RELEVANCE control, or feasibility of precautionary measures,  Evidence that party was or was not covered by  Allows the admission
was not covered by  Allows the admission of extrinsic proof
401 – Definition of Relevance
 Relevant evidence means evidence having any
tendency to make the existence of any fact of
consequence to determination of the action more
or less probable then w/out the evidence
403 – Exclusion of Relevant Evidence
 Evidence must be excluded if its probative value
is substantially outweighed by the evidence’s
 Danger of unfair prejudice
 Confusion of issues
 Misleading the jury
 Undue delay / waste of time
 Presentation of cumulative evidence
 *rule is favor of admissibility →
 → Will a Limiting Instruction work?
 → Are there Alternate means of proof available
104 – Preliminary Questions
 (a) Court must decide on preliminary questions
about whether a witness is qualified, a privilege
exists, or evidence is admissible. In so deciding,
court is not bound by evidence rules except
those on privilege.
 (b) Relevance That Depends on a Fact: When
the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient
to support a finding that the fact does exist. The
court may admit the proposed evidence on the
condition that the proof be introduced later.
 (a) cuts the jury out, (b) cuts the judge out
 Judge cannot rule based on credibility—
purely for jury decide if a witness is credible
105 – Limited Admissibility
 When evidence is admissible for a single party
or purpose and it is admitted, the court, upon
request shall instruct the jury to limit
consideration of the evidence only to its proper
scope
o You have to request this
RELEVANT, BUT INADMISSIBLE
407 – Subsequent Remedial Measures (pure policy
rule)
 When measures are taken that would have made
an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not
admissible to prove negligence, culpable
conduct, defect in product or design, or a need
for warning or instruction
 Measures taken before the accident are
admissible – only protecting measures taken
post-accident
 Admissible for impeachment such as (not
exclusive)(if disputed) proving ownership,
subject to a 403 evaluation liability insurance is not admissible to prove 406 – Habit; Routine Practice
408 – Compromise & Offers to Compromise whether the person acted negligently or  Evidence of habit or routine practice will be
 Evidence of the following is not admissible (for otherwise wrongfully admissible to prove conformity therewith
either party) to prove / disprove the validity or  Admissible for ownership (why insure it if you  Allowed to establish by reputation/opinion or
amount of a disputed claim (must be a dispute) don’t own it?), agency, control, or proving specific instances sufficient to establish conduct
or to impeach by a prior inconsistent statement witness bias or prejudice  Judge must be persuaded that the conduct in
or a contradiction:  Applies only to liability; no other insurance question is virtually automatic and has been
 (1) Furnishing, promising, or offering—or  Moss says that even raising liability insurance in repeated many times in the past
accepting, promising to accept, or offering to a trial will result in an immediate mistrial  → Regular Response to Specific Situation
accept—a valuable consideration in
 Advisory Committee notes indicate the
compromising or attempting to compromise the CHARACTER & CREDIBILITY
drunkenness and fighting are not acceptable
claim
under 406 as habit
 (2) Conduct or a statement made during
404(A) – Character Generally 412 –Rape Shield Laws (Texas version of 412
compromise negotiations about the claim—
 Character is not admissible to prove action in applies only to civil cases)
except when offered in a criminal case and when
conformity therewith — NO PROPENSITY  Character evidence concerning the victims
the negotiations related to a claim by a public
USE sexual disposition is never admissible – trumps
office in the exercise of its regulatory,
404(a)(1) – Character of Accused 404(a)
investigative, or enforcement authority
 Does not apply in civil cases  Character evidence usually allows no specific
 Exceptions: The court may admit this evidence
 Can offer evidence of a pertinent trait of instances, but 412 exceptions only allows
for another purpose, such as proving a witness’s
character, but NOT admissible to prove specific instances
bias or prejudice, negating a contention of undue
conformity therewith  Criminal cases Character evidence proved
delay, or proving an effort to obstruct a criminal
 Once the door is open the prosecution may under 405(b) is admissible to prove :
investigation or prosecution.
