injuries to other persons caused by
the defendant is relevant only if there is a substantial identity of conditions, a
substantial identity of human behavior involved, and no serious danger of confusion
of the issues. If this test is met, the prior accidents are admissible to show that the
item or activity, was dangerous; the defendant had knowledge of the danger involved;
or the dangerous condition, activity or product was the cause of the plaintiff's injury.
A prior accident is never admissible to show that the defendant was negligent this
time.
3) Subsequent Accidents: Subsequent accidents are inadmissible to prove causation or
knowledge. However, they may be used to show the existence of a dangerous
condition at the time in issue.
4) Absence of Accidents: The absence of accidents or prior complaints is not admissible
to prove the nonexistence of the dangerous condition or the unlikelihood that the
condition caused the plaintiff's present injuries. However, the absence of prior
accidents is admissible to show the defendant's knowledge of the condition.
5) Other Contracts: Evidence of past contractual relations is relevant for interpreting
the terms of a present contract between the parties. See UCC 2-105. Evidence of
dealings with third parties is irrelevant to interpret a contract between a plaintiff and a
defendant.
6) Sales Evidence: Most courts will admit evidence of other similar property sales
prices to determine the value of property in question. The admission of sales prices of
similar personal property is admissible. This includes published price lists, market
quotations, etc. Evidence of fees charged for similar services previously rendered is
admissible to fix the value of services rendered in a transaction at issue.
Character Evidence: Evidence of particular human traits such as honesty, violence,
cowardice, and carefulness is character evidence. It is a person's disposition to act in a
certain manner, or the quality of the person's conduct.

Purpose for which offered: Admissibility of character evidence is dependent on whether

it is being offered to prove a person's probable conduct, character, reputation, or to
impeach or rehabilitate a person as a witness.

Types of character evidence: Three basic types of character evidence may be offered to
prove a particular trait of a person's character: testimony by witnesses who know the
person to their opinions of his character; testimony by witnesses who may or may not
actually know the person to his reputation in the community; or testimony to or proof of
specific acts by the person, which reflect on the particular character trait involved.

Probable Conduct: Evidence of some trait of a person's character may be offered to

prove that the person was likely to have acted in a particular way, from which an
inference may be drawn that he did so act on the occasion in question.

Criminal Cases: Character evidence is inadmissible to prove that the accused is a bad
person or that he had a propensity to commit the crime with which he is presently
charged.

Exceptions

Identity: Evidence of prior crimes by the accused is admissible to establish his identity.
Thus, evidence that the defendant committed a previous crime is admissible if the modus
operandi in both crimes is similar and unusual enough to indicate that the same person
perpetrated both; such conduct amounts to a veritable criminal signature.

Common scheme: Evidence of prior criminal acts by the accused is admissible to prove
the existence of a larger continuing plan, scheme, or conspiracy, of which the present
crime charged is a part.

State of mind: Evidence of prior crimes by the accused is admissible to show the
accused's motive, intent, knowledge, and scienter.

Lack of mistake: Evidence of prior crimes may also be admitted to show absence of
mistake or accident in the commission of the present act.

Refuting entrapment: Evidence of other criminal acts of the defendant is admissible to

refute the defense of entrapment.

Procedures: If the evidence of a past act is admissible, conviction need not be shown. All
that is required is substantial evidence of past misconduct.
Good Character: The accused in a criminal prosecution may always introduce evidence
of his good character to show the improbability that he committed a crime. The accused
need not take the witness stand to prove his good character. The character trait offered
must be relevant to the charges made against the accused. Some courts permit general
proof of good character. The traditional view only admits testimony of the defendant's
reputation in the community at the time of the crime charged. Opinions and specific acts
are inadmissible. Modern codes expand this by allowing the use of reputation or opinion
evidence. Under both views, evidence of specific acts may not be used by the defendant
to show good character.

Prosecution: If the accused never offers evidence of good character, the prosecution
ordinarily cannot go into such matters at all. If the defendant introduces reputation
evidence of good character, the prosecution is then entitled to rebut the defendant's
evidence by showing the defendant's bad character.

Types of evidence admissible: In states where the defendant is limited to use of

reputation evidence to show good character, the prosecutor may normally introduce only
the same type of evidence about whatever aspect of the defendant's character is involved.

Cross-examination of defendant's character witnesses: The prosecutor is permitted to

attempt impeachment of the defendant's character witnesses by examining them about the
defendant's past crimes and misconduct which otherwise would not be permitted into
evidence. The defendant's character witnesses can be asked about anything that might
logically reflect on the defendant's reputation. The prosecution can bring up mere arrests
or indictments, as well as actual convictions.

"Have you Heard" : The majority view is that because the defendant's witnesses can
testify only to the defendant's reputation, the prosecutor may question them on cross-
examination only by asking "Have you heard that...?" and not, "Do you know that....?"

"Do you Know": Under the modern codes, which permit the defendant's witnesses to
testify to their opinions of the defendant's character, cross-examination in either of the
above forms would be proper.

Victim's Character: In certain cases, evidence of a pertinent character trait of the victim
may be admissible to prove that the conduct of the victim in conformed with it. The
character of a homicide victim is in issue when a defendant pleads self-defense. The
prosecution may enter this evidence on its own initiative. In rape cases, by recent
statutory changes, the character of the victim is inadmissible to show whether she or he
probably consented to sexual intercourse with the accused. Evidence of the victim's prior
sexual conduct with the defendant is not excluded by most statutes. The victim's
reputation in the community for the character trait in question is admissible. Modern
codes also allow opinion testimony by witnesses who knew the victim personally.

Civil Actions: Evidence of the character of either party in a civil action is not admissible
to prove probable conduct.
Character Issues: Whenever a party's character is in issue (actions such as defamation
and negligent entrustment) under the pleadings, civil or criminal, character evidence is
admissible. The majority allows evidence of reputation and conduct, and the modern
trend is to include opinion evidence.

Reputation: When reputation is in issue, it may be proved by testimony of the party's

reputation in the community. Opinion evidence and conduct is not admissible.

Credibility of Witness: Character evidence may also be admissible to reflect a witness'

credibility or lack thereof.

Impeach: Any time a witness takes the stand, his reputation for truthfulness is deemed to
be in issue.

Rehabilitate: A witness who has been impeached by the adverse party may be
rehabilitated by the party who called that witness by proof of good reputation for honesty,
truth, and veracity.

Character of Animals: Evidence of an animal's character to prove its probable conduct

is admissible.

Habit or Custom: Habit evidence refers to the person's routine reactions or reflex
behavior in particular situations in which the person may or may not be involved.
Character evidence refers to the quality of a person's conduct. Habit evidence can be
proved by either opinion evidence or evidence of specific behavior. Habit evidence is
admissible to prove the doing of an act, to show the standard of care in negligence cases,
to reflect on terms of a contract, or as secondary evidence of a writing under the best
evidence rule.

Requirements for admissibility: The acts claimed to be habit must be specific, routine,
and continuous. Some courts add that the habits must be invariable. Others hold that habit
evidence is admissible only if there is an eyewitness to or other direct evidence of
performance of the habit in question.

Extrinsic Policies: At times evidence is excluded as a means of encouraging certain

kinds of conduct.
1) Subsequent repairs or precautions: These are not admissible to show negligence.
They are admissible to impeach the defendant's witness regarding the safety of the
condition, to show ownership or control, to show that the defendant was attempting to
conceal or destroy evidence, or to show that precautionary measures were feasible.
Note: some cases hold that in strict liability actions, evidence of subsequent repairs or
precautions are available. Under strict liability, conduct is not an issue.
2) Offers to compromise: These are not admissible to fix liability between the parties.
3) Statements during negotiations: Fact admissions made during negotiations are
admissible. The modern trend is to reject fact admissions made during negotiations
unless the evidence is otherwise discoverable.
4) Payments of medical expenses: The offer or actual payment of expenses is not
admissible.
5) Settlements with third parties: A defendant's settlement with third parties on a claim
arising out of the same incident is inadmissible. If the third person testifies at trial, the
settlement may be questioned to show possible bias.
6) Liability insurance: This is not admissible on the issue of negligence. This
information is admissible for proof of ownership, proof of bias, and selection of jurors
(to make sure that they do not work for the company).

