Preface to the Third Edition

v

Preface to the Second Edition

vii

Preface to the First Edition

ix

Westlaw Overview

xi

ch. 1

Presenting Evidence at Trial: An Overview

1

1.01.

The Adversarial Trial

1

1.02.

Stages of a Common-Law Trial

3

Pretrial

3

Jury Selection

4

Opening Statements

4

Plaintiff's Case-in-Chief

5

Defendant's Case-in-Chief

5

Plaintiff's Rebuttal and Defendant's Surrebuttal

6

Motions for Judgment as a Matter of Law or Judgment of Acquittal

6

Closing Arguments (Summation)

7

Jury Instructions

7

Jury Deliberations, Verdict Forms, and Verdicts

7

1.03.

Evidence in a Common-Law Trial---Overview

8

1.04.

Sources of Modern American Evidence Law

10

1.05.

Admission and Exclusion of Evidence; Preliminary Questions of Fact [FRE 104]

12

1.06.

Examination of Witnesses---To Lead or Not to Lead? [FRE 611]

19

1.07.

Direct Examination

21

1.08.

Refreshing Recollection [FRE 612]

22

1.09.

Cross-examination

24

1.10.

Scope of Cross-examination and Other Subsequent Examinations [FRE 611(b)]

27

1.11.

Opening the Door, Curative Admissibility, Fighting Fire with Fire

29

1.12.

Documents in Context [FRE 106]

34

1.13.

Judicial Notice of Adjudicative Facts [FRE 201]

36

ch. 2

Procedures for Offering and Opposing Evidence in a Common Law Trial

42

2.01.

Lawyers as Evidence Police

42

2.02.

Motions in Limine

43

2.03.

Objections and Motions to Strike at Trial [FRE 103]

45

2.04.

How to Phrase an Objection

48

2.05.

Timing of Objections

53

2.06.

Sidebar Conferences (Bench Conferences); Excusing the Jury

56

2.07.

Continuing Objections

57

2.08.

Voir Dire to Lay the Foundation for an Objection

58

2.09.

Motion for Limiting Instruction [FRE 105]

60

2.10.

Offer of Proof

61

ch. 3

Objections to the Form of the Question or the Answer: A Handy Guide for Evidentiary Objections

65

3.01.

The Rules of the Game

65

3.02.

"Objection, Leading"

66

3.03.

"Objection, Calls for a Narrative"

66

3.04.

"Move to Strike, the Answer Is Not Responsive"

67

3.05.

"Objection, Assumes Facts Not in Evidence"

69

3.06.

"Objection, Argumentative"

73

3.07.

"Objection, Counsel Is Harassing the Witness"

73

3.08.

"Objection, Compound Question"

74

3.09.

"Objection, Vague (or Ambiguous or Confusing)"

74

3.10.

"Objection, Misstates the Evidence"

75

3.11.

"Objection, Asked and Answered"; "Objection, Cumulative"

75

3.12.

"Objection, Improper Opinion (Calls for Speculation, or Too General)"

77

3.13.

"Objection, the Document Speaks for Itself

78

3.14.

"Objection, Lack of Personal Knowledge"

78

3.15.

One Non-Objection: "Self-Serving"

79

ch. 4

Burdens and Presumptions

82

4.01.

Introduction

82

4.02.

"Burden of Proof: Two Meanings

83

4.03.

Burden of Persuasion---Overview

83

4.04.

Burden of Persuasion---Defining Burdens of Persuasion: Standards of Proof

84

4.05.

Burden of Persuasion---Allocating the Burden of Persuasion between the Parties

86

4.06.

Burden of Production

88

4.07.

Presumptions---Introduction

95

4.08.

Presumptions---Presumptions Defined and Distinguished from Other Devices

96

4.09.

Presumptions---Effectuating Presumptions

100

4.10.

Presumptions---Rebutting Presumptions

101

Challenging Neither Foundational Nor Presumed Facts

101

Challenging Only Foundational Facts

102

Challenging Only Presumed Fact

103

Challenging Both the Foundational and the Presumed Facts

108

4.11.

Presumptions---The Problem of Conflicting Presumptions

108

4.12.

Presumptions---Presumptions in Criminal Cases

110

4.13.

Presumptions---The Federal Rules of Evidence and Presumptions

114

ch. 5

Relevancy and Its Limits

116

General Concepts of Relevancy [FRE 401]

5.01.

