Evidence Outline

I. Article I - General Provisions

A. Rule 101 – Scope
1. These rules govern proceedings in the courts of the United States
and before the United States bankruptcy judges and United States
magistrates judges, to the extent and with the exceptions stated in
rule 1101
a. Rule 1101 – Applicability of Rules
i. Courts and judges
ii. Proceedings generally
iii. Rule of Privilege
iv. Rules Inapplicable – The rules (other than with
respect to privileges) do not apply in the following
situations:
- Preliminary Questions of Fact – the
determination of questions of fact
preliminary to admissibility of evidence
when the issue is to be determined by the
court under rule 104
• Fact that has to be determined by the
judge
o Rules to evidence don’t apply
- Grand Jury – proceedings before grand
juries
• Can hear hearsay evidence
o Rules of evidence don’t apply
- Miscellaneous proceedings – proceedings
for extradition or rendition; preliminary
examinations in criminal cases; sentencing,
or granting or revoking probation; issuance
of warrants for arrest, criminal summonses
• US v. Monsanto – forfeiture
proceeding – Monsanto wanted
money back to get an attorney and
wanted to know who the informants
were against him
o Court allowed affidavits –
which are hearsay
o Rules do not apply to
forfeiture proceeding
B. Rule 102 – Purpose and Construction
a. Apply these rules so they make sense to get to ultimate goal
– that justice is established – justice is overriding desire to
get everyone his “due”
i. US v. Opager – D raised defense of entrapment – P
 calls guy who worked with D and guy says D was
predisposed – D wants to show that W didn’t even
work at hair salon
- Rule 608b – if you are attacking W character
using specific instances of misconduct –
only done so on cross examine
• Extrinsic – comes from something
other than mouth
- Reversed because it was not fair
- Rule is meant to promote fairness and
achievement of justice
C. Rule 103 – Rulings of evidence
1. (A) Effect of erroneous ruling – Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and
a. (1) Objection – a timely objection or motion to strike
appears of record, stating the specific ground or objection,
if the specific ground was not apparent from the context; or
i. People v. Dunham – Child makes statement using
machine – there was no objection made to the
hearsay
- Specific grounds must be stated for
objection
- If objection is sustained – what is the
evidence that we are talking about
• Need to state with specificity what
the testimony would deal
b. (2) Offer of Proof – in case the ruling is one excluding
evidence, the substance of the evidence was made known to
the court by offer or was apparent from the context within
which questions were asked
i. (B) Record of offer and ruling – the court may add
any other or further statement which shows the
character of evidence, the form in which it was
offered, the objection made, and the ruling thereon.
It may direct the making of an offer in question and
answer form
- Must make offer of proof if evidence is not
allowed in
• Fox v. Dannerberg – Can’t
determine who was driving the car –
objection to expert testifying
o P says what experts would
say
ii. (D) Plain Error – nothing in this rule precludes
taking notice of plain errors affecting substantial
 rights although they were not brought to the
attention of the court
- United States v. Maliszewski
• Requirements of plain error
o Mistakes must be an error
contrary to law
o Must be plain
- Issue must be well
settled
o Error must effect substantial
rights
- Excluded evidence
must have someone
tendency to effect
outcome of case
o If 3 are met – court MAY
notice forfeited error
- If effects a judicial
proceeding
- Rojas v. Richardson – closing statement
error calling him an immigrant
• Court dealt with plain error rule
o Very high bar
D. Rule 104 – Preliminary Questions
1. (A) Questions of admissibility generally – Judge makes call on
admissibility decisions – Judge is not bound by rules of evidence
a. Green v. States – Green robbed and shot clerk, clerk died –
clerk told medical tech about it before he died and judge
had to make call if it was admissible
i. Issue is hearsay complaints
ii. Green wanted to keep out V’s statements about who
shot him and what happened
iii. Rule 802 says hearsay is not allowed unless there is
an exception
iv. Procedural device that allows preliminary questions
of fact – rules don’t apply
b. US v. Campbell – D wrote fraudulent checks from corp, the
question was whether the attorney could testify against him