HEARSAY

Orthodox (Wigmore): Hearsay is oral testimony to or documentary evidence of the

testifying witness' or someone else's words or assertive conduct outside of court, which is
offered to prove the truth of the matter asserted.

Morgan: Hearsay is evidence of words or conduct outside of court, assertive or

nonassertive, which is offered to prove the truth of the facts asserted. Such evidence
requires the trier of fact to treat the out-of-court declarant as if he were in court giving
testimony on the facts in issue.

Elements: An assertion (or conduct that translates into an assertion) made or done by
someone other than a testifying witness on the stand offered in evidence to prove the truth
of the matter asserted.

Rationale: Underlying the rule against hearsay are serious concerns about the
trustworthiness and reliability of hearsay evidence. Hearsay evidence is not given under
oath, and is not subject to cross-examination by opposing counsel to test the perception,
memory, veracity, and articulateness of the out-of-court declarant or actor upon whose
reliability the in-court testimony depends.

Truth as an Element: Evidence of the out-of-court words or actions offered only to

show that the statement was made or that it had a certain effect on a listener or observer,
rather than to prove the truth of the facts asserted, are not hearsay.

Words legally significant in and of themselves: If the issue is simply what words were
spoken, evidence of what was said is admissible. In this situation, the words are offered
as legally operative facts in the litigation rather than as proof of the truth of what was
said, and therefore are not hearsay. Examples: Words of offer, acceptance, rejection, gift,
sale, bailment, or defamation are legally significant in themselves.

Words offered to show effect on hearer or reader (verbal acts): Evidence of a

statement made to a person, or within his hearing, may be offered to show his state of
mind in the sense that he had notice, knowledge, motive, good faith, duress, or probable
cause, or that he had acquired information which had a bearing on his subsequent
conduct. These statements are not subject to attack as hearsay because the words are
offered simply to show their effect on the hearer or reader rather than to prove the truth of
the matter asserted. Examples: words of notice, warning, inflammatory or accusatory
words, or words of good faith.

Words offered for purposes of identification: Evidence of out-of-court statements

offered only to establish the identity of the declarant or to identify the time and place are
non-hearsay.

Words offered as circumstantial evidence of declarant's state of mind: Statements

that reveal the declarant's state of mind are not hearsay, because they are generally
admissible under the "state of mind" exception to the hearsay rule, even if they are
assertive.

Words offered to explain conduct: Out-of-court statements offered solely to explain

conduct that would otherwise be ambiguous may be admissible as non-hearsay.

Prior statements by a witness affecting credibility: Evidence of a witness' prior

statements affecting his credibility are not hearsay because they are not offered to
establish the truth of their assertions. Examples: prior inconsistent statements offered to
impeach credibility, or prior consistent statements offered to rehabilitate.

Assertive: Evidence of out-of-court conduct that was intended as a substitute for words is
hearsay when offered to prove the truth of what was intended to be asserted.

Nonassertive: A person's out-of-court conduct, if the conduct was not intended as a

substitute for words but nonetheless is probative of a state of mind, is termed
'nonassertive'. Examples: conduct manifesting a person's guilt, conduct evidencing a third
person's belief of a party's condition, conduct manifesting a third person's state of mind or
condition, and silence.

Wigmore definition: Nonassertive conduct is not hearsay, and hence is admissible not
only to show the declarant's state of mind but also to prove the truth of the matter
asserted.

Morgan view: Such conduct is hearsay if it is offered as proof of some fact; it is an

implied assertion of the actor's beliefs regarding such fact and hence is just as
objectionable as an express assertion.

Nonhuman Evidence: Testimony by a witness to statements made by nonhuman

declarants does not violate the rule against hearsay.

Federal Rules:
1) Prior inconsistent statements of a witness: Prior inconsistent statements made
under oath are not hearsay.
2) Prior consistent statements of a witness: Whether under oath or not, prior
consistent statements, when offered to rebut an express or implied charge of recent
fabrication, improper influence, or motive on the part of the witness, are not hearsay.
3) Witness' prior statement identifying a person: A prior identification is not hearsay.
4) Admissions by a party-opponent: Such admissions are not hearsay.

HEARSAY EXCEPTIONS

Public policies allow certain types of hearsay evidence to be admitted into evidence
because of necessity and the trustworthiness of the evidence. There are no fixed number
of exceptions. Note: Courts allow the adverse party to challenge the credibility of the
hearsay declarant if hearsay evidence is held admissible under one of the hearsay
exceptions.

Criminal Cases: The admission of hearsay declarations in a criminal case when the
declarant is unavailable may violate constitutional rights to confrontation.

REPORTED TESTIMONY: Evidence from transcripts of testimony given by an

unavailable witness at some former deposition, hearing, or trial, in the same matter or in
another case is hearsay. The minority (Wigmore) holds that testimony given under oath in
a prior trial is not hearsay, and hence is admissible.

Majority view: Testimony given under oath in a prior trial is hearsay, and will only be
admissible as an exception to the hearsay rule. Requirements for admissibility: the
proceeding must have involved testimony given under oath; the opportunity for cross-
examination must have been afforded; there must be sufficient identity of parties, and
issues; and there must have been sufficient unavailability of that witness in the present
proceedings.

Identity of Parties: Traditional view: Requires complete identity between the parties.
They must have been parties to the former action for the testimony to be admissible.
Additional parties present at those proceedings are immaterial. Modern trend: Under
this test, a report of testimony given in a prior trial is admissible if the adverse party in
the former trial had an opportunity and the same motive to cross-examine as does the
adverse party in the present proceeding. Federal Rules: A witness' recorded testimony
from some earlier trial, deposition, or proceeding is admissible only if the party against
whom it is now being offered was a party to the earlier trial or proceeding (or a
predecessor in interest if it is a civil action), had an opportunity to examine the witness at
that time, and had a similar motive to develop the witness' testimony.

Identity of Issues: The issues in both trials must at least be substantially the same; they
must relate to the same general subject matter so as to assure the same scope of cross-
examination.
Unavailability: The witness who gave the testimony in the earlier trial or proceeding
must be unavailable to testify as a witness in the present trial. Examples: Death of
witness, physical disability (some courts require a showing that the physical disability is
permanent), supervening mental illness or incapacity, or a showing that the witness who
testified in the earlier trial is absent (out of the jurisdiction) and that the proponent of the
witness' statement has been unable to procure the witness' testimony, or the witness is
refusing to testify.

ADMISSIONS: An admission is any extrajudicial statement or conduct by a party to the

present litigation (not a nonparty witness) that is inconsistent with a position the party
presently takes. The majority treats admissions as hearsay. Under the minority, they are
not hearsay.

Personal Knowledge: A party's admission will be competent evidence against that party
even if he did not actually have personal knowledge of the facts admitted. An admission
may be based on the admitter's personal opinion or conclusions. Admissions extracted
through any form of duress, force, or trick may be held to be inadmissible.

JUDICIAL ADMISSIONS

Admissions in pleadings: A party may be bound by statements in pleadings that were

prepared and filed by the party's attorney, whether or not he had personal knowledge of
them. Admissions contained in such pleadings, if not withdrawn by amendment, are
conclusive as to the pleader. A minority of courts limit this conclusive effect to verified
pleadings (sworn to by client). The majority is willing to apply the conclusive effect to
nonverified pleadings if it appears that the client had actual knowledge of the contents.
Admissions contained in superseded pleadings are generally treated only as evidence;
they are competent proof against the admitter, but are not binding. Some courts do not
permit admissions in superseded pleadings as affirmative evidence, but use them solely
for impeachment purposes as prior inconsistent statements.

Pleadings in prior civil cases: Admissions contained in a pleading in a prior civil case
are admissible as evidence but are not conclusive and hence may be explained.

