EVIDENCE OUTLINE - SEAMAN
A. FRE 101. Scope.
The rules govern proceedings in federal criminal and civil proceedings. Note that there are
some rules that distinguish between criminal and civil proceedings.
B. FRE 102. Purpose and Construction.
The key purpose of the rules is “fairness, truth, and justly determined.”
C. ANGLO-AMERICAN SYSTEM VS. CONTINENTAL SYSTEM
II. RELEVANCE - ARTICLE IV
1. You cannot determine whether evidence is relevant without knowing what it is intended
to prove. The substantive theory of the case will determine whether evidence is relevant.
B. Rule 401 – RELEVANT EVIDENCE: evidence having any tendency to make the
existence any fact that is of consequence to determination of the action more or less
probable than it would be without the evidence.
1. “Any tendency” – to be relevant evidence does not have to prove the case.
2. “Of consequence” (materiality) – o be material the evidence must be offered to prove a
properly provable issue in the case.
3. Questions to ask in determining relevancy under FRE 401:
a. What is the evidence sought to be admitted?
b. What fact is the evidence sought to prove?
c. Does is tend to make the fact “more probable or less probable than it would be
without the evidence”?
d. Is the fact “of consequence to determination of the action”?
i. What is the ultimate issue to be proven?
ii. Is it properly provable under the substantive law and the pleadings in the
4. Rule 401 has a very low threshold and favors admissibility; as long as there is a nexus
between the inferences, the evidence is relevant.
a. The more inferences that you have to make, the weaker the link between the
evidence and an issue, the less probative the value, and thus, the less likely that it is
to be admitted (but it still may).
i. Evidence with contradictory inferences is not irrelevant as long as one
possible inference is relevant.
b. Once the threshold of relevance is passed, the weight of the evidence becomes the
issue (Rule 403) and not its admissibility.
C. Direct vs. Circumstantial Evidence
1. Direct evidence: Evidence, which accepted as genuine or believed to be true,
necessarily establishes the point for which it is offered. Direct evidence is usually
accepted into evidence without any problems.
2. Circumstantial evidence: Evidence which, even if fully credited, may nevertheless
fail to support the point in question, simply because an alternative explanation seems
as probable or more so. Circumstantial evidence is generally more difficult to get
into evidence and requires an evidentiary hypothesis.
D. Rule 402 – All relevant evidence is admissible and all non-relevant evidence is not
E. Rule 403 Balancing Test
1. Rule 403 – Exclusion of Relevant Evidence – Although relevant, relevant
evidence may be precluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of
a) “Probative value” – the judge must take the evidence as “true” in the
determination of probative value.
b) “Unfair prejudice” – evidence which will deflect the jury from actually deciding
the case on its factual merits and will lead the jury to make its decision on unfair
considerations that do not relate to the issues of the case (i.e. emotions).
Evidence is not necessarily “unfair” merely because it hurts your case.
2. Rule 403 favors the admission of evidence. If the probative value is equal to the
prejudicial effect then the evidence will be admitted.
3. Old Chief v. U.S. (S. Ct.): Although evidence of the defendant‟s prior conviction was
relevant, the details and name of the conviction are not admissible because the jury
may consider them for an improper purpose.
a. In the criminal context, unfair prejudice means an “undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional
i. The evidence would have created an impermissible propensity inference
(see Rule 404).
b. The prosecution generally has the right to prove its case in any way that it
chooses, however, Rule 403 requires the judge to examine all of the evidence
and determine how badly a particular piece of evidence is needed.
4. The standard of review for an evidentiary ruling is abuse of discretion (very
deferential to the lower court).
F. Who decides questions of relevance – the judge or the jury?
1. Rule 104(a) – the JUDGE decides general questions of admissibility. In making this
determination, the judge is not bound by the rules of evidence except with respect to
2. Rule 104(b) – the JURY decides issues of conditional relevance.
3. Relevancy conditioned on fact – Rule 104(b) – When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the court shall admit it upon, or
subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition.
a. A judge may conditionally admit proffered evidence (which may have
otherwise been inadmissible) subject to later proof of foundational facts.
i. The standard of proof for conditional relevance is that a reasonable jury
could find, by a preponderance of the evidence, that the conditional fact
ii. If the preliminary fact is true then the conditional fact is for the jury.
iii. If the proffering counsel fails to fulfill the terms of the conditional
admission, the opposing counsel should file a motion to strike the
conditionally admitted evidence.
G. Character Evidence – Rules 404 & 405
1. Propensity evidence is generally prohibited (by Rule 404) for a number of reasons:
a. The jury might give too much weight to the evidence.
b. The jury might punish the defendant for prior bad acts or bad character.
c. The jury might dilute the prosecution‟s burden.
d. The jury might not realize that the defendant came under suspicion because of
the prior crimes.
2. Rule 404(a) – “Evidence of a person‟s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion.”
There are three exceptions:
a. Rule 404(a)(1): Character of the accused. [criminal context] The accused may
offer evidence of a pertinent character trait (i.e. his good character) and the
prosecution may rebut the same.
i. Note that in both of these exceptions, the accused must first proffer the
character evidence (i.e. the prosecution cannot initially proffer such
ii. BUT, once the accused offers such evidence he opens the door for the
prosecution to offer the same.
iii. On cross-examination, the prosecution may inquire into relevant specific
instances of conduct.
b. Rule 404(a)(2): Character of the victim. [criminal context] The accused may
offer evidence of a pertinent character trait of the victim (i.e. the victim‟s violent
nature) and the prosecution may rebut the same.
i. For example, the accused may offer evidence of the victim‟s violent nature
to prove that the victim was the aggressor in a fight. The prosecution may
then offer evidence of the victim‟s peaceful nature.
c. Rule 404(a)(3): Character of the witness. [civil or criminal] see pg.
3. Three types of character evidence [Rule 405]:
a. Opinion Evidence: One or more persons may offer their personal opinion
(based on observation) as to the person‟s character for honesty or some other
i. The attorney must set a foundation that the witness is familiar with the
individual in question.
b. Reputation Evidence: Testimony as to a person‟s “general reputation” in the
community may be given, whether the witness actually knows the person in
question or not.
i. The attorney must set a foundation that the individual in question has a
reputation and the witness knows of it.
c. Specific Acts: Evidence may be given of specific acts that a person has done
which would lead to inferences of character.
i. Specific acts evidence is allowed only when character is “in issue.” [Rule
4. Character in ISSUE (direct evidence) – a person‟s character may itself be an issue
(negligent entrustment, libel or defamation, damages).
a. When character is the ultimate issue, character evidence may be based upon a
witness‟s personal opinion, reputation or specific acts (Rule 405(b)).
b. Cleghorn v. N.Y. Central and Hudson River Railway Co.
5. Though character may itself not be an issue, character evidence may still be used as
circumstantial evidence from which an inference can be drawn as to the existence or
non-existence of some fact which is in issue. – ask Seaman question.
6. Character as circumstantial evidence. Generally Rule under Rule 404(a) –
cannot use character evidence to prove “action in conformity therewith on a
particular occasion” (i.e. propensity). Therefore, the initial inquiry is what is the
evidence offered to prove?
a. If the evidence is offered to prove character in order to prove propensity then it is
inadmissible under Rule 404(a) unless it falls under one of the three exceptions (see
b. If the evidence is offered circumstantially to prove action in conformity on a
particular occasion under a 404(a) exception, this may be introduced via opinion
or reputation evidence only.
i. The accused cannot offer specific acts evidence to prove a character
trait when such evidence is offered circumstantially.
7. What if the accused offers character evidence under 404(a)(1) or (a)(2)?
a. Prosecution can cross-examine the character witness about specific acts relevant
to the character trait.
b. BUT the prosecution is “bound by the witness‟s answer.”
c. Prosecution may also offer its own character witnesses to testify as to the
defendant‟s bad character.
d. If character evidence is admissible for one purpose but inadmissible for another,
the opposing party is entitled to a limiting instruction under Rule 105 –
Limited Admissibility: When evidence which is admissible to one party or for
one purpose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.
i. Note that counsel will often not ask for a limiting instruction because it
calls extra attention to the evidence at issue.
ii. The judge will not give a limiting instruction sua sponte (independently)
unless it would be reversible error not to.
8. FRE 404(a) Character Evidence Analysis:
a. What is the evidence offered to prove?
b. If offered to prove character, is the particular character trait “in issue” in the
i. If YES, the character evidence may be proved by any of the Rule
405 methods: personal opinion, reputation or specific acts.
ii. If NO, the character evidence is inadmissible unless it falls under one
of the exceptions in Rule 404(a).
c. Does the evidence fall under one of the exceptions in 404(a)?
1) Is it the character of the accused, offered by the accused?
2) Is it the character of the victim, offered by the accused?
3) Is it the character of the witness for truthfulness?
d. If it falls under a Rule 404(a) exception, then the character evidence may be
proved by reputation or opinion testimony, but not by specific acts.
e. On cross-examination, the prosecutor may ask about specific acts.
f. BUT, the prosecutor is bound by the witness‟s answer.
g. Rule 403 balancing test also applies.
9. Rule 404(b) – Other crimes, wrongs or acts: Evidence of other crimes, wrongs or
acts cannot be offered for propensity purposes. Such evidence may however be
admissible for other purposes such as: proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, provided that upon request of the
accused, the prosecution in a criminal case provides reasonable notice of the general
nature of such evidence in advance of trial (or during trial is the court excuses for
good cause shown).
i. Knowledge, Intent, Preparation, Plan, Opportunity, Motive, Identity,
Absence of mistake or accident.
b. The list of admissible purposes is not exhaustive (“such as”).
i. Modus operandi: handiwork
ii. Res gestae: same transaction
c. The rule applies in both civil and criminal cases. The party seeking to admit such
evidence must articulate a permissible reason why the evidence is necessary.
d. Such evidence is still admissible even if the individual was acquitted of the prior
crime (note that Rule 403 balancing test is still available).
e. The rule applies to both acts prior to and subsequent to the charged crime.
f. Identity evidence – the identity exception is limited in scope and does not allow
admission of extrinsic acts that are merely similar, but only those that have such a
high degree of similarity as to mark the specific offense as the handiwork of the accused.
i. U.S. v. Carillo – packaging drugs in balloons for sale is not considered
“handiwork” because it is not unique or uncommon.
g. Pattern evidence – “pattern” refers to a series of acts that collectively identify
the offender. The existence of a pattern alone is insufficient to permit admission
of pattern evidence – the pattern must show identity, intent, plan, absence of
mistake, etc. to make the evidence admissible.
i. U.S. v. Beasley – the temporal proximity and similarity of the acts is
imperative to the admission of pattern evidence. Where the acts are
merely related to the crime charged, but are dissimilar, such evidence may
not be admitted as pattern evidence.
h. Some crimes are themselves a character trait like pyromaniac, child molester or
drug addict. Evidence of the act itself is a character trait and this sort of blends
into the propensity evidence that the rule doesn‟t allow.
i. Another example is if the defendant is charged with a crime that requires that he
acted “knowingly,” evidence of a prior conviction for the same crime could
prove such knowledge.
j. Prosecutors try and take advantage of this rule all the time because it is the only
way to admit character evidence if the defendant doesn‟t open the door. The
advantage of FRE 404(b) is that the prosecution doesn‟t have to wait for the
defendant to open the door.
10. FRE 404(b) Crimes, Wrongs or Acts Analysis [under Huddleston v. U.S.]:
a. Threshold inquiry: Is the evidence probative of a material fact other than
character? [see FRE‟s 401, 402, 404(b)]
b. Is there sufficient evidence that a reasonable jury could find that the other
crime, wrong or act occurred? [FRE 104(b)]
i. Under Tucker v. State (Nevada): the trial court must find that the
defendant did the prior act by clear and convincing evidence.
ii. Under Huddleston v. U.S. (S. Ct.): the district court must find that there
is sufficient evidence to permit a reasonable jury to find that the
defendant did the prior act.
c. Does the potential for unfair prejudice substantially outweigh the
probative value? [FRE 403]
d. Provide a limiting instruction if requested. [FRE 105]
11. Before the judge allows admissible character evidence, he must conduct a Rule
403 balancing test. The judge must consider the following factors:
a. Probative force of the evidence;
b. How badly the party needs the evidence;
c. Availability of less prejudicial proof;
d. Sufficiency of the evidence;
e. How inflammatory the evidence is;
f. Whether the evidence is disputed;
g. Whether the judge can give an effective limiting instruction;
h. How the evidence will affect the length of the proceeding; and
i. Similarity of the prior wrong to the charged offense.
H. Habit Evidence [Rule 406]: Evidence of the habit of a person or of the routine practice
of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or the organization on a particular
occasion was in conformity with the habit or routine practice.
1. A habit is a regular practice of meeting a particular kind of situation with a certain
type of conduct or reflex behavior in a specific set of circumstances. This is a narrow
range of highly probative traits, namely automatic, invariable patterns of behavior.
