· FRE 104(a) – Trial judge decides as a matter of law whether evidence is admissible

· FRE 105
o Upon a party’s request a judge may give a limiting instruction to the jury explain-
ing certain evidence may be admitted against one party or for one purpose and not
any other
· A large percentage of FRE are exclusionary rules
· The rationale for rules is typically based on human behavior
· Rationale for exclusionary rules
o A trial is an attempt to recreate what took place
o The goal is to have the jury make factual findings as accurate as possible
o May exclude evidence because it is not sufficiently reliable for the jury to make
their determination
▪ Basic rationale for excluding hearsay is it is not reliable enough
o Promote some type of social policy
▪ Public policy the law is seeking to further
o The evidence may do too much harm to the fact finding process
▪ Evidence has the potential for the jury to return a verdict on an emotional
basis
o The evidence may be excluded because it is too time consuming
o Not relevant to the case
▪ Want to keep the jury focused on the case in controversy
· Supreme Court – the trial judge is the gatekeeper
o Jurors are presumed to follow the judge’s instructions
· How are functions divided up at a trial?
o Trial judge – decides question of law of whether evidence is admissible
o Jury – determines how much weight to give admissible evidence
· Limited admissibility FRE 105
o Evidence may be admissible against one party though not against another party
▪ Ex. – Π wants to introduce evidence against Δ1 and Δ2
· Judge may say that evidence is admissible for Δ1 but not Δ2
▪ Ex. – Π wants to introduce evidence against Δ
· Judge may say that evidence is admissible for one purpose but not
another
o Judge may issue a limiting instruction to the jury
▪ When should the judge give the limiting instruction?
· At time the evidence is introduced; or
· At the end of the case when the judge is instructing the jurors on
the law
· An issue within the discretion of the trial judge
 ▪ The judge is not required to give a limiting instruction on the judge’s own
initiative
· For a party to be entitled to a limiting instruction the party must re-
quest the limiting instruction
· Think about what the purpose is for admitting evidence
· Where does evidence law come from?
o Each state has its own body of evidence law
o Federal courts have their own evidence rules
· Federal Rules of Evidence
o Reflect modern prevalent thinking
· FRE 102
o Federal rules of evidence shall be construed to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of growth and de-
velopment of the law of evidence to the end that the truth may be ascertained and
proceedings justly determined
· If a rule is silent as to whether it applies to civil or criminal cases then the rule is applica-
ble to both civil and criminal cases
o There may be a special rule for criminal cases
· The rules as they are written apply to jury and nonjury cases – in theory they apply the
same way
o Except many judges in nonjury cases will apply the rules less strictly on the the-
ory of if a judge slips up on considering evidence the judge as a law trained per-
son is less likely to come to an erroneous result
· Instances where the FRE are not applicable
o 1101(b)(1) - In making findings of fact the judge is not bound by the FRE
o Pre-trial proceedings the judge not bound by FRE, evidence inadmissible at trial
may be considered in pre-trial
▪ At the grand jury the FRE does not apply
▪ Application for a warrant FRE does not apply
▪ A motion to suppress evidence FRE does not apply
▪ A bail application FRE does not apply
▪ At sentencing FRE does not apply
· The sentencing judge should be able to take into account a wide
variety of information
o Exception to the exceptions
▪ Privilege applies even in circumstances where FRE is not applicable
· Rationale: To give an individual assurances that if a statement is
given it will not be disclosed
o The FRE do not apply in administrative proceedings, arbitration
 o At summary judgment a judge can only consider evidence admissible at trial
o The FRE do not apply at a preliminary injunction or a motion for a restraining or-
der
· Relevance
o Absolute Rule: Only evidence that is relevant is admissible
o Relevance means the evidence introduced has a logical relationship (fact of con-
sequence [something that matters] to the determination of the action more proba-
ble or less probable than it would be without the evidence)
o Rule 402 – Evidence which is not relevant is not admissible
▪ Relevant evidence may not be admissible if barred by the Constitution,
Act of congress, FRE or other rules prescribed by the Supreme Court pur-
suant to statutory authority
o Ex.
▪ Proponent of the evidence wants to get the evidence to the jury
· Must get through 401 and 402 (relevance)
· Must get through 403
o Almost all evidence is subject to Rule 403
· May be other exclusionary rules
o Rule 401
▪ Relevant evidence means evidence having any tendency to make the exis-
tence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence
· What are the facts of consequence?
o The judge has to determine (civil or criminal) what are the
claims [any defenses] or charges the judge must determine
the facts that matter based on the substantive law
o If there is witness testimony, the witness’s credibility is a
fact of consequence [opposing counsel may seek to attack
the credibility of the witness, attempt to impeach the credi-
bility of a witness]
▪ 7 methods for impeaching a witness
o There exists residual leeway for the judge to allow attor-
neys to introduce evidence on the background of the con-
troversy
▪ The judge has to make sure attorneys don’t abuse
the concept
· Does the evidence have a logical relationship to one or more facts
of consequence?
 o Evidence must have any tendency to make the fact of con-
sequence more or less probable
▪ There’s no requirement that a piece of evidence conclusively proves a fact
of consequence
▪ Does the fact of consequence have to be a disputed fact?
· Yes, the definition of relevance refers to any fact that is of conse-
quence
· ACN – There’s no requirement for evidence to be relevant the fact
must be in dispute
o Rule 403 – Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the is-
sues, or misleading the jury , or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence
▪ Authorizes the exclusion of relevant evidence
▪ Favors admissibility because it is only excluded if it is substantially out-
weighed
▪ Burden is on the opposing party because evidence will only be excluded if
it is substantially outweighed by unfair prejudice
▪ Most important factor is unfair prejudice, not just mere prejudice
· Evidence will be prejudicial to a party because of the nature of the
use of evidence, thus the standard substantially unfair prejudice
▪ Unfair
· The strong potential of bringing about a verdict on an improper
(emotional) basis
· Problems I1-I4
o Problem 1
▪ Evidence may fail because it is irrelevant
▪ The fact is a fact of consequence but the evidence is not sufficiently re-
lated to the controversy
▪ Relevance determinations are always made in the context of this particular
trial
· Always contextual
▪ On appeal the question is whether the trial court’s determination an abuse
of discretion
· Appellate courts should defer to the relevance determinations of
the trial court
o Problem 2
▪ The evidence doesn’t meet the definition of relevance because it is not a
fact of consequence
o Problem 3
 ▪ 403 – Relevant evidence may be excluded if the probative value is sub-
stantially outweighed by…
· Authorizes the exclusion of relevant evidence
· Favors admissibility because it is only excluded if it is substan-
tially outweighed
· Burden is on the opposing party because evidence will only be ex-
cluded if it is substantially outweighed by unfair prejudice
· Benefit of the doubt goes towards the proponent of the evidence
▪ How does the stipulation affect the admissibility of the evidence?
· Does not affect the relevance of the evidence
· A fact of consequence does not have to be a disputed fact
· If a party stipulates to a fact, the stipulation is not conclusive under
Rule 403 – does not conclusively mean the evidence sought to be
introduced on the stipulated fact is inadmissible
o Stipulated fact becomes a factor of 403 analysis
o Probative value is lessened and could waste the court’s
time, confusing to the jury, enhance unfair prejudice
· Trial judges should not deprive a party to paint a real life picture of
what took place
▪ By the defendant’s own testimony, he opened the door to the subject to
whether in fact he was a devoted, grieving spouse
· Have to give the other party the chance to rebut the defendant’s
testimony that he was devoted spouse
· Motive can be looked at as circumstantial evidence
o Problem 4
▪ Because the defendant’s status is only at issue, once stipulated the proba-
tive value of the evidence is next to zero and there is the high potential for
the evidence to be unfairly prejudicial
· Making a rule 403 judgment, the judge will consider whether the limiting instruction will
be effective
o The trial judge should not exclude evidence under 403 if the judge thinks the wit-
ness will not be credibility
▪ Credibility is a question for the jury and the judge cannot take that func-
tion away
· Under rule 403, evidence should not be excluded because the evidence surprised a party
· Direct and Circumstantial evidence
o Evidence can be direct for one thing and circumstantial for another
o Direct Evidence
▪ The evidence by itself proves a fact in question of the case
 ▪ Always relevant, still could be excluded under 403
o Circumstantial Evidence
▪ Evidence by itself that does not prove a fact in question
▪ Requires the jury to make an inference
▪ The relationship between the circumstantial evidence and the fact in ques-
tion is so tenuous, may not meet the test of relevance, may also be ex-
cluded under 403
o Conduct is circumstantial evidence
▪ Conduct  Guilty Conscience  Guilty Conscience of this crime 
guilty of this crime
o Non-evidence
▪ Consequences of a party not introducing evidence that we would naturally
introduce
▪ Missing witness charge
· PW – has information relevant to the case
· Π – PW is under the control of the Π (could be under the control of
any party)
o Employee, agent, treating physician – someone over whom
the party has some practical influence
· Π doesn’t offer a valid excuse for not calling PW – the opposing
party can ask the judge for a special instruction
o Missing witness charge – you may infer that if PW had tes-
tified that the testimony would have been adverse to the Π
(NY uses this instruction routinely, Federal courts have the
authority to give this charge but more reluctant to do so)
▪ Spoilation – if a document is under a party’s control and the party is on
notice that the document is needed for litigation, this party had a duty to
maintain and preserve the document (object) and if the party breaches that
duty with misconduct, then the court may impose sanctions on the party (a
charge that is analogous to the missing witness charge)
· Rule 401 and 403 require ad hoc analysis
o Some relevance issues come up on a consistent basis, rules were codified to that
effect
· Art. IV (Rules 404-415 special relevance rules)
o Assumption: At trial there’s a question of whether Jane Smith engaged in a par-
ticular conduct on a particular occasion
▪ Is evidence admissible that Jane Smith engaged in other similar acts on
other occasions? [Rule 404(b)] Issue of admissibility of other similar acts
▪ Is evidence admissible to show that Jane Smith has a particular character/
disposition for engaging in that conduct? [Rule 404(a)]
 ▪ Is evidence admissible that Jane Smith has a habit for engaging in this
type of conduct? [Rule 406]
· Will the law of evidence allow the admission of evidence that Jane Smith engaged in
other similar acts on other occasions?
o Common Law: Evidence that a person engaged in other conduct on other occa-
sions for the purpose that the person has a particular character/disposition is not
allowed to show a person acted in accord with that particular character/disposition
on this occasion
▪ Not excluding the evidence because it is not relevant; but there are public
policy reasons for excluding the evidence
· If the jury hears this evidence they may convict based on past
events than on the facts of the current case
▪ Only applies if the evidence is for character/disposition, but exclusion
does not apply if the evidence is sought to be introduced for some other
purpose
o First sentence of 404(b) – Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show action in conformity
therewith.
▪ Not limited to other convictions – much broader than just crimes, includes
any other conduct
▪ Not limited to just criminal cases
▪ Not limited to prior acts, the rule includes acts after the present case
o Second sentence of 404(b) – It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident
▪ The key is the purpose for which the evidence is sought to be introduced
▪ If the evidence is for any other purpose than character/disposition and is
specifically relevant to the case at hand the evidence may be relevant
· Theory: The prosecutor has the burden and should be given every
opportunity to prove the charge
o Is this evidence of other conduct or is it part of the evidence of this particular
crime?
