GENERAL PRINCIPLE A: The trial judge has broad discretion to control the process of interrogating witnesses and presenting evidence. The judge is expected to conduct the trial in a manner that furthers three goals: facilitate truth-determination, avoid needless waste of time, and protect witnesses from harassment. Evidentiary mistakes rarely constitute reversible error on appeal.

RULE 1. QUESTIONS MAY NOT ASSUME FACTS NOT IN EVIDENCE. These include questions that begin, "Would it surprise you to learn that ..."

RULE 2. COMPOUND QUESTIONS NOT ALLOWED. A compound question is one that contains two or more factual inquiries.

RULE 3. AMBIGUOUS QUESTIONS MAY BE DISALLOWED AT JUDGE'S DISCRETION. The question is usually whether the question is likely to confuse either the witness or the jury.

RULE 4. ATTORNEYS MAY NOT MISSTATING THE EVIDENCE OR MISQUOTE WITNESSES. For example, Q: Was the defendant drinking? A: Yes, he had 2 beers. Q: What did this drunken man do next?

RULE 5. EACH QUESTION MAY BE ASKED & ANSWERED ONLY ONCE PER EXAMINATION. It is improper for an attorney to repeat the same question several times during a single direct examination after the witness has fully answered it. More leeway is given to "sift" witnesses on cross-examination.
RULE 6. LEADING NOT ALLOWED ON DIRECT; ALLOWED ON CROSS. FRE 611(c). A question suggesting that particular words, phrases, or ideas should constitute the correct answer is leading. Leading questions often consist of a specific factual assertion followed by "Isn't that right?" Leading questions are generally prohibited on direct examination; allowed on cross-examination, but the trial judge has discretion to permit them whenever they appear necessary to elicit truthful testimony. Leading on direct examination is often permitted in following situations:
a. Unwilling, hostile, or adverse witnesses.
b. Young children or weak-minded adults.
c. Refreshing the memory of a witness, even if the witness is friendly.
d. Preliminary or background matters
e. Directing a witness's attention to a particular topic
f. Laying evidentiary foundations
g. On redirect examination, to save time.
h. When inquiring into "delicate" (i.e., sexual) matters.

RULE 7. ARGUMENTATIVE QUESTIONS NOT PERMITTED. An argumentative question is one where the attorney is using a question not to elicit evidence, but to comment upon it -- summarizing testimony, injecting irrelevant or prejudicial material, arousing emotions, or insinuating that a witness is guilty of impropriety.

RULE 8. BADGERING A WITNESS NOT PERMITTED . Badgering is the deliberate attempt by an attorney to intimidate or harass a witness (e.g., yelling, trying to confuse) .

RULE 9. NARRATIVES BY WITNESS NOT ALLOWED. The attorney is supposed to ask questions and select relevant topics for testimony; if the witness rambles on for a long time without being asked specific questions, the testimony constitutes an improper narrative

RULE 10. ANSWERS MUST BE RESPONSIVE TO QUESTIONS. Evasive answers are improper if they bear no relation to the question asked, and may be stricken on motion of the attorney who asked the question.

RULE 11. CUMULATIVE EVIDENCE MAY BE RESTRICTED IN INTERESTS OF EFFICIENCY. We will covered cumulative evidence later under Rule 403


RULE 12. OBJECTIONS MUST BE TIMELY. FRE 103. You must object at the earliest opportunity, as soon as the grounds become apparent. You may object to either the question or answer, but must object before the next question is asked.

RULE 13. OBJECTIONS MUST BE SPECIFIC . FRE 103. A specific objection has three parts:
.... part 1. Tell the judge exactly what you object to.
.... part 2. State the controlling rule, citing or summarizing the text
.... part 3. Argue or explain if necessary

RULE 14. MOTION TO STRIKE REQUIRED IF OBJECTING TO TESTIMONY. FRE 103. If the jury has already heard the evidence, accompany your objection with a motion to strike

1. No procedural rule requires that you do anything to respond to an objection. You may simply remain silent and let the judge rule, or you may withdraw the evidence.
2. If you respond (make an argument for admissibility) the same principle of specificity applies. You must specify which evidence you think is admissible, what Rule you rely on, and where in the text do you find language supporting admissibility.

