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9780820562094

Evidence: Common Law And Federal Rules Of Evidence

by ;
  • ISBN13:

    9780820562094

  • ISBN10:

    0820562092

  • Edition: 5th
  • Format: Hardcover
  • Copyright: 2004-11-01
  • Publisher: Lexis Nexis Matthew Bender

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Table of Contents

Dedication iii
Preface to the Fifth Edition v
Introduction vii
Acknowledgements ix
Summary Table of Contents xi
Structure of the Trial and Presentation of Evidence
1(34)
Introduction
1(1)
Structure of the Trial
1(2)
Rule 611
2(1)
Presentation of Testimony
3(2)
Rule 611
4(1)
Rules Applicable to Elicitation of Testimony
5(7)
Competency of Witnesses
5(1)
Rule 601
5(1)
Rule 605
6(1)
Rule 606
6(1)
Personal Knowledge
7(1)
Rule 602
7(1)
Focused Questions Calling for Specific Answers
7(1)
Leading Questions
8(1)
Leading Questions Prohibited on Direct Examination
8(3)
Exceptions to Leading Question Prohibition
11(1)
Rule 611
12(1)
Presenting and Excluding Evidence
12(13)
Qualifying and Offering Evidence
12(5)
Excluding Inadmissible Evidence
17(1)
Necessity for Objection
17(1)
Timeliness
17(2)
Specificity
19(1)
Rule 103
19(1)
Offers of Proof
20(1)
Rule 103
21(4)
Division of Responsibility Within Trial
25(10)
In General
25(1)
Finder of Facts
25(1)
Parties
26(1)
Satisfying Burdens of Proof
26(1)
Burden of Producing Evidence
26(1)
Burden of Persuasion
27(1)
Allocating Burdens
28(1)
Another Burden of Persuasion: Establishing Admissibility of Evidence
29(1)
Judge
30(2)
Rule 104
32(1)
Problems
33(2)
An Introduction to Relevance
35(74)
The Common Law
35(33)
Components of Relevance
35(1)
What Propositions Are Provable?
35(1)
United States v. Staggs
36(14)
Author Commentary
50(1)
Determining Probative Value
51(1)
Probative Value: An Issue Only for Circumstantial Evidence
52(1)
Are There Levels of Logical Relevance? Does Admissibility Impose a Minimum Requirement of Probative Value?
53(1)
Relevancy Unraveled
53(1)
Reliability of ``Relevant'' Evidence: Generally a Question of Weight Rather than Admissibility
54(1)
Contemporary Mission, Inc. v. Famous Music Corp.
55(4)
Author Commentary
59(1)
People v. Collins
59(7)
Author Commentary
66(2)
Federal Rules of Evidence: Rules 401 and 402
68(2)
Changes from Common Law
69(1)
Impact of Rule 402 on Development of Common-Law Rules of Evidence
69(1)
Relationship to Other Rules
70(39)
Rule 104---Preliminary Questions
70(3)
Rule 106---Remainder of or Related Writings or Recorded Statements: Rule of Completeness
73(2)
Rule 403---Exclusion of Relevant Evidence: Balancing Probative Value and Prejudicial Effect
75(1)
Rule 403: The Prejudice Rule in Evidence
76(5)
Author Commentary
81(1)
Ballou v. Henri Studios, Inc.
81(7)
Author Commentary
88(2)
Old Chief v. United States
90(10)
Rule 411---Liability Insurance
100(1)
Rules 901 and 902---Authentication
101(1)
Problems
102(7)
Specific Evidentiary Rules Based on Relevance, Public Policy, and Unfair Prejudice
109(174)
Introduction
109(1)
Character Evidence
109(108)
Admissibility and Use Depends on Context
109(1)
Common Law
110(1)
Using Character Evidence to Prove Element of Claim, Charge, or Defense
110(1)
Using Character Evidence to Establish Propensity from Which Conduct Can Be Inferred
110(1)
Use for Propensity Generally Prohibited
110(2)
Exception: Character of Criminal Defendant or Victim
112(2)
Michelson v. United States
114(7)
Author Commentary
121(2)
Propensity Evidence in Different Context: Character of Witness for Truth and Veracity
123(2)
Prior-Act Evidence Offered for Purposes Other than Propensity
125(1)
McCormick on Evidence
126(4)
Author Commentary
130(1)
Federal Rules of Evidence: Rules 404 and 405
130(1)
Changes from Common Law
131(2)
Basis of Opinion Testimony on Character
133(1)
Using Reputation and Opinion Testimony under Rule 405(a): Permissible Scope of Cross-Examination
133(1)
United States v. Curtis
134(6)
Author Commentary
140(1)
Time Focus of Character Evidence: Time of Offense or Time of Trial?
141(1)
Civil Cases Involving Criminal Conduct
141(1)
Crumpton v. Confederation Life Insurance Co.
142(3)
Author Commentary
145(1)
Permissible Uses of Character Evidence of Prior Bad Acts under Rule 404(b)
146(1)
United States v. Beechum
147(15)
Burden of Persuasion for Establishing Prior Acts and Degree of Similarity between Past Act and Charged Offense
162(2)
Understanding Admissibility of Prior Bad Acts: A Diagrammatic Approach
164(2)
Is Offer to Commit Act Equivalent to Its Commission?
166(1)
Effect of Acquittal on Charges Arising from Alleged Act on Use of Prior-Act Evidence
166(1)
Dowling v. United States
167(7)
``Other Crimes, Wrongs, or Acts'': Other than What?
174(1)
Negative Other-Act Evidence
175(1)
Use of Rule 404(b) Evidence for ``Other Purposes''
175(1)
Other Purposes Not Limited
175(1)
To Explain Conduct of Witness: Rehabilitating Credibility
176(1)
To Prove Predisposition
176(1)
To Support Psychiatric Opinion of Sanity
177(1)
To Establish Extortion Victim's State of Mind
177(1)
To Counter Defense Claim on Collateral Matter: Claim of Illegal Police Conduct
177(1)
Doctrine of Chances
178(1)
Prior-Act Evidence to Show ``Plan''
179(1)
At What Point in Trial May Prosecution Introduce Other-Act Evidence?
179(1)
United States v. Danzey
180(3)
Author Commentary
183(1)
Procedures under Rule 404(b)
184(1)
Is On-the-Record Balancing of Probative Value and Prejudice Required under Rule 404(b)?
185(1)
Pretrial Disclosure of ``Similar Act'' Evidence
186(1)
Subsequent as Well as Prior Acts May Be Admissible Under Rule 404(b)
186(2)
Evidence of Whose Prior Acts?
188(1)
Propensity in Sexual Assault Cases
188(1)
Rule 413
189(1)
Rule 414
189(1)
Rule 415
190(1)
Author Commentary
190(3)
Propensity in the Extreme: Admissibility of Habit Evidence
193(1)
Common Law
193(3)
Federal Rules of Evidence: Rule 406
196(1)
Changes from Common Law
196(1)
Application of Rule 406
196(1)
Weil v. Seltzer
196(4)
How Is Habit or Custom to Be Established?
