Little Known Works of Famous Authors



§1: Witness Competency; FRE 601, 603, 604, 605, and 606


I.                   Introduction

Witness competency concerns the witness’s qualifications to testify. Mental competence (capacity) involves the witness’s ability to observe, recall and relate. Moral competence focuses on the witness’s recognition of the duty to testify truthfully, which is fortified by the oath requirement. Essentially, over time, competency rules have evolved into impeachment rules. Thus, the trend is to provide the jury with more information, both the testimony of persons who would have been disqualified at common law and the information needed to evaluate their credibility.


II.                FRE 601: General Rule of Competency


A.     Actual Rule

“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 the witness shall be determined in accordance with State law.”


B.     Advisory Committee Notes

This rule basically eliminates all grounds of incompetency not specifically recognized in the succeeding rules of the Article. Included among the grounds thus abolished are religious beliefs, conviction of crimes, and connection with the litigation as a party or interested person or spouse of a party or an interested person. With the exception of the so-called Dead Man’s Acts, American jurisdictions generally have ceased to recognize these grounds.


C.     Dead Man Statutes

Dead Man statutes are intended to protect the estates of deceased or incompetent persons against fraudulent claims. Typically, they disqualify a surviving party from testifying if the other party dies. Courts sometimes say “death has sealed the lips of one party, the law seal the lips of the other.”


1)      Problems

These statutes assumes that a party-witness’s interest in a case will result in fraudulent testimony which, because of the death or legal incompetency, cannot be rebutted by the adverse party. However, this assumption is questionable for the following reasons:

a)      The statute is probably ineffective; it will not prevent a dishonest party from introducing false testimony through other witnesses.

b)      The statute is unnecessary; the jury can easily comprehend the obvious bias.

c)      These statutes are often difficult to apply because of innumerable exceptions and waiver options.

d)      Most importantly, the statutes may work an injustice upon an honest party who is disqualified.

2)      Erie Connection

Nonetheless, the second sentence of FRE 601 was added to the federal rule so that state Dead Man statutes would apply in federal courts in which state law supplies the rule of decision (e.g., diversity cases, Erie doctrine).


III.             FRE 603: Oath or Affirmation


A.     Actual Rule

“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’s conscience and impress the witness’s mind with the duty to do so.”


B.     Reason for Rule

Essentially, this rule requires the witness to swear to the truthfulness of their testimony prior to testifying. According to Wigmore, the “true purpose of the oath is not to exclude any competent witness, but merely to add a stimulus to truthfulness wherever such a stimulus is feasible.” Moreover, a prosecution for perjury requires the taking of an oath.


C.     Form of the Oath

The form of the oath or affirmation is not important, so long as it is “calculated to awaken the witness’s duty” to testify truthfully. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required. Despite this flexibility in the form of the oath, testimony taken from a witness who has not given an oath or affirmation is inadmissible. Unless there is an objection, however, the failure of a witness to swear of affirm is waived.


IV.              FRE 604: Interpreters


A.     Actual Rule

“An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.”


B.     Summary

This rule is fairly self-explanatory. Essentially, an interpreter must be qualified as an interpreter, and they are subject to oath or affirmation that their translation will be truthful and accurate.


V.                 FRE 605: Competency of Judge as Witness


A.     Actual Rule

“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.”


B.     Summary

This rule disqualifies the judge as a witness. It governs only cases in which the judge is presiding; a judge is not an incompetent witness in other cases. The policy underlying this rule is obvious: Can the judge be impartial after testifying? Or, appear impartial? What attorney will want to cross-examine? Who will rule on objections? This rule has been extended to instances in which the judge does not take the stand and to other court personnel – i.e., law clerks.

C.     When Applied

Occasion to apply this rule should arise only in exceptional cases. If the trial judge knows in advance of trial that she may be a witness, the judge should recuse herself prior to trial.


VI.              FRE 606: Competency of Juror as Witness


A.     FRE 606(a): At the Trial

Rule 606(a) prohibits a juror from testifying in a case in which that juror is serving as a member of the jury. The rationale is straightforward. How can a juror remain impartial after testifying for one of the parties? This rule also avoids the problem that would face an opposing party attempting to impeach a juror and the adverse effects impeachment might have on other members of the panel. This rule will rarely be invoked because the juror should be challenged during selection if he is a potential witness or has personal knowledge of the case.


1)      Objection

A party must object. However, the party is allowed to object outside the presence of the jury. This avoids placing the party in the awkward position of objecting in front of the juror and other members of the panel.


B.     FRE 606(b): Inquiry Into Validity of Verdict or Indictment

Under Rule 606(b), jurors are incompetent to testify about the validity of a verdict or an indictment if the subject of their testimony involves internal influences. However, this rule does not prohibit testimony concerning external influences.


1)      Rationale

This rule offers an accommodation between competing interests. On the one hand, this rule promotes freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. On the other hand, simply putting verdicts beyond effective reach can promote irregularity and injustice. This rule attempts to accommodate both arguments.


2)      Internal Influences

A juror is not competent to testify about the internal operations or thought-processes of the jurors during the course of deliberation. According to the Fifth Circuit, this rule “bars juror testimony regarding at least four topics: (1) the method or argument’s of the jury deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mind set or emotions of any juror during deliberations, and (4) the testifying juror’s own mental  process during the deliberations.” 


3)      External Influences

A juror is competent to testify about extraneous prejudicial information that has been introduced into the jury deliberation process. In addition, a juror may testify about outside influences that may have been improperly brought to bear on the deliberation process. For example, a juror is recognized as competent to testify to statements by the bailiff or the introduction of a prejudicial newspaper account into the jury room.



§2: Lay Witnesses; FRE 602 and 701


I.                   FRE 602: Personal Knowledge Rule


A.     Actual Rule

“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’s own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.”


B.     Summary

This rule requires that a witness have personal knowledge about the subject to which he testifies. Personal knowledge is not limited to a witness’s visual perception; it extends to all senses. Moreover, it is the witness’s knowledge at the time of trial, not necessarily at the time of the event, that is determinative.


1)      Sight, Sound/Hearing, Smell, Senses/Perception = Personal Knowledge


C.     Uncertainty

A witness’s expression of uncertainty (i.e., “I think” or “I believe”) is not grounds for exclusion so long as the witness has personal knowledge through observation or impression. Expression of uncertainty affects the weight, not the admissibility, of the evidence.


D.     Establishing Personal Knowledge

The requirement of personal knowledge is one of conditional relevancy governed by Rule 104(b). The proponent of the evidence must thus introduce evidence sufficient, if believed, to support a finding by a reasonable juror of personal knowledge of the matter related. Evidence to prove personal knowledge may but need not consist of the testimony of the witness himself. The foundation must be sufficient, and when this foundation is laid, the witness will be permitted to testify unless a reasonable juror on all the evidence could not believe that the witness observed, recorded, recollects and can narrate what he claims to have perceived.


E.     Personal Knowledge and Hearsay Statements

This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. This rule would, however, prevent him from testifying to the subject matter of the hearsay statement.


Example: Boy calls father in Chicago. Uncle answers and says his father is there but not available. Boy can testify as to what his uncle said, but he can not testify that his father was in Chicago because he has no personal knowledge of that fact. He only has personal knowledge of what his uncle said.


F.      Exceptions to Personal Knowledge

Two exceptions to personal knowledge:

2)      Experts can give opinions on things other than those that they have personal knowledge of, if it is based on information given to him.

3)      Admissions – anything you have ever said in your life that hurts you can be admitted in litigation.


II.                FRE 701: Opinion Testimony by a Lay Witness


A.     Actual Rule

“If the witness is not testifying as an expert, the witness’ testimony in the forms 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.”


B.     Summary

Essentially, this rule limits lay opinions to opinions which are (a) based on personal knowledge, (b) helpful in resolving issues of the case, and (c) not based on specialized knowledge within the scope of expert testimony. Rule 701 is stated in the nature of a general principle of helpfulness, leaving specific application to the discretion of the trial court.


C.     Factors

In applying the standard of helpfulness, the more detailed description is preferred to the more abstract. The closer the subject of the opinion approaches critical issues, the greater the likelihood the court will require more concrete expression from the witness either alone or prior to the offering of an opinion conveying the witness’s overall impression. The court will probably insist that loaded words (i.e., “murder,” “rape”) are avoided. Obviously, an opinion amounting to no more than a belief that the plaintiff or defendant should win is inadmissible, because such opinions are not helpful to a clear understanding of his testimony or the determination of a fact in issue.


§3: Expert Testimony: FRE 702 and 703 and Ultimate Issue Testimony: FRE 704


I.                   FRE 702: Testimony by Experts


A.     Summary

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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 opinion of otherwise, if:

1)      The testimony is based upon sufficient facts or data, and

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


B.     The Daubert Test

The 1993 Daubert v. Merrell Dow Pharmaceuticals case handed down the language now in FRE 702. It rejected the earlier Frye Test that based expert testimony on “generally accepted” principles and stated that the expert testimony must be show to be “valid” through the above three reliability requirements. It required reliability (scientific knowledge) and relevance (to the facts of the case). In this case, testing done in preparation of litigation was not sufficiently seen as reliable.


C.     Amending Daubert

In 2000, FRE 702 was amended to include ALL expert testimony involving “specialized knowledge” (not just that of scientific experts). This came from an earlier Supreme Court ruling in Kumho Tire. Such specialized knowledge can even include experience, but that experience must be justified as a valid basis for opinion.


D.     Role of the Judge

The role of the judge in determining whether to let expert testimony in is whether the METHODOLOGY behind the evidence is valid, not if the information itself is reliable to the case at hand. That weight to give the actual evidence is left to the jury.


II.                FRE 703: Bases of Opinion Testimony by Experts


A.     Summary

Rule 703 recognizes three bases for expert testimony: (1) firsthand knowledge, (2) opinions based on admitted evidence/record facts, and (3) opinions based on non-record facts.


B.     Firsthand Knowledge

This rule provides that an expert may base an opinion on facts or data that are “perceived” (i.e., personal knowledge). For instance, a forensic pathologist who expresses an opinion about the cause of death in a homicide case, after conducting an autopsy, is basing her opinion on personal observation.


C.     Opinion Based on Admitted Evidence

Under Rule 703, an expert may base an opinion on facts or data “made known to the expert” at the hearing (i.e., hypothetical question).


1)      Hypothetical Questions

During direct examination, the attorney may ask the expert to assume certain facts as true and then ask if the expert has formed an opinion based on those assumed facts. If the expert answers “yes,” an opinion may be given. However, it should be noted that these assumed facts must be in the record. The hypothetical question serves two purposes: (1) it expands the parties’ access to expert testimony because they are no longer limited to experts with personal knowledge, and (2) the hypothetical question compels the expert to disclose the bases before giving an opinion, thus informing the jury of the facts on which the opinion rested. (Note: If the jury rejects these facts, they must also reject the opinion.)


a)      Criticism

Although it has its advantages, the hypothetical question has been extensively criticized. Wigmore noted that “its abuses have become so obstructive and nauseous that no remedy short of extirpation will suffice. It is a logical necessity, but a practical incubus; and here logic must be sacrificed.”


2)      “Modified” Hypothetical Questions

An expert present during testimony of other witnesses may base an opinion on that testimony. The expert is simply asked to assume that the overheard testimony was true. In general, this procedure is practicable only when the case is simple and the testimony concerning the underlying data is not disputed; otherwise the jury may not know upon what data the opinion is based.


D.     Opinion Based on Non-Record Facts: “Reasonable Reliance” Requirement

Rule 703 also permits an expert to give an opinion based on information supplied to the expert outside the record (nonrecord facts), if of a type reasonably relied upon by experts in a particular field. The drafters believed that the “reasonable reliance” requirement would ensure the reliability of this type of expert testimony.


1)      Determining Admissibility: Judge’s Role

There are two different approaches to the judge’s role in determining “reasonable reliance. On the one hand, the “restrictive” approach requires the trial court to make an independent assessment of the reasonableness of the expert’s reliance. On the other hand, the “liberal” approach limits the judge’s approach to what experts in the field consider reasonable.


2)      Hearsay Use

Although Rule 703 permits an expert to base an opinion on hearsay information, it does not recognize a hearsay exception for this information. Thus, the jury may consider this information only in evaluating the expert’s opinion; it cannot use the information substantively (i.e., for the truth of the assertions contained therein). In order to deal with the problem of whether the hearsay basis be excluded or subject only to a limiting instruction per Rule 105, a sentence was added to Rule 703 in 2000: “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.” In other words, if the hearsay would unduly influence the jury, the opinion based on the hearsay will not be admitted.


III.             FRE 704: Opinion on Ultimate Issue


A.     Summary

Rule 704(a) abolishes the “ultimate issue prohibition, under which a witness was precluded from giving an opinion on the ultimate issues in a case. However, abolition of the ultimate issue rule does not mean that all opinions on ultimate issues are now admissible. Rather, it means that admissibility of such opinions is determined by the standard set forth in Rules 701 and 702.


1)      Drafter’s Comments

“The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers in the early day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria.”


B.     Rule 704(b)

This subdivision of the rule provides that when the mental state or condition of a defendant in a criminal case is in issue such as premeditation in homicide, lack of predisposition in entrapment, or when the true affirmative defense of insanity has been raised, an expert witness may not testify that the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto.


1)      Extent of Rule

Where lack of mental capacity is asserted, presumably the expert may answer questions such as: “Was the accused suffering from a mental disease or defect?” or “Explain the characteristics of the mental disease and defect?” However, the expert may not answer the question, “Was the accused able to appreciate the nature and quality of his acts?” or “Was the accused able to appreciate the wrongfulness of his acts?”


IV.              Goodwin’s Hypo on Expert and Lay Witnesses


Two parties, X and Y, are fighting over a will. X calls psychiatrist to testify that he tested the decedent before he died and the decedent was not sane. This testimony is admissible based on personal knowledge. Y calls nephew who was living with the decedent and states that he thought the decedent had a sound mind. This is admissible because it is his perception.


Third witness testifies about eratic behavior of decedent personally witnessed. Assume psychiatrist had not examined but hears third person’s testimony. Because psychiatrist is an expert, he can testify evaluating the third person’s testimony. Nephew could not make an assertion on third person’s testimony because he is not an expert.


Assume shrink is on the stand and asked about opinion on the decedent’s sanity. He gives opinions based on talking to other doctors; he can do this because he has information given to him IF it is the type of information that one typically relies on.

§4: Examination of Witnesses: FRE 611 and 607


I.                   FRE 611: Mode and Order of Interrogation and Presentation


A.     Rule 611(a)

Under 611(a), the trial judge may exercise reasonable control over the conduct of a trial, including the mode and order of examining witnesses and presenting evidence. In exercising this control, the court is to be guided by several objectives: (1) ascertaining the truth, (2) avoiding needless consumption of time, and (3) protecting witnesses from harassment and undue embarrassment. This rule is written in broad terms. It covers a number of things but is primarily designed to cover the “questions arising during the course of a trial which can be solved only by the judge’s common sense and fairness in view of the particular circumstances.”


1)      Harassment and Undue Embarrassment

This subdivision authorizes the trial court to protect the witness from harassment and undue embarrassment. Nevertheless, while the trial judge should protect the witness from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate, this protection by no means forecloses efforts to discredit the witness.


2)      Testimony in Narrative Form

This rule allows the judge to decide whether questions of free narrative nature can be allowed. Several advantages of free narrative include: the testimony may seem more natural, may be more accurate, and avoids leading questions. On the other hand, specific interrogatories may be more complete, save time, and provide initial confidence to a timid witness


a)      Primary Objection

An opposing attorney will most likely object to narrative questioning because during the course of the narrative, he will not have the opportunity to interpose objections. He must wait until the narrative is complete and then move to strike. However, in most cases, the damage has been done by that point because the jury has heard the testimony that the attorney does not want them to hear.


3)      Continuances

This subdivision also gives the trial judge the discretion to grant continuances.


4)      Other Common Objections

There are numerous trial objections that are not specifically referenced in the FRE. Some of the most common are: (1) argumentative questions, (2) asked and answered, (3) assuming facts not in evidence, (4) misleading questions, (5) compound questions, and (6) non-responsive answers. Although these objections are not directly addressed, they are considered to fall under Rule 611(a) as issue of fairness, and the trial judge had considerable latitude in his rulings.


B.     Rule 611(b)

Under 611(b), cross-examination is “limited to the subject matter of the direct examination and matters affecting the credibility of witnesses.” Credibility refers to impeachment, a subject not often raised on direct. Determining what subjects were raised on direct examination is not always easy. As with cross-examination generally, the trial court enjoys great latitude, and the rule permits the cross-examiner to “adopt” the witness as her own, which may result in the curtailment of the use of leading questions .


C.     Rule 611(c)

This subdivision deals with when leading questions can be used. It states that ordinarily leading questions should not be used on direct examination but are permitted during cross-examination. The use of “ordinarily” indicates that there are situations in which this rule does not apply (i.e., establishing foundational facts). This subdivision also states that when a party “calls a hostile witness, an adverse party, or a witness identified with an adverse party” the rules are essentially reversed. In this situation, leading questions are permitted on direct and not allowed on cross.

**Hostile Witness = a witness who is impeding the attorney’s ability to question the witness (an adverse party who is a witness, person identified with an adverse party, etc)

II.                FRE 607: Who May Impeach


A.     Actual Rule

“The credibility of a witness may be attacked by any party, including the party calling the witness.”


B.     Summary

At common law, a party could not impeach its own witness. This was known as the voucher rule and was based on the theory that when a party produces a witness that party vouches for the witness’s veracity. The primary problem with the voucher rule was that, because of the firsthand knowledge rule, parties often had no choice concerning which witnesses to call, especially if there were only a few people who had firsthand knowledge. Denial of the right to impeach leaves the party at the mercy of the witness and the adversary. As such, FRE 607 abolished the voucher rule. Now, either party can impeach the witness.



§5: General Provisions: FRE 103, 104 and 105


I.                   FRE 103: Rulings on Evidence (Objections Rule)


A.     Objections: Rule 103(a)(1)

Under Rule 103(a)(1), an objection or motion to strike must be made in order to preserve a challenge to the admissibility of evidence on appeal. This rule is subject to the plain error doctrine. The objection must be timely and specific. Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by the jury in its deliberations, by the trial court in ruling on motions, and by a reviewing court determining the sufficiency of the evidence.


1)      Rationale

The objection requirement serves two purposes: (1) the objection alerts the trial judge to the nature of the claim of error, thus facilitating a ruling on the objection, and (2) an objection affords opposing counsel an opportunity to take corrective measures.



