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Relevant? Does the evidence have any tendency to make the existence of any fact that is of consequence to the 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!
Not Admissible! Evidence which is not relevant is not admissible.
YES Admissible except...
Danger of unfair prejudice? 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?  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 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.)
Proponent of Evidence: Three Foundations Required 1. Authentication 2. Best Evidence 3. Get past hearsay
Proponent of Evidence: Two Foundations Required 1. Authentication 2. Get past hearsay
414] . plan. P can offer evidence of V's peacefulness to rebut evidence that V was the ﬁrst aggressor. Look @ Impeachment [See 608 & 609]. NO Inadmissible unless offered against accused in a criminal prosecution for sexual assault or child molestation & the prior similar offense meets the standard of an "offense of sexual assault" [413. Remember: A must open the door 1st & only reputation or opinion testimony--no speciﬁc instances (except on cross) ! (2) Character of Victim: In a criminal case. 406] 404 = Type of information about character allowed 405 = How the character information may be proved Is character speciﬁcally at issue? [405(b)] Look @ substantive law NO Avoiding propensity Evidence of character is not admissible to prove actions in conformity therewith [404(a)] EXCEPT (1) Character of Accused: in a criminal case. similarity. YES NO Is it evidence of similar crimes or wrongs or acts offered in a case involving sexual assault or child molestation? Admissible if its probative value is not substantially outweighed by unfair prejudice.PROPENSITY [404. 414. One party introduces character evidence & other party will ﬁrst object to the introduction of character evidence & then second try to impeach W. other less prejudicial evidence available. opportunity. A can offer evidence of a relevant character trait they have (& P can offer evidence to rebut the same) OR Evidence of A's character can be offered by P IF evidence of V's character is offered by A under 404(a)(2). burden of proof is unclear. Conviction because bad person. issue disputed. absence of mistake or accident. Laying the Foundation for a Character W: Put W on the stand and ask (1) if D is a member of the same community as W (2) if W has resided in that community for a long period of time (3) if D has a reputation in that community for a trait of character (4) establish that W knows that reputation. how much helps state''s case. not because committed THIS crime. but Huddleston applied something lower than preponderance. modus operandi. knowledge. 405. Character evidence is highly relevant.  Consider: how probative. Only in assault & homicide cases where A claims V was 1st aggressor. 415]. or doctrine of chances? [404(b)] Must establish that the uncharged misconduct took place with admissible evidence. Admissible! May offer character W's AND may show speciﬁc instances of conduct! [405(b)] YES Admissible! Evidence of habit is admissible to prove that the person acted in conformity therewith NO Evidence of other crimes. preparation. Remember: A must open the door 1st & only reputation or opinion testimony--no speciﬁc instances (except on cross) ! (3) Character of Witness: Attacking the credibility of character W w/evidence of untruthful character. identity. intent. A can offer evidence of a relevant character trait of V (& P can offer evidence to rebut the same AND evidence about D for same character trait) OR In a homicide case.Character Evidence -. YES Is it evidence of habit of a person or routine practice of an organization?  Habit is NOT character! Prove habit by putting Ws on the stand to describe speciﬁc incidents BUT can use evidence even w/o cooberation. Remember: Character evidence & impeachment go together. etc. but excluded for policy reasons. Can try to impeach any witness! 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 [413. wrongs or acts may be admissible for other purposes! Is it evidence of speciﬁc acts to show motive.