200(2)
Habit Versus Custom
202(1)
Custom of Organization to Prove Conduct of Individuals
202(1)
Relationship to Other Rules
203(1)
Rule 105---Limited Admissibility
203(1)
Rule 410---Inadmissibility of Pleas, Plea Discussions, and Related Statements
203(1)
Rule 412---Sex Offenses; Relevance of Victim's Past Behavior
204(1)
Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity
204(2)
Committee Note
206(5)
Rule 609(a)---Impeachment by Evidence of Conviction of Crime
211(1)
Rule 609(b)---Time Limit on Use of Prior Convictions
211(1)
Rule 702---Testimony by Experts
212(1)
Rule 803(21)---Reputation as to Character
212(1)
Advisory Committee's Note
213(1)
Problems
213(4)
Similar Occurrences
217(22)
Overview
217(1)
Spontaneous Similar Occurrences
218(1)
Definition
218(1)
Rationale for Admissibility
218(1)
Simon v. Town of Kennebunkport
219(5)
Author Commentary
224(1)
Similarity Requirement: What Factors Courts Consider and Level of Similarity They Require
224(2)
Subsequent Similar Occurrences
226(1)
Nonoccurrence Evidence: Imponderables of Negative Evidence
226(3)
Created Similar Occurrences: Experiments and Demonstrations
229(1)
Randall v. Warnaco, Inc., Hirsch-Weis Division
229(8)
Author Commentary
237(1)
Relationship to Rules 404 and 405
237(1)
Problems
238(1)
Subsequent Repairs
239(15)
Common Law
239(1)
Scope and Rationale
239(2)
Is Rationale Sound?
241(1)
Should Evidence of Subsequent Repairs Be Admitted for Impeachment?
241(2)
Federal Rules of Evidence: Rule 407
243(1)
Advisory Committee Note
243(1)
Changes from Common Law
244(1)
Grenada Steel Industries, Inc. v. Alabama Oxygen Co.
244(4)
Author Commentary
248(2)
Feasibility of Precautionary Measures
250(1)
Relationship to Other Rules
251(1)
Rule 105---Limited Admissibility
251(1)
Rules 607 and 613
252(1)
Rules 801 and 802
253(1)
Problems
253(1)
Offers of Compromise
254(29)
Common Law
254(1)
Esser v. Brophey
255(3)
Author Commentary
258(1)
Federal Rules of Evidence: Rule 408
259(1)
Changes from Common Law
259(1)
What Is Protected by Rule 408?
260(1)
``Evidence Otherwise Discoverable''
261(3)
Other Purposes for Which Compromise Evidence May Be Offered
264(2)
Discovery of Compromise Information
266(1)
Summary Jury Trials/Mock Trials
267(1)
What Constitutes ``A Claim Which Was Disputed'' So as to Trigger Rule 408?
267(1)
When Offer of Compromise Or Its Rejection is An Element of the Claim
268(1)
Offers of Compromise Used Against Third Parties
268(1)
Relationship to Other Rules
269(1)
Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
269(1)
Rule 409---Payment of Medical and Similar Expenses
269(1)
Rule 410---Inadmissibility of Pleas, Plea Discussions, and Related Statements
270(1)
Provisions of Rule 410
270(1)
Author Commentary
271(1)
Limitations of Rule 410
272(1)
Common-Law Limitations Incorporated
272(1)
Protects Neither Guilty Pleas Not Withdrawn nor Guilty Pleas Upon Which Judgments Have Been Entered
272(2)
Does Not Preclude Use of Statements Made In Course of Plea Discussions that Resulted In Unwithdrawn Guilty Plea
274(1)
Protects Only Statements Made to ``An Attorney for the Prosecuting Authority''
274(1)
Affects Only Admissibility of Pleas ``Against the Defendant''
275(1)
Permits Prosecution to Introduce Defendant's Statements in Two Instances
275(1)
Protects Statements Only to Extent Made ``In the Course of Plea Discussions''
276(1)
Can Protections of Rule 410 Be Waived?
277(2)
Plea But Not Judgment?
279(1)
Rule 801(d)(2)---Statements That Are Not Hearsay: Admissions by Party-Opponent
280(1)
Problems
281(2)
Definition of Hearsay
283(98)
Common-Law Definition of Hearsay
283(35)
Definition and Rationale
283(1)
Elements of Hearsay
283(3)
United States v. Brown
286(2)
Author Commentary
288(1)
Hearsay Dangers and the Application of the Hearsay Concept
289(1)
Communications by Conduct
290(1)
Indirect Verbal Communications
290(1)
People v. Barnhart
291(1)
Author Commentary
292(1)
McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers
293(2)
Author Commentary
295(1)
Unintended Communications
296(1)
Wright v. Doe D. Tatham
296(6)
Courts' Definitional Problems with Hearsay
302(1)
Statements Made in Opponent's Presence
302(1)
Assertion-Oriented Approach
303(1)
Circumstantial Evidence Trap
304(2)
Offered for Truth
306(1)
Not Hearsay If Not Offered for Truth
306(2)
Offered for Effect on Hearer
308(1)
Operative Facts or Verbal Acts
309(1)
Freeman v. Metropolitan Life Insurance Co.
309(2)
Author Commentary
311(1)
Knowledge
312(1)
United States v. Parry
312(2)
Author Commentary
314(1)
Silence as Hearsay
315(2)
Twilight Zone of Hearsay: Communications by Machines
317(1)
Definition of Hearsay Under Federal Rules of Evidence
318(63)
Structure of Federal Hearsay Rules
318(1)
What Is Hearsay Under Federal Rules?
319(1)
Rule 801
319(1)
Changes from Common Law
319(1)
Basic Definition of Hearsay
320(1)
United States v. Zenni
320(5)
Author Commentary
325(1)
State of Iowa v. Dullard
326(9)
Does The Assertive/Nonassertive Distinction Make Any Sense?
335(1)
Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence
335(4)
Who Has Burden of Persuasion on Preliminary Question of Whether Conduct Was Intended as Assertion?
339(1)
Statements Excluded from Definition of Hearsay by Federal Rules
340(1)
Overview
340(1)
Rule 801
340(1)
Author Commentary
340(1)
Prior Inconsistent Statements: Rule 801(d)(1)(A)
341(1)
Changes from Common Law
341(1)
Definition of ``Inconsistent'' Statement
342(1)
Other Proceedings
343(1)
State v. Smith
344(2)
Author Commentary
346(2)
Former Testimony as Prior Inconsistent Statement
348(1)
Prior Identification as Prior Inconsistent Statement
348(1)
Balancing Probative Value and Potential Prejudice
348(1)
Prior Consistent Statements: Rule 801(d)(1)(B)
349(1)
Changes from Common Law
349(1)
Rehabilitating the Impeached Witness with Consistent Statements
350(4)
``Before Motive to Fabricate Arose''
354(1)
Tome v. United States
354(12)
Implied Charges of Recent Fabrication or Improper Influence or Motive
366(2)
Statements of Identification: Rule 801(d)(1)(C)
368(1)
Changes from Common Law
368(1)
``After Perceiving the Person''
369(1)
Must Witness Testify About His or Her Prior Identification?
370(1)
``Subject to Cross-Examination Concerning the Statement''
370(1)
Admissions: Rule 801(d)(2)
371(1)
Relationship to Other Rules
372(1)
Rule 104---Preliminary Questions
372(1)
Rule 106---Remainder of or Related Writings or Recorded Statements
372(1)
Rule 703---Bases of Opinion Testimony by Experts
372(1)
Problems
373(8)
Exceptions to the Hearsay Rule
381(404)
Two Categories of Hearsay Exceptions
381(2)
Declarant's Unavailability: Material Versus Immaterial
381(1)
Rationale
381(2)
Unavailability
383(8)
Overview of Exceptions in Which Declarant's Unavailability Is Material
383(1)
Definition of Unavailability
383(1)
Common Law
383(1)
Federal Rules of Evidence: Rule 804(a)
384(1)
Changes from Common Law
384(2)
Unavailable upon Claim of Privilege
386(1)
Refusal to Testify: Sufficiently Unavailable Only after Ordered to Testify by Court
387(1)
Lack of Memory and Physical or Mental Incapacity: A Question of Duration
388(1)
United States v. Amaya
388(1)
Author Commentary
389(1)
Procured Unavailability of Witness
389(1)
Intentionally or Recklessly Versus Inadvertently
389(1)
Government's Refusal to Request Immunity for Witness
390(1)
Hearsay Exceptions Requiring Declarant's Unavailability
391(103)
Former Testimony
391(1)
Common Law
391(1)
Requirements to Ensure Reliability and Fairness
391(1)
Unavailability of Witness
391(1)
Subject to Cross-Examination
392(1)
Identity of Parties and Issues
392(1)
Double Hearsay Problem
393(2)
Limited Uses of Former Testimony
395(1)
Federal Rules of Evidence: Rule 804(b)(1)
395(1)
Changes from Common Law
396(1)
Scope of Rule 804(b)(1): ``Predecessor in Interest''
396(1)
Lloyd v. American Export Lines, Inc.