– there was a letter from the trustee to the lawyer
i. Judge had to decide if AC privilege applied
ii. Determination of whether privilege applies – judge
had to consider hearsay to make determination –
rules of evidence do not apply
2. (B) Relevancy conditioned on fact – Judge makes determination
of fact
a. Ricketts v. City of Hartford – constitutional violation by
 someone acting under color of state law – Ricketts got beat
up – the evidence item in dispute was an audio tape
between dispatcher and pursing officer
i. Jury makes determination – question of fact
ii. Because of determination of relevancy depends on
fact of who was speaking
- Judge can say:
• It was him speaking and it is relevant
• It wasn’t him speaking and it is not
relevant
iii. Those determinations go to jury – admitted subject
to fulfillment of condition
- Standard is whether any rationale juror
could find
b. US v. Plattero – Rape that occurred on Indian reservation –
D wanted to prove V had past sexual relationship – under
rape shield law – evidence attacking character of rape V is
barred (exception – evidence that tends to establish specific
defense)
i. Evidence of past relationship comes in and jury
decides if past relationship was there
ii. Fact of relationship is factual question – and
admissibility turns upon fulfillment of that
condition
E. Rule 105 – Limited admissibility
1. Dual purposes
a. Contains assumptions
i. Can be admissible for one purpose but not
admissible for another
- Using past felonies are allowed to impeach,
but not prove character
b. When there is dual purpose evidence
i. First let in and give limiting instruction
ii. A limiting instruction is a not self executing rule
- Gov’t of the Virgin Islands v. Mujahdid –
Rape case – the co-D pleaded guilty and
testified against D
• Plea shows bias
• Problem with showing deal – her
guilt can be imputed to D
F. Rule 106 – Remainder of or Related Writings or Recorded (rule of
completeness)
1. Writing or recorded statement is introduced
a. Adverse party can require more to the writing or recorded
b. Based on fairness
i. Prevents ability to things out of context
 c. Judge has to take a look at writing – see if admitting a
portion will be misleading – make a determination if there
needs to be more in order to give a true meaning to the
evidence
i. US v. Sutton – Sutton sold crude oil and DOE of
employee were convicted of bribery – issue was
additional portions of the tape admitted recorded by
government employee
- Only introduced part of the tape in which
Sucher admitted guilt
• Can we have hearsay evidence for
one party but not for another?
o Hearsay: statement made out
of court offered to prove
asserted in statement
o Certain statements are
excluded – admission of
party opponent
- Even though out of
court statement – if
that admission is
made to another
person – it can be
admissible when it
should be excluded
- Statement must be
offered by party
opponent
- Collision of rule of completeness and rule
against hearsay
- Using this rule in collision with another rule
– find features that promote fairness
ii. Adverse party may require the introduction AT
THAT TIME – D can stop government case and
insist that government put in the balance of the
statement so the jury hears it all at once
II. Article IV – Relevancy and its limits
A. Rule 401 – Definition of “Relevant Evidence”
1. “Relevant evidence” means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence
a. Sets a low bar
b. Allows idea of incremental proof – sufficiency of evidence
- evidence must be sufficient and actually proves a point
c. Relevancy contains 2 concepts
i. Logical persuasion – can contribute to proof of a
fact – need not be sufficient – only advance inquiry
a little bit
- State v. Knapp – guy killed cop
• Have to know what inquiry is
o Rebutting claim of defense
- To determine if
evidence bears
consequential fact
- D must show that he
had honest and
reasonable belief that
he was in danger of
death or serious injury
– focuses on state of
mind
• Has to have honest belief that this
cop will kill him – he offers evidence
• Component is what he believed
about how old man died
o Only applies to his state of
mind
- What does it matter of
how man actually
died – irrelevant
evidence – makes it
less probably that he
actually heard it
• Proof of cause of old man’s death
doesn’t undermine D’s story – makes
it a little less likely that he heard it
(low relevancy threshold)
- State v. Brewer – DUI – D says he was
drunk but he wasn’t driving and there was
an accident and D was in car and said
