AN OVERVIEW OF EVIDENCE

INTRODUCTION

Evidence is the material offered to persuade the trier of fact (judge or jury) in a case about fact questions,
and rules of evidence govern what material is admissible (allowable). Evidence includes testimony,
writings, physical objects, and other proof presented in court proceedings. The rules of evidence
determine whether each item of evidence is admitted or excluded.

Which Law Applies?

On the MBE, the Federal Rules of Evidence apply. The Federal Rules are the rules used in federal courts,
as opposed to state courts. Most states have adopted codes that use the Federal Rules as a model.

General Considerations

When evidence is tested on the bar exam, you are usually asked to analyze whether a particular item of
evidence is admissible. To make this determination, there are two main considerations. First, is the
evidence relevant? If not, it is inadmissible. Second, if the evidence is relevant, is there some other rule
(privilege, hearsay, etc.) that will keep the evidence out? When making these determinations, it helps to
consider the following general questions:

• Which party is offering the evidence?

This can sometimes affect the outcome. Sometimes, statements are admissible if offered by one
party but inadmissible when offered by the other party.

• For what purpose is the evidence being offered?

Is the evidence being offered to prove some fact related to the case? Or is it simply being offered
to discredit the witness (impeachment)? Evidence is sometimes admissible for one purpose, but
inadmissible for another purpose. In this situation, the court may instruct the jury to consider the
evidence on a limited basis.

• What type of case is it?

Some rules (e.g., character evidence) apply differently depending on whether the evidence is
being offered in a criminal case or in a civil case.

RELEVANCE AND RELATED ISSUES

As stated above, all evidence must be relevant to be admitted. If the evidence is not relevant, it is not
admissible.

General Definition of Relevance

To be relevant, the item of evidence must concern a fact that is “of consequence in determining the
action.” Basically, this means that the fact must be material (important to the case). Furthermore, the
2 EVIDENCE OVERVIEW

evidence must make the material fact more likely to be true or less likely to be true. This is a fairly easy
standard to meet.

Similar Occurrences
Evidence usually must relate to the time, event, or person involved in the present case. Generally, a
previous similar occurrence proves little or nothing about the occurrence at issue.

• In a lawsuit involving a car accident, Plaintiff alleges that Defendant ran the red light and caused
the accident. Defendant calls Witness to testify that Defendant had a green light at the time of the
accident. Witness’s testimony is relevant because it makes it less likely that Defendant ran the red
light.

However, evidence that Defendant has run a red light before has nothing to do with whether
Defendant ran this particular red light on the occasion in question. Such evidence is irrelevant and
is not admissible.

• Defendant, who is on trial for murdering Victim, wrote an e-mail to his friend the night before
Victim’s death. In the e-mail, Defendant said that he hated Victim and wanted her to die.
Defendant’s e-mail is relevant because it makes it more likely that he did indeed kill Victim.

However, if Defendant made the statement 20 years before Victim’s death, it is less likely to be
admitted because it is so far removed from the event at issue.

In certain situations, however, other similar occurrences are relevant. A few examples are listed below.

• Where similar accidents or injuries were caused by the same event or condition, evidence of those
prior accidents or injuries is admissible to prove that a dangerous condition existed, that the
defendant knew about the condition, and that the condition caused the present injury.

For example, if Plaintiff sustains injuries after tripping on a broken stair at the bottom of
Defendant’s staircase, and five other people had previously been injured after tripping on the
same broken stair, Plaintiff may introduce evidence of the prior accidents to prove Defendant
knew about the hazard.
• Evidence that a party filed similar tort claims before or was involved in other accidents is
generally not admissible to show that the present claim is invalid. But if the party has filed
previous similar false claims, evidence of that is usually relevant to prove that the present claim is
likely to be false.

• Evidence of a person’s habit may be admitted to prove that on a particular occasion the person
acted in accordance with the habit. “Habit” refers to a person’s regular response to a specific set
of circumstances.

For example, evidence that a defendant always failed to stop at a particular stop sign could be
introduced as evidence that she failed to stop at the same stop sign on the occasion in question.
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Court’s Discretion to Exclude Relevant Evidence

Even if evidence is relevant, the court may decide to exclude it. The court balances the usefulness of the
evidence against possible negative consequences from admitting it. You will often hear the test stated as
whether the item’s probative value (usefulness) is substantially outweighed by the danger of one of the
following: unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
needless presentation of cumulative (repetitive) evidence. For example, a gruesome photo of a murder
victim’s body might be relevant, but the photo might inflame the jurors’ emotions and affect their ability
to remain objective. In this situation, the judge would weigh the importance of the evidence against the
risk of prejudice to the defendant and then make a decision.

Public Policy Exclusions

The Federal Rules specifically prohibit certain items of evidence for public policy reasons. In other
words, relevant evidence may be excluded because the law encourages the behavior involved.

Liability Insurance
People should not be discouraged from maintaining liability insurance. Therefore, evidence that a party
was or was not insured against liability is not admissible to show that the party was at fault, or that the
party is able to pay a substantial judgment.

