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 Evidence: Outline
If rule does start with 4 or 9, apply 104(b). If rule does NOT start with 4 or 9, use 104(a).Erie rules
601 (W competency), 302 (presumptions), & 501 (privileges) – look to CA law for these
FRE 103(a)Rulings on Evidence
To preserve an evidentiary issue for appeal, a party must object to the court’s ruling.
This protects the system against wasteful circumstancesin which a party might tolerate an incorrect ruling in the hope of obtaining a favorable result at trial, but then seek reversal on the evidentiary groundif the result was unfavorable.FRE 104(a)Preliminary Questions:Questions of AdmissibilityThe trial judge, not the jury, decides whether evidence is admissible. For almost every possible objection to admission, the judge rules. There is onlyone specific type of objection that is left for the jury to rule on, “conditional relevance”, described in Rule 104(b).FRE 104(b)Conditional RelevanceThis is the one type of objection to admission that the jury decides itself (not ruled on by the judge). If the party seeking to introduce an item of evidence agrees that it is not relevant by itself but states that it will be relevant when some other fact is established that provides a context for it, thisis “conditional relevance” and the jury will hear it. It typically applies to issues arising out of Article IV and IX of the FRE.
FRE 201(a), (b)Judicial Notice: Scope of ruleand Kinds of factsThis rule only applies to adjudicative facts. “Adjudicative facts” are facs that are specific to a particular litigation, such as whether a certain street isin the business or residential district. “Legislative facts” refers to more general facts about society and human nature that are not available for  judicial notice. The rule is that a judicially noticed fact must be one not subject to reasonable dispute because it is either generally known or iscapable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Because elements of crimes must be proven beyond a reasonable doubt, no judicial notice of an element may be taken.FRE 201(g)Instructing the JuryIn a civil action, court shall instruct the jury to accept JN fact as conclusive. In criminal case, court shall instruct jury that it may, but is not requiredto, accept as conclusive any JN fact.
FRE 301Presumptions in CivilActions and ProceedingsTypically, the person who wants to change the status quo (P in civil, gov’t in criminal) bears the burden of production/persuasion. In all civil actions,a presumption imposes on the party against whom it is directed the burden of production, but does not shift the burden of persuasion. This “Thayer”view is also known as the “bursting bubble” theory and is different than the “Morgan” view that shifts the burden of persuasion as well.FRE 302Applicability of State LawIn civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State Lawsupplies the rule of decision is determined in accordance with State law.Burden of ProductionBurden of moving forward. Meaning who has to come forward with what type of evidence in order to proceed. The standard is whether there issufficient evidence to prevent the other party from getting a directed verdict/JNOV (sufficient evidence to raise a question for the jury)Burden of PersuasionAka the “Risk of Non-persuasion”, this burden determines who has to convince the fact finder that a certain fact is true, and by what standard.Beyond a reasonable doubt for criminal, clear and convincing for some civil, and preponderance of the evidence (> .5) for most civil.
FRE 401Relevance defined“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the actionmore probable or less probable than it would be without the evidence. Therefore, evidence is relevant if it has any effect on the likelihood that adisputed fact is true.FRE 402Relevant Evidence isAdmissibleAll relevant evidence is admissible, except as otherwise provided by the Constitution, Acts of Congress, these rules, or SC authority. Evidence whichis not relevant is not admissible.FRE 403Exclusion of RelevantEvidence Based on PrejudiceAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of theissues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. This balancingtest allows trial courts to exclude relevant evidence where its admission would harm the judicial process.
 Ballou v. Henri
(lower court wronglyexcluded blood test because judge did not think it was reliable);
Old Chief 
(D was willing to stipulate to prior crime, but motioned to restrain gov’tfrom mentioning)FRE 404(a)Character Evidence NotAdmissible to Prove ConductEvidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. This is the rule against “propensity” evidence.FRE 404(a)(1)Character of DefendantDespite the general rule against the propensity inference, a criminal D may introduce evidence of “good” character related to the type of offense for which the D is being tried. If the D takes advantage of this opportunity, the prosecution is entitled to introduce opposing character evidence. If the Dtakes advantage of Rule 404(a)(2) producing character evidence concerning an alleged victim, then the prosecution can offer similar character evidence about the defendant.
(D brought 5 W to show good reputation so P’s specific conduct evidence on cross was ok to rebut)FRE 404(a)(2)Character of Alleged VictimEvidence of a pertinent trait of character of the alleged victim of the crime accused, or by the prosecution to rebut the same, is admissible. (e.g. toestablish self-defense involving an attack by D on another person, D can introduce evidence that V had a violent character.