roommate was driving
• Didn’t call roommate at trial – is it
logical to infer that if he didn’t call
his roommate at trial he was driving
o Court says that isn’t fair
o Doesn’t prove consequential
fact
- Kelly’s Auto Parts, Inc v. Boughton –
insurance company defends against fire with
arson
• Evidence – P’s want to introduce
 evidence they were never tried for
criminal arson
• Standard for relevancy – tends to
prove or disprove a consequential
fact more or less likely
• Court says it doesn’t advance inquiry
– because other people determination
- Murphy v. Cinnicnati Ins. Co. – P’s home
burned down before they were going to
move, fire chief said it was arson and that
P’s husband was a few miles
• Arson + fact that insurance owners
were the ones who committed arson
• P offered to take lie detector and
wanted to put that in evidence
• Helps logically advance inquiry – if
someone is guilty more likely they
would NOT take lie detector test
- US v. Dillon – infer that act of flight – from
flight to conscience of guilt – conscience of
guilt concerning case – actual guilt
ii. Materiality – to determine relevancy analyze
elements of claim – fact must be consequential and
must advance inquiry
- Evidence does not to be sufficient to be
relevant
• i.e. worked in a plant working on a
press machine, reaches in to take
part, machine takes off hand, brings
lawsuit against manufacturer of
machine – what if he went to the bar
o Fact that he went to the bar
makes it more likely he was
drunk – gives us incremental
proof
o Can be persuasive and is
persuasive on a consequential
point
- Proof that he was
drunk proves whose
fault it is
(comparative
negligence)
d. Relevancy has to do with drawing logical inferences
i. Know what evidence is
ii. What consequential fact is
 - Consequential fact – notice that there was a
problem, mechanism of injury, company had
a sufficient data base to commence recall
• Ponder v. Warren Tool – used tool to
inflate tire and tire exploded injuring
P
o Court didn’t allow evidence
of prior accidents of bead
seater
o Court says if dangerousness
is issue – events have to be
similar to a high degree
- If question of notice –
a certain level of
dissimilarity is
tolerated
- If precise failure –
high level of
similarity
• Hines v. Joy Manufacturing – mine
worked was injured by machines
o Evidence was lack of claims
- Lack of claims shows
there is no design
defect
iii. Chain of inferences
B. Rule 402 – Relevant evidence generally admissible; irrelevant evident in
admissible
1. All relevant evidence is admissible
C. Rule 403 – Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time
1. 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 consideration
of undue delay, waste of time, or needless presentation of
cumulative evidence
a. Balance – probative value (purpose- hotly contested point)
v. prejudice evidence will have
i. Prejudice has to be unfair –
- Evidence might be considered by jury for
improper use
- If jury gives weight to evidence that is out of
proportion to its logical force (jury believes
that evidence proves TOO much)
b. Unfair prejudice must substantially outweigh probative
value
i. Improper purpose of evidence must take over
proper purpose
- Old Chief v. US – bar fight and a shot was
fired – D was charged with felon in
possession
• Possession is generally contested
point
• What is purpose for which
evidence being offered?
o To show he is a felon
o Propensity – act in
conformity with character
trait
• Balance probative value with
prejudicial value
o Can attack probative value
side was as well as showing
prejudicial side
- Proved D was
convicted of felony,
but he has many other
felonies
o Consider alternative sources
of proof
- If all you have –
probative value is
high
ii. Product rule of probability
- People v. Collins – couple committed
robbery – prosecution brought in expert to
testify to statistics of couple
• Operative rule – product rule of
probability
o Multiply all factors together
to come up with probability
all factors occur
• Unfair prejudice comes from:
probability can represent at best that
a random couple could fit into
characteristics not the characteristics
of guilty couple
• Problem – distorted jury – unfair
prejudice comes from allowing
evidence to carry more weight than it
was supposed to
o This evidence claims
 certainty – but has no right to
claim that
o Any probative force was
substantially outweighed by
prejudice
c. Analytical Process
i. First identify purpose
ii. Determine if there is another purpose (illegitimate?)
