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PPT slide notes here.



Federal Rules of Evidence
What is Evidence at Trial?
Relevant → 1) Believed helpful in deciding an issue & 2) Not excluded on policy grounds
Competent → Sufficiently reliable that a reasonable juror could believe it is true
Permissible Content → A) Factual (direct perceptions) OR B) Opinion (Based upon Facts or Expertise)

Evidence Rules Background[edit]

Why exclude any evidence?
Protect jury from unfair influence/prejudice
Protects a social policy/value
Increase reliability
Exclusion is associated with the purpose for which evidence is introduced
Evidence may be admissible for one purpose (to prove propensity), but not for another (to prove intent)
Standard of proof regarding prior acts
Rule 104(b) – at a hearing outside the jury’s presence, judge must find enough evidence of the conditional fact to convince a reasonable person that the fact occurred by a preponderance of the evidence
Does not require a conviction
Rule 105 – Limited admissibility: if a proponent can find a purpose that is admissible, then it can be admissible for that purpose and the opponent gets a limiting instruction saying that the evidence cannot be used for another purpose

General Provisions, Notice, & Presumptions[edit]

ART 1: General Provisions[edit]

101: Scope[edit]

These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.

102: Purpose & Construction[edit]

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

103: Rulings on Evidence[edit]

(a) Effect of erroneous ruling.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

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

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling

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

(c) Hearing of jury

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

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

104: Preliminary Questions[edit]

(a) Questions of admissibility generally.

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

(b) Relevancy conditioned on fact.

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.

(c) Hearing of jury.

Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d) Testimony by accused.

The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility.

This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

105: Limited Admissibility[edit]

When evidence which is admissible as 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.

106: Remainder of or Related Writings or Recorded Statements[edit]

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

ART II Judicial Notice[edit]

201: Judicial Notice of Adjudicative Facts[edit]

(a) Scope of rule.

This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary.

A court may take judicial notice, whether requested or not.

(d) When mandatory.

A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard.

A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice.

Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury.

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

ART III. Presumptions in Civil Actions & Proceedings[edit]

301: Presumptions in General Civil Actions & Proceedings[edit]

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

302: Applicability of State Law in Civil Actions and Proceedings[edit]

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.

Relevancy Requirement[edit]


401: Definition[edit]

Rule 401 – Definition of Relevant Evidence (RelEv): evidence that tends to prove a proposition which is in dispute

Low Threshold, Negative inferences can be drawn from failure to introduce evidence

Relevant evidence → Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

402: Admissibility as to Relevance[edit]

Rule 402 – RelEv admissible unless excluded by Fed Rules, USConstitution, Statute

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

403: RelEv Exclusions for Prejudice, Confusion, or Wastes of Time[edit]

Rule 403 – RelEv excluded if probative value is substantially outweighed by potential for 1) prejudice, 2) confusion, 3) delay

  • Close call? It's allowed (rule geared toward admitting evidence)
  • In a bench trial, only concerned with potential for delay
  • Court can force Gov't to accept a stipulation in place of prejudicial evidence where there is less prejudicial evidence that would prove the same point. (see Oldchief)
  • Review standard is abuse of discretion, unless objection wasn't timely, then plain error review
  • Evidence must have a proper purpose and meet 403 threshold
    • Is the evidence actually probative or used as a smear tactic?
    • Common issues in civil cases: financial status, sexual behavior, day in the life films, inflation and taxation, etc
    • Common issues in criminal cases: gory victim photos, alternative perpetrator evidence, personal property, accomplice guilt, dog sniff
    • Issues spanning civil and criminal cases: demonstrative evidence

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

For Character Evidence, (see below).

