The Law School Authority



I.  Structure of the Trial and Presentation of Evidence


a.  Structure of the Trial-the FRE has not codified the structure.

1st Stage:  Plaintiff’s Case in Chief-the plaintiff must present sufficient evidence from which a reasonable jury could find that the plaintiff has proven all of the elements of the claim(s) on which its Cause of Action is based, (prima facie standard).

-the Defendant can test whether the plaintiff met its burden by Motion for Directed Verdict. If granted case over, Df wins.


2nd Stage:  Defendant’s Case in Chief-(this stage is optional, that is the Df can elect to submit the case as presented to the trier of fact for determination or proceed with its case in chief).  Three primary forms:

1) Defendant may offer evidence to disprove the facts the Pl’s witnesses attempted to establish; or

2) Defendant can present evidence to establish an affirmative defense; or

3) Defendant can offer evidence that attacks the credibility of the Pl’s witnesses.


3rd Stage:  Plaintiff’s Rebuttal– the Pl has the opportunity to respond to any affirmative defenses, reinforce its case relative to those issues/facts being contested by the Df.


4th Stage:  Defendant’s Rejoinder-the defendant has the opportunity to respond to any additional facts/issues raised by Pl’s rebuttal.


b. Mode and Order of Presentation and Interrogation

FRE 611(a): The court shall exercise reasonable control over the mode and order of interrogation of witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

1.  Presentation of Testimony –during each stage of the trial, each side will present evidence through the testimony of witnesses, of which that presentation is likewise in stages:

i.  Direct Examination -initial presentation of witness by the party who called the witness.  The proponent of the witness, subject to the FRE, can inquire about firsthand information the witness possesses related to any of the claims or defenses raised in the COA, and facts related to credibility of any witness.

ii. Cross Examination –the opposing party can test a witnesses credibility and the reliability of the information a witness provided.

*FRE 611(b) limits the scope of Cross Examination.

*Most jurisdictions limit the scope of cross examination queries to the issues the proponent of the witness raised directly or by implication during Direct Examination.


A. Scope of Cross Examination

FRE 611(b) Cross Examination should be limited to the subject matter of the direct examination and matter affecting the credibility of the witness.  The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

*The exploration of facts relevant to the witness’ credibility is always appropriate on cross examination, because by the presentation of a witness automatically places that person’s credibility at issue.

iii. Re-direct Examination–If opposition is successful in attacking credibility and reliability, and that witness was not is given an opportunity to explain during cross, the proponent may elicit an explanation during re-direct.

iv.  Re-cross Examination–is the final phase of examination, where opposition is given another opportunity to test any new information that the proponent may have brought out during direct.


2. Elicitation of Testimony

A. Competency of Witnesses

Common law testimonial disqualifications for witnesses have been eliminated except for incompetency of witness due to mental disease or immaturity, and serving as judge or juror in the trial where the testimony is sought. The presumption is that everyone is competent.

FRE 601:  Every person is competent to be a witness except as otherwise provided in these rules.  However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

i. United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982), a witness is competent unless shown not to have “personal knowledge of the matter about which he is to testify [required by FRE 602], that he does not have the capacity to recall, or that he does not understand the duty to testify [pursuant to FRE 603].”

ii.  Dead Man Statutes–intended to prevent fraudulent claims against estates of the deceased.  Most states have done away with them, but some states modified so that it is inapplicable if the deceased’s communication is corroborated, and others limit the rule to oral communications.


B.  Competency of Judge

FRE 605: The presiding judge at the trial may not testify in that trial as a witness.  No objection need be made to preserve the point.


C. Competency of Juror

FRE 606(a) At trial: A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror.  If he is called so to testify, the opposing party shall be afforded the opportunity to object out of the presence of the jury.


FRE 606(b) Inquiry into validity of verdict or indictment: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.  Nor may the juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.


D.  Personal Knowledge

Only if the witness has personal, firsthand knowledge of facts relevant to the COA may the opposition test the reliability of information elicited by the proponent on direct.

FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.  This rule is subject to the provisions of FRE 703, relating to opinion testimony by expert witnesses.

*Expert witness and admission by party opponents are excluded from the firsthand knowledge requirement.


E.  Questions Calling for Specific Answers

It is the party’s responsibility to object to questions that call for inadmissible testimony.  Courts at common law generally required questions eliciting testimony to be focused, calling for specific and limited answers.  FRE 611(a) relaxes the specific question and answer requirement.


F.  Leading Questions

Leading questions suggest the answer the questioner seeks. They are objectionable because they allow the witness to accommodate a party’s interest with whom they are aligned.

i.  ‘Suggestiveness’ is gauged by the judge, who has discretion in ruling on the objection, and an appellate court will overturn only on arbitrary abuse of that discretion.

*The central issue is whether the question propounded was an inquiry through which substantive information was being elicited or an assertion of fact for which confirmation was sought.

ii.  Loaded Questions–assume the truth of unproven facts, and are prohibited because they are too suggestive.




G. Exceptions to Leading Question Prohibition

Courts will allow leading questions where the consequences of leading questions are not significant and the benefits, in terms of efficiency, are great, or where there is a need for leading questions to develop the testimony properly.

i.  Cross-examination–based on reduced risk, efficiency, and the possibly an element of need; cross examination by a party with whom a witness is not aligned in interest with creates a situation where leading questions may be allowed.

ii.  During an examination by a party with whom the witness is aligned, the party may use leading questions in addressing preliminary matters or undisputed facts.

iii. Status of Witness

a.  Because of the witness’ age, mental infirmity, or unfamiliarity with the English language, leading questions may be allowed.

b.  A witness may qualify as an expert, but may lack knowledge of the facts that are relevant to the case, the court may allow the use of leading questions to pose hypothetical questions in which the proponent makes the relevant facts known by the expert.

iv.  Despite the exceptions to the leading question rule, United States v. Clinical Leasing, 982 F.2d 900 (5th Cir. 1992), ruled that the district court did not abuse its discretion by terminating direct examination of witness when court had warned attorney no less than seven times to refrain from using leading questions.

FRE611(c): Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.  Ordinarily leading questions should be permitted on cross-examination.  When a party calls a hostile witness, an adverse party, or witness identified with an adverse party, interrogation may be by leading questions.


3.  Presenting and Excluding Evidence


A.  Qualifying and Offering Evidence–FOUNDATION

Before a party may offer any evidence, testimonial or tangible, in any of the four stages of a trial, that party must first show that the evidence is related to the COA.  This requires the proponent to authenticate the evidence being offered by laying out a factual foundation through identification of the evidence and its relationship to the COA.

I.  Qualification is synonymous with authentication.

a.  For testimonial evidence qualification involves identifying the witness, establishing that the testimony is based on personal knowledge of the facts, whether the accounting of those facts are related directly or indirectly to the incident in question or to questions of credibility.


b. Tangible evidence must be authenticated prior introduction by establishing its relationship to the COA, whether it is factually related to the COA (real evidence), or offered solely for its illustrative or explanatory purposes(demonstrative). **Tangibles must be identified with a reference mark that will be used throughout the proceedings before introduction.

c.  Real evidence –all tangible evidence involved in a COA that a party introduces as substantive proof , whether directly or circumstantially relevant. **Real evidence must be authenticated by a sponsor witness who has been properly qualified.

d.  Direct Authenticationtestimonial admissions by the party opponent or the testimony of other witnesses with personal knowledge of the exhibit, and its relationship to the COA.

e.  Chain of Custody –during the process of authenticating real evidence, a party or a witness must be able to trace backwards from the time it is offered to the time of the incident.

f.  Establishing a Chain of Custody is necessary in two instances:

1) If not a single person can identify the item and connect it back to a particular event or person; or

2) If the nature of the item is such that the naked eye cannot detect its alteration and any alteration would significantly affect its relevance.

A Chain of Custody is not limited to real evidence, demonstrative evidence such as a tape recording of a statement, where no one has personal knowledge to verify what was recorded, or its accuracy would require its proponent to establish C of C.

United States v. Howard, 679 F.2d 363, 366 (4th Cir. 1982), The chain of custody must be authenticated prior to its admission into evidence.  The purpose of this threshold requirement is to establish that the item to be introduced is what it purports to be.  Therefore, the ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it si improbable that the original item had been exchanged with another or otherwise tampered with.  Precision in developing the chain of custody is not an ironclad requirement, and the fact of a ‘missing link does not prevent the admission of the evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect.. ..Resolution of this question rests with the sound discretion of the trial judge.

g. Demonstrative Evidence –all other tangibles other than those involved with the COA, used to demonstrate, explain, or illustrate the substance of testimony and other tangible evidence. *Requires sponsoring witness prior to introduction, but its foundation only requires a showing that the evidence sufficiently reflects and duplicates the critical conditions that existed at the time the COA arose so that it fairly illuminates the testimonial evidence it is offered to support.

h. If equipment is used to demonstrate or recreate, its proponent must prove that the equipment accurately recreated or reproduced what transpired by presenting evidence showing that the equipment was functioning properly at the time of the recreation and the operator used the equipment properly.


i.  If the evidence is a record of something that a sponsoring witness with personal knowledge cannot verify is accurate, then the technical accuracy of the equipment must be established through the testimony of someone who knows how the equipment works and who tested it at the time the evidence was recorded.


II.  Offering

Once a proponent has laid a proper foundation for the authentication, he must then orally offer the evidence into the record by identifying the exhibit to the court.  The judge must accept the exhibit as substantive evidence before the finder of fact can rely on it.

It is at this point that the opposition must make any objection to the introduction of the evidence.  At which point the proponent is entitled to a ruling by the court. 


B.  Excluding Inadmissible Evidence


I.  Necessity for objection

The court will usually enforce the rules of evidence to exclude evidence only if the opposing party properly objects to its introduction.  It is the responsibility of the parties to enforce the rules of evidence, not the court’s or judge’s.


II. Timeliness

A.  A party must make a timely objection to the opponent’s offers of evidence.  Failure to do so waives the objection, and the finder of fact may use the otherwise inadmissible evidence.  A timely objection occurs when the objectionable nature of the evidence first become apparent.

i.  With testimony this means after the objectionable question is posed, but before the witness answers.

ii. With tangible evidence, objections usually are appropriate only after the proponent has called the sponsoring witness, authenticated the exhibit, and formally offered the exhibit.

iii.  In Limine– where a party anticipates that its adversary will attempt to introduce evidence that is so inflammatory or otherwise sensitive that its mere mention would unfairly prejudice the jury, this device allows a preliminary ruling on admissibility or fairness of its use.

iv.  Failure to make a timely objection where required results in a waiver of the error as a ground for appellate review, unless the error constitutes plain error.

v.  Plain errors are those that should have been obvious to the trial judge and that had a substantial impact on the trial. See Reese v. Mercury Marine, 793 F.2d 1416 (5th Cir. 1986).


III.  Specificity

Objections must be specific in addition to timely, and requires that the basis of the objection must be specific, whether hearsay, privilege, violation of the best evidence rule, etc., and the proponent of the objection must identify the evidence or which portions of it that are allegedly inadmissible.



FRE 103 (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context . . . . Once the court, at or before trial, make a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. But if under the court’s ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied. 

(2) Offer of Proof.  In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which shows that character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.  It may direct the making of an offer in question and answer form.

(c) Hearing of jury.  In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.


IV. Offers of Proof

Where a party offers testimonial evidence by asking questions of a witness.  Each question constitutes as a formal offer of the response it seeks.  If opposition objects to the introduction of tangible evidencethe judge’s decision is subject to review at the conclusion of trial, and may be reversed only if ‘harmful error’ or the decision probably affected the outcome of the trial.

i.  The law requires that the proponent seeking reversal make an Offer of Proof at the time the objection was sustained, using several different methods insuring that the evidence is placed on the record-into the transcript, (if testimonial), or into the collection of exhibits, (if tangible).  See United States v. Clark, 918 F.2d 843 (9th Cir. 1990)

1.  Offer of Proof regarding tangible is accomplished by the proponent handing the item to the clerk/reporter, and referring to it by exhibit mark, announces to the court that he is offering it as proof.

2. Proffer is one method of Offering of Proof regarding oral testimony, where the lawyer states what the witness would have stated if the court had allowed her to answer.  Another method is for the lawyer, outside the jury’s presence, question the witness.  A third method is for the proponent to submit the witness testimony in written form–deposition or affidavit.


ii.  Unites States v. Peak, 856 F.2d 825, 832 (7th Cir. 1988), This court does not require that a formal offer of proof be made or that ground of error be precisely specified . . . [I]t is enough ‘if the record shows . . . what the substance of the proposed evidence is.’

iii.  When an objection is overruled, the opposing party need only make a timely objection specifying the nature of the claim raised.


4.  Division of Responsibility within the Trial

Responsibility is divided between the parties, the jury, and the judge.


A. The Finder of Fact

Either the jury or a judge, during a bench trial, is responsible for determining whether a party has satisfied its burden of persuasion–enough evidence to prove the facts claimed.


B.  Parties

1.  Satisfying Burdens of Proof

By presenting sufficient, relevant evidence to convince the finder of facts that their claim or defense is valid under a party’s respective burden of persuasion.


2.  Burden of Production

The parties bear the burden of producing sufficient evidence to establish a prima facie case–one that a reasonable jury could find that the necessary facts have been established.  If not the judge may end the trial and direct a verdict against a party so failing. 


i. At the end of the Pl’s case in chief his COA will proceed in one of three stages:

a.  If the Pl failed to meet its burden of production, then directed verdict;

b.  If the burden was satisfied and a reasonable jury could differ on the resolution, the case will proceed even if there is no immediate legal effect for the Df;

c.  If the Pl has satisfied its burden so convincingly that unless the Df comes forward with evidence to refute, then a D verdict for the Pl.


ii.  If the Df, in its case in chief attempts to refute the Pl’s claim through an affirmative defense, the Df usually bears the same burden of production as the Pl did on the original claim. At the end of Df’s case in chief, the judge can direct a verdict for the Pl dismissing the affirmative defense if the Df failed to satisfy its burden.



iii.  If the Df meets the burden of production, (after the Pl met its initial burden), as well as the burden of producing evidence in support of affirmative defenses; then the case will proceed to the finder of fact because a reasonable jury question may be raised, or directed verdict for Df unless Pl presents additional evidence.


*The burden of producing evidence shifts to Pl on rebuttal.


3. Burden of Persuasion


Where the finder of fact cannot decide who should prevailthe law allocates among the parties burdens of persuasion on every issue raised in the case.  The party with the burden must convince the finder of fact that the facts support its position. If unable, then it has failed to satisfy its burden and will lose on that issue.


i.  In civil actions the degree of persuasion is by a preponderance of evidence;


ii.  Criminal cases require beyond a reasonable doubt;


iii.  Most jurisdictions require a degree between preponderance, some require clear and convincing evidence of affirmative defenses which is between preponderance and reasonable doubt.


4.  Allocating the Burden


In the majority of cases the party to whom the ultimate burden of persuasion is assigned will also be allocated the initial burden of production.  The party with the burden of production and persuasion will often have the initial burden of pleading–raising the issue at the beginning of the action.  Some courts may assign differing burden of pleading and the trial burdens.


*Statutes that create a COA, often allocate the burdens of evidence and persuasion. If the statute does not, the courts allocate the burdens.


i.  Basis for allocation:

a.  Assignment to the party who seeks to change the status quo, or the party who instituted the action.

b.  Probability. courts may assign to the party who relies on an improbable fact the responsibility for establishing that fact.

c.  Convenience and fairness.  Courts will often relieve a party of the burden of persuasion if imposition of the burden on that party is unfair in light of the adversary’s unique access to exculpatory or inculpatory evidence.  See Summers v. Tice, 199 P.2d 1 (CA 1998); Sindell v. Abbot Labs, 607 P.2d 924 (CA 1980); Ybarra v. Spangard, 154 P.2d 687 (CA 1944).


d.  Nature of the issue.  The nature will influence the allocation of the burdens.  See Santosky v. Kramer, 4555 U.S. 745 (1982), the court held that only the standard of clear and convincing evidence strikes a fair balance between the rights of the natural parents and the interests of the State in a proceeding for termination of parental rights.


5.  Burden of Persuasion as applied to Admissibility of Evidence


Throughout the trial another burden of persuasion is constantly imposed on the parties relating to the admissibility of evidence by which the claims and defenses are being proven.  To establish and meet the applicable standards for testimonial or tangible evidence, often involves factual issues beyond what is apparent from the general nature of the evidence and from the context in which it is being offered.  That party must persuade a judge, by a preponderance, that it has met the factual prerequisites during a evidentiary hearing.

i.  Lego v. Twomey, 404 U.S. 553 (1972), The preponderance of evidence standard for preliminary issues of admissibility is uniformly applicable, even to the determination of the admissibility of evidence against defendants in criminal cases.


ii.  Under the business records exception to the hearsay rule, the proponent must prove that the records were made in the regular course of business, as a routine matter, based on personal knowledge of the facts recorded, and made at or near the time of the events recorded.  Then the records are deemed trustworthy and admissible unless the opponent can establish that the source of the information recorded or the methods or circumstances of the record’s preparation indicate a lack of trustworthiness.  See Burdens within Burdens at a Trial within a Trial, 23 B.C. L. Rev. 927 (1982).


C.  Judge


The judge’s responsibilities are to determine the legal principles that will control the COA and to supervise, through the enforcement of rules of evidence and procedure, the parties’ presentation of evidence.  The judge must make factual determinations throughout the trial relative to the applicability of the rules of evidence.


i.  Under the best evidence rule, a party proving the content of a writing must use the original writing (not a copy), at trial unless the original has been lost or destroyed due to no serious fault of the proponent.

a.  If a copy is offered and the opponent objects the judge will resolve by two factual questions:

1) whether the original is lost or destroyed; and

2) whether the proponent is responsible for the loss or destruction.


ii.  A statement against one’s own interest made with awareness of that fact carries with it an assurance of reliability, because it is unlikely that the declarant would have made the statement insincerely.

a.  In determining whether the statement within the exception for declarations against interest the judge will resolve by two factual issues:

1) whether the statement was made against the declarant’s interests; and

2) whether the declarant was aware of this fact when uttering.


iii.  Orthodox Rule:  Preliminary factual issues on the admissibility of evidence require a proponent to first present sufficient evidence to convince the judge, by a preponderance, that each of the necessary preliminary facts are true.


iv.  Exception to Orthodox Rule.  When the preliminary factual questions on which the admissibility of evidence turned overlap the factual issues that form the basis of the COA, the jury should decide to prevent judicial resolution of the cause of action, except in cases which the evidence is so insubstantial that a directed verdict otherwise would have resulted.


FRE 104 (a) Questions of admissibility generally.  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).  In making it determination it is not bound by the rules of evidence except those with respect to privilege.

. . . .

The only exception to this rule concern issues of conditional relevance, which, under Rule 104(b), the presiding judge delegates to the jury after preliminarily screening them. 

















II.  Introduction to Relevance


a.  Components of Relevance


All evidence offered must be relevant to the issues being litigated.

1.  The evidence must be probative of the proposition it is offered to prove; the evidence must logically tend to make the proposition more or less likely.

2.  The standard of relevance requires the proposition that the evidence makes more or less likely to be of consequence to the claims or defenses raised, the credibility of witnesses who have testified, the reliability of evidence, or the level of damages suffered.

This is referred to as a requirement of materiality, with courts considering evidence immaterial if it has “some probative value upon an issue in the action but of such slight value as not to be worth the time, expense and inconvenience which the process of proving it would require.” E. Morgan, Basic Problems of Evidence p. 183 (1961).


b.  Provable Propositions.


In United States v. Staggs, 553 F.2d 1073 (1977), determinations of the propositions that are provable in a COA depend on the principles of law brought into play through the pleadings and the court’s interpretation of that law.

i.  The court usually determines which propositions are provable in a COA on the basis of substantive law that controls the rights and liabilities of the parties.  The court determines the controlling substantive principles by considering the nature of the COA and the defenses raised in the pleadings.

ii.  The credibility of all evidence is material to litigation, and therefore would be relevant.

iii.  It is not necessary that the proposition that the evidence tends to prove be disputed, a court will consider evidence relevant and admissible so long as the proposition to be proved is probative, or of consequence to, something in dispute, or the proposition to be proved aids in the understanding of the case and the resolution of factual issues.


c. Determining Probative Value


Once a proposition is provable in a COA, the court needs to determine whether a particular piece of evidence is probative of that proposition.  The answer lies in whether there is any acceptable underlying factual premise or intermediate proposition that connects the evidence and the ultimate proposition to be proven (both as gen. truth and as a fact under the unique circumstance at hand); that is, whether there is a premise that logically allows the fact finder to draw a desirable inference from the fact proven, based on common experiences/observations, the knowledge acquired from them.

*The less apparent the logical connection between the evidence offered and the proposition to be proven, the greater the burden on the proponent to identify the underlying premises and persuade the judge of their viability through logical analysis or scientific documentation.


i. The probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular facts exists and the distance of the particular fact from the ultimate issues of the case.   The probative value of evidence generally will depend on two factors: 1) its probative value with respect to an immediate fact; and 2) the logical distance between the immediate fact and the ultimate issues of the case. #1 is merely a quantification of relevance. (See page 75 text). #2 is unimportant so long as the immediate inference and the ultimate issue are linked.


d.  Circumstantial Evidence and Probative value


The issue of probative value arises only with regard to circumstantial evidence, because direct evidence, by its definition, is evidence that immediately establishes the particular proposition being proven.


e. Levels of logical relevance–minimum requirement of Probative value     ??????


