From
May 2002 Update
Chapter 1 - Hearsay at Trial:
Objections, Proffers and Other Matters
§ 1.100 Rule 103: Rulings on Evidence
§ 1.200 Effect
§ 1.300 Short Pep Talk of Sorts
§ 1.310 Lawyers’ Attitudes Toward Hearsay
§ 1.320 Reversals
§ 1.330 Fact-Intensive Nature of Rule and Exceptions
§ 1.400 When to Object
§ 1.410 Effect of Not Objecting
§ 1.420 Object on the Record
§ 1.430 Avoid General Objections
§ 1.440 Object Before Introduction of Evidence
§ 1.450 Form: Specificity Required
§ 1.460 Request Offer of Proof from Opponent to Support Objection
§ 1.470 Limiting Instructions
§ 1.480 Voir Dire of Witness to Confirm Basis for Objection
§ 1.500 Motions in Limine
§ 1.600 Offers of Proof
§ 1.610 In General
§ 1.620 Purpose
§ 1.630 Timing
§ 1.640 Make Offer on Record
§ 1.650 Form
§ 1.660 Contents
§ 1.670 When Excused
§ 1.700 Request Findings on Fact that Support Admission
§ 1.800 Handling Adverse Precedent
§ 1.900 Rule 403 and Unfairly Prejudical Evidence
Chapter 2 - What Is (And Is Not)
Hearsay
§ 2.100 Rules Defining Hearsay
§ 2.110 Rule 802: Hearsay Rule
§ 2.120 Rule 801(a), (b), (c): Definitions
§ 2.200 Effect
§ 2.210 In General
§ 2.220 Exclusions and Exceptions
§ 2.300 Purpose
§ 2.400 Application
§ 2.410 Scope
§ 2.420 Assertion or Statement, Offered for Truth
§ 2.430 Nonverbal Conduct
§ 2.440 Words Offered For What They Imply
§ 2.450 Statement Not Offered For Its Truth
§ 2.451 Background Information for Investigations
§ 2.452 Caution Needed in Accepting Statements Not Offered for Their
Truth
§ 2.460 Words of Independent Legal Significance (Verbal Acts)
§ 2.470 Stealth Hearsay (Conclusions Based on Hearsay)
§ 2.480 Forfeiture/Waiver of Right to Object to Hearsay Because of
Misconduct
§ 2.490 Trial Practice
§ 2.500 Relevant Cases
§ 2.510 Illustrative Hearsay
§ 2.520 Reason for Rules/Exceptions
§ 2.530 Not Statement, Not Hearsay
§ 2.540 Nonverbal Conduct Intended as Assertion
§ 2.550 Nonverbal Conduct Not Intended as Assertion
§ 2.560 Orders, Questions Not Assertions
§ 2.570 Words Offered for What They Imply
§ 2.580 Independent Legal Significance/Verbal Acts
§ 2.581 Background Information
§ 2.590 Evidence Not Offered for Its Truth
Chapter 3 - Hearsay And The
Confrontation Clause
§ 3.100 Confrontation Clause: United States Constitution,
Amendment VI
§ 3.200 Purpose
§ 3.210 In General
§ 3.220 Opportunity for Cross-Examination at Trial
§ 3.300 Interaction With Hearsay Rule
§ 3.310 In General
§ 3.320 Protection Afforded by Each
§ 3.400 Availability of Declarant
§ 3.410 Confrontation Clause Requirements Generally
§ 3.420 Declarant Available
§ 3.430 Declarant Unavailable
§ 3.431 In General
§ 3.432 What Constitutes Unavailability
§ 3.433 Admission of Statement of Unavailable Declarant
§ 3.434 Foreign Documents
§ 3.500 Statements Not Treated as Hearsay
§ 3.510 In General
§ 3.520 Coconspirator Statements
§ 3.600 Nontestifying Codefendants’ Statements (Bruton)
§ 3.700 Prior Identification of Defendant
§ 3.800 Waiver of Loss of Confrontation Right by Misconduct
§ 3.900 Relevant Cases
§ 3.910 Right to Confrontation Generally
§ 3.920 Out-of-Court Statements Deemed Nonhearsay
§ 3.930 Hearsay Where Declarant Available (Rule 803 Exceptions)
§ 3.940 Hearsay Where Declarant Unavailable (Rule 804 Exceptions)
§ 3.950 Coconspirator Statements
§ 3.960 Proof of Unavailability of Declarant
§ 3.970 Statement of Co-Defendant (Bruton)
Chapter 4 - Prior Statements
(Inconsistent, Consistent And Identification)
§ 4.100 Prior Inconsistent Statements