Policy Considerations[edit]

407: Subsequent Remedial Measures[edit]

Rule 407Subsequent measures taken to fix issue are inadmissible as recognition of DEF's fault or an unreasonably dangerous product flaw (purpose is to encourage remediation)

  • Subsequent Remedial Measures (SubRems) → design changes, employment decisions, actual repairs, etc.
    NOT Reports on the Event, PriorRems, or SubRems by 3rd Parties (these are admissible)
  • SubRems are admissible to show:
    1. ownership or control
    2. contributory comparative negligence
    3. impeachment (responding to DEF's hyperbolic claims about product's safety)
    4. feasibility - design change was possible (except where DEF stipulates feasibility)

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

408: Compromise & Offers to Compromise[edit]

Rule 408 - Compromise offers made in settlement talks are inadmissible (encourage compromise and settlement)

  • Inadmissible whether or not litigation under way at time of offer by either party
  • Accompanying statements from civil proceedings made to Fed Agents are admissible in criminal cases to show guilt, but not for impeachment

(a) Prohibited uses → Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

409: Payment of Medical & Similar Expenses[edit]

Rule 409 - Offers to pay medical expenses are inadmissible as evidence of liability, though accompanying statements of fact can be used to show liability

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

410: Inadmissibility of Pleas, Plea Discussions, & Related Statements[edit]

Rule 410 - Failed plea negotiations with prosecutors are inadmissible unless waived by DEF (even for impeachment)

Statements made to police are admissible

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible...
(i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or
(ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

411: Liability Insurance[edit]

Rule 411 - Insurance showing deep pockets is inadmissible (Minimal probative value, does not prove lack of caution)

  • Can be introduced for the proper purpose of demonstrating bias

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Character Evidence[edit]


  • Allowed only where character is at issue, substantive element of crime (defamation), or where introducing evidence of a habit
  • Not allowed when demonstrating propensity through character because of likelihood that evidence will be used for improper purpose
  • Allowed for impeachment purposes

404: Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes[edit]

Rule 404(a) - Use of character, to prove DEF’s actions at the time in question, is prohibited in civil cases & limited in criminal cases.

  • DEF may evidence own character where pertinent, but prosecution may then refute (only to degree that DEF opened the door)
  • DEF may evidence victim’s character where pertinent (e.g. in self-defense cases), but prosecution may then evidence DEF’s character in same area (e.g. propensity to violence), limited by Rule 412
  • For other proper purposes, see 404(b)).

(a) Character evidence generally: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.
(2) Character of Alleged Victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
(3) Character of Witness - Evidence of the character of a witness, as provided in rules 607, 608, & 609.

Rule 404(b) – Use of character permitted to prove state of mind, knowledge, intent, context, motive, identity, etc. (in both civil & criminal proceedings)

  • State of mind at time of charged misconduct indicated by uncharged misconduct
  • Knowledge it was a crime indicated by earlier bad acts
  • Intent to commit likely indicated by earlier similar crimes with such intent
    Similar to propensity, DEF may try to stipulate intent in the event that the government proves the actus reas, but the court does not have to accept the stipulation or force prosecutor to accept
  • Context of complete narrative to avoid jury speculation
  • Specific Motive to act indicated by particular reasons(NOT just robbed bank b/c needed money)
  • Identifying signatures likely indicated by earlier crimes with such signatures (unique crimes, unique locations, obsessive behavior)
  • Gov't must have specific arguments for inclusion of other proper purposes

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

NOTE - 404(b) evidence must be provided with notice and undergo 403 analysis:

1) Strongly probative of proper purpose? 2) Alternative evidence available? 3) Length of time since bad act?

405: Methods of Proving Character[edit]

Rule 405 – Use of character limited to reputation & opinion testimony unless character is at issue in the case (not very attractive to DEFs)

  • On cross, witnesses may be questioned about specific acts (wafting innuendo & doing damage)
  • Must have good faith proof and be something witness is likely to know
  • Where character is at issue, specific act evidence also allowed

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

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

406: Habit; Routine Practice[edit]

Rule 406Reactive acts of habit are admissible (proven by preponderance of evidence to judge before admission)

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

Character Evidence - Sexual Assault & Child Molestation[edit]

Rules 412-415 relate to admissibility of evidence about rape victims’ and perpetrators’ past sexual acts

412: Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition[edit]

Rule 412Victim’s sexual behaviour prohibited except under specific limited circumstances

