FRE Description Notable Nuances Rationale606(b) Juror’s Competency as a Witness During Inquiry

During an inquiry into the validity of a verdict/ indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s/another juror’s vote; or any juror’s mental processes concerning the verdict of indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.Exceptions: A juror may testify about whether extraneous prejudicial information was improperly brought to the jury’s attention, an outside influence was improperly brought to bear on any juror, or a mistake was made in entering the verdict on the verdict form.

This rule deals only with the competency of jurors to testify concerning the grounds for setting aside verdicts–it does not specify the substantive grounds for setting aside verdicts for irregularity.

Freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. But, simply putting verdicts beyond effective reach can only promote irregularity and injustice.

The central focus under federal decisions has been upon insulation of the manner in which the jury reached its verdict.

Jurors may testify as to prejudicial extraneous information/influences injected into/brought to bear upon the deliberative process.

401 Relevance Evidence is relevant if (a) it has any tendency to make a fact more/less probable that it would be without the evidence and (b) the fact is of consequence in determining the action.

Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter proprerly provable in the case.

Standard: More probable than it would be without the evidence.

The fact to which the evidence is directed need not be in dispute (could be excluded under 403 though).

LOW BAR402 General Admissibility of Relevant Evidence

Relevant evidence is admissible unless the Constitution, federal statute, FRE, or other rules prescribed by the S. Ct. says otherwise. Irrelevant evidence is inadmissible.

Not all relevant evidence is admissible.

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104(b) Relevance that Depends on Facts

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Conditional Relevance standard: Huddleston standard. Lower standard. If the jury reasonably could conclude that fulfillment of the condition is established, the issue is for them. See fn p. 15.

The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted.

Arguable, judge should only use admissible evidence to make this determination.

This is a factual determination, so the jury should ultimately decide.

403 Excluding Relevant Evidence

The court may exclude evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Unfair prejudice: an undue tendency to suggest decision on an improper basis, commonly emotional basis.

Consideration should be given to the probable effectiveness of a limiting instruction when deciding whether to exclude on grounds of unfair prejudice.

Certain circumstances call for the exclusion of evidence which is of unquestioned relevance. BUT WHY.

407 Subsequent Remedial Measures

When measures are taken that would have made an earlier injury/harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence, culpable conduct, a defect in product/design, or a need for a warning/instruction.

Evidence may be offered for purposes other than fault, such as ownership, control, existence of duty, and feasibility of precautionary measures if controverted, and impeachment.

Actions a 3rd party takes are not covered under the rule, however, probably not relevant–so also excluded.

1. The conduct is not in fact an admission of fault since the conduct is equally consistent with injury by mere accident/through contributory negligence. 2. Social policy of encouraging people to take steps in furtherance of added safety.

408 Evidence of following is not admissible, on The rule requires that the claim be The evidence is irrelevant, since the offer

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Compromise Offers and Negotiations

behalf of any party, to prove/disprove the validity/amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: furnishing/ promising/ offering/ accepting/offering to accept a valuable consideration in compromising or attempting to compromise the claim and conduct or a statement made during compromise negotiations about the claim (except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority). Exceptions: The court may admit this evidence for another purpose, such as proving a witness’s bias/prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal prosecution/investigation.

disputed as to either validity or amount.

408(a)(2): Lines are more blurred than in the criminal context. Agency is police + judge all in one. Rule writers want agencies to be able to investigate, use information against you.

Where you think there will be a claim, but no claim yet, the evidence comes in.

may be motivated by a desire for peace rather than from any concession of weakness of position.

Also, promotion of public policy favoring the compromise and settlement of disputes.

409 Offers to Pay Medical and Similar Expenses

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

Does not require a disputed claim. Evidence of payment of medical expenses of an injured party by the opposing party is not admissible because such offer is usually from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person.

410 Pleas (a) Prohibited uses: in a civil or criminal case evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: guilty plea later withdrawn, nolo contondre plea, statement made during a proceeding on either of those please under FRCrimPro 11 or a comparable state procedure, or a statement made during plea discussions with prosecuting attorney if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions: The court may admit a 410(3)/(4) statement in any proceeding in which another statement made during the same plea/discussions has been introduced if in

Use for/against other persons will not impair the effectiveness of withdrawing pleas or the freedom of discussion which the rule fosters, so the exclusionary rule is limited as against the accused only.