introduce evidence to rebut that trait of character  A person other than the accused was the
 Shields evidence about settlements or offered
404(a)(2) – Character of Alleged Victim source of physical evidence (she had sex
settlements and evidence about conduct or
 Does not apply to civil cases with someone else prior)
statements and admissions made in
 Reputation or Opinion evidence concerning a  To prove specific instances of sexual
compromise negotiations
pertinent trait of character of the victim behavior between D and victim to establish
 Must be in course of settlement negotiations, if
 Prosecution may respond to rebut the same once consent (she and D had sex a lot
they do not know they are in negotiations then it
door is opened or introduce evidence of D consensually)
is not protected
having same trait of character, @ end of (a)(1)  Civil Cases – Sexual predisposition never
 Does not bar evidence that is otherwise
 In homicide case D claim victim is 1st aggressor, admissible; other evidence admissible as above
obtainable through discovery, even if idea to
prosecution may introduce evidence of if the probative value substantially outweighs
pursue it is spawned in settlement
peacefulness of victim or against D danger of harm to victim or unfair prejudice to
 Cannot immunize information from trial merely
404(a)(3) – Character of Witness any party; Evidence of alleged victim’s
by bringing it up in settlement
 Available in Civil & Criminal trials reputation admissible only if placed in
 Admissible for other purposes subject to 403
 Addressed in 607, 608, 609 controversy by the victim (“I’m not that kind of
 Statements are admissible to prove bias; witness
404(b) – Other Crimes or Acts girl”)(Reverse 403 balancing)(favors
already settled and now testifies for D.
 Not admissible to prove criminal disposition or exclusion over admission) – FINAL – double-
409 - Offer of Payment Medical Expenses
propensity check on exam what test he puts in
 Evidence of furnishing, promising to pay, or
 Admissible to prove (not exclusive): Motive, 413 – Evidence of Similar Crimes – Sexual Assault
offering to pay medical, hospital, or similar
malice, opportunity, intent, preparation, plan,  Admissible (even in prosecutor’s case in chief)
expenses resulting from an injury is not
knowledge, identity, absence of mistake, guilty  Prosecution must disclose its intent to use the
admissible to prove liability for the injury.
state of mind. conviction 15 days before trial or on good cause
 Includes transportation to hospital
 Requires notice be given of general nature of 414 – Evidence of Similar Crimes – Child
 Protection of 409 does not extend to actions or
extrinsic acts sought to be introduced pre-trial Molestation
statements not directly involved in the
→ criminal trials only  Admissible (even in prosecutor’s case in chief)
furnishing of medical care or expenses
 Prosecution must disclose its intent to use the
 Admissible for other issues subject to 403  →Must establish reasonable belief the acts
conviction 15 days before trial or on good cause
410- Inadmissibility of Pleas & Related Discourse
actually occurred prior to introduction. 415 – Civil Cases Concerning Child Molestation or
 All statements made in plea bargaining sessions
 Statute of limitations is not a bar to introduction Sexual Abuse
or related to plea bargaining made to
405 –Methods of Proving Character  Civil case with claim for damages predicated on
PROSECUTORS ONLY will not be
 Only if character evidence is admissible under the alleged act → Evidence of prior similar
admissible
404 do you apply 405
 Nolo contendere — like a guilty plea but can’t crimes → Admissible
405(a) – Reputation or Opinion
be used against the person in a civil suit
 Reputation or Opinion testimony will always be
 Rule of Completeness 106 – if another part of
admissible if allowed to come in under 404.
the statement is admissible and to understand it,
405(b) – Specific Instances of Conduct
it is necessary to admit this part then it will be
 Only admissible when character trait is an
admitted
essential element of the claim or defense
 Admissible for prosecutions concerning perjury
 Also allowed under cross examination in a
 Breaking a plea deal renders it all admissible
limited way — 607, 608
411 – Liability Insurance

IMPEACHMENT
607 – Who May Impeach
 Credibility of the witness may be attacked by
any party, including the party who called the
witness
 May not call a witness solely to impeach, if your
purpose is to proffer otherwise inadmissible
evidence.
