Evidence
General Conditions of Admissibility
Real evidence must be relevant to the proposition in issue.
1. Authentication
The object must first be identified as being what the proponent claims it to be. Real evidence is commonly authenticated by recognition
testimony or by establishing a chain of custody.
a. Recognition Testimony – Identification
b. Chain of Custody – unbroken chain of custody.
2. Condition of Object; Useful Probativeness - If condition of the object is significant, it must
3.
4. Legal Relevance
a. Physical inconvenience
b. Indecency or impropriety
c. Undue prejudice
D. Particular Types of Real Proof
1. Reproduction and Explanatory Real Evidence – reproductions are admissible - explanatory
purposes not admitted into evidence
2. Maps, Charts, Models – must be authenticated - faithful reproductions
3. Exhibition of Child in Paternity Suits
4. Exhibition of Injuries
a. The exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this
evidence if the exhibition would result in unfair prejudice.
5. Jury View of the Scene Permitted – no attorney comments
6. Demonstrations
a. Demonstrations Showing Effect of Bodily Injury - excluded where would show or inflame the minds of the jury.
b. Demonstrations Under the Sole Control of Witness Are Excluded
7. Scientific Experiments – Judge may Permit if substantially similar and not result in undue
waste of time or confusion
V. Documentary Evidence
A. In General – Must be relevant and may be excluded if it violates a rule of competency.
B. Authentication
a. Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof
showing that the writing is what the proponent claims it is.\
i. Quantum of Proof of Authenticity
1. Sufficient to make a finding that it what it is.
ii. Authentication by Pleading or Stipulation
1. The genuineness of a document may be admitted through the discovery process, through stipulation at pretrial conference, or by a
failure to deny an allegation in a pleading.
iii. Evidence of Authenticity – In general, a writing may be authenticated by any evidence that serves to establish its authenticity.
1. Admissions – party against admitted or acted upon the writing
2. Testimony of Eyewitness - sees it executed or hears it acknowledged.
3. Handwriting Verifications - A writing may also be authenticated by the genuineness of the handwriting of the maker.
a. Nonexpert Opinion – Layperson with personal knowledge
b. Comparison of Writings – expert can compare
iv. Ancient Documents
1. Is at least 20 years old
2. Free from suspicion
3. found in a place likely to be kept
a. Federal Rules Distinguished from the Majority of Jurisdiction – The Federal Rules apply to all writings. However, most jurisdictions
limit the ancient documents rule to disppositive instruments e.g. deeds, wills etc.). In addition, most courts require that such documents be
over 30 years old.
v. Reply Letter Doctrine – a writing may be authenticated by evidence that it was written in response to communication sent to the
claimed author. The content of the letter must make it unlikely that it was written by anyone other than the claimed author of the writing.
vi. Circumstantial Evidence in General - any proof tending in reason to prove genuineness is sufficient.
vii. Photographs - person familiar no need to call photographer
1. Unattended Camera
a. Admitted if shown camera operating properly
viii. X-Ray Pictures, Electrocardiograms , tec
Testimonial Evidence
A. competency of Witnesses – generally presumed to be competent
a. Basic Testimonial Qualifications
i. Capacity to observe
ii. To recollect
iii. To communicate
iv. To appreciate the obligation to speak truthfully
A diminution of any of these capacities usually goes only to weight of the testimony and serves to make the witness less persuasive.
1. Ability to observe – Perception
2. Ability to remember – memory
3. Ability to relate – communicate
4. Appreciation of Oath Obligation
b. Federal Rules of competency -
i. Personal Knowledge and Oath Required – every person is competent to a witness except as otherwise provided by these rules.
1. The witness must have personal knowledge of the matter he is to testify about.
2. The witness must declare he will testify truthfully, by oath or affirmation
3. Use of Interpreter
4. Applicability of State Laws – State law applies in civil
B. Modern Modifications of Common Law Disqualifications
a. Lack of Religious Belief – no longer
b. Infancy – no age
c. Insanity – an insane person, even one who has been adjudicated incompetent may testify provided he understands the obligation to
speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute.
d. Conviction of Crime – The common law disqualification of felons has been removed by statute in most states. However, conviction of
a crime may be shown to affect the credibility of the competent witness.
e. Interest – the common law disqualification of parties or interested persons has been abolished in most states. The only remaining
vestiges of the disqualification are the so- called Dead Man Acts. (later)
f. Judge as Witness – may not testify as a witness
g. Jury as witness – incompetent to testify
C. Dead Man Acts – (no federal rules in diversity will apply state law almost all states have)
a. The Dead man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to
testify to a personal transaction or communication with the deceased, when such testimony is offered against the representative or successors
in interest of the deceased.
b. Common Elements
i. Applicable to Civil Cases Only – The bar to competency created by a Dead Man Act applies only to civil cases and has no application
to criminal cases.
ii. Protected Parties – The statute is designed to protect those who claim directly under the decedent.
iii. Interested Person – A person is interested in the event if he stands to gain or lose by the direct and immediate operation of the
judgment, or if the judgment may be used for or against him in a subsequent action.
1. Predecessor in Interest
a. Most Dead Man Acts disqualify not only the person interested but also the predecessor in interest
2. Party Adverse to Protected Party
iv. Exceptions and Waiver of the Act – common in most jurisdictions
1. Facts Occurring after death
2. Door openers – the estate representatives and those claiming under the decedent may waive the protection of the statute
D. Form of Examination of Witness – The judge may exercise reasonable control over the examination of witness in order to aid the
effective ascertainment of truth to avoid wasting time, and to protect witnesses from harassment or undue embarrassment.
a. Leading Questions – Generally Objectionable – a question is leading and generally objectionable on direct examination when it suggests
to the witness the fact that the examiner excepts and wants to have confirmed.
b. When Permitted – Leading questions are permitted on cross-examination. Trial judges will usually allow leading questions on direct
examination in noncrucial areas if no objection is made.
i. Preliminary or introductory matter
ii. Needs aid to respond
iii. Hostile witness
c. Improper Questions
i. Misleading – A question is misleading and thus is not permitted if it is one that cannot be answered without making an unintended
admission.
ii. Compound – that require a single answer to more than one question are not permitted
iii. Argumentative – Argumentative questions which are leading questions that reflect the examiner’s interpretation of the facts, are
improper
iv. Conclusionary – A question that calls for an opinion or conclusion that the witness is not qualified or permitted to make is improper
v. Assuming Facts Not in Evidence
vi. An attorney is not allowed to ask a question that assumes a disputed fact is true when it has not been established in the case
vii. Cumulative – An attorney is generally not permitted to ask a question that has already been asked and answered. More repetition is
allowed on cross-examination than on direct, but if it is apparent that the cross-examiner is not moving forward, the judge may disallow the
question.
viii. Harassing or Embarrassing - The trial judge, in her discretion may disallow cross examination that is unduly harassing or
embarrassing.
d. Use of Memoranda by Witness - only to refresh
i. Present Recollection Revived – Refreshing Recollection
1. A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the
writing while she actually testifies, since the writing is not authenticated, is not evidence, and may be used solely to refresh her recollection.
