Evidence in a Nutshell

by Rothstein, Paul F.; Raeder, Myrna S.; Crump, David

• ISBN13: 9780314260987
• ISBN10: 0314260986
• Edition: 4th
• Format: Paperback
• Copyright: 2003-10-01
• Publisher: West Academic

Summary

Federal rules of evidence are the anchor of this single-volume Nutshell. The text summarizes significant U.S. Supreme Court decisions, additional leading cases, and principal schools of evidentiary thought. Expert coverage includes practical implementation of the rules at trial or their connection to pre-trial or post-trial proceedings. Areas of interdisciplinary cross-pollination are noted as well.

Table of Contents

Preface	iii
Table of Cases	xxvii
Interpreting the Rules and Other Basics: Offers, Objections, and the Judge's Function	1	(39)
From Common Law to Codification: How the Rules are Interpreted	1	(8)
The Sources of Evidence Law, From Common Law to F.R.E. 101	1	(1)
Evidentiary Policies in a Jury Trial System: The Common Law and F.R.E 102	2	(3)
The Policies Favoring Admissibility and Discretion in the F.R.E.	5	(2)
Advantages and Disadvantages of a Discretion-Based Codification	7	(2)
Offers, Objections, and Instructions	9	(8)
The Necessity for Requesting Action by the Trial Judge: F.R.E. 103	9	(4)
Curative and Cautionary Instructions to the Jury: Common Law and F.R.E. 105	13	(4)
Preliminary Questions of Fact and Conditional Relevancy	17	(11)
Preliminary Questions of Fact and F.R.E. 104 (a): The Judge's Evidentiary Findings	17	(7)
``Conditional Relevancy'' and F.R.E. 104(b): Preserving Jury Decisionmaking When the Relevancy of One Piece of Evidence Depends on Another	24	(4)
Role of Rules Beyond Exclusion of Pieces of Evidence From Juries: Non-Jury & Administrative Trials; Appeals; Judge & Attorney Comment	28	(12)
Non-Jury Trials and Administrative Hearings	28	(2)
Harmless Error and Abuse of Discretion	30	(3)
Judicial Comment on Weight of Evidence	33	(2)
Argument by Attorneys to the Jury	35	(5)
Judicial Notice, Presumptions, and Burdens: Substitutes for Evidence	40	(18)
Judicial Notice	40	(4)
``Adjudicative'' Facts under F.R.E. 201	40	(2)
``Legislative'' and ``Evaluative'' Facts	42	(2)
Burdens of Proof	44	(3)
The Burdens of Pleading, Production, and Persuasion	44	(1)
The Burden of Production	45	(1)
The Burden of Persuasion	46	(1)
Presumptions	47	(11)
Mandatory and Permissive Presumptions	47	(2)
Criminal Presumptions and Their Restriction by the Constitution	49	(3)
Evidence Rebutting the Presumed Fact: What Effect?	52	(3)
Presumptions Under the Federal Rules: F.R.E. 301 and 302	55	(3)
Relevancy, Its Counterweights, and Related Exclusionary Rules	58	(42)
Relevancy	58	(11)
The Definition of Relevant Evidence: F.R.E. 401	58	(3)
Relevant Evidence Is Admissible Unless There Is an Exclusionary Rule: F.R.E. 402	61	(2)
Statistical Probabilities: A Particular Problem of Relevancy	63	(6)
Counterweights to Relevance: Prejudice, Confusion, Time Consumption, Etc.	69	(16)
Prejudice: Extreme Over-Valuation or Decision on an Improper Basis	69	(6)
Other Counterweights in Addition to Prejudice	75	(3)
Individual Versus Categorical Balancing	78	(1)
F.R.E. 403 Creates an Unevenly Weighted Balancing Test, Which Is Loaded in Favor of Admissibility: Unless ``Substantially Out-weighed,'' Probative Value Supports Admissibility	78	(3)
Illustration of the Balancing: Offering Replications: Results of Experiments That Attempt to Recreate a Litigated Event or Portion Thereof; Re-enactments; Simulations; Models; Photos; Graphic Representations	81	(2)