forgery (yes).Impeachment [405. 403 balancing) [609(a)] NO YES YES Admissible Note: 403 balancing does not apply! [609(a)(2)] YES NO Admissible Note: 10 year rule of 609(b) applies. [609(b)] Inadmissible! Rehabilitation & Bolstering Rehab: Can rehabilitate an impeached W with bolster. [608(a)] On cross. There must be an attack on truthfulness to trigger rehabilitation! Note: When W denies the statement. but cannot introduce extrinsic evidence. burglary (no). but cannot introduce extrinsic evidence. speciﬁc instances of W's conduct can be inquired into. Bolster: (1) Evidence of truthful character is admissible only after character of W for truthfulness has been attacked. 608. there has been no impeachment. Willful failure to ﬁle tax return (yes). opinion & reputation evidence relating to untruthfulness may be introduced to attack their credibility. 609... [608(b)(2)] Impeaching a Character Witness: Speciﬁc instances of conduct concerning the character trait the CW already testiﬁed about can be inquired into on cross. (4) contradiction. conspiracy to distribute drugs (no).. [405(a) last sentence] Consider Also: (1) prior inconsistent statements (2) bias (3) lack of capacity.CANNOT be used with 609. Hearsay exceptions that apply without . Evidence of Conviction of Certain Crimes  Anyone who would steal would probably lie. [608(b)(1)] Witnesses Testifying About the Truthfulness or Untruthfulness of Another Witness (Impeaching Witness): Speciﬁc instances of conduct concerning the truthfulness or untruthfulness of the person the W had testiﬁed about can be inquired into (in the discretion of the court) on cross. (Plus. 801(d)(1)(A)] Introducing evidence to make W seem less credible (less truthful). Inadmissible unless its probative value substantially outweighs its prejudicial effect and proper notice is given. obstruction of justice (maybe).. NO YES Admissible Inadmissible! Note: 10 year rule of 609(b) applies. thus opponent cannot rehabilitate. [801(d)(1)(B)] Impeachment w/Prior Consistent Statement Cant Always be used. 608(a). misrepresenting self as a cop (yes) NO Is the prior conviction of the accused? YES Has it been 10+ years since the conviction or the release from jail? [609(b)] NO Is the probative value substantially outweigned by unfair prejudice? (i. Note: NOT Character evidence by deﬁnition--offered to show lack of credibility Did the crime involve dishonesty or false statements? [609(a)(2)] Shoplifting (no). (in the discretion of the court). Impeaching Any Witness: Anytime a W testiﬁes (including a D). [608(a)] (2) Evidence of prior consistent statements (any statement made out of court before W's testimony that reinforces or supports W's testimony--doesn't have to be made under oath--however. evidence of their truthfulness can be introduced to rehabilitate them as a W). 608(b). or Bias. after a W is attacked.e. 697. murder (no). distributing cocaine (no). Does its probative value outweigh its prejudicial effect? [609(a)(1)] Consider: (1) nature of the crime (2) time of the prior conviction (3) subsequent criminal history (4) similarity of the past crime to the current crime (5) importance of the D's testimony (6) and the importance of the D's credibility. must be made before W had any motive to lie!) are admissible when impeached for prior inconsistent statement. 613.
Family ties. proof that those portions were wrong supports a conclusion that the other parts were false. control. or for impeachment?  YES NO Admissible! Also consider: Bias  A cross examiner is entitled to ask questions that will show any possible source of bias.. [801(d)(1)(A)] When Offered: Other Party Should Make Two Objections: (1) Hearsay 801(c)--offered for the truth of the matter or for showing an inconsistency? (2) Proper foundation not laid--must lay the proper foundation. the impeaching party got what they needed and the case moves on. 613. is NOT a statement of inconsistency! NO YES Admissible! Is the evidence being offered for another purpose. . Sometimes silence when it would be natural to speak can be used to show an inconsistency. The cross-examiner can introduce extrinsic evidence showing the prior inconsistent statement (if ﬁrst give W opportunity to explain prior statement & opposite party is given opportunity to interrogate W). if taken previously. b. To whom the statement was made 4. General Notes a. etc. Refusal to to speak or claims that W cannot remember.. would have made the injury or harm less likely to occur?  Focus on the timing: If the change was made before the accident. 801(d)(1)(A)] Focus on the words coming out of W's mouth. Contradiction  If some of W's testimony is factually incorrect. Ask W about time of earlier statement 2. a defect in a product.  Prior statements made under oath in some proceeding CAN be used as a prior statement (are not hearsay). a defect in a product's design. if these are controverted. Inadmissible The evidence is inadmissible to prove negligence. can ask W about any prior inconsistent statement.If W does not deny the earlier statement. if not. it can be admitted for any purpose! On cross. which allows W to explain the inconsistency Laying the foundation: 1. or feasibility of precautionary measures. Subsequent Remedial Measures  Does the evidence relate to measures taken after an injury or harm allegedly caused by an event that. such as proving ownership.Prior Inconsistent Statements [607. culpable conduct. Place earlier statement was made 3. or a need for a warning or instruction. ﬁnancial ties. then extrinsic evidence can be admitted. General subject matter of the statement Allows W to remember the statement and explain the inconsistency.
