Evidence Gilman

1 hour MC and 20 min per question (7)
Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling.
Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and
(1) Objection. - In case the ruling is one admitting evidence, a timely objection or
motion to strike appears of record, stating the specific ground of objection, if the
specific ground was not apparent from the context; or
(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context within
which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence,
either at or before trial, a party need not renew an objection or offer of proof to preserve a
claim of error for appeal.; shield the jury if necessary
(b) Record of offer and ruling
(c) Hearing of jury
so as to prevent inadmissible evidence from being suggested to the jury by any means,
such as making statements or offers of proof or asking questions in the hearing of the
jury.
(d) Plain error
Nothing in this rule precludes taking notice of plain errors affecting substantial rights
although they were not brought to the attention of the court.
3 categories of error on appeal
harmless error: doesn’t affect substantial rights
reversible error: affects substantial rights
plain error: error not raised below but affects substantial rights so can be reversed
ARTICLE IV. RELEVANCY AND ITS LIMITS

Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence

Inadmissible
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or
Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
State v. Jaeger
Facts: D was convicted of 2nd degree murder
D called 911 and said that his girlfriend shot herself
When paramedics arrived they found her on the floor partially clothed and the gun was
by her
D said they had a fight and he went to bed and later awoke to a bang
Evidence: GSR was found on D’s hands but not the girlfriend’s, ME ruled the death a
homicide
At trial D attempted to admit into evidence medical records that showed the girl had drug
and alcohol problems as teen and had previously attempted suicide but the court didn’t
allow it saying they were irrelevant
Issue: whether the trial court erred in excluding the records
Holding: the ct. erred in excluding the records
Records are relevant
Standard for determining what is relevant is low
Feaster v. United States

Facts: D appealed from his convictions of sexual offenses on the grounds that his 6th
amendment right to present a defense was violated when the judge excluded from the
defense a transcript of the grand jury testimony of a witness
When testifying before the grand jury the witness said that he was rarely home and
denied observing any such conduct
Judge based his decision on: absence of sufficient opportunity for the gov’t to cross-
examine, the unreliability of the testimony, and the likelihood of juror confusion resulting
from the inability of jurors to understand the testimony
The testimony was contrary to the government’s witness
Holding: trial court erred in excluding the transcript
The error could have been harmless but the testimony is relevant
The jury must decide credibility
Old Chief v. United States: under 403 undisputed facts that are relevant may be
excluded if the value is low; exception (usually can’t stipulate away facts)
Facts: P was arrested after a fight in which one gunshot was fired, also charged with
being a felon in possession of a firearm for a prior assault conviction
D claimed that the name of his prior offense (assault) was irrelevant
At trial, he asked the court to order the prosecution to refrain from mentioning any fact
surrounding the prior felony that made him a prohibited possessor of a firearm. He also
offered to stipulate to the fact that he had suffered a prior conviction that made him a
prohibited possessor. The reason for asking the prosecution not to mention the facts of
the prior crime, he said, was to preserve his right to be convicted by a jury beyond a
reasonable doubt on the basis of the facts relating to only the conduct with which he was
currently charged.
Court: Exclusion must rest on the evidence being unfairly prejudicial
Holding: Where the prior conviction is an element of the crime charged, evidence of
a defendant's prior conviction may not be admitted if the defendant is willing to
concede to the fact of the conviction.
Relevant Evidence: evidence that makes guilt more likely

Facts of consequence: facts relevant to the case
More or less probable/materiality
Relevancy doesn’t matter still not allowed:
Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the
issue whether the person acted negligently or otherwise wrongfully. This rule does not
require the exclusion of evidence of insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Not really relevant
Rule 407. Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if
taken previously, would have made the injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove negligence, culpable conduct, a defect
in a product, a defect in a product's design, or a need for a warning or instruction. This
rule does not require the exclusion of evidence of subsequent measures when offered for
another purpose, such as proving ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment.
Rationale: encourage good conduct
Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any
party, when offered to prove liability for, invalidity of, or amount of a claim that
was disputed as to validity or amount, or to impeach through a prior inconsistent
statement or contradiction:
(1) furnishing or offering or promising to furnish or accepting or offering or promising to
accept a valuable consideration in compromising or attempting to compromise the claim ;
and
(2) conduct or statements made in compromise negotiations regarding the claim, except
when offered in a criminal case and the negotiations related to a claim by a public office
or agency in the exercise of regulatory, investigative, or enforcement authority.
Permitted uses. This rule does not require exclusion if the evidence is offered for
purposes not prohibited by subdivision (a). Examples of permissible purposes
include proving a witness's bias or prejudice ; negating a contention of undue delay;
and proving an effort to obstruct a criminal investigation or prosecution.
Rule 409. Payment of Medical and Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar
expenses occasioned by an injury is not admissible to prove liability for the injury.
Rationale: encourage good conduct; humanitarian act
Tuer v. McDonald
Facts: Med. Mal. From heart operation
The Maryland Court of Special Appeals first looked at the doctrine of subsequent
remedial measures to determine how it would apply to the facts before the court.
The court looked to federal law to determine the policy behind disallowing evidence
of subsequent remedial measures. The court determined that the policy behind the
rule for excluding evidence of subsequent remedial measures is to increase safety by
removing the disincentive to make repairs. The court concluded that evidence of
subsequent remedial measures can only be admissible 1) to establish feasibility and
2) to impeach a witness’s credibility.
In examining the feasibility prong of the test to determine admissibility, the court
looks at both a narrow and a broad approach to feasibility. The narrow approach,
which was adopted by the court, looks at the plain meaning of feasibility, which is:
Could the subsequent remedial measure have been instituted? The broad meaning,
which the court rejected, would be to determine if the subsequent remedial measure
was possible or capable of being utilized or dealt with successfully.
The MD approach depends on the testimony; if the Dr. said “ I thought it was
unsafe at the time” that would be good for D bc it does not open the door to
feasibility
Dr. believed his judgment was right at the time but then reevaluated the hospital
procedure which is what we want doctors to do
P would want the doctor to testify a direct contradiction like “restarting heparin
would have caused the patient to bleed to death” bc a direct contradiction would
impeach him
The court determined that impeachment evidence is used to attack the credibility of a
witness, and that mere contradictory testimony is not enough to warrant admission of the
evidence. It noted that if impeachment evidence meant mere contradictory evidence, the
exception to Rule 407 would swallow the rule itself.
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this rule, evidence of the following is not, in any civil or
criminal proceeding, admissible against the defendant who made the plea or was a
participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal
Rules of Criminal Procedure or comparable state procedure regarding either of the
foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the
prosecuting authority which do not result in a plea of guilty or which result in a plea of
guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement
made in the course of the same plea or plea discussions has been introduced and the
statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal
proceeding for perjury or false statement if the statement was made by the defendant
under oath, on the record and in the presence of counsel.
410 protections can be waived to any prior plea can come in
determining it is a plea discussion or confession: subjective belief that a plea was be
offered
what was said?; who said it?; what was offered?
Relevancy and its Limits: Character Evidence

Character evidence is basically anything that carries a moral or ethical judgment
with it
4 uses for character evidence
to impeach credibility
character is an issue
to prove propensity
to prove something other than conduct (MIMIC (motive, intent, mistake/absence of
mistake, identity, common plan))
Rule 405. Methods of Proving Character

(a) Reputation or opinion.
In all cases in which evidence of character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable into relevant specific instances of
conduct.
(b) Specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element
of a charge, claim, or defense, proof may also be made of specific instances of that
person's conduct.
Ex. Child custody cases
Methods of proving character. Rule 405.

On direct: If a Rule 404(a) exception applies, character can be proved by opinion or
reputation on direct examination.
The reputation or opinion evidence must relate to a pertinent character trait.
To prove reputation, it must be shown that the witness is familiar with the accused’s
reputation in the relevant community.
Reputation evidence is hearsay, but admissible pursuant to a hearsay exception in
803(21).
A character witness offering an opinion on a pertinent trait of a person’s character must
be shown to have sufficient knowledge to support such an opinion.
On cross: Specific instances may be inquired into on cross-examination. However, the
questioner must take the witness’s answer and cannot follow-up with extrinsic evidence.
Specific instances are the most reliable evidence of character, but they may distract and
divert the jury. Thus, they are only permissible on cross.
The witness may be asked about prior convictions, uncharged misconduct, and other
conduct that is relevant to the character testimony given.
The questioner must have a good faith basis for any question asked on cross-examination.
The good faith basis must go to whether the misconduct actually occurred.
The court has discretion under Rule 403 to exclude questions whose probative value is
substantially outweighed by its prejudicial effect.
Character as circumstantial evidence

FRE 404(a)
Evidence of a person’s character or a train of character is not admissible for the purpose
of proving action in conformity therewith or a particular occasion, except:
Character of accused- evidence of a pertinent trait of character offered by an accused, or
by the prosecution to rebut the same, or if evidence of trait of character of the alleged
victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence
of the same trait of character of the accused offered by the prosecution;
Character of alleged victim- evidence of a pertinent trait of character of the alleged victim
of the crime offered by an accused or by the prosecution to rebut the same, or evidence of
a character trait of peacefulness of the alleged victim offered by the prosecution in a
homicide case to rebut evidence that the alleged victim was the first aggressor;
Character of witness- evidence of the character of a witness, as provided in Rules 607,
608, and 609.
Summary of 404(a)
A prosecutor in a criminal case cannot offer evidence about the ∆’s bad character in his
case-in-chief to show that the defendant committed the crime with which he is charged.
A ∆ can offer character evidence to prove that he did not do it. Such evidence is limited
to two forms: reputation evidence and opinion evidence.
Once the ∆ offers that good character, the prosecutor can cross-examine those character
witnesses. In the course of cross-examination, the prosecutor can inquire about specific
acts in ∆’s past, acts that might affect ∆’ reputation or opinion.
Evidence of prior-crimes offered for some other purpose than to show propensity
If evidence of other crime is relevant to some issue in the current case, it is admissible
even though it may also show criminal disposition.
FRE 404(b)
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as motive, intent, mistake/absence of mistake, identity,
common plan.”12
Evidence of character can be used to:
To show motive
Opportunity
Person had some special skill
Intent
Preparation of plan
Knowledge (∆ knew cocaine not sugar)
1
But still subject to Rule 403.
2
Advanced notice to the other party of such use is required.
Identity
Absence of mistake or accident
Two important things to remember about Rule 404(b)
Pre-trial notice requirement in criminal cases.
Even if admissible under this rule, but still subject to Rule 403
Four Steps to Apply to Specific Act Evidence
Is the evidence being offered as support for an inference that the ∆ acted in conformity
with a general trait of character? If so, then it is not admissible.
If not, is the evidence being offered to support a theory of relevance that would fit under
Rule 404(b)?
Could a reasonable juror find by preponderance of the evidence that ∆ committed the
other crimes?
Is the probative weight of the evidence outweighed by its danger of prejudice?
Overall context
Other crimes evidence may be used to place crime in context. E.g. two officers tried to
arrest ∆ and ∆ shot and killed one officer and wounded the other. Other officer can
testify as to the attempted murder at the murder trial.
Larger Plan
Evidence may be used to prove the existence of a larger plan, scheme, or conspiracy, of
which the crime on trial is a part.
Preparation
Evidence may be used to show preparation for the crime charged.
Identity
Evidence of other crimes may be used to establish identity. Other crimes must be so
similar in method as to be the signature of ∆. Requirements:
The accused must deny his participation in the crime charged.
The methods of other crimes must be so very similar to those used in the crime charged
that the similarity is substantially probative of identity.
Michelson v. United States

