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Relevant?

Does the evidence have any tendency to make the


Is the evidence existence of any fact that is of consequence to the
admissible...? determination of the action more or less probable
than it would be without the evidence? [401, 402]

Look to the controlling substantive law to determine


if the fact is of consequence...use common sense!

NO YES
Admissible except...

Not Admissible!
Evidence which is not Danger of unfair prejudice?
relevant is not admissible. Is its probative value substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading of
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence? [403]

Remember: Must be raised by party [waived under 103 if not


raised] & judge has wide discretion [must play with the facts]!

Looking for: Some reason the jury would use this evidence to
come to a decision on an improper [emotional] basis. Ex. Old
Chief

Factors to Consider: (1) probative value of the evidence, (2)


importance of fact to be proven, (3) alternative means of
NO proving the point, (4) degree to which the fact to be proven is
disputed, (5) how likely the jury is to follow limiting instructions.
Not Admissible!
Exclusion of relevant
evidence on grounds of
prejudice, confusion, or
waste of time.
Physical evidence?
(document, record, etc.) Testimonial Evidence

Proponent of Evidence: Three


Foundations Required Proponent of Evidence: Two
1. Authentication Foundations Required
2. Best Evidence 1. Authentication
3. Get past hearsay 2. Get past hearsay
Character Evidence -- PROPENSITY Is character specifically
[404, 405, 406] at issue? [405(b)] Look
@ substantive law
404 = Type of information about character allowed
405 = How the character information may be proved NO
Avoiding YES
Evidence of character is not admissible to prove actions propensity Is it evidence of habit of a
in conformity therewith [404(a)] EXCEPT
person or routine practice
of an organization? [406]
(1) Character of Accused: in a criminal case, A can offer
Habit is NOT character!
evidence of a relevant character trait they have (& P can Admissible! May offer
offer evidence to rebut the same) OR Evidence of A's character W's AND may Prove habit by putting Ws on
character can be offered by P IF evidence of V's show specific instances the stand to describe specific
character is offered by A under 404(a)(2). Remember: A of conduct! [405(b)] incidents BUT can use
must open the door 1st & only reputation or opinion evidence even w/o cooberation.
testimony--no specific instances (except on cross)
[405]!
YES NO
(2) Character of Victim: In a criminal case, A can offer
evidence of a relevant character trait of V (& P can offer
evidence to rebut the same AND evidence about D for Admissible! Evidence of Evidence of other
same character trait) OR In a homicide case, P can offer habit is admissible to prove crimes, wrongs or acts
evidence of V's peacefulness to rebut evidence that V that the person acted in may be admissible for
was the first aggressor. Only in assault & homicide cases conformity therewith other purposes!
where A claims V was 1st aggressor. Remember: A
must open the door 1st & only reputation or opinion
testimony--no specific instances (except on cross)
[405]! Is it evidence of specific acts to show motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
(3) Character of Witness: Attacking the credibility of mistake or accident, modus operandi, or doctrine of
character W w/evidence of untruthful character. Look @ chances? [404(b)]
Impeachment [See 608 & 609]. Can try to impeach any
witness! Must establish that the uncharged misconduct took place with
admissible evidence; burden of proof is unclear, but Huddleston applied
something lower than preponderance.
Special for Sex Offense Cases: P can offer evidence of
D's other sex offenses (including if only arrested or
charged) for any relevant purpose--including propensity NO
[413, 414, 415]. YES

Laying the Foundation for a Character W: Put W on the


Is it evidence of
stand and ask (1) if D is a member of the same Admissible if its probative value is similar crimes or
community as W (2) if W has resided in that community not substantially outweighed by wrongs or acts
for a long period of time (3) if D has a reputation in that unfair prejudice. [403] offered in a case
community for a trait of character (4) establish that W Consider: how probative, how much helps
involving sexual
knows that reputation. state''s case, issue disputed, other less
prejudicial evidence available, similarity, etc. assault or child
molestation?
Character evidence is highly relevant, but excluded for
policy reasons. Conviction because bad person, not
because committed THIS crime. NO

