We have previously touched on issues relating to evidence, including the types of evidence, the manner of collecting it, and the means of introducing it at trial (or less strictly during ADR—see chapter 9 at 9.8). This chapter will deal with the rules governing what types of evidence may be used by a party to a case.
The rules of evidence, as we will see, vary from jurisdiction to jurisdiction. Nevertheless, there are certain broad principles that we can use to generalize. This chapter focuses on the rules of evidence that are most likely to impact the business community. Thus it will discuss only rules related to civil litigation matters, and not special rules that might exist in the criminal context. Moreover, evidence is a complicated area of law (one with which law students frequently struggle), and space considerations do not permit a comprehensive discussion of all facets of this topic. Accordingly, this chapter is intended to give only a broad overview.
10.1 Federal Rules of Evidence
Courts throughout history have had to deal with how to weigh evidence and decide what types of evidence to consider in specific contexts. This resulted in a widely disparate body of law governing the proof of facts and inferences at trial. Thus in the 1960s and 1970s, the Supreme Court began drafting a comprehensive set of rules to govern evidentiary issues. After a long period of study and consideration, the Federal Rules of Evidence (FRE or Federal Rules) were adopted by Congress in the Act to Establish Rules of Evidence for Certain Courts and Proceedings and signed into law by President Ford on January 2, 1975.
The Federal Rules control in proceedings before all federal courts, including the US district courts, courts of appeals, and bankruptcy courts. They are not binding on the states, and the Federal Rules do not control in state court litigation. Instead, each state (and territory) has adopted its own set of evidentiary rules, some of which predate the Federal Rules. In the vast majority of states, however, the rules of evidence are modeled closely on the Federal Rules, and in many respects are identical. Thus state courts will often look to federal court decisions interpreting the Federal Rules in determining how to apply their own state’s similar rules. This chapter will therefore focus on the Federal Rules, with some discussion of state rules where comparison will be instructive.
During a jury, it is the role of the judge, as part of his or her power to decide questions of law, to play the role of arbiter over what evidence is to be admitted, or presented at trial to the jury, and what evidence is to be excluded, or kept from the jury. The jury, as trier of fact, must determine what weight to give each piece of evidence presented to it. In courts that hold jury trials, the rules of evidence are very strictly adhered to. In some courts (such as the Delaware Court of Chancery) and some cases (where both parties decline to demand a jury trial), there is no jury and the judge determines both questions of fact and of law. This chapter speaks of evidence being presented to a “jury,” but the rules are normally applicable even in a bench trial. In such cases, however, the rules of evidence may be less strictly followed as the court will be exposed to all evidence regardless of whether it is admitted or excluded, and is usually better equipped than a jury to determine, as a matter of law, what weight to assign each piece of evidence presented to it.
10.2 Relevance and Probity
Evidence is discoverable if the law permits a party to obtain it through normal discovery processes. Generally, a party may take discovery (see chapter 9 at 9.4) “regarding any nonprivileged matter that is relevant to any party's claim or defense—
including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” But evidence need not be admissible (appropriate to present to the trier of fact at trial) in order to be relevant for discovery purposes. A party may take discovery into matters that are not admissible, as long as there is a reasonable possibility that the information uncovered through such discovery will lead to admissible evidence.
Thus, relevant evidence for discovery purposes is a much more broad category than admissible evidence. To confuse matters, the Federal Rules also speak of “relevant” and “irrelevant” evidence—the same phrase used in the Federal Rules in identifying discoverable evidence. The meaning, however, is slightly different. In the context of evidentiary rules, relevant information is information that has probative value; in other words, “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the relevance.” Evidence that has no probative value (evidence that does not make the existence of any fact in the case more or less probable) is irrelevant and therefore inadmissible.
The Federal Rules state that “all relevant evidence is admissible” unless the Federal Rules otherwise specify. However, the bulk of the remaining Federal Rules do exactly that—they specify various types of evidence that cannot be admitted before the court. So to determine whether evidence is admissible, one must first determine whether the information is relevant. If it is not relevant, it is not admissible, and no further inquiry is necessary. If it is relevant, it may still be barred from admission by one of the other rules.
Evidence generally falls within two categories: direct and circumstantial. Direct evidence is evidence which, if believed to be true, resolves a question at issue. Circumstantial evidence is evidence that, even if believed, does not resolve a question unless additional evidence or reasoning is needed. For example, suppose Party A sues Party B for interference with contractual relations (see chapter 15). A testifies that he saw B speaking with A’s customer the day before the customer breached its contract with A. That testimony is direct evidence that B spoke with the customer, but only circumstantial evidence that B induced the customer to breach its contract. This distinction is critical because direct evidence, by definition, is always relevant if it relates in any meaningful way to the subject matter of the litigation. The relevance of circumstantial evidence must be established by demonstrating the logical validity of the inferences that must be drawn from it in order to make the evidence probative.