Introduction to Relevancy

118

5.02.

Relevancy and Materiality; Dealing with Evidence Offered on a Conceded Issue

119

5.03.

Rule 403: The Universal Fall-Back Objection

122

Examples of Rule 403 in Operation

124

Character and Other Misconduct Evidence

5.04.

The Prohibition on Use of Character to Show Conduct: In General [FRE 404(a)]

126

Purposes of the Rule Excluding Character Evidence

128

5.05.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)-(3)]

131

5.06.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)-(3)]---Evidence. of Defendant's Good Character in Criminal Cases [FRE 404(a)(1)]

132

5.07.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a) (1)-(3)]---Rebuttal by the Government of Defendant's Character Evidence [FRE 404(a)(1)]

134

5.08.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)-(3)]---Character of the Victim in Criminal Cases [FRE 404(a)(2)]

137

5.09.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)-(3)]---Rape Shield Exception to Character of Victim [FRE 412]

140

5.10.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)-(3)]---Character of Defendant in Sexual Assault and Child Molestation Cases [FRE 413-415]

146

Application of Rule 403

149

Constitutional Challenges to Rules 413-414

151

Evaluating Rules 413-414

152

5.11.

Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)-(3)]---Character of Witnesses

154

5.12.

Methods of Showing Character: Evidence of Reputation, Opinion, and Specific Acts [FRE 405]

155

Reputation and Hearsay

155

Reputation in the Community or in the Workplace

155

Personal Knowledge Requirement for Reputation

156

Absence of Bad Reputation

157

5.13.

Methods of Showing Character: Evidence of Reputation, Opinion, and Specific Acts [FRE 405]---Laying the Foundation for Character Evidence: Examples

157

5.14.

Character Evidence in Civil Cases

159

5.15.

Character Evidence in Civil Cases---Other Claims, Other Frauds

160

5.16.

Evidence of Other Crimes, Wrongs, or Acts When Used for a Purpose Other Than Showing Action in Conformity with Character---In General [FRE 404(b)]

161

5.17.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered

165

5.18.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Motive

166

5.19.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Modus Operandi

168

5.20.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Opportunity

172

5.21.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Knowledge

173

5.22.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Intent; Absence of Mistake or Accident

175

5.23.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Preparation

178

5.24.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Other Acts of Sexual Misconduct

178

5.25.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Common Plan or Scheme

180

5.26.

Specific Purposes for Which Uncharged Misconduct Evidence May Be Offered---Identity

183

5.27.

Background; Complete Story Principle

184

5.28.

Quantum of Proof Required for Evidence of Uncharged Misconduct

185

5.29.

Character as an Ultimate Issue [FRE 405(b)]

188

5.30.

Character and Habit [FRE 406]

189

5.31.

Procedural Aspects of Character and Other Crimes Evidence---Notice; Motions in Limine

192

5.32.

Procedural Aspects of Character and Other Crimes Evidence---Limiting Instructions

193

5.33.

Procedural Aspects of Character and Other Crimes Evidence---Partial Exclusion; Redaction; Limited Inquiry

195

The Subsequent Remedial Measures Rule [FRE 407]

5.34.

The Subsequent Remedial Measures Rule: Definition and Rationale

196

5.35.

Remedial Measures Evidence that Falls Outside the Rule

198

5.36.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered to Show Ownership or Control

200

5.37.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered to Impeach a Witness

201

5.38.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered to Explain Exhibit Illustrating Scene of Accident

203

5.39.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered to Show Feasibility of Precautionary-Measures

205

5.40.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered to Show Causation of Accident

208

5.41.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered to Support or Defend Against Award of Punitive Damages

208

5.42.

Remedial Measures Evidence that Falls Outside the Rule---Evidence Offered in Strict Liability Cases

209

5.43.

Practice Considerations

211

5.44.

Form of Objection; Motion in Limine

212

The Offers in Compromise Rule (Settlement Negotiations and Agreements) [FRE 408]

5.45.

Exclusion of Evidence of Settlement Agreements and Settlement Offers

213

5.46.

Exclusion of Statements Made During Settlement Negotiations: Common Law and Federal Rule Approaches

216

5.47.

Use of Settlement Evidence and Compromise Negotiations as Impeachment

218

5.48.

Uses of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion

218

5.49.

Uses of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion---Exceptions for Compromise Negotiation Statements Made to Public Officials or Agents When Used in Subsequent Criminal Proceeding

219

5.50.