608(a) – Character & Conduct of Witness –
Reputation and Opinion
 Evidence of witnesses character for truth &
veracity only
 Evidence of truthful character is admissible only
after character for truthfulness has been attacked
608(b) – Character & Conduct of Witness –
Specific Instances of Conduct
 Probative Specific Instances concerning the
witness’ truthfulness or veracity can be probed
on cross-examination → no extrinsic evidence is
permitted; must stick with witness’ answer
 May also question a “character” witness on
cross-examination with specific instance of
conduct concerning the testifying witness’
character for truth and veracity
 EXTRINSIC EVIDENCE IS
PERMITTED ON CROSS TO PROVE:
BIAS, INTEREST, PREJUDICE, OR
CORRUPTION
609 – Impeachment by Evidence of Conviction
 609 (a) – 609(a)(1) Felony or 609(a)(2) any
crime involving dishonest or false statement
 609(a)(1)(B) is REVERSE 403 BALANCING
 Evidence of felony conviction not related to
truth or dishonesty are subject to 403
 Accused → probative value outweighing
prejudicial effect → Applies to defendant
 → Other Witness; prejudice substantially
outweighs probative value
 609(B) – not admissible if 10 years since the
conviction or release from confinement
 could be allowed if probative value
substantially outweighs prejudicial effect
(REVERSE 403)
 But more then 10 years old only admissible
if proponent gives adverse party advance
notice
 609(b) does not apply to 609(a)(2) crimes
613 – Prior Statement of Witnesses
 May question witness concerning prior
statement inconsistent w/ testimony, and
proponent does not need to disclose to the
witness
 EXTRINSIC EVIDENCE OF
INCONSISTENT PRIOR STATEMENT
WILL ONLY BE ADMISSIBLE IF
WITNESS IS AFFORDED AN
OPPORTUNITY TO EXPLAIN OR DENY
THE STATEMENT
 The admissibility is 401/403 question for
determination by the court there is not set rule
 Collateral extrinsic evidence is only permitted
on cross-examination
 Prior Consistent Statements → are admissible
when inferences of improper motive or perjury
have been suggested.
Impeachment by Contradiction
 Collateral Extrinsic Evidence is not permitted.
 Extrinsic Evidence of contradiction will only be
admissible is it relevant to the trial regardless of
its impeachment use.
 Impeachment by Contradiction → can be done
with Collateral Evidence subject to limitations
of 608.
EXPERT EVIDENCE
701 – Opinion Testimony by Lay Witness
 Opinions must be rationally based, helpful to
clear understanding, not based on knowledge
w/in scope of 702.
 Competency rules apply
702 – Testimony by Experts
 Assist the trier of fact to understand the
evidence or to determine a fact in issue.
 Experts can have scientific, technical, or other
specialized knowledge
 Expert by: knowledge, skill experience,
education, training, or otherwise
 If (1) the testimony is based upon sufficient
facts and data, (2) the testimony is the product
of reliable principles and Methods, and (3) the
witness has applied the principles and methods
reliably to the facts of the case
 Anything admissible under 702 has to go
through Daubert, but relaxed application for
non-scientific experts
 Daubert Factors:
 Theory been tested
 Peer review
 Error rate know & applied
 Degree of acceptance
 Trial court has wide discretion to determine who
is an expert and when testimony is admissible
703 – Bases of Opinion Testimony by Experts
 The facts or data relied upon by expert in
formulating his opinion do not need to be
admissible in evidence if they are of the type
reasonably relied on by experts in that field
when forming opinions
 Inadmissible facts or data used to form an
opinion should only be revealed to the jury if the
court decides the probative value in assisting
the jury to evaluate the expert substantially
outweighs their prejudicial effect — reverse
403
 If judge determines that the information relied
upon by the expert is incorrect, he may exclude
the evidence even if the type reasonably relied
upon. It would not assist the trier of fact under
702.
704 – Opinion on Ultimate Issue
 Experts may testify to an opinion concerning an
ultimate issue in the case except in one
circumstance
 Expert’s may not testify to the mental state or
condition of a Δ in a criminal case with an
opinion on the ultimate issue
705 – Disclosure of Facts Underlying Opinion
 Experts can proffer their opinion and inferences
w/out revealing the underlying data or facts,
however they may be questioned on cross-
examination
WITNESS COMPETENCY
103 – Rulings on Evidence
 Error for Appeal must effect a substantial right
of the effected party.
 Requires a timely objection on specific grounds
o Or objection is waived
104 – Preliminary Questions
 Judge makes all determinations concerning the
admissibility of evidence and legal questions
concerning objections and rules of evidence
 Jury decides conditional relevancy points
601 – General Rule of Competency
 Every person is competent to be a witness
except as otherwise provided
 Insanity at time of event or trial
 Children w/out sufficient intellectual capacity to
relate transaction – ability to understand events
and vulnerability to adult suggestion – 401/403
argument
 Testator’s oral statements not allowed, unless
corroborated or called by adverse party
602 – Lack of Personal Knowledge
 May not testify to a matter unless evidence is
introduced sufficient to support that the witness
has personal knowledge.
 Witness must have perceived something
relevant to the case at hand.
 Can be proved by witness’ own statements
 Does not address how witness obtained
knowledge.