2. A habit is specific whereas character is general.
3. A habit tends to be a mechanical, involuntary reaction.
4. Both the stimulus and the response must be specific in order to show habit. The
more specific the stimulus and the behavior the more likely it will be considered
5. This acts as the general exception to propensity evidence.
I. Extrinsic Reasons that Evidence may be Excluded:
There are classes of evidence that may be excluded for various policy reasons
1. Rule 407 – Subsequent Remedial Measures: When, after an event that causes
injury or harm, measures are taken that if taken previously may have made the injury
or harm less likely to occur evidence of the subsequent remedial measures are not
admissible to prove negligence, culpable conduct, a defect in the product, a defect in the product’s
design, or a need for a warning or instruction. Evidence of subsequent remedial measures
are admissible when offered for another purpose, such as (1) proving ownership, (2)
control or (3) feasibility of precautionary measures, if controverted, or (4) impeachment.
a. Meaning of “feasibility” – when is it controverted:
i. Narrow definition: evidence is inadmissible unless the defendant
contends that “the measures were not physically, technologically, or
economically possible under the circumstances then pertaining.”
ii. Broad definition: “feasible” means “more then that which is merely
possible, but includes that which is capable of being utilized
2. Rule 408 – Compromise and Offers to Compromise.
a. Evidence of conduct or statements made in compromise or settlement
negotiations is not admissible. The exclusionary rule applies only to real offers to
compromise or statements made in the course thereof.
i. In Davidson v. Prince, plaintiff‟s letter that reviewed the facts of the
incident and demanded full payment was not an offer to compromise and
was therefore admissible.
b. The rationale of the rule is to encourage parties to settle their disputes out-of-
3. Rule 409 – Payment of Medical or Similar Expenses.
a. Evidence of furnishing or offering or promising to pay medical, hospital, or
similar expenses occasioned by an injury is not admissible to prove liability for the
4. Rule 410 – Inadmissibility of Pleas, Offers of Pleas, Plea Discussions and
a. A (1) withdrawn guilty plea; (2) plea of nolo contendere; (3) any statement
made in the course of any proceedings under Fed. R. Crim. P. 11 or
comparable state rules; or (4) statements made in course of plea discussions
with a prosecuting attorney which do not result in guilty plea or in a withdrawn
guilty plea are generally NOT admissible against the defendant who made
b. The statement is admissible if (1) another statement made in the course of the
same plea discussions is introduced and it is necessary to consider the
statement, or (2) in a criminal proceeding for perjury, as long as the statement
was made under oath in presence of counsel and on the record.
5. Rule 411 – Liability Insurance: Evidence that a person was or was not insured
against liability is NOT admissible upon the issue of whether the person acted
negligently or otherwise wrongfully.
a. Evidence is admissible if used for another purpose on such issues as proof of
agency, ownership, or control, or bias or prejudice of a witness.
b. In a case for punitive damages, the existence of insurance may be admissible so jury
can decide damages.
J. Rule 412 – Prior Sexual Activity of Alleged Victim [Rape Shield Laws]
1. All states have some sort of Rape Shield Laws. Reputation or opinion evidence is not
allowed. Use of specific acts is allowed in special circumstances.
2. Generally, the following evidence is not admissible in any criminal or civil proceeding
involving alleged sexual misconduct [412(a)(1) & (2)]:
a. Evidence offered to prove that an alleged victim engaged in other sexual behavior.
b. Evidence offered to prove an alleged victim‟s sexual predisposition.
i. Note that the issue of a victim‟s dress is a point of conflict. In
Meritor Savings Bank, the Supreme Court said that the issue of the
victim‟s dress and manner are relevant in cases of sexual harassment.
It is unclear whether this extends to other instances of sexual
misconduct as Rule 412 would seem to prohibit such evidence.
3. Exceptions to the rule [412(b)(1)]:
a. In a criminal case, the following evidence is admissible if otherwise admissible
under the rules of evidence:
i. Evidence of specific instances of sexual behavior by the alleged victim to prove
that someone other than the accused was to source of semen, injury or other physical evidence
ii. Evidence of specific instances of sexual behavior between the alleged victim
and the accused offered by the defendant to prove consent or by the prosecution
iii. Evidence which if excluded would violate the constitutional rights of the defendant
b. In a civil case, evidence of the sexual behavior or sexual predisposition is admissible
if its probative value substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party. Evidence of an alleged victim‟s reputation is admissible only if it
has been placed in controversy by the alleged victim [412(b)(2)].
4. Procedure to determine admissibility:
a. A party intending to offer such evidence must file a written motion at least 14 days
before trial describing the evidence and its purpose and serve the motion on all
parties and notify the alleged victim or the alleged victim‟s guardian or representative
b. Before admitting the evidence, the court must conduct an in camera hearing and
afford the victim and the parties a right to be heard. The motion and related papers
must remain under seal [412(c)(1)(C)].
K. Rules 413, 414 & 415 – Other Sexual Crimes and Acts
1. Rule 413, 414 & 415 were very controversial and the Supreme Court advocated against
their admission. The reason behind their enactment by Congress was to provide a
model for the states – note that most states have not enacted these rules.
2. Rule 413 – Evidence of Similar Crimes in Sexual Assault Cases
a. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of
the defendant‟s commission of another offense or offenses of sexual assault is
admissible, and may be considered for its bearing on any matter to which it is
b. Notice Provision: If the prosecution wishes to produce such evidence under the rule,
it must disclose the evidence to the defendant at least 15 days before the trial (unless
good cause shown).
c. The rule also defines sexual assault.
3. Rule 414 – Evidence of Similar Crimes in Child Molestation Cases
a. In a criminal case in which the defendant is accused of an offense of child molestation, evidence of
the defendant‟s commission of another offense or offenses of child molestation is
admissible, and may be considered for its bearing on any matter to which it is
b. Same notice provision as in Rule 413.
c. Child is someone under age 14. The rule also defines child molestation.
4. Rule 415 – Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or
a. In a civil case in which a claim for damages or other relief is predicated on a party‟s
alleged commission of conduct constituting an offense of sexual assault or child
molestation, evidence of that party‟s commission of another offense or offenses of
sexual assault or child molestation is admissible and may be considered as provided
in Rule 413 and Rule 414 of these rules.
b. Same notice provision as in Rule 413.
5. Note that Rules 412-415 trump Rule 404. Thus, if evidence could be admitted under
Rule 404 but is excluded by one of these rules, the evidence is not admissible.
III. HEARSAY – ARTICLE VIII
A. Definition of Hearsay [FRE 801(c)]: “Hearsay” is a statement, made by an out-of-
court declarant, offered in evidence to prove the truth of the matter asserted.
A hearsay “statement” may be any one of the following [FRE 801(a)]:
1. Oral statements
3. Assertive Conduct
a. The key is to the definition of “statement” is that nothing is an assertion unless
intended to be one.
A “declarant” is a person who makes a statement.
B. Rationale – The hearsay rule reflects concerns about the trustworthiness of hearsay
The reliability of such evidence is questionable because:
It was not given under oath;
It was not given where the fact finder could observe the declarant‟s demeanor;
It was not subject to cross-examination by opposing counsel to test the
perception, memory, veracity, and articulateness of the out-of-court declarant or
Hearsay protects the values of:
a. Confrontation (6th Amendment rights in a criminal case)
C. Basic Hearsay Analysis
Is it a “statement”?
a. Is it a verbal or written assertion?
b. Is it conduct intended as an assertion?
Who is the “declarant”?
a. Is the declarant out of court?
b. If the declarant is in court, was the statement made in court at the current trial or
*What is the statement offered to prove?
1. If it is offered to prove the truth of the matter asserted = hearsay.
2. If it is offered for some other purpose = not hearsay.
D. Not Hearsay – If the truth of the matter of the declarant‟s statement is not the issue,
there is no hearsay problem.
Typical examples of non-hearsay purposes:
1. Verbal act / performance utterance not intended as assertion
i. “I‟m still alive.” This evidence is not offered for the truth of the statement, but
rather for the fact that it was made. The content of the statement doesn‟t
matter – just that the person spoke.
The issue was whether the man was alive – the point is that dead men
do not talk – the actual content of the statement is irrelevant.
2. Effect of the statement on the hearer
i. The evidence is not offered for the truth of the statement but rather to
show the effect on the hearer.
ii. Evidence of statements made to a particular person may be offered to
show his state of mind in the sense that he had notice, knowledge,
motive, good faith, duress, probable cause, or that he had acquired
information that had a bearing on his subsequent conduct.
“Terrorists said they were going to kill me.” It doesn‟t matter
whether or not the terrorists were going to kill him, rather, the
statement is offered to show that the listener thought he was going to
die – offered to show duress.
3. Used to show declarant‟s state of mind
i. If the declarant directly states what their state of mind is then that is
In Fun-Damental Too, Ltd. v. Gemmy Industries Corp., plaintiff
sought to prove consumer confusion over the two products. The
customer statement “I‟m confused” is hearsay. The customer
statement “Why did you sell the product at a lower price” (to
illustrate customer confusion) is not hearsay.
ii. Note that the hearsay evidence to illustrate the state of mind of a witness is
not admissible if the state of mind of the witness is not at issue.
4. Legally operative language
i. When the issue revolves around words that are legally significant in and
of themselves, evidence of the words is admissible.
ii. The words are not offered for the truth of the matter asserted but beacause
they are legally operative language.
iii. The credibility of the declarant does not matter and the credibility of the
witness may be challenged in court.
iv. It doesn‟t matter if the declarant‟s statement “I will guarantee a loan” is
true or not – it is relevant to show that the witness believed it.
5. Statements about a person‟s reputation may not be hearsay.
6. Use of prior inconsistent statements, made out of court by a witness, will not be
hearsay when used to impeach a witness‟s present testimony (not showing prior
out-of-court statement but rather attempting to raise questions about a witness‟s
E. Implied Assertions are conduct or words that imply something about the state of mind
or belief of the declarant.
Under Rule 801(a), the declarant must intend the assertion in order for the conduct to
be considered hearsay.
a. Under the Common Law, implied assertions were not hearsay but were not
admissible for policy reasons.
b. *Under the FRE, evidence of conduct, verbal or nonverbal, that is not intended as
an assertion, is not hearsay and is therefore admissible.
Examples of non-assertive conduct:
a. The witness states that he saw a person using an umbrella. The person with the
umbrella is not intending to assert that it is raining = not hearsay.
b. A ship captain brings his family on board a boat. The ship captain is not intending
to assert that the boat is safe = not hearsay.
c. *Note that intentional assertive conduct is hearsay. For instance, the act of
pointing to identify a suspect in a line-up, is clearly the equivalent of words,
assertive in nature, and to be regarded as a statement. [ACN Rule 801(a)]
Examples of non-assertive words:
a. U.S. v. Zenni – the statements of callers to a residence who gave directions for
placing bets were not hearsay because they were offered for the implied assertion
that bets could be made at the premises called. The callers did not intend to
make an assertion when they spoke.
Words can be assertive but offered to prove something other than the matter asserted. For
example: The statement by a woman “I am the Pope” is not hearsay if offered to
prove that the woman is insane.
F. Borderland of Hearsay – Trace on the Mind of the Declarant
State v. Bridges: Soldier molested girl in apartment and the soldier was later
arrested for other crime. The girl described the apartment to her mother and the
prosecutor sought to introduce the mother‟s testimony about the description of the
apartment. In terms of admissibility, the credibility of declarant is probably
irrelevant because there is no other way for the girl to have been able to describe the
apartment [“trace on the mind of the defendant”]. Judge Weinstein has accepted
such evidence on this theory.
1. The argument against this as hearsay is that it is intended to prove the truth of
the matter asserted.
G. “Statements” of Animals and Machines
Animals: A “statement” or conduct by an animal is not hearsay (Rule 801
“statement of a person”). The rationale is that animals don‟t lie.
1. Admissibility of bloodhound evidence has to prongs:
a. The bloodhound in question must be shown to have been trained to follow
human beings by their tracks and to have been tested in its accuracy in
trailing upon one or more occasions; and
b. The evidence of acts of trailing may be received as circumstantial of
corroborative evidence against a person whom other circumstances point
as being guilty of the commission of the crime charged.
Machines: Machines do not lie and they cannot be excluded as hearsay evidence.
They do present a reliability issue and courts will generally require that the proponent
of the testimony demonstrate that the evidence is reliable.
HEARSAY EXCEPTIONS AND EXEMPTIONS
Rule 801(d) – lists statements which are not hearsay.
There are 27 separate hearsay exceptions in FRE 803 and 804(b) plus the catch-
A. Requirement of Unavailability:
1. Rule 803 exceptions do not require unavailability of the declarant.
a. The statements and the circumstances are reliable enough that cross-
examination is not necessary.
2. Rule 804 exceptions do require unavailability of the declarant.
a. Cross-examination is desirable but it is not possible. Despite a preference
to have the declarant testify, if he is unavailable and the circumstances
indicate reliability, it is better to admit the statements then to keep them
out. Note that the party offering the testimony has the burden of showing that
the declarant is unavailable.