To be relevant, evidence does not need to prove or disprove a proposition by itself. If it is a “link in the chain of evidence,” or connects with other pieces of evidence that, taken together, tend to prove or disprove a fact, it will most likely be considered relevant.
Evidence may be conditionally relevant if its relevance depends on the existence of a fact or condition. Such evidence is only admissible if evidence demonstrating the existence of such a fact or condition is presented. For example, suppose that Party A sues Party B for defamation. Party A produces emails between an unidentified source and various third parties containing defamatory allegations. The relevance of that evidence is conditional on the introduction of some evidence showing that the emails did—in fact—come from Party B. Absent such evidence, the emails will likely be excluded as irrelevant.
10.3 Counterweights to Probative Value
Confusion, delay, and prejudice. Relevant evidence may still be excluded if its probative value is outweighed by some countervailing factor. Most typically, relevant evidence can be excluded if the court determines that its probative value is outweighed by unfair prejudice, confusion, or undue delay. Unfair prejudice or confusion may arise out of evidence that has a tendency to provoke a decision on an improper basis, typically an emotional reaction, or where the evidence may confuse or distract the jury from the main issues in the case. Undue delay may arise where the evidence leads to a waste of time.
Gruesome photographs, for example, are often excluded as unduly prejudicial, because they evoke an emotional response that may cause the jury to become overly sympathetic with one side. However, such photos may be admissible if the court decides they are necessary to show the full extent of damages suffered in a tort case.
The court may exclude cumulative evidence if it serves no particular purpose and will lead to undue delay. For example, a court would likely not permit a party to call a dozen witnesses to testify to the exact same fact, on the grounds that the later witnesses are not adding anything substantive to the jury’s ability to weigh the evidence fairly.
10.4 Evidence of Other Acts or Circumstances
Character and reputation. In the civil context, evidence of a party’s character and reputation is normally not admissible on the grounds that it might mislead the jury and unfairly prejudice the jury against the party (the use of such evidence in the criminal context is severely circumscribed as well). Character and reputation may be admissible if a person’s character or a particular trait is an essential element of the case. Generally, character evidence may be used: (1) in tort cases to show that a defendant was negligent by placing trust in a person of known poor character; (2) in defamation cases, to show the truth of the allegedly defamatory statement (e.g., using evidence of plaintiff’s history as a convicted burglar to demonstrate the truth of the statement “plaintiff is a crook”) or to refute the allegation that the defamatory statement damaged the plaintiff’s reputation (because he already had a poor reputation); and (3) in a wrongful death action, to mitigate the the financial damage suffered by survivors of the deceased (by, for instance, showing that the deceased was a drug addict whose addiction would have reduced substantially his future earnings).
In civil actions, however, character evidence is not admissible as circumstantial evidence to show a general likelihood that a person acted in a specific way on a specific occasion. For example, evidence that a person breached three contracts that are not the subject of litigation would most likely not be admissible to support the allegation that he breached a fourth contract that is the subject of a breach of contract suit.
Habit. Evidence of habit, on the other hand, may very well be admissible under the federal rules and the rules of most states. Habit is distinguishable from character evidence in that while character is a general description of a person’s conduct and reputation, habit is a description of a person’s specific and consistent reaction to a specific, repeated set of circumstances. The elements that will be considered in order to determine whether a specific behavior qualifies as a “habit” include: (1) the specific nature of the conduct and the circumstances which lead to it; (2) the degree to which the conduct is repeated; (3) the time period over which the person exhibits the same behavior; and (4) the semi-automatic nature of the conduct (i.e., the degree to which the conduct involves conscious thought). For example, evidence that a person habitually turned the lights off when he left his office will probably be admitted as evidence tending to show that he turned his lights off on a particular occasion.
Other contracts. One type of evidence that is frequently at issue in business litigation where contract interpretation is an issue is evidence of other contracts. Such evidence may be admissible depending on the circumstances. Suppose Party A sues Party B for breach of contract. The contract contains the phrase “Party B shall pay Party A $25 per unit” but the word “unit” is unclear. B claims that a unit is a single box of items while A claims that a unit is a crate containing eight such boxes. The court would likely allow other contracts between B and A to be admitted into evidence if such other contracts also refer to “units.” This is because the manner in which B and A dealt in the past concerning “units” may illuminate the meaning of the word as it is used in the contract at issue. However, contracts between third parties involving the word “unit” would not likely be admitted because those do not shed any light on what B and A meant by the use of that phrase.
