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Rulings and Admissibility

103 Ruling on Evidence

o (a) Error on ruling is not reversible unless a substantial right is effected
(1) You have to object to preserve error on admitting evidence
(2) - You have to make offer of proof to preserve error in excluding evidence
o (c) Evidence that might be excluded should be heard out of the Jurys presence
o (d) If there is plain error in a ruling, you do not need objection or make offer of proof

105 Limited Admissibility

o When evidence is admissible for only specific purpose, the court shall, upon request, instruct
the jury to restrict the scope of evidences application.

Relevancy in General 401, 402 & 403

401 Definition of Relevance

o Relevant evidence is evidence having any tendency to make the existence of any fact of
consequence to determination of the case more or less probable than it would be w/o evidence.

402 Relevant Evidence is Admissible, Irrelevant Evidence is Inadmissible

403 Balancing Test for Relevancy

o Relevant evidence may be excluded if the probative value is substantially outweighed by
danger of unfair prejudice, confusion of issues, misleading the jury, unnecessarily cumulative,
waste of time, or undue delay.
Remember that need (Its the only evidence I got!) can increase probative value

Is statement Hearsay or Not Hearsay, explain why, then explain exceptions if exceptions apply.

801 Hearsay Definition

o (a) Statement =
(1) an oral or written assertion
(2) nonverbal conduct intended to be an assertion
o (b) Declarant = a person making a statement
o (c) Hearsay =
A statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.

Completely Outside Hearsay

o Not offered for TOMA
A statement can be offered to prove state of mind or existence of something or just
about anything other than what the statement actually says. When it is offered for
anything but TOMA, it is outside of hearsay altogether.
o Only People can make statements. Dogs cant, clocks cant, etc.
o Legally Operative statements are outside hearsay altogether (contracts, notice, etc.)
o Non-assertive conduct is outside of hearsay (like putting up an umbrella)

801 (d) Not Hearsay

o 801 (d)(1) Prior Statements by Present Witness
The declarant testifies at trial and is subject to CX concerning the statement, and:

801 (d)(1)(A) Prior Inconsistent Statement

o Statement is inconsistent with declarants testimony and was given under oath
at trial, hearing, other proceeding or deposition.

801 (d)(1) (B) Prior Consistent Statement

o Statement consistent w/ declarants statement and is used to rebut against
charge of recent fabrication (does not have to be sworn)

801 (d)(1) (C) Identification Statement

o Statement is identification of person made after perceiving them
o 801 (d)(2) Admission by Party Opponent
A statement is offered against a party and is:

801 (d)(2)(A) Prior Admission

o The partys own statement (individually or through representative)

801 (d)(2)(B) Adopted Admission

o A statement that the party has adopted as truth. Can be through silence.
Watch for 5th amendment. Might be silent b/c he is smart.

801 (d)(2)(C) Statement by Authorized Party

o Made by person authorized to make statement on subject (ex: lawyer)

801 (d)(2)(D) Statement by Agent or Employee

o Made by agent or employee acting within scope of agency or employment
during agency or employment.

801 (d)(2)(E) Co-Conspirator

o Made by co-conspirator, during course, & in furtherance of conspiracy
Can be used to show conspiracy exists but must be proved by
preponderance of evidence (all 3 elements) to get to jury. The
statement in question can help establish preponderance.
803, 804, 807 - Hearsay Exceptions

803 Hearsay Exceptions Availability of Declarant Immaterial

o 803(1) Present Sense Impression
Describes event, made while perceiving even or immediately thereafter
o 803(2) Excited Utterance
Made in relation to startling event while declarant under stress of event (45 min max)
o 803(3) Then existing mental, emotional or physical condition
Then existing physical state (pain, bodily health)
Then existing emotion or state of mind
Then existing intent, plan, motive or design
These CANNOT be reflective (ie I hurt yesterday, or planned on doing X)
o 803(4) Statements for purpose of mental diagnosis or treatment

Any statement reasonably pertinent to diagnosis or treatment

Can be made to anyone who treats medically (even person you ask take to hospital)
Can intermingle investigative questions if treatment part of question
803(5) Recorded Recollection
Plan A Only refresh memory
Not offered into evidence.
Only shown to refresh personal memory of what is in the document.
Plan B Admitting Past Recollection Recorded
Impaired Recollection witness memory of the event recorded must be impaired
First Hand Knowledge - relates to matters witness once had 1st-hand knowledge of
Made When Memory Fresh Had to make record shortly after event
Accurate When Written witness can vouch that the statement was accurate
803(6) Business Records
Helpful Acronym
K (kept in regular course of business)
R (Regular Course of business to make this record)
A (At the time or near time of event)
P (Personal Knowledge)
Records prepared for litigation are not business records, including police reports
803(7) Absence of Business Record
If you normally expect to find something in a business record and it is not there, then
its absence can be admitted.
803(8) Public Records and Reports
1. Activities of the Office - Anything that records what the agents did. OR
2. Matters Observed Pursuant to a Legal Duty based on 1st hand knowledge of
government employee. OR
3. Factual Findings of an Agency
Factual Findings Cant
o Be used by prosecution in criminal trial (can show pieces, but not
803(10) Absence of Public Record
If you normally expect to find something in a public record and it is not there, then its
absence can be admitted.