iii. Turn to 105 – dual purpose
iv. If 105 is insufficient 403 – evaluate both sides of
the scale – discuss probative value and unfair
prejudice
D. Rule 404(a) - Character Evidence generally –not admissible for the
purpose of proving action in conformity therewith on a particular
occasion, except:
1. Criminal D may show his own good character to show inference he
didn’t do crime charged
a. Government of Virgin Islands v. Peterson – D said he did
not commit murder – that he was not the kind of guy that
would kill someone because he was a Rastafarian
i. Person may not act in accordance with professed
belief
ii. He can prove a trait of character of circumstantial
evidence of what he did or didn’t do
- Evidence MUST be relevant
• Evidence of a religion is TOO
remote
b. US v. Gilliand – convicted of stealing a car – son says he
didn’t do it
i. Son was there to show car wasn’t stolen
ii. Rule must be complied with literally
- Must be offered by accused
2. Criminal D may introduce evidence of V’s inference of violence to
show V was aggressor
a. Self defense – honest and reasonable belief of fear
b. Proving victim had a character for violence – likely victim
acted in a violent way
c. Perrin v. Anderson – D was fighting officers and the
officers shot him – excessive force case
i. Inference is that he is more likely the first aggressor
– because he has acted that way in the past
3. If D opens door for either purposes – the pros may introduce
character evidence to rebut that
a. US v. Bright – D is charged with mail fraud
i. D called W to give character testimony
- Using reputation
 ii. Government asked during cross – asked about
reprimanding
- Requirements before asking about specific
instances on cross
• Good faith basis
• Pertinent character trait
4. In sexual assault, or child molestation – can show propensity –
pros can show D’s sexual propensity to show he committed
charged offense
5. Evidence of W’s character of untruthfulness to show that W was
lying while testifying
a. Proof of W’s character for untruthfulness is allowed
6. Character may be prove when element of claim or defense
a. i.e. defamation – prove what type of character was
damaged
b. i.e. negligent entrustment – entrusting a dangerous
instrumentality to a irresponsible person – proof of persons
irresponsibility is element of claim
7. If main purpose is not to show propensity
a. Motive, plan, scheme, absence of mistake, etc…
8. Must determine purpose of character evidence – offered to prove
because part of claim or defense or circumstantial for state of mind
- not allowed if circumstantial of what person did or thought =
propensity evidence to show they were acting in conformity
a. State v. Carlson – D shot bar guest
i. Evidence – specific instances of violence
ii. Purpose was to show subjective mind set of D
- Allowed specific instances of conduct
• Not show character for violence
9. Specific instances are admissible to prove character
a. Panas v. Harakis – negligent hiring case – for security
guard abusing discretion
i. P had to show guards bad character which should be
kmart on notice on a risk
- Element of P’s claim
10. Proving character as a concept and methods
a. If you want to show character of honesty: (means – not
allowed in all cases)
i. By evidence of reputation – how a person is known
in the community
ii. By proof of means of opinion – view of someone
that can be offered to show what character is
iii. By showing specific instances of conduct
- i.e. individual was arrested and ripped the
door off and gave rise to fact that person
was violent
 11. Prohibited Uses – to show propensity
a. Hatt v. Nay – whether P could introduce specific instances
of foreman
i. Evidence of specific acts of carelessness is
inadmissible
ii. Servant may have been guilty on certain occasions –
not ordinarily be a careful person
b. Lexington Railroad v. Herring – woman was boarding a
trolley car – in process of getting she fell back – dispute
deals with whether or not the trolley stopped
i. Evidence – tending to show general reputation of
her sobriety – properly excluded because it was not
relevant
ii. D said that she had on prior occasions that she was
carelessness
c. State v. Bazan – D was charged with assault and intent to
commit a violent felony
i. Evidence – wanted to prove officer was reckless
and dangerous
ii. Purpose was to infer from character trait specific
conduct on this occasion
iii. Method was invalid – specific instances
E. Rule 404 (b) – Character evidence can admitted for another purpose
1. Other purposes where it allowable – not exclusive list
2. Evidence must have a bearing on a material point in the case
a. US v. Fuller – convicted of 2 federal firearm violations –
evidence – drug paraphernalia found in apartment
(wrongful bad act)
i. Ex-wife denied knowledge of drug paraphernalia
ii. Tried to tie together that where there is drug
paraphernalia there are guns
iii. Purpose – impeachment
3. If identity is purpose – must be a high relation
a. State v. Garfole – sex with a minor – evidence – indicted
on 5 similar counts
i. To be admissible – must bear same “high degree of
similarity”
ii. If D open door to past criminal evidence – doesn’t
apply