Subsequent Remedial Measures

People should not be discouraged from making repairs or taking precautionary measures following an
accident or other injury. Therefore, such measures are not admissible to prove fault, a defect in a product,
or a need for a warning about the product. For example, if a plaintiff was injured after falling on ice on
the defendant’s property, evidence that the defendant put up a “CAUTION” sign after the plaintiff’s
injury cannot be introduced into evidence to show that the property was dangerous.

Settlement Offers and Discussions

We prefer that disputes are settled without going to court. Thus, settlement offers and other statements
made during settlement negotiations—including admissions of fault—are not admissible to prove or
disprove the validity or amount of a disputed claim. The purpose of this rule is to encourage parties to
speak candidly during settlement negotiations without fear that their statements will be used against them
at trial.

Offers to Pay Medical Expenses

We also want to encourage humanitarian actions. Therefore, evidence that a party paid—or offered to
pay—for an injured party’s medical expenses is not admissible to prove that the paying party is at fault in
causing the injury. However, there is a major difference between this rule and the rule for settlement
negotiations (directly above). Only the offer to pay the medical expenses and/or the payment are excluded
from evidence; any admissions of fact accompanying the offer or payment are admissible.

Withdrawn Guilty Pleas

If a criminal defendant pleads guilty to a charge and later withdraws the plea, evidence of the plea may
not be introduced at trial. The same is true for offers to plead guilty. Such withdrawn pleas and offers are
considered too prejudicial—the jury might think that only a guilty person would consider pleading guilty.
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Character Evidence

Character evidence refers to evidence relating to a general human trait, such as honesty, carefulness, or
violence.

Purposes
Evidence of a person’s character is used for a few different purposes.

To Show How a Person Probably Acted

Character evidence is often introduced to show a person’s propensity (tendency) to act a certain way. The
character trait is offered as evidence of how a defendant or victim probably acted during the events of the
case. For example, a defendant charged with murder may introduce evidence that he is a peaceful person
in order to convince the jury that he would not have committed the murder. This is the type of character
evidence discussed in this section.

Impeachment
Evidence of character may also be introduced to impeach a witness—that is, to show that the witness is a
dishonest person and cannot be trusted. Impeachment is a separate topic and will be covered in a later
section.

Character Directly at Issue in Civil Case (Rare)

Although you might assume that a person’s character is always “at issue” when the person is accused of
doing something wrong, this is simply not true. It is actually a very rare situation, mostly limited to
defamation (saying or writing something untrue about someone) or negligent hiring lawsuits. Suppose
Defendant publishes a newspaper article that accuses Plaintiff of being a dishonest person, and Plaintiff
sues Defendant for libel (written defamation). Whether Plaintiff is dishonest is directly at issue because if
Defendant’s statements in the article are true, Plaintiff will lose the case. Defendant may call a character
witness to testify that Plaintiff has a reputation for dishonesty.

Means of Proving Character

Reputation or Opinion Testimony

Character evidence is usually presented by calling witnesses to provide (i) reputation testimony (e.g.,
“Defendant has a reputation for being a peaceful person”) or (ii) opinion testimony (e.g., “In my opinion,
Defendant is a peaceful person”).

Evidence of Specific Acts

Although often admitted for other purposes, evidence of a person’s specific acts usually is not admissible
to prove that person likely acted a certain way in this case.

Criminal Cases—Propensity Evidence

For the most part, character evidence questions on the bar exam arise in the context of criminal cases, and
specific rules govern its admissibility there. In a criminal case, we are concerned with the use of character
evidence to show how a criminal defendant or victim probably acted during the events at issue in the case.
(Again, impeachment of witnesses is a separate topic and will be discussed in a later section.)
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Defendant’s Character
The most important thing to remember is that the defendant—not the prosecution—is the party who may
initiate the use of character evidence. The defendant is allowed to call character witnesses to provide
reputation testimony or opinion testimony as to his good character for a particular trait. The trait must be
relevant to the charged crime (for example, the defendant’s good character for honesty would be relevant
in a perjury (lying under oath) case, but not in a murder case). If the defendant does not “open the door”
to character evidence, the prosecution is prohibited from introducing evidence of the defendant’s bad
character.

Why does the defendant decide whether character evidence will be used at trial? The reason is that if the
prosecution were permitted to show that the defendant is a bad person, the jury might decide to convict
him regardless of whether he committed the charged crime. On the other hand, since the defendant’s
liberty is at stake, he should be given the chance to prove his innocence.

Prosecution rebuttal: Once the defendant has “opened the door” to evidence of his character, the
prosecution may rebut (challenge the evidence) in two different ways. First, the prosecution may “test”
the knowledge of the defendant’s character witness on cross-examination. The cross-examination may
include questions about certain specific acts of misconduct by the defendant. Suppose the defendant’s
character witness has testified that “Defendant has a good reputation for peacefulness,” the prosecutor
may ask the character witness, “Have you heard that Defendant was involved in several violent fights this
year?” Second, the prosecution may rebut the defendant’s character evidence by introducing its own
character witnesses to testify about the defendant’s bad character.