807 Residual Catch-All Hearsay Exception


o If a statement cannot get in under 803 or 804 it still can get in if it has equivalent
trustworthiness, and
(A) The statement is offered as a material fact
(B) The statement is more probative for the point it is offered than anything else
reasonably attainable
(C) Letting it in will best serve the interests of justice
You have to give opponent a heads up before trying to use this exception
804 Hearsay Exceptions Unavailability of Declarant Required
o 804(a) Definition of Unavailable
A witness is unavailable if:
(1) Protected from testifying due to privilege
(2) Refuses to testify despite court order to do so
(3) Testifies to lack of memory of the subject matter of declarants statement
(4) Is unable to be there b/c of death or then existing physical or mental illness
(5) The proponent of the evidence hasnt been able to find witness through
reasonable means
o If proponent of evidence acts to make witness unavailable, they are
considered available (cant scare witness away for your benefit)
o 804(b)(1) Former Testimony
Civil Case
Witness gave testimony or deposition in same or different hearing AND
o Predecessor in interest had an opportunity to cross
o Predecessor in interest had same nucleus of operative facts & similar motive
to develop testimony from unavailable witness
Criminal Case
Witness gave testimony or deposition in same hearing
Cannot be a predecessor in interest
o 6th Amendment confrontation clause requires opportunity to CX
o 804(b)(2) Dying Declarations
Declarant has to believe death is imminent (subjective belief Doesnt have to die)
Statement must directly relate to cause or circumstances of believed impending death
In Criminal cases Not useable in non-homicide criminal cases
o But in homicide cases the declaration doesnt have to be result of homicide
o 804(b)(3) Statement Against Interest
A statement that is so far against declarants interest that a reasonable person would not
say it unless declarant believed it to be true. It must:
Expose declarant to civil liability (OR)
Expose declarant to criminal liability (OR)
Render a legal claim by declarant against another invalid
The statement cannot be self-serving.
It cannot reduce the punishment of, or exonerate declarant.
If statement offered in criminal trial that exculpates the accused and exposes the
declarant to criminal liability it has to be supported by trustworthy evidence,
because someone in jail admitting to a crime cant be trusted

803(21) Hearsay Exception for Reputation Character Evidence

o Testifying about reputation usually involves hearsay. 803(21) lets it in.
404(a)(b)& 405 Specific Act Evidence

General Rule of 404(a) Character Evidence Generally Inadmissible

o Character evidence is not admissible to show the person possessing the character trait acted in
conformity therewith. The following modify the general rule.
404(a)(1)(i) Character of the Accused Mercy Rule (Criminal Case Only
o When Defendant is charged with a crime, the defendant can put on good reputation and
opinion character evidence to rebut bad character trait implied from the crime.
can CX defendants witness by asking if witness has heard about bad character act
can now put on own opinion & reputation witness to say has bad character.
404(a)(2)(i) Character of the Victim-Trash the Victim Rule - Criminal Only
o Defense can introduce bad reputation or opinion evidence about victim to show that victims
acted in a way that would exonerate the defendant.
Prosecution can CX witness with have you heard of victims good character acts
can put up an opinion or reputation character witness for victims good character trait
404(a)(1)(ii) Character of the Accused-Sos your Daddy response to 404(a)(2)(i) - Criminal
o If Defense trashes character of witness to make witness look like they are the responsible party
with 404(a)(2),the prosecution can offer witness to show defendant has same bad character as
the victim allegedly has (responding with so is your daddy after getting insulted)
can respond by CXing witness w/ have you heard about good character acts
can respond by putting own reputation/opinion witness for good trait in question
404(a)(2)(ii) Character of the Victim Peaceful Lamb Rule Criminal Homicide Only
o If defendant accuses victim of being the first aggressor in a criminal homicide case, the
prosecution can put on reputation and opinion evidence to show victim is peaceful
can CX witness with have you heard questions of victim not being peaceful.
can put on own opinion & reputation witness to show victim is not peaceful.
404(b) Specific Act Evidence - Prosecutors Rule Mostly Civil Cases
o Specific factual issue is raised in the case like motive, opportunity, knowledge, plan, or intent.
Specific acts cannot be used to show action in conformity with specific act
o Opponent can bring its own specific act evidence to disprove the specific act in question
o The threshold question is whether the relevant contested evidence is probative on a material
issue for reasons other than character.
o The other acts to show common plan or identity do not need to be individually proved. You
only have to show the facts can lead jury to reasonably infer the specific acts are true.
405(b) Character at Issue Because Substantive Law Puts it at Issue Mostly Civil Cases
o Specific acts allowed to show character when it relates to essential charge, claim or defense.
The specific acts are being used as proof of character
Specific acts can be brought by either side
o If one side brings reputation or character witness for a trait related to the specific act, opponent
can respond by putting on its own specific act evidence related to character trait in question
o In this class, the only times these come into play are
Negligent Entrustment to show persons character of untrustworthiness
Defamation To set a level for DAS related to s lost character
608 & 609 Impeaching a Testifying Witness (witness doesnt have to be party in case)