2)      Harmless Error

Rule 103(a) provides that a case will not be reversed on appeal because of an erroneous evidentiary ruling unless the ruling involves a “substantial right” and the other procedural requirements of Rule 103 have been satisfied. Basically, the harmless error doctrine is based on the common sense acknowledgement that a trial without error is not humanly possible. As such, if the error did not affect the outcome substantially, or any substantial right of one of the parties, the error will be deemed harmless and the ruling will stand.


3)      Specificity: Grounds

This rule requires specific objections; that is, a statement on the grounds upon which the objection is based must accompany the objection unless the grounds are apparent from the context. For instance, “Objection, hearsay” is a specific objection, whereas “Objection, inadmissible” or “I object” are general objections. They do not highlight the issue for the judge.


a)      All Grounds Specified

All grounds for objection should be specified at the time the objection is made. Generally, a party who has made a specific objection waives all other grounds and therefore cannot assert those grounds in the appellate court. For example, a party who objects on relevance grounds can not raise hearsay issues on appeal.


b)      “Apparent From the Record”

Under Rule 103(a)(1), stating a specific ground for an objection is not necessary if the ground is apparent from the context. However, the risk of relying on an appellate court to find that the ground was obvious from the context is substantial. Trial counsel can never assume that an appellate court will later find that the grounds are “apparent.”


4)      Specificity: Parts of Documents

The specificity requirement further demands that counsel indicate which particular portion of evidence is objectionable. This aspect frequently arises with documentary evidence – for instance, only one page of a ten-page document may contain inadmissible hearsay.


5)      “Continuing” Objections

Many jurisdictions recognize “continuing objections”, which remove the need to object repeatedly to a line of testimony after an adverse ruling on an earlier objection based on the same issue. Caution, however, demands periodic statements on the record that the prior objection still pertains; otherwise, counsel runs the risk that an appellate court may construe a continuing failure to object as a waiver.


6)      Timeliness of Objections

Rule 103(a)(1) requires that objections be timely. If a question is improper, an objection should be made immediately or with reasonable promptness. The rationale for this is that counsel should not be permitted to wait and see whether the answer is favorable before raising an objection.



a)      Motions to Strike

In some instances, a witness may answer before counsel can object, or a question’s tendency to elicit an objectionable response will not become apparent until the response is given. In this situation, the opposing attorney should motion to strike the objectionable testimony. Even though the jury has heard the answer, it is still important to ask the trial judge to strike the response because such a ruling precludes opposing counsel from referring to the stricken material in closing argument. Moreover, if the objectionable material is so prejudicial, counsel may also ask for a mistrial.


b)      “Connecting Up”

Sometimes evidence is admitted conditionally. If a trial court conditionally admits evidence subject to it being “connected up” later in the trial, a motion to strike is required to remove the evidence from jury consideration in the event that the “connecting up” evidence is never introduced.


c)      Different Types of Objections—objection to the content of the evidence, objection to the foundation of the evidence, objection to the form of the question


B.     Offers of Proof: Rule 103(a)(2)

Where evidence has been excluded by a trial court ruling, Rule 103(a)(2) requires an offer of proof to preserve the issue for appeal. Without an offer of proof in the trial record, an appellate court cannot determine whether or not the action of the trial court was erroneous. It should be noted that counsel must state the theory of admissibility as well as the content of the excluded evidence. The offer of proof should be made out of the hearing of the jury because an offer in front of the jury informs the jury of the nature of excluded evidence, thus defeating the purpose of excluding it.


1)      Form of Offer of Proof

An offer of proof may take several forms: (1) An offer of testimonial evidence often takes the form of a statement by counsel as to the expected content of the excluded testimony. (2) The trial court may require or be asked to take the “offer” by an examination of the witness, including cross-examination (Puts it on the record). (3) An affidavit (requiring an oath) summarizing the witness’s expected testimony and signed by the witness. (4) Excluded documentary evidence should be “marked for identification” and appended to the record of trial.


2)      Exceptions to the Offer of Proof Requirement

There are several exceptions: (1) An offer is not necessary when the substance of the excluded evidence is “apparent from the context within which the questions were asked.” (2) AN cross-examiner is given more leeway because he generally will be unable to state accurately what the witness would have said had he been permitted to answer. (3) The offer of proof requirement is subject to plain error.


C.     2000 Amendment; Definitive Rulings

Essentially, this amendment makes clear that if a trial judge makes a definitive ruling in response to a motion in Limine (a pretrial request for a preliminary decision on an objection or offer of proof), a party need not object or make an offer of proof at trial.


D.     Record of Offer & Ruling: FRE 103(b)

This rule permits the trial court to add to the record any further statement about an objection, offer of proof, or the court’s ruling. According to the federal drafters, the purpose of the provision is “to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court.”


E.     Hearings Out of the Jury’s Presence: FRE 103(c)

The underlying principle of an exclusionary rule may be defeated if the jury is exposed to the excluded evidence through an offer of proof or by argument of counsel. Thus, Rule 103(c) requires that discussions involving the admissibility of evidence be held outside the hearing of the jury whenever practicable. How this is done is up to the discretion of the judge.



F.      Plain Error Rule: FRE 103(d)

Rule 103(d) recognizes the plain error doctrine, under which an appellate court may consider an evidentiary error despite a party’s failure to make an objection, a motion to strike, or an offer of proof at trial. The purpose of this doctrine is to safeguard the right to a fair trial, notwithstanding counsel’s failure to object. Essentially, some errors are simple too great to tolerate – even in the absence of an objection.



II.                Preliminary Questions of Admissibility: FRE 104(a), (b), & (c)


A.     Preliminary Questions: General Rule: FRE 104(a)

Pursuant to Rule 104(a), the trial judge decides as a preliminary matter questions concerning the qualifications of a person to be a witness, including the competency of lay witnesses and the qualifications of experts. The court also decides the “existence of a privilege,” whether a statement is hearsay, and whether the hearsay rule applies. In short, if a rule deals with the application of evidentiary rules, all decisions are entrusted to the trial court, unless Rules 104(b) applies.


1)      Burden of Proof on Preliminary Issues

Rule 104(a) specifies neither the allocation of the burden of proof on preliminary questions nor the applicable standard of proof. As a general rule, the party offering evidence has the burden of persuasion on preliminary issues. Moreover, as a general rule, the “preponderance of evidence” standard applies. There are, however, exceptions – especially in criminal cases.


B.     Conditional Relevancy: FRE 104(b)

Rule 104(b) essentially states that conditionally relevant facts should be left up to the determination of a jury. As such, the trial court determines only if sufficient evidence has been introduced “to support a finding of the fulfillment of the condition.” Instead of applying the preponderance of evidence standard, the judge would determine if there was sufficient evidence from which reasonable jurors could have differing opinions. If the judge finds this, the evidence is admitted for the jury’s consideration. The judge does not assess the credibility of the evidence; that is a job for the jury.


1)      Rationale

If preliminary questions of conditional relevancy were determined solely by a judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries.




2)      Other Specific Rules Associated with Rule 104(b)

This rule is a rule of general applicability. Several specific rules represent specialized applications of the conditional relevancy concept. They include: (1) The personal knowledge rule. A jury should decide based on the evidence presented whether a witness had personal knowledge of an event. (2) Authentication of a document. The court’s decision is limited as to whether there is “evidence sufficient to support a finding that the matter in question is what the proponent claims. (3) Rule 104(b) has been applied to determine the involvement of the accused in other-acts evidence under Rule 404(b).


C.     Hearing of Jury: FRE 104(c)

This rule requires that the trial judge hold a hearing outside the presence of the jury when ruling on the admissibility of a confession. This rule also provides that hearings “on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require, or when an accused is a witness and so requests.”


III.             FRE 105: Limited Admissibility


A.     Limited Admissibility

Frequently, evidence may be admissible for one purpose but inadmissible for another purpose. Evidence also may be admissible against one party but inadmissible against another party. In other words, the evidence is admissible for a limited purpose. In such cases, Rule 105 applies, and the court must, upon request, instruct the jury as to the limited purpose of the evidence.


B.     Problem

The general risk of a limiting instruction is that it draws the jury’s attention to the evidence. This may work against the party if the evidence is prejudicial and the jury ignores the limiting instruction. However, failure to request the instruction in a specific and timely manner results in waiver and the issue can not be brought up on appeal. Thus, the decision to request a limiting instruction poses a potential benefit and a potential detriment. The attorney must weigh the two to make a proper decision.




§6: Relevancy & Its Counterparts: FRE 401-403


I.                   FRE 401: Definition of Relevancy


A.     Actual Rule

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


B.     Relevancy and Materiality

To be admissible, evidence must be both relevant and material. However, instead of “material,” Rule 401 uses the phrase “fact that is of consequence to the determination of the action,” which can be shortened to consequential fact. {It should be noted that the use of the phrase “fact of consequence” in place of materiality serves to clarify that the breadth of admissibility of relevant evidence extends to facts not in dispute.}


1)      Relevancy

Relevancy describes the relationship between an item of evidence and the proposition it is offered to prove. For instance, blood-alcohol test results are relevant evidence as to whether someone is voluntarily intoxicated.


2)      Materiality

Materiality describes the relationship between the proposition and the issues in the case – i.e., the consequential or material facts. For example, voluntary intoxication can typically negate the elements of first degree murder. Thus, evidence that is relevant to voluntary intoxication is material in a first degree murder case. It would therefore be admissible.


3)      Example

In a rape prosecution, assume the accused proffers evidence tending to show the alleged victim consented. Because “lack of consent” is an element of common law rape, the evidence relates to a consequential or material fact. In contrast, the same evidence would not be material in a statutory rape prosecution because lack of consent is not an element of statutory rape.  


C.     Relevancy Standard

Rule 401 embraces a very low standard. The rule’s standard does not require that the evidence makes a consequential fact “more probable than not” (preponderance of evidence), but only that the material fact be more probable with the evidence than without the evidence. Essentially, the court must exercise broad discretion in drawing on its own experience in the affairs of mankind in evaluating the probabilities upon which relevancy depends. Minimal logical relevancy is all that is required.


1)      Example

If we know that a bank robber was a white male, each of those facts individually is relevant under Rule 401. By excluding females, we advance the inquiry. By excluding non-Caucasians, we advance the inquiry.


D.     Admissibility v. Sufficiency

Although evidence as a whole must be sufficient to satisfy a party’s burden of production and thus send the issue to the trier of fact, each item of evidence need only advance the inquiry. (“A brick is not a wall.”) Think of it this way: You can only call one witness at a time, and each witness need not hit a homerun; you can score sometimes by hitting three singles.


E.     Direct & Circumstantial Evidence

Problems of relevancy typically involve circumstantial rather than direct evidence. Direct evidence is evidence where the sole inference which must be made to establish a fact of consequence is the truth of the matter asserted. Testimony such as “I saw X shoot B,” is direct evidence to a consequential fact. Circumstantial evidence involves evidence offered to establish a fact of consequence where an inference in addition to the truth of the matter asserted need be made. Thus testimony that X fled the scene would be both direct evidence of flight and circumstantial evidence of the murderous act. Some cases have stated that an inference cannot be stacked upon another inference, but these holdings have been vigorously attacked.


F.      Background Evidence

All evidence need not involve a disputed issue. The federal drafters specifically approved of the admission of “background” evidence: “A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission.”



II.                FRE 402: Admissibility of Relevant Evidence


A.     Actual Rule

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


B.     The Skinny

According to Rule 402, evidence may meet the relevancy standard of Rule 401 but nevertheless be inadmissible because it fails to satisfy the requirements of some other provision of the Rules of Evidence.



III.             FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time


A.     Actual Rule

“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.” – Essentially, Rule 403 specifies the conditions under which a trial court is permitted to exclude relevant evidence.


B.     Balancing Process

The application of Rule 403 requires a three-step process:

1)      First, the judge must determine the probative value of the proffered evidence. In applying Rule 403, it is not enough for the trial court to determine that the evidence is relevant under Rule 401. Because the court is required under 403 to balance the probative value against specified dangers or considerations, the court must estimate how much probative value the evidence has.

2)      Second, the court must identify the presence of any of the enumerated dangers (unfair prejudice, confusion of issues, or misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cumulative evidence).

3)      Finally, the court must balance the probative value against the identified dangers or considerations. If the enumerated dangers or considerations substantially outweigh the probative value of the evidence, exclusion is discretionary. [The word “substantially” is significant; it makes Rule 403 biased in favor of admissibility.]


C.     Rule 403 “Dangers”


1)      Unfair Prejudice

Relevant evidence may be excluded if the risk of unfair prejudice substantially outweighs it probative value. However, the rule requires exclusion only in the case of unfair prejudice. It should be noted that there is a definite difference between being unfavorable and unfairly prejudicial.


Rule 403 comes into play only if the evidence is prejudicial in the sense that the jury cannot rationally evaluate it. A classic example is the admissibility of gruesome photographs in a homicide case. Commonly, photographs of such nature are charged with such emotional impact that the risk of unfair prejudice is disproportionately enhanced.


In addition to an appeal to emotion, unfair prejudice may involve the risk that a jury will use evidence despite a limiting instruction. Essentially, if a court concludes that the risk of improper use is great, notwithstanding a limiting instruction, the probative value of the evidence for its proper use may be substantially outweighed by the risk of its improper use.


2)      Confusion of the Issues

A fact may be circumstantially relevant to a material issue, but proof of that fact might introduce the danger of confusion of the issues. If that danger substantially outweighs probative value, the evidence may be excluded under Rule 403.


3)      Misleading the Jury

Rule 403 also identifies “misleading the jury” as a danger. Frequently, the dangers of “confusion of the issues” and “misleading the jury” overlap. Scientific evidence and statistical (or mathematical) evidence are generally cited for their potential to mislead a jury.


D.     Rule 403 “Considerations”

Rule 403 permits exclusion based on undue delay, waste of time, or needless presentation of cumulative evidence. In contrast to the dangers in Rule 403, these factors are not intended to protect the integrity of the fact-finding process. Instead, they are designed to conserve judicial resources. However, Rule 403 speaks only of the needless presentation of cumulative evidence. A court will not exclude a third (or fifth) eyewitness to a murder case in which the identity of the perpetrator is the contested issue.


E.     Probative Value v. Dangers & Considerations

If the probative value of the evidence proffered is substantially outweighed by the aforementioned dangers or considerations, exclusion is discretionary. Significantly, the rule manifests a definite bias in favor of admissibility; the dangers or considerations must substantially outweigh probative value before evidence should be excluded. Thus, courts often note that Rule 403 “is an extraordinary measure that should be used sparingly” and “the balance should be struck in favor of admissibility.”


1)      “Old Chief” Case—court held that the probative value of the prosecution “telling its story” was outweighed by the prejudice to the defendant; it states that there are some facts so integral to telling the story that plaintiff or prosecution should be able to tell them


2)      What things will more than likely always be let in? –autopsy photos, photos of the dead body, etc.


3)      This will typically be decided “in limine”—before the onset of the trial—so that the objections to the testimony won’t be in front of the jury


F.      Tempering Rule 403

There are several ways to get around or temper the affects of prejudicial evidence. They are as follows:


4)      Jury Instructions

In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. A carefully worded and forcefully delivered instruction may reduce the potential of unfair prejudice or confusion of issues. Nevertheless, the efficacy of limiting instructions is often debatable.


5)      Alternative Proof

Alternate means of proof may also obviate the need for the introduction of unfairly prejudicial evidence. For example, if two witnesses can prove a point and one of them is the defendant’s probation officer, this would be a valid factor in determining admissibility; probationary status means prior crimes, an extremely prejudicial factor.


6)      Stipulations

Stipulations are often used to avoid the dangers associated with proffered evidence. A stipulation is a voluntary agreement between the parties to agree to a certain fact.


G.     Appellate Review

Appellate courts employ an abuse-of-discretion rule in reviewing a trial court’s Rule 403 decisions. Deference to the trial judge’s discretion is usually justified on two grounds. First, because the factors which must be balanced are never the same in any two cases, Rule 403 operates in an area of “indefinability” or “nonamenability to fixed legal rules.” Second, the trial court’s vantage point is superior to that of an appellate court reviewing a cold transcript.


H.    Adverse Inferences

An adverse inference can often be drawn from conduct. Such conduct is sometime known as “implied admission.”


I.       Admissions by Conduct – Flight, Alias, etc.

Conduct of a party, such as intimidating witnesses, may be used circumstantially to draw an adverse inference. Other examples include evidence of false statements, escape, offers to bribe witnesses, refusal to provide handwriting exemplars, and use of an alias. Also, flight from justice may indicate consciousness of guilt. The Federal Rules implicitly recognize this type of inference because a number of rules of exclusion assume that admissions by conduct are admissible.


§7: Relevant But Inadmissible: FRE 407, 408, 410, 409, 411 & Similar Happenings (A.K.A. categorical Balancing Rules)




I.          FRE 407: Subsequent Remedial Measures


A.     Carroll’s Breakdown


No evidence of:

(1)    “Subsequent Measures”

(2)    Taken AFTER “an injury or harm”

(3)    That [if taken previously] would have made the injury or harm less likely to occur

(4)    If Offered to Prove

(a)    Negligence

(b)    Culpable Conduct

(c)    Product Defect

(d)    Product Design Defect

(e)    Need for Warning or Instruction




Exclusion not required if evidence of a subsequent measure is offered to impeach or is offered to prove a controverted issue, such as:

(a)    Ownership

(b)    Control

(c)    Feasibility of Precautionary Measures

(d)    Etc.


(Remember, 402 & 403 still apply.)


B.     The Skinny

The exclusionary rule embodied in Rule 407 applies only when evidence of subsequent remedial measures is offered to prove negligent or culpable conduct, including strict liability in federal courts. If the evidence is offered for some other purpose, such as proof of ownership, control, feasibility of precautionary measures, or impeachment, the rule does not apply.


C.     Rationale

Rule 407 rests on two grounds. The most important reason is “a social policy of encouraging people to take, or at least not discouraging them from taking steps in furtherance of added safety.” The second ground is relevance: repair may not necessarily be probative of negligence or culpable conduct.


D.     Remedial Measures Defined

Although known as the “repair rule” at common law, Rule 407 encompasses far more than subsequent repairs. It covers the “installation of safety devices, changes in company rules, and discharge of employees,” as well as disciplinary action against the employee who caused the injury. Rule 407 also applies to subsequent changes in drug warnings and modifications in product design.



E.     Timing of Remedial Measures

The remedial measure must take effect after the accident or incident being litigated. A remedial measure that takes effect after purchase but before the accident that is the subject of litigation is not a subsequent measure.


1)      What about evidence of a recall? If the accident occurs after the remedial measure was taken, that it isn’t a “remedial” measure, so that would be admissible.


F.      Third-Party Remedial Measures

When a subsequent remedial measure is made by a third person, the policy of encouraging such measures is not implicated, and thus the rule does not apply. In these cases, however, the relevance of the subsequent measure as an “admission of conduct” becomes doubtful and is subject to exclusion under 401 and 403.