▪ Ex. Δ charged with possession of cocaine
· Police search Δ home and find an unlicensed gun
· Prosecutor wants to introduce gun to the jury
o Evidence is part of this crime
· Δ wants to suppress evidence of the gun
o Evidence of other crime, not admissible to prove
character/disposition
· Judge: needed to help the story of the case
o If ok under 404(b) still need to pass 403 to be admissible
o
o Going to look at whether the evidence is of this crime or other acts
o Judges want prosecutor to point out which exception under the second sentence of
404(b) and not just say they want the evidence admitted generally under the sec-
ond sentence of 404(b)
o After getting through the 404(b) argument the 403 argument commences
▪ Δ concedes 404(b) argument
▪ Δ is going to say the probative value of the evidence is substantially out-
weighed by being unfairly prejudicial
▪ Prosecutor: the probative value of the evidence isn’t substantially out-
weighed by the danger of unfair prejudice
· As the evidence comes closer to the act the Δ is charged for, it may
raise its probative value, but may enhance the prejudicial nature of
the evidence
o If the evidence is admitted the judge will issue a limiting instruction under Rule
105
o *don’t confuse 404(b) issue with the question of what happens if the Δ decides to
testify on her own behalf – Δ becomes a witness, she is subject to an attack on her
credibility
▪ One of the methods of impeaching a witness is showing the witness had a
prior conviction (Rule 609)
▪ Another method for impeaching the credibility of the witness is showing
the witness engaged in conduct that is probative of the witness’s truth and
veracity (Rule 608)
o Second sentence is not a rigid concept – not an exhaustive list
o For intent to be an exception under 404(b)
▪ Intent has to be an element of the crime and there has to be a real issue
about the defendant’s intent
o For evidence to be admitted under 404(b), the relevance analysis is not a higher
threshold than 401 relevance because 404(b) provides and illustrative list
o In specific intent crimes other act evidence is likely to be admissible
▪ Δ’s intent or knowledge tends to be the heart of the crime
· Ex. Δ passed counterfeit money
o Δ’s argument is that they didn’t know that it was counter-
feit
· Other act evidence is very likely to be admissible, likely to come
outside 404(b) exclusionary rule and get through 403
 o Theory on why it’s likely to be admitted: Doctrine of
chances – the more the conduct is repeated the less likely
the person engaged in the conduct didn’t know
o Plan – common plan or scheme, can’t possibly mean a plan to live a life of crime
because that is the same as character or disposition
▪ Can’t mean to be a particular criminal specialist
▪ Narrower definition: two or more crimes that are so closely linked up to
each other that realistically the prosecutor can’t show instant crime with-
out showing other crime because the other instant crime and other crime
have the same specific goal
o Identity – becomes an issue when the Δ says “it wasn’t me”
▪ If the Δ is charged with carrying out a crime in a unique fashion the con-
duct must be sufficiently unique in order to have prior crimes admissible
under Identity exception
o Federal law for admissibility of prior crimes that Δ was acquitted of
▪ Means prosecutor was not able to prove guilt beyond a reasonable doubt
that the Δ engaged in the particular conduct, it doesn’t mean that the con-
duct didn’t occur and in the present criminal trial the prosecutor seeks to
introduce evidence of the prior crime the prosecutor doesn’t have prove
beyond a reasonable doubt, the prosecutor only has to convince a judge
that a reasonable jury could find that the conduct occurred by a preponder-
ance of the evidence
▪ The acquittal is irrelevant as to whether the conduct actually occurred
o NY State law for admissibility of prior crimes that Δ was acquitted of
▪ If the Δ was acquitted of the conduct, Δ shouldn’t again have to respond to
evidence that Δ engaged in the conduct
o Under 404(b) the same principals apply in civil and criminal cases
o Supreme Court – 2 issues that lower courts must deal with
▪ Relevance – determined by the trial judge on a case by case basis
▪ 403 – Trial judge must apply rule 403 on a case by case basis depending
upon a particular basis
o Admissibility of other act evidence 413 – 415
▪ 413 – criminal sexual assault prosecutions
▪ 414 – criminal child molestation prosecutions
▪ 415 – civil cases where the Π is alleging sexual assault or child molesta-
tion
▪ These 3 rules override 404(b)
· Create exceptions to 404(b) exclusionary rule
· Evidence of other acts of sexual assault/child molestation whether
a criminal case or civil case, evidence is admissible for any rele-
 vant purpose including to prove the Δs character/disposition to
draw an inference as to whether the Δ acted in accordance with the
character/disposition
▪ In a sexual assault/molestation case 404(b) does not apply, do not analyze
under 404(b) just look to 413-415
· Keep in mind:
o The rules do not make the other act evidence automatically
admissible, subject to 403
· In NY the rules are the same as other act evidence and not admissi-
ble as a counterpart to 413 and 414
· Is character evidence admissible that Jane Smith has a character or disposition?
o Evidence of a person’s character or disposition is not admissible to prove on a
particular occasion the person acted in accordance with their character or disposi-
tion
o Character – The makeup, disposition, how a person is inclined to act generally
o Character can be talked about in terms of a specific trait
▪ Ex. Peaceful in nature, honest
o Why is there a generally exclusionary rule?
▪ Concerned that the evidence might weigh too heavily with the jury and
this may lead the jury to make a decision based upon the type of person in-
stead of the conduct of the present controversy
o The rule applies in civil and criminal cases
▪ Most frequent application is in criminal cases
o US v. Jane Smith – assault
▪ Prosecutor trying to get the jury to infer from Jane Smith’s character that
she is guilty
o An exception to the general rule [Rule 404(a)(1)]
▪ Will allow the criminal defendant to introduce evidence of good character
▪ Rationale: The defendant is protected by a presumption of innocence, giv-
ing the Δ a chance to show the jury what type of person the Δ is
· Δ lawyer’s argument is that this should create a reasonable doubt
in the mind of the jury
▪ Has to be a character trait relevant to the crime that is charged
▪ If the Δ introduces evidence of good character, the prosecutor may intro-
duce evidence of Δ’s bad character
· The policy is to make a decision on the conduct not on the type of
person the Δ is
▪ Prosecutor cannot introduce evidence of Δ’s bad character unless and until
the Δ introduces evidence of the Δ’s good character
▪ Only criminal Δs have this option, not available to civil Δs
o Jane Smith’s attorney introduces evidence of Δ’s good character (relevant to the
controversy at hand)
▪ Common law – gossip was allowable, officially called reputation
· When a party is permitted to introduce evidence of their character,
the method of doing it is putting the witness on the stand to testify
to reputation of the Δ
· Don’t want the witness testifying to specific acts in the past
· The character witness has to be in the position to know about the
witness
· Character witness can testify about community reputation or per-
sonal opinion but cannot testify about specific instances involving
a party
· Will the court allow a character witness to testify that the Δ is a
law abiding citizen
o The issue, prosecutor can call a rebuttal witness to testify in
a broad manner concerning the Δ’s non-law abiding reputa-
tion
o On Δ’s cross examination of prosecutor’s witness the Δ can
ask about specific acts
▪ Laying the foundation – the witness has to show certain specific prerequi-
sites that add up to the witness is in a position to know about Δ’s reputa-
tion (character witness)
· Witness needs to be in the position to have heard what people in
the community have said about the Δ
· Not going to allow the witness to testify to specific conduct the Δ
engaged in under direct examination
· Rule 405(a) allows reputation and opinion from witness about Δ
· NY law – character witness may only testify about reputation, can-
not give witness’s own opinion
▪ If Δ takes the stand she places her credibility, not her character, in issue
▪ The prosecutor can call his own character witnesses to rebut Δ’s good
character witnesses
· Can rebut reputation or opinion, no specific acts on direct exami-
nation
· The character trait that the prosecutor’s witness testifies to must be
the same character trait the Δ’s character witness testified to
· Can cross examine the Δ’s character witness
o Has the witness heard contrary statements to what the wit-
ness testified
 o On cross, prosecutor can ask about specific negative acts
▪ Rationale: the cross examination about specific acts
of the character witness is potentially relevant in
two ways
· Places in question the accuracy of commu-
nity reputation or witness’s reputation (cred-
ibility of witness)
· Raises the question of how well the charac-
ter witness knows the Δ
o If character witness denies the
knowledge of a specific act, that line
of questioning is stopped and we do
not hold a mini trial to determine the
correctness of the statement
· What’s to prevent the prosecutor from making up facts about the Δ
o The mere asking of the question, even if the character wit-
ness denies having heard about it, can be damaging to the Δ
▪ Can start to impeach the witness credibility
▪ Can prejudice the minds of the jury
o The prosecutor has to have a good faith basis for asking
about the specific conduct when asking the character wit-
ness
▪ The prosecutor has to have some evidentiary sup-
port
· Need not be admissible
· Enough to convince a judge the prosecutor
is not making the events up
▪ The specific act must have been knowable to the
community
· A guilt pursuing hypothetical
o Would your opinion change if you knew the Δ did…?
o Mostly the courts have said they don’t like guilt assuming
hypotheticals, prosecutors can ask about actual events but
this type of question cuts into the assumption of innocence,
it’s also too speculative
o 2 specific issues arising from character evidence, in reference to the character of
the victim of a crime (when these issues arise must use specific evidence rules not
the general evidence rules)
▪ Homicide victim where there is a claim of self defense
· Issue: admissibility of victim’s character evidence
o Rule 404(a)(2) –
▪ Think about the substantive law of self defense
▪ When a defendant to a homicide prosecution claims
self defense, under the substantive law of self de-
fense there are potentially two relevant issues: who
was the first aggressor, did the Δ have a reasonable
apprehension of imminent serious physical harm,
there are two categories
· Admissibility of the victim’s character on
the question, who was the first aggressor?
o The defendant may introduce evi-
dence that the victim had the charac-
ter or disposition for being a violent
or quarrelsome type of person in or-
der to infer that the victim was the
first aggressor
▪ The Δ has to be able to show
at the time of the Δ’s conduct
the Δ knew about that charac-
ter or disposition
▪ The victim’s character evi-
dence is being introduces to
show the Δ’s state of mind
not the victim’s propensity to
act in accord with their char-
acter
▪ The victim’s past violent acts
may be admissible but the Δ
would have had to known
about the violent conduct
prior to the homicide
o If the Δ introduces any evidence
(character evidence, eyewitness,
videotape…) that the victim was the
first aggressor the prosecutor may
seek to rebut the evidence by intro-
ducing character witness that the vic-
tim was peaceable to infer the victim
was not the first aggressor
 o If the Δ introduces character evi-
dence that the victim had the charac-
ter for being violent or quarrelsome
the prosecutor can introduce evi-
dence to show the Δ has the charac-
ter of a violent or quarrelsome per-
son (give the prosecutor the opportu-
nity to level the playing field)
· Rationale: The need for the character evi-
dence because the victim is deceased
▪ The admissibility of character evidence of the victim of sexual assault
· Rule 412 – Federal Rape Shield evidence law
o Initially only applied in criminal prosecutions
o 1994 amended for a specific part to apply to civil cases
o Procedure to Determine Admissibility
▪ A party intending to offer evidence under subdivi-
sion (b) must –
· File a written motion at least 14 days before
trial specifically describing the evidence and
stating the purpose for which it is offered
unless the court, for good cause requires a
different time for filing or permits filing dur-
ing trial; and
· Serve the motion on all parties and notify
the alleged victim or, when appropriate, the
alleged victim’s guardian or representative
▪ Before admitting evidence under this rule the court
must conduct a hearing in camera and afford the
victim and parties a right to attend and be heard.
The motion, related papers and the record of the
hearing must be sealed and remain under seal unless
the court orders otherwise
· Trying to balance competing interest
o Trying to protect the victim’s privacy interests
o Try to formulate evidence rules so victims of these crimes
are not hesitant to come forward
o Trying to give the defendant a fair trial
· Under the structure of the rule
o Evidence of the victim’s sexual character or disposition is
inadmissible
 o Evidence of the victim’s other sexual conduct:
▪ General Rule: evidence of the victim’s other sexual
conduct is not admissible
▪ Exceptions – where victim’s other sexual conduct
may be admissible
· Evidence of other sexual conduct between
the victim and other individuals may be ad-
missible on the question of whether the Δ
was the source of the victim’s physical in-
jury or whether the Δ was the source of the
semen
o Going to come up with the Δ says it
wasn’t me – Identity
· Evidence other sexual conduct between the
victim and the Δ
o Going to come up on the question of
consent
· Evidence of other circumstances in which
evidence of the victim’s other sexual con-
duct is needed to be admissible in order to
ensure the Δ receives a constitutionally fair
trial
o To get the trial judge to focus on the
fact shouldn’t be viewed as being ex-
clusive, there may be other situa-
tions, in order to ensure the Δ’s con-
stitutional right to a fair trial, the Δ
needs to introduce other evidence of
the victim’s other sexual conduct –
usually focusing on the victim’s
credibility
· May be subject to 403, possible unfair preju-
dice to the prosecution or defendant
· Defense can show there was delay in reporting the complaint to
weigh on the credibility of the victim
o If the defense shows there was delay, the prosecutor may
be permitted to present expert testimony about Rape
Trauma Syndrome about why rape victims in general (not
the particular victim) may delay reporting
o Character evidence in civil cases
▪ 2 exceptions that might allow the introduction of character evidence
· Rule 412 – Rape Shield Law
o May be admissible subject to a reverse 403 principle
▪ If the defendant can show that the probative value
substantially outweighs unfair prejudice
▪ 403 presumes admissibility – burden on opposing
party
▪ Reverse 403 presumes inadmissibility – burden on
party wanting evidence to be inadmissible
o Evidence of Π’s sexual reputation inadmissible unless the
Π puts it into controversy
· 405(b)
o Sometimes in a civil case a person’s character is an essen-
tial element of the claim or defense
o Not introducing character evidence to prove conduct in ac-
cordance with character, but introducing character evidence
because that is an element of the claim
o When is it appropriate to conclude character is an essential
element of a claim or defense?
