Copyright, MCMLXXXVII, All Rights Reserved, Charles E.
Brown, Attorney at Law
Notice: This information is provided for those who wish
to learn the law in a way that teaches you the basic
principles of the law. This disk will also help you pass the
multi-state portion of the bar exam.
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or disks to:
Charles E. Brown IV
Attorney at Law
11526 Raymond Avenue
St. Louis, MO 63138
I have other legal information--including the one
principle that is guaranteed to get you through the
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your name with your letter and I'll make it available to you
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I also have two other disks with legal subjects on them.
These subjects include estates, administrative law, equity,
personal property, agency, secured transactions, civil
procedure, corporations and partnerships, commercial paper,
conflicts of law, and admiralty. I will provide them free to
(to be used in trial)
1. Incompetent, irrelevant and immaterial.
2. No proper foundation.
3. Objection to the form of the question.
4. Statement does not prove or disprove anything at
Forms of objections:
1. I object to that, if the court please. That assumes
----. There is no evidence of that.
2. I object to the form of the question. Counsel is
telling the witness how he wants him to testify. The
question is leading.
3. I object and move that the answer be stricken as a
conclusion by the witness. [This is called for when the
witness uses expressions like "I think", "I believe", "He
admitted", "He agreed", etc.]
4. Characterization: I must object to the
characterization and move that it be stricken.
5. Conjectual: I object. This would be conjectual
because the witness was not there at the time of the ----,
and could not know as a fact whether it occurred or not.
6. Narrative: I must object to that. This narrative
question will give the Plaintiff no opportunity to anticipate
the testimony and to object to irrelevant and hearsay
testimony, thereby prejudicing our case.
7. Continuing Objection: If the court please, and
counsel, may it be stipulated that I may have a continuing
objection to this entire line of inquiry without the
necessity of interposing objections to each question.
Specific Objections must be made in the following
1. When leading questions are asked on direct
2. When the answer of a witness is not responsive to
the question asked.
3. When the evidence offered is not the best evidence.
4. Where evidence is offered of a transaction with a
deceased person, in violation of provisions of the statute.
5. When the proof offers a variant of the pleadings.
6. That documentary evidence offered is incompetent for
7. That photographs of the locus in quo of an accident
8. Questions as to the validity, existence or legal
passage of statutes or municipal ordinances.
9. That a proper foundation has not been laid for an
admission of documents, photographs, x-rays and all exhibits.
10. Getting wrong instructions or refusing to give
11. When expert testimony is improperly excluded.
12. If the question asked on cross-examination
improperly goes beyond the scope of the testimony brought out
on the direct examination.
13. Where a question is asked which has been previously
asked and answered.
14. Propounding an improper question on re-cross
15. Where hypothetical questions are defective.
16. Where the identity, form or contents of the
deposition are questioned.
17. Where the question calls for privileged
18. Where the form of the question is objectionable.
19. Where the evidence is admissable in part.
20. Where the evidence is admissable for any particular
21. Where the method of proving of fact is
22. Where the question calls for a conclusion by the
23. When the evidence is hearsay.
24. When the question impeaches ones own witness.
25. When a document offered is self-serving.
26. When the evidence violates the parol evidence rule.
27. Where the witness is imcompetent.
(to be used to prepare for an examination)
The word "rules" in the text refers to the Federal Rules
Relevancy and basic concepts of evidence. "Irrelevant,
incompetent and immaterial." Evidence is inadmissable for
only these three reasons. Incompetent is the basic category,
and the others are carved out of the evidence exclusions.
Incompetent is so broad as to be almost useless.
Relevancy is set out in Rules 401, 402, and 403. These
are just a codification of the basic rules of evidence. Rule
402 provides that all relevant evidence is admissable unless
it is kept out by a specific rule. To learn the rules of
evidence, one must simply learn the rules of relevancy and
then learn the rules of exclusion. 36 rules of exclusion.
The single most important issue to learn is in Rule 401.
Relevant evidence is that which has any tendency to make the
existance 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.
Paraphrased, this means the evidence must meet two
1) It must help in some minimum way to establish the
fact or proposition the evidence is introduced to establish;
2) The fact the evidence helps establish must have
something to do with the outcome of the case.
