Contemporaneous Objection Rule: must object to preserve

matter for appeal; must be specific; offer of proof

Common Objections: (1) Asked & Answered;
(2) Argumentative; (3) Ambiguous; (4) Assumes fact;
(5) Badgering; (6) Compound; (7) Cumulative; (8) Narrative;
(9) Non-responsive; (10) Misstatement.
No Leading Questions on Direct UNLESS: (1) necessary
(i. issue is preliminary; ii. refreshes witness memory;
iii. incompetent person; iv. forgetful witness); (2) hostile
witness; (3) adverse party; (4) identified with adverse party.
AUTHENTICATION
Real Evidence: must be (1) relevant (401); and (2) satisfy
chain of custody UNLESS: i. unique characteristics; or
ii. not subject to change. **403 may apply if over the line.
Demonstrative Evidence: demonstration permitted if:
(1) 401 > 403; (2) helpful in explaining something to jury.
Most likely comes in following forms:
Pictures/videos: must be accurate representations of scene
it purportedly depicts; only need one person to say
accurate.
Surveillance/Audio Recordings: require technical chain of
custody since easier to manipulate: i. personal knowledge;
and ii. scientific foundation.
X-rays: are admissible but must have: i. x-ray tech, person
who maintained machine; and ii. must set foundation for
x-ray techs ability. Show scientific chain of custody.
Voice I.D.: admiss. at anytime from personal knowledge
as long as you can testify I am familiar with this voice
Incoming calls: self-identification by itself not enough,
must include surrounding circumstances. Alternate
explanations go to the weight of the evidence.
Calls to businesses: must establish foundation that you:
i. called business (i.e. found in phonebook); and
ii. were involved in a discussion of business matters; if
so, you are allowed to testify as to what agent said.
Handwriting: Six ways to authenticate:
(1) from Personal knowledge (before any litigation anytime);
(2) Response doctrine: use the circumstances to authenticate
based on the letter being a reply; (3) from Overall
circumstances; (4) public records: Seal authenticates;
(5) from Expert testimony; (6) from Written exemplar
(known handwriting exs), under determination of jury.

HEARSAY
A statement, other than one made by the declarant (must be
person/corporation) while testifying at this hearing, offered to
prove the truth of the matter asserted. A witnesss own prior
out of court statements can meet the threshold definition of
hearsay (i.e. What I said I saw instead of What I saw)
TOMA: words may be spoken to show that something was
said, just not what was said. Categories: (1) State of mind of
the listener: If the state of mind of listener is relevant to the
case and it does not go to prove the truth of the matter
asserted, then the words are not hearsay (i.e. not to prove wife
was actually sleeping around, just that the words were said to
that affected husbands state of mind. i.e. pissed hubby right
off!); (2) Independent Legal Significance: Any words which
create or terminate legal responsibility are not hearsay.
(i. Contracts; ii. Slander/ Perjury: You honor, words of --are of independent legal significance and therefore are not
hearsay. iii. Assaults/Threats/Fraud: the attempt is to prove
that the words were said, not TOMA (Words of --- are of
independent legal significance and therefore are not
hearsay); (3) Notice: mere fact that words are spoken create
responsibility to do something, words of notice are not
offered to prove TOMA but rather offered to prove notice
which goes to show that there was a duty that arises out of the
notice. (i.e. words not used to establish that the pavement