4. If purpose is plan, scheme or method, or absence of mistake – not
as high relation has identify
a. People v. Oliphant – D was convicted of raping college girl
in his backseat – evidence – manner of how he raped other
girls
i. Defense is consensual sex
- State brings in other “raped” victims
 • Purpose is plan, scheme, or system
ii. If purpose is not to show propensity (to infer what
someone did) – list is non-exclusive
iii. Evidence was offered in rebuttal – once he testifies
and argues consent – evidence has MORE value
b. US v. Merryweather – attempting to use taped conversation
of other indictment – evidence – was tapes of conspiracy
that he was not indicted for
i. Purpose – identify and intent
ii. Must state a specific reason
iii. Must be material proper purpose and that must be in
play
F. Rule 405 – Methods of Proving Character
1. Allowed
a. Testimony towards opinion – subjective of what witness
thinks about person
b. Testimony about reputation – collective hearsay of opinion
of the community of a person’s character trait
i. Size of community matters
ii. Also hearsay – reputation requires gathering of
information
2. Specific instances are NOT allowed
a. Except on CROSS
3. In a criminal case – opens door to relevant specific instances of
conduct
a. Prosecutor can undermine the credibility of the witness
b. Prosecutor can undermine bad characteristics
i. Rebut with opposite character trait same way
defendant attempted to do so
ii. Specific instances can only be used to undermine
witness – not prove bad character
G. Rule 406 – Habit; Routine Practice
1. Regular practice of responding to a repeated situation with specific
conduct
a. Not a specific number of conduct
i. Charmely v. Lewis – P always walked a certain way
in a cross walk
- 5 W’s saw him numerous times walk a
certain way
- Testimony of supporting a habit – tends to
support the fact he does it multiple times
ii. French v. Syarano – Guy found money in the back
of car
- Evidence – widow wanted to show husband
had habit of stashing none
- Evidence can be admissible but not
 sufficient to establish the claim
b. Customs
i. Progressive v. Kurtz – insured motorist with policy
- Company wanted to show that the form was
sent
• Using evidence that it was there
routine policy - habit
H. Rule 407 – Subsequent Remedial Measures
1. Terms
a. Subsequent – after (harm, lawsuit started, discovery of fall)
b. Remedial
c. Measure – action taken by someone to achieve goal
2. Must be controverted
a. Boeing Airplane Co. v. Brown – Product liability where
Brown sued on behalf of his dad when his plane exploded
after a faulty part
i. Allowed to introduce evidence of changes that
Boeing made after crash
ii. Remedy was made after lawsuit
iii. Must look at purpose – policy is to fix mistakes and
not take a hit in court – encourage repair defective
products and promote development
3. Mere puffery
a. Muzyka v. Remington Arms Co. Inc. – defective bolt lock
safety – Remington changed their design – took stance as
safest
i. Evidence of redesign was allowed
ii. Extravagant statements of how safe
iii. Must identify reason it is fair or why policy still
needs to be vindicated
4. Defendant offering evidence of remedial measure
a. Hartman v. Opelika Machine and Welding – OMW made
the device – worker is injured – exclusive tort = workers
compensation
i. Not offered to prove: negligence, culpability,
defect, design, or need for warning
ii. 407 does not apply for non-party
iii. Evidence not showed to show fault – doesn’t fit
pattern of 407
5. Impeachment
a. Must directly contradict W’s testimony
i. Reddin v. Robinson Property – premise liability –
area after fall was taped off – only marginally
touched and could not offered as impeachment
evidence
- Must directly contradict not if only
 marginally contradicts
I. Rule 408 – Compromise and Offers to Compromise
1. (a) Prohibited Uses – Evidence of the following is not admissible
on behalf of any party, when offered to prove liability for,
invalidity of, or amount of a claim that was disputed as to validity
or amount, or to impeach through a prior inconsistent statement or
contradiction:
a. Furnishing or offering or promising to furnish – or
accepting or offering or promising to accept – a valuable
consideration in compromising or attempting to
compromise the claim; and
b. Conduct or statements made in compromise negotiations
regarding the claim, except when offered in a criminal case
and the negotiations related to a claim by a public office or
agency in the exercise of regulatory, investigative, or
enforcement authority
i. Must be a dispute (not just offer to pay) and dispute
must deal with damage or relate to amount of
damage being claimed
ii. Ramada Development v. Ruach – Ruach refused to
pay because he wasn’t happy with work
- Must have contested point (dispute) – based
on fault or amount of damages
- Excluded is the report
• Report says what the damages are
• Ruach offered report into evidence
• Ramada hired Goldsmith
- Ruach is trying to offer in evidence of what
Goldsmith found – purpose was damages
- Report can’t come into evidence
2. (b) Permitted Uses – This rule does not require exclusion if the
evidence is offered for purposes not prohibited by subdivision (a).