technical or other specialized knowledge within the scope of 702? Preliminary questions about expert [702.Testimonial Competence [701. Is the opinion one that is (a) rationally based on the perception of the witness. hypothetical question. and (c) is not based on scientiﬁc. Testimony is the product of reliable principles & methods? and 3. 104(a)] Judge decides whether person is an expert under 104(a): 1. Testimony about outside inﬂuences or mistakes in ﬁlling out forms okay. . Testimony based on sufﬁcient facts or data (ﬁrsthand observation.. Will the subject of the testimony assist the trier of fact?  NO YES No Inadmissible unless W is qualiﬁed to testify as an expert [See 702] Admissible! BUT W must have personal knowledge  (see laying the foundation for character Ws) Inadmissible! YES Inadmissible! NO Preliminary Questions About Evidence: 1. [606(b)] Two preliminary questions : 1. (b) would be helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. 702. training or education?  3. experience.  YES Remember: Expert CAN base opinion on inadmissible information as long as reasonably relied on by experts in the ﬁeld! On cross. Is the testimony offered as the testimony of an expert W? 2. 703. W can be questioned about the underlying facts or data.. 704] Every person is competent to be a witness except as otherwise provided in these rules. Juror? Opinion Testimony Expert Testimony No testimony relating to the "mental process" / jury deliberations. facts or data obtained in any way so long as reasonably relied on by experts in the ﬁeld)? 2. Is the expert qualiﬁed by knowledge. Is the testimony in the form of an opinion? 2. Has the W applied the principles & methods reliably to the facts of the case? Admissible unless W is testifying re D's mental state or condition (constituting an element of a crime charged or a defense thereto) in a criminal trial  or its probative value is substantially outweighed by unfair prejudice. skill.
Telephone Conversation (evidence call made to number assigned by phone company (a) person: circumstances. do not have to account for its whereabouts) 7. tags. Public records (writing authorized by law to be recorded or ﬁled & in fact recorded or ﬁled in public ofﬁce) 6. or (B) business: call made to a place of business & conversation related to business reasonably transacted over the telephone) 5. Authentication & identiﬁcation is a condition precedent before evidence is admissible. Unique: [901(b)(4)] Lay the foundation by showing the following things: (1) the object has a unique characteristic of some kind (2) the W on the stand observed that unique characteristic on a previous occasion (3) W identiﬁes the exhibit as the object seen before (4) W states that the object is in the same condition as previously observed. control. Remember: The jury doesn't have to believe the evidence even if it has been authenticated! Methods to Satisfy Requirement 1. Common: Chain of Custody Doctrine (account for where the object has been. Testimony of W w/knowledge 2. Comparison by trier of fact or expert W with evidence that has already been authenticated 4. documents) Certiﬁed foreign documents Certiﬁed copies of public records Ofﬁcial publications (books. labels. including self-ID. show the person answering to be the one called. contents. or origin) Acknowledged documents Commercial paper Certiﬁed domestic records of regularly conducted activity Identiﬁcation of Non-Self-Authentiﬁcating Things  Two Methods: (1) If the item is unique (2) item is common. substance. patterns--the way they write is unique to one person. pamphlets. Must: Provide a basis for the fact ﬁnder to believe that the evidence is what the proponent claims it to be. or other publications issued by public authority) Newspapers & periodicals Trade inscriptions (signs. each link in the chain is a person who had the evidence. note: self-identiﬁcation "my name is X" is generally not enough--must recognize voice) 5. Ancient documents (found in place likely to be authentic & condition doesn't create suspicion. Distinctive characteristics / circumstances (appearance.Authentication  Evidence sufﬁcient to support a ﬁnding that the matter in question is what proponent claims. Non-expert opinion on handwriting (based on familiarity not acquired for purposes of litigation) 3. Voice identiﬁcation (opinion based on hearing the voice at any time under circumstances connecting it with the alleged speaker. Self-Authentication--ONLY Documents (See below) Self-Authentiﬁcating Documents  Extrinsic evidence of authenticity is not required as a condition precedent to admissibility for the following: Domestic public document w/seal (govt. Any other method provided by statute 8. can also be used with phone calls) 4. afﬁxed in the course of business & indicating ownership. Process or system 8. must account for every single place where the evidence was) Look for: Links in the chain! .