397(5)
Author Commentary
402(2)
Scope of Rule 804(b)(1): Opportunity and Similar Motive to Develop Prior Testimony
404(5)
Relationship to Other Rules
409(1)
Rule 106---Remainder of or Related Writings or Recorded Statements
409(1)
Rule 602---Personal Knowledge
410(1)
Rule 611---Mode and Order of Interrogation and Presentation
410(1)
Rule 801(d)(1)(A)---The Available Witness: Prior Inconsistent Testimony
410(1)
Rule 801(d)(1)(B)---Prior Consistent Statements
411(1)
Rule 801(d)(2)---Admission by Party-Opponent
411(1)
Double Hearsay in Transcripts: Rules 803(1), (5), (6), and (8)---Present Sense Impression; Recorded Recollection; Recordsof Regularly Conducted Activity; Public Records and Reports
411(1)
Rules 901 and 902---Requirement of Authentication and Self-Authentication
412(1)
Problems
413(1)
Dying Declarations
414(1)
Common Law
414(1)
Requirements for Admissibility
414(1)
Contemplation of Imminent Death
415(1)
Relating to Cause of Declarant's Death
415(1)
Death
415(1)
Firsthand Knowledge
416(1)
Use Limited to Criminal Homicide Cases
416(1)
Federal Rules of Evidence: Rule 804(b)(2)
416(1)
Johnson v. State
417(5)
Relationship to Other Rules
422(1)
Rule 104(a)---Preliminary Questions
422(1)
Rule 602---Lack of Personal Knowledge
422(1)
Rules 608(a), 610, and 806---Reputation of Declarant; Religious Beliefs of Declarant; Attacking Credibility of Declarant
422(1)
Rule 701---Opinion Testimony By Lay Witnesses
423(1)
Rule 803(2)---Excited Utterance
423(1)
Problems
423(1)
Declarations Against Interest
424(1)
Common Law
424(1)
Federal Rules of Evidence: Rule 804(b)(3)
425(1)
Changes from Common Law
425(1)
``Against Interest'': Reasonable Person Test
425(1)
Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception
426(1)
Author Commentary
427(1)
``Tend'' to Subject to Liability
428(1)
No Overriding Motive to Fabricate
428(1)
Admissibility of Portions of Declarations Not Against Declarant's Interests
429(1)
Williamson v. United States
430(11)
Author Commentary
441(1)
Constitutional Restrictions on the Use of Hearsay
441(1)
The Confrontation Clause
441(1)
Lilly v. Virginia
442(10)
Author Commentary
452(2)
Crawford v. Washington
454(19)
Author Commentary
473(4)
The Due Process Clause
477(1)
Chambers v. Mississippi
477(8)
Author Commentary
485(1)
Relationship to Other Rules
486(1)
Rule 602---Lack of Personal Knowledge
486(1)
Rule 801(d)(2)---Admission by Party-Opponent
486(1)
Rule 807---Other Exceptions
486(1)
Problems
487(1)
Forfeiture by Wrongdoing
487(1)
Common Law
487(1)
Federal Rules of Evidence: Rule 804(b)(6)
488(1)
Changes from the common law
488(1)
Acquiescing in wrongdoing
488(1)
United States v. Thompson
488(3)
Scope of the waiver
491(2)
Rule 804
493(1)
Common-Law Hearsay Exception That No Longer Is Hearsay Under Federal Rules of Evidence
494(56)
Admissions
494(1)
Common Law
494(1)
Federal Rules of Evidence: Rule 801(d)(2)(A)---(D)
494(1)
Overview
494(1)
Changes from Common Law
495(2)
Individual Admissions: Rule 801(d)(2)(A)
497(1)
Contractor Utility Sales Co. v. Certain-Teed Products Corp.
497(3)
Author Commentary
500(2)
Adoptive Admissions: Rule 801(d)(2)(B)
502(1)
United States v. Flecha
503(3)
Author Commentary
506(2)
Authorized Admissions: Rule 801(d)(2)(C)
508(1)
Vicarious Admissions: Rule 801(d)(2)(D)
508(1)
Expanded Scope of Vicarious Admissions
508(1)
Mahlandt v. Wild Canid Survival & Research Center, Inc.
509(4)
Author Commentary
513(1)
Government Employees as Agents for Purposes of Vicarious Admissions
514(1)
Vicarious Admissions by Attorneys
514(2)
Relationship to Other Rules
516(1)
Rule 104---Preliminary Questions
516(1)
United States v. Moore
517(2)
Rules 407, 408 and 409---Subsequent Remedial Measures; Compromise and Offers of Compromise; Payment of Medical and Similar Expenses
519(1)
Rule 410---Inadmissibility of Pleas, Plea Discussions and Related Statements
520(1)
Rule 602---Lack of Personal Knowledge
520(1)
Rule 613---Prior Statements of Witnesses
521(1)
Rule 701---Opinion Testimony by Lay Witness
521(1)
Rule 702---Testimony by Experts
521(1)
Rule 804(b)(3)---Statement Against Interest
522(1)
Rule 901(a)---Requirement of Authentication or Identification
523(1)
Problems
524(1)
Admissions by Co-Conspirators
525(1)
Common Law
525(1)
Federal Rules of Evidence: Rule 801(d)(2)(E)
526(1)
Changes from Common Law
526(1)
Made ``During the Course of the Conspiracy''
527(1)
United States v. Diez
528(4)
Author Commentary
532(1)
Made ``In Furtherance of the Conspiracy''
532(1)
Independent Evidence to Corroborate Conspiracy and Participation
533(1)
Criminal Defendant's Right of Confrontation and Vicarious Admissions
534(1)
Relationship to Other Rules
535(1)
Rule 104---Preliminary Questions
535(1)
Bourjaily v. United States
535(5)
Author Commentary
540(1)
United States v. Gil
541(2)
Author Commentary
543(1)
Rule 105---Limited Admissibility
543(1)
Rule 602---Lack of Personal Knowledge
544(1)
Rule 611---Mode and Order of Interrogation and Presentation
544(1)
United States v. Vinson
545(1)
Author Commentary
546(1)
Rule 801(c)---Hearsay
547(1)
Rule 801(d)(2)---Admissions by Party-Opponent
548(1)
Rule 803(2)---Excited Utterance
548(1)
Rule 804(b)(3)---Statement Against Interest
549(1)
Problem
550(1)
Hearsay Exceptions for Which Declarant's Unavailability Is Immaterial
550(235)
Excited Utterances
550(1)
Common Law
550(1)
Federal Rules of Evidence: Rule 803(2)
551(1)
Changes from Common Law
551(1)
What Is A Sufficiently Startling Event?
551(1)
United States v. Napier
552(2)
What Is A Spontaneous Response?
554(1)
Christensen v. Economy Fire & Casualty Co.