Examples of permissible purposes include proving a witness’s bias
or prejudice; negating a contention of undue delay; and proving an
effort to obstruct a criminal investigation or prosecution
a. Offer to mitigate damages
i. Bhandari v. First National
- Evidence that is offered to mitigate damages
b. When there is a mitigation argument that deals directly –
rule does not prohibit – until last year…
i. Stockman v. Oakcrest Dental center (480 F.3d 791)
– case
- Dentist Stockman sold to dental center
(oakcrest) – worked out side deal where he
could continue working – supposed to
making a certain amount and he was
 terminated – filed age discrimination case –
oakcrest made offer of reinstatement
• Jury finds for stockman – awards
damages
• Trial judge held offer of
reinstatement would not be
admissible
• Goes to mitigation
o Offered evidence of
reinstatement talk
• Appeals said evidence was not
properly admitted – issue of
mitigation deal with amount of claim
– reversed
• Offered occurred during litigation
o Might not have much of
bearing of whether there was
an attempt of mitigation
J. Rule 409 – Payment of medical and similar expenses
1. Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not
admissible to prove liability for the injury
K. Rule 410 – Inadmissibility of pleas, plea discussions, and related
statements
1. A plea of guilty which was later withdrawn;
2. A plea of nolo contender; (no contest)
3. Any statement made in the course of any proceedings under Rule
11 of the Federal Rules of Criminal Procedure or comparable state
procedure regarding either of the foregoing pleas; or (statements
made in connection with plea proceedings)
4. Any statement made in the course of plea discussions with an
attorney for the prosecuting authority which do not result in a plea
of guilty or which result in a plea of guilty later withdrawn
(negotiations that deal with prosecutor)
a. Only applies to prosecutor
i. US v. Robertson – Robertson told DEA he will
cooperate
L. Rule 411 – Liability insurance
1. Evidence is not allowed to prove to negligence or wrongful act
a. Allowed to come in to show bias
i. Charter v. Chelreborad – charter sued for
malpractice – P brings in expert – D calls in
attorney and attorney testified that expert had a bad
rap
- Evidence show bias – Alder is on approved
list for insurance company – looking for
 more work from insurance and more money
b. Allowed to show ownership
i. Dobbins v. Crain Brothers, Inc – P slipped on snow
and ice
- Alternate purpose – proper purpose under
rule 411
• Proof of ownership or bias
c. If not on prohibited list
i. Morrissey v. Welch Co – Wall fell on P because of
negligence
- Not an exclusive list
- First look at prohibited reasons
• If does not fit within prohibited
reason – most likely will come in
- Show purpose to fit within the rule
M. Rule 412 – Rape shield law – evidence of victim’s past sexual conduct
1. In a civil case – admissible if probative value outweighs unfair
prejudice
N. Rule 413 – sexual assault
1. Evidence of admission of other sexual assaults is admissible to any
matter in which it is relevant
a. Any evidence can be considered as long as its relevant
b. Trumps rule 404a and 404b
c. US v. Guardia – D is charged with 2 counts of sexual abuse
i. En Clave offense – state law claims committed on
federal property – become federal because of where
they are committed
ii. Wanted to admit evidence of 2 other sexual assault
complaints
O. Rule 414 – Child molestation of cases
1. Same rule as sexual assault – evidence of admission of other child
molestation cases is admissible to any matter as long as its relevant
P. Rule 415 – deals with child molestation/sexual assault in civil case –
generally comes up in employment cases where there is contact
III. Article VI - Witnesses
A. Rule 601 – General Rule of Competency
1. Who is competent? – just about everyone
a. State v. Roman – D sexually assaulted a child – W was
child who testified
i. D said child was not competent
ii. Ties into rule relating to oaths (603) – if W can tell
the truth – the person is old enough to testify
iii. Children are competent and so is everyone else
- Unless there is showing there isn’t
2. Civil actions when using state law for claim or defense – diversity
cases
 a. Competency of state rules apply in fed court
i. Brand v. Brand – P and D were brothers – and D
lived with F – F transferred all or most of assets to
D – note that said assets would to be split between
brothers
- Dead man statute says parties can’t testify
about talks with deceased
• Attacks competency about only in
state law
B. Rule 602 – Lack of personal knowledge
1. W may not testify to a matter unless evidence is introduced to
support a finding that W has personal knowledge
a. Pre-requisite is proof that W has personal knowledge
2. Foundation – that evidence that is necessary to establish the
required facts to satisfy procedural requirement
a. Certain facts that expert must testify to
b. McCrary-El v. Shaw – Person in prison serving time – got