§ 4.110 Rule 801(d)(1)(A): Statements Not Hearsay: Prior Inconsistent
Statement by Witness
§ 4.120 Effect
§ 4.130 Discussion
§ 4.131 Common Law and Changes Made by Rule 801(d)(1)(A)
§ 4.132 Application
§ 4.133 Requirements
§ 4.134 Trial Practice
§ 4.140 Relevant Cases
§ 4.141 Inconsistency
§ 4.142 “Other Proceeding”
§ 4.143 Subject to Cross-Examination at Trial
§ 4.144 Jury Instructions
§ 4.145 Trial Practice
§ 4.150 State Rules
§ 4.200 Prior Consistent Statement by Witness
§ 4.210 Rule (801)(d)(1)(B): Prior Consistent Statement by Witness
§ 4.220 Effect
§ 4.230 Discussion
§ 4.231 Purpose
§ 4.232 Requirements
§ 4.233 Recent Fabrication, Improper Motive or Improper Influence Is
Critical
§ 4.234 Statement Made Before Motive to Fabricate or Where Counsel Has
Opened Door
§ 4.235 Criminal Cases
§ 4.236 Prior Statement to Rehabilitate Witness or Where Counsel Has
Opened Door
§ 4.237 Trial Practice
§ 4.240 Relevant Cases
§ 4.241 Requirements for Admission
§ 4.242 Rehabilitation
§ 4.243 Scope of Admissible Statement
§ 4.250 State Rules
§ 4.300 Prior Statement of Identification
§ 4.310 Rule (801)(d)(1)(C): Prior Statement of Identification by
Witness
§ 4.320 Effect
§ 4.330 Discussion
§ 4.331 Basis
§ 4.332 Purpose
§ 4.333 Application
§ 4.334 Reliability
§ 4.335 Suggestive Procedures
§ 4.336 Photographs; Mug Shots
§ 4.337 No In-Court Identification
§ 4.338 Trial Practice
§ 4.340 Relevant Cases
§ 4.341 In General
§ 4.342 Identification by Photograph
§ 4.343 Lineup
§ 4.344 Other Procedures
§ 4.345 Failure to Identify
§ 4.350 State Rules
Chapter 5 - Admissions By Party
Opponent (Direct or through Agent)
§5.100 Rule (801)(d)(2): Statements Which Are Not Hearsay: Admissions
by Party-Opponent
§ 5.200 Effect
§ 5.300 Discussion
§ 5.310 Basis for Rule
§ 5.320 General Requirements
§ 5.321 Must Be Offered Against a Party by an Opposing Party
§ 5.322 Statement Does Not Have to be Inconsistent or Against
Party’s Interest
§ 5.323 Personal Knowledge Not Required
§ 5.324 No Proof of Trustworthiness Required
§ 5.330 Personal Statements
§ 5.331 In General
§ 5.332 Pleadings and Judicial Admissions
§ 5.333 Pleas of Guilty
§ 5.334 Statements in Representative Capacity
§ 5.340 Adoptive Admissions
§ 5.341 Party Manifests Adoption
§ 5.342 Adoption by Silence
§ 5.350 Agent Authorized to Make Statement
§ 5.351 Authority Granted
§ 5.352 Attorney
§ 5.353 Expert
§ 5.354 Accountant
§ 5.360 Statement of Agent or Employee Concerning Matter Within Scope
of Agency or Employment
§ 5.361 Requirements
§ 5.362 Establishing Foundational Facts
§ 5.363 Agent Authorized to Make Statement vs. Employee
§ 5.364 Civil Rights/Discrimination Cases
§ 5.365 Trial Practice
§ 5.370 Trial Tactics
§ 5.371 Proponent Generally
§ 5.372 Opponent Generally
§ 5.373 Adoptive Admissions
§ 5.400 Relevant Cases
§ 5.410 In General
§ 5.411 Must Be Offered by Opposing Party
§ 5.412 No Requirement Statement be Against Party’s Interest
§ 5.413 Subject of Admissions
§ 5.414 Personal Knowledge Not Required
§ 5.415 Party-Declarant Can Attack Credibility of Own Statement
§ 5.420 Personal Admissions
§ 5.421 Generally
§ 5.422 Admissions in Same Proceeding
§ 5.423 Other Proceeding
§ 5.424 Guilty Plea
§ 5.425 Judicial Admissions/Judicial Estoppel
§ 5.426 Representative Capacity
§ 5.430 Adoptive Admissions
§ 5.431 In General
§ 5.432 Words or Conduct
§ 5.433 Possession of Documents
§ 5.434 Silence
§ 5.440 Statements by Agent
§ 5.441 Proof of Agency
§ 5.442 Statements by Attorney
§ 5.443 Employee as Agent