603 – Oath or Affirmation
610 – Religious Beliefs or Opinions
 Not admissible for purposes of showing that by
virtue of religion they are more or less
reliable/credible
605 – Judge Cannot be Witness
606 – Juror Cannot be Witness
 Except testifying to outside influences on the
jury.
607 see Impeachment
608 “ unnecessary to authenticate a writing unless
611 – Mode & Order of Interrogation
 Closed end, narrative questions allowed all the
time
 Argumentative & Leading questions allowed
only on cross-examination and hostile witnesses
or adverse parties
 Scope of Cross-examination → is limited to the
subject matter of direct examination and matter
effecting the credibility of the witness →608(b)
612 – Writing used to Refresh Memory
 After viewing writing the witness’ memory gap
disappears – the writing does not need to be
admissible b/c testimony is evidence not writing
 Can inquire about writing on cross and
introduce portions if desired. (adverse party)
EXHIBITS & AUTHENTICATION
901 – Requirement of Authentication
 Generally – requires authentication or
identification as a condition precedent to
admissibility is evidences sufficient to support
that the evidence is what it purports to be.
 901(b)(1) Testimony of Witness w/ Knowledge
 901(b)(2) Non-Expert Opinion on Handwriting
– based on familiarity not acquired for litigation
 901(b)(3) Comparison by Trier of F or Expert W
– comparing handwritten to authenticated pieces
of writing
 901(b)(4) Distinctive Characteristics – only one
who knew, medallion fitting together
 901(b)(5) Voice Identification – can testify that
mechanical recording is voice of party, cannot
base voice identification on the voice IDing
himself
 901(b)(6) Telephone Conversations – by bill
with registered number from phone company
 901(b)(8) Ancient documents – 20 years
 901(b)(9) Process or system – computer
generated documents
 The judge determines whether there is some
evidence from which the jury could reasonably
find that the item is what it is claimed to be.
The jury decides if the evidence is actually what
is claims to be
902 – Self Authentication
 No extrinsic proof of authenticity required for
admission
 Domestic public Records under Seal
 Domestic public records not under seal
 Foreign Public Documents
 Certified Copies of Public Records
 Official Publications
 Newspapers & Periodicals
 Trade Inscriptions
 Acknowledged Documents
 Commercial Paper & Related Documents
903 – Subscribing Witness Testimony Unnecessary
 Testimony of a subscribing witness is
required by the laws of jurisdiction whose laws
govern the validity of the writing
1002 – Requirement of Original
 To prove the content of a writing, recording, or
photograph, the original is required
  If witness has knowledge about the reality and
does not depend on the document, record, photo
for her testimony → She is testifying to
personal knowledge and the original is not of
consequence.
 If a party seeks to introduce testimony
specifically about what an item shows or says →
then the original must be produced or somehow
authenticated w/in the rules
1001 – Definitions
 1001(3) Original – the actual writing recording
or photo. Photo original negatives and any print
there from. All computer printouts are originals.
Counterparts are originals
 1001(4) Duplicates – counterpart produced by
same impression
 Best evidence rule applies whenever writing,
record, or photo is necessary to or is used to
prove an element of the case, if only incidental
the best evidence rule does not apply. (1004)
1003 – Admissibility of Duplicate
 Admissibility of Duplicates – a duplicate is
admissible to same extent as the original, unless
a genuine question as to authenticity of original
has been raised. And unfair to not require the
original
1004 – Admissibility of Other Evidence of Content
 Original is not required and other evidence of
the content is admissible if:
 Originals lost or destroyed, but not in bad faith
 Originals are not obtainable through the judicial
process or procedure
 Originals are in possession of opponent who had
notice and failed to produce them
 Collateral Matters – the writing is closely
related to a controlling issue
1006 – Summaries
 Contents of voluminous writings, photos,
recordings may be summarized for the court
BURDENS OF PROOF – SHORTCUTS
TO PROOF
301 – Presumptions
 Presumption require the party against whom it is
directed the burden to produce some evidence to
rebut or meet the presumption, but does not shift
any burden of persuasion or proof; which
remains throughout the trial on whom it was
originally cast
201 – Judicial Notice of Adjudicative Facts
 Only cover Adjudicative (rule upon judicially)
facts: those which normally go to the jury.
 Facts not subject to reasonable dispute:
generally known territorially or capable of
accurate and ready determination by resort to
sources whose accuracy cannot be questioned
 A court can take notice: by request or its own
action
 A party is entitled to a timely hearing to
question the taking of notice on a disputed fact
 Jury will take as undisputed in civil cases, not
required to do so in criminal cases.