RULE 16. THE JUDGE MUST RULE ON THE OBJECTION. When an objection has been made, the judge must treat it like any other motion, and rule on the merits of the particular legal arguments made. The judge may make one of two rulings:
(a) Sustain. If the judge sustains the objection, the evidence is excluded (mnemonic device: sex (sustained = excluded)
(b) Overrule. If the judge overrules the objection, the evidence is admitted.

RULE 17. OFFER OF PROOF. FRE 103. If you lose an objection, and your evidence was excluded, you must make an offer of proof that places the substance of the excluded evidence into the record.
(a) Complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.
(b) Simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury.


RULE 18. COMPETENCY. Everyone is competent to be a witness if they take the oath. FRE 601. Even Curly.

RULE 19. OATH. The oath may be in any form. FRE 603.

RULE 20. CHILDREN MUST PASS A COMPETENCY TEST. For children and adults with the mental age of children, the usual rule is that a child is competent to be a witness if she or he:
a. Understands the difference between truth and falsity
b. Understands the obligation to tell the truth
c. Has intellectual capacity to observe, recall and narrate

RULE 21. INTOXICATION. Witness intoxicated on drugs or alcohol at the time they are asked to testify may be declared incompetent until they sober up.

RULE 22. DEAD MAN'S STATUTE. There is something called a "Dead Man's Statute" that declares a witness incompetent to testify to the existence of a debt (unless there is written evidence of the debt) against an estate because distant relatives are always trying to perpetrate frauds against a decedent, knowing the dead person cannot testify to refute the claim.

GENERAL PRINCIPLE B. WEIGHT vs ADMISSIBILITY. The threshold for admissibility is low. The judge need only determine that minimal standards have been met in order to admit testimony. Fact that testimony may be unreliable, perjured or have other problems is a matter for the jury to decide how much weight to give it.


RULE 23 -- PERSONAL KNOWLEDGE (FRE 602). Witnesses may testify only to matters about which they have personal knowledge. This is a rule of foundation requiring the proponent of the evidence to establish that the witness was present at or saw an event before the witness describes that event.

1) If a witness testifies to what s/he personally did or thought, no foundation is required. You do not have to prove the obvious. Similarly, witnesses may testify to family matters because personal knowledge is obvious.
2) Before a witness may testify to what other people did or said, you must prove that he or she was present and saw or heard what happened, either by the direct testimony of the witness or by circumstantial evidence that makes it likely that the witness has personal knowledge.
3) A witness may not testify about someone else was thinking or feeling, because no foundation is possible -- witnesses cannot know what is inside another's head.
4) Once you have established PK about a general event, the witness may testify to specific details of that event without a separate PK foundation.


RULE 24: REFRESHING MEMORY. During direct examination, you may use documents, objects, or leading questions to refresh the memory of a witness who needs such assistance. This is a rule of foundation.

1. The witness is unable to remember a fact or event.
2. The matter must be one about which the witness once had personal knowledge and recollection.
3. The forgotten information is presented to the witness, through a document or leading question.
4. The witness must then be able to testify to the matter substantially from memory, and not merely by reading from the document.

1. If the witness denies that the event happened, the attorney may impeach but may not refresh recollection.
2. Any kind of document may be used, whether or not prepared by the witness.
3. If the attempt to refresh memory is unsuccessful, the document itself is not independently admissible unless it satisfies a hearsay exception.
4. Once a writing has been used to refresh recollection, the opposing party has the right to inspect it and introduce it during cross-examination.


