Evidence

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801 a-c Definition - Hearsay

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(a) Statement.
A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.
A "declarant" is a person who makes a statement.

(c) Hearsay.
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

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801(d) - Hearsay General Exclusions

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(d)(1) Prior statement by witness.

(d)(2) Admission by party-opponent.

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801(d)(1) - Prior Statement by Witness

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A statement is not hearsay if (1) the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person

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801(d)(2) - Admission by party-opponent.

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A statement is not hearsay if--(2) The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

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804 - Unavailable Exeptions

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804(a) - definition of unavailable
804(b) - unavailable hearsay exceptions

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804 (a) Definitions of unavailable

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(a) Definition of unavailability.

"Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

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there are 5

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804(b) - Hearsay Exceptions

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(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) [Other exceptions.][Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

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there are 6 (including blank)

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Rule 612 - refreshing present recollection

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Rule 612. Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

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803

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Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person's character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(24) [Other exceptions.][Transferred to Rule 807]

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701 - Opinion Testimony by Lay Witness

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If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

(a) rationally based on the perception of the witness, and

OUTLINE: (1) this is based on a conditional relevance standard - 104b - codified in 602,

(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and

OUTLINE: (1) Can sometimes argue that only the facts are helpful, but sometimes this is difficult to give so opinion can be also, (2) Information about age can be helpful because they might not look like they did at the time of trial.

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

OUTLINE: (1) Exampes: (a) Advisory committee notes that lay opinion as to intoxication is not considered specialized knowledge, (b) – Testimony about someone sounding depressed is ok, if not meant as a diagnosis of clinical depression (then specialized), (c) Even if the software is free, it can still be specialized knowledge. Remedy does not need to exclude testimony. Might just need more time, (d) Requiring persistence is not the same thing as requiring specialized Knowledge. (Example, code cracking)

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702 - Testimony by Experts

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If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

OUTLINE: (1) must assist: (a)Expert testimony in cases as to the likelihood of confusion is not very helpful, for who is better to gauge this then the jury themselves, (b) It is inappropriate for an expert witness to tell you what he considers to be deadly physical force under 704(b), however, there is some debate as to whether this is a good rule, (c) Lie Detection (generally up to jury - opinion on whether a child was telling the truth as concerned to being sexually abused might be helpful concerning the traits abused children present, but he could not say what he believes (people might also question the reliability of such methods because difficult to simulate in real world. however, no reason to think expert is better) (d) – Statements concerning the science of memory are generally not helpful to the trier of fact, because most people already know that people might have bad memories, (e) Eye Witness identification - generally not considered helpful cause jury can base on experience, (i) Cross race testimony - ) an argument can be made for same race identification, b/c (*) Here, juror might not know about the weakness of cross witness identification, (**) the expert is did not interview the witness, so they are not telling the court how to rule, they are merely presenting useful info (2) must qualify as expert based on skill/experience/training/or education: (A) People will argue that they are not qualified on this particular thing (drug argot) (3)must be based on sufficient data, (4) must be based on reliable principles or methods: (A) Use to use general acceptance test, (B) New Test - Daubert Factors: Daubert factors (much testing goes before trial) - relevant (fit requirement - not clear if more then 401) and reliable (scientific method - reliability) - 5 factors (i) has been tested, (ii) subject to peer review,(iii) known or potential rate of error, (iiii) general acceptance is a factor , (iiiii) must be applying the methods correctly (note: the factors are flexible (lower court added derived from independent research req.) and we are evaluating methods not conclusions - some are concerned this has judges being scientist), (C) reliability is a 104a standard - can not meet and still be relevant, (D) appellate courts apply abusive discretion standard in expert testimony, (E) Lie Detection - (a) generally this kind of stuff is left out; however,some think daubert lets us reassess this in the case of def. brinign (most don't do this), (b) A polygraph examiner might be able to get around daubert by testifying not in their capacity as an expert, but simply as to consciousness of ones own innocence (he seemed confident); however, its not clear this gets passed 403 b/c of the pretext of trying to get around and policy consideration, (c) In Scheffer 5 sc justices did not support a per se exclusion, (D) Daubert applies to non scientific testimony also (Defective Tires - also in the Saks excerpt we see if it didint it would create a weird set of incentives), (E) Hedonics – The methodology for the hedonics expert does not really pass the daubert standard of reliability b/c it is not clear willingness to pay is indicative of value. People don’t have these calculations in mind. (6) cant testify as to mental component (704b), (7) different from lay because can base on hearsay if other people do too (703)

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704 - Opinion on Ultimate issue

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FRE 704: Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

OUTLINE: (1) abolition of ultimate issue rule does not lower the bar as to let in all opinions. They must be helpful . You can go to the ultimate issue but you can’t tell them what conclusion to reach. Courts often differ about which of the two involved.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

OUTLINE: (1) Intent is not necessarily the same as mental state under 704(b) because it was meant for insanity cases, but perhaps its enough

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703 - Based on Opinion Testimony by Expert

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The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Basis for Opinion: (1) facts/data based on first hand observation before trial (essentially personal knowledge - 602), (2) facts or data learned at trial (these are usually hypotheticals - i.e, assume X testimony to be true - note, these assumptions must have some basis), or (3) facts/data told second hand if, provided other experts would do the same and is reasonable: (a) whether it is reasonable for medical examiners to rely on stuff they hear on site is an open question (blood esphyciation), (b) probably reasonable for cop to rely on criminals statements. (c) seem reasonable to rely on anything in medical chart, (d) seems reasonable for psychiatrist to rely on family members statements, but not sure if just one member is enough (4) inadmissible hearsay relied on cannot be presented to the jury unless probative value outweighs prejudicial effects (reverse 403): (a) when that is the only piece of evidence the probative value might be low; however, if it is coming in it is not coming in substanitive, but only to show it effected his opinion.

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Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

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The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

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Rule 706. Court Appointed Experts

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(a) Appointment.
• The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
(b) Compensation.
• Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.
(c) Disclosure of appointment.
• In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties' experts of own selection.
• Nothing in this rule limits the parties in calling expert witnesses of their own selection.

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401 - Relevance and Irrelevance

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"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable (pros. Must show this) or less probable (defense shows this) than it would be without the evidence.

(1) Petitt Betting Mans Test, (2) 2 ways something can not be relevant - (a) not material (not a fact covered by the law), and (b) not probative (does not make the fact more likely then not to occur), (3) very undemanding - any tendency. (4) In cases where one claims self-defense, the truth of prior events might be relevant by corroborating the witnesses testimony (James - aiding and abetting case)

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402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

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

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104 - Standards

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(a) Questions of admissibility generally.

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

(b) Relevancy conditioned on fact.

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding (preponderance of the evidence) of the fulfillment of the condition.

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403 --. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time – MOST IMPORTANT RULE ON RELEVANCE.

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

(1) Balancing test - prob. value must be SUBSTANTIALLY outweighed (presumption for admissibility), (2) application: (a) infllammatory, (b) flight ) (i) (4 factors that effect prob. value - whether behavor was flight, whether the flight was conscious of guilt, whether the guilt was that of the one charged, whether his belief of guilt corresponded towards actuality), (ii) staying put has lower prob. value, (c) probabalistic evidence, (d) usually pros. does not have to accept stipulations, but sometimes it must because of unfair prejudice (old chief).