The writing is intended to help her to recall by jogging her memory. The sworn testimony must demonstrate a present recollection.
ii. Past Recollection Recorded – Recorded Recollection
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she consulted
a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid for admissibility. This use of a
memorandum as evidence of a past recollection is frequently classified as an exception to the hearsay rule. The foundation for receipt of the
writing into evidence must include proof that:
1. The witness at one time had personal knowledge of the facts recited in writing.
2. The writing was made by the witness or made under her direction or that it was adopted by the witness
3. The writing was timely made when the matter was fresh in the mind f the witness
4. The writing is accurate
5. The witness has insufficient recollection to testify fully and accurately.
6. Inspection and Use in Cross Examination
C. Opinion Testimony – The word opinion used in this context includes all opinions, inferences, conclusions, and other subjective
statements made by a witness. A basic premise of our legal system is that, in general, witnesses should testify as to facts within their
personal knowledge and that the tier of fact should draw any conclusion therefrom.
a. Opinion Testimony by Lay Witness
i. General Rule of Inadmissibility
1. Opinions by lay witnesses are generally inadmissible
2. When Admissible
a. It is rationally based on the perception of the witness
b. It is helpful to a clear understanding of her testimony or to the determination of a fact in issue and
c. It is not based on scientific, technical or other specialized knowledge
3. Procedure - Unless waived by a failure to object, a proper foundation must be laid by showing that the witness had the opportunity
to observe the event that forms the basis of her opinion. Additionally, the court in its discretion may require a witness to state the facts
before stating her opinion
4. Situations Where Opinions of Lay Witnesses Are Admissible
a. General Appearance or Condition of a Person
b. State of Emotion
c. Matters Involving Sense Recognition
d. Voice or Handwriting Identification
e. Speed of moving object
f. Value of Own Services
g. Rational or Irrational Nature of Another’s Conduct (Sanity)
h. Intoxication
5. Situations Where Opinions of Lay Witnesses are Not Admissible
a. Agency or Authorization – When agency or authorization is in issue, the witness generally may not state a conclusion as to her
authorization. Rather she must be asked by whom she was employed and the nature, terms, and surrounding circumstances of her
employment.
b. Contract or Agreement – When the existence of an express contract is in issue, a witness generally may not state her opinion that an
agreement was made. Rather she must be asked about the facts, the existence or nonexistence of which established whether a contract existed.
b. Opinion Testimony by Expert witness
i. Requirements of Expert Testimony – The expert may state an opinion or conclusion, provided the following conditions are satisfied:
1. Subject Matter Must Be Appropriate for Expert Testimony
a. Under Federal rule 702, expert testimony is admissible if the subject matter is one where specialized, technical, or other specialized
knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue . This test of assistance to the trier of
fact subdivides into two requirements:
i. The opinion must be relevant
ii. The methodology underlying the opinion must be reliable
2. Witness Must be Qualified as an expert – To testify as an expert, a person must have special knowledge , skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which testimony relates.
3. Expert Must Possess Reasonable Probably Regarding His Opinion - If the opinion of the expert is a mere guess or speculation, it is
inadmissible
4. Opinion Must be supported by Proper factual Basis
a. Personal Observation
b. Facts Made Known to Expert at Trial
c. Facts Made Known to Expert Outside Court – such facts need not be in evidence or even of a type admissible in evidence as long as
the facts are of a kind reasonably relied upon by experts in the particular field. However if the facts are of a type inadmissible in evidence the
proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting
the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
5. Opinion May Embrace Ultimate Issue
a. Exception – Criminal Defendant’s Mental State
6. Authoritative Texts and Treatises - A publication may be established as reliable by
a. The direct testimony or cross examination of the expert
b. The testimony of another expert
c. Judicial Notice
C. Cross-Examination
a. Cross-examination of adverse witness is a matter of right in every trial of a disputed issue of fact. It is recognized as the most
efficacious truth-discovering device. The principal basis for excluding hearsay is that the declarant whose testimony is offered cannot be
subject to the test of cross-examination. If adequate cross-examination is prevented by death, illness, or refusal of a witness to testify on
cross examination, the direct examination is rendered incompetent and will be stricken.
b. Scope of Cross-Examination
i. Restrictions on scope – under Federal Rule 611(b) and the majority of American jurisdictions , cross examination is limited to:
1. matters brought out on direct examination and the inferences naturally drawn from those matters.
2. Matters effecting the credibility of the witness
ii. Significance of Restrictions - right to leading questions
iii. Collateral Matters
1. Bound by the answer of the witness
D. Credibility - impeachment – Impeachment means the casting of an adverse reflection on the veracity of the witness. The primary
method of impeachment is by cross examination of the witness under attack, although witness are often impeached by extrinsic proof that
casts doubt on credibility. In terms of relevance any matter that tends to prove or disprove the credibility of the witness should be admitted
here.
a. Accrediting or Bolstering
i. General Rule no bolstering Until Witness Impeached
b. Exceptions - Timely Complaint
ii. Prior Identification - Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s
testimony but also as substantive evidence that the identification was correct
b. Any party may impeach - Contrary to the traditional rule, under which a party could not impeach his own witness, the federal rules
provide that a credibility of a witness may be attacked by any party including the party calling him as a witness.