Other claims. Evidence that the defendant in a civil suit was convicted of crimes in the past is generally not admissible, because it is irrelevant. Exceptions are made, however, where the defendant is accused of fraud and can be demonstrated to have committed similar acts of fraud in the past. Similarly, the fact that a plaintiff has previously made similar claims against other defendants (or the same defendants) is not usually admissible unless it can be shown that such claims were fraudulent (thereby making it more likely that the present claims are without merit). Defendants in negligence actions often attempt to show that the plaintiff is accident prone by providing evidence of past accidents (implying that the cause of the accident at issue was the fault not of the defendant but of the allegedly clumsy, accident-prone plaintiff). Such evidence is usually excluded by courts because its probative value is outweighed by its potentially misleading nature—the prior accidents could be a consequence of mere chance or could have arisen from serious negligence on the part of multiple previous defendants.
Subsequent remedial measures. Owners of property often take remedial measures to enhance safety after an accident occurs. Evidence of such remedial measures is almost always inadmissible if it is offered to prove negligence. There are two primary reasons for such a restriction. First, allowing such evidence would discourage litigation defendants from making repairs that might prevent future injuries similar to those at issue. Secondly, evidence that a party made repairs is of limited probative value in establishing that the party was negligent in allowing the previous, unrepaired state of the property. To put it another way, just because one makes one’s property safer does not mean that, as a matter of law, it was negligent to maintain it in the prior condition. Yet evidence of remedial measures might be highly prejudicial, as it could give the jury the erroneous belief that it proves negligence. 
Evidence of subsequent remedial measures may, however, be admissible for other purposes, such as to show ownership or control (i.e., that the defendant performing the subsequent remedial work owned or controlled the property to a sufficient degree that they were capable of doing such work) or feasibility (i.e., that the repairs were possible). For example, suppose Party A sues Party B for negligence, asserting that Party B’s failure to provide a crosswalk in his parking lot led to A’s injury. The fact that B put in a crosswalk after the accident is not admissible to show that the lack of the crosswalk initially did constitute negligence. It would, however, be admissible to refute a claim by B that putting in a crosswalk would be impossible, because, for example, he did not own the parking lot or because it would have been technically unfeasible to do so. 
Offers of compromise and settlement. Evidence that a party to litigation offered or attempted settlement of a dispute (either before litigation is filed or during the course of litigation) is never admissible to show liability or damages. This rule stems out of the strong public policy favoring efficient settlement of claims. If a party was afraid that their offer of compromise would be used against them at trial, they would be unlikely to make any serious settlement efforts, and the courts might be clogged with cases that could much more efficiently have been settled privately. The exclusion generally extends to statements of relevant fact or opinion by the parties made during the course of settlement negotiations. The rule does not, however, exclude evidence of an offer to settle if that evidence is offered for other purposes. For example, a party might introduce such evidence to show that they were engaging in good-faith negotiations, and so did not delay unreasonably in bringing their claim.
Nevertheless, some lawyers attempt to use the power of this rule by inserting a “Rule 408 notice” at the top of all correspondence. The savvy consumer of legal services should be aware that these efforts often fail, as courts will not sanction unreasonable invocations of this rule and have recognized many exceptions.
Payment of medical expenses. Under FRE 409, offers, promises, or attempts to pay, or actual payment, by a civil defendant of medical expenses or similar costs arising out of an injury are not admissible to show liability on the part of the defendant. This rule is intended to encourage humanitarian acts, which would otherwise be discouraged if a party feared that such an act would later be used to prove their liability. Unlike Rule 408, this rule does not exclude statements of fact or opinion, or other conduct accompanying the offer, attempt, or payment, as such offers do not generally involve bargaining. Courts have recognized a few limited exceptions. For example, evidence of such payments is admissible to show that a plaintiff falls within a particular required category. Such evidence is also admissible when liability is not at issue, because, for example, the defendant has admitted it.
Liability insurance. Evidence that a defendant is or is not insured against liability is generally not admissible. This exclusion arises out of two considerations. First, telling the jury that a defendant has insurance coverage may cause them to be more cavalier about shifting responsibility onto that defendant (particularly where there are multiple defendants, and only some are insured). Second, presenting such evidence may cause the jury to improperly infer that a defendant exercised less care, because they knew they would be covered in the event of injury (though some studies suggest that juries may, just as improperly, attribute more care to a party that has the prudence to insure themselves). As with some of the other exclusions noted above, evidence of insurance may be admissible in certain limited circumstances when offered for a reason other than demonstrating liability. Thus, the fact that a party has insurance for a particular piece of property may be introduced to show ownership or control, to show that the party complied with a contractual obligation requiring such insurance be maintained, or for similar purposes.