Photo negative or print 4. VIN #) Remember: BER only applies when a party seeks to prove the contents of the writing (Not when evidence is used to refresh memory. photograph. the BER applies! However. Readable computer output Analysis when BER Applies YES Admissible! NO Is a "duplicate" being offered into evidence?  Note: The difference between a duplicate & a copy. if obtaining the chattel is too burdensome. Any counterpart meant to be an original 3. unless the proponent lost or destroyed them in bad faith. Copies are not admissible under 1003. etc. (Ex. or recording will be the subject of testimony. . NO Is the original unobtainable by any other judicial process or procedure? [1004(a)] 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 Inadmissible! Other evidence is NOT permitted to prove the writing." Note: If chattel has writing on it. YES Admissible to the same extent as the original! UNLESS (1) genuine question is raised as to the authenticity of the original or (2) under the circumstances it would be unfair to admit the duplicate in lieu of the original  NO Consider: Can you get it admitted under a 1004 exception? Has the original been lost or destroyed? [1004(1)] Note: Must do due diligence search! YES Other evidence is admissible to prove the writing. Admissible! Other evidence is admissible to prove the writing. unless the writing is collateral (not closely related to a controlling issue) to a controlling issue in the dispute.Best Evidence Rule [1001-1004] If the contents of a document.) Ask: Is the party trying to prove the contents of the document? Is the "original" being offered? [1001(3)] 1. the party offering the testimony must provide the "original. judge has the discretion to allow secondary evidence. Document or recording itself 2.
(Can show another persons plan if related to person's plan!) But recollection of past conduct (backward looking) not ok! (Hillman-Future plans used to prove matters which are in issue) Medical Diagnosis or Treatment: Includes everything (including cause of the problem) reasonably pertinent to diagnosis or treatment. conspiracy doesn't have to be a charge against D]. etc. Declarant: Person who makes a statement Assertion: Not deﬁned. Applies to anything a party to a lawsuit has ever said that is relevant against them at trial. (c) was made near the time of the occurrence of what it describes. act. (You can have implied assertions--so long as the person intended their conduct to asset something.) Out of Court: If it occurs before the proceeding. emotional. [Note: Determine all preliminary questions under 104(a)] Statement by Party Opponent: (1) a party's own prior statement. (4) ambiguity. Party Admission: (A) party's own statement. (b) authenticity of which is established. (3) perception. (2) sincerity. The record itself cannot be admitted into evidence. learned treatises. Additional categories include (among others) generally used published material. lapse of time. (Remember: If recorded by someone not part of the business. Past Recollection Recorded: (a) W once had knowledge about the subject. Nothing is an assertion unless it is intended to be one. A pre-trial deposition is "out of court" when offered at trial. (2) nonverbal conduct of a person--if it is intended by the person to be an assertion. shock. Offered for the Truth of the Matter Asserted: Inferred--Does it matter whether or not the statement is accurate? Dangers of Hearsay: (1) inability to crossexamine regarding memory. . minutes not ok) Excited Utterance: Speaking about an event out of excitement. Present Sense Impression: Statement describing things as they are seeing them or immediately thereafter. (b) W doesn't have adequate recollection to testify fully & accurately (c) W made a record &. (2) adoptive admission. (D) agent-employee. Business Records: (a) Made as part of the usual course of business. or fail to act with the intent to express some fact or opinion. (C) authorized admissions--lawyer.. or physical condition. Current Mental. Exemptions from the deﬁnition of hearsay for certain outof-court statements offered for the truth of the matter they assert (NOT HEARSAY)  Out of Court Statement of ID: If declarant testiﬁes at the trial or hearing & is subject to cross concerning the statement. when they made the record. A person makes an assertion when they speak. Hearsay exceptions that apply without regard to whether the declarant is available as a W 23 categories + Residual!  