DEFINITION (FRE 401) . Evidence is relevant if it has both:
1. Materiality -- a question of law-- does it help prove a contested legal issue, as defined in pleadings, case law, or opened up by previous testimony?
2. Probative value -- a question of common sense -- does it logically help prove or disprove an issue?

RULE 25: RELEVANCY. Relevant evidence is admissible, however small the relevance. Irrelevant evidence is not admissible. FRE 402

RULE 26: CONDITIONAL RELEVANCY (FRE 104). If the relevancy of evidence depends upon the existence of some other circumstance, that connecting piece of evidence must first be proved by way of foundation (e.g., a witness says he has been offered money not to testify; relevant only if it is thedefendantwho is making the offer). The judge may admit evidence that is not yet relevant if it is likely to become relevant with the introduction of subsequent evidence (connecting up).

1. When in doubt, let it in -- there is a presumption in favor of admitting evidence
2. Trial judge has especially broad discretion in this area.
3. Evidence which is relevant for one purpose but not another, or against one party but not another, is admissible and the jury may be admonished to restrict its use of the evidence.
4. Almost all evidence has some minor probative value, so objections usually made on Rule 403 basis.

RULE 27: BALANCING TEST. Unimportant relevant evidence may be excluded if probative value is substantially outweighed by a prejudicial effect. FRE 403

1. If evidence is important, it is admissible regardless of prejudice.
2. Substantial judicial discretion in ruling.

DEFINITION. Evidence is prejudicial if it raises a substantial danger of:
1. Unfair prejudice -- arousing jurors' emotions, biases, or prejudices not already inherently involved in the case
2. Confusion of the issues -- confusing or misleading jury about facts or law
3. Waste of time or needless presentation of cumulative evidence.


MAKING OBJECTION: Argue all three components:
1. Materiality. Evidence tends to prove an issue of little importance
2. Probativeness. Evidence is not very probative of issue, is of little help in proving it.
3. Prejudicial effect. Evidence will cause substantial prejudice because ..............

RESPONDING TO OBJECTION: Argue all three components
1. Materiality. Evidence tends to prove an issue of significant legal or practical importance
2. Probativeness. Evidence is very probative of issue, goes a long way to establishing it by itself.
3. Prejudicial effect. Evidence will cause little prejudice because ..............


RULE 28. Evidence that a defendant engaged in incriminating behavior (such as trying to escape or avoid arrest, destroying or manufacturing evidence) is generally admissible evidence of his guilt.

RULE 29. Evidence concerning a pattern of similar events by the same or similar organizations is generally not admissible. There are exceptions for sales of similar property to prove value, a pattern of accidents to a dangerous condition, and prior contracts to aid interpretation.

RULE 30. Evidence concerning the wealth or poverty of a plaintiff or defendant is generally not admissible, except when litigating an appropriate amount of punitive damages.

RULE 31. [Not covered in class] Gruesome photographs of crime or accident scenes or that show the extent of a Plaintiff's injuries, are generally admissible.

RULE 32: [Not covered in class] Evidence that someone other than the defendant may have committed a crime is admissible if the crime could only have been committed by one person, so the evidence (if believed) precludes the defendants involvement


1. More specific rules controls admissibility decision over less specific ones; i.e., Rule 407 controls over 403.
2. Remember the general principle that if evidence is not admissible for one purpose (proving fault) but is admissible for another purpose (ownership or control), it comes in -- we favor admissibility.
3. But exceptions like ownership/control are still subject to Rule 403 balancing -- usually for confusion of issues. Judge must decide if exception is really a disputed material issue or just being used as a pretext.

a. Conduct by a tort defendant after an accident designed to reduce the possibility that a similar accident will happen in the future (repairs, replacements, upgrades) is not admissible against the defendant in negligence action.
b. Exceptions (must be genuinely disputed): 1) To prove ownership or control; 2) To prove the feasibility of safety measures.
c. Recent amendment to Rule 407 extends it to product liability cases.

a. Offers to settle a dispute, completed settlements, and statements made during negotiations are not admissible.
b. A lawsuit need not be pending, but the controversy must be genuine, and must be "disputed as to either validity or amount."
c. The most common exception is to show the bias of witness who agreed to testify as part of settlement.