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407 - subsequent remedial measures

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

(1) subsequent remedial measures cant be used to prove (5) negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction (r: low prob value and want to encourage remedy) (2) can be offered to show for other purposes - 4 - proving ownership, control, or feasibility of precautionary measures, but only if controverted at trial and impeachment (3) third part remedial measures are not covered by "remedial measures", (4) debate concerning whether remedial measures only involve voluntary acts and apply to SL cases (counter say they shouldnt because extra incentive not needed - nonetheless it does apply to product defect)

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408 - Compromise Offers and Payment of Medical Expenses

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

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

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

(1) offers and statements made in negotiations not allowed except when related to a claim by a public agency (for statements (part 2)), (2) r: (a) encourage settlement, (b) sometimes not relevant if just trying to avoid nuisance, (3) notable language: (a) claim (does not apply to offers before claim is asserted), (b) disputed as to validity or amount (if debtor concedes but offers lower amount not barred) (c) permitted uses included purposes not prohibitted (i.e, showing state of mind (bank trap case); however, only in egregious impeachment cases), (3) cannot hide admissable documents in negotiations, 408 only bars proof based on negotiations.

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409 - Medical Expenses

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

(1) limited to offers, does not include casual language (like sorry), (2) R: narrower protection because average people dont know law so less incentive, (3) relevant language: (a) to prove liability (other uses ok), (b) medical expenses.

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410 - Inadmissibility of Pleas, Plea Discussions, and Related Statements

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

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

(1) only protects against Def. not Pros, (2) list is exhaustive and pros. cant use to impeach but Def. can waive protection if informed before, (3) doest not exclude in later perjury proceedings if discussion was made under oath on the record in front of of opposing counsel (acting with ability to plea), (4) does not protect if no concession is requested and opposing counsel is not acting with authority to plea (some courts only require subjective belief of authority pg 133),

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411 - Insurance Liability

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

(1) relevant language: (a) "was or was not", (b) cant use to show liability but can to show "proof of agency, "control" or "bias", (2) R: encourages purchase of insurance, (3)can be introduced to explain confusing answers solicited by opposing council, (4) arguable whether a recording can be biased, (5) evidence that the defense witness has the same malpractice insurance as def. is ok to show bias, (6) when the def introduces to show lack of motive, (a) there does not seem to be the concern of unfair prejudice, and (b) does not seem to pass formalisitc app of 411 however might let in in criminal cases for other purpose.

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901 - requirement of authentication and identification

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(a) General provision.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations.

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

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902 - self authentication

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Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

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903 - Subscribing Witness' Testimony Unnecessary

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The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

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404 - Character Evidence

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(a) Character evidence generally

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

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts

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

(1) cannot use evidence of ones character to show action which conforms to that character, (2) In criminal cases the accused can offer but then the pros can rebut, (3) In criminal cases, accused can bring character evidence of the alleged victim but P can then rebut, (can also reput if D. claims self defense to show peacefulness),(4) acts not directly at issue can be used for other purposes (still need to get passed 403, separate the evidence):

(a) Knowledge: (i) the more specific the knowledge the easier it is to get in (hacker and drug case).

(b) Negligence: (i) evidence of employees reputation as drunk can be used to show employers negligence in hiring.

(c) Motive: (i) evidence of passed murder charge can get in when he might have killed to get away (Peltier), (ii) evidence of not stopping can be used to show motive that he was in a rush (train case).

(d) Identity: (i) the idea here is if the evidence lowers the universe of people who could have done the act (peltier Ar15), (ii) other purposes cannot go through propensity box: (*) cannot show identity based on being a gambler if being a gambler requires going through propensity box - he might not gamble anymore, (**) if there is no unfair prejudice concern (cyclists) might argue that passed acts arent character evidence at all (character evidence not defined), (iii) proving identity requires more then a single prosaic of similarities (bomb case), (iv) def. can offer evidence that he is not likely assailant based on similarities (less biased black witness failed to identify) not based on propensity (arguing neighbor likely owned gun).

(e) Narrative Integrity (not sur what this is)

(f) absence of mistake of accident: (i) Doctrine of chances: (*) unlikely repeated events cant be used to show it was not an accident (slipping in tub), (**) based on ones failure to take precautions after first instance we can infer that the second instance was not an accident, (***) It is argued wether doctrine of chances goes through propensity or not (focus on subjective mental state rather then objective odds).

(g) Common Plan or Scheme: (i) most domestic violence cases occur as part of a series of successive events at reaching the same goal.

(5) Huddleston standard: (a) apply 104b standard when going for some other purpose, and look at all evidence at once, (b) past acquittal does not bar witness from that trail form meeting 104(b).


codified exceptions: sexual assault, child molestation, habit. (see other rules)

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405 - Methods of Proving character

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(a) Reputation or opinion.

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

(b) Specific instances of conduct.

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

(1) can show character evidence by reputation, opinion, or rarely specific acts (on cross examination and when specific element (catch self before doing this)), (2) prosecution has the right to question the qualifications of the witness establishing character evidence, (3) when questioning witness there must be a good faith basis, (4) whether ones claiming they would not do an act counts as character evidence depends on the phrasing (i.e, "im not the kind of person who would to that", or "i wouldn't do that in this specific case"), (5) specific acts can be used when not showing character evidence: Fore example: (i) showing the subjective mindset of one claiming self defense, (ii) showing circumstances of drug intoxication.

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406 - Habit Routine Practice

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

(1) habit is different from character b/c it is narrower and cannot be manifested in different ways, (2) habit must be done enough times such that it is a regular practice, (3) habits are usually not volitional or moral acts.

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413 - Sexual Assault Exception

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(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

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414 - Child Molestation

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(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

(2) any conduct proscribed by chapter 110 of title 18, United States Code;

(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;

(4) contact between the genitals or anus of the defendant and any part of the body of a child;

(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or

(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

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607 - Who May Impeach

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The credibility of a witness may be attacked by any party, including the party calling the witness.

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608 - Impeachment

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(a) Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

(1) can be impeached without using 608 character evidence - i.e, to show bias and by prior inconsistent statement (bias can be shown with extrinsic evidence), (2) character evidence showing truthfulness can be used to attack witness credibility if in the form of reputation or opinion: (a) witness must have knowledge, (b) cant just ask about reputation must be reputation for truthfulness, (c) can ask if they would believe him under oath, (3) the def. can only present evidence of truthfulness if her credibility has been attacked: (a) evidence of specific misconduct, crime, lieing constitute an attack. Bias is not an attack (should not be confused with lieing). Impeachment by contradiction or prior inconsistent statement have to be important enough that there seems to be a suggestion of lieing (not just an easy mistake) in order to qualify as an attack.(4) specific acts can be used on cross to attack the witness or character of which witness testified: (a) the answer is limited to what the witness gives and extrinsic evidence can be shows (efficiency concern), (b) scrutinizing every little piece of evidence will be hard to get in under 403., (5) extrinsic evidence can be used to show bias, and conviction but not to show untruthfulness (even on cross): (a) Specific Instances of “selfish tendancy to seek self interest” can be used to show bias in the cause where the witness has received a settlement offer., (6) steps: (a) character issue or not, (b) 400s or 600s, (c) 608 or 609.

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609 - Impeachment with past convictions

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(a) General rule.

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit.

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation.

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications.

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal.