Illustration of the Balancing (Perhaps Tempered by Extrinsic Policies): Flight, Bribery, Spoliation (the Failure to Adduce Evidence) and Other Arguable Implied Admissions	83	(2)
Exclusionary Rules for Remedial Measures, Compromise Negotiations, Withdrawn Guilty Pleas, and Insurance	85	(15)
Subsequent Remedial Measures: F.R.E. 407	85	(5)
Compromises, Settlement Negotiations, and Medical Payments: F.R.E. 408-09	90	(4)
Withdrawn Guilty Pleas and Plea Negotiations: F.R.E. 410	94	(2)
Liability Insurance: F.R.E. 411	96	(4)
A Special Relevancy vs. Counterweights Problem Area: Similar Acts, Character, Propensity	100	(77)
An Overview of the Propensity-Related Rules	100	(9)
The Theory of the Rules: Propensity Is ``Relevant'' But Sometimes Prejudicial, Misleading, Too Time Consuming, or Just Plain Not Fair	100	(5)
The Evidentiary Rules: A Road Map to F.R.E. 404-406 and Related Rules	105	(4)
Permissible Uses of Character as Substantive Circumstantial Evidence	109	(6)
Good Character, Offered at the Criminal Defendant's Option: F.R.E. 404(a)(1) and 405	109	(1)
The Defendant's Option to Offer Character Evidence on a ``Pertinent Trait'': the ``Mercy Rule'' Allowing ``Good Guy'' Evidence	109	(1)
Impeachment of Character Witnesses by ``Have You Heards''	110	(2)
The Prosecution's Rebuttal of the Defendant's Character Evidence: F.R.E. 404(a)(1)	112	(1)
Character of the Victim in Self-Defense and Other Cases: F.R.E. 404(a)(2)	113	(2)
Similar Incidents Offered for Non-Character Circumstantial Purposes	115	(17)
Intent, Identity and Other Factors as Shown by Similar Incidents: F.R.E. 404(b): ``M.O.I.P.P.K.I.A.'', the ``Other Crimes, Wrongs, or Acts'' or ``Uncharged Misconduct'' Principle	115	(3)
Plan, as Shown by Similar Incidents	118	(5)
Identity	123	(1)
Intent or Knowledge	124	(5)
Motive	129	(1)
Opportunity	130	(1)
Preparation	131	(1)
Absence of Mistake or Accident	131	(1)
Special Rules for Sexual Assaults and Related Offenses	132	(7)
The ``Rape Shield'': Common Law and F.R.E. 412	132	(5)
The Wide-Open Admissibility of Sexual Misconduct Against Sexual Offense Defendants: F.R.E. 413-415	137	(2)
Procedural Issues Raised by Similar Acts Evidence	139	(5)
The Coverage of F.R.E. 404(b)	139	(1)
The Standard of Proof for 404(b): Evidence to ``Support a Finding'': F.R.E. 104(b)	140	(2)
Acquittal as Not Excluding 404(b) Evidence	142	(2)
Character and Similar-Acts Evidence in Civil Cases	144	(2)
Similar Acts Evidence in Civil Cases: F.R.E. 404(b)	144	(1)
Substantive Use of Character-Propensity Not Allowed in Civil Cases: F.R.E. 404(a)(1) and (a)(2)	145	(1)
These Civil Case Rules Applied to Negligence Cases	145	(1)
Habit and Routine Practice: F.R.E. 406	146	(3)
Character as an ``Essential Element'' and the Like: F.R.E. 405(b) and Related Notions	149	(4)
Credibility as Affected by the Witness' Character	153	(16)
Impeachment by Opinion, Reputation, Criminal Conviction, and Bad Acts: F.R.E. 608 and 609	153	(2)
Character Impeachment by Opinion or Reputation Evidence: F.R.E. 608(a)	155	(1)
Character Impeachment by Criminal Convictions: F.R.E. 609	156	(1)
F.R.E. 609: The Current Rule	157	(3)
The Balancing Tests: A Favorable Balance for the Criminal Defendant; Rule 403 for Other Witnesses	160	(2)
Crimes of ``Dishonesty or False Statement'': The ``Automatic Admit''	162	(2)
Other Issues: Time Remoteness, Pardon, and Appealability	164	(2)
Impeachment by Non-Convicted-For Misconduct ``Probative of Untruthfulness'': F.R.E. 608(b)	166	(2)