A payment or offer to pay plaintiff's medical & related costs (made by defendant or an insurance company) is not admissible to show that the person paying them is liable.

a. Plea bargains, offers to plead guilty, and statements made during bargaining are not admissible.
b. This rule is narrow -- Formal charges must have been brought against the defendant, and the discussion must have been with a prosecutor, not a cop or the victim
c. There is an exception to show the bias of a witness who agreed to testify as part of plea bargain

a. Evidence that a party carries liability insurance is not admissible to prove fault, ability to pay, or to influence amount of damages.
b. Exceptions (must be genuinely disputed issue):
1. Agency -- Evidence that Defendant's insurance covers A to prove that A is the Defendant's agent.
2. Ownership or control -- Evidence that Defendant insured an item of property to prove that Defendant owns or controls that property.
3. Bias of a witness, e.g., that an investigator is employed by defendant's insurance company.

TOPIC 9 -- CHARACTER EVIDENCE (Rules 404-406, 412-415)

a. Definition of character evidence: Evidence that tends to show the qualities, behavior patterns, or personality traits of a person, whether or not an issue of morality is involved. Anything a person does "usually" is a character trait.
b. Evidence of general character ("X is a good person") is not admissible - Rule 404(a).
c. Evidence of a specific trait of character ("X attends church regularly") is not admissible - Rule 404(a)
d. Exceptions
1. Defendant's own character. Evidence of a pertinent trait of the accused's character may be offered by an accused, e.g., he is an honest man. If the defendant raises the issue of his character, then the prosecution may rebut with evidence of bad character on the same trait.
2. Victim's character. Evidence of a pertinent trait of the victim's character may be offered by an accused, e.g., he is an violent man. If the defendant raises the issue of the victim's character, then the prosecution may rebut with evidence of good character on the same trait. In homicide/self-defense cases, the prosecution may prove the victim's peaceful character to rebut any evidence that the victim was the first aggressor.

a. On the rare occasions when character evidence is admissible, it may be proved either by reputation evidence or through opinion testimony, but not by specific acts. Rule 405(a).
b. Reputation requires a foundation that the character witness is familiar with the subject's reputation.
c. Personal opinion requires a foundation that the character witness has known the subject over a long enough period of time and under sufficient circumstances that they can form a reasonably reliable opinion.
d. In a few situations -- notably defamation and negligent entrustment cases -- a person's character is directly in issue and may be proved by any means, including prior acts that illustrate that character trait.

a. Evidence that the accused committed crimes or bad acts other than the specific one he is charged with is not admissible. - Rule 404(b)
b. Exceptions: Evidence of other crimes, wrongs, or acts may be admissible to prove:
1. Motive, intent, knowledge, absence of mistake or accident, or other relevant state of mind. State of mind must be particularly disputed; cannot routinely use prior crimes to show mens rea.
2. Opportunity, preparation, plan, or other characteristics of an ongoing criminal enterprise or conspiracy.
3. Identity: Evidence strongly connecting the defendant to a prior similar crime admissible if the crimes are sufficiently distinctive to qualify as "signature crimes."
The Rule 404(b) exceptions generally apply only in criminal cases, although some states have created a parallel exception for civil cases. When a prosecutor seeks to invoke a Rule 404(b) exception, great care should be taken to make sure that the purpose is legitimate, and not just a pretext for placing the defendant's criminal record before the jury. States are split, but the better rule is to require the prosecution to wait until rebuttal, because it's too difficult to tell if the issue is really disputed until after the defense has presented its case.

a. Evidence about the victim's sexual character is generally not admissible. Rule 412. This rule applies evenly to both sides -- the state cannot prove a rape victim was a virgin, the defense cannot prove she was a prostitute.
b. Evidence about specific prior sex crimes, wrongs or acts committed by the defendant are admissible if relevant upon advance notice to defendant. Rules 413-415. Courts always find it relevant.

a. Definition. Habit is an activity that is always done the same way under a given set of conditions. It is usually limited to business settings where a routine is established as a matter of policy. The witness must have observed a large number of situations similar to the one at issue, and seen that the person or organization in issue has alwaysresponded to the situation in a particular way. It is not enough that the person or organization usually acts that way, because that would be character.