Uses of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion---Settlement of an Undisputed Claim

219

5.51.

Uses of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion---Discussions Constituting Business Negotiations Rather Than Negotiations to Compromise a Legal Dispute

220

5.52.

Uses' of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion---Compromise or Behavior During Compromise Discussions as the Subject of the Action

222

5.53.

Uses of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion---Evidence Offered for Other Purposes; Bias and Delay

223

5.54.

Practice Considerations

224

5.55.

Form of Objection; Request for Limiting Instruction

225

Other Objections Based on Relevancy and Its Limits

5.56.

Evidence of Payment of Medical and Similar Expenses [FRE 409]

226

5.57.

Plea Bargaining Statements; Withdrawn Guilty Pleas; Pleas of Nolo Contendere [FRE 410]

228

5.58.

Evidence of Liability Insurance [FRE 411]

231

5.59.

Collateral Source Rule

234

5.60.

Other Accidents, When Offered by Personal Injury Plaintiffs

236

5.61.

Absence of Other Accidents, When Offered by Personal Injury Defendants

237

ch. 6

Competency

239

6.01.

Rules of Competency in General [FRE 601]

239

6.02.

Mental Health and Mental Handicap as Grounds for Incompetency

241

6.03.

Incompetency of Child

241

6.04.

Dead Man's Statute

242

6.05.

Testimony by Judge or Juror [FRE 606]

243

6.06.

Witness Has Not Taken Oath [FRE 603]

246

6.07.

Hypnotically Refreshed Testimony

247

ch. 7

The Definition of Hearsay [FRE 801]

252

7.01.

Definition of Hearsay

252

7.02.

Rationale

255

7.03.

Out-of-Court Statements that Are Not Hearsay

258

Statements Offered to Show Their Effect on the Listener or Reader

258

Legally Operative Language

260

Circumstantial (Indirect) Evidence of Declarant's State of Mind

262

7.04.

Nonverbal Conduct as Hearsay

266

ch. 8

Prior Statements by Witnesses and Statements by Party Opponents

268

8.01.

Prior Statements of Witnesses

268

8.02.

Prior Statements of Witnesses---Prior Inconsistent Statements [FRE 801(d)(1)(A)]

269

8.03.

Prior Statements of Witnesses---Prior Consistent Statements [FRE 801(d)(1)(B)]

272

8.04.

Prior Statements of Witnesses---Prior Identification Statements [FRE 801(d)(1)(C)]

275

8.05.

Statements of a Party-Opponent [FRE 801 (d)(2)(AMD)]

276

Silence as Statements

279

Agency Statements

280

8.06.

Statements of a Co-conspirator [FRE 801(d)(2)(E)]

284

Who Decides?

288

What Is the Quantum of Proof?

289

Is "Bootstrapping" Permissible?

289

Confrontation Issues

290

ch. 9

Exceptions to the Hearsay Rule

291

9.01.

Exceptions to the Hearsay Rule---Introduction

292

Exceptions That Apply Whether or Not the Declarant Is Available [FRE 803]

9.02.

Hearsay Exceptions Generally

294

9.03.

The Present Sense Impression Exception [FRE 803(1)]

295

9.04.

The Excited Utterance Exception [FRE 803(2)]

297

9.05.

Statements About the Declarant's Present State of Mind or Body [FRE 803(3)]

299

9.06.

Statements for Medical Diagnosis or Treatment [FRE 803(4)]

302

9.07.

Past Recollection Recorded [FRE 803(5)]

306

Establishing the Foundation for a Past Recollection Recorded

308

Refreshing Memory

310

9.08.

The Business Records Exception [FRE 803(6)]

311

9.09.

The Business Records Exception [FRE 803(6)]---Regular Practice of the Business

312

9.10.

The Business Records Exception [FRE 803(6)]---Authentication With and Without a Testifying Witness

313

9.11.

The Business Records Exception [FRE 803(6)]---The Business Duty Requirement

314

9.12.

The Business Records Exception [FRE 803(6)]---Transmitted by a Person With Knowledge

316

9.13.

The Business Records Exception [FRE 803(6)]---At or Near the Time

317

9.14.

The Business Records Exception [FRE 803(6)]---Lack of Trustworthiness

317

9.15.

The Business Records Exception [FRE 803(6)]---Statements Prepared for Litigation

318

9.16.