608(a) Opinion & Reputation Evidence of Character of Testifying Witness

o 1st Proponent party calls witness 1 who testifies on direct
o 2nd Opponent calls witness 2 who testifies with bad character opinion or reputation for
untruthfulness of Witness 1
o 3rd proponent party can
CX witness 2 with have you heard about witness 1s good character for truthfulness
Put on witness 3 to testify with good character opinion or truthfulness of witness 1.
608(b) Specific Instances of Conduct of a Testifying Witness
o 1st Proponent party calls witness 1 who testifies on direct
o 2nd on CX opponent can ask witness 1 about prior specific acts relating to untruthfulness that
witness 1 has allegedly committed.
If witness1 denies these specific acts, the opponent cannot introduce extrinsic evidence
to refute witness 1s statement.
Proponent can object if opponents questions are not relevant, or opponent does not
accept witnesss denial.
609 Impeachment by Evidence of Conviction of Crime
o Prior felonies [609(a)(1)] & crimes involving dishonesty [609(a)(2)] have a direct relation to
the truthfulness of the witness and can be asked about on CX to impeach witness credibility.
o If witness denies prior conviction in CX, opponent can bring extrinsic evidence to refute denial
For witnesses other than criminal defendant
Any felony or crime of dishonesty within last ten years is presumed admissible for
impeaching (would have to fail 403 to not get in)
For witness that is criminal defendant
Any crime of dishonesty within last ten years is admissible
A felony is presumed inadmissible for impeachment and to get in must be weighed
so probative value outweighs prejudicial effect (reverse of 403).
o The more similar the prior felony is, the more prejudicial it is.
Sexual Assaults and Related Character Evidence

412 Rape Shield Law

o The rape shield law generally does not allow the defendant to trash the victim in criminal rape
cases with specific act, reputation, or opinion evidence.
Can bring specific act evidence to show other party is cause of injury, semen, etc.
Can bring specific acts to show consent with (but not with anyone else)
Can bring evidence victim is prostitute retaliating for failure of John to pay up.
If victim opens the door to her character, her character can be rebutted (limited).
o In civil cases, the victim is not protected from specific act evidence because of the idea a
criminal victim might be too scared to testify, but a civil victim is not so scared.
Reputation of victim; however, can never come into criminal or civil rape cases.
413, 414 & 415 Propensity for Sexual Crimes
o What they are:
413 = Sexual Assault cases
414 = Child Sexual Assault cases
415 = Civil version. of 413 & 414
o Evidence of prior sexual assaults on anyone can be used to show dangerous propensity of .

o The evidence is prejudicial as hell, but it is supposed to be. It can only be kept out with a
modified 403 balancing test that looks at a sexual crime committed a long, long, time ago as
more prejudicial than probativebut a prior sex crime will likely never be kept out.

