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Copyright © 2016 Thomas A. Mauet and Warren D. Wolfson.

Published by Wolters Kluwer in New York.

Wolters Kluwer Legal & Regulatory Solutions U.S. serves customers worldwide with
CCH, Aspen Publishers, and Kluwer Law International products.
(www.WKLegaledu.com)

No part of this publication may be reproduced or transmitted in any form or by any

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Library of Congress Cataloging-in-Publication Data

Mauet, Thomas A., author.

Trial evidence / Thomas A. Mauet, Milton O. Riepe Professor of Law and Director
of Trial Advocacy, University of Arizona College of Law; Warren D. Wolfson, justice
of the Appellate Court of the State of Illinois (retired) and former dean and current
Distinguished Visiting Professor, DePaul University College of Law.—Sixth edition.
pages cm.—(Aspen coursebook series)
Includes bibliographical references and index.
eISBN 978-1-4548-7467-6
1. Evidence (Law)—United States. I. Wolfson, Warren D., author. II. Title.

KF8935.M28 2016
347.73'6—dc23
2015036844

8
About Wolters Kluwer Legal &
Regulatory Solutions U.S.
Wolters Kluwer Legal & Regulatory Solutions U.S. delivers expert content
and solutions in the areas of law, corporate compliance, health compliance,
reimbursement, and legal education. Its practical solutions help customers
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solutions, and expert commentary.

9
Contents
Preface
Citations

I. AN ADVOCACY APPROACH TO TRIAL EVIDENCE

II. THE ROLE AND POWER OF THE TRIAL JUDGE:
EVIDENTIARY OBJECTIONS BEFORE AND DURING TRIAL
III. OPENING STATEMENTS
IV. DIRECT EXAMINATION OF WITNESSES: BASIC
CONSIDERATIONS
V. DIRECT EXAMINATION OF WITNESSES: RELEVANCE
VI. DIRECT EXAMINATION OF WITNESSES: HEARSAY AND
NON-HEARSAY
VII. DIRECT EXAMINATION OF WITNESSES: HEARSAY
EXCEPTIONS
VIII. DIRECT EXAMINATION OF WITNESSES: POLICY
EXCLUSIONS AND PRIVILEGES
IX. DIRECT EXAMINATION OF EXPERTS
X. EXHIBITS
XI. JUDICIAL NOTICE AND PRESUMPTIONS
XII. CROSS-EXAMINATION AND IMPEACHMENT OF LAY AND
EXPERT WITNESSES
XIII. REDIRECT, RECROSS, REBUTTAL, AND SURREBUTTAL
XIV. CLOSING ARGUMENTS

Appendix FEDERAL RULES OF EVIDENCE

Index

10
Preface
Citations

I. AN ADVOCACY APPROACH TO TRIAL EVIDENCE

§1.1. Introduction
§1.2. The three “Rs”
1. Relevance
2. Reliability
3. Rightness
§1.3. Using the three “Rs”
§1.4. Conclusion

II. THE ROLE AND POWER OF THE TRIAL JUDGE:

EVIDENTIARY OBJECTIONS BEFORE AND DURING TRIAL

§2.1. Introduction
§2.2. Sources of judicial power
1. FRE 102
2. FRE 611
3. FRE 614
§2.3. Sources of judicial procedure
1. FRE 104
2. FRE 103
3. FRE 105
§2.4. Raising and meeting objections

III. OPENING STATEMENTS

§3.1. Introduction
§3.2. Mentioning inadmissible evidence
1. Law
2. Practice

11
§3.3. Mentioning unprovable evidence
1. Law
2. Practice
§3.4. Arguing
1. Law
2. Practice
§3.5. Stating personal opinions
1. Law
2. Practice
§3.6. Discussing law
1. Law
2. Practice
§3.7. Mentioning the opponent’s case
1. Law
2. Practice

IV. DIRECT EXAMINATION OF WITNESSES: BASIC

CONSIDERATIONS

§4.1. Introduction
§4.2. Witness competency (FRE 601)
1. Law
2. Practice
§4.3. Oath or affirmation (FRE 603)
1. Law
2. Practice
§4.4. Improper witnesses (FRE 605, 606)
1. Law
2. Practice
§4.5. Who may call witnesses (FRE 614)
1. Law
2. Practice
§4.6. Excluding witnesses (FRE 615)
1. Law
2. Practice
§4.7. Personal knowledge and opinions (FRE 602, 701)
1. Law
2. Practice
§4.8. Impeaching own witnesses (FRE 607)
1. Law

12
 2. Practice
§4.9. Leading questions (FRE 611(c))
1. Law
2. Practice
§4.10. Other form objections
1. Law
2. Practice
§4.11. Refreshing recollection and recorded recollection (FRE 612,
803(5))
1. Law
2. Practice