555(4)
Author Commentary
559(1)
Children as Victims of Sex Crimes: Extension of Excited-Utterance Exception
559(1)
Author Commentary
560(2)
Statement Relating to Event
562(1)
Murphy Auto Parts Co. v. Ball
562(3)
Author Commentary
565(1)
Attacks on Reliability of Excited Utterances
566(1)
Problem of Proof: Establishing Occurrence of Event and Its Exciting Nature
567(1)
Relationship to Other Rules
567(1)
Rule 104(a)---Preliminary Questions
567(1)
Rule 601---General Rule of Competency
568(1)
Rule 602---Lack of Personal Knowledge
568(1)
Rules 609 and 806---Impeachment by Evidence of Conviction of Crime; Attacking and Supporting Credibility of Declarant
569(1)
Rule 701---Opinion Testimony by Law Witnesses
570(1)
Problems
570(1)
Present Sense Impression
571(1)
Common Law
571(1)
Houston Oxygen Co. v. Davis
571(2)
Author Commentary
573(1)
Federal Rules of Evidence: Rule 803(1)
573(1)
Present Sense Impressions: An Analysis and a Proposal
574(1)
United States v. Blakey
575(2)
Wolf v. Proctor & Gamble Co.
577(2)
Requirement of Contemporaneity
579(1)
Robinson v. Shapiro
579(2)
Author Commentary
581(1)
Subject Matter of Statement
581(1)
Corroboration of Statements of Present Sense Impression
582(1)
Relationship to Other Rules
583(1)
Rule 604---Interpreters
583(1)
Rule 803(2)---Excited Utterance
583(1)
Rule 803(3)---Then-Existing Mental, Emotional, or Physical Condition
583(1)
Problems
584(1)
Declarations of Present State of Mind
584(1)
Common Law
584(1)
Elements of Exception
584(1)
Use of Present State of Mind Declarations: A Question of Relevance and Necessity
585(1)
Mutual Life Insurance Co. v. Hillmon
586(2)
Author Commentary
588(1)
Can a Present State of Mind Have Backward Continuity---Be Evidence of Past Conduct?
589(2)
Shepard v. United States
591(3)
Author Commentary
594(1)
Can Conduct of Another Be Inferred from State-of-Mind Declarations?
595(1)
People v. Alcalde
595(2)
Author Commentary
597(1)
Federal Rules of Evidence: Rule 803(3)
598(1)
Changes from Common Law
598(1)
United States v. Pheaster
599(6)
Under Conditions of Apparent Sincerity
605(1)
Relationship to Other Rules
606(1)
Rule 104(a)---Preliminary Questions
606(1)
Rule 403---Exclusion of Evidence on Grounds of Prejudice, Confusion, or Waste of Time
607(3)
Rule 803(1)---Present Sense Impression
610(1)
Problems
610(1)
Present Physical Condition
611(1)
Common Law
611(1)
Elements of Exception
611(1)
Statement to Physician for Purpose of Obtaining Treatment
612(1)
Rationale
612(1)
Primary Purpose Must Be Treatment
613(1)
Statements of Medical History and Causation
613(1)
Statements to Physicians for Purpose of Litigation
613(1)
Federal Rules of Evidence: Rules 803(3) and 803(4)
614(1)
Separate Rules for Different Contexts
614(1)
Changes from Common Law
614(1)
Pertinency Requirement
615(1)
United States v. Narciso
616(1)
Author Commentary
617(1)
Causation
618(1)
Statements to Medical Personnel by Declarant Who Is Not Injured Party
619(1)
Psychiatric Diagnosis or Treatment
620(1)
Medical History
621(1)
O'Gee v. Dobbs Houses, Inc.
621(2)
Author Commentary
623(1)
Relationship to Other Rules
624(1)
Rules 601 and 603---General Rule of Competency; Oath or Affirmation
624(1)
Rule 602---Lack of Personal Knowledge
624(1)
Rule 703---Basis of Expert Opinion
625(1)
Rule 803(6)---Records of Regularly Conducted Activity
626(1)
Problems
627(1)
Past Recollection Recorded
628(1)
Common Law
628(1)
Past Recollection Recorded: Restrictions on Use as Exhibit and Proposals for Change
629(5)
Federal Rules of Evidence: Rule 803(5)
634(1)
Changes from Common Law
634(1)
United States v. Williams
635(4)
``Insufficient Recollection to Permit Him to Testify Fully and Accurately''
639(1)
Past Recollection Recorded: Restrictions on Use as Exhibit and Proposals for Change
640(1)
Memorandum Excluded as Exhibit
641(1)
``When the Matter was Fresh in His Memory''
642(1)
Both Availability and Unavailability of Declarant Is Material
643(1)
Relationship to Other Rules
644(1)
Rule 602---Lack of Personal Knowledge
644(1)
Rule 612---Present Recollection Revived
644(1)
Common Law
644(1)
Baker v. State
644(6)
Author Commentary
650(1)
Federal Rules of Evidence: Rule 612
650(1)
Changes from Common Law
651(1)
Applicability of Rule 612 to Proceedings Other than Hearings
651(1)
For What Purpose May Cross-Examiner Introduce Writing?
651(1)
Problem of Privilege
651(1)
Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc.
652(2)
Author Commentary
654(2)
Before Testifying Versus While Testifying
656(1)
Authentication
656(1)
Rule of Completeness
656(1)
Work Product Immunity
657(1)
Rule 803(1)---Present Sense Impression
657(1)
Rule 901---Requirements of Authentication or Identification
658(1)
Rule 1002---Requirement of Original
658(1)
Problems
658(1)
Business Records
659(1)
Common Law
659(1)
Elements of Exception
659(1)
Johnson v. Lutz
660(3)
Author Commentary
663(3)
Standard of Trustworthiness: Overriding Limitation on Business Records Exception
666(1)
Palmer v. Hoffman
667(2)
Author Commentary
669(2)
Yates v. Bair Transport, Inc.
671(3)
Author Commentary
674(1)
Federal Rules of Evidence: Rule 803(6)
675(1)
Changes from Common Law
676(1)
``Custodian or Other Qualified Witness''
676(2)
Personal Knowledge and Business Duty: Must One Possessing Knowledge Owe Duty to Business Maintaining Record?
678(1)
Author Commentary
679(2)
``Regularly Conducted Business Activity''
681(1)
Business Records and Computer
682(1)
Note, Appropriate Foundation Requirements for Admitting Computer Printouts into Evidence
683(3)
Author Commentary
686(1)
``Unless the Source of Information or the Method or Circumstances of Preparation Indicate Lack of Trustworthiness''
686(1)
Relationship to Other Rules
687(1)
Rules 401 and 402---Relevance
687(1)
Rule 602---Lack of Personal Knowledge
687(1)
Rules 701 and 702---Opinion Testimony by Lay Witnesses; Testimony By Experts
688(4)
Rule 801(d)(2)(A)--(E)---Admissions by Party-Opponent
692(1)
Rule 803(7)---Absence of Entry in Record Kept in Accordance with Provisions of Paragraph (6)
693(1)
Rule 803(8)---Public Records and Reports
694(1)
Rule 803(11)---Records of Religious Organizations
694(1)
Advisory Committee's Note
694(1)
Rule 803(17)---Market Reports, Commercial Publications
695(1)
Rule 807---Other Exceptions
695(1)
Rule 901---Authentication
696(1)
Rule 1006---Summaries
696(1)
Problems
697(2)
Public Records
699(1)
Common Law
699(1)
Federal Rules of Evidence: Rule 803(8)
699(1)
Changes from Common Law
700(1)
``Public'' Offices or Agencies
700(1)
Rule 803(8)(B): ``Law Enforcement Personnel''
701(3)
Unexplained Inconsistency in Limitations of Subsections (B) and (C)
704(1)
Scope of Rule 803(8)(C)
705(1)
Beech Aircraft Corp. v. Rainey
706(7)
Author Commentary
713(2)
Standard of Trustworthiness
715(2)
Admissibility of Underlying Facts and Data
717(1)
Zenith Radio Corp. v. Matsushita Electrical Industrial Co.
718(1)
Author Commentary
719(3)
Is Public Records Exception Preclusive?