HEARSAY – BASIC RULE
Testimonial Infirmities
 Perception
 Memory
 Sincerity
 Narration/clarity
801(c) – Hearsay
 Hearsay is a statement, other than one made
while the declarant is testifying at trial or
hearing, offered in evidence to prove the truth of
the matter asserted
 801(a) Statement – an oral or written assertion
or non-verbal conduct of a person intended by
the person as an assertion
 nothing is an assertion, unless intended to
be one
 If statement is introduced for a reason other than
to prove the truth of the matter asserted, no
hearsay issue
 No hearsay issue – if statement introduced to
prove notice or awareness
 Independent Legal Significance/Legally
Operative Conduct – No Hearsay Problem
 “I accept your offer” in Contract Case
 “I do” at a wedding
 Assertions of Gifts
 State of Mind - the fact the statement is made is
not to prove its truth but to show the state of
mind. Not offered to prove external reality →
NO Hearsay Actions speak louder than words.
 Impeachment – not hearsay
 Effect on hearer (listener)
 Machine Exception – machine not declarants so
photos, readouts, videotapes; are not hearsay
801(d) – STATMENT NOT HEARSAY
801(d)(1) – Prior Statement by Witness
 Witness must be on the stand and subject to
cross-examination
 Prior Inconsistent Statement
 Made out of court
 Prior to testifying
 Conflicts w/ testimony
 Prior Inconsistent Statements made under oath
are admissible as proof of what it asserts
 Consistent testimony to rebut accusations of
fabrication or improper motive are admissible as
long as the statement sought to be introduced
was made before the witness would have motive
to falsify his testimony — not hearsay so can be
admitted for truth
 801(d)(1)(C) → Identifications out of court
are admissible
801(d)(2) – Admission by Party Opponent
 Must proffered against the party who made the
statement.
 An exception to the general rule that witness
must testify from personal knowledge (via
adoption, belief).
 801(d)(2)(A) – personal admission – is party
said it, its in. Admission by silence requires:
(1) party heard and understood the statement;
(2) party was able to reply; (3) a reasonable
person would have responded.
 801(d)(2)(B) – adoptive admission – manifestly
adopted or asserted belief in its truth. Silence is
adoptive admission
 801(d)(2)(C) – Authorized admission – made by
a party authorized (context matters a lot) to
represent the party
 801(d)(2)(D) – Vicarious Admission – a
 Does not have to be made by injured person, could
statement by the party’s agent or employee →
relevant to agency or employment & while in
the scope of agency or employment
 801(d)(2)(E) – Coconspirator – during course
and in furtherance of the conspiracy statements
are excluded from the Hearsay Rule
803 HEARSAY EXCEPTIONS:
DECLARANT’S AVAILABILITY
IMMATERIAL
803(1) – Present Sense Impression
 A statement describing or explaining an event or
condition made while declarant was perceiving
the event or immediately after
 Statement must be contemporaneous w/ event
 WATCH OUT FOR PAST TENSE
STATEMENTS
 Must be made by one who perceived the event
 Must describe or explain only this event
 Can be an opinion of what declarant perceived
803(2) – Excited Utterance
 Statement relating to a startling event or
condition while the declarant was under the
stress of excitement caused by the event
 Must be startling event
 Can be used to corroborate the event actually
happening
 Must still be under stress from event, or later
“triggered”
 More liberal relation to event – does not have to
be specifically related to startling event
803(3) – Then-Existing Mental, Emotional, or
Physical Condition
 Statement of existing state of mind, but not
statement of memory or belief to prove fact
remembered → not backwards looking (even
part of the sentence…certain parts can be OK
and others notpage 311, problem 6)
 “I am going to …” statements & then did go
there
 State of mind is not hearsay – not offered to
prove external reality → doesn’t go past 801(c)
 Statements of intent to do something or go
somewhere (Hillmon) of declarant only
(Pheaster)
 Forward looking statements OK
 Backward are not allowed
803(4) – Statements for Medical
Diagnosis/Treatment
 For treatment or medical history, past or present
symptoms, pain, sensations, general character
and cause of above reasonably pertinent to
diagnosis & treatment
 Not necessary to expect treatment—diagnosis
alone works
 Statement to any person who may reasonably
provide treatment or diagnosis
be made for them
803(5) – Recorded Recollection
 Must be made at the time of the event by the
witness when the memory was fresh
 Record or memorandum concerning a matter of
which the witness once had knowledge but now
has insufficient recollection to testify; if the
record was made by or adopted by the witness
when the matter was fresh in his mind it may be
read into the record.