Prior Criminal Cases: Nolo contendere (no contest): Where permitted, this plea does
not concede guilt and cannot be used as an admission. Plea of guilty: If the defendant
enters a plea of guilty in a criminal case, this plea may be introduced against the
defendant as an admission in a subsequent civil or criminal proceeding involving the
same act. It is not conclusive and the defendant may explain the circumstances
surrounding the plea. The explanation goes to the weight of the evidence. A withdrawn
guilty plea is not admissible against the accused in his subsequent criminal prosecution.
An unaccepted offer to plead guilty is excluded under the same rationale applicable to
offers to compromise in civil cases. Note: Damaging statements made by the accused in
connection with a withdrawn plea or offer to plead guilty (or a plea or offer to plead nolo
contendere, above) are generally inadmissible in any subsequent proceeding against the
accused.
Stipulations by Counsel: A stipulation (agreement) entered into by counsel in open court
is conclusive as to the client and cannot later be disputed. If entered into by mistake, the
relief sought must be a setting aside of the stipulation.

IMPLIED ADMISSIONS: Conduct: In certain instances, a party's conduct furnishes

the basis for inferring an admission, even if the party clearly did not intend it as such.
These cases usually involve nonassertive conduct. In those jurisdictions that treat
nonassertive conduct as hearsay, the admission exception to the hearsay rule is important.
In jurisdictions where nonassertive conduct is not hearsay, such evidence is prima facie
admissible.

ADMISSIONS BY SILENCE: Before silence can be held to be an implied admission of

the charges made against a party, it must appear that the statement was heard and
understood, that the party was present and capable of hearing and understanding the
accusations and of denying the statement, that the party had the opportunity and motive
to deny, and that a reasonable party would have denied the statement.

Criminal cases: Failure to reply or respond to police charges can never be used against
the accused as an implied admission of the charges. Such use would violate the
constitutional privilege against self-incrimination.

Failure to reply to written communication: A person's failure to reply to a letter or

other written communication may constitute an implied admission, but only if it would be
reasonable to expect a denial if the written statements were untrue.

Conduct Other Than Silence: Examples: flight from arrest, assumption of a false name,
escape from custody, and attempts to commit suicide. These are all admissible.

ADOPTIVE ADMISSIONS: A party may by words or other conduct voluntarily adopt

or ratify the statement of another, and if such statement is not consistent with the position
the party takes at trial, this adoptive admission is receivable against him. The adoption
must be voluntary and the party must be shown to have knowledge of what the other
person said.

VICARIOUS ADMISSIONS

Agents and employees: Admissions made by an attorney in the course of litigation may
be binding on the attorney's client as a judicial admission. Statements made by other
kinds of agents and employees may also be held as binding on their employers. The
existence of the agency and the agent's authority must be proved by evidence other than
the hearsay statement of the supposed agent. The facts admitted must relate to current
matters rather than to past history. The statements must be made within the scope of the
agent's authority or employment. Any statement made by an agent who has authority
(express or implied) to speak on behalf of the principal, regarding the subject of the
statement, is admissible against the principal. The traditional view regarding
unauthorized statements is that such statements are not admissible against the employer.
The modern trend is to admit any statements by an agent against the employer which
concern a matter within the scope of his agency or employment, and which were made
during the existence of the relationship.

Coconspirators: Damaging statements made by one coconspirator may be admissible

against the others. The traditional and majority view is that the prima facie case for
conspiracy must be established by independent evidence other than the coconspirator's
statements in question. Federal rules allow the trial court to use the statements in question
to determine the existence of a conspiracy. The statement itself must be made during the
conspiracy, before the crime was completed, or before the declarant withdrew from the
conspiracy. The statement must be made by the declarant in furtherance of the conspiracy.
If several parties have joint rights or obligations, many courts hold the declarations of one
to be admissible against the others. This includes partners and joint tenants. Admissions
made by a predecessor in title to either real or personal property, when the person was
still the owner of the property with respect to boundaries, ownership, title, or even
possession of the property, are admissible in evidence as vicarious admissions against
successors in interest. Admissions of indebtedness and contributory negligence in a cause
of action by a decedent during his lifetime are admissible because of their high probative
value.

CONFESSIONS: A confession is a direct acknowledgment of criminal guilt by an

accused. Admissions and confessions are not hearsay under federal rules. Most courts
regard an extrajudicial confession as hearsay, as it is offered to prove the truth of the
matter confessed.

Corpus delicti: Proof of the accused's confession cannot be received until the corpus
delicti of the crime has been proved by other evidence.

Involuntary: The voluntariness of the confession must always first be determined on

voir dire examination. The burden is on the prosecution to show by a preponderance of
evidence that a confession was voluntary. An involuntary confession is one which, under
the totality of the circumstances, was not the product of a free and rational choice by the
accused. Factors to consider include: age, intelligence, police methods, accused's physical
or mental condition, length and condition of interrogation, promises of leniency, etc. The
judge is charged with determining involuntariness. In some jurisdictions, this is subject to
redetermination by the jury on the defendant's request. The use of an involuntary
confession against the accused may negate any conviction, even if there was ample
untainted evidence of the accused's guilt.

Voluntary: This includes situations where the accused is not advised of Miranda rights,
the accused was illegally arrested, or the accused was denied speedy arraignment. Even
voluntary confessions must be excluded if obtained in violation of accused's
constitutional rights. A voluntary confession, even if excluded from evidence, may be
used to impeach the defendant.
DECLARATIONS AGAINST INTEREST: A hearsay statement may be received in
evidence if the person who made the statement is not a party to the action, if that person
is unavailable to testify, and if the statement was sufficiently against important interests
of the declarant when made so that a reasonable person in the same position would not
have made the statement unless he believed it to be true, thus establishing the
trustworthiness factor.

Perception/Knowledge: The declarant must have had the usual qualifications of an

ordinary witness at the time of the declaration, and personal knowledge of the facts.
Statements based only on the declarant's opinions or estimates do not qualify as
declarations against interest. The declarant must have known, or have been chargeable
with knowledge, that the facts stated were so contrary to his interest that a reasonable
person in his position would not have made the statement unless he believed it to be true.

Against interest: The facts must be to the declarant's immediate prejudice at the time of
the declaration, and the prejudice must be substantial. The prejudice to the declarant can
be actual or imagined. It must be against a financial or property interest and the prejudice
to such an interest must be immediate and substantial. A few states hold admissible any
declarations that create a risk of making the declarant object of hatred, ridicule, or social
disgrace in the community.

Criminal Liability: Majority view: Many courts do not admit declarations that subject
the declarant to criminal liability out of concern that this would encourage perjured
testimony in criminal cases.

Minority view: Statements offered by a criminal defendant to show his own innocence
by proof of out-of-court declarations by a third person admitting the crime charged are
admissible only if there are corroborating circumstances which clearly indicate the
trustworthiness of the statement.

Constitutional Limits: A state cannot exclude the fact that a third person has confessed
to the crime for which an accused is charged as hearsay evidence if such evidence is
crucial to the defense. This would deprive the accused of the fair trial guaranteed by the
fourteenth amendment Due Process Clause. The prosecution may not introduce
inculpatory statements or declarations against penal interests of a codefendant to
implicate the accused if the codefendant failed to take the witness stand and be subjected
to cross-examination. This would deprive the accused of the confrontation rights
guaranteed by the sixth and fourteenth amendments.

No Motive to Falsify: There must be nothing to indicate that the declarant had some
motive to falsify.

Disserving Aspect: The statement must appear to be offered in evidence with respect to
its disserving aspect.
DYING DECLARATIONS: Dying declarations of the victim about the cause or
circumstances of his impending death are admissible as an exception to the hearsay rule.
The declaration is subject to all the objections and grounds for impeachment that could be
asserted if the declarant were on the stand testifying. Majority view: Dying declarations
are admissible on behalf of either the defendant or the prosecution only in homicide
cases, and not in any other criminal actions or in civil actions. Minority view: Some
states admit such declarations in all actions and proceedings. Federal Rules: admit them
only in homicides and all civil actions.