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

(1) Convictions of non accused allowed if crime was punishable in excess of 1 year and for accused if punishable more then 1 yr and probative value outweighs prejudicial effects (reverse 403): (a) gordon factors for balancing: (i) the nature of the crime (more similar more probative), (ii) the time of conviction and subsequent history (longer less probative), (iii) similarities between past crime and the charged crime (concerned about improper use so dont allow), (iv) importance of the def. testimony, (v) the centrality of the credibility issue., (2) Impeach any W if elements require proof of dishonest attack, (3) conviction not allowed if 10 yrs has passed from release or conviction (whatever is later), unless prob. value substantially outweighs prejudicial effects, (3) cant allow if there has been pardon of sorts, (4) juvenille adjudication generally not allowed unless conviction would have been allowed, witness is not accused, and necessary for fair determination, (5) crit: allows entrance of irrelevant dissimilar crimes, (6) there is a strong impact from prior record, (7) By not getting to the stand one has waived their right to object. If you get to the stand and bring out intentionally so as to avoid appearing deceptive, you have not waived your right.

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412 - Rape Shield

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(a) Evidence generally inadmissible.

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must --

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

OUTLINE: (1) No evidence of sexual behavior or predisposition: (a) being a sadomasichist shows predisposition, (b) introducing evidence of past sexual encounter to explain fingerprints still is covered by the rule, because you have to show sexual behavior to get there, (c) Evidence of recanting an allegation is not considered sexual behavior and thus not covered under, (d) Past false accusations are not considered sexual behavior but open to 404 (people laughing), however, Past false accusations that are false because the sexual encounter was consensual is considered sexual behavior and thus covered. (2) Exceptions: (a) Specific Instances to show semen: (B) Specific instances of past sexual between parties to show consent: (i) email exchanges do not really count, (ii) we a trying to show consent not ones subjective belief in consent, (iii) the exception to show consent does not apply to cases where it is offered to show fingerprints, and (c) const. violation: (a) One is constitutionally entitled and allowed under 412B(1)(c) to bring evidence of bias. (b) Cases of past consent are not constitutionally entitled to be shown in order to show state of mind (sleeping sex), (3) 412 Excludes evidence for all purposes, (4) For civil cases look at C: (a) Paula Jones could get in evidence of Clintons passed sexual misconduct under 413 but it is unclear if he could get it in because under 412 the probative value must outweigh unfair prejudice.

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601 - General Rule of Competency

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Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

(1) the language “every person” shows the liberal nature of the law (2) the qualification concerning state law has its origins in the desire for dead mans statutes which the FRE do not provide.

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603 - Oath or Affirmation

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Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

(1) It is arguable whether this rule is effective, (2) requires an affirmative statement of truth, (3) Children younger then 6 can testify if the judge based on asking him questions in chambers thinks he can understand the questions.

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602 - Lack of Personal Knowledge

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A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

(1) A witness must have personal knowledge: (a) A student not in his teachers class does not have personal knowledge as to the teachers competency as a teacher, (b) A roommate of one of pettit’s students has personal knowledge of what his roommate said to him., (c) A student who had one class has personal knowledge. The quantity of personal knowledge is not an issue, (d) There is a problem that personal knowledge might entail hearsay, but we apply a deminimus principle here, (2) certainty is not required for personal knowledge.(3) The burden is on the party offering testimony to show personal knowledge, (4) a 104b standard is applied for showing personal knowledge.

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611 - Mode and Order of Interrogation and Presentation

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(a) Control by court.

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination.

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions.
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(1) One cannot ask leading questions unless the witness is hostile, it is necessary to develop the witnesses testimony, or it is on cross examination.: (a) A leading question is one that suggest the desired answer to the witness, (b) Whether a question is leading Depends on how it is said, nature of the witness, subject matter, what was said before. This is an area of wide discretion, (c) Usually, who what where when questions are not considered leading., (d) If the W looses recollection you may want them to get their memory back
, (e) If you have child or someone with disability you can ask more leading questions (not sure if the last too only apply to cross or not).

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801 - Hearsay Definitions

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The following definitions apply under this article:

(a) Statement.

A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.

A "declarant" is a person who makes a statement.

(c) Hearsay.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay.

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Hearsay is an out of court statement offered by litigant for the truth asserted by def: (a) an out of court statement is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion: (i) An assertion is something intended for an audience, (ii) Quoting one’s self is considered an out of court statement because the cross-examination is not contemporaneous with the statement, (iii) An intended gesture like running one’s fingers together is considered a statement of non verbal conduct, (iv) Whether a blood test is an intended out of court statement is a divided issue. The majority has said no because it is the machines who made the printouts not the operators, however depending on how much assistance there is you can argue the other way, (v) address mailed is not considered an assertion because there is no need to tell the recipient who he is (santa clause), (vi) A diary is not an assertion if we define an assertion as speaking to an audience. If it is merely to communicate something then we have a problem, (vii) In close cases we error on it not being intended to communicate, and thus its not a statement and not hearsay, (viii) reputation is just accumulated statements from many different declarants (prostitution), (viiii) Tape recordings are identical to having a person on the stand once we get over the problem of authentication, (x) a reading from a notebook is an out of court statement (even if your own) unless it is simply used to jog one’s memory, (xi)whether something is an asserted statement doesn’t matter who you intend to communicate to so long as you do intend to communicate (lover signals), (B) Statements offered to prove that one did not believe they are stealing (horses), that one acted in self defense (boasts, negligence (supervisor), the falsehood of a statement (ketchup), to describe one's own experience (blinds case) are not the same as statements offered for their truth., (i) independent legal significance (c) Triangle concerns: (left) ambiguity, sincerity, (right) memory, inaccurate perception

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801 Exclusions

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(d) Statements which are not hearsay.

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

General/613 -OUTLINE: (1) You can have bad memory and still be subject to cross examination under 801d1. It doesn’t matter whether it is sucessful or not. All your guarteed is the availability of cross examination, not whether it is effective. (2) applies to witnesses as opposed to D, (3) this rule concerns substanitive uses of past statements, 613 implicitly allows for impeachment, (4) we are not concerned about the 608b character evidence limitations on extrinsic evidence here (might just be 613) (stamp stealing), (5) ) if going to impeach under 613b can give limiting instruction, (6) One cannot impeach one of its own witnesses solely for the purpose of circumventing the hearsay rule under 403 (friend alleging confession then denying), (7) silence does not really warrant impeachment in with adopted omissions, (8) It is not unconstitutional to use silence to impeach if he was not given his Miranda rights (fletcher),

(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

OUTLINE: (1) under 801D1a the witness past statement must have been under oath: (a) A prior grand jury hearing qualifies as under oath even if the def. lawyer was not there (this is a common scenario) b/c the earlier statement is likely the more reliable one. (hospital case)

(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or

OUTLINE - (1) These are statements consistent with the witness’ testimony used to rehabilitate the witness: (a) classic case - Someone is accused of lieing because they made deal with police, and then they say “no, I said the same thing before I got the deal”, (2) whether a mothers testimony that her son fooled the jury can be used to rehabilitate a witness accused of lying for a lighter sentence under 801d1b depends on temporal requirement of the Tome principle, (3) Tome Principle: prior consistent statement must be made before the accusation (when the dispute arose, determined under a 104a standard), (4)

(C) one of identification of a person made after perceiving the person; or

OUTLINE - (1) Reasoning: We allow for an identification exclusion because: (a) there is a higher probative value since it was right after the attack, (b) there is a greater need because past events are frozen in time, peoples faces are not, (c) we are concerned with witness intimidation., (2) (a) it is probably ok to allow a detective to testify that the person identified was the defendant, because we are using 801d1c only for the truth of the defendants accusation (Goldberg), (3) (a) a composite sketch can be argued as a multitude of out of court statements for hearsay purposes in which case it is out under 801d1c or it is not hearsay and thus gets in.