G.     Admissibility for Other Purposes

Rule 407 explicitly recognizes that evidence may be admissible if offered for some other purpose, such as proof of ownership, control, feasibility of precautionary measures, or impeachment. The “other purposes” listed in 407 are not exclusive. So long as evidence is not offered for the prohibited purpose, i.e., to prove negligence or culpable conduct, exclusion is not required.


Rule 407 requires that if evidence of remedial measures is offered for another purpose (except impeachment), that other purpose must involve a “controverted” issue. An offer to stipulate will often remove the issue from controversy. If the evidence is admitted for another purpose, the trial judge must give an instruction limiting the use of the evidence o its proper purpose if a party so requests.



III.             FRE 408: Compromises and Offers


A.     Carroll’s Breakdown


No evidence of:

(1)    Settlement offers, or

(2)    Settlement acceptance, or

(3)    Conduct/statements in “compromise negotiations”




(4)    Compromising or attempting to compromise a claim and that claim

(5)    Was disputed as to validity or amount


(6) If Offered to Prove

            (a) Liability for claim

            (b) Invalidity of claim

            (c) Amount of claim




Exclusion not required is offered to prove

(a)    Bias

(b)    No undue delay

(c)    Obstruction of Justice

(d)    (Etc.)


B.     The Skinny

Essentially, Rule 408 excludes evidence of compromises and offers to compromise when offered to prove liability for or invalidity of a claim or its amount. The actual words of the rule state “furnishing, offering, or promising to furnish.” If the evidence is offered for some other purpose, however, the rule does not apply. Rule 408 also extends to statements made during the course of negotiations.


C.     Rationale

Offers to settle lawsuits would quickly disappear if the other party could reject the offer but use it as evidence. It is the promotion of the public policy favoring the compromise and settlement of disputes that underlies Rule 408.


A secondary rationale turns on relevancy: The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances.


D.     Scope of Rule 408

Rule 408 applies to completed compromises as well as to offers of compromise. It covers disputes over the amount of the claim as well as its validity. It applies even when the evidence is tendered by the person making the offer.


Rule 408 also excludes evidence of conduct or statements made during the course of compromise negotiations. This changes the common law. The common law position was rejected because admitting statements made during negotiations had the effect of either inhibiting the negotiations or trapping the unwary negotiator.


E.     Dispute Requirement

Rule 408 applies only if the claim or its amount is disputed. This is a critical but sometimes overlooked requirement. If there is no dispute, the rule does not apply because the policy justification for the rule is absent. Following this theory, statements made right after an accident like “It was my fault entirely, I am sorry,” are admissible because there is no dispute.


F.      Third Party Compromises

Settlements between a litigant and a third party are excluded if offered to prove liability for or invalidity of a claim or its amount.


G.     Admissibility For Other Purposes

Rule 408 applies only if evidence of compromise is offered to prove liability for a claim or its amount. If the evidence is offered for some other purpose, the rule does not apply. The list of other purposes in Rule 408 is not exhaustive; such evidence may be offered for any other purpose. Admissibility is not automatic in this context; the trial court must still apply Rules 401 and 403.


1)      Bias

If a plaintiff sues A and B, a settlement between the P and A is inadmissible at trial if offered to prove liability. The policy of encouraging settlements is applicable in such a case. If, however, A testifies as a witness for the plaintiff at B’s trial, evidence of the settlement between the plaintiff and A may be introduced to show bias. The notion here is that the settlement may be a trade-off for the witness’s favorable testimony, a classic example of impeachment by bias.


2)      Obstruction of Justice

Evidence of a compromise or an offer to compromise is also admissible if proffered to prove obstruction of justice of a criminal investigation or prosecution. An effort to “buy off” the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion.


H.    Discovery

Rule 408 specifically provides that evidence otherwise discoverable need not be excluded merely because it was presented during compromise negotiations. Evidence produced through discovery procedures is not excludable under Rule 408. However, references to such evidence made during settlement negotiations are inadmissible.



III.       FRE 410: Criminal Pleas & Offers


A.     Carroll’s Breakdown


No evidence (in any civil or criminal proceeding) of:

(1)    Withdrawn guilt plea (also tendered but not accepted pleas), or

(2)    Nolo/contendere plea (withdrawn or not), or

(3)    Statements during plea hearings (later withdrawn), or

(4)    Any statements during plea discussions with a prosecuting attorney (that do not result in guilty plea, or which result in a withdrawn guilty plea) (Statements to police or agents of the prosecutor are not protected unless: (a) agent has actual authority to plea bargain & is bargaining, or (b) defendant honestly and reasonably thought plea bargaining was occurring.)




(5)    Against the defendant (who made plea or participated in plea discussion) [Excluded for all purposes.]

(6)    Exceptions:

(a)    Defendant can waive Rule 410 protections

-          Statement offered to impeach, &

-          D signed pre-negotiation waiver of 410 rights

(b)    perjury prosecutions

(c)    “rule of completeness”


B.     Withdrawn Guilty Pleas

Rule 410(1) provides that a withdrawn guilty plea and related statements are inadmissible if offered against the defendant who made the plea. Guilty pleas can be withdrawn under certain conditions. If the court permits a withdrawal, it makes no sense to allow the prosecutor to introduce the withdrawn plea at the subsequent trial.


C.     Nolo Contendere Pleas

Rule 410(2) provides that evidence of a nolo contendere plea and related statements are inadmissible if offered against the defendant who made the plea. Essentially, the only purpose of a nolo plea is to preclude its subsequent use in a civil case. In a jurisdiction without a no-contest plea, a defendant might contest a criminal charge for reckless driving only because of the fear that a guilty plea would be admissible in subsequent civil litigation involving personal injury or property damage. The notion underlying no-contest pleas is that we do not want scarce prosecutorial resources expended in cases where the defendant does not want to contest the criminal charge.


D.     Criminal Rule 11 “Voluntariness” Statements

Under Rule 410(3), statements made during proceedings under Criminal Rule 11 or its state equivalent are inadmissible in cases involving withdrawn guilty pleas or no-contest pleas. Before accepting a guilty or no-contest plea, the judge must determine that (1) the plea is voluntary, (2) the D understands the nature of the charged offense and the consequences of the plea, and (3) there is a factual basis for the plea. This procedure usually requires the D to make incriminatory statements. Such statements are inadmissible if the plea itself is inadmissible under Rule 410.


E.     Plea Discussions

Under Rule 410(4), plea bargaining statements involving a prosecutor are inadmissible. The policy underlying this exclusion is similar to the one underlying Rule 408, which governs compromise offers in civil cases: exclusion promotes the public policy of favoring the settlement of disputes. However, it should be notes that the determination of when negotiations begin and end is important because Rule 410 does not apply before negotiations have commenced or after they have terminated.


F.      Statements to Police

Originally, Rule 410 was read broadly to cover some “plea bargain” statements made during discussions between the defendant and police. However, the rule has been amended so that the rule only applies if the police are acting as a designated agent for the prosecutor.


G.     Broken Agreements

Since the policies underlying plea bargains are undercut when a party reneges on an agreement, Rule 410 does not apply when a plea agreement is broken.


H.    Admissibility Against Third Parties

Rule 410 applies only if the evidence is offered against the defendant who made the plea or offer; it does not apply if the evidence is offered against a different person.


I.       Exceptions

There following are exceptions to Rule 410:


1)      Rule of Completeness

Rule 410 recognizes an exception in “any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should, in fairness, be considered contemporaneously with it.”


2)      Perjury and False Statement Prosecutions

Rule 410 recognizes an exception for perjury and false statements prosecutions. The Senate Judiciary Committee added this exception because without is “a defendant would be able to contradict his previous statements and thereby lie with impunity. To prevent such injustice, the rule has been modified to permit the use of such statements in subsequent perjury or false statement prosecutions.”

3)      Waiver

In United States v. Mezzanatto, the Supreme Court ruled that an accused could waive the protections afforded by Rule 410. This holding is not limited to Rule 410; it has broader application, encompassing most evidence rules. The Court did not recognize that there may be exceptions to the presumption of waivability, but the party seeking an exception bears the responsibility of identifying some affirmative basis for overriding this presumption.



IV.              FRE 409: Payment of Medical Expenses


A.     Actual Rule

“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.”


B.     The Skinny

FRE 409, often known as the “Good Samaritan” rule, governs the admissibility of evidence of furnishing, offering, or promising to pay medical, hospital or similar expenses. Such evidence is inadmissible if offered to prove liability for the injury. However, if offered for some other purpose, the rule does not apply.


C.     Rationale

There are two familiar justifications for the rule.

(1)    Many people act from humanitarian motives in providing post-accident medical care; the probative weight of any implied admission of liability accordingly is low, and the possible prejudice from juror overvaluation of evidence is high.

(2)     Paying or offering to pay for post-accident medical care is socially desirable conduct – especially in the absence of universally available healthcare; as such, it should not be turned against the doer.


D.     Admissibility for Other Purposes

Unlike Rule 408, Rule 409 does not explicitly provide that evidence of medical payments be admitted if offered for a purpose other than to prove liability. Nevertheless, that is the effect of the rule. Rule 403 also applies.


E.     Key Difference Between FRE 408 and 409

Unlike 408, which governs settlement offers, Rule 409 does not exclude statements that may accompany the payment of medical expenses. These rules also differ in another respect; there need not be a “dispute” for Rule 409 to apply.



V.                 FRE 411: Liability Insurance


A.     Actual Rule

“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.”



B.     The Skinny

FRE 411 excludes evidence of liability insurance if offered to prove that a person carrying or failing to carry liability insurance acted negligently or otherwise wrongfully. Evidence of liability insurance is simply irrelevant if offered to show negligence. There is also a fear that the jury will unfairly penalize insurance companies because they have deep pockets.


C.     Admissibility for Other Purposes

FRE 411 does not apply if insurance evidence is offered for some other purposes – for example, bias, ownership or agency, and impeachment. The list of “other purposes” is illustrative, not exhaustive. However, admissibility is not automatic in this context. Rules 401 and 403 still apply.


1)      Ownership and Agency

The fact that a party carried insurance that covered another person may be offered as tending to prove an agency relationship. Similarly, insurance coverage on certain premises is probative of a party’s control over or ownership of those premises; people do not general carry insurance on objects they do not own.


2)      Bias

Evidence of insurance may also be admitted to prove bias or prejudice on the part of the witness. The classic example is the insurance adjustor who interviews the other party and is called to impeach that party with a prior inconsistent statement. The adjustor herself is subject to bias impeachment because she is an employee of a company with a financial interest in the litigation. Recall, however, that Rule 403 still operates in this context.



VI.              Similar Happenings—no hard and fast rules for this concept


A.     The Skinny

Even though “similar event” evidence is often offered, and judges are often suspicious of it, the Federal Rules has no hard and fast rules governing its use. Instead, objections of evidence of similar happenings trigger case-by-base analyses of probative value and the risk of prejudice under FRE 403 and its common law analogues.


Courts generally approach evidence of other happenings skeptically because of its capacity to mislead the jury. Pressed to visualize what happened on a particular occasion based on incomplete information, jurors naturally may rely on a more complete and vivid image of what happened on another occasion, if that image if available. In that situation, jurors may overvalue evidence of the other event, while ignoring ways in which the two events differ. Aware of this problem, courts demand proof that the two events are substantially similar before allowing information about one event to influence judgment about what happened in the course of another.


B.     The Test of Substantial Similarity

What counts as “substantial” similarity varies from court to court, case to case, and issue to issue, although courts almost always pay close attention to similarity in place and time. The following four factors must be considered under the test: (1) Time, (2) Place, (3) Mass Production, and (4) Not a Human Propensity.


C.     Carroll’s Analysis

In offering evidence of a similar happening, the party is usually trying to show one of four things:

(1)    Other accidents did occur (Could show: dangerous condition, D had notice, causation). If the testimony is attempting to show lack of notice, then it will probably be admissible.

(2)    No other accidents have occurred (no notice, safe condition)

(3)    Other claims and evidence of fraud – (probably admitted) (intent, plan, scheme)

(4)    Other claims without evidence of fraud – (Probably not admitted) (claim happy, litigious – not going to come in).



§8: Relevant But Inadmissible – Character Evidence – FRE 404, 405 & 406


I.          FRE 404: Propensity Rule


A.     Character Evidence: In General

Specific rules have been developed to deal with character evidence in an effort to strike the proper balance between the probative value of evidence and the opposing practical/policy considerations. The potential probative force of character evidence is not difficult to see. However, character evidence may be given excessive weight by the jury and may cause the jury to judge the actor on past rather than present conduct. As such, there are limits to the admissibility of this evidence. These limits respond to three determinants: (1) the PURPOSE for which the character is to be used, (2) the FORM of character evidence offered, and (3) the TYPE of proceeding. The most important factor is the ultimate purpose for which evidence of character is offered, that is whether the evidence is to be used directly or circumstantially.


1)      FRE 404(a)

FRE 404(a) prohibits the circumstantial use of character evidence, providing that “evidence of a person’s character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”


a)      Definition of Character—a generalized description of one’s disposition or of one’s disposition in respect to a general trait such as honesty, temperance, or peacefulness


b)      Character evidence is considered to be anything that ILLUMINATE character, not just evidence that speaks directly to character


2)      Using Character Evidence Circumstantially

From the evidence offered, the trier is, first, to infer the existence of the relevant aspects of character and, then, to infer that the subject acted consistently with that character on the occasion in question. Thus, unless the rule falls within an exception, Rule 404(a) excludes it.


3)      Character In Issue

The direct use of character occurs when character, specifically a character trait, is an essential element in the case. This direct use falls outside the language of Rule 404(a), and is freely allowed in all courts.


4)      Forms of Character Evidence

Possible forms of character evidence include:

(1)    Specific instances of past conduct that are probative of the relevant character trait;

(2)    Testimony by a witness who is familiar with the person in question and who can state an opinion whether the subject has a certain character trait;

(3)    Evidence of the subject’s community reputation for possessing the character trait in question


5)      Rationale for Prohibiting Character Evidence

Although character evidence may be probative, at least in some cases, it is generally excluded because it is extremely prejudicial. There is a concern that the jury will overvalue the evidence and convict the accused for who he is rather than for what he has done. The jury might conclude that the defendant may not be guilty of the charged crime, but he must have gotten away with other crimes.



B.     FRE 404(b): Other Acts

FRE 404(b) provides that evidence of other crimes, wrongs, or acts, although not admissible to prove character, may be admissible for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Rule 404(b) must be read along with Rule 404(a). In effect, Rule 404(b) is a clarification provision. Rule 404(a) prohibits only the circumstantial use of character evidence (character-as-proof-of-conduct). When evidence of other crimes, wrongs or acts is not offered for that purpose, Rule 404(a) simply does not apply. For example, if a person steals a gun and later uses that gun in a homicide, the theft may be relevant in the homicide prosecution to show the identity of the murderer. ***(NOTE: This is the MOST cited FRE!)


1)      Common Misconceptions


a)      Non-criminal Conduct

Although often used to admit criminal acts, by its own terms, Rule 404(b) is not limited to crimes; it embraces “wrongs” and “acts” as well.


b)      Dissimilar Acts

The other act need not be similar to the charged offense. However, under some theories of admissibility, such as modus operandi, remarkable similarity is the theory of admissibility.


c)      Subsequent Acts

The other-act need not have occurred prior to the charged offense; evidence of a subsequent act may be admissible. For example, if a robbery defendant threatens a witness the day before trial, evidence of the threat may be admissible to show consciousness of guilt, even though it occurred after the charged offense.


d)      Offered by the Accused

The accused may offer evidence under Rule 404(b) in an attempt to show another person committed the charged crime.


e)      Civil Cases

Rule 404(b) is not limited to criminal cases; it also applies in civil litigation.



C.     Carroll’S Rule 404(b) Analysis


(1)   What – other than propensity – is the other act O/T/P?

(2)   If O/T/P something other than propensity, is the other act probative of the other purpose?

(a)    Did other act occur?

(b)   Did D do it?

(c)    How probative?

(3)   403 Balancing

(4)   105 – Preponderance of Evidence



1)      Determining “Materiality” for Other Acts Evidence

Some of the “purposes” specified in Rule 404(b), such as identity, intent, and knowledge, name essential elements of crimes; thus, evidence relevant to one of these purposes is usually material (under Rule 401). Other listed “purposes,” however, are not typically elements of the crime. If other-acts evidence is offered for one of these purposes, the prosecutor must establish a relationship between the “purpose” and an essential element of the crime charged.


Typically, other-acts evidence is admitted as proof of one of three essential elements: (1) to show that the accused was the actor (identity issue); (2) to show that the accused possessed the requisite mental state (mens rea issue); or (3) to show that a crime has been committed (actus reus or corpus delicti issue). In addition, it is sometimes impossible to separate the charged offense from the other-act. This is often referred to as “interrelated” acts or res gestae.


2)      “Res Gestae”

Courts frequently hold that wrongs committed or detected simultaneously with the conduct at issue in the case are admissible to give the jury a fuller understanding of the events surrounding the crime charged. This exception is sensible, for often the story of one crime cannot be intelligibly told without some discussion of other crimes. For example, if the defendant is on trial for a murder committed in the course of a robbery – it is difficult to describe the murder – and it may be impossible to suggest a motive for it – without mentioning the robbery.


3)      Proof of Identity

The identity of the person who committed the charged offense is always an essential element, and therefore always constitutes a consequential fact. “Identity” is specifically listed in Rule 404(b). Moreover, several of the other listed “purposes” specified in the rule, such as motive, opportunity, or preparation may be relevant to prove identity.



Frequently, the defendant’s commission of a prior offense is used as evidence that he had a motive to commit the offense charged, as when a prominent citizen’s involvement in various criminal enterprises is used to establish a motive for hiring someone to kill a prosecutor. Motive is probative of identity.



In a murder case in which the victim was killed by a bomb, evidence that the defendant had used a bomb in a prior offense may be admissible to establish the defendant’s technical know-how with explosives, and the capacity (opportunity) is probative of identity.



In a bank robbery case, evidence that the defendant had previously stolen a car that was later identified as the robbery getaway car may be admissible to establish preparation and is probative of identity.


Common Plan or Scheme

The “common plan or scheme” label is sometimes used when the defendant is charged with an offense based on his connection to an event with innocent as well as criminal explanations. Here, evidence is used to rule out innocent explanations and is probative of identity. Suppose, for example, that an infant under the care of a baby sitter suddenly dies in her crib when her breathing stops. Although the baby may have died of Sudden Infant Death Syndrome, there may be a criminal explanation. Moreover, if the prosecutor shows that the same baby sitter was present when five other children died under similar circumstances, this evidence is highly probative of the claim that the baby sitter suffocated the sixth victim (and some or all of the others).