  • In Civil context: where probative value substantially outweighs the prejudice to the case/harm to victim
  • In Criminal context: where defense is 1) consent or 2) another cause/perpetrator
    These rules would preclude the (constitutionally protected) right to an effective defense, evidence can be admitted (US v. Bear Stops, Olden)
    Presumed to be probative, but must still pass 403 analysis
  • Sexual behavioracts of body & mind (including past claims of sexual abuse/harms)

413-415: Evidence of Similar Prior Offenses in Criminal & Civil Cases of Sexual Assault & Child Molestation[edit]

Rules 413-415 - DEF’s prior similar acts in criminal & civil sexual assault & child molestation cases are admissible (to show propensity as well as knowledge, intent, etc.)

  • 15-day Notice requirement
  • Does not require prior conviction, preponderance of the evidence standard
  • Rule 403 applies


Rule 501 - Fed court may establish new privileges[edit]

  • Psychological privilege - Absolute privilege protecting people in therapeutic professions
    Justifications for adopting (Jaffee) - Encourages mental health, All 50 states have it, Advisory committee recommended it at passage of current R501
  • No privilege established for journalists, but qualified common law shield (No 1stAmend right to shield unused/unaired work)
  • No privilege established for Corp officers, parent-child relationship, secret service agents, or many others

Attorney Client[edit]

Established in Upjohn - applying to communications between lawyer & client where lawyer’s legal advice sought (dominant intent test)

  • Only privileged where there is a reasonable expectation of confidentiality
    • If privileged info shared beyond “need to know” category, confidentiality is lost
    • Can apply to multiple parties in a common unit
  • Lawyer has a duty to claim privilege where possible (even after client’s death)
    Waivers of attorney client must be voluntary
    Client’s privilege to waive, Attorney actions can also waive (but consult client or risk malpractice)
  • Work-product protection is a separate qualified privilege, so try to claim A-CPriv first
  • Selective waiver (Rule 502 makes this enforceable in states where it is in place in federal proceedings)
  • Government attorney-client privilege
Accidental disclosure
  • If reasonable precautions taken not to turn over during discovery and efforts made to retrieve when discovered, then no waiver through accidental disclosure (negligence liability approach)
  • Whenever you accidentally disclose it is a waiver – even a subject matter waiver (strict liability approach)
  • Claw-back agreements – can enter with other party to return if you find (but this may leave you open if claim of disclosure is raised later)
  • Rule 502 (proposed)
    • 502(a) – subject matter waivers must be intentional
    • 502(b) – parties that make reasonable attempts to protect waiver and to get the docs back then there is no waiver (software is reasonable effort)
    • 502(d) – court orders of confidentiality are enforceable in this proceeding and in others

Crime-Fraud Exception – Not privileged if intended to further ongoing or future crimes or frauds (whether lawyer knows or not)

  • Privilege does apply to discussions about past acts in an attempt to fix

Spousal privileges[edit]

Adverse testimonial privilege, but can be waived (Trammel). Designed to protect marriage when spouse takes stand (only in criminal cases)

  • Exceptions: 1) Marriage is dead by time of trial, 2) weren't married yet at time of statement or 3) another is testifying to spouse's statements

Confidential communications privilege (designed to protect the marriage at time statements are made)

  • DEF spouse’s privilege; DEF can prevent spouse from testifying to confidential info (speech or communicative acts)
  • If info shared by spouse, still not admissible without DEF waiver (spouse cannot waive for DEF)
  • Crime-Fraud ExceptionWaived if info in furtherance of future bad act (whether spouse knows or not)
  • Destroyed only where marriage is legally terminated

Clergy, State, & Other privileges[edit]

Clergy-penitent privilege - May be invoked by either where penitent was seeking spiritual guidance (limited by crime-fraud exception)

State secrets privilege - Absolute privilege designed to prevent exposure of secrets in litigation

  • Only may be invoked by a high official who explains why it would do harm to reveal info
  • Case will be dismissed on the merits where this applies