For example, evidence of Catholicism will not help
establish drunkenness. A court will not tie evidence of
Catholicism to a proposition of drunkenness even though
Catholics may statistically tend to drink more than other
In most jurisdictions, evidence that does not help
establish the premise was called immaterial. It really
should have been called irrelevant. The basic concept is
There is no such thing as evidence that is inherently
irrelevant. There is nothing in the universe that is
inherently irrelevant. For example, quintuple hearsay is
relevant (Sam told Frank that Jim said that Annie
thought...). Anything can qualify as relevant evidence.
Imagine a pile of evidence and a bucket of propostions.
A scintilla of evidence is enough to meet the basic
definition of relevancy under Rule 401.
What is the proposition? The prosecutor offers this
evidence--running from an assault. Does it meet the test of
relevancy? Yes, because it has some tendency to prove the
proposition. It may, in conjunction with other evidence,
meet the burden of proof of the prosecutor. The evidence
must help at least a little bit. The evidence must help
establish the proposition. How do you tell? Logic, common
sense, and life's experiences. Relevancy is determined by
the trial judge.
Under common-law materiality, the proposition the
evidence is introduced to estasblish must have something to
do with the outcome of the case. Sometimes the pleadings
will take the proposition out of the outcome of the case and
make the evidence irrelevant.
How will the multi-state handle this? Usually you will
not get a question on the multi-state that deals with
evidence that is outside of some law. Usually, the question
will give you the issues and say, "These are the only issues
in the case." Watch out. This will trigger irrelevancy
under Rule 401.
Most evidence meets the scintilla test. Rarely will
evidence be found inadmissable as irrelevant under Rule 401.
We only get thirty evidence questions on the multi-state. In
as many as twelve, one of the four choices will be
"inadmissable as irrelevant", and this is almost always
wrong. This is a favorite red herring on the examination.
The only time it will be right is when we are triggered as
The policy behind Rule 401 and 402 is simple. We have
billions of dollars in courthouse property tied up in the
resolution of disputes. Therefore, when a case does hit our
courts, we want every piece of helpful evidence given to the
decision maker unless some other Rule keeps it out. Like
Rule 403 provides that any piece of relevant evidence
may be excluded if prejudicial, or confusing, or misleading,
causing undue delay, wasteful of time, etc.. Any piece of
relevant evidence may be exluded if the trial judge makes the
determination under Rule 403. This is up to the trial judge
depending upon the circumstances of the case. For the most
part, the Federal Rules leave the determination up to the
trial judge. Nine key exclusions, covered later.
Rule 403 is the single most important rule of exclusion
under the Federal Rules, and these will be triggered by "best
of the lot" questions. These always looks exactly the same.
They will give you the proposition, then they will give you
the evidence, and it will be reaking of prejudice. The other
choices will be poor. Example: A question where the
prosecutor holds up the severed head of the victim to show
the entrance of the bullet holes. Obviously prejudicial.
This completes the basic discussion. Remember these
1) Evidence is relevant if it helps decide an issue in
2) All relevant evidence is admissable unless a
specific rule keeps it out.
3) Relevant evidence may be excluded if the trial judge
finds that it's too prejudicial.
Certain evidence cannot be used to prove certain
propositions. In some situations the law of evidence takes
the discretion away from the trial judge. On these rules the
multi-state bar examiners have a field day. We've got to
remember nine rules of relevancy exclusion:
1) Liability insurance
Evidence that a person was or was not insured is
inadmissable to prove he acted negligently or otherwise
wrongfully. Evidence of insurance cannot be used to
establish negligence. The reason is that probative value is
slight and prejudicial value is high. However, evidence of
insurance can be used to prove other propositions, such as
ownership or responsibility. An instruction will then be
given by the judge.
We will see this on the multi-state. Always go on the
presumption that evidence of insurance is inadmissable to
2) Subsequent repairs
Evidence of repairs is inadmissable to prove that the
person was negligent at the time of the accident. The test
question is often an automobile accident, and one day after
the accident the defendant has his brakes repaired. The
rationale for the rule is the public policy in favor of
safety. The law believes that its better to allow for the
repairs than to risk that the defendant will forego the
repairs because of fear that it will be used against him.
Evidence of subsequent repairs is OK for other propositions,
such as ownership or the possibility of safer conditions.
Subsequent repairs are inadmissable to prove negligence.