V. DIRECT EXAMINATION OF WITNESSES: RELEVANCE

§5.1. Introduction
§5.2. General relevance
1. Law
a. FRE 401-402
i. What are the matters in issue in the case?
ii. Is the evidence probative of a matter in issue in the case?
b. FRE 403
2. Practice
§5.3. Special relevancy rules
1. Character traits
a. Law
i. “Essential element” rule
ii. “Circumstantial evidence” rule
b. Practice
c. Summary of character evidence
2. Other crimes, wrongs, and acts
a. Law
b. Practice
c. Summary of other uncharged crimes, wrongs, or acts
3. Similar incidents evidence
a. Law
b. Practice
4. Other acts evidence in sexual assault cases (FRE 412-415)
a. Law
b. FRE 412
c. FRE 413-415

13
 d. Practice
5. Habit and routine practice (FRE 406)
a. Law
b. Practice

VI. DIRECT EXAMINATION OF WITNESSES: HEARSAY AND

NON-HEARSAY

§6.1. Introduction
§6.2. The hearsay rules
1. A “statement”
2. “Other than one made by the declarant while testifying at the
trial or hearing”
3. “Offered in evidence to prove the truth of the matter asserted”
§6.3. Non-hearsay
1. Law
a. Independent legal significance
b. Impeachment
c. Effect on listener’s state of mind
2. Practice
§6.4. Prior statement by witness (FRE 801(d)(1))
1. Law
a. Prior inconsistent statements made under oath used for
impeachment
b. Prior consistent statements
c. A statement of identification of a person
2. Practice
§6.5. Admission by party-opponent (FRE 801(d)(2))
1. Law
a. A party’s own admission
b. Adoptive admissions
c. Admissions by authorized persons, agents, and employees
d. Co-conspirator statements
2. Practice
§6.6. Summary of hearsay analysis

VII. DIRECT EXAMINATION OF WITNESSES: HEARSAY

EXCEPTIONS

§7.1. Introduction

14
 1. Hearsay exceptions rationale
2. The FRE 803 exceptions
3. The FRE 804 exceptions
4. The Sixth Amendment Confrontation Clause
5. Organizing hearsay exceptions
§7.2. Present sense impressions (FRE 803(1))
1. Law
2. Practice
§7.3. Excited utterances (FRE 803(2))
1. Law
2. Practice
§7.4. Then existing mental, emotional, or physical conditions (FRE
803(3))
1. Law
2. Practice
§7.5. Statements for purpose of medical diagnosis or treatment (FRE
803(4))
1. Law
2. Practice
§7.6. Statements under belief of impending death (FRE 804(b)(2))
1. Law
2. Practice
§7.7. Former testimony (FRE 804(b)(1))
1. Law
2. Practice
§7.8. Statements against interest (FRE 804(b)(3))
1. Law
2. Practice
§7.9. Statements of personal or family history (FRE 804(b)(4))
1. Law
2. Practice
§7.10. Business records (FRE 803(6), 803(7), 902(11), 902(12))
1. Law
2. Practice
§7.11. Public records (FRE 803(8)-803(17))
1. Law
2. Practice
§7.12. Recorded recollection (FRE 803(5))
1. Law
2. Practice

15
§7.13. Reputation evidence (FRE 803(19)-803(21))
1. Law
2. Practice
§7.14. Treatises (FRE 803(18))
1. Law
2. Practice
§7.15. Residual or catchall exception (FRE 807)
1. Law
a. Trustworthiness
b. Necessity
c. Material fact
d. Satisfy general purpose of Rules and interests of justice
e. Notice
2. Practice
§7.16. Hearsay within hearsay (FRE 805)
1. Law
2. Practice
§7.17. Attacking and supporting credibility of declarant (FRE 806)
1. Law
2. Practice

VIII. DIRECT EXAMINATION OF WITNESSES: POLICY

EXCLUSIONS AND PRIVILEGES

§8.1. Introduction to policy exclusions

§8.2. Subsequent remedial measures (FRE 407)
1. Law
2. Practice
§8.3. Compromise and offers of compromise (FRE 408)
1. Law
2. Practice
§8.4. Payment of medical expenses (FRE 409)
1. Law
2. Practice
§8.5. Existence of liability insurance (FRE 411)
1. Law
2. Practice
§8.6. Plea agreements and discussions (FRE 410)
1. Law
2. Practice