Character or Propensity for Incredibility of Victim and Perpetrator in Sex Cases	168	(1)
Some Recurring Themes Cutting Across This Entire Propensity Chapter	169	(8)
Balancing and Instructions	169	(2)
Remedies for Introduction of Impermissible Propensity Evidence: Fighting Fire With Fire	171	(1)
Two Helpful Questions	171	(1)
The Generality/Specificity Question	172	(1)
The Question Concerning Kind of Evidence	173	(1)
Reputation, Opinion, Specific Instances: The Required Foundation	174	(1)
Specific Instances: Further Restrictions	174	(2)
Concessions, Offers to Stipulate	176	(1)
Privileges	177	(69)
Policies, Procedures, and General Principles Underlying Privileges	177	(14)
Privileges as Narrow Exceptions to Everyone's Duty to Give Evidence (Testimony, Documents, Etc.)	177	(1)
Policies Underlying Privileges	178	(5)
Common Themes Concerning Assertion and Waiver of Privilege	183	(2)
The General Concept of Confidentiality: Third Persons as an Illustration	185	(2)
The General Concept of ``Communication''	187	(2)
The Benefits of Privileges Versus Their Costs: An Unknowable Balance	189	(2)
Privileges Under The F.R.E.: State Rules or Federal Common Law	191	(7)
State Privilege Law as Applicable in Some Federal Cases	192	(2)
Evolution of a ``Common Law'' of Federal Privileges Under F.R.E. 501	194	(4)
Attorney-Client Privilege	198	(13)
Definition and Limits of Attorney-Client Privilege	198	(6)
Attorney-Client Privilege in a Corporate Setting	204	(2)
Assertion and Waiver of Attorney-Client Privilege	206	(2)
Other Common Attorney-Client Privilege Issues	208	(1)
Work Product Immunity as Distinguished From Attorney-Client Privilege	209	(2)
Refreshing Recollection With Privileged Information: The Potential for Waiver	211	(1)
Marital Privileges: Two Separate Privileges Distinguished	211	(11)
The ``Confidential Communications'' Privilege in the Marital Context	212	(4)
The ``Adverse Spousal Testimony'' Privilege (as Distinct From the Communications Privilege)	216	(3)
The Adverse Spousal Testimony Privilege: Who Holds It? Is It Really Two Privileges?	219	(3)
Physician--Patient and Psychotherapist-Patient Privileges	222	(6)
Definition of the Physician--Patient Privilege	222	(2)
Exceptions and Limits	224	(1)
Evolution or Adoption of a Psychotherapist Privilege and Its Limits	225	(3)
Other Claimed Privileges, Established or Not	228	(1)
Governmental Privileges	229	(5)
Policies Underlying Required Reports Privileges	229	(2)
Coverage and Limits of Required Report Privileges	231	(1)
Governmental Privileges for State and Military Secrets, Informers, Intra--Agency Communications, etc.	232	(2)
The Privilege Against Self Incrimination	234	(7)
Definition of the Privilege Against Self--Incrimination	234	(3)
Limits, Exceptions, and Waiver of the Privilege Against Self--Incrimination	237	(4)
Exclusionary Rules Premised on Deterrence Rationales	241	(2)
Illegally Seized Evidence	241	(1)
Evidence Obtained as a Result of Other Misconduct	241	(2)
Rules That Prevent Invocation of Privilege From Implying Guilt or Fault	243	(3)
Witnesses: Competency, Examination, and Impeachment	246	(53)
Introduction: The Order of Presentation at Trial: Examinations, Arguments, and Charge (Jury Instructions)	246	(1)
Incompetency (or Disqualification) of Witnesses	247	(6)
General Rules of Witness Competency: From Common Law to F.R.E. 601	247	(2)
``Dead Man's Rules'' Under State Law	249	(1)
The Competency of Jurors to Impeach Their Verdicts: F.R.E. 606(b)	250	(2)