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or


OUTLINE -- (A) THIS RULE APPLIES TO A PARTIES OWN STATEMENTS, (B) REASONS (1) more reliable, (2) not concerned about loosing chance to cross ones self, (3) always want to hold parties to their statements., (C) evidence under d2a must be made by the party opponent, not by the party (Take my blood), (D) a statement doesn’t have to be against the party at the time it was made under d2a. (take my blood)

(B) a statement of which the party has manifested an adoption or belief in its truth, or

Outline --(1) Examples: (a) Evidence of billable hours are considered as manifesting an adoption or belief, (b) Non refutation might be considered a manifested statement under D2B in situations where there was independent corroboration (buddies - adopted statements), (c) manifestation by omission to give warranted response (jailhouse murder case/Why so much excitement): (*) Showing Fisher Preconditions for 801d2b: (i) the party heard or understood the statement, (ii) the party was at liberty to respond, (iii) the circumstances warranted a respond (this is usually the difficult one) -(*) Miranda is relevant here (chart 437 - if given cant be used to impeach of sub. if not then yes for impeach maybe but probably not cause of 403 subs) , (iv) the party did not respond((2) Statement doesn’t have to be against her interest at the time it was made to come in under the exception of 801d2b (Billables),

(C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

OUTLINE: (1) 801 D2 does not require personal knowledge (supported by advisory committee), (2) Furthermore, it doesn’t matter anymore whether the statement is made to the public or not.(wild canine case) (3) boot strapping (your using the statement to prove employment so you can get in his statement) can be used to have something considered for the exception but cant go much further (shovel), (4) a 104a standard applies (shovel),

(E)a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

OUTLINE - (1) the main concerns under d2e are whether there is a statement by a COCONSPIRATOR of a party DURING THE COURSE and in FURTHERANCE of the conspiracy. (2) Example: a police reporter can provide testimony as to what a brother said about his brother’s statements under d2a (parties own statement) if the brother is reporting his own statements then d2e (co-conspirator) comes into play, (3) the defendants statements to his brother are considered during the course and in furtherance of the conspiracy, but the statements the brother makes to the police are not, (4) 104(a) applies to d2e, (5) no bootstrapping bar to meet 104a standard but it is questionable if that can be the only evidence.(cocaine), (6) there does not have to be a charge of conspiracy for d2e to apply, they just need to be working together, (7) translation - in situations where there is a translator be aware of complete bootstrapping (might try d2c)

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

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FRE 804 - Hearsay Exceptions; Declarant Unavailable

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GENERAL OUTLINE - (1) These exceptions are statements previously made with the opportunity for cross: (a) must be unavailable, and (b) must be listed as exception,

(a) Definition of unavailability.

"Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

OUTLINE: (1) Includes pleading the 5th (grand jury case)

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

OUTLINE: (1) This often occurs in domestic violence cases

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

OUTLINE: (1) Example: (a) unable to attend because suffering head injury (roadway incident)

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

OUTLINE: (1) The important point here is that they (a) had an opportunity to cross, and (b) had a similar motive: (1) It is generally assumed criminal def. have more motive to cross, (this is not hard and fact). Thus, courts are reluctant to allow civil testimony in criminal courts, (2) Often grand Jury testimony does not have the same motive as trial (we just want the facts), but fact specific, (3) a predecessor does not need to be the same person but someone with the exact same interests (mom and pop store)

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

OUTLINE: (1) applies to civil and homicide cases but not other criminal: (a) reduced sincerity concerns in civil case (some like pettit argue against this)., (2) R: (a) reduced sincerity concerns (dont want lie on lips when going to heaven), (b) necessity, (3) this is a tought standard: (a) must  be a settled expectation that death is hear at hand and that he has spoken the hush of his impending death: (a) not only do you have to know your dieing, but you need to know your dieing right away (mattox didnt shoot me), and (b) must have personal knowledge to meet 104b for relevancy, (c) statement must concern the cause or circumstances of his death (mattox)

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

OUTLINE: (1) Different then statement against party opponents, because does not only apply to Parties, but any declarant, so long as his statement is against his interest, (2) R: reduced sincerity concerns, (3) Corroboration v. Inculpation distinction - when using the evidence to exculpate the accused (some think also inculpating) you need corroborating circumstances to verify the trustworthyness and simply credibility is not enough, (4) sometimes their is a mix (Williamson problem) in that the statement can go against ones interest and another part towards another purpose, like incriminating someone else. We only let in the selected portions. (ask magnolia), (5) co defendants - Co defendants are looked at with special suspicion (472) because they are more likely to implicate another to exhonorate himself…they might be trying to butter them up to get a better deal, so we should hesitate to see whether it is really against his interest (williamson), (6) if def. is using to exculpate we dont have to worry about williamson, but we do need corroboration.

(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) [Other exceptions.][Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

OUTLINE: (1) If you are responsible for the unavailability of someone, that persons statements can be used against you without concern for hearsay,(2) 3 things that have to be proven, pg 487: (a) defendant engages or acquiesced in wrongdoing, (b) that it was inteded to render the declarant unavailable as a witness, (c) that it did in fact render the declarant unavailable (3) There is broad application. Doesn’t have to be specific intent to procure for a specific trial.

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FRE 803 - Exceptions

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The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

OUTLINE: (1) R: Don't have time to fabricate, thus reduced sincerity concerns. memory concerns also reduced, (2) It is not clear that it matter that one is lying (calm Graduate case); however, you might get it out in other ways, (3) courts do not want this to be expansive (bar shooting case)

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

OUTLINE: (1) the doesn't say if we do a subjective or an objective application, but pettit thinks we look at the particular person, (2) almost always start with oh my god and end with exclamation, (3) must still be under the stress from the event, (4) personal knowledge remains a requirement (dog mauling case with neighbor), (5) this exception is very important in domestic violence cases, (6) even bystanders can be under stress from an event (Bar shooting)

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

OUTLINE: (1) Example: (a) the statement "if I am pregnant with another mans baby, I will have to disappear" shows intent, (b) letters saying "i am going to X" show intent, (2) R: Reduced right leg concerns (memory, perception), (3) Statements cannot be used to show someone elses intent (crooked creek), (4) cannot use to show actions based on someone else's intent (marijuana case), (5) cannot use backwards facing evidence such as statements of memory (X poisoned me) because if we allow a statement of memory or belief to prove a memory or belief we have eliminated the hearsay rule

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

OUTLINE: (1)Must be necessary for treatment: (a) Statements As to Fault do not normally qualify because not necessary for treatment (caretaker pushing old person), (b)what happened is ok, but names are not b/c not necessary for treatment, (c) Some argue that name is ok for child abuse because it necessary for proper treatment of removing source (arm twisting) (2)R: people are pretty honest with the dr's cause they want good treatment, (3) can extend to people other then physicians if necessary for receiving care (food poisoning), (4) can include statements of dr. to patient as well (arsnic food poisoning)