▪ If the Π asserts a defamation claim
· Makes the Π’s character relevant
o Truth as a defense
▪ Child custody
· Concerned with the character of the parents
for being a fit parent
▪ Negligent entrustment
· Makes relevant the character of the person
who the responsibility was entrusted to
o Character may be proven through reputation or opinion, but
with 405(b) character may be show by reputation, opinion
or specific acts
▪ Not a situation where character evidence is intro-
duced to show propensity but because the substan-
tive law makes character an essential element
▪ Almost never has application in a criminal case
· The substantive law almost never cares
about the character of the Δ
· Concerned about the particular occasion not
past events
▪ When the Δ asserts the defense of entrapment
 · The prosecutor has the burden of showing
that at the time the Δ engaged in the particu-
lar conduct the Δ was predisposed to that
conduct
· This is another way of describing; the sub-
stantive law requires character as an essen-
tial element of the defense of entrapment
· Is evidence admissible that Jane Smith has a habit for engaging in this particular
conduct?
o Rule 406 – rule of admissibility
▪ Evidence of the habit of a person or of the routine practice of an organiza-
tion… is relevant to prove that the conduct of the person or organization
on a particular occasion was in conformity with the habit or routine prac-
tice
o Rationale:
▪ If a person has a habit of engaging in a certain conduct, the habit is so
strong (probative) as to justify its admissibility
o Distinguishing between character evidence and habit evidence
▪ Can be a close call but character is more general than habit
· Character – general tendency or disposition
· Habit – specific types of conduct
o A regular specific type of response to a substantially simi-
lar set of circumstances
o The doing of the habitual acts may become “semi-auto-
matic”
▪ May become reflexive
o Must look at how often the circumstances arise over a
given time period and how similar are the circumstances
o The more sampling evidence the more accurately you can
conclude whether it is habit or not
· How to prove a habit
o Method of proving habit is left to the flexible discretion of
the judge
o Possible to prove habit through one witness
▪ Rule 406 – whether corroborated or not
o Allows habit evidence to be introduced regardless of the
presence of an eyewitness
▪ The presence of an eyewitness doesn’t preclude the
ability to introduce habit evidence
· Rules 407 – 411
o Common thread – these evidence rules are all exclusionary rules, all seeking to
accomplish a certain social policy
o Rule 407 – Subsequent Remedial Measures
▪ Codification of common law rules
▪ If there is some type of incident that causes an injury to an individual, the
party who’s responsible takes a remedial (something that would have
made the incident that produced the injury less likely to occur)
▪ Subsequent remedial measures – not admissible to show negligence, cul-
pable conduct or to show products liability (design, warning defect)
▪ Policy behind the rule
· Remedial measure not especially relevant because the person being
more careful today doesn’t mean they were negligent in the past
· Want to encourage people making repairs to make things safer and
don’t want to discourage fixing things
▪ Exceptions to the exclusionary rule
· Evidence of the remedial measure may admissible to show some
other purpose (other than negligence, culpability, products liabil-
ity) if one of these other issues is controverted, non-exhaustive list
being:
o Ownership
o Control
o Feasibility
o Impeachment of a witness, etc…
· If the evidence falls outside of the exclusionary the evidence may
be admissible subject to 403
· Courts don’t have to define feasibility
o Impossible vs. could have been done but not successfully
o Court’s don’t like to introduce feasibility because it starts
getting a little too close to negligence
▪ Issues that can come up:
· What if the remedial measure was not undertaken by the Δ but un-
dertaken by a 3rd party?
o Rule 407 does not apply, only pertains to remedial mea-
sures undertaken by the Δ
o Consistent with the policy behind the rule
o Still subject to 402 and 403
· In some cases the remedial measure that the Δ undertook was or-
dered by the government
 o Rule 407 does not apply because we want to encourage re-
medial measures, there’s nothing that can be discourage
o Still subject to 402 and 403
· NY law dealing with remedial measures
o Close to the FRE
o One difference with respect to products liability
▪ The substantive law of products liability in NY
there are two different types of products liability
claims:
· Design defect claim
o Analogous to a negligence claim
(marketed for an reasonable fashion)
o Common law exclusionary rule ap-
plies
o Consistent with 407
· Manufacturing defect claim
o Strict products liability – liability
without fault
o Intended to make it easier for the Π
to recover
o If trying to make it easier for the Π
to recover the goal is not accom-
plished by applying an exclusionary
rule for a subsequent remedial mea-
sure
o Large scale manufactures don’t make
decision whether to engage in reme-
dial measures based on admissibility
· The issuance of a report would not make an injury less likely to oc-
cur, the report is not a remedial measure, 407 not applicable
· Feasibility – not just physically capable, but capable of undertak-
ing the remedial measure successfully
o Minority opinion – feasibility means physically capable of
undertaking the measure
o Rule 409 – Payment of medical and similar expenses (good Samaritan rule)
▪ Evidence of payment of medical and similar expenses is inadmissible to
prove liability
▪ Policy – seeking to further a social policy of encouraging individuals to
act with humane impulses
 ▪ The courts don’t actually look at the motivation of the person making the
offer to pay
· Insurance company might offer to pay medical expense not out of
any humane impulses because potential insurance liability may in-
crease
▪ The rule applies whether or not the person making the payment was a par-
ticipant in the incident
▪ There is no requirement there be a disputed claim
▪ There is no timing requirement
▪ The evidence is inadmissible on the question of liability
· Possible that the evidence may be admissible on some other ques-
tion
▪ Rule is limited to payment or offer to pay medical, hospital or similar ex-
penses
· Surrounding statements are not protected by the exclusionary rule
o Ex. Offering to pay then saying “I’m sorry, I realize I was
acting…”
o Rule 408 – Compromise and offers to compromise
▪ Evidence of an offer to settle or compromise a disputed civil claim or a
settlement of a disputed civil claim is not admissible to prove liability or
the invalidity of a claim or the amount of a claim
▪ Policy – want to encourage the settlement of civil claims
· You can make an offer to settle
· You can enter into a settlement and not worry that the evidence of
the settlement or offer is going to be admissible on liability
▪ If the law of evidence is serious about encouraging the settlement of dis-
puted civil claims we have to protect and extend the exclusionary rule not
just covering the offer to settle or settlement, must extend it to statement
and conduct of the parties during settlement negotiations
· The law has to allow parties to engage in discussions and not
worry the statements or conduct will be used against them to prove
a disputed civil claim
· Includes even damaging statements
▪ Under common law for the exclusionary rule to apply the party had to use
a qualifier (off the record, hypothetically, without prejudice, etc…)
· This was found to be an impediment to effective settlement negoti-
ations
▪ The exclusionary rule bars statements made during settlement negotiations
to impeach the credibility of a party’s testimony
 ▪ For the exclusionary rule to apply the civil claim being negotiated must be
in dispute
· Theory: If a claim is not disputed then there is nothing to negotiate
▪ How to tell if a claim is in dispute or not
· Look at the conduct between the negotiating parties
o Have they expressed a difference of opinion
o Has one or both of the parties retained counsel
o Has the party taken any steps towards litigation
▪ Evidence offered during settlement negotiations to keep the evidence inad-
missible will not work
· If during the course of settlement negotiations a party refers to an
object or document that would normally be admissible at trial does
not become inadmissible if referred to during a settlement negotia-
tion
· Must distinguish between documents and documents that pertain to
the settlement negotiations
▪ 408(b)
· Exclusionary rule does not apply to settlement evidence if it is
sought to be introduced for another purpose, such as:
o To prove the bias or prejudice of a witness
o To negate a claim of undue delay
o To prove the obstruction of a criminal prosecution
· Evidence may be admissible subject to 403
▪ 408(a)(2)
· If the evidence is sought to be admissible in a criminal trial, the
statement it is not admissible in a criminal trial except if:
o A public office or agency in the exercise of regulatory, in-
vestigative or enforcement authority
▪ Rationale: if a party negotiates with a government
agency that party is on notice that the statement
may wind up being used in a criminal prosecution,
the Δ should take steps to protect their statements
from being used against Δ
o Rule 410
▪ Promotes the settlement of criminal charges – plea bargain negotiations
▪ 410(4)
· If there exists plea bargain negotiations and they break down the
statements made by the defendant are not admissible
 ·Statements are admissible if they are between a defendant and a
law enforcement officer
o Exceptions to 410(4)
▪ Prosecutor gives express authority for the officer to
engage in plea negotiations
▪ If the officer had apparent authority to act on the
prosecutor’s behalf in terms of plea bargaining
▪ The prosecutor doesn’t give officer express author-
ity, nothing to create apparent authority, but the of-
ficer acts as though they have the authority
· A defendant can waive the right to exclude plea bargain under
Rule 410(4)
o Whether the waiver is knowing and voluntary
▪ If it is then a right can be waived
· What if the prosecutor does engage in unsavory tactics (coercion,
duress)
o Worked out on a case by case basis
· What if the prosecutor says we’ll only negotiate if you waive 410
for all purposes not just impeachment
o The courts are typically saying the prosecutor can extract a
broad waiver to waive all 410 rights
▪ If there is a guilty plea, is that admissible in another criminal or civil case?
· A guilty plea is an admission on the facts of the current case, not
protected by the exclusionary rule
· Can apply to a guilty plea to a traffic infraction – courts typically
do not use this because it’s a more informal proceeding
▪ If there is guilty plea that is withdrawn
· If the plea was withdrawn then it’s as if there is no plea and not ad-
missible
· Any statements made in conjunction with the plea are inadmissible
▪ No Lo Contendre
· Acknowledging guilt for this case only
· Cannot be used in any other proceeding
▪ Exceptions
· If the defendant is represented by counsel and makes a knowing
false statement under oath that is subject to perjury prosecution,
410(4) does not apply
o Rule 411
▪ Evidence that the Δ is covered by liability insurance is not admissible to
prove negligence or wrongful conduct
 · Rationale
o The law of evidence thinks on a negligence that it is im-
proper to infer that the Δ was more likely to be negligent
because the Δ took out a liability insurance policy
▪ Taking out a liability insurance policy shows the Δ
was prudent
o Don’t want jurors thinking they’ll make the Δ pay because
the Δ won’t pay, the insurance company will pay
▪ Want the jury computing the damages based on the
evidence against the Δ
· If the revelation of the Δ’s insurance coverage was accidental then
the judge can instruct the jury to disregard
· If the trial judge comes to the conclusion that the revelation of the
Δ’s insurance coverage was intentional then there might be a mis-
trial
▪ Rule doesn’t require the issue to be controverted but it wouldn’t pass 403
if it wasn’t controverted because the probative value is so low
▪ Potentially permissible purposes for introducing liability insurance
· Employment, agency relationship
· Ownership or control
· To prove the bias of a witness
· Making proper evidentiary objects (procedural aspects of the law of evidence)
o Objection to the admissibility of evidence
▪ Rule 103(a)(1) What constitutes a property objection?
· The objection has to be timely
o Want the objection to be made when the basis for the ob-
jection becomes an apparent
· The objection must state the specific grounds
o Lets the trial judge understands the basis of the objection
o Intended to give opposing counsel to take corrective action
o How to preserve the objection for the basis of appeal
▪ Document – asked that it be marked as an exhibit
· State on the trial record the basis of why the document should be
admissible
▪ Oral testimony
· Judge does not allow witness to testify
o Make a record at the trial level that preserves for the record
on appeal the judge should have allowed the testimony
 · The proponent to preserve the evidentiary point on appeal must
make an offer of proof
o Make a record of the substance of the testimony of what the
witness would have testified to
o A reason why the proponent claims why the testimony was
admissible
· Should not take place with the jury present
· 104(c)
o If there’s a question about the voluntariness of a confession
that must be discussed outside the presence of a jury
· All other evidentiary issues, where ever practicable, may be out-
side the jury’s presence
▪ Motion in limine
· A motion at the outset of litigation
· Even though the FRE do not address the procedural device of a
motion in limine
· In practice – a party to a case that is going to be tried may make a
motion pre trial asking the trial judge for a ruling for the admissi-
bility of evidence
· The motion may be made before trial begins, during trial before
evidentiary issue arises
· If the motion in limine ruling is in any way tentative, then the ob-
jecting party must renew the objection at trial in order to preserve
it for appeal
▪ Claim error review
· There are some evidentiary errors so serious, so obvious, that even
though not raised (properly) at trial, the appellate court should re-
view the evidentiary ruling to prevent a serious miscarriage of jus-
tice
· Doctrine reserved for exceptional situations
▪ Two types of evidentiary errors
· Prejudicial errors – reversible errors
o The appeals court says there was an error that affected a
substantial right of the appellant and will reverse
· Harmless error
o Trial judge made an error but the appellate court will not
reverse
o Doctrine that enables appellate courts to find an error and
not reverse
· Hearsay
o Rule 802
▪ General exclusionary rule – Hearsay evidence is not admissible
o Rule 801
▪ Certain out of court statements are exempted from the definition of
hearsay
o Rule 803
▪ 23 hearsay exceptions
o Rule 804 – Declarant unavailable
▪ 5 hearsay exceptions
▪ Apply only when the person who made the hearsay statement, is unavail-
able
o Rule 807
▪ Catch all
o Definition of Hearsay
▪ Any statement that’s made out of court and it’s sought to be introduced in
court to prove the truth of the fact asserted in the statement
· Out of court statement
o Any statement other than a statement made by the witness
on the stand at this trial
· Must have been intended as an assertion
o Usually this isn’t an issue because when individuals make
statements they intend do exactly what they have done
o Conduct can constitute hearsay when the conduct is meant
to be a statement
o Silence can be intended as an assertion
· Prove the truth of the fact asserted
o The law of hearsay draws a distinction between out of court
statements to prove the fact asserted and out of court state-
ments that are not sought to be introduced in court to prove
the truth of the fact asserted in the statement, sought only to
show the Declarant made the statement
▪ This issue becomes one of relevance
▪ Is the mere making of the statement relevant
· Situations of which the mere making of the statement is relevant
o Verbal Acts
▪ Those statements that have independent legal signif-
icance
▪ The verbalization is treated as if it is conduct
 ▪ Situations
· Defamation – a statement, writing
o One of the elements is that the Δ
published a statement injurious to the
Π’s reputation, to satisfy that ele-
ment the mere making of the state is
a verbal act and is treated as if it con-
stitutes conduct because the substan-
tive law of defamation indicates it is
conduct
o Statement is not being introduced to
prove the truth of the fact asserted
· Contracts
o Statements of offer and acceptance
can be treated as the contract which
constitutes conduct
· Criminal
o Statements may have penal conse-
quences
o The mere making of the statement
does not go to the truth of the fact as-
serted but is treated as conduct
o Verbal Parts of Acts
▪ When there is conduct and if looked at in isolation
the conduct in legal significance is ambiguous, the
verbal acts makes the conduct legally significant
▪ Where there is conduct that in isolation is ambigu-
ous as to its legal significance, the accompanying
words that give the conduct its legal significance is
not in admissible hearsay
o State of Mind
▪ It may be the state of mind of the person who heard
the out of court statements or the state of mind of
the person who made the out of court statement
▪ Must determine the relevance of the state of mind
▪ State of mind of the person who heard the statement
· Π slipped and fell in a department store
owned by Δ
· Π has a witness that says they heard 3rd party
tell Δ the floor was wet
 · The statement is admissible because it is not
being used to prove the fact that the floor
was wet
· Relevant to the state of mind (notice) of the
Δ
o Rationale behind rule against hearsay
▪ Rules seek to preserve cross examination of witness statements
▪ Not sufficiently reliable, not subject to cross examination
o Terminology
▪ Witness – person on the witness stand
▪ Declarant – person who made the out of court statement
o Recognizing Hearsay
▪ Whenever there is an attempt at trial to introduce of any type of writing or
document
· Out of court statement that may present a hearsay problem
▪ When a witness on the stand, is attempting to say:
· He told me
· I heard her say
· She said
· X told Y, etc…
o An inconsistent statement by a witness is relevant
▪ The mere making of the statement is relevant when it goes to the credibil-
ity of the declarant
▪ A witness testifying to their own out of court statement does meet the defi-
nition of hearsay
· How do trial judges handle this problem?