 Can be exhibit only if offered by an adverse
party
803(6) – Records of Regularly Conducted Activity
 Business or not purely personal
 Records kept as regularly conduct activity
 Regular practice
 Made at or near the time of event
 By or from custodian of the records or other
qualified witness
 Johnson v. Lutz — each person in the
report chain must have had a duty to make a
report or must fall under hearsay exception
o So a police report with
eyewitness statements — each
witnesses statement must fall
under hearsay exemption
803(7) – Absence of Entry in Regularly Kept
Records
 803(6) – absence of entry can be used to prove
its non-occurrence
803(8) – Public Records or Reports
 Activities of Public Office/internal →
Admissible by all parties in both civil &
criminal
 Matters observed pursuant to a legal duty by
NON-Law enforcement personnel →
Admissible by all in both criminal & civil
 Findings From Official investigations →
Admissible in all civil cases, and only
admissible for D in criminal cases
 Matters Observed & Reported pursuant to legal
duty – Law Enforcement Personnel →
 admissible in civil but not admissible in  Forfeit your right to object on hearsay grounds if
criminal cases. wrongdoing to procure unavailability of
declarant
806 – Attacking & Supporting Credibility of
Declarant
 Impeach witness as if he were the declarant
 If party against whom the hearsay statement is
804 HEARSAY EXCEPTIONS (rule admitted calls the declarant they may examine
as if it is cross examination.
does not apply): DECLARANT
807 – Residual Exception
MUST BE UNAVAILABLE
RELATIONAL PRVILEGES
804(a) – Unavailability
 804(a)(1) – privilege
HUSBAND/WIFE
 804(a)(2) – contempt – witness available but
 Criminal trial defendant has right to keep spouse
chooses not to come
from testifying
 804(a)(3) – Lack of Memory – cannot remember
 Privilege to keep spouse from disclosing
despite refresh / recorded recollection fits here
confidential marital communications
 804(a)(4) – death or physical infirmity
 Lost if made before 3rd parties
 804(a)(5) – if a party offer evidence of under
 Eavesdropper could testify
2,3,4 the party must first attempt to procure
ATTORNEY/CLEINT
testimony through other methods;
 Confidentiality of communications if made in
 Best effort standard for 804(a)(5)
[804(b)(1) raises Confrontation Clause problems] the context of client →lawyer relationship
804(b)(1) – Former Testimony o Rendition of legal services
 Testimony at a prior hearing  3rd party presence may destroy confidentiality
 Party against whom the testimony is offered had  Except disputes b/w clients, attorneys,
an opportunity and similar motive to develop  Client waives privilege by testifying
testimony and cross-examine  Work product
 No grand jury — no opportunity for cross PATIENT→PHYSICIAN (PSYCHOTHERAP’T)
 Witness should be under-oath
 No health information can be disclosed
 Analyze each issue and party
 Does not apply to malpractice cases nor
 Motive – party had adequate reason in earlier
preparation for litigation
action to examine the witness thoroughly
 3rd party destroys confidentiality and privilege
 Opportunity - had right to examine,
 can be waived by testifying to conversations
examination did not have to occur-- only right
SELF-INCRIMNATING TESTIMONY
matters
 5th amendment – criminal defendant may refuse
804(b)(2) – Dying Declarations
to testify, witness may refuse specific questions
 Statement made under belief of impending death
only.
 Limited to the cause or circumstances of what
 Protects an individual from being compelled to
declarant believed to be impending death
give incriminating testimony, such as their
 Declarant does not actually have to die
thoughts, recollections, intentions or actions.
804(b)(3) – Statement Against Interest
 Jury cannot draw inferences from defendant’s
 Statement contrary to the declarant’s pecuniary,
silence.
proprietary, or penal interest or that so far
COMMUNICATIONS TO CLERGYMEN
tended to subject the declarant to civil or
 Only person can waive privilege
criminal liability or renders a claim invalid
 All confidential communication with clergy,
against another
apply even if not about religion
 Reasonable person in declarants position would
not have made this unless it was true
 Statements made to exculpate another of
liability will not be admissible w/out
corroboration to indicate trustworthiness
 Introduced by any party
 Against any party
804(b)(4) – Statement of Personal or Family
History
 Allowed regardless of personal knowledge
804(b)(6) – Forfeiture by Wrongdoing
 A statement offered against a party that has
engaged in wrongdoing that was intended to,
and did, procure the unavailability of the
declarant as witness