Victim’s Character
Sometimes, the character of the alleged victim is relevant to the defendant’s guilt or innocence. This is
often true when a defendant is charged with a violent crime and claims that he acted in self-defense. If the
victim is shown to have had a violent character, it would make it more likely that the victim—rather than
the defendant—was the first aggressor during the event at issue. Again, the defendant—not the
prosecution—is the party who may “open the door” to evidence of the victim’s character. This works in
the same way as above: the defendant calls witnesses to provide reputation or opinion testimony about the
victim’s bad character for a relevant trait (usually, the victim’s character for violence). It should be noted
that in sexual assault cases, there are special rules limiting the use of character evidence about the victim.

Prosecution rebuttal: Once the defendant has introduced evidence of the victim’s bad character for a
certain trait, the prosecution may rebut by calling witnesses to testify about the victim’s good character
for the same trait or by calling witnesses to testify about the defendant’s bad character for the same trait.
This is true even if the defendant has not introduced evidence of his own good character—he still “opened
the door” to character evidence by bringing up evidence about the victim’s character.

Evidence of Specific Acts of Misconduct Generally Not Admissible

As noted earlier, when a person is charged with one crime, extrinsic evidence of other crimes or
misconduct is not admissible if offered solely to establish a criminal disposition. Thus, the prosecution in
an assault case cannot introduce the defendant’s prior acts of violence merely to show that the defendant
is a violent person and thus more likely to be guilty.

Admissible If Independently Relevant

Although not admissible to show a person’s propensity to act a certain way, evidence of past crimes or
other specific acts of misconduct may be admitted if relevant for some purpose other than character. One
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common purpose is to prove “identity”—that is, introducing prior crimes or acts by the defendant that
connect the defendant to the charged crime. For example, evidence that the defendant stole the same gun
that was used in the charged crime is probably admissible. Similarly, if certain facts surrounding a crime
are especially unusual, evidence that the defendant committed other similar crimes is admissible. For
example, if a defendant is accused of robbing a bank while wearing a superhero mask, evidence that the
defendant committed several other bank robberies while wearing the same type of mask may be admitted.

DOCUMENTARY AND PHYSICAL EVIDENCE

Documentary Evidence

Documentary evidence includes writings, photographs, and recordings (all referred to as “writings”).

Authentication
As a general rule, a writing or any other evidence of its contents will not be received into evidence unless
it has been authenticated by proof that shows the writing is what it claims to be (that it is genuine). The
Federal Rules do not limit the methods of authentication, but rather list examples of appropriate
authentication. For example:

• A lay (non-expert) witness who had prior personal knowledge of someone’s handwriting can give
his opinion as to whether a document is in that person’s writing. Alternatively, an expert witness
or the jury can determine the genuineness of a writing by comparing the questioned writing with
another writing proved to be genuine.

• A person’s voice may be identified by any person who has heard the voice at any time.

• Photographs are admissible if a witness identifies the photograph as being a portrayal of certain
facts and verifies that the photograph is a correct representation of those facts. The photographer
does not need to be called to authenticate the photograph.

• An “ancient” document can be authenticated by proof that: (i) it is at least 20 years old, (ii) there
is no suspicion that it is not authentic, and (iii) it was found where such a document would be
kept if authentic, such as a will found in a safe deposit box with other important documents.

• Certain documents, such as printed newspapers or certified copies of public records, are “self-
authenticating” and no evidence of authenticity is necessary.

Best Evidence Rule

When dealing with documentary evidence, you may run into the best evidence rule (also known as the
original document rule). In proving the terms of a writing (recording, photograph, or X-ray), where the
terms are material, the original writing must be produced. The original writing is presumed to be the most
reliable form of the evidence. Thus, secondary evidence of the writing (such as oral testimony of the
writing’s contents) is permitted only after proper explanation as to why the original cannot be produced.

The trickiest part of the best evidence rule is trying to determine if it applies to the document in question.
The rule certainly does not apply to all events that happen to have been memorialized in writing. For
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example, if a person bought something at a store and received a receipt, she can simply testify that she
purchased the item; she does not need to produce the original receipt. For the most part, the rule applies in
two narrow situations: (i) where the writing is a legally operative or dispositive instrument (e.g., a
contract, deed, will, or divorce decree); or (ii) where the witness only knows about the fact at issue
because she read it in the document.

Physical (“Real”) Evidence

While real evidence may be crucial to you in practice, it is rarely tested on the bar exam. Real evidence is
the actual physical evidence (something you can see and inspect) that was present at the incident in
question or helps explain the incident in question. For example, it’s the gun or bloody clothing in a
murder trial.

To be admitted for consideration, real evidence must be authenticated by either: (i) the testimony of a
witness that she recognizes the object as what the proponent claims it to be (for example, a witness
testifies that a knife introduced by the prosecution is the same knife that was at the crime scene), or (ii)
evidence that the object has been held in a substantially unbroken chain of possession (for example,
evidence that a gun removed from a crime scene was stored with other police evidence in accordance with
routine procedures).

Real evidence also includes demonstrative evidence, which is evidence that is used to explain or
understand real evidence. For example, it’s a map or diagram that helps the trier of fact understand the
logistics of the crime scene, or it could be a physical demonstration that shows the effect of a bodily
injury.