Remember: Character evidence & impeachment go


together. One party introduces character evidence & Inadmissible unless offered
other party will first object to the introduction of character against accused in a criminal
evidence & then second try to impeach W. prosecution for sexual assault
or child molestation & the prior
similar offense meets the
standard of an "offense of
sexual assault" [413; 414]
Impeachment Evidence of Conviction of Certain Crimes [609]
[405, 697, 608, 609, 613, 801(d)(1)(A)] Anyone who would steal would probably lie...
Note: NOT Character evidence by definition--offered to show lack of credibility
Introducing evidence to make W seem less
credible (less truthful).
Did the crime involve dishonesty or false statements? [609(a)(2)]
Impeaching Any Witness: Anytime a W testifies Shoplifting (no); Willful failure to file tax return (yes); distributing cocaine (no); forgery
(including a D), opinion & reputation evidence (yes); burglary (no); conspiracy to distribute drugs (no); murder (no); obstruction of
relating to untruthfulness may be introduced to justice (maybe); misrepresenting self as a cop (yes)
attack their credibility. (Plus, after a W is attacked,
evidence of their truthfulness can be introduced to NO YES
rehabilitate them as a W). [608(a)] On cross, (in
the discretion of the court), specific instances of
W's conduct can be inquired into, but cannot Is the prior
Has it been 10+ years
introduce extrinsic evidence. [608(b)(1)] conviction of the
since the conviction or the
accused?
release from jail? [609(b)]
Witnesses Testifying About the Truthfulness
or Untruthfulness of Another Witness NO
(Impeaching Witness): Specific instances of NO
conduct concerning the truthfulness or
YES
untruthfulness of the person the W had testified Is the probative
about can be inquired into (in the discretion of the value substantially
court) on cross, but cannot introduce extrinsic outweigned by YES Admissible
evidence. [608(b)(2)] unfair prejudice? Note: 403
balancing does
(i.e. 403 balancing) not apply!
Impeaching a Character Witness: Specific [609(a)] [609(a)(2)]
instances of conduct concerning the character
trait the CW already testified about can be
inquired into on cross. [405(a) last sentence] YES Inadmissible
unless its probative
Consider Also: (1) prior inconsistent statements NO value substantially
outweighs its prejudicial
(2) bias (3) lack of capacity, (4) contradiction. Admissible effect and proper notice
Note: 10 year rule is given. [609(b)]
of 609(b) applies.
Inadmissible!

Rehabilitation & Bolstering Does its probative value


outweigh its prejudicial effect?
Rehab: Can rehabilitate an impeached W [609(a)(1)]
with bolster. There must be an attack on
truthfulness to trigger rehabilitation! Consider: (1) nature of the crime (2)
time of the prior conviction (3)
Note: When W denies the statement, there has been no subsequent criminal history (4)
impeachment, thus opponent cannot rehabilitate. similarity of the past crime to the
current crime (5) importance of the
Bolster: (1) Evidence of truthful character is D's testimony (6) and the
admissible only after character of W for importance of the D's credibility.
truthfulness has been attacked. [608(a)] (2)
Evidence of prior consistent statements (any
statement made out of court before W's NO YES
testimony that reinforces or supports W's
testimony--doesn't have to be made under Admissible
oath--however, must be made before W had Note: 10 year
Inadmissible!
any motive to lie!) are admissible when rule of 609(b)
impeached for prior inconsistent statement. applies.
[801(d)(1)(B)]

Impeachment w/Prior Consistent Statement


Cant Always be used...CANNOT be used
with 609, 608(a), 608(b), or Bias.

Hearsay exceptions that apply without


Prior Inconsistent Statements Subsequent Remedial
[607, 613, 801(d)(1)(A)] Measures [407]
Focus on the words coming out of W's mouth. Does the evidence relate to measures
taken after an injury or harm allegedly
On cross, can ask W about any prior inconsistent caused by an event that, if taken
previously, would have made the injury
statement. The cross-examiner can introduce extrinsic
or harm less likely to occur? [407]
evidence showing the prior inconsistent statement (if first
give W opportunity to explain prior statement & opposite Focus on the timing: If the change was
party is given opportunity to interrogate W). [613] made before the accident, it can be
admitted for any purpose!
Prior statements made under oath in some proceeding
CAN be used as a prior statement (are not hearsay).
[801(d)(1)(A)] NO
When Offered: Other Party Should Make Two Objections: YES
(1) Hearsay 801(c)--offered for the truth of the matter or for
showing an inconsistency?
Admissible!
(2) Proper foundation not laid--must lay the proper
foundation, which allows W to explain the inconsistency

Laying the foundation: Is the evidence being


1. Ask W about time of earlier statement offered for another purpose,
2. Place earlier statement was made such as proving ownership,
3. To whom the statement was made control, or feasibility of
4. General subject matter of the statement precautionary measures, if
these are controverted, or
Allows W to remember the statement and explain the for impeachment? [407]
inconsistency...If W does not deny the earlier statement,
the impeaching party got what they needed and the case
moves on, if not, then extrinsic evidence can be admitted. YES
General Notes
a. Sometimes silence when it would be natural to speak NO
can be used to show an inconsistency, Admissible!
b. Refusal to to speak or claims that W cannot remember,
is NOT a statement of inconsistency!