Requirements:
(1) Victim's statement: The dying declaration must be that of the victim, not some third
person.
(2) Sense of impending death: The declaration must have been made by the victim
while he believed that his death was imminent.
(3) Percipient witness: The victim must have the usual capacities of a witness at the
time of the declaration. He must have the capacity to perceive, to relate facts, and to
recognize the obligation to tell the truth.
(4) Facts related to cause of death: The declaration must be of facts related to the cause
or circumstances of what the victim believed to be his impending death.
(5) Opinion: A declaration that is a mere opinion by the declarant is inadmissible.
(6) Self-serving: Self-serving declarations are admissible.
(6) Death: The declarant must have actually died by the time the evidence is offered.
There is no fixed time period within which the death must have taken place, as long
as it appears that the declarant had the requisite fear of impending death when he
made the statement. Federal Rules: As long as the statement was made while the
victim believed death was imminent, the victim need not have actually died. It is
sufficient that he is otherwise unavailable at the time of trial.

EXCITED UTTERANCES: Statements by any person, participant or observer, made at

the time of some exciting event, and under the stimulus of its excitement, may be
admissible.

Requirements: There must be an occurrence that is startling enough to produce shock

and excitement in the observer. The statement must be made while the observer was
under the stress of the nervous shock and excitement; it must be spontaneous, with no
time for deliberation or calculated misstatement. The time element is crucial. There is no
mechanical test, but courts usually limit admissibility to statements made
contemporaneously or immediately after the exciting event. Many jurisdictions hold that
the spontaneous exclamation must pertain to the exciting event.

Opinions: Some courts will allow statements of the observer's opinion as excited
utterances if it is the kind of opinion that could reasonably be made under the
circumstances. A number of courts will not accept opinions which fix blame or
responsibility. An acknowledgment of fault, even if it is an opinion, is generally admitted.
Declarant: There is no requirement of competency, unavailability, or even identification
of the declarant. All that is required is that the declarant had personal knowledge of the
facts. The declarant need not be identified as long as his existence and personal
observation of the facts are established by inference from the circumstances.

Personal Observation: There must be a showing that the unidentified observer was a
percipient witness to the accident.

Scope of Exception: Other statements not admissible under vicarious admissions or

dying declarations may be admissible as excited utterances.

PRESENT SENSE IMPRESSIONS: A few state courts and the Federal Rules have
adopted a separate exception to the hearsay rule for statements made by a person while
perceiving an event or condition, even if it is not exciting, which describe or explain that
event or condition.

Requirements: There is no requirement that the declarant be unavailable or even

identified. There is no requirement that the accuracy of the declaration be corroborated by
the testimony of an equally percipient witness. The declaration must be made while the
observer was engaged in the conduct or perceiving the event that the statement is offered
to explain. This is to assure the spontaneity and accuracy of the observer's present sense
impression.

DECLARATIONS OF PHYSICAL CONDITION: If a person's physical condition at a

specified time is in issue, that person's spontaneous statements made at that time are
admissible to prove the condition. Some courts limit admissibility to declarations of
present pain and will not allow statements of other present bodily conditions. Most courts
do not admit evidence of a person's out-of-court statements as to how he felt in the past.

Federal Rules: Statements of past physical conditions made to a physician or other

medical personnel for the purpose of medical diagnosis or treatment are admissible.

Minority view: A declarant's statements of his state of mind, emotions, or physical

sensations at some prior time are admissible if such condition is itself at issue.

DECLARATIONS OF MENTAL CONDITION: A direct assertion by a declarant of

his state of mind is generally recognized to be hearsay. However, an indirect assertion is
not hearsay under the traditional Wigmore definition, although it is hearsay under the
Morgan definition. Whenever a person's state of mind at a particular time is itself in issue,
that person's declarations of his state of mind at the time in question are admissible. A
person's out-of-court declarations of state of mind may also be used to show the
probability that he committed some subsequent act pursuant to that declared state of
mind.

Third Persons: Extrajudicial statements made by a declarant regarding his state of mind
cannot be used to implicate or reflect upon the probable conduct of a third person.
Past state of mind: These declarations are inadmissible because such declarations
involve the danger of defects in memory and other hearsay difficulties. The only
exceptions involve will cases.

PAST RECOLLECTION RECORDED: This exception allows into evidence a writing

made or adopted by a witness who is on the stand if the witness presently has insufficient
memory to testify fully and accurately to the facts contained therein. Note: The document
need not be prepared in the regular course of business. This hearsay exception is distinct
from the business records exception.

Requirements: The document must have been prepared or adopted by the witness. The
preparation or adoption must have occurred when the matter described was fresh in the
witness' memory. The document must correctly reflect what was remembered when it was
made, and must be the authentic memorandum and not have been tampered with. The
witness must have insufficient recollection to testify fully and accurately about the matter.
The document cannot be seen by the jury except at the request of the adversary party. In a
jury trial, the witness and counsel are limited to reading from the document.

Some courts allow admission of a written statement that was neither prepared nor
adopted by the witness, provided that it was prepared under the witness' direction. The
witness must still testify that he correctly told the writer what to write down when it was
fresh in the witness' memory. In addition, the writer must then testify that he wrote down
what the witness had said correctly. However, the witness need not actually have seen the
document.

Inability to Testify: Before any document will be admitted as past recollection recorded,
the witness' memory must be examined to ensure that he is unable to testify fully and
accurately about the matter. A total lapse of memory is not necessary.

BUSINESS RECORDS: Parties' shop-book doctrine: At early common law, in a suit

by a creditor against a debtor, the creditor was incompetent to testify on his own behalf.
To prevent the debtor from evading the debt altogether, an exception was developed
allowing use of the creditor's business records to prove the debt. Requirements: Entry
in regular course of business: The record must be written and made in the course of a
regularly conducted business activity. Business activity includes every business,
institution, association, profession, and occupation, whether or not conducted for profit.
To assure trustworthiness, it must appear that the records in question were prepared in the
regular course of the business activity involved, and that it was the regular practice to
make the particular record. Generally, the records being offered must be the original
entries or the first permanent entries, if the original entries were mere scraps or memos.
The entry must have been made at or near the time of the transaction. Contents of entry:
The traditional view is that only statements of fact in business records are admissible.
Statements of opinion, although made in the regular course of business, are not
admissible. The modern trend allows in entries of acts, events, conditions, opinions, or
diagnoses, as long as they were made in the regular course of business. Source of
information: The entry must consist of matters that were either within the personal
knowledge of the entrant or transmitted to the entrant by someone who was under a
business duty to report such matters to the entrant and who had firsthand knowledge of
the facts. Availability of entrant: For the record itself to be admissible, the entrant must
be unavailable to testify as a witness. Under modern rules, the trial court must decide
whether the record itself is sufficiently trustworthy, regardless of any testimony the
entrant might give. Authentication: To authenticate business records, the custodian of
the records or another qualified witness must appear in court, identify the records, and
testify to their mode of preparation and safekeeping. Constitutional Issue: It is not
settled whether the use of business records in a criminal case violates the accused's
confrontation rights where the entrant fails to testify. The use may deny the accused the
right to confront and cross-examine the witnesses against him if the entrant is not
produced at the time of trial.

Absence of Any Entry: At common law, business entries were permitted only to prove
the facts contained therein. It was not permissible to use such records for negative
purposes. The modern view provides that properly authenticated business records can be
used to prove the occurrence or nonoccurrence of a transaction as long as it can be shown
that it was the regular practice of the organization to record all such transactions.

Official Records: Statements and documents prepared by public officials in the

performance of official duties are admissible under various exceptions to the hearsay.

Requirements: The record must be prepared by a public employee acting within the
scope of official duties. To assure trustworthiness, the record must be based on the
official's firsthand knowledge of the facts recorded, as opposed to the official's mere
opinions, conclusions, or facts reported to the official by others.

Exceptions: Vital statistics: Records of birth, death, or marriage are admissible although
based on reports by others. The law requires events to be reported as they happen, thus
assuring trustworthiness. Agency operations: Records of the activities or functions of the
agency itself are admissible although not entirely based on the personal knowledge of the
reporting officer. Investigative reports: Reports of official investigations are generally
held not to be admissible because they are based on reports of third persons to the
reporting officer. Absence of any entry: A certificate from the custodian of the public
records stating that certain records are not on file in the office is admissible to prove that
the matter has not been reported or recorded. If it is the kind of matter about which
reports are regularly made by the agency involved, this may reflect on whether the matter
has in fact occurred.