The Business Records Exception [FRE 803(6)]---Special Problems With Hospital Records

319

Hearsay Within Hearsay in Hospital Records

319

Diagnoses in Hospital Records

320

9.17.

The Business Records Exception [FRE 803(6)]---Police Records as Business Records

321

9.18.

Absence of Entry in Business Record [FRE 803(7)]

322

9.19.

The Public Records Exception [FRE 803(8)]

323

9.20.

The Public Records Exception [FRE 803(8)]---Police Records

326

9.21.

The Public Records Exception [FRE 803(8)]---The Concept of "Factual Findings"

328

9.22.

Absence of Public Record or Entry [FRE 803(10)]

330

9.23.

Records of Vital Statistics; Death Certificates [FRE 803(9)]

331

9.24.

Learned Treatise Exception [FRE 803(18)]

335

Liberalization in the Federal Rules

337

9.25.

Learned Treatise Exception [FRE 803(18)]---Foundation for Use of Learned Treatise

338

Established as Reliable Authority

338

Shown to Expert

339

Limitation: Treatise Is Not an Exhibit

339

9.26.

Ancient Documents [FRE 803(16)]

340

9.27.

Family History Exceptions and Related Matters [FRE 803(19), 804(b)(4)]

341

9.28.

Marriage, Baptismal, and Similar Certificates [FRE 803(12)]

344

9.29.

Family Records [FRE 803(13)]

345

9.30.

Records of Religious Organizations [FRE 803(11)]

345

9.31.

Market Reports and Commercial Publications [FRE 803(17)]

346

9.32.

Records of Documents Affecting an Interest in Property [FRE 803(14)]

347

9.33.

Statements in Documents Affecting an Interest in Property [FRE 803(15)]

347

9.34.

Reputation Concerning Boundaries, Land Customs, and General History [FRE 803(20)]

348

9.35.

Use of Prior Convictions to Prove the Convicted Person Committed the Acts Charged and Related Matters [FRE 803(22)]

350

9.36.

Use of Prior Convictions to Prove the Convicted Person Committed the Acts Charged and Related Matters [FRE 803(22)]---Principles of Issue Preclusion and the Prior Conviction

351

Historical Doctrine

351

Issue Preclusion Despite Lack of Mutuality

353

9.37.

Use of Prior Convictions to Prove the Convicted Person Committed the Acts Charged and Related Matters [FRE 803(22)]---Use of Prior Convictions as Evidence

355

Exceptions That Apply Only if the Declarant Is Unavailable [FRE 804]

9.38.

Exceptions that Apply Only if Declarant Is Unavailable

358

Definition of Unavailability

359

Requirement of Deposition

360

9.39.

The Former Testimony Exception and Related Matters [FRE 804(b)(1)]

361

9.40.

The Former Testimony Exception and Related Matters [FRE 804(b)(1)]---Identity of Parties

363

9.41.

The Former Testimony Exception and Related Matters [FRE 804(b)(1)]---Similar Motive to Cross-Examine

366

9.42.

The Dying Declarations Exception [FRE 804(b)(2)]

368

Unavailability

369

Belief That Death Imminent

369

Statement Concerns the Cause or Circumstances of Death

370

Present Action Is a Civil Case or Homicide Prosecution

371

Personal Knowledge Required

371

9.43.

The Declarations Against Interest Exception [FRE 804(b)(3)]

372

Statements by Party-Opponents Distinguished

372

9.44.

The Declarations Against Interest Exception [FRE 804(b)(3)]---Types of Interest that Qualify

373

9.45.

The Declarations Against Interest Exception [FRE 804(b)(3)]---Statements that Are Only Partly Disserving

375

9.46.

The Forfeiture by Wrongdoing Exception

377

Other Hearsay Issues

9.47.

The Residual Exception to the Hearsay Rule

380

Trustworthiness Requirement

381

More Probative on the Point for Which it is Offered

381

Interests of Justice

383

Notice Provision

383

Possible Limit on Admission Under Rule 807: "Near Miss" Hearsay

384

Applications of Rule 807

385

9.48.

Miscellaneous Hearsay Exceptions

386

Statements of Recent Perception

386

Statements of Deceased Persons

387

Statements by Children Describing Abuse

388

9.49.

Hearsay Within Hearsay [FRE 805]

389

Is Hearsay Within Hearsay Trustworthy?