 Evidence: Outline
FRE 404(a)(3)Character of WitnessAllowed for ImpeachmentCharacter evidence that would otherwise be prohibited due to the general bar against propensity evidence is admissible for impeachment purposesunder Rules
607, 608 and 609
.FRE 404(b)Character Evidence: othecrimes, wrongs or actsThe general bar against propensity evidence excludes evidence when the
rationale for admission is to support inferences about a person’scharacter and the person’s having acted in conformity with that character. Rule 404(b) confirms that information about a person’s past conduct thatwould naturally lead to inferences about the person’s character may be introduced for different purposes, such as proving intent, motive, plan or  preparation, special knowledge, or identity.
US v. Cunningham
(Demerol addiction could be used to show
for stealing it. Court allowedevidence of addiction but not actual prior conviction);
United States v. Carillo
identity signature
exception – prior sales involving balloon drugsales ok to show MO)FRE 405(a)Proving Character:Reputation or OpinionCharacter evidence requires a two-step analysis. The first step, treated in Rule 404, is determining
any information related to character isallowed to be introduced. The second step, treated in this rule, is determining
that character information may be proved. In
situationwhere character information is admissible, it may be shown with opinion or reputation testimony. Information about specific past acts relevant toestablishing a person’s character may be asked about on
.FRE 405(b)Proving Character: SpecificInstancesIn cases where
character is in issue
, that is character is an essential element of the crime, proof may also be made by specific instances of the person’s conduct. (Or on cross examination under 405(a)).FRE 406Habit; Routine PracticeProof that a person has a habit is admissible, since it is different from proof that a person has a particular character trait. A habit of custom is aroutine way of doing something that a person or organization accomplishes in a uniform way, free from individual thought or judgement about howto do it.FRE 407Subsequent RemedialMeasuresEvidence that a D changed or repaired something after it was allegedly involved in an injury is
not admissible
to establish D’s negligence or a product’s defectiveness. We don’t want to discourage reevaluation of risks in light of injury. If there is a rationale for proving the change toestablish something other than negligence or product defect, proof of the change may be admitted.FRE 408Compromise and Offers toCompromiseEvidence about a settlement or statements made in settlement negotiations may not be admitted with respect to the validity of the claim involved inthe settlement or settlement negotiations. The evidence may, however, be admitted on any other rationale such as proving bias, prejudice of awitness, ownership, impeachment.
 Davidson v. Prince
(statement must be part of negotiations to qualify)FRE 409Payment of MedicalExpensesInformation about medical payments and promises of medical payments is not admissible to show liability for the injury. Statements made while paying of promising can be admitted, in contrast to the Rule 408 treatment of statements made in settlement negotiations.FRE 410Inadmissibility of PleasCertain pleas and plea bargaining statements are inadmissible except to provide a full context for partial revelation of plea bargaining statements or where a case involves perjury.FRE 411Liability InsuranceEvidence of insurance may not be admitted to show liability for negligence or other wrongful action, but other rationales such as proof of agency,ownership, control, bias or prejudice, can provide a basis for admission.FRE 412(a), (b)Sex Offense Cases:Relevance of AllegedVictim’s Past SexualBehavior This is contrary to typical character evidence rule. This “rape shield” provision applies to all types of sexual misconduct cases and says evidenceabout a person’s past sexual conduct and sexual traits may not be admitted to show how he or she acted in a situation that is the basis for a sexoffense charge. In
criminal cases
, the general prohibition does not apply to evidence that (b)(1)(A) supports a claim that someone other than D wasthe source of the semen, B) occurred with the D and supports a claim of consent, C) is so crucial that exclusion would be unconstitutional. In a civilcase, the general prohibition does not apply if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
State v. Cassidy
(Conn. – prior sex with D okay but sex with other partner where she also freaked out was not ok)FRE 413Evidence of Similar Crimesin Sexual Assault CasesEvidence of a D’s past sexual offense is admissible to support an inference that his or her commission of such an act in the past increases thelikelihood that he or she committed the charged offense. Because evidence of past sexual offenses is so prejudicial, a notice provision requires thatthe D have warning prior to its introduction.FRE 414Evidence of Similar Crimesin Child MolestationThis is parallel to Rule 413 except that it deals with child molestation cases rather than “sexual assault” cases.FRE 415Evidence of Similar Acts inCivil Cases ConcerningSexual Assault or ChildMolestationThis allows character evidence to be introduced in a civil case as relevant to the issue of someone’s out-of=court conduct. It allows introduction of evidence of a party’s past sexual offsens or child molestation to support an inference that his or her commission of such an act in the past increasesthe likelihood that he or she committed the conduct charged in the civil suit.
FRE 501PrivilegesNo specific privilege provisions have been adopted as part of the federal rules, although detailed provisions have been proposed by the drafters.Privilege law, therefore, is open to traditional common law development. In civil cases, state privilege law governs where an issue is governed bystate law.