o Almost always find a way to allow this out of court state-
ment to be introduced as evidence
▪ The witness/declarant wasn’t available for cross at
the time the statement was made but is available for
cross at the time of trial
▪ Issue concerning the significance of the declarant’s intent
· The statement can only be hearsay if the declarant intended to
make a statement
· Important in determining whether conduct or silence constitutes an
out of court statement if and only if the declarant intended to make
an assertion
▪ Doctrine of implied assertions
 · Declarant makes a written/oral statement and intends to make a
particular factual statement
o Normally inadmissible hearsay
o Argue for admissibility – the out of court statement was
what the declarant implicitly believed
· Declarant makes a statement – intends to assert fact x
· Proponent – not seeking to introduce out of court statement to
prove fact x, seeking to introduce statement to show what the
declarant implicitly believed
· Ex.
o Jane Smith voted for Hilary Clinton
o That vote could be viewed as an out of court statement
o Proponent – not using vote to show what candidate Jane
Smith prefers, using vote to show that Jane Smith implicitly
believed Hilary Clinton is a sane individual
· The opposing party didn’t have an opportunity to cross examine
the declarant concerning the belief about mental capacity
· There’s a danger that declarants might fabricate statements with
the expectation that in litigation there might be an inference drawn
· Common law position treats the out of court writing as a statement
stating the declarant believes the person is mentally sane
· Federal Rules of Evidence View
o Intent behind Rule 801 was to accept the doctrine of im-
plied assertion
o If the declarant intends to assert fact x but the proponent
seeks to introduce the statement not to prove fact x but to
show what the declarant implicitly believed
o In order to be admissible the declarant’s believe must be
relevant
o Rationale
▪ If the declarant intends to assert fact x, but the
declarant doesn’t intend to make any statement
about the declarant’s belief
▪ There’s little danger that the declarant said what he
did to fabricate the declarant’s belief
o Conduct as an out of court statement
▪ If and only if the conduct was intended as an assertion
▪ Ex. – pointing is intended as an assertion
 ▪When conduct is intended as an assertion then this raises a hearsay prob-
lem
▪ Most conduct is not intended as an assertion
o Hearsay Problems
▪ Out of court statement?
▪ Sought to prove a fact of the matter asserted or just to prove the statement
was made?
· Prove the statement was made
o Admissible as long as it is relevant subject to 403
· Prove the fact of the matter asserted
o Inadmissible unless there’s a hearsay exception or exemp-
tion
o Hearsay Exemptions and Exceptions
▪ An evaluation that states the statements are likely to be reliable to take
them outside of the rule against hearsay
▪ Necessity of introducing the out of court statement
o Confrontation Clause
▪ In all criminal prosecution, the accused shall enjoy the right to be con-
fronted with the witnesses against him
▪ In the 6th Amendment – applies federal criminal prosecutions
· Has been read into the due process clause of the 14th Amendment
which means it applies to state criminal prosecutions
· Does not apply in civil cases
▪ Provides protection only to criminal defendants, when the prosecution of-
fers evidence against the criminal defendant
▪ Provides no protection when the defendant is seeking to introduce evi-
dence against the government
▪ Becomes a major issue in criminal prosecutions whenever the prosecutor
seeks to introduce evidence of an out of court statement against a defen-
dant
· Defendant has the right to cross examine the witness
· Defendant has the right to physically confront the prosecution wit-
ness (eyeball to eyeball confrontation)
▪ The defense attorney has 2 potential arguments
· Out of court statement constitutes inadmissible hearsay
o Issue under the law of evidence
· Violation of the Confrontation Clause
o Issue under Constitution
 o Even if it is admissible hearsay it still violates the Con-
frontation Clause
· Keep these two arguments separate
o Hearsay exemption under 801 for purposes of identification
▪ Out of court statement identification of a defendant
· While this does fit the definition of hearsay it is exempted under
801
· Likely to be as reliable if not more reliable than the in court identi-
fication
· Exempted if the out of court identifier is now on the stand and sub-
ject to cross examination concerning the out of court statement of
identification
o Rule 801(d)(1)(c)
▪ Out of court statement of identification
▪ Showing the identification occurred after the identifier had an opportunity
to perceive
▪ Must testify on the stand
▪ Must be subject to cross examination concerning the out of court identifi-
cation
▪ Does this encompass identifications made from a photograph
· Intended a broader interpretation that encompasses not just identi-
fications of live people, but identifications from photographs
▪ Does it matter that the out of court identifier that in court she misidentified
the suspect
· No, it was understood when the hearsay exemption was placed in
the rule there might be erroneous in court identification
▪ Opportunity for examination on cross is satisfied by the cross examiner
being able to illicit the witness’s present lack of memory of identification
o Confrontation Clause
▪ As long as the declarant is on the stand at trial there is no Confrontation
Clause issue
▪ A declarant who is on the stand and does not remember is still available
for cross-examination
· A lawyer the elicits from the witness a statement of I don’t remem-
ber has successfully cross-examined the witness according to the
Supreme Court
▪ If the prosecutor does not produce the declarant for in court cross-exami-
nation
· Pre-Crawford (Overturned)
 o When the prosecutor seeks to introduce into evidence an
out of court statement against the Δ the prosecutor will sat-
isfy the Confrontation Clause by convincing the trial judge
that the out of court statement is sufficiently reliable
o Reliability was tested under a two part test
▪ Was the hearsay exception that this was admissible
under a firmly rooted exception
· Yes – sufficiently reliable
· No – next prong
▪ Sufficient guarantees of trustworthiness
· Post-Crawford (Good Law)
o The Confrontation Clause gives criminal defendants protec-
tions only against out of court statements that are testimo-
nial
o If the out of court statement is not testimonial
▪ Then the criminal defendant receives no protection
under the Confrontation Clause
o If the out of court statement is testimonial
▪ The prosecutor can satisfy the Confrontation Clause
by:
· Complying with the principle from United
States v. Owens
o Put the declarant on the stand for in
court cross-examination by the Δ
· Presenting that the declarant is presently un-
available and there was an opportunity to
cross-examine the declarant when the out of
court statement was made
o Defining testimonial
▪ Whether the declarant reasonably believed the out
of court statement will be used in a criminal prose-
cution (grand jury testimony, affidavit, deposi-
tion…)
· When the police engage in a formal police
interrogation, the statements made during
the interrogation are testimonial
· Some out of court statements that are not
likely to be considered testimonial
 o Co-conspirator out of court statement
because there is no reasonable belief
that the statement will be use in court
o A casual statement between friends
o A statement to get medical treatment
o Deathbed statements
o Special definition of testimonial (Under Davis)
▪ Focuses on the person asking the questions
▪ Whether from the standpoint of a hypothetical rea-
sonable questioner is the officer seeking informa-
tion for the purpose of attempting to assist with re-
spect to a present emergency or seeking to obtain
information to prove facts at trial
· Assist – out of court statements not testimo-
nial
· Prove facts – out of court statements are tes-
timonial
o Common occurrences when out of
court statements may or may not be
testimonial
▪ 911 calls end up being
hearsay and the question is
whether the 911 call is testi-
monial
▪ Statements given to the po-
lice at the crime scene
▪ Introducing a type of report or document into evidence
· May fall under public records or business records exception
o This takes care of the rule against hearsay
· Whether these reports are testimonial and subject to Δ’s right to
Confrontation
o These types of reports are testimonial statements
▪ A reasonable lab analyst would expect this report to
be used at trial
▪ Functional equivalent of testimony
o To satisfy the Confrontation Clause the prosecutor must put
the lab analyst on the stand to be cross-examination
o Hearsay that bares a sufficient indicia of reliability is not
the analysis post Crawford
 ▪ Cross-examination is the vehicle to examine the re-
liability of the statement
o Lab analysts are typically employed by the government and
their work does not bare a sufficient indicia of reliability
anyway
o The burden for complying with the Confrontation Clause is
on the prosecution and the burden should not be placed on
the defense in subpoenaing the analyst
· There are certain reports introduced into evidence pursuant to an
exception to hearsay under the business records exception
o Routine business records are not testimonial for purposes of
the Confrontation Clause because they are not made with
an eye towards litigation unless it can be shown that the
record was prepared for the purpose of litigation
· If the out of court statement is not testimonial then the defendant
has no protection under the Confrontation Clause
▪ Other Confrontation Clause issues
· Forfeiture by wrongdoing
o By your wrong doing you have forfeited your rights under
the 6th Amendment
o Wrongdoing undertaken for the purpose or intent of render-
ing the declarant unavailable for testifying in court
o Prosecutor has the burden of proof to show the Δ forfeited
his rights
· Cases involving joint criminal defendants
o Prosecution v. Bell, Gray
▪ Bell confessed to crime and indicated Gray
▪ Prosecutor seeks to introduce Bell’s statement
against Gray
▪ Gray is unable to force Bell to take the stand and be
subject to cross-examination
▪ Giving a limiting statement to the jury to only con-
sider the statement against Bell and not Gray is un-
fairly prejudicial
▪ As of right now this fails to satisfy Gray’s 6th
Amendment rights
▪ Ways to satisfy 6th Amendment rights
· Prosecutor can redact any reference to Gray
 o Difficult to successfully redact a
statement unless there’s a large num-
ber of defendants
· If Bell gets on the stand and testifies then
Bell is subject to cross-examination by Gray
· Prosecutor can try to the two defendants
separately
o 803 Exceptions
▪ Likely to be so reliable that the court does not care whether or not the
declarant is available to testify
▪ The availability of the declarant is irrelevant
o 804 Exceptions
▪ Only apply when the declarant is unavailable
▪ 804(a) refers to the declarant is unavailable as a witness which is the un-
availability of the declarant’s in court testimony
▪ Where the declarant is physically available but the testimony is unavail-
able
· 5th Amendment, spousal, attorney-client… privilege
· Refusal to testify
· Witness does not remember
o Don’t care whether the witness truly doesn’t remember or
whether the witness is fabricating lack of memory
· If the proponent made reasonable efforts to bring the declarant into
court and the declarant doesn’t show up the declarant is unavail-
able
▪ Former testimony hearsay exception
· A party at trial A wants to admit testimony from trial B
o May have been a prior trial in this case, another case, pre-
liminary hearing, deposition…
o Out of court statements that constituted “testimony”
o Absent a hearsay exception this former testimony when in-
troduced in trial A would constitute inadmissible hearsay
· Rationale for exception
o Rather take witness from prior case and put into present
case and subject witness to cross examination
o The out of court statement was made in a judicial proceed-
ing, under oath with a transcript and at the prior proceed-
ing there was an opportunity to cross examine the witness
· Elements
 o Declarant must be unavailable
o Out of court statements that were made under oath at some
type of judicial proceeding
o The party against whom the former testimony is sought to
be introduced must have had in the prior proceeding an ad-
equate opportunity to cross examine the declarant and a
similar motive to do so
▪ Similar motive
· Similar motive the cross examiner would
have to cross examine the declarant in the
present case
▪ Opportunity and motive are satisfied if the issues
are sufficiently similar
▪ Adequate opportunity to cross examine requires the
court to look at what actually happened in the prior
proceeding
· Example
o A v. B
o A alleges A became seriously ill because B installed as-
bestos in A’s home
o A brings in Dr. S to testify
o C v. B
o C alleges C became seriously ill because B installed as-
bestos in C’s home
o Dr. S is now deceased
o C wants to introduce Dr. S’s testimony against B
o Dr. S’s testimony is admissible because it fulfills all of the
elements
· Attempts to introduce prior testimony
o Criminal
▪ Prior testimony must be offered against a party who
was a party in the prior suit
▪ When the overriding issues in the two cases are es-
sentially the same and the stakes are essentially the
same the motivation to cross examine was suffi-
ciently similar despite a shift in strategy
▪ Confrontation Clause
· Former testimony is testimonial
· Declarant must be unavailable
 · There was an opportunity to cross examine
in the prior proceeding
o Element of prior testimony exception
▪ If prior testimony falls within that hearsay excep-
tion then it will also satisfy the Confrontation
Clause
o Civil
▪ The former testimony may be offered against a
party who was not a party to the prior proceeding if
the party against whom the testimony was offered
against was a predecessor in interest
· Predecessor in interest
o The prior party had opportunity and
motive to cross examine on the same
issue in the prior proceeding
o Someone who was standing in the
shoes of the party who the testimony
is sought to be asserted against
o Double hearsay problem
▪ Π1 calls Dr S in Trial 1
· If Dr S testified that he spoke to Π’s neigh-
bor and the neighbor said…
▪ Π2 seeks to introduce Dr S’s testimony in Trial 2
· Dr S’s previous testimony – Hearsay prob-
lem 1
· Neighbor’s statement in Dr S’s testimony –
Hearsay problem 2
▪ When there are multiple levels of hearsay there
must be a hearsay exemption or exception for each
instance of hearsay
· Admissions
o Definition
▪ An out of court statement of a party
▪ Offered against the party who made the statement
· Does not have to be against the interest of the party at the time the
statement was made or at trial
o Common law
▪ Exception to the rules against hearsay
o Federal Rules Of Evidence
▪ Rule 801 – an exemption to a rule against hearsay
 · Not hearsay
· Must be relevant
· Subject to 403
o Rationale
▪ The nature of the adversarial process
· If a party makes an out of court statement the party is not in a good
position to contest the admissibility of his own statement
· The concern of an opportunity to cross-examine is moot because
the party is not going to cross-examine themselves
▪ There is no requirement that the party who made the out of court statement
had personal knowledge
▪ Parties to litigation might make self serving statements
o Does not authorize the Π to offer the Π’s own statement
o How do admissions come about?