RULE 43. Lay witnesses opinions (Rule 701)

1. Lay witnesses may testify to their personal opinions if the following foundation is laid: a) The witness has personal knowledge of the underlying facts.
b) The opinion is rationally based on that knowledge, and
c) The opinion will be helpful to the jury

2. The only part of the foundation you can prove is the witness's personal knowledge. You can't "prove" rationality or helpfulness-- you can only argue about them.
3. By "helpful," we mean whether it will be more helpful to the jury to hear the opinion (conclusion) or the underlying facts (details). There is a lot of judicial discretion over whether an opinion will or will not be helpful. In general, opinions are preferred when the issue is of little relevance, and details are preferred when the issue is of central importance. Opinions are also helpful when they communicate more accurately than details because that's the way most people talk (short-hand rendition doctrine) -- e.g., he looked "angry."
4. Rules of thumb: a. Opinions about physical appearances (age, sleepiness, etc) are allowed
b. Opinions about mental states are not allowed
c. Opinions about the future are not allowed (no personal knowledge).
d. Legal opinions are not allowed.

5. In some situations, courts recognize a category of lay opinions from "skilled" observers -- those with special experience not amounting to true expertise. Such skilled witnesses are allowed a broader range of opinions than lay witnesses. One common example is an opinion about the health of a family member, which opinion could be given by another family member but not a neighbor.


1. Expert opinions are admissible under Rule 702 if the following foundation is laid: a. The witness is qualified by training or experience to be an expert
b. The witness has knowledge of the facts of the present case
c. The opinion is rationally based on data
d. The expert testimony will assist (be helpful to) the jury.

2. An expert is not restricted to personal knowledge, but may base opinions on second-hand information. R. 703.
3. Legal conclusions are not admissible. R. 704.


1. Scientific evidence, conclusions of experts, and descriptions of experiments are admissible only if a foundation is laid that the evidence, method of drawing a conclusion, and procedure for gathering data were scientifically reliable. Daubert v. Merrel Dow.

2. Whether a witness is qualified is a question of competency, so voir dire is permitted. Voir dire must go to the presence or absence of qualifications, not the extent of those qualifications.

3. An expert's opinions and testimony must be based on adequate data and be within the witness's area of expertise.



1. Although the putative rule is that hearsay is not admissible, Rule 802, in reality 95% of all hearsay is admissible if you are clever enough to find the right rule, exclusion, or exception. You should look in four places: a. Does the evidence fit the technical definition of hearsay in Rule 801(a)-(c)?
b. Is it exempted from the definition of hearsay by Rule 801(d)?
c. Does it fall into one of the exceptions in Rules 803-804?
d. Is it important evidence "in the interests of justice?" Rule 807.

2. Hearsay is conceptually very difficult. You will never, no matter how hard you try, actually understand it all. Neither do I, and neither do judges.

3. Hearsay objections should generally be made in the following situations: a. Whenever a witness describes or paraphrases what she heard someone say.
b. Whenever any kind of written document is offered into evidence.

4. The burden of arguing the objection is on the proponent. It is the response, rather than the original objection, that sets the stage for the argument over admissibility and must, therefore, be specific.

5. In several situations, the best response will be that the evidence does not fit the definition of hearsay under Rule 801(a)-(c): a. The evidence does not describe the content of an out of court communication
b. What the declarant said (or wrote) was not an assertion, but a question. command, promise, threat, etc..
c. The statement does not assert a fact perceivable through the senses, but asserts a belief, a prediction of the future, etc.
d. It is not being offered for the truth of the fact asserted, but for a different material purpose. You must specify that purpose and argue that it is relevant.