 Evidence: Outline
FRE 503 (prop)Attorney-Client PrivilegePolicy is to provide a higher quality of representation and encourage honest discourse with legal counsel. Without the privilege, clients might notdisclose facts favorable to their case to their attorneys. The proposed rule states that a client is a person who is rendered legal services by a lawyer OR who consults with a lawyer with a view to obtaining legal services. A lawyer is anyone reasonably believed by client to be authorized to practicelaw in any state/nation. General rule is that client has privilege to refuse to disclose and to prevent any other person from disclosing confidentialcommunications made for the purpose of facilitating the rendition of professional legal services to client. Applies between client and lawyer, lawyer and staff, etc. The client holds the privilege and the privilege survives death. The privilege does not apply if services sought would enable someoneto commit or plan what client should have reasonably known was a
crime or fraud 
US v. Zolini
work product privilege
– materials prepared for litigation by attorney are privileged unless there is a showing of substantial need AND partycannot without undue hardship obtain substantial equivalent elsewhere.Physician-Patient Privilege
Federal does not recognize
. Some states do.FRE 504 (prop)Psychotherapist-PatientPrivilegePsychotherapist is any person authorized to practice medicine or reasonably believed by patient to be, while engaged in the diagnosis or treatment of mental conditions. A communication is confidential if it is not
to be disclosed to third parties.
A paitent has a privilege to refuse todisclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mentalor emotional condition. The privilege may be claimed by patient, guardian, or personal representative of decased. It does not apply where the mentalcondition is an element of the claim or defense.FRE 505 (prop)Husband-Wife PrivilegeAn accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him. The privilege may be claimed by the accusedor by the spouse on his behalf. Exceptions in situations where 1) they are suing each other, 2) matters prior to marriage. News Gathering PrivlegeNothing at common law, but some sates have enacted including CA.
CEC 1070
– refusal to disclose news source. Others include Clergy 1030-34,Secrecy to vote CEC 1050, trade secrets 1060, domestic violence CEC 1037.FRE 509 (prop)State SecretsState secrets are governmental secrets relating to national defense/international relations of the US. The gov’t may refuse to provide evidence and prevent a person from giving evidence upon showing of reasonable likelihood of danger that evidence will disclose a state secret or officialinformation. The Department head must formally claim the privilege. Privilege would not apply in criminal cases. The government would either have to present the evidence or drop the case.FRE 510 (prop)Informants Identification The gov’t or state may refuse to disclose the ID of a person who furnished info relating or assisting in investigation of illegal activity to a lawenforcement officer or member of legislative committee. The privilege must e claimed by the appropriate gov’t representative and it does not applywhere the ID is voluntarily disclosed. The rational is the necessity and public interest in effective law enforcement. A balancing test is used by judgeto determine if the testimony is crucial. Public interest v. D’s right to prepare a defense. The material W rule says that W cannot have actually participated, just informed.
FRE 601Witnesses: CompetencyIn contrast to the common law, virtually all people are competent as witnesses under the Federal Rules. The jury simply decides how credible thewitness is when weighting their testimony. Where state law governs a claim, state competency law applies.
In civil cases
, state law determinescompetency where state law rule is the elemtn of the claim/defense. .FRE 602Witnesses: Lack of PersonalKnowledgeIf someone testifies as a lay witness, not an expert, evidence must be introduced that could support a jury finding that the witness has directknowledge of the subject of his or her testimony. That evidence may be introduced as part of the witness’s own testimony. This rule is subject toFRE 703 on expert opinion.FRE 603Witness: Oath or AffirmationThe requirement of an oath or affirmation to tell the truth.FRE 607Who May ImpeachImpeachment is attempting to discredit a witness. There are five main methods of impeachment, including impeachment by 1) contradiction, 2) prioinconsistent statements, 3) character (bad acts, opinon/reputation, conviction), 4) capacity, and 5) bias/interest. The credibility of a witness may beattacked by any party, including the calling witness. This rejects the common law requirement that an offering party vouch for the honesty of itswitness.
US v. Hogan
(Gov’t put D’s pilot on stand to impeach with other hearsay evidence; Rule: cannot use prior inconsistent statement by Wunder guise of impeachment where primary purpose is to get evidence in that otherwise is not allowed).FRE 608(a)Impeach Using Opinion &ReputationOpinion and reputation evidence may always be introduced to detract from the credibility of 
any witness
. This type of evidence may also beintroduced to support the credibility of any witness whose credibility has been attacked in any way. However, you cannot
your own witnesses by proving their “good” character.FRE 608(b)Impeach: Bad Acts(Specific Instances of Conduct)Past conduct of 
any witness
, relevant to the character trait of truthfulness, may be asked about in cross-examination of the witness or in cross-examination of another witness who has testified in support of the witness’s credibility. Extrinsic evidence may not be used unless it is a crime per FRE 609 or if it is relevant in some way other than to show W’s character for truthfulness. Extrinsic evidence may be okay on cross examination, atdiscretion of court, using the FRE 403 test.
US v. Owens
.COLLATERALTESTImpeachment byContradiction(
: revision of 608(b) appears to have gotten rid of collateral test so the only issue is FRE 403 (e.g. collateral matters substantially outweighedvia dangers of confusion/time considerations).

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