The Competency of Hypnotically Refreshed Testimony	252	(1)
Impeachment: Some General Principles	253	(4)
Who Can Impeach Whom, and When?: Common Law and F.R.E. 607	254	(3)
Prior Inconsistent Statements	257	(10)
Distinguishing Impeachment by Prior Inconsistent Statements From Their Substantive Use	257	(2)
Pragmatic Inconsistency Versus Absolute Irreconcilability	259	(2)
The Common Law Predicate for a Prior Inconsistent Statement: Queen Caroline's Rule	261	(4)
The Federal Predicate for Prior Inconsistent Statements: F.R.E. 613	265	(1)
Constitutional Considerations	266	(1)
Impeachment by Contradiction	267	(3)
Constitutional Considerations	269	(1)
The ``Collateral Matter'' Rule: A Limit on Impeachment by Prior Inconsistent Statement and Contradiction	270	(3)
The Rule	270	(2)
The Exceptions	272	(1)
The ``Linchpin'' Doctrine	272	(1)
Where the Inconsistency Relates to Matters That Are Themselves Impeaching, Rather Than Substantive	272	(1)
Bias	273	(7)
The Admissibility of Bias Under the Common Law and Rule 403	273	(4)
Are There Foundation Requirements for Bias Evidence?	277	(1)
Out-of-Court Conduct or Facts Indicating Bias	277	(1)
Prior Out-of-Court Statements of the Witness Evidencing Bias	278	(2)
Character--Related Impeachment (Treated in Chapter 4): Reputation, Opinion, Convictions and Prior Bad Acts	280	(1)
Other Kinds of Impeachment	280	(2)
Support or Rehabilitation of Credibility	282	(6)
General Limits on Rehabilitation of Credibility: A Counterpart Response to the Attack	282	(1)
Prior Consistent Statements	283	(2)
Other Permissible Support of Credibility	285	(3)
Direct and Cross Examination: Procedure, Methods, Limits	288	(4)
Method of Examination of Witnesses: Leading and Non--Leading Questions and Related Matters: F.R.E. 611	288	(2)
The Scope of Cross--Examination: Common Law and F.R.E. 611	290	(2)
Witness Preparation and Refreshing of Recollection	292	(7)
Witness Preparation and Sequestration: F.R.E. 615	293	(1)
Refreshing Recollection by Means of Documents: F.R.E. 612	294	(5)
Opinions, Experts, and Scientific Evidence	299	(69)
Ordinary Witnesses: Opinion and Firsthand Knowledge	299	(5)
Lay Knowledge and Lay Opinion Under the Common Law	299	(1)
Lay Knowledge and Opinion Under F.R.E. 602 and 701: The ``Perception'' and ``Helpfulness'' Tests	300	(1)
Firsthand (Personal) Knowledge, Opinion: Relationships to Preliminary Facts Rule, Hearsay Rule	301	(1)
Lay Testimony: Very Broad Opinions	302	(2)
Expert Testimony	304	(8)
Introduction: Experts: Special Latitude Under Both Common Law and F.R.E.	304	(5)
Regulation of Experts Under the Common Law: Mainly Procedural: A Necessary Step to Understanding the F.R.E.	309	(3)
Reform of Experts Under the F.R.E.: Phase One: Liberalization Regarding Procedures	312	(16)
Liberalized Procedural Treatment of Experts Under the F.R.E.: Rules 702--705 as Initially Enacted (and Still Largely in Place Today)	312	(13)
Fears Concerning the Effects of the Procedural Liberalizations in the F.R.E. in the Absence of Substantive Standards Concerning the Reliability of the Testimony Itself	325	(3)
Reform of Experts Under the F.R.E.: Phase Two: Changing the Substantive Standard for Scientific Experts from Frye to Daubert	328	(22)
Introduction	328	(4)
What is ``Scientific Evidence''? An Amorphous Category of Expert Evidence Singled Out for Special Rigorous Treatment	332	(2)
Scientific Evidence: The Tests for Admissibility	334	(1)