10.5 Evidentiary Privileges
Tradition has established a number of evidentiary privileges, rules of evidence that allow the privileged party to refuse to provide evidence or even to prevent such evidence from being disclosed by other persons in a legal proceeding. The Federal Rules incorporate the traditional privileges available under the common law, as well as establishing specific codified privileges. While some privileges are recognized by all states, some states recognize additional privileges not applicable in other jurisdictions. In federal court cases where state law is at issue (matters of diversity jurisdiction), state law governs what privileges are available. In cases involving questions of federal law, federal law governs the application of evidentiary privilege. It is critical that for those involved in business to understand what privileges apply to them, and under what circumstances they might be invoked. Evidentiary privileges are particularly important in civil procedure because they can impose restrictions on the types and scope of documents and other evidence that must be provided to the other side.
Privilege against self-incrimination. The English common law held to the Latin maxim nemo tenetur se ipsum accusare (“no man is bound to accuse himself”), and protection against forced self-incrimination dates back at least to the 17th century. US law enshrines this principal in the Fifth Amendment to the Constitution, which states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” Most people are familiar with this concept as it applies to criminal cases, as it has given rise to the famous “Miranda warnings” used by police across the country (and on popular television programs). However, the privilege against self-incrimination applies to civil as well as criminal proceedings (and extrajudicial proceedings such as testimony before Congress or a Congressional committee). Taking advantage of this right is sometimes known as “taking the fifth” or “pleading the fifth.”
There are a few important implications to consider before invoking Fifth Amendment privileges. First, the right against self-incrimination only applies when one is testifying before a “state actor”—an organ, agency, court, or other apparatus of federal or state government. One may not “plead the fifth” when testifying before a self-regulating industry organization, such as the National Association of Securities Dealers (NASD). In addition, refusing to answer questions on Fifth Amendment grounds may be detrimental to one’s civil case. The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Fifth Amendment protections do not apply to information already disclosed to the government, for example, on tax returns. Most importantly, perhaps, is that the Fifth Amendment protects only “natural persons,” accordingly, corporations and other types of business entities may be forced to give testimony or produce records without the ability to invoke the right against self-incrimination.
Attorney-client privilege. The best-known, and most frequently (often improperly) invoked, privilege in business litigation is the attorney-client privilege, which appears both explicitly in the Federal Rules and in every state’s analogous rules. This privilege protects communications (written or oral) between a client and his attorney, where those communications are made for the purpose of facilitating or soliciting legal services. The attorney-client privilege seems like a simple principle, but is often misunderstood and misused by businesspersons who do not understand all of its nuances (and thus are forced to produce critical information that might otherwise have been protected). A number of important considerations must be borne in mind when dealing with such sensitive material.
First, the privilege generally belongs to the client, not the attorney. This is true whether the attorney is in-house or outside counsel, or even if a formal attorney-client relationship was never entered into. Therefore, a person may invoke the privilege even if he or she only had an initial consultation but decides not to hire the attorney. Business entities, as well as individuals, can exercise the privilege (though, as will be seen below, they must be very careful about doing so, as not everyone within the organization will be subject to it). The privilege remains in force after the termination of the client’s retention of the attorney unless the client waives it, and even survives the client’s death.
Second, the privilege protects communications, not facts. Thus one cannot simply place information outside the bounds of discovery by communicating that information to one’s attorney. For example, routine reports prepared in the ordinary course of business are not protected, even if they are shared with, among others, the company attorney. In other words, the substance of the particular communication from a client to his attorney will be privileged, but the underlying factual information will likely not be. On the other hand, advice and communications seeking information that go from an attorney to his client will usually be privileged.
Third, the privilege can be waived, or given up, inadvertently, if it is not jealously preserved. If the privilege is waived, the scope of the waiver may go beyond the actual communications, and in some cases will extend to other related communications. Providing access to confidential communications to third parties or even to employees with no “need to know” may result in the waiver of the attorney-client privilege. In some cases, however, it is necessary to bring third party agents of either the attorney or the client into certain communications to facilitate the legal work being done by the attorney. In such cases the privilege is usually not deemed waived, though the analysis will depend largely on the specific circumstances at issue. Similarly, counsel for co-plaintiffs, co-defendants (or other parties with significantly aligned legal interests) can usually share privileged communications among themselves under the joint defense or common interest doctrine. A party may also waive the privilege if they make a claim or defense that directly puts in issue the substance of a privileged communication.
Fourth, the attorney-client privilege does not protect communications that are used to further a crime or perpetrate a fraud. This exception applies only where the fraud or crime discussed by the attorney and client was actually put into effect.
Fifth, if (as is often the case) an attorney serves in multiple functions within an organization (as, for example, a business advisor and legal advisor), the client may lose the privilege if the court finds that the advice was not primarily legal in nature. Accordingly, it is absolutely critical that in-house counsel and other lawyers who serve multiple roles for their clients clearly distinguish between communications in which they are wearing their “lawyer hat” and communications sent as a business advisor, financial planner, accountant, etc. Legal issues should be discussed in a separate portion of any written communication, or better yet, in a separate letter or email altogether. Communications from businesspeople to their in-house counsel or other attorneys should make clear that legal services are being sought.