§ 5.450 Vicarious Admissions of Employee
§ 5.451 Foundation Required
§ 5.452 Personal Knowledge
§ 5.453 Employment Relationship Found
§ 5.454 Post-Employment Statement
§ 5.460 Civil Rights/Discrimination Cases
§ 5.461 Employment Cases
§ 5.462 Other
§ 5.500 State Rules
Chapter 6 - Statements of
Coconspirators [Rule 801(d)(2)(E)]
§ 6.100 Rule (801)(d)(2)(E): Statements Which Are Not Hearsay:
Statements of Coconspirators
§ 6.200 Effect
§ 6.300 Discussion
§ 6.310 Basis
§ 6.320 Operation in Civil and Criminal Cases
§ 6.330 Foundation
§ 6.331 Requirements
§ 6.332 Standard of Proof: Preponderance of Evidence
§ 6.333 Existence of Conspiracy
§ 6.334 Proof of Defendant’s Participation
§ 6.335 Statement During Existence of Conspiracy
§ 6.336 Withdrawal of Declarant or Defendant
§ 6.337 Statement in Furtherance of Conspiracy
§ 6.340 Conditional Admission
§ 6.341 Procedure Generally
§ 6.342 Dangers
§ 6.350 Trial Tactics
§ 6.351 Urge Court to Exclude Statements Without Adequate Prior Showing
§ 6.352 Be Cautious About Limiting Instructions
§ 6.400 Relevant Cases
§ 6.410 Foundation
§ 6.411 Requirements
§ 6.412 Existence of Conspiracy
§ 6.413 Participation
§ 6.414 Statements in Furtherance of Conspiracy
§ 6.420 Procedure
§ 6.421 Preliminary Determination of Fact
§ 6.422 Conditional Admission
§ 6.423 Preponderance of the Evidence to Establish Admissibility
§ 6.424 Use of Statement to Show Foundation
§ 6.430 Conspiracy Not Charged
§ 6.440 Declarant’s Identity Unknown
§ 6.450 When Statement Made
§ 6.451 During Existence of Conspiracy
§ 6.452 Before Entering Conspiracy
§ 6.453 By Coconspirator After Arrest
§ 6.460 Withdrawal from Conspiracy
§ 6.470 Admission in Civil Cases
§ 6.480 Specific Cases
§ 6.500 State Rules
Chapter 7 - Hearsay Exceptions:
Availability of Declarant Immaterial
§ 7.100 Rule 803: Hearsay Exceptions; Availability of
Declarant Immaterial
§ 7.200 Hearsay Exceptions Generally
§ 7.210 Governing Rules
§ 7.220 Purpose of Allowing Exceptions
§ 7.230 Trustworthiness
§ 7.231 Judge Does Not Determine
§ 7.232 Exceptions
§ 7.240 Trial Practice
Chapter 8 - Present Sense
Impressions and Excited Utterances [Rules 803(1), (2)]
§ 8.100 Present Sense Impression
§ 8.110 Rule 803(1): Present Sense Impression
§ 8.120 Effect
§ 8.130 Basis
§ 8.140 Discussion
§ 8.141 Necessary Factual Foundation
§ 8.142 Startling or Momentous Nature of Event
§ 8.143 Comparison With Excited Utterance
§ 8.144 Statement Immediately After Perception
§ 8.145 Statement Must Describe or Explain Event or Condition
§ 8.146 Corroboration
§ 8.147 Res Gestae
§ 8.148 Trial Practice
§ 8.150 Relevant Cases
§ 8.151 Statement Contemporaneous With Event
§ 8.152 Statement After Event
§ 8.153 Examples
§ 8.160 State Rules
§ 8.200 Excited Utterances
§ 8.210 Rule 803(2): Excited Utterance
§ 8.220 Effect
§ 8.230 Basis
§ 8.240 Discussion
§ 8.241 Foundation
§ 8.242 Comparison With Present Sense Impression
§ 8.243 Startling Events
§ 8.244 Declarant’s Participation in Event
§ 8.245 Identification of Declarant
§ 8.246 Declarant Under Influence of Event
§ 8.247 Lapse of Time
§ 8.248 Factors for Admissibility Determination
§ 8.249 Trial Practice
§ 8.250 Relevant Cases
§ 8.251 Startling Event
§ 8.252 Time Lapse
§ 8.253 Declarant’s Perception of Event
§ 8.254 Responses to Questions
§ 8.255 No Independent Proof of Startling Event Required
§ 8.260 State Rules
Chapter 9 - Statments of Present
Intention, State of Mind, Medical Condition, or for Medical Treatment [Rules 803(3), (4)]