B. Reasons that a Declarant may be Unavailable under Rule 804(a):
1. privilege; or
2. refusal to testify; or
3. lack of memory; or
4. death or then existing physical or mental illness or infirmity; or
5. proponent of a statement has been unable to procure the declarant‟s attendance
by process or other reasonable means.
C. Requirement of Personal Knowledge
1. Advisory Committee Notes – “In a hearsay situation, the declarant is, of course,
a witness, and neither this rule nor Rule 804 dispenses with the requirement of
first-hand knowledge. It may appear from his statement or be inferable from
2. FRE 602. Lack of Personal Knowledge – A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter [subject to FRE 703 regarding expert opinion
D. Note that a court must determine as a preliminary question that the statement falls
under a specific rule before the statement is admitted. Such preliminary questions
are determined by the court under Rule 104(a) and must be proven by the offering
party by a preponderance of the evidence.
E. Dying Declarations – Rule 804(b)(2): In a prosecution for homicide or in a civil
action proceeding, a statement made by a declarant while believing that the
declarant‟s death was imminent, concerning the cause or circumstances of what the
declarant believed to be impending death.
1. Fear of death supplies sufficient trustworthiness and the victim‟s death makes the
2. Such hearsay is admissible in criminal cases for homicide only and in all civil
3. The declarant must be the victim.
4. Sense of imminent death – The victim must have made the statement while
actually believing that death was imminent.
5. Scope of declaration – The dying declaration must state facts about the cause
or circumstances of the victim‟s impending death.
a. A mere opinion about the cause of death does not fall within the exception.
6. The requisite unavailability does not need to be because of death. The victim
does not need to be dead at the time of trial, if she is otherwise unavailable, so
long as the victim believed death was impending at the time that the declaration
a. Under Rule 104(a), the judge makes the preliminary determination of
whether the victim thought that they were going to die. The judge can
consider any and all evidence except for privileged evidence.
7. Note that this is an expansion of the Common Law rule in which the exception
applied only in criminal murder trials.
F. Present Sense Impression – Rule 803(1) (availability immaterial)
1. “A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.”
2. The statement must be “describing or explaining” the event or condition.
3. The statement must be made while the declarant was perceiving the event or
condition, or immediately thereafter.
a. The time interval between observation and utterance is too short to permit
4. Contemporaneous statements of present sense impression by unknown
declarants may be admitted.
G. Excited Utterance – Rule 803(2) (availability immaterial)
1. “A statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.”
2. The trustworthiness of the statement is supplied by its spontaneous and
contemporaneous nature which minimizes any chance of fabrication.
3. The statement must “relat[e] to” the startling event or condition.
4. The statement must have been made “while the declarant was under the stress of
excitement caused by” the event or condition.
H. Admissions by Party Opponents – Rule 801(d)(2)
Note that this is an exemption not exception.
Note that this is the most important hearsay exemption / exception because it is
used all the time.
Any out-of-court words or acts of a party that are inconsistent with the position that
the party takes in the current proceedings may be offered to show the truth of the
matter asserted in the out-of-court statement.
FRE 801(d) Statements which are not hearsay. A statement is not hearsay if–
(2) Admission by party-opponent. The statement is offered against a
party and is
(A) the party‟s own statement in either an individual or a
representative capacity or
(B) a statement of which the party has manifested an adoption or
belief in its truth, or
(C) a statement by a person authorized by the party to make a
statement concerning the subject, or
(D) a statement by the party‟s agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and
in furtherance of the conspiracy.
Corroboration Requirement [801(d)(2)]
The contents of the statement shall be considered but are not alone sufficient to
establish the declarant‟s authority under subdivision (C), the agency or
employment relationship and scope thereof under subdivision (D), or the
existence of the conspiracy and the participation therein of the declarant and the
party against whom the statement is offered under subdivision (E).
a. Admissions Generally
i. The statement does not have to be against the party‟s interest
(i.e. “I committed the crime”).
ii. The statement does not have to be based on personal knowledge.
iii. The doctrine is incredibly broad – essentially anything ever said by a
party may be used against them.
iv. The rationale for admission of these statements is generally that a party
would not make a statement against their own interest if it wasn‟t true
(reliability). Also, under the FRE, this is an adversarial system and a
party should be bound by their words.
v. Admissions may be expressly made or implied from a party‟s conduct.
b. Express Admissions
i. Pleadings: When a party has filed pleadings in a current action, any
admissions contained therein may be used against the pleader as
conclusive evidence of the facts admitted.
ii. Guilty Pleas: As long as a guilty plea is not coerced, it may be used as
an admission in the accused‟s present trial or in any subsequent
criminal or civil trial for the same act. When a guilty plea is withdrawn
before trial, in most jurisdictions it may not be used as an admission
against the accused in the present or in a subsequent criminal or civil
c. Implied Admissions are inferred from conduct of the party or one of his
i. Admission by silence: If a party is shown to have heard and understood
a statement made by another in his presence, and a reasonable person
in the party‟s position would have denied the statement, then the
party‟s nondenial (his conduct) may be introduced to shown that he
agreed with or accepted as true the facts stated in the other person‟s
Note that in the criminal context, once an accused has been
Mirandized, silence becomes too ambiguous and is not treated as
ii. Admission by other conduct: A party may do any number of things
that will support an inference that he thinks he is liable in some way,
i.e. jumping bail, fleeing the scene of a crime, attempted escape,
counterfeiting evidence, or bribing a witness – the theory being that the
party is impliedly admitting that he has a weak case.
d. Adoptive Admissions [Rule 801(d)(2)(B)]: When a party is shown to have
heard and full knowledge of the content of a statement made by another
person, and the party by affirmative words or acts shows that he agrees with
or accepts as true the facts alleged in the statement, the statement may be
introduced as an admission against the party.
e. Vicarious Admissions (agent or employee) [Rules 801(d)(2)(C)&(D)]
i. A party may expressly authorize another (his agent or employee for
example) to speak for him, or such authority may arise by operation of
law. When this occurs, the admission of the agent or employee will be
imputed to and be admissible against the principal or employer.
ii. The statements of the agent must be made during the course and
within the scope of the agent‟s authority to act for her principal.
a. The trend is to hold that any “statements” about matters that are
within the scope of the agent‟s employment are admissible.
b. The statements are admissible as long as the employment
relationship still exists – not if the employee has been fired for
iii. The agency relationship must be proved by independent evidence
(other than the statements of the alleged agent).
a. The agency relationship includes: (i) the agent‟s power to alter the
legal relationships between the principal and third parties; (ii) the
existence of a fiduciary relationship toward the principle
regarding matters within the scope of the agency; and (iii) the
principal‟s right to control the agent‟s conduct regarding matters
within the scope of the agency.
The issue of control normally determines whether an agency
f. Vicarious Admissions (admissions by a co-conspirator) [
i. Admissions by a co-conspirator may be introduced against another
co-conspirator if the following requirements are met:
a. The conspiracy itself is established prima facie by
independent evidence (however, there is a trend permitting
use of the statements themselves to prove the conspiracy);
b. The statement itself was made during the conspiracy (before
the crime was consummated or the declarant withdrew from
the conspiracy); and
Note that a late joining conspirator takes the conspiracy as he finds
it and is bound by the statements of the earlier conspiracy.
c. The statement was made “in furtherance of” the conspiracy
(i.e. relates to the effort to accomplish the legal objective).
Note that once the first conspiracy is complete, the later actions that
the conspirators may take to conceal the first conspiracy, are usually
considered to be a second, separate conspiracy.
ii. The rationale is an agency analogy – the conspirators are each other‟s
agents and an admission by one is an admission by all. Though this
does not really apply in the criminal context, the law should not grant
criminal conspiracies more favorable treatment than legitimate
agencies. (U.S. v. DiDomenico, J. Posner)
I. Former Testimony Exception [Rule 804(b)(1)] (requirement of unavailability)
a. Transcripts of testimony given by a witness at a former deposition, hearing or
trial, in the same or another case, are generally considered hearsay but admissible
under an exception.
b. They party against whom the testimony is being offered (1) must have been a
party to the earlier proceedings, (2) must have had the opportunity to examine
the witness when the testimony was being recorded, and (3) must have had a
similar motive as that involved in the current proceeding.
c. The issues in the former proceeding must be substantially the same as those
involved in the trial at which the testimony is offered.
d. A criminal defendant cannot introduce the grand jury testimony of a witness who
asserts the 5th Amendment privilege at trial (unavailable at trial). Note that the
circuits are split on whether there is a “similar motive” between the grand jury
hearing and the later criminal trial.
J. Statements Against Interest Exception [Rule 804(b)(3)]
(requirement of unavailability)
a. When a hearsay declarant, not a party to the action, has made statements
against her own apparent self-interest, such statements are admitted since
they are generally thought to be trustworthy (and, therefore cross-
examination can be dispensed with).
b. The declarant must be competent, have personal knowledge of the facts
stated, and not state the facts in an opinion or conclusory form.
c. The declaration must be to the declarant‟s immediate prejudice at the time
she makes the statement. The fact that a suit may be brought later on the
basis of the facts stated is usually sufficient (e.g. “I was negligent.”).
d. The declarant must be aware that the statement is against her interest.
e. The interest affected must be of a substantial nature and a pecuniary or
proprietary one. For example, a statement by A that she owns less of an
interest in property then she formerly claimed (an estate for years as opposed
to a fee simple) would be admissible.
K. State of Mind [Rule 803(3)] (availability immaterial)
a. This exception allows the introduction in evidence of unexcited statements of
present sense impressions indicative of mental state made by out-of-court
b. When the declarant‟s state of mind or mental condition is in issue (e.g. her
feelings, emotions, attitudes, knowledge, belief, plans, intent, etc.) then the
declarant‟s out-of-court statements concerning her mental condition, if made at
the time that such condition is in issue, are admissible.
i. “I like B very much and want to give him this $1,000,” is admissible on the
issue of whether it was a gift or a loan.
c. Future Conduct: A declarant‟s extra-judicial statements concerning her mental
state are admissible to show that the declarant subsequently acted in accord with
her mental state.
i. Hillmon Doctrine: Evidence of an out-of-court declarant‟s intentions may
be admitted to prove that the declarant did what was intended.
1. Note that the Hillmon Doctrine cannot be extended to declarations
pointing to past conduct.
2. Note that the Hillmon Doctrine may apply to situations where the
intention involves another person.
d. Note that the state of mind exception allows the admission of indirect and
i. Direct assertion: “I‟m scared of X” (to show scared of X)
ii. Indirect assertion: “X threatened me” (to show scared of X)
e. Summary of Analysis of State-of-Mind Statements:
1. Is the statement hearsay? (Is it a direct statement of the declarant‟s state of
mind or circumstantial evidence of an unasserted state of mind?)
2. Is the statement one of “memory or belief” offered to “prove the fact
remembered or believed?”
3. Is the relevant state of mind the intent of the declarant to do something in
the future? (Hillmon Doctrine)
4. May the statement of intent be used to prove the intent of someone else, or
the doing of an act by someone else? (U.S. v. Pheaster (9th Cir.) state of
mind evidence may be admitted to show intent of the declarant even when
it involves another person).
L. Medical Diagnosis or Treatment [Rule 803(4)] (availability immaterial)
1. Statements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
2. The rationale is that such statements satisfy all of the testimonial infirmities:
b. Reliability – it is in the patient‟s self interest to be reliable.
c. Corroboration – if the patient is speaking to a doctor than
presumably the doctor can determine if they are being
d. Perception – the patient is probably perceptive of their own
e. Sincerity – similar to reliability.
3. The statement can be made to a doctor, nurse, paramedic, or anyone who is
potentially providing medical treatment.
4. The statement applies to treatment or diagnosis.
5. The declarant does not necessarily have to be the patient (i.e. could be a relative
speaking on behalf of the patient). Statements by the doctor to the patient are
6. Statements of past symptoms are also included.
7. Statements about the causes of the symptoms are relevant when they have to do
with the diagnosis or treatment – this often becomes relevant in child
M. Statements of Prior Identification [Rule 801(d)(1)(C)]
1. A statement is not hearsay if the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is one
of identification of a person made after perceiving the person.
a. Charlie testifies as trial “I picked Bill (defendant) out of a line-up at the
police station a few days after the robbery.” This is admissible and is the
classic paradigm example.
2. Most courts will also allow another witness (i.e. a police officer) to testify as to
what the declarant identified. Note that the declarant still has to testify or be available for
3. Note that only identification of person is allowed. Identification of a getaway
car, for instance, would not be permitted. Some courts have allowed
identification of a person‟s clothing.
N. Past Recollection Recorded [Rule 803(5)] (availability immaterial)
1. If a witness indicates that she has no present memory of the facts that she
observed earlier but that she made a record of those facts, then the record is
hearsay when offered to prove the facts asserted but is admissible as an
exception if a proper foundation is first laid.
2. Rationale: If the witness is allowed to use the written record she escapes cross-
examination, except as to the making of the record. However, if the
requirements stated below are followed, the record is probably as reliable as the
witness‟s testimony, since the possible defect of memory is avoided.
3. Requirements for Admissibility:
a. The witness must identify the writing as one which she made herself or
which was made under or at her direction.