Sixth, an attorney may not be bound by the privilege if the client makes claims or accusations against the lawyer (such as legal malpractice), and the otherwise-privileged communications are needed for the lawyer to defend his reputation or otherwise fight the claims being made against him. Individuals or entities planning to sue their former lawyer should be aware that privileged communications may be used in defense of their claims.
Work product immunity. Related to the attorney-client privilege is the doctrine of immunity for attorney work product. This protects a party from having to disclose certain information obtained by their attorney (or people acting under the attorney’s direction or supervision) during the course of preparing for pending or anticipated litigation. The work product privilege provides qualified, or limited, protection for documents “prepared in anticipation of litigation or for trial” by the other party—a party can only be forced to produce such documents if the other party has “substantial need of the materials” and is “unable without undue hardship to obtain” the information contained therein. However, it also provides absolute, or unqualified, immunity for materials reflecting the attorney’s own thinking, litigation strategies, planning, mental impressions, legal opinions and conclusions, or theories of the case.
Both the Federal Rules and those of most states limit the extent to which accidental or inadvertent communications of privileged information may result in a waiver of the attorney-client or work product privilege.
Accountant-client privilege. There is no general privilege for communications with an accountant under federal law. Federal law does, however, recognize a limited accountant-client privilege in civil matters where federal law governs the application of privilege. This privilege was codified in the Internal Revenue Service Restructuring and Reform Act of 1998, which amended the Internal Revenue Code to state that communications between a taxpayer and a “federally authorized tax practitioner” would be privileged “to the extent the communication would be considered a privileged communication if it were between a taxpayer and an attorney.” This privilege applies only to communications made after the 1998 passage of the Act (or, for communications between an accountant and a corporate, rather than individual, client, on or after October 22, 2004) that reflect or solicit legal advice regarding tax laws or legislation, and is not a general privilege.
Several states, such as Missouri and Illinois, do recognize more general accountant-client and accountant work product privileges, but these are in the minority.
Doctor-patient and psychotherapist-patient privilege. Historically, there was no common-law privilege protecting confidential disclosures by a patient to his doctor. In the last half-century or so, however, virtually all states have enacted some sort of doctor-patient or physician-patient privilege by statute. There is no such privilege in the Federal Rules; however, it has become widely recognized. Indeed, some states and federal courts have extended the privilege to include communications between other health providers, including psychotherapists, psychologists, and even social workers. To be invoked, the communication generally must be one privately made (not disclosed to third parties), and made for the purpose of diagnosis and treatment. The privilege belongs to the patient. It is a qualified privilege and may sometimes be overridden by other pressing concerns, such as public safety or a criminal defendant’s constitutional right to confront his accuser.
Confessional privilege. All states and the federal courts recognize a confessional privilege (sometimes called the clergy-penitent privilege, priest-penitent privilege, confessional privilege, ecclesiastical privilege, or clerical privilege) that protects the contents of confidential communications between a person and his priest, minister, rabbi, or other clergyman. This privilege stems from the “seal of the confessional,” a duty imposed by the Roman Catholic Church on its priests not to disclose any information learned from worshippers during the course of the sacrament of penance. From there it became a part of English common law (though it has since been abolished in the UK) and of early American jurisprudence. The determination of who qualifies as a “clergyman,” what communications are privileged, and who holds the privilege (i.e., whether the clergyman can reveal the information if he wishes, against the wishes of the penitent) vary widely from jurisdiction to jurisdiction and sometimes from situation to situation. To be safe, businesspeople involved in litigation or potential litigation would do well to assume that, as a rule of thumb, their communications with their clergyman will not be privileged.
Familial privileges. The common law has long recognized a spousal privilege that protects private communications between a married couple. Each spouse may prevent the other from revealing the substance of such communications. This privilege is limited to communications made during the time of the marriage (including, in some cases, legally recognized common-law marriage). Generally the quality of the marriage is immaterial to the spouses’ abilities to invoke the privilege. The privilege survives the divorce of a couple, but will not apply to communications made after the divorce. Moreover, it will not apply where the spouses are adverse parties (as in a divorce or domestic violence proceeding), where the privilege may harm the interests of either spouse’s minor children, or where the spouses conspired to commit a crime.
Most federal and state courts have declined to recognize any familial privileges other than the spousal privilege. A minority of jurisdictions have, however, endorsed some limited privileges between other close family members, such as communications between parents and their minor children. An unenacted amendment to the Federal Rules would have codified a parent-child privilege.
Banker-client privilege. Numerous litigation parties have attempted to invoke a privilege for communication between a client and his banker. These have been universally unsuccessful, and the general rule is that no such privilege exists.