Requiring a certain level or establishing that a probability prerequisite for a determination of relevancy is a minority viewpoint. Engle v. United Traction, 96 NE 731 (1911), held that “a fact is admissible as the basis of an inference only when the desired inference is a probable or natural explanation of the fact and a more probable and natural one than the other explanations, if any.


i.  Under Engle, if followed literally, offering evidence of design to kill, an attorney would be obligated to prove, (in order to offer evidence of the design to kill), that it was more probable than not that A was the killer.  This would lead a reasonable mind to conclude from evidence of design alone that a person more likely than not killed.


ii.  The reliability of evidence is usually so significant that if coupled with the inherently convincing or inflammatory nature of the evidence, or juror’s inability to properly assess its value, the courts will exclude the evidence, not b/c it’s irrelevant but b/c the danger of unfair prejudice substantially outweighs its probative value.


iii.  When determining past facts, all evidence bearing on those facts is relevant to the extent it reflects on the probability those facts were true or were not true.  Evidence of mathematical probability and statistical projections provide a means of understanding and evaluating the substantive evidence presented in a case.  They provide no substantive basis on which the disputed issues can be resolved. * See Statistical–Probability Evidence and the Appearance of Justice, 103 Harv. L. Rev. 530 (1989).



iv.  People v. Collins, 438 P.2d 33 (1968), the court explained that the probative value of such evidence is dependent on the accuracy of the factual variables employed in the computation as well as the probabilities assigned to each of them, the relationship of those variables to one another (whether independent of each other), and the means by which the probability is computed.  A proponent should make a threshold demonstration of reliability to the court to avoid exclusion because of the potential for prejudice far outweighing the probative value.


v.  However, in rape case courts have allowed the introduction of statistical evidence on the percentage of the male population that possesses the same blood type or seminal characteristics as a defendant, see U.S. v. Gwaltney, 790 F2d 1378 (9th Cir.1986).  As a result courts are careful to disallow the use of statistics as a means of assigning a number to the probability of guilt or innocence.


vi.  Misuse of statistical evidence by attorneys results from 1) faulty selection of unqualified expert witnesses, inadequate explanations to the experts of the kind of statistical evidence needed, and misperceptions of the expert’s advice or findings.  See Miller, Facts, Expert Facts, and Statistics . . .Methods in Litigation, 40 Rutgers L. Rev. 101, 106 (1987), for a breakdown of three basis methodologies used to develop statistical evidence for litigation: descriptive, experimental, and quasi-experimental (including mathematical model applications).


vii.  Mathematical probability evidence has been commonly used in litigation in which the intent to discriminate is at issue.  See Castanedo v. Partida, 430 U.S. 492 (1977); Sims v. Georgia, 389 U.S. 404 (1967); and International Teamsters v. U.S., 431 U.S. 324 (1977)..


f.  Defining Relevant Evidence


FRE 401: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.

i. “Any tendency” dispels any notion that the concept of relevance requires that the evidence establish a fact or proposition by any level of persuasiveness; the Rule does not require that every piece of evidence be conclusive of a proposition at issue at the trial. FRE 401 distinguishes questions of admissibility and of the sufficiency of the evidence.


FRE 402: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.  Evidence which is not relevant is not admissible.

i.  FRE 402 allows relevant evidence to be excluded only if an exclusionary rule has been codified in the Federal Rules of Evidence or adopted by either Congress or the Supreme Court or is compelled by the Constitution. It does not recognize the common-law power of courts to develop new exclusionary rules.





g.  Relationship to other Rules


Preliminary Questions: Like all other issues of admissibility, the presiding judge determines the

relevance of evidence by a preponderance of evidence standard.  This is the orthodox approach to the resolution of preliminary factual questions on which admissibility of the evidence depends. If the evidence is not probative of the proposition it is offered to prove nor related to a proposition of consequence in the litigation, the judge will find it irrelevant, and exclude it from the jury. Evidence need only TEND to make a proposition more or less likely. A conditional relevance issue arises when evidence of fact A is relevant, but only if the proponent first has established fact B.  Most courts minimize the number of factual issues unnecessarily taken from the jury by giving the conditional relevance issue to the jury after screening the evidence to determine whether the proponent had met its prima facie standard of admissibility; a reasonable person could find that the preliminary facts had been established by preponderance.


h.  Related Writings or Recorded Statements


Under FRE 106 whenever a writing or recorded statement is offered into evidence at trial, 106 gives the adverse party the right to compel the proponent of such evidence to introduce any other writing or recorded statement that, in fairness, ought to be considered contemporaneously.  “Rule of Completeness” establishes the right of a party to put before the jury materials that clarify the relevance and probative value of the adversary’s evidence.  To lay a foundation for a rule of completeness claim, the offeror must specify the portion of the writing or recording that is relevant to the issue at trial and that qualifies or explains portions already admitted.  U.S. v. Sweiss, 814 F.2d 1208, 1212 (7th Cir. 1987).


Does the rule of completeness preempt everything else and permit introduction of the otherwise inadmissible evidence, or in the alternative, require the exclusion of the initial writing because its content cannot fairly be placed in context?


Because Rule 106 limits its requirement of completeness to a “writing or recorded statement: courts use Rule 611(a) to require the full introduction of a verbal statement presented in the form of oral testimony to reflect the statement’s overall substance and context. i.e. “mode and order”


i.  Exclusion of Relevant Evidence–Probative v. Prejudicial


Relevance is the first hurdle evidence must successfully pass.  Relevance does not ensure admissibility ; admissibility depends on the applicability of other rules based on public policy, the reliability of the evidence, and fairness.  In response to these other rules, the trial judge has discretionary power to exclude evidence if:

a.  Its probative value is sufficiently outweighed by its cost; i.e. danger of confusions, the evidence’s misleading nature, or possibility of unfair prejudice b/c of the inflammatory character.



b. The probative value is so slight that its use will result in undue delay, waste of time, or needless presentation of cumulative evidence.


FRE 403: 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.


A. Scope of Rule


1.  The prejudice rule presumes that the contested evidence is relevant, b/c if irrelevant, it is inadmissible whether prejudicial, misleading, or timewasting or not.


2.  The rule first allows the exclusion of otherwise admissible evidence; it does not permit admission of otherwise inadmissible evidence b/c the probative value outweighs the prejudicial effect. Secondly, the exclusion of evidence is discretionary and the rule does not compel exclusion, but if it is found that the probative value is not outweighed by countervailing factors, he must exclude and lacks the discretion to avoid exclusion.


3.  The probative value of a piece of evidence involves a measurement of the degree the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case.   The probative value, in general, will depend on two factors:

a.  Its probative value with respect to an immediate fact; and

b.  The logical distance between the immediate fact and the ultimate issues of the case.

*the first factor is a quantification of relevance, (to be relevant the evidence must tend to render the existence of some material fact more or less likely than it would without the introduction of the evidence); the second is of no importance so long as the immediate inference and the ultimate fact are logically linked.


Both relevance and logical distance should be considered for three reasons:

i.  By considering the element of logical distance between the fact and the ultimate issue the judge acquires a better sense of the actual utility of the evidence.


ii.  An initial determination of both will facilitate a finding that the beneficial effects of admission are outweighed by the prejudicial effects.


iii.  The rule itself contemplates a determination of both relevance and log. dist.






4.  Balancing probative value and prejudicial effects is done primarily in two groups:


a.  The probative value must be ‘substantially outweighed’ by the prejudicial effects, indicating a preference for more than a mere imbalance of equities.


b.  The probative value merely need be ‘outweighed’ by the prejudicial effect.


5. The term prejudice does not include all evidence that hurts a case.  There are at least three themes of prejudice:


a.  Prejudicial evidence that seeks to irrationally affect the jury’s perception of the party, favorably or unfavorably.


b.  Evidence of past crimes, bad acts, or association with certain groups to damage the position of a party.


c.  Attempts to excite the jury’s rage or its lust for vengeance.


6.  “Confusion of the issues” as a prejudicial rule consideration, addresses the doctrine of limited admissibility and the use of evidence from, or the results of, other trials.  Confusion of the issues is not always the same as prejudice.


7.  Evidence that will be given too much weigh by the jury, although neither prejudicial or involving ancillary issues, will be excluded because it of its likelihood of misleading the jury.

* The rule, FRE 403, is simply invoked, (a party does not have to identify which of the three are applicable), and the trial court is bound to decide under all of them.


8.  “Considerations of undue delay, waste of time, or needless presentation of cumulative evidence are criteria that can be used to limit the number of witnesses, restrict the amount of questioning, halt the amount of evidence, or to achieve economies of trial or crowded calendars.


NOTE:  The assessment of probative value and the balance of that value against potential prejudice is highly subjective, which require judgments influenced by the unique facts/circumstances of each case.


B.  Liability Insurance

FRE 401 : 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 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.


1.  Evidence of liability insurance is limited to instances in which the proponent offers it on the issue of fault.  If offered for the other purposes stated the prohibition is inapplicable.  To minimize the risk of misuse after evidence of liability insurance has been admitted on an issue other than neg or wrongful conduct, request a limiting instruction under FRE 105. Failure to do so waives the right to complain on an appeal.


C.  Authentication and Identification


A necessary factual condition to the logical relevance of all tangible evidence is its authentication and identification.  Unless it is established that the evidence is as it is claimed, the evidence has not relationship to the COA and is probative of nothing.


1.  FRE 901 provides a list of ten illustrations of how a proponent can authenticate a piece of evidence through direct and circumstantial proof.  That rule does not limit or exclude other methods of authentication.


2.  FRE 902 identifies ten kinds of documents that courts will consider self-authenticating.




Courts have modified the general relevancy requirement based on public policy concerns and unfair prejudice, and made the rules applicable to particular kinds of evidence to exclude that evidence no matter how probative.  ex: character and bad habit evidence, evidence of similar happenings, evidence of subsequent repairs, and evidence of offers of compromise.


A.  Use and Admissibility based on Context


A party may use character evidence in a number of different contexts where the rules of admissibility differ.  Its admissibility is based on several factors: 1) the kind of proceeding (civil or criminal), 2) the purpose of offering, 3) which party is seeking introduction, 4) what stage of the proceeding the evidence is being offered.


B.  Common Law Usage


1.  Using Character Evidence to prove an element of a Claim, Defense, or Charge.

Character evidence is admissible in both civil and criminal actions where an individual’s character is an element of the claim, charge or defense, and no limitation on the form it must take is imposed. Evidence of reputation, other person’s opinion concerning character, and prior specific acts are all admissible, and may be offered at any time during the trial.

a.  Cases where character constitutes an element include defamation; where the defense of truth, and actions involving negligent entrustment, or seduction.


2.  Using Character Evidence to Establish Propensity from which Conduct can be Inferred.

a.  Use of Propensity is Prohibited Generally

Courts have generally forbidden the introduction of a person’s reputation, standing in the eyes of a fellow citizen, or past conduct as proof that the person acted, or failed to act, in a particular manner, on the occasion in question, at trial.


i.  Because no person’s behavior is uniformly bad or good, and the information on which we rely in drawing conclusions about an individual’s propensity to act in a certain way is often incomplete, any inference of a propensity are often inaccurate.


ii.  There is the distinct possibility that the jury will accord too much weight to character evidence alone, and allow its resolution of the issues to be influenced more by a person’s character than by the factual evidence.


iii.  Introducing issues of character evidence can considerably lengthen the trial and unfairly surprise the party against whom the evidence is being offered.


iv.  The courts exclude character evidence if it is offered solely to prove that a party acted in conformity with a character trait, only in civil actions.  In criminal cases the courts allow certain usages of character evidence to establish a propensity to act in a specific manner.


b. THE Exception: Character evidence of criminal defendant or victim

Courts will allow a criminal Df to initiate the use of character evidence about either the victim or himself, IF the court has found such evidence relevant to the charge or defense being asserted.

i.  If the Df initiates the use, the court will limit the kind of character evidence the Df may offer as to the reputation of the victim or Df, and will not admit evidence of either personal opinions of a person’s character or specific acts that reflect on character.

-One, cts believe reputation evidence is more reliable b/c it reflects the collective judgment of the community derived from a history of conduct; and

-Two, reputation evidence involves less time and confusion for the jury b/c it entail less exploration.

ii.  A witness giving reputation testimony must be familiar with those who know the Df or victim and have basis for assessing the collective community judgment.

-Once qualified the ct will limit the testimony to the reputation trait that is most pertinent to the charge or defense.


iii.  Once introduced the prosecution has the opportunity to respond with

rebuttal reputation testimony addressed to the same character trait.


*Note: To protect criminal defendants from potential abuse by the prosecution asking “do you know” or “have you heard” questions that have no basis in fact, court have imposed two safeguards.  1) the interrogator must have a good faith basis in fact for asking about the incident, and 2) the incident inquired about must be relevant to the character trait at issue. Good faith basis in fact does not mean the incident must be proven as fact, only that if the court inquired, the prosecutor must have a reason for believing the incident actually occurred.


iv.  The nature of the charge defines the limits of the character traits the defendant can place in issue, and the defense should be wary about examining reputation witnesses b/c too broad an inquiry will open the range of prior acts that the prosecution may inquire.


c.  Propensity Evidence–Character of Witness for Truth and Veracity


The law construes the character of each witness as to truth and veracity as being subject to examination by either party.  The reason for the difference between the cts treatment of evidence of a witness’ character and the parties’ character is the enhanced importance and need for character evidence concerning a witness’ credibility and the lack of comparably probative evidence of credibility.

i.  The cross examiner may ask the witness about prior specific conduct that reflects the witness’ character trait of truth and veracity;


ii.  If the witness denies having committed those specific acts, the cross examiner may NOT, by extrinsic evidence, prove the witness did commit them, UNLESS those acts have resulted in convictions.


iii. A party may call character witnesses to testify to the reputation of any preceding witness for character trait of truth and veracity, and those witnesses may only testify as to the reputation of the previous witnesses.


3.  Prior Act Evidence Offered for Purpose other than Propensity.


The courts have consistently admitted evidence of prior specific instances of conduct if offered for a purpose not related to a person’s propensity, ex: to prove motive, intent, absence of mistake or accident, common scheme or design, and identity.


a.  The courts establish two requirements:

i.  The proponent has to establish both the occurrence of the prior act and the defendant’s participation in it by clear and convincing evidence; and


ii.  The proponent has to demonstrate that the probative value of and need for the evidence outweighs its high potential for prejudice to the Df and the delay and confusion associated with its use.


C.  FRE 404 and 405


1.  FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.  (a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, EXCEPT:

(1)Character of the accused.  Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the victim of the crime is offered by the accused and admitted under subdivision (a)(2)evidence of a pertinent trait of character of the accused offered by the prosecution;

(2) Character of the victim.  Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness.  Evidence of the character of a witness, as provided in rules 607, 608, and 609.


(b) Other crimes, wrongs, or acts Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it tends to introduce at trial.


2.  Rule 404(b) represents a codification of the common law, except for the pre-trial notice requirement that was added to the rule in 1991.  It delineates the eight most common permissible uses of evidence of other wrongs or acts.  If character is an issue, in either civil or criminal, FRE 404 does not apply because it only establishes a general rule excluding character evidence if a party uses that evidence to establish the defendant’s propensity to act in a particular manner

i.  Because FRE 404 does not govern the admissibility of character evidence if character is an issue, that evidence, although relevant and not otherwise excluded by another rule, is admissible under FRE 402.




3.  FRE 405: Methods of Proving Character.

(a) Reputation or opinion.  In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.  On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.  In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.


4.  FRE 405 addresses the kind of evidence that a party may use to establish character once the court determines that such evidence is admissible. 

i.  Under FRE 405(a) if a party introduces character evidence in a criminal case under one of the exceptions to the general rule against propensity evidence under FRE 404(a), that party may use either reputation or opinion testimony.  ii.  FRE 405 does not allow the use of specific act evidence to establish propensity.


5.  Using Reputation and Opinion Testimony under FRE 405(a)

Under FRE 405(a) if the Df wishes to introduce character evidence into his criminal trial, for the purpose of establishing innocence through propensity evidence, he may do so using opinion as well as reputation testimony.

i.  United States v. Curtis, 644 F.2d 263 (1981) if only reputation evidence is elicited on direct examination, only reputation evidence may be tested on cross.


6.  Time Focus of Character Evidence: Time of Offense or Time of Trial?

Curtis established that to be relevant, reputation or opinion testimony must focus on the time of the act charged, especially under FRE 404(a), because its purpose is to establish the propensity of the party in the past.  If the focus is on the time after the event, the reputation or opinion might be unfairly affected by the charge that has been made.

i.  If the proponent offers the character evidence pursuant to FRE 608, to impeach or reinforce the credibility of any witness, the temporal focus of such truth or veracity evidence is on the time of the trial, when the witness has testified and has asked the jury to accept him as a credible person.


7.  Civil Cases Involving Criminal Conduct.

Although there is a general prohibition on the use of propensity evidence in civil cases, courts at common law occasionally allow the civil defendant to introduce such evidence if the action involved an allegation of criminal conduct.


i.  Crumpton v. Confederation Life Insurance Co., 672 F.2d 1248 (1982),  The admission of evidence of character depends on the purpose for which that evidence is offered.  Generally, it’s offered for two purposes: 1) when a person’s  particular character trait is an operative fact and is one of the ultimate issues; or 2) to prove that a person acted in line with his character on a particular occasion.   When used for the 1st purpose, it is not within the scope of FRE 404.  FRE 404(a) governs the admission of character evidence when used for the circumstantial purpose and generally excludes admission of such evidence UNLESS within three exceptions.  These exceptions are formulated in terms of whose character is being offered, and which allow the admission of character evidence to prove action in conformity with character of the accused, a victim in certain circumstances, and a witness.


8.  Permissible Uses of Character Evidence of Prior Bad Acts under FRE 404(b)

i.  United States v. Beechum, 582 F.2d 898 (1978),  Where the Df testified to controvert an element of the govt’s case, such as intent, extrinsic offense evidence is highly relevant. Two step approach: 1) the extrinsic offense evidence must be determined to be relevant to an issue other than character; 2) the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet FRE 403’s requirements.  Where the evidence sought to be introduced is an extrinsic offense, its relevance is a function of its similarity to the offense charged, which means that in determining  relevance ‘a fact is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand.  Once it is determined that the extrinsic offense requires the same intent as the charged offense and the jury (FRE 104(b)), could find that the Df committed the extrinsic offense, the evid. satisfies the first step of FRE 404(b). The next step is determining prob vs prej. “substantially outweighed” by assessing all of the circumstances surrounding the extrinsic offense.


ii. Problems with the decision in Beechum

a.  The majority believed that FRE 403 requires exclusion only if the extrinsic evidence “substantially outweighed” its prejudicial effects;

b.  The majority misinterpreted the first sentence in FRE 404(b) as being superfluous, b/c evidence which is probative ‘solely’ of bad character and is not of any relation to the charged crime or elements thereof, is inadmissible and irrelevant under FRE 401.

c.  It conflicts with FRE 609 and 608.  Under 609, (which requires probable cause conviction), if the extrinsic offense occurred more than 10 years before the current charge, although related, the Df’s credibility could be impeached only if the probative value of the prior offense substantially outweighed its prejudicial impact on the jury, but if more recent than 10 years the test is simply probativeness vs. prejudice.  Under 608, (which requires clear and convincing), if there was no conviction for the extrinsic offense, that evidence would be barred unless the Df opened the door on the stand.




7.  The Effect of an Acquittal on the use of prior-act evidence under FRE 404(b)


The primary issue is in determining whether the concept of collateral estoppel is applicable.  The majority of courts, state and federal, have construed that the concept does not apply to the subsequent use of evidence of an act as uncharged misconduct.  Based on different levels of persuasion, there is a distinction between where the commission of the prior bad act is an ‘ultimate fact’–a fact that is central to the subsequent prosecution, and where it is only an ‘evidentiary fact’–a fact that is relevant, but not critical in proving the commission of the subsequent charge.  Where a Df was previously acquitted, he was not proven guilty by a reasonable doubt, but that does not mean that he was not proven guilt of a lesser included offense (by a preponderance or clear and convincing) and therefore because those standards are that by which the prior acts must be proved to be admissible as ‘evidentiary fact,’ their use is not inconsistent with the prior judgment.

i.  Dowling v. United States, 493 U.S. 342 (1990), Because a jury might conclude the Df was the masked man who entered the home, even if they did not believe beyond a reasonable doubt that the Df committed the crime charged, the collateral estoppel component of the Double Jeopardy Clause is inapposite.  The burden is on the Df to show that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.


8.  Other Crimes, Wrongs, or Acts: Other than What?


i.  In United States v. Soliman, 813 F.2d 277(9th Cir. 1987), the court held that when all the acts proven are inextricably linked to the extent they form part of a single criminal episode, FRE 404(b) is inapplicable.


ii.  In U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992), evidence that a crack pipe was discovered beside a firearm the Df illegally possessed as a felon, did not violate FRE 404(b) b/c it was ‘intrinsic’ to the offense for which he was charged.  Possession of the pipe and the firearm were both parts of a single criminal episode involving his arrest.  This type of intrinsic evidence is not excludable under FRE 404(b).


iii.  U.S. v. Ramirez, 45 F.3d 1096 (7th Cir. 1995), Evidence concerning the chronological unfolding of events that led to an indictment, or other circumstances surrounding the crime are not considered evidence of ‘other acts’ within the meaning of FRE 404(b).








9.  Use of FRE 404(b) Evidence for Other Purposes


a.  Other Purposes Not Limited

i.  Rule 404(b) eliminates the use of prior crimes, wrongs, or acts for proving character to show that the Df acted in conformity, but it states such evidence may be admitted “for other purposes, such as ‘proof of intent, motive, etc.,’ making it clear that the list is only an example. U.S. v. Billups, 522 F.Supp. 935, 955 (E.D. Va. 1981), (quoting U.S. v. Beechum, 582 F.2d 898, 910-11 n.13 (5th Cir. 1978)), ‘The Senate Committee Notes to 404(b) make clear that the use of the term “may be admissible” does not mean the court can exclude such evidence if it wishes but “may exclude it only on the basis of those considerations set forth in Rule 403, i.e., prejudice, confusion or waste of time.” Evidence, then, is admissible if relevant to “any purpose other than to show a mere propensity” to crime by a defendant.


b.  To Prove Predisposition

ii.  Evidence of Df’s prior conduct is admissible to prove predisposition after the defendant raised an entrapment defense.  U.S. v. Sonntag, 684 F.2d 781 (11th Cir. 1982); and testimony that Df was a drug addict was admissible to show Df’s predisposition to sell drugs, U.S. v. Salisbury, 662 F.2d 738 (11th Cir. 1981); but in U.S. v. Porter, 709 F. Supp. 770, 779 n.4 (E.D. Mich. 1989) the “defense of outrageous government conduct is essentially an entrapment defense that cannot be rebutted by proof of defendant’s predisposition.


c.  Doctrine of Chances

iii.  When a Df denies guilty knowledge or presence for a particular crime, the prosecution may employ the ‘doctrine of chances.’  This doctrine is a theory of logical relevance that requiresacts that are charged and uncharged to be very similar.  It is based on the notion that ‘it is unlikely that the Df would be repeatedly innocently involved in the similar suspicious situations,” and is used to negate a “mere non-nefarious happenstance.”  Imwinkelreid, Uncharged Misconduct Evidence, § 5:25 (1984).  Therefore, the objective likelihood that the Df was NOT involved in the crime at issue is reduced.  In order to employ the doctrine, it is unnecessary that the other-act evidence occur prior to the charged act, but merely that the act show the repeated occurrences of similar acts within a given time period.  Reference U.S. v. Johnson, 934 F. 2d 936, 940 (8th Cir. 1991).


d. At what point during Trial may Prosecution introduce Other-Act Evidence?

i.  Courts have developed a general rule of postponing the admission of such evidence until the conclusion of the defendant’s case; it is then that the court is better suited to weigh the evidence’s probative value and the prosecution’s need for it, against the prejudice to the defendant.  See U.S. v. Bendetto, 571 F.2d 1246, 1248-49 (2nd Cir. 1978).