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

OUTLINE:(1) Contrast with 613 - Present Recollection Recorded - which says if you use to refresh opposing council has certain rights (the idea is that you can recall things you cant remember), (2) 803(5) - (a) can let in documents shown to have been made when knowledge was fresh it witnesses head, (b) need to have one had knowledge and now have difficulty recollecting, (c) may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party: (i) b/c serves as a substitute for witness testimony and witnesses cant go into jury room, (3) not sure about license place case where she still cant remember, (4) The witness needs to aknowledge that the statement was true, not just that his memory was better then, (5) foundation reqs. That are not usually met - He must say (a) I don’t remember now, (b) I did know before, (c) I wrote it when it was fresh in my mind, (d) I wrote it down correctly, (e) this is the doc. I wrote.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

OUTLINE 6/7 - (1) must be (a) transmitted by a person with knowledge, (b) kept in the course of a regularly conducted business activity, and (c) be the regular practice of that business activity to keep that record, (2) R: necessity, reliability - things done routinely usually insignificant so not reason to lie adn if you lie youll probably loose job so no need for extra incentive, (3) Foundational Req 803(6): (a) At or near the time of hearing, (b) By a person with knowledge, (c) Must be kept in the regular course of business, (d) Regular practice of the business to make that record, (e) Need qualified witness to lay the foundation. Must be able to establish and explain the process; however, they don’t need to be the person who created the record, just that these things were done and this procedure was followed: (a) He knows enough to testify the foundationa req. doesn’t actually have to be there (4) identify levels of hearsay because not, all are covered in the exception (nurse writing down),(5) the person recording is usually not a level or hearsay, more of an authentication problem (engineer case), (6) ambiguity with self serving statements, (7) conditional relevance standards still apply (western union records)


(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

OUTLINE: (1) R: (a) expertise, (b) duty to perform, (c) no motives not to perform properly..similar to business record independent reason. (d) we dont think they will be able to remember detail inde. of record, and (e) we dont want public officials to spend much time out of court., (2) It is arguable whether factual findings in C includes opinion (might just want expert on stand). Court says look to trustworthyness. In the aircraft failure case it was ok., (3) Using 803(6) to get around 803(8) - Oates says we cant do this; however, the 10th circ. in Hays says you can get over Oates confrontation clause concern if record keeper in testifying, and also distinguishes because it is a report made in a non-adveserial setting. Weiland tries to make consistent and says you cant use 803(6) as end run but says the holding did not apply to non-adversarial cases (4) parts B and C don't apply to criminal cases, (5)note L under 805, hearsay within hearsay is not a problem if each has an exception, (6) might want to read more here.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

OUTLINE: (1) classic example - Few Good Men Code Red, trying to prove the absense of a record

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person's character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

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807 - Residual Exception

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A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that

(A) the statement is offered as evidence of a material fact;
-- O: Might say this is not helpful because already covered by relevance.

(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
-- O: This is helpful b/c we usually don't require the best evidence.

(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
--O: Seems redundant with 102

However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

OUTLINE: (1) use this rule as a last resort, (2) Crafted from lightning case which required exception to (a) be necessary, and (b) be trustworthy (this is very controversial because of the uncertainty it gives, (c) Controversy in the acid sale receipt case where foundational req. could not be set b/c only person was dead surrounded two views - the maj: close enough view, and (b) the dissents near miss view (argue that it is specifically not covered by 803(6) so cant get around).

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Constitutional Requirements

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6th Amendment - Confrontation Clause:
“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”,

OUTLINE: (1) 6th amendment secures the Right of confrontation only for criminal defendants. So there would be no constitutional problem with abandoning hearsay in civil cases,

(2) Extreme interpretations: (a) some like wigmore felt you only had a right to confront wintess, (b) others thought you had the right to confront all in front of you.,

(3) Setting the stage for Crawford - (a) Mattox - strongest case for allowing hearsay despite the confrontation clause b/c This is the strongest case, because we will loose this valuable evidence, which has already been cross examined, unless we allow this evidence in: (i) the court says there must be some way for public policy and necessity; however, this is vague - (*) you could read it very narrowly – namely, that when he could cross examine, and they are unavailable, then it is ok, or (**) primary object of the clause is to prevent depositions or ex parte affidavits using against the prisoner, in lie of peersonal examination and cross examination of witness; however, in both its difficult to see how these thoeries accomodate for the exception of dieing declarations that the court allows, (b) Green (good law) - marijuana kid case - two holdings: (i) if declarant is present and testifies no worries, and (ii) if unavailable and could previously cross then ok, (c) Roberts (dead) - necessity and reliability test: (i) reliable if firmly rooted in hearsay exception or there are particularized guarantees , (ii) must try to get him in court unless unavailable, (d) Wright - considered whether corroboration could be a factor in determining reliability under Roberts (maj. said no), (e) Craig - Scalia (who wrote crawford) said 6th amendment ment physically being able to stand face to face, there s nothing about reliability req., (f) Illinois - Cuts back on Ohio unavailability requirment, (g) Virginia - reliability rule starts becoming a mess,

(4) Crawford - CURRENT TEST - (a) Scalia History Lesson - (i) rejects wigmore - not just witness testimony, (ii) conf. clause will bar one from keeping out test. Statements unless (*) the def had a chance to cross examine, and (**) the declarant is unavailable to appear at trial, (b) What statments are testimonial: the court leaves this quesiton open but gives hints: (a) core class of statemetns: (*) ex-parte in court testimony, (**) extrajudicial statements, (***) statements made under cir. that would leave reasonable person to think avail. for trial, (****) other: police interrogatories (interrogatories is not defind - look hints), (*****) prior testimony at preliminary hearings., (C) If testimonial must: (I) declarants test. Subject to cross examination (us v. green) (ii) def is unavailable, or (iii) the statemetns are not offered for their truth (pg 582) or (iiii) the def. forfitted confritation right in wrongdoing (this is helpful in domestic violence cases - scalia in Davis), (D) Dissent on Crawford - Renquist thinks the court didnt need to do this cause easy to decide under Idaho,

(5) Davis - 911 v. post event affidavit: (a) Primary purpose test - if the primary purpose was to aid police in responding to emergency, not testimonial,but if the purpose was to get info about the past then it is testimonial, (b) relevant factors are whether a statement was before or after the fact for determining (after the fact being more likely to be tesitmonial) as well as the formality. (c) it is unclear whose perspective we are looking at for primary purpose (declarant or questioner), however, many courts seems to look at questioner, particularly with child abuse case concerns

(6) Examples of test. v. Non Test: (a) testimonial: Solem declaartions for purpose of proving some fact -crawford 579, Prior testimony at preliminary hearing before grand jury or at formal trial – crawford, Statements produced with involvement of gov officeres with an eye towards trial – crawford, pg 581 n. 7, Statements to police when there is no ongoing emergency and the pupose is to prove past events later relevant. 600-601, Davis primary purpose test says test. When made during police investion and describes past events as opposed to when they are heppening., Testiomonial is not necessary for ongoing emergency. 602, Test. When bore inditia of formality 602-604, Taken when def. was out of danger, Beign taken in police stantion house, Inovolving series of w Being recorded by interrogator, Following custody and miranda, Involving seperating from declarant and subspect, Being made in cir. Where deliberate falsehood resik sever cons. Davis 602, Statement served as obvious substitute for live test because does what witness does on direct examination, Deliver after death – Testimonal because he is not trying to prevent emergency (problem 8.1) (b) Non - tetimony: Casual remarks – crawford davis, Off hand overheard remarks, Statements in furtherance of conspiracy, Some business records, Statements made in the course of police interrogation where, the primary purpose is to enable police to meet ongoing emergency, probably statement made to acquantice when you dont think it would go to police,

(7) make sure you break each statement separately.