Journalist’s privilege. The US courts of appeals for the First, Second, Third, Fourth, Fifth, Ninth, Tenth, Eleventh, and DC Circuits, as well as some thirty states, have recognized a qualified journalist’s privilege against being compelled to reveal anonymous sources.
Other privileges. Courts have recognized a number of other qualified and limited privileges, such as a privilege against disclosing one’s vote, privileges for communications with company ombudsmen and researchers, an executive privilege protecting the president of the United States and other federal executive officers from certain types of subpoenas and other judicial and legislative investigations, a legislators’ privilege against revealing certain private materials related to legislation, and government privileges for protecting confidential informants or matters of national security. The application of such privileges varies widely and is outside the scope of this work.
10.6 Reliability Issues
We have seen how the courts function as gatekeepers in permitting or excluding evidence based on various policy concerns. Equally important, however, are a number of doctrines that are concerned with the reliability of evidence, rather than whether the evidence prejudices one side unfairly.
Hearsay. The best-known, and perhaps least-understood, of these doctrines is that of hearsay. Generally speaking, hearsay is not so much a type of evidence as it is a way of introducing and making use of such evidence in a proceeding. The common law defines hearsay as any statement made outside the court which is offered as proof of the truthfulness of the matters asserted in that statement. Hearsay rules were developed in English law as early as the late seventeenth century. Hearsay testimony is prohibited under the Federal Rules unless it is of a type otherwise permitted by statute, the rules themselves or other rules promulgated by the US Supreme Court. The overriding concern in excluding hearsay is that the reliability of the statement in question depends not only on the testifying witness’s credibility, which can be ascertained and weighed by the jury, but on the credibility of the out-of-court speaker, or declarant, whose veracity is more difficult to judge.
Nonhearsay usages and hearsay exclusions. The same statement may be hearsay or non-hearsay depending on how it is used. For example, suppose Party A testifies that he heard his friend say “Party B is out of town this week.” That statement would not be admissible to demonstrate the truth of the matter asserted; specifically, that B was out of town on the week in question. It might, however, be admissible if it is used for another purpose, for example, to show that A’s neglect in delivering a package to B was excusable because he reasonably believed B to be out of town. Likewise, an otherwise hearsay statement may be admitted to show that someone was put on notice of certain facts or to demonstrate state of mind, even if it may not be used to prove the truth of the facts contained in the statement.
Generally evidence of verbal acts, such as the offer or acceptance of a contract, or of verbal parts of acts, such as instructions given in conjunction with transferring possession of an item, are not considered hearsay.
In addition, the Federal Rules exclude a testifying witness’s prior out of court statement from the definition of hearsay and deem such a statement admissible, where it is: (1) inconsistent with that witness’s in-court testimony and was given under oath; (2) is consistent with the witness’s in-court testimony and is used to rebut an accusation that the testimony was fabricated recently; or (3) identifies a person as someone with whom the witness was familiar. Similarly, an opposing party’s out-of-court statement is non-hearsay if it was made by the opposing party, co-conspirator or an authorized representative and is one the party evidently adopted or believed to be true.
Hearsay exceptions. The Federal Rules provide specific exceptions to the hearsay rule; permitting certain types of hearsay statements to be admitted when certain indicia of reliability are present. The following are admissible regardless of whether the declarant is available to testify as a witness: (1) a present sense impression, or statement describing an event or condition while the event is happening or immediately thereafter; (2) an excited utterance, or a statement relating to an exciting or startling event, made while a declarant is under stress or great excitement caused by such an event; (3) a statement describing a declarant’s then-existing mental, emotional, or physical condition; (4) a statement made for medical diagnosis or treatment; (5) a recorded recollection, or record made on a matter that the witness once knew about but can no longer testify to fully or accurately, made when the matter was fresh in the witness’s memory; (6) a record of a regularly conducted activity or (7) the absence of such a record; (8) a public record or the absence of a public record, including particularly public records of vital statistics such as births, deaths, and marriages, or public records of documents affecting an interest in property; (9) records of religious organizations concerning personal or family history, such as marriage or baptism certificates; (10) certain types of family records; (11) statements in documents whose authenticity is established and that are at least 20 years old (so-called ancient documents); (12) market reports and similar commercial publications; (13) statements contained in authoritative learned treatises or periodicals; (14) statements reflecting a person’s reputation within their own family concerning personal or family history; (15) statements showing reputation concerning a person’s character made by their associates or community members; (16) statements showing community perceptions regarding the location of boundaries on land or customs concerning the use of land, or of historical events affecting the community; (17) judgment of previous conviction of a serious crime; and (18) judgments concerning personal, family, or general history.
Certain types of hearsay are only admissible if the declarant is unavailable to testify, for example, because of death, illness, refusal to testify, or because he cannot be located. These are: (1) former testimony given as a witness at trial, hearing, or other proceeding; (2) a statement made under the belief of imminent death; (3) a statement against interest (one which is so contrary to the declarant’s financial, personal or legal interests that no reasonable person would make it if it were not true); (4) a statement of personal or family history; and (5) a statement against a party that wrongfully caused the declarant’s unavailability.