To admit the withdrawn plea would set at naught the allowance of withdrawal and place the accused in a dilemma inconsistent with the decision to award him a trial. Admitting the plea compels defendant to take the stand to explain, and opens the way for the prosecution to call the lawyer who represented the defendant at the time of entering the plea.

Exclusion of offers to plead guilty/nolo has its purpose the promotion of disposition of criminal cases by compromise.

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fairness the statements ought to be considered together or in a criminal proceeding for perjury/false statement if the defendant made the statement under oath/on record and with counsel present.

411 Liability Insurance

Evidence that a person was/was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But, the court may admit this evidence for another purpose, such as bias/prejudice/agency/ ownership/control.

The rule is drafted broadly to include contributory negligence or other fault of a plaintiff as well as fault of a defendant.

If offered for a purpose not barred, its admissibility remains governed by the general principles of 402, 403, 801.

Note: liability insurance does not include–casualty insurance

True 403 Surrogate

Tenuous inference at best. Also, feeling that knowledge of the presence/absence of liability insurance would induce juries to decide cases on improper grounds.

404(a)(1) Prohibited Character Uses

Evidence of a person’s character/trait is not admissible to prove that on a particular occasion the person acted in accordance with the character/trait (not allowed for propensity).

Most jxs do not allow circumstantial use of character (propensity), with exceptions. See rest of rule.

True 403 Surrogate

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404(a)(2) Exceptions for a ∆ or Victim in a criminal case

In a criminal case: A) A ∆ may offer evidence of ∆’s pertinent

trait, and if admitted, the P may offer evidence to rebut.

B) A ∆ may offer, subject to 412, evidence of V’s pertinent trait and P may then reb, and offer evidence of ∆’s same trait.

Limitation to pertinent traits of character rather than character generally

In most jxs, circumstantial use of character is prohibited except for these.

404(b) Crimes, Wrongs, or other Acts

Prohibited: 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.

Permitted: Anything else. Evidence may be admissible for another purpose (e.g. motive, opportunity, intent, preparation, plan,

This is almost superfluous due to (a).

No mechanical solution is offered–the determination must be made whether the dange of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under

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knowledge, identity, absence of mistake, or lack of accident). In request by a criminal D, the prosecutor must provide reasonable notice of the general nature of such evidence and do so before trial (or during if court excuses due to good cause)

Rule 403.

This rule recognizes routes around the propensity box–not true “exceptions” to propensity ban.

413 Similar Crimes in sexual assault cases

Criminal case in which D is accused of sexual assault, the court may admit evidence that the D committed any other sexual assault. It may be considered on any matter to which it is relevant. The prosecutor must disclose that it intends to offer this evidence, including witness’s statement/s at least 15 days before trial/later for good cause. The rule does not limit the admission/consideration of evidence under any other rule. Sexual assault defined in (d).

These 3 rules presume admissibility.

To implement the legislative intent, the courts must liberally construe these rules.

These cases are distinctive, and turn on difficult credibility determinations. Knowing that the defendant has committed raes on other occasions is frequently critical in assessing the reltive plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.

414 Similar Crimes in Child-Molestation

In a criminal case in which a D is accused of child molestation, the court may admit evidence that the D committed any other child molestation, and it may be considered on any matter to which it is relevant. Same disclosure reuquirements. (d) defines child molestation.

A history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendant–a sado-sexual interest in children–that simply does not exist in ordinary people. Plus, reliance on child victims whose credibility can be attacked without substantial corroboration.

415 Similar Acts in Civil Cases Involving Sexual Assault/Child Molestation

In a civil case involving a claim for relief based on a party’s alleged sexual assault/child molestation, the court may admit evidence that the party commited any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. Same disclosure requirement.

All preceding 3 enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. The Judicial Conference opposed the new rules and recommended that Congress abandon/redraft. They took effect as written in 1995.

Congressional Intent relevant here. Book: p. 219–222.

To protect the public from crimes of sexual violence. This reform is critical to the protection of the public from rapists and child molesters, and is justified by the distinctive characteristics of the cases it will affect.

404(a)(2)(A) Character Evidence Exceptions for a Defendant in a Criminal Case

In Criminal cases, a defendant may offer evidence of his pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

The limitation to pertinent traits of character, rather than character generally is in accordance with the prevailing view.