Executive branch privilege - Qualified privilege designed to encourage confidential communication between high level staff

Law enforcement privilege - Qualified privilege designed to protect police informants reporting without danger/repercussions

Deliberative process privilege - Qualified privilege designed to protect process/discussions within administrative branch before final decisions are made & publicized

  • Protects earlier drafts of reports, etc, can be overridden with compelling reason

Fifth Amendment privilege[edit]

Protects criminal DEFs from inappropriate compulsion to testify against self, jury cannot punish based on negative inference from silence (Griffin)

  • For violation to matter, there must be threatened or actual use of inappropriately acquired info
  • Some evidence provisions are exempt & may be compelled (blood sample, breathalyzer); negative inference may be drawn from DEF refusal
  • Immunity – If gov't grants statements won’t be used against you, then DEF must talk
  • Exception to privilege with regards to maintenance of records

Witness Treatment - 601 (Competence), 603 (Oath), 606 (Jurors), & 615 (Sequestration)[edit]

Rule 601 → Witnesses must be competent (not the same as credible)

Rule 603Oath must be “calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so” – no specified language

Rule 606Jurors prohibited from testifying at trial or later about validity of conviction/indictment

Exception: Testifying to fact of external pressure (bribe, media, etc), but not effect of pressure
Can interview and testify to clerical errors in rendering the verdict

Rule 615Sequestration of witnesses must be ordered upon request

  • Entitled to give testimony without other witnesses present, though some witnesses cannot be excluded from court:
    1) Criminal DEF, 2) Civil PLA, 3) Victim of crime, 4) Designee of entity party (ie. corp), and
    5) Witnesses whose presence is essential to presentation of testimony (eg. experts present to counter testimony of testifying expert)

Witness Impeachment - 607, 608, 609, 611 & 613[edit]

Rule 607Both sides may impeach a witness, but you can't call just to impeach

  • PROS may try to bring witness only to slip in hearsay during impeachment
  • DEF can voir dire witness to show he was brought only for impeachment & curb PROS abuse

Rule 608 – Character attacks limited to undermining credibility, not general assaults

Typically ask witness about prior bad acts of dishonesty , but Must be pertinent to truthfulness (Lying, deceit, NOT Drug use, litigiousness)
Questions must pass the 403 balancing test
Has the person already been impeached?
Is this witness’s credibility important?
What is the witness’s relationship to the parties?
No extrinsic evidence to prove specific bad actslimited to asking witness questions on cross or bringing opinion/reputation testimony

Rule 609 – Impeachment through prior convictions

609(a)(1) Felony convictions
of witnesses (not DEF) are admissible if they pass complete 403 analysis
of DEF are admissible so long as probative value doesn't outweigh prejudice
609(a)(2) Convictions for any crime where dishonesty is an element is admissible (perjury, consumer fraud, forgery, NOT murder)
609(b) Convictions 10+ years old must all pass the reverse 403 test
DEF motions in limine can exclude certain evidence before trial, but if decision comes down against DEF and she wants to preserve appeal, must take the stand and wait for prosecution to bring out convictions

Rule 611Order of presentation

  • 611(a) Judge determines order (great discretion)
  • 611(b) Cross exam limited to subjects opened for discussion on direct (other party can call witness later to testify to unraised issues)
  • 611(c) Can only ask leading questions to unfavorable witnesses (on direct or cross)

Rule 613 - Lies & the Lying Liars who tell them

  • Prior Inconsistent Statement (not general character, just a specific instance)
    Impeachable inconsistencies - 1) Two conflicting statements, 2) Admission after earlier silence (except Mirandized DEFs), & 3) Suspicious memory lapses
    • Rule 613(b) Where prior inconsistency admitted, witness must get opportunity to explain difference
    Can prove with extrinsic evidence of prior inconsistent, but where there is both general character and specific evidence, then apply 403
  • Contradiction from another source (not prior inconsistent statements of same party)
    Can prove with extrinsic evidence if probative value high under 403
  • Capacity (incapable of accurately account) - 1) No memory, 2) Mental impairment, & 3) Cannot inquire (re: religion or in therapy)
  • Bias or motive (not bad character, but circumstantial unreliability) Can prove with extrinsic evidence if probative value high under 403
  • Rule 806 - allows for impeachment of hearsay declarants (follow same basic premises laid out in 608, 609, 613)
  • Prior consistent statements can be used to rehabilitate a witness, to explain a prior inconsistency, to rebut claims of bias