PRESENTATION OF WITNESS TESTIMONY

Competency of Witnesses

To be competent (qualified to testify), a witness must: (i) have personal knowledge of the matter he is to
testify about (he must have observed the matter and must remember his observations); and (ii) declare by
oath or affirmation that he will testify truthfully. Almost anyone can testify as a witness, including
children and persons with mental illnesses, so long as they meet these qualifications.

Examination of Witnesses

As the attorney, you will conduct the examination (questioning) of each witness, but the judge will
exercise control over the examination.

Direct Examination and Cross-Examination

Direct examination occurs when you question a witness you called to the stand. Cross-examination occurs
when you question a witness who was called to the stand by an opposing party. The scope of cross-
examination is limited to: (i) matters that were brought out on direct examination and (ii) matters
affecting the credibility of the witness (impeachment).
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Leading Questions
Leading questions (questions that suggest the desired answer or that can be answered with a “yes” or
“no”) are generally not allowed during direct examination unless the witness is hostile, uncooperative,
affiliated with an adverse party, or needs help in responding. Leading questions are usually permitted
during cross-examination.

Improper Questions Prohibited

A lawyer must not ask a witness certain types of questions, such as: questions that refer to facts that are
not in evidence; compound questions requiring a single answer to more than one question, such as “Did
you see and hear the accident?”; cumulative questions (questions on the same point that have already
been asked and answered); argumentative questions; questions that call for the witness to speculate
(theorize); and questions that harass the witness.

Refreshing Recollection of Witness

Refreshing witness’s recollection with a writing or object: A witness who is having trouble remembering
certain facts while on the stand may use any writing or object (e.g., a memorandum) for the purpose of
refreshing her recollection. She usually may not read from the writing while she testifies, since the writing
is not being introduced into evidence. The writing may be used only to refresh the witness’s recollection.

Using witness’s past recorded recollection: If a witness’s memory cannot be refreshed while she is on the
stand, a record that was made or adopted by the witness at the time of the event at issue may be read into
evidence if a proper foundation is laid for its admissibility. These statements of “recorded recollection”
are also discussed in the Hearsay section.

Opinion Testimony

The rules concerning opinion testimony are often very confusing for students. Opinion testimony is
testimony consisting of opinions, conclusions, or other subjective statements by the witness. Generally,
witnesses should testify only to facts that are within their personal knowledge. Therefore, opinion
evidence is not allowed except in cases where the court determines that it will be necessary or helpful.
There are different rules for laypersons (people who are not qualified experts) and expert witnesses.

Lay Opinion Testimony

Opinion testimony by laypersons is generally not admissible, unless no better evidence can be obtained.
In such an instance, opinion testimony is allowable if: (i) it is rationally based on the witness’s
perception; (ii) it is helpful to either understand his testimony or determine a fact in the case; and (iii) it is
not based on scientific, technical, or other specialized knowledge. Some of the common things that you
can have a lay witness testify about include: the general appearance of a person, voice recognition, the
speed of a car, or whether someone was intoxicated. These are things that any regular person would be
able to perceive and form an opinion about.

Expert Opinion Testimony

Expert witnesses are allowed to provide opinion testimony if the court determines that: (i) the expert has
specialized knowledge; (ii) she is qualified as an expert (by skill, education, training, etc.); (iii) she
possesses a reasonable probability regarding her opinion (it’s more than a guess); and (iv) the opinion is
supported by a proper factual basis.
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JUDICIAL NOTICE

Judicial notice is basically a shortcut—the court recognizes a certain fact as being true without a formal
presentation of evidence. Some things are so self-evident that the parties do not have to go through the
time or effort of proving them to be true.

Types of Facts that May Be Judicially Noticed

The Federal Rules state that the facts that may be judicially noticed are either: (i) matters of common
knowledge in the jurisdiction (for example, the numbering system of the streets in that city) or (ii) facts
that may be easily verified by consulting reliable sources (for example, proof that a certain date
corresponded to a particular day of the week after looking at a calendar). Included in this would be
scientific tests or principles that would not be disputed, such as radar speed information or blood typing.

Conclusiveness of Judicial Notice

A judicially noticed fact is conclusive in a civil case (the jurors must accept the fact as true) but not in a
criminal case (the jurors may accept it as true, but are not required to do so).

IMPEACHMENT

Impeachment evidence is not introduced to prove something substantive about the facts of the case.
Instead, a party presents certain facts that are simply meant to discredit the witness—to show that the
witness’s testimony cannot be trusted. These facts might, or might not, relate to the facts of the case.
Usually a party will impeach an opposing party’s witness, but not always; a party may impeach any
witness, even its own.

It is important to remember that even if evidence is not admissible as proof of a fact at issue in the case
(for example, because it is hearsay that is not within an exception), the evidence may be admissible for
the limited purpose of impeaching a witness.

Means of Impeachment

There are two ways to impeach a witness: (i) by cross-examining the witness (asking the witness
questions); and (ii) by introducing outside evidence (calling other witnesses, introducing documents, etc.),
which is also known as “extrinsic” evidence. Whether outside evidence may be introduced depends on the
method of impeachment. As you will see, some of these methods are meant to show the witness’s general
bad character for truthfulness, while others attack the witness’s credibility on a more specific basis.