This requirement has been liberally construed. For example, when
a witness testified before a grand jury, the record of her testimony
was held to have been “at her direction.”
The modern trend is to find it sufficient if the writing was made by
another person for the purpose of recording the witness‟s
statement at the time is was made and the witness read the
memorandum when the event was fresh in her memory and stated
that it was a correct record.
b. The writing must have been made at the time when the facts recorded
were fresh in the witness‟s memory.
c. The witness must have forgotten the facts recorded so that she cannot
testify from the stand.
d. The writing must be authenticated as an accurate record by having the
person who recorded the facts testify that she did so accurately.
e. Since the contents of the writings are in issue, the best evidence rule applies
and the original writings must be produced.
4. Admissibility of the Writing:
a. The majority view is that the writing itself may be admitted as evidence.
b. The minority view is that the writing cannot be admitted but must be read by
the witness. The rationale is the juries give too much weight to writings.
5. Present Recollection Refreshed
a. If the witness has a failure of memory, he may be shown some item
(stimulus) to refresh his memory. The item is then taken away from the
witness and he will testify as to his refreshed memory.
The refreshing document will not be admitted into evidence and so
there is no hearsay problem.
O. Business Records [Rule 803(6)] (availability immaterial)
1. Records kept in the normal course of a regularly conducted business activity
a. The person making the entries must have a duty to make such entries;
unofficial entries do not satisfy the requirement.
b. The record must relate to the primary activity of the business; records
prepared in anticipation of possible litigation do not qualify.
2. The offered records may be in any form if made in the regular course of
3. Entries of acts, events, conditions, opinions, or diagnoses are admissible.
4. The matters entered must have been within the personal knowledge of the
entrant, or transmitted to the entrant by someone under a duty to report who
had firsthand knowledge of the facts.
5. The entry must have been made at or near the time of the transaction so that
the entrant‟s knowledge was still fresh (trustworthiness).
6. Like other writings, business records must be properly authenticated to be
a. If the records are kept by several clerks then the courts will require the
“custodian” of the records (or another qualified witness) to authenticate
7. The best evidence rule applies.
8. Computer records are allowed unless the opposing party produced some
evidence to question their reliability.
9. An accident report is not trustworthy when prepared by a litigant specifically
for use in trial.
a. But the mere fact that a record could be used in litigation does not mean that
it must be excluded – trustworthiness is key.
b. A doctor‟s report, even though made in anticipation of litigation, may be
introduced into evidence if there are guarantees of trustworthiness.
If the defendant requests a doctor‟s report, created by a doctor of the
defendant‟s choice, the completed report, if offered by the plaintiff,
would have sufficient guarantees of trustworthiness.
10. Government reports setting forth factual findings resulting from an authorized
investigation do not fall under the business records exception (U.S. v. Oates).
P. Absence of Entry of Business Records [Rule 803(7)] (availability immaterial)
a. Testimony of the offer of the record for the purpose of demonstrating that a
particular entry does not appear in the record is permitted.
1. The lack of entry is admissible to show that an event, which had it
occurred would have been recorded, did not, in fact, take place.
2. Ex. a regularly-used receipt book to show nonpayment of a bill.
Q. Public Records and Reports [Rule 803(8)] (availability immaterial)
a. Records, reports, statements, or data compilations prepared by a public officer or
agency may be admitted as a hearsay exception. Records must be officially kept
by a public employee. This exception is broader than business records
b. Most courts apply this exception to police reports.
c. There are three categories of public records not excluded by the hearsay rule:
1. Records setting forth the activities of the office or agency.
Employment records, personnel records, payroll documents
2. Matters observed pursuant to duty imposed by law / duty to report.
Police reports (Except not against the defendant in a criminal case. Note
that the defendant could probably offer it)
3. Factual findings resulting from an investigation made pursuant to
authority granted by law.
Administrative agency findings
d. As long as a conclusion or opinion in a report is based on a factual
investigation and satisfies the trustworthiness requirement, it is admissible with
rest of the report (i.e. no distinction between facts and opinions).
e. The writing must have been made at or near the time of the act or event
f. Note that in a criminal case the criminal defendant must have opportunity to
cross-examine the official who wrote report.
g. The best evidence rule and authentication apply.
R. Records of Vital Statistics [Rule 803(9)] (availability immaterial)
Not covered in class.
S. Absence of Public Record or Entry [Rule 803(10)] (availability immaterial)
1. A statement in writing from the custodian of the record that he has made a diligent
search and failed to find a record is admissible when offered to prove the absence of
a record in that office.
2. The relevance of such evidence is that where one would expect to find public record
or entry, the absence of such entry tends to show that the purported event never
T. Records of Religious Organizations [Rule 803(11)] (availability immaterial)
Not covered in class.
U. Marriage, Baptismal and Similar Certificates [Rule 803(12)] (availability immaterial)
Not covered in class.
V. Family Records [Rule 803(13)] (availability immaterial)
Not covered in class.
W. Records of Documents Affecting and Interest in Property [Rule 803(14)]
Not covered in class.
X. Statements in Documents Affecting an Interest in Property [Rule 803(15)]
Not covered in class.
Y. Statements in Ancient Documents [Rule 803(16)] (availability immaterial)
1. A statement contained in a writing which was created at least 20 years prior to the
date of its offer is admissible against a hearsay objection where the authenticity of
the document has been established.
2. The Common Law requires 30 years.
3. Must show that: (1) the condition of the document creates no suspicion regarding its
authenticity, (2) the document has been kept in a place where it would likely be kept
if it were authentic, and (3) it has indeed been in existence for at least 20 years at the
time of its proffer at trial.
Z. Market Reports, Commercial Publications [Rule 803(17)] (availability immaterial)
Not covered in class.
AA. Learned Treatises [Rule 803(18)] (availability immaterial)
1. This is an important exception that comes up fairly frequently.
2. A learned treatise is a book or article published as a reliable authority on a matter
ordinarily the subject of expert opinion, which is called to the attention of an
expert witness upon cross-examination, or which is relied upon by the expert in
3. Even though this is a Rule 803 exception in which availability is generally
immaterial, here, the expert must be on the stand.
4. A learned treatise can be used to impeach an expert by showing that the
expert‟s views are at variance with an authoritative text.
5. The relied on statement may be read into evidence but may not be received as an
exhibit (used for substantive evidence or to impeach).
BB. Rules 803(19)(20)(21) not covered in class.
CC. Judgment of Previous Conviction [Rule 803(22)] (availability immaterial)
1. A prior conviction for a crime which carries a sentence of at least one year in
prison or death is admissible as hearsay exception where it is offered against the
person convicted in a later case for the proof of any fact which was essential to
sustain the judgment of conviction.
2. NOTE: A prior conviction can always be offered, where appropriate, for the
non-hearsay purpose of impeachment.
3. A criminal acquittal is excluded as hearsay in subsequent civil cases (different
burden of proof).
4. A civil judgment is not admissible in a subsequent criminal trial because the
standard of proof is different.
5. NOTE: withdrawn guilty pleas and offer to plead are inadmissible – Rule 410.
DD. Rule 803(23) not covered in class.
EE. Residual Exception [Rule 807]
1) This is the “catch-all” exception to allow in other kinds of hearsay meeting the same
standards of necessity and trustworthiness as required for the listed exceptions. It
covers both available and unavailable declarants.
2) If a party wants to offer a hearsay statement that is not admissible under the other
exceptions / exemptions then that party must give notice to the other party
3) Requirements of the Rule:
a. Circumstantial “guarantees of trustworthiness” – this is a case-by-case analysis
dependent upon a variety of factors:
i. Nature of the statement itself (sworn or unsworn)
ii. Relationship between the declarant and the witness
iii. Knowledge and qualifications of the declarant (mental capacity of the
iv. Type of case in which it is being offered (civil or criminal)
v. Corroboration (it isn‟t clear if this is a requirement)
b. Offered as evidence of material fact.
c. The statement is more probative on the point for which it is offered than any
other evidence which the proponent can procure though reasonable efforts.
d. The general purpose of these rules and the interests of justice will best be served
by admission of the statement into evidence.
e. The proponent must provide notice: (1) particulars of the statement, (2) in
advance of trial, and (3) name and address of the declarant.
4) The court must make sure that grand jury testimony is reliable before it is admitted.
5) Note that most scholars believe that if something is a “near-miss” then it should
not be admitted. However, many courts do not follow the near-miss theory.
a. The rationale is that if the evidence comes close to another rule, but does not
fit, it is a near miss and should not be admitted because Congress
intentionally excluded it.
FF. The Confrontation Clause is the criminal defendant‟s constitutional right to confront
the witnesses testifying against them (6th Amendment).
1. Admission of hearsay evidence under one of the recognized hearsay exceptions
does not violate the Confrontation Clause of the Constitution.
2. The Confrontation Clause restricts the range of admissible hearsay in two ways:
a. The prosecution must either produce, or demonstrate the unavailability of the
declarant whose statement it wishes to use against the defendant.
b. Once the declarant is shown to be unavailable, the statement is admissible only if
it bears “adequate indicia of reliability.”
Reliability can be inferred, without more, if it falls squarely within a firmly
rooted hearsay exception: prior testimony, excited utterance, medical
treatment or diagnosis, and statements by co-conspirators. Note that you
can always argues that an exception is “firmly rooted” (except for below).
If the statement falls within a firmly rooted exception then the proponent
isn‟t required to show unavailability.
If the exception is not firmly rooted, then must show “particularized guarantees
Examples that are not firmly rooted: residual exceptions, new exceptions
created by states, state law variations and expansions on longstanding
exceptions, and statements against interest that inculpate the defendant.
GG. Constitutional issues raised by exclusion of hearsay and other evidence when the
criminal defendant seeks to admit it.
1. Voucher Rule: The “voucher rule” was a Common Law rule that a party who calls a
witness “vouches for his credibility” and thus cannot impeach him. This was held
unconstitutional by the Supreme Court in Chambers v. Mississippi.
2. In Green v. Georgia, the Supreme Court held that the Due Process Clause of the
14th Amendment may require admission of otherwise inadmissible hearsay as
evidence for the criminal defense.
3. Note that in both cases the Supreme Court focused at least in part on the reliability
of the statements.
IV. WITNESSES – ARTICLE VI &
OPINIONS AND EXPERT TESTIMONY – ARTICLE VII
1. Competency refers to the admissibility of a witness‟s testimony.
a. While the weight of a witness‟s testimony is always up to the trier of fact
(jury), his competency to testify is always a question of law to be decided
by the trial judge.
2. Every person is competent to be a witness except as otherwise provided
in the rules [Rule 601].
i. Dead Man‟s Statute: if a witness had a transaction or a conversation
with someone who has subsequently dies and the witness is suing the
decedent‟s estate over that transaction, the witness may not testify
about the transaction because the decedent is not there to testify.
ii. A judge cannot be a witness in a case over which he is presiding
iii. A juror cannot be a witness in a case in which he is sitting
3. Common Law Incompetancies
a. At Common Law, there were a number of grounds to disqualify a witness
from testifying: Religious Belief (lack thereof); Infamy; Interest; Testimony
of an Interested Survivor; Mental Capacity (infant, insane, intoxicated);
Infancy; Mental Derangement; Intoxication; Marital Relationship; and
Official Connection with Tribunal (judge, court officer, attorney, juror).
b. Rule 601 abolished the Common Law rules of incompetencies (all of the
witness exclusions originally had to do with reliability).
c. The Common Law incompetencies are not a ground to prohibit the
witness from testifying though they are grounds for impeachment
4. Preconditions to Witness Testimony:
a. Rule 602: The witness must have personal knowledge of that which the
witness seeks to testify about. Whether the witness has personal
knowledge is a question for the jury.
b. Rule 603: The witness must take an oath or affirmation that they will
testify truthfully. Note that the witness does not need to swear before
c. Mental incapacity or drug or alcohol use by the witness does not render
them incompetent though it is grounds for impeachment.
d. The federal rules do not render a child witness incompetent though many
states have rules regarding child witnesses. In most states the judge will
make an initial determination about the child‟s competency.
e. Ability to communicate The witness must be capable of expressing
himself so as to be understood by the jury – either directly or through an
i. Interpreter If the witness testifies through an interpreter, it
must be shown that the interpreter is qualified in the foreign
language in question and is under oath to make a true translation
5. Criminals: Even a convicted felon may give testimony (different from
a. The fact of conviction may serve as basis for impeachment though. The
conviction may affect the weight of the testimony, but not its
6. Hypnosis: The use of hypnosis presents special problems because of its
potential to alter memory.
a. The type of memory loss that the hypnosis is intended to overcome is a
critical factor. When there is a pathological reason for the loss, such as
traumatic neurosis, hypnosis is likely to result in reliable memory.
i. When the loss is due to a lack of recollection or to some
discernable motivation, the hypnotic memory is likely to be
fanciful or otherwise unreliable.
b. Hypnotic susceptibility: Some subjects are more amenable to
hypnosis than others, and this may affect the reliability of the results.
c. The Supreme Court recognized three possibilities of inaccuracies
i. The subject may try to please the hypnotist with imagined
ii. The subject may confabulate, or provide details from the
iii. The subject‟s memory hardens, giving greater confidence in the
memory, whether correct or false.
d. Courts treat hypnotically induced testimony in one of three ways:
i. Hypnosis testimony is admissible (minority view).
ii. Hypnosis testimony is per se inadmissible.