D may always present this evidence

P may rebut only if D opens the door.

An underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. The criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts about the basic relevancy of evidence.

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404(a)(2)(B) Character Evidence Exceptions for a Victim in a Criminal Case

In a criminal case, subject to 412 limitations, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the Prosecutor may offer evidence to rebut it and offer evidence of the defendant’s same trait.

P may present this evidence only if ∆ opens the door

405 Methods of Proving Character

(a) By reputation/opinion: when evidence of a person’s 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 of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct. (b) By Specific Instances: When a person’s character/trait is an essential element of a charge/claim/defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

This requirement does not apply to rules 413–415: these rules require proof by specific acts.

Evidence of specific instances of conduct possesses the greatest capacity to arouse prejudice, confuse, surprise, and to consume time. Therefore, the rule confides this evidence to cases in which character is in issue and hence deserving of a searching inquiry. When character is used circumstantially proof may be only by reputation and opinion.

406 Habit; Routine Practice

Evidence of a person’s habit/an organizations routine practice may be admitted to prove that on a particular occasion the person/organization acted in accordance with the habit/routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Habit is more specific than character–it is a person’s regular practice of meeting a particular kind of situation with a specific type of conduct. Ex: turn signal, seatbelt. Not religious practies–not invariable regularity. Volitional.

Drunkenness is not a habit: it is not mechanistically repetitive and it carries moral connotations.

Habit evidence is highly persuasive as proof of conduct on a particular occasion.

404(a)(3) Character Evidence Exception for a Witness

Evidence of a witness’s character may be admitted under rules 607, 608, and 609.

607 Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s credibility.

608 A Witness’s Character for

(a) Reputation/Opinion: A witness’s credibility may be attacked/supported by testimony about the witness’s reputation for having a

By testifying on another matter, a witness does not waive any privilege

The rule is limited to character for veracity, rather than allowing evidence as to character generally to sharpen relevancy,

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Truthfulness/Untruthfulness

character for truthfulness/ untruthfulness or by opinion testimony about that character. But evidence of truthful character is admissible only after the witness’s truthfulness has been attacked. (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. 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: the witness or another witness whose\ character the witness being cross-examined has testified about.

against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

IF CRIMINAL CONVICTIONS, GO TO 609.

Party has to have testified to attack under this rule.

reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less unattractive.

609 Impeachment by Evidence of a Criminal Conviction

(a) Attacking a witness for truthfulness by evidence of a criminal conviction: (1) for a “felony”, the evidence must be admitted, subject to 403, in a civil/criminal case in which the witness is not a Defendant, and must be admitted in a criminal case in which the W is a defendant if the probative value outweighs its prejudicial effect to that defendant, and (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/false statement. (b) If 10 years have passed since the witness’s conviction/release, whichever is later, then evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial value and 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. (c) If the conviction has been the subject of a pardon, annulment, or certificate of rehabilitation, then evidence of the conviction is inadmissible.

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

a(2): must be admitted means 403 doesn’t apply. Admitted automatically.

IF STALE look at 609(b)–typically don’t admit bc PV has to substantially outweigh UP

IT MUST BE READILY DETERMINABLE THAT ESTABLISHING ELEMENTS OF CRIME REQUIRED PROVING DISHONEST ACTS/FALSE STATEMENTS (ACNs)

There is general agreement that at least some crimes are rrelevant to credibility, but much disagreement among the commentators about which crimes are usual for this purpose. The rule incorporates basic safeguards–definite time limitations, giving effect to rehab, and generally excluding juvenile adjudications.

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Juvenile adjudications are admissible only if offered in a criminal case, witness is not a defendant, a similar adult conviction would be admissible, and admitting the evidence is necessary to fairly determine guilt/innocence.

412 Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition

In a civil/criminal proceeding involved alleged sexual misconduct, the following evidence is not admissible: evidence to prove a victim engaged in other sexual behavior, or to prove a victim’s sexual predisposition. Exceptions in criminal cases: the court may introduce specific instances of a victim’s sexual behavior to prove that someone other than the ∆ was the source of physical evidence; and of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the ∆ to prove consent/if offered by the prosecutor, and evidence who exclusion would violate the defendant’s constitutional rights. Exception in Civil Cases: the court may admit evidence offered to prove a victim’s sexual behavior/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. Procedure to Determine Admissibility: File a mtion that describes evidence and states the purpose 14 days before trial, serve motion on all parties and notify the victim, also a hearing, victim includes alleged victim.