(8) to show forfeiture by wrong doing must (a) show by preponderance of evidence that def. acted wrongfully, (b) Does wrongful conduct cause absence from the trial, (c) Did def. intend his conduct to cause her absence from trial.

(9) Bruton - (a) This is a problem that occurs when two accomplices are tried together. One confession can be brought against the person who made the statement, but not against the other person. To allow it would violate the confrontation clause. To get around this courts sometimes try to sever trials, seperate juries, redact statements (sometimes like in menendez, this is unfair), however if none of these prove feasible; it will not pass the confrontation clause. (b) if not testimonial (dog attack case) then we dont have bruton problem.

Compulsory process clause – 6th amendment (right after confrontation) “have the right to compulsory process for obtaining witnesses in his favor”.

(1) Chambers v. Mississippi: When ever the accused wants to present evidence and is denied by hearsay think about the compulsory clause and due process clause.

(2) 3rd party guilt rule - When applying the 3rd party guilt rule, which permits "permits criminal defendants to offer evidence of another persons guilt if the evidence raises a reasonable inference or presumption as to the defendants own innocence – but not if it merely casts suspicion upon another or raises a conjectural inference as to the commission of the crime by another.” There is nothing wrong with casting supscison on someone elses doing, but there has to be more then just throwing that name. But you cant say that because the prosecutions evidence is so strong that eliminated to the possibility of other people doing it. You cant look at prosecutions evidence to determine the probative value of defendants evidence.

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901

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(a) General provision.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

OUTLINE: (1) Authentication is an application of 104b (might be hard to meet this standard if comparing to something made significantly earlier) and has to with being what someone says it is, (2) authenticated documents which are party opponent statements, can serve as a hearsay exception, (3) the gov. can require an examplar without violating the 5th amendment, (4) the illustration list is not exhaustive (important), and (5) authentication can be based on hearsay if admissible but not if inadmissible because we are applying a 104(b) standard and it would never have gotten to the jury, (6) you only need to establish a chain of custody if it would be a difficult thing to identify, (7) hearsay and authentication are different reqs., (8) Usually, parties send a request to the other side to admit the authenticity of the documents; if they don’t admit to it, they pay for you proving they are genuine, and may be subject to penalties for misrepresenting

(b) Illustrations.

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

OUTLINE: (1) There can be a distinction between investigation and prosecution with regard to 901(b)(2) which prohibits familiarity acquired for prosecution. - (Handwriting Opinion), (2) Handwriting familiarity not applied to phone call (might have jury listen to phone call and see if it sounds like him)

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

OUTLINE: (1) Does not apply if you cant recognize his voice at the time you hear it

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

OUTLINE: (1) This applies if you call them and they identify themselves, but not if they call you.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

OUTLINE: (1) Its hard to imagine that ancient documents were framing someone by putting them in various locations where you expect them to be.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

(1) Examples: (A) Signed Receipt Authentication: - (b) When authenticating a receipt, first try to get him to admit (901b1 – someone with personal knowledge), then see if there is anyone familiar with his handwriting (901b2), then possibly check for an expert (901b3)., (B) Document without signature: (i) Can try to get him to admit -to show that he made the letter you might get him to admit through interrogatory, (ii) see if there was anyone around when he made the letter, (iii) might try to find similarities based on the kind of ink that was used and printers, ect, (circumstantial) and (iii) see if self authenticating, for example, public doc., (C) Anonymous note – (i) to authenticate an anonymous note you don’t have to show who it was written by, only that it was the note found in the car (this is because that is all they are saying it is). You can do this by testimony of the police, (D) Anonymous note – (a) to authenticate an anonymous note you don’t have to show who it was written by, only that it was the note found in the car (this is because that is all they are saying it is). You can do this by testimony of the police. (D) Phone calls: (i) Easiest way to authenticate phone call is 901(b)(5) – Look for personal knowledge - have the person say they recognize the voice, - (ii) 901(b)(5) (voice id) does not apply if you cannot recognize his voice at the time you hear it, (iii) if this doesnt work possibly play the tape and let the jury make a comparison (b2 limitation does not apply to a phone call – don’t need familiarity based on litigation), (iiii) if this doesnt work can verify based on tracing under b9, (iiii) Star 69 - In a * 69 situation to identify the call we need to (*) be convinced the call was made by the robber (b4 – circumstantial evidence), (**) know that * 69 works (b9 – process or system), (***) know the phone used was at the venue being claimed (b6 – self id), and (****) that the person who made the call was the defendant (might just look to see if he fits the bill – is this b4?), (E) PHOTOS - (i) You don’t need the photographer there to authenticate the photograph. All you need is someone with personal knowledge saying the photo accurate represents what they saw, (ii) one cannot authenticate a staged photo of the defendants position (because they don't have personal knowledge) but can authenticate a staged photo of the of the clear view (F) video: (i) Computer Reenactment cannot be authenticated to show that it accurately portrays what happened but it can if offered to depict theory based on verification, (ii) There are two methods of authenticating video – (*) pictoral testimony method (first hand knowledge), and (**) silent witness testimony (people testify as to how the camera was installed): (I) Five factors (not magic list -Wagner) evidence establishing the time and date, any evidence of tampering, the operating capability of the equipment producing the photo evidence as it relates to the accuracy and reliability of the photographic product, the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself, and testimony identifying the relevant participants depicted in the photographic evidence.

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1002 - Best Evidence

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To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

OUTLINE: (1) Misnomer: best evidence rule is really an original document rule (2)The toughest question is when your trying to show the content of the writing and when not: (a) It is unclear whether a badge is considered writing, recording or photo, (b) Receipts - You can testify as to the fact of payment even if there are receipts; however, testimony as to the amount of a receipt would be considered written content, (c) written contract - One cannot testify as to the specifications of operative documents because the deal is not what you say it was but what was actually in the contract, (d) Written report: It is OK to testify that one filed a report, because this is considered testimony as to the existence of the report, not the contents of the report, (e) If a witness observes something at the same time a writing or recording is made – good, but if they are looking at the recording then testifying, no good b/c it has to do with what the source of what he has learned is., (4) If a dr. only means for being put on notice was that form itself. then they need to prove the content of the form, (5) Sketches are considered writing (empire strkes back)

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Rule 1003 - Admissibility of Duplicates

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A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

OUTLINE: (1) duplicates are admissible under 1003, and (2) manual drawings are not considered duplicates.

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Rule 1004 - Admissibility of Other Evidence of Contents

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The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

OUTLINE: (1) any evidence can get in if relevant and orginal has been destroyes, (2) Cut and paste documents are not considered duplicates because they involve manual preparation, (3) Secondary evidence cannot be allowed if the primary evidence was destroyed by bad faith under 1004(1): (a) bad faith might be considered doing something improperly or having a bad motive, (b) It is the proponent who must act in bad faith. (2) in close cases of destruction under 1004(1) (changing 1 to 9) we might let the original document, as well as whether the testimony against go to the jury for them to decide.