Note that in Rock v. Arkansas, the Supreme Court held that in
that specific case, the per se exclusion of the defendant‟s
hypnotically induced testimony – that was corroborated by an
expert witness – was a Constitutional violation of the
defendant‟s right to testify on her own behalf.
iii. If a person is hypnotized in accordance with procedural safeguards
then it is admissible.
e. Note that under some state rules, if a witness is hypnotized, they are not
only precluded from testifying about the induced memories, but also
precluded from testifying at all.
7. Judge as Witness [Rule 605] (see above)
8. Juror as Witness [Rule 606]:
a. Rule 606(a) A member of the jury may not testify as a witness before that
jury in the trial of the case in which the juror is sitting.
b. Testimony as to Jury Deliberations There is a wide split of authority
as to the extent to which jurors are permitted to testify in post-verdict
proceedings for the purpose of attacking or supporting the jury verdict.
i. Under FRE, juror testimony is admissible only to show any
outside influence improperly brought to bear on any member of
the jury, or “extraneous prejudicial information improperly
brought to the jury‟s attention.” [Rule 606(b)].
Anything internal to the deliberations cannot be attacked.
Thus, the jury could flip a coin to determine the verdict and
that cannot be challenged.
Drug use, lack of sleep, etc. are similarly internal influences
and may not be admitted to invalidate a verdict (Tanner v.
B. Basic Trial Procedure
a. Direct examination when a witness is first examined on a matter not
within the scope of any previous examination.
b. Cross-examination examination by a party other than the direct
examiner on a matter within the scope of a previous examination.
c. Redirect examination the direct examiner questions a witness after
d. Recross-examination questioning by the cross-examiner after a
2. Rule 611 – Mode and Order of Interrogation and Presentation
a. Control by the court. The trial court has broad discretion in controlling the
mode and order of interrogation (may impose time limits for instance). The
operative word is “reasonable control.”
b. Scope of cross-examination. “…[L]imited to the subject matter of the direct
examination and matters affecting the credibility of the witness…”
c. Leading questions.
i. A leading question is a question that suggests an answer.
ii. Leading questions are allowed for preliminary undisputed matters, to
transition from one area to another, where the witness is hostile or adverse,
or in a special case where the witness needs assistance (i.e. child witness).
iii. Leading questions are generally not allowed during direct examination.
iv. Leading questions are permitted on cross-examination.
3. Common Objections as to Form:
a. leading, argumentative, asked and answered, assuming facts not in
evidence, compound, calls for speculation, answer is nonresponsive, lack of
foundation, harassing / badgering the witness, cumulative, misstating
testimony / misleading, ambiguous / vague.
4. Cross Examination
A. Cross-examination serves four basic functions:
a. Impeachment – discrediting the witness being examined.
b. Using the testimony of the current witness to discredit the testimony
of other witness.
c. Using the testimony of the witness to corroborate the favorable
testimony of other witness.
d. Using the testimony of the witness to develop cross-examiner‟s own
B. In direct one can neither lead nor impeach the witness; in cross both may be
a. But, are exceptions to rule against impeaching one‟s own witness.
C. The adverse party has the right to cross-examine a party‟s own witnesses.
a. Refusal to respond If a party or nonparty witness refuses, without
justification, to answer questions that are necessary to his complete cross-
examination, his previous direct testimony may be excluded.
b. Excuse of incapacitation A party or nonparty witness may not refuse
to be cross-examined when cross has not begun (or material parts not
completed) on the excuse of physical or mental incapacitation without
the court striking the witness‟s direct testimony.
c. Witness dies If witness dies before cross, his direct may be stricken.
d. Judge has wide discretion _ Judge‟s rulings will not be reversed unless
he unduly or arbitrarily restricted the right, causing substantial harm to a
D. Scope of Cross-examination
a. Rule 611(b) cross-examination limited to matters covered in direct
and matters affecting credibility of witness.
i. BUT, the cross-examiner may go into additional facts that are
directly related to the general subject matter covered on direct.
b. When the purpose of the cross-examination is to test the credibility of
a witness, none of the jurisdictions limit the scope of the cross.
1. Impeachment is the process whereby a lawyer attacks the credibility of a
2. Impeachment can occur on cross, or (in limited circumstances), as part of the
opponent‟s extrinsic evidence presented by either testimony of other witness
or by the introduction of exhibits.
3. Effect of impeachment The fact that a witness has been impeached does
not mean that his testimony will be stricken or disregarded. The jury may still
choose to believe the witness despite impeachment evidence.
a. A witness that has been impeached can be rehabilitated on re-direct or
(in limited circumstances), through extrinsic evidence presented by either
the testimony of other witness‟s or by the introduction of exhibits.
4. Who May Impeach – Rule 607 The credibility of a witness may be attacked
by any party, including the party that called the witness.
a. The Voucher Rule (against impeaching own witness) is abolished.
b. The party calling a witness may sometimes raise the impeaching material
during direct to take the “sting” out of the potential impeachment.
c. Generally, you cannot bring in extrinsic evidence to impeach a
witness on a collateral issue.
i. Extrinsic evidence is anything outside of the witness‟s testimony.
Credibility is never a collateral issue.
d. BUT, the prosecution may NOT call a witness it knows to be hostile for
the primary purpose of eliciting otherwise inadmissible
impeachment testimony. U.S. v. Hogan.
5. There are five ways to impeach a witness:
a. Contradiction (“counterproof”)
b. Character of witness for untruthfulness
i. Non-conviction misconduct that casts doubt on veracity [Rule 608(b)].
ii. Convictions that cast doubt on veracity [Rule 609].
iii. Reputation / opinion testimony about the character of witness for
veracity [Rule 608(a)].
c. Showing that witness had made prior inconsistent statements [Rule 613].
d. Defect in sensory or mental capacity.
e. Showing bias that may lead the witness to fabricate.
B. Impeachment by Contradiction Something in the witness‟s story is wrong.
1. Can‟t use extrinsic evidence.
2. Collateral Matters Rule can‟t introduce other witness just to contradict
witness on a matter that would not otherwise be relevant to the case.
a. Prevents wastes of time; avoids confusion of the issues.
b. The rule excluding extrinsic collateral evidence to impeach a witness does
not apply to cross-examination itself.
3. Under 404(b) evidence of other crimes may be admissible to impeach a
testifying defendant through contradiction.
a. When evidence comes from own defendant‟s own mouth, then it is NOT
b. Example: Defendant‟s admission of prior positive drug tests contradicted
his testimony that he had only seen drugs on TV.
C. Impeachment by Evidence of Character and Conduct of Witness – Rule 608
1. Whenever a witness takes the stand, he puts his character for honesty and
veracity in issue. He can therefore be impeached by evidence that his
character is such that he may lie under oath.
a. Extrinsic evidence IS allowed – testimony of character witness.
2. Rule 608(a) Attack or support witness‟s credibility with reputation or
opinion evidence only relating to truthfulness or untruthfulness.
a. Only when credibility for truthfulness is attacked can party attempt to
prove truthfulness through opinion or reputation testimony. Then other
side can ask these witnesses about specific acts.
3. Prior Bad Acts Misconduct that has NOT been the subject of a criminal
conviction may still reflect on a witness‟s veracity.
4. Rule 608(b) Most courts allow cross-examination as to prior bad acts if
they are clearly probative of the veracity and do not involve unreasonable risks
of prejudice, confusion, etc. (judge‟s discretion).
a. Can NOT introduce extrinsic evidence to prove past misconduct, but can
ask questions that refer to extrinsic evidence.
5. Subject to 403 balancing.
D. Impeachment by Evidence of Prior Convictions – Rule 609
1. Proof of conviction of certain crimes may be used to impeach a witness.
2. Rule 609(a)(1) allows impeachment of a witness who has been convicted of a
crime punishable by death or by at least one year imprisonment.
a. Majority view permits impeachment by any felony conviction, regardless
of type of offense.
b. If witness is not accused, do 403 balancing.
c. If witness is accused, do reverse 403 (probative value outweighs
3. 609(a)(2) allows impeachment of any witness by any crime involving
dishonesty or false statements, regardless of whether a felony or
a. Courts cannot do 403 balancing test for 609(a)(2). Admission of this
evidence is mandatory!
b. Dishonesty means deceitful behavior, a disposition to lie, cheat, or
defraud. This is narrowly construed.
i. Bank robbery is not dishonest crime.
4. Evidence of a conviction is not admissible if it has been more than 10 years
since the date of conviction or release, unless the court determines, in the
interests of justice, that the probative value of the conviction, supported by
facts and circumstances substantially outweighs its prejudicial effect.
5. If conviction is pardoned or annulled, then NOT admissible.
6. Juvenile adjudications are NOT admissible, generally.
7. A pending appeal doesn‟t render conviction evidence inadmissible – evidence
of the appeal is admissible.
8. * NOTE: Evidence of similar offenses can be highly prejudicial. The general
rule is that evidence of similar offenses for impeachment purposes under FRE
609(a)(1) should be admitted sparingly, if at all.
9. Remember, under 404(b) evidence of other crimes, wrongs or acts is NOT
admissible to prove the character of a person in order to show propensity.
E. Impeachment by Psychiatric Condition
1. This type of impeachment usually involves testimony that a witness is a
pathological liar. However, it may concern other mental conditions that
would affect the credibility of the witness.
2. SO, evidence of a witness‟s mental disorders that may affect her motives for
testifying is admissible to impeach the witness‟s credibility.
a. For example, a paranoid person may interpret a reality skewed by
suspicions, antipathies, or fantasies.
3. Psychiatric evidence is NOT a collateral issue; it is one of credibility which
must be determined by the jury.
F. Impeachment by Prior Statements – Rule 613 [(801(d)(1)]
1. A witness may also be impeached by showing that he has made prior
inconsistent statements (extrinsic evidence) regarding the matters as to
which he has given testimony.
2. Before a witness‟s prior inconsistent statement can be admitted, it must in fact
be inconsistent with his testimony at trial.
a. Thus, if the witness‟s only testimony is that he does not remember
anything, the prior statement is NOT admissible because there is nothing
with which it can be inconsistent.
3. Rule 613(a) The statement itself (if in writing) need not be shown to the
witness; nor need its contents be disclosed (although it must be shown to
opposing counsel on request).
4. Many jurisdictions limit the foundational questions that must be asked.
a. But, still it is best to show context.
5. It is sufficient if the witness was given an opportunity to explain or deny the
allegedly inconsistent statement. Rule 613(b).
6. NOTE: A prior inconsistent statement by a witness is hearsay and therefore
cannot be used as proof of the facts contained therein (unless falls under an
exception of 803 or 804 or is not hearsay as explained in 801).
a. Its use is limited to impeachment of the witness and the jury must be
b. Remember, prior inconsistent statements made by the witness while
testifying under oath at some prior trial, hearing or other proceeding are
admissible as nonhearsay; as such, they can be used as substantive proof
of whatever was stated. Rule 801(d)(1)(A).
i. Grand Jury testimony can come in.
ii. Prior inconsistent statements are ALWAYS admissible.
7. A witness who has been impeached by a prior inconsistent statement can be
a. Redirect, where counsel can show that the circumstances of the making
of the statement were such that the witness was mistaken, the witness
was misunderstood, or that the prior statement was taken out of context.
b. If the prior statement is written and contains additional statements on the
subject matter, the entirety of the writing can be read to the jury under
the rule of completeness (Rule 106). This may help to explain.
c. If the prior statement was written by someone other than the witness
and adopted by the witness, counsel can show that the recording of the
statement was inaccurate, and that the witness wasn‟t given adequate
opportunity to review and correct the recording.
d. Reputation evidence as to witness‟s integrity and veracity.
e. Evidence of prior consistent statements IS admissible!
i. Under 801(d)(1)(B), prior consistent statements are NOT
hearsay if they are offered to rebut a charge of recent fabrication
or improper influence or motive. Thus, a prior consistent
statement can be used as substantive evidence.
BUT, consistent statement ONLY can be offered to
rebut an alleged motive (improper influence or recent
The prior consistent statement doesn‟t have to have
been made under oath like prior inconsistent statement.
ii. A statement made after the speaker had a motive to testify falsely
(leniency, plea deal) but before the witness testified in court
would NOT be eligible as non-hearsay.
G. Impeachment by Showing Hostility, Bias or Interest.
1. Quite apart from attacking the witness‟s character for truthfulness, the cross-
examiner may seek to impeach a witness by showing that he is biased,
hostile, or has some interest in the outcome of the trial giving him a motive
a. Witness can be biased for as many reasons as there are for one person to
be associated with another, (i.e. family relationships, friendships, similar
economic, social, occupational positions, etc.).
i. However, evidence as to the bias, prejudice, or interest of the
witness’s relatives is generally not admissible to impeach the witness
because one cannot choose his relatives.