403 still applies

412 supersedes 404

The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment, and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process. By affording victims protection in most instances, the rule encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.

801 Hearsay Only directed at people 801(a) Statement

Statement means a person’s oral/written assertion, or nonverbal conduct, if the person intended it as an assertion.

When conduct is offered on the theory that it is not a statement, and not hearsay, a preliminary determination will be required to determine whether an assertion is intended–burden is on the party claiming that the intention

Verbal assertion falls into “statement”. Some nonverbal conduct easy as well. Other nonverbal conduct offered as evidence that the person acted as he did because of his belief in the existence of the conduction sought to be proved, from which his belief in

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existed.

Ambiguous cases are resolved in favor of admissibility.

the existence of the condition may be inferred–this is an assertion of the existence of the condition. Although untested with respect to perception, memory, and narration, these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. Likelihood of fabrication is less with nonverbal than with assertive verbal conduct.

801(b) Declarant

The person who made the statement.

801(c) Hearsay

Statement that the declarant does not make while testifying at the current trial/hearing and a party offers in evidence to prove the truth of the matter asserted in the statement.

Only statements offered for their truth. Hearsay does not satisfy the ideal conditions for testifying.

802 Rule against Hearsay

Hearsay is not admissible unless any of the following provides otherwise: a federal statute, these rules, or other rules prescribed by the Supreme Court.

Federal Rules of Civil/Criminal Procedure, Acts of Congress.

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801(d)(2) Opposing Party’s Statement Against Opposing Party

Admissions by a party opponent Declarant need not have personal knowledge (but see E)

Their admissibility it the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.

801(d)(2)(A) Made by Party

OP’s statement offered against OP and made by party/party representative

If he has a representative capacity and the statement is offered against him in that capacity, no inquiry whether he was acting in the representative capacity in making the statement is required.

801(d)(2)(B) Manifested/ Adopted to be

OP’s statement offered against OP and is one the party manifested that it adopted or believed to be true.

Admission can be made by adopting another’s statement–need not have knowledge of contents. Mahlandt.

Silence: The person would, if untrue, protest the statement made in his presence. Mitigated in criminal cases by right to

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True Can be by conduct. Adoption/acquiescence may be manifested in any appropriate manner, including silence.

counsel/custodial interrogation.

801(d)(2)(C) Party Authorized

OP’s statement offered against OP and was made by a person whom the party authorized to make a statement on the subject.

The rule is phrased broadly to include both statements made to third persons and statements made by agent to principal. Communication to an outsider has not been thought to be an essential characteristic of admission. A party’s books/records are usable against him without regard to any intent to disclose to third persons.

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801(d)(2)(D) Party’s Agent/ Employee

OP’s statement offered against OP and was made by the party’s agent/ employee on a matter within the scope of that relationship and while it existed.

Use the usual test of agency: was the admission made by the agent acting in the scope of his employment? Since few principles employ agents to make damaging statements, usual exclusion of the statement. Trend for admittiong statements related to a matter in the scope of the agency.

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801(d)(2)(E) OP’s statement offered against OP and was made by the party’s coconspirator during and in furtherance of the conspiracy.

Limited to statements made during the course of and in furtherance of the conspiracy.

Cheng: Interpreted broadly and doesn’t require actual conspiracy – just that you hang around

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104(a) Preliminary Questions

The court must decide any preliminary question about whether a witness is qualified, privilege exists, or evidence is admissible. Court is not bound by evidence rules, except those on privilege.

By a preponderance of the evidence.

Must read with 104(b), which modifies 104(a).

Judge can use any evidence, including inadmissible evidence, to make determination. Jury can still choose to ignore the evidence it hears though!

The admissibility of evidence will turn upon the answer to the question of the existence of the condition. Often rulings on evidence call for an evaluation of facts in terms of a legally set standard.

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801(d)(1) Statements that are Not Hearsay

Several types of statements which would otherwise literally fall within the definition of hearsay are expressly excluded from it.