3) Settlement offers
See Rule 408. Settlement offers and offers of
compromise are inadmissable to prove liablity, invalidity of
the claim, or to establish the amount of damage. The policy
is that the law wants to encourage the settlement of
disputes. Factual statements made during settlement
negotiations are also inadmissable in order to keep free-
wheeling negotiations going. They may be admissable to prove
other propositions, but these are pretty hard to show. The
general rule is that settlement offers and offers of
compromise are inadmissable.
4) Negotiations surrounding a plea of guilty. These
a) A plea of guilty, if later withdrawn at the request
of the court;
b) A plea of nolo contendre;
c) Negotiations surrounding the plea.
However, a valid plea of guilty, if not withdrawn, may
later be used against the person making it.
The policy behind this rule is to facilitate the
amicable resolution of disputes. An example is a combination
civil and criminal case.
5) Payment of medical expenses
Rule 409 prohibits evidence of payment of medical
expenses or offering to pay for medical expenses in
negligence actions. The law wants to encourage this type of
activity. Factual statements made during the offer to pay
medical expenses is admissable.
6) Character evidence in criminal cases
The basic rule is: evidence of the defendant's bad
character is not admissable to show he probably acted in
conformity with that character unless the defendant presents
evidence of his good character. The probative value of the
evidence is outweighed by prejudicial aspects. The defendant
is allowed to present evidence of what a good character he
is. We want to give the defendant in a criminal case every
possible break. The law limits the type of evidence that a
defendant may admit to show good character: reputation
evidence, opinion evidence (but not specific evidence of past
good acts--takes up too much time). Once evidence of good
character is admitted, the prosecutor can admit evidence of
bad character. The prosecutor is also limited, however, to
reputation evidence, opinion evidence (but not the
prosecutor's own evidence of the defendant's bad conduct).
The law does give the prosecutor one additional weapon,
and this is whether the reputation witness has heard of a
specific bad act of the defendant. "Have you heard that D
was arrested thirty times?" The theory is that these
questions are only being used to test the witness's
knowledge. Prosecutors love to use this technique. All
courts require a "good-faith basis" for the prosecutor's
The basic rule is: evidence of the defendant's bad
character is not admissable to show he probably acted in
conformity with that character unless the defendant presents
evidence of his good character. Here are two exceptions:
a) If the defendant testifies, he automatically places
his character trait of truthfulness in issue, and the
prosecutor can use all kinds of evidence to show how
untruthful the defendant is.
b) The prosecutor may want to use the evidence of bad
character to prove some proposition other than character.
Five major situations where crime evidence comes in to
prove some propsition other than character: motive, intent,
absence of mistake, identity, and common scheme. This is the
MIMIC rule. This is always covered on the multi-state in
this way: when it is a criminal case and the question tells
you the defense or the issues and then asks about the
admissability of prior crimes, check MIMIC. If the question
does not raise the defense or the issues, use the basic
underlying rule of no admissibility.
The footnote is that the defendant is also allowed to
present evidence of the victim if relevant. This situation
is almost always the self-defense situation, where the victim
may have been the original agressor.
Basic rule #1: The state cannot show bad character
until the defendant raises the issue.
Basic rule #2: The defendant can always show good
character through reputation or opinion evidence.
Basic rule #3: When the state can show bad character,
it can use reputation, or opinion, or cross-examination of
the defendant's witnesses.
Basic rule #4: Prior crimes are always inadmissable to
prove bad character, but may be admissable for a MIMIC
Character evidence is a favorite of the multi-state
examination. What is character evidence? This is evidence
of the type of person the defendant is. One may be both
truthful and reckless. What type of evidence may be used to
prove character evidence? Three types of evidence:
a) Reputation evidence. The witness testifies
that the defendant has a reputation for acting in a
b) Opinion evidence. "In my opinion..."
c) Specific past conduct. From a past act, the
jury is asked to make an inference.
7) Character evidence in civil cases
Easy rule. Rule 404 provides that you cannot show
evidence of character to show that the party acted in
conformity with that character. Can't show evidence of
recklessness in a tort case to show that the defendant was
reckless in this situation. The reason is that the probative
value is outweighed by prejudicial and judicial economy
When a person testifies, however, he automatically
places his character trait of truthfulness in issue. This is
the only exception. The basic rule is that character
evidence in civil cases is inadmissable.