c. Impeachment methods – cross examination and Extrinsic Evidence
i. A witness may be impeached either by cross examination (by eliciting facts from the witness that discredits his own testimony) or by
extrinsic evidence (by putting other witnesses on the stand who will introduce facts discrediting his testimony)
1. Prior Inconsistent Statements – For purposes of impeaching the credibility of a witness, a party may show that the witness has on
another occasion made statements that are inconsistent with some material part of his present testimony. Under the Federal Rules, an
inconsistent statement may be proved by either cross examination extrinsic evidence
a. A proper foundation must be laid
b. The statement must be relevant to some issue in the case i.e., it cannot be a “Collateral matter.”
c. Laying a Foundation - Extrinsic evidence of the witness’s prior inconsistent statement is admissible only if the witness is at some
point given a opportunity to explain or deny the allegedly inconsistent statement
d. Evidentiary Effect or Prior Inconsistent statements
i. In most cases prior inconsistent statements are hearsay, admissible only to impeach the witness. However where the statement was
made under oath at a prior trial , hearing or other proceeding , or in a deposition, it is admissible non-hearsay
2. Bias or Interest - Evidence that a witness is biased or has an interest in the outcome of the suit tends to show that the witness has a
motive to lie. A witness may always be impeached by extrinsic evidence of bias or interest provided a proper foundation is laid. Note that
evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.
d. Foundation - Most courts require that before a witness can be impeached by extrinsic evidence of bias or interest, he must first be
asked about the facts that show bias or interest on cross-examination.
e. Justification for bias
E. Conviction of Crime – Under certain circumstances, a witness may be impeached by proof of conviction of a crime The fact that the
witness has been convicted of a crime may usually be proved by elicting an admission on cross-examination or by the record of conviction.
a. Actual conviction required - This type of impeachment requires an actual conviction of a crime. The fact that the witness has been
arrested or indicted may not be elicited here.
b. Type of Crime
i. Crime Involving Dishonesty – Under the Federal Rules a witness may be impeached by any crime (felony or misdemeanor) involving
dishonesty (deceit) or a false statement. The trial court has no discretion - not even under Federal Rule 403 – to disallow impeachment by
such crimes.
ii. Felony Not Involving Dishonesty - A witness may be impeached under Federal Rules, by any felony whether or not it involves
dishonesty or a false statement. However, if the felony is one that does not involve dishonesty or false statement, the trial court may
exercise to exclude it under one of the following standards:
1. Accused in Criminal Case – probative outweighs prejudicial effect
2. Witness Other than the Accused in Criminal Case – substantially outweighed by the danger of unfair prejudice.
3. Compare Balancing Tests - accused favors exclusion while witness favor admission
iii. Must Not be Too remote - Under the federal Rules a conviction is usually too remote and inadmissible if more than 10 years have
elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is later date
iv. Juvenile Adjudication Generally Not Admissible
v. Effect of Pardon Depends on Basis
vi. Pending appeal Does Nor effect Admissibility
vii. Constitutionally Defective Conviction Invalid for All Purposes
viii. Means of Proof – Extrinsic Evidence Permitted – A prior conviction may be shown either by the cross-examination of the witness or
by introducing a record of the judgment. No foundation need be laid. Note, however, that when a witness is being cross-examined about
previous convictions the questions must be asked in good faith. Improper questioning may be grounds for a mistrial.
c. Specific Instances of Misconduct – Bad Acts
i. General Rule – Interrogation Permitted - The traditional majority view is that, subject to discretionary control of the trial judge, a
witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his
character and show him to be unworthy of belief.
ii. Counsel Must Inquire in Good Faith
iii. Extrinsic Evidence Not Permitted - only on cross-examination
d. Opinion or Reputation Evidence for Truth
i. By proof of Reputation
ii. Opinion Evidence - Most States do not allow however under federal rules allow
e. Sensory Deficiencies - allowed on cross and extrinsic on cross or by extrinsic evidence
i. Defects of Capacity
ii. Perceptive Disabilities
iii. Lack of Memory
iv. Mental Disorders
f. Lack of Knowledge
i. Expert Witness
ii. Opinion Witness
iii. Character Witness
F. Impeachment on Collateral Matter
G. Impeachment of Hearsay Declarant
H. Rehabilitation
a. Explanation on Redirect
b. Good Reputation for the Truth
c. Prior Consistent Statement
i. Generally Not Permitted
Objections, Exceptions, Offers of Proof
A. Objections unless an objection is made by opposing counsel, almost any kind of evidence will be admitted. Failure to object is deemed
a waiver of any ground for objection.
a. Objections to trial testimony – Objections should be made after the question but before the answer. If answered a motion to strike
b. Objections to Disposition Testimony
c. Specificity of Objections - General or Specific
d. General Objection Sustained
e. General Objection Overruled - if on any grounds will be upheld on appeal
f. Specific Objection Sustained on appeal if correct objection
B. Opening the Door
a. Effect of Introducing Part of Transaction
b. Motion to Strike
C. Exceptions –
D. Offer of Proof
a. Witness Offer
b. Lawyer Offer
c. Tangible Offer
E. Testimonial Privileges
a. Practicality and society’s desire to encourage certain relationships
b. Federal Rules No Specific Privilege Provisions - in diversity state law applies
F. General Considerations
a. A person Who May Assert a Privilege – A privilege is personal and may be asserted only by the party whose interest is sought to be
protected or someone authorized to assert it on the holders’ behalf.
b. Confidentiality - To be privileged, a communication must to be shown to have been made in confidence.
c. Comment on Privilege Forbidden
d. Waiver
i. Failure to claim the privilege
ii. Voluntary Disclosure
iii. A contractual provision waiving in advance the right to claim the privilege
A privilege is not waived where someone wrongfully disclosed information without the holder’s consent. Similarly a waiver of the privilege
by one joint holder does not affect the right of another joint holder
e. Eavesdroppers
G. Attorney-Client Privilege Objects and preexisting documents are not protected
a. Attorney – Client Relationship – The attorney client privilege requires that the attorney – client relationship exist at the time of
communication.
i. Client A “client”, in the context of the typical formulation of the attorney – client privilege can be an individual private citizen, a
public officer, a corporation, or any other organization or entity, public or private seeking professional legal services.
ii. Representative of Client
iii. Attorney licensed or reasonable believed by the client to be authorized
iv. Representative of Attorney - A representative of an attorney is one employed by the attorney to assist in the rendition of
professional services
v. Corporate as Client
1. A corporation as indicated above, can be a “client” within” the meaning of the attorney – client privilege. The Statements of any
corporation officials or employees made to the attorney are protected if they were authorized or directed by the corporation to make such
statements.