16
§8.7. Victim’s past sexual behavior or alleged sexual predisposition in
sex offense cases (FRE 412)
1. Law
2. Practice
§8.8. Introduction to privileges
§8.9. Preliminary considerations
§8.10. Marital privilege to bar spousal testimony
1. Law
2. Practice
§8.11. Interspousal communications privilege
1. Law
2. Practice
§8.12. Attorney-client privilege
1. Law
2. Practice
§8.13. Doctor-patient privilege
1. Law
2. Practice
§8.14. Other privileges

IX. DIRECT EXAMINATION OF EXPERTS

§9.1. Introduction
§9.2. Frye, Daubert, Joiner, and Kumho Tire
1. Law
2. Practice
§9.3. Relevancy
1. Law
2. Practice
§9.4. Reliability
1. Law
2. Practice
§9.5. Sources of facts and data on which expert relies
1. Law
2. Practice
§9.6. Disclosure of basis of expert’s testimony
1. Law
2. Practice
§9.7. Form of expert’s testimony
1. Law

17
 2. Practice
§9.8. FRE 403
1. Law
2. Practice
§9.9. Court-appointed experts
1. Law
2. Practice

X. EXHIBITS

§10.1. Introduction
§10.2. Foundations
§10.3. Real evidence
1. Law
a. Sensory identification
b. Chain of custody
2. Practice
§10.4. Demonstrative evidence
1. Law
2. Practice
§10.5. Documents and instruments
1. Law
2. Practice
§10.6. Business records
1. Law
2. Practice
§10.7. Public records
1. Law
2. Practice
§10.8. Recorded recollection
1. Law
2. Practice
§10.9. Summaries
1. Law
2. Practice
§10.10. Original documents (“best evidence”) rule
1. Law
2. Practice
§10.11. Electronic evidence
1. Computerized business records, data, and metadata

18
 2. Electronic communications—overview
3. Authenticity of electronic communications
4. Digital photographs
5. Computer-generated animations and simulations

XI. JUDICIAL NOTICE AND PRESUMPTIONS

§11.1. Introduction
§11.2. Judicial notice
1. Law
2. Practice
§11.3. Presumptions
1. Burden of proof
2. Presumptions and inferences

XII. CROSS-EXAMINATION AND IMPEACHMENT OF LAY AND

EXPERT WITNESSES

§12.1. Introduction
§12.2. Cross-examination
1. Law
2. Practice
§12.3. Impeachment procedures
1. Law
a. “Voucher” rule rejected
b. Impeachment methods
c. The good faith requirement
d. The “confrontation” or “warning question” requirement
e. The relevancy requirement and the “collateral”–“non-
collateral” dichotomy
2. Practice
§12.4. Impeachment methods
1. Bias, interest, and motive
a. Law
b. Practice
2. Prior inconsistent statements
a. Law
b. Practice
3. Contradictory facts
a. Law

19
 b. Practice
4. Prior convictions
a. Law
i. Overview of FRE 609
ii. The “general rule” of FRE 609(a)
iii. The 10-year rule of FRE 609(b)
iv. Pardons, juvenile convictions, and appeals
v. The FRE 104(a) hearing
b. Practice
5. Character for untruthfulness
a. Law
i. Character witness testimony about the truth-telling character
of a fact witness
ii. Cross-examination of a truth-telling character witness
b. Practice
6. Conduct probative of untruthfulness
a. Law
b. Practice
i. The fact witness
ii. The character witness
7. Treatises
a. Law
b. Practice
8. Impeaching out-of-court declarants
a. Law
b. Practice

XIII. REDIRECT, RECROSS, REBUTTAL, AND SURREBUTTAL

§13.1. Introduction
§13.2. Redirect examination
1. Law
2. Practice
§13.3. Recross-examination
1. Law
2. Practice
§13.4. Rebuttal
1. Law
2. Practice
§13.5. Surrebuttal

20
 1. Law
2. Practice

XIV. CLOSING ARGUMENTS

§14.1. Introduction
§14.2. Mentioning unadmitted evidence
1. Law
2. Practice
§14.3. Misstating or mischaracterizing the evidence
1. Law
2. Practice
§14.4. Making improper comments on missing evidence
1. Law
2. Practice
§14.5. Stating personal opinions and making personal attacks
1. Law
2. Practice
§14.6. Appealing to sympathy, prejudice, and passions
1. Law
2. Practice
§14.7. Arguing the law
1. Law
2. Practice
§14.8. Making improper damages arguments
1. Law
2. Practice
§14.9. Arguing consequences of a conviction or verdict
1. Law
2. Practice
§14.10. Making improper rebuttal arguments
1. Law
2. Practice