801(d)(1)(A) Declarant’s Inconsistent Prior Statement

Declarant-witness testifies, subject to cross, about a prior statement, and the statement is inconsistent with the declarant’s testimony and was given under perjury penalty at trial/hearing/deposition.

Traditionally only admissible to impeach, but under the rule, they are admissible as substantive evidence.

The trier of fact, with the declarant before it, is in as good a position to determine the truth of the prior statement and of the inconsistent testimony given in court.

801(d)(1)(B) Declarant’s Consistent Prior Statement

Declarant-witness testifies, subject to cross, about a prior statement, and the statement is consistent with the declarant’s testimony offered to rebut an express/implied charge that the declarant has recently fabricated it/acted from a recent improper influence/motive in so testifying or to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

New addition.

Substantive evidence. √

Tome–Prior consistent statements are irrelevant unless made before the time of the fact said to indicate bias.

Still does not allow the bolstering of a witness–statement may only be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked.

Must satisfy 403.

If the opposite party wishes to open the door for a prior consistent statement’s admission, there is no sound reason apparent why it should not generally be received.

801(d)(1)(C) Declarant’s Prior Identification

Declarant-witness testifies, subject to cross, about a prior statement that identifies a person as someone the declarant perceived earlier.

Lineup IDs. Courtroom identifications are generally unsatisfactory/ inconclusive as compared with those made at an earlier time under less suggestive conditions.

804(a) When is a declarant unavailable?

Exempted from testifying by privilege, refuses to testify despite order, testifies to not remembering, cannot be present/testify because of death/mental/physical illness, or absent and proponent has been unable to get attendance (under exception 804b1 or 6) or attendance/testimony (under 804b2/3/4).

Declarant is not “unavailable” if the proponent procured/wrongfully caused the declarant’s unavailability to prevent the declarant from attending/testifying.

- Want to encourage statements to get on the record–testimony, or at least a deposition

804(b)(1) Testimony

Testimony that was given as a witness at a trial/hearing/lawful deposition and now offered

Evidence may be offered (1) against the party against whom it was previously

The only missing one of the ideal conditions for giving testimony is presence of trier and

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Exception: not excluded by rule against hearsay-

against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination.

offered, or, (2) against the party by whom it was previously offered.

opponent–demeanor evidence. Oath and cross-examination were present in fact. Could be argued this belongs in 803, but observing demeanor gives depth and meaning to oath/cross. Production of witness is preferable. If offered (1), no unfairness in requiring him to accept his own prior cross; if (2) then adoptive admission… or … recognize direct/redirect of one’s own witness as equivalent of crossing an opponent’s witness.

804(b)(2) Belief of Imminent Death

In a prosecution for homicide/in a civil case, statement by declarant, while believing own death’s imminence, made about its cause/circumstances.

Originally had a religious justification (at common law). Still there are powerful psychological pressures.

804(b)(3) Statement against Interest

A reasonable person in declarant’s position would only have made statement if he believed it to be true because it is so contrary to proprietary/pecuniary interest/expose to liability and supported by corroborating circumstances that indicate its trustworthiness if offered in a criminal case that exposes declarant to criminal liability.

This is a liberalizing rule.

testimony has self-incrimination implications.

The circumstantial guaranty of reliability is the assumption that persns do not make statements which are damaging to themselves unless satisfied for good reason that they are true.

806 Attacking and Supporting the Declarant’s Credibility

When a hearsay statement, or described in 801(d)(2)(C/D/E) has been admitted, the declarant’s credibility may be attacked/then supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Inconsistent statements may be admitted, regardless of when or whether given opportunity to exaplain. If party against whom statement was admitted calls declarant as a witness, the party may examine the declarant as if on cross-examination.

The declarant of admitted hearsay is in effect a witness, so his credibility should fairly be subjected to impeachment and support as through he had in fact testified.

804(b)(6) Statement offered Against a Party that

A statement offered against a party that wrongfully caused/acquiesced in wrongfully causing–the declarant’s unavailability as a witness, and did so intending that result.

The rule applies to all parties, including the federal government.

The wrongdoing need not consist of a criminal act.

This is a prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself.

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Wrongfully Caused the Declarant’s Unavailability803 v. 804 exceptions

Rule 803 operates regardless of whether the declarant is available as a witness. 804 requires that declarant be unavailable.

The evidence admitted under Rule 803 is sometimes better than delcarant’s live testimony. A hearsay statement may possess circumstantial guarantees of trustowrthines sufficient to justify nonproduction of the declarant even though he may be available. 804 prefers testimony on the stand over hearsay, hearsay over complete loss of declarant’s evidence (if conditions met).

803(1) Present sense impression

A statement describing/explaining an event/condition, made while/immediately after declarant perceived it.

Regardless of declarant’s availability. Substantial contemporaneity of event and statement negative the likelihood of deliberate/conscious misrepresentation. If W is the D, he may be examined on the statement. If W is not D, he may be examined as to the circumstances as an aid in evaluating the statement.

803(2) Excited utterance

A statement relating to a startling event/condition, made while the declarant was under the stress of excitement that is caused.

Regardless of declarant’s availability.

Biggest distinction with (1) is the time lapse between event and statement allowed.

Circumstances may oroduce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.

803(3) Then-Existing Mental, Emotional, or Physical Condition

A statement of declarant’s then-existing state of mind (motive, intent, plan) or emotional/sensory/physical condition, but not including a statement of memory/belief to prove the fact remembers unless it relates to the validity or terms of the declarant’s will.

Essentially a specialized application of (1), presented separately to enhance its usefulness and accessibility.

Memories/bliefs are excluded to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing the state of mind, provable by hearsay, to serve as the bassi for an inference of the happening of the event which produced the statement of mind.

803(4) Statement made for Medical Dx/Tx

Statement made for and reasonably pertinent to medical dx/tx and describes medical history, past/present symptoms, their inception, or general cause.

Regardless of declarant’s availability.

Traditionally, statements made to a physician consulted only for the purpose of enabling him to testify–rule rejects this limitation.

Statements made have a guarantee of trustworthiness–patient won’t lie to doctor because his health is at risk.

803(5) Recorded

Witness once knew, but can no longer recall well enough to testify accurately, made/adopted

Regardless of declarant’s availability. Unavailability is of a limited and peculiar nature–that the witness not have sufficient

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Recollection by witness when matter was fresh, and accurately reflects the witness’s knowledge.

If admitted, the record can be read into evidence but may be received as an exhibit only if offered by an adverse party.

recollection to enable him to testify fully and accurately. Not having such a limitation would incentivize the use of statements carefully prepared for the purposes of litigation under the supervision of attorneys/claims adjusters/investigators.

612 Writing Used to Refresh a Witness’s Memory

Adverse party’s options when a witness uses a writing to refresh memory–in a criminal case adverse party can have the writing produced at the hearing, inspect it, crossexamine, and introduce in evidence any portion that relates to w’s testimony. If proponent says it contains unrelated matter, court examines it, deletes any unrelated portion, and order the rest to be delivered to adverse party–any portion deleted over objection must be preserved for the record. If Prosecution doesn’t comply in criminal case, the judge must strike the testimony or declare a mistrial; otherwise court may issue any appropriate order if writing is not produced as ordered.

To promote the search of credibility and memory.

803(6) Records of a Regularly Conducted Activity

Record was made at/near time by someone with knowledge, kept in regular course of business, making record was regular a practice, custodian testifies to these conditions/certification that comples, and opponent does not show that the source indicates a lack of trustworthiness.

Regardless of declarant’s availability.

Opponent of evidence has the burden to prove the possible source lacks trustworthiness.

Unusual reliability of business records is supplied by systematic checking, regularity/continuity which produce precision, actual experience of business relying on records, duty to make accrate record as job.

803(7) Absence of a Record of Regularly Conducted Activity

Evidence that a matter is not included in an 803(6) record if the evidence is admitted to prove it did not exist, record was regularly kept for such matters, and opponent does not show source to be untrustworthy.

Regardless of declarant’s availability.

Opponent of evidence has the burden to prove the possible source lacks trustworthiness.

Probably not hearsay, but, some opinions class evidence as hearsay outside any exception. This sets the question in favor of admissibility.

803(8) Public Records

Record/statement of a public office if it sets out office’s activities, is a matter observed while under a legal duty to report (not including, in a criminal case, a matter observed by law enforcement personnel), in a civil case/against government in criminal, factual findings from a legally authorized investigation, and opponent

Regardless of declarant’s availability.

Extends to opinions in legally authorized investigations.

A public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.

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does not show source is untrustworthy. 803(10) Absence of a Public Record

Testimony/902 certification that a diligent search failed to disclose a public record/statement (a) if admitted to prove that the record doesn’t exist, or a matter did not occur/exist if a public office regularly kept a record for such matter, AND (b) in a criminal case, a prosecutor who intends to offer a cert gives written notice at least 14 days before and D does not object within 7 days.

Regardless of declarant’s availability.

Rule includes situations in which absence of a record may itself be the ultimate focal point of inquiry.

Extension of 803(7). The refusal of common law to allow proof by certificate of lack of a record/entry has no apparent justification.

807 Residual Exception

Hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by an 803/804 exception when: The statement has equivalent circumstantial guarantees of trustworthiness, offered as evidence of a material fact, more probative on point for which it is offered than any other evidence proponent can reasonably obtain, and admitting serves purpose of these rules and justice. Only admissible if before trial proponent gives reasonable notice of intent to offer statement and its particulars (name and address).

Used to be part of 803.

701 Lay Witness Opinion Testimony

Lay testimony is limited in the form of an opinion to one that is rationally based on witness’ perception (not hearsay), helpful to understanding testimony/determining a fact in issue (relevant), and not based on specialized knowledge (not expert; see 702)

The rule regards testimony, not witnesses. The same witness can provide both lay and expert testimony ins a single case.

ACN p. 165: Lay witnesses can ID a narcotic if atty establishes a foundation of familiarity with the substance.

ACN: Retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event; assumes that the natural characteristics of the adversary system will generally lead to an acceptable result.

702 Expert Testimony

Expert qualified by knowledge, skill, experience, training, or education may give opinion if testimony (a) will help jury, (b) is based on enough facts/data, (c) product of reliable principles and methods, and (d) expert reliably applied principles & methods to the facts of the case. PLUS RULE 403 (People v. Collins)Daubert factors for court to assess reliability

ACN: An intelligent evaluation of facts is often hard without the application of some scientific, technical, or other specialized knowledge. Experts don’t testify only in opinions, but rule allows experts to take the step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts.

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of scientific expert testimony: whether expert’s theory has been tested, has been subject to peer review, rate of error, standards/controls, general acceptance by scientific community.

703 Bases of an Expert’s Opinion Testimony

1. Facts/data E personally observed, 2. Facts E learned at the hearing, 3. Facts E learned before the hearing.

ACN: Bring judicial practice into line with the practice of experts when they are not in court. P. 176.

704 Opinion on an Ultimate Issue

Opinions that embrace the ultimate issue are not automatically objectionable, except that an expert may not state an opinion about whether the D did/not have a mental state that constitutes an element/defense–those are for jury only.

ACN: Admit opinions when helpful to the trier of fact.

705 Facts/Data Underlying Expert Opinion

Expert may state an opinion and give reasons for it without first testifying to the underlying facts, unless Court orders otherwise. Expert may be required to disclose those facts on cross.

Reverse 403 analysis

Only applies to the proponent of the evidence.

????

901 Authenticating or Identifying Evidence

To satisfy this requirement, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) lists a nonexclusive list of ways to authenticate:(1): Witness with knowledge(2): Nonexpert Handwriting: based on familiarity not acquired for current litigation; may not do comparison. (3): Expert/Jury: comparison. OK to exclude expert with Daubert.(4): Distinctive Characteristics + Circumstances: example being the number of people who could have known the info is so small that its reasonable to conclude it’s him. (5): Voice Opinion identifying a voice(6): Phone Conversation(7): Public Records(8): Ancient Docs/Data Compilations(9): Process/System(10): Methods Provided by Statute/Rule

Governed by 104(b) because it falls within “relevancy dependent upon fulfillment of a condition of fact”.

A jury could reasonably find by a preponderance of the evidence.

Court accepts the examples as prima facie genuine.

Compliance with requirements of authentication or identification does not assure admission since other bars (hearsay) may remain.

standard of proof in authentication is very lax; goes to jury… but for other rules it is higher burden.

Authentication and identification represent a special aspect of relevancy.

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902 Self-Authenticating Evidence

Evidence that requires no extrinsic evidence of authenticity to be admitted:

1) Domestic public documents that are sealed and signed

2) Domestic Public Documents that are not sealed, but are signed and certified.

3) Foreign Public Documents that is signed/attested by a person authorized to do so. Final certification.

4) Certified Copies of Public Records. 5) Official Publications6) Newspapers and Periodicals7) Trade Inscriptions and the Link8) Acknowledged documents. 9) Commericla paper and related

documents. 10) Presumptions under a federal statute.11) Certified domestic records of a

regularly conducted activity. 12) Certified Foreign records of a regularly

conduct activity–in a civil case…

In no instance is the opposite party foreclosed from disputing authenticity.

(5) No such thing as an “ear expert”. While you may bring in a handwriting expert, the AC Notes make clear that you cannot bring in an audio expert to identify the voice on the tape. Familiarity can be acquired before/after the speaking which is the subject of the identification, like visual id (and unlike handwriting).

Sometimes authenticity is taken as sufficiently established for admissibility without extrinsic evidence for policy reasons, but more often because practical considerations reduce the possibility of unauthenticity to a very small dimension.

CONTENT OF WRITINGS, ETC.1001Definitions

Writing: letters, words, numbers, or equivalent in any more

Recording: ^ recorded in any manner

Photograph: image/equivalent stored in any form

Original: itself, counterpart, printout, negative

Duplicate: counterpart produced by a mechanical process/technique that accurately produces the original

1002 Requirement of Original

Original is required to prove its content unless rules/statute provides otherwise

1003 Admissibility

Duplicate is admissible to the same extent as the original unless a genuine question is raised

Usually admissible , unless genuine issue as to its authenticity

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of Duplicates about the original’s authenticity/circumstances that makes It unfair.

1004 Admissibility of other evidence of content

Other evidence of content is admissible if all originals are destroyed not in bad faith… give notice, not closely related to a controlling issue

(d) Sometimes no good purpose served by production of original.

501 Privileges In General

The common law governs a claim of privilege unless the Constitution, federal statute, or S.Ct. rule provides otherwise. BUT in a civil case, state law governs privilege regarding a claim/defense for which state law supplies the rule of decision.

In fed’l criminal actions and in civil actions in fed’l court wehere fed’l law supplies rule of decision, fed. Privilege law applies.

When state law supplies the rule of decision, as in diversity, state privilege law controls.

- Rejected rules only suggest that privileges should be determined on a case-by-case basis.

In civil cases in federal courts where an element of a claim or defense is not grounded upon a fed’l question, there is no fed’l interest strong enough to justify departure from state policy. Also removes incentive to forum shop.

504– Proposed.Psychotherapist–Patient Privilege

Psychotherapist/Psychologist. Confidential if not intended to be disclosed to their persons other than those present to further the patient’s interest. Pt. has privilege to refuse to disclose and to prevent any other person from disclosing confidential communications; patient/guardian/personal representative can claim the privilege. Exceptions: No privilege for hospitalization proceedings, examination by order of judge, condition an element of claim/defense.

2/3 states recognize the privilege by statute

506–Proposed. Communications to Clergymen

Clergyman/person reasonably believed to be so by the person consulting him. A communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. General rule and Who may claim it.

511–Proposed Waiver of Privilege by

A person upon whom these rules confer a privilege against disclosure of the confidential matter/communication waives the privilege if he

A client, by disclosing a subject which he discussed with his lawyer, does not waive the privilege. He would have to

Central purpose of most privileges is the promotion of some interest/relationship by endowing it with a supporting secrecy of

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Voluntary Disclosure

or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.

disclose the communication itself in order to effect a waiver. Ex: I told my attorney that I shot my brother.

confidentiality. The privilege should terminate when the holder, by his own act, destroys this confidentiality.

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Inadmissible

Crimes that are non-felony, non-deceit crimes

Exclude unless violates due process/constitutional/fairness

609(d) Juvenile Adjudications

Admit if PV substantially outweighs UP

Reverse 403 609(b) Stale Felonies (PV 20, UP 80)

Admit if PV outweighs unfair prejudice

609(a)(1)(B) "fresh felonies" of D (PV 50, UP 50)

Admit, unless UP substantially outweighs PV.Admit if PV is not substantially outweighed by any UP.

403 test 609(a)(1)(A) "fresh felonies" of non-criminal D (PV 80; UP 20)

Spectrum of Admissibility Standards

Admissible--Easy To admit 609(a)(2) Fresh Crimes of Deceit PV: 100; UP: 0

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