H. Client Confidential Communication – A communication is confidential if it was not intended to be disclosed to a third person
a. Communications through agents – Communications made to third persons are confidential and thus covered by the attorney client
privilege, if necessary to transmit information between the attorney and client
b. Examination by Doctor
i. When a client is examined by a doctor at the attorney’s request, the communication involved between the client and doctor are not
covered by the physician-patient privilege because no treatment is contemplated. These communications are however covered by the
attorney client privilege because the examination is necessary to help the client communicate her condition to the attorney.
ii. No privilege Where Attorney Acts for Both Parties – Where an attorney acts for both parties to a transaction, no privilege can be
invoked in a lawsuit between the two parties.
c. Client as Holder of Privilege
d. Duration of Privilege – The attorney – client privilege applies indefinitely. Termination of the attorney client relationship does not
terminate the privilege.
e. Nonapplicability of the privilege
i. Legal Advice in Aid of Future Wrongdoing
ii. Claimants Through Same Deceased Client
iii. Dispute Between Attorney and Client There is no privilege for a communication that is relevant to the issue of breach of duty by
attorney to his client
f. Waiver of the Privilege - client may waive attorney compelled to testify
g. Attorney’s Work Product - Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by
the attorney-client privilege. However they may be protected by the attorney’s work product rule.
I. Physician-Patient Privilege
a. The physician-patient privilege is a statutory privilege, which has not been adopted in all jurisdiction. However, in a substantial
number of jurisdictions, a physician (and, in some jurisdictions, a dentist or nurse) is foreclosed from divulging in judicial proceedings that he
acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his
professional capacity.
i. Elements of Physician-Patient privilege
1. Professional Member of Relationship Must be present
2. Informational Must be acquired While attending the patient
3. Information must necessary for treatment
ii. Nonapplicability of the privilege
1. Patient Puts Physical Condition in Issue
2. In Aid of wrongdoing
3. Dispute Between Physician and Patient
4. Agreement to Waive the Privilege
5. Federal Cases Applying Federal Law of Privilege - no privilege except psychotherapist
iii. Criminal Proceedings
iv. Patient Holds the Privilege
J. Psychotherapist / Social Worker – Client Privilege
K. Husband – Wife Privilege
L. Spousal Immunity
a. Privilege not to testify in Criminal cases – may not be called as a witness by prosecution – any criminal proceeding
i. Federal Courts – Privilege belongs to witness spouse
ii. State Courts – Privilege belongs to party Spouse
O. Valid Marriage Required - there must be a valid marriage for the privilege to exist.
P. Immunity May Be Asserted Only During Marriage - The privilege lasts only during the marriage and terminates upon divorce or
annulment
Q. Privilege for confidential Martial Communications – In any civil or criminal case, either spouse, whether or not a party, has a privilege
to refuse to disclose, and to prevent another from disclosing a confidential communication made between the spouses while they are husband
and wife.
a. Both Spouses Hold Privilege
b. Elements of the Privilege
i. Martial Relationship the communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively,
but communications after divorce are not privilege
ii. Reliance upon Intimacy
c. Nonapplicability of Privilege - crimes against the spouse or children
d. Privilege Against Self – Incrimination
e. Clergy – Penitent Privilege
f. Accountant Client Privilege
g. Professional Journalists Privilege – no federal law but controlled by state statutes
THE HEARSAY RULE
A. The Federal Rules define hearsay as “a statement other than one made by the declarant while testifying at the trial or hearing, offered
to prove the truth of the matter asserted
a. Reason for the exclusion denied the opportunity to cross examine the declarant
i. Cross examin of Declarant
ii. Cross examination at time made if person does not remember but remember he made that statement than hersay
iii. Statement – condct, oral written
1. Oral
2. Writings - any writing for the truth is hearsay
3. Assertive Conduct – conduct intended for words
4. Non assertive not intended Morgan Hearsay common law yes Federal Laws no
b. Offered to prove the truth of the matter asserted
i. Veral Acts of Legally Operative Facts – simply if the statement was made
ii. Statements to show effect
iii. Statement of Mind
c. Nonhuman Declarations - only by a person
B. Statements That Are Non-Hearsay Under The Federal Rules
a. Prior statements by a witness subject to cross examination
i. Prior Inconsistent Statement not hearsay under oath
ii. Prior Consistent Statement
iii. Prior Statement of Identification
b. Admissions by Party Opponent
i. Does not require personal knowledge
ii. Judicial and Extrajdicial Admissions
iii. Adoptive Admissions
1. Silence – Where a reasonable person may have responded
2. Co – Parties
3. Principal gent
4. Partners within the scope
5. Co – Conspirators within the scope
6. Privies in Title and Joint tenets State Courts only
C. Hearsay Exceptions – Declarant Unavailable
a. Unavailability defined five
i. Privilege
ii. Refusing to testify
iii. Lac of memory
iv. Death
v. Unable to compel
b. Former testimony – similar issue and parties
i. Identity of parties – only to whom the testimony is offered against must be the same.
ii. Same Subject Matter
iii. Opportunity to develop testimony at prior hearing
iv. Under oath
v. Criminal cases no violation of right to cross examination
vi. Unavailable
D. Statement Against Interest – A statement of a person, now unavailable as a witness against that person’s pecuniary, proprietary or
penal interest.
a. Must be against interest when made
b. Requirements of the statement
i. Against pecuniary, proprietary or penal interest when made
ii. Personal Knowledge of the facts
iii. Aware that the statement is against interest
iv. Unavailable of witness
c. Collateral Facts – also admissible if attached
d. Risk of Liability
e. Risk of Criminal Liability fed rules require corroborating circumstances
i. Co defendants confession may not be admissible
ii. Statement means single remark
f. Dying Declaration
g. Statements regarding family history – before controversy by family member
h. Personal Knowledge Required
i. Other Ways
E. Statements Offered Against Party Procuring Declarant’s Unavailability
F. HEARSY EXCEPTIONS - DECLARANT’S AVAILABILITY IMMATERIAL The following exceptions do not require that the
declarant be unavailable. The admissibility of these declarations proceeds upon the theory that the out-of court declarations were made under
circumstance s that make them more reliable and therefore preferable to the actual in-court testimony of the declarant. Included in this group
of exceptions are the following:
a. Present State of Mind
General Conditions of Admissibility
Real evidence must be relevant to the proposition in issue.
