The land mine of the Federal Rules of Evidence - Rule 806.

• Author: Eiglarsh, Mark R.

You're trying a case in federal court. Your client is accused of robbing a NationsBank with two other young males. They all were armed with guns and wore disguises. Most of the 25 primarily elderly patrons were horrified and will "never forget that day" as long as they live.

This isn't the first time you've tried this case. The first trial ended in a hung jury. The second trial, which featured a more senior prosecutor, also failed to yield a unanimous verdict. For the third trial, the government brings in yet another prosecutor. This one's also a seasoned veteran. Entering the courtroom, the "Crusher" of the prosecutor's office gives you an "I must break you" stare, making it very clear that this time, "You will lose." Both sides are looking for some edge in order to bring this time-consuming and physically draining battle to a conclusion.

The government presents its case and rests. Then, you put on your case. Your final piece of evidence comes from a nurse who works for the federal detention center and who examined your client on the day of his arrest. Her testimony is important because it concerns a collateral matter that has arisen during the trial. The nurse testifies that upon his entry into the jail, the defendant complained of injury to his right eye that occurred during his arrest. The government objects to the evidence, claiming it is hearsay. You respond by citing Fed. R. Evid. 803(4) that allows into evidence, as an exception to the hearsay rule, statements given for the purpose of medical diagnosis or treatment. You win on that point. The nurse's testimony is allowed. With that said, you confidently rest your case. The government indicates it, too, has no additional evidence to present in rebuttal.

But then it happens. A moment that you will never forget. One that you will replay in your head numerous times after the case concludes.

After the prosecutor's announcement that he has no additional evidence to present, one of his many comrades who were watching the trial rushes up to him pointing anxiously at a portion of his rule book. They converse for several seconds. Sounding unsure of himself, the prosecutor then announces, "Judge, I think we have additional evidence to present." He then announces that in light of the nurse's testimony, "the government seeks to introduce the defendant's entire criminal history" (eight prior felonies) to the jury. You are calm because his request sounds ludicrous and desperate. He cites "Rule...