§ 9.100 State of Mind
§ 9.110 Rule 803(3): Then Existing Mental, Emotional, or Physical
Condition
§ 9.120 Effect
§ 9.130 Basis
§ 9.140 Discussion
§ 9.141 Relevance
§ 9.142 Evidence of Another’s Intention: Hillmon Doctrine
§ 9.143 Timing of Statement
§ 9.144 Statement of Reason For State of Mind Not Admissible
§ 9.145 Surveys
§ 9.146 Trial Practice
§ 9.150 Relevant Cases
§ 9.151 Foundation
§ 9.152 Hillmon Doctrine: Intention of Third Party
§ 9.153 State of Mind Must Be At Issue
§ 9.154 Past State of Mind or Intent
§ 9.155 Cannot State Reason for State of Mind
§ 9.156 Passage of Time
§ 9.157 Statements Admitted
§ 9.158 Statements Not Admitted
§ 9.160 State Rules
§ 9.200 Statement for Medical Treatment
§ 9.210 Rule 803(4): Statements for Medical Treatment
§ 9.220 Effect
§ 9.230 Basis
§ 9.240 Discussion
§ 9.241 Diagnosis or Treatment
§ 9.242 Declarant’s Understanding
§ 9.243 Who May Make Statement
§ 9.244 “Reasonably Pertinent to Diagnosis or Treatment”
§ 9.245 Trial Practice
§ 9.246 Exception Does Not Extend to Statements by Medical Personnel
§ 9.250 Relevant Cases
§ 9.251 Foundation
§ 9.252 Declarant’s Motive
§ 9.253 Cause of Injury
§ 9.254 Identification of Assailant in Abuse Cases
§ 9.255 Cases Involving Young Children
§ 9.256 Medical Professional’s Statement to Declarant
§ 9.257 Psychiatric or Psychological Treatment
§ 9.258 Doctor Retained Solely for Diagnosis
§ 9.260 State Rules
Chapter 10 - Recorded Recollection
[Rule 803(5)]
§ 10.100 Rule 803(5): Recorded Recollection
§ 10.200 Effect
§ 10.300 Basis
§ 10.400 Discussion
§ 10.410 Inability to Remember
§ 10.420 Establishing Admissibility
§ 10.430 Given or Adopted by Witness
§ 10.440 Proving Witness’s Knowledge
§ 10.450 Accurate Record
§ 10.460 Document May Only Be Offered by Adverse Party
§ 10.470 Trial Practice
§ 10.500 Relevant Cases
§ 10.510 Personal Knowledge
§ 10.520 Adoption of Statement
§ 10.530 Passage of Time
§ 10.540 Refreshing Recollection
§ 10.550 Examples of Recorded Recollection Documents
§ 10.560 Offer as Exhibit
§ 10.570 Confrontation Rights
§ 10.600 State Rules
Chapter 11 - Business Records [Rule
803(6), (7)]
§ 11.100 Admissibility of Business Records Generally
§ 11.110 Rule 803(6): Business Records
§ 11.120 Effect
§ 11.130 Basis
§ 11.140 Discussion
§ 11.141 Made and Kept in Ordinary Course of Business
§ 11.142 Information Provided By or From Person with Knowledge
§ 11.142(a) Other Person or Entity Creating Record
§ 11.142(b) Information Received from Strangers
§ 11.143 At or Near Time of Event
§ 11.144 Form and Content of Records
§ 11.145 Custodian or Other Qualified Witness
§ 11.146 Documents Prepared in Anticipation of Litigation
§ 11.147 Law Enforcement Reports
§ 11.148 Trial Practice
§ 11.150 Relevant Cases
§ 11.151 General Statements of Rule
§ 11.152 Regular Course of Business
§ 11.153 Anticipation of Litigation
§ 11.154 Law Enforcement Reports
§ 11.155 Computer Data
§ 11.156 Medical Records
§ 11.157 Documents or Information From Third Parties Incorporated into
Records
§ 11.158 Contemporaneous Record
§ 11.159 Custodian or Qualified Witness
§ 11.160 State Rules
§ 11.200 Absence of Entry in Records
§ 11.210 Rule 803(7): Absence of Entry in Business Records
§ 11.220 Effect
§ 11.230 Basis
§ 11.240 Discussion
§ 11.241 Requirements
§ 11.242 Trial Practice
§ 11.250 Relevant Cases
§ 11.260 State Rules
Chapter 12 - Public Records [Rules
803(8)–(10)]
§ 12.100 Admissibility of Public Records
§ 12.110 Rule 803(8): Public Records and Reports
§ 12.120 Effect