8) Prior similar occurences
The problem comes when a party wants to introduce
evidence that the defendant has committed prior similar torts
to show that the defendant also acted in this way this time.
Four textbook illustrations of exceptions:
a) Prior torts may be admissable to show the existance
of a dangerous characteristic of an object;
b) Prior torts may be admissable to show the
possibility of the accident occuring;
c) Prior accidents or injuries may help establish the
cause of the present harm;
d) Evidence of a prior accident is often admissable to
show knowledge on the part of the defendant.
The rule is: you cannot use prior torts to show that
the other party was negligent, but you may be able to use
them to show--dangerous condition, impossiblity defense,
cause, and knowledge (DICK).
A rule for the admission of habit evidence. Federal
Rule 406 provides that evidence of the habit of a person is
relevant to prove the conduct of a person on a particular
occasion was in conformity with the habit. What is habit?
It is usually defined as a repeated response to a particular
set of circumstances. It takes a number of similar responses
to a particular situation to establish a habit. This is the
line between character evidence and habit evidence. There is
always a question or two on habit. They give us the answer
in the question by using a few certain key words--always,
instinctively, invariable, habitually. Business routine is
simply habit applied to a business situation. General rule:
habit and business routine are admissable to prove that a
person acted in conformity with the habit in a specific
9) Is the sexual history of the victim in a rape case
No opinion or reputation evidence in a rape case--ever.
Evidence of specific acts may be admissable in just two
a) The defense is consent, and the evidence relates to
specific acts between the victim and the defendant.
b) Evidence of past sexual activity between the victim
and others, if used to show the accused was not the source of
the semen or the source of the injury.
Rule 412 sets out a special procedure to follow when the
evidence might be admissable under one of the two exceptions
listed earlier. This is still under the discretion of the
trial judge. General rule--no opinion or reputation
evidence, possible evidence of specific acts in just two
narrow situations (still under the discretion of the trial
Real proof issues. Usually relates to two things
presented to the jury. Real proof is proof other than the
testimony of witnesses. For purposes of preparing for the
multi-state, we should make four piles of real proof:
1) All the real proof that is the actual subject of the
litigation or one of the propositions to be proved in the
If it is in pile number one, there is never a problem
with relevancy. May be a problem with Rule 403. Real
evidence will be admissable unless it will make the jury
vomit (reaking with prejudice). In pile one, it must meet
the tests of: a) authentication; b) relevancy; and c) the
403 balance. The multi-state question will almost certainly
be on authentication.
For all real proof other than documents, you only need
to check the three rules.
Establishing the chain of custody is often used to
establish authentication. It is not the only way to
authenticate a document.
2) All real proof items that were connected with the
real world event that are at issue in the lawsuit but don't
go directly to one of the issues. From this piece of real
proof, the trier of fact is asked to make an inference (used
The question here will be either an authentication
question or a 403 balance question.
3) All real world items that were prepared to help the
jury understand the case. "Demonstrative evidence".
Authentication requirement? Yes. Here authentication
is just a matter of having a witness take the witness stand
and have him testify that this is a fair and accurate
representation of what it is we are trying to represent. You
do not need the photographer to authenticate the photograph.
You only need someone who will testify that this is a fair
and accurate representation.
The 403 issue is always difficult with respect to pile
number three. This is up to the discretion of the trial
4) Documentary evidence.
These are writings. Writings must be authenticated and
must pass a 403 balance test. Writings sometimes raise a
best evidence rule problem and a hearsay problem.
The BAH rule (best evidence, authentication, and
hearsay). When writings are being introduced, check BAH.
How do you authenticate a writing? Eight ways to
a) An admission;
b) An eye-witness;
c) Proof of handwriting;
d) A handwriting expert;
e) Comparison by the jury;
f) The reply letter doctrine;
g) The ancient documents rule;
--The condition must not raise suspicion
--The document was found in a place where if
authentic it would likely be
--It has been in existence for twenty years
h) Anything else that will reasonably establish the
genuineness of the signature.
Some documents need no extra showing of authentication:
Commercial paper, Acknowledged documents; and documents
containing a Trade inscription or a trade label. CAT
documents leap into the case all by themselves without any
The best evidence rule (or the original documents rule).