406 Habit & Business Routine

o Habit is a specific response to external stimulus so that it can be inferred that if event A
happens, the party in question will respond with reaction B without even thinking about it.
Have to show the action is automatic and regular, not occasional.
o Evidence of a habit does not require eyewitnesses or corroboration.
o Evidence of habit is relevant when used to prove the actions of an individual or a business
were in conformity with that habit on a given occasion.
Applying 403 Balancing to Similar Occurrences & Other Practices in Industry
o Primarily used in products liability cases. (ex: Tractors tend to shift into gear autonomously)
o Evidence used to show similar acts make the current act likely to be for same reason
o Primary question is whether the similar acts in question are reasonably similar to the act in
question. It would be unfairly prejudicial to allow acts that are not reasonably similar because
then the probative value would be low and the jury is likely to be confused.
407 Subsequent Remedial Measures
o Primarily relates to products liability
o If a harm occurs and afterwards a party takes measures to make harm less likely in the future;
the subsequent remedial measures arent admissible for the purpose of proving the original
condition implies negligence or other problem. (Otherwise MFG would never improve stuff)
Can be offered for other reasons like the had control over situation (not easy to get in)
If the says that it was the only reasonable design, a new design could impeach
408 Compromise & Offers to Compromise
o Evidence created for purpose of compromise or offer to compromise (settlement) is not
admissible to prove liability. Settlement negotiations are also not admissible.
If evidence available outside settlement proceedings, it is admissible
Compromise evidence can be offered for different purpose (ie. Bias, Obstruction)
If you make settlement statement to government agency, the agency can still use the
settlement evidence against you in a subsequent criminal proceeding.
409 Payment of Medical and Similar Expenses
o Evidence of offering or paying a persons medical expenses is not admissible for proving
liability for the s injuries
410 Plea Discussions in Criminal Cases
o If makes a guilty plea that is later withdrawn or a plea of no contest in a criminal
proceeding, the plea itself cannot be used in subsequent civil or criminal cases against the
A full out guilty plea is admissible
o Exceptions
If opens the door by mentioning part of the plea bargain, can bring the rest
If commits perjury on the stand, prosecutor can bring plea bargain for perjury
411 Liability Insurance and Medical Payments
o Evidence a person has or doesnt have insurance is not admissible to show negligence or
wrongful conduct.
It is admissible to for other purposes like agency, ownership, control, or bias of witness
403 application Pre-Trial Experiments

o Pretrial experiment evidence is weighed on the 403 scale. The probative value of the
experiment is related to how similar it is to the event it is trying to simulate.
o The sophistication of the experiment and what the experiment is offered to prove can influence
how much leeway the court is willing to give when it decides if the experiment is similar.

General Rules on Competency of Witnesses at Trial

o 601 Witnesses are generally considered competent to testify regardless of age or infirmity
Note: In state law cases brought to fed court, state competency rules apply
o 603 Witnesses have to swear an oath or affirmation (so they know its serious)
o 605 Witness cant be a sitting judge in the case
o 606(a) Witness cant be a sitting jury member
606(b) Inquiry of Juror Involving Validity of Verdict
o A juror cannot testify on appeal or submit an oath or affidavit about the outcome of a jury trial
The jury is made aware of extraneous prejudicial information during trial
There is an outside improper influence on the jury
Inside improper influences are not a problem
There is a mistake on the jury verdict form.
602 Lack of Personal Knowledge
o A witness cant testify on a matter unless evidence is introduced to support a finding that the
witness has personal knowledge of what the witness is testifying to. The foundation evidence
can be the witnesss own testimony.

602 Admissible Lay Opinion

o Lay witnesses can testify from personal knowledge, but their five senses limit their testimony.
This means they generally cannot give their opinions on things b/c not from five senses.
o Collective Facts Doctrine
Allows a witness to draw conclusions from sensory observations that are similar to
opinions but are limited to what is the natural result of accumulated observations.
(ie. The blanket looked like it had a man under it) (saves time from endless testimony)
Some applications of the collective facts doctrine
Can testify to height, weight, speed, color
Can testify to others emotional states, sounds, sizes
Can testify to estimated property value and other peoples intoxication
702 Testimony by Experts
o If specialized knowledge would assist the jury in understanding evidence or facts at issue; then
an expert can testify about the subject in a form of an opinion
Expert equals person w/ formal training or experience. Anyone with specialized
knowledge can be an expert and a judge has wide discretion in identifying experts.
Expert testimony must:
1. Assist the trier or fact in understanding evidence or material fact in issue
2. Be offered by an expert with specialized skill, knowledge or training
3. Be based on sufficient facts or data
4. Be the product of reliable principles and methods
5. The reliable principles and methods must be applied to the facts of the case
o The fit does not have to be perfect, but it has to be applicable.
Is the scientific theory employed reliable? Weigh the following:
1. Can or has the scientific test employed been tested itself?