JUDGMENTS: A certified copy of a judgment of any court of record is always

admissible proof that such judgment has been entered. The problem is: to what extent are
the facts adjudicated in the former proceeding competent proof of the facts in the present
case? Traditional view: A past conviction is not admissible in any civil suit, because it is
inadmissible hearsay and merely a record of the criminal jury's opinion of the defendant's
guilt. Modern trend: The modern trend of authority favors the admission of the criminal
convictions in later civil cases. Federal Rules: The Federal and California Rules
specifically provide that judgments of criminal convictions are admissible in civil actions
to prove any fact essential to sustain the judgment, but limit these judgements to felony
convictions. The Federal Rules allow such evidence in criminal actions when it is offered
against the government by a defendant and when it is offered by the government against a
defendant who was the subject of the prior conviction.

Evidentiary Effect: Most courts treat the conviction merely as evidence, and not
conclusive as to the facts. Minority view: A few states take the position that the criminal
conviction is entitled to the res judicata effect of collateral estoppel, and therefore the
criminal conviction is conclusive evidence against the defendant as to the facts upon
which it is based.

Constitutional limitation: Even courts permitting evidence of prior convictions in both

civil and criminal actions would not permit the government to use the conviction of some
third person to implicate the accused in a criminal case.

Prior Acquittal: The exclusionary rule is still strictly applied to records of prior
acquittals of a crime.

A former civil judgment conclusively determines the rights of the parties under principles
of res judicata. However, a hearsay problem arises when the judgment is sought to be
introduced by or against a stranger to the original proceedings. The civil judgment is
clearly inadmissible in subsequent criminal proceedings because of the differing
standards of proof. It is also generally inadmissible when asserted by a stranger in
subsequent civil proceedings unless the issues are so alike that the principles of collateral
estoppel apply. If the judgment was obtained by default, it would be admissible as an
implied admission by silence to the charging statements in the complaint.

ANCIENT DOCUMENTS: Declarations contained in ancient deeds, mortgages, wills,

or other property-disposing documents are held to be admissible as evidence of the facts
recited therein, provided that the recitals were relevant to the purpose of the writing and
subsequent dealings with the property have been consistent with the facts recited. For a
document to be accepted as genuine within the meaning of this exception, it must first be
shown that the document is at least thirty years old, is fair on its face, is free from
suspicious appearances, has been in proper custody, and has been accepted as true by
persons having an interest in the property. Modern trend: If a document has been in
existence for 20 years or more and has been authenticated, any statements therein which
relate to its purpose are admissible.

LEARNED TREATISES: The general rule is that statements from books or treatises,
even if written by recognized authorities in the field of knowledge involved, are
inadmissible hearsay. The one exception is that an expert witness can refer to the contents
of accepted texts and treatises in his field. If the expert opinion differs from the treatises,
it may be pointed out on cross-examination.
 PRIVILEGE

A privilege is a rule of law that protects a particular relationship or interest. A privilege

either permits a witness to refrain from giving testimony which he otherwise could be
compelled to give, or permits someone, usually one of the parties, to prevent the witness
from revealing certain information.

Who May Assert Privilege: A privilege is personal in nature. It can be claimed by the
person (holder) whose interest or relationship is sought to be protected. If the privilege is
held jointly by two or more persons, each of them can claim the privilege. A privilege
may also be asserted by a person authorized to do so on behalf of the holder. If neither the
holder of the privilege nor anyone entitled to assert it for him is present when the
testimony is sought to be introduced, then the court on its own motion, or the motion of
any party, must exclude the testimony subject to the claim of privilege. Persons to whom
privileged communications were made: may assert the privilege for an absent holder as
long as the holder is alive and has not waived the privilege.

Requirement of Confidentiality: Whenever a communication is claimed to be

privileged, it must always be shown that it was made in confidence. Many states
recognize a presumption of confidentiality if the disclosure was made during a privileged
relationship.

Effect: Most courts recognize that no inference should be drawn from the fact that a
witness has claimed a privilege, either during the present trial or on any previous
occasion.

Waiver: A privilege is deemed waived if not raised by appropriate and timely objection
when the testimony is first offered. The objection must be specific in nature. Objections
such as 'incompetent', 'irrelevant', and 'immaterial 'will not suffice. A person entitled to
claim a privilege may waive it by consent. Consent may be manifested by a failure to
claim the privilege when the holder has the legal standing and opportunity. In addition, a
voluntary disclosure by the holder of all or a significant part of the privileged matter,
except where the disclosure is itself privileged, may constitute a waiver. There is no
waiver if the disclosure was compelled erroneously or made without opportunity for the
holder to claim the privilege. Evidence obtained in an earlier trial or proceeding in which
the witness' claim of privilege was erroneously denied cannot be used in a later trial.
Joint holders: If a privilege is held jointly, a waiver of the privilege by one holder does
not affect the right of the other to claim the privilege. Wrongful disclosure: If someone
wrongfully discloses privileged information without the holder's consent, there is no
waiver even if the privileged material becomes public knowledge.

Eavesdroppers: The traditional view is that an eavesdropper can testify to what he has
overheard whether or not such overhearing was due to the carelessness of the
communicating parties. A significant number of modern cases and statutes assert that as
long as the holder of the privilege was not negligent, there is no waiver of the privilege
and hence the eavesdropper is not permitted to testify.
Erroneously Compelled: Only the holder of the privilege whose confidence has been
violated has a right to complain if the disclosure of the privileged matter was compelled
erroneously or made without an opportunity to claim the privilege.

Erroneously Sustained: If a claim of privilege by any person is erroneously sustained,

the losing party can always base an appeal on that ground.

ATTORNEY-CLIENT: See Legal Ethics outline.

PHYSICIAN-PATIENT: This privilege is statutory in origin and was not recognized at

common law. A patient, whether or not a party to the action, has a privilege to refuse to
disclose, and to prevent his physician from disclosing, any information acquired by the
physician in confidence while attending the patient. The physician may be compelled to
testify if the patient has waived the privilege. If the patient is not present, the doctor is
authorized and is ethically obligated to assert the privilege on the patient's behalf. If the
patient is incompetent, the privilege may be asserted by the patient's guardian. If the
patient is deceased, it may be asserted by his personal representative. Subject matter:
The privilege applies to any information obtained by the doctor in the course of
examination for the purpose of giving treatment which would normally be regarded as
confidential. Exceptions: The privilege is generally limited to civil actions. Its principal
application is in domestic relations cases. Waiver: Contractual provisions waiving the
privilege in any litigation arising under the contract, often found in insurance
applications, are usually upheld. The patient's calling the doctor as a witness obviously
constitutes a complete waiver of the privilege. It is generally held that a patient who
testifies to a consultation with a doctor can be cross-examined thereon. The doctor may
also then be compelled to testify. If the communication is made in the presence of
unnecessary third persons, the privilege is waived entirely so that anyone present can
testify.

PSYCHOTHERAPIST: This is the same as doctor-patient privileges. Exceptions: If the

psychotherapist has determined that the patient is in need of hospitalization for mental
illness, he may testify. This exception is limited to cases where the patient is dangerous to
himself or others. Communications by the patient in the course of a court-ordered mental
examination are not privileged. Whenever the patient puts his mental condition in issue
by claiming insanity as a defense in a criminal case or by suing for damages due to
traumatic neurosis, the patient cannot assert the privilege. Danger to Third Persons: If
the patient confides an intent to harm a third person, the danger of violence may justify
the psychotherapist in warning the third person or authorities of the threat. Failure to do
so may render the psychotherapist civilly liable for any harm inflicted by the patient.

MARITAL: This privilege prohibits either spouse from testifying for or against the other
and from revealing confidential communications from the other which were made during
the marriage. Common law incompetency: At common law, either spouse was
disqualified to testify for or against the other in any civil or criminal action in which the
other spouse was a party because of the potential danger to the marital relationship.
Modern law: A great majority of the states permit either spouse to testify for or against
the other in any civil or criminal action in which the other spouse was a party. Who may
assert: Traditionally, decisions have held that the privilege belongs only to the party-
spouse, and therefore the witness-spouse may be compelled to testify if the party-spouse
fails to raise the objection. The privilege may be asserted only during the marriage. It
terminates upon divorce or annulment, in which event either former spouse can be
compelled to testify against the other, even to matters that occurred during the marriage.