391

Illustrations

392

Present Sense Impressions as Double Hearsay

394

9.50.

Out-of-Court Statements that Are Admissible in Part or for a Limited Purpose

397

9.51.

Attacking and Supporting the Credibility of a Hearsay Declarant [FRE 806]

399

9.52.

Requirement that the Hearsay Declarant Have Personal Knowledge

401

9.53.

Hearsay Through the Mouth of an Expert

403

ch. 10

The Operation of the Hearsay Rule in the Courtroom---Some Practical Tips

405

10.01.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb

405

10.02.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb---"It's admissible because it was said in the presence of the defendant"

405

10.03.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb---"It's part of the res gestae"

406

10.04.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb---"It's admissible because it shows state of mind"

407

10.05.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb---"It's admissible because it's only being offered to impeach"

409

10.06.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb---"The statement is only offered to show that it was made"

410

10.07.

Courtroom Expressions and Their Relationship to Hearsay Doctrine: Catch Phrases and Rules of Thumb---"A question can't possibly be hearsay"

410

10.08.

Hearsay in Relation to Other Objections

412

ch. 11

Confrontation

413

11.01.

Introduction to the Confrontation Clause

413

11.02.

Crawford v. Washington

415

11.03.

Davis v. Washington

418

11.04.

Giles v. California: Forfeiture by Wrongdoing

423

11.05.

Melendez-Diaz: Lab Reports and Confrontation

427

11.06.

Methods of Confrontation

429

11.07.

Established Principles Post-Crawford; Remaining Open Questions

431

What We Know For Sure Post-Crawford

431

Remaining Open Questions

433

11.08.

Confrontation and the Special Rule of Bruton

435

ch. 12

Evidentiary Privileges

437

12.01.

The Origin and Policy of Privilege

437

12.02.

The Difference Between Privilege and Professional Confidentiality

439

12.03.

The Lawyer-Client Privilege

439

12.04.

The Lawyer-Client Privilege---The Requirement of Confidentiality

443

12.05.

The Lawyer-Client Privilege---The Requirement of Communication to a Proper Person

445

12.06.

The Lawyer-Client Privilege---The Requirement that the Purpose Be to Obtain Legal Advice or Service

446

12.07.

The Lawyer-Client Privilege---Failure of the Privilege to Cover Fact of Employment, Identity of Client, and Payment of Fees

448

12.08.

The Lawyer-Client Privilege---Duration of the Privilege Beyond the Life of the Client

450

12.09.

The Lawyer-Client Privilege---Application of the Privilege to the Corporate Client

451

The Limited Protection for a Lawyer's Work Product

456

12.10.

The Lawyer-Client Privilege---The Crime-Fraud Exception to the Privilege

457

12.11.

The Lawyer-Client Privilege---Waiver of Privilege

459

12.12.

The Lawyer-Client Privilege---Disputes Between Client and Lawyer

463

12.13.

The Physician-Patient Privilege

464

12.14.

The Psychotherapist-Patient Privilege

467

12.15.

The Marital Privileges

468

12.16.

The Marital Privileges---The Privilege Against Adverse Spousal Testimony

469

12.17.

The Marital Privileges---The Privilege for Marital Confidences

471

12.18.

The Privilege Against Self-incrimination

475

12.19.

The Government's Privileges

480

12.20.

Other Privileges

481

ch. 13

Impeachment and Rehabilitation of Witnesses

484

13.01.

Introduction to Impeachment of Witnesses

484

13.02.

Impeaching One's Own Witness; Objection to Calling Witness Solely to Impeach with Prior Inconsistent Statement [FRE 607]

486

13.03.

Good Faith Cross-Examination of Witnesses

489

13.04.

Impeachment by Contradiction

491

13.05.

Impeachment by Prior Inconsistent Statement [FRE 613]

495

Objection---Prior Statement Is Consistent with Trial Testimony

495

Objection---No Foundation for Extrinsic Evidence

496

Objection---Document Should Be Shown to Witness Before Using It to Impeach

498

Objection---Collateral Impeachment

499

13.06.

Showing Untruthful Character of Witness [FRE 608]

501

13.07.

Showing Untruthful Character of Witness [FRE 608]---Impeachment of Truthfulness of the Witness by Reputation and Opinion Testimony as to Character [FRE 608(a)]

502

13.08.

Showing Untruthful Character of Witness [FRE 608]---Impeachment of Truthfulness of the Witness with Evidence of Conduct that Did Not Lead to Conviction [FRE 608(b)]

505

13.09.