2. Has there been peer review & publication of theory & experiment data?
3. What is the potential rate of error? (standards for consistency)
4. The general acceptance of the method in the scientific community.
703 Three Permissible Factual Basis For Expert Opinions
o 1. First Hand Observations (like a treating physician)
o 2. Presentation of Evidence at Trial
The expert attends the trial & hears everything establishing the facts
The expert gets a long hypothetical on the stand establishing facts in the trial
o 3. Presentation of data outside the court
704 Opinion by Expert on Ultimate Issue
o 703(a) Generally an expert witness can testify to the ultimate issue in the case without raising
colorable objections
o 703(b) An expert is not allowed to testify to the ultimate issue of the mental state of a
defendant in a criminal trial.
705 Disclosure of Facts or Data Underlying Opinion
o The expert does not have to give all the facts that lead to his opinion but he can be questioned
about them. The facts used by the expert only have to be the facts the expert believes a similar
expert could rely upon.

501 Privileges
o Privileges in federal courts are governed by federal common law on federal cases and state
common law or statutes when a state law case gets to federal court.
o Privileges can be waived, even accidently, but only by the person holding the privilege.
Disclosure of information to person that does not need to know can equal waiver because
the information is not being treated as secret anymore.
o Attorney Client Privilege - Individuals
Is for the benefit of the client, not the attorney
Begins at initial preliminary discussions b/t client & clients attorney, or attorneys rep.
The privilege lives on after death of client
Cant be used to help conduct a crime
The privilege only exists for the purposes the client sought legal advice.
o Attorney Client Privilege Corporate Client
Facts given to an attorney to obtain legal advice are protected for the corporation if:
1. Within the scope of employment of corporate employee to communicate
with corporate attorney about these facts
2. The employee knew the communication was for legal advice
3. The information is kept confidential
o Attorneys with joint clients
If a single attorney represents multiple parties in a case and the parties later become
adverse, the communication made to the single lawyer is not protected by attorney client
o Attorney Versus Client
If attorney and client become adverse, the information shared between them ceases to be
o Work Product Doctrine
The attorneys personal work on a case is not discoverable. The privilege includes:
Attorneys legal research and memos

Attorneys notes
Attorneys thoughts and mental impressions
Attorneys personal conclusions
The privilege does not include an attorneys questioning of a witness in an office if there
is a substantial need for this information and no other way to get it.


201 Judicial Notice

o A fact that is not subject to reasonable dispute can be subject to judicial notice that the fact
should just be accepted as a fact without formal proof.
o Judicial notice of facts can happen at any time in the proceeding.
o If notice is asked for, the court must grant it. The court can also take notice on its own.
o Civil proceedings
The court tells the jury to accept judicial notice facts as conclusive
o Criminal proceedings
The court tells the jury that it may, but doesnt have to accept the fact as conclusive
o Judicial notice includes
Generally known facts (whiskey is intoxicating)
Boundaries of estates // weather in the past
Very well established scientific tests (ex: radar)
o Burdens Two Types
Burden of Persuasion
Evidence has gotten to jury. The party carrying the burden has to reach the
designated level for the jury to find for their side.
Civil Court
o Preponderance of Evidence If all things come out equally, the party
carrying the burden loses.
Criminal Court
o Beyond a Reasonable Doubt-Not defined, just more than preponderance
Burden of Production
Production is getting the evidence to the jury
o The burden of production is that there is enough proof to support a
finding that a reasonable juror could believe the evidence.
301 & 302 Presumptions
o Presumptions
Presumptions are legal inferences based in statutes or common law
Example presumed reckless if he shoots a gun in direction of other human
301 Presumptions in general civil actions
The party bringing the presumption puts the burden of disproving the
presumption on the other party.
Bursting Bubble Theory
o If the opposing party contests the results of the presumption, the
presumption disappears so there is no presumption.
302 Presumptions in state law cases
State law presumptions apply in state law cases
o 901 General Rule on Authentication
Evidence has to be authenticated that it is what it purports to be before being admissible

To be authenticated, the evidence in question must be sufficient to support a finding that

it is what it purports to be.
o Tangible objects
Real objects and pictures and stuff only need to be able to show they are what the purport
to be.
o Chain of evidence
If evidence has been moved around, you have to prove it is in substantially the same
o 902 Self Authentication
There is no need to bring extrinsic evidence to authenticate a lot of things like
1003-1008 The Best Evidence Rule
o Best is a stupid term for this rule. The rule is about a preference for original evidence.
o The best evidence rule applies to writings, recordings and photos
It does not apply to tangible objects, like guns.
o The purpose of preferring originals is that having original evidence reduces the possibility the
evidence was altered in a copy.
But all you have to do is authenticate that the evidence is what it purports to be to get a
copy in.
o There are a bunch of sub-sets of the best evidence rule but the overall rule is that even
though originals are preferred, you do not have to use the originals when they are not available
and can cobble together a case with whatever is actually available as long as it is admissible.