Marrying the Witness: In most states, an accused can effectively seal the lips of a
witness by marrying the witness. As long as a valid marriage is in existence at the time of
trial, the witness-spouse cannot be compelled to testify even if the crime charged is
against the witness' person, and even if the marriage was entered into for the express
purpose of suppressing the testimony. Crimes: When crimes are committed against the
person or property of the other spouse during the marriage there is no privilege.
Children: There is no privilege in cases involving crimes against the children of either
spouse, including failure to support and child abuse. Waiver: If a specific objection is not
made by the spouse entitled to assert the privilege, it is waived.

Marital Communications: The second marital exclusionary rule is the common law rule
that either spouse can refuse to disclose, or can prevent another from disclosing,
confidential communications made between the spouses during their marriage. The
privilege applies only to confidential communications. No privilege applies to either
spouse's observations of the physical or mental condition, actions, or conduct of the other
spouse, because no communication is involved. Duration: The prevailing rule is that a
confidential communication made during marriage is privileged even after the marriage
has been terminated by death or divorce. Assertion: The confidential communication
privilege belongs to both spouses; either may assert it to avoid giving testimony or to
preclude testimony by the other. Effect of death or incompetency: A guardian of an
incompetent spouse may claim the privilege on behalf of that spouse. However, no one
can assert the privilege for a deceased spouse; it can be claimed only by the surviving
spouse. Exceptions: Same as marital competency privilege supra for crimes against the
spouse, child, or third persons. The marital communications privilege does not apply to
communications which were made to enable or aid anyone to commit or plan to commit a
crime or fraud. Waiver: The privilege is waived unless a specific and timely objection is
made by the spouse entitled to assert it. Voluntary disclosure to a third person waives the
disclosing spouse's privilege. However, the other spouse can still claim the privilege.

CLERGY-PENITENT: A person may refuse to disclose and may prevent the clergy
member from disclosing any confidential communication that the person made to a
member of the clergy who was acting in a professional capacity as a spiritual adviser.
Communications are limited to confessions to persons whose religious practices involve
confessions. This privilege is extended to the clergy member as well. The member of the
clergy can refuse to testify even if the penitent wants the clergy member to do so. The
minority does not give the privilege of assertion to the clergy.
OFFICIAL INFORMATION: If disclosure is specifically forbidden by federal or state
law, the privilege is absolute. Otherwise, the government has a privilege to refuse
disclosure of official information and to prevent any other person from disclosing such
information only on a showing that such disclosure is contrary to public interest. State
secrets such as information which might be detrimental to national defense or
international relations come within this privilege.

Internal Affairs: Any confidential official information that relates to the internal affairs
of government may be privileged if the trial judge determines that the public interest in
preserving confidentiality outweighs the necessity for disclosure.

Presidential Communications: This privilege is absolute if the communication relates to

military, diplomatic, or national security secrets.

Effect of Claim: The judge determines whether the privilege applies in the privacy and
secrecy of his chambers (in camera). If the government as prosecutor asserts the official
information privilege, thereby depriving the defendant of material evidence, the trial
judge may have to dismiss the prosecution. If the government is the plaintiff in a civil
case and deprives the defendant of material evidence, most courts hold that the trial judge
may make any order in the interests of justice, including striking testimony, declaring a
mistrial, or finding against the government. If the government asserts the privilege on
cross-examination of its own witness, the trial judge may strike the witness' testimony
and perhaps declare a mistrial. If the government is the defendant in a civil case, it has as
much right as any other litigant to withhold privileged information and may not be
penalized for this.

POLICE INFORMERS: To protect confidential informants, the police are privileged to

refuse to disclose the identity of the informer who gave them the information that led to
the arrest and prosecution of the accused. Whenever it appears that the informer could be
a material witness on the issue of the defendant's guilt, the informer's identity must be
disclosed or the charges against the defendant must be dismissed. If the informer was not
an actual witness to the crime, but merely supplied leads to the police upon which they
based their investigation and upon which they relied as probable cause to arrest the
defendant or search the defendant's property, his identity need not be revealed. As long as
the judge is satisfied of the informer's reliability, the defendant cannot attack the legality
of the arrest or search so as to exclude evidence obtained thereby solely because the
police refuse to disclose the informer's identity. A judge who is not satisfied with the
informer's reliability may require that the informer's identity be disclosed in camera. Civil
cases: The government's informer privilege applies in civil cases because there is no
interference with an accused's confrontation rights.

REQUIRED REPORTS: Whenever a statute requires the filing of information with a

government agency, and at the same time provides that the information shall not be
disclosed by the agency, the party filing the report has a privilege to refuse to disclose
what was filed.
SELF-INCRIMINATION: Each person has the right to invoke the 5th amendment. The
is the right against self-incrimination. Anyone charged with a crime may invoke the 5th.
For those not charged with a crime, there must be some possibility that the testimony
would incriminate the witness.

OPINION EVIDENCE

An opinion is an inference or conclusion drawn from facts observed. Under common law
opinion testimony was excluded because it was not based on personal (firsthand)
knowledge. Under current rules, courts still adhere to the common law rule that
nonexpert witnesses giving direct evidence are restricted to their personal knowledge of
the relevant facts.

Nonexpert Witnesses: Nonexpert witnesses are allowed to give opinion testimony in two
settings: when no better evidence of facts that the witness observed personally can
reasonably be obtained, and when it is next to impossible for the lay witness to express
the matter in any other way. Nonexpert lay witness opinion testimony is generally
inadmissible, because they cannot draw conclusions from their observations. Testimony
involving legal conclusions rather than factual observations is prohibited. Examples:
Standard of care (concerning negligence or fault); cause of accident (requires expert or
specialized knowledge); contracts and similar relationships (questions of law); and
agency or authorization (questions of law).

Exceptions: Under the modern view, conclusions and opinions by nonexperts are
admissible when the trial court is satisfied that the witness' opinion is rationally based on
a perception of the facts in issue, and that the opinion helps make testimony more
understandable to the jury. Nonexperts may state an opinion about matters of taste, smell,
and appearance; identity; mental condition; physical condition; value (by the owner
only); dimensions; handwriting; and collateral matters.

Expert Witnesses: Experts are allowed to give opinion testimony because they possess
unique qualifications such as training, special knowledge, skill in drawing conclusions
from certain information, data that nonexperts do not possess, or education in the subject
area in which the trier of fact cannot draw unassisted conclusions. An expert's opinion
will be admissible in evidence if the following circumstances are met: the witness is
specially qualified; there is a proper basis for the opinion; the underlying data is revealed
or is available; and a reasonable degree of certainty of the opinions drawn exists. The trial
judge must be satisfied that the witness has special knowledge, skill, experience, training,
or education sufficient to qualify him as an expert on the subject to which his testimony
relates.

In Daubert the United Supreme Court rejected the argument that the standard for
determining the admissibility of scientific opinion testimony was the "generally accepted
in the relevant scientific community" test originating in Frye v. United States. The Court
held that Federal Rule of Evidence 702 supplanted the Frye standard with a more
"flexible" approach. The key factors were testability, peer review and publication,
assessing the known or potential rate of error of the proposition, and whether it has found
general acceptance in the scientific community. These factors are neither exclusive nor
exhaustive and it remains for the trial court to determine what procedures and tools are
necessary for it to analyze the "trustworthiness" of the expert's opinion. The
"gatekeeping" role of the trial court requires flexibility and a practical recognition of what
can be known and how it is known. If scientific methodologies can validate certain facts,
scientifically reasonable inferences drawn from those facts are admissible. The subject of
an expert's testimony must be 'scientific ... knowledge.' The adjective 'scientific' implies a
grounding in the methods and procedures of science. Similarly, the word 'knowledge'
connotes more than subjective belief or unsupported speculation. The term 'applies to any
body of known facts or to any body of ideas inferred from such facts or accepted as truths
on good grounds. It is not part of the trial judge's gatekeeping role to determine whether
the proffered opinion is scientifically correct or certain in the way one might think of the
law of gravity. The gatekeeping role is addressed to mere evidentiary admissibility; it is
the fact-finder's role (usually a jury) to determine whether the opinion is correct or
worthy of credence. Daubert requires that expert opinion evidence be both reliable and
relevant. The relevance prong of the test is concerned with whether the proffered
testimony "assists the trier of fact" to determine some issue in dispute. The Daubert test
only looks to the nature of the evidence and is not meant to weigh the evidence or to
choose sides.