into a fight with correction officer – McCrary-El wants
damages
i. Evidence wants in testimony of guy in next cell
who could see through a crack in the wall
- Standard – whether reasonable juror could
conclude that W could see what W saw
• Low threshold
- Jury decides W’s credibility
c. US v. Peyro – D was charged with conspiracy to distribute
cocaine – gf testified (memory issues and emotionally
unbalanced)
i. Judge made finding that W had sufficient
knowledge
ii. Believability was up to jury
3. Hypnosis
a. Confabulation – process of mixing facts that might be
suggested to W while under influence of hypnosiss
i. US v. Valdez
C. Rule 603 – Oath or Affirmation
1. Oath doesn’t have to resort to God or have an religion reference
2. Any word that W will utter that will impress the obligation of truth
a. US v. Fowler – Fowler is tax protestor – he didn’t wasn’t
the kind of guy would lie
i. He wasn’t allowed to testify regardless
D. Rule 604 – Interpreters
1. Must accurately must translate
a. State v. Warden – D was charged with inappropriate
touching
i. Evidence – V could not testify without a facilitator
 ii. V could not utter any words
iii. Danger is that facilitator could change testimony
E. Rule 606 – Competency of juror as Witness
1. A member of the jury may not testify as a witness before that jury
in the trial of the case in which the juror is sitting. If the juror is
called so to testify, the opposing party shall be afforded an
opportunity to object out of the presence of the jury
a. Member of the jury may not testify as a W
i. US v. Straach – D was selling guns to nonresidents
of Texas – jurors who sat in and contacted attorney
saying he was innocent and they had compromised
on their verdict
- Jurors can talk about trial once it was over
ii. US v. Swinton – D was misrepresenting and a juror
found and told the other jurors about a past criminal
activity that was inadmissible
- Info was gained from outside sources
- No less extraneous simply because it comes
from a juror – juror brought from outside the
court room
• Extraneous info can come from
different sources
F. Rule 607 – the credibility of witness may be attacked by any party
1. Two basis types of impeachment
a. Use of intrinsic evidence
i. Challenge to witness himself WHILE witness is
testifying on stand
b. Use of extrinsic evidence
i. Proof other than from witnesses own mouth
ii. Limits on use of extrinsic evidence when
impeaching witness:
- When involves collateral matter – generally
will not allow extrinsic evidence to be used
to impeach
G. Rule 611 – Mode and Order of Interrogation and Presentation
1. Rule 611(a) – Control by the court
a. The court shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment
i. Court has a lot of power and reviewed under an
abuse of discretion standard
- Berroyer v. Hertz – P had wisdom teeth
pulled and wound didn’t heal right
 • Order of proof with respect to
experts
• D wanted an expert to testify during
P’s case
• P wanted to bring in rebuttal W right
after D’s W
• 611a says judge has discretion –
fairness
2. Rule 611b – Scope of cross-examination
a. 3 different rules of scope
i. Wide-open – on cross you can ask about anything
relevant
ii. Restrictive – limited to scope of direct
iii. Modified wide-open – scope is very liberal and not
limited to the subject matter of direct – may deal
with other things that may have an affect
b. Federal rule embraces the restrictive scope of cross
i. W’s credibility is included in direct
c. On cross:
i. Generally restricted to scope of direct
- Always ask credibility questions
d. Court may permit inquiry as if on direct – scenario of
pathologist of W stand
i. Must do it as if on direct (no leading questions)
3. Rule 611c – Leading questions
a. Leading questions shouldn’t be used on direct
i. Leading question – questions that suggest an answer
b. Not allowed on direct
i. Direct should be take one small part at a time
c. Allowed on cross – leading questions help challenge the W
to get the truth out (used to challenge testimony)
d. Exceptions:
i. Develop testimony and get to point (through
uncontested point to contested point)
ii. Hostile W – a W who demonstrates a reluctance or
refusal to testify
iii. Biased W
iv. Children who has trouble communicating
e. Rule is not self-executing
H. Rule 612 – Writing used to refresh memory
1. While testifying, or
2. Before testifying, if the court in its discretion determines it is
necessary in the interests of justice, the adverse party is entitled to
have the writing produced at the hearing, to inspect it, cross the
witness, and introduce in evidence those portions which relate to
the testimony
 a. You can use anything to refresh their memory
i. Statements, reports, etc…
ii. As long as it jogs memory
b. Not read allowed in court room
i. Jury does not consider item
c. Must lay foundational facts
d. Must be the product of refreshed memory
e. Done in front of jury – jury can take into account the
process it took to remember
f. What happens with item that is used to refresh?