1. Authentication
The object must first be identified as being what the proponent claims it to be. Real evidence is commonly authenticated by recognition
testimony or by establishing a chain of custody.
a. Recognition Testimony – Identification
b. Chain of Custody – unbroken chain of custody.
2. Condition of Object; Useful Probativeness - If condition of the object is significant, it must
3.
4. Legal Relevance
a. Physical inconvenience
b. Indecency or impropriety
c. Undue prejudice
D. Particular Types of Real Proof
1. Reproduction and Explanatory Real Evidence – reproductions are admissible - explanatory
purposes not admitted into evidence
2. Maps, Charts, Models – must be authenticated - faithful reproductions
3. Exhibition of Child in Paternity Suits
4. Exhibition of Injuries
a. The exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this
evidence if the exhibition would result in unfair prejudice.
5. Jury View of the Scene Permitted – no attorney comments
6. Demonstrations
a. Demonstrations Showing Effect of Bodily Injury - excluded where would show or inflame the minds of the jury.
b. Demonstrations Under the Sole Control of Witness Are Excluded
7. Scientific Experiments – Judge may Permit if substantially similar and not result in undue
waste of time or confusion
V. Documentary Evidence
A. In General – Must be relevant and may be excluded if it violates a rule of competency.
B. Authentication
a. Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof
showing that the writing is what the proponent claims it is.\
i. Quantum of Proof of Authenticity
1. Sufficient to make a finding that it what it is.
ii. Authentication by Pleading or Stipulation
1. The genuineness of a document may be admitted through the discovery process, through stipulation at pretrial conference, or by a
failure to deny an allegation in a pleading.
iii. Evidence of Authenticity – In general, a writing may be authenticated by any evidence that serves to establish its authenticity.
1. Admissions – party against admitted or acted upon the writing
2. Testimony of Eyewitness - sees it executed or hears it acknowledged.
3. Handwriting Verifications - A writing may also be authenticated by the genuineness of the handwriting of the maker.
a. Nonexpert Opinion – Layperson with personal knowledge
b. Comparison of Writings – expert can compare
iv. Ancient Documents
1. Is at least 20 years old
2. Free from suspicion
3. found in a place likely to be kept
a. Federal Rules Distinguished from the Majority of Jurisdiction – The Federal Rules apply to all writings. However, most jurisdictions
limit the ancient documents rule to disppositive instruments e.g. deeds, wills etc.). In addition, most courts require that such documents be
over 30 years old.
v. Reply Letter Doctrine – a writing may be authenticated by evidence that it was written in response to communication sent to the
claimed author. The content of the letter must make it unlikely that it was written by anyone other than the claimed author of the writing.
vi. Circumstantial Evidence in General - any proof tending in reason to prove genuineness is sufficient.
vii. Photographs - person familiar no need to call photographer
1. Unattended Camera
a. Admitted if shown camera operating properly
viii. X-Ray Pictures, Electrocardiograms , tec
Testimonial Evidence
A. competency of Witnesses – generally presumed to be competent
a. Basic Testimonial Qualifications
i. Capacity to observe
ii. To recollect
iii. To communicate
iv. To appreciate the obligation to speak truthfully
A diminution of any of these capacities usually goes only to weight of the testimony and serves to make the witness less persuasive.
1. Ability to observe – Perception
2. Ability to remember – memory
3. Ability to relate – communicate
4. Appreciation of Oath Obligation
b. Federal Rules of competency -
i. Personal Knowledge and Oath Required – every person is competent to a witness except as otherwise provided by these rules.
1. The witness must have personal knowledge of the matter he is to testify about.
2. The witness must declare he will testify truthfully, by oath or affirmation
3. Use of Interpreter
4. Applicability of State Laws – State law applies in civil
B. Modern Modifications of Common Law Disqualifications
a. Lack of Religious Belief – no longer
b. Infancy – no age
c. Insanity – an insane person, even one who has been adjudicated incompetent may testify provided he understands the obligation to
speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute.
d. Conviction of Crime – The common law disqualification of felons has been removed by statute in most states. However, conviction of
a crime may be shown to affect the credibility of the competent witness.
e. Interest – the common law disqualification of parties or interested persons has been abolished in most states. The only remaining
vestiges of the disqualification are the so- called Dead Man Acts. (later)
f. Judge as Witness – may not testify as a witness
g. Jury as witness – incompetent to testify
C. Dead Man Acts – (no federal rules in diversity will apply state law almost all states have)
a. The Dead man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to
testify to a personal transaction or communication with the deceased, when such testimony is offered against the representative or successors
in interest of the deceased.
b. Common Elements
i. Applicable to Civil Cases Only – The bar to competency created by a Dead Man Act applies only to civil cases and has no application
to criminal cases.
ii. Protected Parties – The statute is designed to protect those who claim directly under the decedent.
iii. Interested Person – A person is interested in the event if he stands to gain or lose by the direct and immediate operation of the
judgment, or if the judgment may be used for or against him in a subsequent action.
1. Predecessor in Interest
a. Most Dead Man Acts disqualify not only the person interested but also the predecessor in interest
2. Party Adverse to Protected Party
iv. Exceptions and Waiver of the Act – common in most jurisdictions
1. Facts Occurring after death
2. Door openers – the estate representatives and those claiming under the decedent may waive the protection of the statute
D. Form of Examination of Witness – The judge may exercise reasonable control over the examination of witness in order to aid the
effective ascertainment of truth to avoid wasting time, and to protect witnesses from harassment or undue embarrassment.
a. Leading Questions – Generally Objectionable – a question is leading and generally objectionable on direct examination when it suggests
to the witness the fact that the examiner excepts and wants to have confirmed.
b. When Permitted – Leading questions are permitted on cross-examination. Trial judges will usually allow leading questions on direct
examination in noncrucial areas if no objection is made.
i. Preliminary or introductory matter
ii. Needs aid to respond
iii. Hostile witness
c. Improper Questions
i. Misleading – A question is misleading and thus is not permitted if it is one that cannot be answered without making an unintended
admission.
ii. Compound – that require a single answer to more than one question are not permitted
iii. Argumentative – Argumentative questions which are leading questions that reflect the examiner’s interpretation of the facts, are
improper
iv. Conclusionary – A question that calls for an opinion or conclusion that the witness is not qualified or permitted to make is improper
v. Assuming Facts Not in Evidence
vi. An attorney is not allowed to ask a question that assumes a disputed fact is true when it has not been established in the case
vii. Cumulative – An attorney is generally not permitted to ask a question that has already been asked and answered. More repetition is
allowed on cross-examination than on direct, but if it is apparent that the cross-examiner is not moving forward, the judge may disallow the
question.
viii. Harassing or Embarrassing - The trial judge, in her discretion may disallow cross examination that is unduly harassing or
embarrassing.
d. Use of Memoranda by Witness - only to refresh
i. Present Recollection Revived – Refreshing Recollection
1. A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the
writing while she actually testifies, since the writing is not authenticated, is not evidence, and may be used solely to refresh her recollection.