Issue: Whether the trial ct properly allowed the prosecution to cross examine the
character witnesses and inquire about an arrest for stolen property 27 years earlier to
rebut the character of the D?
Holding: Yes. The state may not show D’s prior trouble with the law, specific
criminal acts, or ill name among his neighbors as to support a persuasion that D’s
propensity as a probable perpetrator of the crime, but if the D calls character
witnesses the prosecution may pursue the inquiry with contra witnesses.
D has to open the door as to character and if he does the prosecution can on cross
try to rebut that reputation BUT NOT propensity
Specific instances are permitted on cross but can bring in outside evidence
Olden v. Kentucky
Facts: V claimed that she was raped by D. Defense wanted to show V’s motive for lying
about this whole incident and present evidence that V (white) was living with her
boyfriend (black). Trial court excluded this evidence and D was sentenced for 10 years
for forcible sodomy. D claims that exclusion of this evidence violated his constitutional
right to cross-examine his accuser.
Issue: Was D denied of his constitutional rights?
Holding: Yes. The exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right to cross-examination. In
this case, it is clear that a reasonable jury could have doubted the credibility of V if
it had know about the relationship between V and her boyfriend which could very
well have provided V with the motive to falsely accuse D of rape.
CHARACTER EVIDENCE INTRODUCTION
General rule: The general rule is that character evidence is not admissible to prove that
a person acted in accordance with his character on a particular occasion. This usage is
known as “propensity” use of character evidence.
Definition of character: Evidence concerning the propensity of a person to act in a
certain manner that makes a general statement about that person and conveys a moral or
ethical judgment.
Rationales for excluding character evidence:
This evidence is usually relevant, but as a matter of law and policy, its probative value is
viewed as generally outweighed by competing dangers.
Rather than focusing on who people are, our system requires that trials focus on whether
a person engaged in particular conduct on a specified occasion.
People do not always act in accordance with their propensities, so character evidence may
not be useful to decide what happened on particular occasion.
Potential uses of character evidence

1. To prove character when character itself is an essential element of a charge, claim, or
defense (ie., when character is in issue).
Examples: defamation, negligent entrustment, child custody
Evidence for this purpose is permissible in all forms, including opinion, reputation, and
specific instances. Rule 405(b)
Note that the rules do not expressly allow character evidence where character is in issue.
The Advisory Committee Note, however, makes clear that character evidence offered for
this purpose is admissible.
2. To prove character as circumstantial evidence of out-of-court conduct. Rules 404 and
405. There are two potential uses:
To show propensity, ie., D is a bad person so he is probably guilty in this case; OR
For a non-propensity purpose (MIMIC).
3. To prove character as circumstantial evidence of the truthfulness of a witness.
EXCEPTIONS to the general rule in Rule 404(a):

D opens door to  Defendant’s good character. The accused can offer evidence of his
or her own pertinent character trait in defense of the crimes charged.
OPEN WITH CAUTION: Defendant’s bad character in rebuttal. The prosecution
may offer evidence of a pertinent character trait of the accused to rebut defense evidence
about the accused’s own character. The prosecution might cross examine D’s character
witness or call their own character witnesses.
D opens door to  Victim’s bad character. The accused may offer evidence of the
alleged victim’s character to show that the alleged victim acted in conformity with his
character.
OPEN WITH CAUTION:
Victim’s good character in rebuttal. If the defendant attacks the victim’s character, the
prosecution may offer rebuttal evidence about the character of the alleged victim.
Defendant’s bad character same as victim in rebuttal. If the defendant attacks the
victim’s character, the prosecution may offer rebuttal evidence of the same character trait
in the accused.
Victim’s peaceable character by prosecution. If the accused in a homicide case has
presented any evidence that the alleged victim was the first aggressor, the prosecution
may offer evidence of the alleged victim’s peaceable character.
Exceptions to the general rule in Rules 413, 414, 415
Evidence of defendant’s commission of another offense(s) of sexual assault is admissible
in a criminal or civil case.
Evidence of defendant’s commission of another offense(s) of child molestation is
admissible in a criminal or civil case.
FRE 413, 414, and 415 were enacted in 1994 subject to controversy.
Evidence of other sexual assaults is admissible in prosecutions for sexual assault (413);
evidence of other acts of child molestation is admissible in prosecutions for child
molestation (414); and the same types of misconduct are admissible in civil actions rising
out of the alleged sexual assault and child molestation (415).
Method of proof: Specific instances of conduct are admissible; reputation and opinion
are not. Courts allow prior convictions, as well as uncharged sexual assaultive or
molestative conduct.
Burden of proof for admission: To be admissible, the trial court must find that a
reasonable jury could determine by a preponderance of the evidence that the other act
came within the rule’s definition of an “offense of sexual assault” or “an offense of child
molestation” and that the defendant committed it.
Courts may still exclude this evidence pursuant to Rule 403 balancing.
Maryland does not have analogous provisions (at least 15 other states do), despite the
introduction of similar bills in the last few years. There is, however, a common law
exception in Maryland that makes past sex crimes committed by the same defendant
against the same victim admissible.
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or
Alleged Sexual Predisposition
Applies in criminal and civil proceedings
Can’t introduce pertinent evidence of a character trait of the victim bc it has little
or no value in proving consent and it makes victims less likely to report crimes
Only allowed to show source of semen or injury, to show prior sexual relationship,
and if constitutionally required
RAPE SHIELD STATUTE: FRE 412

Rule 412 makes inadmissible the past sexual behavior of a victim of sexual abuse for any
purpose.
Rationale: To prevent the victim, rather than the defendant, from being put on trial.
At common law, some courts admitted evidence of a woman’s character for chastity to
show that she had a propensity to consent, and therefore that she consented on a
particular occasion.
The admission of this sort of evidence deterred rape complaints because of abuse of
victims in the courtroom.
The underlying premise of the common law approach – that consent on one occasion is
worthy evidence about consent on another – is wrong.
There are exceptions within FRE 412 under which past sexual behavior will be
admissible in criminal cases:
1. if the defendant is trying to show that someone else was the source of the semen or
injury to the victim;
2. if the defendant is claiming consent and wishes to show that the victim had previously
engaged in sexual behavior with the defendant;
3. if the Constitution would so require.
Olden v. Kentucky is an example of this. S. Ct. held that preventing the defense’s
attempt to cross-examine the alleged victim about her affair with another witness violated
the defendant’s right to confrontation.
Civil cases: In civil cases, the court must assess the evidence to determine whether its
probative value substantially outweighs the harm to the alleged victim and the danger of
prejudice to any party. This burden is more stringent than the FRE 403 balancing test.
Procedural requirements: For a defendant to offer evidence within one of the exceptions,
the defendant must make a written motion at least fourteen days in advance of trial. The
court must conduct a hearing in chambers and provide all parties a right to be heard.
Rule 406. Habit; Routine Practice

Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove
that the conduct of the person or organization on a particular occasion was in conformity
with the habit or routine practice.
Robbins v. State
Though “prejudicial,” the evidence was not “unfairly prejudicial.” And, any
“unfair prejudice” did not “substantially” outweigh the probative value of the
evidence even if it could be said that it “outweighed” its probative value.
Doctrine of Chances (basically what are the odds that…)
Here, baby had an injury every time she was left alone with D
HEARSAY
Hearsay rules create safeguards for witness testimony
Better to question the actual witness rather than someone who heard the story secondhand
Actual witness is under oath, can see his demeanor, can cross-examine
Hearsay risks
Loss of memory
Insincerity
Ambiguity
Misperception
HEARSAY INTRODUCTION
Hearsay is an out-of-court statement, made in court, for the truth of the matter asserted.
Cross-examination is the key to understanding the hearsay rule.
The accuracy of a witness’ testimony at trial depends on the witness’s perception,
memory, sincerity, and narration (the testimonial infirmities).
These four factors can be explored on cross-examination. Moreover, the witness is under
oath and the jury can observe the witness’s demeanor.
However, if the witness is testifying to an out-of-court statement, these safeguards are
lost and the testimonial infirmities cannot be explored.
When you have a problem of deciding whether evidence is hearsay, do three things.
First find the out-of-court statement in question and put quotation marks around it to help
you focus on it.
Second, ask yourself, why is the jury being given this evidence? What is it going to
prove?
Third, keeping the answer to the second question in mind, ask yourself, if the declarant
was lying or mistaken, would the jury be misled? Would it be receiving unreliable
evidence? If so, it is hearsay. If not, it is not hearsay.
Fourth, if offered for truth is there an exception? Is there any special proof required?
Aspects of the hearsay definition
Declarant: The declarant is a person who makes a statement. The rule does not apply to
animals or machines.
Statement: A statement can be written, oral, or involve nonverbal communicative
conduct. Whether words or conduct constitute a statement depends on the intent of the
actor.
Out-of-court: Hearsay statements are those “other than one made by the declarant while
testifying at the trial or hearing.”
Thus, even if the witness at trial is the same person as the declarant, there is a hearsay
problem.
Thus, even if the witness is testifying about statements in a deposition or prior trial, there
is a hearsay problem.
Assertion-based model of hearsay:

It must be a statement (made out of court)
Of the declarant
Made other than while testifying at trial or hearing
Offered in evidence to prove the truth of the matter asserted
If the declarant were lying or mistaken would the jury be mislead?
Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed
by the Supreme Court pursuant to statutory authority or by Act of Congress.
Problems with inaccuracy of hearsay:

Perception (the accuracy of the source’s perception of the event)
Memory (the accuracy of the source’s recollection of the event)
Sincerity (the source’s honesty about the event)
Narration (the adequacy of the source’s communication of her thoughts)
Hearsay problems come more from the twice removed problem rather than the once
removed problem
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule provided in these
rules.
Shepard v. United States

D was charged with killing his wife and sentenced to life in prison
Wife died from poisoning
D was in love with another woman and wanted to marry her
Gov’t offered evidence of a conversation between D’s wife and her nurse where she told
the nurse the get a bottle of whiskey from her husband’s closet and said that was what she
drank before she collapsed, she asked if it could be tested for poison bc it tasted and
smelled weird, then she said her husband poisoned her; show she is not suicidal
gov’t said that the statement could be entered as a dying declaration
court said it was not bc death was not impending
defense offered evidence that the wife was suicidal
court: the testimony was not offered only to prove the wife’s state of mind
testimony faced backward, the jury cannot make the distinction (403)
If someone is asked a question and then responds it is hearsay, but if no question is

asked and just a statement is made then it is lack of personal knowledge
HEARSAY – FOR THE TRUTH OF THE MATTER ASSERTED
Statements offered for their truth:

If the relevance of an out-of-court statement is that it was made, rather than the truth of the
assertion, the statement is not hearsay. If it is offered for its truth, then it is hearsay.
Thus, we cannot determine if a statement is hearsay until we know what the statement is being
offered to prove.
To determine whether a statement is being offered for its truth, you can compare the assertion
with the reason it is being offered.
This is pictured in the two boxes approach below:
Out of court statement Offered to prove what?
[The text of the out-of- court [The issues/the elements]

statement]
If the two boxes are the same, then the out-of-court statement is probably hearsay.
Non-Hearsay Purposes: certain non-hearsay uses appear routinely in trials, and include (but are
not limited to):
Verbal acts
Statements used to show that words were spoken
Statements offered to prove their effect on the listener
Statement offered as circumstantial evidence of the speaker’s state of mind
Nonassertive conduct
Impeachment
1. Verbal Acts/Words of Independent Legal Significance

Verbal acts are utterances that have operative effect under substantive legal principles. Thus,
courts only care that the words were said, not that they are true.
Examples are words forming a contract, words of slander, and threats.
2. To prove fact that words were spoken

Eg., To show that a person was alive at a given moment, evidence that the person said “I’m
alive” would not be hearsay. It is not the content of the words, but the fact that the speaker said
something at that moment. The result would be the same if the person said “I am dead.”
3. Proof of effect on listener
In many cases, a person’s state of mind – knowledge, belief, good faith, reasonableness – is an
important issue. A statement offered to show its effect on that person is not hearsay.
Eg: In a negligence action where plaintiff allegedly slipped on a ketchup spill.
To prove ketchup was on the floor, Witness says she told the manager there was ketchup on the
floor. This is hearsay.
OCS: “There was ketchup on the floor.
Purpose: There was ketchup on the floor.
Boxes are the same.
To prove manager knew there was ketchup on the floor, Witness says that she told manager
there was ketchup on the floor. This is not hearsay. It only goes to show notice to the manager.
OCS: “There was ketchup on the floor.”
Purpose: Manager knew there was ketchup on the floor.
Boxes are different.
To prove manager knew there was ketchup on the floor, plaintiff says that Witness told her, “I
told the manager there was ketchup on the floor.” This is hearsay within hearsay. Rule 805
requires that each level of hearsay be admissible to get in the statement. We have to separate
out the two out of court statements within plaintiff’s testimony: 1) Witness to Manager and 2)
Witness to Plaintiff. The first level is non-hearsay if offered to show that the manager had
notice. BUT, we are in trouble on the second level. Now, we are being asked to accept
Plaintiff’s word that the Witness spoke to the manager, and we do not get to cross-examine the
Witness.
OCS: “I told Manager there was ketchup on the floor.”
Purpose: Witness spoke to the manager about the ketchup.
Boxes are the same.
**Note that the OCS is DIFFERENT in the third example.
4. Circumstantial evidence of state of mind

