United States Office of September 1980
Environmental Protection Enforcement
Agency Washington, DC 20460 1*) E\f)R(\'\ f\(\
&EPA Federal Rules of
Evidence Manual
Annotated
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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
THE FEDERAL RULES
OF EVIDENCE
ANNOTATED
Jeffrey G. Miller
Assistant Administrator
for Enforcement (Acting)
Prepared by:
Charles E. Wagner
Special Assistant for
Investigations
and
Anthony Townsend
Legal Intern
U.S. Environmental Prctce.iior; Agency
Region V, Library
230 South Dearborn Street
Chicago, Illinois 60604
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U.S. ENVIRONMENTAL PROTECTION AGENCY
FEDERAL RULES OF EVIDENCE
ANNOTATED
TABLE OF CONTENTS
I. GENERAL PROVISIONS - 1
Rule 101 - Scope of Rules - p.l
Elements - p.l
Comments - p.l
Cases - p.2
Rule 102 - Purpose and Construction - p.3
Elements - p.3
Comments - p.3
Rule 103 - Rulings on Evidence - p.3
Elements - p.4
Comments - p.5
Cases - p.8
Rule 104 - Preliminary Question - p.8
Elements - p.9
Comments - p.10
Cases - p.11
Rule 105 - Limited Admissibility - p.12
Elements - p.12
Comments - p. 13
Cases - p.13
Rule 106 - Remainder of Related Writings
or Recorded Statements - p.13
Elements - p.13
Comments - p.14
Cases - p.14
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II. JUDICIAL NOTICE -
Rule 201 - Judicial Notice of Adjudicative
Facts -p.15
Elements - p.15
Comments - p. 16
201(b) p.17
201(c) p.19
201(d) p.19
201(e) p.20
201 f) p.20
201(g) p.20
Cases - p.21
III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
Rule 301 - Presumptions in General - p.22
Elements - p.22
Comments - p.22
Cases - p.24
Rule 302 - Applicability of State Law - p.24
Elements - p.24
Comments - p.25
Cases - p.26
IV. RELEVANCY AND ITS LIMITS - p.27
Rule 401 - Definition of Relevant Evidence - p.27
Elements - p.27
Comments - p.27
Cases - p.28
Rule 402 - Admissibility - p.28
Elements - p.28
Comments - p.29
Cases - p.29
Rule 403 - Exclusion of Relevant Evidence - p.30
Elements - p.30
Comments - p.31
Cases - p.32
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Rule 404 - Character Evidence - p.33
Elements - p.34
Comments - p.35
404(a) p.35
404(b) p.37
Cases - p.38
Rule 405 - Methods of Proving Character - p.40
Elements - p.40
Comments - p.41
Cases - p.43
Rule 406 - Habit or Routine - p.43
Elements - p.44
Comments - p.44
Cases - p.45
Rule 407 - Subsequent Remedial Measures - p.46
Elements - p.46
Comments - p.46
Cases - p.47
Rule 408 - Compromise and Offers of
Compromise -p.48
Elements - p.48
Comments - p.49
Cases - p.50
Rule 409 - Payment of Medical and Similar
xpenses - p.51
ivm
Ex"
Elements - p.51
Comments - p.51
Cases - p.51
Rule 110 - Inadmissibility of Offers of Pleas - p.51
Elements - p.52
Comments - p.52
Cases - p.53
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Rule 411 - Liability Insurance - p.54
Elements - p.54
Comments - p.54
Cases - p.54
Rule 412 - Rape Cases - Relevance of Victim's
Behavior~p.55
Elements - p.57
Comments - p.59
V. PRIVILEGES - p.62
Rule 501 - General Rule - p.62
Elements - p.62
Comments - p.62
Cases - p.66
VI. WITNESSES - p.68
Rule 601 - General Rule of Competency - p.68
Elements - p.68
Comments - p.68
Cases - p.69
Rule 602 - Lack of Personal Knowledge - p.70
Elements - p.70
Comments - p.70
Cases - p.70
Rule 603 - Oath or Affirmation - p.71
Elements - p.71
Comments - p.71
Cases - p.72
Rule 604 - Interpreters - p.72
Elements - p.72
Comments - p.72
Cases - p.72
Rule 605 - Competency of Judge as Witness - p.73
Elements - p.73
Comments - p.73
Cases - p.73
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Rule 606 - Competency of Juror as Witness - p.74
Elements - p.74
Comments - p.75
Rule 606(b) p.75
Cases - p.76
Rule 607 - Who May Impeach - p.77
Elements - p.77
Comments - p.77
Cases - p.78
Rule 608 - Evidence of Character and
Conduct of Witness""^p.79
Elements - p.70
Comments - p.80
Cases - p.81
Rule 609 - Impeachment by Evidence of
Conviction of Crime -p.82
Elements - p.83
Comments - p.85
609(b) p.87
609(c) p.88
609(d) p.88
609(e) p.89
Cases - p.89
Rule 610 - Religious Beliefs or Opinions - p.90
Elements - p.90
Comments - p.90
Cases - p.90
Rule 611 - Mode and Order of Interrogation
and Presentation -p.91
Elements - p.91
Comments - p.92
611(b) p.93
611(c) p.95
Cases - p.96
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Rule 612 - Writing to Refresh Memory - p.96
Elements - p.97
Comments - p.98
612(a) p.98
612(b) p.99
612(c) p.99
612(d) p.100
Cases - p.100
Rule 613 - Prior Statement of Witness - p.101
Elements - p.101
Comments - p.101
613(b) p.102
Cases - p.103
Rule 114 - Calling and Interrogation of
Witness by the CourT^p.103
Elements - p.104
Comments - p.104
614(b) p.105
Cases - p.106
Rule 615 - Exclusion of Witnesses - p.107
Elements - p.107
Comments - p.107
Cases - p.108
VII. OPINIONS AND EXPERT TESTIMONY - p.110
Rule 701 - Opinion Testimony by Law
Witness - p.110
Elements - p.110
Comments - p.110
Cases - p.Ill
Rule 702 - Testimony by Experts - p.Ill
Elements - p.Ill
Comments - p.112
Cases - p.113
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Rule 703 - Base of Opinion Testimony
by Expert" p.113
Elements - p.114
Comments - p.114
Cases - p.115
Rule 704 - Opinion on Ultimate Issue - p.115
Elements - p.116
Comments - p.116
Cases - p.117
Rule 705 - Disclosure of Facts or Data
Underlying Expert OpiniolT - p.117
Elements - p.117
Comments - p.118
Cases - p.119
Rule 706 - Court Appointed Experts - p.119
Elements - p.120
Comments - p.121
Cases - p.122
VIII. HEARSAY - p.123
Rule 801 - Definitions - p.123
Elements - p.123
Comments - p.124
Cases - p.Ill
Rule 702 - Testimony by Experts - p.Ill
Elements - p.Ill
Comments - p.112
801(c) p.127
801(d)(l)(a) p.129
801(d)(l)(b) p.130
801(d)(l)(c) p.130
801(d)(2)(A) p.132
801(d)(2)(B) p.134
801(d)(2)(C) p.136
801(d)(2)(D) p.137
801(d)(2)(E) p.138
Cases - p.140
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Rule 802 - Hearsay Rule - p.142
Elements - p.143
Comments - p. 143
Cases - p.143
Rule 803 - Hearsay Exceptions; Availability
of Dedarent Immaterial - p. 144
Elements - p.147
Comments - p.153
803(1) p.153
803(2) p.153
803(3) p.156
803(4) p.159
803(5) p.160
803(6) p.161
803(7) p.163
803(8) p.163
803(9) p.165
803(10) p.166
803(11) p.167
803(12) p.167
803(13) p.167
803(14) p.167
803(15) p.167
803(16) p.168
803(17) p.169
803(18) p.170
803(19) p.171
803(20) p.171
803(21) p.172
803(22) p.172
803(23) p.174
803(24) p.175
Cases - p.176
Rule 804 - Hearsay Exceptions; Declarent
Unavailable^p.179
Elements - p.181
Comments - p.183
804(a)(l) p.183
804(a)(2) p.184
804(b)(l) p.185
804(b)(2) p.188
804(b)(3) p.190
804(b)(4) p.193
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804(b)(5) p.194
Cases - p.196
Rule 805 - Hearsay Within Hearsay - p.198
Elements - p.198
Comments - p. 198
Cases - p. 199
Rule 806 - Attacking and Supporting Credi-
billty of Declarenf^ p.199
Elements - p. 199
Comments - p.200
Cases - p.200
IX. AUTHENTICATION AND IDENTIFICATION - p.201
Rule 901 - Requirement of Authentication
or Identification - p.201
Elements - p.202
Comments - p.204
901(a) p.204
901(b)(l) p.205
901(b)(2) p.206
901(b)(3) p.207
901(b)(4) p.208
901(b)(5) p.209
901(b)(6) p.210
901(b)(7) p.212
901(b)(8) p.213
901(b)(9) p.213
901(b)(10) p.214
Cases - p.215
Rule 902 - Self Authentication - p.216
Elements - p.217
Comments - p.218
902(1) p.219
902(2) p.219
902(3) p.220
902(4) p.220
902(5) p.220
902(6) p.221
902(7) p.222
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902(8) p.222
902(9) p.222
902(10) p.223
Cases - p.223
Rule 903 - Subscriabing Witness' Testi-
mony Unnecessary - p.224
Elements - p.224
Comments - p.224
X. CONTENTS OF WRITINGS. RECORDING, AND
PHOTOGRAPHS"^p.225
Rule 1001 - Definitions - p.225
Elements - p.225
Comments - p.226
Rule 1001(1) p.226
Rule 1001(2) p.227
Rule 1001(3) p.228
Rule 1001(4) p.230
Cases - p.231
Rule 1002 - Requirement of Original - p.232
Elements - p.232
Comments - p.232
Cases - p.234
Rule 1003 - Admissibility of Duplicates - p.234
Elements - p.234
Comments - p.234
Cases - p.236
Rule 1004 - Admissibility of Other Evidence
of Contents -p.237
Elements - p.237
Comments - p.238
1004(1) p.238
1004(2) p.240
1004(3) p.240
1004(4) p.241
Cases - p.241
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Rule 1005 - Public Records - p.242
Elements - p.242
Comments - p.243
Cases - p.243
Rule 1006 - Summaries - p.244
Elements - p.244
Comments - p.244
Cases - p.246
Rule 1007 - Testimony or Written Admission
of party -p.248
Elements - p.248
Comments - p.248
Rule 1008 - Functions of Court and Jury - p.249
Elements - p.249
Comments - p.250
Cases - p.251
XI. MISCELLANEOUS RULES - p.252
Rule 1101 - Applicability of Rules - p.252
Elements - p.253
Comments - p.255
Cases - p.256
Rule 1102 - Admendments - p.256
Rule 1102 - Title - p.256
APPROACH TO RULES OF EVIDENCE - p.257
1. Order of Presentation p.257
2. Considering Each Piece Of Evidence p.258
Oral Testimony p.258
Documentary Evidence p.261
3. Phrasing Objections p.263
4. Using the Rules p.266
Case Study p.267
Part B p.273
Part C p.279
Part d p.286
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RULES OF EVIDENCE FOR UNITED STATES
COURTS AND MAGISTRATES
ARTICLE I. GENERAL PROVISIONS
RULE 101
SCOPE
These rules govern proceedings in the courts of the United States and
before United States magistrates, to the extent and with the exceptions stated
in rule 1101.
ELEMENTS
A. Rules Applicable in
1. U.S. District Court.
a. All Districts.
b. Guam.
c. Virgin Islands.
d. Canal Zone.
2. Circuit Courts of Appeals.
3. Court of Claims.
4. U.S. Bankruptcy Court.
5. United States Magistrates.
B. Rules apply to
1. Civil cases.
2. Criminal cases.
3. Criminal libel for condemnation and other proceedings.
under 21 U.S.C. §5 301-392.
4. Admiralty and Maritime cases.
5. Habeas Corpus under 28 U.S.C. §§ 2241-2255.
6. Contempt proceedings.
a. Except summary contempt.
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b. See Rule 42, F.R.C.P. and 18 U.S.C. 5§ 401, 402.
7. Bankruptcy.
8. De novo trials under Title 5, Section 706(2)(F), United
States Code.
C. Rule on privileges applies to all stages of actions,
cases, and proceedings.
1. Removes privilege from limitations on the rules.
2. State privilege law should be applied where state
law determines claim or defense in civil cases.
D. Rules inapplicable under Rule 1101 to
1. Preliminary questions of fact (See Rule 104).
2. Grand Jury proceedings..
3. Miscellaneous proceedings.
a. Extradition.
b. Preliminary examinations.
c. Sentencing.
d. Revocation of probation.
e. Issuance of warrants and court summons.
f. Bail hearings.
E. Applicable, in part, in enumerated proceedings under
Rule 1101 provided specific rules or statutes do not
provide otherwise.
COMMENT
This rule appears as originally recommended by the Court. However, the
scope of the rule was expanded by Congress to include the Court of Claims and
its commissioners (called Trial Judges).
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CASES
RULE CASE NAME CITE CIRCUIT COURT
101 U.S. v. McGee 572 F.2d 1097 (1978) 5th
101 U.S. v. Mackey 405 F. Supp. 854 (1975) E.D.N.Y.
101 U.S. v. Preston 608 F.2d 626 (1979) 5th
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 ascertain-
ed and proceedings justly determined.
ELEMENTS
A. Purpose of Rule
1. Secure fairness in administration.
2. Elimination of unjustifiable expense and delay.
3. Promote development of law of evidence to establish truth and
justly determine proceedings.
CASES
RULE CASE NAME CITE CIRCUIT COURT
102 U.S. v. Jackson 405 F. Supp. 938 (1975) E.D.N.Y.
102 U.S. v. King 73 F.R.D. 103 E.D.N.Y.
102 In re v. Financial
Securities Liti-
gation 609 F.2d 411 (1979) 9th
RULE 103
RULINGS ON EVIDENCE
(a) Effect of erroneous ruling. Error may "lot be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the
party is affected, and
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(1) Objection. In the 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.
(b) Record of offer and ruling. The court may add any other or
further statement which shows the character of the evidence, the form in
which it was offered, the objection made, and the ruling thereon. It may
direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted,
to the extent practicable, so as to prevent inadmissible evidence from being
suggested to the jury by any means, such as making statements or offers of
proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not brought to
the attention of the court.
ELEMENTS
A. Error to warrant reversal must affect substantial rights.
1. Timely objection must be made to evidence admitted.
2. Specific ground must be stated or apparent from context.
3. If evidence is excluded, offer of proof must be made,
4. Unless apparent from the context within which questions
were asked.
B. Court may add comment or statement on objection or exception.
1. Offer of proof.
a. Must clarify proffered evidence.
b. May be supported by points and authorities.
c. Court may direct that offer be made in Q. and A. form.
C. Proceedings on offers of proof in jury cases should be conducted
out of the hearing of the jury to prevent inadmissible evidence
from being suggested to the jury.
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(Note: Request that jury be excused, if offer or proof will be
protracted.)
D. Plain error affecting substantial rights may be recognized although
not brought to court's attention.
COMMENTS
The purpose of 103(a) is to provide a mechanism by which the Court may
be alerted to problems in the proof and which will allow the offering counsel
to take the necessary steps to repair any defects in his proof.
ILLUSTRATION
Assume counsel offers the following testimony through his witness:
Counsel: Dr. Williams, do you know where the sample
marked exhibit F was collected?
Witness: John Doe told me that he picked it up near
the pipe outlet overlooking the stream.
Opposing Counsel: Objection, your Honor.
Court: Objection overruled.
Counsel: Can you tell us whether you have had the
opportunity to
In the above exchange, the opposing counsel should have stated: "Objection,
Your Honor. The answer constitutes hearsay and should be stricken". In
that situation, the Court could have addressed the hearsay issue and if the
court sustained the Objection, the offering party could have undertaken
corrective measures, including calling John Doe to testify as to the
location from which he collected the sample.
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Where the testimony is excluded, an offer of proof under 103(a) is
appropriate :
Counsel: Mr. Williams, what would be the cost of
installing the equipment in your plants?
Opposing Counsel: Objection, your Honor. Counsel
has not demonstrated that the witness is qualified
to testify relative to installation costs for
a .
Court: Objection sustained.
Counsel: Your Honor, may I make an offer of proof?
Court: You may.
Counsel: Your Honor, if I am allowed to proceed, the
witness will testify that he has sought estimates
from ... and has contacted ... Consequently, your
Honor, the witness is familiar enough with the
costs of a to testify relative to its
installation costs.
Court: Objection overruled.
In the above exchange, the offering counsel was able to state to the Court
the basis of his proof and accordingly was allowed to proceed. It is not
an error for the Court to reject an offer of proof where the proffer:
a) Does not disclose the evidence's relevance or materiality;
b) Is vague and not sufficiently specific; and
c) Does not include competent evidence.
Rule 103(b) allows the Court to supplement the record for the purpose
of explaining what occurred before it. Under this Rule, the Court may set
forth the testimony the witness would have given had the Court not excluded
it.
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Rule 103(c) requires all statements, objections or proffers which may
include inadmissible evidence to be made out of the presence of the jury.
Where a jury hears inadmissible evidence, a cautionary instruction from
the Court may not completely erase the information from the juror's minds.
Accordingly, where an objection contains matters which counsel believes are
inadmissible, that objection should be made out of the presence of the
jury.
ILLUSTRATION
Counsel: Mr. Williams, would you tell the jury what
the defendant asked you when you saw him on May 1,
1981?
Witness: He told me
Opposing Counsel: Objection, your Honor. May counsel
approach the bench?
Court: You may.
(Counsel proceed to the bench)
Opposing Counsel: Your Honor, the defendant objects
to this testimony inasmuch as the witness is about
to relate to the jury an offer my client made to
him in order to settle the case.
Court: Objection sustained. Counsel may return to
the well of the Court.
Court: Ladies and gentlemen of the Jury. You are to
disregard the question and the answer, to the extent
it was given. The Court has sustained the objection
of Counsel.
Rule 103(d) allows the appellate court to consider errors involving funda-
mental rights even though no objection or proffer was made at the time the
evidence was admitted or excluded.
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CASES
RULE
103(a)(2)
103(a)(2)
103(c)
103(c)
103(d)
103(d)
CASE NAME
Clark v. Investors,
Inc.
U.S. v. Mendoza
U.S. v. Ruffin
U.S. v. Abascal
U.S. v. Winkle
Bruton v. U.S.
U.S. v. Schindler
Marshall v. Common-
wealth Aqurium
Payton v. U.S.
CITE
583 F.2d 594 (1978)
574 F.2d 1373 (1978)
575 F.2d 346 (1978)
564 F.2d 821 (1977)
587 F.2d 705 (1979)
391 U.S. 123 (1968)
614 F.2d 227 (1980)
611 F.2d 4 (1979)
222 F.2d 794 (1955)
CIRCUIT COURT
2D
5th
2d
9th
*
5th
S. Ct.
9th
1st
D.C. Cir.
RULE 104
PRELIMINARY QUESTION
(a) Questions of admissibility generally. Preliminary questions con-
cerning 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 pri-
vileges.
(b) Relevancy conditioned on fact. When the relevancy of evidence
depends upon the fulfillment of a condition or 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, if he so requests.
(d) Testimony by accused. The accused does not, by testifying upon a
preliminary matter, subject himself to cross-examination as to other issues
in the case.
(e) Weight and credibility. This rule does not the limit the right of
a party to introduce before the jury evidence relevant to weight or
credibility.
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ELEMENTS
A. Preliminary questions determined by the court.
1. Relates to:
a. Competency.
b. Qualifications.
c. Privilege.
d. Admissibility of evidence.
2. Court is not bound by evidence rules except as to privileges.
B. When relevancy is conditioned upon fulfillment of condition of fact,
evidence shall be admitted subject to proof of that fact.
C. Hearings on preliminary questions must be held out of hearing of
the jury if:
1. Relative to admissibility of a confession.
2. Accused is a witness, if he so requests.
3. When interests of justice require.
D. Accused is not subject to cross-examination on other issues by
virtue of testimony on preliminary matter.
CAVEAT:
1. Limitation designed to encourage defendant to testify as to
preliminary matters.
2. Credibility of witness is always in question.
3. Defendant may be impeached if he lies at trial.
E. Rule does not limit right to introduce evidence relevant to weight
or credibility.
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COMMENTS
Rule 104(a) allows the Court to make preliminary rulings as to the
•
admissibility of evidence. The application of the rules of evidence generally
depends upon the existence of a condition. Is the child competent? Is the
expert qualified? Is the evidence hearsay?
In order to answer the above questions, the Court must hear testimony
from the child, the expert, or from the witness as to the hearsay statement.
How far counsel may examine the witness before the court is prepared to rule
is left to the discretion of the court.
Rule 104(b) allows the Court to admit evidence subject to the fulfillment
of a condition of fact. For example, assume that counsel attempts to show
that X received a letter from Y and desires to offer the letter into evidence.
The letter has no probative value unless counsel can fulfill a condition of
fact; providing evidence that Y wrote the letter or authorized it to be
written. Likewise, in a conspiracy case, the Court may allow the witness to
testify relative to any statements made by the co-conspirators on the condi-
tion the government establishes the existence of a conspiracy.
Rule 104(c) requires that all hearings on confessions be heard out of
the presence of the jury. For obvious reasons, to allow the jury to hear
this type of evidence would prejudice the defendant irrespective of the
Court's ultimate ruling on the admissibility of the confession. On other
matters, the Court must make a determination as to whether the presentation
of the matter in the presence of the jury would unduly prejudice the party
against whom the evidence is offered. This procedure may result in matters
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being presented twice if the Court admits the evidence, but it avoids the
expense of a mistrial or reversal on appeal should the Court decide to
exclude it.
Rule 104(d) allows the defendant to testify about preliminary matters
without fear of opening the door to cross-examination about collateral mat-
ters. To allow such cross-examination of the defendant would chill the
defendant's right to testify in his own behalf at hearings on motions to sup-
press statements, identifications and evidence. This rule does not prevent
the government from later cross-examining the defendant about his testimony
in the preliminary proceedings where the defendant seeks to hide behind this
immunity in order to testify falsely at his trial. Harris v. New York, 401
U.S. 222 (1971); Oregon v. Mass, 402 U.S. 714 (1975); Walder v. U.S.. 347
U.S. 62 (1954); U.S. v. Havens, U.S. , 48 U.S.L.W. 4596 (1980).
Rule 104(e) enables a party, against whom the Court has admitted evi-
dence, to introduce competent evidence relative to the weight or credibility
the trier of fact should give the admitted evidence.
CASES
RULE CASE NAME CITE CIRCUIT COURT
104(a) U.S. v. Tenorio 565 F.2d 943 (1978) 5th
104(a) U.S. v. Barnes 443 F. Supp. 137 (1977) S.D.N.Y.
104(a) U.S. v. Peele 574 F.2d 489 (1978) 9th
104(a) U.S. v. Ziegler 583 F.2d 77 (1978) 2nd
104(b) U.S. v. Alvarez 584 F.2d 694 (1978) 5th
104(b) U.S. v. Harris 542 F.2d 1283 (1976) 7th
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RULE CASE NAME CITE CIRCUIT COURT
104(b) U.S. v. 473.34
Acres of Land 578 F.2d 156 (1978) 6th
104(c) U.S. v. James 576 F.2d 1121 (1978) 5th
104(c) U.S. v. Fowler 605 F.2d 181 (1979) 5th
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.
ELEMENTS
A. Where evidence is admitted as to one party or for one purpose,
but is not admissible as to another party or for another purpose,
the court shall, on request:
1. Restrict the scope of the evidence.
2. Instruct the jury accordingly.
Note: Rule envisions timely objection by counsel and a request for
limiting instructions.
COMMENT
This rule recognizes the practice of admitting evidence for a limited
purpose and instructing the jury accordingly. This rule should be read in
conjunction with Rule 403, which provides for the exclusion of relevant
evidence on the grounds of undue prejudice, confusion, waste of time, or
needless presentation of cumulative evidence.
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The application of this rule is appropriate in the following circum-
stances:
(a) A Bruton situation (Bruton v. United States, 391 U.S. 123 (1968);
(b) Impeachment by prior conviction under Rule 609;
(c) Where other prior similar acts or crimes are introduced into
evidence under Rule 404(b) or 608(b); and
(d) Impeachment by prior inconsistent statement under Rule 607.
CASES
RULE CASE NAME CITE CIRCUIT COURT
105 Raney v. Honeywell,
Inc. 540 F.2d 932 (1976) 8th
105 U.S. v. Conley 523 F.2d 650 (1975) 8th
105 U.S. v. Garcia 530 F.2d 650 (1976) 5th
105 Busbee v. Sule 630 F.2d 1197 (1979) 5th
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 him at that time to introduce any other
part or any other writing or recorded statement which ought in fairness to
be considered contemporaneously with it.
ELEMENTS
A. When any writing or recorded statement or portion thereof is
introduced, an adverse party may require introduction of any other
part at that time if:
1. It completes context, or
2. Ought, in fairness, to be considered contemporaneously with
it.
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COMMENTS
This rule is designed to address two basic considerations. The first
consideration is the misleading impression often conveyed by taking matters
out of context. The second consideration involves the problems associated
with repairing the damage created by the taking of a matter out of context,
if the repair work is delayed for a later point in the trial.
ILLUSTRATION
Assume in a paternity action, wherein X is seeking to offer into
evidence a copy of the child's birth certificate and is further seeking to
limit the offer of proof to the face of the certificate which reflected the
fact that the child was born during a time period, which was compatible with
Y being responsible. It would be proper to admit the whole document into
evidence, wherein it appears that a person other than Y was named as father
of the child.
If any part of a document is used to impeach a witness or support his
testimony, and other parts of the same document will explain away or weaken
the support or impeaching effect, the whole document may be received into
evidence. This rule is an expression of the rule of completeness and merely
restates that rule of basic fairness. This rule is primarily limited in
scope to writings and recorded statements. It has no application to oral
unrecorded conversation.
CASES
RULE CASE NAME CITE CIRCUIT COURT
106 Mattocks v. Daylin 78 F.R.D. 663 (1978) W.D. Penn.
106 U.S. v. Jamar 561 F.2d 1103 (1977) 4th
106 U.S. v. Davis 546 F.2d 583 (1977) 5th
106 U.S. v. Rubin 609 F.2d 51 (1979) 2d
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ARTICLE II. JUDICIAL NOTICE
RULE 201
JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of rule. This rule governs only judicial notice of adjudica-
tive 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 proprietary of taking judicial
notice and the tenor of the matter noticed. In the absence of prior notifica-
tion, 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.
ELEMENTS
A. Applies only to adjudicative facts.
B. Judicially noted facts are those which:
1. Are not subject to reasonable dispute because they are:
a. Generally known, or
b. Capable of accurate and ready determination by resort to
sources whose accuracy is not questioned.
C. Court may take judicial notice whether requested or not.
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D. Court must take judicial notice if:
1. Requested by a party, and
2. Court is supplied with necessary information.
E. Party is entitled to notice and opportunity to be heard.
1. Party must make timely request, or
2. Make request after notice has been taken.
F. Judicial notice may be taken:
1. In trial court.
2. On appeal.
3. Any stage of proceeding.
G. Jury shall be instructed that:
1. In civil cases, judicially noticed facts must be accepted as
conclusive.
2. In criminal cases, the jury may, but is not required to,
accept the facts as conclusive.
COMMENT
Adjudicative facts are facts in a particular case which are relevant to
the issue or issues in the case. This rule does not apply to legislative
facts or the mental processes or reasoning behind a law or statute.
ILLUSTRATION
Assume X wants the Court to take judicial notice of a state statute
which is applicable to the case and is also relevant to an issue before the
Court. In that situation, the Court may take judicial notice of the state
statute because it is a matter that is not reasonably open to dispute. On
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the other hand, if Y requests the Court to take judicial notice of State
Senator Z's statements in the legislature, during the debates on the Statute
as to its purpose, the Court should not entertain or favor that request.
While the Court may take judicial notice of the holding in a particular case
it should not notice the dicta which serve to explain it. The holding of the
case is not the result of the marriage of indisputable facts, but rather the
reconciliation of disputed facts and social policy. Accordingly, the end
result, the holding, is subject to judicial notice and not the process by
which it was arrived at.
Adjudicative facts are generally established by testimony and the intro-
duction of evidence. Where the facts are outside the realm of reasonable
controversy, this process is dispensed with and the Court may notice the
facts.
On the other hand, legislative facts are quite different. In formula-
ting legislative facts, the Court takes into account the facts they believe
to be true, although disputed by a party, as opposed to facts which are
clearly established and are indisputable. Policy questions as well as the
thought process interplay with the disputed facts and a symbiosis occurs.
201(b)
In our adversary system, we harbor the view that a fair trial requires
the Court to allow a party against whom adverse evidence has been introduced
to confront that evidence with rebuttal evidence, cross-examination or argu-
ment. If we are called upon to dispense with these tools of confrontation
and allow evidence to enter the record unchallenged, the evidence admitted
cannot reasonably be the subject of dispute.
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The requirement that the matter be "generally known within the territorial
jurisdiction" of the trial court merely acknowledges the fact that although a
matter may not be reasonably subject to dispute, the court must have a way to
ascertain the existence of that fact.
ILLUSTRATION
Assume X desires the Court in Nebraska to take Judicial Notice that Z
corporation is incorporated under the laws of Texas. That fact may not be
disputable; however, it may not generally be known within the judicial
District in which the Court is sitting. Accordingly, some evidence of Z's
existence and incorporation must be placed before the Court in the form of
evidence.
The second gauge for determining whether the Court may take judicial
notice of a fact is whether the fact is capable of accurate and ready
determination by resorting to a source whose accuracy cannot reasonably be
questioned. Sometimes a source may be utilized as a basis for judicial
notice for one fact and not another.
ILLUSTRATION
Assume that X wants the Court to Judicially Notice a scientific prin-
ciple such as an object falling at a rate of 32 feet per second. In such
a situation, the court may resort to an encyclopedia for assistance. On the
other hand, where X wants the Court to find that a certain chemical used in
food processing has been associated with cancer in humans, the same encyclope-
dia, while reciting the research and theories on the subject, would not pro-
vide the means by which the Court may take notice of the desired fact.
Accordingly, X would have to offer proof to support his theory of the case.
The process of taking notice of a fact does not suggest that the Court at the
moment actually knows or accepts the matter submitted; it merely relieves the
submitting party of the burden of offering proof of a matter the Court can
easily ascertain.
Sometimes the Court is asked to take notice of a fact which all men of
ordinary intelligence accept to be true; however, the Court under the circum-
stances, is obligated to put the party to his proof.
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ILLUSTRATION
Assume X wants the Court to take Judicial Notice of the fact that a
particular late model Mercedes-Benz automobile is worth $ because new
M/B autos of similar make and model retail for that price. Inasmuch as many
factors effect the fair market value, it is not a standard which can be fixed
with precision. Accordingly, X must resort to proof through testimony and
other evidence in order to establish the value of the M/B rather than rely on
the Court to judicially notice that fact.
Likewise, if X motioned the Court to judicially notice the fact that the
automobile in question was equipped with a thermostat on the basis that auto-
mobiles are generally equipped with thermostats, the Court should deny the
motion. Accordingly, X must offer specific proof of that fact if that fact
pertains to an issue in controversy.
201(c)
The Court has the discretion to judicially notice a fact irrespective
of whether a party requested it to do so. Accordingly, if a party offers
proof that an event occurred on a particular date and is unaware that date
had added significance, e.g., it was a holiday, the Court may, sua sponte,
notice the fact that that date was observed as a holiday irrespective of the
fact that the offering party did not request the Court to notice that fact.
The Court, in its discretion, may notice common facts, including those
related to:
a) Weather (time sun set).
b) Politics (strikes may be called for political reasons); or
c) Physical impairments (Persons with certain ailments, have difficulty
climbing stairs).
201(d)
The Court is obligated to notice a fact if the party offering the fact
supports his proffer with the necessary data.
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ILLUSTRATION
a) The court is required to Judicially Notice municipal ordinances,
where request is accompanied by supporting data.
b) The Court is required to notice government regulations where
offered with supporting data.
201(e)
This provision allows the party against whom the judicial notice is to
be taken to request an opportunity to be heard in opposition. This request
may be made after notice has been taken. At this time, the adverse party may
spread upon the record the reasons he believes it was improper for the Court
to notice the fact.
It would appear that this provision, coupled with Rule 103(a)(2), would
allow the offering party to be heard in the event the Court decides not to
judicially notice a fact. Although the language suggests limiting this
provision to the adverse party, it appears that it can be applied equally to
the unsuccessful movant for notice.
201(f)
This rule states that a matter may be noticed at any time, whether at
trial or on appeal, by request or on its own initiative.
201(9)
This rule bars the party against whom the fact was noticed from offering
evidence in disproof in civil cases. To allow evidence to be offered to con-
test matters judicially noticed would defeat the purpose of judicially notic-
ing a fact.
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On the other hand, the Court in a criminal case can advise the jury
that it may, but is not required to do so, accept the fact as conclusively
proven. The reason for the difference in application of notice in criminal
cases is the fact that the Court cannot direct a verdict against the defend-
ant in a criminal case, as it can in civil matters. Accordingly, the court
cannot be empowered to bind the jury conclusively on a matter which will
logically result in the conviction of the defendant.
CASES
RULE CASE NAME CITE CIRCUIT COURT
201(a) U.S. v. Jones 580 F.2d 219 (1978) 6th
201(a) Dawson v. Pastrick 600 F.2d 70 (1979) 7th
201(b) Downs v. U.S. 564 F.2d 48 (1977) Ct. Cl.
201(b) U.S. v. Bourque 541 F.2d 290 (1976) 1st
201(b) U.S. v. Fatico 441 F. Supp. 1285 (1978) S.D.N.Y.
201(b) U.S. v. Baskes 442 F. Supp. 322 (1977) N.D.I11.
201(b) Miller v. Fed.
Land Bank 587 F.2d 415 (1978) 9th
201(b) U.S. v. Fowler 608 F.2d 2 (1979) D.C. Cir.
201(b) Pratt v. Kelly 585 F.2d 692 (1978) 4th
201(c) Com'rs of HWY v.
U.S. 460 F. Supp. 745 (1979) N.D.I11.
201(d) Garner v. 1st
Nat'l. Bank 465 F. Supp. 372 (1979) E.D. Va.
201(e) U.S. v. Damato 554 F.2d 137 (1977) 5th
201(f) U.S. v. Jones 580 F.2d 219 (1978) 6th
201(f) U.S. v. Thomas 610 F.2d 1166 (1979) 3rd
201(g) U.S. v. Gould 536 F.2d 216 (1976) 8th
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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.
ELEMENTS
A. Party against whom presumption operates has burden of going forward
with evidence to rebut.
B. Party does not incur risk of nonpersuasion.
C. Rule does not shift burden of persuasion from party on whom origi-
nally cast.
COMMENTS
The rule on presumptions applies to the myriad problems associated with
the allocation of burdens of proof and persuasion. Presumptions are invar-
ibly the product of social policy rather than the application of reason to
an occurrence. Accordingly, a presumption is imposed relative to the inca-
pacity of a child under a certain age to commit a crime. Likewise, a hus-
band was prevented in many states from adducing evidence in a paternity action
to show nonpaternity where he possessed the capacity to procreate.
In criminal cases, it is presumed that everyone knows the law; this pre-
sumption is in recognition of the fact that if ignorance were a defense, the
sovereign would be powerless to rebut it. In the above examples it should be
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clear that the operations of the presumptions gain their vitality from social
policy rather than an inability to disprove the presumption.
Under this rule a presumption imposes upon the party against whom it is
directed the burden of proving that the nonexistence of the presumed fact is
more probable than its existence. In a lawsuit, the presumption alone will
be sufficient to get a party past an adverse party's motion to dismiss at the
close of the offering party's case-in-chief. If the adverse party offers no
evidence contradicting the presumed fact, the court will instruct the jury
that, if it finds the underlying basic facts correct, it may presume the
existence of the presumed fact. On the otherhand, if the adverse party
offers evidence to rebut the presumed fact, the Court cannot advise the jury
that it may presume the existence of the presumed fact from proof of the
basic facts. However, the Court may instruct the jury that it may infer the
existence of the presumed fact from proof of the basic facts.
Where a party has the benefit of a presumption, the court may not direct
a verdict against that party on the theory that rebutted evidence eliminates
the vitality of the presumption. The effect of the rebutted evidence on the
presumption converts the presumption into a question of fact for the jury and
not a question of law for the Court.
There is a difference between meeting a presumption and overcoming or
destroying one. When a presumption is confronted with competent evidence,
its nature changes to something akin to an inference. When an inference may
be drawn from the evidence presented, a question of fact remains for resolution
by the jury.
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ILLUSTRATION
Assume X sues Y in a bailment action for failure to return property. A
presumption of negligence or fault arises against Y and in favor of X upon
proof of delivery of the property to Y's exclusive possession and control and
its subsequent loss or damage. The purpose of the presumption at this point
is to control the result of the case by rule of law in the absence of rebut-
tal evidence. When Y introduces rebuttal evidence, the presumption disappears
from the case as a rule of law, but retains the probative value of an infer-
ence of fact. The burden of proof on the issue of negligence is not shifted
to Y, but always remains with X. It was only the burden of proceeding with
sufficient evidence to rebut the presumption which shifted to Y.
CASES
RULE CASE NAME CITE CIRCUIT COURT
301 Silver Chrysler Plymouth
v. Chrysler Motor Corp. 370 F. Supp.
581 (1973) E.D.N.Y.
301 Solder Removal v. U.S.
Intl. Trade Comm. 582 F.2d 628 (1978) D.C.Cir.
301 Equal Employ v. Sheet
Metal Workers 463 F. Supp. 388 (1978) D. Md.
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 sup-
plies the rule of decision is determined in accordance with State law.
ELEMENTS
A. In civil actions or proceedings, the effect of a presumption
1) Respecting a fact,
2) Which is an element of a claim or defense,
3) As to which State law supplies a rule of decision with respect
to that claim or defense,
B. Effect is determined in accordance with State law.
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COMMENTS
This rule follows the dictates of Erie Railroad Co. v. Tompkins, 304 U.S.
64 (1938) and its progeny. This rule does not surface whenever a case con-
cerns the application of State law to the facts, as is the situation in diver-
sity of jurisdiction cases. Its vitality is apparent only where a presumption
is applied to a party's claim or defense. The fact to which it applies must
constitute an element of the claim or defense for the rule to be operative.
ILLUSTRATION
Assume X, who lives in Texas, is injured in an automobile accident in
Texas which involved a car driven by Y, but owned by Z. Y and Z are residents
of New York. Y, at the time of the accident, was not a licensed driver. X
sues Y and Z in Federal court in Texas on the basis of diversity of jurisdic-
tion.
A Texas statute makes proof of ownership of a vehicle prima facie evi-
dence of the owner's consent to the operation of a vehicle by another driver,
This statutory presumption forms an element of X's claim. Under the above
circumstances, the law of Texas would apply inasmuch as the presumption (ow-
ner's consent) respecting a fact (Y driving the vehicle) constitutes an ele-
ment (Z's consent to allow Y to operate the car) of X's claim.
In the above case, state law would not apply as to the presumption of
competency of a witness to testify (e.g., eight year old witness) since com-
petency does not directly relate to a claim or defense. On the other hand,
where the competency of a testator is in issue at the time of the execution
of a will and the fact of or absence of competency relates to a claim or
defense, State law would control. Likewise, State law would control where
a State statute raises a presumption of death after seven years of absence,
provided the presumption related to an element of a claim or defense.
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CASES
RULE CASE NAME CITE CIRCUIT COURT
302 Dick v. New York Life
Insurance Company259 U.S. 437 (1959) Sup. Ct.
302 Johnson v. Ellis &
Sons 604 F.2d 950 (1979) 5th
302 Johnson v. Ellis &
Sons 609 F.2d 822 (1980) 5th
302 Pollard V. Metro-
politan Life 598 F.2d 1284 (1979) 3rd
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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 exis-
tence 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.
ELEMENTS
A. Relevant evidence is defined as:
1. Having any tendency to make existence of any notable fact more
probable, or;
2. Having a tendency to make any fact less probable than it would
be with or without the evidence.
COMMENTS
Evidence which tends to support the position of a party and tends to make
the existence of the fact to be proved more probable or less probable is deemed
to be relevant. No hard and fast rule governs the determination of relevance
and its application to a particular proffer depends in large measure on a log-
ical assessment of the facts and circumstances in the case. Where a party's
proof is comprised primarily of circumstantial evidence, a step by step pro-
cess must be followed in order to prove the case. Consequently, a piece of
evidence standing alone may not seem relevant unless it is coupled with ano-
ther piece of evidence. The saying "one brick does not make a wall" is par-
ticularly appropriate in characterizing this situation, and so one cannot be
expected to produce with each piece of evidence a home run.
Relevance may be found in connection with evidence which explains another
piece of evidence. Likewise, it may be present where evidence is offered to
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support the reliability of other evidence, such as, the offering of evidence
to rehabilitate an impeached witness.
CASES
RULE CASE NAME CITE CIRCUIT COURT
401 U.S. v. Hobson 519 F.2d 765 (1975) 9th
401 U.S. v. Clavey 565 F.2d 111 (1977) 7th
401 U.S. v. Madera 574 F.2d 1320 (1978) 5th
401 U.S. v. Ravich 421 F.2d 1196 (1970) 2d
401 U.S. v. LaFroscia 485 F.2d 457 (1973) 2d
401 Ramos v. Lib Mutual
Ins. 615 F.2d 334 (1980) 5th
401 U.S. v. Woods 613 F.2d 629 (1980) 6th
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.
ELEMENTS
A. All relevant evidence is admissible.
B. Irrelevant evidence is not admissible.
C. Except as provided otherwise by:
1. Constitution.
2. Act of Congress.
3. By Rules of Evidence.
4. By other rules prescribed by Supreme Court.
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COMMENTS
This rule should be read in conjunction with Rule 401 and 403. It serves
to limit the admissibility of relevant evidence in those instances where a Con-
stitutional provision, statutory rule of evidence or rule prescribed by the
Supreme Court is applicable.
Most Constitutional applications of the rule involve the exclusionary rule
and the Fourth and Fifth Amendments. Congressional restrictions under the Rule
invariably involve the creation of a privilege or a prohibition against dis-
closure of certain information.
It should be borne in mind that evidence is relevant when it establishes
the existence of a fact, which, taken alone or in connection with other facts,
render the existence of another fact more certain or more probable.
CASES
RULE
402
402
402
402
402
402
402
402
402
402
CASE NAME
Minn. Rm. Bur. v.
N.D. Agr.
U.S. v. Grimm
Reeg v. Shaughnessy
Beverino v. Saydjari
Gagliardi v. Flint
U.S. v. Williams
Durant v. Surety
Homes
Stockton v. U.S.
U.S. v. Col lorn
U.S. v. Clardy
CITE
563 F.2d 906 (1977)
568 F.2d 1136 (1978)
570 F.2d 309 (1978)
574 F.2d 676 (1978)
564 F.2d 112 (1977)
583 F.2d 1194 (1978)
582 F.2d 1081 (1978)
214 Ct.Cl. 506 (1977)
614 F.2d 624 (1979)
612 F.2d 1139 (1980)
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CIRCUIT COURT
8th
5th
10th
2d
3rd
2d
7th
CT.CL.
9th
9th
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RULE CASE NAME CITE CIRCUIT COURT
402 U.S. v. Baykowski 583 F.2d 1046 (1978) 8th
402 U.S. v. Grajeda 570 F.2d 872 (1978) 9th
402 U.S. v. Jacob 547 F.2d 772 (1976) 2d
402 Brown v. Royalty 535 F.2d 1024 (1976) 8th
402 Collins v.
B. F. Goodrich 558 F.2d 908 (1977) 8th
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.
ELEMENTS
A. Relevant evidence may be excluded if:
1. Probative value is substantially outweighed by
a. Danger of unfair prejudice.
b. Will result in confusion of issues.
c. Will mislead the jury, or
d. Exclusion is required by considerations of
1) Undue delay.
2) Waste of time.
3. Needless presentation of cumulative
evidence.
B. Court may consider admitting evidence with cautionary instruction.
C. Rule applies to all types of evidence:
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1. Direct and circumstantial.
2. Testimonial.
3. Documentary.
4. Demonstrative.
COMMENTS
This rule sets forth the restrictions imposed on relevant evidence and
codifies the view that evidence is not admissible merely because it is rele-
vant; there are many restrictions. They are the result of the application of
social policy on the law.