The writing is intended to help her to recall by jogging her memory. The sworn testimony must demonstrate a present recollection.
ii. Past Recollection Recorded – Recorded Recollection
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she consulted
a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid for admissibility. This use of a
memorandum as evidence of a past recollection is frequently classified as an exception to the hearsay rule. The foundation for receipt of the
writing into evidence must include proof that:
1. The witness at one time had personal knowledge of the facts recited in writing.
2. The writing was made by the witness or made under her direction or that it was adopted by the witness
3. The writing was timely made when the matter was fresh in the mind f the witness
4. The writing is accurate
5. The witness has insufficient recollection to testify fully and accurately.
6. Inspection and Use in Cross Examination
C. Opinion Testimony – The word opinion used in this context includes all opinions, inferences, conclusions, and other subjective
statements made by a witness. A basic premise of our legal system is that, in general, witnesses should testify as to facts within their
personal knowledge and that the tier of fact should draw any conclusion therefrom.
a. Opinion Testimony by Lay Witness
i. General Rule of Inadmissibility
1. Opinions by lay witnesses are generally inadmissible
2. When Admissible
a. It is rationally based on the perception of the witness
b. It is helpful to a clear understanding of her testimony or to the determination of a fact in issue and
c. It is not based on scientific, technical or other specialized knowledge
3. Procedure - Unless waived by a failure to object, a proper foundation must be laid by showing that the witness had the opportunity
to observe the event that forms the basis of her opinion. Additionally, the court in its discretion may require a witness to state the facts
before stating her opinion
4. Situations Where Opinions of Lay Witnesses Are Admissible
a. General Appearance or Condition of a Person
b. State of Emotion
c. Matters Involving Sense Recognition
d. Voice or Handwriting Identification
e. Speed of moving object
f. Value of Own Services
g. Rational or Irrational Nature of Another’s Conduct (Sanity)
h. Intoxication
5. Situations Where Opinions of Lay Witnesses are Not Admissible
a. Agency or Authorization – When agency or authorization is in issue, the witness generally may not state a conclusion as to her
authorization. Rather she must be asked by whom she was employed and the nature, terms, and surrounding circumstances of her
employment.
b. Contract or Agreement – When the existence of an express contract is in issue, a witness generally may not state her opinion that an
agreement was made. Rather she must be asked about the facts, the existence or nonexistence of which established whether a contract existed.
b. Opinion Testimony by Expert witness
i. Requirements of Expert Testimony – The expert may state an opinion or conclusion, provided the following conditions are satisfied:
1. Subject Matter Must Be Appropriate for Expert Testimony
a. Under Federal rule 702, expert testimony is admissible if the subject matter is one where specialized, technical, or other specialized
knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue . This test of assistance to the trier of
fact subdivides into two requirements:
i. The opinion must be relevant
ii. The methodology underlying the opinion must be reliable
2. Witness Must be Qualified as an expert – To testify as an expert, a person must have special knowledge , skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which testimony relates.
3. Expert Must Possess Reasonable Probably Regarding His Opinion - If the opinion of the expert is a mere guess or speculation, it is
inadmissible
4. Opinion Must be supported by Proper factual Basis
a. Personal Observation
b. Facts Made Known to Expert at Trial
c. Facts Made Known to Expert Outside Court – such facts need not be in evidence or even of a type admissible in evidence as long as
the facts are of a kind reasonably relied upon by experts in the particular field. However if the facts are of a type inadmissible in evidence the
proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting
the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
5. Opinion May Embrace Ultimate Issue
a. Exception – Criminal Defendant’s Mental State
6. Authoritative Texts and Treatises - A publication may be established as reliable by
a. The direct testimony or cross examination of the expert
b. The testimony of another expert
c. Judicial Notice
C. Cross-Examination
a. Cross-examination of adverse witness is a matter of right in every trial of a disputed issue of fact. It is recognized as the most
efficacious truth-discovering device. The principal basis for excluding hearsay is that the declarant whose testimony is offered cannot be
subject to the test of cross-examination. If adequate cross-examination is prevented by death, illness, or refusal of a witness to testify on
cross examination, the direct examination is rendered incompetent and will be stricken.
b. Scope of Cross-Examination
i. Restrictions on scope – under Federal Rule 611(b) and the majority of American jurisdictions , cross examination is limited to:
1. matters brought out on direct examination and the inferences naturally drawn from those matters.
2. Matters effecting the credibility of the witness
ii. Significance of Restrictions - right to leading questions
iii. Collateral Matters
1. Bound by the answer of the witness
D. Credibility - impeachment – Impeachment means the casting of an adverse reflection on the veracity of the witness. The primary
method of impeachment is by cross examination of the witness under attack, although witness are often impeached by extrinsic proof that
casts doubt on credibility. In terms of relevance any matter that tends to prove or disprove the credibility of the witness should be admitted
here.
a. Accrediting or Bolstering
i. General Rule no bolstering Until Witness Impeached
b. Exceptions - Timely Complaint
ii. Prior Identification - Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s
testimony but also as substantive evidence that the identification was correct
b. Any party may impeach - Contrary to the traditional rule, under which a party could not impeach his own witness, the federal rules
provide that a credibility of a witness may be attacked by any party including the party calling him as a witness.