A person’s mental state is often a material issue. If that person makes a statement that directly
expresses her state of mind, the statement is relevant. It is also hearsay, but within the state of
mind exception (that we will learn about).
Sometimes, however, the statement only shows the declarant’s state of mind circumstantially.
These OCS are not hearsay.
Circumstantial evidence of knowledge: This is a narrow category. The OCS must display
knowledge that is sufficiently distinctive so that relevant inferences can be drawn without
relying on the truth of the statement. Eg., crime victim’s description of scene as crime.
5. Nonassertive conduct
Conduct not intended by the declarant to be an assertion is not hearsay under the federal rules.
(However, many common law courts considered this to be hearsay. You need only be aware
that our assertion-based system is different from a declarant-based system.)
Eg., Testator makes a will and the issue is whether testator was mentally competent at the time.
Evidence that other people who knew testator treated testator as though she were competent
would be relevant evidence of her competence. However, this conduct is not intended as an
assertion, and thus, is not hearsay.
7. Impeachment
A prior statement used to impeach is not hearsay. It is going to undermine credibility, not to
prove the truth of the words uttered.
Mutual Life Ins. Co. of New York v. Hillmon
Facts: At trial, Mutual Life attempted to introduce letters from Walters just before
he disappeared saying that he was going with Hillmon to Colorado. Mrs. Hillmon
objected on the grounds that the letters were hearsay. Mutual Life argued that
under the common law, statements made in the present state of mind are admissible
as an exception to hearsay.
The Trial Judge rejected the letters.
The Trial Court found for Hillmon. Mutual Life appealed.
The US Supreme Court reversed and ordered a new trial.
The US Supreme Court looked to the common law and found that evidence of
intention is an exception to hearsay.
The Court found that the letters could not be used to prove that Walters did go to
Colorado with Hillmon, but they could be used to show that Walters intended to go
to Colorado with Hillmon.
"Wherever the bodily or mental feelings of an individual are material to be proved,
the usual expressions of such feelings are original and competent evidence."
This case established "the Hillmon Doctrine" which says that, the state of mind of
the declarant can be used inferentially to prove other matters that are in issue.
"When the performance of a particular act by an individual is an issue in a care, his
intention to perform that act may be shown. From that intention, the factfinder may draw
the inference that the person carried out his intention and performed the act."
Basically, if a person says that they are going to do an act, then that statement is relevant
evidence that can be used to help prove that they actually did the act.
It isn't conclusive proof, but it can help.
Interestingly, there is evidence that the insurance companies forged Walter's letter. If so,
a whole doctrine of evidence was based on a lie.
HEARSAY EXEMPTIONS -- FRE 801(d)

INTRODUCTION
The Federal Rules also contain exceptions to the hearsay rule in FRE 803, 804, and 807.
In Maryland, the statements that fall within the federal 801(d) exemptions are treated as
exceptions. So, Maryland sticks to the “pure” definition of hearsay that we have been
learning.
FRE 801(d) defines as non-hearsay (1) certain prior statements by witnesses, and (2)
admissions.
This summary discusses the different types of admissions.
NON-HEARSAY ADMISSIONS
Statement of a Party Opponent: 801(d)(2)(A)

Party admissions are the most common basis for admission of hearsay.
Anything the other side has said out-of-court can come in under this exemption (although
it may still be subject to a relevancy or other objection).
A party cannot introduce her own statements under this rule; no “statements by me”.
Rationale: A party cannot object that she did not have a chance to cross-examine herself;
parties are almost always available to testify; and the party has a chance to explain the
statement.
Foundational requirements
1. The out-of-court statement is a party’s own statement – an out-of-court statement by a
party to the litigation at hand.
2. The statement is offered against the party who made it.
The statement need not have been against the party’s interest when it was made. Self-
serving statements are admissible.
There is no personal knowledge requirement for these statements.
Statement by an Agent: 801(d)(2)(D)

Statements by agents concerning matters within the scope of the agency and made during
the existence of the agency relationship are admissible as substantive evidence if offered
against the party.
1. When the out-of-court statement was made, the declarant must have been an agent or
employee of the party against whom the statement is now offered into evidence.
The statement need not have been made during work hours. The time frame is “hired to
fired.” Thus, post-discharge statements are not admissible.
2. The out-of-court statement must concern something that was within the scope of the
declarant’s agency or employment.
It does not matter if the activity involved is illegal or fraudulent.
The statement must relate to the declarant’s employment responsibilities.
There need not be an actual agency relationship. The party against whom the statement is
offered must have had some control over the declarant or be an equal footing with the
declarant (such as partners in a partnership).
Courts are split as to whether the exemption applies to statements by government
employees when offered against the government in a criminal trial.
Authorized Admissions: 801(d)(2)(C)

Statements made by a person authorized by a party to speak are admissible as substantive
evidence if offered against that party.
Almost all cases that fit within this exemption also fit within the agency exemption (see
above). The only difference is that this exemption does not require an agency
relationship. It often applies to statements made by persons with speaking authority, such
as lawyers, partners, and corporate officers.
1. The out-of-court statement must be offered against a party.
2. The out-of-court statement must have been made “by a person authorized by the party
to make a statement concerning the subject.”
The authorization can be implicit or explicit.
The authority of a speaking agent may be limited to certain subjects, and statements
outside these limits are beyond the exception.
Adoptive Admission: 801(d)(2)(B)

A statement that a party adopts is admissible as substantive evidence if offered against
that party.
Explicit Adoptive Admission – Foundational requirements
1. The out-of-court statement is offered against a party.
2. The party against whom the statement is offered has explicitly adopted the statement
as true.
Implicit Adoptive Admission -- Foundational requirements
2. The party against whom the statement is offered heard the statement or read it.
3. Probable human behavior would be to deny the statement if it was not true.
4. The party did not deny the statement.
5. There is no other apparent reason for the lack of denial.
Admission by a Coconspirator: 801(d)(2)(E)
A conspirator’s statement made during and in furtherance of the conspiracy is admissible
as substantive evidence if offered against another conspirator.
The substantive law of criminal conspiracy has no application to this exemption. A
statement can come in under this exemption even if there is no underlying criminal
charge of conspiracy.
2. A conspiracy existed.
A conspiracy is an agreement between two or more persons with intent to commit a
crime.
The party must have known of the venture and intended to associate with it.
3. The declarant and the party against whom the evidence is offered were both members
of the conspiracy.
4. The statement was made during the course of the conspiracy.
The statement cannot have been made after the conspiracy ended, such as after arrest,
confession, or indictment.
5. The statement was made in furtherance of the conspiracy.
NON-HEARSAY PRIOR STATEMENTS AND 803 EXCEPTIONS

Prior inconsistent statements are admissible for their truth if they meet the requirements
of 801(d)(1)(A).
Prior inconsistent statements that do not meet the requirements of the exemption are
admissible for impeachment purposes (ie., not for their truth), to challenge the witness’s
credibility under Rule 613 (which we will study later).
Rationale for exemption: The witness is available for cross-examination, the prior
statement was made under oath, and the statement is coming in for impeachment
purposes anyway.
1. The out-of-court declarant is testifying at the trial or hearing and is subject to cross-
examination regarding the out-of-court statement.
2. The prior statement is inconsistent with the declarant’s trial testimony.
3. The statement was “made under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition.”
Prior consistent statements are admissible as substantive evidence if offered to rebut
charges that the witness is lying or subject to improper influence.
Rationale: The witness is available for cross-examination, the prior statement was made
under oath, and the statement is coming in for rehabilitation purposes anyway.
2. The statement is offered to rebut a charge that the declarant has recently made up a lie
or been subject to improper influence.
3. The out-of-court statement was made before the event argued to have motivated the
alleged fabrication.
4. The out-of-court statement is consistent with the declarant’s in-court statement.
Note that the out-of-court statement need not have been made under oath (unlike prior
inconsistent statements).
The testimony need not be entirely consistent; it is enough if the statement is consistent
with respect to an important fact in the trial.
Statement of Identification of Person: 801(d)(1)(C)

A witness’s prior statement of identification of a person after perceiving that person is
admissible as substantive evidence.
Rationale: In-court identification is too easy; earlier, less guided identifications are more
reliable. Plus, the declarant is available for cross-examination.
2. The statement is one identifying a person and was made after perceiving the person in
question.
These statements usually arise in pretrial identification of suspects by victims or
witnesses.
RULE 803 HEARSAY EXEPTIONS

PRESENT SENSE IMPRESSIONS AND EXCITED UTTERANCES 803(1) & (2)
Introduction
FRE 803 contains exceptions to the hearsay rule. The availability of the declarant is
immaterial for all of these exceptions.
Under Rule 104(a), the judge determines whether the proponent of the OCS has
established by a preponderance of the evidence that the 803 exception has been met.
Present Sense Impression: Rule 803(1)

Foundational elements
1. The OCS must have been made while the declarant was perceiving an event or
condition, or immediately thereafter.
2. The OCS must describe or explain the thing being perceived.
Rationale
There has been no time for reflection (and thus insincerity) and thus, statements are
reliable.
Excited Utterance: Rule 803(2)

1. There was a sufficiently startling event.
2. The OCS declarant was sufficiently startled by this event – reflection and reasoning
are blocked.
3. The OCS was made while the declarant remained under the stress of the excitement
caused by the event,
4. The OCS must relate to the startling event.
Rationale: These statements are likely to be sincere because there is no time for
reflection or fabrication. The statements are likely to be accurate because a person’s
senses are elevated in times of stress. Are these assumptions true…?
Differences between Present Sense Impression and Excited Utterance

Timing: To be a present sense impression, the OCS must be made while perceiving the
event or immediately thereafter. To be an excited utterance, the OCS must be made
while the declarant is still under the stress of the excitement caused by the triggering
event – however long that lasts. The latter is a more flexible time requirement.
Describing/relating: The present sense impression must describe the thing being
perceived; the excited utterance need only relate to the startling event.
Some out-of-court statements satisfy both exceptions. But, you only need to get your
OCS within one exception for it to be admissible.
State of Mind: 803(3)

1. The OCS must be a statement of the declarant’s own state of mind, emotion,
sensation, or physical condition.
2. The OCS must reflect a state of mind, emotion, sensation, or physical condition
existing at the time the statement is made.
Forward looking statements: When it is used as evidence of future conduct, the statement
is admissible only as evidence of the declarant's future conduct, not as evidence of the
future conduct of another. See Hillmon.
The joint conduct problem: This arises when the statement is offered to prove that a
person other than the declarant also engaged in the intended conduct. Most courts (but
not all) will admit statements by A that he intends to do something jointly with B, but
many will use limiting instructions and/or require evidence corroborating the conduct of
B.
Backward looking statements: Backward looking statements are excluded from this
hearsay exception (except for statements relating to the execution, revocation,
identification, or terms of declarant's will).
Rationale for the exception
Reliability: The declarant did not have time to fabricate or to forget.
Need: State of mind can be a material fact under the substantive law and the OCS is the
only evidence to establish that fact.
Distinction between 803(3) and non-hearsay use of circumstantial evidence of state-of-
mind:
“I am Elvis.” This is non-hearsay evidence of state-of-mind. It is not offered for its
truth.
“I believe I am Elvis.” This is hearsay evidence of state-of-mind, but it is admissible
under 803(3).
Statements for Medical Diagnosis: 803(4)