Appendix
FEDERAL RULES OF EVIDENCE

Index

21
22
 Why Trial Evidence? The present legal landscape has numerous
evidence hornbooks and treatises, many of which are authoritative and
longstanding. What are the gaps in the existing literature that this book
seeks to fill?
This book is different from existing ones in several ways. First, it
reflects the way judges and trial lawyers in the real world of trials think, or
should think, about evidence, using the “three Rs”—relevant, reliable, and
right—as its analytical framework. Second, it is structured around the
sequential components of a trial—beginning with opening statements and
ending with closing arguments—rather than the numerical structure of the
Federal Rules of Evidence. Third, it allocates space according to how
important the topic is to judges and trial lawyers in the real world of trials,
rather than according to the interest level of academicians. For example,
party admissions and business records are important topics to trial lawyers,
judicial notice and presumptions less so, and the book reflects these
realities. Fourth, and most important, the book bridges the gap between
evidence as an academic subject in the classroom and evidence as a
functional tool in the courtroom. It shows where the evidence rules are
commonly used in the real world of trials and how the effective trial
lawyer uses them to persuade the judge deciding evidentiary issues.
This book does not claim to do some things. It does not approach
evidence from a historical development, social policy, or comparative law
perspective. It is neither a critical analysis of the existing rules nor a
critique of interpretative case law. It accepts the present evidence rules, the
ones lawyers and judges deal with on a daily basis, and analyzes them
functionally. It shows how those rules apply in the daily life of the
courtroom and how a lawyer can and should use the law as a functional
tool to persuade the judge making the evidentiary rulings.
We have not attempted to duplicate the research done by the leading
treatises. Instead, we rely on them. The book is principally footnoted to
McCormick on Evidence, Weinstein’s Federal Evidence, Wigmore on

23
Evidence, and Evidence by Mueller and Kirkpatrick. The citations to these
treatises will be much more useful than individual case citations in
researching evidentiary issues that arise.
The chapters in the book have law and practice sections. The law
sections contain functional overviews of the Federal Rules of Evidence,
footnoted to the major treatises. We have relied on these and other treatises
as well as the Advisory Committee’s Notes. The practice sections contain
realistic examples, in commonly recurring fact settings, of how particular
rules are used before and during trials, how lawyers should (and
sometimes fail to) make proper evidentiary objections, and how judges
make rulings. These examples are based on actual federal and state cases.
The examples get into the mind of the judge by noting the judge’s
thoughts, concerns, and reasoning when ruling on objections. We believe
this approach is what inexperienced trial lawyers need to learn when
bridging the gap between evidence rules as academic subjects and
evidence rules as courtroom tools.
Why us? Each of us has been a trial lawyer, professor, and judge.
Collectively we have over 25 years of experience as trial lawyers, over 50
years as professors teaching and writing about evidence and trial
advocacy, and over 30 years as civil and criminal trial judges. During these
years, we have noted a disturbing, recurring fact: Many lawyers, while
“knowing” evidence rules, are less capable of using those rules as
functional tools to persuade trial judges to rule in their favor. Since we
have lived in both the world of academe and the world of trials, we hope
that our collective experiences will be useful to those who will, and those
who do, use the Federal Rules of Evidence or their state counterparts on a
regular basis in the courtroom.
Throughout the book, we have used masculine pronouns to refer to
the judges and lawyers. We did this for the sake of simplicity and
consistency, and for no other reason.
A book is always the result of more than the efforts of its authors. Our
spouses, Gloria Torres Mauet and Hon. Lauretta Higgins Wolfson
(retired), have been patient supporters of this effort from its inception.
They are both trial lawyers, and their thoughtful suggestions have
influenced the book in numerous ways. To our students and staff who have
worked with us, we say thanks.
The changes to this sixth edition are principally four-fold. First, we
have revised and expanded Sec. 7.1 and other sections dealing with the
Sixth Amendment Confrontation Clause, including the Supreme Court’s
most recent decision in Ohio v. Clark, decided in June 2015. Second, we

24
have revised Sec. 10.11 covering electronic communications evidence. In
particular, the issue of authentication has become central in determining
the admissibility of electronic communications, and the section expands its
analysis of this issue. Third, amendments to Rules 801(d)(1)(B) and
803(6)-(8) of the Federal Rules of Evidence became law on December 1,
2014. Rule 801(d)(1)(B)(ii) expands the use of a witness’s prior consistent
statements “to rehabilitate the declarant’s credibility as a witness when
attacked on another ground.” Rule 803(6)-(8) now make clear that the
opponent to the admissibility of business and public records has the burden
of showing that the “source of information or the method or circumstances
of preparation indicate a lack of trustworthiness.” Finally, the text
incorporates all Supreme Court decisions through June 2015 affecting
evidence rules.
We hope you will find the additions to this sixth edition valuable.

Thomas A. Mauet
Tucson, Arizona

Warren D. Wolfson
Chicago, Illinois

25
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