The party seeking to prove the contents of a writing produce
the original writing or satisfactorily account for its
absence. The best evidence rule:
a) When is a party trying to prove the contents of a
Situations--1) The best evidence rule applies where the
witness is attempting to testify what a witness read in the
document. The best evidence rule does not apply when the
witness is testifying to first-hand knowledge of the event
even if a document exists. 2) Also applies when the witness
is testifying about the documents that control the
substantive law--the deed situation (but not to birth, death,
and marriage). 3) Where a will is controlling. 4) The
divorce decree--don't tell us about the rights, produce the
b) What are the exceptions to the rule?
i) The collateral documents exception to the best
evidence rule. What is collateral? Minor, unimportant, not
ii) You don't have to offer the document if you have a
c) What is an original document?
FR 1003 allows machine copies to satisfy the best
evidence rule unless a genuine issue is raised in the case as
to the authenticity of the original.
d) If a party is excused from presenting the original
document, what kind of evidence can he then present?
Any type of secondary evidence may be introduced. No
degrees of secondary evidence.
The rule for best evidence is: once in a while, to
prove what is found in some writings, you must produce the
writing, unless you can't.
All four piles share one characteristic before
admission: the proponent must show other evidence that
establishes what the party says it is. We call this process
identification or authentication or laying the foundation.
The FRE use authentication. The way we authenticate is by
showing evidence sufficient to support a finding that the
evidence is what we say it is.
Aren't that many things that can happen for real proof.
If we're introducing a glass of water, the questions will be:
1) Is that a glass of water? 901
2) Is it relevant to this case? 401
3) Is its probative value outweighed by other
Witnesses. Evidence problems that apply when a witness
takes the witness stand. We're dealing in this section with
testimonial evidence as opposed to real proof.
The competency of witnesses. Federal Rule 601 provides
that every person is competent to be a witness except as
otherwise provided under these rules. The person must
possess just four basic qualities (ROTC):
1) The ability to observe
No magic formula for the oath or affirmation to tell the
2) The ability to recollect
A little bit of observation is enough to qualify the
witness. A little bit of recollection is enough to qualify
3) The ability to communicate
In what form must the communication be? Any rational
form. An interpreter is required to take the oath also.
4) The ability to appreciate the obligation to speak
In terms of disqualification, if the witness cannot
perform one of the four functions, then he is not a competent
witness. The discretion is up to the trial judge. Other
things go to the weight of the testimony, and not to the
Competency--only four disqualifications under FRE.
Judge and/or juror cannnot be the witness--the MBE never
tests on this.
Are common law disqualifications still around? Dead man
statute. With respect to transaction with a dead man statute
(if diversity case where state law controls) don't be fooled
if the MBE sets up a situation with a witness trying to give
testimony on a transaction with a dead man. The dead man
statute is the wrong answer!
Form of questioning a witness. Usually left to the
discretion of the trial judge as to how narrow or broad the
form may be.
There is one basic rule! Leading questions are
prohibited on direct examination. A leading question is one
which suggests the answer--no or yes. Rationale: the
situation under a leading question is one where the attorney
is testifying instead of the witness, and the attorney is not
Leading questions are allowed on cross-examination: (a)
when we call as our own witness someone from the other side:
(b) when own witness becomes hostile: and (c) when necessary
to develop testimony under two areas: youngsters and refresh
General rule: leading questions are not allowed on
direct examination unless there's an unfriendly witness or
unless it is necessary.
Refreshing recollection: if witness goes blank we can
ask leading questions only up to the point necessary to
refresh the witness' recollection.
Two other ways to prep the witness: Present
recollection refreshed and past recollection recorded. These
two things are on the MBE every year.
Present recollection refreshed. General rule: anything
can be used to refresh the recollection of the witness. You
could use a pepperoni pizza if that would help. But most
attorneys don't want to use the pizza; they want to use the
exact document containing all the information we want him to
recall. Note: none of the objections to documents
applicable here! The document can only be used for the
limited purpose of refreshing the recollection of the
However, if a writing is being used to refresh
recollection, we must make it available to the opposing
1) Get copy
2) Can cross examinine on it
3) She can enter it into evidence if she wants (FRE
Past recollection recorded. Witness: "I read the
document, but...", or "I really don't have any independent
1) Insufficient recollection of event to enable the
witness to testify
2) He once had full knowledge of the event
3) The writing was made or adopted by him. Note:
Courts are very liberal on adopted.