Modus Operandi

Very similar to common scheme or plan. Another way to prove identity is through what is known as modus operandi evidence. Essentially, this evidence is occurs when the similarity between the other act and the crime charged is so striking that the same person probably committed both offenses (e.g., the Zodiac killer).


4)      Proof of Knowledge

Occasionally, the prosecutor or plaintiff in a civil case has to prove, as part of its case-in-chief or to meet a defense, that the defendant knew certain facts. In some situations, evidence of other crimes tends to demonstrate that knowledge. For example, suppose that a defendant is charged with passing a counterfeit twenty dollar bill. The defendant denies knowing the bill was counterfeit. If the state can show that the defendant had in the past engaged in counterfeiting, this would tend to indicate that he had the expertise to recognize a counterfeit twenty when he saw one.


5)      Proof of Intent

When a party’s commission of the alleged act is conceded or easily established, courts often admit other-acts evidence to prove that the act was not done innocently but with the intent required to establish criminal or civil liability.



In the prosecution of D for the theft of a rental car, D asserts that he intended to return the car. Evidence of the theft of other rental cars would be relevant to establish D’s intent. The term “intent” is, generally speaking, synonymous with “purpose”; it denotes the desire to achieve a particular end and an awareness that the action undertaken is likely to produce it. Thus, since the crime of theft is usually defined so as to require a taking of goods with the purpose of depriving the owner (either permanently or for a substantial period of time), evidence of other thefts bears upon the material element of intent.


Intent Not an Issue

The 2nd Circuit has stated that “other crimes evidence is not admissible to prove intent when that issue is not really in dispute.”


Lack of Mistake or Accident

The defenses of mistake or accident also relate to intent. Neither is an affirmative defense; both involve a claim that the defendant lacked the requisite mens rea of the charged offense. For example, a defendant charged with murder who testifies that the gun discharged “accidentally” because he was unfamiliar with firearms is raising a defense of accident, which tends to negate the intent element of a purposeful killing. To rebut this claim, evidence that the defendant had used a weapon in a prior robbery may be admissible.


6)      Entrapment Cases

An entrapment defense raises issues concerning the defendant’s character and the commission of other-acts, because the defendant’s predisposition (propensity) is a material issue. Essentially, the defendant is claiming that the government “implanted in his mind the disposition to commit the alleged offense.” As such, the defendant’s prior criminal conduct is relevant to show his prior disposition. This is one of the few exceptions based solely on propensity.


7)      Issue in Dispute

Before permitting a party to use other-crimes evidence to show something besides propensity, the court must determine that the issue on which the evidence is offered is actually in dispute. However, it must be remembered that parties often do not dispute issues that technically must be proven in order to establish or avoid liability. Nonetheless, if an issue must be technically proven, then it is “in dispute.”



8)      Rule 403 Balancing

Subsections 1 through 7 dealt with the first two parts of Goodwin’s 404(b) analysis. When going through part three of the analysis, one must conduct 403 balancing – that is, under Rule 403, relevant evidence may be excluded if its probative value is outweighed by the dangers of unfair prejudice, confusion of issues, or misleading the jury. 


9)      Rule 104(b) – Evidence Standard

For other-acts evidence to be relevant, the prosecution must offer some evidence tending to show that the defendant committed the other act (i.e., eyewitness testimony, etc.). The Supreme Court, in Huddleston v. United States, adopted a prima facie evidence standard, based on Rule 104(b). This is a very lax standard. The Court explained: “In determining whether a party has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence.”


Double Jeopardy & Collateral Estoppel (Prior Acquittals)

In Dowling v. United States, the Supreme Court rejected the double jeopardy and due process arguments against the Rule 104(b) other-acts evidence standard. According to the Court, a prior acquittal means only that the prosecution has failed to establish the defendant’s guilt beyond a reasonable doubt. The standard of admissibility for other-acts evidence is far less demanding. The prosecution in a federal trial need only introduce sufficient evidence from which the jury could reasonably conclude that he accused committed the other act. Thus, collateral estoppel does not apply. Additionally, the Court finds nothing fundamentally unfair about introducing such evidence.


10)  Notice Requirement

Because of the evidence associated with other-acts evidence, advance notice of the prosecution’s intent to introduce this evidence is critical. This notice requirement was added in the 1991 Amendment. This notice requirement is intended to reduce surprise and promote early resolution on the issue of admissibility. The amendment requires the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial. Moreover, because the notice requirement serves as condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met.


11)  Related Issue – Statute of Limitations

Several cases have involved prior crimes for which the statutes of limitations has expired. Most courts have held that this fact does not preclude the admission of other-acts evidence. The rationale is as such: “The statute of limitations is a defense to prosecution, not a rule of evidence. Therefore, once prosecution is timely instituted, the statute of limitations has no bearing on the admissibility of evidence. It would be a bizarre result indeed is a crime properly prosecuted within the limitations period could not be proven because an essential element, such as intent, could only be established by proof of incidents occurring outside the period.”



D.     Accused’s Character: FRE 404(a)(1)

In a criminal case, the accused may offer evidence of a pertinent trait of his character. Once the accused introduces such evidence, the prosecution may cross-examine the defense character witness on the issue and offer rebuttal character evidence.


1)      Limitations

There are several limitations. First, it is the defendant’s character at the time of the charged offense that is relevant. Second, Rule 405(a) limits the methods by which the accused may introduce character evidence. Under that provision, only opinion and reputation evidence, and not specific instances of conduct, may be used. Third, in sex offense cases, Rules 412-15 preempt Rule 404.


2)      Pertinent Trait

The exception recognized in Rule 404(a)(1) permits the accused to introduce only evidence of a pertinent trait of character. In other words, the character trait must be relevant to the crimes charged – e.g., peaceful character in crimes of violence; honest character for theft; and truthful character for perjury.


3)      Prosecution Rebuttal Character Evidence

Once the accused has introduced evidence of a pertinent character trait, the prosecution may offer character evidence in rebuttal. The same limitations that apply to defense character evidence also apply to the prosecution. First, the character trait subject to rebuttal must be “pertinent” to the crime charged. Second, Rule 405(a) specifies the methods of proof. Thus, the prosecution, like the accused, is limited to opinion or reputation evidence.


4)      Prosecution Cross-Examination

The prosecution may also challenge defense character evidence through the cross-examination of the character witnesses. Rule 405(a) provides: “On cross-X, the inquiry is allowable into relevant specific instances of conduct.” Thus, a reputation or opinion witness may be asked on cross-X “if she knows” or “if she has heard” of specific acts that reflect on the character trait by that witness. The cross-examiner “must take the witness’s answer”; that is, extrinsic evidence of the specific act is not admissible.


f)        Pertinent Trait

Only acts which bear some relationship to the particular character trait offered by the defendant can properly be raised on corss-examination.


g)      Remoteness

Acts which are too remote are not the proper subject of cross-examination.


h)      Effect of Current Charge

Cross-examination of defense character witnesses concerning the effect of current charges on the defendant’s reputation or on the witness’s opinion are improper because the question asks the witness to indulge a hypothetical assumption of the defendant’s guilt.


i)        Good Faith Basis Requirement

Courts have required that this type of cross-examination be conducted in good faith, i.e., that the prosecutor have a basis in fact for asking the question. This requirement prevents the potential for abuse.



D.     Victim’s Character: FRE 404(a)(2)

FRE 404(a)(2) is limited to criminal cases and is applicable only when self-defense is raised. The prosecution is prohibited from introducing evidence of the victim’s character until the defense “opens the door.” The rationale for this is that the prosecutor will try to influence the jury based on the “glowing” character of the victim, which is irrelevant as to whether the defendant committed the crime.




1)      First Aggressor Issue

In a homicide case, the defendant may introduce evidence of the victim’s violent character to show that the victim was the first aggressor, thereby establishing one element of self-defense. However, once the accused has introduced evidence of the victim’s character, the prosecution then may introduce evidence of victim’s character for peacefulness. Essentially, unless the accused has solid evidence of bad character of the victim, it is an extreme risk to “open the door.”


2)      Special Homicide Rule

In homicide cases, but not in assault cases, any evidence that the victim was the first aggressor, even if it does not pertain to character, will “open the door” for the prosecution to introduce any evidence, including the victim’s good character evidence, to rebut. The rationale for this rule in homicide cases as opposed to assault cases of that the victim will be unavailable to recant the  accused’s story of how the event occurred.


3)      Effect on Accused’s State of Mind

Another use of evidence of the victim’s violent character is to show the effect that knowledge of the victim’s character had on the mind of the accused. For example, if the accused had knowledge of victim’s violent tendencies, he may have acted in a manner reasonable under the circumstances, thereby allowing him to argue the reasonableness of his actions under self-defense.


E.     Analysis of 404 Exceptions


404(a) Exceptions:

(1)    404(a)(1) – “Good” character trait of criminal accused; offered by accused – prosecution rebuts with bad character.

(2)    404(a)(2) – Character “attack” on victim to show victim’s propensity by the accused – prosecution rebuts w/ victim’s good character; prosecution rebuts with same trait of accused.

(3)    404(a)(2) – In homicide cases, prosecution can offer evidence of victim’s peaceful character to rebut any evidence the accused offers that victim was first aggressor.

(4)    404(a)(3) – Impeach character of any witness in civil or criminal cases.



F.      Methods of Proving Character: Rule 405


1)      Reputation or Opinion—In all cases in which evidence of character or a trait of a 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 into relevant specific instances of conduct is allowable.



(1)    Reputation

(2)    Opinion

(3)    No Specific Acts



(1)    Call own opposing character witnesses.

(2)    Cross-X opponent’s character witness with specific acts of target witness.



2)      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.


a)      Examples of when character would be an element: parental fitness in a child custody battle, corruption of the plaintiff in a defamation action, felon in possession of a firearm


G.     Habit Rule: FRE 406

Evidence of the habit of a person or the routine practice of an organization when offered to prove that a person or organization acted in conformity with that habit or routine on a particular occasion may be admissible under FRE 406


1)      Habit Defined – Distinguished from Character

Rule 406 does not define “habit.” Much debate has ensued over should be the definition of “habit.” Wigmore use the phrase “invariable regularity” of action. The Model Code of Evidence defined habit as “a course of behavior of a person regularly repeated in like circumstances.” However, McCormick’s definition has been given much credence: Habit is the “regular response to a repeated specific situation.” The key elements in determining whether conduct constitutes habit are [1] specificity, [2] repetition, [3] duration, and [4] the semi-automatic nature of the conduct.


a)      Specificity

A person’s general disposition as a careful or careless driver should be classified as character evidence and excluded. However, evidence that a person always stopped her car at a particular intersection should be classified as habit due to its specificity.


b)      Repetition

Evidence that a person stopped at the intersection once-a-month is less probative than if they did it once-a-day. How many times does a specific behavior have to be done in order to be seen as habit? Not sure; some courts have stated that five times is enough for habit; some courts may require more or less.

c)      Duration

The longer that a person has conducted the habitual activity, the more likely that it will be considered as such.


d)      Semi-Automatic Response

Certain types of activities are done without thought – for example, braking a car with the right foot and locking the door to a house when leaving. When an activity is done semi-automatically as opposed to volitionally, these activities will be more easily classified as habit.


2)      Routine Business Practices

The phrase “routine practice of an organization” refers to the “habit” of an organization, commonly known as a business practice, usage or custom. Large businesses, out of necessity, develop standard operating procedures (SOPs) such as a routine procedure for receiving or mailing documents. Because there is no risk of improper character being smuggled in front of a jury in this context, routine practice evidence should be admitted under FRE 406.



§9: Rape Shield and Defendant’s Propensity to Commit Sex Offenses: FREs 412 – 415


I.          The Rape Shield Law: FRE 412


A.     Overview

Rule 404(a)’s exception for evidence of the victim’s character is subject to Rule 412, the “rape shield law.” In effect, Rule 412 trumps Rule 404(a). As such, evidence of a victim’s history of promiscuity or their premarital/extramarital activities are generally not admissible. At common law, it was admissible.


B.     Carroll’s Analysis


FRE 412:


(a)    In any civil or criminal proceeding involving alleged sexual misconduct,

No evidence of:

(1)    Any alleged victim’s other sexual behavior

(2)    Any alleged victim’s sexual predisposition


(b)    4 Exceptions

(1)    3 criminal case exceptions:

(A)  Specific act evidence of victim’s sexual behavior with another to prove source of semen, injury . . .

(B)   Specific act evidence of victim’s sexual behavior with accused to prove consent.

(C)   Constitution

(i)Bias/Prior Inconsistent Statement, Motive to Lie

(ii) Evidence crucial to defense or plausible, not offered to show propensity

(2)    One Civil Case Exception

Sexual behavior and/or predisposition (Not Reputation) of victim – after reverse 403 Balancing.

C.     Rationale

There are several reasons for this “rape shield” rule. First, it is designed to protect the complainant’s privacy by discouraging trying the victim in rape cases. Second, this rule may encourage the reporting of rape. Third, it is intended to aid in the truth-finding process. Finally, and most critically, the victim’s sexual history is simply not relevant in a rape trial.


D.     Criminal Exceptions


1)      FRE 412(b)(1)(A): Origin of Semen, Pregnancy or Disease

This rule excepts evidence of specific instances offered to show that another person was the source of semen, injury or other physical evidence (e.g., pregnancy or disease). As such, the defendant can offer evidence of other sexual conduct to dispute that it was his semen.


2)      FRE 412(b)(1)(B): Past Sexual Activity with Accused

This rule excepts evidence of specific instances of sexual behavior between the accused and the alleged victim. Typically, the exception is limited to the issue of consent. Here, the evidence is not automatically admissible.


3)      FRE 412(b)(1)(C): Constitutionally-Required

This rule essentially states that evidence normally excluded under 412 may be admissible if exclusion of the evidence “would violate the constitutional rights of the defendant.” Several common instances where exclusion might affect constitutional right are as follows:



a)      Prior Inconsistent Statement, Bias, Motive to Lie

If sexual conduct is offered to prove that the victim has made a prior inconsistent statement, is biased or has a motive to lie, then this evidence might be admissible under the constitutional exception.


b)      Mens Rea Defense

Sometimes evidence of prior sexual behavior is offered on the issue of mens rea – i.e., relevant to the reasonableness of the defendant’s belief concerning consent. Essentially, the argument is that the victim’s sexual predisposition gave the accused a reasonable belief that there was consent. In effect, this is a “mistake of fact” defense, which is not an affirmative defense; it is simply an assertion that the defendant did not have the requisite mens rea, which the prosection must prove beyond a reasonable doubt. As such, this evidence is not offered as propensity evidence but to show the “effect on the accused.” This exception is not automatic and is viewed on a case-by-case basis.


E.     Civil Exception

Rule 412 was amended in 1994 to extend the rule to civil cases such as sexual harassment. The rule sets forth a stringent balancing test – the probative value must substantially outweigh the danger of harm to the victim and unfair prejudice to a party. Essentially, this is a reverse 403 analysis, biased in favor of exclusion rather than admission. The rule also precludes reputation evidence unless placed in issue by the alleged victim.


F.      Rule 412(c): Procedure

Rule 412(c) sets forth the procedures for determining admissibility. It provides for 14-day notice and an in-chambers resolution of the issues, as well as the alleged victim’s right to participate. The notice an in camera hearing provisions may be the most important safeguards in the statute; the defense cannot introduce sexual history on any pretense, which had been the former practice, until the court rules. Here, the defense must convince the judge at a separate hearing.



II.                FRE 413-415: Defendant’s Propensity to Commit Sex Offenses


A.     Carroll’s Analysis


FRE 413: Foundation

(1)    D “accused” of offense of sexual assault

(2)    Evidence proffered is evidence of commission – or attempt – of another offense of sexual assault

(3)    Evidence is “relevant” (shows propensity)

(4)    403 Balancing



B.     FRE 413: Evidence of Similar Crimes in Other Sexual Assault Cases

Essentially, this rule makes evidence of the defendant’s commission of another offense of sexual assault admissible in a criminal case. Procedurally, the Government must disclose the intent to introduce this evidence at least fifteen days prior.



1)      Application of Rule 403 to this Type of Evidence

A critical issue is whether Rule 403 should apply to this type of evidence. A number of factors are considered relevant to this analysis. They include:

[1] how clearly the prior act has been proved;

[2] how probative the evidence is of the material fact it is admitted to prove;

[3] how likely it is that such evidence will contribute to an improperly-based jury verdict; and

[4] how time consuming it will be to prove the prior conduct.


2)      Method of Proof

Unlike Rule 405(a), the methods of proof are not limited to reputation and opinion evidence. Specific instances are admissible. Convictions are not required.


C.     FRE 414: Child Molestation Cases

This rule is essentially the same as Rule 413 but applying to previous cases of child molestation. However, Rule 414 does have an age requirement – the alleged victim must have been under the age of 14 at the time of the offense. Otherwise, the same 403 balancing must occur in these situations as they did in 413 cases.


D.     FRE 415: Other Sexual Assault Crimes in Civil Cases

This rule allows this evidence in civil cases. It is essentially the same as above. Admissibility is governed by the 104(b) preponderance of evidence standard.







§10: Hearsay, Generally



1. Is it relevant?

2. Is it out of court?

3. It is an oral or written assertion or non-verbal conduct intended as an assertion?

4. Is it offered for the truth of the matter asserted?

5. If so, does it fit within one of the exceptions?

6. Does Rule 403 keep it out?



I.                   What is Hearsay?


A.     FRE 801: Definitions

FRE 801 provides:

“(a) Statement. A “statement” is (1) and oral or written assertion or (2) nonverbal conduct of a person, if it is intended by a person as an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”


1)      What is the risk of hearsay? –misperception, faulty/failed memory, ambiguity, lack of candor, unreliability


2)      Without the possibility of cross-examining the declarant, all of these risks are heightened. If cross-examination wouldn’t make the evidence MORE reliable, then it more than likely is NOT hearsay.


B.     Layman’s Definition

The following definition captures the essence of 801(c) in shorter and simpler language: Hearsay is an out-of-court “statement” offered for the truth of the matter asserted.


1)      “Out-of-Court” (Extrajudicial) Requirement

Hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing.” As such, an out of court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.


a)      Example

If an eyewitness to an accident makes a statement at the time of the accident and later testifies at trial, the prior statement is still hearsay if offered for its truth; to be admissible, it must fall within an exception or exemption.


2)      Carroll’s Definition

801(c) =

(a)    Out-of (this) Court

(b)   Statement

(c)    O/T/P the truth of the matter asserted



C.     Statement Offered “For the Truth of the Matter Asserted”

Rule 801(c) defines hearsay as a statement offered in evidence to prove the truth of the matter asserted. If the relevance of an out-of-court statement is that the statement was made, rather than the truth of the assertion contained therein, the statement is not hearsay. In sum, if the statement is offered for any purpose other than for its truth, it is not hearsay.



Suppose my brother telephones me from Chicago and says “I am broke, send more money.” If offered to prove that my brother was broke, then it is hearsay, because it offered for the truth of the assertion. In contrast, if the same statement is offered for any other purpose – i.e., to prove he was alive, to prove the telephone system in Chicago was working, or to prove he could speak English – then it is not hearsay.


1)      Carroll’s Analysis




(a)    Statements to Show Declarant’s Knowledge/Awareness

(b)    Statements to Show Declarant’s (INDIRECT) state of mind/attitude (where relevant)—must be circumstantial evidence

(c)    Statements to Show Listener’s Knowledge/Awareness (To show the effect a statement had on the listener

(d)    Statements to Show Listener’s state of mind/attitude (where relevant)

(e)    Legally Operative Language

(f)     Verbal parts of acts

(g)    Impeachment

(h)    Opinion Polls

(2)     CONDUCT THAT IS NOT ASSERTIVE OR NOT INTENDED BY DECLARANT AS AN ASSERTION (Even if Declarant’s beliefs can be inferred from the conduct)

(3)     MACHINE or ANIMAL Sounds—this includes radar gun information, breathalyzer tests, data from computers, etc.



2)      To Show Effect on the Listener

In many cases, a person’s state of mind – e.g., knowledge, belief, good faith, reasonableness – is an issue. A statement offered to show its effect on the state of mind of the person who heard it is not hearsay.


a)      To Prove Reasonableness

If an accused claims self-defense, her reasonable fear of the victim becomes an issue. Accordingly, statements made to her regarding the victim’s dangerous or violent character are relevant to show her subjective state of mind. If a statement is offered to show that such communication was made to the defendant and thus reasonably induced fear, the statement is not hearsay.


b)      To Prove Notice

Statements offered to show that a person received notice of a fact, condition, or event are not offered for their truth. As such, these statements are not hearsay. For example, an owner of a fleet of trucks is told that one of his drivers is a very careless driver; if offered to show notice (not that the driver is careless), the statement is not hearsay.


3)      Verbal Acts

Statements that constitute verbal acts or operative acts are not hearsay because they are not offered for the truth. In other words, the uttering of certain words has independent legal significance under the substantive law – e.g., words of K, slander, threats and the like. Thus, we only care that these words were said, not that they are true.


4)      Verbal Parts of Acts of Independent Legal Significance

Sometimes, out-of-court spoken or written words have legal significance in and of themselves. These statements are not hearsay. For example, consider a wedding ceremony. The parties respond “I do” to the traditional questions of love, honor, etc. These statements would not be considered hearsay because the quoted statements are part of the act of getting married. It doesn’t matter whether they intended to love, cherish, etc.; having participated in the ceremony, they are married just the same.


5)      Prior Inconsistent Statements for Impeachment

Under this approach, a prior inconsistent statement is offered to the inconsistency between the witness’s trial testimony and pretrial statements, rather than to show the truth of the assertions in the pretrial statement. This is not hearsay, and such self-contradiction affects the witness’s credibility.


6)      To Circumstantially Prove Declarant’s State of Mind

A person’s mental state is often a material issue. If that person makes a statement that manifests her state of mind, the statement is relevant. If the statement shows the declarant’s state of mind circumstantially, it is not hearsay. A common example involves statements of a defendant offered to establish insanity – e.g., “I am the Emperor of Africa.” – this statement is not offered to prove that the defendant is indeed the emperor of Africa, but rather as evidence of the defendant’s insane delusions.


7)      To Prove Personal Knowledge

If a person makes a statement describing something, it may not be hearsay if it is not offered for the truth of the matter asserted but rather as circumstantial evidence of knowledge. If the statement is offered to show that the person had such knowledge, then it is not hearsay.


D.     “Statement” Defined – Implied Assertions

Rule 801(a) considers, for hearsay purposes, a statement as “nonverbal conduct of a person, if it is intended by the person as an assertion.”


1)      Assertive Conduct

Rule 801(a) treats conduct intended as an assertion as hearsay. Assertive conduct includes sign language, nodding one’s head, and any other bodily motion intended to convey an assertion


2)      Nonassertive Conduct

Conduct that is not intended by the declarant to be an assertion is far more troublesome. The topic is often labeled “implied assertions,” but this is likely to be misleading. A common example is the person opening an umbrella as evidence that it is raining. The actor does not intend to make a statement about the weather, only to keep dry. Although the federal drafters recognized that nonassertive conduct may present some hearsay dangers, they believed that such conduct did not present a substantial risk of insincerity and should, therefore, not be classified as hearsay.


a)      Nonverbal & Verbal Conduct

Note that nonassertive conduct may be verbal as well as nonverbal.


3)      Intent-Based Definition

When a person says, “It is raining cats and dogs,” has the declarant make an assertion? Yes, he intended to state that it is raining hard, not that it was truly raining cats and dogs. As such, this should be considered an assertion for hearsay purposes.


4)      Silence

In some situations, silence can be an assertion. If the silence was intended to be an assertion, it can be hearsay. Silence is probative of guilt only if the implication of guilt reflects the accused’s belief and that belief affects reality. The argument is often made that if a party is accused, they will stand up for themselves if they are guilty.


5)      Assertions Implied from Other Assertions

An out-of-court statement offered not for its literal truth but for the truth of some proposition implied in it, should be considered hearsay as long as the validity of the implicit proposition depends on the existence and accuracy of a belief that the speaker of the actual statement apparently intended to convey.


6)      Carroll’s Analysis


What is an “ASSERTION”:

Intent by declarant to declare or communicate:

1)      The existence of facts, or an opinion;

2)      Something is so; an event happened;

3)      Ideas/Messages

4)      Descriptions or declarations

5)      “Rule of Thumb” –Ask, is it true or false?(If answer is, “ neither” it is not likely to be “assertive” – No factual content means unlikely to be assertive)

6)      Staged Photos/Videos are likely to be assertive


What is not an assertion?

1)      (Most) Questions

2)      (Most) Directive/Orders

3)      Spontaneous Exclamations


3 levels of INTENT TO ASSERT w/ video/photos:

(1) Staged film, photos or video – assertive – probably hearsay

(2) Photo/Video – No acting – True – Most likely not hearsay

(3) Surveillance/Hidden Video – Not Hearsay



E.     Answers to the Book’s Vignettes


1)      On the issue of whether D struck P, W’s testimony that she saw D strike P. Not hearsay.

2)      On the issue of whether D struck P, W’s testimony that X told her that he saw D strike P. Hearsay; offered to prove the truth of the matter asserted.

3)      On the issue of whether D struck P, W reads the entry that she made in her diary on the day of the alleged fight, “Today, I saw D strike P.” – This is hearsay, even though there was no intent to communicate this to anyone (diary). No intent to assert is needed if the statement is an assertion.

4)      On the issue of whether D struck P in self-defense, W testifies to X that she heard X say to D shortly before the fight, “You better watch out, P is out to get you.” – This is not hearsay. It is offered to show the effect it had on the listener, not the truth of the matter asserted.

5)      The same testimony as in #4 on the issue of whether P was the first aggressor in the fight with D. D offers W’s testimony. – This is hearsay. You have to make an inferential but it is still offered to prove the truth of the matter asserted.

6)      On the issue of whether X was a citizen, W’s testimony that she saw X swear allegiance to the United States as part of a citizenship ceremony. – This is not hearsay. It is a verbal act of independent legal significance.

7)      On the issue of whether Z was X’s sole devisee, X’s will in which it is written, “I leave all my worldly possessions to Z, who is the most loving and honest of my seven children.” – This is not hearsay; because it is in a will, it is a act of independent legal significance.

8)      The same will as in #7 on the issue of whether Z was more honest than his six siblings. – This is hearsay because it has no independent legal significance.

9)      The same will as in #7 on the issue of whether X loved Z more than he loved his other children. – Not hearsay, shows declarant’s state of mind.

10)  On the issue of whether X had drunk a 5th of whiskey before leaving the Happy Hour Bar, W’s testimony that just before he left he heard X say in a very slurred voice, “I got to go now – did pretty good, killed me a fifth of Mountain Jack in 45 minutes.” – This is hearsay; it is offered for the truth of the matter asserted.

11)  The same testimony as in #10 on the issue of whether X was drunk when he left the Happy Hour Bar. – This is not hearsay; offered to prove the effect on the listener.

12)  On the same issue as in #10, W’s testimony that she saw X enter a booth alone with a fifth of Mountain Jack, and that when she next passed the booth about 40 minutes later she noticed that there was only about one or two ounces left in the bottle. – Not hearsay; personal knowledge.

13)  On the same issue as in #10, W’s testimony that as X stood at the cash register she heard the cashier ask him, “Are you the one who downed that whole fifth of Mountain Jack?” – This is probably not hearsay. – It is ambiguous, depends on whether he is actually questioning or is asserting; what was he intending.

14)   On the issue of whether X, a child, was saddened when the cat knocked over his goldfish bowl, W’s testimony that X cried as he picked up the dead goldfish. – This is not hearsay; circumstantially shows the child’s state of mind.

15)  On the issue of whether P had suffered a disabling back injury in an auto accident, a movie taken by one of D’s investigators two months after the accident. The movie shows P shoveling snow and changing a tire. – This is not hearsay; it is a surveillance/hidden video and therefore not hearsay.

16)  On the issue of whether a burglar had entered a house before daybreak, testimony by W, a farmer, that she heard the cock crow about 15 minutes after she had been awakened by the sounds of an intruder and that her cock always crows when the sun rises. – Not hearsay, animal or machine sounds are not hearsay.

17)  On the issue of whether X and Y had been involved in some sort of wager, W’s testimony that she saw X and Y shake hands and heard X say, “It’s a bet.” – Not hearsay, this is ambiguous nonassertive conduct. As such, it is probably admissible.

18)  On the issue of D’s loyalty to the United States, testimony that the FBI, after a security check, had cleared D for access to top secret information. – This is hearsay because it is an assertion implied from another assertion. Have to make an inferential jump but it is still offered to prove the truth of the matter asserted.

19)  On the issue of whether X, who had moved to Hawaii some 12 months before, had the requisite domicillary intent to qualify as a resident for voting purposes, W’s testimony that X had once said to her, “The tropical breezes, the sun, the sand, the perfume of the plumerias, I know of no place that is nicer.” -  This is probably admissible and not hearsay because it is ambiguous as to whether this statement was assertive or not.

20)  On the same issue as in #19, W’s testimony that X had told her, “Because I lave Hawaii so much, I intend to stay here forever.” – This is hearsay; it is offered to prove the truth of the matter asserted. Opinion.



II.                Hearsay Exemptions: FRE 801(d)


A.     FRE 801(d)(1): Prior Statement by a Witness


1)      Carroll’s Analysis


801(d)(1)-  A statement is not hearsay if:

(1)    Declarant is a testifying witness at this trial.

(2)    Declarant can NOW be cross-examined concerning their prior statement.


                        Prior Statement is either:

(A)   Inconsistent with trial testimony AND the prior statement was given under oath subject to perjury; or

(B)   Consistent with trial testimony & offered to rebut charges of improper influence (If other side is attempting to show improper influence, etc.; prior statement must have been made before alleged influencing)

(C)   One of identification. [Questions about pre-trial line-ups are thus admissible]


2)      FRE 801(d)(1)(A): Prior Inconsistent Statements By Witness

The federal drafters have proposed that all prior inconsistent statements should be admitted if they satisfy the following four conditions for admissibility:

(a)    The declarant testifies, subject to cross examination, at the current trial;

(b)    the prior statement must be inconsistent with the witness’s trial testimony;

(c)    the prior statement must have been given under oath subject to penalty or perjury; and

(d)    the prior statement must have been made “at a trial, hearing, or other proceeding, or in a deposition.”


3)      FRE 801(d)(1)(B): Prior Consistent Statements by Witness

Prior consistent statements are admissible if offered to rebut a charge of recent fabrication or as substantive evidence. This rule only applies when the statements “were made before the charged recent fabrication or improper influence or motive.”


4)      FRE 801(d)(1)(C): Statements of Identification by Witness

A witness’s prior statements of identification of a person after “perceiving” that person is admissible as substantive evidence. In effect, this rule recognizes that the standard in-court identification of the accused as the perpetrator of the offense is more “show” than substance and that a prior identification is more reliable. So long as the witness is subject to cross-examination concerning the statement, the prior statement of identification is admissible under the exemption.



B.     FRE 801(d)(2): Admissions of Party-Opponents

This rule exempts admissions of party-opponents from the hearsay rule by defining admissions as non-hearsay. The rule recognizes five types of party admissions: [1] individual admissions, [2] adoptive admissions, [3] authorized admissions, [4] agent admissions, and [5] coconspirator admissions.


1)      Rationale

There are two primary reasons for this rule. First, the principal objection to hearsay evidence is that the party against whom the hearsay statement is offered has been denied an opportunity to cross-examine the declarant. A party-opponent cannot object on this ground, however, because he does not need to cross-examine himself. Second, the adversary system imposes upon the party the burden of explaining her prior statements.


2)      Carroll’s Analysis


801(d)(2) Admissions

A statement is not hearsay if:

Statement offered against a party and is:

(A)  Party’s own statement

(B)   Statement of another . . . adopted

(C)   Statement by a person authorized to speak/write on the subject [either to 3rd persons (press secretary) or back to the party (scientists in tobacco case)].

(D)  Statement by person employed by the party

a)      declarant was employee

b)      statement regarding matter within scope of employment

c)      made during employment relationship

(E)   Statement by party’s co-conspirator

a)      conspiracy existed

b)      declarant and party were members of conspiracy

c)      made during

d)      statement furthered conspiracy


3)      FRE 801(d)(2)(A): Individual Admissions

Any statement made at any time is admissible as an admission if (1) relevant and (2) offered by the opposing party, ranging from deposition testimony to casual statements made to friends. Individual admissions should not be confused with “declarations against interest.” Admissions need not have been against the interest of the declarant when made. Thus, a statement that is self-serving when made by a party may later be introduced at trial by an opposing party, whereas the declaration against interest exception turns on the adverse nature of the statement when made.



4)      FRE 801(d)(2)(B): Adoptive Admissions

A statement “adopted” by a party is admissible as substantive evidence if offered against that party. A party may expressly adopt the statement of a third person. More difficult issues arise when the adoption is circumstantial.


a)      Adoption by Use

Mere possession of a document is not adoption. However, use of the document is different. Wigmore wrote: “The party’s use of a document made by a third person will frequently amount to an approval of its statements as correct, an thus, it may be received against him as an admission by adoption.”


b)      Adoption by Silence

A party may adopt the statement of a third person by failing to deny or correct under circumstances in which it would be natural to deny or correct the truth of the statement. It is not sufficient that the statement was merely made in the presence of a party. It needs to occur in circumstances where it would be natural to respond by denying or correcting the statement.


c)      Correspondence

The failure to answer or correct a statement in a letter may be considered to be an adoption if, under the circumstances, it would have been natural to answer or object to the contents of the letter.


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

Statements made by a person authorized by a party to speak for it are admissible as substantive evidence if offered against that party. The rule governs only statements by agents who have speaking authority – e.g., attorneys, partners, and corporate officers. The rule covers statements made by agents to their principals (in-house statements) as well as statements made by authorized agents to third persons.


6)      FRE 801(d)(2)(D): Agent Admissions

Statements made by agents or servants (1) concerning a matter within the scope of their agency or employment, and (2) made during the existence of the agency or employment relationship are admissible as substantive evidence if offered against the party.


a)      Within Scope of Agency or Employment

The statement must relate to the declarant’s employment responsibilities. A truck driver’s statement about a truck accident in which he was involved are admissible but not statements about a SEC investigation.


b)      During the Time of Employment

Statements by disgruntled employees after discharge are not admissible.


c)      Proof of Agency

There must be proof of agency beyond the contents of the statement to establish the agency or employment relationship. In other words, a foundation for agency must be laid.


7)      FRE 801(d)(2)(E): Co-Conspirator Admissions

A coconspirator statements made during and in furtherance of the conspiracy is admissible as substantive evidence if offered against another conspirator. There are three requirements for admissibility: (1) there must have been a conspiracy in which the defendant and declarant participated; (2) the statement must have been made during the course of the conspiracy; and (3) the statement must have been in furtherance of the conspiracy.


a)      Proof of Conspiracy

The crime of conspiracy need not be charged in the indictment. This rule applies if the offering party established the existence of a conspiracy, which requires an agreement between two or more persons, and the statement must have been made while both the declarant and the defendant were members of the conspiracy.


b)      “During the Course” Requirement

The rule requires that the statement be made “during the course” of the conspiracy. In other words, statements made after the objectives have been achieved, but while the conspirators are attempting to avoid detection are inadmissible. However, this rule does not govern the admissibility of acts (not statements) engaged in during the concealment phase. Such acts may be admissible if relevant to prove the existence of the conspiracy.



Plan to commit                          objective of conspiracy                         Arrest

Conspiracy                                           is met or arrest interferes



During                                      Not during

                                             (Concealment Phase)


c)      “In Furtherance” Requirement

The statement must be made in furtherance of the conspiracy. Statements that are only casual admissions or merely inform the listener of the declarant’s activities are not made in furtherance of the conspiracy. However, statements that provide assurance, serve to maintain trust and cohesiveness among the conspirators, or inform each conspirator of the current status of the conspiracy do further the ends of the conspiracy and are admissible.


d)      Procedural Issues

The existence of the conspiracy must be established by evidence beyond the contents of the statement. Moreover, the standard of proof for determining the admissibility of the coconspirator’s statements is the “preponderance of evidence” standard. The existence of the conspiracy should be introduced prior to the statement (laying a foundation), however, it can be done after the statement is admitted. If the foundation is not laid in the course of the trial, a mistrial may be required.



III.             Hearsay Exceptions: FRE 803 (availability of the declarant is irrelevant!)


A.     Rationale for Hearsay Exceptions

All hearsay exceptions are based on some circumstantial guarantee of trustworthiness that is though to warrant admissibility notwithstanding the lack of cross-examination. Recall the dangers of hearsay: perception, memory, narration, and sincerity risks. The reduction or elimination of one of more of these risks typically supports an exception. Moreover, if the reduction or elimination of risk that is supposed to exist does not apply to the example at hand, chances are that the exception does not apply either. Additionally, most exceptions are also supported by a necessity or practical convenience argument.


B.     Rule 803(1): Present Sense Impression

This rule states that a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately therafter is admissible as a hearsay exception.


1)      Rule 803(1) Requirements

Rule 803(1) requires:

(a)    a statement describing or explaining an event or condition,

(b)    about which the declarant had firsthand knowledge, and

(c)    made at the time the declarant was perceiving the event or immediately after.


2)      Carroll’s Analysis

803(1): Present Sense Impression

(1)    Declarant perceives event AND

(2)    Makes statement while perceiving (or immediately afterwards)

(3)    Statement describes or explains event being perceived (opinions usually allowed)


3)      Rationale Underlying This Exception

The reliability of present sense impressions rests upon the declarant’s lack of time to fabricate, which reduces the risk of insincerity. Essentially, the theory is that substantial contemporanity of event and statement negative the likelihood of deliberate or conscious misrepresentation.


4)      Time Requirement

The statement must have be nearly contemporaneous with the perception of the event. The Federal drafters noted that “in many, if not most, instances precise contemproaneity is not possible, and hence a slight lapse is allowable.” However, this slight lapse is usually only “minutes.”


5)      Subject Matter Requirement

The statement must describe or explain the event or condition. Statements beyond descriptions or explanations indicate that the declarant has had sufficient time to think about the event, and as such defeat the lack of time to fabricate rationale.


6)      No Verification of Underlying Event by Testifying Witness

Nothing in this rule actually requires that the in court witness, in addition to the out of court declarant, have personal knowledge of the underlying event. For instance, a 911 operator can testify as to what the caller told her even though she does not have personal knowledge of the underlying event itself.


C.     Rule 803(2): Excited Utterances

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible as a hearsay exception. Rationale: The reliability of excited utterances is based upon the declarant’s lack of capacity to fabricate: “a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.”


1)      Rule 803(2) Requirements

Rule 803(2) requires:

(a)    a startling event;

(b)    a statement relating to that event;

(c)    made by a declarant with firsthand knowledge; and

(d)    made while the declarant was under the stress of excitement caused by the event; absence of time to fabricate.


2)      Carroll’s Analysis

803(2): Excited Utterances

1)      Startling event occurred & excites declarant

2)      Statement made while excited

3)      Statement relates to event

4)      Declarant has first hand knowledge


3)      “Startling Event” Requirement

The startling event requirement follows from the theory underlying the exception – without a startling event, the declarant’s capacity to reflect and fabricate will not be suspended. In other words, there must be some occurrence startling enough to still reflective faculties. Assaults and traffic accidents are common examples. Merely being upset is not enough.


4)      Time/”Under Stress” Requirement

There is no explicit “time element” for the rule. The statement may be admissible even if not contemporaneous with its exciting cause. Statement made after a substantial time has elapsed may be admissible so long as the declarant remained under the influence of the exciting event. Other factors of the “under stress” requirement to be considered include the nature of the condition or event, the age and condition of the declarant, and the presence or absence of self-interest.


a)      Response to a Question

A statement made in response to a question may fit within this exception if made under the stress of the startling event. Simple “what happened” questions are generally admissible, but if the question delve into other realms requiring the declarant to calm himself and think, these questions will not be admissible.





5)      Unidentified Declarants

The AC Notes indicate, “when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient.” In this situation, some corroborating evidence may be necessary for reliability.


6)      Subject Matter Requirement

The statement must “relate” to a startling event. This requirement is simply a refinement of the “under the stress of the excitement” requirement discussed previously. Statement that do not “relate” to the startling event indicate that the declarant is no longer speaking while under the influence of the event.


7)      Reawakened Excitement

Under 803(2), excitement can be reawakened or suspended. If you are attacked and then 6 months later, you see the man who attacked you, then the excitement of the attack can be reawakened. However, the memory element is still a problem. There are reliability problems; the courts will weigh these, but in most cases the reawakened utterance is let in.


8)      Present Sense Impressions Distinguished

The main distinction between 803(1) and 803(2) is that the reliability of present sense impressions rests upon the declarant’s lack of time to fabricate, while the reliability of excited utterances is based upon the declarant’s lack of capacity to fabricate. In addition, the time requirement is more stringent for present sense impressions than for excited utterances (i.e. – “slight lapse” for PSI while EU only requires that the declarant be under the influence of the excitement of the event, which could be thirty minutes later). Finally, the subject matter requirement also differs. A PSI must describe or explain the event, while an excited utterance is not so circumscribed – statements “relating to a startling event” are admissible.    



D.     Rule 803(3): Then Existing Mental, Physical or Emotional Condition

A statement expressing the declarant’s then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain and bodily health is admissible as a hearsay exception. Where the THEN EXISTING state of mind, emotion, sensation, or physical condition of the declarant is relevant, admissibility of statements of the declarant expressing such a fact of consequence to the litigation rests upon grounds of trustworthiness and necessity. Statements of memory or belief offered to prove the fact remembered or believed are not included within this hearsay exception, unless relating to the execution, revocation, or identification of terms of the declarant’s will.


1)      Rationale

The spontaneity of the statement reduces the risk of conscious fabrication. In addition, there are no memory problems because the statement is made contemporaneously with the condition, and the statement is often more reliable than later trial testimony.



2)      Carroll’s Analysis

803(3) Declarant’s Statement of his/her THEN EXISTING:

(1)    Physical Condition/Sensation


(2)    State of Mind/Emotion (intent, plan, motive, mental feeling)



(A)   Declarant felt that way at the moment, & by inference, at other times

(B)   Future conduct of declarant from present intention

(C)   NOT to infer prior conduct from memory/belief.


3)      To Prove a State of Mind that is a Material Fact

Under this rule, statements of presently existing state of mind are excepted from the hearsay rule – for example, the statement “I am depressed” in a suicide case. Statements by an accused may be offered under the exception to show that the accused did not have the requisite mens rea.


a)      Victim’s State of Mind.

A victim’s statement – i.e., “I am afraid of Vin Diesel” – is excepted from the hearsay rule because it shows state of mind. However, there will be relevance issues for admissibility because the victim’s state of mind is rarely a material issue.


4)      To Prove Future Conduct

Statements of present state of mind are also admissible to prove that the declarant subsequently acted in accordance with that state of mind. For example, a declarant’s statement, “I will revoke my will,” is admissible to prove that the declarant subsequently revoked that will. Such statements are less reliable proof of future conduct than of present intent because people frequently do not or cannot carry out their intentions. This, however, is a relevancy concern which is left to the jury in this context.


5)      To Prove Past Conduct

Rule 803(3) does not include statements of memory or belief to prove the fact remembered or believed except in cases involving the declarant’s will. In contrast to statements looking forward, statements looking backward raise all hearsay dangers.


6)      Present Physical Conditions

In addition to statements concerning present mental conditions, this rule covers statements concerning present physical conditions as well – i.e., “My back hurts,” “I am in pain.”


a)      Present not Past Conditions

The critical requirement is that the statement relate to a present condition and not to past conditions, pains or symptoms. It must be contemporaneous with the condition, not the event which caused the condition. “My back hurts” is admissible because it concerns a present physical condition, even though the condition may have been caused by a car wreck 6 months earlier. Statements of past physical conditions are governed by 803(4), which requires that such statements be made for the purposes of medical treatment or diagnosis.



E.     Rule 803(4): Statements for Purposes of Medical Treatment or Diagnosis

Statements describing present or past symptoms, pain, or sensations are admissible as an exception to the hearsay rule, if made by the declarant for the purpose of medical diagnosis or treatment. The assumption underlying this exception is that the desire for proper diagnosis or treatment outweighs any motive to falsify.


1)      Carroll’s Analysis

Declarant Statement for Diagnosis/Treatment

(1)    Past or Present

(A)  Symptoms, pain, sensations, medical history; or

(B)   Cause/Source of ailment (NOT FAULT)

(2)    Can be made to any person so long as it for the purpose of obtaining medical diagnosis/treatment.


2)      Subject Matter Requirement

This rule is limited to statements that describe “medical history, or past or pesent symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”


a)      Statements of Fault Not Allowed

Statements relating to the cause of the injury do not include statements of fault. For example, a patient’s statement that he was struck be an automobile would qualify but not his statement that the car was driven through the red light.


3)      Statements Made to Nonphysicians

Although the rule require that the statement be made for medical diagnosis or treatment, the statement need not be made to a physician. As such, “statements made to hospital attendants, ambulance drivers, or even members of the family might be included.”


F.      Rule 803(5): Recorded Recollections

Suppose a witness sees a car flee from the scene of a bank robbery and writes down the license plate number. Months or years later at trial, the witness cannot remember the number but testifies that she accurately wrote it down at the time of the robbery. Recorded recollection is the hearsay exception that the prosecutor would use to admit the writing. The rationale for recorded recollections is that there is trustworthiness “is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them.


1)      McCormack’s Requirements

For this exception to apply, the following four elements must be met:

(a)    the witness must have had firsthand knowledge of the event,

(b)    the written statement must be an original memorandum made (or adopted) at or near the time of the event while the witness had a clear and accurate memory of it,

(c)    the witness must lack present recollection of the event, and

(d)    the witness must vouch for the accuracy of the written memorandum.



2)      Carroll’s Analysis


Past Recollection Recorded – 803(5)

(1)    Witness unable to testify “fully & accurately” (can’t be refreshed)

(2)    Witness made OR adopted record while events were “fresh” on his/her mind

(3)    Record is shown to accurately reflect the witness’s first hand personal knowledge at the time made or adopted, pursuant to Rule 602

[Witness can read record to jury: Document itself can only be offered by opponent.]

[May be a tape recording.]

[May be recorded several days later so long as “fresh in memory”.]

[Witness Need not be author of writing; e.g., writing may be written by another and adopted by the witness.]


WHERE WITNESS DICTATES WRITING (Joint or “Cooperative” records)

If the witness is not author and does not actually adopt writing, both witness (declarant) and the person who recorded or transcribed the witness’ statement must testify; 1st witness (declarant) states his/her dictation was accurate, and 2nd witness (recorder) states the  declarant’s statement was accurately recorded.


3)      Recorded Recollection vs. Present Refreshed Recollection (Rule 612)

The difference between past recorded recollection and refreshed recollection is that with refreshed recollection, the party has present recollection of the events—but just needs refreshing. The testimony must rely on memory, the counsel can use anything to refresh the witness’s memory (and need not be “adopted” by the witness, and the witness’s memory must actually be refreshed (can’t just read from the document).


With Recorded Recollection (Rule 803(5)), the witness is testifying from a document, because the party does NOT have present recollection of the matter anymore and the testimony relies on the document (not the witness’s memory).


Carroll’s Recap of Present Refreshed Recollection:

(a)    Testimony of witness relies on memory

(b)    Any item may be used (at trial court’s discretion)

(c)    Item used is only used to refresh. – Not admitted into evidence.

(d)    Witness’s memory must actually be refreshed (cannot just read from the item)

(e)    Opponent may examine the item. Opponent may offer item used to refresh into evidence for impeachment purposes, and/or question the witness about the item.


4)      Time Requirement

The record must have been made or adopted close to the time of the event – “when the matter was fresh in the witness’s memory.”


5)      Preparation Requirement

If a witness makes a statement to a third person who prepares a record, the record is admissible if the witness verified the accuracy of the statement (“adopted”) at a time when the event was fresh in memory.


a)      Joint (Cooperative) Records

Even if the observer did not verify the record, the record may be admissible if the recorder testifies that the record contains an accurate account of the witness’s statement. In short, two witnesses must testify. According to the federal drafters, such “multiple person involvement in the process of observing and recording is entirely consistent with this exception.”


6)      Accuracy Requirement

This rule states that the record must reflect the witness’s knowledge correctly. The accuracy requirement may be satisfied by testimony that the witness routinely makes accurate record of the type involved in this case or would not have signed the document unless she believed it was accurate. Essentially, the witness must acknowledge at trial the accuracy of the statement.



7)      Memory Lapse Requirement

The witness’s recollection of the matter recorded must be insufficient for that witness to testify “fairly and accurately” at trial in order for this exception to apply. It is believed that the  absence of this requirement would encourage the use of statements carefully prepared for purposes of litigation, thereby negating the trustworthiness rationale for the exception.


8)      Trial Use

If a record qualifies as recorded recollection, the memorandum or record may be read into evidence (i.e. – asking the witness to read what is on the document) but may not itself be received as an exhibit unless offered by an adverse party.  There is also opportunity for cross-examination because the witness is there, in the courtroom.



G.     Rule 803(6): Regularly Kept Records

This rule recognizes a hearsay exception for records of regularly conducted activities. The exception is based on the assumption of self-interest; most businesses cannot operate for long without accurate records.


1)      Requirements

This rule has the following requirements:

(a)    a record of an act, event, condition, opinion or diagnosis

(b)    made at or near that time,

(c)    by, or from information transmitted by, a person with knowledge,

(d)    which was kept in the course of a regularly conducted business activity,

(e)    if it was the regular practice to make such a record,

(f)     as shown by the testimony of the custodian or other qualified witness or as provided under 902(11), 902(12), or statute,

(g)    unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.


2)      Carroll’s Analysis

Business Records 803(6)

(1)    Made at (or near) time of event recorded

(2)    Made by person with personal knowledge (or from information transmitted from a person with personal knowledge)


Informant (Supplier of information) acts in the regular course of business & recorder acts in regular course of business. [Johnson v. Lutz]

(4)    Unless circumstances show lack of trustworthiness.


3)      “Routine Records” Requirement

The rule requires that the record be the product of “the regular practice of that business activity.” This typically means that the record is the product of a routine practice.


4)      Time Requirement

The record must have been made at or near the time of the event. The time requirement is one of the conditions that ensures the reliability of business records.



5)      Firsthand Knowledge

The record must have been made (1) by a person with knowledge of the matter recorded or (2) from information transmitted by a person with such knowledge. The provision does not require that a person with knowledge be produced at trial or even identified. Moreover, the witness (e.g., custodian) laying the foundation for admissibility at trial is not required to have firsthand knowledge of either the recording or the underlying event.


a)      Multiple-Person Records

Some problems can occur when the supplier of information does not make the record but transmits the information to another person (the recorder) who make the record. If both the supplier and the recorder are part of the business, the record is admissible; even though this is double hearsay, the supplier is under a business duty to transmit the information and the recorder is under the duty to make the record. Therefore, both hearsay statements fall under the 803(6) statement. However, if a party who is not part of the business transmits, then the double hearsay problem is not covered by 803(6) and the statement of the non-business worker must fit under another exception in order to be admissible.


6)      Business Duty Requirement

If the supplier is not under a duty to transmit the information, the record is inadmissible. However, if the supplier is not under a duty to transmit the information, the record may nevertheless be admissible if the supplier’s statement falls within another hearsay exception (double hearsay).


1)      Important things to note:

a.       Diagnosis within hospital records can be objected to based on conjecture, even if it falls with a report that a person had a business duty to report

b.       In police records, there will be all sorts of things that a policeman is under NO duty to report—these items do NOT fit within this exception

2)      If there is no DUTY to report/submit a report, then the rule does NOT apply.

3)      Documents made in anticipation of litigation can be found less trustworthy and therefore not fall under this exception—be careful with arguing this too broadly, though. (Palmer v. Hoffman)


7)      Lack of Trustworthiness Clause

A record that satisfies the requirement for the rule may nevertheless be excluded “if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness,” This clause ties in the business duty requirement in some ways. For instance, a record, not prepared in the natural course of business, prepared with an eye towards litigation raises “untrustworthiness” concerns.


8)      Foundation Requirements for Business Records

The foundation for admissibility of business records may be shown by the testimony of a custodian or other qualified witness (would be impracticable in many situations to do otherwise – i.e., call every person who helped to author a 200 page annual report) or as provided by Rules 902(10) and (11), which make business records self-authenticating. (by signature on original, or duplicate accompanied by written declaration of qualified witness certifying authenticity).


H.    Rule 803(7): Absence of Business Records

The rule recognizes an exception for absence of a business record. The rule may be read in conjunction with 803(6). The drafters observed: “Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. While probably not hearsay as defined in 801, decisions may be found which classify the evidence not only as hearsay but also as not within any exception. In order to set the question at rest in favor of admissibility, it is specifically treated here. The same foundational requirements apply to this as with regular business records—but you must also show that an adequate search was made for the missing reports/records.


I.       Rule 803(8): Public Records

The Federal Rules use the term “public records” to refer to governmental records, sometimes also known as official records. Justification for this exception  is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.


1)      Three Types of Records

FRE 803(8) provides, without regard to the unavailability of the declarant, a hearsay exception for records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

(A)  the activities of the office or agency; or

(B)   those recording matters observed pursuant to a legal duty [EXCLUDING, however, in criminal cases, matters observed by police officers and other “law enforcement personnel”], and

(C)   investigative reports.


There are two limitations:

(a)    public records otherwise admissible may be excluded if there is a lack of trustworthiness; and

(b)    certain type of police records and records of law enforcement personnel in criminal cases.


a)      Activities of the Office

This first group includes the most straightforward type of public records – records of the activities of the office itself. An example is the record of receipts and disbursements of the Treasury Department.


b)      Matters Observed per Legal Duty

This group consists of matters observed and reported pursuant to a duty imposed by law. Rainfall records of the National Weather Service are illustrative.


c)      Investigative Reports

These reports are admissible in civil actions and against the prosecution in criminal cases. Examples of these reports are those dealing with the causes of a mine disaster issued by the Bureau of Mines or airplane crashes issued by the FAA. Moreover, the Supreme Court has adopted a liberal view of admissibility: “factually based conclusions or opinions are not excluded from the scope of this rule.”


2)      Carroll’s Analysis

Records of Public Offices or Agencies (federal and nonfederal) are not excluded by the Hearsay Rule if the records set forth:

(A)  the activities of the office or agency; or

(B)   matters observed & reported PURSUANT TO A LEGAL DUTY are admissible in CIVIL CASES BUT police and law enforcement personnel observations are inadmissible in criminal cases.

(C)   Factual findings and opinions (evaluative reports) resulting from investigations authorized by law

(a)    admissible in all cases except against Defendant in CRIMINAL CASES

(b)    Unless not “TRUSTWORTHY”


3)      Police Records Exception

The rule specifically excludes police reports in criminal cases. According to the Senate Committee Report, the police records exclusion was based on the belief that “observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.”


a)      Routine Non-adversarial Records

However, most federal courts have adopted a flexible approach, holding that the police records exclusion does not apply to all police records. For example, a computer report containing the identification numbers of stolen vehicles, a state prison fingerprint card, and a Customs Service computer printout of license plates of cars crossing the border have all been admitted as routine, non-adversarial records.


4)      Can 803(6) [Business Records] be used if 803(8) cannot?

There is often overlap between the two exceptions. Essentially, the courts are split. However, if a statement is specifically excluded because of 803(8), the offeror will have a difficult time convincing a judge to allow it under the less stringent 803(6).