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

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501

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Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

OUTLINE:

(1) Psychologica privilege - (I) In Jaffee the court recognized that there was an privilege between psychologists and patients. The majority argued (a) every state does it, (b) the advisory committee recommended, (c) reason supports it, (d) disincentive for police, (e) don’t have to be concerned about loosing much evidence because people wont create, (f) a balancing test is to uncertain to be applied, (g) dr privilege does not follow from this, (II) Dissent argued (a) says the proposed rule does not cover social workers, (b) argues by analogy that because no priv. for mom an child there should be no priv. here either., (c) there is a skewed view of public interest because no one is arguing the other way around., (III) Relayed threats - (a) intentional threats probably wont get covered under privilege because (1) they were either not confidential because it was intended, (2) fn 19 in jaffe allows for an exception where the privilege might pose a threat, (IIII) only the child can waive the privilege not the psychologist,

(2) Witnesses Privilege v. Defendants need for evidence: (I) a) just because there is a privilege doesn’t mean it looses because the privilege might be tied to the constitution as well, (b) when balancing a privilege against a right we do a chambers v. missipi analysis: (1) must be critical to def. case and (2) has to show that statement is reliable

Priest Prvilege - (1) one might argue that heart to heart talks are not covered under the privilege (pettit didn’t think that was really happening here)

5th Amendment Privilege: (I) OJ Film Clip: (a) def. compulsory process claim must yield against 5th amendment., (b) we might get around this by trying to strike direct testimony, (c) Some courts distinguish between questioning for a new fact relating to the crime then the striking is appropriate, but if it goes only to credibility then you don’t strike, you just instruct the jury that they can take it into account into accessing the weight of that testimony., (II) (a) A lawyer cannot assert his clients 5th amendment privilege. (b) A lawyer can assert attorney clint privilege if in clients hands it would have been privileged (under the 5th) and it was turned over in seeking professional legal services, (c) it is privileged in the clients hands under the 5th if there is (i) compulsion, (ii) testimony (something about action in furtherance being testimonial), and (iii) self incrimination (we do this analysis to both the creation and production), (III) Gulty Knowledge - Whether a compelled polygraph machine that does not require verbal communication violated the 5th amendment depends on whether it is considered testimonial. Those that think it does not violate the 5th will say it is only requiring one to monitor physical manifestations, and is thus similar to compelling one to take blood which is not considered testimonial. Those that think it does violate the fifth will say it is different than taking blood because it requires someone to reveal something about their mind. (IV) A handwriting exemplar does not invoke the 5th amendment, however it can be argued that a spelling mistake does involve disclosing something about the mind.(V) Demanding one to sign a consent form does not count as testimony and violate the 5th amendment if it does not relate a factual assertion being used., (VI) Problem of Immunity: : (a) if the act of producing documents is testimonal and icriminating, it cannot be compelled without a statutory grant of immunity, that is, she must promise use immunity - namely, You cant use the testimonial aspects of producing the document. You cant use the facts of production. (b) The government need not give transactional immunity - Much broader. Immunity from prosecution for the underlying facts. If you do what they ask, they wont prosecute you., (c) In Hubbell the court noted that what is needed is use plus fruits immunity - This is the use immunity plus circumstances where you cant use the contents of the documents.

Parent Child Privilege - Finds that no parent child privilege exists in all cases because (1) no precedent: (a) different for psychotherapist priv. because not as widely accepted and not rec. by advisory committee, (b) different from clergy cause less indicative of common law, (c) does not pass wigmore factors, (2) thinks parent should guide behavior, (3) thinks 501 says nothing about this, (4) thinks this decision is better left for congress, and (4) thinks there is no impact on the family.

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511 - Waiver (proposed not enacted)

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"A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if he 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.
under 511, you must discuss the conversation itself not just talk about the same thing in order to waive privilege"

OUTLINE:
(1) you must discuss the conversation itself not just talk about the same thing in order to waive privilege.

(2) Inadvertent disclosure - (a) although the court rejects the position that inadvertent disclosure can never result in a waiver, in the case of a mechanical mistake the court seems to think waiver did not occurr. The pivotal question is whether one intended for the waiver and if reasonable precaustions were taken (see 502). Some court like howell have done a multi factor test (a) the reasonableness of precautions taken to prevent disclosure (b) the time taken to rectify the error (c) the scope of the discovery (d) the extent of the disclosure (e) the overriding issue of fairness

(3) Eaves dropping: There use to be a rule that eavesdroppers can testify. This has changed in proposed 503 and 502. Now the question is one of intent. However, even if it is intent you have to take reasonable precautions. The advisory committee says that reasonable precautions is some indicator of intent. (we also see the reasonableness issue come up in the dumpster diving.

(4) Crime Fraud Exception: (a) services cannot be obtained to further what one reasonably should have known was a crime., (b) a lawyers disclosure of threats based on ethical concerns cannot waive a privilege b/c it is the clients privilege, (c) Before the judge can do an in camera investigation “the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person.”

(5) Selective waiver of attorney client - One Cannot selectively limit their privilege (video clip).

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503 - Attorney Client (proposed but not enacted)

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Rule 503 (proposed but not enacted but helpful as a guide)

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(3) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.

(c) Who may claim privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or

(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

OUTLINE:
(1) Statements must be made in the manner one was hired for (Gionis)

(2) Defining Communications - Source of Fees and Client’s Identity: (I) (a) names of clients and those who pay you are not considered privileged confidential communications under 503 unless giving up the name requires you to give up a confidential communication, (b) where one hit someone and contacts an attorney who refuses to give up the name one might argue that the communication was “my guy was the one that your looking for at the scene of the accident.”, (II) acting as a conduit for returning stolen goods is not within the legal capacity of an attorney and thus not covered under the 503 privilege, (III) Counterfeit Bill: (a) disclosure of who gave an attorney 100 dollar bill is not considered a confidential communication under 503 and is thus not covered under the privilege. (IV) Handwriting: (a) although the contents of writing can be communications, the handwriting itself is not considered a communication, and thus not under the privilege.,

(3) Duration of the Privilege: Swidler & Berlin v. United States: (a) the bulk of authority is that the privilege applies post humonously, this is also implied by the proposed but not enacted rule 503, and the burden is on the opponent to show persuade the court to go beyond this.

(4) Corporate setting: (a) gets rid of control group test, (b) priv. does apply in corporate setting, (c) courts now look at listed factors: (1) Communications were made from corporate employees t corporate council upon order of superiors in order to secure legal advise from counsel. (2) The information needed by corp. counsel to formulate legal advice was not available to the control group (3) the info communicated concerned matters within the scope of the employees corp. duties. – they are talking about their own duties (4) the employees were aware that the reas for communication was to get legal advise. (5) the communications were ordered to be kept confidential and in fact remained confidential. (6) the identity and resources of the opposing part. There is some suggestion that gov. could obtain the underlying facts through some other means. (d) Generally under the work product dontrine when lawyers take statements there is a presumption that that is going to be protected but this presumption can be overcome by showing necessity.

(5) Government Attorneys: (a) the attorney client privilege applies to government attorneys, (b) opposition will argue that governors counsel has a duty to the public interests, supporters will argue that it is also in the publics interest to apply the privilege.

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502 (proposed when studied, only recently enacted)

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502

(a) A waiver extends to an undisclosed communication or information in the federal or state proceeding only if: (a) the waiver is INTENTIONAL (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness be considered together.

(b) it is not a waiver if: (1) the disclosure was inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosur, and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following FRCP 26(b)(5)(B).

OUTLINE: (most info included above)

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613

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(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

(1) when impeaching by prior inconsistent statement, need not show the contents of the prior statemetns.