Friends bias can be used for impeachment.
ii. Evidence of membership in same organization – the tenets of which
include perjury to protect members – is admissible.
b. Extrinsic Evidence The general rule is that before extrinsic evidence
of bias can be introduced through either the testimony of another
witness or by use of a document, the witness with the alleged bias must
be confronted with that alleged bias on cross and deny it.
c. Bias is different than character evidence. Whereas character evidence
is about one‟s nature or general trait or character, bias is specific and
related to the state of mind of witness.
a. Prejudice is the opposite of bias. It involves a showing as to why a
witness has negative feelings towards a party. Prejudice can be general,
such as disliking people of a certain race or religion, or can be case
b. Extrinsic Evidence Generally, before extrinsic evidence can be used,
the witness with the alleged prejudice must be confronted with the
alleged prejudice on cross and deny it.
4. Interest of outcome
a. Civil cases Interest in the outcome of a civil case usually results from a
pecuniary interest of the witness in the verdict. An interest can be
pecuniary or an expectation of a witness that he will benefit as a result of
b. Criminal Cases The defendant has a liberty interest and his family has
an accompanying economic interest. Government witnesses who testify
pursuant to a negotiated agreement also have a liberty interest in
testifying in favor of the government. For that reason, plea bargains with
government witnesses must be disclosed to the criminal defendant
because of the potential exculpatory nature of this evidence.
c. Extrinsic evidence Extrinsic evidence generally can‟t be used until the
witness with the alleged interest is confronted on cross and denies or
attempts to explain away the interest.
d. It is proper to ask a witness on cross what compensation he has been
promised for testifying.
5. Improper motive of influence
a. Often used in connection with interest in the outcome, improper motive
or influence usually arises where the witness‟s testimony has been
purchased by money or threats.
b. The focus is on the mind of the witness and not the party that calls him.
For example, a belief or hope on the part of the witness that he will
receive favorable treatment will be sufficient to allow admissibility of this
sort of evidence.
c. Extrinsic evidence Extrinsic evidence generally can‟t be used until the
witness with the alleged interest is confronted on cross and denies or
attempts to explain away the influence.
a. The proponent of the witness can show that the alleged bias, prejudice,
interest, or improper motive or influence does not in fact exist.
b. Rehabilitation of the witness that has been impeached can be
accomplished by redirect examination or by the use of extrinsic
c. Rehabilitation may be shown through prior consistent statements made
at a time when the alleged improper motive didn‟t exist.
H. Impeachment by Memory or Perception
1. A witness may be impeached by showing that the witness has an impaired
ability to remember the events in question or by showing the unlikelihood
that the witness can actually remember those items about which testimony
2. Also, a witness may be impeached by showing that the witness had an impaired
ability to perceive the events in question.
a. Matters of perception include the ability to see, hear, smell, or feel some
particular item in question.
OPINIONS, EXPERTISE and EXPERTS
I. Opinion Evidence by Law Witnesses
1. An opinion is an inference from facts observed.
a. The general rule is that the drawing of such inferences is the function of
the trier of fact, so testimony that is the mere opinion or conclusion of
the witness is NOT admissible.
b. BUT, there are a number of situations in which statements that are
conclusions or opinions by the witness are admissible.
i. Either by lay witness or expert.
2. Rule 701 Conclusions and opinions by lay witnesses are admissible
when derived from their personal observation of the facts in issue and when
no better evidence can be obtained.
a. Before a lay witness‟s opinion is admissible, the trial judge must be
i. The witness‟s opinion is “rationally based on the perception of
the witness” (the witness personally observed that about what he
has an opinion), AND
ii. The opinion is “helpful to a clear understanding of his
testimony or the determination of a fact in issue.”
This means that the subject of opinion has to be something
about which normal persons regularly form opinions (i.e
speed, size, and sound) and that opinion testimony is the
clearest way of getting matter to jury.
iii. Courts usually allow lay opinions as to sobriety/intoxication,
speed of moving objects, value of personal property, size, color,
and weight of objects, and time and distance.
b. Modern trend favors admission of opinion testimony and relies on
cross to reveal weaknesses in the witness‟s conclusions.
3. Rule 704 All non-expert testimony in the form of an opinion or inference
otherwise admissible is NOT objectionable because it embraces an ultimate
issue to be decided by the trier of fact.
J. Expert Opinion
1. General requirements for admissibility – trial court must determine:
a. Specialized knowledge helpful to the jury It must appear that the
subject matter at issue goes beyond the everyday knowledge of persons
of ordinary experience and education. [Rule 702]
i. i.e. that some scientific, technical, or other specialized knowledge
would be of assistance to the trier of fact in understanding the
evidence of determining the issue.
b. Witness specially qualified It must appear that the witness whose
opinion is offered has some special knowledge, skill, experience, or other
qualification that would be of assistance to the jury for the purpose
aforesaid. [Rule 702]
c. Proper basis for opinion Finally, the witness‟s opinion must be based
on matters that experts in the particular field reasonably rely upon in
forming opinions regarding the subject matter at issue. [Rule 703]
2. The trial court‟s determination of the above is one of the preliminary matters
as to which the proponent carries the burden of persuasion – unless the trial
court is persuaded as to the witness‟s qualifications, etc., the opinion testimony
is NOT admissible.
3. Usually, expert testimony is one method by which a party may prove its case.
But sometimes expert testimony will be required as a matter of law.
a. Usually when the subject matter is such that the juror cannot determine
liability from common experience.
4. Expert can NOT express a direct opinion that a criminal defendant is guilty
of the crime charged.
a. Expert can offer opinion as to criminal defendant‟s intent (i.e. intent to
5. An expert witness may NOT offer opinions that embody legal conclusions
by including the terms of the statute that embody the crime.
a. Rule 704(a) Abolished ultimate issue rule. Any witness can give
testimony which concludes ultimate issue. Under common law,
testimony could not embrace ultimate issue (using legal language, etc.)
b. Rule 704(b) Exception to 704(a) (“Hinckley Amendment”)
reinstates ultimate issue rule as to mental state of criminal defendant.
6. An expert witness may NOT offer opinions on relevant events based on his
personal assessment of the credibility of another witness‟s testimony.
a. Witness credibility is to be determined exclusively by the jury.
7. An expert witness usually has to disclose the facts or data upon which he
relied in forming his opinion before he may state the opinion itself. Fact or data
may be elicited by:
a. First-hand observations Expert can show to have personally
perceived the facts (i.e. treating physician).
b. Testimony heard in court The expert may be asked if he was in court
and heard the facts as developed by previous testimony, and whether his
opinion is based thereon.
c. Hypothetical Question A hypothetical question may be posed for the
i. Hypothetical questions can NOT (1) include facts that are not in
evidence, (2) be based in part upon another expert‟s testimony,
(3) be argumentative, or (4) include unnecessary facts.
d. Data/Facts outside court The presentation of facts or data to the
expert outside of court and other than by his own perception.
i. Rule 703 permits the introduction of underlying facts or data
necessary to the expert‟s opinion.
ii. Hearsay is not admissible as substantive evidence, only
admissible to explain basis of the expert‟s opinion.
iii. Balancing test from [Rule 703] – 2000 Amendment
probative value of evidence in assisting jury in understanding
expert testimony vs. prejudicial affect.
Rule 403 allows the evidence in unless prejudicial.
Here, the evidence stays out unless its probative
value is very high.
iv. Must be facts or data reasonably relied upon in that particular
8. An expert can NOT bolster his opinion evidence with hearsay (by testifying
that his conclusions were “essentially the same” as those of another expert
who did not testify and whose report was admitted at trial).
a. Witness can say he reviewed the other expert‟s report and even relied
upon it, but he could not testify that the two opinions were essentially
the same. This is hearsay and is not allowed.
9. An expert may base his opinion on underlying information, but the
otherwise inadmissible information can‟t just come into evidence just
because it helped the expert form his opinion.
a. It must still comply with the requirements of Rules 703 and 705.
b. NOTE: Reports prepared for litigation are not of the type reasonably
relied upon by experts in a particular field [Rule 703].
c. Inadmissible, but reliable, information can form the proper basis for an
10. Rule 706 Court can appoint an expert to testify or explain technical
information and advise the court.
K. Real or Demonstrative Evidence
1. Real or demonstrative evidence is evidence that can be directly presented to the
fact finder (i.e. a gun or knife).
a. The testimony of witnesses regarding such evidence is NOT required;
the evidence speaks for itself.
2. Types of real evidence:
a. Original Evidence Real evidence may be the original thing itself
i. Example: the murder weapon in a homicide case.
ii. If it can‟t be brought in court (murder scene), the judge may let
the jury go view it.
b. Prepared evidence Real evidence may be prepared for demonstration.
i. Example: tape recordings, models, sketches, photos, experiments.
c. Direct evidence real evidence may be offered to prove some fact
about the object itself.
i. Example: if the issue is whether the plaintiff was injured,
plaintiff‟s mangled arm may be shown to the jury.
d. Circumstantial evidence Real evidence may also be presented to raise
an inference as to the existence of nonexistence of some fact that is in
3. Problems of Admissibility:
a. Relevancy All real evidence must pass the basic relevancy test in order
to be admitted in evidence.
i. Real evidence may be excluded if it is too prejudicial.
b. Authentication All real evidence must be identified and its connection
with the case explained. Witnesses are called to do this.
c. In making these rulings, trial judges are given wide discretion.
L. Experimental and Scientific Evidence
1. Experiments that are conducted out of court and the results of which are
described at trial by witnesses.
2. Problems with admissibility:
a. Relevancy The biggest problem is usually one of relevancy.
i. The conditions under which the experiment is conducted must
be substantially similar to the facts that existed at the time that
the events in dispute occurred.
ii. When the experiment is technical or complex, the witness
describing the experiment will have to be a qualified expert.
iii. The witness must describe the test, the conclusions and reasons
for them, and the accuracy of the results.
b. Substitute for Relevancy Whether a test is reliable is an issue that
should be discussed under relevancy.
c. Prejudicial Evidence Even if a test or experiment yields relevant
evidence, such evidence may be excluded in the discretion of the judge
due to its prejudicial nature.
3. Specific tests or experiments:
a. Radar test to measure speed When radar is used to measure the
speed of a moving car, this evidence will be admitted if a foundation is
first laid as to the accuracy of the device itself and its operation.
b. Body fluid test Chemical tests for intoxication (blood, urine), whether
voluntarily or involuntarily given, are usually admitted. Blood tests to
prove identity are usually admissible.
c. Lie-detector and truth serums Generally these tests are NOT
admissible in evidence since they are though to be untrustworthy.
However, when such tests are administered by a qualified expert, some
courts will admit the evidence if all parties agree to have the tests taken.
4. Admissibility of scientific evidence:
a. The majority of states still follow the Frye “general acceptance test”:
scientific expert testimony is admissible if the scientific methodology or
procedure is generally accepted within the scientific community.
b. New Test Daubert v. Merrell Dow Pharmaceuticals (U.S. 1993):
c. Scientific knowledge factors (not all factors are required):
i. Can be and has been tested,
ii. Has been the subject of peer review and publication,
iii. Has standards controlling its operation.
iv. Court should consider known or potential rate of error.
v. General acceptance (from Frye).
d. Frye recognizes that judges aren‟t scientists and so let the scientists be the
gatekeepers through their own “general acceptance.”
i. Frye test is inconsistent with FRE‟s liberal approach.
e. Daubert lets the judges be the gatekeepers.
i. The factors are NOT definitive; the trial court has discretion.
ii. Other factors in ACN are helpful too.
f. Daubert extends to not only scientific evidence, but applies to technical
knowledge and all forms of expert testimony under Rule 702 (per
i. The standard of review is abuse of discretion.
g. There must be a Daubert hearing before evidence is admitted under Rule
5. Handwriting and Polygraphy
a. Analysis by a handwriting analyst may or may not be admissible
dependent upon the courts determination that is scientific or non-
i. Experienced handwriting experts may be able to provide an
opinion that is helpful to the jury.
ii. Since Daubert, nine federal courts have questioned the
admissibility of handwriting expert testimony.
iii. There are two stages to such analysis: first stage (pointing out the
similarities and the differences between the handwriting samples)
and second stage (evaluating the similarities and the differences).
b. Basic accuracy of the polygraph test is still open to debate but results of
polygraph exam are NOT inadmissible per se.
i. When parties stipulate in advance to admissibility of polygraph
results, the trial court should admit evidence.
Stipulation should include: (1) the manner in which the test
is conducted, (2) the nature of the questions asked, (3) the
identity of the examiner, and (4) the purpose for which the
evidence will be introduced.
ii. Polygraph evidence is also admissible to impeach or
corroborate the testimony of a witness at trial.
c. BUT, there is no consensus that polygraph evidence is reliable.
i. Trial court retains discretion.