Sources of Data: The basis of an expert's opinion testimony may be drawn from an
opinion based on facts personally observed, on evidence adduced during trial, on a
hypothetical question, or an opinion based on data conveyed by counsel or others. Most
state courts require the expert to disclose the data relied upon to form his opinion before
stating that opinion.

State Court Procedures: On cross-examination, the expert may be asked if his opinion
is based on the facts heard in the courtroom. In many states, the only way expert
testimony can be elicited is to ask the expert witness to assume as true various data that
counsel believes she has proved pertaining to the condition in question, and then ask the
expert to give an opinion based upon the assumed facts (hypothetical questions). Federal
Rule 705 permits examining counsel to ask the expert for an opinion without any
disclosure of the data underlying the opinion.

Scope: The expert's opinion testimony is limited to issues within her special expertise
and about which people lacking the witness' special knowledge are uninformed. Under
the traditional rule, the expert may not render an opinion as to the ultimate issue of a
case, since this would invade the province of the jury. The modern trend allows opinion
evidence on the ultimate issue when special knowledge is essential for the resolution of a
case.

Required: Expert opinion testimony may be required if some special knowledge or

training is necessary to aid the jurors in reaching their verdict. Examples: causation of an
accident, sanity, handwriting, fingerprints, blood groupings, property value testimony,
and photo identification of a person.
Prohibited: When jurors are competent on the matters in issue, expert opinion is not
allowed. These include the issues of fault, negligence, or guilt; they are conclusions
which jurors are competent to draw from the facts presented in evidence.

Effect: Under the general rule, jurors are not bound to accept expert opinion even when it
is not contradicted by other evidence. However, jurors cannot arbitrarily disregard
uncontroverted expert opinion and substitute their own opinions on matters about which
laypersons are not qualified to render valid opinions.

Cross-examination and Impeachment: An expert witness can be cross-examined to the

same extent as any other witness and can be impeached on the same grounds. These
include a lack of expert qualifications, prior inconsistent opinions, altering the facts of a
hypothetical question, showing compensation received, and the contrary views of other
experts. Some states do not allow the expert to be cross-examined on sources or
authorities not relied upon in formulating his opinion. The Federal Rules and other states
allow cross-examination of an expert witness concerning contrary views expressed in any
recognized authoritative source regardless of whether or not the expert relied on that
source.

EXAMINATION

DIRECT EXAMINATION: Testimony from a witness on direct examination is

presented by placing the witness on the stand, having the witness sworn, and then asking
the witness a series of questions. On direct examination, the examiner can only ask
questions calling for specific responses by the witness.

Objectionable questioning: Questions that call for an opinion or conclusion of the

witness are not allowed. Repetitive questions that are designed to bolster or emphasize
what has already been established by a witness' testimony are prohibited. Many courts do
not the allow the witness to present narrative answers or questions calling for such
answers. However, some courts do permit this form of questioning. If incompetent matter
comes in as part of the free narrative, the adverse party has a right to file a motion to
strike. Questions that suggest to the witness facts that are not yet in evidence in the case
are disallowed. The use of leading questions on direct examination is limited. Two types
of leading questions are those that lead the witness to a desired answer, and those that
strongly suggest a large volume of facts but only allow the witness to answer with a
simple "yes" or "no". Neither of these types of leading questions are allowed.

Leading questions are permitted if they are necessary to develop the witness' testimony,
and if there is no real danger of improper suggestions. Examples: To set the stage with
preliminary or background questioning, to jog a witness' memory, when dealing with a
timid or confused witness such as a child of tender years or a hostile witness, and when
examining the adverse party.
IMPEACHMENT OF OWN WITNESS: A party is not allowed to impeach his own
witnesses. Exceptions: Witness required by law: Courts have uniformly allowed
impeachment if a particular witness is one whom the party is required by law to call to
prove his case. If the witness is merely required to prove the facts of the case,
impeachment is generally not allowed. Witness is adverse party: Most courts permit the
examiner to use leading questions if the party calls the adverse party or someone united
in interest with the adverse party as a witness. The examination of such a witness is in the
nature of cross-examination. Witness hostile on stand: Whenever the witness gives
surprise testimony in a manner which indicates hostility to the calling party, impeachment
is allowed. Examples: The witness shows hostility or animosity to the examiner, the
witness appears to be biased in favor of the opponent or has an adverse financial interest
in the outcome, or the party who calls the witness is legitimately surprised by the
testimony. Constitutional Limitation: Impeaching one's own witness can never be
applied in a criminal case so as to deprive the accused of a fair trial as guaranteed by the
fourteenth amendment Due Process Clause. Modern Trend: The modern trend is to
permit impeachment of any witness by any party.

UNCERTAINTY IN TESTIMONY: The more certain and definite the witness'

testimony, the more probative value it has. Lack of certainty goes to the weight of the
testimony but does not affect its admissibility.

LACK OF MEMORY: The examiner may seek to aid the witness' memory on direct
examination. Such revival of recollection may involve the two concepts known as present
memory revived and past memory recorded.

Present Memory Revived: A testifying witness may be permitted to refresh or revive his
memory by referring to a writing or anything else if the witness will thereafter be able to
testify from present recollection without depending on the writing. This rule is not limited
to the use of a writing. The examiner may use anything which legitimately revives the
witness' memory, such as a picture, reference to another witness' testimony, or even a
leading question.

Use of Writings: If a writing or other tangible evidence is used to refresh the witness'
recollection, a proper foundation must be laid.

Requirements: The witness must have had some present memory before the reference to
the writing was made. After the presentation, the writing must be shown to the witness.
After reference to the writing, the witness must testify without depending on it. The
writing need not be authentic, nor made by the witness, nor have independent relevancy.
However, the party utilizing it to refresh the witness' recollection does not have any
absolute right to offer it into evidence.

Past Recollection Recorded: If the witness has insufficient memory of the contents of a
document even after being shown the document, the witness will not be permitted to
testify by relying on the writing. If the document meets the rigid standards of the past
recollection recorded exception to the hearsay rule, the document itself may be
introduced into evidence and read into the record. However, it cannot be sent to the jury
room.

CROSS-EXAMINATION: The right to cross-examine the opposing party's witness in

any court proceeding is an essential element of due process, and the Sixth Amendment
right of confrontation under the Constitution. Cross-examination must be limited to the
matters testified to on the direct examination. If one side is denied the opportunity to
cross-examine, such as when a witness who has already testified for the opponent on
direct dies or is legitimately unavailable, most courts require that the testimony given on
direct examination be stricken, provided that the unavailability of the witness is through
no fault of the party seeking to cross-examine. Note: All courts strike direct testimony
when the witness refuses to be cross-examined. A cross-examiner may employ leading
questions which suggest an answer.

Improper Questioning

Misleading: A question that is unanswerable unless the witness makes an unintended

admission.

Compound: This form of questioning is objectionable because it requires a single answer

to more than one question.

Argumentative: A leading question that more reflects the examiner's efforts to argue
with the witness than to obtain his answer to a question.

Assuming facts not in evidence: A question that assumes that a disputed fact is true
although the witness has not yet testified to this assumed fact.

Conclusionary: A question that calls for an opinion or conclusion that the witness is not
qualified or permitted to make.

Cumulative: A question that has already been asked and answered.

Harassing, embarrassing: Any judge has discretion to disallow cross-examination that

is unduly harassing or embarrassing.