Breaking it down. Statement: (1) oral or written assertion. or in reaction to having been startled! (Statement must be made while person is still operating under stress or excitement) Consider: Nature of the event. Includes a person's (forward looking) plan or intention.Hearsay Out of court statement made by a declarant offered in evidence to prove the truth of the matter asserted. 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 W's testimony. words used. (b) a person with knowledge of what the record says made the record or reported the info to the person who made the record. Exclude if circumstances indicate lack of trustworthiness or source of info seems unreliable.) Absence of Entry in Records: Can be admitted as evidence! Public Records: Remember: Police reports don't count! Ancient Documents: (a) document in existence for 20+ years. then cannot be let in under this exception. etc. write. (5) statement by a coconspirator of a party during the course and in furtherance of the conspiracy. (E) co-conspirator--during the course & in furtherance of the conspiracy [must have corroborating evidence of the conspiracy. (B) adoptive admission---requires (1) evidence the statement was made (2) statement was understood by party (3) there was no impediment to that person responding (4) the statement is the kind that would call for a denial.. (Seconds ok. had a fresh memory of the information. (4) statement by agent within scope of agency or employment. Emotional or Physical Condition: Then existing mental. then a statement of ID of a person after perceiving them is not hearsay. (3) statement by authorized agent. however.
Nonassertive Words: Ouch! Assertions Offered as Circumstantial proof of knowledge: Such as describing the apartment of your molester Remember-Judge. must give a limiting instruction conﬁning jurors to the permitted nonhearsay use of the words! Limiting instructions prevent or discourage improper use. the accused shall enjoy the right to be confronted with the W's against him. Homicide or civil cases. not offhand.  Confrontation Clause 6th Amendment: "In all criminal prosecutions. . Acts of Independent Legal Signiﬁcance: Words operate independently of the speaker's belief or intended meaning. if asked. cannot really remove prejudice. or (4) dying declaration [maybe]. Statement Against Interest: When D made statement. property. Not admissible under the confrontation clause. However. Forfeiture by Wrongdoing: Decreases incentive to harm or intimidate W! Residual Exception: Catch all. penal) of the D. dead or then existing mental or physical illness. (2) D takes stand at trial. Motive to cross-examine similar? Earlier trial of similar importance? Similar consequences at stake? Dying Declaration: (a) reasonable belief death is imminent (b) only for their belief about the cause of their impending death. overheard remarks. (3) D had prior opportunity to cross examine the D concerning the statement. Getting Around the Hearsay Rule: Examples when NOT offered for truth of the matter asserted (non-hearsay uses of out-of-court statements) Effect on Listener: Introduced to prove the state of mind induced in the listener by the statement. police interrogations. refuses to testify about the subject matter of the statement NOT "unavailable" if due to wrongdoing of a party Former Testimony: (a) given under oath (b) subject to cross examination at a previous proceeding by the party against whom the evidence is offered. (What would a reasonable person in D's position think?) UNLESS non-selfinculpatory. UNLESS (1) forfeiture.Hearsay exceptions that apply only if the declarant is "unavailable"  Unavailable = Testiﬁes to lack of memory of the subject matter. State of mind must be relevant! Or notice." 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. Inconsistent Statements offered to Impeach: Used to show W cannot be believed because they have two different stories--not for the truth. threat. primary purpose for the assistance of an ongoing emergency-Davis. it had the potential to harm an important interest (money. Some words are the legal event. not statements in furtherance of a conspiracy). reducing likelihood of prejudice or jury confusion. not casual remarks to acquaintance. then cannot be admitted under this rationale (one of the most effective ways to lie is to mix falsehood with truth).