§ 12.130 Basis
§ 12.140 Discussion
§ 12.141 Foundation Requirement
§ 12.142 Section (A): Activities of Office or Agency
§ 12.143 Section (B): Matters Observed
§ 12.144 Section (C): Findings and Conclusions of Investigation
§ 12.145 Official Making Entry Need Not Appear
§ 12.146 Criminal Cases
§ 12.147 “Law Enforcement Personnel”
§ 12.148 Preclusion of Report by Law or Statute
§ 12.149 Trial Practice
§ 12.150 Relevant Cases
§ 12.151 Trustworthiness Generally
§ 12.152 Section (A): Agency’s Own Activities
§ 12.153 Section (B): Agency’s Files
§ 12.154 Section (C): Findings and Opinions from Investigations
§ 12.155 Trustworthiness under Rule 803(8)(C)
§ 12.156 Hearsay Statements in Reports
§ 12.157 Police Reports
§ 12.158 Administrative Findings Regarding Discrimination Claims
§ 12.159 Report Precluded by Law
§ 12.160 State Rules
§ 12.200 Vital Statistics
§ 12.210 Rule 803(9): Records of Vital Statistics
§ 12.220 Effect
§ 12.230 Basis
§ 12.240 Discussion
§ 12.241 Matters Beyond Fact of Birth, Marriage or Death
§ 12.242 Trial Practice
§ 12.250 Relevant Cases
§ 12.260 State Rules
§ 12.300 Absence of Public Record or Entry
§ 12.310 Rule 803(10): Absence of Public Record or Entry
§ 12.320 Effect
§ 12.330 Basis
§ 12.340 Discussion
§ 12.341 Proof of Absence
§ 12.342 Using Certifications
§ 12.343 Diligent Search
§ 12.344 Trial Practice
§ 12.350 Relevant Cases
§ 12.360 State Rules
Chapter 13 - Family Information in
Certificates, Church Records and Family Documents [Rules 803(11)–(13)]
§ 13.100 Records of Religious Organizations
§ 13.110 Rule 803(11): Records of Religious Organizations
§ 13.120 Effect
§ 13.130 Basis
§ 13.140 Discussion
§ 13.141 “Regularly Kept Record”
§ 13.142 Other Hearsay Exceptions
§ 13.143 Trial Practice
§ 13.150 Relevant Cases
§ 13.160 State Rules
§ 13.200 Marriage, Baptismal and Similar Certificates
§ 13.210 Rule 803(12): Marriage, Baptismal and Similar Certificates
§ 13.220 Effect
§ 13.230 Discussion
§ 13.231 Information Covered
§ 13.232 Authentication
§ 13.233 Other Rules
§ 13.234 Trial Practice
§ 13.240 Relevant Cases
§ 13.250 State Rules
§ 13.300 Family Records
§ 13.310 Rule 803(13): Family Records
§ 13.320 Effect
§ 13.330 Basis
§ 13.340 Discussion
§ 13.341 Requirements
§ 13.342 Scope
§ 13.343 Trial Practice
§ 13.350 Relevant Cases
§ 13.360 State Rules
Chapter 14 - Property Records [Rules
803(14), (15)]
§ 14.100 Documents Affecting Interest in Property
§ 14.110 Rule 803(14): Records of Documents Affecting Interest in
Property
§ 14.120 Effect
§ 14.130 Basis
§ 14.140 Discussion
§ 14.141 Personal Knowledge
§ 14.142 Controlling Law
§ 14.143 Trial Practice
§ 14.150 Relevant Cases
§ 14.160 State Rules
§ 14.200 Statements in Documents Affecting Interest in Property
§ 14.210 Rule 803(15): Statements in Documents Affecting Interest in
Property
§ 14.220 Effect
§ 14.230 Basis
§ 14.240 Discussion
§ 14.241 Scope
§ 14.242 Trial Practice
§ 14.250 Relevant Cases
§ 14.260 State Rules
Chapter 15 - Ancient Documents,
Market Reports, Treatises [Rules 803(16)–(18)]
§ 15.100 Ancient Documents
§ 15.110 Rule 803(16): Statements in Ancient Documents
§ 15.120 Effect
§ 15.130 Basis
§ 15.140 Discussion
§ 15.141 Requirements Generally
§ 15.142 Authenticity
§ 15.143 Admissibility of Document versus Content
§ 15.144 Trial Practice
§ 15.150 Relevant Cases
§ 15.151 Admission Generally
§ 15.152 Authenticity
§ 15.160 State Rules
§ 15.200 Market Reports and Commercial Publications
§ 15.210 Rule 803(17): Market Reports, Commercial Publications