Finally, courts may create their own exceptions to the hearsay rule and admit hearsay evidence if doing so would serve the interests of justice, and the evidence to be admitted cannot be introduced any other way (the so called residual or catch-all exception). Courts are generally very reluctant to exercise this power, and will usually decline to do so except in extreme circumstances.
Hearsay within hearsay. A statement may contain multiple levels of hearsay, or hearsay within hearsay. For example, Witness A testifies that Declarant A told her that Declarant B made a particular statement to him. Such a statement is only admissible if each layer of hearsay falls within one of the recognized hearsay exceptions.
Dead man’s acts. About half of the states have enacted dead man’s acts or dead man’s statutes. These generally prohibit a witness who is an interested party in a proceeding from testifying about communications or other interactions with a deceased person. The restriction only applies in civil (not criminal) cases when the witness is testifying for his own interests and against the deceased person’s interests. The Federal Rules contain no such exclusion.
Authentication of documents. In order to be admitted as evidence, a document (or photograph, video, or other piece of tangible evidence) must be authenticated. With some exceptions discussed below, courts will not generally assume that a document is authentic, even if it appears to have a name or signature on it or appears to depict a particular location or event. Documents may be authenticated by a number of different means, including: (1) testimony of the preparer or a signing party, or of a witness to the preparation or signing; (2) introduction of an admission by a party opponent (see above) with respect to authenticity or identification of a document as part of regularly-prepared business records; (3) expert testimony as to the authenticity of a signature; (4) non-expert testimony by a person familiar with the signing party as to the authenticity of a signature; or (5) comparison of handwriting specimens by the trier of fact.
Certain types of documents are considered self-authenticating; that is, they are assumed to be authentic without independent proof (though that assumption may be rebutted with appropriate evidence). These are: (1) signed public documents bearing the seal of the US, any state, federal district or territory, or any subdivision of any of these entities; (2) public documents that are not sealed but that signed and certified by a public official or employee; (3) certified copies of public records; (4) foreign public documents certified by a foreign official or foreign or US diplomatic officer; (5) official publications of a public or government authority; (6) newspapers and periodicals; (7) trade inscriptions (signs, tags, labels, logos, or other indicia of origin, ownership, or control that are supposed to have been attached to an item in the ordinary course of business; (8) notarized documents; (9) commercial papers; (10) certified records of a regularly conducted activity; and (11) any document declared to be presumed authentic under federal law.
Best evidence rule. The best evidence rule was a common law principle that barred the admission of evidence unless it was “the best that the nature of the case” would allow. In the modern context, the rule means that testimony as to the contents of written documents, audio or video recordings, photographs or similar materials will not be admissible unless the materials themselves (or a copy whose authenticity is not in serious dispute) are introduced into evidence. Exceptions are made when, through no fault of the party attempting to introduce the evidence, the original document or material is lost or destroyed.
Judicial notice. The foregoing rules are designed to exclude evidence whose reliability cannot be readily ascertained or is in serious question. But courts also have an interest in admitting certain types of evidence whose reliability is beyond question, and to avoid the necessity of introducing such evidence through testimony. Thus common law and the Federal Rules permit a court to take judicial notice of a fact that is both generally known within the court’s jurisdiction and can be accurately and easily determined by consulting sources whose accurately is beyond any reasonable question. In civil (but not criminal) cases, the jury is required to assume true any fact of which the court takes judicial notice. Scientific facts, such as the speed of sound or the distance between two given points, are often subject to judicial notice, as are certain scientific principles and methods, such as the validity of fingerprinting, DNA testing, and speed detection.
Parol evidence. The parol evidence rule prohibits the introduction of certain evidence in contract disputes. For a full discussion see chapter 15.
Evidence is normally presented to the court in the form of testimony by witnesses. A number of rules govern who may appear as a witness and the circumstances under which they may testify.
Competency. A witness must be competent to testify. In federal civil cases applying state law, state law will govern who is competent to give testimony. Historically, reasons for deeming a potential witness incompetent included past criminal convictions, religious beliefs (or lack thereof). Most of these disqualifications, however, have been abolished.  Generally speaking, only a very low level of functioning—an awareness that one is testifying and the ability to distinguish between true and false statements—is required. Courts prefer to treat deficiencies in a witness’s mental state as matters affecting the weight of their testimony, rather than as excluding it altogether. Even children, regardless of age, are usually presumed to be competent unless a compelling reason (such as an inability to distinguish between truth and a lie) is shown.
Personal knowledge. A witness must have personal knowledge of the matter to which they are to testify. A lack of personal knowledge means that the witness is incompetent to testify as to that matter. Personal knowledge may be established through the witness’s own testimony.