722(1)
Relationship to Other Rules
722(1)
Rule 104---Preliminary Questions
722(1)
Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
723(1)
Rules 702 and 703---Opinion Testimony by Experts
723(1)
Rule 803(5)---Past Recollection Recorded
724(1)
Rule 803(9)---Records of Vital Statistics
724(1)
Advisory Committee's Note
724(1)
Rule 803(10)---Absence of Public Record or Entry
725(1)
Advisory Committee's Note
725(1)
Rule 803(22)---Judgment of Previous Conviction
726(1)
Limitation to Felony Judgments of Conviction
726(1)
Advisory Committee's Note
726(1)
``To Prove Any Facts Essential to Sustain the Judgment''
727(1)
Judgment of Acquittal
728(1)
Rule 902---Self-Authentication
728(1)
Rule 1002 and 1005---Requirement of Original; Public Records
728(1)
Problems
729(1)
Ancient Documents
730(1)
Common Law
730(1)
Federal Rules of Evidence: Rule 803(16)
730(1)
Changes from Common Law
731(1)
Difficulties Inherent in Ancient Documents Exception
731(1)
Markiewicz v. Salt River Valley Water Users' Ass'n
731(1)
Problem
732(1)
Learned Treatise Exception
732(1)
Common Law
732(1)
Federal Rules of Evidence: Rule 803(18)
733(1)
Changes from Common Law
733(1)
Tart v. McGann
733(6)
Limitations on New Exception
739(1)
Treatise as Reliable Authority
740(1)
Medical Malpractice and Problem of Unwilling Expert
740(1)
Charts as Learned Treatises
740(1)
Problems
741(1)
Residual Exceptions
742(1)
Common Law
742(1)
Federal Rules of Evidence: Rule 807
742(1)
Declarant's Unavailability Immaterial
742(1)
Equivalent Circumstantial Guarantees of Trustworthiness
743(1)
United States v. Medico
744(6)
Author Commentary
750(2)
Evidence of Material Fact and Generally Serving Purposes of Rules and Interests of Justice
752(1)
More Probative than Other Reasonably Procurable Evidence
752(1)
Demars v. Equitable Life Assurance Society
753(1)
Author Commentary
754(1)
Pretrial Notice
755(1)
Scope of Residual Exception
755(2)
United States v. AT & T
757(4)
United States v. American Cyanamid Co.
761(2)
Author Commentary
763(2)
State Adoption of Residual Exceptions
765(1)
Residual Exceptions and Right to Confrontation
765(1)
Idaho v. Wright
766(10)
Author Commentary
776(1)
Relationship to Other Rules
777(1)
Rule 104---Preliminary Questions
777(1)
Rule 803(8)(B) and (C). Public Records and Reports
778(1)
Other Exceptions
778(4)
Problems
782(3)
Cross-Examination and Impeachment
785(150)
Introduction
785(1)
Cross-Examination
785(5)
The Trial Process: Law Tactics and Ethics
785(5)
Impeachment: Character Evidence
790(34)
The Common Law
790(1)
Admissibility of Character Evidence for Impeachment Purposes
790(1)
Reputation Testimony
791(1)
Limitations on Timing and Manner of Presentation
791(1)
Cross-Examining the Reputation Witness
791(3)
Specific Instances of Conduct
794(1)
Admissibility of Prior Specific Instances of Conduct for Impeachment Purposes
794(1)
Inquiries During the Witness' Cross-Examination
794(1)
Evidence of Conviction of Crime
795(2)
The Federal Rules of Evidence: Rule 608
797(1)
Changes From the Common Law
797(1)
Reputation or Opinion Character Evidence
797(1)
Bolstering Credibility After Attack
798(1)
United States v. Medical Therapy Sciences, Inc.
799(4)
Author Commentary
803(1)
Rule 608(b): Inquiries into Specific Instances of a Witness' Conduct for the Purpose of Attacking Credibility
804(2)
``Taking the Answer'': A Codification of the ``Collateral Evidence'' Rule
806(1)
Use of Extrinsic Evidence Restricted
806(1)
Carter v. Hewitt
806(5)
Author Commentary
811(1)
Inapplicability of Rule 608(b) When Evidence of Prior Conduct Is Admissible for Other Purposes
811(3)
Inapplicability of Rule 608(b) to Volunteered Testimony on Direct or Cross-Examination
814(3)
Relationship to Other Rules
817(1)
Rule 105---Limited Admissibility
817(1)
Rule 402---Relevant Evidence: A Witness' Bias
818(1)
Rule 404(a)---Character Evidence Generally
818(1)
Rule 404(b)---Other Crimes, Wrongs, or Acts
818(1)
Rule 609---Impeachment by Evidence of Conviction of Crime
819(1)
Rule 610---Religious Beliefs or Opinions
819(1)
Rule 611(b)---Scope of Cross-Examination
820(1)
Rule 701---Opinion Testimony by Lay Witnesses
820(1)
Rule 702---Testimony by Experts
821(2)
Problems
823(1)
Impeachment: Convictions of Crime
824(39)
The Common Law
824(1)
Prior Conviction As Impeaching Credibility
824(1)
The Felony/Misdemeanor Distinction
825(1)
Between a Rock and a Hard Place: The Dilemma of Criminal Defendants
825(1)
Gordon v. United States
826(4)
The Federal Rules of Evidence: Rule 609
830(1)
Changes from the Common Law
831(3)
Discretionary Balancing Under Rule 609(a)(1): The Five Factors of Gordon
834(1)
Prior-Conviction Impeachment Under the Federal Rules of Evidence: A Suggested Approach to Applying the ``Balancing'' Provision of Rule 609(a)
835(6)
Author Commentary
841(1)
Rule 609(a)(2): Crimes Involving Dishonesty or False Statement
841(1)
United States v. Smith
841(6)
Author Commentary
847(2)
Crimes Involving Dishonesty or False Statement: Is This a Factual Standard or One That Turns Solely on the Elements of the Offense?
849(2)
On-the-Record Findings
851(1)
If Convictions Are Established for Impeachment Purposes, What Information May One Elicit About Them?
852(1)
Impeachment with Convictions on Direct Examination
853(1)
Balancing Under Rule 609(b): Probative Value Must Substantially Outweigh Potential Prejudice Only When Ten-Year-Old Conviction Is Used to Attack Credibility
853(1)
Relationship to Other Rules
854(1)
Rule 103(a)(2)---Offer of Proof
854(1)
Luce v. United States
855(3)
Rule 104---Preliminary Questions
858(1)
Rule 105---Limited Admissibility
858(1)
Rule 403---Exclusion of Relevant Evidence on the Ground of Prejudice
858(1)
Rule 404---Character Evidence Not Admissible To Prove Conduct; Rule 405---Methods of Proving Character
859(1)
Rule 404(b)---Other Crimes, Wrongs, or Acts
860(1)
Rule 410---Inadmissibility of Pleas
861(1)
Rule 607---Who May Impeach
861(1)
Rule 608---Evidence of Character and Conduct of Witness
861(1)
Rule 902(4)---Certified Copies of Public Records; Rule 1002---Requirement of Original: The Best Evidence Rule; Rule 1005---Public Records Exception to Best Evidence Rule
862(1)
Problems
862(1)
Impeachment: Prior Inconsistent Statements
863(25)
The Common Law
863(1)
Some Observations on Credibility: Impeachment of Witnesses
863(2)
The Federal Rules of Evidence: Rule 613
865(1)
Changes from the Common Law
865(1)
United States v. Barrett
866(6)
Author Commentary
872(1)
What Constitutes an Inconsistency?
873(2)
Using Illegally Obtained Statements in Criminal Cases for Impeachment Purposes
875(1)
Conduct as a Prior Inconsistent Statement
876(1)
``[P]rovision Does Not Apply to Admissions''
876(1)
Relationship to Other Rules
877(1)
Rule 104(a)---Preliminary Questions
877(1)
Rule 104(b)---Conditional Relevance; Rule 901---Requirement of Authentication or Identification
877(1)
Rule 105---Limited Admissibility
877(2)
Rule 106---Remainder of or Related Writings or Recorded Statements
879(1)
Rule 407---Subsequent Remedial Measures
879(2)
Rule 607---Who May Impeach?