Scope: Minority view - wide open: All relevant matters, whether or not covered by or
related to direct, are subject to cross-examination. Minority view - intermediate
position: Cross-examination may cover any matters raised on direct, and any part of the
defendant's case that is covered by the witness' denials of the plaintiff's case. Majority
view: Federal Rules and most states restrict the scope of cross-examination to matters put
in issue on direct examination, including the credibility of the witness. Testimony on
direct that touches on any part of a subject opens up the door for thorough cross-
examination in this area.
Rule of Completeness: If the witness, on direct, has testified to part of an event,
conversation, or writing, it is proper on cross-examination to query into any of this.

Expanded Inquiry: If the scope of cross-examination is restricted, the court may, in its
discretion, permit inquiry into additional matters. However, such expanded inquiry is in
the nature of direct examination. The right to use leading questions and the right to
impeach must not exceed the permissible scope of cross-examination, or the examiner
cannot use the witness' testimony.

REDIRECT EXAMINATION: Redirect questioning is used to explain or rebut adverse

testimony or inferences developed on cross-examination. Those states that limit cross-
examination to the scope of the direct normally limit redirect to the matters covered in
cross-examination. When the cross-examiner has attempted to impeach a witness, the
party who called the witness is allowed on redirect to attempt to rehabilitate or restore the
witness' credibility.

RECROSS-EXAMINATION: After redirect, the trial judge may allow recross-

examination of the witness. The purpose is to overcome the other party's attempts to
rehabilitate a witness or else to rebut damaging evidence brought out on cross-
examination. This type of examination is generally within the trial court's discretion.
Examination is normally limited to matters gone into on redirect. The type of questioning
is the same as cross-examination.

EXAMINATION BY TRIAL JUDGE: Either on his own motion, or on the motion of

any party, the trial judge may call any person to testify as a witness, and may interrogate
that person in the same manner as any other witness in the case. Either party may cross-
examine any witness called by the judge. The trial judge may use leading questions to
suggest an answer. However, the examination must be a fair one, and not intimidating in
nature. Either party may object out of the jury's presence to the judge's examination of the
witness at the time of interrogation. The trial judge may call an expert witness to advise
the court or jury on matters which are in dispute and which are the subject of conflicting
testimony by the experts of the respective parties.

Appellate review: Generally, appellate courts frown on a trial judge taking over the
conduct of the case. It is not considered to be proper for a trial judge to assume direct
control over the case, particularly in a jury trial which the judge's questioning may give
the jury the impression that the judge favors one side.

Judge's right to comment on evidence: Although there is a strong risk of prejudice,

many states allow a trial judge the discretionary power to comment on the evidence to the
jury.

IMPEACHMENT: To impeach a witness means to discredit the witness' testimony.

Impeaching a witness is a fundamental right on cross-examination. Under modern
practice, impeachment is not limited to cross-examination.
Effect: The trial judge may properly instruct the jury to consider the witness' testimony
with caution. However, the jury may ultimately believe the witness despite impeachment
evidence.

Methods: Contrary Evidence: The content of a witness' testimony may be rebutted by

proof of facts that are contrary to the facts to which he testified on direct.

Evidence showing lack of knowledge or perceptive capacity: A witness' credibility

may be attacked by showing that the witness had no real knowledge of the facts to which
he testified, or that the witness' faculties were so much impaired that it is doubtful that he
could have recognized those facts.

Poor memory: It is proper to show that the witness has a poor memory of the events
about which he testified. This is done by questioning the witness about other related
matters.

Evidence attacking credibility: A witness' entire testimony may be discredited if his

credibility as a witness is suspect. Some generally accepted methods of attacking
credibility are: demonstrating poor character for truthfulness, establishing bias or interest,
and establishing prior inconsistent statements.

Character Impeachment: Witnesses who take the stand put their character for honesty
and veracity in issue, and these may be questioned and attacked by direct examination or
by introduction of extrinsic evidence.

Conviction of Crime: At common law, a person who had been convicted of a felony or a
misdemeanor involving dishonesty was incompetent to testify at all. The courts disagree
on what crimes are grounds for impeachment. A number of states say any crime; a few
states say crimes of moral turpitude or infamous crimes; others hold that the crime must
logically discredit the veracity or credibility of the witness. The majority allows
impeachment for any felony conviction without restriction; the Federal Rules allow
impeachment for any crime involving dishonesty and false statement. In most states, a
conviction currently on appeal is admissible to impeach a witness, as are offenses that
have been fully pardoned. Under the traditional rule, a conviction is admissible to
impeach regardless of how old or remote from the issue. However, the modern rule gives
the trial judge discretion to exclude the conviction whenever the probative value is
outweighed by danger of unfair prejudice. Under the Federal Rule, a conviction that is
over ten years old is presumed to be too remote. This presumption may be overcome if
the court determines that the probative value of the conviction substantially outweighs the
prejudicial effect.

Misconduct: Extrinsic evidence of misconduct which did not result in a criminal

conviction may not be used to impeach a witness. A majority of courts permit misconduct
to be used in cross-examination if the past conduct does not amount to a criminal
conviction and if the trial judge makes a finding that its probative value does not exceed
its prejudicial effect. Under the minority (wide open) rule, a witness' entire personal
history is fair game on cross-examination. Other courts do not permit misconduct
evidence to be admitted at all.

Reputation: Because the witness' credibility is at issue, the witness may be impeached
by showing that he has a poor reputation for veracity in the community where he lives. A
party who takes the stand puts his reputation on the line for questioning.

Opinion Evidence: The traditional view prohibits impeachment by other witnesses who
offer their opinion about defendant's poor reputation in the community. The modern trend
recognizes this type of opinion evidence. However, when a lay person gives an opinion,
he must have personal knowledge of the witness' credibility.

Hostility, Bias, and Interest: A witness may be impeached by showing that the witness
is biased, hostile, or has some interest in the outcome of the trial which would give him a
motive to lie. Bias may be shown by compensation for testimony, hostile statements, or
by testimony from friends. Bias of a witness' relatives is not admissible to impeach the
witness as one cannot choose one's relatives. Bias may be shown by extrinsic evidence or
on cross-examination.

Prior Inconsistent Acts or Statements: Another method of attacking a witness'

credibility is to show that the witness made prior inconsistent statements regarding
matters to which he has given testimony. The statement must be inconsistent with the
witness' testimony at trial or it will not be permitted.

Laying a Foundation: Courts are split as to whether a prior inconsistent statement can
be used directly or whether the witness must first be asked about the statement and given
the opportunity to explain. The traditional view is that the witness must be asked about
the statement. The modern rule relaxes the foundation requirements. If a prior
inconsistent statement was written or signed by the witness, laying a foundation is not
necessary.

Effect: The majority view is that a prior inconsistent statement by the witness is hearsay
and cannot be used as proof of the fact asserted. The use of these types of statements is
limited to the impeachment of a witness. The minority view admits prior inconsistent
statements as substantive proof.

Collateral Matters: No matter what type of impeachment evidence is offered, it must be

relevant to the witness' credibility or to some other issue in the present litigation. The trial
court must use its discretion to determine what matters are collateral and therefore are an
improper subject of impeachment.

Rehabilitation: When the cross-examiner has attempted to impeach a witness, the party
who called the witness may attempt to rehabilitate or restore the witness' credibility. For
rehabilitation to be allowed it must appear that the witness' credibility has been attacked.
The type of rehabilitating evidence that is admissible depends upon the kind of
impeachment evidence presented. If the impeachment showed bias or adverse financial
interest, it is proper to introduce contradictory evidence to disprove the existence of such
bias. If the impeachment showed that the witness has a poor reputation for truthfulness,
evidence of the witness' good reputation for truthfulness may be shown. Under modern
rules, which allow impeachment by opinion of truthfulness, the rehabilitating witnesses
can also give opinion testimony. If a witness has been impeached by a showing of a prior
criminal conviction, evidence of the witness' truthfulness may be admitted to rehabilitate.
If the witness was impeached by showing a prior inconsistent statement, the witness is
always allowed to explain the inconsistency on redirect. Because a prior inconsistent
statement implies that a witness may have lied, most courts also allow reputation
evidence of the witness' integrity and veracity on redirect. Most courts hold that evidence
of the witness' prior consistent statements is not admissible to rehabilitate a witness who
has been impeached by proof of prior inconsistent statements. A minority of states allow
proof of consistent statements made by the witness before the inconsistent statement was
made.