c. Impeachment methods – cross examination and Extrinsic Evidence
i. A witness may be impeached either by cross examination (by eliciting facts from the witness that discredits his own testimony) or by
extrinsic evidence (by putting other witnesses on the stand who will introduce facts discrediting his testimony)
1. Prior Inconsistent Statements – For purposes of impeaching the credibility of a witness, a party may show that the witness has on
another occasion made statements that are inconsistent with some material part of his present testimony. Under the Federal Rules, an
inconsistent statement may be proved by either cross examination extrinsic evidence
a. A proper foundation must be laid
b. The statement must be relevant to some issue in the case i.e., it cannot be a “Collateral matter.”
c. Laying a Foundation - Extrinsic evidence of the witness’s prior inconsistent statement is admissible only if the witness is at some
point given a opportunity to explain or deny the allegedly inconsistent statement
d. Evidentiary Effect or Prior Inconsistent statements
i. In most cases prior inconsistent statements are hearsay, admissible only to impeach the witness. However where the statement was
made under oath at a prior trial , hearing or other proceeding , or in a deposition, it is admissible non-hearsay
2. Bias or Interest - Evidence that a witness is biased or has an interest in the outcome of the suit tends to show that the witness has a
motive to lie. A witness may always be impeached by extrinsic evidence of bias or interest provided a proper foundation is laid. Note that
evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.
d. Foundation - Most courts require that before a witness can be impeached by extrinsic evidence of bias or interest, he must first be
asked about the facts that show bias or interest on cross-examination.
e. Justification for bias
E. Conviction of Crime – Under certain circumstances, a witness may be impeached by proof of conviction of a crime The fact that the
witness has been convicted of a crime may usually be proved by elicting an admission on cross-examination or by the record of conviction.
a. Actual conviction required - This type of impeachment requires an actual conviction of a crime. The fact that the witness has been
arrested or indicted may not be elicited here.
b. Type of Crime
i. Crime Involving Dishonesty – Under the Federal Rules a witness may be impeached by any crime (felony or misdemeanor) involving
dishonesty (deceit) or a false statement. The trial court has no discretion - not even under Federal Rule 403 – to disallow impeachment by
such crimes.
ii. Felony Not Involving Dishonesty - A witness may be impeached under Federal Rules, by any felony whether or not it involves
dishonesty or a false statement. However, if the felony is one that does not involve dishonesty or false statement, the trial court may
exercise to exclude it under one of the following standards:
1. Accused in Criminal Case – probative outweighs prejudicial effect
2. Witness Other than the Accused in Criminal Case – substantially outweighed by the danger of unfair prejudice.
3. Compare Balancing Tests - accused favors exclusion while witness favor admission
iii. Must Not be Too remote - Under the federal Rules a conviction is usually too remote and inadmissible if more than 10 years have
elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is later date
iv. Juvenile Adjudication Generally Not Admissible
v. Effect of Pardon Depends on Basis
vi. Pending appeal Does Nor effect Admissibility
vii. Constitutionally Defective Conviction Invalid for All Purposes
viii. Means of Proof – Extrinsic Evidence Permitted – A prior conviction may be shown either by the cross-examination of the witness or
by introducing a record of the judgment. No foundation need be laid. Note, however, that when a witness is being cross-examined about
previous convictions the questions must be asked in good faith. Improper questioning may be grounds for a mistrial.
c. Specific Instances of Misconduct – Bad Acts
i. General Rule – Interrogation Permitted - The traditional majority view is that, subject to discretionary control of the trial judge, a
witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his
character and show him to be unworthy of belief.
ii. Counsel Must Inquire in Good Faith
iii. Extrinsic Evidence Not Permitted - only on cross-examination
d. Opinion or Reputation Evidence for Truth
i. By proof of Reputation
ii. Opinion Evidence - Most States do not allow however under federal rules allow
e. Sensory Deficiencies - allowed on cross and extrinsic on cross or by extrinsic evidence
i. Defects of Capacity
ii. Perceptive Disabilities
iii. Lack of Memory
iv. Mental Disorders
f. Lack of Knowledge
i. Expert Witness
ii. Opinion Witness
iii. Character Witness
F. Impeachment on Collateral Matter
G. Impeachment of Hearsay Declarant
H. Rehabilitation
a. Explanation on Redirect
b. Good Reputation for the Truth
c. Prior Consistent Statement
i. Generally Not Permitted
Objections, Exceptions, Offers of Proof
A. Objections unless an objection is made by opposing counsel, almost any kind of evidence will be admitted. Failure to object is deemed
a waiver of any ground for objection.
a. Objections to trial testimony – Objections should be made after the question but before the answer. If answered a motion to strike
b. Objections to Disposition Testimony
c. Specificity of Objections - General or Specific
d. General Objection Sustained
e. General Objection Overruled - if on any grounds will be upheld on appeal
f. Specific Objection Sustained on appeal if correct objection
B. Opening the Door
a. Effect of Introducing Part of Transaction
b. Motion to Strike
C. Exceptions –
D. Offer of Proof
a. Witness Offer
b. Lawyer Offer
c. Tangible Offer
E. Testimonial Privileges
a. Practicality and society’s desire to encourage certain relationships
b. Federal Rules No Specific Privilege Provisions - in diversity state law applies
F. General Considerations
a. A person Who May Assert a Privilege – A privilege is personal and may be asserted only by the party whose interest is sought to be
protected or someone authorized to assert it on the holders’ behalf.
b. Confidentiality - To be privileged, a communication must to be shown to have been made in confidence.
c. Comment on Privilege Forbidden
d. Waiver
i. Failure to claim the privilege
ii. Voluntary Disclosure
iii. A contractual provision waiving in advance the right to claim the privilege
A privilege is not waived where someone wrongfully disclosed information without the holder’s consent. Similarly a waiver of the privilege
by one joint holder does not affect the right of another joint holder
e. Eavesdroppers
G. Attorney-Client Privilege Objects and preexisting documents are not protected
a. Attorney – Client Relationship – The attorney client privilege requires that the attorney – client relationship exist at the time of
communication.
i. Client A “client”, in the context of the typical formulation of the attorney – client privilege can be an individual private citizen, a
public officer, a corporation, or any other organization or entity, public or private seeking professional legal services.
ii. Representative of Client
iii. Attorney licensed or reasonable believed by the client to be authorized
iv. Representative of Attorney - A representative of an attorney is one employed by the attorney to assist in the rendition of
professional services
v. Corporate as Client
1. A corporation as indicated above, can be a “client” within” the meaning of the attorney – client privilege. The Statements of any
corporation officials or employees made to the attorney are protected if they were authorized or directed by the corporation to make such
statements.