Opinion versus fact. Witness testimony must, in most cases, be confined to facts. The circumstances under which a witness may testify as to their own opinion are severely limited under the Federal Rules. The major exception to this rule is testimony by expert witnesses, which is discussed in more detail below.
Oath or affirmation. A witness must, before being allowed to testify, take an oath or otherwise affirmatively state that their testimony will be true. The Federal Rules permit the form of the oath or affirmation to be “calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to” tell the truth.
Language issues. A witness who is unable to give testimony in English is not deemed incompetent, and may rely upon an interpreter. The interpreter, however, must be qualified as an expert speaker of the language to be translated and must take an oath or affirm that the translation will be true to the best of their abilities.
Judge, lawyer, or jury as witnesses. A judge or member of a jury is, as a matter of law, not competent and therefore disqualified from giving testimony in a trial over which that judge presides or that jury member sits. Lawyers are barred in virtually all jurisdictions from acting as advocates in cases in which they are likely to be a necessary witness, though this is an issue of professional responsibility rather than strictly of evidentiary law.
Impeachment. A party to litigation may attack the credibility of a witness in order to discredit the witness’s testimony. This is called impeachment. A party may impeach any witness, including a witness called by the impeaching party. There are, however, some limitations on the manner in which impeachment may be conducted. For example, opinions regarding the witness’s reputation may only be presented as to the witness’s character for truthfulness (or lack thereof), and this may be rebutted by presenting evidence of the witness’s truthful character. Similarly, evidence that a witness has been convicted of a crime may not be presented if it was a felony or a crime of dishonesty committed within ten years of the testimony. Crimes that were pardoned and juvenile convictions are not, generally speaking, admissible. Evidence that appeal of a conviction is pending is admissible by the witness to rehabilitate his testimony. A witness may not be impeached by presenting evidence of his religious beliefs.
Questioning of witnesses. The general manner in which questioning is conducted has been previously described in chapter 9 at 9.6. The court has the power to control the manner in which witnesses are questioned by the parties or their attorneys, in order to ensure that the questioning is efficient and effective at ascertaining the truth, avoiding unnecessary waste of time, and to protect witnesses from harassment or undue embarrassment.
If the circumstances make it appropriate, any party may request that a witness be kept outside the courtroom so that they cannot hear the testimony of other witnesses.
Leading questions. A leading question is a question that contains or suggests its own answer. An example would be “isn’t it true that you were at the Dover Mall at the time of the accident?” rather than “where were you at the time of the accident?” Leading questions are usually not permitted on direct examination unless the witness is a hostile witness, or one whose interests align with the opposing side. Leading questions are, however, permitted on cross-examination.
Prior statements and writings. The Federal Rules allow a testifying witness’s memory to be refreshed by allowing them to review a written document or similar material, provided that the adverse party is allowed to review the document and is given an opportunity to cross-examine the witness about it. A party may generally question a witness about prior statements or present evidence of statements they have made in the past inconsistent with their current testimony, again provided that the witness is made available for cross-examination on those statements.
Expert witnesses. We have seen that courts generally prohibit a witness from testifying as to their opinion, rather than fact. The major exception to this rule is expert testimony. An expert witness is a witness recognized by the court as having the skill, experience, knowledge, training, and education to qualify as an expert in a scientific, technical, or other specialized field, and is therefore permitted to testify as to his opinion within the scope of that field. An expert witness must base his testimony on: (1) sufficient facts to draw his conclusions; (2) reliable principles and methods; and (3) a reliable application of the principles and methods to the facts of the case at hand.
Courts have adopted a number of different rules over the years to determine whether an expert may offer particular testimony. For example, for many years expert testimony was inadmissible unless based on principles generally accepted within the scientific community. In recent years, however, the federal courts (and the vast majority of state courts) have adopted the Daubert rule, which is a much less exacting standard. Under Daubert, acceptance within the scientific community or industry (or lack thereof) is a factor in determining the credibility of expert testimony, but may not be used to exclude it altogether. Rather, expert testimony is admissible if it assists the jury (or judge as trier of fact in a bench trial) in understanding the evidence or determining a fact in dispute, is presented by a person deemed by the judge to be a qualified expert, and if it otherwise meets the relevancy standards of the Federal Rules.
An expert’s opinion may not be based solely on a hypothetical question posed in open court. He must, rather, rely on specific materials and information (though these materials need not necessarily themselves be admissible under the Federal Rules). An expert may generally offer opinion testimony even if it touches on or answers a question on which only the trier of fact can make a final determination. However, an expert may be required, on cross-examination, to disclose any underlying facts or data (sometimes including communications with the attorney of the party retaining the expert).
 Pub. L. 93-595, 88 Stat. 1926.