4) Witness believed the statement was true when he
wrote it or adopted it. Note: Writing itself doesn't go to
jury--the witness only reads it. Any time we introduce the
document into evidence it goes to the jury, not here,
The opinion rule. FRE 701. The objection really could
be based on two parts:
1) Witness has/had no first hand observation. This
could be sustained.
2) Witness does have above--but witness is testifying
with a conclusion. Still, it can come in so long as the
trial judge finds that it helped.
General rule: Assuming perception, the opinion can be
given if it is helpful within the trial judge's discretion.
1) Handwriting (opinion)--familiarity
2) Voice (opinion)
4) Speed of vehicle
5) Appearance of person (witness tired)
Old common law: opinions out if they go to the ultimate
issue of the case. This has been specifically rejected by
1) On what subject matter is expert witness available?
2) Assuming appropriate subject matter, how do you
3) On what facts must the expert base the opinion on?
FRE 702 Subject matter: Scientific, technical and other
specialized knowledge to help the trier of fact. General
rule: we need specialized knowledge that will assist the
jury. Limitation: under the new rule, expert on the
ultimate issue may not give opinion in crimial case if
defendant had mens rea for crime or was insane.
2) Qualifications: knowledge, skill, training or
education. Experience. One likely to be tested on--no
formal education is necessary. The informer can give
3) On what facts must the expert base his opinion? The
tension is between the traditional view v. the FRE (more
liberal). Traditional view is that:
a) the witness observed the facts;
b) facts made known to him for first time at trial
(hypothetical--based on evidence already heard at
trial). The hypo is now criticized.
Minor change under the FRE. Based on information
received from any source provided it is the kind of
information reasonably relied on by experts in that field.
General rule: Traditional rule--expert opinion must be
based on: 1) person's knowledge; or 2) facts in evidence.
FRE adds 3) facts/data relied on by the experts in that
field, even if the facts are inadmissible evidence.
Cross-examination of an expert. Expert gets no special
treatment but there are special techniques used which are
allowed: 1) how much he's been paid; 2) how often the
expert testifies on the same side of the issue; 3) altering
the hypothetical; and 4) delving deeply into his basis for
Cross-examination of witnesses. Note: impeachment
covers a great deal of the multistate examination.
1) Right to cross-examine
2) Scope of cross-examination
3) Collateral matters doctrine
General principles of cross-examination.
1) Right to cross-examination. The party has an
absolute right to some cross-examination of any witness who
has testified live. General rule: every party has the right
to an adequate opportunity for meaningful cross-examination.
2) Scope = anything the witness has testified to on
direct plus anything going to the ultimate issue of the
lawsuit. Basic rule: the scope is matters on direct
examination plus anything that could serve to impeach the
witness. FRE: if outside scope of direct examination, the
trial judge has the discretion to allow deviation if will
allow more orderly presentation.
3) Collateral matter doctrine. If witness lies on
something unrelated on direct we can cross-examine him about
it. But we cannot present any other evidence to prove he's
lying. Can't impeach with extrinsic evidence on a collateral
matter. But watch out, they like to be tricky here.
Questions could be OK for some other reason--namely bias.
Bias is never considered collateral.
Impeachment. Five ways to check/countering credibility
1) Prior inconsistent statements
3) Prior convictions
4) Prior bad acts
5) Reputation for truthfulness
Two techniques for bolstering your witness:
1) You can't bolster credibility of own witness until
the credibility had been attacked on cross-examination.
2) Having witness repeat story told friends. This is
bolstering but probably hearsay.
Question: can you impeach your own witness? Answer:
C/L rule--can't unless surprised and damaged. FRE says that
the credibility of a witness may be attacked by any party, so
C/L rule is now wrong.
Impeachment of adversary witness: (this is the second
major area for the exam--exclusion is first, hearsay is
Credibility attacks--five attacks, of which the first
two are important issues.
1) Can counsel introduce exclusive evidence or must we
settle for answer of witness under attack.
2) If evidence is admissible, you must ask witness
you're impeaching about it before you bring it in. Different
with respect to each different techniques.