§ 15.220 Effect
§ 15.230 Basis
§ 15.240 Discussion
§ 15.241 Documents Included
§ 15.242 Requirements
§ 15.243 Trial Practice
§ 15.250 Relevant Cases
§ 15.251 Admissibility Generally
§ 15.252 Specific Documents
§ 15.260 State Rules
§ 15.300 Learned Treatises
§ 15.310 Rule 803(18): Learned Treatises
§ 15.320 Effect
§ 15.330 Basis
§ 15.340 Discussion
§ 15.341 Foundation Required
§ 15.342 Treatise May Not Go To Jury
§ 15.343 Trial Practice
§ 15.350 Relevant Cases
§ 15.351 Foundation Required
§ 15.352 Examples
§ 15.353 Use
§ 15.360 State Rules
Chapter 16 - Reputation Concerning
Family, Boundaries and Character [Rules 803(19)–(21)]
§ 16.100 Personal or Family History
§ 16.110 Rule 803(19): Reputation Concerning Personal or Family History
§ 16.120 Effect
§ 16.130 Basis
§ 16.140 Discussion
§ 16.141 Use
§ 16.142 Relevant Community for Reputation
§ 16.143 Who May Testify
§ 16.144 When Reputation Arose
§ 16.145 Declarant’s Interest
§ 16.146 Related Rules
§ 16.147 Trial Practice
§ 16.150 Relevant Cases
§ 16.151 Name
§ 16.152 Ancestry, Lineage
§ 16.153 Age
§ 16.154 Place of Birth
§ 16.160 State Rules
§ 16.200 Boundaries or General History
§ 16.210 Rule 803(20): Reputation Concerning Boundaries or General
History
§ 16.220 Effect
§ 16.230 Basis
§ 16.240 Discussion
§ 16.241 Requirements
§ 16.242 Trial Practice
§ 16.250 Relevant Cases
§ 16.260 State Rules
§ 16.300 Character
§ 16.310 Rule 803(21): Reputation as to Character
§ 16.320 Effect
§ 16.330 Basis
§ 16.340 Discussion
§ 16.341 Admissibility Generally
§ 16.342 Rule 404
§ 16.343 Rule 608
§ 16.344 Proof of Reputation
§ 16.345 Trial Practice
§ 16.350 Relevant Cases
§ 16.351 Admissibility Generally
§ 16.352 Proof of Reputation
§ 16.353 Cross-Examination Concerning Specific Events
§ 16.360 State Rules
Chapter 17 - Criminal and Civil
Judgments [Rules 803(22), (23)]
§ 17.100 Previous Conviction
§ 17.110 Rule 803(22): Judgment of Previous Conviction
§ 17.120 Effect
§ 17.130 Basis
§ 17.140 Discussion
§ 17.141 Fact to be Proved Must Have Been Essential to Conviction
§ 17.142 Prior Acquittals
§ 17.143 Misdemeanor Convictions
§ 17.144 Trial Practice
§ 17.150 Relevant Cases
§ 17.151 Admission of Felony Conviction
§ 17.152 Exclusion of Convictions of Others in Criminal Prosecutions
§ 17.153 Acquittals
§ 17.154 Misdemeanor Convictions
§ 17.155 Foreign Convictions
§ 17.156 Not Offered as Hearsay
§ 17.157 Facts Other Than Proven
§ 17.160 State Rules
§ 17.200 Personal, Family or General History, or Boundaries
§ 17.210 Rule 803(23): Judgment as to Personal, Family or General
History, or Boundaries
§ 17.220 Effect
§ 17.230 Basis
§ 17.240 Discussion
§ 17.241 Requirements
§ 17.242 Use in Criminal Cases
§ 17.243 Trial Practice
§ 17.250 Relevant Cases
§ 17.260 State Rules
Chapter 18 [Reserved]
Previously, this chapter dealt with the
former Rule 803(24), which has been consolidated with former Rule 804(b)(5) and
redesignated as Rule 807 [see Chapter 27].
Chapter 19 - Declarant
Unavailable—Definition [Rule 804(a)]
§ 19.100 Rule 804(a): Definition of Unavailability
§ 19.200 Effect
§ 19.300 Basis
§ 19.400 Discussion
§ 19.410 Requirements
§ 19.411 Finding
§ 19.412 Proof Declarant Unavailable
§ 19.420 Grounds
§ 19.421 Privilege [Rule 804(a)(1)]
§ 19.422 Refusal to Testify [Rule 804(a)(2)]
§ 19.423 Lack of Memory [Rule 804(a)(3)]
§ 19.424 Death, Illness or Infirmity [Rule 804(a)(4)]
§ 19.425 Unable to Secure Attendance [Rule 804(a)(5)]
§ 19.430 Trial Practice
§ 19.500 Relevant Cases
§ 19.510 Privilege