                        Note: the deferral of presentation is appropriate and fair to the prosecution ONLY IF the prosecution offers the prior-act evidence on the issue of intent rather than identity.


ii.  United States v. Danzey, 594 F.2d 905 (1990), It was clear to the trial judge before the case began that the only issue was the identity of the robbers.  There is no way for the Df to remove the identity issue from the case short of admitting his participation.  There is a high degree of similarity between the robberies admitted to and the one charged here, that the other crimes lead to the logical inference, by virtue of the combination of common features, that a common plan or design was at the basis for all the robberies and hence that it was the Df who committed this robbery.  The Government is permitted to introduce similar act evidence, although relevant to identity (proof that the defendant did the criminal act), but not if the evidence is relevant merely to show intent.  At a minimum, the govt must prove that this Df committed the crime he is on trial for, so that identity evidence may properly constitute part of its case in chief, even if there will be a defense case.


iii.  Delaying the prosecution’s use of other-act evidence does not necessarily mean the prosecution cannot mention the evidence before the defendant has put on his case in defense.  Since the prosecutor is allowed to present an “objective summary of the evidence reasonably expected to be produced” in his opening statements, U.S. v. Novak, 918 F.2d 107, 109 (10th Cir. 1990), and if he had a good faith belief the evidence would be admissible, he is allowed to mention it during opening, but this does not allow the prosecution to refer to evidence of questionable admissibility.


Note: U.S. v. Bailey, 505 F.2d 417, 418 (D.C. Cir. 1974), the government stands to lose nothing if it waits, while the jury may be tainted or prejudiced against the defendant if prior, uncharged, misconduct evidence is mentioned or introduced before the court rules on it admissibility.  The trial judge should not have made even a preliminary ruling on the admissibility of the evidence without requiring a proffer of that evidence outside the jury’s presence.


e. On-the-Record Balancing of Probative Value v. Prejudice under 404(b)

i.  In U.S. v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983), trial court articulation of its probative value–prejudice inquiry is required only “when requested by a party.  In the absence of on-the-record findings in response to such a request, the appellate court will remand, unless the factors upon which the evaluation was made are readily apparent from the record, and there is not substantial uncertainty about the correctness of the ruling.”

Note: although explicit findings on the record are required under FRE 609, they are not required under 404(b).  See U.S. v. Braithwaite, 709 F.2d 1450 (11th Cir. 1983).



f.  Pretrial Disclosures of Similar Act Evidence

i.. Congress amended FRE 404(b) to include a notice provision:

The prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Note: the reasonableness of the form and timing is determined on a case-by-case basis.  See U.S. v. Kern, 12 F.3d 122, 124 (8th Cir. 1993).


g. Evidence of Whose Prior Acts

i.  The language of 404(b) does not on its face limit its prohibition to evidence of the defendant’s prior acts.  In U.S. v. McCourt, 925 F.2d 1229, 1231, 1235 (9th Cir. 1991), the court held that 404(b) revealed that Congress intended to restrain the finder of fact to infer that prior bad acts breed future bad acts.  “Because 404(b) plainly proscribes other crimes evidence of ‘a person,’ it cannot reasonably be construed as extending only to ‘an accused.’  Both prongs of the rule apply to any person and to any proponent.  Evidence of prior criminal conduct, no matter by whom offered, is not admissible for the purpose of proving propensity or conforming conduct, although it may be admissible if offered for some other relevant purpose.”


D.  Propensity in Sexual Assault Cases

FRE 413: Evidence of Similar Crimes in Sexual Assault Cases.  (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such time as the court may allow for good cause.


(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.


FRE 414: Evidence of Similar Crimes in Child Molestation Cases.  In a criminal case in which a defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.


(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.


FRE: 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation. (a) In a CIVIL case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and 414 of these rules.

The same fifteen day notice requirement exists of subpart (b), and also the non-limiting of subpart (c) in both 413 and 414.


NOTE: 413, 414, 415 were passed as part of the Violent Crime Control and Law Enforcement Act of 1994, and there are no Advisory note because there was little public debate before they were passed. 414 has no balancing provisions.


U.S. v. Sumner, 119 F.3d. 658 (8th Cir. 1997), the court held that FRE 414 was “unconstitutional because it allows ‘any kind of evidence to show propensity’ without allowing for the application of the Rule 403 balancing test.” The 2nd and 10th Circuits agreed.  However, the Supreme Court, in Green v. Bock Laundry, 490 U.S. 504 (1989), addressing whether 403 modified 609, held that 403 did not because 609 had balancing provisions in some subsections that overrode the balancing provisions of 403.


E.  Admissibility of Habit Evidence


“Habit” is the regular response of an individual to, or the customary practice of an organization in, the context of a specific situation.  The individual’s conduct must be highly predictable as a result of the habit in question.  The conduct must be to the point of being virtually automatic—a reflex response to a particular stimuli.  Testimony as to an individual’s habit or an organization’s custom or practice, or as to specific instances of prior conduct from which a habit or custom can be inferred, is admissible to prove conduct consistent with that habit or custom on a particular occasion.


i.  Character v. Habit

Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or peacefulness.  Habit, is more specific.  It denotes a person’s regular response to a repeated situation.

Note: the determination of the point at which conduct becomes so regular that evidence of it is admissible as habit calls for the trial judge’s reasoned judgment.


ii.  Keltner v. Ford Motor Co., 748 F.2d 1265 (8th Cir. 1984), the court admitted evidence of the Pl’s past behavior involving the regular consumption of a six-pack of beer four nights a week, after Ford made an offer of proof that included the expected testimony of the investigating officer and the attending physician, that the Pl smelled of alcohol after the accident.

*The probative value of evidence of habit is significantly greater than that of character propensity.  The potential for prejudice from the juror’s emotional reactions is substantially less.


iii.  FRE 406: Habit; Routine Practice.  Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

a.  406 eliminates the requirements of corroboration and the absence of eyewitnesses. 


b.  Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989),  Under 406 certain evidence is admissible if it rises to the level of habit.  Habit refers to the type of non-volitional activity that occurs with invariable regularity.  It is the non-volitional character of habit evidence that makes it probative. The conduct at issue may not have occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances.  None of the former patients had ever observed the Dr with another patient, and before the former patient evidence could be properly admitted as habit evidence, the witnesses “must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning the routine practice.  Where a witness cannot demonstrate such knowledge, he cannot testify as to the routine nature of the practice.”  Laszko v. Cooper Laboratories, Inc., 114 Mich. App. 253 (1982).  For the former patient’s testimony to be at all probative, it must show that the Dr responded the same way with each patient as he did with the testifying patient.   The burden of establishing the habitual nature of the evidence rests on the proponent.  Former patient testimony is the type of character evidence contemplated by 404(b), to show plan, knowledge, identity, or absence of mistake or accident.









F.  Establishing Habit or Custom


Relevancy Unraveled, 5 Kan. L. Rev. 404 (1957), Slough, Prof., establishing an individual’s habit or an organization’s custom can be accomplished by direct testimony of persons having personal knowledge of it, stating that such is the habit, custom, or course of dealing as they have known and observed it.  Where evidence of habit or custom is admissible, the majority admit evidence of specific instances to prove it provided that the number offered is sufficient to justify an inference of habit.

i.  If a party is seeking to prove habit or custom through evidence of prior conduct, the courts will be required to balance the probative value of that evidence against the potential for confusion and delay that arises.  See FRE 403, and Zucker v. Whitridge, 205 N.Y. 50, 53-4 (1912).

Note: In Weil, if the court had concluded the evidence was admissible under 404(b), it should have considered the evidence’s designation under 406 as harmless error, and not abuse of discretion.


ii.  Organizational custom or practice usually is the product of concerted planning and is likely to be more stylized and regimented b/c it is the by-product of efficiency.  Courts have shown a greater willingness to receive evidence of custom than habit. Relevancy Unravled, at 449.


iii.  Because organizations act through members, employees, and agents, if custom is admissible to prove conduct of the organization, it must be admissible to prove the conduct of the individual who was acting for the organization.  Proof of the organization’s conduct through an individual is generally permissive in civil cases, but it may not be appropriate if individual criminal responsibility is at issue.  See. U.S. v. Angelilli, 660 F.2d 23 (2nd Cir. 1981).


G.  Relationship to Other Rules


1.  FRE 105: Limited Admissibility. If evidence is admissible for one purpose, but not for another, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Note: 105 requires the judge to give an instruction if the court admits evidence of a prior act for a limited purpose under FRE 404(b).


2.  FRE 410: Inadmissibility of Pleas, Plea Discussions and Related Statements.  Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

i) a plea of guilty which was later withdrawn;

ii) a plea of nolo contendere:

iii) any statement made in the course of any proceedings under Rule 11 of FR of Criminal Procedure or comparable state procedure regarding any of the foregoing pleas; or

iv) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Note: 410, making certain pleas or statements inadmissible, does not preclude future adversaries from using other evidence to prove the Df committed the prior offense, if evidence of that prior offense was admissible, ex: under 404(b) motive, intent, knowledge, common scheme or design. See U.S. v. Wyatt, 762 F.2d 908, 911 (11th Cir. 1985).


3.  FRE 412: Sex Offenses; Relevance of Victim’s Past Behavior.  (At common law a Df claiming the defense of consent, was allowed to introduce the victim’s unchaste character in support of that defense).

(a) Evidence generally admissible.  The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.


(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.              


Note: under 412(c), the proponent seeking admission must file a motion w/i 14 days of trial describing the evidence and its purpose, unless the court, on good cause shown allows a different time. Said motion must be served on all parties and the victim, or guardian, must be notified.  Before admitting, the court must hold an in camera hearing, affording the victim and parties to attend and argue.  


i.  412 applies in both civil and criminal proceedings412 bars evidence relating to the alleged victim’s sexual behavior or alleged sexual predisposition, whether offered as substantive evidence or impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs the possible harm to the victim.


ii.  412 does not apply unless the person against whom the evidence is offered can reasonably be characterized as a “victim of alleged sexual misconduct.”


iii.  412 extends to “pattern” witnesses whose testimony about other instances of sexual misconduct by the accused.  If the case does not involve alleged sexual misconduct, third party witness’ alleged sexual activities is not within the scope of 412, but the witness may be protected by 404, 403, and 608.


4.  FRE 609(a) Impeachment by Evidence of Conviction of Crime.  A defendant’s prior conviction that may be inadmissible under Rule 609(a) b/c it was not a felony or one involving dishonest or false statement or b/c its prejudicial effect outweighed its probative value, may still be admissible under FRE 404(b) for other purposes, such as proof of intent, opportunity, and knowledge.  See Huddleston v. U.S., 485 U.S. 681 (1989), where evidence of a defendant’s previous receipt of stolen goods was introduced to show that his later possession of stolen goods likely took place with knowledge they were stolen.


5.  FRE 609(b) Time Limit on Use of Prior Convictions.  Evidence of these convictions is usually admissible for impeachment purposes under FRE 609(a). 609 will generally render these convictions inadmissible if they are over 10 years old when used solely for impeachment purposes.  But, no time limitation is placed on the use of evidence of the acts that gave rise to those convictions if such evidence is also admissible under 404(b). Under404(b) temporal considerations are only a factor that weakens the probative value, and time is not by itself dispositive under 403.  See U.S. v. Rubio-Gonzales, 674 F. 2d 1067, 1075 (5th Cir. 1982). 


6.  FRE 702 Testimony by Experts.  FRE 405(a) provides may be proven by opinion testimony as well as reputation testimony, including both expert and lay opinions.  Under 702 opinions by experts is admissible only if based on an adequate factual foundation. See U.S. v. Hill, 655 F.2d 512, 517 (3rd Cir. 1981).


7.  If character is the proper subject of proof through reputation evidence under 404(a) and 405, it is unclear whether that evidence constitutes hearsay.  If reputation evidence is otherwise admissible, its hearsay character will not preclude its admission, b/c of an exception to the hearsay rule.

FRE 803(21) Hearsay Exceptions; Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(21) Reputation as to Character.  Reputation of a person’s character among associates or in community.           

Note: Exception (21) deals only with the hearsay aspect of this kind of evidence.  Limitations upon admissibility based on other grounds will be found in FRE 404, relevancy of character generally, and FRE 608, character of witness.




Evidence of occurrences similar to the event that gave rise to the COA can be relevant to the determination of facts in the action b/c such evidence increases the probability that (1) the event giving rise to the COA actually occurred; and (2) the event occurred in the way the proponent of the similar occurrence evidence alleges. Again, b/c this type of evidence is often relevant to material issues in litigation, courts both at the common law and under FRE will admit, unless its potential to prejudice the opposition is unfair which outweighs its probative value.


A.  Spontaneous Similar Occurrences


1.  Spontaneous similar occurrences are those that neither party has caused or instigated for purposes of the present litigation.  Spontaneous similar occurrences usually occur prior to the event at issue.  They do not include any event that reflects solely on an individual’s character, b/c it would violate the prohibition against general propensity evidence in civil cases.


2.  Evidence of spontaneous similar occurrences may be relevant in a trial: to assist in establishing the nature and condition of certain instrumentalities; it may be probative of causation; it can help establish notice of a dangerous condition.  The admissibility of such evidence is governed solely on principles of logical relevance.  See FRE 401-403.


i.  Simon v. Town of Kennebunkport, 417 A.2d 982 (Maine1980), A blanket rule of irrelevance is incompatible with modern principles of evidence.  B/c the Rules of Evidence do not bar the use of this type of  evidence, its admissibility must be determined by reference to the general provisions governing the admission of relevant evidence.  MR 401 defines relevancy in terms of probative value and materiality.  MR 402 provides that all relevant evidence is admissible, but under MR 403 although relevant, the evidence may be excluded when the danger of unfair prejudice, confusion or undue delay is disproportionate to the value of the evidence.  Under 401 the judge must first determine whether there is a substantial similarity between the proffer and the case at bar, and then if it is probative on a material issue.  Then if probative whether that value is substantially outweighed by prejudice, etc., of 403.


-RULE:  Where a proponent can show that other accidents occurred under circumstances substantially similar to those prevailing at the time of the injury in question such evidence is admissible subject to exclusion by the trial court when the probative value of the evidence on the issues of defect, notice or causation is substantially outweighed by the danger of unfair prejudice or confusion of the issues or by consideration of undue delay.

Note: Under the Rule in Simon, there are several associated risks in the use of similarity evidence.  1) the prejudice that the evidence might create to the jury; 2) jurors might be prone to overvalue the evidence; 3) evidence may surprise the opposition; 4) debate on the importance of the evidence may overwhelm the trial and distract the jury.


3.  Similarity Requirements: What Factors Courts Consider and Levels Required


Courts will first decide what circumstances are relevant in determining whether the level of similarity between other occurrences and the present COA to permit admission.  Logically, the court will examine factors such as the nature of the COA, and the conditions that surrounded the occurrence.  Once the relevant factors to determine similarity are identified, the court will then decide the level of similarity necessary to justify admission. The standard of similarity will always vary because the purpose that it is being offered will always vary.


i.  Nachtsheim v. Beech Air Craft Corp., 847 F.2d 1261, 1268-69 (7th Cir. 1988), “The foundation requirement that the proponent of similar accident evidence must establish substantial similarity before the evidence will be admitted is especially important in cases such as this where the evidence is proffered to show the existence of a dangerous condition or causation. . .At the same time the, the danger that the evidence will be unfairly prejudicial remains.”


NOTE: The admissibility of similar-occurrence evidence is primarily an issue of logical relevance, which should only require that the other occurrence evidence be similar enough to the event that gave rise to the COA to be relevant for the purpose for which the party is offering.


ii.  Some courts have imposed a ‘sufficiently similarity’ standard, which may be appropriate in instances where the dissimilar conditions of the similar occurrences are subject to the opponent’s full exploration on cross.


iii.  Other courts use a ‘substantially similarity’ standard as a precondition to the admission of all similar occurrence evidence.  This is appropriate where proponents are offering similar occurrence evidence to establish causation and the nature of a condition.






4.  Nonoccurrence Evidence: Imponderables of Negative Evidence


A party might offer nonoccurrence evidence to establish the nonexistence of a defective condition, to prove that a defect did not cause an injury, or to show lack of knowledge or notice.  The use of nonoccurrence evidence creates two distinct problems.


i.  One, how to establishe the fact of a nonoccurrence when by definition does not exist.  Therefore, the relevancy levels of this type of evidence is diminished.


ii. The second, is establishing that the circumstances during the period of the nonoccurrence were sufficiently similar to those involved in the COA that the fact of nonoccurrence is relevant to the litigation.  Typically, a party will rely on circumstantial evidence to establish the condition of nonoccurrence.  Courts use three interdependent factors to assess the adequacy of the circumstantial evidence:

a.  The closeness in time between the period of nonoccurrence and the event giving rise to the COA;


b.  Whether the condition of the instrumentality in question and the circumstances of its use are static(ex: concrete sidewalk=static vs. the condition); and


c.  The frequency of the instrumentality’s use during the period of nonoccurrence.


B.   Experiments and Demonstrations, created similar occurrences


In-court demonstrations and experiments are manufactured similar occurrences, and are governed by the same principles that govern the admissibility of evidence of spontaneous similar happenings.  A party may offer such to simulate an actual event or to demonstrate the physical properties of a material involved.  It is relevant b/c it duplicates the circumstances that existed at the time the COA arose.  Courts will require a party offering such evidence to lay a proper foundation by showing a “sufficient similarity” (usually a substantial similarity), between the conditions the experiment or demonstration creates and those that existed at the time the COA arose.

i. Randall v. Warnaco, Inc., Hirsch-Weis Division, 677 F.2d 1226 (8th Cir. 1982), A court may properly admit experimental evidence if the tests were conducted under conditions substantially similar to the actual conditions.  Admissibility does not depend on perfect identity between actual and experimental conditions.  Experimental evidence is permissible for the purpose of demonstrating certain physical properties, but it is impermissible for the purpose of reenacting the accident for the jury.  In duplicating the accident scene, the Df portrayed to the jury that on the night in question the Pl, like the five actresses, poured fuel on herself and the tent.  The admission of this evidence could be unduly prejudicial.


C.  Relationship to FRE 404 and 405


If the court determines that the evidence’s admissibility under character principles of 404(a) and 405, rather than the general standards of relevancy and prejudice potential under 401, 402, 403 (governing admissibility of prior similar occurrences), the court would exclude on two grounds.  1) FRE 404(a) precludes evidence of a party’s propensity offered to prove past conduct in civil, and only if Df offers first in criminal; and 2) under FRE 405, even if the court admits character evidence in a criminal case, proof is limited to reputation and opinion evidence–evidence of prior specific instances of conduct may not be used.

*However, under 406, exceptions for habit evidence, other-act evidence that is relevant, such as motive, knowledge, plan, intent the evidence may be admitted.


i.  U.S. v. Beechum, 582 F.2d 898 (1982), ‘substantial similarity’ is the requirement set as a precondition of admissibility when proponents have offered evidence of an individual’s prior conduct under FRE 404(b) to establish the individual’s identity as the perpetrator.


ii.  Ramos v. Liberty Mutual, 615 F.2d 334 (1980), when proponents have offered evidence of prior events under general principles of logical relevance in FRE 401-403 to identify a condition or instrumentality as the cause of an injury, ‘substantial similarity’ is the requirement as a precondition of admissibility. See also Payne v. A.O. Smith Corp., 99 F.R.D. 534 (Ohio 1983).


D. Subsequent Repairs


Evidence concerning corrective measures is often persuasive to the finder of facts that a condition was indeed hazardous and that the Df should have taken precautions prior to the incident in the exercise of due care.  Yet, introduction of that evidence as an admission of negligence would raise questions of relevance and prejudice.  To avoid that dilemma and encourage upkeep, courts have accorded a privilege status to evidence of subsequent repairs, holding it inadmissible to prove negligence or culpable conduct on the part of the one responsible for the corrective measures. The rule’s focus is on unfair admissions of negligence that the finder of fact might infer from remedial measures.


i.  Limitations on Subsequent Repair Prohibition:


a. If evidence of subsequent repair is relevant to, and offered on, any controverted issue in the litigation other than the Df’s negligence or culpable conduct it is admissible. Ex: issue of ownership or control over an instrumentality.  Howeverthese issues must affirmatively be disputed before such evidence may be offered to establish them.



b.  If the party against whom the evidence is offered was responsible for the repair, and that party is a third party, then those remedial measures may have some relevance to the Df’s negligence are admissible as proof on that issue.  See Koonce v. Quacker, 798 F.2d 700, 720 (1986); and Grenada Steel v. Alabama Oxygen, 695 F.2d 883, 889 (5th Cir. 1983).

Note: more often than not, evidence of nonparty design changes will be excluded b/c it lacks sufficient probative value to overcome the potential confusion.


c.  Concluding that the admission of evidence of subsequent repairs will jeopardize public safety is not sound.   First, that conclusion assumes that the subsequent repair privilege is well known, when it is not.  Second, the conclusion assumes that people will risk future liability through potential injuries rather than risk the increased possibility of being found liable for the injury that has occurred by changing the condition.


ii.  Subsequent Repairs and Impeachment


If subsequent repair of the instrumentality can logically be construed as an admission of the hazardous nature of the condition and of the Df’s negligence in allowing the condition to exist, that act will always be inconsistent with the Df’s testimony, and therefore, admissible for the limited purpose of impeachment. Reference supra ‘Prior Inconsistent Statements.’


a. In Probus v. Kmart, 794 F.2d 1207, 1210 (7th Cir. 1986), contradictory evidence of subsequent remedial measures could not be introduced for impeachment purposes b/c the recognition of such an exception “would elevate it to the rule.”


b.  Generally.  If a party responsible for an instrumentality volunteers testimony about its condition, courts will not prohibit its opponent from impeaching it through evidence of subsequent repairs.  Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), it was error to prohibit the Pl from presenting evidence of design changes for the purpose of impeaching the expert.


NOTE: If the court allows Pls to use evidence of subsequent repairs for the limited purpose of impeachment, the Df, would be entitled to a limiting instruction to the jury by the judge telling them that they cannot consider the evidence for any other purpose.


c.  Petree v. Victor Fluid Power, 887 F.2d 34 (3d Cir. 1989), the use of evidence served to directly contradict the expert’s claim and therefore should have been admissible for that purpose.


iii.  FRE 407: Subsequent Remedial Measures.  When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measure is not admissible to prove negligence or culpable conduct in connection with the event, or a defect in a product or its design, or that a warning should have accompanied a product.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.