The Common Law Frye Test: ``General Acceptance''	334	(4)
Tests Based on the F.R.E. in the Immediately Pre--Daubert Era	338	(2)
The Daubert Test: ``Reliability'', ``Fit'', and ``The Scientific Method''	340	(3)
Daubert-Style ``Reliability'': A Multi--Factor Inquiry	343	(2)
Scientific Evidence After Daubert	345	(5)
Reform of Experts Under the F.R.E.: Phase Three: Daubert's Substantive Standards Extended (In Loosened Form) by Kumho to All Experts and Codified (Perhaps Augmented) in F.R.E. 702	350	(16)
Kumho Tire: Applying Daubert's Reliability Test to All Experts	350	(2)
Open Questions in the Post-Daubert/Kumho World	352	(1)
Amended F.R.E. 702: Codifying Daubert and Kumho or Adding Restrictions?	353	(1)
Categories of Expert and Scientific Evidence	353	(2)
Standard Traffic Violation Evidence	355	(1)
Other Standard Tests on Bodily Substances: Paternity, Rape, Assault, and Homicide Cases: Identifying the Culprit	355	(4)
Syndrome Evidence: From Child Abuse Accommodation Syndrome to Rape Trauma Syndrome	359	(2)
Evidentiary Issues in Syndrome Evidence: F.R.E. 404 and 702	361	(2)
Constitutional Implications of Expert Testimony	363	(3)
Impeachment of Experts	366	(2)
Use of the Literature: Authoritative Treatises and Articles Under F.R.E. 803(18); Other Attacks	366	(2)
Hearsay: The Basic Theory and Rationale	368	(83)
Defining Hearsay	368	(19)
What Is This Thing Called Hearsay? The True Rationale	368	(5)
Under the True Rationale, Hearsay Can Consist of Oral, Written, or Recorded Declarations	373	(1)
The False Rationale	374	(1)
Definitions of Hearsay Under the True Rationale: Common Law and F.R.E. 801	375	(3)
The Hearsay Determination Involves No Balancing on the Facts of the Individual Case	378	(1)
Would it Cure the Hearsay Defect if the ``Out-of-Court'' Declaration Was Made in Another Court?	379	(3)
Should it Cure the Hearsay Defect in an Out-of-Court Declaration if the Declarant Also Presently Testifies?: Prior Statements	382	(5)
Conduct as Hearsay or Non--Hearsay: F.R.E. 801(a)	387	(18)
Conduct, Assertive and Non--Assertive: Statements Implied From Conduct	387	(5)
Conduct: Limitations Inherent in F.R.E. 801's Definition of Hearsay	392	(1)
Conduct: The Element of Human Voluntariness	393	(3)
Conduct: Omission	396	(3)
Conduct: Mistake and Insincerity	399	(2)
Special Trustworthiness as Generally Irrelevant to Hearsay or Non--Hearsay	401	(4)
Some Common Situations Where Out-of-Court Declarations are Not Hearsay Because Not Offered for the ``Truth of the Matter'' Declared: F.R.E. 801(c)	405	(9)
Out-of-Court Declarations Offered Merely to Show They Were Made: (1) Proving Defamation	405	(2)
Out-of-Court Declarations Offered Merely to Show They Were Made: (2) Statements Constituting a Contract or Gift	407	(2)
Out-of-Court Declarations Offered Merely to Show They Were Made: (3) Apparent Authority	409	(2)
Out-of-Court Declarations Offered Merely to Show They Were Made: (4) Statements Offered to Show the Effect They Had Upon a Particular Listener (or Reader) at the Time	411	(3)
Out-of-Court Statements or Conduct Showing the Declarant's State of Mind or Belief: F.R.E. 801(c)	414	(16)
Evidence of State of Belief for Its Own Sake	414	(5)
Evidence of State of Belief for Its Own Sake: Intent, Knowledge, or Feelings	419	(8)
Reputation	427	(3)
Hearsay and the Constitution: The Confrontation Clause	430	(18)
The Relationship Between Hearsay and the Confrontation Clause	430	(2)
``Unavailability,'' ``Reliability,'' and a ``Firmly Rooted'' Exception: The Roberts and Inadi Cases	432	(2)