6. Conduct intended to communicate (e.g., pointing) is a statement.

7. When the existence of words themselves are a disputed issue, the hearsay rule does not apply (e.g., slander, contract terms, etc). This is called the operative legal facts doctrine for no known reason.


Rule 47. The prior inconsistent statements of a witness made under oath are exempted from the hearsay rule if the declarant testifies at trial and is subject to cross-examination. 801(d)(1)(a).

Rule 48. Prior consistent statements of witnesses offered after cross-examination to rebut an express or implied charge of recent fabrication or improper motive to falsify testimony are exempted from the hearsay rule. 801(d)(1)(b)

Rule 49. A witness's prior statements in which they identified someone (usually a criminal suspect) are exempted from the hearsay rule. 801(d)(1)(c)

Rule 50. Statements made by or attributable to the opposing party are exempted from the hearsay rule. 801(d)(2)(a). Remember that an opposing party may be a corporation that speaks only through its employees and agents. Personal knowledge is not required. These statements may be of several types: a. Statements made by the opposing party personally
b. Statements made by someone else but adopted (explicitly or tacitly) by the opposing party.
c. Statements by an authorized spokesperson, including those with implicit authorization like CEOs.
d. Statements by an employee of the opposing party relating to the employee's duties.
e. Statements by the opposing party's co-conspirators


Rule 48. Former testimony exception. FRE 804(b)(1).

1. Requires a foundation showing the unavailability of the declarant. To satisfy this foundation, you must offer evidence proving that the declarant falls into one of five categories:
a. Asserted a privilege and the court sustained it.
b. Persistently refused to testify despite a court order.
c. Has no memory of the subject.
d. Is dead or so seriously ill that the declarant cannot give testimony.
e. Is absent despite reasonable efforts to compel the declarant's attendance.

2. The remaining foundation for the former testimony exception is:
a. The declarant is unavailable.
b. S/he gave testimony at a previous trial, hearing, or deposition in which s/he took an oath and was subject to cross-examination.
c. The party against whom the evidence is offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination at that previous hearing..

Rule 49. Statements against interest exception. FRE 804(b)(3)

1. Requires a foundation showing the unavailability of the declarant. To satisfy this foundation, you must offer evidence proving that the declarant falls into one of five categories:
a. Asserted a privilege and the court sustained it.
b. Persistently refused to testify despite a court order.
c. Has no memory of the subject.
d. Is dead or so seriously ill that the declarant cannot give testimony.
e. Is absent despite reasonable efforts to compel the declarant's attendance.

2. The remaining foundation for a statement against interest is:
a. The declarant made a statement that was clearly against his/her interest at the time it was made. It may be against monetary, property, or penal interests.
b. A reasonable person would not have made the statement unless it were true.

3. It is relevant in determining whether a statement is against interest to look at all the circumstances surrounding the statement, including whether the declarant had a probable motive to make a false statement, and whether the present controversy had already arisen at the time the statement was made, and whether it is self-serving.

4. Statements offered to exculpate the defendant must be corroborated and trustworthy.

1. Statements made under belief of impending death (dying declarations), Rule 804(b)(2).
2. Statements of personal or family history, Rule 804(b)(4).
3. Forfeiture by wrongdoing, whatever that means, Rule 804(b)(6).


Rule 50. Exception for present sense impressions. Rule 803(1).

1. A present sense impression is a statement describing or explaining a material event made by the declarant while he or she was perceiving the event or immediately thereafter.

2. A present sense impression is admissible as an exception to the hearsay rule regardless of the availability of the declarant.