5)      Trustworthiness Clause

Public records otherwise admissible under 803(8) may be excluded if the “source of information or other circumstances indicate lack of trustworthiness.” This provision is identical to the one found in the business records exception and serves the same purpose.


6)      Business Records Compared

The public records exception does not require that the record be prepared at or near the time of the event recorded. In other words, delayed entries may be admissible. Nor does a public record need to be a regular or routine record. Recall also, however, that records that are inadmissible under the police records exclusion of the public records exception are also not admissible as business records.



J.      Rule 803(18): Learned Treatise

An attorney can have expert treatises in order to cross-examine an expert witness and have the differing views in those treatises read to the jury.


K.    Rule 803(21): Reputation as to Character

Reputation of a person’s character among associates or in the community are note excluded, even though the declarant is available.


L.     Rule 803(22): Judgment of a Previous Conviction

Evidence of a final judgment entered after trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year (a felony), to prove any fact essential to sustain the judgment, but not including when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.


IV.              Hearsay Exceptions – Unavailable Declarant: FRE 804


A.     Rule 804(a): Definition of Unavailability

This rule contains five conditions of unavailability. The list is illustrative, not exclusive. The determining factor is the unavailability of the defendant’s testimony, rather than the unavailability of the declarant. Thus, if a declarant is present in court but claims a valid privilege, refuses to testify, or suffers a lack of memory, the declarant’s testimony is unavailable, and the Rule 804(b) exceptions apply.


1)      FRE 804(a)(1): Claim of Privilege

A declarant is unavailable for the purposes of 804(b) exceptions if exempted by a court ruling on the ground of privilege. The most common example is a declarant who claims the Fifth Amendment privilege against self-incrimination. Other valid privileges include spousal privilege, attorney/client privilege, etc.


2)      FRE 804(a)(2): Refusal to Testify

If a claim of privilege is invalid, but a witness still refuses to testify, the unavailability requirement is still met. The witness may end up being held in contempt. The rule does not, however, require the imposition of contempt as a condition for finding the declarant unavailable – only an order to testify is required.


3)      FRE 804(a)(3): Lack of Memory

If the declarant testifies to a lack of memory, the declarant is unavailable for purposes of 804(b). However, lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination. As such, the trial judge can eyeball the witness and “may choose to disbelieve the declarant’s testimony as to his lack of memory.”


4)      FRE 804(a)(4): Death or Illness

A declarant is unavailable to testify because of death or then-existing physical or mental illness or infirmity. However, the Confrontation Clause may impose a stricter unavailability standard, at least for former testimony.


5)      FRE 804(a)(5): Unable to Procure Testimony

A declarant is unavailable if the proponent has been unable to procure the declarant’s attendance. This rule governs the situation in which the declarant’s present whereabouts are unknown or the declarant is beyond the subpoena power of the court. This essentially means that  the court can not get the testimony through service of process, by “other reasonable means, or through deposition.


6)      Carroll’s Analysis of Unavailability

Witness is “Unavailable” if:

1)      Asserts Privilege & Court Ruling

2)      Refusal After Court Order

3)      Testifies that he Can’t Remember

4)      Dead/Sick/Mentally Ill

5)      Absent and Can’t get by:

a.       Process

b.       Other reasonable means

c.       Can’t depose and offering under (b)(2),(3), or (4)



B.     FRE 804(b)(1): Former Testimony

In certain circumstances, former testimony, sometimes referred to as prior testimony, is admissible as an exception to the hearsay rule. Note also that prior testimony may also be admissible under other rules, for instance to show motive or opportunity, etc.


1)      Carroll’s Analysis

Not excluded by hearsay if declarant unavailable AND

(1)    Former testimony

(a)    Given in prior hearing . . . (Subject to perjury and made under oath)

(b)    Party offered against NOW (or a predecessor in interest) must have been a  party in the prior case before

(c)    Party offered against now had opportunity & motive to “develop” (“develop” meaning: (i) cross-examination, (ii) direct examination or (iii) re-direct examination)


2)      Opportunity to Examine

This rule only requires an “opportunity” to examine, not actual examination. Failure to examine for tactical reasons does not affect admissibility. Moreover, an opportunity for direct or re-direct examination suffices; cross-examination is not required.


3)      “Against Whom” Requirement

The ACN state that “under the exception, the testimony may be offered (1) against the party against whom it was previously offered or (2) against the party by whom it was previously offered.” Essentially, this means that as long as the party against whom the testimony is offered (or a predecessor in interest) was a party to the former hearing and had an opportunity to examine the witness, the rule is satisfied.



Person sues Truck Driver. – Truck Driver gives testimony at that trial then dies.

Subsequently, Person sues TRUCK CO. (TD’s employer). Person can not get TD’s testimony into evidence because TRUCK CO. was not a party to the previous trial and had no chance to examine the witness. However, TRUCK CO. could introduce this testimony against Person because he was a party to the previous trial.


C.     FRE 804(b)(2): Dying Declarations

The exception for dying declarations is based on (1) necessity (i.e., the unavailability of the witness) and (2) a circumstantial guaranty of trustworthiness. The theory is that people would not want to die with a lie on their lips.


1)      Carroll’s Analysis

Dying Declaration is:

a)      In homicide/civil cases, and

b)      Made with personal knowledge, and

c)      Belief that death is imminent, and

d)      Concerns cause/circumstances of death


2)      Not Conditioned on Declarant’s Death

Admissibility is not conditioned upon the declarant’s death. Any of the conditions of unavailability is sufficient. In other words, the person could make the statement believing that death was near but later recover. If that person is in France at the time of trial and refuses to return, the unavailability requirement is satisfied.


3)      “Imminent Expectation of Death” Required

The statement must be made while believing that death was “imminent.” This requirement follows from the theory underlying the exception; a declarant who does not believe that death is imminent may not feel compelled to speak truthfully. Furthermore, it must be shown that the declarant in fact believed or had reason to believe that he was dying – this can be done through declarant’s own statements.


4)      Subject Matter Requirement

Only statements concerning the cause or circumstances of what the declarant believed to be his impending death are admissible. Statements beyond cause and circumstances indicate that the declarant may no longer be acting under an expectation of imminent death.


5)      Type of Case

Under this rule, dying declarations are only admissible in homicide cases and civil cases. They remain inadmissible at criminal trials other than homicide cases.


HYPO [will be on the exam] –

A bank is robbed; the bandit shoots a pedestrian as he is leaving. The pedestrian is bleeding; policeman comes up to him. Pedestrian says “I am shot and dying, but I regognize Bill Smith as the one who shot me.” Pedestrian survives the gunshot but dies of a heart attack before trial. Can the prosecution offer the statement of pedestrian as a dying declaration? No – can not get in; he believed that he was dying. It does not matter that he did not die from that injury. However, this is not a homicide case; it is an attempted homicide case, therefore not admissible.

What if it was a civil suit for damages? Then yes, the “dying declaration” can get in because it is the right type of case.



D.     FRE 804(b)(3): Statements Against Interest

The rationale for the admission of declarations against interest, even though the statement is hearsay, is based on (1) necessity (i.e., the unavailability of the declarant) and (2) a circumstantial guaranty of trustworthiness that eliminates the risk of insincerity. The Supreme Court put it this way: “This Rule is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.” It is important to remember two things: first, the declarant MUST BE UNAVAILABLE; second, FIRSTHAND KNOWLEDGE on the part of the declarant is required.


1)      Carroll’s Analysis

804(b)(3): Statement against interest of declarant IS NOT EXCLUDED BY HEARSAY RULE IF:

(1)    At the time of making statement, the statement was so contrary to the declarant’s:

(a)    Penal Interest (exposure to criminal liability)

(b)    Tort/Contract/Statutory Interest (exposure to civil liability)

(c)    Pecuniary Interest, or

(d)    Proprietary Interest, or

(2)    That a reasonable person wouldn’t make statement unless true – objective test

(3)    “Criminal Liability” that exculpates accused must be corroborated to indicate trustworthiness.


2)      “Against Interest” Requirement

Determining whether a statement is, in fact, against interest at the time it is made requires an examination of the context in which the statement was made. For example, a statement acknowledging a debt of $500 would, under most circumstances, be a statement against the party’s pecuniary interest. If, however, the declarant made the statement while disputing a $1000 debt (and the statement is offered to prove that the debt was only $500), the statement is not against interest. By its terms, the rule requires the “against interest” standard to be judged from the perspective of a “reasonable” person.


3)      Declarations Against Penal Interests

At common law, declarations against penal interests were not admissible for the following reasons: (1) publicized crimes can attract false confessions; (2) a criminal on his deathbed may seek to help out his buddies or (3) the report of what an unavailable speaker said might be a lie.  However, the Federal drafters rejected the common law position but then added a corroboration requirement as a safeguard against fabricated confessions.


a)      Corroboration Requirement

FRE 804(b)(3) imposes a corroboration rule when declarations against penal interest are offered in criminal cases to exculpate the accused. ADDITIONALLY, the federal cases have imposed this corroboration requirement when offered by the prosecution as well when applied to inculpatory statements. How is the corroboration requirement satisfied? A number of relevant factors must be considered, including:

-          the declarant’s motive in making the statement and whether there was a reason to lie;

-          whether the declarant repeated the statement and did so consistently;

-          the party or parties to whom the statement was made;

-          the nature and strength of the independent evidence relevant to the conduct in question.


4)      Collateral Statements

A declaration may have both self-serving and disserving aspects. When assertions are SEPARABLE, the court has three options: (1) to admit the entire declaration on the strength of the part which is disserving, (2) to admit the entire statement if the disserving part predominates and to exclude it entirely if the self-serving part predominates, (3) to admit only those parts of the statement that are disserving. – Essentially, American courts usually chooses the second or third option.


a)      Williamson v. United States

In this case, the court chose the third option, holding that the word statement, as used in the rule, referred not to global disclosures by a person but to each particular assertion that a speaker made. According to the Court, the task is to examine the assertions separately to determine whether each is so contrary to an interest specified in 804(b)(3) that a reasonable person would not have made the statement unless she believed it was true. – The fact that a statement implicating another is closely associated with a self-implicating statement does not make it admissible. – It is still too early to tell how influential this decision will be.



b)      Carroll Says

Difficult questions of whether an associated or collateral statement is part of the “against interest” statement is for the trial judge to decide according to his discretion.


5)      Does not Cover Statements Against “Social Interest”

As originally proposed by the Supreme Court, the federal rule also covered declarations against social interest, that is, a statement making the declarant “an object of hatred, ridicule or disgrace.” Congress rejected this provision, but some states have adopted it.


6)      Distinguished From Party Admissions

The admissions exception, unlike the exception for statements against interest, does not require unavailability or firsthand knowledge, and admissions need not be against interest when made. In these ways, it is broader than the statement against interest. It is narrower in that an admission is only admissible against the person who made the statement or against a person whose relation to the speaker makes her responsible for what the speaker has said. Keep in mind that there is no such thing as an “admission against interest.”


7)      Ted Bundy HYPO

Ted Bundy gave an interview the night before execution. During the course of the interview, he admits to killing several other women. Assume Bundy says, “I killed Doreen in Colorado;” he describes the girl and the killing; he is then executed. Assume a person in Colorado is charged with the killing of Doreen. Can he offer into evidence the confession of Bundy on video? (1) First of all, it is hearsay; it is offered for the truth. (2) Is it a dying declaration? It is not the cause and circumstances of his own death.(3) Is this “against interest”? No; he is about to be executed, so in this context, he is about to be executed and he will not be subjected to any criminal liability. (4) This would probably come down to the CONSTITUTIONAL right to put on a defense – not any rule of evidence.           

Essentially, if the statement if offered to exculpate an accused, there must be evidence to corroborate the story. What if it was the exact opposite – and Bundy admitted that D helped him? The rule does not say that it must be corroborated, but most courts have assumed that this corroboration must exist.



E.     FRE 804(b)(4): Statements of Pedigree


1)      Carroll’s Analysis

804(b)(4): Statements of Pedigree

(A)   Declarant’s own pedigree (requires blood relation)

(B)   Another’s pedigree if declarant was related or “intimately associated with family”


2)      Other Considerations

Once again, the DECLARANT MUST BE UNAVAILABLE and must have firsthand knowledge. Moreover, a person “intimately associated with the family” can be someone like a maid, servant, close family friend, etc.




F.      FRE 804(b)(5): Forfeiture by Wrongdoing

This exception essentially allows a statement made by a witness who is unavailable to the court to be admissible if the declarant’s unavailability was the result of an action of the party in opposition – i.e. – killing or intimidating a witness. This Rule is likely to encourage court’s to be more willing to hold parties, especially criminal defendants, responsible for the unavailability of people who might have been expected to testify against them.


G.     FRE 807: The “Catch-All” Hearsay Rule (Residual Exception)

This is a generic exception when no other exception applies; it has four substantive requirements:

(1)    the testimony must be found to have a guaranty of trustworthiness

(2)    the statement must be relevant and material – not on a minor point

(3)    the statement must be needed – there must not be any other evidence that is more probative on this point;

(4)    the interest of justice requires admission.

One procedure requirement:

(1)    File notice that you intend to offer the statement under the catch-all 807 rule; must disclose the contents of the statement and must give name and address of declarant.


NOTE: ALABAMA has no Catch-All exception rule.



V.                 Rule 805: Hearsay within Hearsay

Hearsay 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 the FRE.


1)      The most common example of this is a written report that contains someone’s oral out-of-court statement.

2)      Also called “double hearsay” or “multiple hearsay”


VI.              Rule 806: Attacking and Supporting Credibility of the Declarant

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted into evidence, the credibility of the declarant may be attacked, and if attacked, may be supported , by any evidence that would be admissible for those purposes if the 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.



§11: Impeachment and Credibility


I.                   Carroll’s Analysis of Impeachment Based on Character for Truth, Untruthful Conduct and Convictions


608(a) – Reputation of opinion Re: “Character for truthfulness or untruthfulness” – Impeaching party may do so with EXTRINSIC TESTIMONIAL EVIDENCE


608(b) – Bad Acts with No Conviction

(1)    If probative of truthfulness or untruthfulness

(2)    Cross-X at Court’s discretion

(3)    Good Faith basis for inquiry


CROSS-X ONLY – No extrinsic evidence of truthful or untruthful character


609 – Bad Acts with Conviction (4 types of convictions)

1) Felony NOT involving “Dishonesty or False Statements”


            - Witness – Balancing is same as 403

            - Criminal Defendant = must be more probative than prejudicial (50-50 = NO)

            609(a) Balancing Factors:

(1)    Probativeness on veracity (How probative on issue of truthfulness)

(2)    Time: Is it recent? (After 10 years, generally can not be used)

(3)    Similarity with charged offense – more similar = more probative

(4)    Impartiality of D’s testimony

(5)    Centrality of credibility in the case


2) Felony or misdemeanor involving dishonesty and false statement

= ALWAYS ADMITTED – No balancing unless more than 10 years old.


3) Misdemeanor NOT involving dishonesty or false statement = Never Admitted


4) Juvenile Adjudication = Generally not admissible

(Crim. Accused – Never; Crim. Witness = if necessary)



II.        FRE 608(a): Character for Truth


A.     Rule 608(a), Generally; Reputation and Opinion

This rule permits the use of opinion and reputation evidence to show a witness’s untruthful character, including that of the accused. The limitation to veracity (truthfulness) is intended to “sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less attractive.”


2)      Foundational Requirements

Before reputation evidence is permitted, a foundation must be laid showing that the character witness is acquainted with the principal witness’s reputation in the community. A similar foundation is required before a witness may express an opinion.



III.             FRE 608(b): Prior Acts of Untruthfulness (No Conviction)


A.     Rule 608(b) Requirements

Specific instances of conduct are admissible only if:

(1)    the conduct reflects untruthful character;

(2)    its probative value outweighs the danger of unfair prejudice;

(3)    a good faith basis for inquiry exists; and

(4)    the evidence is introduced on cross-X (and not through extrinsic evidence)


B.     Truthfulness Requirement

Only prior acts probative of untruthful character are admissible. For example, a witness’s falsification of an application for a marriage license, college admission, or unemployment benefits falls within this rule. In contrast, drug assaults do not.


C.     Rule 403

The admissibility of Rule 608(b) evidence is entrusted to the discretion of the trial judge per Rule 403. It should be noted that the danger of unfair prejudice is acute if the witness is the criminal defendant.


D.     Good Faith Basis Requirement

The party inquiring into specific instances of conduct must have a good faith basis-in-fact for asking the question. This is especially true in criminal cases where the unfair prejudice may be great. Essentially, attorney can not ask a false question in an attempt to tarnish the witness.


E.     Extrinsic Evidence

This rule specifically prohibits extrinsic evidence in this context – for example, the testimony of other witnesses who had observed the conduct – even if the testifying witness denies the conduct on cross-examination. This restriction is intended to avoid time-consuming mini-trials on purely credibility issues.


F.      Other Theories of Admissibility

608(b) does not bar admissibility if the proffered evidence is relevant for some other purpose. For instance, if evidence is admissible for impeachment by bias, then the court will not have to decide the 608(b) issue.


G.     Character Witnesses

If a character witness testifies about the principal witness’s character for truth and veracity, pursuant to Rule 608(a), the character witness may be asked on cross-examination, subject to the trial court’s discretion, about specific instances of conduct on the part of the principal witness. The essential purpose is to test the character witness’s qualifications to testify about the principal witness’s character. This type of cross-examination is comparable to that permitted by Rule 405(a) when a character witness testifies on the merits, except only specific instances relating to truthfulness are permissible here.







VII.           FRE 609: Untruthful Character – Prior Conviction


A.     Overview

FRE 609 governs the admissibility of evidence of prior convictions offered for impeachment to show untruthful character. This rule applies in both civil and criminal cases, and it applies to the impeachment of any witness, including a criminal defendant.


1)      Other Theories of Admissibility

If prior conviction evidence is offered under an impeachment theory other than untruthful character, Rule 609 does not apply. For example, if the evidence of a prior conviction is used to show bias, then 609 will not be applied.]


B.     Convictions Only

FRE 609 applies only to convictions. In addition, convictions based on no-contest pleas should be admissible. However, arrests and indictments are not admissible under FRE 609. The conduct that is the basis for the arrest or indictment, however, may be admissible pursuant to 608(b) if it reflects untruthful character.


C.     Trial Court’s Discretion

FRE 609 recognizes the trial court’s discretion to exclude prior convictions in some (but not all) circumstances. Thus, FRE 609(a) limits the types of convictions that are admissible to (1) crimes punishable by death or imprisonment in excess of one year (“felonies”) and (2) crimes of dishonesty and false statement, regardless of punishment.