Impeachment Methods Not Related to Witness’s Character

Prior Inconsistent Statements

When a witness has made a prior statement that is inconsistent with some important part of his current
testimony, a party may attack the witness’s credibility by introducing the prior statement. The party
usually asks the witness about the prior statement on cross-examination. For example, the lawyer may
ask: “You just testified that the light was red at the time of the accident. Didn’t you tell the police right
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after the accident that the light was green?” If the party wants to go further and introduce outside evidence
of the prior statement, the party usually must allow the witness to explain or deny the inconsistency.

Contradictory Facts
Evidence of facts that contradict a witness’s testimony on some important issue may be admitted. The
contradiction shows that the witness’s testimony is untrustworthy.

Bias or Motive
A party may introduce certain facts that show that the witness cannot be trusted because he is biased or
has some interest in the outcome of the case. For example, a party may present evidence that the witness
is best friends with the opposing party. In a criminal case, the defense may ask a prosecution witness
whether he has been promised immunity from punishment for testifying; such evidence may show that the
witness is motivated to testify in the prosecution’s favor.

Sensory Deficiency
A witness who has testified to certain facts may be impeached with evidence that her perceptions or
recollections cannot be trusted. For example, if a witness testifies as to what she saw during the car
accident at issue in the case, a party may present evidence of the witness’s terrible eyesight.

Impeachment Methods Related to Witness’s Character

Distinguishing Substantive Character Evidence and Impeachment

Earlier, you learned about character evidence—specifically, when evidence of a defendant’s or victim’s
character trait is offered as evidence of how that person probably acted during the events of the case. The
impeachment methods described below may appear similar because the purpose is to attack a witness’s
general character for truthfulness. With impeachment, however, the party offering the evidence is not
trying to prove how the witness probably acted during the events of the case. Rather, the party is trying to
convince the jury that because the witness has a dishonest or criminal character, his testimony cannot be
trusted.

Any witness in any type of case (civil or criminal) may be impeached. Although a party to a case may be
impeached like any other witness, remember that not every party testifies as a witness. For example,
criminal defendants often don’t testify at trial.

Prior Convictions
Under certain circumstances, a witness’s credibility may be attacked by proof that she was once convicted
of some other crime. This method of impeachment is frequently tested because the rules are so specific.
Only certain crimes may be introduced: (i) any felony; or (ii) any crime that involves dishonesty or a
false statement. You might assume that most crimes involve some sort of dishonesty; however, for this
purpose, the term refers to a limited category of crimes like perjury, fraud, embezzlement, etc.
Convictions generally are not admitted if they are over 10 years old.

Prior Acts of Misconduct Involving Truthfulness

A witness may also be impeached with evidence that she committed a prior “bad act” that did not result in
a criminal conviction. The misconduct must relate to untruthfulness, such as lying on a job application. A
witness may be impeached with prior bad acts only by cross-examination—extrinsic evidence of the bad
act is not allowed. Therefore, if the party asks the witness about the act on cross-examination and the
witness denies it, the party must accept the denial and move on.
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Reputation/Opinion Testimony Regarding Untruthfulness

In the Character Evidence section, you learned how the parties in a criminal case may call character
witnesses to provide “reputation” or “opinion” testimony about the defendant’s or victim’s bad character
for some trait that is relevant to the case. This type of testimony may also be introduced to impeach any
witness in any type of case. Here, of course, the only relevant character trait is untruthfulness—the
testimony is being offered to show that the witness cannot be trusted. For example, in a murder
prosecution, Eyewitness testifies that he saw Defendant murder Victim. The prosecution then calls
Character Witness, who testifies as follows: “I know Eyewitness well, and in my opinion, he is an
untruthful person.”

Rehabilitation

Once a witness has been impeached, an opposing party may take steps to rehabilitate the witness’s
credibility. This may simply involve calling the witness for redirect examination to explain or clarify the
facts brought out by the impeaching party on cross-examination. Or the rehabilitation may be more
specific—for example, if the impeaching party presented testimony that the witness has a bad character
for untruthfulness, the opposing party may call a character witness to testify that the witness actually has a
good reputation for truthfulness.

“Prior consistent statements” that tend to rehabilitate the witness’s credibility may be introduced in
certain situations. For example, suppose that a defendant grocery store in a personal injury case called a
witness to testify about what she saw during the accident. On cross-examination, the plaintiff impeached
the witness by alleging that the witness recently became motivated to testify in the defendant’s favor
because she was recently hired by the defendant as an employee. The defendant can introduce a prior
statement of the witness that is consistent with her in-court testimony, as long as it was made before she
became an employee of the store.

PRIVILEGES

Testimonial privileges permit a person to refuse to disclose, and/or prohibit others from disclosing,
certain types of confidential information in judicial proceedings. These privileges are usually based on the
relationship between the communicant and the other person. Commonly recognized privileges include
statements made by a client speaking to her attorney and by a patient speaking to her physician. The
purpose of privileges is to protect certain types of relationships, even at the risk of losing out on
potentially valuable evidence.

How privileges work is relatively straightforward. First, the privilege is personal to the holder (the party
whose interest the privilege is trying to protect). If the privilege is held by more than one person, each
holder can assert the privilege. Second, the communication must have been made in confidence (been
meant to be kept secret). It is generally presumed that a statement made in the course of a privileged
relationship is privileged, even if a third party eavesdropped and heard the statement. Privileges are not,
however, absolute. A privilege can be waived if the holder fails to object or voluntarily discloses the
privileged information.