881(1)
United States v. Webster
882(2)
Rule 702---Testimony by Experts
884(1)
Rule 801(d)(1)(A)---Prior Inconsistent Statement Made Under Oath
885(1)
Rule 801(d)(1)(C)---Prior Identification
886(1)
Rule 801(d)(2)---Admission by Party Opponent
886(1)
Rule 1002---Requirement of Original
886(1)
Problems
886(2)
Impeachment: Bias
888(34)
Demonstrating Bias
888(1)
United States v. Gambler
889(12)
Author Commentary
901(1)
Foundation Requirement
902(1)
United States v. Harvey
903(3)
Author Commentary
906(1)
Demonstrating Bias: A Right of Confrontation
907(1)
Chipman v. Mercer
908(10)
Author Commentary
918(1)
Relationship to Other Rules
919(1)
Rule 402---Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
919(1)
Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
919(1)
Rule 411---Liability Insurance
920(1)
Rule 608(b)---Evidence of Specific Instances of Conduct of an Individual Offered for Impeachment Purposes
921(1)
Rule 610---Religious Beliefs or Opinions
921(1)
Problems
921(1)
Impeachment: Psychiatric Condition
922(13)
Theoretical Relevance
922(1)
United States v. Lindstrom
922(7)
Relationship to Other Rules
929(1)
Rule 103(a)(2)---Rulings on Evidence; Offers of Proof
929(1)
Rule 401---Relevant Evidence
929(1)
Rule 501---General Rules of Privilege
930(1)
Rule 601---General Rules of Competency
931(1)
Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach
931(1)
Author Commentary
932(1)
Rule 702---Testimony by Experts; Rule 704---Opinion on Ultimate Issue
933(1)
Problem
934(1)
Writings
935(92)
Best Evidence or Original Writing Rule
935(52)
The Common Law
935(1)
Preference for Original Writing
935(1)
What Is a Writing?
936(1)
United States v. Duffy
936(2)
Author Commentary
938(1)
Proving Terms of Writing
939(1)
Practical Aspect
939(1)
Meyers v. United States
939(1)
Author Commentary
940(1)
Legal Aspect
941(1)
What Is the Original?
941(2)
Terms of Writing Must Be Material
943(1)
Exceptions to the Rule
943(1)
Original Unavailable, Proponent Not at Fault
943(1)
Original in Possession of Third Party
944(1)
Original in Opponent's Possession
944(1)
Intentional Destruction of Original
945(1)
Schroedl v. McTague
945(3)
Original on Public Record
948(1)
Secondary Evidence: When Original Is Unavailable, Should Courts Prefer The Most Accurate Secondary Evidence?
948(1)
Federal Rules of Evidence: Rules 1001--1008
949(1)
Rule 1001---Definitions; Rule 1002---Requirement of Original; Rule 1004---Admissibility of Other Evidence of Contents
949(1)
Changes from the Common Law
950(1)
Application of Best Evidence Rule Limited to Proof of Contents of Writing, Recording, or Photograph
951(1)
Rule 1005---Public Records
952(1)
Changes from the Common Law
952(1)
What Is a Public Record under Rule 1005?
952(1)
Amoco Production Co. v. United States
953(2)
Author Commentary
955(1)
Rule 1001(4)---Definition of Duplicate; Rule 1003---Admissibility of Duplicates
956(1)
Changes from the Common Law
956(1)
Duplicates and Degrees of Secondary Evidence
957(1)
Conditions Under Which Duplicates Will Not Be Treated as Originals
957(1)
``Genuine Questions'' as to Authenticity
957(1)
Unfairness
958(1)
Rule 1006---Summaries of Voluminous Writings
959(1)
Requirements for Admission of Summaries
959(1)
Needham v. White Laboratories, Inc.
959(2)
Author Commentary
961(3)
Evidentiary Status of Summaries
964(1)
United States v. Smyth
964(3)
Author Commentary
967(2)
Summaries as Hearsay
969(1)
Party Admissions About Contents of Writings
970(1)
Rule 1007
971(1)
Who Resolves Preliminary Fact Questions in Applying Best Evidence Rule?
971(1)
Fauci v. Mulready
971(2)
Author Commentary
973(1)
Rule 1008
973(1)
Seiler v. Lucasfilm Ltd.
974(4)
Author Commentary
978(1)
Relationship to Other Rules
979(1)
Rule 103---Rulings on Evidence
979(1)
Rule 104---Preliminary Questions
980(1)
Rule 611---Mode and Order of Interrogation and Presentation
980(1)
Rule 613---Prior Statements of Witnesses; Rule 1002---Requirement of Original
981(1)
Rule 703---Bases of Opinion Testimony by Experts
981(1)
Rule 801(c)---Definition of Hearsay; Rule 802---Hearsay Rule
982(1)
Rule 803(6)---Business Records Exception to the Hearsay Rule
982(1)
Ford Motor Co. v. Auto Supply Co.
983(2)
Author Commentary
985(1)
Rule 803(7)---Absence of Entry in Business Record; Rule 803(10)---Absence of Public Record or Entry
985(1)
Rule 901---Requirement of Authentication or Identification; Rule 902---Self-Authentication; Rule 401---Definition of ``Relevant Evidence''; Rule 402---Relevant Evidence Admissible
985(1)
Problems
986(1)
Authentication
987(40)
The Common Law
987(1)
Requirement of Authentication
987(1)
Direct Methods of Authentication
987(1)
Witness With Personal Knowledge
987(1)
Handwriting Identification
988(1)
Circumstantial Methods of Authentication
989(1)
Authenticating Evidence Limited Only by Admissibility
989(1)
The Reply Doctrine
989(2)
United States v. Espinoza
991(4)
Author Commentary
995(1)
Ancient Document Rule
995(1)
Official Custody Rule
996(1)
Attested Documents
996(1)
Self-Authentication
997(1)
Federal Rules of Evidence---Rules 901, 902 & 903
998(1)
Methods of Authentication
998(1)
Changes from the Common Law
999(1)
United States v. Wilson
999(3)
United States v. Clifford
1002(5)
Distinctive Characteristics in Conjunction with Circumstances
1007(1)
United States v. Blackwell
1007(5)
Author Commentary
1012(1)
Ancient Documents: Are Photographs and Recordings within the Concept?
1012(1)
Self-Authentication
1013(1)
Rule 902
1013(2)
Advisory Committee's Note
1015(1)
Changes from the Common Law
1015(1)
What is the Effect of Self-Authentication?
1016(1)
Limited Scope of Certification
1017(1)
United States v. Stone
1018(2)
Effect of Stamped Signatures on Self-Authenticating Documents
1020(1)
Authentication by Subscribing Witness
1020(1)
Rule 903
1020(1)
Advisory Committee's Note
1020(1)
Relationship to Other Rules
1020(1)
Rule 104---Preliminary Questions
1020(1)
Rule 403---Exclusion of Relevant Evidence on the Ground of Prejudice
1021(2)
Rule 406---Habit; Routine Practice
1023(1)
Rule 701---Opinion Testimony by Lay Witnesses
1023(1)
Rule 803(6)---Business Records Exception to the Hearsay Rule
1023(1)
Problems
1024(3)
Opinion Testimony---Scientific and Technological Evidence
1027(164)
Lay Opinion
1027(16)
The Common Law
1027(1)
English Rule as Interpreted by American Courts
1027(1)
Problems With Exclusionary Rule
1028(1)
Exceptions to Lay Opinion Exclusionary Rule
1028(1)
Horn v. State
1028(3)
Author Commentary
1031(1)
Federal Rules of Evidence---Rule 701
1032(1)
Changes from the Common Law
1033(1)
Does ``Primary Facts'' Doctrine Survive Rule 701?