NOTE: The majority of court have interpreted FRE 407 to apply to products liability actions.  See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); In re Joint Eastern and Southern District Asbestos Litigation v. Armstrong, 995 F.2d 343 (2nd Cir. 1993). *Evidence of subsequent measures that are admissible under the second sentence may be inadmissible and excluded by FRE 403’s dangers of prejudice, confusion vs. probative value.


iv.  Grenada Steel Indus. v. Alabama Oxygen Co., 695 F.2d 883 (5th Cir. 1983), [hx note, case occurred before changes in FRE 407].  B/c FRE 407 does not deal w/ alternative designs or products introduced by third parties, the applicability of the evidence must be determined first. Evidence of subsequent repair or change has little relevance to whether the product was defective at some previous time.  Consider the probative value.  Was the product or its design defective at the time the product was sold.  Introduction of evid about subsequent changes threatens to confuse the jury.  407 must conform to 403’s prejudice and confusion policy. 407 does not exclude evidence of subsequent repairs made by someone other than the Df.


NOTE: 407 made it clear that its exclusions include negligence and strict liability.


v. Feasibility of Precautionary Measures


When feasibility is at issue, subsequent remedial measures that are probative of that question are admissible.  The feasibility of precautionary measures are considered by the court unless the Df is willing to make an explicit admission on the issue of feasibility. See Rimkus v. Northwest Colorado Ski Corp., 706 F.2d 1060, 1065 (10th Cir. 1983), Df did not raise feasibility issue when it asserted safety measures were not necessary, not that they were impossible.







E.  Relationship to Other Rules


1.  FRE 105: Limited Admissibility.

Under 407 a party can offer evidence of subsequent remedial measures for purposes other than negligence or strict liability, such as ownership, control, or feasibility of precautionary measures, if relevant to the COA and those issues are contested.  Plus, a party can offer such evidence to impeach if the Df has given testimony that is inconsistent with the substance of what he has communicated through his act of repair.  FRE 105 requires that a court, on DF’s request, instruct the jury on the proper use of the evidence if used for limited purpose. See Warner v. Upjohn, 628 F.2d 848 (4th Cir. 1980).


2.  FRE 607 and 613.  The credibility of a witness may be attacked through the introduction of prior inconsistent statements, that can be in the form of utterances, or indirect communications.  So long as a party did not testify in superlatives about the superiority of his product.  See Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), it has bee generally held that “evidence of subsequent measures is no more admissible to rebut a claim of non-negligence than it is to prove negligence directly.”


3.  Under FRE 802(a), admissions are no longer included within the definition of hearsay.  The federal hearsay rule allows evidence of admissions.  Subsequent remedial measures are a form of an admission, that is the conduct acts as an implied admission that the product needed repair.  FRE 802(a) provides that conduct from which communication is inferred is only considered a “statement’” within the meaning of FRE 801(c), hearsay–an out of court statement offered into evidence to prove the truth of the matter asserted–if the actor intended the conduct to be an assertion.


4.  Offers of Compromise


Cts at common law will not admit evidence of offers to compromise claims as admissions of either validity of the claim or amount.  The compromise rule does not bar the use of this evidence if offered for some purpose other than proving the claim’s validity or amount, and includes impeachment of a witness’ credibility.  Most cts have prohibited the use of a witness’ prior settlement to impeach his testimony in the belief that the evidence has no relevance to the witness’ bias.



i.  Esser v. Brophey, 212 Minn. 194, 3 N.W.2d 3 (1942), the admissibility of a compromise is dependant on its tendency to prove an admission by conduct.  Where an admission of liability is made it is admissible.  Where there is no compromise, but a payment of a claim asserted, the payment permits an inference of admission of liability b/c a claim was made with a yielding to it.  Admissibility depends on whether an offer or payment was intended as an admission of liability or an effort to settle a dispute.  Testimony that concerned a settlement, as an admission by the witness that he was the cause of the accident and not the Df’s negligence, is admissible b/c it was not relevant to show either an admission of liability or the witness’ hostility to the Df.


FRE 408: Compromise and Offers to Compromise.  Evidence of 1) furnishing or offering, or promising to furnish, or 2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of evidence otherwise discoverable merely  b/c it is presented in the course of compromise negotiations.  This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation.

NOTE: 408 makes privileged all statements made during settlement negotiations, and provides the same protection to completed compromises as offers and settlement discussions. The prohibition on the use of all compromises, includes those a party subsequently repudiates.  The language of the rule protects the offer, the acceptance, and statements made in the course of compromise negotiations.  FRE 410 states that the actions and statements covered by the rule are not admissible ‘in any civil or criminal proceeding.’


ii.  Fasanaro v. Mooney Aircraft, 687 F.Supp. 482 (Cal. 1988), 407 was inapplicable b/c it “includes only the actual remedial measures themselves and not the initial steps toward ascertaining whether any remedial measures are called for.”

* Regular reports after an accident that document and assess conditions should not be excluded under 407.  Some portions referencing voluntary remediation may be omitted.  See McFarlane v. Caterpillar, 974 F.2d 176, 181 (D.C. Cir. 1992); and Odell v. Hercules, 904 F.2d 1194, 1205 (8th 1990).


iii.  Alpex Computer Corp., v. Nintendo, 770 F. Supp. 161 (NY 1991), publicized settlement negotiations are irrelevant to the court’s analysis under 408.


iv.  408 precludes a party from taking the documents and information most damaging to its case and giving them to its opponent during settlement negotiations to bar the opponent from using them at trial.  The only kind of documents that 408 will protect from use at trial b/c of disclosure at settlement negotiations are those actually prepared for the negotiations.  See Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th 1981).



v.  In Big O Tire v. Goodyear, 561 F.2d 1365,1368, 1372-73 (10th 1977), talks regarding the potential for a legal claim were considered “business communications” not a ‘claim which was disputed.’  The communications had not ‘crystallized to the point of threatened litigation’ for the purposes of triggering FRE 408’s prohibition. However, Affiliated Mfrs. v. Aluminum Co. of Am., 56 F.3d 521, 527 (3rd 1995), held that 408 exclusions apply where an actual dispute or difference of opinion exists, rather than when discussions crystallize to the point of threatened litigation.


vi.  There must be a claim made and an existing dispute with regard to either the validity or amount of the claim for offers of compromise to be privileged under FRE 408.


FRE 410: In either civil or criminal proceedings, evidence of Pleas; nolo contendere or guilty; or Plea Discussions, and Statements made in the course of plea discussions which do not result in a plea or a plea that is later withdrawn, are inadmissible.  However, such a statement is admissible where a separate statement, made in the course of the same plea or discussion has been introduced and the statement in the interest of fairness ought to be considered contemporaneously with it, or in a criminal proceeding for perjury or false statement, if made under oath, on the record and in the presence of counsel.

NOTE: Unwithdrawn guilty pleas are allowed for use as admissions in subsequent civil litigation of the facts that were necessary to the determination of guilt on each charge. Some jurisdictions prohibit minor charges being used b/c these pleas are irrelevant where the Df only wanted to dispose of the matter quickly rather than prove innocence.


vii.  410 does not preclude the use of statements made in the course of Plea discussions that resulted in an unwithdrawn guilty plea. 410 only protects discussions to withdrawn pleas, and the rule’s protection applies only if there was no resulting plea or if there was a plea that was withdrawn.  There is no protection to plea discussions related to pleas that were NOT withdrawn. 410 is limited to statements made to an attorney for the prosecuting authority.  Some jurisdictions have explained that to mean one who is acting on behalf or who has been given express authority to act for the prosecuting authority. See U.S. v. Lawrence, 952 F.2d 1034, 1037 (8th Cir. 1992).


viii.  410 precludes the use of prior withdrawn pleas, and statements only if used against the defendant.” Rule 410 does not extend to testimony given before a grand jury after the negotiations have been completed, even if that testimony was the product of the negotiations.  See U.S. v. Davis, 617 F.2d 677, 685-86 (1979).

In U.S. v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of Rule 410 where the U.S. Attorney believes the Df will not be completely truthful with authorities.



ix. A conflict with 410 exists under 803(22), where a judgment of a previous conviction, or evidence of a final judgment, entered after a trial or upon a plea of guilty (not nolo), if punishable by death or prison in excess of one year, are admissible to prove any fact essential to sustain the judgment, but not including, when offered by the Govt in a criminal proceeding for purposes other than impeachment, judgments against person other than the accused. *The conflict has not been challenged as of 2002.




1.  OVERVIEW:   The Hearsay Rule of today, under federal law, applies when an utterance, be it oral or written or act, if intended, is offered to prove the truth of the assertion, and such evidence is relevant.   Any other proper use of an out-of-court utterance, such as witness impeachment, memory refreshment, evidence of verbal act evidence, declarations for the purpose of establishing an independent legal entity (such as a contract), libelous statements, or statements which are used to show human impact changes, is outside the definition of hearsay, and their admission or exclusion depends upon other rules of evidence, and not the Hearsay Rule. The FRE are not the only rules governing hearsay analysis, many common-law rules dictate that some out-of-court utterances are not hearsay.  Verbal acts, verbal parts of acts, utterances, and writings offered to show effect on the listener, implied assertions, and state of mind exclusions are some assertions that are not hearsay in nature.  


a.  “Evidence of a statement made outside the proceedings in which it is being offered to prove the truth of the matter being asserted in the statement.”  NOTE: Hearsay is generally inadmissible, because the court cannot test it against faulty perception, inaccurate memory, insincerity, and ambiguity. If offered for the truth of its content, a statement’s probative value turns on the credibility of both the declarant, who observed the event and made the statement describing it, and the witness who is testifying about what she heard the declarant say.

1)  U.S. v. Brown548 F.2d 1194 (1978), the jury had no way to examine the trustworthiness of the agent’s testimony, b/c it could not examine the statements of the declarant taxpayers or others on which her testimony was directly and substantially founded.   B/c her testimony had to have been based directly on the out of court statements by the taxpayers, the Df had no opportunity to cross examine and test their assumptions.


b.  The FRE have adopted the categorical exception model, with some modification.  Some out of court utterances, by definition and historic use, are not hearsay, and therefore their admission or exclusion rest on principles apart from the FRE.







c.  Categories of Hearsay


1) Words


i.  Indirect Message

A.  Unintended Message–ex: “I am the pope,” offered to prove that the person thought they were the pope, and is therefore insane.

B.  Intended Message–ex: “You dirty stinking rat,” to prove the Df was a cheat.


ii.  Direct Message–the message is intended.  Ex: witness to auto accident states “The yellow car was at fault,” then at trial for wrongful death, listener testifies to hearing the statement to prove who was at fault.


2) Conduct

i.  Indirect Message

A.  Message was Intended.  In response to question, who cheated on the exam, W points his finger at D.

B. Message was Unintended.  Ex: ship captain inspects the ship prior to leaving, and after finishing allows his family to board for a long trip.  Boat is Safe!


2.  Common-Law Hearsay


a. Exemptions from Hearsay


1) Verbal parts of acts (Communications by Conduct); the terms have been applied repeatedly to language that is not legally operative, but merely explaining the declarant’s contemporaneous nonverbal conduct.  Since almost any utterance helps to explain conduct, the “verbal act” category provides a discretionary hearsay escape that can be invoked without the necessity of explaining why the evidence is trustworthy or meeting the other requirements of the residual hearsay exceptions.  Ex: A bar challenging the suspension of its license for solicitation of prostitution within the bar. An investigator has a woman approach him and stated “Want a good time,” constitutes a verbal part of an act b/c an out of court verbalization “Want a good time” gives meaning to an otherwise ambiguous gesture.

i.  People v. Barhart, 153 P.2d 214 (1944), The evidence of the telephone conversations was pure hearsay.  Evidence of the fact that a conversation was received would be admissible for the purpose of proving that the telephone was in order and functioning, but for no other purpose.


ii.  “Statements made in connection with activities taking place on the premises” are “verbal parts of acts” when used to show the “character of an establishment.” See McCormick, 65 Minn. L. Rev. 423,445-449 (1981).


iii. Unintended Communications.  The intention with which the message was conveyed is unrelated to the accuracy of its content.  If a statement’s accuracy is critical for its admission into evidence, b/c its relevance turns on its truth, courts should apply the H R w/o reference to the speaker’s intention.


2) Operative facts; Statements that have legal significance b/c of their utterance under designated circumstances are not H if repeated in ct to establish the occurrence of the legal event, ex: statements of conveyance, slanderous statements, and creating Contracts–the legal relationship by the oral exchange that has been reduced to writing. Ex: “I accept your offer,” is used to show acceptance; or “This is a gift,” is used to establish a transfer of a gift.  Legally operative language is being used to show the existence of the legal relationship that it creates. By contrast, if one assumes that attempting to bet is a crime and hence the bookmaker’s calls were legally operative, the utterances were not being used for what they did, but to show what they expressly or implicitly said(that the bookie was a bookie); and when used in this fashion, operative language is not necessarily inadmissible.


i.  Freeman v. Metropolitan Life468 F. Supp. 1269 (1979), Statements of the offer and acceptance that formed the contract were verbal acts or operative facts demonstrating the creation of the contract.  The statement “I want to cancel,” the group policy with the employer constitutes a “verbal act.”  Whether he wanted to cancel his coverage is irrelevant.  The statement made is important b/c it was made in the witness’ presence, and bears on his reasonableness in acting in accordance with it.


Rationale Background for Hearsay: The H.R. is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact.  Out of court statements are traditionally excluded b/c they lack the conventional indicia of reliability; they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant’s word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury.





3) Impact on the Listener–a statement is not hearsay if the issue is the statement’s effect on the hearer, not whether the statement itself is true.  Ex: If the Reasonableness of a person’s conduct is in issue, information brought to that person’s attention through the statements of others is relevant, regardless of whether the statements are true.  Such as where a Df claims R apprehension, and therefore justification in responding to another’s actions based on the fear he Reasonably felt after hearing and believing another’s statement.


i. If the out of ct declarant’s knowledge is relevant, statements of fact reflecting knowledge of those facts by the individual uttering them, are not H b/c their value to the litigation is not dependent on belief in the truth of their content.


ii.  U.S. v. Parry649 F.2d 292 (1981), statements offered to establish knowledge of identity are not H. Using an out of court utterance as circumstantial evidence of the declarant’s knowledge of the existence of some fact, does not offend the hearsay rule.


iii.  U.S. v. Cantu, 876 F.2d 1134, 1137 (5th 1989), statements made to the Df by a paid informant were hearsay when offered to show that the govt induced Df to commit the offense. The statements were not offered “as an assertion of a fact, but, rather as the fact of an assertion.”  In other words, it is the mere utterance of the informant’s suggestion to the Df that made the statements relevant, b/c the effect of the statements had on the Df’s inclination to commit the offense. It was not offered for the truth of the matter asserted.


4) Impeachment


5) Refreshment-recollection


6) Warning–WATCH OUT! Cautionary statements are exempt from HR.


7) State-of-Mind

i.  Implications of verbal communications are most often relevant to prove the declarant’s state of mind and, therefore, would be admissible under the state of mind exception.



b.  If a party offers testimony that there have been no complaints about a particular situation as evidence that there was nothing to complain about, that silence is hearsay.  The silence is being offered for the truth of the what was impliedly communicated through the failure to speak. See  Menard v. Cashman, 94 N.H. 428 (1947).  However, in St. Louis v. Arkansas & T. Grain, 42 Tex. Civ. App. 125 (1906), lack of complaints from other purchasers from the same lot of corn was not hearsay b/c the witness simply stated a fact w/i his own knowledge; that he did sell the corn and no complaints were ever made.  These are facts not declarations of third persons.  See also Falknor, Silence as Hearsay, 89 U.Pa.L.Rev. 192(1940)


c.  Communications by Machines


i. To ascertain the time by inquiring of someone else and then later asked to establish the time of an event that immediately followed constitutes hearsay.  See U.S. v. Brown, 548 F.2d 1194 (5th 1977).  With all mechanically produced evidence (looking at the watch itself), the proponent must demonstrate, through a qualified witness, that the equipment was functioning properly at the time in question.  See City of Webster Grove v. Quick, 323 S.W.2d 386 (1959).





a. Overview

1)  801 contains definitions of hearsay

2)  802 prohibits the use of hearsay as evidence

3)  803 and 804 govern the admissibility of hearsay through the exception of 802.


b. 801(a), “Statement,” any oral, written assertion by a person, or nonverbal conduct if it is intended by the person as an assertion.  Communications are “statements” only if the declarant intended to convey a particular thought.  Under 104 the trial judge must resolve whether the statement is admissible, or relevant conditioned upon a fact beforehand.  *Not assertions by animals.  Implied utterances do not apply.


1) Wright v. Tatham7 Ad. & El. 313 (1837), implied communications have nothing to do with the Hearsay Rule. Proof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.


2) “Assertion” has not been legally defined, so the courts are free to determine within their discretion. *Commands are not assertions.


i.  If the declarant did not directly state the words challenged as hearsay, courts do not consider the statement as having been “asserted,” for hearsay purposes.


3)  INTENT of Person–this is a hard sell b/c the interpretation of what an ‘act’ “intends” within the confines of an oral, written communication or assertion, varies from person to person.


i.  U.S. v. Zenni492 F. Supp. 4664 (1980), The drafters of the FRE agreed that implied assertions should be treated as hearsay. FRE 801(a)(2) removes implied assertions from the definition of statement and consequently from the operation of the hearsay rule.  They did this by providing that no oral or written expression was to be considered hearsay, UNLESS it was an “assertion” concerning the matter sought to be proved and that no nonverbal conduct should be considered hearsay, UNLESS it was intended to be an “assertion” concerning said matter. The key to the definition of “STATEMENT” is that nothing is an assertion unless intended to be one.


ii.  U.S. v. Reynolds715 F.2d 99 (1983), If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. (801[c]).  Statements containing express assertions may also contain implied assertions qualifying as hearsay. The statement was not offered for the purpose of proving its express meaning, it was offered for the implied assertion that one Df was involved in the crimes for which the two were charged and tried. The statements were hearsay and inadmissible.


NOTE: The H R forbid merely the use of extrajudicial utterances as an assertion to evidence the fact asserted.  This would be testimonial.  What the H R forbids is the use of testimonial evidence i.e. assertions–uttered not under cross-examination.  See Wigmore, Evidence § 1788 (1976). 


d.  Implied Assertions as Hearsay.


1)  Inferential conduct has hearsay implications that litigants frequently overlook.  Ex: evidence of a person having stopped his car at an intersection, offered to prove that the light was red. This evidence is hearsay b/c an objective fact is being proved through the message that the conduct communicates.




e.  Conduct that was Intended as an Assertion


1) The burden of establishing whether the conduct offered as evidence was intended as an assertion rests with the opponent.  When evidence of conduct is offered on the theory that it is not a statement, and not hearsay,  a preliminary determination will be required to determine whether an assertion was intended.  The rule is so worded as to place the burden on the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. Advisory Committee Note on FRE 801(a).


e.  To determine whether the offered Evidence is admissible :


1) Why is this statement Relevant (if relevant to the proof of a proposition solely b/c of the fact that the word was uttered, there is no hearsay) ; and

2) 403: Not prejudicial or confusion; and

3) C.L. 1-6; or

4) 801(d)(1),(2),(3)


4.  Code Exemptions from Hearsay


a.  All party admissions (five different types under 801(d)(1)(2)), are admissible and exempt from Hearsay Rule, no matter their form, and the statement is :


b.  FRE 801(d)(1),

A) One of Identification of a person made after perceiving the person,

ex: –“that’s the guy,” during a police line-up; or

B) Inconsistent with declarant’s testimony; or

C) Consistent with declarant’s testimony and is offered to rebut an express or implied charge of recent fabrication, improper influence or motive.


5.  Inconsistent Statements


a.  801(d)(1)(A) allows inconsistent statements to come into evidence for their truth, as well as for impeachment purposes, but their use is limited to situations where the declarant made the statement while under oath, subject to perjury at trial, hearing or other proceeding.  If not made under oath, a prior inconsistent statement is considered hearsay if used to prove the truth of its contents–the truth about what it asserts.



i.  State v. Smith97 Wash.2d 856 (1982),  Historically, “Other proceeding,” as used in the rule, includes grand jury proceedings.  The 9th Cir interpreted it to be open ended and not restricted just to grand jury proceedings, it compared grand jury proceedings with immigration proceedings and held the two shared enough similarities to admit statements.  There’s no question that the statement was made b/c she testified to that fact.  Minimal guarantees of truthfulness were met since the statement was attested to before a notary, under oath, and subject to penalty for perjury, plus the witness wrote it in her own words.  During her testimony the jury could evaluate the explanation of the inconsistency and determine whether true or not.


ii.  Courts have generally concluded that sworn statements made during investigations to police and govt investigators are not statements made in a proceeding, under the “other proceeding” clause.  See U.S. v Day, 789 F.2d 1217 (6th  1986); U.S. v. Ragghianti, 560 F.2d 1376 (9th 1977); Martin v. U.S., 528 F.2d 1157 (4th 1975); U.S. v. Livingston, 661 F.2d 239 (DC 1981).


b. Former Testimony–if the witness is unavailable at a second trial, the only way that his testimony from the first trial can be offered as substantive evidence is through the former testimony exception contained in 804(b)(1). That requires: 1) the testimony was given in an adversarial proceeding where the opponent had an opportunity to direct, cross, or redirect, and 2) the opponent is a) the same party if it’s a criminal case, or b) a predecessor in interest if its is civil case.  When the witness is available, 801(d)(1)(A), like 804(b)(1) requires that the prior statement was given under oath, but does not require that it was given in an adversarial proceeding.


c. Prior Identification–if a witness gives sworn testimony before a grand jury and identifies the Df, but subsequently recants at the Df’s trial, the prior identification could be admissible either as a prior inconsistent statement under 801(d)(1)(A),or as a prior identification under 801(d)(1(C). See U.S. v. Marchand, 564 F.2d 983 (2d 1978).


d. If the witness did not make a prior inconsistent statement under oath, its use is limited to impeachment. Its admissibility is enhanced in one respect b/c hearsay concerns are avoided.  If there is potential unfair prejudice from the use of such evidence, its admissibility may be affected negatively. When used for impeachment the balancing of probative v. unfair prejudice may call for exclusion under 403.







6. Consistent Statements


a.  801(d)(1)(B) excludes prior consistent statements from H R, and allows them to be used for rehabilitation and as substantive evidence.  The Rule Applies only after a party ATTACKS a witness’ credibility by an express or implied charge of recent fabrication, or improper influence or motive.  See Morgan, Hearsay Dangers . . ., 62 Harv. L. Rev. 177, 192(1948).