3. Foundation:
a. The declarant must have been a participant in or witness to a material event (personal knowledge requirement).
b. The statement must describe or explain the event. It cannot be a narrative of past events.
c. If it is opinion form, it must be rationally based on perception and helpful to the jury.
d. The statement must have been made spontaneously, without time for thought or fabrication.
e. The statement must have been made while the event was happening or immediately thereafter.
f. Most jurisdictions require some corroboration that the event happened.

Rule 51. Exception for excited utterances. Rule 803(2)

1. An excited utterance is a statement relating to a startling event made by any person under the excitement of the event.

2. An excited utterance is admissible as an exception to the hearsay rule regardless of the availability of the declarant.

3. Foundation:
a. A startling or unusual event happened. Most states require some corroboration.
b. Declarant was witness or participant.
c. Declarant was placed in a state of extreme excitement by the event.
d. The statement relates to, describes or explains the startling event.
e. The statement was made spontaneously, without thinking, not in response to questioning.
f. The statement was sufficiently contemporaneous with the event so that there was no time for reflection and person was still under stress. There is no fixed time limit.
g. If the statement contains an opinion, it must be rationally based on perception.

Rule 52. Exception for statements of mental condition. Rule 803(3)

1. Statements expressing a then-existing state of mind of the speaker -- e.g., emotional feelings, intentions and motives are admissible as an exception to the hearsay rule regardless of the availability of the declarant.

2. Foundation:
a. The statement describes the declarant's mental condition or emotional state.
b. The statement was made contemporaneously with the feeling or emotion.

3. The declarant's state of mind must be a material issue in order to invoke this exception.

4. The Hillmon exception (discussed in the book) holds that a statements describing an intent to do an act in the near future is admissible to prove that the declarant later did the act, if the declarant had the capacity to accomplish it.

5. The exception applies only if the statement describes a state of mind and it is the speaker's state of mind that is at issue. Statements that affect someone else's state of mind by causing a reaction are not hearsay at all, because they are not being offered for their truth.

Rule 53. Exception for statements of physical condition. Rule 803(3).

1. Spontaneous statements describing then-existing physical condition made contemporaneously with the feeling are admissible as an exception to the hearsay rule regardless of the availability of the declarant.

a. The declarant's physical condition is an issue.
b. The statement expresses or describe then-existing pain, malady, or other physical condition.


Rule 53. Business records exception. Rule 803(6).

1. Records made in the course of business routine, at or near the time of the event, based on personal knowledge of an employee, and then maintained by the business as a permanent record are admissible as an exception to the hearsay rule.

2. The term "business" includes every business, institution, association, occupation, and calling of any kind, whether or not conducted for profit.

3. Foundation:
a. The record is sponsored by person familiar with record keeping.
b. The record appears regular and unaltered on its face..
c. It was made at or near the time of the event or transaction
d. The regular practice of the business includes: 1. The event itself
2. The making of the record
3. Keeping the record

e. It is based on facts within the personal knowledge of employees, although the entrant need not be the same employee as the one who had personal knowledge. Statements by non-employees may not be included.

4. The original is not required

5. Records prepared by a party in anticipation of litigation are not admissible.

6. The foundation may be laiud by a witness in person or by affidavit. The foundation witness must have personal knowledge of the record-keeping system but not of the actual events. Most of the foundation is laid by habit testimony, i.e., that a record is "always" done a certain way.

Rule 54. Public records exception. Rule 803(8).

1. Properly certified records from public offices are admissible as an exception to the hearsay rule.

2. Foundation:
a. The record must be authenticated as true and complete by: 1. Testimony of official from the relevant office
2. A written certification by an official from the office.
3. A certification under an official seal.

b. It was prepared in a public office by public officials.
c. The record concerns the official activities, observations, or personnel of a local, state or federal office or agency.
d. The source of information and other circumstances indicate trustworthiness.
e. It must report facts within the personal knowledge of employees of the public office, or that are required by statute to be given to public offices.
f. It appears regular and unaltered on its face, but the original is not required

2. Police investigation reports are not admissible against criminal defendants.

3. Records of vital statistics (e.g., birth certificates) are admissible although the information does not come from state officials.