§ 19.511 Fifth Amendment Privilege Against Self-Incrimination
§ 19.512 Marital Privilege
§ 19.520 Refusal to Testify
§ 19.530 Lack of Memory
§ 19.540 Death; Physical or Mental Condition
§ 19.550 Unable to Procure Attendance
§ 19.551 Sufficient Effort
§ 19.552 Insufficient Effort
§ 19.553 Other Reasonable Means
§ 19.560 Miscellaneous
Chapter 20 - Former Testimony [Rule
804(b)(1)]
§ 20.100 Rule 804(b)(1): Former Testimony
§ 20.200 Effect
§ 20.300 Basis
§ 20.400 Discussion
§ 20.410 Opportunity and Motive to Examine
§ 20.411 Meaningful Opportunity
§ 20.412 Similar Motive
§ 20.420 Predecessor in Interest
§ 20.421 Definition
§ 20.422 Civil Case Following Criminal Prosecution
§ 20.423 Criminal Prosecution Following Civil Action
§ 20.430 Depositions
§ 20.431 In General
§ 20.432 FRCP 32: Use of Deposition Taken in Pending Civil Case
§ 20.433 Depositions Taken in Pending Criminal Case
§ 20.440 Experts
§ 20.450 Trial Practice
§ 20.500 Relevant Cases
§ 20.510 Unavailability Necessary
§ 20.520 Opportunity and Motive to Examine on Prior Occasion
§ 20.521 Criminal Cases
§ 20.522 Civil Cases
§ 20.530 Predecessor in Interest
§ 20.540 Depositions
§ 20.541 In General
§ 20.542 Federal Rule of Civil Procedure 32(a)(3)
§ 20.550 Miscellaneous
§ 20.551 Criminal Defendant’s Participation in Prior Proceeding
§ 20.552 Role of Witness’s Testimony in Prior Criminal Case
§ 20.553 Application of Other Rules of Evidence
§ 20.600 State Rules
Chapter 21 - Dying Declarations
[Rule 804(b)(2)]
§ 21.100 Rule 804(b)(2): Dying Declarations
§ 21.200 Effect
§ 21.300 Basis
§ 21.400 Discussion
§ 21.410 Substantive Requirements
§ 21.420 Procedural Requirements
§ 21.430 Trial Practice
§ 21.500 Relevant Cases
§ 21.510 Key Cases
§ 21.520 Expectation of Impending Death
§ 21.530 Statement Must Be About Cause Of Condition
§ 21.540 Opinions
§ 21.550 Corroboration and Confrontation in Criminal Cases
§ 21.600 State Rules
Chapter 22 - Statement Against
Interest [Rule 804(b)(3)]
§ 22.100 Rule 804(b)(3): Statement Against Interest
§ 22.200 Effect
§ 22.300 Basis
§ 22.400 Discussion
§ 22.410 Requirements
§ 22.411 In General
§ 22.412 Against Interest When Made
1. Williamson: Admission Limited to What is Self-inculpatory
2. Williamson Should Apply in Civil Cases
§ 22.413 Declarant Must Have Been Aware of Significance of Statement
§ 22.414 Corroboration of Statement Should Not Be Required
§ 22.415 Proof of Declarant’s Personal Knowledge of Facts in
Statement
§ 22.417 Questions for Evaluating Statements
§ 22.418 Admission of Party Opponent Distinguished
§ 22.500 Special Applications in Criminal Cases
§ 22.510 In General
§ 22.520 Admission of Statement Against Penal Interest to Exculpate
Defendant
§ 22.521 Corroborating Circumstances
§ 22.530 Admission of Pleas of Guilty and Plea Allocutions of Others
§ 22.540 Confrontation Clause
§ 22.600 Declarations Against Social Interest
Chapter 23 - Statement of Personal
or Family History [Rule 804(b)(4)]
§ 23.100 Rule 804(b)(4): Statement of Personal or Family
History
§ 23.200 Effect
§ 23.300 Basis
§ 23.400 Discussion
§ 23.410 In General
§ 23.420 Trial Practice
§ 23.500 Relevant Cases
§ 23.510 Federal Cases
§ 23.511 Ancestry; Family Relationship
§ 23.512 Naturalization; Place of Birth
§ 23.520 State Cases
§ 23.600 State Rules
Chapter 24 - Forfeiture of Hearsay
Objection by Wrongdoing [Rule 804(b)(6)]
§24.100 Rule 804(b)(6): Forfeiture by Wrongdoing
§24.200 Effect
§24.300 Basis
§24.400 Discussion
§24.410 Burden of Proof
§24.420 What is Admitted?