1. The declarant believed that the OCS would result in medical diagnosis or treatment.
2. A doctor would reasonably rely upon the OCS in diagnosing or treating a patient.
Rationale: People do not lie when seeking medical treatment and people have accurate
perceptions about their conditions.
Scope of rule
Statements made to doctors as part of litigation are “for diagnosis,” and thus, fall within
the exception (although the adverse party can attack these statements on their weight).
Note that Maryland excludes these statements in Md. R. Ev. 803(b)(4). The statements
must be made “for purposes of medical treatment or medical diagnosis in contemplation
of treatment.”
The statement need not be made to a doctor; it simply must be made for the purpose of
obtaining medical treatment or diagnosis.
The statements need not be made by the “sick” person; e.g., a parent’s statement to a
doctor about her child’s condition qualifies.
The exception does not cover the diagnosis itself; eg., “You have the flu.”
Examples:
Dr. had notice P ate an hour ago
Effect on the listener, not hearsay
When P ate
803(4) medical diagnosis
Nurse not there, bring in record
803(6), business record analysis
Rule 612. Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United
States Code, if a witness uses a writing to refresh memory for the purpose of testifying,
either--
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests
of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce in evidence those portions which
relate to the testimony of the witness. If it is claimed that the writing contains matters not
related to the subject matter of the testimony the court shall examine the writing in
camera, excise any portions not so related, and order delivery of the remainder to the
party entitled thereto. Any portion withheld over objections shall be preserved and made
available to the appellate court in the event of an appeal. If a writing is not produced or
delivered pursuant to order under this rule, the court shall make any order justice
requires, except that in criminal cases when the prosecution elects not to comply, the
order shall be one striking the testimony or, if the court in its discretion determines that
the interests of justice so require, declaring a mistrial.
HEARSAY DOCUMENTARY EXCEPTIONS
RECORDED RECOLLECTION: 803(5)

Foundational elements. The witness:
1. made or adopted a record;
2. based on first hand knowledge;
3. when the matter was fresh in the witness’s memory;
4. the record accurately reflects the witness’s knowledge;
5. at the time of trial, the testifying witness no longer has sufficient memory of the
matter recorded to allow her to testify fully or accurately; and
6. at trial, the witness must remember that the record is accurate.
Rationale: The events were fresh in the mind of the declarant when they were recorded;
thus, they are reliable. The declarant is available at trial and can be cross-examined.
Plus, there may be no other way to get the evidence in, so it may be needed.
The witness can read the record, but the record cannot be offered as an exhibit, except by
the adverse party. This is because the record is a substitute for oral testimony, and to
send it to the jury room would give it undue emphasis over other oral testimony made by
witnesses with better memories.
Distinguish this hearsay exception from the practice of refreshing present recollection
(FRE 612), which does not raise a hearsay issue because the out-of-court statement is not
offered into evidence. See chart below.
BUSINESS RECORDS EXCEPTION: 803(6)

1. OCS is a record that was made in the course of a regularly conducted business
activity.
Business is broadly defined and need not be for-profit.
2. Record was made at or near the time of the event recorded, ie., while memory was
fresh.
3. Record was made by someone who either had personal knowledge or based the record
on information provided by someone who had personal knowledge.
4. The record was made in the regular course of the particular activity involved.
Trustworthiness clause: Even if the foundational elements are satisfied, the court can
keep out the record if the judge is suspicious of the evidence.
Duty to be accurate in record keeping
Rationale: In many instances, there will not be anyone with a current memory of the
events recorded. Also, these records tend to be reliable because businesses have an
incentive to keep careful records. The hearsay will be more reliable than a later personal
recollection.
WHEN WITNESSES FORGET –
A COMPARISON OF PAST RECOLLECTION RECORDED AND
PRESENT RECOLLECTION REFRESHED
Past recollection recorded: Present recollection
803(5) refreshed: 612
Hearsay? Yes. The writing is the No. The testimony is the
evidence, and thus hearsay. evidence and thus, there is no
hearsay problem. The trigger
is not introduced into
evidence.
Use at trial Witness can testify from Witness is shown trigger to
document. Document is read stimulate memory, trigger is
into evidence, but document removed, and witness
is not an exhibit and does not testifies.
go to jury room (unless
opposing side puts it in).
Rights of adverse party Opposing counsel has right to Opposing counsel has right to
review, use it to cross, and review, use it to cross, and
offer it into evidence. offer into evidence.
Trigger Recollection must have been Can be a writing or a physical
recorded. object or a leading question –
anything goes.
Foundational elements Witness (1) based on first None of these requirements
hand knowledge, (2) made or apply. A simple “I don’t
adopted the record, (3) when remember” from the witness
the matter was fresh in the is enough.
witness’s memory, (4) record
correctly reflects the
witness’s knowledge; and (5)
witness has insufficient
recollection to testify fully
and accurately about the
matter.
Practical reality This is an infrequently used For opponent: Ensure that the
exception. Easier to use witness is not reading the
business or public records document. If the witness is
exceptions if at all possible. reading, memory has not been
refreshed, and the proponent
must satisfy 803(5).
For proponent: Do not use
anything to refresh
recollection that will give the
opposing side additional
ammunition for cross-
examination.
Rule 804. Hearsay Exceptions; Declarant Unavailable: need one from (a) and one from
(b)
(a) Definition of unavailability.
"Unavailability as a witness" includes situations in which the declarant--
(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing
physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to
procure the declarant's attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other
reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrongdoing of the proponent
of a statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the declarant is unavailable as a
witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the testimony is now offered, or,
in a civil action or proceeding, a predecessor in interest, had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination.
Broader for civil than criminal
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant while believing that the declarant's
death was imminent, concerning the cause or circumstances of what the declarant
believed to be impending death.
Dying Declaration
Declarant is unavailable.
At the time the statement was made, declarant believed she was about to die.
OCS (out of court statement) concerns the cause or circumstances of anticipated
impending death.
OCS is offered in a civil case or prosecution for homicide.
(3) Statement against interest. A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant's position would not have made the
statement unless believing it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement.
Declarant is unavailable
Used for non-parties
Compared to party admissions which do not have to be against the party’s interest
(4) Statement of personal or family history. (A) A statement concerning the declarant's
own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family history, even though
declarant had no means of acquiring personal knowledge of the matter stated; or (B) a
statement concerning the foregoing matters, and death also, of another person, if the
declarant was related to the other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have accurate information concerning
the matter declared.
(5) [Other exceptions.][Transferred to Rule 807]
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.
To prevent abuse of hearsay rule
Williamson v. United States

Facts:. Harris told the agent that he was transporting the cocaine for Williamson. Harris
freely implicated himself, but did not want his story to be recorded and refused to sign a
written version of the statement. He basically said “ I am just a peon, Williamson is the
mastermind.” Harris refused to testify at trial and the judge admitted Harris's statements
pursuant to Federal Rule of Evidence 804(b)(3), as a self-inculpatory statement and
exception to the hearsay rule.
Holding: Federal Rule of Evidence 804(b)(3) "does not allow admission of non-self-
inculpatory statements, even if they are made within a broader narrative that is generally
self-inculpatory."
To determine the admissibility of the confession under the Rule, the assertion must have
been a “statement.” 801(a)(1) defines that as “an oral or written assertion.” Either all or
some of his confession would be admissible. The principal behind 804 is that even
dishonest reasonable people tend not to make self-inculpatory statements unless they
believe them to be true. 804 cannot be read to mean that collateral statements–even ones
that are not in any way against the declarant’s interest–are admissible.
Rule 807. Residual Exception

A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the
court determines that (A) the statement is offered as evidence of a material fact
(relevance); (B) the statement is more probative on the point for which it is offered than
any other evidence which the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to offer the statement and the
particulars of it, including the name and address of the declarant.
United States v. Cherry
Issue: whether Rule 804(b)(6) and the Confrontation Clause permit a finding of waiver
based not on direct procurement but rather on involvement in a conspiracy, one of the
members of which wrongfully procured a witness's unavailability.
Does the act of one D cause the statement to come in against the other Ds
Depends on scope of conspiracy
Here, yes
Holding:
Rule 804(b)(6) provides that the rule excluding hearsay does not apply to the following:
Forfeiture by wrongdoing. A statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.
HEARSAY EXCEPTIONS – PUBLIC RECORDS AND RULE 804

PUBLIC RECORDS EXCEPTION: 803(8)
1. OCS must be a public record or report.
2. It must set forth one of the following three kinds of things:
(a) The activities of the office or agency that prepared the report.
(b) Matters the agency had a legal duty to observe and a legal duty to report upon (unless
it is a criminal case and the record in question is a police report; this protects defendant’s
confrontation rights.)
(c) Factual findings resulting from an investigation made pursuant to authority granted
by law. This includes factually based conclusions or opinions.
Records within this description cannot be introduced against a criminal defendant.
Trustworthiness clause: Even if foundational elements are satisfied, the court can keep
out the record if the judge is suspicious of the evidence.
Rationale: Person who recorded the information is unlikely to remember. Evidence is
more reliable than live testimony. It is assumed that public officials perform their jobs
properly and that we can trust public records.
Establishing the foundation: You do not need live testimony. A certified copy of the
public record or report is usually enough.
Multiple levels of hearsay are often an issue with public records.
Comparison with business records exception:
Many public records will also satisfy the business records exception.
However, the public records exception does not require that the record be prepared at or
near the time of the event recorded. Nor does a public record need to be a regular or
routine record.
But, in most courts, you cannot get in police reports that are inadmissible under the
public records exception through the business records exception.
ABSENCE OF BUSINESS OR PUBLIC RECORD: 803(7) & 803(10)

Absence of a business or public record where one would ordinarily exist is a hearsay
exception.
Analytically, the absence of a document is probably not hearsay, but the drafters included
these exceptions to make the point clearly.
RULE 804 EXCEPTIONS
UNAVAILABILITY REQUIRED FOR 804 EXCEPTIONS
List in 804(a) is illustrative, not exclusive.
Unavailability of testimony, not declarant, is determinative. A declarant can be in court,
yet still be unavailable under the rule.
Unavailability cannot have been procured by party offering testimony.
Five examples
1. Claim of privilege ruled valid by court
2. Refusal to testify
3. Lack of memory
4. Death or illness
5. Unable to procure testimony – declarant’s whereabouts unknown despite reasonable
efforts to find declarant or declarant is beyond court’s subpoena power.
FORMER TESTIMONY EXCEPTION
1. Declarant is unavailable.
2. OCS was given as a witness under oath at a prior legal proceeding.
3. Identity/similarity of interests of party
CRIMINAL CASES: Party against whom the hearsay is offered was a party to the
former proceeding.
CIVIL CASES: Either the party against whom the statement is now offered or a
“predecessor in interest” of that party must have been a party to the former proceeding.
Predecessor in interest is broadly defined; predecessor need only have same opportunity
and motive as party against whom evidence is now offered.
Are you stuck with cross examination of an unavailable witness conducted by an
incompetent attorney retained by a prior party? Possibly.
4. At the former proceeding, the party against whom the hearsay is now offered:
(a) had an opportunity to question the declarant, and
Only an opportunity to examine is required, not actual examination.
This requirement attempts to ensure that the first cross-examination is the same as the
second would have been if declarant was available.
(b) had a similar motive to question the witness in each proceeding.
Rationale: Declarant is unavailable, thus evidence would be lost without the exception.
The evidence is reliable because someone who was sufficiently motivated to examine the
witness had an opportunity to do so (although jury does not have opportunity to judge
declarant’s demeanor).
Note that there are often many other ways to get in former testimony as either non-
hearsay or through another hearsay exception in 803.
EX. Statement: husband, I had an affair with another woman
Other woman dead, wife charged: effect on listener

Other woman dead, husband charged: offered for truth, but exception for party admission
Husband dead, other woman charged: offered for truth, does not qualify as a statement
against interest
RULE 804 HEARSAY EXEPTIONS