6. Statistical Evidence
a. When a certain event cannot be proved by direct evidence, the parties
may resort to proof based on probabilities.
i. Such evidence is not favored, even thought the standard of
proof in civil case may be “more likely than not.” The courts
require more certainty than a mere statistical likelihood.
ii. However, if in a given case the probability evidence is such that it
approaches certainty, the courts will admit the evidence.
b. Statistical evidence is NOT admissible in criminal cases.
i. “Mathematical odds are not admissible as evidence to identify a
defendant when the odds are based on estimates the validity of
which have not been demonstrated.”
c. Blood grouping tests for paternity long been recognized; covered by
i. Most courts admit such evidence if a foundation is laid first.
ii. Some courts won‟t admit results if the results are not negative.
7. Eye Witness Identifications
a. An expert witness may testify about problems with eyewitness
b. Variables affecting accuracy of eyewitness identifications:
i. The forgetting curve is very steep. Immediate identification is
much more trustworthy than long-delayed identifications.
ii. The effects of stress, unconscious transfer of identification, and
assimilation of post-event information.
iii. The fact that the witness‟s degree of confidence is unrelated to
8. Controversial “Syndrome” Expert Testimony
Battered women syndrome (mostly defense)
Battered child syndrome / effects of sexual abuse (prosecution)
Rape trauma syndrome (prosecution)
Children‟s memory and testimony (defense)
The basic premise is that people act in a certain way and the behavior of individuals in certain
situations may in fact be counterintuitive to what the lay juror may expect. For example, in the case
of a battered woman, the jury may not understand why the woman did not leave and the witness
may testify about learned helplessness.
9. DNA Evidence
a. Two types of genetic testing: RFLP and STR.
b. DNA evidence is found at the crime scene and is called transfer
evidence – the defendant transferred his DNA to the victim or the
crime scene or the victim transferred her DNA to the defendant.
i. Note that there are different time frames for the viability of such
c. See class notes for collection, admission and trial processes.
V. PRIVILEGES – ARTICLE V
A. Scope and Effect of Privileges:
1. Privileges keep out helpful evidence in situations where it is considered more
important to keep certain information confidential than to require disclosure of
all information relevant to deciding issues in case.
2. Privileges are generally disfavored. The only exception to the general rule that
the public has a right to “every man‟s evidence” is when recognition of a
privilege would promote a public good transcending the public‟s need for
3. Rule 501 provides that federal courts shall apply the rules of privilege
developed at common law except that they must look to state rules of privilege
in diversity cases.
4. Only the holder of the privilege (person whose interest or relationship is
sought to be protected) can claim the privilege.
a. A privilege may also be asserted by someone authorized to do so on
behalf of the holder
b. If the holder is not present, the court or a motion by any party must
exclude testimony which is subject to a claim of privilege.
c. Only the holder can complain when the disclosure of the privileged
matter was compelled erroneously or made without opportunity to claim
5. When a communication is claimed to be privileged, it must always be shown
that it was made in confidence.
a. By failure to object As with other exclusionary rules of evidence,
privileges are deemed waived if not raised by appropriate and timely
objection when the testimony is first offered.
b. By consent Any person entitled to claim a privilege may waive it by
i. Failure to claim the privilege
ii. Contractual provision
iii. Voluntary disclosure
c. A waiver of the privilege by one holder does NOT affect the right of the
other to claim the privilege.
d. There is no waiver if the disclosure was compelled erroneously or made
without opportunity for the holder to claim the privilege.
7. Eavesdroppers As long as the holder of the privilege was not negligent,
there is NO “waiver” of the privilege.
B. Attorney-Client Privilege
1. A client of an attorney has a privilege to refuse to disclose, and to prevent
the attorney or anyone else from disclosing, confidential communications
between the client and the attorney related to the rendering of legal
a. Encourages full disclosure by the client to the attorney to facilitate
proper legal counsel.
b. Privilege belongs to the client. Only the client can waive it.
c. Client has an absolute privilege, even after he dies.
2. Communication must have been made to a member of the Bar, or to an
employee for transmission to the lawyer.
a. Actual employment of the attorney is NOT required.
b. Communications are protected even if the attorney does not accept the
case or the client does not hire the attorney.
3. Privilege covers communications that relate to a fact the client told his
attorney primarily for the purpose of securing either an opinion on law, legal
services, or assistance in some legal proceeding.
a. Doesn‟t extend to non-legal matters (i.e. business advice, court time)
4. Communication between client and attorney must have been intended to
convey a specific meaning.
a. Attorney‟s observations of client‟s condition, identity of the client, hiring
of lawyer, the amount of fees and payment thereto, and the fact that a
consultation took place are NOT privileged.
b. Documents provided by client for attorney are NOT privileged unless
prepared specifically to give client information.
c. Documents prepared by attorney that reveal the attorney‟s mental
processes in evaluating information are protected under work-product
i. Only applies to documents made in anticipation of litigation.
d. A cover letter may be protected, but underlying documents probably
aren‟t if they are otherwise discoverable.
e. NOTE: Underlying facts are NOT protected, only communications.
5. The “client” who communicates with the lawyer may be a natural person, a
corporation, or any similar entity.
a. Any employee‟s communications with the corporation‟s counsel are
protected by the corporation‟s privilege, not the employee‟s, when the
employee acts in a representative capacity.
b. Federal Courts (Upjohn) Employees at any level could, acting within the
scope of their employment, cause serious legal problems for corporation.
c. Control Group Test only those who control the corporation fall
within the attorney-client privilege. Many states still use this.
6. Confidentiality Communication must have been made outside presence of
strangers under circumstances that show that the parties intended the
communication to be confidential.
a. Presence of authorized third parties (relatives, joint clients) doesn‟t ruin
b. Use of agents (secretaries, translator) doesn‟t destroy privilege either.
c. Communications to counsel of co-attorney or co-defendant are also
d. If an attorney hires a physician to examine the client in preparing for
litigation, the physician‟s report is NOT privileged under physician-
patient privilege because not treatment is contemplated.
i. BUT, the physician could be said as acting as the client‟s agent
and communications to attorney may be privileged (if doctor isn‟t
going to testify).
7. Exceptions public policy reasons privilege not applicable.
a. Joint clients if litigation later arises between clients.
b. Breach of duty if either client or attorney breaches duty, attorney may
testify as to relevant communications.
c. Proposed crime A communication made to enable either the client of
the attorney to commit a crime or fraud is NOT privileged.
i. Public policy does not require protection of a person who takes
counsel on how he can safely commit a crime.
ii. A party seeking in camera review of evidence under the crime-
fraud exception must make a threshold showing that such
review is appropriate.
iii. BUT, crime-fraud exception only applies to seeking advice about
“I killed my wife,” is protected because it is a completed act.
C. Doctor – Patient Privilege
1. A patient, whether or not a party to the action, has a privilege to refuse to
disclose, and to prevent his physician from disclosing, any information
acquired by the physician in confidence while attending the patient.
a. This is not common law, only statutory.
b. Some states only allow this privilege in civil actions.
2. This is based on policy reasons of encouraging full disclosure between
physician and patient so as to aid in the effective treatment of illness.
3. The privilege belongs to the patient and if waived, the doctor might have to
a. Doc is authorized to assert privilege on patient‟s behalf if patient is
b. If the patient is incompetent, privilege may be asserted by his guardian.
a. The privilege applies if the patient reasonably believes the person whom he
is consulting to be a licensed physician.
b. The privilege applies not only to „communications‟ between doctor and
patient, but also to any information obtained by the doctor in the
course of examination of treatment that would normally be regarded
c. The privilege applies only to information obtained by doctor in the
course of consultation for the purpose of obtaining treatment.
i. SO, when doc is appointed for examination to testify in court
(not for treatment), there is NO privilege.
5. Exceptions Sometimes limited to civil actions; principal application is in
domestic relations cases.
a. Personal injury suit by patient no privilege in personal injury suit
brought by plaintiff.
b. Competency, guardianship, and commitment proceedings
affecting the patient no privilege in these proceedings.
c. Deceased patient Privilege does NOT apply in will contests, or
validity of deed of deceased patient, or any proceeding in which all
parties are claiming through the deceased patient.
d. Malpractice cases NO privilege when patient asserts claim against
e. Illegal purposes NO privilege if services of doctor were sought to
assist anyone to plan or commit a crime or tort.
a. By contract contractual provision waiving privilege are upheld.
b. By calling doctor to testify patient calling doctor to testify.
c. By calling patient to testify if patient testifies, doctor can too.
d. Disclosure to third party unnecessary third party presence.
1. The patient can refuse to disclose confidential communications between
him and his psychotherapist made for the purpose of diagnosing or treating
his mental or emotional condition.
a. The patient can also prevent testimony by the psychotherapist or by any
person participating in such diagnosis or treatment (i.e. possibly members
of therapy groups, patient‟s family).
2. Privilege is also based on imperative need for confidence and trust for
a. Recognizing a privilege in this area serves important private interests.
b. It also serves the public interest by facilitating treatment of mental and
emotional problems generally.
3. The privilege applies to ANY litigation.
4. Psychotherapist need not be a licensed physician.
a. Privilege applies to certified psychologists, psychiatrists, and social
workers as well.
5. Broader than doctor-patient privilege – fewer exceptions:
a. Commitment proceedings against patient If the psychotherapist
has determined that the patient is in need of hospitalization for mental
illness, she may testify.
b. Court-ordered examinations communications by patient in the
course of a court-ordered examination are NOT privileged.
c. Mental condition in issue When patient has placed his mental
condition in issue (claiming insanity in a criminal case), NO privilege.
E. Privilege Based on Marital Relationship
1. There are two separate marital privileges: testimonial privilege and marital
2. Testimonial Privilege: The witness spouse is the holder of the privilege and
cannot be compelled to testify in a criminal trial against his or her spouse.
Note that the witness spouse can choose to testify (Trammel).
a. The old rule was the both spouses held the privilege but that has been
abrogated. This rule evolved from the Common Law of incompetancies.
The husband and wife were considered one person.
b. Once that privilege is invoked then the witness spouse will not testify
c. They must be married at the time of the trial – if the spouses are divorced
then there is no privilege. Note that this could apply to a common law
marriage dependent upon the law of the state in which the district court is
d. This only operates in the criminal context and only when the spouse is the
defendant – the rationale is that it is unseemly to have one spouse put
another spouse in jail.
e. There is an exception for crimes that happen within the family (i.e. a crime
against the spouse or a crime against the children) – in this context the
privilege does not operate.
f. Note that the prosecution may subtly coerce a witness spouse to testify (i.e.
they could be offered immunity).
3. Marital Confidences Privilege: This privilege applies to confidential
communications between the spouses made during the marriage - if the
confidences weren‟t made during the marriage then there is no privilege.
a. Note that this privilege is held by both spouses.
b. Even if they get divorced, as long as the confidences were made during the
marriage, those confidences are privileged.
c. This privilege applies in civil cases and when one spouse is not the
d. Observed behavior during the marriage is not protected by the marital
4. Note that even if one spouse discloses a marital confidence to a third party some
courts have held that that does not waive the privilege.
5. If the communication is made in the presence of third parties then it is not
6. A spouse cannot refuse to testify if they have exculpatory information – generally
the other spouse can compel them to testify. Once the witness spouse testifies
about the exculpatory information, most courts will hold that privilege is waived
regarding any inculpatory information.
7. If the marriage is valid in the state in which the spouses reside, then the marital
F. Parent-Child Privilege
1. There is NO Common Law parent-child privilege. Only four states have one.
2. There is no public policy rationale to support a parent-child privilege because
parents and children will confide in each other regardless of the existence of a
A. The Best Evidence Rule
1. Rule 1002 Requires a party who seeks to prove the contents of a document,
recording or photograph to offer in evidence the original copy of that
document unless the absence of the document can be adequately explained.
a. A “document” within the meaning of the rule includes a letter, contract,
receipt, a book or account, a blueprint, or an X-ray.
b. Under Rule 1001, “writing” includes photograph, motion picture,
recordings in any form, and any other data compilation.
c. Example – a doctor‟s testimony about an X-ray is inadmissible without
the X-ray itself being introduced as evidence.
2. Rationale Slight differences in written words or symbols may make a vast
difference in meaning. Production of the original prevents fraud or mistake
(which might occur if oral testimony or copies were used instead).
3. Best evidence rule is waived by failure to make a timely and specific objection.
4. The rule only applies to private writings. Properly authenticated copies of
any official document or recorded writing may be used instead of original.
5. Rule applies only when the secondary evidence is offered to prove the
contents of an original writing.
a. It does not apply when the writing itself is “not closely related to the
controlling issues.” Rule 1004(4)
b. Example: when the issue was earnings of the partnership and not the
content of the books, the best evidence rule doesn‟t apply.
6. The best evidence rule applies to contents of writings (all printed and written
documents of any type whatsoever).
a. Where the prosecution was not trying to establish the contents of a
writing, but rather what the defendant said, the rule doesn‟t apply.
b. An eavesdropper can testify on a conversation recorded instead of
admitting the actual recording (but worry about hearsay).
7. Under Rule 1003, a duplicate is admissible as the original unless:
a. The authenticity of the original is genuinely disputed, or
b. It would be unfair under the circumstances to admit the duplicate instead
of the original (as when only part of the original was reproduced and the
rest is necessary for cross-examination).