1) Prior inconsistent statements. Either in writing or
oral. Prior statements to the police, for example. Rational:
when should we believe this witness? Not credible... The
witness can be asked about any statement he testified to on
direct examination even if minor.
Can expert evidence be introduced? Yes, as long as
inconsistency is not collateral or minor. On the multi-state
the statement will not be collateral, it will go to the heart
of the primary issue in the case. Must the witness be given
the opportunity to explain before expert evidence is allowed?
FRE 613 still requires the opportunity to comment. Also
under FRE 613, the judge can dispense with comment completely
when interest of justice requires.
A favorite bar question: what is the evidentiary use
the jury can make of prior inconsistent statements? Can they
use it to prove facts or only as evidence that the witness is
a liar? The traditional view is that prior inconsistent
statements are hearsay if offered in evidence to prove
contents, therefore they cannot be used to prove facts, only
to cast doubt on the credibility of the witness. The FRE
allows it to be used as non-hearsay substantive evidence only
if given under oath (as before a grand jury).
2) Bias. If for any reason a witness may prefer one
side over the other the jury should be allowed to consider
this in the weight they give to the witness' testimony. Does
the evidence supply any reason why that witness might be
inclined to favor one side? If so, then jury should
consider. The attorney can resort to extrinsic evidence to
show bias. Most courts require a foundation. The FRE is
3) Prior conviction of a crime. Any witness can be
attacked by this method. What about prior crimes rule with
respect to defendant's general bad character?--MIMIC rule.
However, if defendant decides to testify he can be impeached
the same way any other witness can be impeached. Look to the
purpose of the evidence: bad character of defendant? No.
MIMIC behavior? Yes. Impeach witness? Yes.
a) Any criminal conviction for a felony or a
misdemeanor involving dishonesty or false statement
can be used to impeach a witness.
b) Any other felony can be used if the judge
determines the probative value outweighs the
Can use expert evidence; federal rules say that only a
certified copy of cerificate of conviction from state where
the crime took place is good evidence.
Don't have to ask the witness about it before
testifying; however, in practice, this is always done.
4) Prior bad acts. Specific acts of misconduct of
witness which reflects on his truthfulness but didn't result
in a conviction. FRE allows this to be introduced as
evidence, other jurisdictions do not allow. The inquiry is
limited to cross-examination; if the witness denies the
allegation, the attorney cannot bring in expert evidence.
"Bound by the answer of the witness." Any other inquiry
would be deemed collateral. Two rules operate to protect the
a) Must have a good faith basis for the prior bad
act. This is up to the discretion of the trial
b) The prior bad act must bear on the truthfulness
of the witness.
So the general rule is: the act must bear on the
truthfulness of the witness; there must be a good faith basis
for the questioning; and the witness is bound by the answer.
5) Bad reputation for truthfulness. Expert evidence is
allowed because this is the only way to show a bad
reputation. The FRE also allows the witness to give his own
opinion of his truthfulness.
Rehabilitation. The attorney cannot rehabilitate the
witness unless or until the witness has been impeached. The
explanation of the person just impeached is always allowed.
A favorite bar issue: the use of prior consistent statement
to rehabilitate impeachment by prior inconsistent statement.
The FRE disallows prior consistent statements in
rehabilitation for two reasons:
a) Too time consuming
b) Would encourage collection of consistent
statements of their witnesses (the evidence is too
So the general rule is that you cannot use prior
consistent statements to bolster or rehabilitate a witness
with one major exception:
When witness is impeached with evidence to show that
trial testimony is recent falsification or fabrication, and a
motive to falsify has arisen since the event, then prior
consistent statements can be used provided the statements
wwere given before alleged motive arose.
Privilege. Usually easy questions. FRE has no specific
rules on privilege--to be developed by federal courts,
therefore usually basic. Two privileges have gotten in:
a) Attorney-client privilege:
--It applies when seeking legal services even
before the attorney accepts the case.
--It applies to confidential communications to
--It doesn't apply to legal advice for future
b) Husband-wife privilege:
--In a criminal case a spouse cannot be forced
to testify against the spouse (the spouse may
still testify if she wants to).
--In any case (civil or criminal) the spouse may
refuse to disclose or keep spouse from
disclosing confidential communications between
spouses during marriage.
GO TO EVIDENCE.TWO