The Ascendancy of the ``Firmly Rooted'' Factor: The White Case	434	(4)
New (As Opposed to Firmly Rooted) Exceptions: The Wright Case	438	(3)
Beyond Hearsay: Other Implications of the Confrontation Clause	441	(1)
Trial Witness Format: The Coy and Craig Cases	441	(5)
The Criminal Defendant's Right to Cross--Examine Without Undue Restriction of the Questions	446	(2)
The Due Process and Compulsory Process Clauses	448	(3)
Hearsay Rule Modifications for Admissions and Witnesses' Prior Statements	451	(43)
Mapping the Hearsay Escape Valves and Their Underlying Policies	451	(9)
``Exemptions'' and ``Exceptions'' From the Hearsay Rule: F.R.E. 801--804	451	(3)
Policies Underlying Hearsay Exceptions: Necessity and Trustworthiness	454	(2)
Policies Underlying the Exemptions: Fairness and Pragmatism	456	(1)
The Relationship of Exemptions and Exceptions to Other Parts of the F.R.E.	457	(3)
The Exemption for Certain Prior Statements of Presently Testifying Witnesses	460	(12)
Inconsistent Statements ``Under Oath'' in ``Prior Proceedings'': F.R.E. 801(d)(1)(A)	460	(2)
Prior Consistent Statements: F.R.E. 801(d)(1)(B)	462	(3)
Prior Statements of Identification: F.R.E. 801(d)(1)(C)	465	(2)
The Results of the Prior Statement Exemptions: Constitutional and Pragmatic Aspects	467	(1)
Constitutional Aspects	467	(1)
Method of Taking of Prior Statement: Right to Counsel and to Due Process	467	(1)
At Trial: Confrontation	468	(2)
Pragmatic Aspects	470	(2)
The Exemption for Admissions of a Party Opponent, Her Agent, or Her Co--Conspirator	472	(22)
The Common Law: An Exemption or Exception	472	(2)
The Federal Rules: An Exemption From Hearsay for Admissions of Approximately the Common Law Dimensions---F.R.E. 801(d)(2)	474	(1)
Individual or Personal Party Admissions: Express and Implied (or Adoptive) Admissions: F.R.E. 801(d)(2)(A) and (B)---Essentially the Same as the Common Law Position	475	(1)
Express Admissions	475	(1)
Implied or Adoptive Admissions	476	(5)
Vicarious Admissions: (1) Admissions of Conventional Agents: F.R.E. 801(d)(2)(C) and (D)---Compared With Common Law	481	(1)
The Narrow Common Law View: Confinement to Authorized ``Speaking'' and ``Writing'' Agents	482	(1)
The Broader ``Scope of Employment'' View Under F.R.E. 801(d)(2)(D)	482	(1)
F.R.E. Abolition of Common Law Prohibition of In--House Admissions	483	(1)
Non--Inclusion of the Predecessor-in-Interest Principle in F.R.E. Admissions	484	(1)
Broad Applications of F.R.E. Provisions	484	(1)
Former Pleadings as Possible Admissions	485	(1)
Vicarious Admissions: (2) Co--Conspirator Statements: F.R.E. 801(d)(2)(E)---Compared With Common Law	486	(4)
Admissions and Confessions of Alleged Criminals: Constitutional Considerations	490	(4)
Exceptions to the Hearsay Rule	494	(93)
Policies Underlying Hearsay Exceptions	494	(1)
Exceptions for Which Unavailability Is Not Required: F.R.E. 803	494	(58)
Present Sense Impressions and Excited Utterances: F.R.E. 803(1) and (2)	495	(1)
Excited Utterances---The More Traditional of the Two	495	(4)
Present Sense Impressions---A More Recent Expansion of Excited Utterances	499	(2)
Declarations of Declarant's Concurrent State of Mind and the Like: F.R.E. 803(3)	501	(3)
Although They Are Declarations of Declarant's Current State of Mind, Declarations of Memory or Belief to Establish the Fact Remembered or Believed Are Not Permitted: Such ``Backward--Looking'' Inferences Are Prohibited	504	(1)