The Federal Rules of Evidence do not have a specific provision dealing with testimonial privileges, but
federal courts recognize most of the major privileges described below. The most commonly tested are:
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• Attorney-Client Privilege: This privilege protects communications between a lawyer and his
client. The client is the holder of the privilege, but the attorney may invoke it on the client’s
behalf.

• Physician-Patient Privilege: This privilege protects information obtained by a physician in order

to provide medical treatment to her patient. The privilege is recognized in some state courts but
not in federal courts. (But remember that in a federal diversity case, the state law of privilege
applies, so this privilege may show up in an exam question.) The patient is the holder of the
privilege.

• Psychotherapist-Patient Privilege: This privilege protects communications between a

psychotherapist or licensed social worker and her client. The patient holds the privilege, but the
psychotherapist may invoke it on the patient’s behalf.

• Privileges Related to Marriage: There are two privileges based on the marital relationship: (i)
spousal immunity and (ii) the marital communications privilege. These two privileges are easy to
confuse and are commonly tested, so it’s important to memorize the differences. Neither privilege
applies in lawsuits between the spouses or in cases involving crimes against the witness-spouse or
either spouse’s children. Examples of crimes committed within a family that are not covered by
the immunity or privilege include assault and battery, incest, bigamy, and child abuse.

PRIVILEGE HOLDER TYPE OF CASE SCOPE TIMING OF

MARRIAGE

Applies in Witness-spouse The spouses must be

Spousal Immunity Witness-spouse cannot be compelled married at the time
criminal cases
only only to provide any of the testimony
testimony against
her spouse

Marital Prevents testimony The spouses must

Either spouse can
Communications Applies in both about confidential
refuse to disclose have been married
Privilege civil and communications
the information, at the time the
criminal cases between the
or prevent the spouses; other
confidential
other spouse testimony is communications
from disclosing it permitted were made

HEARSAY

The Federal Rules of Evidence define hearsay as “a statement, other than one made by the declarant
while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter
asserted.” Many students believe that this short sentence is one of the single most confusing areas in the
law of Evidence. You cannot, however, shy away from mastering this area because it is regularly tested
on both the MBE and in essays.
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When talking about hearsay, what we are usually talking about is a witness on the stand (call her W for
witness) testifying to a statement that someone (call her D for declarant) previously made. (Usually the
declarant is a different person from the witness, but this is not always the case! A testifying witness’s own
prior statement can be inadmissible hearsay.) Suppose that D’s statement that the stoplight was red at the
time of the accident, as conveyed to the court by W, is being offered as substantive proof that the
stoplight was red.

The reason for excluding hearsay is that the adverse party (call her A) is being denied the opportunity to
cross-examine the perception, memory, veracity, etc., of the person who made the statement (D). She can
only cross-examine the witness (W), who likely doesn’t know much because she is merely conveying
what she heard. (The rationale is similar even if W and D are the same person—it is contemporaneous
cross-examination that is required. Even though W made the statement, A was not able to cross-examine
her perception, memory, etc., at the time the statement was made.) As a matter of policy, we generally
want to exclude such statements when we cannot test the declarant’s perceptions and trustworthiness.
Therefore, hearsay must be excluded upon proper objection unless one of the exceptions to the rule
applies.

Although hearsay often comes up in the form of live witness testimony, it can also be found in other
forms of evidence, such as documents. The same concern is present—the adverse party is unable to cross-
examine the declarant.

In approaching a hearsay question, you should ask yourself two questions. First, does the statement fall
within the general definition of hearsay—meaning, is there a statement made outside the current trial or
hearing that is being offered as proof of the matter asserted in the statement? Second, if the statement falls
within the definition of hearsay, is it still admissible because it has been designated as “nonhearsay” or
because it falls within one of the recognized hearsay exceptions? Let’s look at each of these questions in
detail.

Hearsay Definition

The question of whether a statement falls within the definition of hearsay really has several parts.

Statement
First, was there a statement? For purposes of this rule, “statement” has a limited definition. It includes
any: (i) oral or written assertion, or (ii) nonverbal assertive conduct (conduct intended to act as a
substitute for words, like nodding “yes” or pointing). On the bar exam, do not be tricked by nonhuman
“statements,” such as the barking of a drug-sniffing dog. Only people can make statements. (And, by the
way, the barking may be admitted if it’s relevant and authenticated, but it’s simply not a statement for
purposes of the hearsay rule.)

Made Outside of the Current Trial or Hearing

Second, was the statement made outside of the current trial or hearing? Although the common shorthand
definition of hearsay refers to an “out-of-court” statement, don’t take that too literally. Statements made
in other court proceedings, such as a trial or hearing in a different case, can certainly be hearsay.

Offered as Proof of the Matter Asserted

Third, was the statement being offered for a reason other than as proof of the matter asserted? If so, it is
not hearsay. Common examples of “nonhearsay” include:
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• Statements offered to show their effect on the listener or reader, such as notice of a dangerous
condition or motive. Suppose the plaintiff in a lawsuit arising out of a car accident alleges that the
defendant knowingly drove with faulty brakes. A statement by the mechanic before the accident
warning the defendant about the brakes is hearsay if offered to prove the brakes were faulty, but it is
not hearsay if offered to show that the defendant knew about the condition of the brakes.