1034(1)
Breadth of Rule 701
1034(1)
Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc.
1034(3)
``Rationally Based on the Perception of the Witness''
1037(1)
Opinion Must Help Jury Either to Understand Witness' Testimony or to Determine Fact in Issue
1037(1)
Special Topics of Lay Opinion
1038(1)
Identification from Surveillance Photographs
1038(1)
Another Person's State of Mind
1039(2)
Lay Opinions on Ultimate Issues
1041(1)
Relationship to Rule 602---Lack of Personal Knowledge
1041(1)
Problems
1041(2)
Expert Opinions
1043(148)
The Common Law
1043(1)
Role of Expert Witness
1043(2)
The Hypothetical Question
1045(1)
Ingram v. McCuiston
1045(7)
Author Commentary
1052(1)
Expert Testimony on Purported Scientific Evidence
1053(1)
Frye v. United States
1053(1)
Author Commentary
1054(2)
Federal Rules of Evidence---Rules 702, 703 and 705
1056(1)
Changes from the Common Law---Rule 702
1056(1)
``Will Assist the Trier of Fact''---Relaxed Standard for Expert Opinion Testimony
1057(1)
In Re Japanese Electronic Products Antitrust Litigation
1058(1)
Author Commentary
1059(1)
Subjects of Expert Testimony
1060(1)
Any Appropriate Topic, in Court's Discretion
1060(2)
Expert's Opinion About Inherent Dangers of Eyewitness Identification
1062(3)
Author Commentary
1065(2)
Testimony About Memory
1067(1)
Credibility of Particular Witnesses
1068(1)
Expert Opinions on ``Human Factors''
1068(1)
The Law
1069(1)
Did the Federal Rules Announce A New Standard of Admissibility For Expert Opinion Evidence?
1069(1)
Daubert v. Merrell Dow Pharmaceuticals, Inc
1070(9)
Daubert v. Merrell Dow Pharmaceuticals, Inc.
1079(11)
Scope of Judge's ``Gatekeeping'' Role
1090(1)
The Unresolved Question---Why Should Scientific Standards Control Admissibility?
1091(1)
Expert Testimony Based on Non-Scientific Knowledge---Does Daubert Still Apply?
1092(1)
Kumho Tire Company, Ltd., v. Carmichael
1093(8)
Standard of Appellate Review of Trial Judge's Rulings on Scientific and Technical Evidence
1101(1)
Did Daubert Really Change The Legal Landscape From the Post-Frye World?
1102(1)
The Wisdom of Importing Scientific Standards of Proof Into Evidentiary Decisions In The Courtroom
1103(1)
Effect of December 2000 Amendments on Daubert's Interpretation of Rule 702
1104(2)
``To a Reasonable Certainty''
1106(2)
Breidor v. Sears, Roebuck and Co.
1108(4)
Author Commentary
1112(1)
The Expert's Qualifications
1113(1)
Determining the Expert's Qualifications
1113(1)
Mannino v. International Manufacturing Co.
1114(3)
Author Commentary
1117(2)
Qualification Based on Experience
1119(1)
Qualifying the Expert Witness: A Practical Illustration
1120(1)
Goldstein Trial Techniques
1120(5)
Lay Opinions under Rule 701 Versus Expert Opinions under Rule 702
1125(1)
Author Commentary
1126(1)
Basis of Expert Opinion Testimony---Rule 703
1126(1)
Basis of Opinion Not Limited to Data Presented at Trial
1127(1)
``Facts or Data'': Does This Include Opinions?
1127(3)
``Reasonably Relied upon by Experts in the Particular Field''
1130(1)
Reliance Requirement Supplies Reliability
1130(1)
Zenith Radio Corp. v. Matsushita Electrical Industrial Co.
1130(4)
Open-Ended Hearsay Exception for Expert Witnesses
1134(2)
Author Commentary
1136(2)
The 2000 Amendments to Rule 703: Underlying Facts Not Admissible Unless Their Probative Value Substantially Outweighs Their Prejudicial Effect
1138(3)
Test Applies to Basis or Methodology, Not Opinion Itself
1141(1)
Disclosure of Expert's Underlying Facts or Data---Rule 705
1141(1)
General Effects of Rule
1141(1)
Proponent's Failure to Elicit Basis of Opinion
1142(1)
Increased Need for Pretrial Discovery
1142(1)
Eliminating Need for Hypotheticals
1143(1)
Iconco v. Jensen Construction Co.
1144(1)
Author Commentary
1145(1)
Impeaching the Expert Witness
1146(2)
The Unanswered Expert
1148(1)
Battle of the Experts---Rule 706
1148(2)
Note-Taking by Jurors
1150(1)
The ``Ultimate Issue'' Rule
1151(1)
The Common Law
1151(1)
Opinion Testimony Invading the Province of the Jury
1151(2)
Ultimate Issue Rule---Rule 704
1153(1)
Changes from the Common Law
1154(1)
Limited Resurrection of Ultimate Issue Rule
1154(3)
United States v. West
1157(4)
Author Commentary
1161(1)
Residual Aspect of Ultimate Issue Rule---Opinions Expressed in Terms of Unexplored Legal Criteria
1161(5)
Application of Facts to Controlling Legal Principles Versus Determining which Legal Principles Control
1166(1)
Specht v. Jensen
1166(6)
Author Commentary
1172(1)
Federal Rules and the Common-Law Prohibition on ``Oath-Helping''
1173(1)
Relationship to Other Rules
1174(1)
Rule 104(a)---Preliminary Questions of Admissibility Generally
1174(3)
Rule 201---Judicial Notice of Adjudicative Facts
1177(1)
Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
1177(1)
Rule 602---Lack of Personal Knowledge
1178(1)
Rule 608---Evidence of Character and Conduct of Witness
1179(1)
United States v. Barnard
1179(1)
Author Commentary
1180(3)
Rule 615---Exclusion of Witnesses
1183(1)
Morvant v. Construction Aggregates Corp.
1183(3)
Rule 802---Hearsay Rule
1186(1)
Rule 803(6)---Records of Regularly Conducted Activity
1186(1)
Rule 803(8)(C)---Public Records and Reports: Findings Resulting from Investigations Authorized by Law
1187(1)
Rule 803(18)---Learned Treatises
1187(1)
Rule 1002---Requirement of Original: The Best Evidence Rule
1188(1)
Problems
1188(3)
Privileges
1191(118)
Introduction
1191(1)
Spousal Privilege
1192(13)
Scope and Rationale
1192(1)
Exceptions to Spousal Privilege
1192(1)
Spousal Privilege under Federal Rules of Evidence
1193(1)
Rule 501
1193(1)
United States v. Premises Known as 281 Syosset Woodbury Rd.
1194(11)
Physician-Patient Privilege
1205(2)
Attorney-Client Privilege
1207(49)
Scope and Rationale
1207(1)
In General
1207(1)
Confidential Communications from Client
1207(1)
Characteristics of Protected Communications
1207(1)
In Re Ampicillin Antitrust Litigation
1208(3)
Author Commentary
1211(1)
In Re LTV Securities Litigation
1212(1)
Author Commentary
1213(1)
Expectation of Confidentiality
1214(1)
Expansion of Circle of Confidentiality
1215(1)
City & County of San Francisco v. Superior Court
1216(2)
Author Commentary
1218(1)
Communication Made for Purpose of Obtaining Legal Advice or Assistance
1218(1)
Diversified Industries Inc. v. Meredith
1219(6)
Author Commentary
1225(1)
Relationship of Communication to Legal Advice
1225(2)
Attorney-Client Privilege in Corporate Context
1227(1)
General Application of Privilege in Corporate Setting
1227(1)
Radiant Burners, Inc. v. American Gas Association
1227(4)
Author Commentary
1231(1)
Radiant Burners, Inc. v. American Gas Association
1231(3)
Author Commentary
1234(1)
Who Personifies the Corporate Client?