Inadmissible The evidence is


Also consider: inadmissible to prove negligence,
culpable conduct, a defect in a
Bias [607] A cross examiner is entitled to ask questions product, a defect in a product's
that will show any possible source of bias. Family ties, design, or a need for a warning or
financial ties, etc. instruction.

Contradiction [607] If some of W's testimony is factually


incorrect, proof that those portions were wrong supports a
conclusion that the other parts were false.
Testimonial Competence
[701, 702, 703, 704]
Every person is competent to be a witness
except as otherwise provided in these rules...

Expert
Juror? Testimony
Opinion
Testimony

No testimony relating to Two preliminary questions [701]: Preliminary questions about expert
the "mental process" / [702, 104(a)] Judge decides whether
jury deliberations. 1. Is the testimony in the form of an opinion? person is an expert under 104(a):
Testimony about
outside influences or 2. Is the opinion one that is (a) rationally based on 1. Is the testimony offered as the
mistakes in filling out the perception of the witness, (b) would be helpful testimony of an expert W?
forms okay. [606(b)] to a clear understanding of the witness' testimony
or the determination of a fact in issue, and (c) is 2. Is the expert qualified by knowledge,
not based on scientific, technical or other skill, experience, training or education?
specialized knowledge within the scope of 702? [702]

3. Will the subject of the testimony


NO YES assist the trier of fact? [702]

No
Inadmissible unless Admissible!
W is qualified to testify BUT W must have
as an expert [See 702] personal knowledge [602] Inadmissible!
(see laying the foundation
YES
for character Ws)

Preliminary Questions About Evidence:


1. Testimony based on sufficient facts or data
(firsthand observation, hypothetical question, facts
or data obtained in any way so long as reasonably
relied on by experts in the field)?
2. Testimony is the product of reliable principles &
methods? and
Inadmissible! NO 3. Has the W applied the principles & methods
reliably to the facts of the case?

Remember: Expert CAN base opinion on


YES inadmissible information as long as reasonably
Admissible unless W is testifying
relied on by experts in the field! On cross, W can
re D's mental state or condition
be questioned about the underlying facts or data.
(constituting an element of a crime
charged or a defense thereto) in a
criminal trial [704] or its probative
value is substantially outweighed
by unfair prejudice. [403]
Authentication [901]
Evidence sufficient to support a finding that the
matter in question is what proponent claims.

Authentication & identification is a condition


precedent before evidence is admissible.

Must: Provide a basis for the fact finder to


believe that the evidence is what the proponent
claims it to be.

Remember: The jury doesn't have to believe


the evidence even if it has been authenticated!

Methods to Satisfy Requirement

1. Testimony of W w/knowledge
2. Non-expert opinion on handwriting (based on familiarity not acquired for purposes of litigation)
3. Comparison by trier of fact or expert W with evidence that has already been authenticated
4. Distinctive characteristics / circumstances (appearance, substance, contents, patterns--the way they
write is unique to one person; can also be used with phone calls)
4. Voice identification (opinion based on hearing the voice at any time under circumstances connecting it with
the alleged speaker; note: self-identification "my name is X" is generally not enough--must recognize voice)
5. Telephone Conversation (evidence call made to number assigned by phone company (a) person:
circumstances, including self-ID, show the person answering to be the one called, or (B) business: call made to
a place of business & conversation related to business reasonably transacted over the telephone)
5. Public records (writing authorized by law to be recorded or filed & in fact recorded or filed in public office)
6. Ancient documents (found in place likely to be authentic & condition doesn't create suspicion; do not have
to account for its whereabouts)
7. Process or system
8. Any other method provided by statute
8. Self-Authentication--ONLY Documents (See below)

Self-Authentificating Documents [902] Identification of Non-Self-Authentificating Things [901]


Extrinsic evidence of authenticity is not required as a
condition precedent to admissibility for the following: Two Methods: (1) If the item is unique (2) item is common.