NOTE: All documents raise the possibility of "hearsay within hearsay." The record may contain statements by employees (hearsay) and also things told to those employees by outsiders (hearsay within hearsay). Each step requires a response to the hearsay objection.


Rule 55. All witnesses may be impeached. Rule 607.

1. Witnesses may be impeached by showing that they are unreliable people because of character flaws, or physical or mental limitations.
a. Evidence of bad character for truthfulness is admissible to impeach. Rule 608.
b. A witness's recent felony convictions are admissible to impeach. Rule 609.
c. A witness's recent convictions for crimes of dishonesty and false statement are admissible to impeach. Rule 609.
d. A witness may be impeached by proving prior inconsistent statements.
e. A witness may be impeached for bias, interest, or motive to fabricate. Any fact tending to show that a witness has a bias for or against a party, an interest in the outcome, or any other motive to testify falsely. Events that demonstrate bias directly (e.g., witness once attacked plaintiff with knife) or raise a circumstantial likelihood of bias (e.g., plaintiff once attacked witness) are both provable.
f. A witness may be impeached by showing poor memory.

2. The testimony of witnesses may be impeached by showing that it is unreliable because of the circumstances and conditions under which the original observations were made or remembered.
a. Poor opportunity to observe the events.
b. Drug or alcohol use either at the time of the event or at the trial. If a witness had any mental or physical defect on the day of the incident that reduced his/her ability to perceive or remember events correctly, that defect may be proved. This includes intoxication.

3. Impeachment generally requires a foundation of the time, place and circumstances of the impeaching event. Objections can also be made to failure of foundation. If you think impeachment is improper, object on thr grounds of "Improper impeachment," pointing out why this evidence is not permitted under the rules (e.g., conviction more than 10 years old).

4. Invoking the impeachment rules is usually done in response to an objection under Rules 402-404 [relevancy, prejudice, character], or hearsay [prior inconsistent statements].

Rule 56. Prior convictions under Rule 609.
1. Must be within 10 years.
2. No juvenile adjudications
3. Pending on appeal is irrelevant
4. Crimes of dishonesty are admissible automatically
5. Felonies are admissible only after balancing probative value (issue is truthfulness) against prejudicial effect.

Rule 57. Prior inconsistent statements
1. If under oath, may qualify for an exemption from hearsay under Rule 801(d)(1).
2. If not under oath, are admissible "not for their truth" but to impeach.
3. The statement being referred must be the witness's own, not the statement of any third party.
4. A witness must give direct examination testimony on the subject before the witness may be impeached.
5. The time, place and circumstances foundation muse be laid.
6. The witness must be confronted with the substance of the statement and given a fair opportunity to admit, deny, or explain it.
7. If the witness denies or does not remember making the statement, and if the statement is on a material issue, then the cross-examiner may introduce the statement itself.

Rule 58. Bolstering (proving truthfulness on direct examination) is not permitted.

Rule 59. Extrinsic evidence rule.
1. The extrinsic evidence rule makes no sense.
2. Extrinsic evidence is any document or any witness other than the one whose credibility is at issue.
3. Generally you may impeach concerning specific incidents only on cross examination of the witness being impeached.
4. Exceptions (extrinsic evidence okay) for bias and other impeachment that is independently material.
5. In all cases in which extrinsic evidence is permitted, you must
first attempt to impeach by cross examination, and may use extrinsic evidence only if the attempt fails.

Rule 60. Rehabilitation.
1. After impeachment, a witness may be rehabilitated on redirect.
2. Permissible rehabilitation includes:

a. Evidence similar in kind and scope to the impeaching evidence which rebuts it (e.g., good character for truthfulness following evidence of bad character for untruthfulness).
b. Explanations that a bias was only temporary or minor, and has since lessened.
c. Denials of bias, but not that bias is justified.