NOTE: Cts gen. consider a witness’ prior statements to be H if offered to prove the truth of their content; a party may not introduce these statements into evidence unless otherwise admissible under one of the exceptions to the H. R.


b.  For Rehabilitation an Impeached Witness–Scope


1) Consistent statements are not admitted as substantive proof of facts stated, they are admitted only for the purpose of showing that act of making the consistent statement.


2) The scope is limited to the fact of assertion, not the facts asserted.  To determine correctly the issue which the evidence is offered to prove, look carefully at the type of impeachment, and determine how that particular evidence serves to discredit the witness. See Thomas, Rehabilitating the Impeached Witness . . ., 32 MO. L. Rev. 472, 473-488 (1967). *If the motive to Fabricate arose from the existence of a bias, only those statements made before the time of the claimed bias are relevant to rehab.


Note:  Most states admit certain consistent statements for the rehabilitation of a witness impeached by a showing of bias, interest, or corruption.


3)  Tome v. United States513 U.S. 150 (1995), 801(d)(1)(B)–prior consistent statements are not hearsay, only if they are offered to rebut a charge of “recent fabrication or improper influence or motive.”

A witness’ consistent statement is placed in the same category as a declarant’s inconsistent statement made under oath.  Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely b/c she has been discredited.  The conditions that 801 allows prior consistent statements to be used makes it all the more important to observe the preconditions for admitting the evidence in the first place.  Hearsay is often relevant, and relevance is not the sole criterion for admissibility. 801 permits introduction of a declarant’s out of court consistent statements to rebut a charge of recent fabric, improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive.


A.  801(d)(1)(B)–all out of court statements offered to prove the truth of the matter asserted are hearsay, and prior inconsistent statements should not be classified as hearsay if the declarant is testifying and repeating his own statement.  It excludes consistent statements ONLY IF there had been an express or implied charge of recent fabrication or improper influence or motice AND the statements are offered in rebuttal.


c. Recent Fabrication –Another type of impeachment is where consistent statements are relevant for rehabilitation is called “recent fabrication” or “recent contrivance.”  These cases involve impeachment by a charge that the testimony is a fabrication of recent date, or complaint only recently made.  The implication that the testimony is not the story told by the witness from the beginning, but is one concocted for the purpose of the trial. Impeachment can be refuted in two ways with consistent statements:

i. It may be shown that the witness was not silent as alleged, but in fact made the statements claimed to have been omitted. The relevance is obvious; they directly contradict the charge of silence.


ii. By showing consistent statements made at a time near the alleged silence although not on that particular occasion. It is relevant b/c it explains the ambiguous nature of the silence.


iii.  Oversight and forgetfulness also explain silence.


d. Courts vary on what constitutes an implied charge, see U.S. v. Herring, 582 F.2d 535 (10th 1978); and U.S. v. Icanonetti, 406 F. Supp. 54 (1976); U.S. v. Majors, 584 F.2d 110 (1978).

i.  Judge Weinstein, “normal usage would argue that the words ‘fabrication,’ influence,’ and ‘motive,’ are only intended to cover situations where the witness deliberately changes his story.” 5 WEINTSTEIN’S FEDERAL EVIDENCE, § 801.12[2][b], at 801-31.


ii.  Merely raising testimony that contradicts the testimony of a preceding witness has not been considered sufficient to raise an implied charge, see Breneman v. Kennecott Corp, 799 F.2d 470 (1986); and usually the proponent of the consistent statement must “point to specific questions during his adversary’s examination that suggest fabrication or bias.”  See U.S. v. Lozado-Rivera, 177 F.3d 98 (1999).


e. Rehab after Impeach by Inconsistent acts. Upon a charge that a witness’ testimony is inconsistent with his prior conduct, the witness may be rehabilitated by offering the statements that the witness made at or near the time of the conduct.  Those statements are relevant to explain the acts and thus refute the inconsistency.


f. Rehab after Impeach by Inconsistent statements.  Most states reject consistent statements where the impeachment is by inconsistent statements.  Inconsistent statements cannot be admitted to prove the truth of the statement, b/c that violates the H.R. This theory of impeachment depends only on showing that the act of making the inconsistent statement.  The out of court statement is offered to show that this witness is capable of making errors in his story, and from this the jury is asked to infer that he is capable of making other errors; therefore, his testimony is unreliable.  When both statements are placed side by side, both cannot be correct. This raises doubt as to the truthfulness of the statements.  A consistent statement fails to rehab at this point b/c it does not refute the discredited fact.

i  Michigan Rule: Consistent statements after impeachment by inconsistent statements are excluded on some occasions and admitted on others.  Proof that the witness told the same story on a prior occasion does nothing to show the truthfulness of his testimony.  Consistent statements are not admitted for this purpose, but they are admitted for consideration in determining whether the witness made the alleged inconsistent statement.


g.    Historical Significance behind the H.Rule


1) The Hx significance may assist an attorney to successfully argue admission/exclusion to the court.  Tradition provides that only challenges to relevancy may be made, with 3 safeguards:

i.  If evidence can’t be cross-examined, or


ii. Put under oath, or


iii. Gauge the sincerity through review (judge or jury’s presence);

Then it may be within the CLAW of the H. Rule=Hearsay. Not every utterance, document, or at rose to the level of Hearsay.


2) Conditions where offering are made w/o reference to the truth of the matter asserted are determined by examining the Pleadings.  What is being claimed? Ex: PL sues Df for prod liability.  Testimony of condition is not testimony of the truth of liability.  Ex: While dying, the declarant “I’m a banana.”  It is an out of court declaration which cannot be cross examined, but if offered to show the declarant was alive and suffering, it is only admissible, if relevant, when offered to prove something other than the truth of the matter; such as pain and suffering, rather than negligence.






7.  Statements of Identification

a.  801(d)(1)(C): A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-exam concerning the statement, AND the statement is one of identification of a person made after perceiving the person . . .


b.  “After Perceiving the Person.”  U.S. v. Marchand, 564 F.2d 983 (1977) interpreted the Rule to allow witness identifications from photographs and sketches of a person the witness had “initially perceived.”  However, U.S. v. Hudson, 564 F.2d 1377, 1379 (1977) held that the nature of the out of court i/d has no effect on the evidence’s admissibility. “Though a prior i/d may be equivocal, the jury is entitled to give it such weight as it will after hearing the testimony under direct and cross. FRE 801(d)(1)(C) governs admissibility, not sufficiency.”


c.  The rule has not been interpreted to mean that only the declarant can testify to his or her out of court identification.  U.S. v. Elemy, 656 F.2d 507 (1981), as long as the declarant was available at trial for cross, anyone could testify to the identification, including an FBI agent regarding the declarant’s out of court i/d.  In U.S. v. Owens, 484 U.S. 554 (1988), a declarant’s loss of memory does not preclude a prior i/d from being admitted under Rule 801, even though it makes the witness technically unavailable under 804(a). The Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent wished.




A.  Categories of Hearsay Exceptions.  FRE 803 addresses (23) referenced exceptions for which the declarant’s availability is immaterial; and FRE 804 addresses four (4) exceptions that require, as a prerequisite to admissibility, a showing that the declarant is unavailable; and under FRE 807 an additional exception exists which operates irrespective of the declarant’s out of court presence.

1.  Those that require a showing that the out of court declarant is unavailable to testify;

2. Those that do not require a showing that out of court declarant is unavailable to testify.


B. Exceptions in which Declarant’s Unavailability is Material as Requisite to Admissibility.  There are four exceptions:

1.  Dying declarations.

2.  Former testimony.

3.  Declarations against interests.

4.  Statements of personal or family history.


C. Common Law Unavailability.

Unavailability refers solely to the absence of a witness’ live testimony, but it is not limited to physical absence.  Where a witness is present but asserts a privilege, or refuses to cooperate, or has a mental or physical condition that prevents testimony, that witness is unavailable.


D.  Codification

FRE 804, established that no basis of unavailability will be sufficient if it has been procured by, or is the product of, wrongdoing on the part of the hearsay proponent.

1.  FRE 804(a) Unavailability as a witness includes situations where the declarant–is exempted by a ruling from the court; or refuses to testify despite court order; or testifies to lack of memory; or is unable to be present or testify b/c death, illness, or infirmity; or is absent and the proponent cannot procure the declarant’s attendance (or in the case of a hearsay exception under 804(b)(2),(3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.  A declarant is unavailable if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent for the purpose of preventing the witness from attending or testifying.


2. Changes in the Rule from the Common Law.


i.  The Rule does not differentiate between memory loss and the refusal to testify.


ii.  If a hearsay declarant (witness) is w/i the court’s jurisdiction, and his whereabouts can easily be ascertained, the proponent of hearsay statements under an exception requiring a declarant’s unavailability to use the court’s subpoena power. See U.S. v. Lopez, 777 F.2d 543(1985); and U.S. v. Kehm, 799 F.2d 354 (1986).  In addition to a showing that declarant’s personal attendance was impossible, the Rule also requires the proponent prove he made a good faith but unsuccessful efforts to locate him or unsuccessfully subpoena him, the dying declaration a declarant, a declaration against interests, or a statement of personal or family history also must show that the declarant’s testimony is unavailable.  This requires a showing that the proponent unsuccessfully attempted to obtain the testimony through depositions and interrogatories.


iii.  If the hearsay declarant is outside the court’s jurisdiction, under 804, the proponent of the hearsay statement is required to attempt to obtain the witness’ presence by process “or other reasonable means.”




3.  Unavailable upon a Claim of Privilege.


A claim of privilege satisfies the unavailability requirement only if the witness is actually called to testify and responds with a claim of privilege.

i.  U.S. v. Pelton, 578 F.2d 701, 709-10 (1978); and U.S. v. Williams, 927 F.2d 95, 99 (1991) where the ct held that while personal appearance to claim the privilege often is the preferred practice, it acts as a meaningless gesture in others.


4.  Refusal to Testify


Under 804(a)(2) a proponent will not have made a sufficient showing of unavailability UNLESS the court has ordered a witness to testify and he still refuses to do so.

i.  U.S. v. Oliver, 626 F.2d 254, 261 (1980), where the trial judge ruled the witness against the Df was unavailable for refusal to testify and allowed the introduction of the witness’ confession, and the judge informed the witness that he had no Fifth Amend privilege not to testify and his refusal would nullify his plea bargain, the App Ct ruled this warning constituted judicial pressure.  Therefore, the govt could not prosecute the recalcitrant witness because the court never ordered him to testify as a requisite to the invocation of 804(a)(2).


5.  Lack of Memory, Physical and Mental Incapacity—Duration.


Absence due to physical or mental incapacity and loss of memory differ from other grounds of unavailability.  If a proponent relies on loss of memory or physical or mental incapacity, then the proponent must establish that the duration of the declarant’s absence probably will be sufficiently long that the need for the evidence contained in the hearsay statement cannot be met by a temporary delay in the trial. The imposition of the requirement is discretionary, and will turn on a balance of the nature of the unavailability condition and the testimony’s importance to the fair resolution of the issues.

i.U.S. v. Amaya533 F.2d 188 (1976), Unavailability of a witness is an exception to the hearsay rule where the declarant is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity.  The duration of an illness is a proper element of a determination of unavailability, but the establishment of permanence as to the particular illness is not an absolute requirement.  The duration of the illness need only be in probability long enough so that, with proper regard for the importance of the testimony, the trial cannot be postponed.  With memory loss there is no guarantee that the witness’ memory will ever return.


ii.  North Mississippi Comm. V. Jones, 792 F.2d 1330, 1336 (1986), the degree is as important as duration. Where loss of recollection about some detail is not sufficient to make the witness unavailable and his prior testimony admissible.  The level of detail lost, and its importance to the testimony are important factors.


6.  Intentionally or Recklessly Causing Unavailability


The proponent of hearsay statements, who seeks a finding of a declarant’s unavailability will be precluded from using the statements if the proponent intentionally or recklessly caused the unavailability. See U.S. v. Pizarro, 756 F.2d 579 (1985).

i. U.S. v. Mathis, 550 F.2d 180 (1976), illustrated the scope of recklessness required.

ii. A court will preclude hearsay statements that fall within one of the exceptions of 804 if the proponent intentionally or recklessly causes the unavailability.  Cts have held that seeking a grant of immunity to overcome a witness’ assertion of a privilege is not a prerequisite to the claim of unavailability before it can use the hearsay statement.  U.S. v. Lang, 589 F.2d 92 (1978).

a.  U.S. v. Morrison, 535 F.2d 223, 229 (1976), the ct found that the U.S. Attorney had an obligation to overcome the defense witness’ unavailability, which it had caused, by seeking immunity for the witness.


E. Former Testimony

Former testimony denotes a witness’ statement under oath at a trial, hearing, or other proceeding, or at a deposition prior to a proceeding which is being offered into evidence.


1.  Common Law

Though classified as hearsay, cts have considered former testimony to be reliable b/c it provides: 1) some assurance of sincerity–given under oath; and 2) it provides some test of accuracy and reliability b/c it was subject to cross examination.

i. Cts developed three requirements to ensure the reliability of former testimony evidence and the fairness of its use:

a. The witness must be unavailable;

b.  The witness must have been subject to cross-exam when previously testified;

c. There must have been an identity of the parties and the issues in the two proceedings.


Note: the party against whom the testimony was being offered against need only have been afforded the opportunity to cross-examine in the prior proceeding.  If a party decided not to exercise that right, that party must abide by that waiver in subsequent proceedings and cannot object if that testimony is subsequently offered against him. See Hendrix v. Raybestos, 776 F.2d 1492, 1506 (1985); and Wright Root Beer v. Dr. Pepper, 414 F.2d 887, 890 (1969).


ii.  To ensure that cross examination was adequate to meet the needs of the subsequent litigation in which it is being offered, cts require that the issues, as well as the parties, be identical in both proceedings, but some cts have relaxed the standard from total identity to substantial identity all the way to the same interest and motive to delve into and test the testimony in question.


iii.  A proponent can introduce former testimony as evidence in two ways: 1) through the testimony of an observer w/ firsthand knowledge of that to which the witness had previously testified; or 2) through the official transcript made at the prior proceeding.

a.  IF a transcript is used a new level of hearsay is introduced.  The transcript is ‘testifying’ to what the court reporter ‘told’ it what the witness stated.  The transcript is being offered for the truth of what the court reporter asserted, namely, that the witness uttered certain words.  If the witness’ words are being offered for their truth, two levels of hearsay are opened, and the proponent may introduce the transcript ONLY IF hearsay exceptions are applicable to both levels.

b.  The proponent may resolve the first level of hearsay, concerning the fact of the assertion, through the past recollection recorded exception (assuming the ct reporter is available to qualify it), or the business records exception.

c. The second level of hearsay, relating to the contents of the transcript being offered for the truth of the matter being asserted,  may be resolved by the former testimony exception.

NOTE: If the prior testimony is proved through audio or videotape rather than transcript, only the second level–the utterance itself–is implicated, and if the mechanical reproduction is properly authenticated, the hearsay dangers of perception, memory, and sincerity are nonexistent.


2. Interpretation by FRE


A.  FRE 804(b)(1): If the declarant is unavailable as a witness, testimony given as a witness at another hearing, proceeding, or deposition, is not excluded by the hearsay rule, if the party against whom the testimony is now offered, or a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect.


i.  Under the FRE, former testimony, to be admissible is a subsequent proceeding must have been offered against a “predecessor in interest.”  804 relaxed the standard concerning the identity of the issues by requiring on that the predecessor have had a “similar motive to develop the testimony.”  This standard is equivalent to “substantial similarity.”

ii.  Lloyd v. American Export Lines580 F.2d 1179 (1978), The investigating officer was the litigant’s predecessor in interest b/c he had an opportunity and similar motive to develop the Df’s testimony about the same material facts at the former hearing.  If it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party.


B.  Opportunity and Similar Motive to Develop Prior Testimony

Former testimony should be considered to have fulfilled the requirement of opportunity for cross examination only if there was a meaningful opportunity to develop the testimony in the prior proceeding.

i. Opportunity–This means that the ct in the prior proceeding must not have restricted either the manner or scope of the inquiry beyond what would have been possible and reasonably necessary in the proceeding in which the testimony is subsequently offered. The fact that the opponent did not take advantage of an earlier opportunity is irrelevant, but if that party was not the same opponent in the prior as the current, a ct might not hold against a successor the predecessor’s failure to exercise the opportunity to develop the testimony.

ii.  Similar Motive–Cts determine similar motive based on whether the issues as to which the testimony was offered in the prior and subsequent proceedings are sufficiently similar that the forerunner of the party against whom it is now offered would have been prompted to test it adequately on cross so that the testimony’s reliability is apparent.  This determination requires that the issues in the two proceedings be the same or substantially similar.

NOTE: 804 does not limit the use of former testimony, it can be used against any party, including the party who previously offered it. 

iii.  In U.S. v. Salerno, 505 U.S. 317 (1992) the Court held that unless there is a specific showing of “similar motive” by the proponent, grand  jury testimony is not admissible pursuant to Rule 804(b)(1).

iv. In criminal actions, former testimony may be used only against the same party against whom it was previously offered.  The 6th Amendment right to confrontation does not appear to compel a hard and fast rule excluding former testimony.

a.  Ohio v. Roberts448 U.S. 56 (1980), the Confrontation Clause guarantees only that the prosecution in a criminal case must 1) use reasonable efforts to locate the witness and produce her at trial, and 2) that the evidence employed in lieu of live testimony bear adequate “indicia of reliability,” through factors such as prior testimony under oath, party had an opportunity to cross examine, and the proceedings were conducted by a judicial tribunal equipped to provide a record of the hearing.  Both 1-2 are factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding of an unavailable witness, in place of live testimony at trial.


C.  Former Testimony in Criminal Cases

The Sixth Amendment’s Confrontation Clause neither compels nor justifies precluding a criminal defendant’s use of prior testimony against the prosecution, even if the testimony was previously used against a different party.  Under Rule 804(b)(1) the party against whom prior testimony is offered in a criminal case, whether the defendant or prosecution, must be the same.


F.  Dying Declarations


1.  FRE 804(b)(2): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of WHAT THE DECLARANT BELIEVED to be his impending death.

Note: The Rule no longer requires the declarant to be dead for the exception to apply.

a.  Johnson v. State, 579 P.2d 20 (1979), The admission of dying declarations, under certain conditions, is a well recognized exception to the rule excluding hearsay testimony.  The basic reasons are necessity–because of the witness’ death–and a belief that the approach of death removes ordinary motives to misstate.  FRE no longer require abandonment of all hope of recovery, because such a standard is overly demanding and it rarely exists.  What is required is that the declarant have such a belief that he is facing death as to remove ordinary worldly motives for misstatement.  The ct should consider the totality of circumstances including the presence or absence of a motive to falsify and the manner the statement was given/received.  The proper standard is ‘awareness of impending death.’

i.  The judge must decide the issue of whether the proponent has satified each factual element of the dying declarations exception using FRE 104(a) during the Preliminary questions.



ii.  FRE 804(b)(2) does not explicitly require the declarant to have firsthand knowledge of the thing about which he speaks.  FRE 602 requires that all witnesses testify from firsthand knowledge, except for admissions by a party opponent under 801(d)(2), findings of fact under 803(8)(C), and expert testimony under 703.


iii. Introducing a dying declaration, is an offering of a statement by an unavailable declarant, and therefore subject to reputation attack for truth and veracity.  May not attack their credibility through a showing of a lack of religious belief, but may discredit the reliability by proving lack of belief in a superior being. See State v. Quintana, 98 N.M. 17 (1982).


iv.  As an alternative to a dying declaration, the proponent may be able to demonstrate that the statement was an excited utterance because the trauma caused by anticipated death is of a nature to create lasting stress.  This offers the assurance of spontaneity and reliability under 803(2).


G.  Declarations Against Interests


1.  FRE 804(b)(3): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another,that a reasonable person in the declarant’s position would not have made the statement UNLESS [he believed] it to be true.  A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is NOT ADMISSIBLE UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement. 

i.  The common law required the declarant to be unavailable for live testimony, with personal knowledge, and only applied to pecuniary or proprietary interest, not criminal. The FRE extended that principal.


ii. Chambers v. Mississippi410 U.S. 284 (1973), The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.  The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf are essential to due process. Df was denied the opportunity to subject the witness’ damning repudiation and alibi to cross-examination.  He was not allowed to test the witness’ recollection, to probe into the details of his alibi, or to ‘sift’ his conscience so that the jury could judge for itself whether it was trustworthy or not. Under circumstances that assure reliability and thereby compensate for the absence of an oath and opportunity to cross-examine, declarations against interest are an exception to hearsay.  This exception is founded on the assumption that a person is unlikely to fabricate a statement against his own interests at the time it was made.


Note: The Ct concluded that b/c the circumstances of the case demonstrated that a third party’s admissions of guilt were assured of being trustworthy, the trial ct should have admitted the statements under the declaration against interests exception, even though the proponent had not satisfied the requirements of that exception. @ 302: The HR may not be applied mechanistically to defeat the ends of justice. 


iii.  Williamson v. U.S., 512 U.S. 594 (1994),[this decision was only an interpretation of FRE 804(b)(3) and is not binding precedent on the states.].  804 cannot be read to mean that collateral statements–even ones that are not in any way against the declarant’s interest–are admissible.  The question to resolve under 804(b)(3) is whether the statement was sufficiently against the declarant’s penal interest such that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.  This must be answered after taking in all the surrounding circumstances.


Note: Under Williamson, 804(b)(3) does not include statements made that collaterally inculpate third parties.  Statements that do not serve to inculpate the declarant are inadmissible.  To be admissible statements must be ‘truly self-inculpatory, rather than merely attempts to shift blame or curry favor.’


iv.  Statements against an unavailable declarant’s interests can be relevant in the trial of a third party IF portions of those statements either inculpate or exculpate that third party.  This is true in civil or criminal settings.  Ex: A woman was raped by one man.  The declarant states “I raped that woman.”  This statement is against penal interest, and the exculpatory value for another man on trial for the same rape is direct, not collateral. By inculpating himself the declarant exculpates the other.


v. Lilly v. Virginia, 527 U.S. 116 (1999), When a person accuses another of a crime where the declarant stands to gain, the accusation is suspect and must be subjected to scrutiny of cross.  An accomplice’s statement against his own penal interest cannot be used against the Df without being subject to trustworthiness.  Williamson.  Precedent holds that an accomplice’s statements that shift blame to a Df fall outside hearsay exceptions that are so trustworthy that adversarial testing would add little to its reliability.  To be admissible under the Confrontational Cl. hearsay evidence used to convict a Df must possess indica of reliability by virtue of its inherent trustworthiness, not be reference to other evidence at trial.


NOTE: The Lilly decision does not preclude State Courts from continuing to admit collaterally inculpatory and exculpatory statements in civil litigation and against the Gov’t in state criminal proceedings because the 6th Amendment doesn’t apply.



2.  The Rule contains an express limitation: exculpatory portions of declarations against interest are admissible ONLY IF ‘corroborating circumstances clearly indicate the trustworthiness of the statement.’ The Committee Notes indicate that “the requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication.”

i.  None of the elements of the declaration against interest exception designed to ensure reliability are applicable to statements made by a party opponent, b/c under 801(d)(2) all party admissions are admissible.  All declarations against interest are admissions if used against the declarant.


3.  Trustworthiness is determined by analyzing two elements: the probable veracity of the in-court witness; and the reliability of the out-of-court declarant.


i.  Under the legislative history of 804 and the Williamson decision it is clear that declarations against interest that are directly inculpatory of third parties are admissible in the absence of a Confrontational Cl. issue.


ii.  Supreme Court decisions have since decided that the Confrontation right no longer requires a demonstration of the unavailability of the hearsay declarant.  If a hearsay statement falls within the exception, and carries indica of reliability, the Confrontational Cl. is not implicated.  See U.S. v. Inadi, 475 U.S. 387 (1989); and Bourjaily v. U.S., 483 U.S. 171 (1987), where theGlasser rule (requiring independent corroboration of the existence of the conspiracy and of the Df’s participation in it) was abolished.


H.  Party Admissions


1.  FRE 804 (b)(6): The following are not excluded by the hearsay rule IF the declarant is unavailable as a witness: A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did procure the unavailability of the declarant as a witness.


Note: The exception is not premised on the reliability of the hearsay statements, but it is premised on the necessity created by the opposing party’s intentional wrongdoing.  A party forfeits the right to object on hearsay grounds to the admission when the party’s deliberate wrongdoing or acquiescence procured the unavailability.  The wrongdoing need not consist of a criminal act, and the rule applies to all parties, including the GOVT.

i.  Under 804(b)(6) a party would not only be responsible for his own actions but also for the conduct of others in which he is perceived as acquiescing.  The acquiescence standard places an affirmative duty on the parties to prevent any known outside actor from causing the declarant to become unavailable.



ii.  Under 801(d)(2) A statement is not hearsay if the statement is offered against a party and is (A) the party’s own statement, in either an individual or representative capacity; or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under (C), . . .(D), or the existence of the conspiracy and the participation . . (E).

i.  Under 801(d)(2)(A), Individual admissions are simply statements by a party to the litigation that are offered against it. The can be either oral or written, and the party need not be present, available, or even alive when they are offered against it.  See Savarese v. Agriss, 883 F.2d 1194, 1200-01 (1989).


2.  Contractor Utility Sales v. Certain-Teed Products, 638 F. 2d 1061 (1981), Although prior pleadings cease to be conclusive judicial admissions, they are admissible in a civil action as evidentiary admissions. . . .When a pleading is amended or withdrawn, the superceded portion ceased to be a judicial admission, but it still remains as a statement once seriously made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extrajudicial admission made by a party or his agent.  (Nisbet v. Van Tuyl, ruled that although a prior complaint was not to be considered on a motion for summary, it would have been admissible at trial).

i. Statements in briefs can be used as evidentiary admissions against the party who filed them.  See Kassel v Gannett Co., 875 F.2d 935, 951-2 (1989)


ii.  Evidentiary admissions must be distinguished from judicial admissions.  A judicial admission is a formal acknowledgment or concession by a party or counsel of an element of a claim or defense in the proceeding in question. It conclusively determines that element, and dispenses with the need for evidence.  The conclusive effect is limited to the litigation in which it is made. However, in subsequent litigation, the admission is admissible but it is treated as a mere evidentiary admission that can be explained, denied, or rebutted.

a.  Failure to deny allegations in the opponent’s pleadings, in responses to requests for admissions, and in interrogatories, statements by a party’s attorney or testimony by the party are examples of judicial admission arising prior to trial or at trial.

b. 803(22) permits evidentiary use in subsequent civil proceedings of a final judgment in a criminal proceeding to prove any fact essential to sustain the previous criminal judgment, but only if the conviction was for a crime punishable by death or +1 year.




3.  United States v. Flecha, 539 F.2d 874 (2d Cir. 1976), Before receiving an admission by silence the court must determine, inter alia, whether the party is in such a situation that he is at liberty to make any reply and whether the statement is made under such circumstances as naturally to call for a reply if he did not intend to admit it.  The Df was under arrest, and it is clear that arrested people know without benefit of Miranda warnings that silence is usually golden.  It was natural for the Df to say nothing.

i.  Under 804(d)(2)(B) a party may adopt an admission either by affirmatively responding to the statement of another through words or conduct or by failing to object to the assertion of another.  If the party expressly adopts the admission of another, the content of that statement by the third party is irrelevant to whether there was an adoption. This is not true when the party has allegedly adopted the admission by silence.  Tacit admissions require a careful analysis of the surrounding circumstances.


ii.  In general, an adoptive admission ‘may be oral or written or by conduct’ See Grundberg v. Upjohn, 137 F.R.D. 365, 369-70 (1991); and U.S. v. Joshi,, 896 F.2d 1303 (1990).


4.  Mahlandt v. Wild Canid Survival and Research, 588 F.2d 626 (1978), The employee did have actual physical custody of the wolf, and his opinions, conclusions were adopted by the Board of Directors as the basis for action by his principal.  Once agency, and making the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.  801(d)(2)(D) does not include an implied requirement that the declarant have personal knowledge of the facts underlying his statement. The statements by the employee were admissible against the Df.

i.  Vicarious [acting for another] admissions are not limited to statements made in the normal course of employment–while working for the employer.  They need only be made during the existence of the employment relationship.  Therefore, statements made in interviews with opposing counsel after litigation has commenced are still admissible under 801(d)(2)(D). See U.S. v. Chappell, 698 F.2d 308 (7th Cir); and Harrow v. Liberty Mutual, 833 F. Supp. 1239 (Mich 1993).


ii.  Most court have consistently held that admissions by government employees are outside the vicarious admissions exclusion if used against the Govt in criminal cases.  U.S. v. Kampiles, 609 F.2d 1233 (1979).  The same is not true for attorneys representing the Govt in civil litigation.  Given that the Govt can use co-conspirators’ admissions against criminal Dfs, the exclusion of vicarious admissions by Govt agents violates the criminal Df’s right to equal protection under the law. Imwinkelreid, 71 Minn. L. Rev. 269 (1986).





I. Admissions/Excited Utterances/Present Sense Impressions and Declarations of State of Mind


1.  Admissions


a.  U.S. v. Dietz, 515 F.2d 892 (1975), the statement must have been made during the course of the conspiracy, and must also serve to further the illegal partnership.  Because concealment was part of the conspiratorial plan, deceptive statements made after  were in furtherance of the illegal purpose.  Apprehension will not end the conspiracy, and the co-conspirator’s admissions rule will be applicable–trial ct properly admitted the statements under the co-conspirators’ exception to the hearsay rule.

*If the co-conspirator against whom a statement is being offered has withdrawn from the conspiracy prior to the utterance, then the conspiracy has ended for him and the statement by a co-conspirator would be inadmissible against him.  See U.S. v. Dorn, 561 F.2d 1252 (1977).

Note: FRE 801(d)(2)(E) “contents of the statement shall be considered but are not alone sufficient to establish. . . the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).” Thus, independent evidence is required to corroborate conspiracy participation.



b.  U.S. v. Inadi, 475 U.S. 387 (1986), a rule requiring each invocation of FRE 801(d)(2)(E) to be accompanied by a decision on the declarant’s unavailability would impose a substantial burden on the entire criminal justice system. A distinction exists between prior testimony and co-conspirator admissions.  One, prior testimony was “intended to replace live testimony.”  Second, co-conspirators’ statements are different because they have “independent evidentiary significance,” arising from the fact that they must have been made during the course of the conspiracy and in furtherance of it.  Where the declarant’s assertions at trial will inevitably be different from his prior statements made during the course of the conspiracy, there is no utility in requiring the Govt to make reasonable efforts to produce him.  A showing of unavailability is not required when the hearsay statement is the out of court declaration of a co-conspirator.



c. Bourjaily v. U.S., 483 U.S. 171 (1987), When Preliminary Facts relevant to FRE 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.  FRE 104 allows the judge to consider any evidence whatsoever and he “is not bound by the rules of evidence except those with respect to privileges.” The existence of a conspiracy and a party’s involvement in it are preliminary questions of fact that must be resolved by the court pursuant to FRE 104. A per se rule barring consideration of hearsay statements during preliminary factfinding is not required.  Because “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U.S. 149, 155 (1970), and “stem from the same roots,” Dutton v. Evans, 400 U.S. 74, 86 (1970), Roberts concluded that no independent inquiry into reliability is required when the evidence “falls within a firmly rooted hearsay exception.”  448 U.S. 56, 66 (1980).  The co-conspirator exception is firmly enough rooted in our jurisprudence that a court need not independently inquire into the reliability of such statements.

Co-conspirator statements, when made in the course and in furtherance of the conspiracy, have a history of being outside the compass of the general hearsay exclusion.  The Confrontational Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of FRE 801(d)(2)(E).


2.  Present Sense Impressions


a. Common Law


i. Houston Oxygen v. Davis, 139 Tex. 1 (1942), The report or statement at the moment of the thing then seen, heard, felt, etc, at the very time that he is perceiving the impression, is safe from any error of defect of memory of the declarant because it is sufficiently spontaneous to save it from suspicion of being manufactured, and it is usually made to another who would have an equal opportunity to observe and check.  It is believed that such comments, strictly limited, to reports of present sense impressions, have such exceptional reliability as to warrant their inclusion within the hearsay exception for Spontaneous Declarations. If they sprang out of the principal transaction they tend to explain it and were voluntarily and spontaneously made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous in time and the declarations may either precede the transaction or follow it.


b.  FRE 803(1): The following are not excluded by the hearsay rule, EVEN THOUGH THE DECLARANT IS AVAILABLE as a witness: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.


i. See also Teree E. Foster, Present Sense Impressions. . . 10 Loy. Chi. L.J. 299, 300-306 (1977); and Thayer, Bedingfield’s Case . . . 15 Am. L. Rev. 1 (1881); res gestae= “the facts talking through the party, [not] the party talking about the facts.” Accordingly, res gestae, if correctly used in connection with evidence law, embraces circumstantial proof that is not hearsay at all, as well as hearsay that is admissible.  Thayer outlined three conditions that if satisfied, lead to the admissibility and provide assurances of reliability with present sense impressions: 1) a spontaneous declaration describing an event observed by the declarant; 2) made at the time of the observation; 3) which is also observed, and thereby verified by the witness who reports the statement to the trier of fact.

Modern courts that apply the Present Sense Impression Exception use three Factors:

1) the proximity of the statement to the event that it addresses;

2) the declarant’s firsthand knowledge; and

3) the need for corroboration and its effect on the exception applicability.

NOTE: 803(1) requires that the statement describe or explain the event perceived to assure spontaneity.


ii. U.S. v. Blakely, 607 F.2d 779 (1979), It isn’t necessary that the witnesses be in the same position to observe the event as the declarant; it is only necessary that they be able to corroborate the declarant’s statement.  Although the lapse in time between the event and the statement ranged from 7 to 23 minutes, the transcript would support a finding that the declarant’s statements were made soon after Df’s departure.  Therefore the statements were made contemporaneously with the event because the admissibility of the statements under the present sense exception depends on the facts of the particular case.

NOTE: Corroboration is not required, but it does enhance the declarant’s credibility.


c. The Present Sense exception differs from the Excited Utterance exception in three ways.  1) it does not need to be a response to an excited event; 2) it must be made much closer in time to the event perceived; and 3) it must describe or explain the event as opposed to simply “relate” to it.


i.  FRE 803(2): 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.



ii. U.S. v. Napier, 518 F.2d 1290 (1975), where declarant, under the stress or nervous shock of having viewed a photo of the Df, immediately pointed to it and made a distressed and horrific statement linking the Df to the crime, that statement was admissible.  The display of the photo qualifies as a sufficiently “startling” event to render the statement admissible when made in response to her assault leading to her hospitalization. A startling event is not limited to accidents, or assaults, but includes events that cause adequate excitement and provided adequate safeguards against reflection and fabrication are in place.


NOTE: At Common Law the requirement was that the utterance be made immediately after the event it described or so close that the statement could be considered spontaneous. The focus was centered on the statement’s spontaneity and the greater the distance in time between the event and the statement, the more reluctant courts are to let it in. 


iii.  Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50 (1977),  the excited utterance exception is based on spontaneity and stress which endow such statements with sufficient trustworthiness to overcome the reasons for exclusion as hearsay.  In determining whether a statement qualifies, the important factors are timing and stress.  Thus, statements of declarants whose condition at the time of their declarations indicates that they are still under the shock of their injuries or other stress due to special circumstances, will be admitted.


iv.  See Imwinkelreid, The Importance of the Memory Factor . . . 41 Fla. L. Rev. 215 (1989), for attacks on reliability of excited utterances.


3.  State of Mind Exception


a.  Common Law Elements–1) the declaration must be of the declarant’s own state of mind (declarant is describing only what he perceives to be his state of mind); 2) the declaration must be indicative of the declarant’s state of mind as of the time the statement was made; 3) the declarant must have made the declaration under conditions of apparent sincerity; and 4) the declarant’s state of mind must bear independent relevance to the particular case (for there to be independent relevance, the state of mind must be either an element of the COA or defense [e.g. intent in all specific intent crimes], or tend to prove the conduct of the person possessing it [e.g. depression or statement of intent to takes one’s own life as evidence of suicide]).



i.  Mutual Life Ins. v. Hillmon, 145 U.S. 285, 296 (1892), evidence of intention of a material fact to be proved, or as tending to prove the doing of the act intended is admissible. There are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent.   The state of mind of the declarant is not required to be an actual issue in the case.  The state of mind of the declarant is used inferentially.  When the performance of a particular act by an individual is an issue in the case, his intention (state of mind), to perform the act may be shown.  From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act.


NOTE: In Hillmon, the present state of mind is circumstantial evidence of a future state of mind.  Walters wrote a letter expressing his intent to go to Crooked Creek, which that intention continued into the future until he arrived at Crooked Creek.  Its probative value will turn on such factors as the strength of the present resolve and the time lapse between the present intent and the anticipated action. Likewise, the present state of mind is also circumstantial evidence of a past state of mind.  Ex: Where Joe had been assaulted in the past and the declarant presently states “I would like to kill Joe.”   The existence of the present state of mind, as indicated by the statement, increases the probability that the declarant had the same state of mind in the past and therefore acted consistently with it. Thus, the statement has independent relevance.  * A proponent cannot use the state of mind exception to prove a past act or occurrence where the declarant was only a witness and not a participant because then, the declarant’s past actions are irrelevant to the event’s occurrence or his past state of mind that controlled the conduct.  His present and past states of mind have no independent relevance, b/c the events being proven through the statement were merely those that the declarant perceived and remembered–events recorded in his mind, not controlled by his mind.  


ii.  FRE 803(3), The following are not excluded by the hearsay rule, even though the declarant is available as a witness: THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.  A statement of 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), but NOT including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.


NOTE: Remember it is the declarant’s OWN personal state of mind, emotion, sensation, or physical condition at the immediate time period. 803(1) eliminated the need for (3) b/c (1) and (3) both consider the same types of statements and Time periods.  803(1), by its terms, renders 803(3) redundant b/c all statements of one’s “then existing state of mind, emotion, or sensation” also would constitute descriptions or explanations of those same conditions.  The focus of 803(1) is on observed events rather than subjective states of mental or physical conditions.



iii.  U.S. v. Pheaster, 544 F.2d 353 (1976), a declarant’s statement of intentions may be used as circumstantial evidence of the conduct of a third person with whom the declarant intended to act.  See U.S. v. Delvecchio, 816 F.2d 859 (1987) ct imposed a corroboration requirement on the use of the declarant’s statement; i.e. independent evidence connecting the statement with the activity.


4.  State For Purposes of Medical Diagnosis or Treatment

a.  Common Law: statements of present physical conditions that the

declarant was experiencing are not excluded by hearsay rule under the  common law.  The statement’s spontaneity diminishes the hearsay consideration for sincerity. The proponent must demonstrate two things:


i.  The statement was describing a present physical condition–not assertions of past pain or of the cause of the present condition; AND

ii.  The statement was a natural and spontaneous expression of that condition and not a response to a question or made under other conditions of apparent insincerity.


NOTE: This exception is applicable regardless of the person to whom the declarant made the statement, b/c the statement’s reliability stems from its spontaneous nature, not from the purpose for which the declarant made the statement. Cts. consider statements to medical personnel trustworthy.


b.  Some cts precluded statements to a physician in response to questions related to the declarant’s medical history when asserted for the purpose of proving the truth of what the patient previously said, b/c those statements gave rise to memory problems.  However, many cts did allow doctors to repeat all of the patient’s statements of present and past symptoms of illnesses for the purpose of proving the truth of what the patient asserted.


c.   More progressive cts fell that if the patient’s primary purpose for consulting the physician was to obtain treatment, then there is adequate assurance of trustworthiness.  If the patient was developing the physician’s testimony for litigation, those ct use that as a factor in assessing the statement’s credibility when determining the admissibility of the statement.  The Majority of courts hold that the requirement that the sole purpose of the consultation is for obtaining treatment.



b.  FRE 803(4), The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Statements made for the purposes of medical diagnosis or treatment AND describing medical history, or past or present 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.


NOTE: A patient’s statements concerning the cause of his injury or illness are admissible for TRUTH, if they are reasonably pertinent to diagnosis or treatment. A causational statement need only be “pertinent” to diagnosis or treatment to be admissible.  Statements to “hospital attendants, ambulance drivers, or even members of the family might be included,” Advisory Committee Notes.  If the proponent can establish that the declarant sought medical treatment through the communication, it may not matter whether the person to whom the declarant made the statement was medically trained or whether the person was expected to report to one who was medically trained.  803(4) may include not only statements to family, friends, but also coaches and trainers.


i. U.S. v. Narciso, 446 F. Supp. 2552 (1977), FRE 803(4) is limited to related facts which are “reasonably pertinent to diagnosis and treatment.”

The admissibility of a statement by a patient is tested by whether the doctor would rely on the facts contained in the statement solely for treatment, and also the patients motivation for giving the information.  If his motive was to aid in his own treatment/diagnosis, then it is assumed to be trustworthy.  If the declarant’s motive is to indicate who is civilly or criminally culpable, his response is then considered accusatory and the statement’s reliability is destroyed.

*To prove the truth of the statements through these records = Dbl Hearsay.  The records are testifying that the person creating them “told” it what the patient said.  803(6) + 803(4).


*See Weinstein EVIDENCE § 803.09(4), “the test is whether the declarant thought it relevant, and also whether the doctor would reasonably have relied upon such a statement in deciding a course of treatment.”


ii.  Statements to a doctor for any purpose other than diagnosis or treatment are inadmissible.  There are no limitation on the kinds of diagnosis or treatment that a patient must seek for his statements of past or present symptoms or conditions to be admissible. [Psychiatric] Patients cannot testify about the doctor’s statements unless excited utterance or another exception to hearsay.  The Dr. Patient privilege is Waived if the patient calls the doctor to testify. Statements of causation are admissible for truth under 803(4). However, the Advisory Notes made it clear that “statements as to fault ordinarily would not qualify,” for admissibility under the rule.  Ex: patient’s statement he was struck by a car–admissible.  Statement that he was struck by a car that had run a red light-inadmissible.




iii.  FRE 803(4) permits a court to admit a patient’s statements of medical history for the truth of the matter asserted.


iv.  O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084 (1978), 803(4) permits the admission of what the patient told the doctor about her condition, so long as the doc relied on it in formulating his opinion.  The Rule permits the doc to testify about the patient’s recollection of former doctors’ opinions where the testifying doc has before him their reports and the Dfs were aware of what those reports showed.


5.  Recorded Recollection Exception


a.  FRE 803(5), The following are not excluded by the hearsay rule, even though the declarant is available as a witness: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.  IF admitted, the memorandum or record may be read into evidence but MAY NOT be received as an exhibit UNLESS offered by an adverse party.


NOTE: an out of ct statement can be adopted by another declarant and admissible b/c its use is only to trigger the memory of the witness. ANYTHING can be used to refresh a witness’ memory: documents, audio, video, computer data/disc, pictures. The correct standard of proof is a “Insufficient recollection,” which is not total failure of present memory. The second portion is equally demanding; hence, if the witness is unable to testify “fully and accurately,” does not mean that the witness must be able to duplicate every word of the report during testimony in order to introduce the evidence.  IF the witness can remember basically what was in the recorded statement, even if he needs to look at it to refresh, the proponent may not supplement that testimony with the written statement.



b.  U.S. v. Williams, 571 F.2d 344 (1978), to be admissible (as Past Recollection Statement), the memorandum or record must have been made “or adopted by the witness when the matter was fresh in his mind and to reflect that knowledge correctly.”  By signing and swearing to the statement the witness adopted it.  He testified that the contents were fresh in his mind when he made it and that it was true and accurate at that time.  The Rule applies only to memorandum or records of matter that “a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately.” Once established that the in ct testimony would be incomplete b/c of insufficient recollection, the statement adopted when the events were fresh and which the witness testified to its truth and accuracy, it became admissible.  Committee’s Notes make it clear that the method of establishing the initial knowledge of the declarant and the accuracy of the material sought to be introduced must be determined from the circumstances of each case.


c.  Blakely, Past Recollection Recorded . . ., 17 Hous. L. Rev. 411, 446-461 (1980), in summary, cts require, as traditional foundation, a proponent of past recollection recorded statements before admitting it as evidence 1) the recollection must have been reduced to writing; 2) the maker of the record must have had firsthand knowledge of the facts recorded; 3) the record must have been made at the time of the event, or while fresh in the maker’s memory; 4) the witness must verify at trial that the record accurately reflected his knowledge at the time it was made; 5) the original writing must be produced in court and offered to the opponent for inspection and cross.  In the MAJORITY of cts the witness must lack present memory of the facts contained in the writing.


d.  A recorded recollection is not admissible as an exhibit UNLESS the adverse party offers it.  The proponent may introduce its contents into evidence only through the testimony of someone who reads it into the record. It s not a substitute for memory.


e.  Under 803(5) the declarant’s availability and unavailability are material.  The declarant must be available to verify the writing’s accuracy, but unavailable due to loss of memory, to testify to the writing’s substantive content.

* FRE 703 allows experts to base their opinions on otherwise inadmissible facts or data, so long as they are of the type reasonably relied on by experts in the particular field.


f.  If a declarant’s present sense impression statement is made in writing, 803(1) offers a way to circumvent the limits of 803(5).  No need for availability to authenticate, or unavailable for the inability to testify.


6. Business Records, Learned Treatise, and Residual Exceptions


a.  Common Law Elements–Documents maintained in the routine course of business for the purpose of furthering business ends are sufficiently reliable to be admissible for the truth of the matter that was recorded.  There is no need to test the document’s reliability through cross exam if the custodian can establish that the entries had been made:


i.  In the regular course of business, pursuant to a business duty;



ii.  By Someone with personal knowledge of the facts recorded or by someone with whom another person with personal knowledge and a business duty had reported; and


iii. At or near the time of the recorded transaction.


NOTE: Entries made pursuant to a business duty diminishes sincerity problems; requiring that the entry be based on facts personally observed by someone with a duty to report them lessens the problems with perception; and the business itself, in reliance on the records, decreases any accuracy problems.


1.  Johnson v. Lutz, 253 NY 124 (1930), a business record is admissible if it is made in the regular course or dealings of any business, profession, occupation, or calling, and the person making the record had duty to report those facts or report them to another for recording and had personal first-hand knowledge.


NOTE: the statement’s relevance, it truth, created a double hearsay problem, b/c the witness to the accident made a statement that was overheard by the officer, who in turn recorded it. Yet, the mere utterance could have had relevant value aside from the truth if the witness had testified at the trial inconsistently with his prior statement to the officer.  In such a case, a party could offer the prior statement for impeachment purposes.


2. [If the Business Records Are Prepared under Conditions That Would Indicate a Lack of Trustworthiness, a Court must Exclude Them.]  Palmer v. Hoffman, 318 U.S. 109 (1943), the fact that a company makes a business out of recording its employees’ versions of their accidents does not make them records made “in the regular course of business.” Records calculated for use in litigation or created for litigation are inadmissible b/c they were not made in the regular course of railroading.  “Regular course” of business must find its meaning in the inherent nature of the business in question and in the methods systematically used for the conduct of the business as a business.



b.  FRE 803(6), A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification, (902[11] or [12]), or a statute permitting certification, UNLESS the source of information or the method or circumstances of preparation indicate lack of trustworthiness.  The term “business” as used . . .includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.


1. The difference between 803(6) and the C.L. is 803 allows the admission of opinions in all business records without qualification, so long as the other elements of the rule; timeliness, personal knowledge and business duty, are satisfied, and the opponent makes no showing that the source of the information recorded or the circumstances of its preparation indicate a lack of trustworthiness.


2.  A proponent must show that the person called to authenticate a document as a business record has sufficient knowledge about the company and its record-keeping practices to be able to vouch that the requirements of 803(6) are satisfied.


3.  FRE 902(11) and (12) spell out the existing foundation requirements for business records under 803(6)-and include 1)written notice; and 2) that the records be made available to the adverse party.


4.  So long as the elements of the business records exception are established through the testimony of a qualified person, neither the nature of the business nor the form of the record will preclude its admission.  scrapbook clippings, pocket calendars, handwritten notes.  Even regularly kept records of illegal activities qualify for admission so long as they were systematically maintained and relied upon by the maker. See U.S. v. McPartlin, 595 F.2d 1321 (1979); and U.S. v. Hedman, 630 F.2d 1184, 1189 (1980).


5.  Relative to computer records, the requirement that the records be prepared in the course of a regular activity pertains only to the manipulating of the data, and NOT to any subsequent production of that information, even if made in the preparation of litigation.  See U.S. v. Hernandez, 913 F.2d 1506, 1512-13 (1990), “so long as the computer data compilation was prepared pursuant to a business duty in accordance with regular business practice, the fact that the hard copy offered as evidence was printed for purposes of litigation does not affect its admissibility.”

i.  The reliability of the computer printout is the most important factor in determining whether the record should be admitted under the business record exception.  There are three basic sources of computer mistakes: human error, mechanical error, and deliberate falsification.  The latter being the most serious.



ii.  Because of the inherent efficiency regarding tasks performed by computers, the number of persons familiar with the record keeping process involved decreases.  A computerized system updates records by combining new and old entries, destroying the latter.  This results in the loss of intermediate records, which can be not only a valuable evidentiary aid in establishing reliability of the offered evidence, but also a deterrent to a party contemplating falsification.


iii.   Unless a court imposes foundation requirements specifically developed to test the reliability of the computer’s data base, the chance of admitting a printout containing falsified information increases significantly.  Two false problems are posed to courts in determining the reliability of the computer printout: 1) the reliability of the hardware per se is irrelevant; and 2) the requirement that a “transaction be recorded at or near the time of its occurrence” is irrelevant to determining a printout’s dependability.  Input procedures, the data base, and programs are unaffected by the passage of time.


6.  Under Palmer v. Hoffman, the trial judge is permitted to exclude business records that otherwise qualify for admission under the b. r. exception IF the opponent can demonstrate that either the “source of the information” contained in the records, or “the method or circumstances of [their] preparation” indicate that they may not be trustworthy, e.g., motive to fudge the truth.


NOTE: Business records often contain opinions.  FRE 803(6) makes opinion evidence admissible.  McCormick On Evidence,  § 307 at 875; § 18 at 46 (3rd ed. 1984).


7.  803 does not provide that the contents of documents kept in the course of regularly conducted business are necessarily admissible, (6) merely provides that the documents, which may contain opinions, are not excluded by hearsay.  Under 701, “if the witness is not testifying as an expert,” his opinions are admissible only if they are based on his own perceptions. Under 702, only a witness “qualified as an expert by knowledge, skill, experience, training, or education,” may testify in the form of an opinion as to scientific, technical, or other specialized knowledge. 705 “the expert may in any event be required to disclose the underlying facts or data on cross.” In other words, unless 803(6) overrides the opinion rules, it should not be used to allow introduction of expert opinions without an opportunity to ascertain the qualifications of the maker.


i.  Reports which are prepared to state or to support expert opinions are not admissible without the preparer being present in court to testify as to his qualifications as an expert and to be cross examined on the substance, pursuant to 702 and 705.  Forward Communications v. U.S., 608 F.2d 485, 510-11 (1979).


8.  If the business record contains an admission by the party-opponent it does not create a hearsay problem so long as someone can authenticate the record as having been made by the opponent or his authorized agent.  See U.S. v. Smith, 609 F.2d 1294 (1979).


9.  Under 803(6) the record, as all tangible evidence, must be authenticated in order to be relevant.  It must be established that the record was made by someone with personal knowledge of the facts and who recorded the information pursuant to a business duty and as a routine practice in the regular courses of business. This is accomplished by the “custodian or other qualified person.”


10.  Under 1006, the best evidence rule requires that the original of documents be used at trial when their contents are being proved, however a summary form is allowed if the opponent is permitted to examine.  However, if the content of the summary are offered for the truth of their truth and the summary is written rather than orally presented, a double hearsay problem exists.   The summary rule is only an exception to the best evidence rule, not the hearsay rule. To be admissible, the proponent must find an applicable exception for each hearsay level.  Yet, if the summary is created specifically for the litigation, they do not qualify under the business records exception, but under past recollection record 803(5) may be applicable.


c.  FRE 803(7) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which the memoranda, report, record, or compilation was regularly made and preserved, UNLESS the sources of the information or other circumstances indicate lack of trustworthiness.



1.  Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. The negative side of the business records exception has been used to establish that no offer had been made prior to the statutory cut-off date, and an affidavit was submitted in which it stated that a the Park Foundation had no record of any offer, written or oral.  See U.S. v. 34.60 Acres of Land, 642 F.2d 788 (1981).


d.  FRE 803 (8), 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) matters observed pursuant to a duty imposed by law as to which matter there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, UNLESS the sources of information or other circumstances indicate a lack of trustworthiness.


Advisory Committee Notes provided four factors in assessing trustworthiness, but did not intend to be the sole criteria,  “Trustworthiness may be assessed by 1) the timeliness of the investigation; 2) the special skill or experience of the official; 3) whether a hearing was held and the level at which conducted; 4) possible motivation problems suggested by Palmer v. Hoffman.


Credibility is not the focus of the trustworthy inquiry.

1.  For a public record at C. Law to be admissible, public employees had to have made the entries contained pursuant to a public duty and the entries must have been made based on the firsthand knowledge of the recorder or someone with a public duty who reported to the recorder.  Public records are reliable b/c of the repetitive nature and routine manner they are created.


2.  803(8) does not permit the government to use records or reports of law enforcement against criminal defendants to the extent that such records or reports include either matters observed or facts otherwise found after authorized investigations.


3.  Public offices or agencies do not encompass courts.  U.S. v. Jones, 29 F.3d 1549, 1554 (1994); Nipper v. Snipes, 7 F.3d 415, 418 (1993). 803(8) is specifically limited to records or reports by “public” agencies and offices.  When a public agency delegates its administrative responsibilities to private companies, reports of these independent contractors working under the government’s supervision are inadmissible.  U.S. v. Blackburn, 992 F.2d 666, 672 (1993), but they may be admissible under 807.



4.  803(8)(C) provides for the admissibility of findings of fact in situations in which a public official prepared the record as a result of an investigation made pursuant to law, specifically excluding public investigative records in criminal trials ONLY if the prosecution offers them.

i.  Meanwhile 803(8)(B) excludes the most reliable public records–those that are based on a public official’s observations–from criminal trials, regardless of who offers them.


5.  Beech Aircraft v. Rainey, 488 U.S. 153 (1998), factually based conclusions or opinions are not excluded from the scope of 803(8)(C).  The requirement that reports contain factual findings bars the admission of statements not based on factual investigation.  The trustworthiness provisions requires a determination as to whether the report is trustworthy. Portions of an investigatory report, otherwise admissible under 803(8(C) are not inadmissible merely because they state a conclusion or opinion.  As long as the conclusion is based on a factual investigation and satisfies the trustworthy requirement, kit should be admissible along with other portions of the report.


6.  Zenith Radio v. Matsushita Electrical, 505 F.Supp. 1125 (1980), all exhibits and data that might accompany a staff report are inadmissible as a group under 803(8)(C), the drafters did not intend to piggy back the whole administrative proceeding on top of a trial. That result would offend 102 and 403.  Unless independently admissible, the exhibits do not come along as “excess baggage,” and transcripts of agency hearings are not admissible under 803(8)(C), but may be admitted under 804(b)(1).


e.  FRE 803(9), Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

NOTE: records of vital statistics are commonly subject to particular statutes; Uniform Vital Statistics Act, 9C U.L.A. 350 (1957).


f.  FRE 803(10), To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.


1.  Although the absence of a public record or entry in such record may not be hearsay under 801, Congress enacted 803(10) to ensure its admissibility in the event a court construed it as such.



2.  The principle of proving a nonoccurrence of an event by evidence of the absence of a record evolved from 803(7), for examples of federal statutes recognizing methods of proof see 8 U.S.C.A. § 1284(b); 42 U.S.C.A. § 405(c)(3), (4)(B), and (4)(C).  The rule includes situations where the absence of a record may itself be the ultimate focus, see People v. Love, 310 Ill. 558 (1923); and also 5 Wigmore § 1678(7).  Congress has recognized certification as evidence of the lack of record, 8 U.S. C. A. § 1360(d).


g.  FRE 803(11), Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

1.  Religious organization records are recognized under the business records exception, 5 Wigmore § 1523, p. 372, but both 803(6) and (11) require that the person furnishing the information be one in the business or activity.  See also Daily Grand Lodge, 311 Ill. 184 (1924), where a church record is admissible to prove fact, date, and place of baptism but not age of child, except that he had at least been born at that time.


h. Ancient Documents–Under the C. Law if the document were thirty years old, unsuspicious in appearance, and produced from a place of proper custody by a person who naturally would have custody, then the courts accepted its authenticity.


NOTE: Authenticity and age do not equal accuracy of perception, reliability, sincerity, or trustworthiness. The true reason for admitting these types of documents, both at C. Law and FRE, is necessity.


1.  FRE 803(16), Statements in a document in existence twenty years or more the authenticity of which is established.

i.  Dallas v. Commercial Union, 286 F. 2d 388 (1961), in matters of local interest, when the fact in question is of such a public nature that it would be generally known throughout the community, and when the fact occurred so long ago that eyewitness testimony would probably be less trustworthy than a contemporary newspaper account, the rule excluding evidence may be relaxed out of necessity(not absolute inaccessibility), and trustworthiness, an ancient document–(30) years or older–may be admitted where ordinary evidence of signatures or handwriting are unavailable. This is not a case of hearsay or its exceptions.




2. FRE 803(18), to the extent called to the attention of an expert witness upon cross examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.


i.  Tart v. McGann, 697 F. 2d 75 (1982), the rule permits the admission of medical literature as substantive evidence “to the extent called to the attention of an expert witness upon cross examination or relied upon by him in direct examination,” as long as it is established that such literature is authoritative.  The Rule permits the admission of learned treatises as substantive evidence, but ONLY when “an expert is on the stand and available to explain and assist in the application of the treatise.”  IF the literature is relevant and authoritative it may be read into the record.


ii.  Limitations on the Rule: 1) If the treatise is offered to support the direct testimony of an expert, that expert must have recognized the treatise as authoritative AND relied upon it; or if offered to contradict expert testimony, the proponent must call the treatise into question on cross, AND if the expert does not recognize it as authoritative, then another expert must or the court must take judicial notice; 2)Once admissible, the relevant passages from the treatise may ONLY be read into the record, it will not be accepted as an exhibit. TREATISES MAY BE USED TO CONTRADICT OR IMPEACH A WITNESS’ TESTIMONY.


NOTE: mere publication does not establish either the work or the author as authoritative, see Meschino v. N. American Drager, 841 F.2d 434 (1988).


iii.  In U.S. v. Mangan, 575 F.2d 32 (1978), may not be possible for a chart, from learned treatises,  to be read into evidence, there is not err if the ct permitted the jury to examine them while they are being discussed.


i.  FRE 803 (17), Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

1.  Examples: price listings, market quotations, telephone directories, and mortality tables, or a catalog of a wholesaler. See U.S. v. Grossman, 614 F.2d 295 (1980).


2. Under 803(17), if the custodian or other qualified person is unavailable as a sponsoring witness, they can be admissible under 902(6) as printed material purporting to be a periodical, or 902(7), inscriptions, signs, tags, labels indicating ownership, control, or origin; both would be self authenticating.


NOTE: If the custodian or other qualified person is unavailable to authenticate a business record under 803(6), then the court may admit under 807 and the court can take judicial notice of a fact or circumstance and find the record, ex: transcript from a college, to be self authenticating under 902 if it has sufficient guarantees of trustworthiness.


j.  FRE 803(22), Evidence of a final judgment, entered after a trial or upon a plea of guilty, (but not nolo contendre), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, 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 person other than the accused. 

1.  When the status of a former judgment is under consideration in subsequent litigation, three possibilities must be noted: 1) the former judgment is conclusive under res judicata, either bar or collateral estoppel; or 2) it is admissible in evidence for what it is worth; or 3) it may be of no effect at all.  When res judicata does not apply to make the judgment either bar or collateral estopped, a choice is presented between 2) and 3).


2.  When the jury returns a general verdict of guilty, a subsequent court cannot determine which facts were essential to sustain the judgment with a sufficient degree of accuracy to allow the judgment to be used as evidence in the subsequent case.  See Emich Motors v. G.M., 340 U.S. 558, 568-69 (1951).  A prior conviction for conspiracy was excluded because it was impossible to determine the reasons or overt acts for which the jury had convicted the defendants. See Columbia Plaza v. Security Nat., 676 F.2d 780, 785 (1982).


3.  Judgments of acquittal are not admissible to prove innocence.  U.S. v. Kerley, 643 F.2d 299, 300-01 (1981), evidence of prior acquittal is not relevant b/c it does not prove innocence, but rather merely indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.



k. 1.  FRE 803 (12), statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.


2.  FRE 803(13)Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.


3.  FRE 803 (14), The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of document of that kind in that office.


4.  FRE 803(15), A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, UNLESS dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.


5.  FRE 803(19), reputation among members of a person’s family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.


6.  FRE 803(20), reputation in a community, arising before the controversy, as to boundaries of or customs affecting the lands in the community, and reputation as to events of general history important to the community or State or nation in which located.


7.  FRE 803(23), Judgments as proof of matters of personal family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.


l.  Residual Exceptions–FRE 807, a statement not specifically covered by 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than by any other evidence which the proponent can procure through reasonable efforts; AND (C) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception UNLESS the proponent . . . makes it known to the adverse party sufficiently in advance of trial or hearing to provide . . .a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.


1.  B/c the statement must be more probative on the point for which it is offered than any other reasonably obtainable evidence, the declarant’s unavailability should be a prerequisite to admission of the evidence.  Otherwise, if available, her testimony, and not the hearsay statement would be the most probative evidence on the point.  See Southern Stone v. Sam Singer, 665 F.2d 698 (1982); and U.S. v. Mathis, 559 F.2d 294 (1977).  Also note that the second necessity standard of 807 requires a demonstration that other sources of the same evidence are unavailable.


2.  For statements to fall within this exception, 807 requires that the statements in question have “equivalent” guarantees of trustworthiness.  That is equivalent to statements admissible under other traditional exceptions to the hearsay rule.  See Note, The Residual Exceptions . . ., 31 Rutgers L. Rev. 687 (1978).


3.  U.S. v. Medico, 557 F.2d 309 (1977), the trustworthiness and necessity for the admission of the statement and the specific facts and circumstances warranting allowing the witness’ testimony to come before the jury are on par with those which justify other enumerated exceptions.  However, the Dissent correctly identified that the information that the witness testified to created a double hearsay problem.


NOTE: as in U.S. v. AT&T, 516 F. Supp. 1237 (1981) satisfying the requirements of 803(1), plus 804(b)(3) usually provides sufficient trustworthiness under 807.


4.  The credibility of a witness has nothing to do with whether or not his testimony is probative with respect to the fact which it seeks to prove.  Relevance and probativeness are closely related, but credibility is not a component of either.  U.S. v. Welsh, 774 F.2d 670, 672 (1985).



5.  The more common types of evidence admitted under this exception b/c they are more probative than other reasonably procurable evidence are polls and surveys, provided that their trustworthiness is established by a demonstration that they were conducted according to accepted scientific principles.  See Brunswick v. Sprint, 832 F.2d 513 (1987); Pittsburgh Press Club v. U.S., 579 F.2d 751 (1978).


6. U.S. v. American Cyanamid, 427 F.Supp. 859 (1977), Rule 807 establishes sufficient express criteria which must be satisfied before an item of hearsay will be admissible.  Since the exhibits listed conform, they should be received. There is no requirement that the Court find a case to be “exceptional” as a condition to receipt of the evidence.  To imply such a provision, would negate FRE 102, that “these rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”


7.  In U.S. v. Oates, 560 F.2d 45, 71-72 (1977), the ct held that public reports which do not comply with the requirements of 803(8) were not admissible under the open-ended provisions of 807.





























A.  Background


1.  Witnesses


i.  Lay Witness


ii.  Expert Witness


2.  Types of Testimony


i.  Factual Testimony–Although courts continue to struggle with a clear definition of what constitutes a “fact” the federal rules permit a lay witness to testify to both inference and opinion in a limited sense; see FRE 601, 602, and 701; see also 7 Wigmore Evidence § 1919).


a.  FRE 701 provides, (regarding lay witnesses), that their opinion testimony is limited: 1) rationally based on the perception of the witness (opinion that a normal person would form from those perceptions); and 2) must be helpful (in resolving issues), to a clear understanding of the testimony or the determination of a fact at issue; and 3) not based on scientific, technical, or other specialized knowledge.


b.  “A witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact. . . .” McCormick § 10, p.19


c.  Evidence of personal knowledge, (foundational requirements), may be furnished by the testimony of the witness himself; therefore personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. 2 Wig. § 650.


ii.  Opinion Testimony


a.  FRE 702 provides that a lay witness cannot establish scientific fact/conclusion/opinion.  FRE 702 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise, if: 1) the testimony is based on sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.

i.  The standard for admissibility under 702 is whether the specialized knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue. . .”


NOTE: Knowledge of what others believe can be admissible if it was acquired from surveys conducted for the purpose of litigation where the testimony is offered, but knowledge acquired in this manner would not be  an adequate basis for the witness to give a personal opinion of the individual’s character as to her opinion of what the community’s opinion is, it would not be adequate basis b/c the witness has no personal knowledge of the individual.  See U.S. v. Pacione, 950 F.2d 1348 (1991).


iii.  FRE 704: testimony in the form of an opinion


3.  Qualification of Witness

i.  Expert Witnesses qualify based on their level of skill, experience, knowledge, and training within a specific area or expertise. It is the judge who determines whether a witness has qualified as an expert or not.


4.  Foundation–ask for what use is the evidence being offered; ex: impeachment, (refreshment, warning—H.R. is not applicable).  If character evidence is offered, then see if FRE 403 or 404 applies, if not, then proper foundation by 405.  If a negligence case, then check if evidence falls under subsequent repair, then check if FRE 407 is applicable, then proper foundation.

i.  Scientific Evidence–the foundational requirement with regard for expert witnesses is shown through the knowledge, skill, education, and training of the proposed witness.

ii.  Testimony–Personal Knowledge, and Competency are foundational requirements for lay witnesses, see FRE 601, 602.


B.  Examples of Objections

1.  Relevance

2.  Prejudice

3.  Lack of Foundation

4.  Improper Character

5.  Prosecutorial Misuse of Character Evidence

6.  Hearsay

7.  Subsequent Repair

8.  Misuse of Insurance Policy





C.  Cross Examination

1.  Purpose–Cross Examination is the second stage in examining the witnesses.  It provides the opponent the opportunity to further explore and clarify those matters that the proponent raised during direct examination, and to plant the seeds of doubt regarding the witness’ credibility and the reliability of her testimony.

i.  Because the witness is adverse to your case, you must rely on depositions, written statements, interviews, and prior testimony, to determine what the person will likely say on the stand.  Limit the scope of cross examination to a few key points. At a minimum remember that cross examination is only a small part of the trial.

2.  Planning Cross Examination–Brilliant cross examination is the result of thorough investigation, research, and planning.  To effectively plan your cross examination

i.  As a preliminary matter: 1) interview ALL potential witnesses; and 2) visit and diagram the areas in controversy; and 3) obtain ALL potential exhibits and documents; 4) investigate the background of ALL witnesses; and 5) develop your theory.

ii.  Identify your goal.  Either elicit testimony that will help your case, or elicit testimony that will weaken your opponent’s case.

a.  To help:  obtain facts that will corroborate your witness’ testimony, and facts that bolster your theory.