1234(1)
Upjohn Co. v. United States
1235(6)
Author Commentary
1241(2)
Maintenance of Confidentiality
1243(1)
Stockholders' Right to Confidential Corporate Communications
1243(1)
Garner v. Wolfinbarger
1244(5)
Author Commentary
1249(1)
Duration of Privilege
1249(1)
Crime-Fraud Exception to Privilege
1249(1)
In Re Berkley and Co.
1250(4)
Author Commentary
1254(2)
Waiver of Attorney-Client Privilege
1256(38)
Waiver Rule Summarized
1256(1)
Acts of Waiver
1257(1)
Allegations of Ineffective Assistance of Counsel
1257(1)
Pruitt v. Peyton
1257(2)
Disclosure to Third Parties
1259(1)
In General
1259(1)
What Level of Disclosure Waives Privilege?
1259(1)
Whose Conduct May Result in Waiver or Destruction of Privilege?
1260(1)
Voluntary Disclosures by Client
1260(1)
Commodity Futures Trading Commission v. Weintraub
1261(4)
Author Commentary
1265(1)
Breaches of Confidentiality by Attorney
1266(1)
In Re Grand Jury Investigation of Ocean Transportation
1266(2)
Author Commentary
1268(1)
Breaches of Confidentiality by Third-Party Initiative
1269(1)
Suburban Sew'n Sweep, Inc. v. Swiss-Bernina, Inc.
1269(5)
Author Commentary
1274(1)
Involuntary Disclosures
1274(1)
Consequences of Waiver
1275(1)
In General
1275(1)
``Subject Matter'' Waiver
1275(1)
Amca International Corp. v. Phipard
1276(5)
Author Commentary
1281(1)
``Limited Waiver''
1282(4)
Special Waiver Issues
1286(1)
Disclosure Among Codefendants and Co-Counsel
1286(1)
United States v. McPartlin
1287(2)
Joint Representation in One Case, Adversaries in Another
1289(1)
Truck Insurance Exchange v. St. Paul Fire & Marine Insurance Co.
1289(2)
Medical and Psychiatric Advisors to Attorney
1291(1)
State v. Pratt
1292(1)
Author Commentary
1293(1)
Relationship of Privileges to Other Rules
1294(2)
Rule 104(a)---Preliminary Questions
1294(1)
Rule 612---Writing Used to Refresh Memory
1294(2)
New Privilege Rules Recognized under Authority Granted in Rule 501 (``In Light of Reason and Experience'')
1296(13)
In Re Grand Jury Subpoena
1298(2)
Author Commentary
1300(1)
Problems
1301(8)
Shortcuts to Proof
1309
Presumptions
1309(54)
The Common Law
1309(1)
Presumptions Reallocate Burdens of Production and Persuasion
1309(1)
On What Basis Are Presumptions Created?
1309(1)
Characteristics of a True Presumption
1310(1)
Rebutting Presumptions
1311(1)
Effect of Evidence Rebutting the Presumption
1312(1)
Two Basic Theories
1312(1)
The Thayer/Wigmore View
1312(1)
Texas Department of Community Affairs v. Burdine
1313(4)
Author Commentary
1317(2)
The Morgan/McCormick View
1319(1)
Conflicting Presumptions
1319(1)
Legille v. Dann
1320(7)
Author Commentary
1327(1)
Presumptions Against Criminal Defendants
1328(1)
Ulster County Court v. Allen
1329(9)
Author Commentary
1338(4)
Is the Constitutional Requirement of a Rational Connection Applicable to Presumptions in Civil Cases?
1342(4)
Federal Rules of Evidence---Rule 301
1346(1)
Changes from the Common Law
1346(1)
What Presumptions?
1347(1)
Electronic Evidence: Law and Practice
1347(2)
Rule 301 Does Not Cover Criminal Actions and Actions Controlled by State Law, and Does Not Apply Where ``Otherwise Provided''
1349(1)
Rule 302
1350(4)
Use of Presumptions Against Prosecution in Criminal Cases: What Rule Controls Their Admissibility?
1354(1)
Rule 303
1355(1)
Instructing the Jury on the Rebutted Presumption
1356(1)
Relationship to Other Rules
1357(1)
Rule 104(b)---Preliminary Questions of Conditional Relevance
1357(1)
Rule 201---Judicial Notice of Adjudicative Facts
1357(1)
Rule 803(6)---Records of Regular Conducted Activity; Rule 803(8)(C)---Public Records and Reports
1358(1)
Rule 901---Authentication; The Reply Doctrine
1359(2)
Rule 902---Self-authentication
1361(1)
Problems
1361(2)
Judicial Notice
1363
The Common Law
1363(1)
Purpose and Effect of Judicial Notice
1363(1)
Judicial Notice of Fact
1363(1)
Facts Subject to Judicial Notice
1363(1)
Varcoe v. Lee
1363(4)
Author Commentary
1367(1)
Indisputable Facts
1368(1)
Commonly Known Facts
1368(1)
Facts That are Easily Verifiable from Unimpeachable Sources
1369(1)
Nicketta v. National Tea Co.
1370(3)
Author Commentary
1373(1)
Nonadjudicative Facts: Facts Underlying Logical Reasoning and Judgment
1373(1)
Legislative Facts---Facts upon Which the Law is Interpreted and Applied
1374(2)
Judicial Notice of Law
1376(1)
Effect of Taking Judicial Notice
1377(3)
Procedural Aspects of Judicial Notice
1380(1)
Federal Rules of Evidence---Rule 201
1381(1)
Changes from the Common Law
1382(1)
Distinction Between Legislative and Adjudicative Facts
1383(1)
General Principles Applied by Courts
1383(1)
Judicial Notice: Rule 201 of the Federal Rules of Evidence
1384(3)
Do Courts Distort Legislative-Adjudicative Fact Distinction in Criminal Cases to Avoid the Effect of Rule 201(g)?
1387(1)
Verified Facts---Rule 201 Is Not Intended to Make Judge an Expert Witness
1388(2)
Parties Have Right to be Heard, No Right to Prior Notification; How Important is Prior Notification?
1390(1)
Resolution of the Morgan-Wigmore Controversy---Why the Morgan View? What are The Implications?
1391(1)
Judicial Notice: Rule 201 of the Federal Rules of Evidence
1391(2)
Taking Judicial Notice After Trial---Fairness Limits Court's Power to Judicially Notice Facts Under Rule 201(f)
1393(1)
Tension Between Power of Appellate Courts to Take Judicial Notice and Requirement of Rule 201(g) that Judicial Notice in Criminal Cases be Permissive
1393(1)
Does Rule 201(g) Limit Power of Appellate Courts to Take Judicial Notice in Criminal Trials?
1393(1)
United States v. Jones
1394(2)
Does Mandatory Jury Instruction by Trial Court, or Taking of Judicial Notice by Appellate Court, Violate Criminal Defendant's Right to Trial by Jury?
1396(1)
Gold v. United States
1397(3)
Judicial Notice of Law---A Procedural Matter
1400(1)
Relationship to Other Rules
1401(1)
Rule 103(a)(1)---Rulings on Evidence
1401(1)
Rule 104---Preliminary Questions
1401(1)
Rule 401---Definition of ``Relevant Evidence''; Rule 402---Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible; Rule 403---Exclusion of Relevant Evidence; Rule 702---Testimony by Experts; Rule 703---Basis of Opinion Testimony by Experts; Rule 901(b)(9)---Requirement of Authentication or Identification of a Process or System
1401(1)
State v. Tomanelli
1402(2)
Rule 803(18)---Learned Treatises
1404(1)
Problems
1405
Table of Cases 1(1)
Index 1

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