§24.430 Imputation of Conduct of Coconspirators
§24.440 Procedure
Chapter 25 - Hearsay Within Hearsay
[Rule 805]
§ 25.100 Rule 805: Hearsay Within Hearsay
§ 25.200 Effect
§ 25.300 Basis
§ 25.400 Discussion
§ 25.410 Analyze Statement in Parts
§ 25.420 Trial Practice
§ 25.500 Relevant Cases
§ 25.510 Nonhearsay
§ 25.520 Within Hearsay Exceptions
§ 25.530 Not Within Hearsay Exceptions
Chapter 26 - Attacking and
Supporting Credibility of Declarant
§ 26.100 Rule 806: Attacking and Supporting Credibility of
Declarant
§ 26.200 Effect
§ 26.300 Basis
§ 26.400 Discussion
§ 26.410 What Attacking Party May Offer
§ 26.410(a) Specific Instances of Conduct
§ 26.410(b) Inconsistent Statements
§ 26.420 Cross-Examination
§ 26.430 Trial Practice
§ 26.500 Relevant Cases
§ 26.510 Attack on Credibility
§ 26.520 Support for Credibility
§ 26.530 Miscellaneous
Chapter 27 - Residual Provision
[Rule 807]
§27.100 Rule 807: The Residual Provision
§27.200 Effect
§27.300 Basis
§27.310 Prior History
§27.400 Discussion
§27.410 “Statement” Defined
§27.420 The Five Conditions
§27.421 Trustworthiness
§27.422 Materiality
§27.423 Probative Value
§27.424 Interest of Justice
§27.425 Notice
§27.426 Surveys
§27.427 Other Examples
§27.500 Independent Corroborative Evidence
§27.600 Criminal Cases
§27.610 Trustworthiness Generally
§27.620 Grand Jury Testimony
§27.630 Prior Testimony from Trials or Hearings
§27.640 Statements to Law Enforcement Officers
§27.650 Child Abuse Cases
§27.660 Miscellaneous Applications in Criminal Cases
§27.700 Trial Practice
§27.800 Relevant Cases
§27.810 In General
§27.811 Rarity of Application
§27.812 Statements that “Just Miss” Admissibility Under
Specific Exceptions
§27.820 The Elements
§27.821 Trustworthiness
§27.822 Probative Value/Reasonable Alternative
§27.823 Notice
§27.824 Compared to Existing Hearsay Exceptions
§27.825 Factors to Consider
§27.826 News Reports
§27.830 Criminal Cases
§27.831 Prior Testimony
§27.832 Statements
§27.833 Grand Jury Testimony
§27.834 Child Abuse Cases
§27.840 Civil Cases
§27.841 Statements
§27.842 Prior Testimony
§27.900 State Rules
Chapter 28 - Lay Opinions and Expert
Testimony [Rules 701-703]
§28.100 Lay Opinions
§28.110 Rule 701: Opinion Testimony by Lay Witnesses
§28.120 Effect
§28.130 Discussion
§28.131 Basis
§28.132 Requirements
§28.133 Personal Perception
§28.134 Lay or Expert Witness?
§28.135 Trial Tactics
§28.140 Relevant Cases
§28.141 Personal Perception
§28.142 Specialized Knowledge
§28.143 Helpful to Jury
§28.144 Lay Opinion Admitted
§28.145 Expert Opinion Not Admissible Under Rule 701
§28.200 Expert Testimony
§28.210 Rule 702: Testimony by Experts
§28.220 Effect
§28.230 Discussion
§28.231 Basis
§28.232 Requirements: Reliability and Relevance (Daubert)
§28.232.1 The Daubert Decision
§28.232.2 Daubert Applies to All Expert
Testimony (Kumho Tire)
§28.232.3 Burden of Proof
§28.232.4 Qualified Expert
§28.232.5 Daubert Procedures
§28.232.6 Motions in Limine, Summary Judgment
and Trials
§28.232.7 Standard of Review (Joiner)
§28.233 Daubert Prompted Reconsideration of Certain Exclusions of
Expert Evidence
§28.234 Law Enforcement Testimony Interpreting Statements or
Conduct
§28.235 Expert Testimony Concerning Law
§28.236 Owner’s Valuation Testimony
§28.237 Proposed Amendment of Rule 702
§28.238 Trial Tactics
§28.240 Relevant Cases
§28.241 Helpfulness to Jury
§28.242 Qualified Experts
§28.243 Interpretive Law Enforcement Testimony
§28.244 Testimony Concerning the Law
§28.245 Applicability of Daubert
§28.246 Reliability
§28.247 Case Examples
§28.247.1 Expert Scientific Testimony Admitted
§28.247.2 Expert Scientific Testimony Excluded
§28.247.3 Expert Nonscientific Testimony Admissible
§28.247.4 Expert Nonscientific Evidence Excluded
§28.248 Rule 403 Analysis: May be Excluded Even if Daubert Requirements
Met
§28.249 Burden of Proof
§28.300 Bases of Expert Testimony
§28.310 Rule 703: Bases of Opinion Testimony by Experts
§28.320 Effect
§28.330 Discussion
§28.331 Purpose
§28.332 Only Limited Use of Otherwise Inadmissible Evidence
§28.333 Experts Must Reasonably Rely on Such Otherwise
Inadmissible Evidence
§28.334 Trial Practice
§28.340 Relevant Cases
§28.341 General Statements of Rule
§28.342 Rule Does Not Make Underlying Data Admissible
§28.343 Information Reasonably Relied Upon
§28.344 Information Not Reasonably Relied Upon
Federal Rules of Evidence
Table of Cases
Index |