I. The most bountiful line of inquiry concerns the opportunity for your witness to observe the events.  If opposition’s witness claims to have had the ability to see the entire seen clearly, then use that witness to corroborate facts in your witness’ testimony.

b.  To weaken: attack the credibility, or point out mistakes, or emphasize inconsistencies between different witnesses for the opposition.

I.  Common forms of impeachment used to attack a witness personally are: proof of bias, prejudice, or an interest.  When this is shown the jury may perceive that the witness has a personal motive to testify falsely.


II.  As an alternative, you may want to attack the accuracy of the testimony itself, by implying to the jury that for some excusable reason, poor memory, or unfavorable vantage point, the testimony can’t be relied upon.  Show that the witness’ memory is unreliable through prior inconsistent statements, circumstances showing she had not reason to remember, inability to recall collateral details, passage of time, or a medical condition.  Attack the accuracy of the witness’ perception by asking about physiological limitations, ex: poor eyesight or hearing, intoxication, or fatigue.  Physical conditions limiting her ability to accurately perceive the events, or obstructions to her view, or inadequate lighting, or distance, or a short period of time in which to make an observation.

NOTE: jurors identify with witnesses more than with lawyers, so don’t risk their resentment for an unsuccessful attack on a witness.


D.  Impeachment: Character Evidence

1.  Common Law

i.  Character Evidence was prohibited under the common law to prove the individual acted in conformity with that character.   Impeaching a witness’ credibility with character evidence is the exception.

ii.  Reputation Testimony –there are limitations on the timing and manner of presentation of character witnesses called to challenge or reinforce the credibility of other witnesses, and other character witnesses may be used to challenge or reinforce.  Cts have imposed two limits on cross examining reputation witnesses: 1) the cross-examiner must have a good faith basis for believing that the conduct about which she asks has a basis in fact; and 2) that conduct must be relevant to the character trait the reputation witness has testified about.  Ex: if testified about a prior witness’ credibility, then the relevant character trait would be truth and veracity.

iii.  Specific Instances of Conduct.  Evidence of prior instances of conduct to establish a party’s propensity to act in a particular manner are inadmissible, unless a party offers character/reputation evidence to impeach.  If offered to prove that a witness is presently not credible because of her propensity to fabricate or exaggerate, then a party may offer evidence of a witness’ prior conduct that shows the witness’ character traits for truth and veracity or her propensity to lie.  This can be accomplished through cross, with some limitations, or through independent testimony from other witnesses when that conduct resulted in a conviction.

a.  The majority permit the cross examiner to inquire about a testifying witness’ prior acts that negatively reflect on the witness’ credibility, but if the witness denies the prior act, the cross examiner must “take the witness’ answer,” and cts will not permit the cross examiner to prove perjury with additional witnesses.


E.  Federal Rules–Impeachment: Character Evidence


1.  FRE 601 provides that anyone who is competent, unless otherwise prohibited, may be a witness.  If, in a civil case respecting a claim or defense that State law governs, then competency must be determined by State law.



2.  FRE 602 provides that a witness may not testify unless evidence is introduced to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.  This Rule is subject to FRE 703 relating to opinion testimony by expert witnesses.


3.  FRE 603 requires every witness to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.


4.  FRE 604 provides that interpreters are subject to the provisions of the Rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.


5.  FRE 605 states that 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.


6.  FRE 606 provides that a juror may not testify as a witness before that jury in the trial in which the juror is sitting. If the juror is called to testify, the opposing party shall be afforded an opportunity to object outside the presence of the jury.  Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement during deliberations or to the effect upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent or concerning the juror’s mental processes, Except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.


7.  FRE 607: Who May Impeach.  The credibility of a witness may be attacked by any party, including the party calling the witness.

NOTE: Some states do not allow the proponent to attack the credibility of its own witness.


8.  FRE 608: Evidence of Character and Conduct of Witnesses.

a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: 1) the evidence may refer only to character for truthfulness or untruthfulness, and 2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.


[i. Permits a party to bolster a witness’ credibility through testimony of character witnesses only after the opponent has attacked the witness’ character trait for truthfulness. Opinion or reputation that the witness is untruthful qualifies as an attack, and evidence of misconduct, including conviction of crime, and of corruption, however, Evidence of bias or interest does not.]

b)  Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, in the discretion of the ct, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness 1) concerning the witness’ character for truthfulness or untruthfulness, or 2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters which relate only to credibility.

i.  A party may offer character evidence in the form of either reputation or opinion testimony consistent with 405 (controlling the manner of proof), if offered pursuant to 404(a), as circumstantial evidence of past conduct.  The cross examiner may ask the reputation witness whether she “heard” of specific instances of the preceding witness’ past conduct that are inconsistent with their testimony.  The cross examiner may ask an opinion witness, whether she “knows” about the same prior acts. The only limit on the cross examiner is that the examiner must have a good faith factual basis for inquiring about the incident, and each incident must be relevant to the character trait the character witness has testified about–truth and veracity.

ii.  U.S. v. Medical Therapy, 583 F.2d 36 (1978), it is the judge’s discretion to allow or disallow the use of character evidence in a case where impeachment problems of the witness have been brought out on direct, during cross examination. When prior convictions are used for impeachment purposes, the door is opened to the introduction of evidence in support of truthfulness.  A proponent cannot bolster her own witness’ credibility after bringing our the impeachment herself on direct, this material, brought out on direct is not perceived as an attack on credibility.

iii.  608(b) provides that a party may cross-examine a witness about prior conduct that is inconsistent with the witness’ credibility.  The conduct must be probative of the witness’ character for truthfulness and its probative value must not be substantially outweighed by the danger of unfair prejudice, see 403.  In determining whether prior conduct is probative of credibility, courts examine the specific nature and character of the conduct.


iv.  If a party brings out a witness’ specific instances of conduct during cross, the examiner must “take the witness’ answer” if the witness denies the truth of the alleged instances of conduct, and may not use extrinsic evidence to prove the denial was false.  It does not mean that the examiner may not press those matters further.  If the witness denies the misconduct, the restriction on introducing extrinsic evidence is inapplicable where the prior act was a crime the witness was convicted of.

v.  Carter v. Hewitt, 617 F.2d 96 (1980), when extrinsic evidence is obtained from and through examination of the very witness whose credibility is under attack, renders 608 inapplicable.  There can be no violation of the Rule where the witness conceded authorship of the extrinsic evidence and adopted it as an admission of the act used to impeach him. Extrinsic evidence may not be used to refute a witness’ denial of specific acts, even if this evidence might be obtained from the witness sought to be impeached.

vi.  Cts consider prior bad acts not resulting in a conviction “collateral” because they have relevance only because of their impeachment value.  However, if the impeachment evidence is relevant to a material issue in the litigation, it is not considered collateral. See U.S. v. Opager, 589 F.2d 799, 801 (1979).

vii.  IF a party offers impeachment evidence solely for the purpose of contradicting a witness on a collateral matter 608 compels exclusion of that evidence.  Cts distinguish between collateral matters the opponent elicited or invited on cross and matters that the witness volunteered on either direct or cross.  In U.S. v. Flemming, 19 F.3d 1325,1331 (1994)  the ban on extrinsic evidence “does not apply . . .when extrinsic evidence is used to show that a statement made by a defendant on direct examination is false, even if the statement is about a collateral issue . . .A defendant may not make false statements on direct and rely on the government’s inability to challenge his credibility as to the truth of those statements.”

viii.  608 allows witnesses to be called to give their opinions about the credibility of another witness.  Therefore, one can circumvent 608(b) by calling the witness and asking her to give her opinion about the prior witness’ credibility, rather than asking about the prior act.  Then to establish the reliability of that opinion, ask the second witness to explain the basis for her opinion of the preceding witness’ credibility.


ix.  Other ways a party may introduce evidence that 608(b) excludes: 1) if the preceding witness’ prior conduct is relevant to an issue in the action, ex: knowledge or intent, then evidence of prior conduct is independently admissible under 404(b); 2) if the prior act demonstrates the preceding witness’ bias, it may be proven once denied; and 3) if the cross examiner attacks the preceding witness’ credibility and the party who called the prior witness puts on character evidence to bolster the preceding witness’ credibility, the cross examiner may ask that character witness on cross whether the character witness “has heard” or “knows” of the preceding witness’ prior conduct that the preceding witness has denied.

x. 608 governs the offer of character evidence when any witness testifies in any litigation. Evidence that is inadmissible under 608(b) may be admissible under 404(b) for other purposes, intent or knowledge.


F.  Impeachment: Conviction of Crime

1.  Common Law

Most jurisdictions have limited admissibility to convictions for all felonies or other crimes (misdemeanors) involving moral turpitude.  Thus, almost any crime.  IF a criminal statute provides for a potential penalty of over one year, the crime is a felony, regardless of the nature of the conduct or the actual sentence imposed.  The defendant has no control over the admissibility of character evidence for impeachment purposes other than by refusing to testify.

i.  In exercising discretion, a number of factors might be relevant, such as the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and Above All, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.  Luck v. U.S., 348 F.2d 763, 768-769 (1965).

ii.  Gordon v. U.S., 383 F.2d 936 (1967), in exercising its discretion, the ct should look to the legitimate purpose of impeachment–to show background facts which bear directly on whether jurors ought to believe the witness, such as convictions b/c they rest on dishonest conduct related to credibility.  The ct must also balance the nearness or remoteness of the prior conviction.  When the prior conviction is for the same or substantially the same conduct, those convictions should be used sparingly.  Even if the prior convictions are relevant to credibility and the risk of prejudice is low, the judge may conclude that the jury may benefit from the defendant’s version of the case than to have the defendant remain silent out of fear of impeachment.


2.  FRE 609: Impeachment by Evidence of Conviction of Crime.

a) For purposes of attacking credibility, 1) evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to 403, if the crime was punishable by death or imprisonment in excess of one year, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value outweighs the prejudicial effect to the accused; AND 2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

b)   Evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release from confinement, whichever is later, UNLESS the ct determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect.  Evidence of a conviction more than 10 years old is not admissible UNLESS the proponent gives the adverse party sufficient advance written notice of intent to use such evidence.

c) Evidence of a conviction is not admissible if 1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of rehabilitation of that person, AND that person has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year, or 2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. 

d) Evidence of juvenile adjudications is generally not admissible, however in a criminal case evidence of juvenile adjudication of a witness other than the accused may be allowed if conviction for the offense would be admissible to attack the credibility of an adult AND the ct is satisfied that admission is necessary for a fair determination of the issue of guilt or innocence.

e) Pendency of an appeal does not render evidence of conviction inadmissible. Evidence of pendency of appeal is admissible.


NOTE: 609(a) is an exception to both 405(a), [prohibition on the use of character evidence to prove propensity] because prior conviction evidence is admissible to impeach all witnesses in all types of litigation; and 405(b), because 609 constitutes evidence of prior specific conduct.  Specific instances of conduct are admissible under 404 IF they are relevant to the defendant’s mindset at the time of the occurrence.  Regardless of whether admissible under 609, a prior conviction may be admitted as evidence of prior conduct that gave rise to the conviction through intent, knowledge, or common scheme.


i. Under 609(a)(2) all such convictions are automatically admitted, but under 609(a)(1)(balancing) felonies punishable by death or in excess of one year are admitted only if the proponent demonstrates and the ct finds that the “probative value of admitting the evidence outweighs the prejudicial effect to the defendant.”  The burden SHIFTS to the proponent to establish the value.

a. The higher the crime ranks on the scale of veracity-related crimes, the more probative value it has on the issue of the defendant’s credibility. Perjury, forgery, and embezzlement rank at the high end.

b.  The point in time of the conviction and the subsequent criminal history of the witness also relates to the probative value of prior conviction, which decreases as it becomes more remote in time or as rehabilitation is demonstrated.


c.  The degree of similarity between the past crime and the current crime relates to the prejudicial effect: the greater the similarity, the greater danger to the jury.

d.  The importance of the defendant’s testimony is assessed as a “need” of the defendant to be able to testify without being subjected to prior conviction impeachment.  SeeU.S. v. Paige.

e.  The centrality of the credibility issue should be interpreted as a factor applying only where the special circumstances of a particular case give rise to a more-than-average need on the part of the government to be able to impeach the credibility of the defendant by the use of prior conviction evidence.


NOTE: Surratt, Prior Conviction Impeachment under the Federal Rules of . . . . Applying the Balance Approach of 609(a), 31 Syracuse L. Rev. 907, 928-939 (1980).


ii.  For all witnesses, other than the accused, felony convictions will be excluded ONLY if the potential prejudice substantially outweighs its probative value.  If offered against the accused the evidence is admissible ONLY if the value outweighs the potential prejudice. All felonies or misdemeanors that involve dishonesty or false statements are automatically admitted.


iii.  609(b) imposes 3 conditions for admitting evidence of convictions that are older than 10 years:

a. The proponent must give sufficient advance written notice of intent to use;

b.  The proponent must demonstrate that the conviction’s probative value substantially outweighs the potential for prejudice–see 609(1) requiring only that the probative value outweigh the prejudicial effect; U.S. v. Cathey, 591 F.2d 268 (1979); and U.S. v. Sims, 588 F.2d 1145 (1978); and

c.  The ct must make a finding on the record that the proponent has met the standard for admissibility. See U.S. v. Mahler, 579 F.2d 730 (1978), but rejected in U.S. v. Holmes, 822 F.2d 802 (1987).


NOTE: If the conviction is introduced to “contradict specific statements made by a witness on direct” rather than as an attack on the witness’ credibility, 609 is inapplicable.See U.S. v. Leavis, 853 F.2d 215, 220 (1988).


iv.  609(b) is not limited to criminal defendants.




v.  609(c) bars the use of all convictions, regardless of nature, if they were set aside by annulment, pardon or other comparable procedure based on either a finding of rehabilitation or innocence.  Pardons intended solely to restore civil rights lost by the conviction will not affect the conviction’s admissibility.  See U.S. v. Jones, 647 F.2d 696 (1981). IF the pardoned witness has been convicted of a subsequent felony, the prior pardoned conviction is rendered admissible, but not a subsequent misdemeanor.


vi.  609(d) makes juvenile adjudications admissible in criminal cases if: 1) offered against a witness other than the accused; 2) the juvenile adjudication was for an offense that would have constituted an admissible conviction if the youth had been an adult; and 3) the court is satisfied that admission is necessary for a fair determination of guilt or innocence. If the conduct giving rise to a juvenile adjudication is probative of the witness’ credibility, the cross examiner is allowed to inquire, even if the cross examiner may not mention the adjudication based on that conduct. See 608(b).  The Confrontation Clause, regarding the cross examination of prosecution witnesses, ensures the defendant’s right to use juvenile adjudications for impeachment purposes.  See Davis v. Alaska, 415 U.S. 308.


vii. Cts allow parties to elicit the Name of the crime, the Time and Place of the conviction, and the Punishment, but no inquiry into the details of the crime. See U.S. v. Boyce, 611 F.2d 530 (1979); U.S. v. Wolf, 561 F.2d 1376, 1381 (1977); and U.S. v. Callison, 577 F.2d 53 (1978)


viii.  U.S. v. Smith, 551 F.2d 348 (1976), 609 allows impeachment by prior felony convictions (for a crime involving dishonesty or false statements), “only if . . .the court determines that the probative value of admitting the evidence outweighs the prejudicial effect to the defendant.”  Dishonest and false statements means crimes such as perjury, or subornation of perjury, false statements, criminal fraud, embezzlement, or false pretense, or others that involve some element of falsification or untruthfulness bearing on the accused’s propensity to testify truthfully.


NOTE: For an illustrative list of prior convictions, both admissible and inadmissible, see Rice, Evidence: Common Law and Federal Rules of Evidence, p. 855, 4 ed. (2000).

ix. Luce v. U.S., 469 U.S. 38 (1984), a defendant who did not testify at trial because the trial court had determined that the defendant’s prior convictions were admissible for impeachment purposes was not entitled to review that determination admitting the convictions even if the defense made an offer of proof.  To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.


x.  A witness’ credibility can be challenged or tested by cross examination under 608, but that challenge is limited to the answer of the witness without extrinsic evidence, Except for a conviction under 609, then extrinsic evidence may be used, Unless probative vs. prejudice.


3.  FRE 610: Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

i.  Although the cross examiner can inquire into character evidence in the form of a witness’ prior conduct during that witness’ cross examination for the purpose of challenging her character trait for truth and veracity, 610 precludes even inquiry into religious beliefs or opinions.  See U.S. v. Kalaydjian, 784 F.2d 53 (1986).


4.  FRE 611 Mode and Order of Interrogation and Presentation.

a) The ct shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to 1) make the interrogation and presentation effective for the ascertainment of the truth; 2) avoid needless consumption of time, and 3) protect witnesses from harassment or undue embarrassment.

b) Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.  The ct may permit inquiry ? into additional matters as if on direct examination.

c) Leading questions should not be used on the direct examination of a witness Except as may be necessary to develop the witness’ testimony.  Ordinarily leading questions should be permitted on cross examination.  When a party calls a hostile witness, and adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

i.  611 generally limits the scope of cross to the scope of direct, that is only subjects that a proponent raises on direct can be explored under cross.  This does not apply to the issue of a witness’ credibility under 608.



5.  FRE 612: Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either 1) while testifying, or 2) before testifying, if the ct determines it is necessary in the interests of justice; and adverse party is entitled to have the writing produced, to inspect it, to cross examine the witness therefrom, and to introduce in evidence portions which relate to the testimony of the witness.  If it is claimed that the writing contains matters not related to the subject matter of testimony the ct shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.  Any portion withheld over objections shall be preserved and made available to the appellate ct.  If a writing is not produced or delivered, the ct shall make any order justice requires, Except in a criminal case, the order shall be one striking testimony, or declaring a mistrial.


6.  FRE 613: Prior Statements by Witnesses

a) In examining a witness concerning a prior statement, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.   

b) Extrinsic evidence of a prior inconsistent statement by a witness, is not admissible UNLESS the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness.  THIS PROVISION DOES NOT APPLY TO ADMISSIONS OF A PARTY OPPONENT AS DEFINED BY RULE 801(D)(2).

i.  The Common Law– Ladd, Some Observations on Credibility: . . ., 52 Cornell L.Q.  239 245-49 (1967);

a. The impeachment by proof of prior inconsistent statements occurs when the attempt to refresh recollection fails because the witness denies making the out-of-court statement and extrinsic evidence is admitted to prove that he did in fact make it.

b.  Most C.L. jurisdictions require, before proof of the statement or introduction of the writing, that the statement must be made known or the writing shown to the declarant so that he will have an opportunity to identify and explain or deny it.

c.  A common practice is to proceed as though attempting to refresh the recollection of the witness, then if he denies making the statement, offering proof by extrinsic evidence. However, a foundation should be laid, identifying the Time, Place, Occasion, and the Person to whom it is claimed the declaration in question was made.


ii.  U.S. v. Barrett, 539 F.2d 244 (1976), to be received as a prior inconsistent statement, the contradiction need not be “in plain terms. It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict.” 613 requires that the court afford the witness, who was asked about the inconsistency during cross, an opportunity at some time during the trial to admit and explain, or deny.  While good practice calls for the laying of a foundation, one is not absolutely required prior to proving the utterance of the inconsistent statement through extrinsic evidence, under 613.  Failing to inquire about inconsistencies on cross examination can result in evidence of inconsistent statements being excluded if the witness subsequently cannot be confronted because he cannot be recalled.

iii.  In U.S. v. Morgan, 555 F.2d 238 (1977), it was held that if a witness gives an account of a transaction with detail and precision on one occasion and then is either evasive or selectively forgetful on another, the witness’ subsequent statement is inconsistent.

iv.  613 expressly excludes conduct from the rule, the Committee Notes ‘the rule does not apply to impeachment by evidence of prior inconsistent conduct.” 56 F.R.D. 183, 279 (1972).

v.  613(b) states ‘this provision does not apply to admissions of a party opponent,” and therefore, if there is an independent basis for admissibility, 613 is inapplicable.  See U.S.v. I.B.M., 432 F. Supp. 138, 139 (1977).

vi.  If the Government obtains the prior inconsistent statement as a result of a violation of the defendant’s 4th Amendment Search and Seizure protections, or the 5th Amendment privilege against compelled self incrimination, the exclusionary rule prohibits the Government from using the statement in establishing the defendant’s guilt.  The Government may use a defendant’s prior inconsistent statement to impeach, by way of contradicting testimony that the defendant gave on either direct or cross, so long as the cross examination is within the scope of the subject matter that the defendant voluntarily opened in her direct testimony. A defendant’s statements made in response to proper cross examination reasonably suggested by the defendant’s direct examination are subject ot otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.  U.S. v. Havens, 446 U.S. 620, 626-28 (1980).

vi. Experts who give inconsistent opinions, or who assert inconsistent facts from one case to another may be impeached with their previous statements.  Because of the technical nature of the testimony by experts, it is more difficult for trial cts to determine that the testimony is inconsistent. See Collins v. Wayne Co., 621 F.2d 777 (1980).


Judicial Notice


A. Facts known or easily ascertained within the jurisdiction or territory of the court, sufficient to avoid introduction through formal proofs, such as:

i.  Testimony

ii. Circumstantial Evidence

iii. Direct Evidence

iv.  Written Evidence

v. Demonstrative Evidence

Ex:   There is no need to bring into court an expert to explain the effects of gravity in a case involving a tree limb causing property damage.


B. As a Shortcut to Proof, FRE 201: 1) must be generally known within the trial court’s territorial jurisdiction, OR 2) capable of accurate and ready determination by resort to sources whose accuracy can’t be questioned (dictionary definition of “local color”).  Judicial Notice is discretionary with the court whether requested or NOT, but if requested by a party AND necessary information is supplied Judicial Notice is mandatory.





A.  Relevant information that breaches a legal privilege is inadmissible.   Legal Privilege is controlled by Common Law–State Rules.  There are no FRE.  Look at the circumstances surrounding any claimed privilege to determine applicability.  The privilege must be affirmatively asserted by the person claiming it exists.  A bona fide privilege bars relevant evidence because the value in preserving constitutional issues is higher.


i. Attorney-client: but if other people are present there is no privilege.  Also remember work-product privilege.  The memorialized strategies, thoughts and ideas of the attorney in anticipation of litigation are protected.  Work-Product Privilege does not extend to those items not produced in anticipation of litigation.


ii.  Doctor-Patient: communications between the doctor and the client are privileged, however if the client signed a waiver/agreement the communications are no longer protected.


iii.  Husband-Wife: generally their communications are privileged, but if no binding marriage; such as same sex, or co-habitation, then no privilege exists.  Two major exceptions: In cases involving child abuse- – no privilege; and in divorce cases – – No marriage, no privilege.


iv.  Constitutional: 4th , 5th, and 6th Amendments provide explicit privileges.

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