D.     Prior “Felony” Convictions of the Accused

Under FRE 609(a), prior convictions involving crimes punishable by death or imprisonment of one year may be admissible against a criminal defendant. The authorized maximum punishment must be greater than one year; as such, the actual punishment imposed is not determinative. Admissibility is not automatic, however; it is subject to the trial court’s discretion. Only if the probative value of the prior conviction outweighs the unfair prejudice to the defendant is the evidence admissible.


1)      Relevant Factors


a)      Nature of the Prior Crime

Note that some prior offenses falling outside the crimen falsi classification reflect untruthful character more than others. For example burglary is more probative of truthfulness than is assault.


b)      Age of Prior Conviction

A one-year old conviction is more probative than an eight-year old conviction.


c)      Similarity of Crimes

The similarity between the prior offense and the charged offense is a relevant factor.




d)      Need for the Accused’s Testimony

If the defendant is the only person who can provide defense evidence, the need for his testimony is greater, and the argument for exclusion of the prior conviction is stronger.


e)      Centrality of Credibility at Trial

If the case boils down to a “swearing contest” between two witnesses, one of whom is the accused, it is important for the jury to know of any evidence affecting credibility, and thus the argument for admission of the prior conviction is greater.


2)      Balancing Factors

The treatment of the accused under 609(a)(1) differs in one important respect from that of other witnesses. Impeachment of a witness other than the defendant is more readily permitted – exclusion of the prior conviction is required only when probative value is SUBSTANTIALLY outweighed by unfair prejudice. [Rule 403] The word “substantially” is not in Rule 609(a)’s internal balancing scheme, thus making admission more difficult. [50-50 = No admission]. If unfair prejudice is equal to or only slightly greater than probative value, then the evidence is not admitted against the defendant, where it would be against any other witness.


E.     “Felony” Convictions of Other Witnesses

Under FRE 609(a)(1), prior “felony” convictions of witnesses other than an accused may be admissible – i.e., witnesses in civil cases and prosecution and other defense witnesses in criminal cases. Admissibility is not automatic; it is subject to the trial court’s discretion under FRE 403.


F.      Crimes of Dishonest and False Statements

Under FRE 609(a)(2), prior convictions involving crimes of dishonesty or false statement are automatically admissible. The trial court has no discretion to exclude these convictions. The principal problem is how to define “dishonesty.” Essentially, the following crimes are included: perjury, false statement, criminal fraud, embezzlement, false pretenses, or “any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.”


G.     FRE 609(d): Juvenile Adjudications

Juvenile delinquency adjudications are generally not admissible to impeach. Traditionally, juvenile records have been considered confidential.

-          May be admissible against a witness other than the accused if the conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the issue of guilt or innocence.


H.    FRE 609(b): Ten-Year Limit

Evidence of a prior conviction that otherwise satisfies the criteria of 609(a) is generally inadmissible if more than ten years has elapsed since the date of (1) conviction or (2) release from confinement, “whichever is the later date.”



1)      Exception

An exception permits the use of convictions over ten years old if:

(1)    the proponent provides sufficient advance written notice to the adverse party; and

(2)    the court determines, based upon “specific facts and circumstances,” that the probative value of the evidence substantially outweighs its prejudicialeffect


I.       Methods of Proof

Typically, the evidence of prior conviction is elicited on cross-examination. Generally, only - (1) the nature of the crime, (2) the time of conviction, and (3) punishment – are admissible – aggravating circumstances are not. A record of conviction may also be used. The rule does not bar counsel from bringing out the evidence on direct examination for the purpose of lessening the impact.


1)      Explanation

609 does not specify whether the witness, once impeached with a prior conviction, may offer some kind of explanatory comment. Offering an explanation is not without risks because it may “open the door” to rebuttal evidence, including cross-examination of the details of the crime.



VIII.        Bias Impeachment – No Federal Rule


A.     Bias – Generally

A witness’s bias, interest, partiality, or corruption is always relevant for impeachment because it goes straight to the credibility of the witness. Bias can be shown through extrinsic evidence or specific instances of conduct. There are two broad categories of bias:


1)      Relationship Between Witness and Party

A Relationship between the witness and one of the parties may be evidence of bias. The relationship may be a favorable one, such as familial, employment, business, sexual, or other relationship, or it may be a hostile relationship, caused by prior fights and quarrels. Fear may also be an impeaching factor.


2)      Relationship Between the Witness and the Litigation

A relationship between the witness and the litigation also may be evidence of bias – such as a financial interest in the case, or a related case. One of the most common examples is a prosecution witness who is offered immunity or a reduced charge in exchange for testifying against the defendant.


B.     Foundational Requirement

Typically, bias impeachment is done at cross-examination. Most jurisdictions require that a foundation be laid on cross-examination before extrinsic evidence of bias is admissible. Stated another way, the examiner must question the witness about the bias during the examination or be foreclosed from presenting the testimony of other witnesses (extrinsic evidence) on the issue.





C.     Extrinsic Evidence

The Advisory Committee Notes indicates that Rule 403 should control whether extrinsic evidence to prove bias will be allowed. This makes sense where the witness admits bias on cross-examination, thus eliminating the need for extrinsic evidence.



IX.              Impeachment by Contradiction

A.     Generally

No FRE for this concept; it deals with the CONDUCT of the witness (whereas Rule 613 deals with statements). But, generally, evidence realizes the logical relationship between factual credibility and general credibility. Therefore, if some of a witness’s testimony is factually incorrect, proof that those portions were wrong could support a conclusion that the other parts of the testimony were also false. The key here is that it deals with inconsistent FACTS.


B.     Limitations

A party may only introduce extrinsic evidence of proof that particular details of a witness’s testimony are false, if those details have an independent basis of relevance to the issue at trial


1) The Collateral Matter Rule

Prohibits the use of extrinsic evidence that has no independent basis of relevance in order to impeach a witness based on the contradiction of facts.  Evidence that will only show a mistake or false statement in something a witness has said about a collateral topic is prohibited from being introduced extrinsically.


2) Why is this?

If every even slight mistake was allowed in, the cost to the litigation system would largely outweigh any benefit.


X.                 Impeachment: Sensory and Mental Defects


A.     Generally

There is no federal rule on this type of impeachment. Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach – for example a nearsighted person sans eyeglasses identifying a person at a distance. This concept deals with perception, memory, & accuracy of description.


B.     Mental Condition, Drug Abuse and Alcoholism

In some cases, these mental defects may come into play but very rarely. If a person is under the influence of drugs or alcohol at the time of perception, this may be used to show incapacity; also, if a person’s mental conditions affects their ability to perceive an event accurately, this may be relevant to credibility. Usually, a defect must affect the perception as it related to the case at hand or it will not be relevant. The fact that a witness is a drunk is not relevant to their perception of an event UNLESS they were in fact drunk at the time of the event.


***The drug or alcohol abuse MUST BE directly related to the witness’s ability to perceive at the time of the incident or during testimony at trial.


C.     Extrinsic Evidence

As for extrinsic evidence, there is no hard and fast rule—but it can be developed through opinion testimony and through specific examples. Sensory and mental defects can be effectively disclosed through cross-examination, in which case the admissibility of extrinsic evidence should be regulated by the trial court pursuant to Rule 403.



XI.              FRE 613: Prior Inconsistent Statements


A.     Rationale

The rationale behind Rule 613 is self-contradiction. Any prior statement, whether oral, taped, or written, and whether sworn or unsworn, may be used to impeach. It must, however, be the witness’s statement, not a 3rd party’s statement. A prior inconsistent statement is when a witness says something in testimony but has also said or written something earlier that conflicts with the testimony just given.



1) Is the statement inconsistent?

2) Have you satisfied Rule 613(b)?

3) Does the testimony fall within Rule 403?


B.     Difference Between Rule 801(d)(1)(A) and Rule 613

Rule 613 offers a prior inconsistent statement to impeach a witness. It is not offered for the truth of the matter asserted. Under Rule 801(d)(1)(A), the prior inconsistent statement is offered for its truth – as a substantive statement.


C.     FRE 613(a)

This division is concerned with written or oral statements. It provides that a prior written or oral statement need not be shown to a witness as a prerequisite to an examination on that statement. The rule provides, however, that the opposing counsel has a right to inspect the statement upon request, a provision “designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.”


D.     Extrinsic Evidence


1)      Common Law/Alabama Rule

At common law, a witness must have been afforded an opportunity to explain or deny a prior inconsistent statement BEFORE extrinsic evidence of that statement was admissible. Typically, on cross-examination, counsel would direct the witness’s attention to the time when, the place where, and the person whom the statement was made. This requirement is fairer to the witness and saves time because the other side can attempt to rehabilitate on redirect examination rather than recalling the witness later in the trial. Moreover, there may be no need to introduce the extrinsic evidence if the witness acknowledges the inconsistency.


a)      “Collateral Matters”

Furthermore, even if a proper foundation had been laid on cross-examination, extrinsic evidence was admissible at common law ONLY if it did not involve a “collateral matter.” Under most modern courts, however, Rule 403 applies.


2)      FRE 613(b)

The Federal Rule does not require that the witness be afforded an opportunity to explain or deny before extrinsic evidence is introduced, so long as the witness is afforded such an opportunity AT SOME TIME during the trial. Thus, in federal practice, a foundation need not be laid when the witness first testifies.


E.     Specific Contradiction

Can a witness be called to specifically contradict the testimony of another witness? Apply RULE 403 to decide. If the contradiction concerns an issue of little importance, undue delay or waste of time would probably prevent the testimony. However, if it involved a issue of importance in the case, the testimony may be admissible.



XII.           FRE 610: Religious Belief

This rule provides that the “nature” of a witness’s religious beliefs or opinions is not admissible wither to impeach or support the witness’s credibility. However, this rule does not prohibit evidence of religious beliefs under a different theory of impeachment – for example, by showing bias.



XIII.        Rehabilitation


A.     Generally

As a general rule, rehabilitation evidence must directly answer the impeachment evidence. But, once the character for truthfulness has been attached, reputation or opinion testimony is permitted.


B.     Untruthful Character: FRE 608(a)(2)

Once a witness’s character for truthfulness has been attacked, opinion and reputation evidence showing that the witness has a good character for truthfulness is admissible. If the principal witness’s character has been attacked under (1) Rule 608(a) (opinion or reputation); (2) Rule 608(b) (specific instances); or (3) Rule 609 (prior convictions), rebuttal evidence of truthful character is admissible.


C.     Prior Consistent Statements

In some circumstances, a consistent statement may rehabilitate. Rule 801(d)(1)(B) permits the admission of consistent statements “to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” This rule makes consistent statements substantive, rather than evidence merely affecting credibility.


***Case law limits admissions to those made before the motive to fabricate arose.


D.     Carroll’s Analysis


Rehabilitation – Evidence with no other purpose than to support/enhance credibility


(1)    Can’t support/rehab. a witness until they have been attacked/impeached (by the other party)

(2)    Support/Rehab. must respond to method of attack


Attack                                                                    Rehab

Character for Truth                                                 Good character for truth:

(1)    608(a) Attack                                                    608(a) opinion/reputation

(2)    608(b) Cross-X of witness                                 Cross-X of character witness

(3)    609 attack                                                         w/ “Have you heard” acts

(4)    “Corruption”

(5)    “Otherwise”


Recent Lie . . .                                                        Prior Con. Statement –



      Bias/Prior Incon. Statement                                     Facts of attack




§12: Exhibits – Real and Demonstrative Evidence


I.          FRE 901 – The Authentication Rule, Generally


A.     General Rule

The authentication requirement imposes on the offering party the burden of proving that an item of evidence is genuine – that it is what the proponent says it is through a FOUNDATIONAL showing. Rule 901(a) is the general provision governing authentication. Rule 901(b) presents examples of traditional methods of authentication


1)      Testimony—the witness walks in, takes an oath, and gives evidence—the issue is only whether the statements are admissible


2)      Exhibits—include documents, weapons, bloody clothes, accident reconstruction, etc. and require an additional showing that it is what the proponent says it is


a)      Real Evidence—objects that played a role in the events giving rise to the litigation

b)      Demonstrative Evidence—evidence taken after the fact or that is staged (photograph taken after the fact, diagram, accident reconstruction, etc)


B.     Reliability or Truthfulness

The authentication rule is not concerned with the truthfulness of the contents of a document, a task left to the hearsay rule. Thus, an authentic (genuine) document may contain errors and even lies – for example, a newspaper article may contain erroneous information.


Why do we have these rules?


–You can’t ask exhibits questions, exhibits are dramatic, exhibits have instant impact, and exhibits make arguments in the jury room.


C.     Standard of Proof

Rule 901(a) represents a special application of the conditional relevance doctrine of Rule 104(b). The trial court does not decide whether the evidence is authentic by a preponderance of the evidence, which is the typical standard of proof. Instead, the court only decides whether sufficient evidence has been introduced to support a finding of authenticity (simply, a prima facie standard). If sufficient evidence has been adduced, the  evidence is admitted, and the jury decides whether the evidence is authentic.


1) This is a very lenient standard—would a reasonable trier of fact believe that the condition had been met by a preponderance of the evidence


2) Then, the jury is left to determine how much weight to give it





II.                FRE 902 – Self-Authenticating Documents


A.     General Rule

Certain types of documents are self-authenticating. They are presumed to be genuine and therefore require no extrinsic proof of authenticity – e.g., an authenticating witness. The opposing party, of course, may introduce evidence before the jury attacking the authenticity. A document that fails to satisfy the requirements of Rule 902 may nevertheless achieve admissibility under Rule 901, the general rule on authenticity.


B.     Examples in the Rule

The following are self-authenticating documents contained in the rule:

(1)    Domestic public documents with seal;

(2)    Domestic Public Documents with Authentication Document;

(3)    Foreign Public Documents under capacity and with authentication;

(4)    Certified Copies of Public Records with authentication;

(5)    Official Publications;

(6)    Newspapers and Periodicals;

(7)    Trade Inscriptions and the Like;

(8)    Acknowledged Documents with authentication;

(9)    Commercial Paper and Related Documents;

(10)Certified Foreign and Domestic Business Documents (under conditions).




III.             FRE 901(b) -  Traditional Methods of Authentication for Documents


A.     Witness With Knowledge – FRE 901(b)(1)

A witness with knowledge may authenticate a document. This is nothing more than an application of the firsthand knowledge rule. The authenticating witness need not be the author of the document, nor in most cases a subscribing witness. For example, anyone who observed an accused sign a confession could authenticate the confession. Similarly, anybody present when a K was signed could be the authenticating witness.


B.     Quick and Dirty – FRE 901(b)(2)-(10)

The following are methods for authentication. They are fairly self-explanatiory:

3)      901(b)(2): Non-expert opinion on handwriting – opinion from someone who knows the person’s handwriting validating

4)      901(b)(3): Comparison by Trier or Expert – A document may be authenticated by known specimens of a writing – by either a trier of fact or an expert witness.

5)      901(b)(4): Distinctive Characteristics – Any circumstantial method of proof may authenticate – i.e., postmark, letterhead, contents, etc.

a)      Reply Rule: If I send a letter speaking of a particular subject; a reply letter discussing that particular subject is authentic due to the subject matter specifically discussed.

6)      901(b)(7): Public Records and Reports - Public records may be authenticated by showing that they were retrieved from the proper place of custody.

7)      901(b)(8): Ancient Documents – authentic by showing document is (1) in such a condition as to create no suspicion of authenticity, (2) was in a place where it should properly have been, and (3) has been in existence 90 years or more.

8)      901(b)(9): Process or System – evidence describing a process or system used to produce an accurate result suffices to authenticate evidence derived from that process or system.

9)      901(b)(10): Statute or Rule Methods – any method proscribed by statute can authenticate.


IV.              More on Photographs, Tapes & Voice Identifications


A.     Photographs


1)      “Pictorial Communication” Theory

A foundation for the admissibility of a photograph is laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object depicted. The photographer is not required. Anyone who has firsthand knowledge may lay the foundation.


2)      “Silent Witness” Theory

The process that produced the photograph may be used to authenticate. Surveillance camera situation – the theory is that there is no human being to authenticate – so you have to go to 901(b)(9) and lay a foundation that the surveillance camera is a reliable process – have someone from surveillance installer come in and testify how it works, etc.


3)      Videotapes

Videotapes are considered the same as photographs and can be authenticated using the same techniques.


B.     Telephone Conversations – 901(b)(6)


1)      Analysis


Telephone Calls:

Identifying Speaker


Personal Call                                                     Business Call

OUTGOING                                                     OUTGOING

1) # assigned to person                          1) # assigned to business

and                                                                   and

2) Person Self-Identified                                    2) Discussed Business



1)      More than self-ID of “voice”

(A)   Voice recognition by receiver

(B)   Caller ID

(C)   Reply Doctrine . . . (If you are involved in series of phone calls because it was concerning something only person know)



C.     Sound Recordings – 901(b)(5)

Audiotapes may be admissible under several theories. 901(b)(5) specifies voice recognition by a witness familiar with the person’s voice as a method of authentication, “whether heard firsthand or through mechanical or electronic transmission or recording.”  Sound recording may also be authenticated under Rule 901(b)(9), if the process or system used to produce the recording is shown to be reliable.



            FOR EXAM – know phone calls, signatures, handwriting, etc.



V.                 902: Self- Authenticating Documents


This rule is entirely self-explanatory. The documents listed are considered authentic by nature. No need to produce extrinsic evidence that they are authentic.


A.     General Rule

Certain types of documents are self-authenticating. They are presumed to be genuine and therefore require no extrinsic proof of authenticity – e.g., an authenticating witness. The opposing party, of course, may introduce evidence before the jury attacking the authenticity. A document that fails to satisfy the requirements of Rule 902 may nevertheless achieve admissibility under Rule 901, the general rule on authenticity.


B.     Examples in the Rule

The following are self-authenticating documents contained in the rule:

(1)    Domestic public documents with seal;

(2)    Domestic Public Documents with Authentication Document;

(3)    Foreign Public Documents under capacity and with authentication;

(4)    Certified Copies of Public Records with authentication;

(5)    Official Publications;

(6)    Newspapers and Periodicals;

(7)    Trade Inscriptions and the Like;

(8)    Acknowledged Documents with authentication;

(9)    Commercial Paper and Related Documents;

(10)Certified Foreign and Domestic Business Documents (under conditions).



VI.              Chain of Custody

A.     Purpose

(1)   Ensures reliability

(2)   Requires the proponent of the evidence to “connect the dots”

(3)   Rules of authentication apply—you must show that the exhibit is what you say it is

B.     No FRE Rule—the basis for the rule is 403

(1)   The burden is on the proponent of the evidence to show that the evidence has been safe-guarded against change—this means merely that a reasonable showing that “in reasonable probability that the evidence has not changed in any important respect from its original condition”

(2)   A break in the chain of custody is NOT fatal—you just have to show that nothing about the evidence has changed

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