In criminal cases, evidence, although relevant, is often excluded because
it would be unduly prejudicial. With few exceptions, the exclusion of evi-
dence in various types of litigation turn on policy applications of the Con-
stitution such as due process and notice requirements.
In determining whether the relevant evidence he seeks to introduce may
be excluded, the litigator should consider whether:
a) The introduction of the evidence violates the defendant's consti-
tutional right to a fair trial (e.g., inflammatory photographs).
b) It would be unfair to allow the introduction of the evidence
(evidence misleading or tending to confuse).
c) The introduction of the evidence will unduly delay the proceedings
(waiting for a minor witness to appear or calling 15 witnesses who
testify about the same occurrence).
d) The evidence will prove a fact that the opposing party is prepared
to concede or stipulate to, or
e) The evidence is not the best available to prove the existence or non-
existence of a fact.
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Although the rule does not literally include surprise within its scope,
one may nevertheless infer that it is included within the scope of the term
unfair prejudice. The term surprise as it is used here is in the nature of
estoppel. The circumstances in which a claim of surprise would be appropriate
are where the proponent of the evidence, by some device, artifice or tactic,
whether intentionally or unintentionally, leads the opponent to rely to his
detriment upon the representation of the other.
When determining whether to apply this rule, the court should consider
whether a limiting instruction would minimize or lessen the harm of evidence
considered to be unduly prejudicial. Another factor to be considered is the
availability of other competent evidence, which does not have the same pre-
judicial effect.
CASES
RULE CASE NAME
403 U.S. v. Robinson
403 McShain v. Cessna
403 U.S. v. Weaver
403 U.S. v. Hearst
403 U.S. v. Hall
403 U.S. v. Sellers
403 U.S. v. Alpern
403 Virgin Is. v. Felix
403 U.S. v. Curtis
403 U.S. v. Stirling
403 Ramos v. Lib. Mutual
Ins.
403 Hill v. Rolleri
CITE CIRCUIT COURT
544 F.2d 611 (1976)
563 F.2d 632 (1977)
565 F.2d 129 (1977)
563 F.2d 1331 (1977)
565 F.2d 1052 (1977)
566 F.2d 884 (1977)
564 F.2d 755 (1977)
569 F.2d 1274 (1978)
568 F.2d 643 (1978)
571 F.2d 708 (1978)
615 F.2d 334 (1980)
615 F.2d 886 (1980)
2d
3d
8th
9th
8th
4th
7th
3d
9th
2d
5th
9th
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RULE CASE NAME CITE CIRCUIT COURT
403 U.S. v. Cady 567 F.2d 771 (1977) 8th
403 U.S. v. Rothman 567 F.2d 744 (1977) 7th
403 U.S. v. Gibson 568 F.2d 111 (1978) 8th
403 SCM v. Xerox 77 F.R.D. 10 (1977) D.Conn.
403 U.S. v. Briscoe 574 F.2d 406 (1978) 8th
403 U.S. v. Daniels 572 F.2d 535 (1978) 5th
403 U.S. v. Jackson 576 F.2d 46 (1978) 5th
403 U.S. v. Weir 575 F.2d 668 (1978) 8th
403 Rozier v. Ford Motor 573 F.2d 1332 (1978) 5th
403 U.S. v. 'Sigal 572 F.2d 1320 (1978) 9th
403 U.S. v. Miller 573 F.2d 388 (1978) 7th
403 U.S. v. Fife 573 F.2d 369 (1976) 6th
403 U.S. v. Benedetto 571 F.2d 1246 (1978) 2nd
403 Reeg v. Fetzer 78 F.R.D. 34 (1976) W.D.Okla.
403 U.S. v. Gubelman 571 F.2d 1252 (1978) 2nd
403 U.S. v. Jackson 572 F.2d 636 (1978) 7th
403 U.S. v. Castell 584 F.2d 87 (1978) 5th
403 U.S. v. D'Alora 585 F.2d 16 (1978) 1st
403 U.S. v. Peltier 585 F.2d 314 (1978) 8th
RULE 404
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE
CONDUCT; EXCEPTIONS; OTHER CRIME?
(a) Character evidence generally. Evidence of a person's character or
a trait of his character is not admissible for the purpose of proving that he
acted in conformity therewith on a particular occasion, except:
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(1) Character of accused. Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut the
same;
(2) Character of victim. Evidence of a pertinent trait of charac-
ter of the victim of the crime offered by an accused, or by the prosecu-
tion to rebut the same, or evidence of a character trait of peacefulness
of the victim offered by the prosecution in a homicide case to rebut
evidence that the 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
that he acted 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.
ELEMENTS
A. Character evidence is generally inadmissible to prove that a person
acted in conformity therewith on a particular occasion, except:
1. Where accused offers evidence of pertinent character trait and
where prosecutor attempts to rebut same,
2. Where accused offers evidence of pertinent character trait of
victim and where prosecutor attempts to rebut same,
3. Where prosecutor offers evidence of peaceful character of victim
to rebut evidence victim was aggressor, and
4. Character evidence as provided in Rules 607, 608, and 609.
B. Evidence of other crimes, wrongs, and acts inadmissible to show char-
acter; except, admissible to show:
1. Motive.
2. Opportunity.
3. Intent.
4. Plan.
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5. Identity.
6. Preparation.
7. Absence of mistake or accident.
COMMENTS
404 (a)
This rule is consistent with the general practice of most jurisdictions
prior to the promulgation of the rules of evidence. The application of this
rule generally arises in criminal cases where the accused seeks to introduce
the character element into the case which will allow the trier of fact to
return a favorable verdict in spite of the evidence which supports a guilty
verdict.
Where character evidence is introduced on behalf of the defendent in a
criminal case, jurors are instructed that they may find the defendant not
guilty by virtue of the fact that his character is inconsistent with the
defendant committing the crime. The defendant will generally introduce
evidence of his character for peacefulness (where a weapon or violent crime is
involved), for veracity (where credibility is an issue), or for honesty (where
integrity is an issue).
ILLUSTRATION
Assume the defendant is charged with possession of a weapon. The defen-
dant denies his involvement and offers evidence that he is a conscientious
objector who is opposed to violence of any kind. The relevance of this evi-
dence would be to show that a peaceful man would not knowingly possess a tool
of violence.
The defendant in a criminal case may offer evidence of a pertinent
character trait of the victim where that trait is an issue. This practice
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often occurs where the defense in the case is one of self-defense and the
accused asserts that the complainant was the aggressor. Another situation in
which this rule would be applicable is where the accused asserts that the vic-
tim fabricated the complaint and offers evidence of his character for untruth-
fulness. The term victim may also be used synonymously with principal or sole
accuser.
ILLUSTRATION
Assume defendant X is charged with assaulting Y. X raises the claim of
self-defense and offers evidence to show that Y was the aggressor. To support
this evidence, X offers testimony to show that Y is known as a violent person
and places into evidence certified copies of Y's convictions for assault, mur-
der and mayhem. This evidence is central to X's defense that Y was the aggres-
sor in this case and accordingly, it should be admitted.
Assume further that X is charged with embezzling funds from an account at
EPA and Y is his principal accuser. X may offer character evidence bearing on
Y's character for veracity by introducing evidence that in the past Y has
reported similar thefts which were later proven to be false.
The prosecution is not permitted to offer evidence relative to the accus-
ed's character unless the issue is first raised by the defense in some manner.
When this occurs, the prosecutor may offer evidence to rebut the accused's
claim that he is of good character. Likewise, the prosecutor may not offer
evidence of the victim's or sole accuser's good reputation unless the defen-
dant places the pertinent character trait into issue.
Occasionally, the defendant in his zeal to place himself in a good light,
will inadvertently place his character into issue, and thus allowing the pro-
secutor to offer evidence in rebuttal.
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ILLUSTRATION
Counsel for X: Mr. X did you prepare the report, which contained the
false entries, with the view of misleading EPA?
X: Oh no! I have been a Christian all of my life and any-
one who knows me will tell you that X is an honest man
and will never tell a lie or do anything to mislead
anyone.
In the above exchange, X opens the door for rebuttal evidence by placing
his character for truthfulness, as well as, honesty in issue. Accordingly,
it would be proper for the prosecutor to offer evidence to rebut his claim of
veracity and integrity.
Often attorneys assume that the defendant may only place his character
in issue through other witnesses; nothing can be further from the truth. The
rule merely talks about the accused offering evidence of a pertinent character
trait; it does not limit how it may be accomplished.
In order for a trait to be pertinent, it must have a clear decisive rel-
evance to the matter at hand. It must be significant to the central claim or
defense of a party. However, character evidence may form the sole proof of
the defendant where he seeks to rebut the central theme of the government's
case; e.g., he is violent, a liar, or a thief. An established reputation for
good character, if relevant to the issue in the case, can alone create a rea-
sonable doubt, without which proof of guilt would be convincing. Villaroman
v. U.S. 184 F.2d 261 (D.C.Cir. 1950).
404 (b)
This rule allows the introduction of evidence to show a nexus between
the matter in question and other acts by the individual. The evidence cannot
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be admitted to show that if he committed the one crime he must have committed
the other; however, such evidence may tend to prove that the acts in question
are related to a course of conduct by the individual and not an aberrance.
Invariably the other acts introduced under this provision precedes in
time the matter in controversy. However, evidence may be introduced of acts
occurring after the matter in question which tend to establish common scheme,
design, nature or opportunity.
ILLUSTRATION
Assume X was observed dumping toxic substances at an unauthorized dump
on 1/1/85. X was not apprehended or confronted at that time but was recog-
nized by an EPA investigator. X is later stopped on 1/15/85 by state author-
ities, while driving a truck filled with the same type of toxic chemicals in
the vicinity and headed in the direction of the 1/1/85 dump site. X is indic-
ted for the 1/1/85 dumping.
At his trial, X maintains that he was not involved in the 1/1/85 inci-
dent and argues that he does not haul toxic materials. The government could
call the State officials who observed X with the toxic chemicals on 1/15/85
to show identity and the intent of X to dump the materials. By proving cir-
cumstances from which the trier of fact could infer that X was going to dump
chemicals at the dumpsite until prevented by State authorities, the proponent
of the evidence will show that the EPA agent may not be mistaken about seeing
X committing the violation when he saw him on 1/1/85. Moreover, this evidence
would demonstrate a common scheme or plan embracing the commission of two or
more offenses so related to each other in character and circumstances that
proof of the one tends to establish the other. Additionally, the evidence
would demonstrate that X also knew the nature of the goods he was hauling.
CASE
CASE NAME
U.S. v. Wyers
U.S. v. Alan is
404(a)(l) U.S. v. Lechoco
404(a)(l) U.S. v. Staggs
404(a)(l) Virgin Isl. v.
Rolidan
CITE
546 F.2d 599 (1977)
611 F.2d 123 (1980)
542 F.2d 84 (1976)
553 F.2d 1073 (1977)
612 F.2d 775 (1979)
-38-
CIRCUIT COURT
5th
5th
D.C.Cir.
7th
3rd
-------
RULE
CASE NAME
404(a)(l) U.S. v. Gilliland
404(a)(l) U.S. v. Weidman
404(a)(l) U.S. v. Tibbetts
404(a)(l) Virgin Is. v. Felix
404(a)(l) U.S. v. Fosher
404(a)(l) U.S. v. Segovia
404(a)(1) Wager v. Pro
404(a)(l) U.S. v. Benedetto
404(a)(2) U.S. v. Driver
404(a)(2) U.S. v. Sturgis
404(b) U.S. v. Powers
404(b) U.S. v. Young
404(b) U.S. v. Westbo
404(b) U.S. v. Lamb
404(b) Eaves v. Penn
404(b) U.S. v. Rabitt
404(5) U.S. v. Weidman
404(b) U.S. v. Gubelman
404(b) U.S. v. Batts
404(b) U.S. v. Evans
404(b) U.S. v. Etley
404(b) U.S. v. Greenfield
404(b) U.S. v. Free
404(b) U.S. v. Rankin
404(b) U.S. v. Hockridge
CITE
586 F.2d 1384 (1978)
572 F.2d 1199 (1978)
565 F.2d 867 (1977)
569 F.2d 1274 (1978)
568 F.2d 207 (1978)
576 F.2d 251 (1978)
575 F.2d 882 (1976)
571 F.2d 1246 (1978)
581 F.2d 80 (1978)
578 F.2d 1296 (1978)
572 F.2d 146 (1978)
573 F.2d 1137 (1978)
576 F.2d 285 (1978)
575 F.2d 1310 (1978)
587 F.2d 453 (1978)
583 F.2d 1014 (1978)
572 F.2d 1199 (1978)
571 F.2d 1252 (1978)
573 F.2d 599 (1978)
572 F.2d 455 (1978)
574 F.2d 850 (1978)
574 F.2d 305 (1978)
574 F.2d 1221 (1978)
572 F.2d 503 (1978)
573 F.2d 752 (1978)
CIRCUIT COURT
10th
7th
4th
3rd
1st
9th
D.C.Cir.
2nd
4th
9th
8th
9th
10th
10th
10th
8th
7th
2nd
9th
5th
5th
5th
5th
5th
2nd
-39-
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RULE
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
404(b)
CASE NAME
U.S. v. Fosher
U.S. v. Henciar
Smith v. Wainwright
U.S. v. Hearst
U.S. v. Corey
U.S. v. Baldarrama
U.S. v. Lambros
U.S. v. Trevino
U.S. v. Hangar One
U.S. v. Weaver
U.S. v. Powell
U.S. v. Sangrey
U.S. v. Barnes
METHODS
Reputation or opinion
CITE
568 F.2d 207 (1978)
568 F.2d 489 (1978)
568 F.2d 362 (1978)
563 F.2d 1331 (1977)
566 F.2d 429 (1977)
566 F.2d 560 (1978)
564 F.2d 26 (1977)
565 F.2d 1317 (1978)
563 F.2d 1155 (1977)
565 F.2d 129 (1977)
587 F.2d 443 (1978)
586 F.2d 1312 (1978)
586 F.2d 1052 (1978)
RULE 405
OF PROVING CHARACTER
In all cases in which
CIRCUIT COURT
1st
6th
5th
9th
2nd
5th
8th
5th
5th
8th
9th
8th
5th
evidence of ch
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 his conduct.
ELEMENTS
A. When character evidence is admissible, it may be proved by:
1. Reputation.
2. Opinion.
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3. Specific instances of conduct may be inquired into.
a. Only on cross-examination.
b. Unless character trait is element of claim, charge,
or defense.
COMMENTS
This rule changes the traditional approach to proving character by allow-
ing the witness to state his opinion of the party's character. Additionally,
it allows the witness to testify relative to specific acts. In the past, the
witness could only state whether he had heard anything about the person's
reputation relative to truth and veracity or peace and good order in the com-
munity in which he lived. This was very awkward in that a person rarely
discussed the above character traits of an individual with people in the com-
munity. Consequently, the witness invaribly attempted to give his personal
opinion, which was not admissible, rather than expressing the reputation the
individual had in his community.
ILLUSTRATION
Counsel: tMr. X, have you had conversations with people in the community
relative to Y's reputation for truth and veracity?
X: Yes.
Counsel: What is his reputation for truth and veracity?
X: They say he is a truthful person.
The problem with the above exchange is that when X is cross-examined
about how he came to discuss Y's reputation, where he discussed it, the cir-
cumstances surrounding the conversation and with whom the conversation was
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had, it invaribly would result in a finding that X merely gave the court his
opinion. Moreover, it was difficult to keep the witness confined to testify-
ing about truth and veracity and peace and good order. This is especially
true where the witness would, in response to a question regarding truth and
veracity, reply that he believed the person to be honest, or that everyone
liked him.
While the new rule allows the witness to give his personal opinion about
the person and thereby avoid the games which were played in the past, it is
not without its liabilities. It will be difficult to undercut fabricated
testimony relating to character. For example, where the witness states that
the defendant never lied to him and he has always known him to tell the
truth, how will the cross-examiner be able to de-fuse that bombshell testi-
mony when the witness refuses to admit to knowing anything adverse about his
relationship to the defendant.
The only string in the cross-examiner's bow is that he may inquire into
specific instances of misconduct by the individual which could cast him in a
bad light. However, where the defendant is a first offender or a pillar of
the community, inquiring into specific instances of misconduct will not be
helpful. You must keep in focus the fact that the witness would not be tes-
tifying on behalf of the person unless they regarded him highly.
ILLUSTRATION
During the course of his trial for bribery in connection with the Milk
fund case, Governor John Connally called Representative Barbara Jordan to
testify as a character witness in his behalf. The case was heard before a
predominantely black jury and Representative Jordan was a black Congress-
woman. Governor Connally was known for his rather conservative style and it
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was believed that of the character witnesses that testified on his behalf,
Representative Jordan was the one most likely to provide the damaging tidbit
of testimony.
When questioned concerning her personal views of Governor Connally, Rep-
resentative Jordan replied that while they had had their differences politic-
ally and philosophically, Governor Connally had never demonstrated himself to
be anything but a man of integrity. Of all the character testimony delivered
on behalf of Connally (Billy Graham and Lady Bird Johnson, etc.), this was the
most beneficial.
The new rule facilitates the ease with which character testimony may be
offered. It also codifies the right of the cross-examiner to inquire into
specific instances of conduct.
CASES
RULE CASE NAME
405(a) U.S. v. Morgan
405(a) U.S. v. Edwards
405(a) U.S. v. Watson
405 (a) U.S. v. Benedetto
40^ia) U.S. v. Evans
405 (b) U.S. v. Benedetto
405(b) U.S. v. Donoho
405(b) U.S. v. Davis
405(b) U.S. v. Brown
405(b) U.S. v. Pantone
CITE
554 F.2d 31 (1977)
549 F.2d 362 (1977)
587 F.2d 365 (1978)
571 F.2d 1246 (1978)
569 F.2d 209 (1978)
571 F.2d 1246 (1978)
575 F.2d 718 (1978)
546 F.2d 583 (1977)
547 F.2d 438 (1977)
609 F.2d 675 (1979)
405(a)(b) Virgin Is. v. Rolidan 612 F.2d 775 (1979)
CIRCUIT COURT
2nd
5th
7th
2nd
4th
2nd
9th
5th
8th
3rd
3rd
RULE 406
HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence
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of eyewitnesses, is relevant to prove that the conduct of the person or organ-
ization on a particular occasion was in conformity with the habit or routine
practice.
ELEMENTS
A. Evidence of habit of a person or routine of an organization to prove
conformity therewith on a particular occasion is relevant and:
1. Need not be corroborated, and
2. Need not be done in presence of eyewitness.
COMMENT
This rule allows the introduction of evidence related to the habits of a
person or the routine of an organization without a requirement that there be
corroboration or that the acts be done in the presence of eyewitnesses. The
above requirements were mandatory prior to the promulgation of the rule
wherever habit evidence or evidence of a routine was admitted.
In the past, where the conduct did not occur with invariable regularity,
the courts would hold that the conduct never achieved the status of habit.
Where the conduct was volitional rather than essential, serious questions
were raised as to its invariable nature (recreation vs. employment).
Under the new rule, habit evidence is more readily admissible and any
questions as to its invariable nature goes to the weight of the evidence and
not its admissibility.
Where acts which constitute the habit or routine evidence also support
the claims or defenses raised in the pleadings, the evidence may also be
admissible under Rule 404(b) of the F. Rules of Evidence. Caution should
nevertheless be exercised when structuring a case wherein habit or routine
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evidence constitutes an integral portion of the proofs. Those cases in which
the evidence of acts constituting the habit or routine is slight, the Court
may rule that the conduct failed to achieve the status of habit. In those
cases where the Court allows the evidence for whatever weight it might carry,
the Court may withhold giving jury instructions regarding the habit evidence.
ILLUSTRATION
Assume X is charged with polluting a stream when a holding tank at his
plant overflowed following heavy rains and spilled its contents into a nearby
stream. X denies that the tank overflowed contending that he had drained the
excess water through an outlet valve into a suitable receptacle. To buttress
this testimony, X seeks to introduce evidence that he always performed this
chore whenever it rained excessively and desires to offer evidence of two
occasions upon which he performed this and thereby prevented an overflow.
The evidence is inadmissible under Rule 406 (although it may be admiss-
ible under 404(b) to demonstrate that X had a plan or his preparation) inas-
much as the act was too volitional to be considered a habit. Moreover, the
relevance may be placed in question by raising the question of whether the
level of rainfall on each occasion was similar.
CASES
RULE CASE NAME CITE CIRCUIT COURT
406
406
406
406
406
U.
Wi
of
U.
U.
S. v.
Ison
Amer
S. v.
S. v.
Reyes v
Call ah an
v. Volkswagen
General Foods
Rubies
. Missouri
551
561
446
612
F
F
F
F
.2d
.2d
733
494
.Supp.
.2d
396
(1977)
(1977)
740 (1978)
(1979)
6th
4th
S.D. N.Y.
8th
Pac. R. Co. 589 F.2d 791 (1979) 5th
-45-
-------
RULE 407
SUBSEQUENT REMEDIAL MEASURES
When, after an event, measures are taken which, if taken previously,
would have made the event less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence or culpable conduct in con-
nection with the event. This rule does not require the exclusion of evidence
of subsequent measures when offered for another purpose, such as proving owner-
ship, control, or feasibility of precautionary measures, if controverted, or
impeachment.
ELEMENTS
A. Subsequent remedial measures not admissible to prove negligence or
culpable conduct in connection with a past event.
B. May be offered to prove:
1. Another purpose.
2. Ownership.
3. Control.
4. Feasibility of precautionary measures., if controverted.
5. Impeachment.
COMMENTS
This rule follows the conventional doctrine of excluding this type of
evidence. The reason behind the rule is that for reasons of public policy,
the making of the repairs or modifications after a claim arises should not be
construed as an admission of previous neglect of duty. The fear created by
the admission of this type of evidence was that the jury would be distracted
from the real issues and such proof would operate to the prejudice of the
defendant. Moreover, the general disallowance of this type of proof would
enhance the chances that defendants would be encouraged to take the necessary
steps to remove any further danger to the public.
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While rejecting the notion that because the world gets wiser as it gets
older, therefore it was foolish before, the Courts nevertheless recognized
that this evidence was probative for more limited purposes, such as to demon-
strate ownership or control, etc. In such a situation, the evidence was
admitted subject to a cautionary instruction as to its use. The present rule
merely codifies this practice.
While the evidence may be admissible for a limited purpose, the Court
may nevertheless exclude it in its discretion if it believes no curative
instruction to the jury would reduce the likelihood of undue prejudice from
the evidence.
ILLUSTRATION
Assume a customer trips over a piece of linoleum covering a step on a
flight of stairs in a department store. X replaces the linoleum after the
suit is filed. On cross-examination, Y seeks to use the fact that X replaced
the linoleum to impeach him. The Court excludes the evidence on the grounds
of undue prejudice. Avery v. Kann Sons, 91 F.2d 248 (D.C.Cir. 1937).
CASES
RULE CASE NAME
407 Rozier v. Ford Motor
407 Doyle v. U.S.
407 Roy v. Star
Chopper Co.
407 Arcement v. So.
Pac. Trans Co.
407 Ramos v. Lib. Mut.
Ins.
407 Ordnance Res. v. U.S.
CITE
CIRCUIT COURT
573 F.2d 1332 (1978) 5th
441 F.Supp. 701 (1977) D.S.C.
584 F.2d 1124 (1978)
517 F.2d 729 (1975)
615 F.2d 341 (1980)
609 F.2d 462 (1979)
1st
5th
5th
Ct. Cl
-47-
-------
CASE NAME CITE CIRCUIT COURT
Farner v. Pacaar, 562 F.2d 518 (1977) 8th
Inc.
407 Robbins v. Farmer
Union Asso. 552 F.2d 788 (1977) 8th
RULE 408
COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in com-
promising or attempting to compromise a claim which was disputed as to either
validity or amount, is not admissible to prove liability for or invalidity of
the claim or its amount. Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This rule does not require the exclu-
sion of any evidence otherwise discoverable merely because it is presented in
the course of compromise negotiations. This rule also does not require exclu-
sion when the evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.
ELEMENTS
A. Evidence of:
1. Furnishing, offering or promising to furnish.
2. Accepting or offering or promising to accept a valuable consid-
eration to compromise or attempt to compromise a claim is not
admissible.
B. Evidence of:
1. Conduct in negotiations not admissible.
2. Statement made in negotiations not admissible.
C. Evidence not excluded if offered for purpose other than fault,
such as:
1. Bias or prejudice of witness.
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2. Negativing a contention of undue delay.
3. Proving an effort to obstruct a criminal prosecution.
COMMENT
This Rule, like Rule 407 (Subsequent Remedial Measures), is designed to
encourage the compromise and settlement of claims. It bars admission of evi-
dence relative to offers to compromise or settle a claim inasmuch as that
evidence may be motivated by many reasons, including a desire for peace.
This Rule, like Rule 410 and a similar rule under Rule ll(e)(6) of the
Federal Rules of Criminal Procedure, allows the parties to an action to
discuss the disposition of cases without fear that their offers of compromise
will return to haunt them if the claims are not settled.
This Rule also applies where the validity of the claim or the amount of
the claim is in dispute. It is inapplicable where the debtor party acknow-
ledges the validity of the debt and the amount involved. Such statements made
in connection with such debts are in the nature of admissions.
ILLUSTRATION
Assume EPA sues X for $1,000,000 in Civil penalties for pollution viola-
tions. X is of the view that he committed the violations in question and
owes some money; however, he believes that a million dollars is excessive.
Accordingly, X tells EPA that he is willing to pay $300,000 to get the agency
off of his back. EPA refuses to accept the amount and the matter is liti-
gated. The judge, hearing the case, muses aloud at the close of the evidence
that he is prepared to find X liable and impose a Civil penalty of $200,000.
EPA, in order to raise the final penalty figure, cannot advise the judge that
X was prepared to pay $300,000 earlier. Nor may EPA during the trial mention
that X was prepared to forfeit that amount.
On the other hand, assume X did not do any work on a contract EPA hired
him to perform and must return the money ($1,000,000) the agency paid him.
X repeatedly tells the agency that he will return the money but changes his
mind when other creditors start hounding him. The Agency sues X for the money.
During the pretrial stages of the case, X works out an agreement with EPA to
pay the full amount in installments, but later changes his mind when creditors
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again start to hound him. At the trial, EPA may introduce the agreement inas-
much as it was not a compromise offer on a disputed claim.
Where an offer of compromise is accepted and is incorporated into an
agreement, if one of the parties breaches the agreement, the agreement may be
offered into evidence. The policy reason for the rule (to encourage settle-
ments) is inapplicable where the offer has been accepted and is merged into
an agreement. In the lawsuit, the breach of the settlement agreement may
form the basis of the cause of action or the party may sue on the original
action.
Where the evidence is offered for a purpose other than proving liability
or the invalidity of a claim, the Rule does not bar its admission. Addition-
ally, statements made during the negotiations may not be used as admissions
or declarations against interest. However, such statements may be used in
perjury or false statement prosecutions.
CASES
RULE CASE NAME CITE CIRCUIT COURT
408 Big 0 Tire Dealers
v. Goodyear 561 F.2d 1365 (1977) 10th
408 Re Special November
1975 Grand Jury 433 F.Supp. 1094 (1977) N.D. Ill
408 U.S. v. Verdoorn 528 F.2d 103 (1976) 8th
408 U.S. v. Harris 542 F.2d 1283 (1976) 7th
408 McShain, Inc. v.
Cessna 563 F.2d 632 (1977) 3rd
408 Swanson v. Baker 615 F.2d 479 (1980) 8th
408 U.S. v. Castillo 615 F.2d 878 (1980) 9th
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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 lia-
bility for the injury.
ELEMENTS
A. Evidence of furnishing, offering or promising to pay medical, antic-
ipated or similar expenses.
B. Occasioned by injury.
C. Not admissible to establish liability for the injury.
Note: May be admissible under guidelines of Rule 408.
COMMENT
The underlying reasons for this Rule are identical to those for Rules
407 and 408. An offer to pay medical expenses may be prompted by sympathy or
to make amends rather than constituting a recognition of liability. The
trier of fact should not be permitted to speculate as to the intent of the
offerer at the time he tendered his assistance.
CASES
RULE CASE NAME CITE CIRCUIT COURT
409 Watford v. Evening
Star 211 F.2d 31, 36 (1959) D.C. Cir.
RULE 410
INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS, AND RELATED STATEMENTS
Except as otherwise provided in this rule, evidence of a plea of guilty,
later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty
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or nolo contendere to the crime charged or any other crime, or of statements
made in connection with, and relevant to, any of the foregoing pleas or offers,
is not admissible in any civil or criminal proceeding against the person who
made the plea or offer. However, evidence of a statement made in connection
with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo con-
tendere, or an offer to plead guilty or nolo contendere to the crime charged
or any other crime, is admissible 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. As amended Pub.L. 94-149, § 1(9), Dec. 12,
1975, 89 Stat. 805.
ELEMENTS
A. Evidence of plea of guilty or nolo contendere later withdrawn or an
offer to plead guilty to a crime charged or statements made in con-
nection therewith, are not admissible in any proceeding against the
person who made plea or offer.
B. Rule modified by F. R. Crim. P. ll(e)(6), providing for admissibility
if:
1. Statement made in connection with and relevant to plea, and
2. In a criminal proceeding for perjury or false statement, and
3. Made by the defendant
a. Under oath, and
b. On the record, and
c. In the presence of counsel.
COMMENTS
This rule merely codifies the traditional rule against allowing this type
of evidence to be admitted. Whether a plea of guilty is withdrawn pursuant
to a statutory right or by permission of the Court, the accused stands trial
upon a plea of not guilty and is entitled to all of the safeguards and pre-
sumptions of innocence which the law extends to one on trial where life or
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liberty is at stake. On the other hand, the rule is limited where the accused
seeks to use its provisions in order to commit perjury or make false state-
ments. This follows a recent trend to limit the exclusionary rule where the
accused seeks to use its protection to commit perjury. See Harris v. New
York. 401 U.S. 222 (1971); Oregon v. Mass. 402 U.S. 714 (1975); Walder v. U.S.
347 U.S. 62 (1954); U.S. v. Havens. U.S. , 27 CRL. 3136 (1980).
Without plea bargaining, the courts would become backlogged with cases.
Consequently, pleas and offers to plea are to be encouraged. This rule pro-
motes the disposition of criminal cases by compromise.
Defendants often seek to plead nolo contendere inasmuch as it is not
an admission of guilt and is not considered an admission in subsequent civil
loss.
CASES
RULE
410
410
410
410
410
410
410
410
410
CASE NAME
U.S. v. Martinez
Lipsky v. Common-
wealth Corp.
U.S. v. Smith
U.S. v. Robertson
U.S. v. Mathis
U.S. v. Levy
U.S. v. Robertson
U.S. v. Abrahams
Campiti v. Walonis
CITE
536 F.2d 1107 (1976)
551 F.2d 887 (1976)
525 F.2d 1017 (1975)
560 F.2d 647 (1977)
550 F.2d 180 (1976)
578 F.2d 896 (1978)
582 F.2d 1356 (1978)
604 F.2d 395 (1979)
611 F.2d 390 (1979)
CIRCUIT COURT
5th
2nd
10th
5th
4th
2nd
5th
5th
1st
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RULE 411
LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not
admissible upon the issue whether he acted negligently or otherwise wrong-
fully. 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.
ELEMENTS
A. Evidence that person insured/not insured against liability, not
admissible
1. On issue he acted negligently, or whether
2. He acted otherwise wrongfully.
B. Evidence not excluded when offered for other purpose, such as:
1. Proof of agency,
2. Ownership or control,
3. Bias or prejudice of witness.
COMMENTS
This rule follows the universal view as to the admissibility of liabil-
ity insurance to establish fault or blame. The evidence has been considered
so prejudicial that even a curative instruction has been found to be inade-
quate to cure the harm.
ILLUSTRATION
In personal injury case, X testifies that after the accident, he con-
ferred with Y and Y acknowledged fault and that X would not suffer any loss
inasmuch as he (Y) was fully insured. In such a case, the court should
declare a mistrial upon hearing the above testimony. Brooke v. Croson, 61
U.S. App D.C. 159, 58 F.2d 885 (1932).
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The rule does not prevent the receipt of evidence relative to liability
insurance where it is offered for a purpose other than to establish fault.
ILLUSTRATION
X is sued by Y for injuries sustained in an automobile accident involv-
ing an auto driven by X's son. X denies any liability for the injuries inas-
much as he gave the auto to his son six months before the accident. The fact
that X continues to pay the insurance premiums on the auto may be offered as
indicia of ownership.
CASES
RULE CASE NAME
411 Radinsky v. Ellis
411 Behrman v. Sims
411 Varlack v. SWC
Caribbean, Inc.
411 Charter v. Chleborad
411 Hunziker v.
Scheidemantle
411 Posttape Assoc. v.
Eastman Kodak
411 Hannah v. Haskins
CITE
167 F.2d 745 (1948)
157 F.2d 862 (1947)
550 F.2d 171 (1977)
551 F.2d 246 (1976)
543 F.2d 489 (1976)
537 F.2d 751 (1976)
612 F.2d 373 (1980)
CIRCUIT COURT
D.C.Cir.
D.C.Cir.
3rd
8th
3rd
3rd
8th
RULE 412
RAPE CASES; RELEVANCE OF VICTIM'S PAST BEHAVIOR
(a) Notwithstanding any other provision of law, in a criminal case in
which a person is accused of rape or of assault with intent to commit rape,
reputation or opinion evidence of the past sexual behavior of an alleged vic-
tim of such rape or assault is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in
which a person is accused of rape or of assault with intent to commit rape,
evidence of a victim's past sexual behavior other than reputation or opinion
evidence is also not admissible, unless such evidence other than reputation
or opinion evidence is:
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(1) admitted in accordance with subdivisions (c)(l) and (c)(2) and
is constitutionally required to be admitted; or
(2) admitted in accordance with subdivision (c) and is evidence of-
(A) past sexual behavior with persons other than the accused,
offered by the accused upon the issue of whether the accused was or
was not, with respect to the alleged victim, the source of semen or
injury; or
(B) past sexual behavior with the accused and is offered by
the accused upon the issue of whether the alleged victim consented
to the sexual behavior with respect to which rape or assault is
alleged.
(c) (1) If the person accused of committing rape or assault with intent
to commit rape intends to offer under subdivision (b) evidence of specific
instances of the alleged victim's past sexual behavior, the accused shall
make a written motion to offer such evidence not later than fifteen days
before the date on which the trial in which such evidence is to be offered is
scheduled to begin, except that the court may allow the motion to be made at
a later date, including during trial, if the court determines either that the
evidence is newly discovered and could not have been obtained earlier through
the exercise of due diligence or that the issue to which such evidence relates
has newly arisen in the case. Any motion made under this paragraph shall be
served on all other parties and on the alleged victim.
(2) The motion described in paragraph (1) shall be accompanied by a
written offer of proof. If the court determines that the offer of proof con-
tains evidence described in subdivision (b), the court shall order a hearing
in chambers to determine if such evidence is admissible. At such hearing the
parties may call witnesses, including the alleged victim, and offer relevant
evidence. Notwithstanding subdivision (b) of rule 104, if the relevancy of
the evidence which the accused seeks to offer in the trial depends upon the
fulfillment of a condition of fact, the court, at the hearing in chambers or
at a subsequent hearing in chambers scheduled for such purpose, shall accept
evidence on the issue of whether such condition of fact is fulfilled and shall
determine such issue.
(3) If the court determines on the basis of the hearing described in
paragraph (2) that the evidence which the accused seeks to offer is relevant
and that the probative value of such evidence outweighs the danger of unfair
prejudice, such evidence shall be admissible in the trial to the extent an
order made by the cour specifies evidence which may be offered and areas with
respect to which the alleged victim may be examined or cross-examined.
(d) For purposes of this rule, the term "past sexual behavior" means
sexual behavior other than the sexual behavior with respect to which rape or
assault with intent to commit rape is alleged.
(Added Pub.L. 95-540, § 2(a), Oct. 28, 1978, 92 Stat. 2046.)
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ELEMENTS
A. Notwithstanding any other provision of law,
1. In a criminal case.
2. In which a person is accused of rape or assault with intention
to rape.
3. Reputation or opinion evidence of past sexual behavior of alleged
victim.
4. Not admissible.
B. Notwithstanding any other provision of law,
1. In a criminal case.
2. In which a person is accused of rape or assault with intention
to rape.
3. Evidence of past sexual behavior of alleged victim, other than
reputation or opinion evidence.
4. Not admissible unless,
a. Admitted in accordance with (c)(l) and (c)(2) below and
b. Is constitutionally required to be admitted, or
c. Admitted in accordance with (c)(below) and is evidence of
i) Past sexual behavior
ii) With persons other than accused
iii) On issue of whether with respect to victim,
iv) Accused was source of semen, or
i) Past sexual behavior
ii) With accused
iii) On issue of consent of victim
iv) To the rape alleged.
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C.I. If accused in rape/assault with intent to rape offers under (b)
(above) evidence of specific instances of victims sexual past, he
must
a) Serve a written motion on all parties and victim regarding
evidence,
b) Within 15 days before trial date, except Court may allow
late motion, even during trial, where
a. Evidence newly discovered, or
b. could not have been obtained earlier with due diligence,
or
c. issue to which evidence relates surfaced at trial.
2. Motion filed under (c)(l) must have
a) Written offer of proof attached.
b) Where court determines offer of proof contains allegations of
past sexual behavior with accused regarding consent; court
c) Must hold hearing in chambers,
d) Determine admissibility of evidence,
e) All evidence must be relevant
3. Notwithstanding Rule 104(b),
a) Relevancy of evidence
b) Offered by accused for trial,
c) Depends upon fulfillment of a condition of fact,
d) The court in chambers hearing
e) Shall accept evidence as if condition fulfilled, and
f) Shall determine issue.
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4. If Court determines in above hearing that
a) The evidence is relevant,
b) Its probative value outweighs danger of unfair prejudice,
c) Evidence is admissible to extent specified in court order, and
d) Victim may be cross-examined or examined only as specified in
order.
D. Sexual behavior means such behavior other than that which gave rise to the
charges.
COMMENT
This rule follows the trend of most courts to disallow testimony of the
alleged victim's past sexual conduct. The victim's past is treated as
irrelevant for the purposes of showing promiscuousness on the part of the
prosecutrix. Accordingly, the rule underscores the commonly held view that
"even a prostitute can be raped."
The rationale undercutting the relevance of this type of testimony is
the observation that if a woman of unchaste character was sexually attacked,
does it matter for the purposes of that charge whether she consented on many
occasions in the past, if she asserts that she did not consent on that occa-
sion? The problem that surfaces from the complete exclusion of this type of
evidence is that occassionally a defendant may be falsely accused because of
some ill-conceived notion and this type of evidence would be of benefit in
sorting out the truth. See Giles v. Maryland, 386 U.S. 66 (1968) (three
blacks were sentenced to death for allegedly raping a white woman, who had a
history of promiscuity. The three blacks contended the victim consented and
the government withheld from the defense all evidence of the victim's past as
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well as her prior inconsistent statements. The incident was the subject of a
book entitled, "An American Rape.")
The safeguard against the above situation is the exercise of sound, fair
judgment on the part of the prosecutor in deciding whether to prosecute the
case. Otherwise, the adage "it is better for 100 guilty men to go free then
to see one innocent man convicted" loses a little of its potency.
Section (b)(2)(A) allows the admission of evidence of the victim's past
sexual behavior with others in order to prove the defendant was not the source
of semen or injury. It would appear that since the incident to which this
evidence applies is the rape or assault in question (evidence limited to
source of semen or injury), the past, behavior must immediately precede or
follow the incident alleged in the charge.
Section (b)(2)(B) allows the admission of evidence of past sexual beha-
vior by the prosecutrix with the accused on the issue of whether the victim
consented to the assault. The rationale underlying this evidence is that if
the victim has had sex with the accused in the past, she may have consented
to the incident charged. It appears that the purpose of this portion of the
rule is to recognize the situations in which past girlfriends of the accused
may scream rape out of a sense of revenge or jealousy.
Section (c)(l) requires the accused to give 15 days notice of his inten-
tion to introduce evidence of past sexual behavior by the prosecutrix in order
to allow the government an opportunity to prepare to meet the evidence. How-
ever, the time restriction is lifted when the defendant can show that his fail-
ure to notice his intent was not due to a failure of diligence on his part.
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Section (c)(2) requires the motion to be accompanied by an offer of proof
in order to allow the government the opportunity to address the issues raised
in the motion and rebut them. The rule allows the court to decide the issue
of admissibility of the evidence prior to the satisfaction of a condition
precedent for the evidence.
ILLUSTRATION
Assume X seeks to introduce evidence of Y's past sexual misbehavior
through Z for the purposes of showing another source of semen. In order for
Z to testify relative to Y's past conduct, he must demonstrate that he was
present and had an opportunity to see, hear or participate in the past activ-
ity. He must also testify as to time and place of the incident, as well as,
identify who was present. For the purposes of the in chambers hearing, the
judge may presume that the witness will be able to lay a foundation for his
testimony and can therefore decide the issue of the admissibility of the tes-
timony without Z first having to testify about what he had seen.
The above rule requires the court to hold any hearing on the evidence
in chambers in order to preclude public disclosure of the proffered evidence
prior to a ruling on its admissibility. Once the court decides that the evi-
dence's probative value outweighs any prejudice associated with it, he may ad-
mit the evidence subject to the limitations the court may impose in an order
restricting the scope of examination and cross-examination of the alleged
victim.
CASES
RULE CASE NAME CITE CIRCUIT COURT
412 McLean v. U.S. 377 A.2d 74 (1977) D.C. Ct. App.
412 Driver v. U.S. 581 F.2d 81 (1978) 4th
412 U.S. v. Kasto 584 F.2d 268 (1978) 8th
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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 pur-
suant 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.
ELEMENTS
A. Except as provided for by law,
1. Privilege of witness,
2. Governed by principles of common law,
3. As interpreted by courts,
4. In light of reason, and
5. In light of experience
B. In civil cases
1. Where element of claim or defense,
2. Involves state law,
3. Privilege governed by state law.
COMMENTS
This rule provides for the application of the Federal Common Law regard-
ing privileges in nondiversity cases. In diversity actions where a claim or
defense is grounded in state law, the court is required to apply the law of
the state regarding privileges in which it is sitting. Erie R. Co. v.
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Tompkins. 304 U.S. 64 (1938). When a federal court chooses to apply state
law, it is applying the state law as a matter of federal common law. Thus
the rule of decision is not an application of state law, even though derived
from state law, but a matter of federal law.
The thrust of the rule is the privilege not to testify, that is, the
right of a witness, person, government, state, or political subdivision
thereof to decline to give evidence which is otherwise relevant, material and
probative. There are basically nine specific non-constitutional privileges
which the federal court must recognize. They are:
1) Required reports.
2) Lawyer-Client.
3) Psychotherapist-Patient.
4) Husband-Wife.
5) Communications to Clergymen.
6) Trade secrets.
7) Political vote.
8) Secrets of State and other official information, and
9) Identity of informer.
The Supreme Court recently limited the scope of the husband-wife privilege
to matters involving confidential communications between spouses. Trammel v.
U.S., U.S. 48, U.S.L.W. 4201 (1980). In that case, the court held that the
witness-spouse alone had the privilege and could provide adverse testimony
against the other spouse, but could not be compelled to do so. The holding
in Trammel is consistent with legislation enacted by Congress for the District
of Columbia. Title 14 D.C. Code 306. That provision holds:
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§14-306. Husband and wife
(a) In civil and criminal proceedings, a husband or his wife is competent
but not compellable to testify for or against the other.
(b) In civil and criminal proceedings, a husband or his wife is not
competent to testify as to any confidential communications made by one to the
other during the marriage. (Dec. 23, 1963, 77 Stat. 519, Pub. L. 88-241,
§ 1, eff. Jan. 1, 1964.)
Confidential communications between spouses are privileged and all pri-
vate conversations between a husband and his wife are presumed to be confiden-
tial, unless the circumstances and the subject of the communication indicate
otherwise. Where the message is overheard by or communicated to a third
party, the privilege does not attach.
Acts by a spouse do not become .confidential communications merely
because they were performed during coverture by one spouse in the presence of
the other. If the acts are clandestine, rather than open, the elements of
confidentiality and communication are present. U.S. v. Lewis, 140 U.S. App.
D.C. 40, 433 F.2d 1146, 1151 (1970).
Physician-Patient
This privilege is designed to encourage the patient to make a full
disclosure of his physical health in order for the doctor to make an accurate
diagnosis. This privilege extends beyond information received by the physi-
cian in his professional capacity. This information includes data obtained
through his observation and examination of the patient, as well as, all
inferences and conclusions to be drawn therefrom.
This privilege does not attach where the physician conducts an exami-
nation merely for testimonial purposes and not treatment, or where the
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examination occurred during an autopsy. Likewise, the privilege does not
attach wherever the doctor examines the patient for purposes other than
treatment.
The privilege may be waived by the patient or where the patient sues the
physician, the privilege is considered to have been waived. The privilege
may also be waived by the legal representatives of the decedent's/patient's
estate.
Entries in hospital records which reflect the diagnosis or treatment
plan are privileged. However, data such as the patient's name, address and
the time he checked into the hospital are not privileged.
Attorney-Client
This privilege belongs to the client if the communication relates to a
fact of which the attorney was informed:
a) By his client.
b) Without the presence of strangers.
c) For the purpose of securing
i) an opinion on law.
ii) legal services, or
iii) Assistance in some legal proceeding and not for the purpose of
committing a crime or tort.
The holder of the privilege must be or sought to be a client and the
person to whom the communication was made must be a member of the bar of a
court, or his subordinate.
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Additionally, the attorney must receive the communication in his capacity
as a lawyer and not as a participant in a business transaction, engineering
adviser, friend or accountant.
Priest-Penitent
In order for this privilege to be available, the priest, rabbi, or
clergyman must be a duly licensed, ordained or consecrated minister. Often
this privilege is further restricted to those clergymen authorized to perform
a marriage ceremony. A duly accredited practitioner of Christian Science
also qualifies for this type of privilege.
Informant
Effective law-enforcement often results from information provided by
citizens who do not wish to publicly involve themselves in the controversy.
Accordingly, this privilege was established to protect the identity of the
individual who provides the government with the information. However, where
the government charges the accused with a crime at which the informant was
present and/or participated in, the court may require the government to
disclose the identity of the informant if such a disclosure is necessary for
a fair trial.
CASES
RULE CASES CITE CIRCUIT COURT
501 Lewis v. U.S. 517 F.2d 236 (1975) 9th
501 U.S. v. DiCarlo 565 F.2d 802 (1977) 1st
501 Ryan v. Commissioner 568 F.2d 531 (1977) 7th
501 Gannet v. 1st Nat.
State Bank 546 F.2d 1072 (1976) 3rd
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RULE CASES CITE CIRCUIT COURT
501 U.S. v. Meagher 531 F.2d 752 (1976) 5th
501 U.S. v. Smith 533 F.2d 1077 (1976) 8th
501 Re September 1975
Grand Jury 532 F.2d 734 (1976) 10th
501 Herbert v. Laudo 99 S.Ct. 1635 Sup. Ct.
501 In re Ampicillin
Antitrust 81 F.R.D. 377 D.C.D.C.
501 U.S. v. Upjohn 600 F.2d 1223 (1979) 6th
501 U.S. v. Webb 615 F.2d 828 (1980) 9th
501 Riley v. Chester 612 F.2d 708 (1979) 3rd
501 U.S. v. Thomann 609 F.2d 560 (1979) 1st
501 U.S. v. Brown 605 F.2d 389 (1979) 8th
501 Johnson v. Ellis
& Sons 604 F.2d 950 (1979) 5th
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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.
ELEMENTS
A. Everyone is competent to be witness, unless prohibited by Rules.
B. In civil actions where element of claim or defense is governed by
state law, state law controls.
C. Incompetency based on religious beliefs, conviction of crime, or
mental imcompetency abolished except that determination on mental
competency is left to facts in each case.
COMMENTS
This Rule reflects the trend toward applying a broad standard for
measuring competency. The rule is that a witness is to be presumed to be
competent unless the facts before the court clearly show incompetency.
In diversity actions where an element of the claim or defense is governed
by State law, the law of the State will control the decision as to competency.
It is irrelevant if the witness was intoxicated, is a drug addict, is of
unsound mind, is an interested party in the litigation, has a criminal
conviction or has religious beliefs which may affect his testimony, he is
qualified to testify and any circumstance which affects him will go to the
weight of his testimony and not to its admissibility.
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It is not clear how the Rule affects situations in which the so-called
dead man acts would apply. It is clear that where the course of action cen-
ters around the application of state law, the state rule would apply. In
actions in which state law is not an issue, it would appear that testimony
regarding a decedent's estate would be received despite the lack of corrobor-
ating evidence as required by many state statutes. Any deficiencies or lack
of corroborating evidence would go to the weight of the testimony and not to
its admissibility.
Questions of competency most often surface in cases in which minor wit-
nesses are called to testify. If the minor can demonstrate that he knows the
difference between right and wrong or what an oath is, he will invariably be
qualified to testify. On the other hand, where the witness does not know the
difference between right and wrong, he may still be declared competent to tes-
tify. Minors may not be able to articulate answers regarding abstract con-
cepts and it is sufficient for the purposes of competency if the minor has
sufficient capacity for observation, recollection, communication and a con-
sciousness of the duty to tell the truth.
CASES
RULE CASES CITE CIRCUIT COURT
601 U.S. v. Van Meerbke 548 F.2d 415 (1977) 2nd
601 U.S. v. Awkard 597 F.2d 667 (1979) 9th
601 Bickford v. Mitchell
Co. 595 F.2d 540 (1979) 10th
601 Gannet v. 1st National
State Bank of N.J. 546 F.2d 1077 (1976) 3rd
601 U.S. v. Nick 604 F.2d 1199 (1979) 9th
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RULE
601
601
CASES
U.S. v. Mills
Huff v. White Motors
CITE
597 F.2d 693 (1979)
609 F.2d 286 (1979)
CIRCUIT COURT
9th
7th
RULE 602
LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced suf-
ficient to support a finding that he has personal knowledge of the matter.
Evidence to prove personal knowledge may, but need not, consist of the tes-
timony of the witness himself. This rule is subject to the provisions of
rule 603, relating to opinion testimony by expert witnesses.
ELEMENTS
A. No witness may testify unless:
1. Evidence introduced to show personal knowledge of witness.
2. May be established by witness or other competent evidence.
Note: Rule is further extension on hearsay rule.
B. Does not apply to experts under Rule 703.
C. Limited in situation involving character testimony under Rule
608.
COMMENTS
This Rule merely codifies the common law insistence upon the most reli-
able sources for evidence. The reference to Rule 703 is designed to eliminate
any apparent conflict between the two rules. Accordingly, an expert may tes-
tify relative to data he received in connection with the case although he has
no personal knowledge as to the correctness of the data. This testimony will
be received subject to the satisfaction of a condition of fact; the person
who compiled the data must testify as to how he acquired it. Likewise, a
witness may testify as to the authenticity and trustworthiness of a report
prepared in the regular course of business, where he is an expert in the area
in question and the data was collected in his presence.
CASES
CASES
U.S. v. Smyer
U.S. v. McGrath
CITE
596 F.2d 939 (1979)
613 F.2d 361 (1979)
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CIRCUIT COURT
10th
2nd
-------
RULE
602
602
602
602
CASES
U.S. v. Lyon
Chicago Title v.
U.S. Fidelity
U.S. v. Mandel
U.S. v. Maner
CITE
567 F.2d 777 (1977)
511 F.2d 241 (1975)
591 F.2d 1347 (1979)
611 F.2d 107 (1980)
CIRCUIT COURT
8th
7th
4th
5th
RULE 603
OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that he
will testify truthfully, by oath or affirmation administered in a form
calculated to awaken his conscience and impress his mind with his duty to do
so.
ELEMENTS
A. Before testifying, each witness must:
1. Declare he/she will truthfully testify by:
a. Oath, or
b. Affirmation, worded to
i) Awaken conscience and
ii) Impress witness with duty to testify truthfully.
COMMENT
This Rule affords the Court the flexibility necessary to deal with athe-
ists, religious adults and others who might balk at being sworn. No special
wording is necessary for an affirmation provided the language used is designed
to impress upon the individual the duty to tell the truth. For examples, in
Gillars v. United States, 87 U.S. App. D.C. 16, 182 F.2d 962 (1950), the Court
held that requiring the witness to solemnly affirm and declare that the tes-
timony he would give in the case would be the truth, the whole truth and
nothing but the truth, under penalty of perjury was sufficient.
%
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CASE
RULE
603
603
CASE
U.S. v. Fowler
Furtado v. Bishop
CIRCUIT COURT
5th
1st
CITE
605 F.2d 181 (1979)
604 F.2d 80 (1979)
RULE 604
INTERPRETERS
An interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation
that he will make a true translation.
ELEMENTS
A. Interpreters must qualify as experts.
B. Must swear to make true translation.
COMMENT
The decision as to the competence and fitness of an individual to be an
interpreter is left to the discretion of the Court. Accordingly, reversal of
an adverse ruling will result only upon a showing that the Court abused its
discretion. Because of the difficulty in acquiring the services of an inter-
preter for some obscure languages, the Court may use government employees,
relatives, or jurors (Thiede v. Utah, 159 U.S. 510, 519-20 (1895)) as inter-
preters. However, the question as to whether as interpreter is sufficiently
impartial to serve will depend upon the surrounding circumstance. Prince
v. Beto, 426 F.2d 875 (5th Cir. 1970) (husband of rape victim not an impartial
interpreter).
CASE
RULE
604
CASE
U.S. v. Looper
CITE
419 F.2d 1405 (1969)
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CIRCUIT COURT
4th
-------
RULE 605
COMPETENCY OF JUDGE AS WITNESS
The judge presiding at the trial may not testify in that trial as a wit-
ness. No objection need be made in order to preserve the point.
ELEMENTS
A. Judge presiding at trial may not testify.
B. No objection need be made to preserve error.
Note: Title 28, U.S. Code § 455 also limits Judge as witness.
COMMENTS
This Rule establishes a general disqualification of the Judge presiding
at a trial or hearing to appear as a witness in the same proceeding. This
rule eliminates the questions which would surface where the judge appeared as
a witness in the same proceeding over which he presided. These questions
concerned; who would rule on objections? Who would compel him to answer?
How would he weigh his own testimony? Accordingly, where recourse must be
had to the memory of the presiding judge to prove a fact occurring in a
proceeding at which he presided, the judge may be heard as a witness, but
cannot act as both judge and witness.
CASES
RULE
605
605
605
CASE
Downey v. U.S.
Merritt v. Reserve
Ins. Co.
Furtado v. Bishop
CITE
CIRCUIT COURT
91 F.2d 223 (1937) O.C. Circuit
34 Cal. App. 3d
858 (1973)
604 F.2d 80 (1979)
1st
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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 he is sitting as a juror.
If he 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 delibera-
tions or to the effect of anything upon his or any other juror's mind or emo-
tions as influencing him to assent to or dissent from the verdict or indictment
or concerning his mental processes in connection therewith, except that a
juror may testify on the question whether extraneous prejudicial information
was improperly brought to the jury's attention or whether any outside influ-
ence was improperly brought to bear upon any juror. Nor may his affidavit or
evidence of any statement by him concerning a matter about which he would be
precluded from testifying be received for these purposes.
As amended Pub. L. 94-149, § 1(10), Dec. 12, 1975, 89 Stat. 805.
ELEMENTS
A. At trial of case,
1. No juror may be called to testify in a case in which he/she
serves.
2. Other party may object out of presence of jury.
B. During inquiry into validity of indictment or verdict, no juror;
1. May not testify about deliberations.
2. May not testify about influence matters which affected mental
processes.
3. May testify about extraneous matter brought to jury's attention.
4. May testify about outside influences on juror.
C. No incompetent information proscribed by rule may be introduced by
affidavit.
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COMMENTS
The same considerations which prompted Rule 605 (regarding judges) are
equally persuasive when applied to jurors. It is unthinkable that a juror
would be allowed to deliberate in a case in which he also testified as a
witness. However, it would be in a rather unusual case in which this problem
would surface inasmuch as jurors who have specific knowledge about the case
are generally excluded.
Nevertheless, it is conceivable that a situation may surface during a
trial about which a juror has knowledge and accordingly could provide testimony.
For example, a juror with a special expertise in an area may be called upon
to sit in a case wherein his specialty is the focal point of the issues.
This juror, because of his expertise, has information or an opinion which
would be relevant to the proceedings. However, the rule prevents him from
testifying inasmuch as he cannot objectively judge his own credibility and
objectively weigh the value of his testimony.
606(b) - This rule preserves the traditional secrecy associated with
jury deliberations and precludes an examination into the basis for the jury's
verdict. To do otherwise would open up a pandora's box from which a trial
relative to the verdict would invaribly follow the trial on the merits. This
rule brings about a finality in verdicts.
The Rule allows the Court to hold inquiries about extraneous conduct
which may have improperly influenced the jury. To preclude this type of
inquiry would effectively block any investigations into jury tampering and
the like.
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The traditional view of the courts has been that jurors are incompetent
to impeach their verdict. However, another view is maintained that evidence
of extraneous influences upon the jurors may be received to impeach their
verdict. Accordingly, if eight of the twelve jurors signed an affidavit
indicating that they deliberately returned a verdict contrary to the evidence
and the Court's instructions, the court may hold that this example of jury
nullification was a proper exercise of the jury's discretion and will allow
the verdict to stand. Economon v. Barry-Pate Motor Co., Inc., 55 App D.C
143, 3 F.2d 84 (1925).
The intent behind the rule against a jury impeaching its verdict is to
insulate the process by which the jury arrives at its verdict. Consequently,
each component of the jury deliberations including votes, discussions, state-
ments, arguments, etc. are protected from disclosure. Such protection shields
the jurors from embarrassment when they return a "dumb verdict" in a case
which may have been beyond their competence in the first place.
Occasionally, the rule is indirectly violated in the publicized cases
where the news media confronts the jurors and seeks to prompt them to divulge
the thought process behind a verdict. This unfortunate occurrence only serves
to heighten the disappointment of the losing litigant when it is apparent from
the juror's comments that they were not listening to or did not understand the
evidence.
CASES
RULE
606(b)
606(b)
CASE NAME
U.S. v. DiAngelo
U.S. v. Duncan
CITE
598 F.2d 1002(1979)
598 F.2d 839(1979)
CIRCUIT COURT
5th
4th
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RULE CASE NAME CITE CIRCUIT COURT
606(b) U.S. v. Hockridge 573 F.2d 752(1978) 2d
606(b) U.S. v. Moten 582 F.2d 654(1978) 2d
606(b) U.S. v. Eagle 539 F.2d 1166(1976) 8th
606(b) U.S. v. Freedson 608 F.2d 739(1979) 9th
606(b) In re U.S. Financial
Litigation 609 F.2d 411(1979) 9th
RULE 607
WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the
party calling him.
ELEMENTS
A. Credibility of witness may be attacked by anyone including person
who called him/her.
Note:
B. Party no longer vouches for witness.
C. Prior inconsistent statement admissible under Rule 801(d)(l) as
substantive proof where:
1. Declarant available
2. Subject to cross-examination.
COMMENTS
This Rule changes the traditional view that a party vouched for the cred-
ibility of the witnesses it called and therefore could not impeach his wit-
nesses absent a showing of surprise. Even if the party asserted surprise and
requested the right to impeach the witness, the court had to sustain his claim
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of surprise before he was allowed to impeach the witness. See 14 D.C. Code
§ 102; Belton v. U.S.. 104 U.S. App D.C. 81, 259 F.2d 811 (1958).
This traditional Rule clashed with reality inasmuch as the party rarely
had a choice as to witnesses and was compelled to call any witness who had
evidence which could support his claim or defense. Under the present Rule, a
party no longer vouches for the credibility of his witness and may impeach
the witness without the court sustaining a claim of surprise.
In the past, when a witness was impeached, the statement or transcript
utilized to attack the credibility of the witness was considered to be hear-
say and therefore was admitted solely for the purpose of impeachment and the
jury was accordingly informed through a limiting instruction. Under Rule
801(d)(l) such a statement may be used for the purpose of impeaching the wit-
ness if the prior statement was given under oath subject to the penalty of
perjury. Moreover, the statement is admissible as substantive evidence and
the court does not need to give a limiting instruction.
CASES
RULE
607
607
607
607
607
607
607
CASE NAME
U.S. v. Benedetto
U.S. v. Wooldridge
U.S. v. Dixon
U.S. v. Alvarez
U.S. v. Harris
U.S. v. Pino
U.S. v. Pantone
CITE
571 F.2d 1246(1978)
572 F.2d 1027(1978)
547 F.2d 1079(1976)
548 F.2d 542(1977)
523 F.2d 172(1975)
608 F.2d 1001 (1979)
609 F.2d 678(1979)
CIRCUIT COURT
2d
5th
9th
5th
6th
4th
3rd
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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 his credibility,
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 his character for truthfulness or
untruthfulness (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 his privilege against self-incrimination when
examined with respect to matters which relate only to credibility.
ELEMENTS
A. Credibility of witness may be attacked or supported by:
1. Opinion evidence or reputation evidence; provided,
2. Evidence refers to character for veracity, and
3. Character for veracity attacked.
B. Specific instances of conduct of witness to support or negate claim
of veracity not subject to extrinsic proof, except:
1. Court has discretion to allow cross-examination of witness about
specific instances of conduct where bearing on veracity apparent;
or
2. Court may allow cross-examination about another witness about
whose character for veracity witness has just testified.
3. Conviction of crime is evidence admissible under Rule 609.
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C. Self-incrimination privilege not waived by witness1 testimony.
1. When examined with respect to matters relating only to cred-
ibility.
2. Applies to accused when a witness as well.
Note:
3. Limited also by Rule 403 relating to unfair prejudice and Rule
611 barring harassment.
COMMENTS
608(a) - This Rule should be read in conjunction with Rules 404(a) and
405(a). It allows the introduction of opinion or reputation evidence to
support a witness only after his character for truthfulness has been attacked.
Where the witness places his character for truthfulness in issue, his character
may be attacked by opinion or reputation evidence.
To the extent a witness' credibility is always in issue, a party may not
on that basis alone resort to the use of character testimony on the question
of truthfulness. Whether the presence of contradictory testimony constitutes
a comment upon the witness' character is an issue that should be resolved
according to the attending circumstances.
608(b) - This Rule precludes the use of extrinsic evidence relating to
specific incidents in order to support or attack the credibility of a witness.
However, the witness may be cross-examined relative to specific incidents* if
the incidents are probative on the question of truthfulness.
While the cross-examiner must be given wide latitude to conduct his
inquiry, he may not inquire into specific incidents which, although relevant
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and probative as to the general character of the witness in question, do
not bear on the issue of truthfulness. For example, in a law suit relating
to the dumping of PCBs in a navigable waterway, evidence that the witness in
question is a gambler or frequents houses of ill-repute may help establish
bad character, but it has no bearing on the issue of truthfulness. Accord-
ingly, the evidence should not be admitted. The fact that the witness is a
gambler is collateral to the issues at trial.
On the other hand, questions about collateral issues offered for impeach-
ment purposes may be permissible if the subject matter of the questions bear
directly upon the veracity of the witness in respect to the issues raised in
the trial.
ILLUSTRATION
In a trial for dumping PCBs in a navigable waterway, X, an unindicted co-
conspirator, is called to testify how he dumped the materials into the water-
way at the direction of Y. X may be cross-examined about a prior false report
charge on which he had elected to forfeit collateral. This procedure is al-
lowed not on the theory of impeachment by prior conviction, but in order to
impeach his veracity, inasmuch as the false report was an attempt to blame
others for a crime he had committed and he may be similarly motivated in the
instant trial. See, Kitchen v. U.S., 95 U.S App. D.C. 277, 221 F.2d 832 (1955)
When a witness testifies relative to the narrow issue of credibility and
character, he does not relinquish his privilege against self-incrimination.
Accordingly, if a witness elects to testify solely in regards to the credibil-
ity issue and his testimony does not venture beyond the scope of that inquiry,
he retains his privilege against self-incrimination. Therefore, the cross-
examiner may not seek to inquire about other criminal activity in which he
may have participated.
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CASES
RULE
608
608(a)
608(a)
608(a)
608(a)
608(a)
608(a)&(b)
608(a)
608(a)
608(b)
608(b)
608(b)
608(b)
608(b)
608(b)
608(b)
608(b)
608(b)
608(b)
608(b)
CASE NAME
U.S. v. Benedetto
U.S. v. Mandel
Naisbitt V. U.S.
U.S. v. Oliver
U.S. v. Medical
Therapy
U.S. v. Lechoco
U.S. v. Banks
Johnson v. Brewer
U.S. v. Harris
U.S. v. Cluck
U.S. v. DeVincent
U.S. v. Lustig
U.S. v. Yound
Perel v. Vanderford
U.S. v. Awkard
U.S. v. Werbrouck
U.S. v. Opager
U.S. v. Herman
U.S. v. Forsythe
U.S. v. Vannelli
IMPEACHMENT BY
CITE
571 F.2d 1246(1978)
591 F.2d 1347(1979)
611 F.2d 1350 (1980)
492 F.2d 943(1974)
583 F.2d 36(1978)
542 F.2d 84(1976)
475 F.2d 1367(1973)
521 F.2d 556(1975)
542 F.2d 1283(1976)
544 F.2d 195(1976)
546 F.2d 452(1976)
555 F.2d 737(1977)
567 F.2d 799(1977)
547 F.2d 278(1977)
597 F.2d 667(1979)
589 F.2d 273(1978)
589 F.2d 799(1979)
589 F.2d 1191(1978)
594 F.2d 947(1979)
595 F.2d 402(1979)
RULE 609
EVIDENCE OF CONVICTION OF CRIME
CIRCUIT COURT
2d
4th
10th
8th
2d
D.C. Cir
5th
8th
7th
5th
1st
9th
8th
5th
9th
7th
5th
3d
3d
8th
(a) General rule. For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime shall be admitted if
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elicited from him or established by public record during cross-examination
but only if the crime (1) was punishable by death or imprisonment in excess
of one year under the law under which he was convicted, and the court deter-
mines that the probative value of admitting this evidence out-weighs its
prejudicial effect to the defendant, or (2) involved dishonesty or false
statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admis-
sible 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 sup-
ported by specific facts and circumstances substantially outweighs its pre-
judicial 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 pro-
vide the adverse party with a fair opportunity to contest the use of such
evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evi-
dence 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 equiva-
lent procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is gen-
erally 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 cred-
ibility 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.
ELEMENTS
A. Credibility of witness may be attacked by evidence of prior criminal
conviction, if:
1. Admitted by witness.
2. Established by public record on cross-examination.
Provided:
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1. Crime was punishable by death or imprisonment in excess of one
year, and not unduly prejudicial to defendant witness.
2. Involved dishonesty or false statement regardless of punishment.
3. Prejudice to mere witness not important.
4. Court has discretion to exclude.
B. Evidence of conviction not admissible if
1. Over 10 years has elapsed since
a. Date of conviction, or
b. Release from confinement;
c. Whichever is later.
2. Provided, court may find that the probative value substantially
outweighs its prejudicial effect and may allow use.
a. Finding must be supported by facts and circumstances and
b. Be in the interest of justice.
3. Evidence of conviction in excess of 10 years not admissible
unless
a. Proponent gives to adverse party notice
(1) Written
(2) Sufficiently in advance
b. Fair opportunity for contest of evidence.
C. Evidence of conviction not admissible, if
1. Subject of pardon, annulment, certificate of rehabilitation,
or other equivalent procedure
a. Based on finding of rehabilitation, and
b. Person has no subsequent felony convictions, or
2. Certificate of pardon based on a finding of innocence of
crime.
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D. Evidence of juvenile adjudications not admissible under Rule unless
1. Used in criminal case, and
2. Of a witness other than accused, and
3. Conviction would be admissible under Rule 609(a), and
4. Court is satisfied evidence of conviction is necessary for
fair determination of issue of guilt or innocence.
Note: Juveniles may be impeached for bias, etc., as any other
witness.
E. Pendency of appeal does not affect admissibility of conviction.
Evidence of pendency of appeal may be admissible.
COMMENTS
This Rule was modeled, in large measure, after 14 D.C. Code 305, which
was amended by Congress in 1970. The provision allows the use of a prior
felony conviction to impeach a witness' credibility if the witness acknow-
ledges the conviction or the party has a certified copy of the prior convic-
tion which can be introduced in evidence. The only restriction upon the
use of prior felony convictions is the discretion of the Court to exclude the
conviction where its probative value is far outweighed by its prejudicial
effect.
ILLUSTRATION
Assume X is on trial for dumping hazardous substances in an apple
orchard. X takes the stand in his own behalf and the government seeks to
impeach him with prior felony convictions for rape, murder and sale of a
controlled substance. The court may exclude the murder and rape convictions
inasmuchas the jury may conclude that X is a bad person and needs to be put
away irrespective of whether he committed the violation charged. As to the
narcotics violation, the court should allow the government to impeach the
accused inasmuch as the crime is not so heinous that the jury will be unduly
prejudiced against the accused.
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Where the accused has been convicted of the same offense on a prior occa-
sion, it is highly provative as to whether X is lying when he denies wrongdoing
in the instant case and accordingly, the prior conviction is very relevant as to
issue of credibility. On the other hand, the use of such a conviction may lead
the jury to conclude that if he did it the first time, he must be guilty now.
The court should take care to limit the number of convictions the prose-
cutor can use to impeach the accused where the accused has several convictions
for the same offense with which he is charged. Additionally, the court should
be asked to give a cautionary instruction as to the limited use of the convic-
tion (credibility). This latter procedure should be followed wherever the
accused is impeached.
Where the witness is someone other than the accused, the need to avoid
the use of unduly prejudicial convictions is minimized. Accordingly, counsel
may use almost any felony conviction available for impeachment.
In situations in which the conviction to be used is a misdemeanor, the
crime may not be used unless it involves dishonesty or false statement. Under
the federal code, a misdemeanor is any crime which carries a penalty of one
year imprisonment or less.
Occasionally, Courts have allowed the use of misdemeanors not involving
dishonesty or false statements (See Purant v. United States, 292 A.2d 157
(D.C. App. 1972)) where the accused is charged with an offense for which he
has prior convictions. The rationale used for this approach is that what
better test of credibility than to inform the jury that the defendant, who
denies wrongdoing, has committed similar acts in the past.
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Whenever counsel desires to use a prior conviction to impeach the
accused, he should advise the court prior to the defendant testifying.
That will enable the court to rule in advance on the admissibility of the
conviction and will serve to advise the accused that he may assume the wit-
ness stand only at his peril.
609(b) - This Rule eliminates the problem of staleness by establishing
ten years as the standard for determining the usefulness of a conviction. In
order to use a conviction for impeachment purposes, less than ten years must
have elapsed since the conviction or the release from confinement relative
to any sentence imposed.
ILLUSTRATION
Assume X is on trial in Aug. 1981 for dumping hazardous materials in the
Potomac River. X has taken the stand and has denied wrongdoing. The Govern-
ment seeks to impeach X with two prior convictions for rape and murder. X
was convicted of rape in 1952 and was placed on probation by the court.
Thereafter X was convicted of murder in 1953 and received a twenty year sen-
tence, from which he was released from confinement in August 1973. The rape
conviction may not be used; however, the murder conviction may be used to
impeach X.
Congress declined to follow its earlier enactment 14 D.C. Code 305(b),
wherein the ten year period commenced following the expiration of any proba-
tion or period of parole. The failure of Congress to include such a provi-
sion suggests that the term confinement may not be expanded to include
supervision on parole or probation.
Where the conviction is older than ten years, it may still be utilized
where the Court determines that the probative character of the conviction far
outweighs any prejudicial effect from using it. It is likely that a similar
conviction for the offense the accused is on trial for would fall within
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the scope of the rule. However, if a party desires to use such a stale
conviction, he must give written notice to the adverse party in order to
enable him to contest its admission.
609(c) - This provision bars the use of a conviction for impeachment
purposes where the conviction is the subject of a pardon, annulment or
certificate of rehabilitation. However, if subsequent to the pardon,
annulment or certificate of rehabilitation, the witness is convicted of a
felony, the earlier convictions may be used. The theory behind requiring a
felony as opposed to a misdemeanor to resuscitate the earlier conviction is
that a subsequent misdemeanor offense is insufficient to rebut a finding of
rehabilitation. In the situation in which the pardon or annulment of the
earlier conviction was based on a finding of innocence, it cannot be used
under any circumstances.
609(d) - This provision bars the use of juvenile adjudications unless
the court holds that
a) the conviction would be admissible against an adult to attack
credibility, and
b) the evidence is necessary for a fair determinate of the issue of
guilt or innocence.
The reasons for excluding juvenile adjudications range from recognition
of the diminished capacity of a juvenile for understanding the consequences
of his acts to noting the reduced burden of proof regarding juvenile criminal
actions. The rule provides the court with the discretion to apply various
policy factors to the circumstances of the case in deciding whether to allow
the juvenile conviction to be used. This exercise of discretion by the court
is disallowed in those cases wherein the accused is the witness.
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609(e) - The fact that the witness has appealed his conviction does not
bar the use of the conviction to impeach him. The law presumes the conviction
was the correct verdict and accordingly allows its use even though an appeal
has been filed. To view a conviction otherwise would suggest that a convicted
defendant should not commence serving his sentence until after his appeals
had been exhausted.
CASES
RULE
609(a)
609(a)
609(a)
609(a)
609(a)
609(a)
609(a)
609(a)
609(b)
609(b)
609(b)
609(b)
609(b)
609(b)
609(b)
609(c)
609(c)
609(c)
609(d)
CASE
U
U
U
U
U
U
U
U
U
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
NAME
v.
v.
v".
v.
v.
v.
v.
v.
v.
Snyder
U
U
U
U
U
U
U
U
U
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
v.
v.
v.
v.
v.
v.
V.
V.
V.
Fear we 11
Scott
Toney
Larsen
Vasilios
Boyce
Vanderbosch
Cook
Cook
v. Coiner
Edwards
Town send
Cavender
Mahler
Mull ins
Moore
Wiggins
TrejoZambrano
Harvey
CITE
595
592
615
596
598
611
610
608
608
510
549
555
578
579
562
556
566
582
588
-89-
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
?2d
.2d
.2d
.2d
771(1978)
1139(1979)
277(1980)
347(1979)
387(1979)
530(1979)
95(1979)
1175(1979)
1175(1979)
224(1975)
362(1977)
152(1977)
528(1978)
730(1978)
999(1977)
479(1977)
944(1978)
460(1978)
1201U9781
CIRCUIT COURT
O.C.Cir.
10th
5th
9th
5th
4th
2nd
9th
9th
4th
5th
7th
4th
2nd
5th
10th
5th
9th
8th
-------
RULE CASE NAME CITE CIRCUIT COURT
609(d) U.S. v. Ashley 569 F.2d 975(1978) 5th
609(d) U.S. v. Lind 542 F.2d 598(1976) 2nd
609(d) U.S. v. Decker 543 F.2d 1102(1976) 5th
609(e) U.S. v. Shaver 511 F.2d 933(1975) 4th
609(e) U.S. v. Rose 526 F.2d 745(1975) 8th
609(e) U.S. v. Vanderbosch 610 F.2d 95(1979) 2nd
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 of their nature
his credibility is impaired or enhanced.
ELEMENTS
A. Evidence of beliefs or opinions of witness re religion not admis-
sible
1. to enhance or impair credibility, except
2. to show bias or interest,
3. where religion is a central issue of case.
COMMENTS
The Rule is designed to prevent a witness from enhancing his credibility
by including religious dogma in his testimony. The Rule does not preclude
introduction of evidence of religious beliefs to show bias, prejudice, or
«
interest.
ILLUSTRATION
Z church is being sued for violating an easement by blocking a right of
way through an alley. X, who lives in the neighborhood, is called to testify
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on behalf of the church. X, although not a member of the church, is a member
of the same denomination whose members believe in making sacrifices for the
church leader. X testifies in support of the church's position. On cross-
examination, Y desires to inquire into X's religious beliefs in order to
show bias in favor of the church. Such an examination appears to be outside
the coverage of Rule 610. On the other hand, if X was an atheist and was
testifying on behalf of the church, Y could not quere him about his beliefs
in order to demonstrate that he is less than a moral man. This would be the
only basis for such an examination of X inasmuch as his credibility would
otherwise be enhanced regarding the church. Likewise, Z's church could not
quere him regarding religion in order to enhance his credibility by demon-
strating that he is anti-church.
CASES
CASE NAME CITE CIRCUIT COURT
Virgin Island
v. Petersen 553 F.2d 324 (1977) 3rd
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 ascertain-
ment 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 his
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.
ELEMENTS
A. Court controls mode and order of interrogating witnesses and
presentation of evidence to
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1. Make presentations effective,
2. Avoid undue consumption of time, and
3. Protect witnesses from harassment or embarrassment.
B. Cross-examination should be limited to
1. Subject matter of direct, or
2. Matter affecting credibility.
3. Court may permit inquiry into additional matters as if on direct
examination.
4. Care should be taken that Fifth Amendment rights are not affected
by scope of cross-examination.
C. Leading questions should not be used on direct examination, except
1. Where necessary to develop testimony of
a. Hostile witnesses
b. Child or adult with communication problems
(1) Mental
(2) Language
2. On cross-examination
3. Where party calls
a. A hostile witness.
b. An adverse party.
c. A witness identified with an adverse party.
COMMENTS
Rule 611(a) is designed to give the trial judge wide latitude in control-
ling the presentation of evidence. To provide otherwise would unduly restrict
the court in situations where the exercise of sound discretion is warranted,
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such as; the calling of witnesses out of turn or allowing the introduction
of evidence subject to a later showing of relevance. While it is true that a
court may not limit cross-examination on a pertinent subject at the outset, it
may after substantial exploration of the subject by counsel, limit further
examination where it appears the examination has become unduly protracted.
Additionally, the court may allow reasonable repetition of questions in order
to clarify the answers or to test credibility. Cross-examination is a
right, not a privilege. It is often said that control of cross-examination
is within the discretion of the court. However, it is only after counsel has
had ample opportunity to exercise the right of cross-examination that the
discretion of the court becomes operative.
Rule 611(b), while limiting the scope of cross-examination to matters
covered on direct examination or affecting the credibility of the witness
(impeachment), grants the court the discretion to permit inquiry into matters
not covered on direct examination where their relevance seems apparent.
ILLUSTRATION
Assume X is on trial for the importation of a controlled substance for
sale. Y, a government agent, testifies on direct examination that X had 40
capsules of the controlled substance on his person at the time of his arrest.
Z, X's attorney, attempts to cross-examine Y relative to possible personal
use of the capsules by X in order to show that X did not intend to sell the
drugs.
Z: Agent Y. You are familiar with the manner in which addicts
use , are you not?
Y: Yes.
Z: In fact, the court has accepted you as an expert in this
area, has it not?
Y: Yes.
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Z: How long would it take an addict to use 40 capsules of
Prosecutor: Your Honor, I would object to this question inasmuch as it
exceeds the scope of the direct examination.
Court: Objection sustained.
Z: Your Honor, may I make a proffer?
Court: You may.
Z: The fact that X possessed the amount of , it is likely
that such a quantity was intended for his own use. If that
is the case, it negates the inference that this is a large
quantity of drugs and it further casts doubt on the claim
that X was importing the drugs for sale.
Court: Objection overruled.
In a criminal case where discovery is limited, counsel often cannot per-
ceive in advance the facts which wil.l unfold at trial. Accordingly, in many
instances he will learn of certain facts for the first time as they are pre-
sented on direct examination. Faced with this handicap, his cross-examination
will often be exploratory in order to uncover facts intentionally suppressed
by his opponent. He should therefore be allowed reasonable latitude in con-
ducting the cross-examination even though he cannot state with precision the
object which his examination will develop. At this point his examination may
be proceeding on a hunch or suspicion. However, a fishing expedition without
apparent purpose should be discouraged. United States v. Smoot, 150 U.S. App.
D.C. 130, 463 F.2d 1221 (1972).
ILLUSTRATION
Assume X is a witness for the government in a criminal prosecution for
"midnight dumping". X claimed on direct examination that he saw Y drive his
truck into a field at 11:59 p.m. and dump the hazardous materials. Z, Y's
attorney, seeks to discredit this testimony and cross-examines X relative to
his vision, whether he drinks, whether he was drinking that night, etc. Even
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though the above questions may not have been asked on direct, they clearly go
to the weight of X's testimony and should be allowed.
Rule 611(c) continues the ban against the use of leading questions on
direct examination. The use of suggestive questions in a fact finding pro-
ceeding could only result in a record unduly flavored toward the offending
party. However, such questions are permitted where the witness is identified
with the other party and accordingly is not apt to be responsive to an adverse
counsel. Leading questions may be useful on direct and therefore permitted
by the Rule in a number of circumstances:
a) A hostile witness.
b) A child witness.
c) A mentally retarded witness.
d) A witness with a communication problem.
e) An unresponsive or reluctant witness.
f) Where the matter to which the question related is not in dispute,
or
g) Where a witness' memory has failed.
The court in its discretion, may allow the use of leading questions on
direct examination in the above situations. However, counsel should advise
the court beforehand as to the reasons why he desires to ask leading ques-
tions, if the reasons are not readily apparent. In this manner, it will be
clear from the record that the court exercised its discretion, as opposed
to a silent record which carries no assurance that the court exercised any
discretion.
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CASES
RULE CASE NAME
611(a) U.S. v. Gardner
611(a) U.S. v. Jensen
611(a) U.S. v. Harris
611(a) U.S. v. Porter
611(a) Wright v. S.W.
Bank
611(a) U.S. v. McRae
611(a) U.S. v. Barron
611(b) U.S. v. Pantone
611(b) U.S. v. Hitchmon
611(b) U.S. v. Park
611(b) U.S. v. Segal
6ll(b) U.S. v. Drake
611(b) U.S. v. Demchak
611(b) U.S. v. Franklin
611(b) U.S. v. Hickey
611(c) Maggipinto v.
Reichman
611(c) U.S. v. Shoupe
611(c) U.S. v. Littlewind
611(c) U.S. v. Construction
Aggregates
CITE
611 F.2d 770(1980)
608 F.2d 1349(1979)
542 F.2d 1283(1976)
544 F.2d 936(1976)
555 F.2d 661(1977)
593 F.2d 700(1979)
594 F.2d 1345(1979)
609 F.2d 675(1979)
609 F.2d 1098(1979)
525 F.2d 1279(1976)
534 F.2d 578(1976)
542 F.2d 1020(1976)
545 F.2d 1029(1977)
598 F.2d 954(1979)
596 F.2d 1082(1979)
607 F.2d 621(1979)
548 F.2d 636(1977)
551 F.2d 244(1977)
570 F.2d 626(1978)
CIRCUIT COURT
9th
10th
7th
8th
5th
5th
10th
3rd
5th
5th
3rd
8th
5th
5th
1st
3rd
6th
8th
6th
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 his
memory for the purpose of testifying, either—
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(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is
necessary in the interest of justice, an adverse party is entitled to have
the writing produced at the hearing, to inspect it, to cross-examine the wit-
ness 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.
ELEMENTS
A. Except as provided for in criminal proceedings by Jencks Act, 18
U.S.C. 3500, writing used by witness to refresh memory
1. For purpose of testifying or
2. Before testifying, if court determines interest or justice
requires,
3. Adverse party entitled to writing produced at hearing to
a. Inspect.
b. Cross-examine witness on and
c. To introduce relevant portions into evidence which relate to
testimony of witness.
4. Court may delete irrelevant material from writing prior to use.
a. Objections to deletion must be preserved for appeal.
b. Sealed for appellate review.
B. Where writing not produced according to order, Court may in criminal
cases:
1. Strike testimony.
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-------
2. Declare mistrial.
C. Court may in civil cases where writing not produced:
1. Strike testimony.
2. Issue contempt citation.
3. Dismiss case.
4. Make adverse findings on issues against offender.
5. In civil cases issue any order Justice requires.
COMMENT
This Rule, to a limited extent, parallels the Jencks Act (18 U.S.C.
§3500) in that it requires the disclosure of a writing to an adverse party
for purposes of cross-examination or for introduction into evidence. The
scope of the Rule substantially differs from the Jencks act in that the lat-
ter act is more limited in its application.
a) The Jencks act covers the statement of government witnesses, whereas
the Rule covers statements of all witnesses or any writing, whether or not it
is the statement of the witness, if the writing is used to refresh recollec-
tion. However, it should be noted that United States v. Nobles, 422 U.S. 225,
(1975), provided for reverse Jencks and vested its application in the discre-
tion of the trial judge. Nevertheless, it is still limited to statements of
the witness and does not cover any writing in the possession of the accused.
Inasmuch as anything can be used to refresh recollection, any writing
used by the witness to refresh his memory before or while testifying may be
ordered produced. Attorneys may, as a matter of course, ask all witnesses on
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cross-examination whether they read or used any document or writing in antic',
pation of testifying and ask the court for production of the writing if the
question is answered in the affirmative.
Where a writing is used to refresh the recollection of the witness at
trial, traditional rules of evidence have required counsel to display the
exhibit to opposing counsel prior to showing it to the witness. The Rule
adds nothing to this procedure.
b) A Jencks statement must be produced only after the witness who authored
it has testified (as a matter of practice in most federal courts, the state-
ment is turned over at the start of trial or before the witness testifies).
A statement under Rule 612 may be ordered produced even if the witness, who
used it to refresh his recollection, did not authorize it.
ILLUSTRATION
Assume X, an EPA investigator, investigated an environmental offense
with Y, a state employee. Y prepares a report relative to the incident and
provides the prosecutor with a copy of the report. Nine months later, X is
subpoenaed to testify at the trial. In preparation to testify, X reads his
notes and Y's report. Thereafter, X is called as a witness on behalf of the
government. The notes are producible under the Jencks Act and the report by
Y is producible under Rule 612 inasmuch as it was used by X to refresh his
memory prior to testifying.
c) The Jencks Act applies only to criminal cases, the Rule applies to
all proceedings. There may be instances, such as in the above illustration,
where both the statute and the Rule have application. As stated earlier, in
order for the rule to apply, the writing involved need not be one prepared by
a witness, but it may be an obscure report prepared by a clerk within the
agency. Although a writing may have been utilized by a witness in order to
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prepare himself for trial, in order to be admissible it must also be relevant
and in accord with the other rules of evidence.
d) The Rule requires that the writing be actually utilized by the wit-
ness to refresh his recollection in order to be admissible; the Jencks Act
does not have such a requirement for its admissibility.
If a party contends that the document is not related to his witness' tes-
timony and seeks to withhold disclosure, he may present the document to the
Court, in camera, for a determination as to its relevance to the witness1
testimony. If the court determines that a portion of the writing is relevant,
it may order the disclosure of the relevant portion and return to the submit-
ting party the remainder of the writing.
Where a party fails to produce a writing under this Rule, the Court is
empowered to impose sanctions. Rule 612, to the extent it requires production
of documents used to refresh the recollection of the witness in preparation
for trial, departs from the traditional rule which only requires disclosure
where the witness uses the document to refresh his recollection while testify-
ing. See McGill v. United States, 106 U.S. App. D.C. 136, 270 F.2d 329 (1959),
CASES
RULE
612
612
612
612
CASE NAME
U.S. v. Smith
U.S. v. Boyd
U.S. v. Rubin
U.S. v. Jimenez
CITE
521 F.2d 957(1975)
606 F.2d 792(1979)
609 F.2d 51(1979)
613 F.2d 1373(1980)
CIRCUIT COURT
D.C.Cir.
8th
2nd
5th
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RULE 613
PRIOR STATEMENTS OF WITNESSES
(a) Examining witness concerning prior statement. In examining a wit-
ness concerning a prior statement made by him, whether written or not, the
statement need not be shown nor its contents disclosed to him 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 him
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).
ELEMENTS
A. When examining a witness concerning his/her prior oral or written
statement, witness
1. Need not be shown statement, except
2. Statement must be shown to opposing counsel on request.
B. Extrinsic evidence of prior inconsistent statement not admissible,
unless
1. Witness afforded opportunity to
a. Explain or deny statement, and
b. Opposite party given opportunity to interrogate, or
c. Interests of justice otherwise requires.
d. Rule not applicable to admissions of party opponent [Rule
801(d)(2)].
COMMENTS
Rule 613(a) modifies the traditional rule to the extent that it elimi-
nates the requirement that the witness be afforded an opportunity to examine
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the prior inconsistent statement before counsel will be allowed to impeach
him with the statement. See Troublefield v. United States, 125 U.S. App.
D.C. 339, 372 F.2d 912 (1966). Likewise, the traditional rule requiring
counsel to bring to the witness1 attention the time, place, persons and
circumstances involving prior oral statements has been modified by the rule
to the extent that such a foundation is not necessary for counsel to impeach
the witness. See Gordon v. Thomas, 63 App. D.C. 148, 70 F.2d 752 (1934).
Under the rule, counsel must produce the statement on demand by opposing
counsel. However, he need not afford the witness an opportunity to examine
the statement prior to impeachment. Under Rule 16(a)(l)(A) of the Federal
Rules of Criminal Procedure, a defendent is entitled to see a copy of his
prior statements. Likewise, under Rule 26(b)(3) of the Civil Rules, a wit-
ness is entitled to see his own statement. This Rule does not change the
above rules; however, where the accused testifies as to a collateral matter
which was irrelevant to the governments' case and where the statement by the
accused relative to the matter was not producible under 16(a)(l)(A) of the
Federal Rules of Criminal Procedure, Rule 613 may apply. In order for Rule
26(b)(3) of the Federal Rules of Civil Procedure to apply, the witness cannot
wait until he is about to be impeached under Rule 613 to apply for a copy of
his statement.
Under Rule 613(b), extrinsic evidence concerning the prior inconsistent
statement must be shown to the witness and the witness be allowed to explain
or deny the evidence before it may be admitted against him. Additionally,
his attorney, unless the interests of justice require otherwise, must be
afforded an opportunity to examine the witness relative to the statement
before it may be admitted into evidence.
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ILLUSTRATION
Assume X has testified relative to the subject matter of the case and is
undergoing cross-examination by Y. Y has a written statement of X which was
taken a short time after the cause of action arose. The statement is incon-
sistent with X's present testimony and Y is about to impeach him with the
prior statement. Y asks X whether he made a prior inconsistent statement and
queres him relative to the inconsistent statement. X denies ever making the
statement. Up to this point, X has not been shown the statement. Z, X's
attorney, asks to see the statement and Y produces it for him.
Y cannot introduce the statement into evidence at this point until he
has shown the statement to X. If he does not show the statement to X he must
accept X's answers. Y shows the statement to X and affords him the opportun-
ity to explain the statement. X attempts to explain the statement and recon-
cile it with his present testimony. Y still cannot offer the statement into
evidence until Z has had an opportunity to examine X relative to it. After
Y's cross-examination of X, Z conducts his re-direct examination of X and
queres him relative to the statement. The statement can now be admitted into
evidence (subject to the prohibition against offering exhibits into evidence
during your opponent's case).
CASE NAME
U.S. v. Silva
U.S. v. Shoupe
U.S. v. Bibbs
NLRB v. Vangas, Inc,
U.S. v. Smith
U.S. v. Erb
CITE
611 F.2d 78(1980)
548 F.2d 636(1977)
564 F.2d 1165(1977)
517 F.2d 747(1975)
605 F.2d 839(1979)
596 F.2d 412(1979)
CIRCUIT COURT
5th
6th
7th
9th
5th
10th
RULE 614
CALLING AND INTERROGATION OF WITNESSES BY
CQURT
(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.
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(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 by it may be made at the time or at the next available
opportunity when the jury is not present.
ELEMENTS
A. Court may call witnesses to be cross-examined by all parties, either
1. On its own motion.
2. On suggestion of a party.
B. Court may interrogate any witness
1. Called by itself.
2. Called by any party.
C. Objections may be made to Court's
1. Calling witness, or
2. Interrogating witnesses, either
a. At the time of interrogation, or
b. At next available opportunity when jury is not present.
COMMENTS
The calling of witnesses by the Court is a tradition in American juris-
prudence. The procedure has its origins partly from the past practice of
disallowing a party to impeach his witness. By requesting the Court to call
the witness, the party can avoid having the witness associated with him and
may derive the benefits related to cross-examination of the witness. Addi-
tionally the Court has the right to call witnesses on its own initiative
where the Court is of the view that the witness may contribute to a deter-
mination of the issues in the matter. Inasmuch as a party is under no
obligation to summon an adverse witness to the stand, the power of the Court
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to call a witness and to permit counsel to cross-examine the witness goes far
in assuring the complete presentation of the facts.
Rule 614(b) permits the Court to interrogate witnesses it called or
question witnesses summoned by the parties. This role by the Court in
judicial proceedings has had a long tradition in American jurisprudence and
is a well recognized right of the Court. By questioning the witnesses, the
Court may help develop the Record and make the matters in evidence much
clearer to the jurors. However, caution should be exhibited by the Court in
order to insure that it does not convey to the jury its impressions or views
of the case and the merits of each party's position. Any views expressed by
the Court relative to the evidence should be made out of the presence of
the jury. While the Court may comment on the evidence to the jury, it may
not add to or distort any of the facts in the case. However, because of
possible prejudicial consequences, the Court should exercise restraint and
caution before interrogating the witness.
Where the questioning goes beyond clarification and opens up new areas
of inquiry or gives undue weight to certain matters in the case, reversal of
a favorable verdict becomes more likely. Where the questioning is designed
to elicit favorable answers for the prosecution, it is advisable that the
court err on the side of abstention and decline to question the witness.
Where the Court seeks to have two or more questions asked, the Court should
call counsel to the bench and advise them of the Court's purpose and suggest
that counsel develop the line of questioning in front of the jury. The mere
fact that the Court could examine the witness more skillfully than counsel is
no reason to breach the veil of impartiality and intervene.
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If the Court improperly intervenes and examines the witness in such a
manner as to indicate his views or position, affected counsel should object
to the Court's action out of the presence of the Jury. Additionally, where
the Court, during examinations by counsel or by the Court, makes facial
expressions, gestures, or intonations which appear to reflect its thinking,
counsel should make a full and accurate record out of the jury's presence
the gestures or actions of the Court deemed to be detrimental. Furthermore,
Counsel should request the Court to emphatically instruct the jury to
disregard any expressions by the Court in order to remove any prejudicial
taint.
CASES
RULE CASE NAME
614(a) U.S. v. Herring
614(a) U.S. v. Karnes
614(a) U.S. v. Leslie
614(b) U.S. v. Vega
614(b) U.S. v. Cooper
614(b) Moore v. U.S.
614(b) U.S. v. Nelson
614(b) U.S. v. Latimer
614(c) U.S. v. Daniels
614(c) U.S. v. Vega
CITE
CIRCUIT COURT
602 F.2d 1220(1979)
531 F.2d 214(1976)
542 F.2d 285(1976)
589 F.2d 1147(1978)
596 F.2d 327(1979)
598 F.2d 439(1979)
570 F.2d 258(1978)
548 F.2d 311(1977)
572 F.2d 535(1978)
589 F.2d 1148(1978)
5th
4th
5th
2nd
8th
5th
8th
10th
5th
2nd
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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, or (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 pre-
sentation of his cause.
ELEMENTS
A. Court may exclude witnesses to prevent them from hearing testimony.
1. On its own motion, or
2. Motion of any party,
B. Exclusion not authorized where person is
1. A party.
2. Representative of party not a natural person.
3. Person essential to presentation of case as designated by party's
attorney.
COMMENT
This rule requires the exclusion of witnesses in a proceeding by the
Court upon the request of a party and it allows the Court to exclude wit-
nesses upon its own motion. The rule makes allowances for parties who are
natural persons (e.g., defendant in criminal cases) and therefore must be
afforded the Right of Confrontation. In the case of a party who is not a
natural person, the rule allows the party to be represented at counsel's
table by designated agents. Additionally, the rule provides for counsel to
have available at counsel's table a person whose assistance is necessary for
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the effective presentation of the case. This usually occurs where the prin-
cipal law enforcement officer assigned to the case remains in the courtroom
to assist counsel. It is viewed that the agent's familiarity with the case
will greatly aid the prosecutor's presentation of all the relevant facts to
the Court and Jury.
The criticism leveled at the practice of allowing the police officer to
remain in the courtroom is that often he is the principal witness against the
accused and if he is inclined to commit any chicanery (as many defendants
contend), he may dovetail his testimony to coincide with the other government
witness. The practice has been much abused despite the historical support
for it. In one district, the District of Columbia Circuit, the United States
Attorney's office regularly prosecutes serious cases without the presence of
an agent at counsel's table. With few exceptions, the practice of allowing a
police officer to remain in the courtroom continues because it has always
been done, rather than because of some compelling necessity for it. Neverthe-
less, the rule sanctions its use and accordingly the prosecutor is entitled
to the services of an assistant, including perhaps the principal witness, at
trial.
CASES
RULE CASE NAME CITE CIRCUIT COURT
615 U.S. v. Holmes 594 F.2d 1167(1979) 8th
615 U.S. v. Boyer 574 F.2d 951(1978) 8th
615 U.S. v. Warren 550 F.2d 219(1977) 5th
615(1) Varlack v. SWC
Carribean 550 F.2d 171(1977) 3rd
615(2) Curlee Clothing Co.
v. NLRB 607 F.2d 1213(1979) 8th
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RULE CASE NAME
615(2) Varlack v. SWC
Carribean
615(2) U.S. v. Auten
615(2) U.S. v. Cueto
615(2) U.S. v. Causey
615(2) U.S. v. West
615(3) Morvant v.
Construction
Aggregates
615(3) Cooper v. U.S.
CITE
550 F.2d 171(1977)
570 F.2d 1284(1978)
611 F.2d 1056(1980)
609 F.2d 777(1980)
607 F.2d 300(1979)
570 F.2d 626(1978)
594 F.2d 12(1979)
CIRCUIT COURT
3rd
5th
5th
5th
9th
6th
4th
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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, his 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) helful to a
clear understanding of his testimony or the determination of a fact in
issue.
ELEMENTS
A. If not an expert, opinion and inference testimony of lay witness is
limited to opinions or inferences
1. Based on perception of witness.
2. Helpful to clear understanding of his testimony or determination of
fact in issue.
COMMENTS
This rule allows lay witnesses to give an opinion or draw inferences
from facts observed or perceived by the witness. If it appears that the
witness has no personal knowledge of the facts and the questions posed do not
disclose the facts, the witness is incompetent to testify thereon inasmuch as
he does not have sufficient facts to base a reliable opinion on the subject.
The theory behind the rule is that often lay people are competent to
formulate an opinion as to whether the conduct of an individual, for example,
is normal or abnormal. When lay witnesses observe symptoms of mental disease,
they are witnessing conduct which may be characterized by departures from
normal conduct. Normal conduct and abnormal conduct are matters of common
knowledge. Accordingly, lay persons may conclude from observing certain
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behavior that the conduct in question is a departure from normal conduct.
Likewise, the fact that the witness never observed the person in question
commit any abnormal act may be of probative value also.
The trial court must assess the foundation of the lay opinion and
determine whether it is such a matter of common knowledge that lay persons
would generally have knowledge relative to the matter. Additionally, the
court may determine that the lay person has acquired sufficient experiences
in the area in question that, while he may not possess the requisite exper-
tise to qualify as an expert witness, his opinion on the matter may clarify
his testimony or aid the trier of fact.
CASES
RULE CASE NAME CITE CIRCUIT COURT
701 Schott Optical
Glass v. U.S. 468 F.Supp.1318(1979) CUS Ct.
701 U.S. v. Robinson 544 F.2d 110(1976) 2nd
701 U.S. v. Smith 550 F.2d 277(1977) 5th
701 Forward Comrn. Corp.
v. U.S. 608 F.2d 485(1979) Ct. Cl.
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.
ELEMENTS
A. A Witness may testify as expert if the witness possesses
1. Scientific, technical or other specialized knowledge.
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2. Knowledge will assist trier of fact to
a. understand evidence.
b. determine fact in issue.
B. A person may testify as an expert and give his/her opinion or otherwise
if qualified by
1. knowledge
2. skill
3. training
4. experience
5. education.
COMMENT
This rule follows a long line of cases authorizing testimony from
experts where such testimony would aid the trier of fact in its fact finding
task. Often one thinks of an expert as an individual who has a wealth of
degrees and has been recognized as an authority in the field in question.
However, the number of degrees or level of public recognition is not the
test. The test to be applied whenever one seeks to offer his witness as an
expert, is whether the opinion to be offered by the witness will likely aid
the trier of fact in its search for the truth. For example, even though a
witness may lack the necessary medical training the law requires in order to
be permitted to treat the medical condition in question, the testimony of the
witness will nevertheless be received if through his experiences or training
the witness is able to form an opinion which will aid the jury; provided,
there are no countervailing considerations which would militate against such
testimony. Jenckins v. United States. 113 U.S. App. D.C. 300, 307 F.2d 637
(1962).
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Despite the liberal guidelines for qualifying expert witnesses, the pro-
offered testimony will not be received if the trier of fact is as competent
as the expert to consider and weigh the evidence and to draw conclusions
therefrom. Where the proffered opinion is excluded, it should be because the
opinion would be unhelpful and therefore a waste of time.
Under the Rule, the term expert is interpreted broadly and covers not
only scientific or technical experts such as physicians, but real estate
brokers, mechanics, etc. The court's determination of the qualifications of
a witness as an expert is conclusive unless there is an abuse of discretion
or a clear error of law is shown.
CASES
RULE
702
702
702
702
702
702
702
702
CASE NAME
U.S. v. Brady
Knight v. Otis
Elevator
U.S. v. Phillips
U.S. v. Clark
Forward Commun-
ications Corps
v. U.S.
U.S. v. Garber
U.S. v. Zink
U.S. v. Clardy
CITE
595 F.2d 359(1979)
596 F.2d 84(1979)
593 F.2d 553(1978)
598 F.2d 994(1979)
CIRCUIT COURT
6th
3rd
4th
5th
608 F.2d 485(1975) Ct.Cl
607 F.2d 92(1979) 5th
612 F.2d 511(1980) 10th
612 F.2d 1139(1980) 9th
RULE 703
BASE OF OPINION TESTIMONY BY EXPERTS
The facts of data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to him at or
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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.
ELEMENTS
A. Facts or data supporting opinion of expert may be
1. Those perceived by the witness, or
2. Made known at the hearing, including hypothetical questions.
B. Facts or data need not be admissible in evidence if
1. Of a type relied upon by experts in the field, and
2. Foundation laid to that effect
COMMENTS
This Rule follows the generally accepted practice of allowing the expert
to express an opinion based upon data disclosed to him at or before the
trial. The data, as the rule suggests, need not be admissible according to
the traditional rules of evidence if experts in the field act or rely upon
similar facts or data. For example, the physician in the field, and conse-
quently the one on the witness stand, may rely upon a wide variety of informa-
tion (reports of relatives, hospital technicians, statement by the patient,
etc.) in forming a diagnosis. The evidence submitted at trial may not
be ordinarily admissible; however, the physician on the witness stand is
being asked to give the jury the benefit of his educated conclusion. Accord-
ingly, he must give the jury the type of clinical opinion he is accustomed to
forming and relying upon in the private practice of his profession. While
his opinions may not be stated with mathematical precision, they are not
hunches, suspicions or conjectures. Therefore, they are admissible as an aid
to the trier of fact.
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An expert witness may rely upon books, treatises, or records in forming
his opinion. However, he must be able to produce the materials he relied
upon in court. See Rule 705. Additionally, the expert may give testimony
based on his observations during a personal examination or based upon informa-
tion provided by others. There is no requirement that the quantum of data or
the source of the data conform to the generally accepted minimal standards
within the field. Nor is there a requirement that the expert follow generally
accepted procedures in conducting any experiments or tests relative to the
problem in question. Any deficiencies in the foregoing areas merely go to
the weight of the expert's testimony and not to its admissibility.
Rules 703 and 705 permit the expert to testify as to matters which would
otherwise constitute hearsay for the purpose of illustrating the basis of his
opinion.
CASES
RULE
703
703
703
703
CASE NAME
U.S. v. Massey
U.S. v. Williams
U.S. v. Garber
Bauman v. Centex
Corp.
CITE
594 F.2d 676(1979)
447 F.2d 1285(1971)
607 F.2d 92(1979)
611 F.2d 1115(1980)
RULE 704
CIRCUIT COURT
8th
5th
5th
5th
OPINION ON ULTIMATE ISSUE
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.
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ELEMENTS
A. Expert, may give opinion on ultimate issue if
1. Otherwise admissible and
2. Helpful to trier of fact.
COMMENTS
This Rule departs from the traditional line of cases which precluded the
witness from giving an opinion which embraced the ultimate issue. This
departure from the old rule was warranted inasmuch as the expert often was
forced to address the ultimate issue in rendering an opinion. For example, a
doctor must testify as to whether a surgeon's actions departed from the
standard a reasonable physician would employ in a similar operation in order
for the jury to determine whether he was negligent. However, all opinions
which embrace the ultimate issue are not admissible under the Rule. Where
the opinion is not based upon first hand knowledge or observation and the
facts relative to the matter are fully within the competence of the jury to
resolve, an expert witness should not be allowed to give an opinion on the
ultimate issue.
ILLUSTRATION
Assume X, a coroner, is testifying at a civil proceeding .in which the
ultimate issue is whether Z committed suicide. The insurance carrier has
raised suicide as an affirmative defense in order to avoid paying the insur-
ance policy. X, in response to a question, testifies that, in his opinion,
Z committed suicide. Y objects and moves to strike the answer as being inad-
missible inasmuch as it is a legal conclusion embracing the ultimate issue,
whether Z committed suicide. In this example, the court should sustain the
objection and strike the answer.
Whenever a proffered opinion is phrased in legal terms and addresses the
ultimate issue as a matter of law, it should be deemed inadmissible. For
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example, X and Y cannot testify that they heard Z make obscene statements in
violation of a statute which prohibits the use of obscene language, if they
cannot recall what words Z had said. If they could recite what Z had said,
it would still be within the competence of the trier of fact to determine
whether the words were obscene. Furthermore, X and Y could not testify that
the words were obscene in that the opinion would express a legal conclusion.
The key to the application of Rule 704 is a determination that the opinion
relates to matters within the witness1 special competence and skill and not
to matters of common knowledge and observation.
CASES
RULE
704
704
704
CASE NAME
U.S. v. Scavo
Bauman v. Centex
Corp.
U.S. v. Clardy
CITE
593 F.2d 837(1979)
611 F.2d 1115(1980)
612 F.2d 1139(1980)
RULE 705
CIRCUIT COURT
8th
5th
9th
DISCLOSURE OF FACTS OR DATA UNDERLYING
EXPERT OPINTflN
The expert may testify in terms of opinion or inference and give his
reasons therefor without prior disclosure for 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.
ELEMENTS
A. Expert may testify in terms of opinions and inferences
B. Expert may give reasons for his opinions
C. Underlying data or facts need not be disclosed, except
1. Where court requires it
2. On cross-examination
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COMMENTS
This rule allows the expert witness on direct examination to give his
opinion and the reasons for the opinion without disclosing the facts upon
which he based his opinion. This procedure has been criticized because it
leaves to the cross-examiner the responsibility of demanding production of
the materials or facts upon which the opinion is based. This criticism is
often ignored inasmuch as if the underlying facts are impressive, the party
calling the witness may disclose them. Moreover, the cross-examiner has the
option of not asking the witness to disclose the basis for his opinion.
Additionally, the proper use of discovery will allow counsel to ascertain
what materials or facts the witness will rely upon in giving his expert
opinion.
The Rule requires the witness to surrender upon demand the authorities
upon which he bases his opinion. Accordingly, a witness may not mouth
opinions without disclosing the basis for them. This permits the cross-
examiner to scrutinize the supporting materials and determine whether they in
fact support the opinion. The value of an expert's testimony rests upon the
material from which his opinion is fashioned and the reasoning process by
which he proceeds from his materials to his conclusions or opinion. The
validity of the relationship between his opinion and his materials is for the
trier of fact to decide.
The expert may be cross-examined as to his opinion by reference to other
reputable works in his field. It is not necessary for the expert to have
relied or based his opinion upon the particular authority the cross-examiner
seeks to use to cross-examine him. It should be borne in mind that opinions
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unsupported by facts or authority will be excluded by the court. However,
where the opinion has some support from the authorities, no matter how much
it is discredited, it will be admitted for whatever value it retains.
Where the expert relies upon hearsay for his opinion, related hearsay
evidence is admissible to impeach his testimony. Provided, such evidence has
sufficient guarantees or reliability so as to insure its trustworthiness and
the jury is instructed to consider the hearsay solely for impeachment and not
as substantive evidence.
CASES
RULE
705
CASE NAME
Forward Communi-
cations Corp.
v. U.S.
CITE
608 F.2d 485(1979)
CIRCUIT COURT
Ct.Cl.
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 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 he consents to act. A witness so appointed
shall be informed of his 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 an opportunity to participate. A witness so appointed shall advise the
parties of his findings, if any; his deposition may be taken by any party;
and he may be called to testify by the court or any part. He shall be subject
to cross-examination by each party, including a party calling him as a
witness.
(b) Compensation. Expert witnesses so appointed are entitled to reason-
able 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.
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(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.
ELEMENTS
A. The Court may appoint experts
1. On its own motion,
2. On motion of any party.
a. Issue an order to show cause why an expert should not be
appointed, and may
b. Request nominations from parties.
3. Court may appoint experts agreed upon by parties, or
4. Make its own selection.
5. Expert must consent to be appointed and shall be informed of his
duties,
a. In writing,
b. With a copy filed with clerk, or
c. At a conference at which parties have opportunity to participate.
6. Witness shall be required to:
a. Advise parties of his findings.
b. Submit to depositions by any party.
c. May be called to testify by the court or any party.
d. Shall be subject to cross-examination by each party.
B. Appointed experts are entitled to reasonable compensation as the court
may allow:
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1. Payable from funds provided by law in criminal cases, and civil
actions and proceedings involving just compensation under Fifth
Amendment.
2. All other experts are to be paid by the parties in civil cases in
such proportion and at times directed by court. Such payment are
thereafter charged as costs.
C. Court in its discretion may authorize disclosure to the jury that witness
is court-appointed.
D. Rule does not limit parties calling other expert witnesses.
COMMENTS
This Rule, which follows the reasoning behind Rule 28 of the Federal
Rules of Criminal Procedure, allows the Court to appoint an expert witness.
The obvious advantage which flows from this procedure is that the witness may
be cross-examined by each party, including the party calling him. Where the
witness provides testimony favorable to one party, that party may call the
witness to testify if the Court fails or refuses to.
If the Court discloses to the jury that the witness is a court appointed
expert, an added bonus is provided to the party whose case is supported by
the witness1 testimony. The witness1 value in the eyes of the jury is further
enhanced by the fact that the court selected him. Inasmuch as jurors are
often in awe of the court, any declaration from the court that the witness
was court appointed will have adverse impact upon the position against which
the testimony assails.
An expert witness may be compensated on a contingency basis. However,
this practice has been frowned upon inasmuch as it can be said that such an
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incentive may prompt the witness to color his testimony a little stronger in
order to support the side that called him. Nevertheless, in the absence of
evidence that a contingency fee contributes to colored testimony, the better
practice it appears, is to allow the testimony subject to cross-examination
on the fact that the outcome of the case affects the witness1 fee.
Where the witness' testimony is favorable, the fact that he is a court
appointed expert should be lauded. Where the witness1 testimony is adverse,
the Court should be asked to give the jury a special instruction to the
effect that they are at liberty to accept or reject expert testimony even if
it is uncontradicted.
In criminal cases, the rule has the effect of providing a free witness
to the party benefitting from the testimony of the witness inasmuch as the
witness will be paid out of special funds. (The Criminal Justice Act).
CASES
RULE
706
706(a)
706(a)
706(b)
706(b)
CASE NAME
Reed v. Cleveland
Board of Education
U.S. v. Green
U.S. v. Moss
U.S. v. 109 Acres
of Land
Person v. NYC Bar
Association
CITE
607 F.2d 739(1979)
544 F.2d 138(1976)
544 F.2d 954(1976)
CIRCUIT COURT
6th
3rd
8th
404 F. Supp. 1392(1976) E.D.Tenn,
554 F.2d 534(1977)
2nd
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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 him 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 trust 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 his testimony, and
was given under oath subject to the penalty of perjury at a trial, hear-
ing, or other proceeding, or in a deposition, or (B) consistent with his
testimony and is offered to rebut an express or implied charge against
him of recent fabrication or improper influence or motive, or (C) one of
identification of a person made after perceiving him; or
(2) Admission by party-opponent. The statement is offered against
a party and is (A) his own statement in either his individual or a rep-
resentative capacity or (B) a statement of which he has manifested his
adoption or belief in its truth, or (C) a statement by a person author-
ized by him to make a statement concerning the subject, or (D) a state-
ment by his agent or servant concerning a matter within the scope of his
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.
ELEMENTS
A. A statement is:
1. An oral or written assertion.
2. Nonverbal conduct intended as an assertion.
B. A declarant is a person who makes a statement.
C. Hearsay is:
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1. A statement,
2. Other than one made by the declarant at trial,
3. Offered in evidence to prove the truth of the matter asserted.
D. A statement is not hearsay if:
1. The declarant testifies at trial or hearing and is subject to cross-
examination concerning the statement and statement was:
a. Inconsistent with his testimony,
b. Given under oath at a trial or other proceeding, or
c. Consistent with testimony,
d. Offered to rebut claim against him of recent fabrication, improper
motive or influence, or
e. Is an identification of a person made after declarant has seen
him.
2. A statement offered against a party and is:
a. His own statement,
b. A statement he has adopted,
c. A statement he has authorized,
d. A statement of an agent or servant about a matter within the
scope of agency or employment, or
e. A statement by a coconspirator during and in furtherance of the
conspiracy.
COMMENTS
801 defines statement in its obvious mode (oral or written) and in its
more abstract form, non-verbal communication. Under subdivision (1), it is
clear to all that a statement is being made when a person speaks or commits
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his thoughts or expressions to writing. However, where the statement is in
the form of non-verbal conduct, a less clear line can be drawn. Accordingly,
one must view the totality of circumstances in order to determine whether
non-verbal conduct is meant to be an assertion.
ILLUSTRATION
Assume X is observed standing above on a cliff and pointing in the direc-
tion of the sunset. It is unclear whether X intends his pointing as an asser-
tion or a communication. However, if Y asks X where the conference room is
located and X points toward a door, it can be said with confidence that X
intended his pointing to convey a message. Such conduct is a statement with-
in the meaning of 801(a).
The reason for including non-verbal conduct under the definition of
statement is that people constantly employ nonverbal movements to convey a
message. These movements often take the form of smiles, nods, pointing, etc.
However, the gesture or conduct must have been intended to convey a message
in order to qualify as a statement. The rule to be applied is whether the
thought translated into action appears in less reliable form than thought
translated into language. That action often speaks as loud as words, within
the meaning of the rule, cannot be denied.
Infrequently, silence or non-assertive conduct is offered as a statment
or assertion within the meaning of the rule. This non-assertive conduct has
had a mixed reception in the courts because of its speculative probative
value. Where silence is intended as an assertion such evidence is clearly a
statement within the meaning of the rule.
ILLUSTRATION
X and Y agree on Wednesday to go to a ball game that following Friday.
X tells Y that if he doesn't call him by 10:00 p.m. on Thursday, "you know
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everything is OK and set for Friday". When X does not call Y by 10:00 p.m.
on Thursday, Y knows they will go to the ball game the next day. The absence
of a call from X is an example of non-assertive conduct which would constitute
a statement within the meaning of 801(a).
There have been occasions when silence or non-assertive conduct has been
offered through testimony relative to an absence of complaints, in order to
demonstrate a lack of negligence. Cain v. George, 411 F.2d 572, (5th Cir.
1969), F.R. Jeliff, Inc.. v. Broden, 233 F.2d 671 (D.C. Cir. 1956). When
this occurs the court must determine the relevance of such testimony and its
trustworthiness before allowing it to be admitted. Inasmuch as the absence
of any complaints may be attributable to the fact that the cost of complain-
ing is higher than the product, etc., the court may conclude that the low
probative value of the evidence coupled with the possibility of prejudice
warrants the exclusion of the evidence. Such non-assertive conduct, however,
appears to be excluded from the definition of a statement. Accordingly, such
conduct is removed from the scope of the hearsay rule.
In other situations, assertive conduct may be deemed to be outside the
scope of the hearsay rule. In these situations, the credibility and veracity
of the testifying witness is the focus of concern rather than the veracity or
competence of what the person observed. Accordingly, such testimony is not
hearsay inasmuch as it derives its value from the credit to be given the tes-
timony of the witness.
ILLUSTRATION
X sees Y nod his head several times when asked whether he intended to
comply with the defendant's request. The question to Y is not hearsay, inas-
much as it is not offered for the truth of the matter asserted. X's account
of seeing Y nod his head is not hearsay inasmuch as the area of concern is
whether X has accurately recited what he has seen rather than whether Y
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intended anything by nodding. Likewise, evidence by X that he saw Y flee
the scene of a homicide falls within the scope of Rule 801(a)(2) and is not
hearsay for the foregoing reasons.
The Court must make a determination as to the question of intent, when
evidence of conduct is offered as a statement. Rule 801(a)(2) requires a
finding that the action intended for his'conduct to be an assertion before it
may be considered to be a statement.
Rule 801(c) is in accord with the traditional definition of hearsay. All
out of court statements by persons other than the witness are not included
within the rule and accordingly must be analysed to determine the rule's
application. Where the statement is offered to show the (1) effect of the
statement on the mind of the hearer, (2) to merely show what was said, (3) or
to provide an explanation of an otherwise ambiguous act, the statement is not
hearsay.
ILLUSTRATION
X is charged with knowingly distributing in commerce the toxic substance,
M, which had not been manufactured properly. X desires to offer the state-
ment of Z, now deceased, that Z advised him that he had followed all of the
required steps in the manufacture of M. The statement is not hearsay inasmuch
as it is not being offered to prove that Z followed the appropriate procedures
(it is obvious he did not). It is being offered to support X's claim that his
knowledge relative to the manufacture of M comes from Z and that he relied
upon it (state of mind and lack of knowledge of wrongful manufacture).
In the classic hearsay situation, in which the above statement would be
offered for the truth of the matter asserted, the truth of the statement
cannot be determined without assessing the credibility of both X and Z. In
evaluating the credibility of X, the trier of fact must take his perception,
physical condition (hearing), his ability to recall facts and his ability
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to recount accurately what he has heard into consideration in deciding
whether X actually heard Z's statement. The trier of fact must also consider
the same factors in connection with Z in determining whether his statement to
X accurately reflects what he did and observed. While X is available to
testify under oath and be cross-examined, the same safeguards do not exist
for Z. Accordingly, a hearsay objection would be appropriate.
On the other hand, where, as in the above illustration, Z's statement is
not being offered to prove the matter asserted but to underscore X's claim
that he was unaware of the improper manufacture of M, Z's credibility is
immaterial. Only X's credibility is in issue and the trier of fact must
consider whether X is telling the truth when he says that Z made the state-
ment (even if Z was lying). Z's statement is relevant to the issue of X's
knowledge irrespective of its truth.
ILLUSTRATION (2)
X, in a suit for slander, desires to offer into evidence a statement by
Z that "X is a rotten dog" which was made in front of several people. The
witness who heard the statement may testify as to what they heard Z say.
This is a matter within their personal knowledge and the trier of fact needs
to determine only whether they actually heard the statement. The statement
is not hearsay inasmuch as X is not offering it for the truth of the matter
asserted. On the contrary, he is contending that the statement was false.
Accordingly, the statement may be admitted to merely show what Z said.
ILLUSTRATION (3)
X observes Z, a hazardous waste hauler, inspecting the undercarriage of
his tractor trailer rig. X asks Z what he was doing. Z replies that he is
checking the tractor and trailer for leaks of the hazardous material. This
statement explains the ambiguous acts of Z (inspection) inasmuch as Z's
actions are consistent with any number of purposes for inspecting a truck,
for wear and tear, routine maintenance, etc. The statement explains Z's acts
and must be considered in conjunction with them. It does not matter whether
Z's statement is true, inasmuch as it is being offered to shed light on the
non-verbal act, the inspection of the truck. See, United States v. Jackson,
588 F.2d 1046, 1049 (5th Cir. 1979).
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Rule 801(d)(l)(a) departs from the traditional view of disallowing the
admission of evidence of prior inconsistent statements obtained under oath as
substantive evidence. Previously, such statements were admissible only for
purposes of impeachment and the trier of fact was advised that the statement
could be considered only in connection with assessing the credibility of the
witness. The view opposing the use of such evidence as substantive proof
rested on the belief that, inasmuch as the right of confrontation may not have
existed in the earlier proceeding (grand jury, testimony, etc.), the party
against whom it is offered would be denied due process by its admission. The
Supreme Court settled this question in California v. Green, 399 U.S. 149
(1970), in which the court held that it was not a denial of the right to
confrontation where the witness is available at trial to testify relative to
circumstances surrounding the earlier testimony and has the opportunity to
explain why his present version of the events is the more credible one.
Accordingly, where a witness testifies under oath at an earlier proceeding
and is subject to the penalties of perjury in connection with that testimony,
that testimony is admissible as substantive evidence where the witness
testifies contrary to that testimony.
ILLUSTRATION
Assume X testifies under oath before the grand jury that P, the operator
of a hazardous waste hauling service, was observed by him on numerous occa-
sions dumping toxic substances in the Potomac River. At P's trial, X is
called by the government as a witness against P. At that time, X testifies
that he never observed P dumping anything into the Potomac River. The govern-
ment may then use X's earlier grand jury testimony to not only impeach X, but
to serve the purpose of substantive evidence against P, i.e., that P is
guilty of illegal dumping because X said so at an earlier proceeding.
The prior inconsistent statement is admissible where it disavows an
earlier statement, claims a lack of recollection of facts or denies personal
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knowledge. Additionally, it may be admitted where the witness contends that
he was forced to make the earlier statement under duress.
In order to use the prior statement, it is important that the earlier
proceeding in which the witness testified under oath be of the type for which
the penalty of perjury attached. In some states, depositions taken in
connection with civil proceedings, although under oath, are not covered by
the perjury statutes. Accordingly, where no such coverage is provided,
depositions taken under those circumstances may not be used as substantive
evidence.
Rule 801(d)(l)(b) allows the use of prior consistent testimony by the
witness to be introduced to rebut a claim that his testimony at trial was
recently fabricated. The courts have traditionally allowed the admission of
this type of evidence for the purpose of rehabilitating the witness after he
has been impeached with a prior inconsistent statement or to rebut a claim of
recent fabrication. The reason behind this view was that mere repetition of
a story does not imply veracity. In the past, such testimony was admitted
solely for rehabilitative purposes and not as substantive evidence. Under
the rule, the testimony is admissible as substantive evidence. Additionally,
prior recorded statements may qualify under the recorded recollection excep-
tion to hearsay rule.
Rule 801(d)(l)(c) allows the admission of out of court statements by a
witness relative to an identification by him of a person after he has per-
ceived him. This rule finds substantial support in the court cases addressing
this issue. Inasmuch as the witness is expected to identify the defendant in
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court, the event of the identification in court, standing alone, often means
little to the intelligent juror, who routinely expects the defendant to be
identified. In the absence of corroboration, that juror will attach little
weight to such an identification. In order to corroborate the witness, it
is therefore proper to prove that at a former time, when the suggestions of
others could not have fashioned a fixed image of the accused in the witness1
mind, the witness recognized and declared the defendant to be the person he
saw.
The problem with this type of testimony is not that the accused is
denied the right of confrontation at the time the identification is made,
but that the identification may be unreliable. This problem is minimized by
insuring that certain safeguards are in place at the time the identification
is made (counsel present at lineup). The totality of circumstances surround-
ing the identification will be weighed for and against its reliability.
Witnesses, who are present at the time the identification is made, may
testify as to its occurrence at trial. The purpose of these statements con-
cerning the out of court identification is not to prove the matter asserted
(X committed the crime), but to show what the witness said at the time of the
identification. This testimony may be admissible when the eye-witness cannot
recall the event in order to I.D. the accused. Where this occurs, if the wit-
ness is not the sole eyewitness against the defendant, testimony from witnes-
ses to the identification may be introduced to show it occurred. See United
States v. Reed, 376 F.2d 226, (7th Cir. 1967); Cf. United States v. Barbati,
284 F. Supp. 409, 411 (E.D. NY 1968). However, where the witness denies that
the accused committed the offense or that he ever made the identification, no
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conviction can rest on an earlier identification whether or not supported by
the witness who was present.
801(d)(2)(a) allows the admission of a statement against a party in his
individual or representative capacity. These admissions may come in the form
of (1) actions, (2) or inactions, (3) they need not be based on personal
knowledge, (4) and can be in the form of opinions. The rule addresses the
traditional notion that a party cannot complain when his words return to
haunt him. Likewise, the party cannot complain about the need to cross-
examine himself, nor should he be allowed to question the trustworthiness of
his own declarations. He is also stopped from excluding statements which
were made by him under what he considered to be favorable conditions, which
have since deteriorated to the lamentable situation he finds himself at
trial. The argument goes that, if he should not be allowed to prevent the
admission of his earlier statements, it will matter very little whether the
statements were made in his individual or representative capacity. The rule
does not require the statement to be made in a representative capacity
in order to be admitted. Nor is there a requirement that the statement be
adverse to the party's interest at the time it was made.
ILLUSTRATION (1)
X is observed dumping toxic wastes in the Potomac River. Y, an EPA
investigator, observes X's act and approaches him in the company of two state
troopers. X, upon turning and observing the two uniformed men and their
companion approach, jumps into his truck and flees the area at a high rate of
speed. This evidence of flight can be admitted at X's subsequent trial
as an admission (Consciousness of guilt).
ILLUSTRATION (2)
X shoots Y during an argument. Several weeks later, X is arrested and
charged with murder. During the period following the incident, X did not
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advise anyone that he shot Y in self-defense. Following his arrest, X does
not advise the police that he shot Y in self-defense. At his trial, he
asserts that the shooting occurred as he defended himself from Y. The pro-
secutor impeaches X with his silence on that question and asks him why he did
not report it to the authorities. X's silence may be used to impeach him and
his credibility regarding his claim at trial of self-defense. Jenkins v.
Anderson, U.S. , 27 CRL. 3147 (June 10, 1980).
ILLUSTRATION (3)
*
Y is arrested and is charged with dumping toxic substances on the park-
ing lot of Waterside Mall. Y works for X who is called at his home by an
EPA investigator and is advised that Y has been charged with the dumping of
hazardous materials. X states to the investigator over the phone; "I'm
responsible, I should have provided him with an approved site to dump the
material". At a later civil trial, the above statement may be used against
X even though he did not have personal knowledge of the event (the dumping
at Waterside).
ILLUSTRATION (4)
X's plant has dumped raw sewage into the Potomac River. X is asked by
an EPA investigator how such a thing could have occurred. X replies, "I
think maybe we did not follow the right procedures." The fact that the
statement is in the form of an opinion does not operate to bar its admission.
The opinion rule, 701, does not apply to party admissions.
There is one rule that should be borne in mind when considering admis-
sions, make sure your words are always sweet because you never know when you
might have to eat them.
Rule 801(d)(2)(A) does not address the question of confessions, which
are basically mea culpa type admissions by an accused in a criminal case. As
a general rule, admissions by an accused are admissible against him at his
trial, provided certain constitutional safeguards under the Fifth and Sixth
Amendments were observed. These safeguards are delineated in Miranda v.
Arizona, 384 U.S. 436 (1966); Mai lory v. United States, 357 U.S. 449 (1957)
and their progeny. Additionally, the effective use of such statements may be
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further limited by other requirements such as the duty of the government to
corroborate the confession of the accused by establishing the corpus delecti
of the crime, and accordingly, the trustworthiness of the confession. A
defendant cannot be convicted on his confession alone.
ILLUSTRATION
»
X enters a police station and confesses that he killed Y, by shooting
him in the head with a pistol, and that he dumped his body in the river.
Y is dead; however, he was stabbed in a bar and was found dead in a nearby
alley from his wounds. X's statement standing alone is insufficient to con-
vict him of Y's death even though he insists he committed the crime. On the
other hand, if the police located P, a customer in the bar where the incident
occurred, who will testify that he saw X with a knife in his hand arguing
with Y prior to the incident, the requisite corroboration will be provided.
The additional evidence will support X's claim that he killed Y even though
it clashes with his version as to how it occurred. Accordingly, the confes-
sion would be admissible against X.
Rule 801(d)(2)(B) excludes from the operation of the hearsay rule all
statements adopted by or acknowledged as true by a party opponent. This rule
may also include within its coverage admissions by-silence. See Jenkins v.
Anderson, supra. The central feature of this rule is that the party must
manifest his support of the statement in some manner.
Where the party clearly adopts the statement of another, person either
verbally or in writing, there can be no dispute as to the application of the
rule; e.g., X sends a written response to Y acknowledging his indebtedness to
Y and promising to pay at the earliest date. Problems may surface where the
admission is in the form of silence in the face of an accusation or adverse
comment. The threshold question for the court to answer under these circum-
stances is whether the party's silence was a manifestation of his acceptance
of the statement as his own. If the court determines that mere silence by
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the party in the facts of that case, was not such a manifestation, the court
should exclude the statement.
Silence as an adopted admission usually surfaces in situations where a
reasonable man under the circumstances would have repudiated the comment.
However, prior to making such a determination, the court should determine
whether the party heard what was said, was physiologically capable of under-
standing what was occurring, or was not under any medication or drugs.
In a criminal case, the accused's silence, prior to his arrest, may be
used against him. Jenkins v. Anderson, supra. On the other hand, subsequent
to his arrest, and while he is in custody, the silence of the defendant may
not be used as evidence. Inasmuch as the accused has a Fifth Amendment right
to remain silent, the government is barred from using his silence against
him.
In civil cases, a party's silence in the face of an adverse claim is
more readily accepted. Where the circumstances are such that a reasonable
man would have responded to the statement, the party's silence constitutes an
admission. However, the party may introduce evidence to explain away the
silence, since his refusal to respond may be due to a personality quirk or
physical malady. Additionally, where one has given another the authority to
make representation on his behalf, any adoption of a statement by the agent
may be attributable to the party.
ILLUSTRATION
X, in the company of others, approaches Y as Y dumps hazardous substances
into the James River. X shouts at Y, "You dumb clown, you know better than
to dump the chemicals in the river. I am going to call the police." Y
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remains silent in the face of this statement and proceeds to run away. Y's
silence and actions may be used against him. On the other hand, if Y were in
police custody at the time he was accused by X of dumping the material, his
silence could not be used against him.
ILLUSTRATION
X sends Y a bill to be paid by Y within 30 days. Y hangs onto the bill
for 18 months and does not respond or pay it. Y's silence for 18 months may
be construed as an admission that the bill was prima facie correct since a
normal reaction to an incorrect bill is to have it corrected. On the other
hand, where X sends Y a lengthy letter which set forth his views regarding
a controversy between them; Y does not respond to the letter. In the above
example, Y's failure to respond does not constitute an admission since there
may be many reasons why Y did not repudiate X's claims in the letter.
A person cannot make evidence for himself by writing a letter containing
the statements he needs to prove his claim and thereafter sending it to the
other party. He cannot impose a duty to respond to claims in the letter any
more than he can impose a duty to pay, by sending goods. Thus, the mere
sending of such a letter in the absence of further circumstance making an
answer requisite or natural, has no effect as an admission. Lucas v. Hamilton
Realty Co. 70 App. D.C. 277, 105 F.2d 800 (1939).
Where one authorizes another to make representations on his behalf, the
adoptive quality of any admissions made by that agent can only be defeated if
it can be shown that the statements were contrary to other acts of the
principal at the time the representations were made.
Rule 801(d)(2)(C) excludes from the hearsay rule all statements made on
behalf of a party by an authorized person. The rationale behind this rule
turns more on principles of agency rather than the rules of evidence. For
example, the fact of agency may not be proven through the extra judicial
statements of the agent. Rather, there must be some independent proof of
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the existence of the agency and its scope. Thereafter, any question as to
the admissibility of the statements will turn on whether the agent had
authority to act for a party and whether the statement was made during an
exercise of that authority.
The question as to the admissibility of statements by authorized persons
will likely surface during litigation with a corporation or business. Where
the agent is an officer of the corporation and accordingly authorized to
speak on its behalf, admissions by that individual may be used against the
corporation. On the other hand, the law is unsettled as to whether intra-
organizational memos between non-office employees within a company should be
attributed to the corporation. Compare Pi Hey v. C&O Railway Co. 327 F.2d
249, 353 (6th Cir.), cert, denied, 379 U.S. 824 (1964); with United States v.
Lykes Brothers Steamship Co., 432 F.2d 1076 (5th Cir. 1970). It would appear
that the better view would favor the acceptance-of such memos or admissions
where they are written by the persons, retained and paid by the corporation
in connection with matters which are the subject of the memo. Where the
corporation does not pay the employee to perform a certain task and state-
ments are made in a memo by that employee regarding a controversy involving
that task, it would appear that those statements should not be attributed to
the corporation under those circumstances.
Rule 801(d)(2)(D) excludes from the hearsay rule any statement by an
agent or servant of a party, which was made within the scope of his agency or
employment and during the existence of the relationship. The role does not
require the statement to be based upon the personal knowledge of the agent or
servant. Accordingly, an agent may make a statement which is based solely
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upon circumstantial evidence and such a statement could be used against the
employer.
ILLUSTRATION
Assume there is a toxic waste explosion in New Jersey at M's plant.
Assume further that X is not present at the time of the explosion, but
arrives on the scene two hours later. Based on the information he receives
from by-standers, he concludes that the drums of waste were located too close
to the plant furnace, which triggered the explosion. X makes a statement to
the firemen on the scene that "M should never have placed the toxic drums in
that location." That statement, although not within X's personal knowledge
can be introduced against M. Mahlandt v. Wild Land Survival and Research
Center, 588 F.2d 626 (8th Cir. 1978).However, in order to be admissible,
the proponent of the evidence must show that an agency relationship existed
and that the statement was made during the course of that employment.
Rule 801(d)(2)(E) allows the admission of statements by co-conspirators
against their cohorts, provided the statements were made during the course of
the conspiracy and in furtherance of it. If X is arrested and he gives a
statement to the police, such a statement may be admissible as a confession,
but not under the rule because X by his arrest is no longer a part of the
conspiracy. (An arrest is deemed to terminate involvement in a conspiracy,
absent a showing to the contrary). Even if conspiracy is not charged in the
indictment, the statement may be admitted as an exception to the hearsay rule
under the theory of joint venture.
The rationale for the admission of such statements is not in the rules
of evidence, but finds its origin in substantive law of crime. Co-conspirator
statements are clearly hearsay of the rankest variety, however, the view is
maintained that when men enter into an agreement for an unlawful end, they
become the agents of one another through their partnership in crime. As
aiders and abetters, the acts of one are the acts of all and they become
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their brother's keeper. Additionally, since conspiracies are often hatched
in secrecy, it is necessary to admit the statements in order to prove the
charge. However, the use of such statements is not without its limitations.
The statement must be made during the course of the conspiracy.
ILLUSTRATION
W, X, Y and Z conspire to violate the environmental laws. Y and Z
dumped the hazardous materials in illegal sites while W located the sites for
them. X secured the jobs from the hazardous materials generators and advised
Y and Z where to pick up the material and where to dump it, based on informa-
tion from W. W, Y and Z have never met one another although they have heard
X mention the other participant's names frequently (X to Y: "W advised me of
this new site", etc., X to Z: "Don't use site ___, Y is dumping there today")
After the conspiracy ends, X, Y and Z meet to discuss their past venture over
beer and pizza. At this time, X talks about W's role (W is not present) in
the caper. Two days later Z agrees to cooperate with the authorities in order
to get a drug charge dropped. At that time, he confesses his involvement in
the crime to the authorities and advises them of the conversation with his
cohorts two days earlier. W, X and Y are later charged with the environmental
violations and are tried jointly.
Applying Rule 801(d)(2)(E) to Z's statement to the police, the statement
was not made during the conspiracy or in furtherance of it. Accordingly, it
is not admissible under the rule although it would constitute a confession.
Z's account of what X told him at the pizza parlor about W's involvement is
not admissible inasmuch as the statement was made after the conspiracy had
ended. X's statement during the conspiracy to Z about what the others were
doing is admissible inasmuch as they were made during the conspiracy and in
furtherance of it.
"During the course" of the conspiracy has been interpreted to mean while
the plan was still in existence and prior to its complete execution or
termination. Often courts will bar the use of such statements until the con-
spiracy has been proven. Other courts will admit them subject to establish-
ment of the conspiracy later in the trial. Where multiple conspiracies
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exist concurrently, statements made in one conspiracy to which a defendant
did not belong, although the two conspiracies had common members, may not be
used against that defendant and the jury must be so instructed.
CASES
RULE
801(a)
801(a)
801(a)
801(a)&(c)
801 (a)
801(d)(l)
801(b)
801(c)
801(c)
801(c)
801(c)
801(c)
801(c)
801(c)
801(c)
801(c)
801(d)(l)
801(d)(l)
801(d)(l)
CASE NAME
U.S. v. Oaxaco
Carter Equip. Co.
v. Morgan
U.S. v. Moskowitz
U.S. v. Absacal
U.S. v. Krogstad
U.S. v. McLennan
U.S. v. Lambros
U.S. v. Mejias
U.S. v. Calaway
U.S. v. Wilson
NLRB v. Custom
Excav .
Luster v. Retail
Credit Co.
U.S. v. Pope
U.S. v. Henry
U.S. v. DiRodio
U.S. v. Mackey
U.S. v. Lopez
U.S. v. Williams
U.S. v. Marchand
CITE CIRCUIT COURT
569 F.2d 518(1978)
544 F.2d 1271 (1978)
581 F.2d 14(1978)
564 F.2d 821(1977)
576 F.2d 22(1978)
563 F.2d 943(1977)
564 F.2d 26(1977)
552 F.2d 435(1978)
524 F.2d 609(1975)
532 F.2d 641(1976)
575 F.2d 102(1978)
575 F.2d 609(1978)
574 F.2d 320(1978)
448 F. Supp. 819(1978)
565 F.2d 573(1977)
571 F.2d 376(1978)
584 F.2d 1175(1978)
573 F.2d 284(1978)
564 F.2d 983(1977)
9th
5th
2nd
9th
3rd
9th
8th
2nd
9th
8th
7th
8th
6th
D.N.J.
9th
7th
2nd
5th
2nd
-140-
-------
RULE
801(d)(2)(a)
801(d)(2)(a)
801(d)(2)(a)
801(d)(2)(b)
801(d)(2)(b)
801(d)(2)(c)
801(d)(2)(c)
CASE NAME
U.S. v. Hilliard
U.S. v. TaVares
U.S. v. Mosley
U.S. v. Plum
U.S. v. Allen
U.S. v. Lewis
U.S. v.
Navarro-Vareles
U.S. v. Simmons
U.S. v. Zuniga-Lora
U.S. v. Mireles
same case
U.S. v. Marchard
U.S. v. Hudson
U.S. v. Lewis
U.S. v. Quinto
U.S. v. Porter
U.S. v. DiGiovanni
U.S. v. Cline
U.S. v. Johnson
U.S. v. Weaver
U.S. v. laconetti
Kingsley v.
Beechnut
CITE
569 F.2d 143(1977)
512 F.2d 872(1975)
555 F.2d 191(1977)
558 F.2d 568(1977)
579 F.2d 531(1978)
565 F.2d 1248(1977)
541 F.2d 1331(1976)
567 F.2d 314(1977)
570 F.2d 1286(1978)
570 F.2d 1287(1978)
564 F.2d 983(1977)
564 F.2d 1377(1977)
565 F.2d 1248(1977)
582 F.2d 224(1978)
544 F.2d 936(1976)
544 F.2d 642(1976)
570 F.2d 731(1978)
529 F.2d 581(1976)
565 F.2d 129(1978)
540 F.2d 574(1976)
CIRCUIT COURT
D.C.Cir.
9th
8th
10th
9th
2nd
9th
7th
5th
5th
2nd
9th
2nd
2nd
8th
2nd
8th
8th
8th
2nd
546 F.2d 1136(1977)
5th
-141-
-------
RULE
801(d)(2)(d)
801(d)(2)(d)
801(d)(2)(d)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)(e)
801(d)(2)
801(d)(2)(e)
CASE
U
S
.S.
.E.
Gagl
U
U
U
U
U
U
U
U
U
U
U
U
U
U
U
.S.
.S.
.S.
.S.
.5.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
.S.
NAME
V.
C.
Ojala
v. Geon
iardi v. Flint
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
v .
V.
Trowery
Crabtree
Abrahamson
Harris
Floyd
Papia
Man g an
Krogstad
Eaglin
Caro
Hansen
Johnson
McCormick
Gutierrez
Durland
RULE
HEARSAY
CITE
544
531
564
542
545
568
542
555
560
575
576
571
569
569
575
565
576
575
802
RULE
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
F
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
.2d
940(1976)
39(1976)
112(1977)
623(1976)
884(1976)
604(1978)
1283(1976)
45(1977)
827(1977)
32(1978)
22(1978)
1069(1977)
411(1978)
406(1978)
1347(1978)
286(1977)
269(1978)
1306(1978)
CIRCUIT COURT
8th
2nd
3rd
3rd
4th
8th
7th
2nd
7th
2nd
3rd
9th
5th
5th
5th
4th
10th
10th
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.
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ELEMENTS
A. Hearsay not admissible, except,
1. As provided by Rules.
2. As provided by Act of Congress.
COMMENTS
The rule adheres to the traditional view of excluding hearsay unless an
exception is made in a particular situation. The hearsay exceptions contained
in the rules are designed to expedite matters which have been traditionally
ex parte, or which do not necessarily require a hearing to resolve (no need
for cross-examination), such as, proof of service, on motions, to show
probable cause to issue warrant or summons. Additionally, the rules provide
for the admission of statements which could be classified as hearsay, but
which have indicia of trustworthiness.
Acts of Congress provide for the use of affidavits, depositions and a
variety of documents to prove the truth of the matter asserted. For example,
20 U.S.C. §52 provides that a record of the description of the Smithsonian's
site is prima facie evidence of that institution's boundaries. Other stat-
utes make documents filed with, but not originating at a particular agency,
admissible as public records (49 U.S.C. §16(3)).
CASES
RULE CASE NAME CITE CIRCUIT COURT
802 U.S. v. Fatico 441 F.Supp. 1285(1977) E.D.N.Y.
802 U.S. v. Evans 572 F.2d 455(1978) 5th
802 U.S. v. Jones 575 F.2d 81(1978) 6th
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CASE NAME CITE CIRCUIT COURT
Frazier v. Conti-
nental Oil Co. 568 F.2d 378(1978) 5th
802 U.S. v. Carlson 547 F.2d 1346(1976) 8th
802 U.S. v. Shoupe 548 F.2d 636(1977) 6th
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 explain-
ing 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 starting 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, sen-
sation, 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 sensa-
tions, 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 him to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was fresh in
his 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
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transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular prac-
tice 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, unless the source of information or the method
or circumstances or preparation indicate lack of trusworthiness. The
term "business" as used in this paragraph includes business, institution,
association, profession, occupation, and calling of every king, whether
or not conducted for profit.
(7) Absence of entry in records kept in accordance with the pro-
visions 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 non-
occurrence 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 circum-
stances 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 of 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
nonoccurence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and pre-
served by a public office or agency, evidence in the form of a certifica-
tion 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, con-
tained 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
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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, engrav-
ings 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 appli-
cable 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 pur-
port 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, gen-
erally 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 him 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 his family by blood, adoption, or marriage, or among
his associates, or in the community, concerning a person's birth, adop-
tion, marriage, divorce, death, legitimacy, relationship by blood,adop-
tion, or marriage, ancestry, or other similar fact of his personal or
family history.
(20) Reputation concerning boundaries or general history. Reputa-
tion in a community, arising before the controversy, as to boundaries of
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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 charac-
ter among his associates or in the community.
(22) Judgment of previous conviction. Evidence of a final judg-
ment, 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 punish-
able 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 impeach-
ment, judgments against persons other than the accused. The pendency of
an appeal may be shown but does not affect admissibility.
(23) Judgment as to person, family, or general history, or boundar-
ies. Judgments as proof of matters of personal, family or general his-
tory, or boundaries, essential to the judgment, if the same would be
provable by evidence of reputation.
(24) Other exceptions. A statement not specifically covered by
any of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, 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, his intention to offer the statement and the parti-
culars of it, including the name and address of the declarant.
ELEMENTS
A. The following are not excluded by the hearsay rule even though declarant
is available as a witness:
1. Present sense impression.
a. Statement describing event or condition,
b. Made during or immediately after event,
c. While declarant was perceiving event or condition or immediately
thereafter.
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2. Excited utterance.
a. Statement relates to startling event,
b. Made while declarant was excited by event.
3. Then existing mental, emotional or physical condition. Statement of
declarants then existing state of mind, emotion, sensation, or
physical condition, such as:
a. Intent.
b. Plan.
c. Motive.
d. Design.
e. Mental feeling.
f. Pain.
g. Bodily health.
But not including:
(1) Statement of memory or belief,
(2) To prove fact believed,
(3) Unless relates to execution, revocation, identification, or
terms of declarant's will.
4. Statement made for purposes of medical diagnosis or treatment.
a. Statement describes medical history, symptoms, pain, sensations,
general character, or cause of ailment.
b. Statement reasonably pertinent to diagnosis or treatment.
5. Recorded Recollection
a. Memorandum or record about
(1) Matter witness once had knowledge of,
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(2) Has insufficient recollection to testify fully and accur-
ately,
(3) Memo made or adopted when matter was fresh in witness'
memory,
(4) Correctly reflects knowledge of witness.
b. Memorandum or record not admitted in evidence as exhibit,
(1) Unless offered by adverse party, although
(2) Contents may be read into evidence.
6. Record of regularly conducted activity is admissible, if it is:
a. Memo, report, record, or data compilation in any form of
(1) Acts, event, conditions, opinions, and diagnoses,
(2) Made at or near time, or from information transmitted by a
person with knowledge
(3) Kept in regularly conducted business activity, and
(4) It was regular practice of business to make memo,
(5) As shown by custodian or other qualified witness,
(6) Provided: method of preparation must underscore trustworthi-
ness.
7. Absence of entry in records kept in regular business activity.
a. Absence from record may be used to prove nonexistence of matter.
(1) If requirement of (6) met,
(2) Matter is kind that would have been reported and preserved
in memo,
(3) Unless sources of information or circumstances indicate lack
of trustworthiness.
8. Public Records and Reports.
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a. Records, reports, statements, or data compilations of public
offices or agencies admissible if they set forth:
(1) Activities of office or agency.
(2) Matters were observed pursuant to duty imposed by law as to
which matters there was a duty to report.
(3) Police reports are excluded in criminal cases.
(4) In civil cases or proceedings and against the government in
criminal cases; unless circumstances or sources of informa-
tion show lack of trustworthiness
9. Records of vital statistics.
a. Records in any form made to a public office,
b. Pursuant to requirements of law.
10. Absence of public record or entry,
a. To prove the absence of a record, report, or statement in any
form,
b. Concerning a matter about which a report or statement was regu-
larly made and preserved by a public office or agency.
c. May be proved by
(1) Certificate in accord with Rule 902
(2) Testimony that search failed to disclose record.
11. Records of religious organizations
a. Records relating to birth, divorce, marriage, death, legitimacy,
ancestry, relationship by blood or marriage, etc.
b. Regularly kept by religious organizations.
12. Marriage and baptismal certificates
a. Statements of facts in certificates
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(1) Showing maker performed ceremony
(2) made by person authorized to perform act certified,
(3) Issued near or at time of act.
13. Family records - statements of fact
a. Concerning personal or family history,
b. Contained in family bible, etc.
14. Records of documents affecting interest in property.
a. Records establish or affect interest in property
b. Proves content of original document plus execution and delivery
by all parties
c. Record" is record of public office and
d. Statute authorizes record.
15. Statements in records affecting interest in property if the matter
stated was relevant to the purposes of the document.
16. Statements 20 years old, in ancient documents the authenticity of
which is established.
17. Market reports and commercial publications generally used and relied
upon by the public or persons in particular occupations.
18. Learned treatises.
a. Statements contained in learned treatises or pamphlets, estab-
lished as reliable authority, are admissible to the extent called
to attention of an expert witness, if
(1) Called to expert's attention on cross-examination,
(2) Relied upon by expert witness in direct examination,
(3) May be read into evidence, but not received as exhibits.
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b. Treatise may be established as reliable authority by
(1) Testimony or admission of the witness, or
(2) Other expert testimony, or
(3) Judicial notice.
19. Reputation concerning personal or family history among members of his
family concerning a fact of his personal or family history
20. Reputation concerning boundaries or history in a community, arising
before the controversy, as to events of general history important to
the community in which located.
21. Reputation as to character of a person among his associates or in the
community.
22. Judgment of previous conviction
a. Evidence of a final judgment of felony convictions may be offered
to prove any fact essential to judgment, if
(1) After trial or guilty plea (not upon a plea of nolo conten-
dere) adjudging a person guilty of a crime punishable by
death or imprisonment for a term greater than one year.
(2) But not including judgments against other than accused
(a) In criminal case,
(b) When offered by government,
(c) Except for impeachment.
(3) Pendence of appeal may be shown, but does not affect admis-
sibility.
23. Judgment as proof of matters of personal family history, or general
history, is admissible if the same would be provable by evidence of
reputation.
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24. Other exceptions.
a. Statements not specifically covered by the foregoing exception,
but having equivalent circumstantial guarantees of trustworthi-
ness, are admissible, if the court determines that:
(1) The statement is offered as evidence of a material fact,
or
(2) The statement is more probative on the point for which it is
offered than any other evidence which the proponent can
reasonably procure, or
(3) General purpose of rules and the interests of justice will
be" served by admission of the statement into evidence.
b. If the statement is to be admitted, the adverse party must have
prior notice of intent to use the statement as evidence in order
to allow the adverse party a fair opportunity to meet it by
showing:
(1) His intention to offer the statement,
(2) The particulars of statement, and
(3) The name and address of declarant.
COMMENTS
803(1) - This rule is often confused with res gestae or excited utterance
(803(2)). However, there are clear distinctions between the two rules which
should be borne in mind.
803(1) or present sense impression requires, (1) the statement to be
made simultaneously with the event (no memory problem), (2) there is little
or no time for calculated misstatement, and (3) the statement was made to
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someone who had equal opportunity to observe or check any mis-statements.
803(2), or excited utterances, requires (1) the judge to find that because
of the event the declarant was excited and (2) that he was still excited
when he made the statement.
The criticism of 803(2) is that it allows the admission of statements of
traumatized persons, whose ability to accurately perceive the startling event
may have been impaired even though their ability to fabricate was reduced.
The trauma of the event may distort perception and consequently, the trier of
fact may not receive an accurate account of what occurred. 803(1) is most
useful for statements uttered before the event in question and before the
declarant is aware that something traumatic is about to occur.
There are three basic elements to an 803(1) exception: (1) time, (2)
perception and (3) subject matter. The statement must be made while the
event or condition was being perceived by the declarant. While the rule
allows the admission of statements made immediately thereafter, it would
appear that any passage of time would diminish the opportunity of the
witness to corroborate the witness1 statement. The witness must be in a
position to observe the event in question. The less contact the declarant
has with the event, the more difficult it is to infer he perceived the event.
The statement, to be admissible, must describe the event or condition per-
ceived. The mere fact that the event evoked the statement is not sufficient
to warrant its admission, if it does not contain all three elements.
ILLUSTRATION
Assume X and Y are driving their auto to New York for a vacation. Ahead
of their auto is a truck carrying hazardous materials. An outlet valve on
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the truck is defective and is leaking the substance onto the highway. Y sees
this occurring and remarks to X "Do you believe that trucker knows the con-
tents of his truck are leaking out?" X is called as a witness in a later
proceeding from which Y is absent. X should be allowed under 803(1) to
relate Y's statement inasmuch as it was uttered as Y observed the substance
leaking from the truck, Y was in a position to perceive the occurrence and
the statement described the event in question. Additionally, X was in a
position to verify what Y was saying.
Assume further that the truck was driving at an excessive speed and
sideswiped another vehicle as it changed lanes. The struck vehicle overturns
and X & Y respond to aid the occupant. Y pulls the driver from the vehicle
and says "Lady, lady are you hurt? They should never allow trucks on high-
ways with cars, they are just too big". The above statement is not admis-
sible under 803(1) inasmuch as it does not describe the event (even though it
relates to it) to which it refers even though it may arguably meet the other
factors of 803(1).
Under 803(1) the declarant need not be available at trial and the
statement may be elicited from a bystander who heard it and had an opportunity
to perceive the event, even circumstantially.
803(2) - the assumption underscoring this rule is that a person affected
by excitement brought on by a startling event will lack the reflective capa-
city essential for fabrication. Consequently, his utterances will be spon-
taneous and trustworthy. As stated earlier, this view has been criticized
inasmuch as the same startling event may also distort the perception of the
viewer. Under this rule, the period of time required between the startling
event and the statement is greater than under 803(1). The amount of time
allowed to lapse depends upon the circumstances surrounding the statement.
If the declarant is in a state of shock, the period in which an admissible
utterance will be allowed is lengthened. Since lack of capacity to fabri-
cate, rather than this lack of time to fabricate (803(1)), is the hallmark of
this rule, the court need only decide whether the declarant's mental state
ruled out the possibility of conscious reflection.
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ILLUSTRATION
X, an employee at a toxic waste disposal facility, was in his office
when he heard a thunderous explosion. He ran from his office and observed Y,
another employee, fleeing from the exploding chemical dump. Y, with his
clothes still burning, stammered, "I'm sorry, I shouldn't have lit the cigar-
ette. I knew I shouldn't have done it." At a later time, X is called to
testify at a proceeding and relates Y's statement.
Under this rule, the statement need not describe the startling event,
but it must relate to the event to the degree the witness may perceive a
causal relation between the event and the statement. It should be remembered
that the rule does not bar after-speech, it merely bars after-thought.
803(3) - The ready application of this rule to statements relating to
the declarant's physical condition, such as comments about pain and bodily
health, is in conformity with the traditional practice of the courts. In
this area, there is little dispute to the carriage of the rule where the
declarant informs the witness that he or she is in pain and clutches the
affected portion of her body or expresses a feeling of dizziness while
reeling. It is in the application of the rule to the mental state of the
declarant that some confusion abounds.
Where the declarant testifies about his own mental state, there is no
hearsay problem. Where a witness attempts to repeat the declarant's state-
ments regarding his mental state, some difficulty is encountered in uniformly
applying the rule. This is especially true where the statement:
a) Explains an otherwise ambiguous act;
b) Proves state of mind circumstantially (where declarant states
he is Napoleon, statement obviously not offered for truth of
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the matter asserted and is probative circumstantially on the
declarant's mental state); or
c) Proves his state of mind, when that is in issue.
The rule allows the admission of the declarant's statement to show his
subsequent conduct. The rule bars the use of the statements to show the
future conduct of someone other than the declarant. Accordingly, where X
writes a letter to his sister that he is going somewhere with Y, the letters
may be offered to show that X intended to go with X, but not that Y intended
to accompany him. Morales v. Hernandez, 579 F.2d 677, 680 n.2 (5th Cir.
1978).
One of the problems with the use of this type of evidence for this pur-
pose is the doubtful viability of the view that people will always do what
they said they were going to do. Where such evidence is offered, the pro-
ponent of the evidence should be required to produce corroborative evidence
to support the statement. For example, where X states that he will be
taking a trip and he later disappears, evidence that he purchased a plane
ticket, requested and took leave from his job would tend to corroborate the
statement regarding the trip.
FURTHER ILLUSTRATION
X is charged with having Y murdered after taking out "key man" insurance
on him. W, Y's widow, is permitted to testify that Y said he was going to
back out of partnership with X and cancel all insurance policies. Evidence
is admitted to show Y probably acted on his intention by approaching X. This
testimony and theory is supported by Z, the killer, who was told by X that
Y had to be quickly killed before he cancelled policies. United States v.
Calvert, 523 F.2d 895 (8th Cir. 1975), Cert, denied, 424 U.S. 911 (1976)7
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The rule does not permit the use of the statements to show state of mind
as to previous acts except in matters related to wills and insurance claims
in connection with which the declarant is deceased. The criticism of this
rule is that if one is allowed to show state of mind to prove a future act,
one should also be permitted to show state of mind in connection with a past
act.
ILLUSTRATION
If X is permitted to say that he heard Y say on Monday that he intended
to go to the movies on Tuesday, he should be permitted to say that Y said he
had been to a movie on Sunday.
The reasoning for excluding this type of evidence stems from the belief
that with the passage of time, memory.fails and perceptions become distorted.
The reply to this reason is that the danger of a faulty memory is no greater
than the prospect of a change of intention occasioned by the frustration or
alteration of plans for future action.
Another danger of using hearsay in this manner is the possibility that
the declarant may intentionally misspeak or attempt to deceive. This danger
may be minimized by limiting the statement to a period when the motive to
falsify would be slight.
Problems also surface where the statement relates to past as well as
future acts or intentions. The resolution of these problems depends upon
the nature and amount of corroborative evidence.
ILLUSTRATION
X is asked by Y if he is despondent about anything. X replies that he
is and tells Y that P has demanded money from him and would break his legs if
he didn't produce it. X tells Y that he will pay up rather than get hurt.
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The above illustration has all three requirements of the rule present.
The views of Y as to X's present despondency is admissible. Likewise, the
statement by X that he will pay up may be admitted to show future acts. The
final fact may be admissible depending upon the purpose for which it was
offered. If it was offered to prove that P was going to break X's legs, it
is inadmissible to show P actually intended to do that. However, if it is
offered by X to show that he was fearful of what P was going to do to him, it
is admissible.
Where a will is the subject of controversy, wide latitude is granted to
show mental state as to past acts. The rationale behind this exception is
that the testator is dead and accordingly, everything should be done to
uphold his testamentary intent.
ILLUSTRATION
X tells Y, "I changed my will today to exclude that rotten P, who came
between me and my family, he will get nothing". The foregoing statement sup-
ports the validity of the will which excludes P and gives effect to the intent
of the testator. Inasmuch as X is dead, the statement provides the only guid-
ance to the court as to why there are two wills. To adopt any other view
would open the door to fraud and perjury.
Rule 803(4) - This rule allows the admission of statements made to phy-
sicians for the purpose of treatment. The rationale behind this rule is
that a person will be candid with his doctor and provide him with accurate
information in order for him to diagnose and treat his ailment. The rule
allows statements as to present and past symptoms as well as medical history.
This approach brings the rule into conformity with the business record excep-
tion. It would tax credulity to exclude patient statements to the physician
and allow them to be admitted as a hospital office record.
The statement need not be made to a physician, but can be made to a
nurse, ambulance driver or paramedic. Furthermore, the declarant need not be
the patient, but should have a close relationship to the patient in order to
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establish reliability (e.g., mother/child, wife/husband). The statements must
be made for purposes of treatment and not for litigation. Where the patient
is examined with the view of preparing a personal injury suit, it would be
proper for the court to exclude the statements made to that physician.
Rule 803(5) - This rule permits the introduction of a memo or record
containing matters about which the witness once had knowledge, but presently
has insufficient recollection to enable him to testify fully and accurately.
In order to be admitted, an accurate record must have been made or adopted by
the witness while the matter was fresh in his mind.
The rationale behind the rule is that if the witness cannot testify
about the matters in controversy, he.is unavailable for that purpose. Addi-
tionally, it is believed that a contemporary, accurate record is preferable
to a faulty memory.
In the past, many courts disallowed records under this view unless it
could be shown that the witness had zero recollection of the events in ques-
tion. Under the rule, the witness need not be able to recall any of the
facts in order to make the rule operative. Where the witness relates some
knowledge as to the subject matter in question, the court may exercise its
discretion in deciding whether to admit the memo under this rule.
A requirement of the rule is that the memo be prepared while the facts
were still fresh in the drafter's mind. No time period is set by the rule
and therefore must be assessed on a case by case basis. Matters such as the
witness1 ability to recall the subject matter of memo or whether the memo was
made before litigation began, etc., will be important to a determination of
freshness.
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Additionally, the memo must be an accurate account of what occurred.
The witness must have either prepared the document or have inspected it to
ascertain its correctness. Where one sees an event and reports it to another
who prepares the memo, both witnesses must appear in court unless it can be
shown that the observer saw the memo after its preparation and verified
its accuracy.
The memo may not be introduced into evidence although its contents may
be read to the jury. The opponent against whom the memo was offered may
introduce it into evidence.
One of the principal criticisms of the rule is that where the witness
has no recollection of the events in question, he cannot be cross-examined
relative to the subject matter contained within the statement. Consequently,
the right to confrontation is abridged by the reading of the statement to the
jury. Irrespective of the fact that the memo will not be received as evi-
dence unless offered by an adverse party, the jury will hear the statement
and counsel may refer to the contents of the statement in his arguments to
the jury. Where a witness only recalls some of the facts, counsel will
usually attempt to refresh the witness' recollection with the statement
before he attempts to use it as past recollection recorded.
Rule 804(6) - This rule was designed to allow the parties to introduce
relevant data without the inconvenience of summoning all the participants in
its creation. The test for the admission of the records is not whether the
particular record was kept routinely, but rather, whether the record was made
in conjunction with a routine established operation. This rule is in accord
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with 28 U.S.C. §1732; however, it expands that statute to allow opinions and
diagnoses to be given.
In order to be admissible, the business activity to which the record
relates must be routine and the entries in the record must reflect routine
day-to-day operations. The witness at trial need not have made the entries;
however, he must be aware that the entries reflected in the record were
routinely made by the business or of the type relied upon by an industry.
The people making the entries need not have first hand knowledge of the facts
to which the entries relate.
The entries into the record must be at or near the time of the events
recorded. This has been interpreted, to mean that an entry is current if the
entry was made while the matter was sufficiently fresh as to be still verifi-
able by the memory of the participants. Accordingly, the time requirement is
not to be applied in a mechanical fashion.
The rule allows the introduction of records containing opinions and
diagnoses. Opponents of this measure argued that such a procedure would
allow the introduction of inadmissible opinion which could not be challenged
through cross-examination. They argue that before an opinion is allowed, the
witness must demonstrate his expertise to give such an opinion. There is a
great difference between records containing factual entries as contrasted
with records containing opinions and conjectures. This view was rejected
inasmuch as diagnoses and opinions are routine in a hospital setting and are
as naturally or part of that setting as temperature readings, etc. Despite
the fact that medical records are generally admissible, diagnoses obtained in
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anticipation of litigation are rejected. The court retains the right to
exclude any evidence which does not rise to a level of being trustworthy.
Rule 803(7) - The theory behind this rule is that a business must main-
tain certain records of all transactions in order to properly conduct the com-
pany's business transactions. The lack of an entry in the company's records
relative to a certain transaction usually indicates that no such transaction
took place. The rationale underscoring this rule is that if it is important
for the business to keep a record of the transaction and the business rou-
tinely made records of all transactions, the absence of an entry relative to
a particular transaction is evidence that it never occurred. This view does
not differ from the one where X is questioned on the stand as to whether he
heard the victim scream. Assuming X was in a position where he would have
heard the scream, a negative response by X to the effect that he did not hear
a scream suggests that no one screamed.
Without such a rule, counsel would be forced to call all clerks and
personnel who could have made the entry to deny that such a transaction
occurred, otherwise they would have recorded it. However, the burden is on
the proponent of the record to demonstrate that the records of the business
were maintained in such a way that the transaction would have been recorded
had it occurred. The record is subject to exclusion if it is deemed to be
untrustworthy.
Rule 803(8) - This rule permits the introduction of records on matters
observed pursuant to a duty imposed by law to which a duty to report such
4
observations was imposed. The rationale for the rule stems from the fact
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that the reports are usually prepared by persons who become aware of the
matter a short time after it occurs, while most witnesses are still impartial
and while events are still fresh in their minds. Later, the investigators
for the parties will contact the witnesses and their statements will become
more partisan. Usually the public official is a specialist in the area and
can make objective determinations from the facts presented at this early
stage.
While subsection (c) refers to "fact findings resulting from an inves-
tigation". . ., a report should not be excluded where its content includes an
opinion which is both trustworthy and helpful to trier of fact. In determin-
ing whether an opinion is reliable and therefore admissible, the court should
consider the timeliness of the investigation, whether a hearing was held in
conjunction with it and the motivation of the officials conducting the
investigation.
ILLUSTRATION
X and Y are involved in an automobile accident. The factual issue at
trial is which vehicle had the right of way at the intersection where the
accident occurred. A veteran policeman, who arrived at the scene of the
accident within minutes of its occurrence, took measurements and interviewed
all of the witnesses, and prepared a diagram of the two vehicles at the point
of impact and where they came to rest. This was accomplished through the use
of the investigator's materials and his use of vector analysis. The officer
is called to the stand and is questioned by counsel relative to the accident.
However, he was not questioned regarding the conclusion in his report that Y
entered the intersection against a red light. X seeks to introduce the report
containing that entry. The report should be admitted inasmuch as the opinion
as to whether the light was red or green is a factual finding, although
derived from disputed evidence. Additionally, the report appears to be
trustworthy in that (1) the report was made immediately after the accident,
(2) the officer had the skills to make the report, (3) the officer appeared
to have gathered all of the necessary information (assumed), and the officer
was independent of both parties. Additionally, the officer was available to
be examined regarding his report. Baker v. Elcona Hemes Corp., 588 F.2d 551
(1978). .
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The rule bans the admission of investigative reports in criminal cases
unless introduced by the defendant against the government. United States v.
Smith, 521 F.2d 957 (D.C. Cir. 1975). However, such reports may be used by
the government in criminal cases where the information reported was not
gathered in connection with the investigation of the case in trial, but was
collected by an officer in a non-adversarial setting. Where the law enforce-
ment officer is not motivated to embellish his report in order to convict the
accused, the argument against its exclusion should fail.
ILLUSTRATION
Assume P, a Customs official, was assigned the responsibility of record-
ing the license numbers of all vehicles which passed his station. R, a drug
courier, drives past P's station and P duly records his tag number. R is
later arrested by law enforcement officers after a large quantity of drugs is
recovered from the trunk of his vehicle. At his trial, R contends that his
vehicle never left the city of Los Angeles and accordingly could not have
been used to transport drugs. The report of P should be admitted against
R. The simple routine recordation of license numbers of all vehicles which
pass his station is not the type of adversarial confrontation which is apt to
cloud P's perception. United States v. Orozco, 590 F.2d789(9th Cir. 1979).
RULE 803(9) - This rule allows the admission of statistical data required by
law to be compiled and maintained by a public office. The manner in which
this data is invariably acquired underscores its reliability since most
persons supplying data for birth, death and marriage cerificates have little
reason to fabricate this information. However, where the court determines
that the records are untrustworthy, he may order them excluded.
ILLUSTRATION
Assume X is injured by an automobile driven by Y. Witnesses to the
incident observed Y slumped over the wheel unconscious just prior to striking
X. Z, the coroner, prepares a death certificate which stated that Y "appar-
ently had a heart attack." W, the attorney for Y's estate, seeks to introduce
this statement under the rule. Assume that Z received the above information
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second hand, although he saw Y's body after the accident. Assume still fur-
ther that Z has no medical training and was merely a justice of the peace and
that no autopsy was performed on Y. There is nothing trustworthy about the
above entry in the death certificate to commend it other than its author held
a public office and the document is a public record. Accordingly the document
should be excluded.
RULE 803(10) - This rule operates in the same manner as 803(7) regarding the
absence of an entry. The theory behind this rule is that where the law
establishes a duty to record certain facts, it is assumed that that duty will
be fulfilled. This assumption forms the foundation for this exception.
Accordingly, if a fact would have been recorded if it had occurred, its pur-
ported non-occurrence is supported by the absence of such a record. This
rule runs counter to the common law rule which disallowed proof of absence by
the custodians' certificate that following a due search, he was unable to
find the record. This rule is in accord with Rule 44(b) of the Fed. R. Civ.
Proc. and Rule 27 of the Fed. R. Crim. P. Those rules authorized proof of
the absence of an entry by a statement, from an official who would have had
custody of the document if it existed, declaring that after a diligent search
of the recording, no entry or record, as designated in the statement, was
found.
RULE 803(11) - This rule allows the admission of records from religious
organizations relating to such events as baptisms, marital histories, etc.
The rationale for the rule stems from the fact that the church official
making the entry is not likely to fabricate the events of the moments (marr-
iage, etc.) However, the rule exempts only entries which were made during
the course of church activity. Where the information does not relate to
church activities, it may be excluded under the rule.
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ILLUSTRATION
Assume X seeks to introduce a church record that stated Y was born May
15, 1889, and was baptized in the church on May 30, 1989. The minister who
baptized Y made an entry to that effect; however the minister recorded in the
same instrument a notation that Y was born on May 25, 1889. The former entry
is admissible into evidence (that he was baptized); however, the entry as to
date cannot be introduced inasmuch as the minister who received that data, at
least second hand and through hearsay, does not personally know (under normal
circumstances) the facts surrounding X's birth.
RULE 803(12) - This rule extends the rationale of 803(11) to the introduction
of religious certificates. However, this rule requires the proponent of the
evidence to demonstrate that he was authorized to perform the ceremony.
Additionally, the rule requires the certification relating to the event be
executed at the time of the event or shortly thereafter.
RULE 803(13) - This rule allows the introduction of entries contained in
family albums, Bibles, etc. There is no requirement that authorship be
recognized or that the person who made the entry have first hand knowledge
of the facts contained in the entry. The rationale behind this rule is that
the family members would not have allowed a false entry to remain in the book
unchallenged.
RULE 803(14) - This rule is concerned with the problem of allowing a record
of a title document to be used as proof of the contents of the original docu-
ment and its due execution and delivery. If the particular record meets the
recording requirements of the local jurisdiction, receipt of the record in
federal litigation as an exception of the hearsay rule, would be warranted.
RULE 803(15) - This rule allows recitals of fact contained in dispositive
instruments to be exempted from the hearsay rule if the matter stated in the
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instrument was relevant to the purpose of the document. Additionally, to be
admissible, all subseqent dealings with the document must not be inconsis-
tent with the recital.
ILLUSTRATION
Assume X is suing Z and is claiming to be Y's heir relative to Tara, a
piece of land in the south. X produces a document purporting to be a deed
signed by Y conveying Dragonwyck, an unrelated piece of property. The deed
recites that Dragonwyck was conveyed by M to Y and X, his son and sole heir,
on March 15, 1991. The recital in the record would be admissable to prove
X's relationship to Y; provided , Y did not behave in an inconsistent manner
to X subsequent to the execution of the Dragonwyck deed; e.g., Y disclaims
any relationship X in a deposition taken in connection with unrelated civil
proceedings.
The rationale for the rule is based upon necessity and the available
indicia of trustworthiness. It is necessary to have such a rule inasmuch as
litigation concerning entries in deeds often arise after the witnesses and
parties to a transaction are no longer available. The trustworthiness of the
instrument is insured because:
1) The circumstances surrounding the conveyance and the financial
interests at stake insure reliability;
2) The reduction of the recital to writing insures the accuracy of its
transmission;
3) The rule does not apply if dealings subsequent to the entry are
inconsistent.
RULE 803(16) - This rule allows the admission of documents which are twenty
years or older. This rule is based on the belief that the author of the
document may not be available and the probative evidence recited in the
instrument would be lost if it were excluded. Critics of the rule argue that
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the veracity of a document which contains false entries will not change with
the passage of time. However the supporters of the rule allude to certain
indicia of trustworthiness which they view overcome most objections to the
rule. They argue:
1) the rule requires the documents' authenticity to be established;
2) Since the document is written, the danger of mistransmission is
slight;
3) the document would be more accurate as to what occurred twenty years
before than the witness1 memory;
4) the age of the document supports the view that it was drafted before
the controversy arose;
5) The document is reliable if the declarant had first hand knowledge;
6) The document may be excluded under Rule 403 if it is not trustworthy;
and
7) If the document contains false entries, there should be another
document in existance which is contrary to it or there will be other
inconsistent information available.
ILLUSTRATION
Assume X was feuding with Y in 1930 over the boundary between their res-
pective properties. X decided to sue Y and in advance of the suit prepared a
map designating what he viewed to be the proper boundaries. X died of a heart
attack and the controversy subsided. In 1975, X's descendants find the map
and sue Y's heirs for the disputed property. The document could be excluded
under Rule 403 inasmuch as it was prepared where a motive to misrepresent
existed.
RULE 803(17) - This rule permits the introduction into evidence of commercial
publications and market reports despite their hearsay content. The reason
for this is the difficulty which would be experienced if a party attempted to
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produce all persons responsible for each data compilation. Additionally, if
the data is customarily used by the members of a particlar business in
connection with their work, they would cease to use the reports if the data
proved inaccurate.
Whether a report is covered by the rule depends upon its indicia of
reliability. If all of the circumstances surrounding its preparation sup-
ported its reliability, the report should be admitted.
ILLUSTRATION
EPA counsel, seeking to show adverse impact of certain pollution on the
quality of life, in a civil suit, produces a mortality table to prove the
extent to which persons are affected by the pollution. Such tables, are
helpful in determining the probable duration of life, although the data
reflects the average life span. Another illustration is the market value
table for used automobiles.
RULE 803(18) - This rule provides for the use of treatises by witnesses in
connection with their testimony. According to the.rule, the treatise must be
recognized by the witness as an authority before it may be used. Where the
witness refuses to recognize the treatise as an authority, counsel may ask
the court to take judicial notice of the authoritativeness of the book by
supplying the court with evidence that the book is an accepted authority.
This may be done by presenting the court with other recognized treatises
which list the book in its bibliography or cite it as authority. Addition-
ally, evidence that a university uses the book as a text or lists it on
reading lists, would support the view that the treatise is an authority.
Whenever an expert witness bases an opinion to a signficant degree upon
his reading of treatises, he may be cross-examined as to that opinion by
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reference to other reputable works in his field. It is necessary for the
witness to have relied in his testimony upon the particular treatise the
cross-examiner seeks to use.
Whenever a treatise is used, the examiner may orally publish the perti-
nent text to the trier of fact. However, the rule forbids the introduction
of the treatise into evidence and permitting the jury to examine the work.
RULE 803(19) - This rule permits the use of reputation evidence to prove
family or personal history. Before a person may be allowed to testify
regarding the reputation or history of another, he must first demonstrate
that he was a member of the group or in a position to acquire the relevant
information. While the rule does not require the information to be acquired
prior to the lawsuit or controversy, the failure of the reputation evidence
to predate the controversy will affect the weight to be given it and not its
admissibility.
ILLUSTRATION
Assume X and Y have lived together for seven years. X is suing Y for
support and is asserting that a common law marriage was established. Y calls
B, a neighbor of X and Y, to testify and B states 'that he always believed
they were married and accordingly addressed Y as Mrs. X. P, a co-worker
of Y, is called by X to testify that the manner in which Y behaved around the
plant led him to believe she was single until three weeks after the lawsuit
was filed she stated to P that she was married. Both statements should be
admitted although the weight of Y's statement to P is less than it perhaps
would have been had it predated the controversy.
RULE 803(20) - This rule permits the admission of reputation evidence regard-
ing boundaries or general history. Although the rule omits such a require-
ment, it would appear that age will be a factor for the court to consider
when asked to admit this type of evidence. If the matter is of recent
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origin, undoubtedly there will be living witnesses to the controversy and
such reputation evidence would be untrustworthy under the circumstances.
Furthermore, recent land acquisitions would likely be the subject of written
documentation, which would render this type of testimony unnecessary.
A requirement for the admission of this type of evidence is that the
subject of the reputation evidence be a matter of some importance within the
community in which it is developed. This requirement insures that this
matter received considerable discussion at the time the reputation was being
formed. By this exposure within the community, it is considered unlikely
that a falsehood would be accepted as true by the community.
Where the legend within the community has two distinctly different
stories circulating relative to a particular matter, the Court may exclude
the entire testimony under Rule 403 or allow both versions to be told for the
trier of fact to decide the truth.
RULE 803(21) - This rule allows the admission of reputation evidence to
support or attack a person's character. Inasmuch as, this type of testimony
is clearly hearsay, this rule allows for its admission. This rule should be
considered in conjunction with Rules 404, 405, and 608 of the Fed. F. Evid.
RULE 803(22) - This rule provides for the admission of evidence of a final
judgement in a criminal case, in a subsequent related case to prove a fact
•
essential to sustain that judgement. However, the government may not use a
judgement in a civil case for any purpose other than impeachment in a criminal
case.
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The rule applies only to the use of prior convictions. Where a civil
judgement was recovered in the first action, it may not be used as prima
facie evidence in a subsequent criminal case. The reason for this is that
the burden of proof is much less in a civil matter than in a criminal
case. Additionally, the rule bars judgements based on pleas of nolo conten-
dere and convictions based on crimes which have less than a year of punish-
ment. The reasoning behind the above views is that often people will refuse
to contest minor offenses for convenience reasons having little to do with
merits of the case. Moreover, in a plea of nolo contendere, the party admits
nothing and there is absent a basis for saying that the controversy was
resolved on the merits against the accused.
The prior conviction may be admitted despite the pendency of an appeal.
The fact that an appeal has been noted may be brought to the attention of the
trier of fact. Where proceedings have ended relative to a conviction, it
would appear that a party should not be allowed to offer testimony or evi-
dence to controvert a conviction against him. To do so would lift the
finality of any criminal judgements.
Where an acquittal has occurred, such evidence may not be admitted under
this clause. The reason for the exclusion of judgements of acquittal is that
because of the higher burden in criminal cases, the jury may conclude that
the accused committed the crime but the government failed to prove his guilt
beyond a reasonable doubt. Accordingly, the use of a judgement of acquittal
is barred.
Because of the higher degree of proof required in criminal cases as
contrasted with the level of proof in civil cases, an acquittal in a criminal
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case cannot constitute an adjudication of the same facts when raised in a
related civil case. Likewise, where the facts in the criminal case are such
that the conviction could have been based on proof of only part of the facts
charged, it is difficult to determine what facts formed the basis of the
conviction. Accordingly, the criminal conviction should not have any
probative value in establishing the same facts when in a civil case. Where
the issues in the criminal case were clear and the accused was present,
represented by counsel, and due process was accorded him, it is clear that
any conviction from that proceeding should be admitted as prima facie evi-
dence in a civil case based upon the same facts. Stagecrafters' Club v. D.C.
Div. Amer. Legion, 111 F.Supp. 127(D.C.D.C. 1953).
The rule permits the conviction to be used in civil cases only against
the person convicted. In criminal cases, the conviction can be used for
impeachment purposes only (except where used by the defendant in that case
to show he acted in self-defense against the victim, whose conviction for
a violent crime was used to show agressive behavior).
RULE 803(23) - This rule permits the introduction of a prior judgement as
proof of matters regarding personal, family, or general history or boundaries.
The rationale underlying this rule is that if reputation evidence is permit-
ted under the rules as proof of family history or boundaries, judgments which
may have been based upon much more credible evidence should be equally trust-
worthy and accordingly, accepted. There is a presumption that the jury or the
court arrived at an intelligent conclusion when it returned the judgment or
verdict.
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RULE 803(24) - This rule is the catch-all provision which allows the admis-
sion of any other hearsay type statement which through oversight was not
covered by the foregoing twenty-three rules. There are five requirements
before a statement may be admitted under this rule. They are:
1) the statement must have equivalent (to above 23) circumstantial
guarantees of trustworthiness;
2) the statement is offered as evidence of a material fact;
3) the statement is more probative on the point for which it was
offered than other evidence which could be obtained by reasonable
means;
4) the admissibility of the statement is in accord with the general
purposes of the rules and the interests of justice; and
5) the proponent of the statement has given notice of his intentions to
use it sufficiently in advance of his offering it in order for his
opponent to meet it.
The above requirements must in large measure be viewed together in deter-
mining whether a statement, not covered by the rules, should be admitted.
Two factors may determine whether the statement is trustworthy enough that
the court will allow counsel to use the statement under this exception.
These factors include:
a) the availability of other trustworthy evidence which is not encum-
bered by the hearsay dangers; and
b) if the extra-judicial declarant is accountable, the court may
condition the admission of the statement upon his willingness to
testify.
Where the statement provides the equivalent guarantees of trustworthi-
ness with the twenty-three exceptions, the statement should be admitted.
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ILLUSTRATION
Assume in a lawsuit the key issue was whether the bell tower of a build-
ing collapsed under its own weight or had been struck by lightning. This
issue is crucial for purposes of determining the coverage of an insurance
policy. In proof of the lightning theory, evidence of charred timbers from
the wreckage was introduced. To counter this evidence, the other side
proffered a fifty-year old newspaper article which related a story about a
fire in a bell tower. Dallas County v. Commerical Union Insurance Co., 286
F.2d 388(5th Cir. 1961).
The trustworthiness of the newspaper account is the equivalent of the
reputation exceptions already recognized inasmuch as a reporter is likely to
report the account concerning the fire with a reasonable degree of accuracy.
Otherwise, he and his paper would be the target of criticisms. Accordingly,
there was a necessity to report the story accurately. This account would be
far more reliable than reputation evidence offered fifty years later.
The requirement that the statement be more probative than any that could
be obtained through reasonable efforts merely requires the proponent to
produce the best evidence available. "Reasonable efforts", as a gauge for
determining whether other better evidence is available, means that if the
time or cost expended to produce the other evidence would substantially
reduce the ability of the party to pursue the lawsuit, could substantially
increase costs, could cause substantial delays, would defeat the purpose of
the suit, or would cause great inconvenience to numerous persons, then the
evidence is beyond reasonable efforts.
CASE
RULE
803
CASE NAME
MCA, Inc. V.
Wilson
CITE COURT
425 F. Supp. 443 (1976) S.D.N.Y.
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RULE
803(1)
803(2)
803(2)
803(2)
803(3)
803(3)
803(3)
803(4)
803(4)
803(4)
803(5)
803(5)
803(5)
803(5)
803(6)
803(6)
803(6)
803(6)
803(6)
803(6)
803(6)
CASE NAME
U.S. v. Narciso
U.S. v. Napier
U.S. v. Moss
U.S. v. McLennan
U.S. v. Taglione
U.S. v. Adcock
Programmed Tax
System v. Raytheon
U.S. v. Narciso
Larve v. National
Union
O'Gee v. Dobbs
U.S. v. Edwards
U.S. v. Judon
U.S. v. Williams
Whalen v. Johnson
U.S. v. Smith
U.S. v. Yates
U.S. v. Plum
Cough 1 in v.
Capitol Cement Co.
Sellman v. U.S
U.S. v. Davis
U.S. v. Colyer
CITE
446 F. Supp. 252 (1977)
518 F.2d 316 (1975)
544 F.2d 954 (1976)
563 F.2d 943 (1977)
546 F.2d 194 (1977)
558 F.2d.397 (1977)
439 F. Supp. 1128 (1977)
446 F. Supp. 252 (1977)
571 F.2d 51 (1978)
570 F.2d 1084 (1978)
539 F.2d 689 (1976)
567 F.2d 1289 (1978)
571 F.2d 344 (1978)
438 F. Supp. 1198 (1978)
521 F.2d 957 (1975)
553 F.2d 518 (1977)
558 F.2d 568 (1977)
571 F.2d 290 (1978)
386 A.2d 303 (1978)
571 F.2d 1354 (1978)
571 F.2d 941 (1978)
COURT
E.D. Mich
9th
8th
9th
5th
8th
S.D.N.Y.
E.D. Mich
1st
2nd
9th
5th
6th
E.D. Mich
D.C. Cir.
6th
10th
5th
D.C. App.
5th
5th
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RULE
803(6)
803(6)
803(6)
803(6)
803(8)
803(8)
803(8)(C)
803(8)(c)
803(8)(c)
803(8)
803(8)
803(10)
803(10)
803(10)
803(16)
803(18)
803(18)
803(18)
803(18)
803(21)
803(22)
CASE NAME
U.S. v. Ruffin
Magnus v. Skelly
Oil Co.
U.S. v. Robinson
U.S. v. Rich
U.S. v. Smith
Eastern v.
McDonnel Douglas
U.S. v. Constanzo
U.S. v. Davis
U.S. v. Corr
Sellman v. U.S.
U.S. v. Ruffin
U.S. v. Robinson
U.S. v. Harris
U.S. v. Page
Bell v. Combined
Registry
U.S. v. Mangan
Gordy v. Canton
Thomas v. Amer.
Cystoscope
Apicella v. McNeil
Labs
U.S. v. Prevatt
U.S. v. Wilkerson
CITE COURT
575 F.2d 346 (1978) 2nd
446 F. Supp. 874 (1978) 2nd
544 F.2d 110 (1976) 2nd
580 F.2d 927 (1978) 9th
521 F.2d 957 (1975) D.C. Cir,
532 F.2d 957 (1976) 5th
581 F.2d 28 (1978) 2nd
571 F.2d 1354 (1978) 5th
543 F.2d 1042 (1976) 2nd
386 A.2d 303 (1978) D.C. App,
575 F.2d 346 (1978) 2nd
544 F.2d 110 (1976) 2nd
551 F.2d 621 (1977) 5th
4 M.J. 683 (1977) NCMR
397 F. Supp. 1241 (1975) N.D. Ill
575 F.2d 32 (1978) 2nd
543 F.2d 558 (1976) 5th
414 F. Supp. 255 (1976) E.D. Pa
66 F.R.D. 78 (1975)
526 F.2d 400 (1976)
548 F.2d 970 (1976)
E.D.N.Y.
5th
D.C. Cir,
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RULE CASE NAME CITE COURT
803(22) Lloyd v. American
Export 580 F.2d 1179 (1978) 3rd
803(24) U.S. v. Carlson 547 F.2d 1346 (1976) 8th
803(24) U.S. v. Amer
Cyanamid Co. 427 F. Supp. 859 (1977) S.D.N.Y.
803(24) U.S. v. Williams 571 F.2d 344 (1978) 6th
803(24) Kestenbaum v.
Falstaff Brewing 575 F.2d 564 (1978) 5th
803(24) U.S. v. Ruffin 575 F.2d 346 (1978) 2nd
803(24) U.S. v. Henry 448 F. Supp. 819 (1978) D.N.J.
RULE 804
HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
(a) Definition of tin ay ail abi 1 ity. "Unavailability as a witness"
includes si tuat i ons in which the dec1arant—
(1) is exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of his statement; or
(2) persists in refusing to testify concerning the subject matter
of his statement despite an order of the court to to do so; or
(3) testifies to a lack of memory of the subject matter of his
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 ab'sent from the hearing and the proponent of his statement
has been unable to procure his attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), his attendance or
testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if his exemption, refusal, claim
of lack of memory, inability, or absence is due to the procurement or wrong-
doing of the proponent of his 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:
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(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 his statement
has been unable to procure his attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), his attendance or
testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if his exemption, refusal, claim
of lack of memory, inability, or absence is due to the procurement or wrong-
doing of the proponent of his 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.
(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 his death was imminent, concerning the
cause or circumstances of what he believed to be his 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 him to civil or criminal liability,
or to render invalid a claim by him against another, that a reasonable
man in his position would not have made the statement unless he believed
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.
-------
(5) Other exceptions. A statement not specifically covered by any
of the foregoing exceptions but having equivalent circumstantial guaran-
tees of trustworthiness, 1f 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, his intention to offer the statement and the par-
ticulars of it, including the name and address of the declarant.
ELEMENTS
A. "Unavailability as a witness" means that the declarant:
1. Is exempted by the Court on ground of privilege; or
2. Persists in refusing to testify after Court orders him to do so.
B. The following is not excluded by hearsay rule if declarant is unavail-
able:
1. Former testimony.
a. Testimony of witness at another hearing;
b. At same or different proceeding;
c. Party against whom statement is offered (or a predecessor in
interest) had opportunity on similar motive to examine witness.
2. Statement under belief of impending death.
a. Prosecution for homicide, or
b. Civil action or proceeding,
c. Declarant believed he was about to die, and
d. Statement was about cause of impending death.
3. Statement against interest.
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a. Statement, at time of making, far contrary to declarant's
interest,
b. Against declarant's pecuniary or proprietary interest, or
would
c. Subject him to civil or criminal liability
d. A reasonable person would not have made such a statement unless
it were true, provided; a statement tending to expose declarant
to criminal liability which is offered by him as exculpatory, is
not admissible unless circumstances under which it was made
insure trustworthiness.
4. Statement of personal or family history.
a. A statement concerning declarant's personal or family history.
b. Declarant need not have personal knowledge of underlying
facts.
c. A statement concerning the personal or family history of another
person if declarant is related to person or so intimately asso-
ciated with person's family as to likely have accurate informa-
tion concerning matter declared.
5. Other exceptions.
a. A statement not covered above,
b. Having equivalent circumstantial guarantees of trustworthiness,
c. Is evidence of a material fact,
d. Evidence is more probative of fact to which it relates than
other evidence proponent could reasonably acquire, and
e. General purposes of rules and interests of justice will be
served by its admission, provided; adverse party must receive
notice of intention to use and be allowed to oppose admission.
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COMMENTS
Rule 804(a) provides the definitions of the term "unavailability" as it
relates to the admission of hearsay testimony. It is clear from a reading of
the definitions that unavailability within the meaning of the rule does not
refer to the unavailability of the witness, but the unavailability of his
testimony. The declarant's presence in the courtroom will not block the
use of his statement if he refuses to be examined regarding the matters in
litigation.
The rule applies equally to civil and criminal cases, however, the
courts construe the term "unavailability" more liberally in civil cases.
Similarly, the courts broadly construe unavailability where an accused person
seeks to introduce testimony on his behalf in a criminal proceeding. On the
other hand, the courts require the government in a criminal case to establish
that all reasonable means have been employed to secure the witness' presence
before declaring the witness to be unavailable.
Rule 804(a)(l) applies wherever the court rules the witness has a valid
privilege not to testify and accordingly finds the witness to be unavailable.
The most frequent privileges involved under this rule are spousal and self-
incrimination. The witness must assert the privilege and the proponent of
the evidence must secure from the court a ruling as to the witness1 unavail-
ability before the evidence may be admitted.
A problem surfaces where the government desires to force a witness to
testify and the witness exerts his privilege against self-incrimination.
Inasmuch as the government can grant immunity to the witness, it is seemingly
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within the power of the government to remove this impediment. Accordingly,
where a government witness exerts such a privilege, it could be argued that
the government holds the key to the witness1 availability and should not be
allowed to use the hearsay statement. The courts have ruled that whether or
not a witness should be granted immunity is a power vested in the executive
branch, and the courts should not interfere irrespective of their misgivings
regarding the government's policy. Therefore, it has been the policy of the
courts to declare the witness to be unavailable in these instances.
It is noteworthy that the government has the right to grant transac-
tional immunity and use immunity. Transactional immunity prevents the
government from prosecuting the accused on the charge while use immunity
allows the accused to be prosecuted, but prevents the government from using
his trstimony against him in the later proceeding or any evidence derived
from that testimony. (See 18 U.S.C. §6002). It would appear that where the
government has an established case against the witness and his testimony is
not likely to provide them with additional evidence against him (e.g., the
witness has already been convicted of the offense, did not testify at his
trial and is appealing the verdict), the government could be compelled to
grant the witness immunity if it wants to introduce his testimony against
his accomplices or otherwise. There may be other circumstances in which the
government may not have a legitimate interest in withholding use immunity and
the court may decline to declare the witness to be unavailable.
Rule 804(a)(2) provides that where a witness refuses to testify, despite
a grant of immunity, it can scarcely be argued that he is available to the
party calling him. Likewise, where a witness is unable to be present in
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court (ill, dead, out of the jurisdiction), he is similarly unavailable to
the party calling him.
Rules 804(a)(3), (4) and (5) state that if the witness claims a lack of
memory, the court may declare the witness to be unavailable. Inasmuch as it
is easy for a witness to testify that he cannot remember, the court may have
difficulty determining whether the witness' claim is genuine. However, if a
witness continues to assert, under examination, that his memory has failed
him, the court may nevertheless declare him unavailable without determining
whether his claim is fraudulent. If the witness falsely maintains he cannot
remember, he is in effect refusing to testify. Accordingly, the court may
admit the evidence under 804(a)(2).
If the proponent of the evidence has in anyway procured the unavailabil-
ity of the witness as that term is defined under 804(a), he may not utilize
the hearsay statement of the witness. By his fraud on the court, the propon-
ent has unclean hands and cannot expect the court to allow him to introduce
less reliable evidence when better evidence was available.
Rule 804(b)(l) allows the introduction of former testimony wherever the
declarant is unavailable. This rule complements 18 U.S.C. §3503 and Rule
32(a)(3) of the Fed. R. Civ. Proc. which provides for the use of depositions,
etc.
Evidence offered under this rule may be provided through the testimony
of an observer at the earlier proceeding or through a transcript stenograph-
ically prepared by a court reporter present at the earlier proceeding.
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In order for the evidence to be admissible, the testimony must have been
given under oath and an opportunity to cross-examine the witness must have
existed. It is not important that no cross-examination occurred at the ear-
lier proceeding (counsel may refuse for tactical reasons), all that is
•
required is that the party had the opportunity to exercise his right to
cross-examine the witness. This is true where the party against whom the
testimony is now being offered was the same party in interest at the earlier
proceeding. Furthermore, it matters very little that the right to cross-
examine the declarant at the earlier proceeding (e.g., preliminary hearing)
was curtailed as long as a realistic opportunity to examine the declarant was
provided. See, Mancusi v. Stubbs, 408 U.C. 204 (1972); California v. Green,
399 U.S. 149 (1970).
Similarly, the rule applies wherever a party possessed the right to
examine the witness on direct or redirect examination. Inasmuch as the right
to cross-examine belongs to the opponent of the party calling the witness,
the proponent of the testimony from the former hearing cannot complain that
testimony of a witness he examined on direct or redirect is now being
used against him.
The rule allows the introduction of the former testimony in the later
proceeding where the issues in the two proceedings are similar enough that
the party against whom the evidence is being offered, or a predecessor in
interest, would have had similar motives to develop the testimony. Accord-
ingly, the rule rejects the need for identical parties in both proceedings as
long as the parties in both proceedings would have had the same motives to
develop the testimony.
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Assume X, the owner of a chemical dump in N.J., is sued for spilling
hazardous wastes into the Hudson river. Y, one of X's foremen, testifies
against X and X is found liable for the spill. Y dies before the state of
New York sues his insurance carrier for the damage caused by the spillage.
The state seeks to use Y's testimony against the insurance carrier. X's
motive for cross-examining Y at the first proceeding is similar to the motive
the insurance carrier would have to cross-examine him at the second proceed-
ing (to escape financial liability for the spill). The testimony would be
admissible because of the similarity in the motives of the parties, irre-
spective of whether X actually or effectively availed himself of the right
at the first trial. Where the motives are different, the former testimony
should not be admitted.
ILLUSTRATION
EPA sues X and Y for the dumping of hazardous waste. X and Y file cross-
claims against each other. EPA deposes Z, an employee of X, who places the
blame on Y for the entire affair and exculpates X. Y is not present at the
deposition, nor was Y aware that the deposition was being taken. Z dies
three weeks before trial and EPA decides to introduce the deposition of Z
against Y. Y objects. The deposition should be excluded inasmuch as X has
different motives from Y to cross-examine 2. and accordingly, it would be
unfair to allow the admission of the deposition under the circumstances.
Where the government seeks to introduce former testimony against the
accused in a criminal case, the mere fact that another party in an earlier
proceeding had similar reasons or motives to cross-examine the witness does
not permit its admission. In order to be admissible, the defendant must
have been a party in the earlier proceeding. Where the latter occurred, the
fact that the accused introduced the evidence in the earlier proceeding is of
no importance. For the purposes of the rule, direct and redirect examina-
tions are considered to be the functional equivalent of cross-examination.
Additionally, former testimony may be admitted against a defendent in a
later proceeding even though the two proceedings do not involve the same
issues.
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ILLUSTRATION
Assume X is prosecuted for murder and in his first trial he offers tes-
timony through L, Z and M on the issue of whether he acted in self-defense.
X is convicted of murder, however, his conviction is reversed on appeal and
the matter comes up for re-trial. In his second trial X abandons his self-
defense claim and raises the defense of insanity. In the meantime, L, I and
M have either died or have become unlocatable. The government seeks to intro-
duce the testimony of L, M and Z to rebut X's claim that he acted "crazy" at
the time of the murder. X objects by stating that the testimony should be
excluded.
The court should admit the evidence. Inasmuch as the second trial is
based on the same indictment as the first one, the ultimate issue, did he
commit the murder as alleged, remains the same even though a new issue,
insanity, has replaced the self-defense issue.
Rule 804(b)(2) - This provision provides for the admission of statements
made under belief of pending death. In order to be admissible, it is not
necessary that the declarant died. All that is required is that the circum-
stances surrounding the utterance should support the view that the declarant
thought he was going to die.
The statement is admissible in all civil actions or proceedings. In
criminal cases, the declaration is only admissible in homicide cases. It
would appear that it should also be admissible in cases where the charge is
not homicide, but the declarant died in connection with the matter in con-
troversy.
ILLUSTRATION
Assume X a gypsy trucker, is employed by Y company to haul toxic wastes
from its plant in New Jersey. X is not an authorized hauler of hazardous
wastes and his truck is inappropriate for the particular load he was hauling.
Enroute to the dumpsite, the truck explodes and X is burned badly over 99.99
percent of his body. As the priest administers X his last rites, X tells
an EPA agent: "I told P (Y's transportation specialist) that my truck was not
fit for this load, but he made me carry it anyway now, I'm the one who is
going to die." P and Y company are later charged with conspiracy to violate
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RCRA and other statutes. While P and Y are not charged by the U.S. with
homicide, the statement was made under the same type of circumstances which
would give rise to the admission of homicide related declarations. Accord-
ingly, while it should be admissible under 804(b)(c), the government may have
to move for its admission under Rule 804(b)(5).
The reason for the rule was the belief that anyone about to meet his
maker would not depart this world with a lie on his lips. As the world has
become more secular, it has been recognized that people at death's door,
despite their plight, may harbor such dark motives such as revenge, self-
exoneration or a desire to protect loved ones. Additionally, it is feared
that the circumstances (e.g., pain, loss of vision, etc.) attending the dying
declarant at the time the statement is made, may distort his perception of
reality and prompt the declarant to utter an untrue statement.
Despite the above drawbacks, it is believed that the information pos-
sessed by one entering death's door is so probative as to the cause of the
occurrence, that the above short-comings should be overlooked. However,
there are certain conditions that must be met before the statement will be
admitted. The proponent must establish:
1) the requisite consciousness of imminent death;
2) that the declarant had first hand knowledge of the facts
contained in the declaration;
3) that the statement concerns the cause or circumstances of what
the declarant believes to be his impending death.
There is no requisite form for a dying declaration and the statement
will be admitted even though it may contain an opinion. All that is required
is that the statement conform to the above conditions and be beneficial to
the trier of fact.
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Rule 804(B)(3) allows the introduction of statements made by non-
parties which are against their pecuniary or proprietary interest. The
rationale underscoring this rule is that a party is not apt to make state-
ments against his interest unless he knew them to be true. While the rule
does not limit its application to non-parties and may include parties within
its scope, the admissions of parties may be introduced pursuant to Rule
801(d)(c) irrespective of whether the statement falls within the scope of
Rule 804.
The rule departs from the traditional doctrine of disallowing declara-
tions against penal interest. This doctrine was scoffed at by Wigmore and
other commentators who observed that it was absurd to suggest that a man's
statement which could send him to jail was less trustworthy than his state-
ment which would increase his debt. The rule allows the admission of state-
ments which would subject the declarant to criminal liability.
The rule presumes that the declarant would be absent for the rule to be
operative. If this were not the case, the statement would nevertheless be
admissible as a prior inconsistent statement under Rule 801(d)(l)(a).
The statement, in order to be admissible, must be such that a reasonable
man would not have made it unless he believed it to be true at the time. Any
court asked to admit such a statement should examine all of the circumstances
surrounding the statement in order to satisfy itself that the declarant knew
or should have known the statement was against his interest at the time it
was uttered. Occasionally, men will utter statements which are seemingly in
their interest at the time only to learn that the statement has returned to
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haunt them. It would be inappropriate to admit such a statement where oppos-
ing counsel established that the declarant was lying at the time he made it.
ILLUSTRATION
M, the agent for a small trucking company, was trying to impress several
chemical companies of his ability to haul hazardous cargo (HC). M told the
company's agent that he had hauled fifty loads of hazardous materials in the
past month. M's representations are not true, however, his company as a
result of his boasts received several shipments of HC from the companies to
haul to dumpsites. His company is later sued for the unlawful transportation
of the HC. The government seeks to introduce his representations agains M's
company. M had died during the intervening period and is not available for
trial.
While M's statements subjected him and his company to civil and criminal
penalties, they were not true when made and were uttered for the purpose of
securing an advantage for M and his company. It became a source for alarm
only after M and his company became the targets of a law suit. The statement
should not be admitted under Rule 804(d)(3) because it is a false statement;
however, it may be admissible to show a plan or scheme by M to secure (HC)
business for his company.
It should be borne in mind that the rationale for the rule does not stem
from the fact that the declaration is against the declarant's interest, but
from his awareness that it is against his interests to make such a remark.
Where the declarant has unwittingly made a statement against his interest,
some courts have held that such statements cannot be utilized unless the
proponent of the statements can show that the declarant knew the statement
was against his interest at the time he made it. See, Filesi v. United
States, 352 F.2d 339 (4th Cir. 1965); Brennan v. Braswell Motor Freight
Lines, Inc., 396 F. Supp. 704, 708 ng (N.D. Texas 1975).
There are perhaps three rules to consider when assessing a declaration
against pecuniary or proprietory interest. They are:
1. The declarant be fully cognizant of the facts and circumstances
surrounding the statement;
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2. It was against his pecuniary or proprietary interest in that it
threatened him with civil liability;
3. It was made with no apparent or probable motive to falsify.
As stated earlier, the rule allows the introduction of statements
against penal interest; however, the rule requires the proponent of the
statement to provide corroborating evidence to indicate the trustworthiness
of the statement. No quantum of corroborating evidence is specified and the
proponent of the statement need only demonstrate that the declarant:
1) was physically capable of committing the offense;
2) Was in close proximity to the crime scene when it was committed;
3) had some motive or background to serve as a nexus between him
and the crime; and
4) made the statement under circumstances which would indicate
that the statement could be true and was made in good faith.
Statements offered to exculpate a defendent are admissible under this
rule provided they are supported by corroborating evidence. Accordingly, X's
mea culpa may not be admitted at at Y's trial unless some evidence is admit-
ted to support its trustworthiness.
Likewise, a statement offered by a co-defendent for the purpose of
inculpating the defendant is admissible if evidence is offered to corro-
borate the trustworthiness of the statement. There are several factors which
a court should take into account in determining whether the statement is
sufficiently reliable to allow its admission. These factors require the
court to consider:
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1) the situation and circumstances in which the statement was
made;
2) the relationship between the witness and the declarant;
3) the relationship between the declarant and the accused;
4) the role of the declarant in the offense;
5) whether the declarant was in custody at the time he made the
statement;
6) whether the declarant had been advised of his Miranda rights
before making the statement;
7) the status of any charges against him;
8) whether the declarant will be tried jointly with the accused;
9) the declarants' physical condition at time of the statement was
made; and
10) whether the statement exculpates the declarant and inculpates
the accused.
Rule 804(b)(4) - This rule provides for the admission of statements
regarding the declarants' genealogy or such other facts as may pertain to the
personal or family history of the declarant. It is not necessary that the
declarant have personal knowledge, nor does it matter that the declarant is
not a member of the family to which the statement relates. All that is
required is that the declarant be intimately associated with the family in
question, so that it may be said that he was in a position to acquire this
information.
ILLUSTRATION
In a deportation case, X claims that he is a native-born citizen of the
United States but cannot offer any affirmative proof that he was born in the
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U.S. He is entitled to offer into evidence a statement his parents made to
him when he was six years old, that he was born in San Francisco. In the
absence of any evidence that he was not born in the U.S., this statement
shifts the burden of proof to the government.
Rule 804(b)(5) - This provision supplies the catchall for the admission
of hearsay evidence not covered by any of the foregoing rules. The rule
becomes operative whenever the proponent can establish the following:
1) The declarant is unavailable;
2) The probative value of the evidence is high;
3) The evidence possesses the level of reliability arid trustworthiness
associated with the other 804 class exceptions; arid
4) No other evidence is available which is as probative to the issue,
with regard to which, the evidence is offered.
ILLUSTRATION
Assume Z's bank is being robbed and the robbers flee the bank premises
and enter a waiting vehicle. X, a bystander, calls out the tag number to Y,
a bank customer, as the getaway car pulls away from the curb. Y notes the
number on his checkbook and relays the information to W, a bank employee. W
did not hear what X said, but he could see his lips move as he spoke to Y. X
and Y cannot be located to testify at the trial. The statement of X as to
the tag number of the vehicle is admissible. The information has all of the
reliability in that:
1) X did not have any apparent reason to lie;
2) Y did not have any apparent reason to falsify the information;
3) The seriousness of the situation obviously impressed X and Y for a
speedy and accurate response;
4) W saw X's lips move as he spoke to Y;
5) The whole episode occurred within seconds so that the information
was conveyed while it was fresh in X & Y's minds; and
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6) The accuracy of the information relayed to W is underscored by the
fact that Y transcribed it in his checkbook. U.S. v. Medico, 557
F.2d 309 (2nd Cir. 1977).
There is a split of authority as to whether grand jury transcripts may
be admitted under this rule where the declarant is unavailable. The 8th and
4th Circuits favor the admission of grand jury transcripts where there is
sufficient indicia of reliability. The 2nd and 5th Circuits have declined to
admit grand jury transcripts. It would appear that extreme caution should be
•
employed where grand jury minutes are being offered and only transcripts
which are supported by strong indicia of reliability should be admitted.
ILLUSTRATION
Assume X, a drug dealer charged with an offense, agrees to cooperate
with the authorities in order to receive lenient treatment for his offense.
Pursuant to an agreement with the government, X purchases drugs from Y. At
the time he makes the purchase, X is carrying a body radio transmitter and is
under constant surveillance by the agents. The agents record the conversa-
tion regarding the transaction, the agents photograph the transaction and the
agents debrief X moments after the incident. X testifies before the grand
jury and is thereafter murdered. The grand jury minutes of X's testimony
should be admitted for the following reasons:
1) X was seeking lenient treatment so that he was likely to cooperate;
2) X was aware that the agents heard his conversation with Y and had
recorded it;
3) The agents saw the transaction and photographed it;
4) The agents immediately debriefed X after the incident while the
information was still fresh in X's mind, and
5) The agents were available for cross-examination.
Where statements are offered pursuant to this rule, the proponent must
advise the adverse party in advance in order that he may, if he desires,
;
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oppose it. Such notice should include the name and last known address of
declarant and the contents of the statement.
CASES
RULE
804(a)(l)
804(a)(l)
804(a)(l)
804(a)(2)
804(a)(2)
804(a)(2)
804(a)(3)
804(a)(3)
804(a)(4)
804(a)(4)
804(a)(4)
804(a)(4)
804(a)(4)
804(a)(5)
804(b)(l)
804(b)(l)
804(b)(l)(5)
804(b)(l)
804(b)(l) .
CASE NAME
U.S. v. Wood
U.S. v. Pelton
U.S. v. Mangan
Lowery v. Maryland
U.S. v. Bailey
Alston v. U.S.
U.S. v. Amaya
U.S. v. Rogers
Brennan v.
Braswell Motors
Re Master Key v.
Antitrust Ltd.
Gagliardi v. Flint
Depew v. Hanove
Ins. Co.
U.S. v. Driscoll
U.S. v. Mathis
Re Master Key
Antritrust
NLRB v. McClure
Assoc .
U.S. v. Henry
Alston v. U.S.
U.S. v. Driscoll
CITE
550 F.2d 435 (1976)
578 F.2d 701 (1978)
575 F.2d 32 (1978)
401 F.Supp. 604 (1975)
439 F.Supp. 1303 (1977)
383 A.2d 307 (1978)
533 F.2d 188 (1976)
549 F.2d 490 (1976)
396 F.Supp. 704 (1975)
72 F.R.D. 108 (1976)
564 F.2d 112 (1978)
438 F.Supp. 358 (1977)
445 F.Supp. 864 (1978)
550 F.2d 180 (1976)
72 F.R.D. 108 (1976)
556 F.2d 725 (1977)
448 F.Supp. 819 (1978)
383 A.2d 307 (1978)
445 F.Supp. 864 (1978)
COURT
9th
8th
2nd
D.Md.
N.D.Pa.
D.C.App.
5th
8th
N.D.Tex.
D.Conn.
3rd
E.D.Tenn
D.N.O.
4th
D.Conn.
4th
D.N.J.
D.C.App.
D.N.J.
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RULE
804(b)(l)
804(b)(l)(5)
804(a)(3)
804(b)(l)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(3)
804(b)(5)
804(b)(5)
CASE NAME
B-W Accept. Corp.
v. Porter
IN RE IBM
U.S. v. Lyon
Matter of Sterling
Nav.
U.S. v. Gonzalez
U.S. v. Thomas
U.S. v. Satterfield
U.S. v. Hoyos
U.S. v. Oropeza
U.S. v. Benveniste
Depew v. Hanover
Ins.
U.S. v. Thomas
U.S. v. Callahan
Int. Dist. Corp.
v. Amer. Dist.
Matter of Sterling
Nav.
U.S. v. Thomas
U.S. v. Callahan
Int. Dist. Corp.
v. Amer. Dist.
Matter of Sterling
Nav.
U.S. v. Bailey
U.S. v. West
CITE COURT
568 F.2d 1179 (1978) 5th
444 F.Supp. 110 (1978) N.D.Cal.
567 F.2d 777 (1977) 8th
444 F.Supp. 1043 (1978) S.D.N.Y.
559 F.2d 1271 (1977) 5th
571 F.2d 28 (1978) 5th
572 F.2d 687 (1978) 9th
573 F.2d 1111 (1978) 9th
564 F.2d 316 (1977) 9th
564 F.2d 335 (1977) 9th
438 F.Supp. 358 (1977) E.D.Tenn.
571 F.2d 285 (1978) 5th
442 F.Supp. 1213 (1978) D.Minn.
569 F.2d 136 (1977)
D.C.Cir,
444 F.Supp. 1043 (1977) S.D.N.Y.
571 F.2d 285 (1978) 5th
442 F.Supp. 1213 (1978) D.Minn.
569 F.2d 136 (1977)
D.C.Cir.
444 F.Supp. 1043 (1977) S.D.N.Y.
439 F.Supp. 1303 (1977) W.D.Pa.
574 F.2d 1131 (1978) 4th
-197-
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RULE CASE NAME CITE COURT
804(b)(5) U.S. v. Garner 574 F.2d 1141 (1978) 4th
804(b)(5) U.S. v. Carlson 547 F.2d 1346 (1976) 8th
804(b)(5) Cooperweld v.
Demag-Mannesmann-
Bohler 578 F.2d 953 (1978) 3rd
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.
ELEMENTS
A. Hearsay within hearsay not excluded
1. If each part of combined statements
2. Conforms to a hearsay exception
3. As provided by Federal Register of Evidence
COMMENTS
This rule permits the admission of hearsay within hearsay if each
statement possesses the indicia of reliability associated with the other
hearsay exceptions. This problem will often surface with records in which
the writer based the contents of his report on information supplied by
someone else. If the information supplied by both persons would qualify
under a hearsay exception, Rule 805 would appear to apply.
ILLUSTRATION
Assume A is charged with B & C's murder. A shot B and C during a
Shootout at the O.K. Corral. A desires to call W as a witness to testify
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about C's dying declaration to the effect that he was mortally wounded when B
became enraged when he saw A with B's wife and shouted, "I'm going to kill
that . B's statement to C after observing A with his wife qualifies
under the then existing emotional or mental state exception. C's statement
to W qualifies as a dying declaration. Accordingly, W should be allowed to
testify regarding C's statement.
CASE NAME CITE COURT
Yates v. Blair
Transportation 249 F. Supp. 681 (1965) S.D.N.Y.
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 wit-
ness. Evidence of a statement or conduct by the declarant at any time,
inconsistent with his hearsay statement, is not subject to any requirement
that he 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 him on the statement as if
under cross-examination.
ELEMENTS
A. When a hearsay statement is admitted,
1. The credibility of declarant may be attacked or supported,
2. By evidence which would be admissible if the declarant had testified.
B. Declarant need not be allowed to explain any inconsistent statement or
conduct.
C. Party against whom statement is admitted may cross-examine him about
it.
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COMMENTS
This rule permits the party against whom a hearsay statement was admit-
ted to attack the credibility of the declarant with any evidence which would
have been admissible if the witness had testified. Accordingly, the rule
departs from the requirement of Rule 613(b), which requires the examiner to
afford the witness the opportunity to explain or deny any prior inconsistent
statement before it may be admitted. Additionally, if the party against whom
the hearsay statement was admitted calls the declarant, he may examine him as
if under cross-examination.
Therefore, if X introduces a hearsay statement by Z against Y, Y may
offer any of Z's prior conviction or inconsistent statements into evidence
irrespective of the fact that Z is not present.
CASE
RULE CASE NAME CITE COURT
806 U.S. v. Glenn 473 F.2d 191 (1972) D.C.Cir.
806 Rogers v. Roth 477 F.2d 1154 (1973) 10th
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ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 901
REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) General provision. The requirement of authentication or identifi-
cation 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, con-
tents, substance, internal patterns, or other distinctive character-
istics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether
heard firsthand or through mechnical 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 per-
son, 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 com-
pilation, in any form, is from the public office where items of this
nature are kept.
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(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 authen-
tication or identification provided by Act of Congress or by other rules
prescribed by the Supreme Court pursuant to statutory authority.
ELEMENTS
A. Authentication requirement satisfied
1. Where a condition precedent for admissibility
a) Upon presentation of sufficient evidence to support a
finding
b) that the matter in question is what its proponent claims
it to be.
B. Illustrations
1. Testimony by knowledgeable witness
a) that the matter in question
b) is what it purports to be.
2. Nonexpert opinion
a) as to genuineness of handwriting,
b) by person familiar with purported writer's handwriting.
3. Comparisions
a) between two specimens,
b) which have already been authenticated.
4. Distinctive characteristics and the like,
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a) such as appearance, contents, substance, internal patterns,
etc.
b) taken in conjunction with supporting circumstances.
5. Voice identification
a) by person who hears voice firsthand or through electronic
or mechanical devices, and
b) who has heard voice before
c) under circumstances connecting it with alleged speaker.
6. Telephone conversations authenticated by
a) telephone call
b) to number assigned by telephone company to person or
business, where
c) circumstances, including voice i.d., show person answering
to be person called, or where
d) call placed to business and
e) conversation related to business.
7. Public records or reports -
a) writings authorized by law to be recorded or filed,
b) writings in fact recorded or filed in authorized public
offices, or
c) any purported public record, report, statement, etc.
d) in any form.
e) from office where report is supposed to be kept.
8. Evidence of unsuspicious, 20 year old document
a) from proper place, where if authentic,
b) it was likely to be.
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9. Process or system -
a) evidence describing a process or system
b) process used to produce result and
c) evidence that process produces accurate result.
10. Any method of authentication provided by rules or statute.
COMMENTS
Rule 901(a) provides the basis for the admission of evidence if the
proponent of that evidence represents that the evidence is what he claims it
is. Thus, if a witness, who knows X and has been in contact with X contends
that a document is a letter from X, for the purposes of identification and
authentication, the rule has been satisfied. The opponent of the evidence is
not precluded from contesting the genuineness of the evidence; however, the
evidence is admissible if a prima facie case is made to support its authen-
ticity. Rule 901(a) tends to shift the focus of inquiry regarding the
admission of the evidence from competence to probative value. Thus, the '
applicable test is not whether the evidence of genuineness induces a belief
beyond a reasonable doubt that a document is the handiwork of its alleged
drafter, but whether, if it is uncontradicted, a reasonable person might
fairly conclude favorably toward the alleged drafter.
RULE 901(b), - ILLUSTRATIONS
1. TESTIMONY OF WITNESS WITH KNOWLEDGE - This rule codifies the view
that any witness may testify and give information on any matter that he has
knowledge about. This rule is noteworthy in light of the long held belief of
a number of organizations, including N.E.I.C., that chain of custody had to
be maintained with regard to photographs in order that they may be admissible.
Nothing could be further from the truth. All that is needed for the admission
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of the photographs is for the proponent to demonstrate that the witness has
personal knowledge of the facts depicted in the photo and can testify as to
whether the photo correctly depicts those facts. The witness need not be the
photographer or have any knowledge regarding the time or the conditions of
the taking of the photo.
ILLUSTRATION
X, who has lived near the Z river for 20 years, went to the river one
morning and observed thousands of dead fish floating on the surface of the
water. X called EPA, who sent a number of technicians to his residence,
including a photoggrapher. The photographer took a number of photos of
the river as it flowed near X's house. At the trial, the photographer is
unavailable and X is handed the photos by EPA counsel and asked whether he
can I.D. the scene. X may authenticate the photos by testifying that:
1) he is familiar with the scene,
2) he is familiar with the scene as it appeared at the time the photos
were taken,
3) the photos fairly and accurately depict the scene as it appeared,
when he discovered the dead fish. Sims v. Dixgn, 291 A.2d 184, 186
(D.C.C.A. 1972).
2. NONEXPERT OPINION ON HANDWRITING - Any person is competent to
express an opinion regarding the genuineness of a handwriting exemplar after
he has demonstrated to the Court a familiarity with the author's writing,
upon which he may rely in making his determination. The witness need not
have a special relationship with the author, nor must he have observed
a specific quantum or type of exemplar from the alleged author before he may
express his opinion. However, the Court must decide as a preliminary matter
as to whether the witness has a sufficient familiarity with the author to be
competent to express an opinion. It does not matter how he acquired this
familiarity. Any defect as to the source of his familiarity will go the
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weight of his testimony rather than to its admissibility. All that the
witness must demonstrate is that the handwriting exemplars, upon which he
bases his opinion, were genuine. Accordingly, where a witness bases his
opinion upon signatures affixed to typed business correspondence, he may have
to demonstrate that he is sufficiently familiar with the purported author's
signature to know that the author signed the letters rather than his secre-
tary, who might be authorized to sign all of her boss' letters. A similar
problem may be posed where a signature machine is used on a regular basis.
Again, any flaws in the basis for the opinion must go to the weight rather
than its admissibility.
The familiarity with the author's signature must not have been
acquired for the purpose of litigation. Only where an expert witness is
involved may writing exemplars be examined for purposes of litigation. In
such a situation, the expert may give his opinion based on his examination of
genuine samples and the questioned document.
3. COMPARISON BY TRIER OR EXPERT WITNESS - This rule allows a party
to establish the origin of a piece of evidence by comparing that piece of
evidence to a known specimen. Accordingly, a handwriting expert may testify
that a questioned document was or was not written by a particular individual
by comparing the questioned document to a known source. Likewise, a ballis-
tics expert may express an opinion, regarding whether a bullet was fired from
a particular gun, by comparing the bullet with one fired from the suspected
weapon. Whether a specimen is sufficient in quantity for comparison pur-
poses, goes to the weight of the evidence rather than its admissibility.
Accordingly, whether a fingerprint expert should require ten (10) points
of identification before he makes a comparison or may use less goes to the
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weight of the comparison and not to its admissibility. As a preliminary
matter, a party is required to establish the authenticity of a known sample.
Thereafter, a comparison of the unknown sample may be made by the expert with
the known sample.
Irrespective of the availability of testimony from an expert wit-
ness, the trier of fact may make its own comparison of a known and questioned
object and draw its own conclusions. This procedure is also subject to the
condition that the known sample be properly authenticated.
4. DISTINCTIVE CHARACTERISTICS AND THE LIKE - This rule provides for
the admission of writings or other matters which possess such distinct char-
acteristics that the source of such material is identified. Accordingly,
where a letter or substance could have only come from one source, and the
circumstances surrounding the presentation of the evidence supports this
conclusion, the evidence is deemed authenticated within the purview of the
rule.
Once this inference is created in favor of admitting the evidence,
the opponent of the evidence may rebut this inference by introducing evidence
to support the view that it could have come from another source. Once this
evidence is presented, it is up to the trier of fact to determine what weight,
if any, to give the inference.
ILLUSTRATION
Assume X tells Y a dark secret and instructs Y not to tell anyone about
the secret inasmuch as only X and Y are the only persons who know about it.
A day later, X receives an anonymous note attempting to extort money from him
in return for not revealing the secret. X reports the extortion attempt
to the F.B.I., who later arrest Y and charge him with extortion.
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At Y's trial the government seeks to introduce the note into evidence by
showing through X that only Y knew the secret and therefore was in a position
to write the note. The letter should be admitted inasmuch as it is authen-
ticated by the fact that only Y knew X's secret and therefore, could have
written the note. The strong inference created by this evidence may be
rebutted or weakened by Y through a showing that he immediately told X's
secret to ten (10) other people, who had the same information and capability
to write the note.
5. VOICE IDENTIFICATION - Rule 901(b)(5) provides for the identifica-
tion of any voice by any person who is capable of connecting the voice with
the alleged speaker after hearing the voice. The courts are in agreement
that a witness may identify a person solely on the basis of recognizing the
person's voice. As a preliminary matter, the Court should decide whether the
witness has sufficient familiarity with the person's voice to make an iden-
tification. The degree of familiarity with the person's voice is not impor-
tant and merely affects the weight to be given the testimony. Accordingly,
a Court might find that a witness who hears only a few phrases, in a voice he
has never heard before, may be capable of making a voice identification,,
United States v. Washington. 253 F.2d 913 (7th Cir. 1958).
The peculiarities of the voice, the time between hearing it and
identification, the acuteness of the listener's hearing, the decibel level of
the speaker's voice, the number of times the voice was heard, the length of
each hearing and whether the listener saw the speaker as he spoke are all
factors which a jury should weigh in deciding the weight to give the identi-
fication. Voices heard over a transmitting or recording device may be
identified in much the same manner as a voice heard directly. Voice identi-
fications need only be reliable enough to establish a prima facie case of
identification. Thereafter, it is up to the trier of fact to decide how much
weight to give the testimony.
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A witness testifying regarding a conversation heard over an elec-
tronic device should testify as to the ability of the device to accurately
reproduce the voice heard and thereafter identify the speaker. This may be
accomplished by hearing the witness explain the operation of the recording
device, his method of operating it and the identity of the speaker.
6. TELEPHONE CONVERSATIONS - Rule 901(b)(6) allows evidence to be
admitted to identify the person or place called through a showing that, (1) a
call was placed to a number listed by the telephone company to a person or
place; (2) that a person answered the phone and identified himself as the
person called or discussed business related to the nature of the business
called; and (3) there is enough evidence, circumstantial or direct, to insure
the trustworthiness of the identification of person or place called.
In the case of a business, testimony that a call was placed to a
number listed as belonging to a certain business is prima facie evidence that
the business was called and the person spoken to was authorized to conduct
the business of the organization. This inference is strengthened where an
event occurs as a result of the telephone call such as, where a letter or
package relating to the conversation is sent by the place called.
ILLUSTRATION
Assume X calls a number listed to the downtown YWCA and requests that a
dozen chocolate cookies be sent to his home address. Two hours later, a
courier arrives with a box containing a dozen cookies. This latter event
confirms the fact that the place called was indeed the YWCA. The mere fact
that the person called identifies himself as the person sought is not suffi-
cient proof of identity; additional proof is needed. For example, where a
call is placed to a number listed to X and a person who calls himself X
answers the phone, the circumstance of the listing provides support for an
inference that X answered the phone.
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Other factors that tend to authenticate a telephone call are:
1) knowledge of the speaker's voice characteristics;
2) the revelation of information that only the person called would
have known; and
3) where the person calling is doing so in response to some duty
imposed by the witness, such as a business reply call.
Where a claim is made that the witness recognized the speaker's
voice, testimony should be produced to indicate how this knowledge was
acquired. The witness need not be certain of his identification for the
court to receive his testimony. A single, brief face-to-face meeting may
form the basis of a voice identification. Any problems regarding the accu-
racy or reliability of the identification are matters to be resolved by the
trier of fact.
7. PUBLIC RECORDS - This rule allows the admission of a public record
containing writings or data compilations if it is from an office authorized
by law to keep such a document. The proponent of this evidence must make a
prima facie showing that the document is a public record and that it comes
from an office authorized by law to keep it. The latter factor may be
proven by:
1) a certificate from the office stating that the document comes
from that office;
2) the testimony of the custodian of the record;
3) the testimony of a public official whose duty it is to keep
such a record; and
4) the testimony of a witness who has personal knowledge that the
record was in fact kept in the official or authorized office.
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In a situation where the document appears on its face to possess
all of the indicia of a public document, the Court is not precluded from
taking judicial notice of that fact; provided, there is no reason to suspect
the origin of the document. This rule applies not only to paper records
and documents, but may apply to microfilm, videotapes, etc. The person who
testifies regarding the custody of the document does not have to be aware of
its contents.
8. ANCIENT DOCUMENTS OR DATA COMPILATIONS - Under this rule, documents
or other forms of data compilations may be admitted as authentic where it is
demonstrated that the exhibit has been in existence for twenty (20) years,
has no suspicious characteristics and was found in a place where such a docu-
ment was likely to be found. The rule departs from the common law in that it
reduces the age requirement for the document from 30 to 20 years.
Any witness with knowledge may testify that a document has been in
existence for a twenty year period. Where this is not possible, an expert
may be called to establish age on the basis of identifying the age of the
paper, ink, type or other factors which suggest the age of the documents.
The age of the document must be determined from the date of first
existence rather than from the data of latest use. Additionally, the Court
may in its discretion admit a document which has not attained the twenty year
age if it possesses sufficient indicia of reliability.
For the document to be above suspicion, it must not contain erasives
or other marks which suggest a change of authorship. Moreover, the document
may not be contrary to historic fact or contain entries which were written at
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different time periods. (However, this would not apply to docket or other
records which are by their nature updated).
9. PROCESS OR SYSTEM - This rule permits evidence resulting from the
use of computers or other systems to be admitted following a showing that the
system produces an accurate result. The person who provides this foundation
need not be the person who programmed or operated the computer. However, he
should be prepared to testify concerning the use and operation of the machine
with enough detail to support a finding that the system produces an accurate
result.
Where the machine has produced a large quantity of data and print-
outs, the material should be presented to opposing counsel in advance of
trial in order that he may be able to prepare his objections to challenge
the material without unduly delaying the proceedings.
Polls and surveys have been steadily gaining acceptance and this
rule permits their admissions provided a proper foundation is laid. The
proponent of the survey must demonstrate that the poll was conducted accord-
ing to currently recognized scientific polling methods and that the poll
reflects the universe as a whole.
10. METHODS PROVIDED BY STATUTE OR RULE - This provision allows any
method of authentication or identification provided by any Act of Congress or
by the Civil or Criminal Rules of Procedure to be used. Any method may be
used and a proponent of an exhibit is not limited to one method merely
because it is covered by a specific statute.
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CASES
RULE
CASE NAME
CITE
901 (a)
901 (a)
901 (a)
901(a)
901 (a)
901(a)
901(a)
901 (a)
901(a)
901 (a)
901 (a)
901(a)
901(a)
901(b)(l)
901(b)(l)
901(b)(l)
901(b)(l)
901(b)(l)
901(b)(l)
901(b)(l)
901(b)(2)
901(b)(2)
901(b)(2)
901(b)(2)
901(b)(3)
901(b)(3)
901(b)(3)
901(b)(5)
901(b)(5)
901(b)(5)
901(b)(5)
901(b)(6)
90l(b)(6)
901(b)(6)
901(b)(7)
90l(b)(10)
U.S. v. Gutierrez
U.S. v. Craig
Clifford v.
Tran south
U.S. v. link
U.S. v. Albert
U.S. v. Carriger
U.S. v. Barnes
U.S. v. Luna
Alex Dawson v.
NLRB
U.S. v. Richardson
U.S. v. DeLafuente
U.S. v. Fuentes
U.S. v. Hyatt
U.S. v. Levine
U.S. v. Richardson
U.S. v. Moskowitz
U.S. v. McNair
U.S. v. Helberg
U.S. v. Albert
U.S. v. Gipson
U.S. v. Woodson
U.S. v. Standing
Soldier
U.S. v. Carriger
U.S. v. Pitts
U.S. v. Reece
U.S. v. Greenfield
U.S. v. Nashawaty
U.S. v. Williams
U.S. v. Cambino-
Valencia
U.S. v. Kirk
U.S. v. Hassell
U.S. v. Scully
U.S. v. Sawyer
U.S. v. Watson
U.S. v. Wilson
Keasler v. Nat.
Gas Pipeline Co.
576 F.2d 269 (1978)
573 F.2d 455 (1977)
566 F.2d 1023 (1978)
612 F.2d 512 (1980)
595 F.2d 290 (1979)
592 F.2d 312 (1978)
586 F. 1052 (1978)
585 F.2d 1 (1978)
586 F.2d 1300 (1978)
562 F.2d 476 (1977)
548 F.2d 528 (1977)
563 F.2d 527 (1977)
565 F.2d 229 (1977)
546 F.2d 658 (1977)
562 F.2d 476 (1977)
581 F.2d 14 (1978)
439 F.Supp. 103 (1977)
565 F.2d 993 (1977)
595 F.2d 290 (1979)
609 F.2d 894 (1979)
526 F.2d 550 (1975)
538 F.2d 196 (1976)
592 F.2d 312 (1979)
569 F.2d 343 (1978)
547 F.2d 432 (1977)
574 F.2d 305 (1978)
571 F.2d 71 (1978)
443 F.Supp. 269 (1977)
609 F.2d 605 (1979)
534 F.2d 1262 (1976)
547 F.2d 1048 (1977)
546 F.2d 255 (1976)
607 F.2d 1190 (1979)
594 F.2d 1130 (1979)
535 F.2d 521 (1976)
84 F.R.D. 364 (1979)
CIRCUIT
COURT
10th
7th
5th
10th
5th
5th
10th
2nd
9th
7th
5th
2nd
2nd
5th
7th
2nd
E.G.Pa.
8th
5th
8th
9th
8th
5th
5th
8th
5th
1st
S.D.N.Y,
2nd
8th
8th
9th
7th
10th
9th
E.D.Tex.
213
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RULE 902
SELF AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admis-
sibility 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, dis-
trict, 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 pur-
porting to bear the signature in his 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 sig-
nature is genuine.
(3) Foreign public documents. - A document purporting to be
executed or attested in his 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 per-
son, or (B) of any foreign official whose certificate of genuineness
of signature and official position relates to the execution or attesta-
tion 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 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 publica-
tions purporting to be issued by public authority.
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(6) Newspapers and periodicals. - Printed materials purporting to
be newspapers or periodicals.
(7) Trade inscriptions and the Tike. - 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 certi-
ficate of acknowledgement executed in the manner provided by law by
a notary public or other officer authorized by law to take acknowledge-
ments.
(9) Commercial paper and related documents. - Commercial paper,
signatures thereon, and documents relating thereto to the extent pro-
vided by general commercial law.
(10) Presumptions under Acts of Congress. - Any signature, docu-
ment, or other matter declared by Act of Congress to be presumptively or
prima facie genuine or authentic.
ELEMENTS
A. Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required for
1. Domestic public documents under seal with a signature purport-
ing to be an attestation.
2. Domestic public documents not under seal with signature of
officer in official capacity for entity having no seal.
3. Foreign public documents attested by person authorized by law
with certification that signature is genuine and made in
official capacity and a reasonable opportunity has been allowed
to verify authenticity.
4. Certified copies of public records.
5. Official publications issued by public authority.
6. Printed materials purporting to be newspapers or periodicals.
7. Trade inscriptions, signs, tags or labels purporting to be
affixed in the ordinary course of business and indicating
origin, ownership, etc.
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8. Acknowledged documents accompanied by a certificate of acknow-
ledgement executed in the manner provided by law.
9. Commercial paper and related documents and signatures thereon
to the extent provided by commercial law.
10. Presumptions declared by Act of Congress.
COMMENTS
This rule provides for the general admission of documents or classes of
writings where the attending circumstances render it unreasonable to require
further authentication. There are often other indicia of reliability asso-
ciated with a writing which would require admission under other rules; how-
ever, the purpose of this rule is to reach those writings about which the
danger of undue cost or delay in authenticating the document by other means
far outweigh any danger of forgery or falsification.
1) DOMESTIC PUBLIC DOCUMENTS UNDER SEAL
This rule allows the admission of documents bearing the seal of
the generating office or the office of custody. The document's existence is
established by a certified true copy stamp. The certification establishes
the fact of recording rather than the genuineness or correctness of the
document or its contents.
2) DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL
At common law, where an official had a seal signifying his office,
only the application of that seal by the signing official was considered
valid. This rule is designed to cover situations in which the seal is in the
possession of an official other than the signer of the document.
216
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The only requirement under the rule is that the officer certifying
the genuineness of another's signature, have duties in the office division of
the officer whose signature he certifies. This insures a minimum connection
between the certifying officer and the signing officer in order that the
former may represent that the Tatter's signature is genuine. Additionally,
the officer executing the document must sign it in his official capacity and
have authority to affix his signature to the document.
3) FOREIGN PUBLIC DOCUMENTS
This rule permits the certification of a foreign document or copy
thereof by an authorized person rather than the custodian of the record. The
officer merely certifies the genuineness of the officer's signature, as well
as, his official position. Where there are a number of signatures on
the document, the officer need only certify the last one.
4) CERTIFIED COPIES OF PUBLIC RECORDS
This rule permits the certification of records by the records
custodian, where it would be difficult or impractical to remove the original
for production at trial. The custodian's signature along with a statement
that he has the original and that the copy is a correct reproduction of the
original will suffice, even in the absence of a seal. There is no magic
language which the certifier must use except that he must indicate that he
has possession of the original and that the copy is a correct reflection of
it. Where a literal copy cannot be obtained through due diligence, Rule 1005
permits the use of summaries for the same purpose.
A certificate attesting to the absence of an official record may
also be made under the provisions of this rule.
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5) OFFICIAL PUBLICATIONS
This rule requires only that the publication be printed pursuant to
public authority. Often private printers will publish their versions of the
official publication. These publications, although not printed under official
sanction, are nevertheless accepted as if they were official publications
inasmuch as they have generally been found to be accurate. The likelihood of
inaccuracy is deemed remote, inasmuch as, the private printer's reputation
may rise or fall on the accuracy of his publication. Additionally, he may be
subject to legal action if he proffers to the public an inaccurate version
under a representation that it is accurate.
ILLUSTRATION
Assume X desires to quote a passage from the papers of Harry Truman. He
does not have a copy of the volume printed by the Government Printing Office.
However, he does have a paperback copy of the book as printed by Dell Publish-
ing Co. Although the book printed by Dell is not an official version, the
courts will probably admit it inasmuch as Dell had great incentive to print a
correct and true copy (e.g., loss of reputation).
6) NEWSPAPERS AND PERIODICALS
This rule allows the admission of newspaper accounts without
authentication. Inasmuch as it is unlikely that newspaper accounts will be
forged, the genuineness of the account, as opposed to truthfulness, will not
be in dispute.
Notices or advertisements appearing in newspapers are prima facie
evidence that the named advertiser authorized its printing, inasmuch as, it
is unlikely that a newspaper would provide free advertisement on its own
initiative without being induced to do so.
Newspaper accounts may be used for its historical significance
especially where the news accounts delve into relatively ancient and obscure
218
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matters. It has long been recognized by the courts that news accounts are
important sources of history.
ILLUSTRATION
Assume X power company challenges EPA's assertion that it dumped pol-
lutants into the waters of the United States by contending that the river was
not navigable. It would be proper for EPA's attorneys to introduce ancient
newspaper accounts describing the commercial use of the river during the
19th Century.
7) TRADE INSCRIPTION AND THE LIKE
Because trade inscriptions are relied upon as a matter of good
business practice by consumers and the business world, trademarks or brands
are deemed to be self-authenticating. Because trademarks and brand names are
registered under and governed by federal and state law, no one should use a
mark unless authorized to do so. Accordingly, where a trademark is affixed
to a product, it is deemed to have been placed there with the permission of
the owner or that the property to which it is affixed belongs to the owner of
the brand.
8) ACKNOWLEDGED DOCUMENTS
This rule allows the self-authentication of documents acknowledged
by a notary public. The rationale behind this rule is that if a person comes
before a notary, who knows him, and swears that he signed the document, there
is no reason to question the authenticity of the instrument.
9) COMMERCIAL PAPER AND RELATED DOCUMENTS
This rule adopts state law regarding commercial paper. Accordingly,
where a document is given presumptive effect by the Uniform Commercial Code,
it should be admitted where the instrument appears on its face to be what its
proponent claims it is.
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10) PRESUMPTIONS UNDER ACTS OF CONGRESS
This rule provides for the admission of evidence without the task
of authenticating it, if a statute or Act of Congress provides for its
admission. These statutes often make the mere affixing of a signature on a
document to be an authenticating feature (e.g., 22 U.S.C. 1195 and 1203).
Other statutes make the contents of certain documents prima facie evidence of
the statements contained therein. (46 U.S.C. §651 and 672(b)). These
statutes often use the terms "prima facie" or "presumption" to establish the
effect of the Act.
CASES
RULE
902
902
902
902(1)
902(1)
902(1)
902(1)
902(1)
902(2)
902(3)
902(4)
902(5)
902(9)
CASE NAME
U.S. v. Hitsman
U.S. v. One Piper
Engine
Matter of Sterling
U.S. v. Trotter
U.S. v. Wingard
U.S. v. Moore
Zambito v. Blair
Miss. Power v. N.R.C,
U.S. v. City of
McAlester
U.S. v. One Piper
Engine
U.S. v. Stone
Uniroyal v. Jetco
Auto
U.S. v. Carriger
CITE
CIRCUIT
COURT
604 F.2d 444 (1975)
594 F.2d 1040 (1979)
444 F.Supp. 1043 (1977)
538 F.2d 217 (1979)
522 F.2d 796 (1978)
555 F.2d 658 (1978)
610 F.2d 1194 (1978)
601 F.2d 223 (1979)
410 F.Supp. 848 (1976)
594 F.2d 1040 (1979)
604 F.2d 923 (1979)
461 F.Supp. 350 (1978)
592 F.2d 312 (1979)
5th
5th
S.D.N.Y.
8th
4th
8th
4th
5th
E.D.Okla
5th
S.D.N.Y.
6th
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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ELEMENTS
A. Testimony of a subscribing witness
1. Not necessary to authenticate a writing
2. Unless required by State law or jurisdiction
3. Whose laws govern validity of writing.
COMMENT
It is the practice in the federal courts to allow the execution of
attested documents to be proven in the same manner as unattested documents,
except where it is disallowed by statute. Accordingly, where a document is
executed and is later the subject of controversy, the witness to the execu-
tion of the document need not be called to testify, unless required by
law.
221
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ARTICLE X, CONTENTS OF WRITINGS,
RECORDINGS, AND PHOTOGRAPHS
RULE 1001
DEFINITIONS
For 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 hand-
writing, 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 photo-
graph includes the negative or any print thereform. If data is 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 source matrix, or by means
of photography, including enlargements and miniatures, or by mechnical
or electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original.
ELEMENTS
A. Writings and recordings.
1. Consists of letters, words, numbers or their equivalent,
2. Set down by handwriting, typewriting, magnetic impulse, elec-
tronic recording, etc.
B. Photographs
1. Consists of video tapes, x-ray, films, etc.
C. Original consists of
1. A writing or recording itself,
2. A counterpart intended to have same effect, or
3. Negative of photo or printout of computer.
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D. Duplicate consists of -*
1. Counterpart made from impression of original, or
2. Any other technique which accurately reproduces the original.
COMMENTS
Rule 1001(1) - This rule defines writings as that term may be applied
to chattels, documents, photographs, or anything in which the important fea-
ture is no.t the medium upon which the writings are affixed, but the writings
themselves. Modern technology has provided many mediums for storing informa-
tion; however, for the purpose of this rule, the form which information
ultimately assumes for usable purposes, is words and figures. Accordingly,
if words and figures are depicted on a medium, it is of little importance
what the medium consists of photographs, computer tape, etc.
Often problems are encountered where the best evidence rule is
applied to writings on chattel (words written on a badge). Often the chattel
may not be easily produced in court. Accordingly, a photograph of the chat-
tel will serve the same purpose, under the rule, as the object itself.
ILLUSTRATION
Assume X and Y are in litigation and a fact in issue centers around the
cornerstone of a building in a distant city. X desires to introduce into
evidence the inscription on the stone and accordingly proffers a photograph
of the cornerstone depicting the inscription. Y objects that the best evi-
dence is the cornerstone and that the court should adjourn and reconvene at
the site of the stone for the purposes of examination. X argues that in an
age of advanced technology, photographs are capable of accurately reproduc-
ing a scene as to inscription or writings as they would appear to the naked
eye. Accordingly, he urges the acceptance of the photograph. The court
should accept the photograph subject to Y producing evidence that the photo-
graph does not accurately depict the writing in the stone.
Other factors that the court should consider are the need for exact
information as to the inscription, the ease or difficulty required to produce
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it for inspection, the complexity of the inscription and the difficulty in
photographing or reproducing the inscription.
Rule 1001(2) - This rule recognizes the fact that the contents of photo-
graphs, x-rays and the like may be subject to the best evidence rule, inasmuch
as, the contents of the photographs may be the subject of controversy. While
the best evidence rule normally applies to the contents of writings, a modi-
fied application of the rule will surface where a witness is not likely to
accurately testify, as to what he observed in a photo, without the actual
production of the photo. This state of affairs may surface in a copyright
infringement action or a libel action. Likewise, an expert witness should
not be allowed to give testimony concerning what he observed in an x-ray
without first producing the x-ray or explaining why it can't be produced.
Under this definition, of what constitutes a photograph, is included any
medium which is capable of duplicating the exact features of another object.
While many objects or evidence may be produced in court in the form of
"photographs", it should be borne in mind that oral testimony, while not the
best evidence, may be presented as well.
ILLUSTRATION
A film clip by ABC of a plane crash may be the most accurate or "best
evidence". However, its production at trial does not prevent its proponent
from introducing oral testimony concerning the same crash. ---*--
Rule 1001(3) - This rule defines the "original" of any writing or
recording as a writing or recording which receives or is accorded judicial
significance. Often people view an original as the first document and any
document made thereafter, from the original or first document, is called a
duplicate or copy. In the manner in which the above terms are applied, the
224
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chronology of origin is considered decisive. Accordingly, whatever document
is created first is normally considered the original and any document there-
after is a duplicate or copy.
Under the rule, the above distinctions are removed and the parties
determine to which document the term original will apply. However, there are
occasions when acts of the parties may cause distinctions to arise between
documents as to what document is the original and what document is a copy.
ILLUSTRATIONS
1) The copy of a contract or document containing all of the terms and
signed by all of the parties is the original.
2) The signed receipt is the original where delivery of goods is in
issue; and
3} Where all carbons of a document are signed by the parties and
notarized, no document may be preferred over the other because by
the mere signing of each form, the signature asserts to the opera-
tive effect of that document.
The effect that a party intends for a document to have may effect
whether it is an original or copy.
ILLUSTRATION
1) A signed letter tendering an acceptance to an offer will be the
original in an action to determine whether an acceptance was made.
A carbon copy of the letter in the files of the agent will be the
original where the issue is whether he was authorized to accept.
2) A signed letter conveying a plea offer to the defendant is the
original. A carbon copy in the defendant's file is the original
where the issue is whether he knew of the offer.
The mere fact that the parties may refer to a document as a copy is not
controlling where the attending facts point to the contrary.
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ILLUSTRATION
Assume X, counsel for Y, drafts a settlement agreement, which is designed
to end a law suit between W and Y. He sends duplicates of the agreement to
Y, W and P, W's counsel in the case, with a request for their approval. He
retains the draft from which the duplicates were made in his possession. Y,
W, and P sign their copy of the agreement and mail it to X. X signs the
draft and files the other signed papers along with the draft. In the above
scenario, all four documents are originals for purposes of the agreement.
Where X provided each party with a letter of acceptance to sign in lieu of
signing the agreement, each signed letter of acceptance is an original.
Where information is contained in a medium not readily understood by the
average person, the first production of the information in a form that can be
understood is the original.
ILLUSTRATION
Assume X has data from a computer which he wants to have presented to
the trier of fact. The existing form of the data cannot be readily under-
stood by the Jury. Accordingly, X should be allowed to reproduce the infor-
mation, contained in the computer, in a form that can be understood. When
this occurs, the new form of the data becomes the original.
In dealing with problems concerning whether a document should be con-
sidered as an original or a copy, one should consider the purpose for which a
document is being offered first. Thereafter, the intent of the parties at
the time the document was created should be examined. Finally, one should
consider whether the form in which the document appears is the first real
evidence of the data in a comprehensible fashion.
Rule 1001(4) - This rule defines duplicate as any type of reproduction,
regardless of the reason for which it was made, if it is produced by a
process designed to insure an accurate reproduction of the original. The
duplicate and the original are often produced at the same time, such as where
carbon paper is employed. Where this occurs, the carbon is considered to be
a duplicate original. Accordingly, it is not necessary for the parties to
226
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have signed the carbon or have indicated their intention to treat it as an
operative writing for it to be accorded duplicate status. The carbons are
not copied from the originals, but are created with the original in one
mechanical stroke.
Under this rule, what the parties intended to be the object of their
actions is also a controlling factor.
ILLUSTRATION
If X types an agreement in Y's presence and keeps the ribbon copy for
himself and sends the carbon to Y, the one he keeps for himself is the
original and the one he gives Y is the duplicate original because they intend
that both documents embody the essence of the agreement. On the other hand,
where X individually types a letter and sends Y the ribbon copy and keeps the
carbon for himself, the ribbon copy is the original and the carbon version is
the copy.
As noted in the above example, the intent of the parties is important in
determining whether a document qualifies as an original or duplicate. Where
attorney X files a carbon copy of a pleading with the court and marks it
"original", the document is the original irrespective of whether a ribbon
copy is in existence. This is especially true inasmuch as ribbon copies
may be produced at will through the use of special memory typewriters.
CASES
CIRCUIT
RULE CASE NAME CITE COURT
1001 CTS Corp. v. Piher 527 F.2d 95 (1975) 7th
1001 Zenith v. Matsushita 478 F.Supp. 889 (1979) E.D.Penn.
1001 U.S. v. Thevis 84 F.R.D. 69 (1979) N.D.Ga.
1001(4) U.S. v. Gipson 609 F.2d 894 (1979) 8th
1001(4) U.S. v. Foley 598 F.2d 1326 (1979) 4th
227
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RULE 1002
REQUIREMENT OF ORIGINAL
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.
ELEMENTS
A. To prove the content of a writing, recording or photograph,
1. Original writing, etc, is required, except
2. As provided provided by Rules of Evidence, or
3. Act of Congress
COMMENT
This rule codifies the best evidence rule by requiring the original to
be produced where the contents of a writing is in dispute. It's an elemen-
tary principle of law that no evidence will be received from a party regard-
ing the contents of a writing if it is not the best evidence he can produce.
Before a party may introduce evidence, which by its character suggests
the existence of better evidence, he must explain his inability to produce
the better evidence.
The rule does not preclude the admission of testimony where the contents
of a writing merely records events to which the testimony relates.
ILLUSTRATION
X observes an event and provides the government agent with a statement
regarding what he had seen. X may testify at trial concerning the event
inasmuch as the writing is a by-product of the best evidence, X's memory.
Assume X hears Y testify at a Congressional hearing and at that time, Y
committed perjury. X can be called to testify at Y's trial, inasmuch as,
the statements alleged to be purjurious may be proved by any person who
heard them, as well as, the reporter who recorded them.
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Likewise, where a writing merely memorializes an event, the event may be
the subject of oral testimony.
ILLUSTRATION
X gives Y a sum of cash as full payment for a debt. This fact is reduced
to writing and acknowledged by X and Y. Y later sues X for non-payment of
the debt. X seeks to testify that he paid Y and further states that the
event was reduced to writing although he no longer has a copy of the receipt.
Y seeks to exclude the testimony on the ground that the best evidence of
payment is the receipt.
In the above scenario, both the testimony of X that he paid Y and the
receipt would be competent evidence. The loss of the writing does not
operate to exclude the testimony of an event perceived and participated in by
the witness. Where the existence of a document and not its contents is in
issue, the rule does not apply and oral testimony may be admitted in lieu of
the document.
ILLUSTRATION
Assume at X's gambling trial, the government seeks to introduce evidence
through Y that X had in his possession what appeared to be number slips on a
particular day. The witness should be allowed to testify about what he saw,
which exists apart from the contents of the slips of paper. When the
government seeks to show that they were in fact number slips, the papers
should be produced, inasmuch as, only their contents will establish them to
be gambling paraphanalia.
CASES
CIRCUIT
RULE CASE NAME CITE COURT
1002 U.S. v. Watson 594 F.2d 1330 (1979) 10th
1002 Simpson v.
Northwesco 442 F.Supp. 1102 D.S.D.
1002 U.S. v. Gavic 520 F.2d 1346 8th
1002 U.S. v. Gonzalez-
Benitez 537 F.2d 1051 (1976) 9th
1002 U.S. v. Winkle 587 F.2d 705 (1979) 5th
229
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RULE 1003
ADMISSIBILITY OF DUPLICATES
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.
ELEMENTS
A. 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. Under the Circumstances, it would be unfair to admit the dupli-
cate in lieu of the original.
COMMENTS
This rule provides for the substitution of duplicates for the original
where no question exists as to authenticity of the original and it would not
be unfair under the circumstances to admit the duplicate in lieu of the ori-
ginal. For evidentiary purposes, duplicates and originals are interchange-
able under the operation of this rule. Therefore, where duplicate originals
are involved, only the question of authenticity bars the admission of the
document.
One problem often surfaces where an original and a duplicate are prepared
and subsequently changes are made on one of the two documents, which are not
reflected in the other. Where this occurs, for the duplicate to be substi-
tuted for the original, the duplicate must have been made after the original
assumed its final form. Where the original is altered, both the original and
the unaltered duplicate should be introduced into evidence along with testi-
mony as to the terms of the original.
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The duplicate is inadmissible, if the original would not have been admis-
sible. Where the duplicate is of poor quality or may be misleading through
its lack of clarity, it should be excluded unless it is the only evidence
readily available. In such a circumstance, the court should determine
whether its probative value outweighs any reason to exclude it.
The duplicate may be excluded where under the attending curcumstances,
it would be unfair to admit the document. While a list of circumstances
under which a document should be excluded under this rule would be difficult
to catalog, it would be fair to suggest that the rule would be inoperative
where the duplicate reveals irregularities within its four corners. The
reason for excluding this evidence is that these irregularities may go to
the very integrity of the document and thus may restrict the ability of a
party to rebut it. Additionally, such a document should be excluded where
the actions of the proponent contributed to the inability of the opposing
party to resist or respond to it.
The rule should operate where no genuine issue exists as to authenticity
and no other reason or circumstance exists for requiring the original.
CASES
CIRCUIT
RULE CASE NAME CITE COURT
1003 Fidelity Trust v.
Pioche Mines 587 F.2d 27 (1978) 9th
1003 U.S. v. Rodriquez 524 F.2d 485 (1975) 5th
1003 U.S. v. Morgan 555 F.2d 238 (1977) 9th
1003 U.S. v. Rangel 585 F.2d 344 (1978) 8th
1003 U.S. v. Gipson 609 F.2d 893 (1979) 8th
231
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RULE 1004
ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
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;
(2) Original not obtainable. Nor original can be obtained by any
available judcial 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, he was put on
notice, by the pleadings or otherwise, that the contents would be a
subject of proof at the hearing, and he 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.
ELEMENTS
A. The original is not required, other evidence of contents of writing,
recording or photograph admissible if:
1. All originals are lost or destroyed;
a. Unless loss or destroyed in bad faith.
2. Original not obtainable through judicial process or procedure.
3. Original in possession of opposing party, and
a. He was put on notice by pleadings or otherwise
b. That the proponent desires to proffer the contents of the
writings, and
c. Opposing party does not produce original at hearing.
4. The writing, recording or photograph is not related to control-
ling issue.
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COMMENT
This rule is a codification of the old common law rule allowing secon-
dary evidence to substituted where the original is unavailable. Under this
rule, there is no degree of secondary evidence and a party may introduce any
class of evidence as a substitute. It is the view of many commentators that
a party will always seek to produce the best evidence available and conse-
quently, the failure to provide rules governing secondary evidence may be
overlooked. The defects of any secondary evidence will go to its weight, not
to its admissibility.
Rule 1004(1) - This rule provides for the admission of secondary evi-
dence, if it is established that the original of that evidence has been lost
or destroyed. Although the rule does not contain such a requirement, the
proponent of the secondary evidence should offer evidence that he has made a
diligent search for the best evidence without success. Without this showing,
a party cannot establish that the evidence is truly lost.
Where the loss or destruction of the original evidence was procured
through bad faith by the proponent, the secondary evidence should be excluded.
The fact that the original was destroyed, indicates a basis for suspicion and
the law is wary of one who voluntarily deprives himself of the best evidence.
Where a party destroys the original, he must satisfy the court of the
absence of fraud in the destruction of the evidence and to demonstrate that
the destruction was by mistake or done in the ordinary course of business.
Where a document is lost, the court must first find, as a preliminary matter,
the existence of the original document. Thereafter, the proponent must
establish the loss and contents of the document. Commentators disagree as to
233
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whether due execution of the document should be proven before or after the
loss has been established. It would appear that establishing the existence
of the document would occur simultaneously with showing the execution of the
document, inasmuch, as both requirements contain proof of elements of each.
ILLUSTRATION
If X is testifying concerning the loss of his copy of a contract, which
he executed with Y, it is not important at this point for X to testify that Y
signed or executed the contract. On the other hand, how will he establish
that a contract existed unless he demonstrates that Y signed the paper.
The extent to which a party must search for a missing document, before
secondary evidence is allowed, depends in large measure on the following
factors:
1) Whether the circumstances suggest bad faith on the part of the
proponent of the secondary evidence;
2) The importance of the document and how its loss will impact upon the
case (where the loss may defeat the cause of action, an extensive
search should be mounted);
3) The age of the instrument (the probability of loss or destruction
increases with age);
4) The lapse of time since the document was last seen; and
5) Whether the document was lost before or after the lawsuit was filed
(once a cause of action is identified, parties are more likely to be
careful with those materials which support their claim).
In establishing whether an adequate search was made for the original,
the court should inquire into whether the proponent has searched every place
such a document would likely to have been laid and whether every person
who may have had an opportunity to see it or move it was questioned. The
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question of proof necessary to satisfy the court that the loss of the docu-
ment was unintentional depends upon the attending circumstances. Moreover,
matters, such as admissibility of other evidence, are left to the sound
discretion of the court and are rarely disturbed on appeal. Even where a
reasonable juror would find intentional destruction, the matter of motive
should be left for the jury to decide.
*
Rule 1004(2) - This rule allows the admission of secondary evidence
where the original of a writing is not obtainable through service of process,
it is being withheld because of privilege, it is beyond the jurisdiction of
the court, or the costs for production of the document would be prohibitive.
Rule 1004(3) - This rule provides for the introduction of secondary
evidence where it is shown that the opposing party has the original, has been
placed on notice that the contents would be needed as proof and that he
refuses to relinquish control over it. Where this occurs the opponent may
not complain of the use of secondary evidence while he holds the original in
his possession. There is no reason to provide the opposing party with spe-
cific notice where he has been placed on notice through the pleadings.
Rule 1004(4) - This rule allows for the introduction of secondary evi-
dence where such evidence touches upon matters collateral to the controlling
issues.
ILLUSTRATION
Assume X sues Y for breach of a contract by failing to deliver rhubarb
to his restaurant every Monday as required. X seeks to introduce a letter
which he wrote to Y after the contract was executed, which stated that it was
imperative that Y fulfill the terms of the contract by delivering the rhubarb
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as scheduled. The letter cannot vary the terms of the contract and the only
issue for the trier of fact is whether Y performed as required. The question
of whether he knew how imperative it was for him to make timely deliveries is
collateral to that issue. Accordingly, the letter is inadmissible.
CASES
RULE
1004
1004
1004
1004(1)
1004(1)
1004(1)
1004(1)
1004(2)
1004(3)
1004(3)
CASE NAME
Fidelity Trust v.
Pioche
Bendix Corp.
v. U.S.
U.S. v. Rockan
U.S. v. Gerhart
U.S. v. Standing
Soldier
Klein v. Frank
U.S. v. Cambino
Valencia
Marcantoni v. U.S.
U.S. v. Levine
Marcantoni v. U.S.
CIRCUIT
CITE COURT
587 F.2d 27 (1978) 9th
600 F.2d 1372 (1977) Ct.Cl.
563 F.2d 1246 (1977) 5th
538 F.2d 807 (1976) 8th
538 F.2d 196 (1976) 8th
534 F.2d 1104 (1976) 5th
609 F.2d 605 (1979) 2nd
590 F.2d 1324 (1978) 5th
546 F.2d 568 (1977) 5th
590 F.2d 1324 (1978) 5th
RULE 1005
PUBLIC RECORDS
The Contents of an official record, of or a document authorized to be
recorded or filed and actually recorded or filed, including data compilations
in any form, if otherwise admissible, may be proved by copy, certified as
correct in accordance with Rule 902 or testified to be correct by a witness
who has compared it with the original. If a copy which complies with the
foregoing cannot be obtained by the exercise of reasonable diligence, then
other evidence of the contents may be given.
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ELEMENTS
A. The contents of an official record or document,
1. Authorized to be recorded or filed and
2. Actually recorded or filed,
3. Including data compilations -in any form
4. If otherwise admissible, may be proved by
a) Copy certified in accord with 902, or
b) Testified to be correct by witness who compared it with
original.
B. If no copy meeting above conditions can be obtained,
1. Through exercise of due diligence,
2. Other evidence admissible.
COMMENTS
This rule provides an exception to the best evidence rule by permitting
the introduction of a copy where the document is certified as correct or
where the witness has compared it with the original. This rule permits pub-
lic agencies to continue to conduct business without the inconvenience of
having their files removed for court proceedings. Moreover, the constant
removal of the original document from the files would subject the document
to being lost or injured from the wear and tear of constant removal.
Office records on file in accordance with the law are covered by the
rule. If a document is required by law to be filed, although it is not an
official document (such as deeds, mortgages, liens, etc) the mere filing of
the document is prima facie evidence of the authority for file it. Little
will be gained by challenging the authority of the clerk to accept it for
filing.
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CASES
RULE CASE NAME CITE CIRCUIT COURT
1005 Amoco v. U.S. 455 F. Supp. 46 (1977) D. Utah
1005 U.S. v. Johnson 594 F.2d 1253 (1979) 8th
RULE 1006
SUMMARIES
The contents of voluminous writings, recordings, or photographs which
cannot conveniently be examined in court may be presented in the form of a
chart, summary, or calculation. The originals, or duplicates, shall be made
available for examination or copying, or both, by other parties at reasonable
time and place. The court may order that they be produced in court.
ELEMENTS
A. The contents of voluminous writing, recordings or photographs,
1. Which cannot conveniently be examined in court,
2. May be presented in the form of a chart, summary or calculation;
provided,
B. The originals or duplicates are made available
1. For examination and/or copying,
2. By other parties
3. At reasonable time and place.
C. The court may order them to be produced in court.
COMMENTS
This rule allows a party to summarize a mass of evidence or information
for introduction in court where the contents are so voluminous that the
probative value of the evidence would be lost amid its time consuming and
taxing presentation. Where a summary is to be used in lieu of a mass of
evidence, the court should be satisfied as to the accuracy of the summary
or chart and that it is relevant to the issues before the court. These
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matters may be settled before trial or the court may allow opposing counsel
to voir dire the witness as to the accuracy of the chart. The charts need
not be prepared by the expert who will use them in his testimony; however,
common sense dictates that the expert examine the chart before he is called
upon to use it in his testimony in order to insure that it is in conformity
with his testimony.
The rule requires the proponent of the evidence to allow opposing coun-
sel to inspect the evidence prior to its use. Because the rule applies to
voluminous materials, it is only fitting that an opportunity be made avail-
able for counsel to examine the basic information, from which the summary or
chart was drawn, in a less hectic setting than a courtroom. This examination
will allow counsel to prepare his defenses against the admissibility of the
chart, because of inaccuracies, etc.
The final sentence of 1006 allows the court to compel production of the
originals in court. This procedure will occur where opposing counsel seeks
to introduce portions of the original materials into evidence in order to
challenge accuracy, etc.
For the charts or summaries to be admissible, they must be based upon
admissible evidence. Where the original documents supporting the summaries
are inadmissible because of hearsay, privilege, exclusionary rule, etc, the
summaries or charts are likewise inadmissible. Where the charts contain
information which is not embodied in the underlying data, the charts may be
rendered inadmissible. However, where the witness has prepared the chart (as
opposed to someone else performing this chore), he may include data within
his personal knowledge.
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ILLUSTRATION
X prepares a chart listing the contents of numerous ledgers he examined
during an audit of Y's books and records. Before examlng Y's records, X
Interviewed Y, who gave him additional Inculpatory Information not contained
In the ledgers. X Includes this Information In the chart. Although this
Information is not to be found In the underlying data, the chart is admis-
sible at Y's trial, for filing falsely made records, since Y's inculpatory
statements to X are admissible Y and X may testify concerning them.
Where the party offering the charts refuses to allow the opposing party
to inspect the underlying data, the charts may be ruled Inadmissible.
Before a chart or summary 1s used in a proceeding, especially a criminal
proceeding, the person responsible for its preparation should testify regard-
ing its manufacture. The witness should explain how the exhibit was prepared
and what measures he took to Insure it accuracy.
CASES
RULE CASE NAME CITE CIRCUIT COURT
1006 U.S. v. Evans 572 F.2d 455 (1978) 5th
1006 U.S. v. Normile 587 F.2d 784 (1979) 5th
1006 U.S. v. Smyth 556 F.2d 1179 (1979) 5th
1006 U.S. v. Denton 556 F.2d 811 (1977) 6th
1006 Case v. Board of
Trade 523 F.2d 355 (1975) 5th
1006 U.S. Twomey 538 F.2d 151 (1976) 7th
1006 Kingsley v.
Baker/Beechnut 546 F.2d 1136 (1979) 5th
1006 EAC Credit Corp.
v. King 507 F.2d 1232 (1975) 5th
1006 U.S. v. Gardner 611 F.2d 776 (1980) 9th
1006 Nichols v. Upjohn
Co. 610 F.2d 293 (1980) 5th
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CASES
RULE CASE NAME CITE CIRCUIT COURT
1006 In re U.S. Financial
Securities Litiga-
tion 609 F.2d 428 (1979) 9th
1006 U.S. v. O'Brien 601 F.2d 1068 (1979) 9th
1006 U.S. v. Collins 596 F.2d 166 (1979) 6th
1006 U.S. v. Kim 595 F.2d 756 (1979) D.C. Cir.
1006 U.S. v. Johnson 594 F.2d 1253 (1979) 9th
RULE 1007
TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the
testimony or deposition of the party against whom offered or by his written
admission, without accounting for the nonproduction of the original.
ELEMENTS
A. Contents of writings, recordings, or photographs may be proved by
testimony or deposition
1. Of the party against whom offered,
2. By his written admission,
3. Without accounting for nonproduction of original.
COMMENTS
This rule provides for the introduction into evidence by an adverse
party of statements made by a party regarding the contents of a writing. The
rationale for the rule is similar to the reasons proffered for the admission
of evidence of declarations against interest, confessions, admissions, etc.
It is unlikely that a person would acknowledge under oath or in writing the
contents of an adverse document unless it were true. Accordingly, the
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writing or the transcript of the hearing or deposition is admissible against
the party making the statement.
Oral admissions may be used against the party making them; however, such
admissions are not receivable under this rule. Rule 801(d)(2), provides sup-
port for the admission of oral statements for the same purpose.
For this rule to be operative, there must first be a writing, recording
or photograph produced or relating to an adverse party. There must also be a
second writing or transcript of testimony by the adverse party, which relates
to the first document. The contents of the second writing or transcript of
testimony must relate to the contents of the first document. It does not
matter whether the party offering the evidence can produce the original
document.
CASES
RULE CASE NAME CITE CIRCUIT COURT
1007 Click Co. v. U.S. 614 F.2d 748 (1980) Ct. Cl.
1007 U.S. v. Johnson 594 F.2d 1253 (1979) 9th
RULE 1008
FUNCTIONS OF COURT AND JURY
When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the fulfillment
of a condition of fact, the question whether the condition has been fulfilled
is ordinarily for the court to determine in accordance with the provisions of
rule 104. However, when an issue is raised (a) whether the asserted writing
ever existed, or (b) whether another writing recording, or photograph produced
at the trial is the original, or (c) whether other evidence of contents cor-
rectly reflects the contents, the issue is for the trier of fact to determine
as in the case of other issues of fact.
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ELEMENTS
A. When admissibility of other evidence of contents of writings,
recordings, or photographs depends upon fulfillment of a condition
of fact,
1. The question whether the condition is fulfilled is for the court
to determine.
2. The matter is for preliminary determination by the trial court
in accordance with Rule 104.
B. When issue is raise,
1. Whether the asserted writing ever existed, or
2. Whether another writing, recording, or photograph is the
original, or
3. Whether other evidence of contents correctly reflects the
contents,
4. The trier of fact to determine.
COMMENT
This rule places in the trial judge the discretion for applying the
various exclusionary rules, designed to vindicate public policy, to secondary
evidence which is offered to prove the contents of writings, recordings and
photographs. Furthermore, this rule vests in the jury the responsibility of
determining all issues of fact regarding the admission of such evidence.