• Statements offered as evidence of the declarant’s state of mind, such as statements offered to show
that the declarant was insane or had knowledge of a certain fact. Such statements are not offered to
prove the truth of the matters asserted, but rather, in the case of insanity, to show that the declarant
believed them to be true. For example, if the declarant said, “I am the Queen of England,” the
statement would be offered to show that he was insane, not that he is actually the Queen of England.

• Statements that constitute a verbal act. Evidence of such statements (sometimes called “legally
operative facts”) is not hearsay because the issue is simply whether the statements were made. For
example, in a lawsuit based on a contract, the statements by the parties that constitute the offer,
acceptance, etc., are not hearsay because they are offered to prove what was said, not that such
statements are true.

Hearsay Exclusions—Statements Designated as “Nonhearsay”

Some statements are specifically exempted from the definition of hearsay by the Federal Rules of
Evidence. They are considered “nonhearsay” even if offered to prove the truth of the matter asserted.

Certain Prior Statements by a Testifying Witness

Prior inconsistent statements: Earlier, you learned that a witness may be impeached with her prior
inconsistent statements. Most prior inconsistent statements are hearsay, and thus are admissible only to
impeach the witness. However, a prior inconsistent statement by a testifying witness made under oath is
considered nonhearsay—and is therefore admissible as substantive proof. For example, if a witness to a
car accident testifies at trial that the stoplight was red but previously testified under oath during a
deposition that the stoplight was green, the statement from the deposition may be introduced as proof that
the stoplight was green.

Prior consistent statements: Certain prior consistent statements of a witness that are introduced to
rehabilitate the witness’s credibility may also be offered as substantive proof. Such statements need not
have been made under oath.

Prior statements of identification: A witness’s prior identification of a person that the witness perceived
earlier is not hearsay. For example, if a victim of a robbery views a police lineup the following day and
says, “That’s the man who robbed me,” that statement is admissible.

Statements by an Opposing Party (“Admissions” by a Party-Opponent)

Statements by an opposing party, also known as admissions by a party-opponent, are considered
nonhearsay. Simply put, if a statement was made by a party and is now being offered against that party, it
is not hearsay. (Note the “opposing party” requirement—if a party tries to offer his own statement, it does
not qualify as an admission.) A party can hardly complain about not being able to cross-examine
himself—he said it, he is stuck with it, and he can explain it at trial if he wishes. Thus the usual reasons to
 EVIDENCE OVERVIEW 15

exclude hearsay do not apply. The term “admission” is a bit misleading because the statement need not
admit anything. Sometimes, even a party’s silence in the face of an accusation may be offered against him
as an admission.

Vicarious statements: Some statements qualify as statements by an opposing party even though they were
not actually made by the party. Rather, they are attributable to the party because of the party’s
relationship with the declarant. Specifically, statements by a party’s agent, employee, spokesperson,
partner, or co-conspirator may be admissible against the party in certain circumstances.

Hearsay Exceptions

Even if a statement is hearsay, the statement may still be admissible under one of the hearsay exceptions.
The reason these statements are admitted is that the circumstances under which these statements were
made are deemed to be trustworthy. There are approximately 30 exceptions that you will need to review,
but there are a handful you should know well because they are tested often.

Exceptions—Declarant Unavailable
Certain exceptions apply only if the declarant is “unavailable” to testify at trial, such as when the witness
is dead, incapacitated, claims a privilege, refuses to testify, is absent and beyond the reach of the court, or
has no memory. The commonly tested exceptions in this category include the following:

• Former testimony: A statement made under oath at an earlier deposition or court proceeding is
admissible under this exception if the two court actions are sufficiently similar. The main
requirement is that the party against whom the statement is now offered must have had an
opportunity to examine the declarant during the prior proceeding.

• Statements against interest: A statement may be admissible if it was against the declarant’s own
pecuniary (monetary), proprietary (ownership), or penal (subjects the declarant to criminal
prosecution) interest when it was made, and a reasonable person would not have made the
statement unless she believed that the statement was true.

• Dying declarations: A statement may be admissible if it was made by a person who believed she
was dying, and the statement concerns the cause or the circumstances surrounding what she
believed to be her impending death. A clear example of a dying declaration is when a murder
victim tells a police officer that she knows she won’t survive and identifies the person who
attacked her. Note that this exception applies only in civil cases and criminal homicide cases.
Therefore, if a defendant is charged with attempted murder, a statement by the victim cannot
qualify as a dying declaration.

Exceptions—Declarant’s Availability Irrelevant

Other exceptions apply regardless of whether the declarant is available to testify. The commonly tested
exceptions include:

• Excited utterances: Out-of-court statements relating to a startling event are admissible if made
while under the stress of the event. Exclamation points in the statement are a hint. For example,
“Oh my God, he shot her!” is likely an excited utterance.
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• Present sense impressions: These are statements that describe an event while it is happening. An
example might be, “That car is weaving between lanes.” The timing requirement for this
exception is very strict—the statement must be made while the event is taking place or
immediately thereafter.