H. Client Confidential Communication – A communication is confidential if it was not intended to be disclosed to a third person
a. Communications through agents – Communications made to third persons are confidential and thus covered by the attorney client
privilege, if necessary to transmit information between the attorney and client
b. Examination by Doctor
i. When a client is examined by a doctor at the attorney’s request, the communication involved between the client and doctor are not
covered by the physician-patient privilege because no treatment is contemplated. These communications are however covered by the
attorney client privilege because the examination is necessary to help the client communicate her condition to the attorney.
ii. No privilege Where Attorney Acts for Both Parties – Where an attorney acts for both parties to a transaction, no privilege can be
invoked in a lawsuit between the two parties.
c. Client as Holder of Privilege
d. Duration of Privilege – The attorney – client privilege applies indefinitely. Termination of the attorney client relationship does not
terminate the privilege.
e. Nonapplicability of the privilege
i. Legal Advice in Aid of Future Wrongdoing
ii. Claimants Through Same Deceased Client
iii. Dispute Between Attorney and Client There is no privilege for a communication that is relevant to the issue of breach of duty by
attorney to his client
f. Waiver of the Privilege - client may waive attorney compelled to testify
g. Attorney’s Work Product - Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by
the attorney-client privilege. However they may be protected by the attorney’s work product rule.
I. Physician-Patient Privilege
a. The physician-patient privilege is a statutory privilege, which has not been adopted in all jurisdiction. However, in a substantial
number of jurisdictions, a physician (and, in some jurisdictions, a dentist or nurse) is foreclosed from divulging in judicial proceedings that he
acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his
professional capacity.
i. Elements of Physician-Patient privilege
1. Professional Member of Relationship Must be present
2. Informational Must be acquired While attending the patient
3. Information must necessary for treatment
ii. Nonapplicability of the privilege
1. Patient Puts Physical Condition in Issue
2. In Aid of wrongdoing
3. Dispute Between Physician and Patient
4. Agreement to Waive the Privilege
5. Federal Cases Applying Federal Law of Privilege - no privilege except psychotherapist
iii. Criminal Proceedings
iv. Patient Holds the Privilege
J. Psychotherapist / Social Worker – Client Privilege
K. Husband – Wife Privilege
L. Spousal Immunity
a. Privilege not to testify in Criminal cases – may not be called as a witness by prosecution – any criminal proceeding
i. Federal Courts – Privilege belongs to witness spouse
ii. State Courts – Privilege belongs to party Spouse
O. Valid Marriage Required - there must be a valid marriage for the privilege to exist.
P. Immunity May Be Asserted Only During Marriage - The privilege lasts only during the marriage and terminates upon divorce or
annulment
Q. Privilege for confidential Martial Communications – In any civil or criminal case, either spouse, whether or not a party, has a privilege
to refuse to disclose, and to prevent another from disclosing a confidential communication made between the spouses while they are husband
and wife.
a. Both Spouses Hold Privilege
b. Elements of the Privilege
i. Martial Relationship the communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively,
but communications after divorce are not privilege
ii. Reliance upon Intimacy
c. Nonapplicability of Privilege - crimes against the spouse or children
d. Privilege Against Self – Incrimination
e. Clergy – Penitent Privilege
f. Accountant Client Privilege
g. Professional Journalists Privilege – no federal law but controlled by state statutes
THE HEARSAY RULE
A. The Federal Rules define hearsay as “a statement other than one made by the declarant while testifying at the trial or hearing, offered
to prove the truth of the matter asserted
a. Reason for the exclusion denied the opportunity to cross examine the declarant
i. Cross examin of Declarant
ii. Cross examination at time made if person does not remember but remember he made that statement than hersay
iii. Statement – condct, oral written
1. Oral
2. Writings - any writing for the truth is hearsay
3. Assertive Conduct – conduct intended for words
4. Non assertive not intended Morgan Hearsay common law yes Federal Laws no
b. Offered to prove the truth of the matter asserted
i. Veral Acts of Legally Operative Facts – simply if the statement was made
ii. Statements to show effect
iii. Statement of Mind
c. Nonhuman Declarations - only by a person
B. Statements That Are Non-Hearsay Under The Federal Rules
a. Prior statements by a witness subject to cross examination
i. Prior Inconsistent Statement not hearsay under oath
ii. Prior Consistent Statement
iii. Prior Statement of Identification
b. Admissions by Party Opponent
i. Does not require personal knowledge
ii. Judicial and Extrajdicial Admissions
iii. Adoptive Admissions
1. Silence – Where a reasonable person may have responded
2. Co – Parties
3. Principal gent
4. Partners within the scope
5. Co – Conspirators within the scope
6. Privies in Title and Joint tenets State Courts only
C. Hearsay Exceptions – Declarant Unavailable
a. Unavailability defined five
i. Privilege
ii. Refusing to testify
iii. Lac of memory
iv. Death
v. Unable to compel
b. Former testimony – similar issue and parties
i. Identity of parties – only to whom the testimony is offered against must be the same.
ii. Same Subject Matter
iii. Opportunity to develop testimony at prior hearing
iv. Under oath
v. Criminal cases no violation of right to cross examination
vi. Unavailable
D. Statement Against Interest – A statement of a person, now unavailable as a witness against that person’s pecuniary, proprietary or
penal interest.
a. Must be against interest when made
b. Requirements of the statement
i. Against pecuniary, proprietary or penal interest when made
ii. Personal Knowledge of the facts
iii. Aware that the statement is against interest
iv. Unavailable of witness
c. Collateral Facts – also admissible if attached
d. Risk of Liability
e. Risk of Criminal Liability fed rules require corroborating circumstances
i. Co defendants confession may not be admissible
ii. Statement means single remark
f. Dying Declaration
g. Statements regarding family history – before controversy by family member
h. Personal Knowledge Required
i. Other Ways
E. Statements Offered Against Party Procuring Declarant’s Unavailability
F. HEARSY EXCEPTIONS - DECLARANT’S AVAILABILITY IMMATERIAL The following exceptions do not require that the
declarant be unavailable. The admissibility of these declarations proceeds upon the theory that the out-of court declarations were made under
circumstance s that make them more reliable and therefore preferable to the actual in-court testimony of the declarant. Included in this group
of exceptions are the following:
a. Present State of Mind
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