Domestic public document w/seal (govt. documents) Unique: [901(b)(4)] Lay the foundation by showing the
Certified foreign documents following things: (1) the object has a unique characteristic
Certified copies of public records of some kind (2) the W on the stand observed that unique
Official publications (books, pamphlets, or other characteristic on a previous occasion (3) W identifies the
publications issued by public authority) exhibit as the object seen before (4) W states that the
Newspapers & periodicals object is in the same condition as previously observed.
Trade inscriptions (signs, tags, labels, affixed in the course
of business & indicating ownership, control, or origin) Common: Chain of Custody Doctrine (account for where
Acknowledged documents the object has been; each link in the chain is a person who
Commercial paper had the evidence; must account for every single place
Certified domestic records of regularly conducted activity where the evidence was) Look for: Links in the chain!
Best Evidence Rule [1001-1004] Is the "original" being offered? [1001(3)]
If the contents of a document,
photograph, or recording will be the 1. Document or recording itself
subject of testimony, the party offering 2. Any counterpart meant to be an original
the testimony must provide the 3. Photo negative or print
"original." 4. Readable computer output
Analysis when
Note: If chattel has writing on it, the BER Applies
BER applies! However, if obtaining the NO
chattel is too burdensome, judge has YES
the discretion to allow secondary
evidence. (Ex. VIN #)
Admissible! Is a "duplicate" being offered
Remember: BER only applies when a into evidence? [1003]
party seeks to prove the contents of
the writing (Not when evidence is used Note: The difference between
to refresh memory, etc.) a duplicate & a copy. Copies
are not admissible under 1003.
Ask: Is the party trying to prove the
contents of the document?
YES NO
Consider: Can you
Admissible to the same
get it admitted under
extent as the original! a 1004 exception?
UNLESS (1) genuine question
is raised as to the authenticity
of the original or (2) under the
circumstances it would be Has the original been lost or
unfair to admit the duplicate in destroyed? [1004(1)]
lieu of the original [1003]
Note: Must do due diligence search!

YES NO

Other evidence is admissible Is the original unobtainable by any other


to prove the writing, unless the judicial process or procedure? [1004(a)]
proponent lost or destroyed
them in bad faith. or

Is the original in the possession of


opponent & opponent was put on notice
that the contents would be a subject of
proof at the hearing & they do not
produce original for hearing? [1004(3)]

YES NO

Admissible! Inadmissible! Other evidence is


Other evidence is admissible NOT permitted to prove the writing,
to prove the writing. unless the writing is collateral (not
closely related to a controlling issue)
to a controlling issue in the dispute.
Hearsay exceptions that apply without
Hearsay
regard to whether the declarant is available
Out of court statement made by a declarant offered
in evidence to prove the truth of the matter asserted. as a W
23 categories + Residual! [803]