& RESIDUAL EXCEPTION
DYING DECLARATION
2. At the time statement was made, declarant believed s/he was about to die.
Declarant does not have to be dead at time of trial; simply unavailable.
3. OCS concerns the cause or circumstances of anticipated impending death.
4. OCS is offered in a civil case or prosecution for homicide.
Maryland note: Dying declarations in MD are not limited to homicide cases; the
exception extends to prosecutions for attempted homicide or assault with intent to kill.
Rationale: Declarant is unavailable and testimony will be lost without the exception.
People tell the truth when they are aware of their impending death.
STATEMENTS AGAINST INTEREST (see chart below)

2. At time OCS was made, it was against declarant’s interest such that a reasonable
person in declarant’s position would not have made the statement unless it was true. In
other words, the statement would tend to subject the declarant to civil or criminal
liability.
Statements that expose the declarant to social ridicule or embarassment do not fall within
the rule.
3. OCS knew statement was against her interest at time it was made.
Exculpating the accused in a criminal case: In a criminal trial, if the defense offers into
evidence an OCS that tends to exonerate the defendant and lay the guilt on the declarant,
there must be “corroborating circumstances” clearly indicating the trustworthiness of the
statement. Courts also require corroboration of inculpatory statements offered by the
prosecution.
Rationale: We do not make statements against our interests unless we are convinced
what we are saying is true.
FORFEITURE BY WRONGDOING
1. A party engaged or acquiesced in wrongdoing that was intended to and did procure the
unavailability of the declarant as a testifying witness.
2. The OCS is offered against that party.
Thus, the wrongdoer cannot use this exception.
Rationale: One should not be allowed to profit from wrongdoing.
THE RESIDUAL EXCEPTION: 807

Foundational elements (important ones underlined):
1. Reliability: The evidence must have “equivalent circumstantial guarantees of
trustworthiness” as the evidence admitted under 803 and 804.
2. Materiality: (Note: this requirement does not really add anything above and beyond
the relevancy requirement that applies to all evidence.)
3. Relative probative value: The evidence in question has more probative value on the
point than does any other admissible evidence the proponent can procure through
reasonable efforts.
4. Interests of justice: (Note: this requirement does not really add anything above and
beyond that required by FRE 102).
5. Advance notice: Proponent’s notice in advance of trial or hearing of his or her
intention to offer the evidence. (But many courts allow mid-trial notice if there is enough
time to put the opposite side on notice.)
Rationale
FRE 807 is an attempt to provide some flexibility in the development of the federal rules
of evidence, which used to be governed by the common law.
The evidence is needed because there is no other evidence that is reasonably available
and is as probative. The evidence is reliable because it has equivalent circumstantial
guarantees of trustworthiness as the exceptions in 803 and 804.
Near Miss Evidence
Is the residual exception available for near miss evidence, that is, evidence that just
misses qualifying for admissibility under 803 and 804?
Arguments that Near Miss Evidence Can be Admitted under 807 (Majority approach)
The main purpose of the rule is to admit reliable and necessary hearsay. Just because
evidence misses qualifying under 803 or 804 does not mean that it is unreliable or
unnecessary. Courts should make this determination on a case-by-case basis.
Arguments that Near Miss Evidence Can Not Be Admitted under 807 (Minority
approach)
The plain language of 807 says that it applies to “[a] statement not specifically covered
by Rule 803 or 804.” A near miss is covered by the exception it nearly hits. 807 was
crafted to be a narrow exception to cover unanticipated situations.
Statement by Party Opponent: Statement Against Interest:
801(d)(2)(A) 804(b)(3)
Non hearsay Hearsay exception
Declarant is a party Declarant’s identity does not matter.
Declarant availability irrelevant. Declarant must be unavailable.
Does not matter if statement was against Statement must have been against
declarant’s interest or self-serving. All that declarant’s interest at the time it was made.
matters is that it is a party’s statement and
is offered against the party who made it.
Application of rule is straightforward. Court has more discretion to answer
questions: Is declarant unavailable? Was
statement against declarant’s interest when
s/he made it? Should declarant have
realized it was against his/her interest? Did
declarant have firsthand knowledge?
Confrontation Clause
Pre-Crawford: Ohio v. Roberts test applied; OCS admissible if statement has adequate
indicia of reliability
Crawford v. Washington
Facts:
At trial, Mrs. Crawford could not be compelled to testify by the state, since under
Washington's spousal privilege law, a spouse cannot testify in court without the
defendant spouse's consent (except when a spouse is a complainant).
Defense counsel objected to the admission of the wife's statement, on the ground
that Mr. Crawford would be unable to confront (i.e. cross-examine) Mrs. Crawford
on her statement without waiving spousal privilege, and that this would be a
violation of the Confrontation Clause of the Sixth Amendment.
The statement was allowed into evidence at the trial, and the prosecution relied on it
heavily in its closing argument.
Holding: The use at trial of out of court statements made to police by an unavailable
witness violated a criminal defendant's Sixth Amendment right to confront
witnesses against him.
This history clearly shows that the Confrontation Clause was directed at keeping
"ex parte" examinations out of the evidentiary record. Specifically, the
Confrontation Clause applies to "witnesses" against the accused, meaning "those
who 'bear testimony'". Relying on this and the historical record, Scalia stated, "the
Framers would not have allowed admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination." A prior opportunity for cross-
examination was mandatory, and dispositive of whether or not testimonial statements of
an unavailable witness are admissible. "Dispensing with confrontation because testimony
is obviously reliable is akin to dispensing with jury trial because a defendant is obviously
guilty."
Only testimonial statements trigger the 6th amendment
Example prior trial testimony
ex parte at preliminary hearings
plea allocations
Grand jury testimony
Police interrogations
Only applies to criminal cases for statements offered against D
Doesn’t apply if D waives right, forfeits by preventing witness from appearing at
trial
If OCS is not being offered for its truth
Declarant is available for cross and at trial
OCS is introduced against the gov’t
Davis v. Washington
Holding: A 911 phone call is not testimonial in nature, and thus may be admitted at
trial even if the caller is not available without violating the Sixth Amendment's
Confrontation Clause.
the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v.
Washington, does not apply to "non-testimonial" statements not intended to be used
in a future criminal prosecution.
911 call is testimonial if it is to investigate past criminal conduct but not if it is for
an ongoing emergency
Giles V. California: forfeiture

The prosecution then introduced evidence of a conversation between Giles' ex-
girlfriend and police in which she claimed that he had assaulted her and threatened
to kill her. The district court eventually convicted Giles of murder.
On appeal, Giles argued that use of the police conversation violated his Sixth
Amendment right to confront witnesses against him, namely, his deceased ex-
girlfriend. The California Supreme Court held that Giles had waived this right
because he was the cause of his ex-girlfriend's absence.
Issue: Are a criminal defendant's rights under the Confrontation Clause of the Sixth
Amendment violated when the common law "forfeiture by wrongdoing" doctrine is
applied to allow out-of-court statements made by a witness, absent due to the
defendant's own conduct, into evidence without giving defendant an opportunity to
cross-examine the absent witness?
Holding: the forfeiture by wrongdoing exception only applies to situations where the
defendant causes the witness' absence with the intention of preventing that witness
from testifying at trial. Without this intention, any act by the defendant making the
witness unavailable does not waive that defendant's Sixth Amendment right to
confront and cross-examine the witness, and therefore any out-of-court statements
made by the witness are inadmissible as evidence.
Must have intent to make witness unavailable
Actions intended to dissuade victim from resorting to outside help
Conduct designed to prevent testimony to police officers or cooperation in criminal
prosecutions
Melendez-Diaz v. Massachusetts
Facts: At trial, the Commonwealth placed into evidence the bags seized from the
police cruiser. It also submitted three "certificates of analysis" showing the results
of the forensic analysis performed on the seized powdery substance. The certificates
reported the weight of the seized bags and stated the substance found was cocaine.
The certificates were sworn before a notary public in accordance with
Massachusetts law. Melendez-Diaz objected to their admission asserting that the
Supreme Court decision in Crawford v. Washington required the forensic analyst to
testify in person. The trial court overruled the objection and admitted the certificates as
prima facie evidence of the positive presence of narcotics. A jury trial found the
defendant, Melendez-Diaz, guilty. He appealed contending inter alia that the
admission of the certificates violated his Sixth Amendment right to be confronted by
those witnesses who would testify against him. The Appeals court rejected the claim
under Massachusetts precedent which held that these certificates did not violate the
Confrontation clause.
Holding: Sworn affidavits are testimonial in nature (part of criminal justice
proceedings) , violate the Confrontation Clause under Crawford v. Washington, and
do not meet the business records exception to the hearsay rule. The requirements of
the Confrontation Clause may not be relaxed because they make the prosecution's task
burdensome. "Notice and demand" statutes are Constitutional.
This ruling will make proceedings less efficient and more costly
D gets a right to cross each person involved in the testing
Briscoe v. VA: notice and demand statute case; S. Ct. remanded so the issue is still
unresolved
IMPEACHMENT
Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules.
However, in civil actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision, the competency of a witness
shall be determined in accordance with State law. (diversity suits)
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support
a finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the witness' own testimony. This rule is
subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify
truthfully, by oath or affirmation administered in a form calculated to awaken the witness'
conscience and impress the witness' mind with the duty to do so.
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a witness. No objection
need be made in order to preserve the point.
Rule 606. Competency of Juror as Witness
(a) At the trial.
A member of the jury may not testify as a witness before that jury in the trial of the case
in which the juror is sitting. If the juror is called so to testify, the opposing party shall be
afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury's deliberations or to the
effect of anything upon that or any other juror's mind or emotions as influencing the juror
to assent to or dissent from the verdict or indictment or concerning the juror's mental
processes in connection therewith. But a juror may testify about (1) whether extraneous
prejudicial information was improperly brought to the jury's attention, (2) whether any
outside influence was improperly brought to bear upon any juror, or (3) whether there
was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence
of any statement by the juror may not be received on a matter about which the juror
would be precluded from testifying.
Outside influences include various forms of media; circuits are split on the Bible as
extraneous prejudicial info
Tanner v. U.S.: jury misconduct

Juror misconduct during a trial: use of alcohol and drugs throughout the trial
S. CT. held that the trial ct. did not err and the jury could not testify bc of rule 606 and
there were no outside influences, we want jurors to decide a case in confidence without
us later dissecting what they said
Dissent: drugs and alcohol are outside influences
People v. Shirley: victim hypnosis

Ca did not allow testimony of a sexual assault victim obtained through recalled memories
during hypnosis
Under rule 601 she could testify
Witness not competent bc use of hypnosis not generally accepted as reliable by the
scientific community
Pre-hypnosis testimony is ok
Hypnosis can be used in police investigations
Rock v. Arkansas: D hypnosis; D has a right to testify on their own behalf

D underwent hypnosis to recall details from a crime
Can criminal defendant’s right to testify be restricted?
Modified incompetence rule
Can testify to matters prior to hypnosis but not from hypnosis
S ct. rejects rule bc Constitution trumps (5th amend.)
IMPEACHMENT UNDER FRE 608
IMPEACHMENT INTRODUCTION
Impeachment is an attack on the credibility of a witness.
Impeachment arises only after someone has testified as a witness.
A common question in dealing with impeachment is whether or not extrinsic evidence is
admissible. Extrinsic evidence is evidence from any source other than the testimony of
the witness to be impeached while she is testifying in the case.
Any party may impeach any witness. (FRE 607)
There are seven main methods of impeachment:
Defect in mental or sensory capacity
Character for untruthfulness – FRE 608(a)
Conduct probative for untruthfulness – FRE 608(b)
Prior convictions – FRE 609
Bias, interest, and motive
Impeachment by contradiction
Prior Inconsistent Statements – FRE 613
Impeachment by defect in perception, bias, and contradiction are not covered in the
Federal Rules, but these methods are longstanding in the common law and are uniformly
recognized.
INTRODUCTION TO 608 & 609