Statements of Intention Under the State of Mind Exception, Offered as Circumstantial Evidence of Declarant's Probable Subsequent Conduct: ``Forward--Looking'' Inferences Permitted	505	(1)
Declarant's Declaration of His Own State of Mind Used To Prove Another Person's Probable Subsequent Conduct	506	(3)
Statements for Medical Diagnosis and Treatment: F.R.E. 803(4)	509	(5)
Past Recollection Recorded: F.R.E. 803(5)	514	(3)
Business Records: F.R.E. 803(6) (``Records of Regularly Conducted Activity'')	517	(2)
Accident Investigation Reports	519	(4)
Police Records as Business Records	523	(4)
Hospital Records	527	(3)
Computerized Records	530	(2)
The Foundation for Business Records Generally, Aside From Special Computer Problems	532	(2)
Government Records and Reports: F.R.E. 803(8) (``Public Records and Reports'')	534	(2)
Law Enforcement Records and the Like in Criminal Cases	536	(4)
``Self-Serving'' Use of Government Records in Other Contexts	540	(1)
The Meaning of ``Factual Findings Resulting From an Investigation''	541	(2)
Government Records Containing Information Obtained From Someone Outside the Office or Agency	543	(1)
The Trustworthiness Proviso and Rule 403: Other Unreliability Issues	544	(3)
Some General Observations About Public Records	547	(1)
Absence of an Entry in a Record: F.R.E. 803(7) and (10)	547	(2)
Miscellaneous Rule 803 Hearsay Exceptions	549	(3)
Exceptions for Which Unavailability Is Required: F.R.E. 804	552	(25)
The Definition of Unavailability: F.R.E. 804(a)	552	(3)
Former Testimony: F.R.E. 804(b)(1)	555	(3)
Is Former Testimony Changed Under F.R.E. 804(b)(1)?	558	(5)
Statements Under Belief of Impending Death (Known as ``Dying Declarations''): F.R.E. 804(b)(2)	563	(2)
Declarations Against Interest: F.R.E. 804(b)(3)	565	(1)
General Parameters of the Against-Interest Hearsay Exception Both at Common Law and Today	566	(5)
Special Aspects Under the Federal Rules of Evidence	571	(1)
Focus on Declarations Against Penal Interest Offered in Criminal Cases: Third Party Confessions	572	(1)
Third Party Confessions Exculpatory of the Criminal Defendant on Trial	572	(2)
Inculpatory Ones	574	(2)
Waiver by Misconduct: F.R.E. 804(b)(6)	576	(1)
The Catch-All or Residual Hearsay Exception	577	(8)
The Drafting of the Catch-All Exception: F.R.E. 807	580	(2)
The Catch-All as Interpreted	582	(3)
Hearsay Exceptions Outside the Current F.R.E.: Child Hearsay	585	(1)
Final Thoughts About Hearsay	585	(2)
Multiple Hearsay and Impeachment: F.R.E. 805--806	585	(2)
Authentication, Exhibits, and the Best Evidence (Original Writing) Rule	587	(22)
Authentication of Documents and Real Evidence	587	(5)
Authentication by Indications That the Item Is What Its Proponent Claims: F.R.E. 901	587	(2)
Authentication in Special Situations: Circumstantial Evidence, Chain of Custody, Voices, and Self-Authentication	589	(3)
The Original Writing or Best Evidence Rule	592	(5)
The Basic Rule: F.R.E. 1001--02	592	(2)
Duplicates: The ``Matrix'' Provision--F.R.E. 1003	594	(1)
The Narrowness of the Original Writing Rule: Only When the ``Content'' of the Writing Is What Is to Be Proved	595	(1)
Some Exceptions to the Best Evidence Rule	596	(1)
The Parol Evidence Rule	597	(2)
The Manner of Introducing Exhibits	599	(10)
How Exhibits Are Treated	599	(2)
The Procedure for Exhibits, From Marking, to Conveyance to the Jury	601	(3)
Examples of Foundations for Exhibits and of Objections	604	(2)
The Rule of Completeness: F.R.E. 106	606	(3)
Appendix: The Federal Rules of Evidence	609