Present Sense Impression: Statement describing


Breaking it down... things as they are seeing them or immediately
Statement: (1) oral or written assertion, (2) thereafter. (Seconds ok; minutes not ok)
nonverbal conduct of a person--if it is
intended by the person to be an assertion. Excited Utterance: Speaking about an event out of
excitement, shock, or in reaction to having been
Declarant: Person who makes a statement startled! (Statement must be made while person is
still operating under stress or excitement)
Assertion: Not defined. Nothing is an Consider: Nature of the event, lapse of time, words
assertion unless it is intended to be one. A used, etc.
person makes an assertion when they speak,
write, act, or fail to act with the intent to Current Mental, Emotional or Physical Condition:
express some fact or opinion. (You can have Then existing mental, emotional, or physical
implied assertions--so long as the person condition. Includes a person's (forward looking)
intended their conduct to asset something.) plan or intention. (Can show another persons plan
if related to person's plan!) But recollection of past
Out of Court: If it occurs before the conduct (backward looking) not ok! (Hillman-Future
proceeding. A pre-trial deposition is "out of plans used to prove matters which are in issue)
court" when offered at trial.
Medical Diagnosis or Treatment: Includes
Offered for the Truth of the Matter Asserted: everything (including cause of the problem)
Inferred--Does it matter whether or not the reasonably pertinent to diagnosis or treatment.
statement is accurate?
Past Recollection Recorded: (a) W once had
Dangers of Hearsay: (1) inability to cross- knowledge about the subject, (b) W doesn't have
examine regarding memory, (2) sincerity, (3) adequate recollection to testify fully & accurately (c)
perception, (4) ambiguity. W made a record &, when they made the record,
had a fresh memory of the information. Record will
be read to the jury so jury can make use of the info
the exact same way they would have made use of
Exemptions from the definition of hearsay for certain out- W's testimony. The record itself cannot be admitted
of-court statements offered for the truth of the matter into evidence.
they assert (NOT HEARSAY) [801]
Business Records: (a) Made as part of the usual
Out of Court Statement of ID: If declarant testifies at the trial or course of business, (b) a person with knowledge of
hearing & is subject to cross concerning the statement, then a what the record says made the record or reported
statement of ID of a person after perceiving them is not hearsay. the info to the person who made the record, (c)
was made near the time of the occurrence of what
Party Admission: (A) party's own statement; (B) adoptive it describes. Exclude if circumstances indicate lack
admission---requires (1) evidence the statement was made (2) of trustworthiness or source of info seems
statement was understood by party (3) there was no impediment to unreliable. (Remember: If recorded by someone
that person responding (4) the statement is the kind that would call not part of the business, then cannot be let in under
for a denial; (C) authorized admissions--lawyer; (D) agent-- this exception.)
employee; (E) co-conspirator--during the course & in furtherance of
the conspiracy [must have corroborating evidence of the Absence of Entry in Records: Can be admitted as
conspiracy, however, conspiracy doesn't have to be a charge evidence!
against D]. [Note: Determine all preliminary questions under 104(a)]
Public Records: Remember: Police reports don't
Statement by Party Opponent: (1) a party's own prior statement, (2) count!
adoptive admission, (3) statement by authorized agent, (4)
statement by agent within scope of agency or employment, (5) Ancient Documents: (a) document in existence for
statement by a coconspirator of a party during the course and in 20+ years, (b) authenticity of which is established.
furtherance of the conspiracy. Applies to anything a party to a
lawsuit has ever said that is relevant against them at trial. Additional categories include (among others) generally
used published material, learned treatises, etc.
Hearsay exceptions that apply only if the Getting Around the Hearsay Rule: Examples
declarant is "unavailable" [804] when NOT offered for truth of the matter
asserted (non-hearsay uses of out-of-court
Unavailable = Testifies to lack of memory of the subject statements)
matter; dead or then existing mental or physical illness;
refuses to testify about the subject matter of the
statement Effect on Listener: Introduced to prove the state of
mind induced in the listener by the statement. State
NOT "unavailable" if due to wrongdoing of a party of mind must be relevant! Or notice, threat,

Former Testimony: (a) given under oath (b) subject to Acts of Independent Legal Significance: Words
cross examination at a previous proceeding by the operate independently of the speaker's belief or
party against whom the evidence is offered. Motive to intended meaning. Some words are the legal event.
cross-examine similar? Earlier trial of similar
importance? Similar consequences at stake? Inconsistent Statements offered to Impeach: Used
to show W cannot be believed because they have
Dying Declaration: (a) reasonable belief death is two different stories--not for the truth.
imminent (b) only for their belief about the cause of
their impending death. Homicide or civil cases. Nonassertive Words: Ouch!

Statement Against Interest: When D made statement, it Assertions Offered as Circumstantial proof of
had the potential to harm an important interest (money, knowledge: Such as describing the apartment of
property, penal) of the D. (What would a reasonable your molester
person in D's position think?) UNLESS non-self-
inculpatory, then cannot be admitted under this Remember-Judge, if asked, must give a limiting
rationale (one of the most effective ways to lie is to mix instruction confining jurors to the permitted
falsehood with truth). nonhearsay use of the words! Limiting instructions
prevent or discourage improper use, reducing
Forfeiture by Wrongdoing: Decreases incentive to likelihood of prejudice or jury confusion. However,
harm or intimidate W! cannot really remove prejudice. [105]

Residual Exception: Catch all.

Confrontation Clause

6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the
W's against him."

Crawford Rule:
(1) Criminal cases
(2) When used against D
(3) Has to be a hearsay statement [801(c)] or Exemption [801(d)]
(4) that is TESTIMONIAL (prior testimony at a preliminary hearing before a grand jury or at a former trial;
police interrogations; primary purpose for the assistance of an ongoing emergency-Davis; not casual
remarks to acquaintance; not offhand, overheard remarks; not statements in furtherance of a conspiracy).

Not admissible under the confrontation clause, UNLESS (1) forfeiture, (2) D takes stand at trial, (3) D had
prior opportunity to cross examine the D concerning the statement, or (4) dying declaration [maybe].