• Statements showing present state of mind: A person’s statement describing her state of mind or
emotion is admissible under this exception. Such statements are often offered to establish a
person’s intent to prove that the intent was carried out. For example, in a murder prosecution in
which the defendant claims the victim committed suicide, the victim’s prior statements that she
intended to commit suicide are admissible.

• Statements of current physical condition: A statement is admissible if it relates to a current

physical condition. The statement must be in the present tense. If, after being involved in a minor
car accident, a man tells his friend, “my neck hurts,” it is likely a statement of physical condition
within the exception.

• Statements for medical diagnosis or treatment: A statement of physical condition is admissible

if made for the purpose of getting a medical diagnosis or treatment, even if the statement
concerns a past condition. Generally, these statements are made to doctors, nurses, and other
medical professionals. Even a statement about the cause or source of the condition is admissible,
as long as it is reasonably pertinent to diagnosis or treatment. Often the method of injury (“I was
stabbed”) is pertinent to diagnosis or treatment, but the specific identity of the perpetrator (“John
did it”) is not.

• Recorded recollection: If a witness is testifying and she cannot recall a certain event, a party may
introduce a writing that the witness made at or near the time of the event. The writing itself is not
admissible unless it is offered by the adverse party, but the contents can be read to the jury.

• Business records: A writing or other record is admissible if it was made as part of a regularly
conducted business activity and the person making the record either (i) had personal knowledge
of the contents or (ii) received the information for the entry from someone who had personal
knowledge and had a business duty to transmit it. For example, if a store manager writes an
incident report after a customer is injured at the store, the manager’s notes about his own
observations would be admissible under this exception. However, statements made to the
manager by bystanders at the scene would not qualify, because the bystanders did not have a
business duty to transmit the information to the manager. The bystanders’ statements would need
to fall within a separate hearsay exception to be admissible (see the hearsay within hearsay
discussion below).

Hearsay Within Hearsay

To make things even more challenging, sometimes a hearsay statement will incorporate another hearsay
statement! This usually occurs when (i) a statement repeats another person’s statement or (ii) a written
document contains a statement from another person. When there is multiple hearsay, each level of hearsay
must fall within some hearsay exception or exemption. Otherwise, the entire statement is inadmissible.
Consider the following examples.
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• Plaintiff sues Defendant for injuries arising out of a car accident. Defendant wants to introduce
the following testimony from Witness: “When I went to visit Plaintiff in the hospital, Plaintiff’s
daughter took me aside and told me that Plaintiff told her the accident was all his fault.”

Here, there are two separate hearsay statements: Plaintiff’s daughter’s statement to Witness, and
Plaintiff’s statement to his daughter. Plaintiff’s statement qualifies as a statement by an opposing
party (nonhearsay), but his daughter’s statement to Witness does not fall within any exception.
Therefore, Witness’s testimony is not admissible.

• In the same lawsuit as above, Plaintiff wants to introduce a properly authenticated police report
made after the accident that contains the following statement: “Plaintiff stated that his neck
hurts.”

Again, there are two separate hearsay statements: the police report itself, and Plaintiff’s statement
to the police officer. Here, however, Plaintiff is in luck. The police report likely falls within the
hearsay exception for business records, and Plaintiff’s statement likely falls within the hearsay
exception for statements of present physical condition. As such, the police report is admissible.

Confrontation Clause of United States Constitution

The U.S. Supreme Court has held that the introduction of hearsay evidence sometimes violates a criminal
defendant’s constitutional right to “confront” and cross-examine the witnesses against him. Generally,
even if a hearsay statement falls within a hearsay exception, it will not be admitted if: (i) the statement is
offered against the defendant in a criminal case; (ii) the declarant is unavailable; (iii) the statement was
“testimonial” in nature; and (iv) the accused had no opportunity to cross-examine the declarant’s
“testimonial” statement prior to trial.

You should be on alert for a Confrontation Clause problem whenever the prosecution in a criminal case
tries to offer a hearsay statement by an unavailable declarant. Whether the statement will be excluded
often depends on whether it is testimonial.

Definition of Testimonial Statement

In broad terms, a testimonial statement is one that the declarant would expect to be used in a later
prosecution. Although the exact definition is still evolving, as U.S. courts continue to issue decisions on
the topic, the following rules have been established.

Statements to police: If the primary purpose of police interrogation is to enable the police to help in an
ongoing emergency, statements made in the course of the interrogation are not testimonial. For example, a
statement made during a 911 call describing the circumstances and perpetrator of an ongoing incident of
domestic violence is not a statement that the declarant would expect to be used in a later prosecution. But
when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a
later criminal prosecution, statements are testimonial. For example, statements made by a victim to police
after a domestic violence incident, setting forth details of the incident, are testimonial.

Certificates of forensic testing: Affidavits, certificates, or other written reports that summarize the
findings of forensic analysis, such as narcotics, blood, fingerprint, or ballistic test results, are generally
testimonial. Thus, if the analyst who performed the testing is unavailable to testify at trial and the
defendant had no previous opportunity to cross-examine her, introducing the report may violate the
Confrontation Clause.