A witness can be impeached by proof that he is by disposition untruthful.
This is a form of character evidence that is expressly permitted under 404(a).
Clarification of terms:
Principal witness: The person who is testifying.
Character witness: The person who says that the principal witness is untruthful.
There are three ways to impeach on untruthfulness:
1. Opinion or reputation testimony – 608(a)
2. Specific instances of misconduct not resulting in a conviction – 608(b)
3. Prior criminal convictions – 609
1. Opinion or reputation testimony by a character witness – FRE 608(a): Under
this method of impeachment, someone who knows the principal witness says that the
principal witness is untruthful.
The issue is whether the principal witness is a truthful person, not whether a particular
statement is true.
Character testimony requires a foundation.
For reputation: the character witness is acquainted with the community where the
principal witness lives, works, or goes to school.
For opinion: the character witness has known the principal witness for some period of
time on some personal, business, or professional basis.
Once the witnesses’ character for truthfulness has been attacked, evidence of truthful
character is admissible.
Cross-examination of the character witness: A character witness can be asked on cross-
examination if he knows, or has heard, about specific instances of “truthful” conduct that
are inconsistent with the claimed reputation. The purpose is to test the character
witness’s knowledge.
This line of inquiry is subject to Rule 403 balancing (as is all evidence!).
2. Ask the witness about non-conviction misconduct that bears on truthfulness –

FRE 608(b).
This method of attack can only be mounted on cross-examination.
What acts bear on truthfulness?
Acts that involve falsehood or deception, such as forgery or perjury. Other examples:
using false identification; making false statements on affidavits or government forms, like
tax returns; cheating other people; and defrauding others.
Most courts do not allow questioning on acts such as theft, because they do not involve
the act of lying.
Extrinsic evidence is not permitted; the questioner must “take the answer of the witness.”
(The questioner does not have to take the “first answer,” s/he can keep asking and probe
the subject.)
The ban on extrinsic evidence keeps the trial from being sidetracked. (But extrinsic
evidence is permitted for non-608 purposes.)
The questioner must have a good faith basis to think the conduct occurred, and the court
can inquire into this outside the jury’s hearing.
Courts have discretion to allow or block this sort of questioning under Rule 403.
Methods of Impeachment: ex. My Cousin Vinny

Defects in mental or sensory capacity
Character for truthfulness
Ways to show bad character for truthfulness
Opinion and reputation 608(a)
Evidence of specific misconduct 608(b)
Evidence of prior criminal convictions 609
Conduct probative for truthfulness
Prior convictions
Biased witness: bias for a party or yourself
Impeachment by contradiction
Prior inconsistent statements
Objection available: 403 harassment
Luce v. United States

Facts: ∆ was indicted on charges of conspiracy and possession of cocaine with intent to
distribute. ∆ filed a in limine motion to prohibit the prosecutor from bringing in the prior
drug conviction of ∆ in order to impeach him if he decides to testify. ∆ did not make any
commitment to testify. The trial judge denied the motion.
Issue: May a ∆ seek appellate review of claim of improper impeachment if he has not
testified during trial?
Holding: No
Rationale: Under the balancing test applied under FRE 609(a)(1), an appellate
court handicapped in any effort to rule on subtle evidentiary questions outside a
factual context. To perform this balancing, the court must know the precise nature
of the ∆’s testimony, which is unknowable when, as here, the ∆ does not testify. So
in order to reserve appellate review, ∆ must testify.
Rule 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible
for the purpose of showing that by reason of their nature the witness' credibility is
impaired or enhanced.
United States v. Abel

Facts: Abel and two others were arrested for bank robbery. One of his alleged
cohorts, Ehle, pled guilty and promised to testify against Abel in return for a light
sentence. At trial, Abel produced a witness, Mills, that testified that Ehle had told
him that he was going to falsely accuse and frame Abel. The trial court allowed the
prosecution to put Ehle back on the stand to testify that Mills, Ehle and Abel were
all part of the same secret prison gang whose purpose it was to lie for each other.
(goes to bias, propensity, and impeachment).
Issue: Whether the admission of evidence tending to show bias on the part of a
witness is inadmissible if it also tends to show that the defendant was lying.
Holding: No. The membership of Mills in the prison gang was sufficiently probative
of Mills’ possible bias towards Abel to warrant its admission. Proof of bias is
relevant, and thus admissible.
Probative value is very high so extrinsic evidence is allowed
IMPEACMENT UNDER 609 AND FOR BIAS

3. Prior Convictions -- FRE 609
 Timing: To ask about past convictions, it is not necessary that the accused put his
character for truthfulness in issue first. The defendant “opens” this door simply
by testifying.
o This means that criminal defendants must choose between (i) testifying
and opening the door to the admission of past criminal convictions and (ii)
not testifying and risking conviction because, as an empirical matter, juries
infer guilt from silence.
o At the same time, assessing the veracity of witnesses is vitally important
so this evidence is important.
 Two types of past convictions are potentially admissible: (1) felonies; and (2)
crimes of dishonesty or false statement (misdemeanors or felonies).
 Felonies: Felonies are to be admitted unless the balancing test warrants
exclusion.
o Rationale: The witness does not respect our society’s rules of conduct and
thus, may lie on the stand.
o Definition: Felonies are crimes punishable by death or imprisonment in
excess of one year. The authorized maximum punishment, rather than the
actual punishment, is determinative.
o Balancing test: Felonies may be excluded if unfairly prejudicial.
 For criminal defendant: The court must find that the probative
value outweighs the prejudicial effect to the defendant.
 For other witnesses: The Rule 403 test applies.
 Crimes of dishonesty of false statement: Crimes of dishonesty or false
statement are automatically admissible to impeach unless one of the express
exceptions applies. There is no balancing test.
o It does not matter if the crime was a felony or misdemeanor.
o This is a narrow category of crimes, it includes: perjury or subornation of
perjury, false statement, criminal fraud, embezzlement, false pretenses,
forgery, and counterfeiting.
o The majority view is that crimes of theft do not fall within this category,
even though they seem to bear on dishonesty. This accords with the
original Advisory Committee Note and recent amendments.
 609 exclusions
o 10-year rule – A prior conviction is inadmissible if more than ten years
has elapsed since the date of (1) conviction; or (2) release from
confinement, whichever is later.
 But they may be admitted if the proponent provides advance
written notice to the adverse party and the court determines that the
probative value of the evidence substantially outweighs its
prejudicial effect (again, this is a reverse 403).
o Rehabilitation – if the crime is the subject of a pardon, annulment, or
equivalent procedure based on a finding of rehabilitation, it is not
admissible.
o Juvenile adjudications – Generally, evidence of juvenile adjudications is
not admissible to show that the witness is untruthful.
 These will never be admitted in civil cases or against the defendant
in a criminal case.
 However, in criminal cases, witnesses other than defendants may
be impeached in this way if the conviction for the underlying
offense would be admissible to attack the credibility of an adult
and the court decides the impeachment is necessary for a fair
determination of guilt or innocence.
 Permitted detail: Questioner may ask about the date and nature of the conviction
and the punishment imposed. Details about the crime are not admissible.
 Pendency of an appeal: The pendency of an appeal does not affect the
admissibility of a prior conviction, but the fact of the appeal may be admissible.
IMPEACHING ON RELIGIOUS BELIEFS: FRE 610

 FRE 610 bars questions about or extrinsic evidence of the religious beliefs of
witnesses to show truthfulness or untruthfulness.
 Religious beliefs are admissible for other purposes, such as to show motive or
bias.
BIAS: NO FRE
 A witness’s bias, interest, partiality, or corruption is always relevant for
impeachment.
 There is no federal rule of evidence concerning bias, but the Supreme Court has
held that impeachment for bias is proper.
 There are generally two broad categories of bias evidence: (1) a relationship
between a witness and one of the parties; and (2) a relationship between a witness
and the litigation (such as a financial interest in the case).
 Extrinsic evidence (ie., evidence from someone or something other than the
witness whose credibility is at issue) is admissible to prove bias, subject to Rule
403 balancing.
CONTRADICTION: NO FRE
 There is no federal rule of evidence concerning impeachment by contradiction,
but it was recognized at common law and the courts have ruled that it is proper.
 This form of impeachment is simple -- it involves showing that what a witness
said is not true.
 Extrinsic evidence of contradiction is admissible on non-collateral matters,
subject to Rule 403 balancing.
o Collateral matters are those that do not bear on the merits or other
credibility issues.
o Spending time to impeach on collateral matters wastes time, creates
confusion, can abuse witnesses, and may be prejudicial.
IMPEACHMENT BY CONTRADICTION
 No rule governs this form of impeachment, but it is permitted under the FRE.
 Extrinsic evidence is permitted on non-collateral matters. This avoids jury
confusion and waste of time. The same issue arises with prior inconsistent
statements.
PRIOR INCONSISTENT STATEMENTS: FRE 613 and 801(d)(1)(A)

 A prior inconsistent statement (written, oral, or taped, and sworn or unsworn) may
be used to impeach. Certain PIS are non-hearsay may be used for substantive
purposes as well.
 For impeachment only: If the PIS is offered solely to impeach, it is not offered
for its truth and there is no hearsay problem. The court will give a limiting
instruction to the jury as to the proper use of the evidence.
o The PIS must be inconsistent with the witness’s trial testimony. Direct
contradiction is not required.
 For instance, examples of contradiction include:
 If the witness’s prior testimony includes material facts that
were omitted in the prior statement.
 If the witness said previously that they cannot remember
about matters to which the witness later testifies.
 A harder issue arises with regard to a loss of memory at trial.
Normally, this is not an inconsistency, because memories do fade
over time. However, if the memory loss on the stand appears false
or feigned, the PIS may be admitted.
o The witness must have an opportunity to explain or deny the
inconsistency, but this opportunity need not occur before extrinsic
evidence is introduced. FRE 613.
o Written statements do not need to be shown to the witness, but opposing
counsel is entitled on request to see the statement. FRE 613.
 As substantive evidence: If the PIS is offered as substantive evidence (ie., for its
truth), there is a hearsay problem.
o However, under FRE 801(d)(1)(A), certain PIS may be offered for their
truth, as well as to impeach.
o The foundational requirements for non-hearsay are:
 1. the declarant must testify, subject to cross-examination at the
current trial;
 “subject to cross-examination” means being present at the
trial and willing to answer questions. Thus, even if the
witness cannot remember their prior inconsistent statement
(or even making it), this foundational element is satisfied.
See Owens.
 2. the prior statement must be inconsistent with the witness’s trial
testimony;
 3. the prior statement must have been given under oath subject to
penalty of perjury; and
 4. the prior statement must have been made “at a trial, hearing, or
other proceeding, or in a deposition.”
o Rationale: These statements are coming in anyway to impeach. The
statements are reliable because they were made under oath in a formal
proceeding.
PRIOR CONSISTENT STATEMENTS: FRE 801(d)(1)(B)

 Prior consistent statements are admissible to rehabilitate a witness where there has
been an express or implied charge against the declarant of recent fabrication or
improper influence or motive.
 These statements are nonhearsay under FRE 801(d)(1)(B). Thus, they are
admissible both to impeach and for their substance. (They are either admissible
for both purposes, or neither.)
 Foundational elements
o 1. The declarant is testifying at the trial and is subject to cross-
examination;
o 2. The statement is offered to rebut a charge that the declarant has
recently made up a lie or been subject to improper influence;
o 3. The OCS was made before the event argued to have motivated the
alleged fabrication (see Tome);
o 4. The OCS is consistent with the declarant’s in court testimony.
 Note that there is no requirement that the PCS be made under oath.
 Rationale for treating these statements as non-hearsay: These statements are
coming in anyway as rehabilitation evidence to impeach. There is reliability
because the declarant is in court and subject to cross-examination.
 Determining whether there has been recent fabrication or improper influence is
the hardest part of this rule.
Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or
(E), has been admitted in evidence, the credibility of the declarant may be
attacked, and if attacked may be supported, by any evidence which would be
admissible for those purposes if declarant had testified as a witness. Evidence of a
statement or conduct by the declarant at any time, inconsistent with the declarant's
hearsay statement, is not subject to any requirement that the declarant may have been
afforded an opportunity to deny or explain. If the party against whom a hearsay
statement has been admitted calls the declarant as a witness, the party is entitled to
examine the declarant on the statement as if under cross-examination.
Used to get around requirement of declarant not being able to testify
United States v. Owens