COMPETANCE
Everyone is competent to testify EXCEPT:
(1) judges; (2) jurors (exceptions: extra. prej. info;
outside influences); (3) medical experts (state law);
(4) infant children (judge); (5) dead mans rule.
Foundational Competence: (1) swear; or
(2) affirm; or (3) other forms (subject to perjury).
**If you do not object: competence by waiver and
witness can lie carte blanche without perjury.
Competency Factors:
Communication: English; may need interpreter, if so
foundation for interpreter needs to be laid (validated).
The interpreter must meet expert qualifications;
Oath: swear to tell truth under pen. of perjury;
Recall: (1) Memory refreshed: establish lack of memory;
can use anything; may not read; must produce to other
side; (2) Past recollection recorded: witness doesnt
remember; once knew; made or adopted a written
statement; while fresh in memory; accurate when made;
read it to jury; other side may admit; (i.e. diary); (3)
Hypnosis: generally no unless battered women syndrome
Perception: must be: (1) sufficient evidence that witness
has personal knowledge (split-second enough); and (2) a
reasonable person may conclude that witness in fact
perceived what he testified to; if so witnesss own testi.
suffices.

BEST EVIDENCE RULE

Rule: If offered to prove content of writing,
recording, or photo, you must use the original.
MUST be original: (1) contracts; (2) deeds (only if
meets, bounds, easements); (3) judgments; (4) wills;
(5) x-rays.
NO original necessary before topic is brought up
for: (1) Payments; (2) Marriage; (3) Salary.
NOT applied to: (1) delivery; (2) existence;
(3) execution.
Drawings/Artwork: are included as a writing.
Chattels: need original if central to the case.
Tape recording: Is content of tape in-issue?
Usually is for unauthorized copies, patent
infringement, or copyright suits. If trying to
prove that conversation took place, easy in. But
if trying to prove content, then tougher.
Pictures/films: duplicates freely admissible if
i. come from the same authentic negative; ii. no
objection.
Exceptions: (1) original lost or destroyed without
bad faith; (2) other side has original and will not get
it; (3) cannot subpoena original; (4) unimportant if
not original.
Secondary evidence: There is no best secondary
evidence rule!
HEARSAY (cont.)
was wet, only that the owner had notice that it was
wet); (4) State of mind of the holder: situation
where someone is in possession of writings, and the
writings are not offered to show the truth in them,
but rather the possession of them which infers
knowledge of the writings contents.
Statements: hearsay can include conduct without
accompanying words. Examples of statements that
fall under hearsay: (1) Conduct: if by your conduct,
you assert something, then conduct can fall under
hearsay.(Most common: i. people pointing out in
line-ups without saying anything; or ii. doc putting
dolls in position that child said what daddy did; or
iii. conduct in response to a question); (2) Oral;
(3) Written; (4) Assertions; (5) Silence: but silence,
if not intended to convey any info., not a statement.

RELEVANCE
Rule 401: Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence.
Rule 403: Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading of jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence.
Objection:Irrelevant, and in the alternative, unduly prejudicial
Applications: (1) Admission By Conduct (tendency): does not have to
prove case; so long as any tendency, it comes in (flight/escape included);
(2) Poverty/Wealth: only relevant when punitive damages are an issue
(exception: there are times when a persons fin. history may be relevant to
show motive as to whether or not they committed a crime; (3) Similar
Events: generally not admissible (403 > 401) (exceptions: i. litigousness
with fraud; ii. value of real estate); (4) Gruesome Pics: okay if x-rays and
pics of bruises (401 > 403); (5) SODDI: goes either way (need nexis).
Special Issues: (1) Plea and Plea Negotiations: cannnot use this, but can be
waived (cannot use waiver if guilty plea is given and later withdrawn); (2)
Offers of Compromise: cannot use to show fault, but can use if dispute on:
i. validity/amount of claim; or ii. particular witness bias; or iii. obstruction
of justice in criminal cases. Can also use for: i. impeachment; ii. breach of
settlement agreement; (3) Offer to Pay Medical Expenses: cannot use
unless the offer comes with admiss. of fault (can only use fault); (4)
Liability insurance: cannot use to prove fault, but can be used for ability to
pay damages. May also be offered to show: i. ownership/control; ii. agency
relationship; iii. bias or prejudice of a witness;(5) Subsequent remedial
measures: cannot put on evidence of any subsequent remedial measures to
prove someone was at fault in an incident unless: i. measures were before
incident; or ii. ownership or control; or iii. defense denies feasibility (lying)