Impeachment of Witness with Evidence of Prior Convictions [FRE 609]

509

Rule 609(b)

Ten-Year Time Limit

511

Rule 609(a)(1)

Crimes Punishable for More Than One Year

511

Rule 609(a)(2)

Crimes

515

Summary of Admissibility of Convictions Under Rule 609(a)

516

Extrinsic Evidence of Prior Convictions

516

Eliciting the Details of Prior Convictions

516

Pardons; Juvenile Adjudications

518

13.10.

Impeachment with Evidence of Bias

519

13.11.

Impeachment with Evidence of Defects in Perception, Memory, or Mental Health

523

Defects in the Five Senses

523

Alcohol Intoxication and Alcoholism

523

Drug Use and Drug Addiction

524

Mental Defect, Abnormality, or Disease

525

13.12.

Improper Rehabilitation of Witness

527

ch. 14

Opinion Evidence and Expert Testimony

530

14.01.

The Common-Law Rule Against Lay Opinion Testimony

530

14.02.

Lay Opinion Testimony Under the Federal Rules: Rule 701

531

14.03.

Expert Testimony: A Brief History

535

The Frye Test

536

Enactment of the Federal Rules

536

The Daubert Revolution

537

The 2000 Amendments to Rule 702

541

Which Test Should States Adopt---Daubert or Frye?

541

14.04.

Expert Testimony Subject Matter: Rule 702

543

Does the testimony consist of scientific, technical, or other specialized knowledge?

544

Will the testimony assist the trier of fact to understand evidence or determine a fact in issue?

544

Is the witness who is offering testimony qualified as an expert by knowledge, skill, training, experience, or education?

545

Is the testimony based on sufficient facts or data?

545

Is the testimony the result of reliable principles and methods?

546

Has the witness correctly applied the principles and methods to the facts of the case?

547

14.05.

The Basis of Opinion Testimony by Experts: Rule 703

548

14.06.

Disclosure of Facts or Data Underlying the Opinion: Rule 705

551

14.07.

Opinions on the Ultimate Issue at Trial: Rule 704

552

14.08.

Practical Considerations Regarding Expert Testimony

556

The Daubert Hearing and Expert Qualification

556

The Use of Hypothetical Questions

557

Lab Reports and Melendez-Diaz

561

14.09.

Current Examples of Controversial Expert Testimony

563

Handwriting Analysis

564

Polygraph Evidence

565

Eyewitness and Cross-Racial Identification

567

Rape Trauma Syndrome and Related Issues

568

Police Experts

569

Field Sobriety Tests

570

ch. 15

Authentication, Identification, and Exhibits

573

15.01.

Authentication and Identification under the Rules [FRE 901, 902]

573

15.02.

Handling Exhibits in the Courtroom

575

15.03.

Laving a Foundation for a Variety of Exhibits

577

15.04.

Real Evidence---The Chain of Custody

578

15.05.

Demonstrative Exhibits that Are Illustrative of Other Testimony

582

15.06.

Demonstrative Exhibits that Are Illustrative of Other Testimony---Diagrams and Models

584

15.07.

Demonstrative Exhibits that Are Substantive

586

15.08.

Demonstrative Exhibits that Are Substantive---Photography

586

"Silent Witness" Photographs

588

Various Medical Imaging Machines

590

Motion Pictures and Videotape

591

Photographs Used to Prove Actual Conditions

594

15.09.

Demonstrative Exhibits that Are Substantive---Sound Recordings and Other Conversations

595

15.10.

Demonstrative Exhibits that Are Substantive---Documents

597

15.11.

The Special Problems of Computer-Generated Exhibits

599

15.12.

The "Best Evidence" of the Contents of Writings, Recordings, and Photographs [FRE 1001-1006]

603

Non-Production Allowed

607

Any Secondary Evidence Will Do

608

Summaries

609

ch. 16

Appellate Review of Rulings on Objections

612

16.01.

Trial Court Discretion and Standards of Review

612

16.02.

Preserving Error for Appeal---In General

615

16.03.

Harmless versus Prejudicial Error

616

16.04.

Constitutional Error

620

16.05.

Plain Error

623

Appendix A

Federal Rules of Evidence

629

Appendix B

Westlaw Appendix

687

Table of Cases

705

Table of Statutes and Rules

747

Index

759