▪ Might be a party’s out of court written statement, out of court oral state-
ment
▪ Under Rule 801 an admission may come about as a result of conduct or si-
lence if but only if the conduct or silence was intended as an assertion
· Possible for one to adopt another person’s out of court statement as
one’s own
o Jane Doe v. Jim Thomas
▪ Investigator presents a statement of the accident and
Thomas signs – Thomas has adopted someone
else’s statement as his own
▪ Police officer says you ran the red light and Thomas
agrees then Thomas has adopted the statement
· When will a party’s silence constitute an out of court statement
o Investigator goes to Thomas and says you went through the
red light
▪ Possibility 1 – I did and I’m proud of it
· Express adoption of someone else’s out of
court statement
▪ Possibility 2 – Thomas nods his head
· Conduct intended as an assertion that adopts
someone else’s out of court statement
▪ Possibility 3 – Thomas is silent
· Ambiguous and needs to be interpreted
o To interpret silence
 ▪ Under these circumstances would a reasonable per-
son have objected to these statements if the state-
ment was untrue
· Yes
o by failing to object we can interpret
the silence as acquiescence
o An admission by the party (Thomas)
adopting another person’s statement
through silence
▪ Failure to respond to a face to face communication
is more likely to be seen as an adoption of a state-
ment
▪ Failure to respond to a written communication will
likely not be seen as an adoption of a statement
▪ A criminal’s silence will likely not be determined as
acquiescence
· Miranda rights – right to remain silent
· How to interpret the silence of one who is
suspected of criminal wrong doing
o Courts are generally reluctant to in-
terpret a suspect’s silence as acquies-
cence because criminal suspects are
typically advised by attorneys to be
silent and many criminal suspects
have experience dealing with police
and the prudent thing to do is to re-
main silent
▪ Prerequisite
· Party must have at least understood the
statement (ex. Foreign language)
· Courts inquire whether the party who is
silent was under some physical or emotional
impediment that prevented a response
o Vicarious admissions
▪ When is an out of court statement of an agent or employee admissible
against the employer?
· Common Law – an employee’s out of court statement will be ad-
missible against the employer only if the employee had speaking
authority
o The authority to make statements
 · Rule 801(d)(2)(c) – admissible against the employer if it is an em-
ployee that is authorized to make a statement concerning the sub-
ject
o Most employees and agents don’t have authority to speak
for the employer
· Rule 801(d)(2)(d) – an out of court statement by an agent or em-
ployee is admissible against the employer if the statement is one
that concerns a matter within the scope of the agency or employ-
ment and the statement must have been made during the existence
of the employment relationship
o To protect employers from statements made by potentially
disgruntled employees
o The statements that qualify as admissible may be mitigated by the party the state-
ments are offered against
▪ Small category that are considered conclusive – Formal Judicial Admis-
sion
· Statements in the pleadings in the case
· Stipulations of fact
o Written
o Stipulation of fact in open court
· Guilty plea
· Coconspirator Hearsay Exemption Rule 801(d)(2)(e)
o Elements
▪ Out of court statement
▪ Made by a coconspirator of a party
▪ Made during the course of the conspiracy
▪ In furtherance of the conspiracy
o What a trial judge would have to determine by a preponderance of the evidence
▪ Need to determine whether there is a conspiracy
▪ Were the defendant and the declarant members of the conspiracy
▪ Was the out of court statement made during the course of the conspiracy
▪ Was it made in furtherance of the conspiracy
o Not limited to criminal cases
o The conspirators should be treated as agents of each other
o The defendant does not need to be charged with conspiracy for this exemption to
apply
o Confrontation clause and coconspirator statements
▪ Not testimonial statements and therefore will not violate defendant’s 6th
amendment rights
 · For vicarious or coconspirator hearsay the judge may take into consideration the
declarant’s out of court statement but the declarant’s statement is not by itself sufficient
o The proponent must show other evidence that
▪ The employee has speaking authority
▪ Made during the employment relationship
▪ Other evidence that there was a conspiracy
▪ Evidence that statement was made in the furtherance of the conspiracy
Declaration Admission

Who Anyone Party

Unavailable No

Personal Knowledge No

Against declarant’s interest No

No motive to falsify No

· Declaration against interest

o Elements
▪ Declarant must be unavailable
▪ At the time the out of court statement was made by the declarant the state-
ment was made against the declarant’s pecuniary(money),
proprietary(property) or penal interest and a reasonable person would not
have made the statement unless it was true
· Individuals would not make up statements against their interest
▪ The declarant must have personal knowledge
▪ The declarant must not have a motive to falsify
o When a trial judge applies elements to declaration against penal interest and one
part of the statement is against interest and one part is not then the judge must
parse the statement and only the part that is against penal interest is admissible for
this hearsay exception
o Declarations against interest offered by defendants for exculpation is treated dis-
trustfully by the law of evidence
▪ When the declaration against penal interest is offered by the accused it is
not admissible under this hearsay exception unless the Δ shows to the trial
judge corroborating evidence
· Statement under the belief of impending death – Rule 804(b)(2)
o Elements
 ▪ Declarant must be unavailable
▪ Must believe death is imminent
▪ The statement has to concern the circumstances or cause of the impending
death
▪ Only applies in homicide and civil cases
o There is no special language required to determine if the declarant a belief their
death is imminent
▪ Trial judge can consider all facts and circumstances, including what the
declarant said and the declarant’s condition
· Rule 803(1) – Present sense impressions
o Elements
▪ Describes or explains an event
· Any event
▪ During the occurrence of the event or immediately thereafter
o Rationale
▪ When individuals make statements describing the event while the event is
taking place it is not likely that the statement is fabricated
▪ These out of court statements that constitute present sense impressions are
often made to an individual who was also present during the event and
therefore is available to corroborate the declarant’s description
o NY – very strict view of immediately thereafter, just enough time to formulate the
sentence
· Rule 803(2) – Excited utterance
o Elements
▪ An unusual (out of the ordinary) event
▪ Made when the declarant is under the stress of excitement of the unusual
event
▪ Statement must relate to the unusual event
o Rationale
▪ Haven’t had the opportunity to fabricate a lie, likely to be sufficiently reli-
able
o No requirement that the declarant was a participant in the event
· Rule 803(3) – Then existing mental, emotional, or physical condition
o Creates a hearsay exception for statements of the declarant’s present, mental,
emotional or physical state
o Present physical condition
▪ Elements
· Then existing (present)
· Pain, symptoms
 ▪ Points to keep in mind
· Only declarant’s physical condition, not someone else’s physical
condition
· Only the declarant’s present physical condition, not how the
declarant may have felt in the past
· Does not include the cause of the physical condition
· Does not matter to whom the statement is made
▪ Rationale
· How the declarant feels physically at the time of the statement is
more reliable or at least as reliable as a witness testifying how they
felt in the past
· When an individual expresses his or her physical condition at the
time the statement is made it is not likely to be a fabrication
o Present mental/emotional state, feelings, intent
▪ Elements
· Then existing
▪ Points to keep in mind
· Only declarant’s state, not anyone else’s state
· Only the declarant’s present state, not how the declarant may have
felt in the past
· Does not include the cause of the declarant’s state
· Relevance – do we care about the declarant’s present state of mind
▪ Rationale
· How the declarant feels physically at the time of the statement is
more reliable or at least as reliable as a witness testifying how they
felt in the past
· When the declarant makes a statement of declarant’s present state
there is a strong probability that it is not a fabricated statement
▪ Relevance Categories
· Looking at the substantive law, it will tell if the declarant’s state of
mind is relevant – is it or is it not a fact of consequence
o Wrongful death
▪ Surviving wife brings claims against tortfeasor
▪ Wants damages for loss of support, companionship
▪ Husband made certain out of court statements about
his feelings towards the Π
· Example 1: “My wife means everything to
me”
 o Π’s attorney will want to introduce
this
o Analysis
▪ Hearsay – Out of court state-
ment by the husband of his
present emotional state
▪ Relevance – wrongful death,
loss of companionship rele-
vant on the amount of loss
suffered by the wife
· Example 2: “She is one despicable woman”
o Δ would want to introduce statement
· Cases in which the substantive law doesn’t care about the
declarant’s state of mind, the substantive law cares only about
whether the declarant engaged in the particular conduct
o Evidence Theory
▪ If an individual expresses an intention to engage in
conduct in the future, not too distance future, then
it’s more likely the declarant engaged in the conduct
than if the declarant did not express the intention
o Analysis
▪ Hearsay – statement of present intent
▪ Conduct – if the declarant expressed an intention to
engage in conduct and the substantive law cares
about the conduct then it is relevant circumstantial
evidence (Hillmon Doctrine)
▪ Hillmon Doctrine
· Statement of declarant’s present intent to do something in the not
too distant future
o It is reliable evidence if the declarant does engage in the
conduct
· Evidence of intention as tending to prove the doing of the act in-
tended is admissible
· Example – I’m going to NH with Jane Smith
o I’m going to NH admissible under Hillmon
o With Jane Smith
▪ Circuit Split
· Narrow
o Inadmissible
 o Legislative intent was to limit Hill-
mon to exclude future conduct of 3rd
person
· Middle (2nd Circuit, NY Court of Appeals)
o Declarant’s statement of intention to
engage in conduct with a 3rd person
will be considered relevant circum-
stantial evidence of the declarant’s
intent and the 3rd person if there is
corroborating evidence that the 3rd
person engaged in the conduct
· Broad
o Under the common law this would
be relevant because this was admissi-
ble under Hillmon – more likely both
that Walters when and Walters went
with Hillmon
· Example 2 – Walters wrote a letter that said I’m going on a jour-
ney, a month passes and Walters makes a statement that two weeks
ago I went on a journey to Colorado
o The statement a month later would be inadmissible because
Hillmon does not encompass retrospective statements only
prospective statements
o Rationale
▪ Must distinguish statements of intention to engage
in future conduct as compared to statements of the
declarant of what the declarant did in the past
· If not distinguished there would almost be
no point the rule against hearsay
· Rule 803(4) – Statements for purposes of medical diagnosis or treatment
o Groupings
▪ Medical history
▪ 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
o Rationale
▪ When a statement is made for this purpose the declarant has a self interest
in conveying reliable information
o Court approach
 ▪ Whether subjectively the declarant made the statement to obtain medical
treatment or diagnosis
▪ Whether objectively this is the type of information reasonably relied upon
by medical personnel in making medical diagnostic and treatment deci-
sions
o Point
▪ Applies to declarant seeking medical treatment or diagnosis
· Might be a diagnosis for use in litigation (less reliable)
▪ Controversy – statements as to the cause
· Example
o Accident victim goes to doctor and says my back is hurting
▪ Admissible
· Example
o Accident victim goes to doctor and says my back has been
hurting for 3 weeks
▪ Admissible
· Example
o Accident victim goes to doctor and says my back hurts,
doctor says when did it begin to hurt, declarant says when I
got in a car accident
▪ Admissible
· Look at objective and subjective determina-
tions
· If the information was needed to make a di-
agnosis or treatment
· Example
o Doctor says where did this accident occur? Who caused
this?
▪ Inadmissible
· Not needed to treat or diagnosis – objective
· Identity principle should not apply when a patient consults a doctor
about a problem that is attributable to a third person (problem VIII-
14)
· Rule 803(6) – Records of regularly conducted activity [Business Record Rule]
o Elements
▪ Made in the regular course of business
▪ Kept/maintained in the regular course of business
▪ Has to be made as a result of personal knowledge
 · In a one person operation it’s likely that there will be personal
knowledge and it will be reliable
· Large business entities
o Maintain records that are the result of more than one person
o No matter how many individuals that are involved with the
production of the record the flow of information starts with
someone has personal knowledge
▪ If there is a break in the chain and there is no duty
of a person in the chain to transmit the information
then there is not personal knowledge
· What if the transmitter of the information does not have a business
duty to transmit (Problem of Johnson v. Lutz)
o A government agency may be a “business” within the
meaning of the business record rule
o A bystander’s statement is a hearsay statement and is not
encompassed by the business records rule
o The business duty to transmit can be replaced with another
hearsay exception or exemption
▪ Timeliness – record must be made at or near the time of transaction
▪ Unless – the source or circumstances of the record isn’t trustworthy
o Anyone who has information about how the business prepares its records can tes-
tify to this information (5 elements)
o Applies to:
▪ Memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses
· Not concerned about the form of the record
· Personal diary not intended to be encompassed under the Rule
▪ Business – business institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit
· No requirement these records may be a lawful business
o Rationale
▪ Reliability – routine nature, self interest in relying on records, records
checked by outsiders
o Accident reports
▪ Distinguishable from regularly kept business records because it is pre-
pared for use in litigation and not for the normal business practices
▪ An accident report potentially could satisfy the business record rule, the
courts should be careful about the motivation behind the preparation of the
report, specifically whether the report was prepared for litigation because
the report may not be trustworthy
 o Hospital records
▪ May, or part of the record, come within the business record rule
▪ The business of the hospital is to diagnose and treat patients
· May come within the rule to the extent the record deals with the
business of the hospital (patient’s records)
o Personal history, medical history, symptoms, cause of the
injury related to the diagnosis
▪ Facts relating to fault, other entity causing injury
not likely related to diagnosing and treating patients
o Information coming from the patient, friend, relative
▪ If there is no business duty to transmit information
to the hospital then that part will not be admissible
if there is no other hearsay exception that would al-
low that statement in
· Patient – 803(4)
▪ A litigant seeking to prove the non-occurrence of an event
· Rule 803(7) – Absence of entry in records kept in accordance with
the provisions of 803(6)
o Must satisfy the business record rule and in the record is
the absence of a transaction that would normally be ex-
pected to appear if the event had happened
· Rule 803(8) Public records and reports
o Rationale
▪ There are lots of government records and if there was no exception there
would be lots of hearsay
▪ There are lots of government employees and would likely not remember
the specific record
▪ Don’t want government employees spending a lot of time in court, want
them to do their job
o 3 categories of government records
▪ (A) Activities of the office or agency
· Including business records (payroll, inventory, accounts
payable…), functions and activities carried out by the particular
government entity
· Applies in both civil and criminal cases
▪ (B) Matters observed pursuant to duty imposed by law as to which matters
there was a duty to report, excluding, however, in criminal cases matters
observed by police officer and other law enforcement
· Elements
 o Matters based on personal knowledge of a government offi-
cial, pursuant to official responsibilities
o In criminal cases does not include matters observed by law
enforcement officers
▪ Who is a law enforcement officer?
· Lab analyst is a law enforcement officer
▪ Not admissible when prosecutor seeks to introduce
against Δ but admissible when Δ seeks to introduce
against the government
▪ (C) In civil actions and proceedings and against the Government in crimi-
nal cases, factual findings resulting from an investigation made pursuant
to authority granted by law, unless the sources of information or other cir-
cumstances indicate lack of trustworthiness
· Containing factual findings from an investigation pursuant to a le-
gal authority unless the circumstances surrounding the preparation
of the report show a lack of trustworthiness
· Potentially admissible in a civil case, not admissible in a criminal
case when there is a prosecutor seeking to introduce against a Δ
but Δ can introduce it against government
· Elements
o Factual findings
o From a government investigation
▪ Investigation of a particular incident
▪ Investigation of a systemic problem
o Carried out pursuant to legal authority
o Unless the circumstances show a lack of trustworthiness
▪ Most commonly fought over element
o Applies in civil cases and criminal cases but only when Δ
offers report against prosecutor
· How do courts determine the trustworthiness
o Four factors
▪ The timeliness of the investigation
▪ The special skill or experience of the official
▪ Whether a hearing was held and the level at which
conducted
· What type of procedures were used to con-
duct the investigation
o Was a hearing held? – no require-
ment a hearing be held
▪ Possible motivation problems
 · Was the report made in anticipation of liti-
gation
· Was there motivation to shade the findings
in the report
o Beech Aircraft v. Rainey
▪ Issue
· Whether 803(8)(c) extends to conclusions and opinions contained
within public records and reports
▪ Holding
· An investigatory report that meets the elements of 803(8)(c) may
encompass factually based opinions and conclusions
▪ Reasoning
· Hard to distinguish facts and opinions
· There are trustworthiness provisions that will keep out unreliable
evidence in both 803 and 403
o Admitting investigation reports under business record rule
▪ Majority of courts say that if the proponent of the report can find another
hearsay exception to bring it in then it is admissible
· The prosecutor can show the report meets the elements of the busi-
ness record rule and put the maker of the report on the stand, con-
frontation clause issue solved, then the report will be admissible
· Rule 807 – Catch all hearsay exception
o Admit hearsay statements that don’t fit any of the exemptions or exceptions
o For this to apply the trial judge must make 2 determinations
▪ The out of court statement is as trustworthy as other out of court state-
ments that generally come within other exemptions or exceptions
▪ The out of court statement is the most probative evidence to prove the par-
ticular fact of consequence
· Rule 806 – Attacking and supporting credibility of declarant
o Opposing party may use an authorized method of impeachment to impeach the
hearsay declarant
Oral Testimony

· Who is allowed to testify?

o Competent witness
▪ Common law
· To be a competent witness an individual should possess 4 at-
tributes
o Capability to perceive
o Ability to remember
 o Ability to communicate
o Having an understanding of the obligation to give truthful
testimony
· Automatic disqualifications
o Individuals convicted of certain crimes
o Parties to the litigation or spouses thereof
o Atheists
▪ Modern view
· As long as the witness meets the 4 attributes then the witness is
competent to testify
o The 4 requirements are very minimal requirements
· Rationale
o Let the deficiencies be brought out on cross examination
o Rule 601 – General Rule of Competency
▪ Every person is competent to be a witness except as otherwise provided in
these rules.
▪ However, in civil actions and proceedings, with respect to an element of a
claim or defense as to which State law supplies the rule of decision, the
competency of a witness shall be determined in accordance with State law.
· In diversity cases the law that governs the merits of the case gov-
erns the competency of a witness
▪ Dead man’s statute – minority rule (NY)
· Rule of witness competence
o Rule 603 – Oath or Affirmation
▪ Before testifying, every witness shall be required to declare that the wit-
ness 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.
▪ In federal court there is no unsworn testimony
· True in NY state except for one exception
o NY criminal procedure law – with respect to individuals
who are under the age of 9 or who are mentally defective, if
a such an individual is not capable of taking an oath or af-
firmation because they can’t understand its nature, the trial
judge may allow unsworn testimony if the judge concludes
the individual has sufficient capacity to justify the taking of
the individual’s testimony
o Rule 605 – Competency of Judge as Witness
 ▪ The judge presiding at the trial may not testify in that trial as a witness.
No objection need be made in order to preserve that point
· If the judge testified the jury might overvalue the judge’s testi-
mony
· The judge may be a competent witness in some other case
o Rule 606 – Competency Of Juror as Witness
▪ 606(a)
▪ A member of the jury may not testify as a witness before that jury in the
trial of the case in which they juror is sitting.
▪ 606(b)
· A juror may not testify as to any matter or statement occurring dur-
ing the course of the jury’s deliberations or to the effect of any-
thing upon that or any other juror’s mind or emotions as influenc-
ing the juror to assent to or dissent from the verdict or concerning
the juror’s mental process in connection therewith
· Will the juror be allowed to give testimony on behalf of a party
may serve to attack the verdict that was rendered?
o General Rule
▪ Once the verdict is rendered a juror may not testify
in a way to attack the verdict (not competent)
· May not testify about what took place about
the internal deliberations of the jury
o Ex. Reaction to the evidence, discus-
sions between and among jurors,
their emotional reactions to the par-
ties or evidence, understanding or
lack of understanding of instructions,
jurors reached a compromised ver-
dict
▪ Rationale
· Strong interest in finality
· Interest in protecting the privacy of the ju-
rors
o Exception
▪ Jurors can testify to any external influences, any ex-
traneous material brought to bear on the jurors
▪ Ex. – bribe, channel information to juror, threat,
court officer trying pass information to jurors, jurors
who read newspaper or magazine articles, jurors
getting information about the case
 ▪ Rationale
· Great interest in attempting to ensure the
jury verdict is based solely on the evidence
produced at trial
· Juries who give such testimony aren’t at-
tacking the verdict they are correcting the
verdict
o Lawyers
▪ Can an attorney involved in the litigation of the case be a witness in the
case?
· No absolute rule against an attorney who is litigating a case from
being a witness in the case but it is rarely going to happen
· Rationale
o Courts don’t favor comingling of functions
o ABA model rules state when it is likely an attorney will be
a necessary witness in the case the attorney has an ethical
obligation to not participate in the case
o Rule 602
▪ When a lay witness gets on the stand, the witness must testify from his
own personal knowledge
▪ Application of the AR/NY rule is unconstitutional as applied to a criminal
defendant who seeks to testify on his own behalf about what he claims to
remember after being placed under hypnosis
· Criminal Δ has a constitutional right to testify on his own behalf
· The rule had no exceptions which was an unworkable standard
o The absolute nature of the rule led the court to hold the rule
was unconstitutional
· Now trial judges must make a case by case evaluation as to
whether the witness’s testimony is likely to be reliable
· Must adjust the rule when the witness is a criminal defendant
o Some lower courts say the decision applies to criminal de-
fense witnesses
o Dead man’s Statutes (NY) – Rule of Witness Competence NYCPLR §4519
▪ Applies in civil cases
· Federal diversity, NY state court
▪ Elements
· Individual who is interested in a transaction is incompetent to tes-
tify to a communication or transaction which someone who’s now
 deceased when the testimony is offered against either the estate of
the deceased or the successors in interest of the deceased
▪ Rationale
· The lips the deceased are sealed up, the lips of the survivor are
now sealed up
▪ Transaction
· Does not include motor vehicle accident
· Statute contemplates intentional transactions
· Rule 611(c)
o General Rule
▪ On direct examination the law of evidence does not allow leading ques-
tions
· Leading question is one that suggests the answer to the witness
· Typically questions that look for a yes or no answer
· Look for questions with very specific facts
▪ Rationale
· In circumstances that are friendly and suggestible, there is a real
danger if leading questions were allowed the information the attor-
ney wants would be available rather than the testimony of the wit-
ness
o Exceptions
▪ Leading questions are allowable where necessary to develop the witness’s
testimony
▪ Categories where leading questions are permissible on direct examination
· Preliminary inconsequential questions
o Background questions
· Where witness’s have difficulties
o Language, recollection difficulties
o Timid witnesses
o When needing to develop witness testimony
· Examining party calls opposing party to the stand
o Rationale
▪ The danger of suggestibility is not great
· Hostile witness
o A witness is giving damaging testimony or is being unco-
operative, evasive
o Rationale
▪ There is not the danger of suggestibility
· Ordinarily leading questions may be used on cross-examination
 o Rationale
▪ The danger of suggestibility is not great
▪ Not friendly circumstances
o Easily correctable matter when a leading question is used inappropriately
o When there is an evidentiary error by the trial judge in allowing leading questions
that should not have been allowed, this is almost always going to be considered
harmless error on appeal
· Refreshing witness memory
o Rule 612 – Writing used to refresh memory
▪ Present recollection refreshed/revived
· If the writing succeeds in reviving the witness’s memory
· The evidence is the witness’s testimony not the writing
· An aid, something that helps refresh the witness’s memory
· How to test whether really remembers or is reading from the writ-
ing
o Must protect the other side
o Might occurring during court or before court
o Gives the opposing party procedural protections
▪ Going to allow opposing counsel an opportunity to
examine the document and maybe object to the use
of the document to refresh the witness because it
may be too suggestive
▪ Cross examiner can introduce the document into ev-
idence to let the jury consider the witness’s testi-
mony in conjunction with the document
o When the writing is used in court these are absolute protec-
tions
o Outside of court
▪ Trial judge as discretion about which documents
have to be turned over to opposing counsel
▪ Any type of writing is able to be used to refresh the witness’s memory
· The writing that is used need not meet the requirements of the past
recollection recorded hearsay exception
· In practice it is usually a writing used to refresh, it does not have to
be writing
o Photograph, song, scent, illusion…
▪ Writing may qualify for a hearsay exception
· Rule 803(5) – Past recollection recorded
o When the witness still can’t remember
 o Where the writing is a record of something that happened
in the past
o The evidence is going to be the writing
o Elements
▪ Something the witness once knew
▪ Can’t remember to testify sufficiently and accu-
rately
▪ The writing was made when fresh in memory
▪ The writing was accurate
o Combining necessity with reliability
o If the proponent satisfies the 4 elements the proponent is
only allowed to read the document into evidence
▪ The proponent cannot introduce the document into
evidence as a physical exhibit
▪ The document takes the place of the testimony of
the witness that we can’t get because the witness
does not remember
▪ Don’t want the jury to overvalue the document in
relationship to the witness’s testimony
▪ Don ‘t allow the proponent into evidence but oppos-
ing counsel can enter the document into evidence
· Lay Witness Opinions
o Common Law
▪ Lay witnesses can testify to facts and not opinions and conclusions
▪ Rationale
· Opinions and conclusions are for the jury
▪ Difference between fact and opinion
· Fact – something somebody observes
· Opinion – inferences drawn from the factual observation
o A summary of component parts
▪ Neither a lay or expert witness may give an opinion on the ultimate issue
of the case
· The ultimate issue should be decided by the jury
▪ Exceptions
· Witness is allowed to testify to an opinion where this is the way
people normally describe a condition
· Allow the opinion when there is no other effective way for the wit-
ness to describe the event
o Federal Rules of Evidence
▪ Rule 701 – Opinion Testimony by Lay Witness
 · A lay witness may give an opinion if:
o Based upon personal knowledge
o Assists the trier of fact
▪ when opinion assists the trier of fact
· Witness says – Π should win, Δ was negli-
gent…
· Too speculative
· If the lay witness’s opinion is on the ulti-
mate legal issue of the case is likely not to
be considered to assist the trier of fact
o The judge must try to determine if a
witness is using a term in the lay
sense or the legal sense and how will
the jury interpret the witness’s testi-
mony
o Not be based upon scientific, technical or other specialized
knowledge
▪ Prevents the attorneys from smuggling expert testi-
mony through lay witnesses
▪ Rule 704
· General Rule – 704(a)
o Abolishes common law ultimate issue rule
o Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ulti-
mate issue to be decided by the trier of fact
o Must comport with 701 and must assist the trier of fact
▪ If the opinion of the ultimate issue of the case will
assist the trier of fact
· Expert Testimony
o Admissibility is dependent on whether the expert testimony will assist the trier of
fact
▪ Factors
· Expert must be qualified
o FRE 702
▪ Someone who has scientific, technical or other spe-
cialized knowledge
· Knowledge over and beyond what the aver-
age lay juror has
 · Specialized expertise in a particular subject
area relevant to the issues being litigated
▪ The knowledge can come from:
· Formal education
· Practical experience
· Combination of education and experience
▪ Must use reliable methods and reliable application
· The expert opinion should be “beyond the ken of the average ju-
ror”
· Rule 704 applies to expert opinions, experts can give opinions on
the ultimate issue of the case
o There can be no objection about this
o May give opinion on ultimate issue if the opinion assists
the trier of fact (Rule 702)
▪ How to determine whether an opinion will assist the
trier of fact
· A court might allow an expert witness to
give an opinion on the ultimate factual issue
of the case – may assist trier of fact
· Once court comes to the conclusion that the
expert is giving opinion on the ultimate legal
issue of the case
o Not subject to objection that it is the
ultimate legal issue of the case
o Subject on the grounds that since it is
an opinion on the ultimate legal issue
of case it will not assist the trier of
fact
▪ Has to do with the dividing
up the functions
▪ For the judge to tell the jurors
what the law is, don’t want
expert witness playing a role
in that
· The proper objection to ultimate legal issue
o The opinion on the ultimate legal is-
sue will not assist the trier of fact
o Ex.
▪ Claim the Δ police officer used excessive force
▪ Π has expert in law enforcement practices
 · Expert says “in my opinion forced used by officer was unreason-
able”
▪ Is opinion on ultimate legal issue of the case or the ultimate factual issue
of the case?
· Who is the expert witness?
o Jury likely to rely on this as legal issue
· What is the witness likely conveying to the jury?
o Jury likely interpret a factual or legal conclusion
o 1984 – Insanity defense
▪ Congress shifted burden in federal criminal prosecutions for Δ to show by
clear and convincing evidence that the Δ was unable to appreciate the na-
ture and quality of the wrongfulness of his acts
▪ Rule 704(b)
· Only applies to medical testimony in criminal cases
· Brings back common law ultimate issue rule for medical opinions
dealing with the mental state of the defendant that is either an ele-
ment of the crime or an element of the defense
· The expert can make medical testimonial conclusion
o Δ has schizophrenia
· Once the testimony is given in legal terms the testimony is barred
o Δ is insane under federal law
o Δ did not have the intent to kill
o Admissibility of Scientific Evidence
▪ Old view
· The test must have gained general acceptance in the scientific com-
munity
▪ Modern view under Daubert
· Under Rule 702, the test is scientific knowledge that assists the
trier of fact
o Must be relevant and reliable
▪ Has to fit the issues of a particular case
o Factors trial judges take into account to determine scientific
reliability – illustrative list
▪ Whether the scientific method has been tested,
whether it is capable of being tested
▪ Whether the scientific method been subject to peer
review and publication
▪ Whether there is a known rate of error
 ▪ Whether the scientific method has gained general
acceptance in the specific scientific community (Fry
test)
▪ Whether the scientific process/principle was created
for the purpose of litigation
o The role of the Fry Test
▪ In federal court it is no longer the test to assess the
admissibility of scientific evidence
· A factor that a federal trial judge may take
into account
▪ Does a state court have to follow Daubert?
· States aren’t required to adopt federal evi-
dence law
· NY – continues to rely upon the Fry test
o Expert testimony that is scientific in nature
▪ Whether Daubert applies to non scientific expert
testimony or is limited to just scientific testimony
· Relevance and reliability standards applies
to all expert testimony, not just scientific ev-
idence
o Rationale
▪ 702 is not limited to scientific
evidence
▪ May not always be easy to
conclude whether the particu-
lar expert testimony is “scien-
tific” vs. non-scientific
▪ Use 702 and 403 together
o Rule 201 – Judicial Notice
▪ Sometimes there are facts that are not subject to reasonable dispute
▪ There may be a dispensing of the need to introduce evidence to prove the
fact
▪ The judge may be allowed to judicial notice the fact
▪ When is it permissible for a court to judicially notice a fact
· When the fact is not subject to reasonable dispute because
o Generally known within the territorial jurisdiction of the
court; or
▪ Not information the judge happens to know but
what people in the geographic area happen to know
 o Capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned
▪ Almanacs, Atlas, Census
o A trial judge may take judicial notice even though not
specifically requested by the parties
▪ Rationale
· To not waste the courts time
o A judicial notice of fact can be taken at trial or on appeal
▪ On appeal – for affirming or reversing
· Rationale
o Evidence that wasn’t introduced that
should have been introduced
▪ Rule 201(g) Instructions to the jury when the court takes judicial notice
· The jury must find that fact in a civil case
· The jury may find the fact in a criminal case
o Rule 703 – Bases of Opinion Testimony By Experts
▪ Based on facts or information learned by observing the judicial proceed-
ings or before the judicial proceedings
· Does not have to be based on personal knowledge
▪ Based upon information learned outside of the court room not based on
personal knowledge
▪ May an expert witness give testimony on the basis of information or data
that is not itself admissible into evidence
· If it is the type of information or data that is reasonably relied upon
by experts in that field
o Rationale
▪ Trying to allow the expert witness to function in
court in a manner that fairly replicates the way the
expert operates out of court
o Potentially the rule allowed a party to get to the jury evi-
dence that was not otherwise admissible
· When the expert relies upon inadmissible evidence to support the
expert’s testimony, the jury may learn about the inadmissible evi-
dence only if the trial judge finds that the probative value of the
jury’s understanding of the expert’s testimony substantially out-
weighs the danger of unfair prejudice (reverse 403)
o Using hypotheticals
▪ Experts may be asked hypothetical questions
 · Is there a requirement that the facts of the hypothetical are sup-
ported by some evidence in the record?
o Whether it will assist the trier of fact is the operative ques-
tion
o 803(18) – Learned treatise hearsay exception
▪ Elements
· Reliable
o The expert can testify to the fact that is reliable
· Called to the attention of the expert either on direct or cross exami-
nation
o Common law (NY)
▪ The learned treatise may only be used in the cross
examination of an expert
· The expert’s testimony is inconsistent with
the learned treatise
o Must be an expert witness on the stand when the learned
treatise exception is invoked
▪ Rationale
· Want the expert to be available to help ex-
plain the learned treatise
· The learned treatise may only be read to the jury
· Cross Examination
o A critical right
o If something renders cross examination impossible direct examination is stricken
from the record
o Trial judge needs to impose reasonable restrictions on cross examination
o Scope of cross examination
▪ Rule 611(b)
· Should be limited to the subject matter of the direct examination
and matters affecting the credibility of the witness
▪ Should be limited to:
· Subject matter of direct
o Not particular questions of the direct questions
· Witness credibility (impeachment)
▪ Judge has the authority to allow a broader cross examination than direct
· Has to be on a witness by witness basis and cannot just be a policy
of the judge
· Options when judge denies broader cross
o Allow lawyer to use witness as their witness
o Credibility
▪ Impeach – attack the credibility of a witness
▪ 7 Authorized methods of impeachment
· Disability (no specific rule in FRE)
· Bias (no specific rule in FRE)
· Convictions
· Acts of moral turpitude
· Bad character for truth and veracity
· Prior inconsistent statement
· Specific contradiction (no specific rule in FRE)
▪ Impeachment generally
· The cross examiner may try to get the impeachment information
from the mouth of the witness
· If the cross examiner can’t get the impeachment from the mouth of
the witness
o The cross examiner may be able to impeach using other ev-
idence
· If the method of impeachment is of primary importance
o Vital method of impeachment
▪ Extrinsic evidence may be allowed
· If the method if impeachment is of secondary importance
o Collateral method of impeachment
▪ No extrinsic evidence
▪ Unauthorized methods of impeachment
· Religion
o Methods of Impeachment
▪ Disability
· Showing that the witness has some disability in one of the at-
tributes for being a competent witness
o Memory…
· Collateral or non-collateral
o Non-collateral (significant)
▪ May be permitted to use extrinsic evidence subject
to 403
▪ Bias
· A witness may favor one party over another
o Witness may have interest or bias towards one party’s out-
come in the case
· Collateral or non-collateral
 o Non-collateral
▪ May be permitted to use extrinsic evidence subject
to 403
▪ Convictions
· Generally relevant to witness’s credibility
· All jurisdictions recognize impeachment by conviction as an au-
thorized method of impeachment
· Types of convictions authorized to be used for impeachment
o Convictions have that an element of deceit or false state-
ment
▪ Ex. Perjury
o Convictions for crimes of violence – Rule 609
▪ 609(a)(2) – Convictions that have some element of
deceit or false statement
o Ex. Perjury, Bribery, Embezzlement,
Criminal fraud, Mail fraud…

· Misdemeanors, felonies
· Criminal or civil cases
· For either Π or Δ witness
· Always admissible to impeach
· Not subject to 403
o Rationale
▪ These convictions are so re-
lated and so probative that
these convictions should not
be limited
▪ 609(a)(1) – Convictions for other felonies
· Convictions punishable by more than 1 year
in jail
· Criminal defendant who testifies on his own
behalf
o Prior convictions used to impeach
Δ/witness’s credibility
o The prosecutor must convince the
trial judge that the probative value of
the conviction on the credibility out-
weighs the danger of unfair prejudice
on the defendant
▪ Burden is on the proponent
 · Defense and prosecution witnesses…
o Normal rule 403
o Felony convictions normally usable
to impeach the credibility of the wit-
nesses
▪ Other misdemeanors
· Not containing elements of deceit or false
statement
· Not allowable for impeachment
o Not highly probative on credibility
· Whether the Defendant takes the stand
o New York
▪ Sandoval Procedure
· Gives defendant a right to obtain from the
trial judge a pretrial ruling on the admissibil-
ity on convictions to impeach the credibility
of the defendant if the defendant takes the
stand to testify
o Federal Court
▪ Motion in limine
· Asking the trial judge for a pretrial ruling on
the admissibility on convictions to impeach
the credibility of the defendant if the defen-
dant takes the stand to testify
o Judge does not have to make a ruling on the motion
▪ If the defendant testifies at trial the judge may rule
on the testimony at that point
o If the Δ takes the stand the defense attorney can ask the
questions about the Δ’s priors to take the sting out of the
prosecutor’s cross-examination
▪ If the Δ takes this option the Δ is precluded on ap-
peal from challenging the judge’s ruling on the ad-
missibility of the prior convictions
o When may a criminal defendant in federal court challenge a
trial judge’s ruling on the admissibility of priors
▪ Δ must testify on Δ’s own behalf
▪ The convictions must be elicited by the prosecutor
· Luce v. United States
o Facts
 ▪ Δ charged in federal court with a federal criminal
offense
▪ Δ’s attorney asked the trial judge to make a pretrial
ruling that Δ’s prior convictions will not be usable
to impeach Δ’s credibility if Δ takes the stand
▪ Judge rules the prior convictions will be usable to
impeach Δ’s credibility
▪ Δ does not testify at trial
▪ Δ is convicted
o Issue
▪ Whether the trial judge’s ruling allowing prior con-
viction to impeach Δ’s credibility was erroneous
and as a result of the erroneous ruling Δ did not tes-
tify on his own behalf
o Holding
▪ For a criminal Δ to contest a trial judge’s ruling
concerning the admissibility of the Δ’s prior convic-
tions the Δ must have testified on his own behalf
o Reasoning
▪ Ruling on motion may have changed once Δ took
the stand
▪ Prosecutor may not have used the priors to impeach
▪ How can the evidence be evaluated whether this ev-
idence is prejudicial if the Δ never testified
· Collateral or Non-Collateral
o Non-Collateral
▪ Extrinsic evidence may be admissible to impeach
the credibility of the witness
▪ Only one type of evidence may be admissible
· Record of conviction
▪ Bad Act 608(b)
· Description
o The witness on the stand has engaged in some type of con-
duct and this conduct is probative of the witness’s credibil-
ity
o Conduct that did not culminate in a conviction
o Must be read together with 403
o For any witness in a civil or criminal case
o Prosecutor must have a good faith belief the act happened
 ▪ The prosecutor has some evidentiary support that
the conduct occurred, does not need to be admissi-
ble as evidence
o The prosecutor may press the witness to try to get the wit-
ness to change the answer
· Collateral or Non-Collateral
o Collateral issue
▪ No extrinsic evidence can be used to impeach the
witness
· The witness may invoke the privilege against self incrimination
· The prosecutor is not authorized to ask about an arrest
o Not engaged in an immoral act or bad act
o The prosecutor can ask about the conduct but not about an
arrest
▪ Bad Character for Truth and Veracity
· Proves the bad character of a witness by calling a character witness
o Using reputation or opinion evidence
· Character of the witness for truth and veracity
o Character witness must testify to these facts
· Criminal prosecution
o If the Δ takes the stand as a witness the Δ’s credibility is
subject to impeachment
▪ Prosecutor can show the witness has bad character
for truth and veracity
o Prosecutor would call character witness to testify that the
witness/Δ has bad character for truth and veracity
· Collateral or Non-Collateral
o Non-Collateral
▪ Law of evidence allows testimony from character
witness
▪ Prior Inconsistent Statement – Rule 613
· May be an out of court oral or written statement, an out of court
omission, silence, or conduct
· Whether the in court testimony is inconsistent with the statement
made out of court
· Collateral or Non-Collateral
o Depends on the trial judge’s determination of the in court
testimony and whether it is important to the case
· How does the judge determine if there is an inconsistency between
the out of court statement and the in court testimony
o If the witness didn’t remember out of court but remembers
in court – courts tend to find this is an inconsistent state-
ment
· When do omissions constitute an inconsistent statement
o Ask whether the witness, when making the out of court
statements, would it have been natural to include the partic-
ular statements if the statements were true
▪ The failure to do so may be construed as if the wit-
ness was saying those facts didn’t exist
· Old English Rule
o When impeaching the credibility of a witness with a prior
inconsistent written statement, the cross examiner had to
show the written statement to the witness and let the wit-
ness explain the inconsistency
o If the inconsistent statement was oral, then cross examiner
had to give the witness some details about the inconsistent
statement (circumstances surround the statement)
· Federal Rules of Evidence
o Abolish Old English Rule because it is a needless impedi-
ment to effective cross examination
o Cross examiner does not have to show the inconsistent
written statement to the witness or give details for the in-
consistent oral statement
o At some point the witness has to be afforded an opportunity
to explain the inconsistency
▪ Might not happen on cross, may happen on redirect
· Hearsay within prior inconsistent statements
o By definition we are dealing with an out of court statement
o If the inconsistent statement was sought to be introduced
only for the purpose for impeaching the credibility of the
witness then there is no hearsay problem
▪ The mere making of the statement is relevant to
credibility, not using the statement to prove the
truth of the matter asserted (majority view)
· Have to give the jury a limiting instruction
 o The limiting instruction is not likely to be effect and there-
fore the statement is allowed for all purposes (minority
view)
o Federal Rules of Evidence view
▪ Rule 801(d)(1)(A) – hearsay exemption for prior in-
consistent statements (admissible for all purposes)
· Elements
o The declarant is on the stand as a
witness
o Witness on the stand is subject to
cross examination concerning the
prior inconsistent statement
o Must have been made under oath at
some type of judicial proceeding
(hearing, trial, deposition… has to
constitute testimony under oath)
▪ No requirement that cross ex-
amination was available at
the time of the prior inconsis-
tent statement
▪ If the inconsistent statement was not made under
oath then the statement does not come within the
hearsay exemption and requires a limiting instruc-
tion limiting the use of the statement to show credi-
bility
▪ Specific Contradiction
· On direct the witness testifies to a specific set of facts
· On cross the lawyer wants to show that the specific facts the wit-
ness testified to did not happen
· Split
o Handled under Rule 403
▪ How probative is the evidence on 2 questions (facts
and credibility)
▪ Countervailing factors under 403
o Whether the facts sought to be contradicted are collateral or
non collateral
▪ Collateral
· Court will likely say not admissible
▪ Non-Collateral
· Court will likely say admissible
 o Likely to come to the same results under either approach
o Impeachment of proponent’s witness
▪ Common law rule
· Party who calls the witness to the stand may not impeach the wit-
ness
o Rationale
▪ Party calling the witness is vouching for the wit-
ness’s credibility
▪ Federal Rules of Evidence 607
· The credibility of a witness may be attacked by any party including
the party who called the witness
· Not going to allow impeachment by prior inconsistent state if the
proponent is calling the witness in an attempt to avoid the rule
against hearsay to admit the prior inconsistent statement
o Rehabilitating Witness Credibility – Rule 608(a)
▪ Good Character Witness
· If a witness testifies on direct and the witness’s character for truth
and veracity has not been attacked the law of evidence assumes the
witness’s character for truth and veracity is good and there is no
justification for taking the time and trouble to put a character wit-
ness on the stand to testify to the witness’s character for truth and
veracity
· If the witness’s character for truth and veracity has been attacked
by the opposing party the proponent can rehabilitate the witness’s
character for truth and veracity
o An attack on bias or interest may not be an attack on credi-
bility and will not allow the witness to be rehabilitated
▪ Prior Consistent Statements
· A prior consistent statement does not show the witness’s character
for truth and veracity just because the witness said the consistent
statement before and is therefore not allowed
· Exception
o A proponent can show the witness’s prior consistent state-
ment when:
▪ The cross examiner alleges that the witness had a
motive to fabricate the testimony
▪ The consistent statement was made before the mo-
tive to fabricate existed
o Rationale
 ▪ Allow proponent to show there was no motive to
fabricate when the prior consistent statement was
made
· Hearsay Exemption for prior consistent statements Rule 801
o Does not say the consistent statement must be made before
the motivation to fabricate
o No intention to change common law rule and SC says the
proponent may introduce a prior consistent statement only
if the cross examiner charged there was motive and the
statement was made before the motive
· Physical Objects
o Real Evidence
▪ Actual object that was claimed to be involved in the particular incident,
event or transaction
▪ Jury can use its own sense impression to evaluate the evidence
· As compared to the jury relying on a witness’s sense impression
▪ An individual has a certain wound
· A individual being able to show the injury to a jury is a form of
real evidence
▪ An individual might want to show the effect of the injury
· There is potential for the jury’s emotional response
· Maybe the proponent is exaggerating the extent of the injury
▪ Rule 901
· Authentication or identification is the process of the proponent
showing the object is what the proponent claims it to be
o Normally, this is ultimately a question of fact for the jury
▪ Judge might find the proponent has not met the bur-
den and the object would not get to the jury
o The proponent has to convince the trial judge based upon
the evidence introduced (authentication or identification)
the judge should find that a reasonable jury could find that
this is the object the proponent is saying it is
▪ The judge is acting as a screener
▪ If yes, the judge will say there is enough to go to the
jury and the jury makes the determination
o Trial judge limited to considering only evidence admissible
at trial
▪ Rationale
· Could a reasonable jury find this evidence is
what the proponent say it is; the reasonable
 jury can only take into account evidence ad-
missible at trial
· Sufficient evidence for a jury
o Distinctive features of the object
o A witness does not have to be absolutely certain the object
is what the proponent says it is
· Chain of custody
o When there is a physical object that has been handled by a
number of individuals the proponent is required to trace the
chain of custody
▪ The proponent has to introduce evidence accounting
for every possession as much as possible so that a
trier of fact can reach these conclusions:
· The object is what the proponent claims it to
be
· The proponent has to convince the judge
there is no reasonable probability that it was
neither exchanged with another item or tam-
pered with
o Does not have to be certain
o Demonstrative Evidence
▪ Not the object itself
▪ Devices, mechanisms, objects that demonstrate or illustrate
· Photo, videotape, chart, model, map…
· Experiments
o When a party seeks to introduce into evidence the results of
an experiment that seeks to recreate the event the proponent
has to convince the trial judge that the experiment was per-
formed under circumstances that were substantially similar
to the actual event
▪ Before 403 the judge must try to determine whether
the jury will view the experiment as a recreation or
demonstrating a scientific principle
▪ Application of Rule 403
· The more substantially similar the condi-
tions are to the event then probative value is
up and the prejudicial value is down
· Reenactments
o Trial judge needs some reenactment is a fairly accurate de-
piction of what actually occurred
· Models
o Subject to 403
· Photograph
o 2 ways to lay a foundation
▪ Traditional
· Witness on stand lays a foundation
o Foundation = identification and ac-
curacy
o Identification
▪ That’s the golden gate bridge
o Accuracy
▪ This is a fair and accurate
portrayal of the golden gate
bridge
▪ Becomes an issue because
photos can be distorted
▪ How much have the condi-
tions changed
o Rule 403
· The foundation witness can be:
o The photographer
o Anyone who is able to look at the
photograph and testify to what the
photograph depicts and this is a fair
and accurate portrayal
· If a foundation witness is unavailable
o Can introduce the photograph if can
show the photographic equipment
was in order, who the photographer
was and their experience
· Video evidence
o Have to lay a foundation
▪ Fair and accurate portrayal of what it purports to de-
pict
· Tied in to 403
o Gaps in video are going to lower the probative value
o If no foundation witness
▪ Silent witness rule
· What type of equipment was used
 · Was the equipment in good working order
· The process that was used to make the video
· Chain of custody of the tape
o If there is an audio component to the video
▪ Potential hearsay issue
▪ Voice identification
· X-Ray
o Silent witness rule
▪ Testimony as to what type of equipment was used
▪ Who operated the equipment
▪ How was the x ray produced
· NY CPLR §4532-a
o If the x ray has certain information inscribed on it, the x ray
can be introduced into evidence without calling the physi-
cian or radiologist
o Federal Rules of Evidence
▪ For the most part, no specific rules for specific types of evidence
· When trial judge faced with the question of allowing object to be
introduced into evidence
o Is the object relevant?
▪ Assuming yes
o Rule 403
o Authentication and Identification
▪ Authentication
· A showing that the particular object is gen-
uine
▪ Identification
· Connecting a particular object to its origins
▪ If proponent can’t identify or authenticate then the
object is not relevant
o Jury Views
▪ There’s a place or an object that can’t be brought to the courtroom
· Fieldtrip
▪ Courts have inherent authority to allow fieldtrips
· Allowable in civil or criminal case, jury or bench trial case
· With a respect to a location or particular object
▪ Rule 403 matter
· How important is this jury view to the jury understanding the facts
of the case
 · How much has the condition changed
· Is there an alternative way to get this information to the jury with-
out engaging in fieldtrips
▪ Problems
· Time factor
· Disruption of the flow of the trial
▪ What if there is an unauthorized viewing by the jury
· In a criminal case if there is an unauthorized viewing there is an
automatic reversal of conviction
· In a civil case if there is an unauthorized viewing it might be found
to be harmless error
▪ Jury views are evidence and whatever problem that may have existed
about incorporating the jury view in to the record is not an issue any more
o Physical objects that have been introduced into evidence, the judge has discre-
tionary authority to allow the object to be given to the jury
▪ This includes documentary evidence
▪ A document of recorded testimony is not allowed to go into the delibera-
tion room
· Examples
o Deposition testimony
o Former testimony
· Danger of overvaluing
· Documentary evidence
o Hearsay
o Authentication
▪ The proponent of a writing is obligated to authenticate the writing
▪ Reasonable jury could find that the document is what it is purported to be
▪ Rule 901
· Witness that saw the writing taking place
o Could be writer of the document
· Lay witness familiar with the handwriting
o Cannot be familiar with handwriting for the purpose of liti-
gation
o Lay witness cannot make a comparison
· Expert handwriting witness
o Comparison of a sample of handwriting and handwriting
sought to be authenticated
· Jury comparison
 o Comparison of a sample of handwriting and handwriting
sought to be authenticated
· Ancient Document rule [901(b)(8)]
o A document that is 20 years older or more
o Normal on its face
▪ No erasures or alteration
o Document comes from a place that one would expect an au-
thentic document to come from
o These same requirements satisfy Hearsay Exception
· Something distinctive about the contents of the writing
o Combine the distinctive contents with the circumstances
may be used to authenticate
▪ The proponent who wants to introduce a signed writing in to evidence
must introduce sufficient evidence of authentication
▪ Self authenticating documents
· Types
o Newspapers
o Government reports
o Trade label
o Commercial paper
▪ Anything under UCC that says is a commercial pa-
per
· Opposing counsel can contest authenticity
· Still may be hearsay
o Best Evidence Rule (original document rule)
▪ When the content of a writing is in issue the proponent must introduce the
original writing
· Writing
o Audio tape
o Photograph
o Data compilation, etc…
· Where the document is the transaction and rights and obligations
depend upon what is in the document
o Mortgage
o Deed
o Divorce decree, etc…
· An event took place or occurred and the event is evidenced by a
document
o Best evidence does not come into play unless:
 · If a party seeks to prove the occurrence of the event by attempting
to prove the content of the document
o Best evidence comes into play
▪ The problem of inscribed chattels
· Police officer badge number…
· Factors determining when to waive best evidence rule
o How difficult is it to get the object into court
o How extensive is the writing (how reliable is the oral testi-
mony going to be)
▪ The FRE recognizes there might be more than one original
· Any one of the versions can be considered an original
· A copy as a general rule is equally admissible as the original (not
hand written)
o Unless the genuineness of the original is questioned
▪ FRE 1004
· Recognizes that good faith excuses not to have the original is ex-
cusable
o Proponent can prove the content by any permissible means
· If the issue is a collateral issue, no original is needed
▪ The main impact of the best evidence rule we don’t want oral testimony
about the content of the writing
o FRE 1006
▪ Voluminous document rule
· Where there is a large document it is acceptable to copy the section
applicable or prepare a diagram or a chart
· Proponent must lay a foundation
o The “voluminous document” would be admissible into evi-
dence
o The underlying documents are so voluminous that it is not
pragmatically feasible to question a witness about them
o Testimony about the document’s accuracy
o Access by the other party to the document
o FRE 106
▪ Rule of Completeness
· The opposing party, in order to avoid the jury from being mislead
from seeing only part of a document or not the other related docu-
ments, may insist that the rest of the documents or other related
documents are introduced
· Voice Identification
 o Hearing a voice a few times or hearing a voice after the conversation in question
is sufficient to identify a voice
· Audio tape
o Issues
▪ How were the tapes made
▪ What type of equipment was used
▪ Chain of custody
▪ Hearsay
▪ Voice identification
▪ Inaudible sections of the tape (403)
o Transcripts of audio tape
▪ There could be disputes as the what was said on the tapes
· If the parties cannot agree on the content of the transcript then the
jury can get no transcript or a transcript from each side
· The trial judge should let the jurors know that between the tapes
and transcripts the tapes are the evidence not the transcript