i. If W uses an item while testifying then otherwise
has absolutely right to see
ii. If I uses an item before testifying other side can see
it
g. What if W reads privileged document to refresh memory
i. Privilege is trumped – requires production
I. Rule 613 – Using prior inconsistent statement
1. Impeachment – attacking credibility of witness statement – any
effort to undermine juries to put stock in what a witness says –
process by which advocate persuades jury that witness is not
worthy of belief
a. Challenge to witness’s willingness to tell the truth and
witnesses ability to do so
b. Call into question accuracy of witness perception and
witnesses sincerity
2. General rule – attempts to support credibility are not allowed until
witness has been attacked
3. 613a – examining W with prior statement – statement need not be
shown or disclosed to W but on request it shall be shown to
opposing counsel – deals with intrinsic impeachment – don’t have
to tell W of evidence
a. W admitting he made prior inconsistent statement –
intrinsic
i. Statement came from W’s own mouth9
b. Doyle v. Ohio – drug bust dealing with plea bargain and
who sold the drugs to who
i. Contested buying drugs
ii. D remained silent and pros wants to introduce
silence as evidence
c. Jacbos v. Anderson – silence occurred before Miranda was
given –
i. Difference was that there was a silence before
Miranda
4. 613b – deals with extrinsic evidence – W is given opportunity to
explain and opposite party is afforded an interrogation
a. Must first lay foundation by confronting W on DIRECT
 examination
i. Must afford W oppurunity to explain or deny
ii. Can be evidence:
- W’s own written statement
- Tape recording of W talking
- Another W
iii. US v. McClaughlin – tax fraud evasion –
- Gave advice that he had to withhold the
funds
- D wanted to testify that Wietz had
conservation
• Not allowed because Weitz was not
allowed to explain or deny
- There does have to happen a specific order
of events
b. Prior inconsistent statement – some words written or oral
that W made BEFORE the time the W was testifying
i. Different that what W says on stand
c. People v. Peterson – Dynamite was discovered after a
conversation about D in connection with dynamite
i. Issue – was who owned dynamite
ii. Peterson told Conolly of dynamite
iii. Didn’t remember about dynamite
iv. Court allowed testimony – introduced to prove
Connolly was lying – used it impeach
- Purpose not to prove underlying fact
- Only can offered to impeach Connolly’s
statement
d. In order to lay a foundation: I don’t remember is sufficient
to lay foundation and then confront the W about it and give
W opportunity to deny or explain
5. Impeachment is DUAL PURPOSE evidence – it can’t be used as
substantive evidence
6. Demonstration of bias
a. Can result from:
i. Any reason that W might lie, sway, or shave
testimony in favor/against
ii. Interest in outcome
iii. Relationship with party
iv. Inducement to testify
v. Hostility
vi. Pecuniary interest in the case
- Legit or corrupt
7. Attack on W’s character in order to undermine credibility
a. Exception to 404 – 404a3
b. Only trait is character for truthfulness or untruthfulness
 8. Demonstration of defect in perception, memory, or ability to
communicate
9. Counterproof or specific contradiction
a. If W testifies that house on corner was blue – might bring
in other W’s to prove house was red – to show that W was
incapable or unwilling to impeach
b. Always be definition – involves extrinsic evidence – other
4 can use both types of impeachment
J. Rule 615 – Exclusion of witnesses
1. At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion.
a. W is being removed from court to eliminate collaboration
of testimony
i. At request of party – rule is NOT self-executing
b. Exceptions:
i. Parties to the case
- If party is a business – a rep gets to stay
• More can stay if you can show they
are essential
ii. Person authorized by statute
iii. Essential parties to the presentation of the party’s
case
- Expert witness
• Doesn’t have person knowledge –
sequestration order does not affect
their ability to say what happened
o Second hand and not a fact
witness
• Necessary
IV. Article VII – Opinions and Expert Testimony
A. Rule 701 - Opinion testimony by lay witnesses
1. If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of rule 702
a. Deals with opinion testimony with fact Ws’
b. Limited testimony to:
i. Rationally based on perception of the W
ii. Helpful to jury to understand a fact or W testimony
c. Rule 701c
i. US v. Anthony – opinion that W was unstable was
not allowed
 - Person who gave opinion was not able to
establish rationale inferences
- Attempted to have expert W give lay
testimony that they said was based up on
rationale inferences  rule introduced
2.