(2) is want to use extrinsic evidence by a prior statement that is ok, but the witness has to be given an opportunity to affirm or deny, and the other party has to have the opportunity to question.

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504 (proposed not enacted) – Psychotherapist privilege

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(a) Definitions.

(1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.

(2) A "psychotherapist" is (A) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or (B) a person licensed or certified as a psychologist under the laws or any state or nation, while similarly engaged.

(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.

(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.

(c) Who may claim the privilege. the privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient. The person who was the psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do is presumed in the absence of evidence to the contrary.

(d) Exceptions.

(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2) Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(3) Condition an element of claim or defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

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506 (proposed not enacted) – communications to clergy men

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(a) Definitions. As used in this rule:

(1) A "clergyman" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) 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.

(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional characters as a spiritual adviser.

(c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.

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505 – marital privilege (proposed)

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(a) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him.

(b) Who may claim the privilege. The privilege may be claimed by the accused or by the spouse on his behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.

(c) Exceptions. There is no privilege under this rule (1) in proceedings in which one spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other, or (2) as to matters occurring prior to the marriage, or (3) in proceedings in which a spouse is charged with importing an alien for prostitution or other immoral purpose in violation of 8 U.S.C. § 1328, with transporting a female in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C. §§ 2421-2424.

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502 – Required reports privileged by statute

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Article I General Provisions

Rule 101 Rule 102 Rule 103 Rule 104 Rule 105 Rule 106

Article II Judicial Notice

Rule 201

Article III Presumptions in Civil Actions and Proceedings

Rule 301 Rule 302

Article IV Relevancy and Its Limits

Rule 401 Rule 402 Rule 403 Rule 404 Rule 405 Rule 406 Rule 407 Rule 408

Rule 409 Rule 410 Rule 411 Rule 412 Rule 413 Rule 414 Rule 415

Article V Privileges

Rule 501

Article VI Witnesses

Rule 601 Rule 602 Rule 603 Rule 604 Rule 605 Rule 606 Rule 607 Rule 608

Rule 609 Rule 610 Rule 611 Rule 612 Rule 613 Rule 614 Rule 615

Article VII Opinions and Expert Testimony

Rule 701 Rule 702 Rule 703 Rule 704 Rule 705 Rule 706

Article VIII Hearsay

Rule 801 Rule 802 Rule 803 Rule 804 Rule 805 Rule 806 Rule 807

Article IX Authentication and Identification

Rule 901 Rule 902 Rule 903

Article X Contents of Writings, Recordings, and Photographs

Rule 1001 Rule 1002 Rule 1003 Rule 1004 Rule 1005 Rule 1006 Rule 1007 Rule 1008

Article XI Miscellaneous Rules

Rule 1101 Rule 1102 Rule 1103

DELETED AND SUPERSEDED PROPOSED RULES

Rule 105 Rule 301 Rule 303 Rule 406(b) Rule 501 Rule 502 Rule 503 Rule 504 Rule 505 Rule 506

Rule 507 Rule 508 Rule 509 Rule 510 Rule 511 Rule 512 Rule 513 Rule 804(b)(2)

ARTICLE I. GENERAL PROVISIONS

Rule 101. Scope

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

Rule 102. Purpose and Construction

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

Rule 103. Rulings on Evidence

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

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

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

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

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

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

Rule 104. Preliminary Questions

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

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

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

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

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

Rule 105. Limited Admissibility

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Rule 106. Remainder of or Related Writings or Recorded Statements

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

ARTICLE II. JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

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

(c) When discretionary. A court may take judicial notice, whether requested or not.

(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

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

(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

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

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

Rule 301. Presumptions in General in Civil Actions and Proceedings

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

Rule 302. Applicability of State Law in Civil Actions and Proceedings

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



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ARTICLE IV. RELEVANCY AND ITS LIMITS

Rule 401. Definition of "Relevant Evidence"

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

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

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

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

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

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

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

(1) Character of accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

(3) Character of witness. Evidence of the character of a witness as provided in rules 607, 608, and 609.

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

Rule 405. Methods of Proving Character

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

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

Rule 406. Habit; Routine

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

Rule 407. Subsequent Remedial Measures

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

Rule 408. Compromise and Offers to Compromise

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

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by the public office or agency in the exercise of regulatory, investigative, or enforcement authority.

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

Rule 409. Payment of Medical and Similar Expenses

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

Rule 410. Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related Statements

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

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Rule 411. Liability Insurance

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

Rule 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger or harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only it if has been placed in controversy by the alleged victim.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivisions (b) must—

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in Section 513 of title 18, United States Code) that involved—

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)–(4).

Rule 414. Evidence of Similar Crimes in Child Molestation Cases

(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved—

(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

(2) any conduct proscribed by chapter 110 of title 18, United States Code;

(3) contact between any part of the defendant’s body or an object and the genitals or anus of a child;

(4) contact between the genitals or anus of the defendant and any part of the body of a child;

(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or

(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)–(5).

Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault and Child Molestation

(a) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

(b) A party who intends of offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.



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ARTICLE V. PRIVILEGES

Rule 501. General Rule

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

ARTICLE VI. WITNESSES

Rule 601. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

Rule 603. Oath or Affirmation

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.

Rule 604. Interpreters

An interpreter is subject to the provisions of these rules relating to qualification as an expert and administration of an oath or affirmation to make a true translation.

Rule 605. Competency of Judge as Witness

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Rule 606. Competency of Juror as Witness

(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon a juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege of self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Rule 609. Impeachment By Evidence Of Conviction Of Crime

(a) General rule. For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted, regardless of the punishment, if it readily can be determined that establishing the elements of the crime required by proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intend to use such evidence to provide the adverse party with a fair opportunity to contest the uses of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, if a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Rule 610. Religious Beliefs Or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason or their nature the witness’ credibility is impaired or enhanced.

Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses form harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and maters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, ad adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Rule 612. Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Rule 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

Rule 614. Calling and Interrogation of Witnesses by Court

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation may be made at the time or at the next available opportunity when the jury is not present.

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, of (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a person authorized by statute to be present.



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ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding or the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Rule 704. Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. (Subdivision b was added by amendment in Public Law 98–473, October. 12, 1984).

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Rule 706. Court Appointed Experts

(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.

(c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(d) Parties’ experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

ARTICLE VIII. HEARSAY

Rule 801. Definitions

The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if—

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceedings, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as use din this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provision of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph 96), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of act concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth or the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person’s family by blood, adoption, or marriage, or among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation is a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person’s character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence at trial.

(24) [Transferred to Rule 807]



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Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant—

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision b(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same of another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.

(5) [Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Rule 805. Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Rule 806. Attacking and Supporting Credibility of Declarant

When a hearsay statement, or a statement defined in rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Rule 807. Residual Exception

A statement not specifically covered by Rule 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

Rule 901. Requirement of Authentication and Identification

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process of system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Rule 902. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic public documents not under seal. A document purporting to bear the signature of the official capacity of an officer of employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (a) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification made be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authozied by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10) Presumptions under Acts of Congress. Any signature, document, or other mater declared by Act of Congress to be presumptively or prima facie genuine or authentic.

(11) Certified domestic records of regularly conducted activity.—The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record—

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12) Certified foreign records of regularly conducted activity.—In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record—

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Rule 903. Subscribing Witness' Testimony Unnecessary

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.



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ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions

For the purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargem