Shared Flashcard Set


Strickler Spring 2011

Additional Law Flashcards




Rule 101

Scope of the Federal Rules of Evidence


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

Rule 102

General purpose and construction of the Federal Rules of Evidence

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

Rule 103

Harmless error

Error may not be found unless a substantial right of the party is affected and there is either an objection or an offer of proof to preserve a claim of error for appeal

Rule 105

Limited admissibility


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

Rule 401



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


Admissible: whether evidence can be put before the trier of fact

Sufficiency: Whether the evidence that has been introduced is sufficient to sustain a finding of fact

Materiality: Any fact that is of consequence to the determination of the action 

Probative Value: Evidence having any tendency... to make the determination of an action more or less probable than it would be without the evidence 

Rule 402

Presumption of admissibility for relevant evidence.


"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 riles prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." 

Rule 104(b)

Relevancy Conditioned on Fact


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


Is there evidence sufficient to support a specific finding of fact or a finding of the fulfillment of a condition?

United States v. James

Mother (James) gave daughter a gun, and daughter killed mother's violent boyfriend (Ogden). 

James testified that she feared Ogden, and that he claimed that he was responsible for numerous violent crimes.

The actual records concerning Ogden's criminal past were necessary to the defense in order for the jury to believe that James was not making up stories. 

James' credibility, which was the crux of her defense, was corroborated by the records of Ogden's past crimes. The records would provide support for James' belief that Ogden was dangerous.

Rule 104(a)

Questions of Admissibility Generally


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

Cox v. State

Retaliation for child molestation charges.


Issue: did Cox know that charges were about to be filed against Hammer for child molestation? This is a conditional fact question under 104(b).


Hammer and Cox were best friends, and the close relationship between the two men and their families created the chain of inferences to allow an inference of actual knowledge.


A preponderance of the evidence, showing the close friendship between Cox and Hammer, allows the inference that Cox had actual knowledge about the charges against Hammer.


Jury could reasonably find the conditional fact (that Cox had actual knowledge) based on a preponderance of the evidence provided.

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."


Any evidence that is probative is going to be prejudicial to the other side. However, if the evidence is unfair to the other side, then it is unfairly prejudicial.

Commonwealth v. Serge

Animated demonstrative was properly admitted because the Judge provided thorough and extensive cautionary instructions to ensure that the jury would not mistake the CGA for fact. 


Here, Rule 105, on motion from one of the parties, can limit the scope of the evidence presented through limiting instructions from a judge to reduce the potential for unfair prejudice under Rule 403.

Competency of Witnesses

In the last 100 years, almost all of the former competency rules were abolished.


Rule 601: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.


Rule 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.


An out of court statement, not subject to cross examination, cannot be used for determining the truth of the matter asserted.


An out of court statement may be relevant for reasons other than its content (other than proving the truth of the matter asserted).


Cross examination is important to determine and test:


  • Memory
  • Perception
  • Sincerity/deception
  • Communication


Rule 801

(a) Statement: oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.


(b) Declarant: person who makes a statement


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




  • Did declarant intend to communicate something?


Rule 802

Hearsay Rule


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

Hearsay Analysis

1. Is what is being offered a statement as defined in 801(a)?

  • Did the declarant intend an assertion?
  • Use 104(a) to determine whether something is a "statement" if there is question

2. What is it being offered to prove?

3. Is the matter asserted the same as it is being offered to prove?


Hearsay if offered to prove the truth of the matter asserted in the statement. Not hearsay if there is some other purpose for providing the statement. 

Rule 801(d)(1)

Prior statement by witness

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

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

(C) One of identification of a person made after perceiving the person

Rule 805

Hearsay within hearsay


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

Rule 806

Attacking and Supporting Credibility of a 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 the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Rule 801(d)(2)

Admission by party opponent

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


This is the largest single way around the hearsay rule.


A party cannot offer his own statements, this exception only applies to statements offered by the opposing party.


Rationale: A party does not need to cross examine itself based on a statement it made that is offered by the opposing party. Party that made the statement can go on the stand and qualify or clarify the statement.


Advisory Committee: A party has to live with its statements. "No guarantee of trustworthiness is required in the case of an admission." 



Adoptive admission


  • Party against whom the statement is offered has to have heard the statement
  • Party could have responded to the first statement
  • Circumstances naturally call for a response
  • Failure to respond, or response in some manner that is not what one would expect under the circumstances

801(d)(2)(C) and 801(d)(2)(D)

(C): Statement of agents

An agent is authorized to speak for the principle.

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

1. Matter within the scope of agency or employment

2. Statement must be made during the existence of the agency relationship

Mahlandt v. Wild Canid Survival and Research Center

Alleged wolf attack on a child. Mr. Poos left a note that the wolf bit a child within the scope of his employment with the Wild Canid Survival and Research Center. 

Once agency and the making of the statement while in the agency relationship is established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.


The Advisory Committee has no problem with admitting Poos' statement because, despite the potential for actual knowledge, Poos can always testify concerning the background, reasons, and knowledge of the alleged facts within the statement.


Here, the statement from Poos was relied on by the Board of Directors. However, the Board of Director's meeting minutes cannot be offered against Poos because he was a non-attending, non-participating employee.


Statement from Clark (Poos' son) that "a wolf got Danny and he is dying."

This is traditional hearsay- an out of court statement offered to prove the truth of the matter asserted. However, the entire family was caring for Sophie the wolf, which is the best argument for arguing that the entire family was acting as an agent.


However, Clark denied making the statement, so the Judge made a preliminary determination of admissibility under 104(a) to determine whether the evidence is admissible.


Last, the Judge must consider whether there is sufficient evidence to allow a rational jury to conclude that Clark made the statement. This is a 104(b) determination in which the Judge must consider whether Clark's potential statement is relevant based on a condition of fact - whether a preponderance of the evidence allows the statement to be admitted as relevant for the jury's ultimate consideration.


Coconspirator's Statement

1. A conspiracy exists

  • Statement made by a member of the conspiracy
  • 104(a) determination of preliminary admissibility

2. Conspiracy includes both the declarant and the party against whom the statement is offered

3. The declarant spoke during the course and furtherance of the conspiracy

Definition of conspiracy is based on the common law.

Expansion of the common law agency theory based on the relationship between those to the conspiracy, but the theory of the conspiracy as an agency is a fiction.

Usually, conspiracies can be proven without using hearsay through testimony about actions.

Bourjaily v. United States

Bourjaily was an "unidentified friend" who completed a drug deal with an FBI informant. 

The existence of a conspiracy and Bourjaily's involvement in the conspiracy are subject to a 104(a) determination. 

Establish the preliminary admissibility of the evidence through a preponderance of the evidence that considers evidence that is both normally admissible and not admissible under the FRE. Trial judge, in making the 104(a) determination, can use all evidence including the hearsay statement itself.

Here, Bourjaily was in the car with the money for the drugs, and the hearsay statement from his alleged coconspirator was given as preliminary evidence. The trial judge found that a preponderance of the evidence showed that the statement should be admitted.

Rule 801(d)(2)(E) was amended following this holding: " The contents of the statement shall be considered but are not alone sufficient to establish the…existence of a conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."

James Hearing

Government puts on its evidence to help determine whether the coconspirator statement should be admitted. 


Court decides, using 104(a), whether the coconspirator exception applies using a preponderance of the evidence standard.

Rule 613

Prior statements of witnesses


(a) Examining witnesses concerning prior statement

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


Governs the impeachment of witnesses with past inconsistent statements. 


However, a jury may not grasp the distinction between using an out of court statement substantively and using it only for the purpose of impeachment.

Rule 801(d)(1)(A)

Prior statement by witness


A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition....


Declarant has to testify at trial or a hearing and be subject to cross examination.


Compare 613 with 801(d)(1)(A). 613 allows use of prior inconsistent statements for impeachment, while 801(d)(1)(A) allows prior inconsistent statements substantively.

Rule 801(d)(1)(B)

Prior consistent statements

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

1. Witness must be available for cross examination at trial

2. Prior statement is consistent with testimony on the stand

3. Used to rebut an express or implied recent claim of fabrication or improper influence or motive

Prior consistent statements will always have some relevance for the credibility of in court testimony so long as it was made before the need for a motive to fabricate the information therein.



Statement of Identification

(C) one of identification of a person made after perceiving a person

Victim identifies the individual at a time close to the incident.

Witness must be subject to cross examination.

Earlier identifications in less suggestive conditions than a courtroom are likely more reliable when also close in time to the original crime.

Commonwealth v. Weichell

Witness describes a person he saw fleeing from a homicide.

A statement of prior identification is not hearsay if made by a witness who testifies at trial and is subject to cross examination concerning it

There is no logical reason to permit the introduction of a witness’s out of court identification and to exclude statements identifying the various physical characteristics of a person perceived by the witness, or the composite of all those physical characteristics, which is no more than the sum of the parts perceived 

United States v. Owens

At trial, victim does not remember details of an assault despite telling the FBI details while in the hospital.

The confrontation clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

801(d)(1)(C) directed at a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification

“As time goes by, a witness’ memory will fade and his identification will become less reliable, minimizing the barriers to admission of more contemporaneous identification is fairer to defendants and prevents cases falling through because a witness can no longer recall the identity of the person he saw commit the crime."

Rule 804(a)

Defines unavailability

Unavailability as a witness includes situations in which the declarant - 

  • is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
  • persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
  • testifies to a lack of memory of the subject matter of the declarant's statement; or
  • is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
  • is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

Rule 804(b)(1)

Hearsay Exceptions: 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 not 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.


Requires availability for a prior proceeding, but unavailability for the current proceeding. Also requires a similar motive for both proceedings.

United States v. DiNapoli

Parties to a concrete construction scheme refuse to testify at trial after testifying at grand jury proceedings.


The government held back questions during the grand jury proceedings in order to keep from "spilling the beans" concerning the information it had in its possession.


Court finds that the prosecutor's motive at the grand jury proceedings was different than the motive at trial. 


Motive in the context of the proceeding and the need to cross examine are fact specific questions that need to be considered when evaluating 804(b)(1) former testimony.

Lloyd v. American Export Lines

Coast Guard hearing concerning a fight between two sailors.

In later civil proceeding, Lloyd's attendance cannot be procured, and he is absent under 804(a)(5).

Coast Guard and Alvarez had a like motive to cross examine and determine culpability and a penalty for the behavior at issue. Both had a like motive to develop testimony about the same material facts.

Concurring: a predecessor in interest requires privity, which is a mutual successive relationship to the same property rights. Having the same motive is arguably different than having the same property rights. An interest in establishing the same facts is not necessarily a privity interest.

Rule 804(b)(3)

Statement against interest

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

Circumstantial guarantees of reliability come from the premise that people do not make self-damaging statements unless such statements are true.

Three types of statements:

  • Statements against pecuniary or proprietary interests
  • Statements subjecting the declarant to civil or criminal liability
  • Statement rendering invalid a claim by the declarant against another
Statement must also have circumstances that clearly corroborate its trustworthiness. 

Rule Amendment (effective December 1, 2010): A statement against interest is a statement that is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. 

Three Types of Statements Against Interest:
  • Where the against interest statement inculpates the declarant, and other evidence in the case links the declarant and the party against whom it is offered so the declarant's statement is relevant
  • Statement is inculpatory to the declarant, does not say anything about anyone else, but other evidence links the declarant with the accused
  • Against interest statement says something not only about the declarant, but also about the person the statement is offered against. 

Williamson v. United States 

Harris, during an interrogation, makes statements that he was carrying drugs and that the drugs were for Williamson.

Was the statement so against declarant's interest that it would not have been made had it been untrue?

 (­+1: author of the plurality opinion) O’Connor- Some non self-inculpatory statements may be against interest. Fact inquiry determines whether these statements are allowed

Writes for six justices who agree on one core proposition that in applying the 804(b)(3), each part of a statement must be parsed to determine whether each part offered against the party is in fact against the declarant’s interest

It is not enough for the whole narrative to be against interest generally, but each part has to be considered concerning whether it is against the declarant’s interest

 (+3) Ginsburg – No non self-inculpatory statement made in custody is against interest

Any statement that is made to the police in custody that points a finger at someone else is not against interest

(+2) Kennedy – Self-inculpatory statements which are “neutral” may be against interest, but not self-serving statements

 Self-inculpatory statements, which are included in a broader narrative which is against interest generally and are neutral statements form part of the against interest statement

Only self-serving statements not against interest should not be allowed under 804(b)(3) 

Rule 804(b)(2)

Statement under belief of impending death: dying declaration


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

Rule 804(b)(6)

Forfeiture by wrongdoing


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


A declarant is not unavailable under 804(a) if his unavailability is due to the wrongdoing of another party.


Burden of proof: the 104(a) preponderance of the evidence standard 

United States v. Gray

Preponderance of the evidence must show:

  • Defendant engaged or acquiesced in wrongdoing
  • That was intended to render the declarant unavailable as a witness
  • That did, in fact, render the declarant unavailable as a witness
A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant’s statements at that proceeding and any subsequent proceeding 

Rule 803 (1), (2)

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


Advisory Committee: the substantial contemporaneity of the event and statement negative the likelihood of deliberate or conscious misrepresentation. A slight lapse in time is allowable.


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


Statement made while the declarant is under stress.


Presumed more reliable because the started statements were made in a moment of extreme emotion, and an excited utterance is more likely to be free from conscious fabrication.


Excited utterance must be close in time to the startling event. 

Rule 803(3)

Then existing mental, emotional, or physical condition


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

Mutual Life Insurance v. Hillimon

Hillimon had a huge life insurance policy and "died." 

However, the life insurance company believes that Hillimon is still alive, and that Walters is the decedent. Walters had written letters to his fiancee and family explaining that he was going with Hillimon. 

“The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention would be. After he is dead, there can hardly be any other way of proving it; and while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation.”

The purpose of the letter is to show the decedent's present intent at the time before death, which was to go with Hillimon.

Rule 803(4)

Statements for purposes of medical diagnosis or treatment


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

United States v. Iron Shell

Creepy Indian man named Iron Shell tried to rape a little girl on an indian reservation.


Little girl saw a doctor, and told the doctor about what happened.


1. Is the declarant's motivation consistent with the purpose of the rule (to actually obtain medical assistance)?

2. Is it reasonable for the physician to rely on the statement for the purpose of medical diagnosis and treatment?


No facts on the record allow an inference that the statements to the doctor were for any purpose other than diagnosis and treatment. All statements were about the girl's physical condition, and were consistent with a motive to provide treatment.


Statements were about what happened to the child rather than for the purpose of identifying who assaulted her.

Rule 803(5)

Recorded recollection


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


Guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh and more likely to be accurately documented.


This is the only 803 exception that requires a declarant to testify. 


Requires a failed memory and a past written recollection.

Rule 612

Writing used to refresh memory 

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

  • while testifying, or
  • before testifying, if the court in its discretion determines it is necessary in the interests of justice, 
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing on 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. 

Johnson v. State

Verification requirement from 803(5).

Four requirements for 803(5):

  • Witness must have firsthand knowledge of the event
  • Written statement must be a memorandum made at or near the time of the event while the witness had a clear and accurate memory of it
  • The witness must lack a present recollection of the event
  • Witness must vouch for the accuracy of the written memorandum
To fulfill the fourth element, the witness can testify that she presently remembers recording the facts correctly, or that she remembers recognizing the writing as accurate when it was read at an earlier time. Witness can also testify that record is accurate based on habit or practice of accuracy with records. However, witness is required to verify the record.

Rules 803 (6) and (7)

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



  • Memorandum, report, record, or data compilation
  • Made at or near the time of the event recorded
  • By a person with knowledge or on the basis of information transmitted by such a person
  • If it was the regular practice of the business to make the memorandum and the memorandum was kept in the course of regular business activity
  • Unless the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness
Rationale: that businesses and other organizations rely on accurate records.


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


Absence of entry in records kept in accordance with paragraph (6) is allowed into evidence. In order to be admissible, the non-statement is included in the rules. 803(7) prevents uncertainty of admitting a lack of information.

Palmer v. Hoffman

Shows the narrow interpretation of 803(6).


Business records made for the purpose of litigating rather than in the course of business do not qualify under 803(6).


Report was not made in the course of business as a record of its systematic business conduct. Primary utility of the record must be for business use.

United States v. Vigneau

No matter how routine Western Union's record keeping practices are, these practices do nothing to support the reliability on the deposit form concerning who made the deposit.


No verification of the actor's identity.


Statement or data from someone outside of the business does not contain the same assurance of accuracy as a report from someone who is part of the business.


The part of the deposit slip containing the sender's name should not have been admitted because the sending and the sender's identity was not part of the business, and there was no internal business motivation to assure the accuracy of the name on the deposit slip.

Rule 803(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 lack trustworthiness.

Assumption that a public official will perform his duties correctly, and the unlikelihood that he will remember details independently of the record.

Three kinds of public records:

  • The activities of an office or agency
  • Matters observed pursuant to a duty imposed by law... excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel
  • 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 a lack of trustworthiness

Beech Aircraft Corp. v. Rainey 

Opinions and conclusions about an airplane accident included in a government accident report.


803(8) does not create an absolute exclusion to opinions and conclusions based on fact.


There is a judicial safeguard, in which judges can exclude opinions and conclusions based on a lack of trustworthiness.

United States v. Oates

Congress did not intend for documents produced by a public agency to be used against a defendant in a criminal case.


Government cannot use 803(6) business record exception to circumvent 803(8)

Rule 807

Residual Exception

Four conditions:

  • Equivalent circumstantial guarantees of trustworthiness
  • Statement is offered as evidence of a material fact
  • 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
  • General purpose of these rules and the interests of justice will best be served by admission of the statement into evidence
Rule contemplates for new and unanticipated circumstances than demonstrate trustworthiness contained in the current hearsay exceptions.

The residual exception is to be used rarely and in exceptional circumstances.

Dallas County v. Commercial Union Assurance Co.

Newspaper statement concerning the history of the tower of the county courthouse does not fit into any other hearsay exception.


Unless the hearsay statement is admitted, the facts it brings out may otherwise be lost, either because the person whose assertion is offered may be dead or unavailable, or because the assertion is of such nature that one could not expect to obtain evidence of the same value from the same person or from other sources


Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed; where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection or the dear of punishment, would probably have been detected and corrected

It is inconceivable that a newspaper reporter in a small town would report there was a fire in the dome of the new courthouse if there had been no fire

The usual dangers of hearsay evidence (lack of truth/trustworthiness, motive to falsify, etc.) are not present in this case 

 In matters of local interest, when the fact in question is of such a public nature it would generally be known throughout the community, and when the questioned fact occurred so long ago that the testimony of an eyewitness would probably be less trustworthy than a contemporary newspaper account, a federal court…may relax the exclusionary rules to the extent of admitting the newspaper article in evidence 

US v. Laster

Records indicating the sale of stuff used to make meth did not indicate any unreliability.

“The analysis of a hearsay statement should not end when a statement fails to qualify (under a traditional hearsay exception), but should be evaluated under the residual hearsay exception.” 


Confrontation Clause

6th Amendment guarantee for a defendant to be confronted with witnesses against him. 


A rule of evidence cannot allow into evidence that which would be barred by the 6th Amendment, but a rule of evidence can bar evidence that does not offend the Confrontation Clause.

Mattox v. United States

Witness died between first and second trials.


Accused had the right and opportunity to cross examine the witness at a previous trial, which preserved the Constitutional right guaranteed by the Confrontation Clause.

California v. Green

If the declarant is present, testifies at trial, and responds to questions about previous hearsay statements, then the out of court statements for all practical purposes regain most of the lost protections of in court testimony.


  If the prosecutor makes every effort to produce the declarant, but the declarant proves unavailable, and if the out of court statement was made under oath and subject to cross examination, the Confrontation Clause does not bar its admission. 

Ohio v. Roberts (overruled)

Rule of necessity: prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.


Rule of reliability: If the declarant is unavailable, the hearsay statement can only be admitted if it has indicia of reliability.

Idaho v. Wright
The hearsay statement must, in itself, contain guarantees of trustworthiness.
Maryland v. Craig

Trial court made an individualized finding that the child would suffer serious emotional distress and would not be able to communicate if forced to confront attacker


Given the minimal intrusion on the confrontation right, after all the defendant was able to cross examine the witness and the jury could view the witness’s demeanor by video feed, the Court held that the state interest protecting a witness from trauma is sufficiently important to allow the use of a special procedure.

White v. Illinois
The Roberts rule of necessity does not apply to excited utterances [803(2)] or statements for the purpose of medical diagnosis or treatment [803(4)] because those bear circumstantial guarantees of reliability.
Lilly v. Virginia
An accomplice's custodial confession does not have particularized guarantees of trustworthiness because the accomplice has a considerable interest in confessing and betraying his co-criminals.
Crawford. V. Washington (overruled Ohio v. Roberts)

Where testimonial evidence is at issue, the 6th Amendment demands what the common law required: unavailability and a prior opportunity to cross examine.


Absolute bar to testimonial statements that do not receive a prior opportunity for cross examination.  

Davis v. Washington & Hammon v. Indiana

Davis: Non-testimonial statements because the police were responding to an ongoing emergency in the 911 call.

Hammon: Testimonial statement because the primary purpose of the investigation was to gather evidence following a crime.

Statements are testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to gather out of court information for later legal proceedings – testimonial when the primary purpose, as determined objectively, is to act as a witness and to gather evidence for some future prosecution 

Melendez-Diaz v. Massachusetts

Certificates of Analysis are similar to affidavits, which are declarations of fact written down and sworn to by the declarant before an officer authorized to administer oaths.

Certificates, like affidavits, are similar to in court testimony and are therefore testimonial statements.


Analysis's testimony should be subject to cross examination.

Michigan v. Bryant

Primary purpose needs to be determined through an objective evaluation

 Objective evaluation of the circumstances in which the encounter occurs and the statements and actions of the parties


“In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”


Emergency: primary purpose is ending a threatening situation


The existence of the ongoing emergency, and the perception of such ongoing emergency is among the most important circumstances informing the primary purpose of the interrogation (consider the ongoing emergency at the time of the event) [p. 5 n. 8]


 “An assessment of whether an emergency threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and the public may continue.”

Compulsory Process
Deprivation of a fundamental fair trial because evidence is excluded under specific rules.
Chambers v. Mississippi

The hearsay rule cannot be applied mechanically to defeat justice. 


Based on the facts of the present case, Chambers was denied a fair trial.

Green v. Georgia

Excluded hearsay was critical to the defendant's case and unusually reliable.


Court determined that the facts and circumstances of the case, in addition to the excluded evidence, denied the defendant a fair trial similar to Chambers.

Character Evidence

Cannot use character to prove action in conformity therewith.


May create unfair prejudice to the defendant if character evidence is used to build a case against him based on who he is rather than what he did.

People v. Zackowitz

Character evidence cannot be used to prove than an individual acted in a specific way on a specific occasion.


No indication that the defendant used the weapons at the time of the crime, but weapons from his home were admitted into evidence despite having no connection to the alleged murder.

Rule 404(a)

Character evidence generally


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


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


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


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

United States v. Trenkler

To prove that the bomb was Trenkler's work, the government wants to introduce evidence of a bomb that he admitted to making five years ago.


Two part test:

1. Other evidence must have some special relevance to the issue of identity independent of its tendency to show criminal propensity

2. If the evidence does have special relevance on a material issue, then the court must conduct a Rule 403 analysis


There must be a high degree of similarity between the other act and the charged crime. Here, creating a bomb is a very unique criminal act.



United States v. Stevens

Two robberies with strong evidence that the same person committed both crimes.

Defendant, who was accused of the first robbery but not identified in the second robbery, wants to bring in evidence showing that the same person likely committed both crimes and that it wasn't likely him.

A defendant may use similar other crimes evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him.

A defendant may introduce reverse 404(b) evidence so long as its probative value under Rule 401 is not substantially outweighed by Rule 403 considerations of unfair prejudice.

Doctrine of Chances
It may be assumed that the events are not an accident, but rather an objective statistical improbability that leads to the assumption that something more than an accident happened 
Rex v. Smith

Statistically improbable that four healthy women, all married to the same man at the time of death, drowned in the bath tub. 

 Multiple misfortunes, if similar and rare enough, suggest guilt only because of the unlikelihood of similar coincidence

 Evidence can be used to help the jury draw an inference of whether the death was accidental or designed, and whether there was a motive or plan for killing multiple wives.  Jury can determine from a series of “accidents” an inference of design.

If the deaths show a “propensity to murder” then the incident should not be included in evidence, but if the deaths are used to show lack of accident or motive then it is allowed under 404(b)

Rule 404(b)

Other crimes, wrongs, or acts


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

United States v. DeGeorge

Jury needed evidence of the prior boat losses in order to understand the need for the insurance structure for the new yacht purchase, the structure of the transaction, and the reason for concealment of DeGeorge's prior boats.

Previous losses were inextricably intertwined, and the prior loss history was necessary to assist the jury in understanding why DeGeorge had maneuvered to distance himself from the boat’s ownership 

Defendant's Prior Act in Dispute
Judge has to make a preliminary determination under 104(a) that the prior events occurred and that the defendant was involved in such prior events in order for the jury to hear the evidence.
Huddleston v. United States

Defendant is charged with selling stolen goods in interstate commerce.

Similar acts are admissible if there is sufficient evidence for the jury to find that the defendant had committed a similar act

Here, the prior acts would be “similar” only if the goods were stolen

Evidence of the sale of televisions is only relevant if the jury could reasonably find that the televisions were stolen

104(b) determination: whether, by a preponderance of the evidence, a jury could find that the conditional fact of the defendant's involvement with prior sales of stolen merchandise

The court simply examined all the evidence in the case and decides whether the jury could reasonably find the conditional fact- here that the televisions were stolen, by a preponderance of the evidence


Rule 405(b)

Specific instances of conduct


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


Aims to prove the existence of a character trait, and not an action done in conformity with that trait.

Michelson v. United States

If the defendant chooses to open the door to character evidence, then the prosecution can rebut with evidence of a pertinent (bad) character trait.


Note that under 405(a), the character witness can provide testimony based on reputation or opinion.


Theory (as stated under 405 advisory committee notes) is that reputation inquiry tends to shed light on the accuracy of the witness’s hearing and reporting of the person's character in the community.


The distinctions are slight, and therefore the prosecution can cross examine in a way that could potentially hurt the defendant’s case based on the jury’s interpretation of the testimony


 Judge can provide a limiting instruction under 105, but such limiting instruction may be difficult for the jury to understand 

Rule 405(a)

Reputation or Opinion


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

Perrin v. Anderson
Criminal cases allow the admission of character evidence, but civil cases do not allow for such character evidence.
Rule 608

Evidence of character and conduct of witness


(a) Opinion and reputation evidence of character


(b) Specific instances of conduct

Rule 609

Impeachment by evidence of conviction of crime

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

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

Past conviction does not have to reflect untruthfulness

United States v. Whitmore

Cross examination of police officer, Soto, should have been allowed at trial to impeach his credibility.


The questioner must be in possession of some facts which support a genuine belief that the witness committed the offense or degrading act to which the question relates.


Defendant was deprived of his opportunity to challenge Soto in cross examination despite Soto being the only witness to the crime.

Character Evidence Exceptions

  • 413
    • Similar offense in sexual assault prosecution
  • 414
    • Similar offense in child molestation prosecution
  • 415
    • Similar offense in civil action concerning sexual assault or child molestation
  • 404(a)(1)
    • Character of the accused
  • 404(a)(2)
    • Character of the victim
  • 404(a)(3)
    • Character of the witness

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