Opinion Witnesses[edit]

Rule 701Lay witnesses may only testify opinions & inferences:

a) based on their perceptions, b) where helpful to jury, and c) requiring no technical or specialized knowledge
  • Includes lay opinion of party's mental state (not expert opinion/diagnosis)
  • Excludes info jury can determine based on the evidence before them
Cannot posit legal conclusions, but may make observations that jury can translate into conclusions (“out of control” = “malice aforethought”)

Rule 702Experts may only testify technical or specialized knowledge to the extent that:

  • Witness is qualified, helpful to jury, and testimony is based on 1) facts 2) the reliable methods and 3) proper application of methods to facts
Reliability - Judge determines whether expert meets qualifications by... Two Tests (Frye & Daubert)
  • Frye test: Looks to field's acceptance of methodology (Not personally determining reliability; Slow to incorporate new methods)
  • Daubert test: Makes sure methods are determinative of knowledge (Personally discerning reliability, acting as gatekeeper). He considers:
    • Verifiable, falsifiable, objective
    • Peer-reviewed studies and methodologies
    • Rate of error/protocols
    • Generally accepted as reliable (throwback to Frye)
General rules that have developed
  • skepticism about animal studies (unless replicable & no human studies exist)
  • acceptance of epidemiological studies (as long as not in anticipation of litigation)
  • skepticism where there is an analytic gap or lack of replicability
  • skepticism where there is a bad fit between the testimony and the facts of the case
  • acceptance of differential diagnosis when not based entirely on temporal connection and where expert rules out other known possible causes
  • acceptance of design testing where someone has actually tested
  • acceptance of probability evidence where it has empirical bases, independent factors, and confounding factors are ruled out
Nonscientific expert must undergo Daubert review
  • Judge may consider whether the expert would use same methods in own work
  • Judge may require experience-based expert to describe method and likelihood of error
Judge must apply Rule 104(a) as well as 702 (testimony must be more reliable than not)
Qualified → only in field of expertise (some areas wider than others) & requirement is not intended to require excessive specialization
Assist Jury → If jury would figure it out alone, no need for expert
Generally admitting unnecessary testimony is harmless, but may be harmful if actually subtle credibility rather than expert testimony

Rule 703 – Bases of expert testimony need only be the type reasonably relied upon by experts in field to be admissible (Need not be personal observation)

Note: Attempt to avoid allowing party to introduce hearsay through experts
  • When expert is using inadmissible info as basis for decision, the basis is not disclosed
  • Unless it passes a reverse 403 (probative value outweighs prejudicial)

Rule 704Experts may state opinions as to ultimate issues, except with regard to mental state of DEF in criminal case when an element of the crime

Rule 705Expert need not disclose bases for opinion in initial testimony, but may be asked about bases on cross

Rule 706Judge can appoint expert either by parties' agreement or her own choosing

Crossover between lay & expert witnesses - Differences in disclosure requirements

  • Criminal - Lay witnesses not disclosed, Experts include reports and CV
  • Civil - Lay witnesses listed, Experts include reports and CV
Same person can be both a lay and opinion witness – depends whether she is relying on specialized knowledge


801: Definitions – (d) Statements which are not hearsay[edit]

Rule 801(d)Exemptions for specified Testimonial Statements

R801(d)(1)Prior statements & identifications:
R801(d)(1)(a) – of a witness under oath that is inconsistent with statements at trial
R801(d)(1)(b) – of a witness that is consistent with statements at trial for rehabilitating impeached witness (from recent fabrication or motive to falsify)
R801(d)(1)(c)All Prior Identifications
R801(d)(2)Admissions & Adoptions:
R801(d)(2)(a)Party Admissions (do not have to be made based on personal knowledge)
R106Completeness (if only part of an admission hearsay statement is introduced, the other party may introduce the rest to reduce prejudice)
R801(d)(2)(b)Adoptions (silent acquiescence to other's admissions) (equal to DEF’s own statements)
R801(d)(2)(c) – statements made by Speaking Agents (includes translators, lawyers)
R801(d)(2)(d) – statements made by Agents (employee) within their scope of employment
R801(d)(2)(e) – statements made by Co-conspirators (equal to DEF’s own statements)
DEF & declarant must be Co-conspirators and Statement must be made during course & in furtherance of conspiracy
Judicial decision – by preponderance of the evidence, including hearsay evidence, but only in part (Rule 104(a))
If the nonhearsay evidence is not at all suspicious, that is not sufficient (as amended)

802: Hearsay Rule[edit]

Rule 802Hearsay (out-of-court statement offered for its truth) inadmissible, except under specific rules & exceptions

Not HeresayNon-testimonial statements (those not offered for truth)
  • Statements offered for effect on listener (rather than truth/content of the statements)
  • Words of independent legal significance (have an effect when uttered – like a contract) are not hearsay
  • Implied assertions where, fairly construed, the intent was not to communicate assertion
But always apply 403 where evidence is introduced this way

803: Hearsay Exceptions; Availability of Declarant Immaterial[edit]

Rule 803Reliable statements, whether or not declarant unavailable, where

R803(1) – made Immediately describing event that just happened & verifiable (present sense impressions)
R803(2) – made relating to & under influence of startling event (excited utterances from personal knowledge)
R803(3) – about declarant’s physical or mental state (including to prove planned conduct or intent of the declarant)
  • Must relate to prediction of future behavior based on state of mind, not just a statement of belief about a past act; Must still pass 403 analysis as well
R803(4) – of a patient to doctor describing conditions where pertinent to treatment or diagnosis
R803(5)recorded after events can be read into record in place of testimony where the declarant no longer has clear memory of event but will be available for cross-examination
Rule 612 - If declarant refreshes on stand, opponent has right to look at record (but if before taking stand, judge decides)
Rule 803(6)Business records can be admitted where they describe regularly conducted business, are reliable & regularly recorded, and someone can attest to accuracy & recording procedures
  • Business reports admissible where unfavorable or written in advance of litigation, NOT written in anticipation of litigation
  • Opinions in business records must meet Daubert standards
Rule 803(7)Non-existence of Record where records kept regularly (demonstrating event did not take place)
Rule 803(8)Government Records (without even having someone qualify the records)
No requirement of contemporaneity or regularity
Civil cases - Party can challenge admission and argue unreliable circumstances around preparation (How should expert info included in report be treated?)
Criminal cases - Law enforcement reports require greater skepticism – motive to fabricate?
Generally admitted are reports not aimed at a particular defendant (autopsy reports are admitted because it would be difficult for coroner to change report to implicate one individual defendant) but DNA reports, breathalyzer, etc. are not admitted
Rule 803(10)Non-existence of Public Record where records kept (affidavit to that effect)
Rule 803(18)Statements in authoritative learned treatises to prove a fact in lieu of expert testimony
Where evidence is admitted it is read into the record rather than producing as an exhibit

804: Hearsay Exceptions; Declarant Unavailable[edit]

Rule 804Declarant unavailable (a) and testimony falls into a specified category (b)

R804(a)Reasons for unavailability (burden to establish on proponent; won't stand if procured by proponent)
R804(a)(1) - Witness declares a privilege (must be done formally)
R804(a)(2) - Witness refuses to testify despite order
R804(a)(3) - Memory lapse (United States v. Amaya pg 610)
R804(a)(4) - Death, illness, or infirmity (United States v. Faison pg 613)
R804(a)(5) - Absence – Efforts to bring declarant made, but 1) could not find him 2) he is beyond subpoena power
Where party wants to bring evidence of statement against interest by an absent declarant, the party must use a deposition rather than hearsay
R804(b)Types of Admissible Testimony
R804(b)(1)Prior testimony under oath at a trial or deposition with cross-examination (grand jury not acceptable)
  • Party identity required in criminal cases (right to confront); Not in civil, so long as original cross had similar motive & opportunity to develop testimony
R804(b)(2)dying declarations where declarant believed own death imminent and makes statements about the circumstances of death
  • Must prove declarant had personal knowledge of things he alleged by preponderance of the evidence
R804(b)(3)declarations against interest, distinguished from those reasonable person think in declarant’s interests (eg. admissions currying favor with police)
Declarant’s statement against interest being used by defendant to exculpate must also meet additional test
  • Corroboration of truth? 1) physical evidence, 2) statements prior to act indicating intent, 3) inside knowledge, & 4) plausible account
Note difference between an admission & a declaration against interests
R804(b)(4)about declarant’s family history
R804(b)(6)offered against party that procured unavailability (forfeited and thus admissible)
  • Must prove by preponderance of the evidence party procured unavailability with intent & wrongful conduct

807: Residual Exception[edit]

Rule 807Reliable hearsay, but not covered by any other exception

  • Reliability may be related to timing of statement, setting, identity of listener or declarant, corroboration, or similarity to an existing exception
  • Must be evidence of a material fact and more probative than any other available evidence
  • Notice requirement (this justification cannot just be tossed out as a last resort)

Confrontation Clause – 6th Amend conflict[edit]

Testimonial statements cannot be introduced without opportunity for cross in criminal cases (Crawford)
  • Testimonialstatements to police, grand jury, & prior testimony in criminal cases, et al. where main motivation is preparation for litigation
    If Not Testimonial, then Confrontation Clause pose no bar to admissibility
Implications of Crawford for Sixth Amend on Hearsay testimony
803(1) present sense impression → not testimonial (No Impact)
803(2) excited utterances → not testimonial (post-Davis) (No Impact)
803(3) state of mindwhere statement made in anticipation of litigation (Impact)
803(4) medical info pertinent to treatmentwhere medical professional working with prosecutor (Impact)
803(5) past recollection recorded → declarant is already on the stand (No Impact)
803(6) business records – mere ministerial affidavits (No Impact)
803(8) public records → not created for adversarial purposes (No Impact)
803(10) → like 803(6), mere ministerial affidavits (No Impact)
804(b)(1) prior testimony → had an opportunity to cross examine (No Impact)
804(b)(2) dying declarations → no law enforcement involved (No Impact)
804(b)(4) statements against interestwhere declarant talking to law enforcement (Impact)
804(b)(6) forfeiture → forfeit extends to both confrontation & hearsay (No Impact)
807 residual exceptionmuch less useful because it cannot create an exception for grand jury testimony, etc. (Impact)
  • Bruton requirements – where jury doesn't have to make any inferences to get to the wrong result (precluded by Confrontation Clause concerns) the evidence must be excluded or presented differently
Face to face confrontation is guaranteed unless it would be traumatic to witness (qualified right)

Authentication and Best Evidence Rule[edit]

Producing records and physical evidence
Rule 901 – Sufficient evidence to establish authenticity? Examples 1) handwriting specialists, 2) circumstantial evidence, 3) email addresses, & 4) photographers
Best evidence rule (intended to prevent fraud)
When arguing about document content, must produce an original (or Xeroxed duplicate), or if none must prove some other way

Cases in Class[edit]

Crawford v. Washington

Griffin v. California, 380 U.S. 609 (1965)

Folkerson v. Circus Circus Enterprises (9th Circ.)

Court rejects an employee’s claim that her employer failed to protect her from a nonemployee’s harassment. However, it held that “an employer may be . . . liable for sexual harassment on the part of a private individual, such as a casino patron, where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct."

The plaintiff, a casino performer, complained to her employer on numerous occasions that customers tried to touch her. The employer took several measures to discourage casino patrons from touching the employee, including allowing a coworker to accompany her during her performance, encouraging the plaintiff to call security if she felt threatened, and enlisting the help of other casino employees to call security if patrons attempted to touch the plaintiff. Despite these precautions, a casino patron grabbed the plaintiff during her performance. The plaintiff struck the patron and was thereafter terminated. The plaintiff sued her employer, alleging that she was terminated in retaliation for her opposition to the casino patron’s sexual harassment. The employer moved for and was granted summary judgment.

On appeal, the Ninth Circuit affirmed the grant of summary judgment. Although it did not elaborate on what corrective action is appropriate, it found that the plaintiff failed to provide sufficient evidence that the employer ratified or acquiesced in the patron’s conduct. It also noted that the employer took reasonable steps to ensure the plaintiff’s safety from customer harassment. The First, Eighth, and Tenth Circuits have adopted the reasoning in Folkerson and held that an employer may be liable for sexual harassment by a nonemployee.



   * Rule 101. Scope
   * Rule 102. Purpose and Construction
   * Rule 103. Rulings on Evidence
   * Rule 104. Preliminary Questions
   * Rule 105. Limited Admissibility
   * Rule 106. Remainder of or Related Writings or Recorded Statements


   * Rule 201. Judicial Notice of Adjudicative Facts


   * Rule 301. Presumptions in General Civil Actions and Proceedings
   * Rule 302. Applicability of State Law in Civil Actions and Proceedings


   * Rule 401. Definition of "Relevant Evidence"
   * Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
   * Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
   * Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
   * Rule 405. Methods of Proving Character
   * Rule 406. Habit; Routine Practice
   * Rule 407. Subsequent Remedial Measures
   * Rule 408. Compromise and Offers to Compromise
   * Rule 409. Payment of Medical and Similar Expenses
   * Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
   * Rule 411. Liability Insurance
   * Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
   * Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
   * Rule 414. Evidence of Similar Crimes in Child Molestation Cases
   * Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation


   * Rule 501. General Rule


   * Rule 601. General Rule of Competency
   * Rule 602. Lack of Personal Knowledge
   * Rule 603. Oath or Affirmation
   * Rule 604. Interpreters
   * Rule 605. Competency of Judge as Witness
   * Rule 606. Competency of Juror as Witness
   * Rule 607. Who May Impeach
   * Rule 608. Evidence of Character and Conduct of Witness
   * Rule 609. Impeachment by Evidence of Conviction of Crime
   * Rule 610. Religious Beliefs or Opinions
   * Rule 611. Mode and Order of Interrogation and Presentation
   * Rule 612. Writing Used to Refresh Memory
   * Rule 613. Prior Statements of Witnesses
   * Rule 614. Calling and Interrogation of Witnesses by Court
   * Rule 615. Exclusion of Witnesses


   * Rule 701. Opinion Testimony by Lay Witnesses
   * Rule 702. Testimony by Experts
   * Rule 703. Bases of Opinion Testimony by Experts
   * Rule 704. Opinion on Ultimate Issue
   * Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
   * Rule 706. Court Appointed Experts


   * Rule 801. Definitions
   * Rule 802. Hearsay Rule
   * Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
   * Rule 804. Hearsay Exceptions; Declarant Unavailable
   * Rule 805. Hearsay Within Hearsay
   * Rule 806. Attacking and Supporting Credibility of Declarant
   * Rule 807. Residual Exception


   * Rule 901. Requirement of Authentication or Identification
   * Rule 902. Self-authentication
   * Rule 903. Subscribing Witness' Testimony Unnecessary


   * Rule 1001. Definitions
   * Rule 1002. Requirement of Original
   * Rule 1003. Admissibility of Duplicates
   * Rule 1004. Admissibility of Other Evidence of Contents
   * Rule 1005. Public Records
   * Rule 1006. Summaries
   * Rule 1007. Testimony or Written Admission of Party
   * Rule 1008. Functions of Court and Jury


   * Rule 1101. Applicability of Rules
   * Rule 1102. Amendments
   * Rule 1103. Title