Accordingly, the court must decide questions of competence; is the document
incompetent because of privilege, hearsay, etc? On the other hand, the trier
of fact, or the jury, must decide all questions regarding relevance condi-
tioned on fact.
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The purpose of dividing the responsibility, of assessing secondary evi-
dence offered in lieu of the original, is to prevent the court from excluding
evidence which ought to be considered because of an adverse finding of con-
ditional fact. The rule is in favor of the jury deciding such questions.
ILLUSTRATION
Assume X produces a document which he claims is the original. Y'has a
similar document which he contends is the original. The jury is left with
the task of deciding whether X's document is indeed the original.
Assume further that X has lost his copy of the document and is unable to
find it; however, X testifies as to its existance and its contents. Under
Rule 1008, it is still a jury question as to whether the document existed and
whether X's recitation of its contents is accurate. Thereafter, the jury may
decide the ultimate issue, which document is the original?
In the foregoing example, the court would be called upon to decide the
preliminary question of whether X's inability to produce his document follows
a diligent and thorough search to locate the paper. The secondary evidence
offered by X can only be received after X has established that the law's
preference for the original cannot be satisfied. Thereafter, the jury should
be allowed to decide whether the document exists.
The intent of the rule is to prevent the court from depriving a party
from having his claims considered by the jury when he is unable to comply
with the law's demand for the original. Where X cannot produce his document,
but disputes Y's claim that his document is the original, there is no line of
reasoning which should deprive X from presenting this claim to the jury.
All matters relating to constitutional considerations are vested in the
court. Accordingly, the judge may exclude evidence which was obtained in
violation of a defendant's right. Additionally, the court must decide
whether a reasonable juror could be persuaded by the evidence before allowing
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the jury to consider it. The court may properly exclude all evidence
1t deems to be of no evidentiary value.
CASES
CIRCUIT
RULE CASE NAME CITE COURT
1008 U.S. v. Gephart 538 F.2d 807 (1976) 8th
1008 75 FRD 354
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ARTICLE XI. MISCELLANEOUS RULES
RULE 1101
APPLICABILITY OF RULES
(a) Courts and magistrates. These rules apply to the United States
District Courts, the District Court of Guam, the District Court of the Vir-
gin Islands, the District Court of the District of the Canal Zone, the United
States Courts of Appeals, the Court of Claims, and to United States Magis-
trates, in the actions, cases, and proceedings and to the extent hereinafter
set forth. The terms "judge" and "court" in these rules include United
States Magistrates, referees in bankruptcy, and commissioners of the Court of
Claims.
(b) Proceedings generally. These rules apply generally to civil ac-
tions and proceedings, including admiralty and maritime cases, to criminal
cases and proceedings, to contempt proceedings except those in which the
court may act summarily, and to proceedings and cases under the Bankruptcy
Act.
(c) Rule of privilege. The rule with respect to privileges applies at
all stages of all actions, cases, and proceedings.
(d) Rules inapplicable. The rules (other than with respect to privi-
leges) do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions
of fact preliminary to admissibility of evidence when the issue is to be
determined by the court under rule 104.
(2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous proceedings. Proceedings for extradition or
rendition; preliminary examinations in criminal cases; sentencing, or
granting or revoking probation; issuance of warrants for arrest, crim-
inal summoneses, and search warrants; and proceedings with respect to
release on bail or otherwise.
(e) Rules applicable in part. In the following proceedings these rules
apply to the extent that matters of evidence are not provided for in the
statutes which govern procedure therein or in other rules prescribed by the
Supreme Court pursuant to statutory authority: the trial of minor and petty
offenses by United States magistrates; review of agency actions when the
facts are subject to trial de novo under section 706(2)(F) of Title 5, Uni-
ted States Code; review of orders of the Secretary of Agriculture under sec-
tion 2 of the Act entitled "An Act to authorize asociation of producers of
agricultural products" approved February 18, 1922 (7 U.S.C. 292), and under
sections 6 and 7(c) of the Perishable Agricultural Commodities Act, 1930 (7
U.S.C. 499f, 499g(c)); naturalization and revocation of naturalization under
sections 310-318 of the Immigration and Nationality Act (8 U.S.C. 1421-1429);
prize proceedings in admiralty under sections 7651-7681 of title 10, United
246
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States Code; review of orders of the Secretary of the Interior under section
2 of the Act entitled "An Act authorizing associations of producers of aquatic
products" approved June 25, 1934 (15 U.S.C 522); review of orders of petroleum
control boards under section 5 of the Act entitled "An Act to regulate inter-
state and foreign commerce in petroleum and its products by prohibiting the
shipment in such commerce of petroleum and its products produced in violation
of State law, and for other purposes", approved February 22, 1935 (15 U.S.C.
715d); actions for fines, penalties, or forfeitures under part V of title IV
of the Tariff Act of 1930 (19 U.S.C. 1581-1624), or under the Anti-Smuggling
Act (19 U.S.C. 1701-1711); criminal libel for condemnation, exclusion of
imports, or other proceedings under the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 301-3920; disputes between seamen under section 4079, 4080, and
4081 of the Revised Statutes (22 U.S.C. 256-258); habeas corpus under sec-
tions 2241-2254 of title 28, United States Code; motions to vacate, set aside
or correct sentence under section 2255 of title 28, United States Code; ac-
tions for penalties for refusal to transport destitute seamen unsection 4578
of the Revised Statutes (46 U.S.C. 679); actions against the United States
under the Act entitled "An Act authorizing suits against the United States
in admiralty for damage caused by and salvage service rendered to public
vessels belonging to the United States, and for other purposes", approved
March 3, 1925 (46 U.S.C. 781-790), as implemented by section 7730 of title
10, United States Code.
As amended Pub.L. 94-149, § 1(14), Dec. 12, 1975, 90 Stat. 806.
ELEMENTS
A. Rules apply to:
1. All U.S. District Courts (including Guam, Canal Zone, Virgin
Islands)
2. The U.S. Courts of Appeals
3. The U.S. Court of Claims
4. The U.S. Magistrates
B. Rules apply to:
1. civil actions and proceedings (including admiralty and maritime)
2. criminal cases and proceedings
3. contempt proceedings
4. bankruptcy cases
C. Rule of privilege applies to all stages of all actions, cases, and
proceedings.
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D. Rules inapplicable to:
1. hearings on preliminary questions of fact
2. grand jury proceedings
3. miscellaneous proceedings (incl. preliminary hearings, sentenc-
ing, probation, issuance of arrest and search warrants, extradi-
tion or rendition and bail hearings).
E. Rules applicable in part in
1. the trial of minor and petty offenses.
2. review of agency action in de novo trials.
3. review of certain orders of Secretary of Agriculture.
4. naturalization proceedings.
5. prize proceedings in admiralty.
6. review of orders of petroleum control boards.
7. actions for fines, penalties or forfeitures under Tariff Act and
Anti-Smuggling Act.
8. Criminal libel for condemnation and exclusion of imports.
9. Habeas Corpus actions.
10. Motions re sentences under 28 U.S.C. § 2255.
11. Action for penalties for refusal to transport seamen.
12. Actions against U.S. in admiralty for damages caused by and
salvage service rendered to U.S. vessels.
COMMENT
This rule extends the application of the Fed. R. Evid, to all proceed-
ings in U.S. courts with the exception of hearings on preliminary questions
of fact, grand jury proceedings, and miscellaneous proceedings such as
probation revocation hearings, sentencings and suppression hearings.
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The rationale for excluding these proceedings from the operation of the
rule is that evidence, which would be considered incompetent for the purposes
of the rules, is regularly admitted in these proceedings. Accordingly, it
would tax credulity to prohibit the use of a hearsay statement in a suppres-
sion hearing when those statements formed the basis for the probable course
for the arrest. Likewise, a court should not be prohibited from from examin-
ing secondary evidence or suppressed evidence at a sentencing, where the
court may rely on any evidence in deciding what sentence is appropriate for
the defendant.
ILLUSTRATION
Assume X is before the court for sentencing on a bank robbery chage.
Assume further that the defendant had been charged with three other bank
robberies; however, those charges were dropped following the suppression of
the instruments and proceeds of those crimes, after a court found that the
defendant's rights were violated through an illegal search. The court is not
obligated to turn its head and look away from the evidence in those cases,
which support the view that the defendant committed those crimes as well. In
determining the sentence of the defendant, the court may consider whether X
may have committed three other crimes as well.
CASES
RULE CASE NAME CITE CIRCUIT COURT
1101 U.S. v. Fatico 441 F. Supp. 1285 (1977) E.D.N.Y.
1101 U.S. v. Tussell 441 F. Supp. 1092 (1977) M.D. Pa.
1101 Smith v. Brewer 444 F. Supp. 482 (1978) S.D. Iowa
1101 U.S. v. Mackey 405 F. Supp. 854 (1975) E.D.N.Y.
1101 U.S. v. Lee 541 F.2d 1145 (1976) 5th
1101 Thompson v.
Bd. of Ed. 71 F.R.D. 398 (1976) W.D. Mich.
1101 Tantzen Inc. v.
Shaughnessy 601 F.2d 670 (1972) 2nd
In re Grand Jury
Subponea 599 F.2d 504 (1979) 2nd
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RULE 1102
AMENDMENTS
Amendments to the Federal Rules of Evidence may be made as provided in
section 2076 of title 28 of the United States Code.
RULE 1103
TITLE
These rules may be known and cited as the Federal Rules of Evidence.
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FEDERAL RULES OF EVIDENCE
APPROACH TO THE RULES OF EVIDENCE
Cases are won and lost in courts of law through the effective use of or
the lack thereof, of the rules of evidence. It is through the effective use
of the rules of evidence that cases are placed in their best light before the
trier of fact for decision. As a lawyer preparing for trial, you must organ-
ize your evidence and make the decisions regarding its use before you enter
the courtroom. The effective presentation of your evidence may not guarantee
that you will prevail in your case on the merits; however, the failure to
properly present your case may reflect adversely upon your competence and
reputation even though you may ultimately win your case.
The rules of evidence are set forth in a manner which will hopefully
benefit you as you prepare your case for trial. There are a few things that
should be borne in mind as you set about the task of selecting your evidence
for presentation. There are no ironclad rules which should govern this pro-
cess; however, a few tips will nevertheless provide some assistance.
I. ORDER OF PRESENTATION
As you prepare your case for trial, you should determine the order in
which you wish to present your evidence. This order should be congruent with
the natural flow of the story you wish to tell through your evidence. Where
there are possible problems with the presentation of certain evidence, you
should thoroughly research or explore alternate means of introducing the same
evidence. If there are possible objections to your evidence, consider them
and determine their validity and whether they are likely to be sustained. If
the objections are likely to be sustained, consider any fall back position
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you may adopt or the arguments you may make which could enable you to prevail.
Remember, if you are caught unawares by opposing counsel's objections and
must fumble and hesitate before you can respond, you will appear as if you do
not know what you are doing and that is almost as bad as not really knowing
what to do.
II. CONSIDER EACH PIECE OF EVIDENCE
In preparing for trial, you should consider each piece of evidence and
determine how you are going to introduce it into evidence. You should
examine each piece of evidence and determine how it assists you in proving
that your claim is more probable than your opponent. You should attempt to
anticipate all problems with the view of meeting or circumventing them.
Accordingly, there are a number of questions you should ask yourself as you
determine the admissibility of the evidence. These questions may be stated
in the following terms:
ORAL TESTIMONY
1. Is the evidence direct or circumstantial in nature?
2. If it is circumstantial, what evidence may I link with; it in order
to strengthen the inferences to be drawn? [401]
3. Is the evidence legally competent? [402, 104, 601]
4. Is the evidence relevant? [401 402]
5. If I am challenged as to relevance, what can I argue is the probative
value of the evidence? [103, 104, 105]
6. Is the evidence admissible only for a limited purpose? [105]
7. If it is admissible only for a limited purpose, should a cautionary
instruction be given? [105]
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8. If the evidence is testimonial, is there any tangible evidence which
can support it? [705, 703, 801(d)(l)]
9. If the evidence is tangible, is there any testimony which may
support it? [703, 705]
10. If testimony is being offered, is the witness competent to testify
about the facts? [601, 701, 702, 704]
11. What foundation must be laid before the testimony will be received?
[703, 705, 612, 104(b)]
12. How should the questions be phrased to elicit the desired response
without raising an objection for leading the witness? [607, 611]
13. How should the witness be instructed to truthfully answer the
question? [603]
14. Will the witness be asked to give an opinion? [701, 702, 704]
15. Is the witness competent to give that opinion? [701, 704]
16. How may I qualify the witness as being competent? [701, 702]
17. How may I fashion an argument as to how the witness1 opinion will
aid the trier of fact?
18. Does the witness have personal knowledge of the events he will
testify about? [602]
19. If he does not have personal knowledge, how does he know the facts
about which he will testify ? [703, 801 et. seq.]
20. Does his testimony violate the hearsay rule? [801, 802, 803, 804,
805, 806]
21. Is there an exception to the rule which will allow me to get the
testimony admitted? [803, 804, 805, 806]
22. Are there any written statements from this witness? [106]
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23. Is the witness' present testimony in any way inconsistent with the
earlier statement? [607, 613, 801(d)(l)(2) 804(b)(l),(3)(5)]
24. Does the witness have prior convictions which will make him vul-
nerable? [609, 404(b)]
25. Is the witness articulate and sharp or will I have to seek leave of
the court to lead him? [611(c)]
26. Is the witness adverse so that I must seek permission to treat him
as hostile? [611(c)]
27. If the witness will be impeached, what evidence do I have to reha-
bilitate him? [613(b)]
28. Will the witness be prevented from testifying about the matter
because of:
a. Privilege [501]
b. Exclusionary Rule
c. Best Evidence Rule [1002, 1003, 1004, 1006-7]
d. Rule against Parol Evidence [1007, 1004]
e. Lack of personal knowledge [602]
f. Hearsay Rule.[801 et. seq.]
29. If my witness cannot recall all of the facts, what may I use to
refresh his recollection? [612]
30. If I use a document to refresh the witness1 recollection, what is
the likelihood that opposing counsel will be able to use the
document against me? [106, 612]
31. "Are there any presumptions which may operate to my benefit? [301,
302, 902(10)]
32. How may I lay the foundation for the presumption? [301, 302, 902(10)]
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33. Are the defects in the oral testimony I desire to offer fatal, or
do they merely go to the weight of the evidence? [104, 1008]
DOCUMENTARY EVIDENCE OR TANGIBLE EVIDENCE
34. What documentary or tangible evidence do I want to present?
35. Is the evidence relevant? [401, 402, 403]
36. Why is it relevant?
a. Probative of critical facts? [401, 402]
b. Impeachment evidence [801(d)(l), 607, 609]
c. Rehabilitation evidence [608(a), 801(d)(l)(B)&(C)]
37. Can I properly authenticate the evidence? [901, 902]
38. Who is necessary to authenticate the evidence? [901, 902]
39. Will the best evidence rule apply? [1004, 1005]
40. How may I get secondary evidence admitted? [1004, 1005]
41. Will summaries be helpful and how may I get them admitted? [1006]
42. Are there chain or custody problems? [901, 902]
43. How may I minimize them?
44. Is the documentary evidence trustworthy and reliable? [901, 902,
1002-4, 1008]
45. How reliable were the experiments conducted? [703]
46. What foundation must be laid for the evidence? [702, 703, 705]
47. Is the evidence subject to exclusion because of public policy?
[403, 407, 409, 411]
48. Is evidence subject to a claim of priviledge? [501]
49. Is the probative value of evidence outweighted by prejudicial
effect? [403]
50. Is evidence probative as to prior similar or subsequent acts?
[404(b), 407]
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51. Does document qualify as a business record? [803(b)]
52. What must I do to get the document admitted? [803]
53. Can the document be admitted by itself as an official record or
document under seal? [902(1)]
54. Do I have to call the custodian of the record or have someone
explain how it was prepared? [902]
55. What witness or documents do I need to establish chain of custody?
[902]
56. If the chain of custody has been broken, is there an evidence rule
under which I may still get the document admitted? [1003, 1004]
57. If the original document has been lost, how may a copy be admitted
in its place? [1003, 1004, 1008]
58. If the chain of custody is broken in regards to scientific evidence,
how may I demonstrate that the authenticity of the evidence [103,
104a] is sufficient to warrant admission?
In addition to the above questions, there may be other questions you will
desire to ask yourself as you prepare your case for trial. No list can be
exhaustive in this area and the more problems you may anticipate in your
pre-trial preparation, the less problems you will have at trial.
III. PHRASING YOUR OBJECTIONS
When you desire to object to your opponent's evidence it is important
that you state your objections clearly and succinctly, in order that the case
may move along expeditiously. The objection must be specific enough to allow
the court to assess the merits of the claim. The following common objections
may be helpful when used in conjunction with the applicable rules of evidence:
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Objection, your Honor; the question is improper because it:
- is leading.
- assumes facts not in evidence.
- invites the witness to speculate.
- lacks a proper foundation.
- violates parol evidence rule.
- calls for priviledged communications.
- uses vague or indefinite terms.
- unfairly characterizes the evidence.
- calls for a legal conclusion.
- calls for statement made in offer of compromise.
- violates Best Evidence Rule.
- calls for hearsay.
- is ambiguous and uncertain in its terms and meaning.
- beyond the scope of direct examination (during cross).
- is repetitive.
- contains two questions.
- is not a question, but a narrative.
- calls for inadmissible opinion.
- phrased in alternative terms.
- is improper impeachment.
- is argumentative.
Objection, your Honor; the exhibit is inadmissible because it:
- is not the best evidence.
- has not been properly authenticated.
- is irrelevant.
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is hearsay.
contains entries not made in the regular course of business
is a medical bill which cannot be introduced to prove liability.
is a repair bill offered to prove negligence or culpable conduct.
was merely used to refresh recollection.
is argumentative.
not prepared at the time of the event it describes.
does not qualify as a family record.
does not qualify as an ancient document.
does not qualify as a public document.
is not a document under seal.
is not a statement in a document affecting an interest in property.
is not a commercial publicaton relied upon by the public or persons
in a particular occupation.
is not a learned treatise.
is a photograph that does not fairly and accurately depict the scene
at the time of the event.
does not fairly and accurately depict the scene at the time the
photograph was taken.
has not been established that the proffered exhibit is the same item
recovered at the scene of the event.
is self-serving.
contains prwiledqed communications.
contains inadmissible opinion.
is duly prejudicial, and the prejudice far outweighs its probative
value.
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Objection, your Honor; the witness's answer:
- is self-serving.
- contains inadmissible hearsay.
- is not responsive to the question.
- contains an opinion which he/she is not qualified to make.
- is not based on personal knowledge.
Whenever you desire to make an objection, you should be prepared to give
the court valid reasons for your objection; otherwise, you are merely invit-
ing the displeasure of the court.
Objection, your honor the answer
- is not responsive to the question in that it ...
- indicates speculation by the witness because . . .
- constitutes inadmissible opinion in that the answer . . .
- improperly characterizes the evidence because . . .
- violates parol evidence rule because . . .
Whether or not you desire to object will depend upon all of the attend-
ing circumstances in the case, your trial strategy and the dangers you per-
ceive from the evidence presented. Accordingly, there cannot be any ironclad
rules advising you when to object. However, if the evidence hurts, you should
object if you believe there is a reasonable chance the court will sustain it.
IV. USING THE RULES OF EVIDENCE IN OBJECTIONS
As you prepare for trial, it is important that you familiarize yourself
with the rules of evidence in order that you may properly object to inadmis-
sible evidence. The following case study will perhaps be helpful in organiz-
ing your evidence and objections for trial.
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CASE STUDY
by
Honorable Sam C. Pointer
U.S. District Court, N.D. Alabama
75 F.R.D. 89 (1978)
General Situation
Civil action against automobile manufacturer, J), brought by pedestrian,
£. P_ claims the accident was caused by defects in brakes of car being driven
by White.
£ calls as a witness White, who (as £_ had anticipated) gives testimony
damaging to £. £ then calls Jones as a witness. (Whether Jones is to be
considered a lay witness or an expert will depend upon the context of the
question or the objection.)
A. £ asks Jones, "Did the brakes work properly?"
1. £ objects without specifying any grounds. [103]
2. J) objects that question invades province of jury on ultimate
issue. [704, 403]
3. J) objects that question seeks an opinion from a lay witness.
[701, 602]
4. £ objects that the expert testimony of Jones is unauthorized
since subject matter is within the understanding of ordinary
laymen. [702, 403]
5. J) objects that the expert opinion should be elicited by a
hypothetical question. [702, 403]
6. £ objects that there has been no showing of facts relied upon.
[602; 705, 701]
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7. J) objects that opinion is based on hearssay and inadmissible
matters. [703]
8. J) requests voir dire to learn if Jones, prior to testifying has
reviewed any documents, notes, etc. to refresh his memory. J)
wants production of such documents (even if otherwise privileged
and inadmissible) for his use during cross-examination. [612]
9. £ at bench seeks a ruling that £ not be permitted to disclose
that Jones was appointed as expert by the court. [706]
10. J) requests voir dire to learn if JP discussed White's testimony
with Jones despite rule excluding witnesses. [615]
APPLICABLE NOTES
A-l (1) General objection not ground for reversal unless specific ground
apparent from context or otherwise plain erorr. 103. Sustaining
on grounds not assigned?
(2) "Harmless error" rule preserved. 103.
(3) Anxious attorneys may attempt to "argue" grounds, rather than
state them. Desirable to have procedure for handling matters
outside hearing of jury but without having to excuse jury.
A-2 (1) Opinions, whether from expert or layman, not objectionable on
ground they embrace ultimate issue. 704.
(2) But cf. questions using legal terms (e.g., was he "negligent";
did he have capacity to make a will). AC suggests exclusion
under 403 as waste of time. Quaere: "who was at fault?"
A-3 (1) Lay opinion must be (a) based on witness' firsthand knowledge and
(b) helpful either in understanding witness' testimony or in
determining a fact in issue, 701; 602.
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(2) Quaere: Opinion of owner as to value. AC 702 implies that lay
owner might be treated as expert or skilled for such puposes.
(3) Possible modification of standard form jury instructions re
limiting opinions to experts. Change to instruction re first
hand knowledge?
A-4 (1) Not necessary that subject matter of expert opinion be beyond
comprehension of layman; sufficient if opinion will "assist"
fact-finder to "understand the evidence or to determine a fact in
issue." 702.
(2) Have additional discretion under 403 to exclude wasteful testimony.
A-5 (1) Hypothetical questions not required of expert; implicit in 705.
(2) Can give direct opinions, inferences and general information.
A-6 (1) If a lay witness, must show firsthand knowledge. 701; 602.
(2) If an expert, underlying facts and assumptions need not be shown
on direct unless court requires. 705.
(3) Assumption is that expert's opinion, reasons, etc. will have been
discovered under F.R.Civ.P 26. What about criminal cases?
A-7 (1) Expert can base opinion on matters not admitted or even admis-
sible, if of a type reasonably relied upon by other experts in
same field. 703. This connection can be given by same expert.
Note: Matters so relied upon not thereby evidence; should
only fact of reliance (not substance) be allowed on direct?
(2) But cf. opinions based on assumed facts contrary to the evidence.
(3) What if opinions totally based on matters not in evidence.
(4) Problems with jury instruction.
A-8 (1) . Adverse party entitled to production where used while testifying
or (if judge finds "necessary in interest of justice") where used
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before testifying. 612. Adverse party can then cross-examine
thereon and even introduce in evidence.
(2) What is a "writing"? Cf. Photographs, recordings, etc. Cf.
"Writing or recorded statement" in 106 and definition in 1001(1).
(3) Rule is not limited to documents prepared or adopted by the
witness. What about witness who has reviewed an entire file of
documents before testifying?
(4) When does a witness "use" a writing to refresh memory? What if
lawyer "goes over" a witness1 statement with him prior to trial,
without reading it to him? Should the witness' answer be accepted
at face value?
(5) Rule is limited to production in favor of "adverse party." Does
this mean the party who didn't call the witness? Does this limit
the rule to situation of an adverse party himself testifying (Cf.
611)? What if one party calls the other party as a witness?
Note that rule limited to cross-examination.
Solution: as in leading questions?
(6) Presumable privileges, such as attorney-client privilege, could
be asserted against disclosure. HC 612, but what about "work
product"?
(7) On request, in camera inspection by judge to delete unrelated
(and privileged?) matter. Difficulty with rule for preserving
balance and submitting with appellate record.
(8) Rule does not say when a witness may be permitted while testify-
ing to look at documents. Also see 803 (5) (past recollection
recorded.)
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(9) Rule does not say when production ordered; does adopt Jencks act
to extent applicable. (What about one prosecution witness review-
ing statements from other potential prosecution witnesses?)
(10) Some discretion in judge to determine effect of witness' failure/
refusal to produce; discretion more limited in criminal case.
(11) Quaere: Can writings by introduced if otherwise objectionable?
(12) Quaere: If writing introduced, is it substantive evidence, or
only impeachment material or to aid evaluation of testimony? Cf.
613 (impeachment by prior statements).
(13) Where part of writings introduced on cross, presumably related
parts also could be introduced. 106.
A-9 (1) Disclosure of court-appointment is discretionary. 706.
(2) Note that court-appointment must be with consent of the witness
and that both sides can cross-examine regardless of by whom
called. 706.
(3) In civil cases compensation can be charged to parties. 706.
A-10 (1) Exclusion rule mandatory on request. 615.
(2) Weinstein believes experts could be exempted under 615(3).
(3) Would not prevent all discussions with counsel at recesses, but
should prevent disclosure to excluded witness of another's
court-room testimony.
(4) Quaere: Instructions to attorneys, parties, and excluded wit-
nesses re discussions.
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PART B
B. £ asks Jones, "What was White's statement on that occasion?" (P
advises that he expects to prove a prior inconsistent statement by White, the
witness previously called by_P)
1. J] objects to P's impeachment of his own witness, White. [607]
2. J) objects to no foundation respecting the statement was laid
during the examination of White. [613(b)]
3. D_ objects that the statement hasn't been shown to £ or to White.
[613(a)]
4. ]) objects that the inconsistent statement is on a purely colla-
teral matter. [403]
5. £ objects that White's statement is protected by the attorney-
client privilege. [501]
6. j) objects that White's statement was made during settlement
talks. [408, 409]
7. J) objects that White's statement was made in connection with
White's tender of a guilty plea, later withdrawn, to a man-
slaughter charge respecting the accident. [410; F.R.Cr.P. 11]
8. ]) wants a limitation that the evidence be received only for
impeachment purposes, not as substantive evidence. [105, 801]
9. j) objects unless Jones is also to be asked about other state-
ments made by White. [106]
10. ]) objects to P_'s stating the purpose of the question in the pre-
sence of the jury. [103, 104]
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EXPLANATORY NOTES
B-l (1) Now permissible to impeach own witness. 607.
(2) But note some rules still appear to make distinctions between
direct and cross-examination: 405 and 608 (specific conduct as
bearing on character); 609 (impeachment through convictions); 612
(writings used to refresh memory); 611 (scope, leading questions).
(3) As in past, court can call witness—then each party cross-examines.
614.
B-2 (1) Not essential to "lay foundation" during examination of witness
to be impeached as a condition to extrinsic evidence of inconsis-
tent statement. 613(b).
(2) However, unless "interests of justice otherwise require", there
must be opportunity given witness to explain and given to opposite
party to examine thereon. Quaere: what effect upon excusal of
witnesses after testifying?
(3) If witness had admitted the inconsistent statement, presumably
additional proof by extrinsic evidence would be disallowed under
403.
(4) Note that opportunity to explain/deny not necessary re admission
of party opponent or a hearsay declarant's statement. 806.
Deposition witness is hearsay declarant. 802. "Subsequent"
inconsistent statement.
(5) Presumably no foundation or opportunity to explain/deny required
as condition to proof of inconsistent conduct. AC 613.
B-3 (1) Opposing counsel has right, on request, to disclosure of incon-
sistent statement before examination of witness (sought to be
impeached) thereon. 613(a). Presumably right also covers
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situation where extrinsic evidence is to be introduced without
having first laid predicate.
(2) Witness to be impeached is not entitled to disclosure of statement
before being questioned thereon. 613(a). Cf. production right
under F.R.Civ.P. 26(b)(3). Judge presumably would have discre-
tion to require such disclosure, however, under 611.
B-4 (1) Rules don't deal specifically with problem of impeachment on
collateral matters; but see 403, 611. Presumably extrinsic
evidence not permitted.
B-5 (1) FRE does not resolve questions of privilege; 501, or competency,
601, in typical diversity case.
(2) Quaere: Status of rejected privilege rules.
B-6 (1) Common law rule of exclusion re compromise expanded to cover
admissions of fact during negotiations. 408.
(2) Rule applies without regard to success of negotiations or regard
to identity of parties involved in negotiations. (Of course it
would not apply in suit to enforce an alleged settlement.)
(3) Rule does not provide privilege against proof by other means of
fact the existence of which was learned during negotiations.
(4) Unclear as to use against witness of inconsistent statement made
during negotiations. Rule permits use to prove "bias or prejudice
of a witness" (cf. language of 411), and is directed against use
to prove liability/invalidity.
(5) Cf. status of statements made in connection with paying medical
expenses. 409.
B-7 (1) FRE 410 superseded by new F.R.Cr.P. ll(e)(6), effective August 1,
1975.
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(2) Rule affects (a) withdrawn pleas of guilty; (b) nolo pleas; (c)
offers to plead guilty or nolo; (d) statements made in "connec-
tion with, and relevant to," any of such pleas or offers.
(3) Statements in connection with and relevant to such pleas or
offers are admissible in criminal proceeding against such person
for perjury or false statement if statement made by him, under
oath, on record, in presence of counsel.
(4) Rule applies to use of evidence only in subsequent proceedings
"against the person who made the plea or offer." Thus, where a
non-party witness in a case, rule doesn't prohibit use of pleas,
offers, or statements as declaration against interest or for
impeachment.
(5) Presumably doesn't apply if guilty plea accepted.
(6) Note that rule doesn't deal with evidence of the conviction
itself, even where used against a party.
B-8 (1) Prior inconsistent statement which was given under oath is
admissible as substantive evidence where declarant testifies at
trial and is subject to cross-exam re statement--801(d)(l)(A).
Broader rule rejected by Congress.
(2) "Cross-exam" requirement may be unintended; perhaps should be
understood merely as subject to "examination". Otherwise rule
would be limited to the relatively abnormal situation where party
calls unfriendly witness to stand and shows prior inconsistent
statement under oath, while not allowing the cross-examiner to
take advantage (as substantive evidence) of proof of prior
inconsistent statements under oath. Note in case of depositions
take in the case sub judice F.R.Civ.P. 32(a)(l) permits use by
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either party of witness' deposition "for purpose of contradicting
or impeaching" the trial testimony--"contradicting" implying sub-
stantive use.
(3) What about affidavits taken by investigators?
(4) Prior consistent statements (to rebut recent fabrication or impro-
per influence) receivable as substantive evidence even though not
under oath. 801(d)(l)(B). Of course, must first have express or
implied charge against such witness. Rule doesn't specify time-
sequence of out-of-court statements.
(5) Prior statement may be admissible as substantive evidence under
some hearsay exception, e.g., 803(1, 2, 3).
(6) Note 105 (limited admissibility).
B-9 (1) Completeness doctrine, as a specified FRE, only covers writings
and recorded statements. 106.
(2) FRE 106 only pertains to question of allowing completeness "at
that time", comparable to F.R. Civ.P. 32(a)(4). Other party can
still attempt at later stage in examination of witness to inquire
into other parts, etc. Cf. 801(d)(l)(B).
B-10 (1) FRE 103, 104, recognize desirability of hearing potentially
prejudicial matters outside presence of jury.
(2) Note that court's ruling on preliminary/conditional facts does
not foreclose jury's consideration of such facts. AC 104; also
see 1008.
PART C
C. Assume all appropriate objections are made to the following questions;
1. P_ asks Jones, "Would you believe White under oath? [608, 602,
404, 405]
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2. P_ asks Jones, "On what occasions, if any, have you heard White
not tell the truth?" [405, 608]
3. £ asks Jones, "Isn't it a fact that White said he would see that
JP would regret making White come to be a witness at the trial?"
[611]
4. £ cross-examines Jones: "Hasn't White been convicted three
times this past year for running stop signs?" [405, 608]
5. £ cross-examines Jones: "Isn't it a fact that White routinely
waits to apply his brakes until the last moment?" Assume
White's driving not covered on direct, examination. [406, 602,
611]
6. D_ cross-examines Jones: "Haven't you been falsifying your
expense account records?" Both P_ and Jones object. [608,
611]
7. J) cross-examines Jones: "Weren't you convicted six years ago in
this very court for possession of stolen property?" (Assume
conviction on nolo plea). [609]
8. £ cross-examines Jones: "Didn't JP tell you in a telephone
conversation that (a) nothing wrong with the brakes would be
found and (b) after the accident a mechanic had found nothing
wrong with the brakes?" [801, 805, 901, 602]
9. D_ cross-examines Jones: "Don't other experts disagree with
you?" (D_ is preparing to read from a text book on brakes. The
text is unfamiliar to Jones, but another expert, in his unre-
ported deposition, has identified the text as reliable author-
ity.) [803(18), 401, 611]
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10. £ cross-examines Jones: "I noticed you did not take an oath
before testifying—is this because you do not believe in God?"
[603, 610]
EXPLANATORY NOTES
C-l (1) Untruthful character of witness may be shown; permissible to do
so by opinion as well as reputation. 608.
(2) Can impeach own witness. 607.
(3) If reputation sought, proof may be of reputation "among his
associates or in the community". 803(21).
(4) Whatever the form, character witnesses would have to have suffi-
cient first-hand knowledge. 602. Court can ask questions. 614.
No "experts" on credibility generally.
(5) Note that truthfulness of witness can be shown only after attack
on such trait. 608. The attack could be made by opinion, repu-
tation, specific acts of conviction evidence. 404-607-609.
Quaere: Attack for bias, conviction, prior inconsistent state-
ments. See AC 608.
(6) Character traits (other than re truthfulness or not) not generally
admissible except where essential element of charge, defense,
etc. 404, 405. Special exceptions re good. Pertinent character
trait of accused and re character of victim—but note, no applica-
tion in civil cases.
(7) Times as of which character measured. Special problem in criminal
cases.
C-2 (1) Generally specific conduct not provable on direct exam to show
character. 405, 608. Cf. sexual activities of rape victim—
404(b)?
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(2) Could use specific conduct in the unusual case where character is
essential element of charge, claim, etc. 405. Problem with
theory of negligent entrustment.
(3) May also use specific conduct to show motive, plan, knowledge,
absence of mistake, etc. 404.
(4) Where specific conduct admissible (other than to impeach) can
convictions be used which do not meet tests of 609? See AC
609.
(5) Specific conduct rising to degree of habit may be admissible.
406.
(6) Character witness can generally be cross-examined re specific
conduct of person whose character re truthfulness he testified
about on direct. 608. But no extrinsic proof.
C-3 (1) Evidence re bias, hostility, etc. of witness implicitly recognized
in FRE. Presumably extrinsic evidence permitted subject to 403
and 611. See 408.
(2) Use of leading questions generally reserved for cross, though
expanded for witnesses "identified" with an adverse party.
611.
C-4 (1) Even on cross-exam, specific conduct re character not generally
admissible. 608.
(2) If a character witness, cross-exam may involve specific conduct
relevant to the character trait covered on direct. 405, 608.
Note that "have you heard" or "do you know" type questions may
reach convictions outside limits of 609. See AC 405.
C-5 (1) Habit/routine of a person/organization is admissible to show that
conduct on a particular occasion was in conformity therewith.
406.
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(2) Should make sure that witness has sufficient familiarity so that
testimony is truly about a habit. And not merely isolated
incidents of conduct. 602.
(3) Cross-exam generally limited to scope of direct and credibility;
but with discretion in court to enlarge. 611.
C-6 (1) Witness can be cross-examined re specific conduct indicating his
own untruthfulness. 608.
(2) Discretion re such cross-exam is given to judge, and extrinsic
proof not permitted. 608 (except for conviction). Since extrin-
sic proof not allowed, should questions first be asked outside
presence of jury?
(3) No waiver of self-incrimination privilege re matters relating
only to credibiltiy. 608.
(4) Note right of witness to object to a question. Cf. 611.
C-7 (1) Conviction on nolo plea usable for impeachment apparently, 609.
Cf. plea itself (F.R.Cr.P. 11) and to prove underlying facts.
803(22).
(2) To impeach by conviction requires foundation on cross presumably
to given change of explanation. 609. Questions: Satisfaction
of requirement by having witness examined on direct; "anticipating"
damage cross-exam; impeaching deponent.
(3) If crime doesn't involve dishonesty or false statement, must be
finding by court re effect "to the defendant". 609. See Conf.
Rept. Meaning criminal deft. Any weighing in civil cases?
(4) "10-year" rule unless notice of intent to use and special court
finding of probative value, 609. Would prosecution disclosure
under F.R.Cr.P. suffice?
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(5) Note convictions not fitting rule still may be admissible for
other purposes.
(6) Quaere: Invalid convictions.
(7) Quaere: What can be shown about conviction?
(8) Note FRE inapplicable to sentencing.
C-8 (1) Relaxes standards for authenticating conversations. 901(b(5, 6).
(2) Generally statements by party opponent can be introduced as
substantive evidence. 801. Consider pleadings in related
cases.
(3) Admissions frequently allowed despite opinion rule and requirement
for first hand knowledge. AC 801. But quaere mere speculation.
602.
(4) With multiple hearsay each part must fit an exception (or riot be
used to prove truth of matter). 805.
(5) Admission exception covers statements made by a party's agent or
servant re a matter within scope of agency. Also statements
adopted by other party. 801.
(6) Silence as adoption of anothers statement.
C-9 (1) Must lay foundation with a testifying expert before using trea-
tise. 803(18).
(2) Must establish as reliable—but can do so other than through
expert being examined. 803(18).
(3) When admitted, treatise is read as substantive evidence, but not
received as an exhibit. 803(18).
(4) Form of question—agreement with another's testimony or opinion—is
troublesome. 401, 611.
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C-10 (1) While oath of affirmation required (603), evidence re religious
beliefs not admissiible re credibility. 610.
PART D
D. Assume all appropriate objections are made to the following:
1. Q_ offers in evidence an accident report, shown to have been
obtained from the police office in regular course, which pur-
ports to have been prepared by the police from their own obser-
vations and interviews. [803(6, 8); 901(b)(7)]
2. P_ offers to show that ]) has insurance for this type of accident
and has made changes in design of brakes since the accident.
Assume state law would permit such evidence. [407, 411, old
F.R.Civ.P. 43]
3. JD offers in evidence a copy of_P's hospital records, in which
other causes for the accident are contained in the medical
history. [801, 803(4), 1003]
4. P_ offers the results of a governmental inquiry investigating
manufacturing standards in installing automobile brakes. The
report bears all the earmarks of the governmental study, but is
not certified. [803(8); 901(b)(4)]
• 5. One of the parties offers a certificate from a state official
respecting results of a serach of automobile safety inspection
reports regarding brake problems with this type car. [803(8,
10); 902; 403; 1006]
6. J3 offers relevant portions of a deposition of White taken in a
case brought by P against White regarding the accident. [804]
Assume that White has not testified as a witness in this case.
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7. J3 offers an authenticated judgment of conviction of White for
manslaughter (felony) in connection with the accident, asserting
that this is evidence of accident being caused by White's
reckless driving [803(22)]
8. iD asks the court to take judicial notice of (a) location of
accident as being in city limits of X city; (b) municipal
ordinances for X city respecting speed limits, etc.; and (c) a
table showing minimum stopping distances for automobiles accord-
ing to speed. [201]
9. £ asks the court to instruct the jury, pursuant to state law,
that a defect in a sealed part, if not otherwise explained, is
presumed to be the result of negligence by the manufacturer.
[301, 302]
10. D, in a post-judgment hearing, offers an affidavit by one of the
jurors indicating a quotient verdict and a refusal by another of
the jurors to participate in the deliberations. [606]
EXPLANATORY NOTES
D-l (1) Authentication can be established re documents authorized to be
publicly filed by showing it was obtained from such office.
901(b)(7).
(2) Investigative reports based on statements from others not gener-
ally admissible. 803(6, 8). Note AC 803 that rule does not
dispense with requirement of first hand knowledge. Helpful to
evaluate as if a question of multiple hearsay—what if authors of
report were testifying in person?
(3) Police report as "business" activity?
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(4) Was the report "kept" in course of regularly conducted activity
and was in regular practice to "make" the report? What if also
the regular practice to subsequently destroy?
(5) Note that while court rules on reception of evidence, still up to
jury to weigh. AC 104.
(6) What about opinions in hospital records--esp. where no foundation
re expertise?
D-2 (1) Generally fact of insurance and remedial measures will be inadmis-
sible. 407; 411.
(2) FRE controls admission of evidence even in diversity cases with
specified eceptions. Old F.R.Civ.P. 43(a) amended.
D-3 (1) Copies generally usable in lieu of originals, 1002, 1003.
Stipulations—possession of opponent. 1007. Note 1004(3).
(2) If statement attributed to £, then admission of party opponent.
801; 805.
(3) If note's statement, then problem of whether reasonably pertinent
to diagnosis or treatment. 803(4).
D-4 (1) Distinctive characteristics, in conjunction with circumstances,
can provide authentication, 901(b)(4).
(2) Authorized governmental investigations generally admissible
"unless" there is lack of trustworthiness. 803(8)(C).
(3) Limited to "factual findings", but House and Senate disagreed
over interpretation of phase.
(4) What about "industry standards"? 803(24).
D-5 (1) Certificate from public official generally satisfies authentica-
tion and hearsay problems. 902; 803(8, 10), 1005. Still a
trustworthiness problem.
277
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(2) Summaries. 1006.
(3) Similar accidents, etc., experiments—problem of relevancy,
confusion, waste. 401, 402, 403.
D-6 (1) Under former testimony exception did £ have similar opportunity
and motive to challenge White's testimony, and is White unavail-
able to testify in person? 804.
(2) Under statement against interest exception, ^ must show inability
to get White's deposition in present case. 804.
(3) If White was present and testified as a witness, _D may show it as
prior inconsistent statement. The offer under 801{d)(l).
D-7 (1) Exception to hearsay rule. 803(22).
(2) Inadmissible for such purpose if on a nolo plea. 803(22).
(3) Actual punishment immaterial. 803(22).
D-8 (1) 201 applies only to judicial notice of "adjudicative facts."
(2) FRE rejected doctrine of judicial notice of "propositions of
generalized knowledge."
(3) Note 605 that judge incompetent as witness.
(4) Use of stipulation of counsel to give general information; also
expert testimony.
D-9 (1) Generally in diversity case the effect of a presumption is deter-
mined by state law. 302.
(2) In federal question cases, the appropriate instruction apparently
would be in the form that if the jury finds the basic facts, they
(a) may presume the other (where no contradicitng evidence) or
(b) may infer the other (where contradicting evidence). 301 and
Conference Rept. 301.
278
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(3) Quaere: What about state rules re "clear and convincing evidence",
etc., which deal with burden of proof?
D-10 (1) Juror may only testify re "extraneous prejudicial information
improperly brought to the jury's attention or whether any outside
influence was improperly brought to bear." 606.
(2) Nor can court receive affidavit in lieu of testimony.
(3) Rule apparently would also prevent use of juror's testimony to
support a challenged verdict.
(4) What about effect of trial publicity?
279
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BIBLIOGRAPHY
Weinstein, Berger. WEINSTEN'S EVIDENCE. 6 Vols., New York, New York:
Matthew Bender 1979.
McCormick, Cleary, et.al., EVIDENCE, 2nd Ed. St. Paul, Minn. West Publishing
Co. 1972.
Wigmore, John H. WIGMORE ON EVIDENCE 3rd Ed. Pocket Supplement by Reiser,
Or., Walter A., Boston, Mass., Little Brown & Co. 1977.
Wright, Graham, FEDERAL PRACTICE AND PROCEDURE. Vol. 21-22, St. Paul, Minn.
West Publishing Co. 1977.
Grace, Steffen W., D.C. Statutory and Case Law Annotations to Fed. Rules of
Evidence, June, 1974.
280 4U.S. GOVERNMENT PRINTING OFFICE: 1980 341-082/118 1-3
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