Fall 2018 → Evidence (Lund) Wade

→ FRE401: Definition of Relevance

1. Evidence is relevant if it has “any tendency to make a fact more or less probable than
it would be without the evidence AND the fact is of consequence to the
When discussing determination of the action.”
relevance on essay, a) Any tendency to make a fact more or less probable (probativeness)
use the words “ANY
TENDANCY” - Evidence doesn’t need to be conclusive proof, just needs to make a material fact
more/less probable
b) Must relate to fact that is of consequence (material)
If D stipulates to a - Has to be something that matters…look to substantive law
fact: doesn’t make c) IRRELEVANT if fails to meet either one of these requirements ↑
evidence irrelevant!!
But can come into 2. 3 questions to ask when examining relevance:
play in a 403 a) What fact or proposition is the evidence being used to prove?
analysis of b) IS that fact/proposition one that you are allowed to prove in the case? Ie, is it material
“probative value of
evidence - Fact doesn’t have to be disputed to be relevant, just has to be material
substantially c) Does the evidence help in proving or disproving the proposition? Ie, is it probative
outweighed” → FRE104: Conditional relevance
because probative
value may be 1. Evidence may be relevant but only if a particular fact is shown to be true
minimal if already2. Jury decideds conditional evidence, whether fact was proven or not…by Preponderance
stipulated to fact 3. Judge is gatekeeper to determine whether sufficient evidence has been introduced to
allow the jury to make the required finding of conditional relevance
→ FRE402: Relevant evidence admissible
1. All relevant evidence is admissible, except as otherwise provided... Evidence which is not
relevant is not admissible.
a) Relevant→admissible unless otherwise provided by C, statute, other rule
b) Not Relevant→inadmissible
→ FRE403: Exceptions to admissibility of relevant evidence
1. Although relevant, evidence may be excluded if its “probative value is substantially
If asked about relevance outweighed by the danger” of unfair prejudice, confusion of the issues, or misleading
on essay, should NOT the jury, or by considerations of undue delay, waste of time, or needless presentation
address 403!
Q ex) should relevance cumulative evidence.
objection be sustained: - It must substantially outweigh…not just a little, not just tip the scale
401 & 402 b) Saying EVEN if it IS relevant, should be excluded
c) Balancing test: Is probative value SUBSTANTIALLY outweighed by danger?
- Unfair prejudice: all evidence is unfair, so must be UNFAIR
- Confusion of the issues
- Misleading the jury
- Undue Delay
- Waste of time
- Needless Cumulative evidence
→ FRE105: LIMITING INSTRUCTION
If conclude evidence
admissible for one
1. When evidence is admissible as to one party or for one purpose but not admissible as to
purpose but not another party or for another purpose is admitted, the court, upon request, shall restrict the
another…need evidence to its proper scope and instruct the jury accordingly
limiting instruction
a) “evidence is admitted to show ________ but not to show negligence in any way”
→ FRE407: Subsequent Remedial Measure
Applies only to
measures taken
o When measures are taken that would have made an earlier injury or harm less likely
AFTER event…doesn’t to occur, evidence inadmissible to prove:
prevent measures ▪ Negligence
taken BEFORE
1
Fall 2018 → Evidence (Lund) Wade
▪ Culpability
▪ Product defect
▪ Need for warning
o BUT MAY admit evidence for another purpose SUCH AS impeachment, or if
disputed: ownership, control or feasibility of precautionary measures
▪ Feasibility: allowed for this purpose only if D says couldn’t have done it
another way but then they did
→ FRE408: Compromise: only applies to disputed CLAIM
o Evidence not admissible by either party to prove or disprove the
▪ validity
▪ or amount of disputed claim
▪ or to impeach by a prior inconsistent statement
▪ BUT MAY ADMIT for another purpose such as
• Proving witness’ bias or prejudice
• Negating contention of undue delay
• Or proving an effort to obstruct a criminal investigation
o If make offer to settle a disputed claim or I agree to settle…during settlement
discussions I make any statements, NONE can be used against me to show liability
o If no claim made at the time offer is made, rule does not apply.
▪ Doesn’t have to be a lawsuit…if lawyers are involved, claim against insurance
company, etc.
→ FRE409: Medical Expenses
o Evidence of promising to pay or offering to pay medical/hospital expenses resulting
from injury is not admissible to prove liability for the injury
o Only applies to injury, not offer to pay for other damage
→ FRE410: Pleas
o Inadmissible evidence (in civil or criminal case) AGAINST THE D who made the
pleas or participated in plea discussions:
▪ A withdrawn guilty plea
▪ Nolo contendere plea
▪ Statements made w/ attorney for prosecuting authority if discussions did NOT
end in guilty please or result in later withdrawn guilty plea
o If D pleads guilty, both guilty plea and conviction and any statements made during
the plea discussions may be admissible against D in later cases.
→ FRE411: Liability Insurance
o Evidence that a person was/was not insured against liability is not admissible to prove
▪ Negligence
▪ Or wrongful conduct
▪ BUT MAY ADMIT for another purpose such as
• Proving witness’ bias or prejudice
• Or proving agency, ownership or control
o Applies to LIABILITY insurance only, not other types of insurance
▪ Car liability for others’ damage/injury
▪ Malpractice insurance
▪ DOES NOT bar life insurance, house insurance or insurance that covers own
loss

2
 Fall 2018 → Evidence (Lund) Wade

CHARACTER EVIDENCE
Rule 404 (lack of relevance is NOT a reason to prohibit against use of character or other acts)
404 prohibits using evidence to show character for purposes of showing action in conformity
with that character. NO PROPENSITY REASONING!!
- Applies in civil and criminal cases
- Applies to attempts to prove plaintiff’s AND defendant’s character
- Rule itself doesn’t’ define character.
2 steps:
1. Am I allowed to prove character? 404(a)
2. How can it be proven? 405(a) and 607-609

Rule 404 character (a); crimes or other acts (b)

“(a)(1) Prohibited Uses. Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion
the person acted in accordance with the
character or trait.
• CANNOT use evidence of a character
trait to show someone acted this way
on this occasion…propensity rule
doesn’t allow this use!
• Evidence someone is honest in past
can’t be used…that someone is the type
of person to DUI to show they did that this type…that someone is the type of
person to commit a violent act to show they acted violently this time
• Can’t use general evidence someone is truthful, honest, etc
• 3 exceptions to ban on character evidence;
1. character of D in criminal case404(a)(2)(A)
2. character of alleged victim in a criminal case 404(a)(2)(B)
3. character of witnesses 404(a)(3) and 607-609
4. Also exception for sex offense/child molestation cases Rule 412-415
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case (cannot offer character evidence in civil):
(A) a defendant may offer evidence of the defendant’s pertinent trait, and
Prosecution can NOT
if the evidence is admitted, the prosecutor may offer evidence to rebut it;
be first to offer
character evidence!! (B) subject to the limitations in Rule 412, a defendant may offer evidence
D must : of an alleged victim’s pertinent trait, and if the evidence is admitted, the
-put his character prosecutor may:
“in issue” (i) offer evidence to rebut it; and
OR (ii) offer evidence of the defendant’s same trait; and
-attack victim’s • For self-defense, D can offer evidence the victim is a violent person by
character reputation and opinion…NOT bad acts. Prosecution can rebut and offer
evidence of D’s same trait and on cross ask about relevant specific acts.
• Prosecution CANNOT present evidence of victim’s good character until D
attacks that good character.
• **on exam: even if D doesn’t put in any evidence of his own character, by
attacking the victim he opens up to be attacked on SAME character trait. D
3
Fall 2018 → Evidence (Lund) Wade
says victim is a violent person…prosecution can put in evidence D is a violent
person.
(C) in a homicide case, the prosecutor may offer evidence of the alleged
victim’s trait of peacefulness to rebut evidence that the victim was the first
aggressor.
• Once D has “opened the door”→prosecution can:
1. call its own character witnesses to testify through reputation or opinion
that D has bad character. 404(a)(2)(A,B)→prosecutor may offer evidence
to rebut but 405(a) limits this to reputation or opinion only.
2. By attacking the character for truthfulness of the D’s character witness
in ways allowed by 607-609 as specified in 404(a)(3)
▪ While D’s character witness is on the stand, try to impeach that
GOOD witness by showing they’re a liar, etc.
FAITH! → 3. By asking D’s character witness on cross-examination if he/she has heard
Must have about specific acts of bad conduct by the D. See 405(a) last sentence that
Reasonable says court may allow relevant specific instances on cross.
Basis to ▪ Can only ask “have you heard that…”
believe act ▪ Can ask about prior convictions or prior arrests or bad acts D was
occurred!! not arrested for! But 403 may keep it out!
▪ Prosecutor is bound by witness’ answer!!
▪ No extrinsic evidence that D actually committed the bad acts.
(3) Exceptions for a Witness. Evidence of a witness’s character may be
admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
• Refers to ANY ACTS other than those directly at issue in this case
• Must have good faith basis to ask about other acts: reasonable belief acts
were committed
• Standard for introducing other acts: must show by preponderance of the
evidence that the other incident actually happened
• Conditional relevance issue governed by R104(b)
• Reverse 404(b) analysis: allows D to use similarities between crimes to
show identity, specifically that “it wasn’t me”.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.
• Can’t give evidence of specific acts/crimes committed before or after the
crime charged
• Other acts don’t have to be crime or bad in any way
(2) Permitted Uses; Notice in a
Criminal Case. This evidence may be
admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
(not exhaustive list) “Miami cop”
• gives circumstances where you
MAY/discretionary offer evidence of

4
Fall 2018 → Evidence (Lund) Wade
a person’s other acts in order to prove something OTHER THAN the person’s
character.
- Whenever judge admits evidence under 404(b)(2)→D should request, and
limiting instruction given! Rule 105 ex) evidence is admissible only to show the
D had the necessary know-how to commit the crime, not to show that he is the
sort of person to commit a crime like this (sample instruction pg 156). If judge
doesn’t think the limiting instruction will be effective, can exclude under R403
- **on exam do NOT refer to 404(b)(2) as an exception because it’s NOT
exception to the ban on character evidence because they DO NOT INVOLVE
PROVING CHARACTER AT ALL!!. Aren’t using to show character so proving
something else.

“Signature crime” evidence…BE CAREFUL WITH THIS!!

• The logic behind evidence of modus operandi is not “this is the defendant’s sort of
crime” (because that would be propensity reasoning).
• Rather, it is “this could not be anyone else’s crime,” because the method of committing
the crime was so unique.
• Similarities between the two crimes must be so distinctive that the inference that
nobody else could have committed this crime overcomes the propensity
reasoning.
• Using MO to eliminate that it’s someone else
• Important: Modus operandi evidence is admissible only when identity is at issue in the
case.
• (D denying he committed the crime)

Rule 405. Methods of proving character.

(a) By Reputation or Opinion. When evidence of a person’s character or character
trait is admissible, it may be proved by testimony about the person’s reputation or by
testimony in the form of an opinion. On cross-examination of the character witness, the
court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is
an essential element of a charge, claim, or defense, the character or trait may also be
proved by relevant specific instances of the person’s conduct.
• Specific acts cannot be used to prove D or victim’s character…
• But can be used for non-propensity reasons…
1. 404(b)(2): to prove something else
2. 405(a) last sentence: MAY ask witness about relevant specific acts on
cross-examination
3. 405(b): when character trait is essential element of a charge/claim/defense
4. 406: habit, routine practice

Rule 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to
prove that on a particular occasion the person or organization acted in accordance with
the habit or routine practice. The court may admit this evidence regardless of whether it
is corroborated or whether there was an eyewitness.
• Not propensity reasoning!!

5
Fall 2018 → Evidence (Lund) Wade
• Idea that someone always acts a certain way and therefore they acted like that
on this particular occasion too. Not saying they have a tendency to act a certain
way…they ALWAYS acts like this.

Impeaching a witness…attacking credibility!

NON-character methods of impeachment:

1. Questioning a witness’s perceptive abilities
2. Questioning a witness’s recollection
3. Questioning whether the witness was impaired by drugs, alcohol, or other
4. Exploring witness’s mental competency
5. Exploring whether any coercion is going on
6. Exploring bias or interest: not showing witness is generally untruthful. Not attack
on character for truthfulness. Showing the witness has a reason for lying on this
particular occasion.
7. Extrinsic evidence generally IS admissible to show any of these things
a) Extrinsic evidence NOT allowed to impeach by contradiction: cannot
introduce evidence that is contrary to witness’s testimony…bound by answer.

Rule 607. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s
credibility.
• But can’t call witness SOLELY for purpose of impeaching that witness
• RULE 611 (c): Leading questions should (discretion to decide how much leading
to allow and when) not be used on direct examination except as needed to
develop the testimony. But court should allow leading questions:
o On cross examination
o And when calling hostile witness, adverse party, or witness identified with an
adverse party.
o Also MAY BE allowed on direct when
▪ The question is a preliminary question about a fact not in dispute
▪ When needed to develop testimony (child witness who knows but needs
prompting)
• Question is leading when it suggests its own answer.

Rule 608. A Witness

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness’s
character for truthfulness has been attacked.
• Applies in criminal AND civil cases
• Applies to ANY witness who testifies…including the criminal defendant if he
chooses to testify.
• Evidence of character for (un)truthfulness ONLY
• Must be attack on witness’s character first before you can support the character.
6
 Fall 2018 → Evidence (Lund) Wade
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
order to attack or support the witness’s character for truthfulness (bound by witness’s
answer). But the court may, on cross-examination, allow them to be inquired into if they
are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has
testified about.
By testifying on another matter, a witness does not waive any privilege against self-
incrimination for testimony that relates only to the witness’s character for truthfulness.

Rule 609. Impeachment by Evidence of a Criminal Conviction

- convictions admissible under 609 are only to impeach the witness’s character for truthfulness!!
- if witness is D, priors not admissible to show he committed the crime he’s now charged with.
- 609 issues often addressed in motions in limine
- party calling the witness may bring up the convictions herself to minimize the “sting” BUT if
bring it up, waive the ability to challenge admissibility of the conviction on appeal.
- under 609, if witness denies conviction, CAN bring extrinsic evidence to show conviction
1 step: occurred.
<10 yrs → (a) In General. The following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence: actual sentence doesn’t matter. An
still use even if witness appealed or plans to appeal. Opposing counsel can point this out tho.
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in On essay:
which the witness is not a defendant; and - do (2)
• Presumed admissible! - then (1)
• Opposing party must show 403: probative value as to truthfulness is substantially
outweighed by prejudicial effect
(B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant;
As adult, but and
WHEN?? • Presumed inadmissible!
• Prosecutor must show probative value of that prior conviction as to truthfulness
outweighs prejudicial effect the D might experience when the jury hears about
that prior conviction. probative higher showing to impeach D with own
conviction.
• Trying to impeach D with prior conviction that occurred <10yrs…BREWER
(2) for any crime regardless of the punishment, the evidence must be admitted if
the court can readily determine that establishing the elements of the crime required
proving — or the witness’s admitting — a dishonest act or false statement.
• *BEST route. Do (2) first!
• Not subject to 403 argument because if it falls here…it come in even if witness is D!
• Only look at elements of crime that had to be proven to get conviction
• Can look at what D admitted when plead guilty, NOT to the facts/evidence at trial
10+ yrs → (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more
than 10 years have passed since the witness’s conviction or release from confinement

7
Fall 2018 → Evidence (Lund) Wade
for it, whichever is later. (latest from date of conviction OR final release). Evidence of the
conviction is admissible only if:
(1) its probative value (of that conviction as to the witness’s truthfulness), supported by
specific facts and circumstances, substantially outweighs its prejudicial effect; and
• This says excluded! MUST show probative value of witness’s truthfulness
substantially outweighs its prejudicial effect.
• If witness is D, will be incredibly hard to show.
• If witness is not D, must show strong probative value to that conviction and its value
substantially outweighs prejudicial effect, but not prejudicial to the witness. Must be
prejudicial to the prosecution or defendant.
(2) the proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under
this rule only if:
(1) it is offered in a criminal case; never admissible in civil case
(2) the adjudication was of a witness other than the defendant; never admissible to
impeach a testifying defendant
(3) an adult’s conviction for that offense would be admissible to attack the adult’s
credibility; rarely admitted to impeach other witnesses and only if this is the type of
conviction that would be admissible if it happened while witness was an adult (ex, perjury)
(4) AND admitting the evidence is necessary to fairly determine guilt or innocence.
Lund says very hard to meet, would be saying this is a very important witness whose
testimony is critical to the case and there is nothing else we have to impeach with but most
cases not admissible.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an
appeal is pending. Evidence of the pendency is also admissible.

Nature: Violent nature of past

convictions counts against admission.
- Less likely to come in, don’t speak
to honesty and probably very
prejudicial
Time: Even if some of convictions are
quite old, “defendant’s continued
conflict with the law, even while on
parole, is a factor supporting
admission.”
- If show continuing pattern of
conflict of law, support admitting
Similarity between past offense and
charged offense weighs against
admission of evidence of past conviction – especially when there are other, less similar
convictions with can be used to impeach the defendant’s testimony.
- should be admitted sparingly because of fear jury will use propensity reasoning. Especially
so if there are other convictions the court can use that are less similar.
Importance: “defendant’s testimony may be of some importance, [that is] a factor against
admission.”

8
Fall 2018 → Evidence (Lund) Wade
Credibility: if defendant’s “credibility may be a central issue in the case, [that is] a factor
supporting admission.”
- If it’s important D testify to support himself…goes against. But if credibility is very
important…is in favor. (So these two off set each other…counterbalance)

PAST SEXUAL OFFENSES

- Normally, evidence of propensity is barred by 404(a), (b)
- Special rules allowing admission of evidence of past sexual misconduct to show
propensity
- 413-415 do not require conviction of prior offenses!!
(a) Huddleston/104(b) standard: proponderance of the evidence
- Most courts say evidene of past false accusations of rape isn’t evidence of victime’s
sexual behavior and is not barred by 412
- But evidence may come in in ways permitted by 608(b) or 404(b)
Rule 412. Sex-Offense Cases: The Victim “Rape shield”
If 412 didn’t exist:
• 404(a)(2) would allow evidence of victim’s pertinent trait, limited to reputation or
opinion.
• And 608(b) would allow impeachment based on specific instances of conduct in order to
attack the witness’s character for untruthfulness. No extrinsic evidence.
• Bars ALL evidence of victim’s other sexual behavior (except as listed in 412(b))
• 412(c) says D must file written motion to offer evidence under the 412(b) exception and
must notify victim, court and parties. Court conducts an in camera hearing and parties
and victim has right to attend and be heard.
• both exceptions (A) and (B) only allow evidence of behavior, NOT of reputation.
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal
proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to
prove that someone other than the defendant was the source of semen, injury, or
other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to
the person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a
victim’s sexual behavior or sexual predisposition if its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any party. The
court may admit evidence of a victim’s reputation only if the victim has placed it in
controversy.
9
Fall 2018 → Evidence (Lund) Wade

Rule 413 & 414: 415 same except for civil cases of sexual assault or child molestation.
(a) permitted uses: In a criminal case in which a defendant is accused of a sexual assault/child
molestation, the court may admit evidence that the defendant committed any other sexual
assault/child molestation. The evidence may be considered on any matter to which it is relevant.
- Govt/P must make prior disclosue of intention to rely on this evidence
- Court may still exclude under 403

Rule 601 - Compentency of Witnesses

“Every person is competent to be a witness unless these rules provide otherwise. But in a civil
case, state law governs the witness’s competency regarding a claim or defense for which state
law supplies the rule of decision”
- main competency issues: mentally incompetent, whether young children can testify.
- No age per se to testify under federal rules

Rule 602 - Requirement of personal knowledge

“A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony. This rule does not apply to a witness’s expert
testimony under Rule 703”
- In questing of witness, must lay down foundation of personal knowledge.
- The questions start with where you were, what you saw…to show you know
- This is an independent basis to object if personal knowledge hasn’t been demonstrated.
- Conditional relevance issue = preponderance of the evidence standard

Rule 603 - Requirement of oath or affirmation

“Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a
form designed to impress that duty on the witness’s conscience.”
- So for witnesses, assuming they have personal knowedlge and take oath or affirmation
and they are competent…they can testify!

HEARSAY
Rule 802: Hearsay is not admissible unless any of the following provides
otherwise:
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
So Hearsay is INADMISSIBLE unless an exception applies!!
- Issue of admitting hearsay is that reliability has not been tested!
- Didn’t tesitfy under oath, in presence of trier of fact, subject to cross examination.
On cross examination can test credibility by exploring the declarant’s:
(a) Perception
(b) Memory: whether they’re accurately remembering what they saw
(c) Sincerity
10
Fall 2018 → Evidence (Lund) Wade
(d) Narrative ability: can they accurately what they saw into words

Rule 801(c) – definition of hearsay

Hearsay means a statement that:
(1) the declarant does not make while testifying at the current trial or
hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted
in the statement.
Paraphrased as: “an out of court statement being offered to prove the truth of the matter asserted
in the statement”
▪ part (2) is the tricky part…*WHY* is someone offering the evidence?
▪ Just because it is an out of court statement doesn’t make it inadmissible

1. Statement defined in 801(a) as: oral or written assertion or nonverbal conduct if person
intended it as an assertion.
➢ Why is the statement being offered?
o Statement offered to prove the truth of the matter asserted in the statement?
▪ If yes…hearsay → inadmissible unless exception applies
▪ If no…admissible. Common non-hearsay purposes:
• to show effect statement had on person who heard the statement
• to show notice to person who heard the statement
• to show “legally-significant language” was spoken or written
o contract was made, defamation by blog post, threat on pres
• ex) to show ineffective assistance of counsel: D wants to admit
statemetn by another attorney to D’s attorney, isn’t hearsay
because not admitted to show truth of statement, but that statement
provied notice of potential defense to D’s attorney and he failed to
pursue it, and that failure to pursue was ineffective assistance
But judge can decided, possible 403 objection from opposing party.
o Statement can be hearsay when offered for one purpose, but not when offered for
another purpose. →NEED limiting instruction
2. Prove the truth:
➢ If trier of fact has to believe the declarant for the evidence to have value = hearsay
3. Assertion
➢ Words or conduct were intended by the person to be an assertion
o Fisher/text says; Could this conduct be a lie? Cause could only be a lie if someone
intended to assert something by the conduct.
➢ Oral or written expressions can be assertive even if not spoken as we normally think
o Can be implied assertion:
▪ Are you going to clean your room? Asserting room is dirty
▪ Clean your room. Asserting room is dirty

Steps to identify hearsay

1. WHO was the declarant?
2. WHAT was the declarant asserting?
o Offered as truth of the matter asserted? Hearay
o Offered to show effect statements had/to support reasonable fear BUT need limiting
instruction!!! (common reason hearsay is admitted for a nonhearsay purpose)
11
 Fall 2018 → Evidence (Lund) Wade
3. WHY is the statement being offered as evidence? What being offered to prove?

→ JUDGE decides if requirements for every hearsay exception have been met using
preponderance of the evidence standard!

Hearsay within hearsay…admissible if every level of hearsay is covered by a hearsay exception.

Hearsay Exceptions;
1. Admissions by a party opponent

Rule 801(d)…statements that are not hearsay **lund says

(1) A Declarant-Witness’s Prior Statement. The declarant might try to
trick you
testifies and is subject to cross-examination about a here
prior statement, and the statement:
• Declarant testifies at trial regarding prior statement→rule does NOT require
declarant was subject to cross at time she made the statement, or that D or counsel were
present
• Grand jury statement could come in here! (former testimony can’t be grand jury
statement)
(A) is inconsistent with the declarant’s testimony and was given under
Inc penalty of perjury at a trial, hearing, or other proceeding or in a
deposition;
• Hearsay exception for SOME prior inconsistent statements
• Think someone will recant→get statement in deposition
• If prior inconsistent statement wasn’t given under oath at trial/hearing/deposition,
then only admissible for impeachment to show that witness said two different things
and the present testimony shouldn’t be believed.\
• Limiting instruction needed because only admissible for impeachment, not
substantive evidence…but hard to jury to distinguish between impeachment and
substantive evidence.
• Can use extrinsic evidence of prior inconsistent statement to prove the witness made
the prior statement if:
o Witness must have opportunity to explain/deny the statement
▪ Don’t have to ask about it, but just need to give opportunity
▪ 613: when examining a witness about prior statement, don’t have to
show/disclose its contents to the witness. But must show/disclose to
adverse party on request
• So if witness asks to see = no
• Opposing party asks to see = YES, they might show witness
o AND adverse party must have opportunity to examine the witness about it
o But this doesn’t apply to an opposing party’s statement under 801(d)(2)
(B) is consistent with the declarant’s testimony and is offered:
C (i) to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in
so testifying; or
• Statement must have been made before the alleged motive to fabricate arose
▪ If essay: will be clear factual timeframe for when motive to fabricate arose
• Child custody case (Tome)

12
 Fall 2018 → Evidence (Lund) Wade
• If cross examiner implied the witness had some reason to be lying which had
recently developed, then the prior C statements would be admissible to rebut
that suggestion
• Can come in to bolster and for it’s truth
(ii) to rehabilitate the declarant's credibility as a witness when
attacked on another ground; or
• Most commentators believe it will apply when the witness’ credibility has been
impeached on some other non-character ground (inconsistency, sensory
deficiency, memory issue, vision issue) → prior C statement may be admissible
to restore credibility
• These are allowed in for truth because it’s a hearsay exception
(C) identifies a person as someone the declarant perceived earlier.
Id • Identifying attacker, DECLARANT MUST BE TESTIFYING AT TRIAL and
subject to cross-examination at trial!!
• Evidence of a statement of ID that witness made out of court can be used for its
truth at trial if Declarant testifies at trial and subj to cross!
• “About 6ft tall” is statement of ID. statement can also be that this is not the
person, or statements that don’t match the suspect.
• a composite sketch made from statements is admissible…ugh, good argument
against this though. Error in interpreting and translating to a drawing
• Doesn’t have to point to one particular person. Just has to help identify.
• May be question about this and witness NOT testifying…can’t use.
(2) An Opposing Party’s Statement. The statement is offered against
an opposing party and:
(A) was made by the party in an individual or representative capacity;
• “Admission by party opponent” applies to *any statement made by a party
Adm • AND is being offered by the opposing party. *key, must be offered by an
opposing party. In other words, a party can’t introduce his OWN statement
under “an opposing party’s statement”
• don’t need personal knowledge for admissions
• admissions can be in form of opinion!!
(B) is one the party manifested that it adopted or believed to be true;
AA • Adoptive admissions is when someone else makes the statement and you agree
with it, then it effectively becomes your statement
• Preconditions for adoptive admissions:
o Person heard and understood the other person’s statement
o Person was at liberty to respond
o Circumstances called for a response
o Adoption by silence: person failed to respond (or responded but didn’t
deny)
• Ex) mom says “did you rob that store, don’t like to me” and son says
“yes”…that’s an adoptive admission because he could have denied but instead
2 he affirmatively adopted the mothers statement
A

13
 Fall 2018 → Evidence (Lund) Wade
(C) was made by a person whom the party authorized to make a
Expressly statement on the subject; (best agency)
Unidentified man an agent?
authorized • If agent makes statement it can be used against - Woman calls repair number
agent and principle because agent was expressly - Man shows up, does repair
authorized to speak on behalf of the - Man makes statement
principle/employer - Ct must decide if he was agent
- Statement was about his job
(D) was made by the party’s agent or - Statement coming in
w/in scope of
the agency employee on a matter within the scope of
that relationship and while it existed; or (not authorized)
• If agent makes statement within the scope of their agency and it was made while
an agent, not before hired or after fired, can be used against employer

(E) was made by the party’s coconspirator during and in furtherance

Co of the conspiracy. (Conspiracy=joint venture to achieve some goal)
• “admissions by co-conspirators” requires:
o the declarant and party we are offering statement against were part of the
conspiracy
o were part of the conspiracy if knew about it and intended to take part
o statement was made during the conspiracy…not before or after!
▪ If Arrest occurs, ends the conspiracy
o Statement was in furtherance of the conspiracy…not contrary to it
▪ Statements to police officer is NOT in furtherance of conspiracy
• Doesn’t matter if there were criminal charges for the conspiracy or if the
conspiracy involved illegal acts! Ex) conspiring surprise party for wife
• The contested statement can be considered as evidence of the conspiracy but can’t
rely solely on that statement…bootstrapping is allowed!! Can look at the
statement itself but need other evidence to back up conspiracy.
The statement must be considered but does not by itself establish the
declarant’s authority under (C); the existence or scope of the relationship
under (D); or the existence of the conspiracy or participation in it under
(E).

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Unavailable when: (may be unavailable even though testifying at trial)
(1) privilege: is exempted from testifying about the subject matter of
the declarant’s statement because the court rules that a privilege applies;
• Spousal privilege, only applies to actual subject matter privilege applies to
(2) refuses: refuses to testify about the subject matter despite a court
order to do so;
(3) forgot: testifies to not remembering the subject matter;
(4) dead/sick: cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical illness, or mental
illness; or
• Then existing means the condition is present at trial and prevents availability

14
 Fall 2018 → Evidence (Lund) Wade
(5) is absent from the trial or hearing and the statement’s proponent
has not been able, by process or other reasonable means, to procure
attendance or testimony:
(A) the declarant’s attendance, in the case of a hearsay exception
under Former Testimony or Forfeiture; or
o If invoking either of these…must show couldn’t get appearance at TRIAL
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Dying Declaration or Statement against Interest.
o If invoking either of these…must show couldn’t get to Trial or depos. testimony
forfeiture clause → But this subdivision (a) does not apply if the statement’s
proponent procured or wrongfully caused the declarant’s unavailability as a
witness in order to prevent the declarant from attending or testifying.
• You can’t make the witness unavailable and then try to use the statement

(b) The Exceptions. The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
Ft (A) was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case,
whose predecessor in interest had — an opportunity and similar motive
to develop it by direct, cross-, or redirect examination.
• Former testimony requires:
o declarant be unavailable
o that the party AGAINST WHOM the statement is being offered had an
opportunity to question the declarant at the former trial/proceeding/depos
▪ So grand jury testimony is NEVER admissible b/c D couldn’t cross
examine during grand jury proceeding
o AND that the party had similar motive to develop the testimony at prior trial
▪ Similar doesn’t mean identical
▪ Based on similarity of the underlying issues and context/objective of
quesitoning
(2) Statement Under the Belief of Imminent Death. In a
Dd prosecution for homicide or in a civil case, a statement that the
declarant, while believing the declarant’s death to be imminent, made
about its cause or circumstances.
• Requirements:
o Only in homicide case (declarant dead) or civil cases (maybe not dead)
▪ no other types of prosecutions
o Declarant made statement with “hopeless expectation that death was near”
▪ SUBJETIVE standard→what declarant thought
o only statements that were “made about the cause or circumstances” of death
• Allow out of necessity because (most cases) declarant is dead.
• Allow because predeath statement is reliable, not gonna lie if gonna meet God
• But declarant doesn’t have to die!!

15
 Fall 2018 → Evidence (Lund) Wade
• The state of mind at time statement was made is what matters…not that declarant died
after he said it!!
(3) Statement Against Interest. A statement that:
Sag (A) a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was so
contrary to the declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim against someone
else or to expose the declarant to civil or criminal liability; and
• Would a reasonable person make the statement if it wasn’t true?!
• And must be so contrary to proprietary or pecuniary interest
• Statement must be considered as single declarations. See if each statement is against the
declarant’s interest
o Just because person is making broad self-inculpatory confession doesn’t make the
non-self-inculpatory parts of the confession credible.
o Ex) defendant told cop: “ask maggi, it was her idea”
▪ Acknowledging he knows because didn’t deny→against his interest
▪ Shifting blame to maggi → isn’t against his interest.
▪ Likely will allow officer to say when asked about involvement, he didn’t
deny. Anything that brings in magnolia isn’t against his interest. but
because it’s his own statement to officer, can use whole statement against
him, but can’t use statement against maggi.
(B) is supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
• For criminal case, if statement exposes declarant to criminal liability then we require
corroborating evidence or declarant might just make stuff up
• The accused’s own testimony is not sufficient to corroborate!
(6) Statement Offered Against a Party That Wrongfully Caused
the Declarant’s Unavailability. A statement offered against a party that
F wrongfully caused — or acquiesced in wrongfully causing — the declarant’s
unavailability as a witness, and did so intending that result.
• If you made the witness unavailable, you forfeited your right to confront the witness and
any right to hearsay objection
• Requirements:
o Must have intended to make unavailable, but doesn’t require you intended them to
be available for tat particular case
o It’s enough that declarant was just a potential witness, not that the witness was
already part of a proceeding
• Declarant’s statements admissible against person who participated in a conspiracy to
silence the declarant even if the person didn’t himself engage in wrongdoing
• Any significant interference with the declarant appearing as a witness at trial amounts to
wrongdoing→ persuasion, control, intimidation, threat, instructing witness to invoke 5th
• Under 104(a) the JUDGE decided whether there has been a forfeiture by a preponderance
o Procedure for all hearsay exceptions

Rule 803. Exceptions to the Rule Against Hearsay

16
 Fall 2018 → Evidence (Lund) Wade
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining
Psi an event or condition, made while or immediately after the declarant
perceived it.
• Statements must describe or explain event or condition
• Stress on while or immediately after…consider how much time has passed
• Closer in time that you said it, less likely you’re lying or had time to think
• Ex) that car just ran the red light
(2) Excited Utterance. A statement relating to a startling event or
Eu condition, made while the declarant was under the stress of excitement
that it caused.
• Statements must be related to the startling event or condition (broader than P si)
• Subjective test: whether THIS DECLARANT was under stress of excitement or still
under that stress when statement was made?
o Passage of time is important in determining if still agitated by the event
• circumstances produced excitement that “temporarily stills the capacity for reflection”
and the conscious can’t make up stuff
• 911 calls in CDV cases is common when victim recants (maybe confrontation issues)
thenx (3) Then-Existing Mental, Emotional, or Physical Condition. A
statement of the declarant’s then-existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not including **a statement of
memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will.
• Intent to do something in future is statement of present state of mind
o Must be evidence of declarant’s OWN intent, not another person’s
• My back is sore, my neck hurts, pain in the bottom of my foot, I’m cold/tired/scared
• Must be CURRENT condition, not a past feeling/pain
o “I saw movie last night” might be admissible to show declarant THINKS he did
something last night if it’s relevant to sanity maybe, if in question. But NOT
admissible to show that he did see the movie last night.
• Rationale: there are no perception or memory issues with what is going on right now
• **if didn’t have this limitation, almost every hearsay statement could come in here!
o If I could say I saw the movie last night, then statement from memory would be a
state of mind. Oh no…memory not reliable!
Med (4) Statement Made for Medical Diagnosis or Treatment. A
statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis
or treatment; and
• Statements to family members might be covered if made to get medical help
• Rule doesn’t specify that the declarant must be the patient, just “made for” medical
diagnosis or treatment. Spouse/close family member has as much incentive to be truthful
because seeking treatment for sick person
• This covers seeing dr even if it’s for purposes of a lawsuit
• Statements need to concern WHAT happened, not WHO did it

17
 Fall 2018 → Evidence (Lund) Wade
(B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause.
• Covers 3 types of statements:
o Describing medical history
o Describing past or present symptoms or sensations (overlaps thenx)
o Describing inception or general cause of a disease or injury
• Who caused the injuries not reasonably pertinent to treatment unless maybe a
spouse or caregiver caused them…maybe then part of the care plan
(5) Recorded Recollection. A record that:
Prec (A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in
the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received
as an exhibit only if offered by an adverse party.
- Only applies if witness is testifying
- Must have unsuccessfully tried to refresh witness’s recollection first
- Writing isn’t received into evidence…only READ
- Opposing party can admit the writing as evidence though
- Can’t put an assertion of accuracy in the writing. Witness must acknowledge at trial that
the statement was accurate.
- If witness is uncooperative→canNOT use this exception!!
(6) ”Business records” Records of a Regularly Conducted
Bus Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information
transmitted by — someone with knowledge;
- Statement must be from someone INSIDE The organization/company/business
o (rule doesn’t say so, but courts read it this way)
- If business record contains statement from someone outside the organization, must be
a separate hearsay exception to cover their statements, unless being admitted for a
nonhearsay reason (like notice, effect, etc)
(B) the record was kept in the course of a regularly conducted activity
of a business, organization,
occupation, or calling, whether or not REFRESHING RECOLLECTION (not being
for profit; offered as evidence→nothing to do with hearsay)
- Witness doesn’t remember well enough to make
- Whatever activity was a regular activity statement at trial
of the organization - Can refresh recollection at trial
(C) making the record was a - Witness can be shown anything that will help
regular practice of that activity; refresh, even if that item is inadmissible
o Item marked as exhibit but does not become
(D) all these conditions are shown evidence
by the testimony of the custodian or - Then witness testifies as to the refreshed
another qualified witness, or by a recollection, not to the contents she was shown.
certification that complies with Rule - 612(b) says adverse party is entitled to have the
writing, inspect it, cross examine witness about it
902(11)or (12) or with a statute and can introduce any part that relates to
permitting certification; and witness’s testimony as evidence
o So can view and ask about discrepancies and
introduce into evidence the contrary
18 statements
o If can’t refresh→use writing as evidence
 Fall 2018 → Evidence (Lund) Wade
- Allows to show evidence from organization without calling any witnesses from the
organization
- Requirements can be satisfied by someone familiar with the record keeping of that
organization, doesn’t have to be person who prepared the record
(E) neither the opponent does not show that the source of
information noror the method or circumstances of preparation indicate a
lack of trustworthiness.
- These records are typically reliable because businesses rely on the reliability of
records
o UNLESS it was a record prepared in anticipation of litigation, then it
indicates a lack of trustworthiness as the investigation may be slanted
o party opposing admission has burden of demonstrating lack of trustworthiness
(7) Absence of a Record of a Regularly Conducted
Bus Activity. Evidence that a matter is not included in a record described in
paragraph (6) if:
(A) evidence is admitted to prove the matter didn’t occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the possible source of
the informationnor or other circumstances indicate a lack of
trustworthiness.
- Can submit business record to show the nonoccurrence of an event
o Ex) you didn’t return something because we don’t have a business record of it

(8) Public Records. A record or statement of a public office if:

Pub (A) it sets out:
(i) the office’s activities;
o Ex) payroll records, records of issuance of licenses, personnel records,
receipts and disbursements
o Applies to BOTH civil and criminal cases
o EITHER side can use this exception
(ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law-
enforcement personnel; or
o Ex) weather records, maps, reports of govmt inspectors or investigation to the
extent they report observations, court reporter’s transcript (but note double
hearsay here)
o But in criminal case this does NOT Allow admission of records of matters
observed by LEO→police reports can’t come in for criminal case for its truth
▪ Can come in for civil cases
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
o Ex) admin findings about employment discrimination, FAA findings about
safety of plane, report by lab chemist testing substance
o Admissible in civil cases and against prosecution in criminal cases
o NOT admissible against Defendant in criminal case
▪ So can’t use the lab report saying cocaine but chemist can testify

19
 Fall 2018 → Evidence (Lund) Wade
(B) neither the opponent does not show that the source of
information nor or other circumstances indicate a lack of
trustworthiness.
o The report is admissible as long as it contains factual findings unless the party
opposing admission demonstrates lack of trustworthiness
- Business records VS public records
o Public records are also business records because govmt is a business but
public records exception go beyond the business records exception in several
ways
- If question about police reports admissibility as evidence: NOT admissible in
criminal case for their truth, can come in to impeach if report is contrary to what
they’re testifying about now, could use to refresh recollection if officer can’t
remember.
(10) Absence of a Public Record. Testimony — or a certification
Pub under Rule 902 — that a diligent search failed to disclose a public
record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a
record or statement for a matter of that kind; and

20
Fall 2018 → Evidence (Lund) Wade

- Declarant must: -
801(d) 1. testify at trial
(1) 2. be subject to cross exam
3. about a prior statement
inconsitent - Can be used to impeach - doesn’t require Declarant
witness’ current testimony by was cross examined at time
showing he previously mad a he made the statement
contradictory statement. - grand jury statement IN
- As substantive evidence (to - Majority of cases only
prove the truth of matter admissible for
asserted in the statement) it impeachment.
must fall within a hearsay
exception
consistent - statement must have been
made BEFORE alleged motive
arose
Statements of Identity - evidence of a statement witness - about 6ft tall
made out of court identifying - can be statement that this is
defendant not the person
- or statements that don’t
match the suspect
- statement offered against
(2) opposing party
Admission by party - made by party in individual or - any statement
opponent representative capactiy - offered by opposing party
- don’t need personal knowledge - **can’t introduce OWN
- can be in form of opinion statement
Adoptive admission - One the party adopted or - Person heard and
believed to be true understood other person’s
- When someone else makes statement
statement and you agree with - Person was at liberty to
it, it becomes your statement respond
- Circumstances called for a
response
- Adoption by silence: person
failed to respond or
responded but didn’t deny
Agent - Authorized
o Can be used against agetn
and principal b/c agent was
expressly authorized to
speak of behalf of principle
- W/in scope of agency
o Made while an agent (not
beofre/after)
o Can be used against
principle

21
Fall 2018 → Evidence (Lund) Wade
Co-conspirator - Made during - Defendant and declarant
- And in furtherance weere part of conspiracy
- Not statements madeto LEO
- Doesn’t matter if criminal
charges for conspiracy
- Doesn’t matter if conspiracy
involved illegal/legal acts
- Contested statement can’t be
only evidence of conspiracy
-
Rule 804 Unavailable
Former testiomny - -
Dying declaration - -
Statemetn against - -
interest
forfeiture - -
-
Rule 803 (available or not)
Present sense - -
impression
Excited utterance - -
Then-existing MEP - -
condition
Statement for med - -
diagnosis or treatment
Recorded recollection - -
Business Records - -
Absence of Bus Record - -
Public Record - -
Absense of Pub Record - -

22