8. Rule 1001(4) A duplicate includes a carbon copy, photostatic copy,
microfilm reproduction, etc.
9. The best evidence rule does NOT apply if it is impossible or impractical to
produce the “original writing” in court.
a. Lost or destroyed – Rule 1104(1) When the original writing has been
lost or destroyed without the fault of the party offering the secondary
evidence, the rule doesn‟t apply.
b. Unobtainable – Rule 1104(2) If the original writing is in the
possession of a third person who is outside the state (and hence outside
the court‟s subpoena power), the rule doesn‟t apply.
i. Under the FRE, a writing is unobtainable only when it cannot be
obtained “by any available judicial process or procedure.”
c. Too voluminous – Rule 1106 If the original writings are so
voluminous that it would be impractical to produce them in court, the
trial court may hold the rule not applicable and allow secondary evidence
(summaries), provided the originals are available to an adverse party.
d. In possession of opponent – Rule 1004(3) When the original writing
is in control or possession of the adverse party, and he fails to produce it
upon reasonable advance notice.
i. Notice is usually in separate pleading – “notice to produce”.
10. When best evidence rule doesn‟t apply, and secondary evidence as to
contents may be received, the majority view prefers a copy of the original
(rather than oral testimony as to contents).
a. The minority view (FRE) doesn‟t have any rules for preference. The
proponent may use any kind of evidence. The kind of secondary
evidence offered goes only to the weight, not to the admissibility of
11. Where the party against whom the written evidence is offered testifies to its
contents, the best evidence rule won‟t apply. [Rule 1107]
1. Before any writing (or secondary evidence of its content) may be received in
evidence, it must be authenticated – the proponent must offer a foundation
of evidence sufficient to support a finding that the document is genuine and
what it purports to be. [Rule 901]
a. This is NOT required if the genuineness of the document is admitted
in the pleadings or by other evidence or if the adverse party fails to raise
a timely objection to lack of foundation.
b. Authentication requires only enough evidence to establish a prima facie
showing that the document is what it purports to be.
i. If its genuineness is disputed, it is up to the jury to decide by a
preponderance of the evidence.
2. A court may NOT admit a purportedly official document without testimony
from the custodian of the document or any circumstantial evidence of its
3. In most cases, the proponent of the writing must produce evidence apart
from the document itself to show that it is genuine and is what it purports to
a. There is no limit on the kinds of evidence that may be used for this
purpose, but rule 901(b) illustrates examples of authentication.
4. Direct evidence of authenticity
a. Testimony by subscribing witness – 901(b)(1).
i. Only method at common law.
ii. Under Rule 903, this is NO longer required (except to
b. Testimony of other witness – [901(b)(1)].
c. Opinion testimony as to handwriting identification [901(b)(2)-(3)].
i. Such evidence may be given by any person familiar with the
handwriting of the supposed writer, or by expert testimony, or
even by having the trier of fact compare it with some admittedly
d. Opinion testimony as to voice identification – [901(b)(5)]
i. Any person familiar with the speaker‟s voice may authenticate a
recording of the voice by stating her opinion as to identification.
5. Circumstantial evidence of authenticity
i. It may be shown that the party against whom the writing is
offered has in the past either admitted its authenticity, or acted
upon it as if it were authentic.
b. Authentication by content – 901(b)(4)
i. A writing may also be authenticated by a showing that it contains
information that is unlikely to have been known to anyone other than the
person who is claimed to have written it, or is written in a manner
unique to that person.
ii. A writing may be authenticated by evidence that it was received in
response to a communication sent to the claim author.
iii. Likewise, when a series of correspondence between two persons
is established, and a letter is shown to fit in as a connecting link between
other letters in that series, that is sufficient to authenticate the letter
as being part of that series.
c. Style or manner of expression – 901(b)(4)
i. Identification of the writer‟s style or manner of expression (i.e.
the use of certain words, phrases, abbreviations, or idioms that
are shown to have been unique to the person who is claimed to
have written it.
d. Telephone messages – 901(b)(6)
i. Analogous doctrines are applied to authenticate telephone
ii. Self identification is NOT required when one answers the phone.
6. Documents that are Self-Authenticating Certain kinds of documents or
records require no independent proof of authenticity.
a. Merely producing one of these documents establishes prima facie its own
b. The burden then shifts to the adverse party to prove that the document
is not what it purports to be or otherwise is NOT authentic.
c. Examples: official documents under seal, notarized documents, certified
copies of public records, etc.
VII. BURDEN OF PROOF AND PRESUMPTIONS
A. Burden of proof has two elements:
1. Burden of persuasion “Burden of proof” is most commonly used to
describe the extent of the party‟s obligation to produce evidence to prove the
a. Obligation to establish by evidence a requisite degree of belief in the
mind of the trier of fact. The fact finder determines whether this burden
is satisfied and renders a verdict accordingly.
2. Burden of „going forward‟ (production) A party has an obligation of
introducing or going forward with probative evidence if that party bears the
burden of persuasion on that issue.
a. The party must come forward with enough evidence where a reasonably
jury could find for the party on that element.
b. The judge determines if the party with the burden of production has
produced enough evidence to be in the range where a reasonable jury
could find in its favor.
c. Once a case goes to a jury, the burden of production drops out, and then
the party has to worry if it has persuaded the jury by the burden of
B. Burden of Proof in Civil Cases:
1. The plaintiff has the burden of production on most issues.
2. Once the plaintiff has met the burden of production, the defendant has three
a. Offer no evidence and rely on the plaintiff‟s failure to meet the burden of
b. Introduce evidence to contradict or undermine plaintiff‟s evidence.
c. Introduce evidence of affirmative defenses.
3. If the plaintiff does not present enough evidence on an issue, there will be a
directed verdict for the defendant.
4. If the plaintiff presents some evidence, the issue will go to the jury.
5. If the plaintiff produces an overwhelming amount of evidence, there will be a
directed verdict for the plaintiff.
6. Preponderance of the evidence The most generally applicable burden of
a. Applies to almost all issues in civil cases, to preliminary fact
determinations made by the judge, and even some issues in criminal cases
such as venue and statute of limitations.
b. The standard requires such evidence as, when weighed against that
opposed to it, has more convincing force, and is thus more believable
(i.e. more likely than not, or 51%).
i. It is essentially a balancing – whichever side produces the greater
weight of evidence satisfies the burden.
ii. It is NOT enough that mathematically the chances somewhat
favor a proposition to be proved.
c. The party having the burden of persuasion must produce a
preponderance of evidence to persuade the fact finder.
i. Must be more than evidence equal to opposing side.
7. Clear and Convincing Evidence For certain types of issues, a proponent
must present clear and convincing evidence, which is a higher burden than the
preponderance of the evidence standard requires.
a. Typically fraud allegations must be proven by clear and convincing.
C. Presumptions Generally
1. The law may require the fact finder to make a deduction from particular
facts in evidence in the absence of a contrary showing. This legal device is
called a presumption.
a. The presumption is the fact automatically proved by the proof of some
b. Presumption is NOT evidence but a deduction that the fact finder must
draw particular evidence unless contradicted.
2. Presumptions are short cuts for proving an issue because the basic fact
leads to a presumed fact.
a. Once the party established the basic fact, they do not have to prove the
b. Example: letter is addressed and mailed (basic facts): letter is received
3. Presumptions shift the burden of production to the other to meet or rebut
a. They are essentially a procedural tool.
4. Under Rule 104, the judge determines the preliminary question of whether
the basic fact is established (by a preponderance of the evidence standard /
more likely than not standard).
5. Reasons for presumptions:
a. Consistent experience over time make the probability of the presumed
fact‟s existence strong.
b. Practicability (i.e. to save time).
c. Public policy.
d. Fairness and access to proof issues.
6. There are a large number of presumptions and they change over time.
7. There are different kinds of presumptions:
a. Irrebuttable (conclusive) Presumption This is a mandatory
“presumption,” but in reality it is an absolute rule, not a presumption.
i. These are rules of substantive law (often statutory) that cannot be
contradicted by contrary evidence.
ii. Example: “If a woman is pregnant, it‟s presumed to be her
husband‟s” (for policy and logic reasons).
iii. Two equally important (policy and logic), but conflicting, then
conclusive presumptions should both be disregarded.
b. Rebuttable Presumption This is a mandatory inference unless
i. Rebuttable presumptions have the effect of placing upon the
opposing party the burden of going forward with the evidence.
ii. If the opposing party does so, the case goes to the fact finder.
iii. There are two views as to what happens with the presumption in
c. Permissive Inference Is not really a presumption, but is an
i. Is just an adding up of the facts to make an inference.
ii. This is the standard way of proof.
D. Thayer Presumptions (a.k.a. “Bursting Bubble”):
1. A presumption is merely a preliminary assumption of fact that disappears once
contrary evidence is introduced.
a. Rule 301 follows this approach, except that in diversity cases, state laws
are followed (302).
2. When the opponent of a presumption introduces evidence contradicting or
rebutting the existence of the presumed fact, the bubble of the presumption
bursts and the presumption disappears.
a. Jury decides the issue as if the presumption had never existed.
b. Even if nobody believes the evidence admitted to rebut the presumption,
its receipt is sufficient to kill any inference raised by the presumption.
3. The Common Law follows the Thayer view that the after party introduces
evidence of a basic fact, presumption shifts only the burden of production
and NOT the burden of persuasion as to disproving the existence of
4. If plaintiff produces enough evidence to prove a basic fact and defendant fails
to sufficiently rebut it, the court will instruct the jury to find for the
proponent on that issue or direct a finding on such point.
a. Example “Because the letter was addressed to B and mailed by A, you
shall find that the letter was received by B.”
5. If the basic facts established and defendant produced counter-evidence on
the basic fact:
a. Example “If you find the letter was addressed to B and mailed by A,
you should find that B received the letter.”
6. If the basic fact is established and Δ produces counter-evidence rebutting
the presumed fact:
a. Judge can choose to give no instruction (since the presumption
b. Judge can give instruction about permissive inference. “If you find the
letter was addressed to B and mailed by A, you may (but are not required)
to find that the letter was received by B.”
E. Morgan Presumptions
1. Morgan presumption holds that a presumption is evidence, so that even if
contrary evidence is presented, the fact finder can weigh the presumption
against the conflicting evidence.
a. Theoretically a difficult view because it allows the jury to weigh a legal
conclusion against evidence.
b. Morgan cares if the bubble bursts on policy grounds because the
presumption is too important to disappear and therefore the burden of
persuasion should shift.
2. The Morgan presumption shifts the burden of production and persuasion
to the Δ once the Π produces evidence of the basic fact.
3. In most cases, there is NO difference between the two presumptions, except
when evidence rebutting presumption (not basic fact) is introduced.
a. When there is rebuttal for the presumption and no-contrary
evidence for basic facts “You should find B received the letter in
question unless you believe its non-receipt is more probable than its
F. Comparison of Morgan and Thayer (rule 30): If proponent introduces evidence that
could support a finding that a presumption‟s basic fact exists:
1. Opponent‟s response: No evidence on basic or presumed fact:
a. Thayer (Rule 301) proponent entitled to directed verdict on the
b. Morgan same.
2. Opponent‟s response: Evidence that could support a finding that the basic
fact does not exist (i.e. proof never mailed the letter):
a. Thayer (Rule 301) Jury instructed to find the presumed fact if it finds
the basic fact.
b. Morgan same.
3. Opponent‟s response: Evidence that contradicts the existence of the
presumed fact (i.e. proof never got letter):
a. Thayer (Rule 301) No jury instruction requiring a finding; possible
instruction on allowable inference from the Π‟s evidence.
b. Morgan Jury instructed to find the presumed fact UNLESS it is
persuaded that the presumed fact does NOT exist.
4. Thayer‟s approach (“bursting bubble”) shifts the burden of production but
NOT the burden of persuasion.
G. Presumptions in Criminal Cases
1. Three underlying constitutional principles:
a. Prosecution must bear the burden of proof (beyond a reasonable
doubt) on every element of the crime.
i. Burden of proof can NOT be shifted to the Δ for any element of
b. NO directed verdicts for prosecution are allowed.
c. Δ has a right not to testify.
i. Burden of production cannot be shifted when it would impinge
on the Δ‟s 5th Amendment rights.
2. But, the government can amend the statute and define the criminal law
however it wants.
3. Mandatory presumptions are unconstitutional (Ulster v. Allen)
4. Permissive inferences are constitutional (Ulster)
a. All this really amounts to is a jury instruction to help guide the jury‟s
5. Two-step process for presumptions in criminal cases:
a. The presumption must be rational. There must be a “reasonable
nexus” or a “rational connection” between the basic fact(s) and the
b. See if the proposition is “more likely than not” in the particular case.
6. Jury instructions should be clear to use permissive language:
a. Example: Jury should consider all evidence about whether the was
under the influence of alcohol in such a way to impair him, including his
blood alcohol level. If you find he was under the influence of alcohol,
you are permitted to infer from his blood alcohol level that he was so