Facts: Foster was unable to remember his attacker's name during the first
interview, but identified Owens as the attacker in the second interview. He later
lost his recollection of the attack, but remembered identifying Owens as the
attacker in the hospital. They want the statement in for its truth.
Holding: Under this rule 801(d) a person who cannot remember but is on the
stand is available but is unavailable under 804. Although the witness could not
remember the attack, the Court held that the witness was subject to cross-
examination. The Court further ruled that the statement didn't violate the
Confrontation Clause, as it is "sufficient that the defendant has the opportunity
to bring out such matters as the witness's bias . . . and even the very fact that he
has a bad memory." 804 is more about letting in second best evidence when you
have no other choice. 801 and 804 have different purposes.
Tome v. United States

Prior consistent statements may not be admitted to counter all forms of
impeachment or to bolster the witness merely b/c she has been discredited. The
language of the Rule, concentrating on the rebutting charges of recent
fabrication, improper influence or motive, to the exclusion of other forms of
impeachment, as well as in its use of wording which follows the language of the
CL cases, suggests that it was intended to carry over the CL premotive rule. 801
permits introduction of a declarant’s out of court consistent statements to rebut
a charge of recent fabrication, improper influence or motive only when those
statements were made before the charged recent fabrication or improper
influence or motive.
Plaintiff’s Argument: An out of court consistent statement, whenever it was made,
tends to bolster the testimony of a witness and so tends to rebut an express or implied
charge that the testimony has been the product of an improper influence.
PRIVILEGES
Rule 501. General Rule
Except as otherwise required by the Constitution of the United States or provided by Act
of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority,
the privilege of a witness, person, government, State, or political subdivision thereof shall
be governed by the principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience. However, in civil actions
and proceedings, with respect to an element of a claim or defense as to which State law
supplies the rule of decision, the privilege of a witness, person, government, State, or
political subdivision thereof shall be determined in accordance with State law.
Does not apply in civil actions with respect to an element of a claim or defense as to
which state law applies the rule of decision (Erie)
Common law for privileges developed through cases not statutes
Privileges
Operate within specifically defined relationships
Applicable in all stages of trial
Most protect only confidential communications
Only protect communications not the information
Cost: We deny relevant info to the jury; balance
Every privilege has one or more holders and that person can waive it but the other party
(atty.) can assert it on behalf of the client or waive it with client permission
Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

(a) Scope of waiver.
In federal proceedings, the waiver by disclosure of an attorney-client privilege or work
product protection extends to an undisclosed communication or information concerning
the same subject matter only if that undisclosed communication or information ought in
fairness to be considered with the disclosed communication or information.
(b) Inadvertent disclosure.
A disclosure of a communication or information covered by the attorney-client privilege
or work product protection does not operate as a waiver in a state or federal proceeding if
the disclosure is inadvertent and is made in connection with federal litigation or federal
administrative proceedings — and if the holder of the privilege or work product
protection took reasonable precautions to prevent disclosure and took reasonably prompt
measures, once the holder knew or should have known of the disclosure, to rectify the
error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B).
[( c ) Selective waiver.
In a federal or state proceeding, a disclosure of a communication or information covered
by the attorney-client privilege or work product protection — when made to a federal
public office or agency in the exercise of its regulatory, investigative, or enforcement
authority — does not operate as a waiver of the privilege or protection in favor of non-
governmental persons or entities. The effect of disclosure to a state or local government
agency, with respect to non-governmental persons or entities, is governed by applicable
state law. Nothing in this rule limits or expands the authority of a government agency to
disclose communications or information to other government agencies or as otherwise
authorized or required by law.]**
(d) Controlling effect of court orders.
A federal court order that the attorney-client privilege or work product protection is not
waived as a result of disclosure in connection with the litigation pending before the court
governs all persons or entities in all state or federal proceedings, whether or not they were
parties to the matter before the court, if the order incorporates the agreement of the
parties before the court.
(e) Controlling effect of party agreements.
An agreement on the effect of disclosure of a communication or information covered by
the attorney-client privilege or work product protection is binding on the parties to the
agreement, but not on other parties unless the agreement is incorporated into a court
order.
(f) Included privilege and protection.
As used in this rule:
(1) "attorney-client privilege" means the protection provided for confidential attorney-
client communications, under applicable law; and
(2) "work product protection" means the protection for materials prepared in anticipation
of litigation or for trial, under applicable law.
Upjohn v. United States

Holding: a company could invoke the attorney-client privilege to protect
communications made between company lawyers and non-management employees
where communications at issue were made by corporate employees to counsel for
corporation acting as such, at direction of corporate superiors in order to secure
legal advice from counsel, and employees were aware that they were being
questioned so that corporation could obtain advice, such communications were
protected
Swidler & Berlin v. United States

Holding: Communications between a client and a lawyer are protected by attorney-
client privilege even after the client's death.
purpose of the attorney-client privilege is to promote public observance of the law
by encouraging complete and truthful communication between attorneys and their
clients. Confidentiality, even after the client's death, is essential for such honesty in
both criminal and civil contexts.
Not a flexible approach but O’Connor thought there should be an exception for
criminal cases where there is a compelling need for info such as where the client
admitted to a crime so that the victim could get closure
EXCEPTIONS TO ATTY/CLIENT
Communications about furthering a crime or fraud
Communications by two or more parties making a claim through the same deceased party
Breach of duty by lawyer or client
Documents attested by lawyer
Joint clients, even if now separate
Spousal Privileges
Two kinds: confidential communications and adverse parties (privilege not to testify
against spouse)
Adverse parties spousal privileges applies in criminal cases only and only where one
spouse is the defendant
Meant to protect marital harmony
Asserted by testifying spouse (witness); Trammel
Privilege ends when the marriage ends
Bars any testimony against D if witness refuses to testify
If witness does testify, confidential communications are still barred
If testimony is for spousal or child abuse, Fed. Ct, can compel testimony bc privilege
exception
Clip phone call: she can assert this privilege
Clip in bedroom: she can assert this
Confidential communications applies in criminal and civil cases
Meant to encourage free communication and protect marital privacy
Asserted by both, one can stop the other
Everything said while married is protected even if couple now divorced
Bars confidential communications
Clip phone call: she can assert this bc she knew she was talking to husband he may be
able to but he thought he was talking to someone else
Clip bedroom: both can assert this
WRITINGS: Relevant? Hearsay? Authentication? Best Evidence?
Rule 1001. Definitions
For purposes of this article the following definitions are applicable:
(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or
numbers, or their equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic recording, or
other form of data compilation.
(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and
motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or
any counterpart intended to have the same effect by a person executing or issuing it. An
"original" of a photograph includes the negative or any print therefrom. If data are stored
in a computer or similar device, any printout or other output readable by sight, shown to
reflect the data accurately, is an "original".
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the
original, or from the same matrix, or by means of photography, including enlargements
and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately reproduces the original.
Rule 1002. Requirement of Original: Best Evidence Doctrine

To prove the content (only) of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these rules or by
Act of Congress. Does not apply to other tangible items.
Objection triggered when a person is testifying about the contents of a writing but the
original is not there
Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question
is raised as to the authenticity of the original or (2) in the circumstances it would be
unfair to admit the duplicate in lieu of the original.
Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or
photograph is admissible if--
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial
process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the
control of the party against whom offered, that party was put on notice, by the pleadings
or otherwise, that the contents would be a subject of proof at the hearing, and that party
does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a
controlling issue.
Rule 1005. Public Records

The contents of an official record, or of a document authorized to be recorded or filed and
actually recorded or filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in accordance with rule 902 or
testified to be correct by a witness who has compared it with the original. If a copy which
complies with the foregoing cannot be obtained by the exercise of reasonable diligence,
then other evidence of the contents may be given.
Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made available for examination or
copying, or both, by other parties at reasonable time and place. The court may order that
they be produced in court.
Rule 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or
deposition of the party against whom offered or by that party's written admission, without
accounting for the nonproduction of the original.
Rule 1008. Functions of Court and Jury
When the admissibility of other evidence of contents of writings, recordings, or
photographs under these rules depends upon the fulfillment of a condition of fact, the
question whether the condition has been fulfilled is ordinarily for the court to determine
in accordance with the provisions of rule 104. However, when an issue is raised (a)
whether the asserted writing ever existed, or (b) whether another writing, recording, or
photograph produced at the trial is the original, or (c) whether other evidence of contents
correctly reflects the contents, the issue is for the trier of fact to determine as in the case
of other issues of fact.
Rae v. State
During the presentation of the state’s case, the prosecutor asked the court to take judicial
notice of the fact that Rae’s driver’s license had been revoked at the time of the offense
alleged in the case, Rae did not object and the court advised the jury
The court’s instruction was reversible error
The taking of conclusive judicial notice of an element of a criminal charge violates
Alaska Evidence Rule 203(c) and deprives D of his right to be convicted only upon a
jury’s finding of proof beyond a reasonable doubt of every element of the crime
Pursuant to 201(g)
Criminal and civil different bc in criminal D has a right to a jury trial
Seiler v. LucasFilm
Facts: copyright: Because Seiler wished to show blown-up comparisons of his creatures
and Lucas' Imperial Walkers to the jury at opening statement, the district judge held a
pre-trial evidentiary hearing. At the hearing, Seiler could produce no originals of his
Garthian Striders nor any documentary evidence that they existed before The Empire
Strikes Back appeared in 1980.
He claimed that he didn’t need the originals bc they were artwork and artwork doesn’t
fall under the best evidence rule
The court rejects that so he then says that the drawing is a duplicate so it is allowed
The judge also rejects that bc it was reproduced by hand
The district judge, applying the best evidence rule, found that Seiler had lost or destroyed
the originals in bad faith under Fed.R.Evid. 1004(1) and denied admissibility of any
secondary evidence, even the copies that Seiler had deposited with the Copyright Office.
With no admissible evidence, Seiler then lost at summary judgment.
Holding: hold that Seiler's drawings were "writings" within the meaning of Rule 1001(1)
It can’t be proved that there were substantial similarities between Seiler and Lucas’s
drawings
No proof of the originals and reconstructions can be different
He could not prove that the drawings were not destroyed in bad faith
Rule 104. Preliminary Questions

(a) Questions of admissibility generally.
Preliminary questions concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be determined by the court,
subject to the provisions of subdivision (b). In making its determination it is not bound by
the rules of evidence except those with respect to privileges. Judge preponderence of
the evidence, can’t ask lay people to disregard logically probative evidence bc of
some technical evidence rule, judge not bound by rules of evidence other than
privilege rules, judge can hear anything
(b) Relevancy conditioned on fact.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of evidence sufficient to support a
finding of the fulfillment of the condition. Jury law sufficient to support a finding (also
for authenticity/personal knowledge)
Can introduce evidence of a gun without knowing if the victim died from a gun shot bc if
the victim died from something else the gun can be ignored
Usually a 104 b issue when there is no danger introducing the evidence in question
(c) Hearing of jury.
Hearings on the admissibility of confessions shall in all cases be conducted out of the
hearing of the jury. Hearings on other preliminary matters shall be so conducted when the
interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused.
The accused does not, by testifying upon a preliminary matter, become subject to cross-
examination as to other issues in the case.
(e) Weight and credibility.
This rule does not limit the right of a party to introduce before the jury evidence relevant
to weight or credibility.
Adams v. Ameritech Services Inc.

Facts: Ameritech, along with several other companies, downsized and reduced their
middle management ranks; Plaintiffs claim that the companies discriminated against them
on the basis of age in violation of the Age Discrimination in Employment Act; plaintiffs
want to introduce statistical evidence
Issue: whether the statistical evidence proffered my plaintiffs was sound enough
methodologically and relevant
Holding: since the statistical analysis was not the only evidence introduced by
plaintiffs it can be taken into account as a factor in showing age discrimination
The evidence need only make the existence of any fact that is of consequence more
or less probable
Ruling out chance was an important step in plaintiff’s proof
Conditional relevancy: conditioned on fact
Rule 106. Remainder of or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered contemporaneously with it.
Only applies to writings
Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by court. Judge decides not lawyers
The court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination.
Cross-examination should be limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. The court may, in the exercise of
discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions.
Leading questions should not be used on the direct examination of a witness except as
may be necessary to develop the witness' testimony. Ordinarily leading questions should
be permitted on cross-examination. When a party calls a hostile witness, an adverse party,
or a witness identified with an adverse party, interrogation may be by leading questions.
Whether an ordinary man would get the impression that the question was to be
answered one way over another
Typically questions that can have a yes or no response and begin with who, what,
where, when, why, and how are not leading
Rationale: may involve false memory of events, be overly suggestive, or distract the
witness from an important detail; want the witness to tell the story
Objections as to form of question: ex. Asked an answered, narrative, compound
question, assumes fact not in record, ambiguous, misquoting
Can’t ask leading questions on direct except for on foundational aspects or for
children, struggling witnesses, or hostile (other side) witnesses
Can and should ask leading questions on cross
Control witness, attack credibility
Cross is a fundamental right, Confrontation Clause
Objections on cross: out of scope, argumentative
Authentication refers to the process of proving that an item of evidence is what its
proponent claims it to be; laying the foundation; not a very high standard (less than
preponderance of the evidence); once evidence gets in jury will decide if the
evidence is really authentic
Rule 901. Requirement of Authentication or Identification
(a) General provision. The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
(b) Illustrations., not exclusive By way of illustration only, and not by way of
limitation, the following are examples of authentication or identification conforming with
the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to
be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of
handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert
witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through
mechanical or electronic transmission or recording, by opinion based upon hearing the
voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made
to the number assigned at the time by the telephone company to a particular person or
business, if (A) in the case of a person, circumstances, including self-identification, show
the person answering to be the one called, or (B) in the case of a business, the call was
made to a place of business and the conversation related to business reasonably
transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or
filed and in fact recorded or filed in a public office, or a purported public record, report,
statement, or data compilation, in any form, is from the public office where items of this
nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data
compilation, in any form, (A) is in such condition as to create no suspicion concerning its
authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in
existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result
and showing that the process or system produces an accurate result. (such as dialing a
number)
(10) Methods provided by statute or rule. Any method of authentication or identification
provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant
to statutory authority.
*Evidence that is not unique (fungible) in appearance requires a chain of custody for
authentication; chain of custody is also required for unique items susceptible to alteration
To prove chain of custody the proponent must show that the item was in safekeeping the
entire time from the beginning of the event
Rule 902. Self-authentication: exclusive list
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required
with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be
that of the United States, or of any State, district, Commonwealth, territory, or insular
possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific
Islands, or of a political subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the
signature in the official capacity of an officer or employee of any entity included in
paragraph (1) hereof, having no seal, if a public officer having a seal and having official
duties in the district or political subdivision of the officer or employee certifies under seal
that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an
official capacity by a person authorized by the laws of a foreign country to make the
execution or attestation, and accompanied by a final certification as to the genuineness of
the signature and official position (A) of the executing or attesting person, or (B) of any
foreign official whose certificate of genuineness of signature and official position relates
to the execution or attestation or is in a chain of certificates of genuineness of signature
and official position relating to the execution or attestation. A final certification may be
made by a secretary of an embassy or legation, consul general, consul, vice consul, or
consular agent of the United States, or a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If reasonable opportunity has been
given to all parties to investigate the authenticity and accuracy of official documents, the
court may, for good cause shown, order that they be treated as presumptively authentic
without final certification or permit them to be evidenced by an attested summary with or
without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry
therein, or of a document authorized by law to be recorded or filed and actually recorded
or filed in a public office, including data compilations in any form, certified as correct by
the custodian or other person authorized to make the certification, by certificate
complying with paragraph (1), (2), or (3) of this rule or complying with any Act of
Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued
by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or
periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to
have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of
acknowledgment executed in the manner provided by law by a notary public or other
officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon,
and documents relating thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress. Any signature, document, or other matter
declared by Act of Congress to be presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted activity. The original or a
duplicate of a domestic record of regularly conducted activity that would be admissible
under Rule 803(6) if accompanied by a written declaration of its custodian or other
qualified person, in a manner complying with any Act of Congress or rule prescribed by
the Supreme Court pursuant to statutory authority, certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide
written notice of that intention to all adverse parties, and must make the record and
declaration available for inspection sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the
original or a duplicate of a foreign record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a written declaration by its custodian or
other qualified person certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the
maker to criminal penalty under the laws of the country where the declaration is signed.
A party intending to offer a record into evidence under this paragraph must provide
written notice of that intention to all adverse parties, and must make the record and
declaration available for inspection sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to challenge them.
Rule 903. Subscribing Witness' Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenticate a writing unless
required by the laws of the jurisdiction whose laws govern the validity of the writing.
Real evidence: refers to an item that was directly involved in the events that are at issue
in the case
Demonstrative evidence an item that merely illustrates testimony, such as a diagram
Ex. movie phone call: voice id

Lay voice 901(b)(3)
Voice comparison 9091(b)(3), (b)(5)
Phone trace 901(b)(6)
Contents 901 (b)(4)
United States v. Simpson

 D appealed his conviction for receiving child porn bc the computer printout on the
alleged internet chat room exchange between D and an FBI agent should not have
been admitted bc it was not authenticated by showing it was D’s voice or handwriting
 Evidence at trial showed that pictures were transferred to D’s computer and his
computer was seized at the address given during the chat convo
 The court said that that type of evidence was sufficient to satisfy the 901 standard
Under 902(a)
Extrinsic evidence: any evidence other than the item of evidence in question
Evidence not necessary for authentication in some cases bc the item is self-authenticating
NY Times paper: title of paper proves that it is a NY Times paper
What do you do when the one person who can authenticate won’t testify?
EXPERT/LAY WITNESSES
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness' testimony in the form of opinions
or inferences is limited to those opinions or inferences which are (a) rationally based on
the perception of the witness, and (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.
Can give speed of vehicle, intoxication, sanity, and emotions
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts (sound
method) or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of the
case (method is used properly).
Rule 703. Bases of Opinion Testimony by Experts: Must be reliable but don’t have
to be correct (jury decides who is correct)
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in
evidence in order for the opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion
or inference unless the court determines that their probative value in assisting the jury to
evaluate the expert's opinion substantially outweighs their prejudicial effect.
First hand knowledge before the trial (such as doing an autopsy)
Facts and data learned at the trial
Facts and data not admitted into evidence are reasonably relied on by scientific
community (hearsay) (such as knowledge of a confession in a police report)
Rule 704. Opinion on Ultimate Issue: must be helpful can’t just state conclusion of
guilt
(a) Except as provided in subdivision (b), testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate issue
to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a
defendant in a criminal case may state an opinion or inference as to whether the
defendant did or did not have the mental state or condition constituting an element of the
crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact
alone.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without
first testifying to the underlying facts or data, unless the court requires otherwise. The
expert may in any event be required to disclose the underlying facts or data on cross-
examination.
Rule 706. Court Appointed Experts: not for poor people but to be used as a neutral
party for complicated issues
(a) Appointment.
The court may on its own motion or on the motion of any party enter an order to show
cause why expert witnesses should not be appointed, and may request the parties to
submit nominations. The court may appoint any expert witnesses agreed upon by the
parties, and may appoint expert witnesses of its own selection. An expert witness shall
not be appointed by the court unless the witness consents to act. A witness so appointed
shall be informed of the witness' duties by the court in writing, a copy of which shall be
filed with the clerk, or at a conference in which the parties shall have opportunity to
participate. A witness so appointed shall advise the parties of the witness' findings, if any;
the witness' deposition may be taken by any party; and the witness may be called to
testify by the court or any party. The witness shall be subject to cross-examination by
each party, including a party calling the witness.
(b) Compensation.
Expert witnesses so appointed are entitled to reasonable compensation in whatever sum
the court may allow. The compensation thus fixed is payable from funds which may be
provided by law in criminal cases and civil actions and proceedings involving just
compensation under the fifth amendment. In other civil actions and proceedings the
compensation shall be paid by the parties in such proportion and at such time as the court
directs, and thereafter charged in like manner as other costs.
(c) Disclosure of appointment.
In the exercise of its discretion, the court may authorize disclosure to the jury of the fact
that the court appointed the expert witness.
(d) Parties' experts of own selection.
Nothing in this rule limits the parties in calling expert witnesses of their own selection.
Admitting evidence pre-daubert (Frye): general acceptance test; look at scientific

community to see what is generally accepted
MD still follows Frye but it is beginning to incorporate reliability fators
Daubert v. Merrell DOW Pharmaceuticals

Holding: Frye rejected. The Federal Rules of Evidence govern the admission of
scientific evidence in a trial held in federal court. They require the trial judge to act
as a gatekeeper before admitting the evidence, determining that the evidence is
scientifically valid and relevant to the case at hand.
Courts use 702 factors and these Daubert factor: Whether the scientific technique has
been tested, subjected to peer review, what the error rate is, degree of acceptance in the
scientific community, existence and maintenance of standards controlling th e
technique’s operation
JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule.
This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts.
A judicially noticed fact must be one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.
(c) When discretionary.
A court may take judicial notice, whether requested or not.
(d) When mandatory.
A court shall take judicial notice if requested by a party and supplied with the necessary
information.
(e) Opportunity to be heard.
A party is entitled upon timely request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In the absence of prior
notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice.
Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury.
In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any
fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but
is not required to, accept as conclusive any fact judicially noticed.

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1 hour MC and 20 min per question (7)

Rule 103. Rulings on Evidence

ARTICLE IV. RELEVANCY AND ITS LIMITS

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence

Feaster v. United States

Relevant Evidence: evidence that makes guilt more likely

Relevancy doesn’t matter still not allowed:

Rule 411. Liability Insurance

Rule 407. Subsequent Remedial Measures

Rule 408. Compromise and Offers to Compromise

Rule 409. Payment of Medical and Similar Expenses

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Relevancy and its Limits: Character Evidence

Rule 405. Methods of Proving Character

Methods of proving character. Rule 405.

Character as circumstantial evidence

Michelson v. United States

CHARACTER EVIDENCE INTRODUCTION

Potential uses of character evidence

EXCEPTIONS to the general rule in Rule 404(a):

RAPE SHIELD STATUTE: FRE 412

Rule 406. Habit; Routine Practice

Assertion-based model of hearsay:

Rule 802. Hearsay Rule

Problems with inaccuracy of hearsay:

Shepard v. United States

If someone is asked a question and then responds it is hearsay, but if no question is

Statements offered for their truth:

Out of court statement Offered to prove what?

[The text of the out-of- court [The issues/the elements]

1. Verbal Acts/Words of Independent Legal Significance

2. To prove fact that words were spoken

4. Circumstantial evidence of state of mind

HEARSAY EXEMPTIONS -- FRE 801(d)

Statement of a Party Opponent: 801(d)(2)(A)

Statement by an Agent: 801(d)(2)(D)

Authorized Admissions: 801(d)(2)(C)

Adoptive Admission: 801(d)(2)(B)

NON-HEARSAY PRIOR STATEMENTS AND 803 EXCEPTIONS

Statement of Identification of Person: 801(d)(1)(C)

RULE 803 HEARSAY EXEPTIONS

Present Sense Impression: Rule 803(1)

Excited Utterance: Rule 803(2)

Differences between Present Sense Impression and Excited Utterance

State of Mind: 803(3)

Statements for Medical Diagnosis: 803(4)

Rule 612. Writing Used to Refresh Memory

HEARSAY DOCUMENTARY EXCEPTIONS

RECORDED RECOLLECTION: 803(5)

BUSINESS RECORDS EXCEPTION: 803(6)

Williamson v. United States

Rule 807. Residual Exception

HEARSAY EXCEPTIONS – PUBLIC RECORDS AND RULE 804

ABSENCE OF BUSINESS OR PUBLIC RECORD: 803(7) & 803(10)

EX. Statement: husband, I had an affair with another woman

Other woman dead, wife charged: effect on listener

RULE 804 HEARSAY EXEPTIONS

STATEMENTS AGAINST INTEREST (see chart below)

THE RESIDUAL EXCEPTION: 807

Giles V. California: forfeiture