OPINION
Lay Person: A lay person is allowed to give opinion if:
(1) Rationally based on perception: actually be in the room,
feeling, tasting, hearing, smelling whatever is in question.
Foundation is laid by actually being there.
(2) Helpful to the trier of fact: i. Must be important;
ii. Time, distance, speed, etc. (however witnesss estimation
of time, distance, and speed is usually not that helpful to the
jury so not admissible. But, this varies from jurisdiction to
jurisdiction); iii. Intent of another (goes both ways for
jurisdictions); iv. Testimony as to emotional conditions and
intoxication are helpful; v. If otherwise admissible, lay
experts testimony may relate to ultimate issue.
**Not helpful to trier of fact: i. legal conclusions (it was
negligence); ii. opinion testimony on whether or not
another witness told the truth (invades province of the
jury); iii. cannot say what is already common knowledge.
Expert: (1) Qualifications: helps to have credentials, training,
education. Experience can be enough depending on
facts of particular case; some courts hide motives
and screen out potential hired guns or junk science;
(2) Assist trier of facts: same as for lay person (i. no
legal conclusions; ii. not truthfulness; iii. not
common knowledge). Science: Frye test would
preclude something based on new scientific
evidence because it has not been generally
accepted. But Daubert overturns Frye holding all
relevant evidence is admissible, as long as science
is valid. The Federal Rules overrule Daubert
establishing three criteria for scientific evidence: i.
judges are gatekeepers who determine fit based on
definition of scientific knowledge; ii. whether
publications exist; iii. whether general acceptance
remains. Really it goes back to Frye; (3)
Foundation: i. sufficient data; ii. reliable principals
and methods; iii. reliably applied; (4) Mathematical
proof: generally not ok even if statistically sound
(unduly prejudicial) except for blood tests in
paternity suits (still need additional evidence
though);

CHARACTER
Character is a generalized description of ones
disposition in respect to a general trait.
Circumstantial use: use of character evidence to
show that the actors conduct conformed to the
character trait.
Character in issue: when a character trait is an
element of the case.
Methods of Proof: (1) reputation; (2) opinion;
(3) specific instances.
Civil Cases: Rule 1: Circumstantial use of character
evidence is not allowed in a civil case (exception is
self defense: D can put on reputation and opinion);
Rule 2: When character is in-issue and disputed
(must be a defense) in a civil case, may be proven
by reputation, opinion, and specific instances
(i. defamation; ii. neg. hiring/entrust.; iii. wrongful
death damages; iv. child custody (both in-issue));
Criminal Cases: Rule 3: The prosecution may not
offer character evidence against the criminal
defendant in its case-in-chief (subject to Rule 9);
Rule 4: Criminal D may offer character evidence of
himself concerning a pertinent trait in case-in-chief
by reputation and opinion testimony, state then gets
rebuttal with reputation and opinion, and can also
use specific instances on cross-x (Rule 8).
(Pertinent? i. good moral character: admissible in
any case; ii. law-abidingness: admissible in any
case; iii. peacefulness: pertinent to murder, battery,
armed robbery, drug trafficking; iv. honesty:
pertinent to theft, not to homicide; v. truthfulness:
pertinent to perjury); Rule 5: Criminal D may offer
character evidence of victim aggressiveness by
reputation and opinion, state gets rebuttal on victim
and defendant; Rule 6: Homicide Rule: if the
criminal D says the murdered person was the first
aggressor, then the prosecution can introduce
character evidence of victim by reputation and
opinion; D cannot; Rule 7: When a character trait is
an element of a criminal charge, it is provable by all
three methods of proof (seduction of a chaste
woman; fear of victim); Rule 8: Cross-x (of
character witness) concerning specific instances of
pertinent acts committed by the person whom that
witness has endorsed is allowed; Rule 9: Similar
Acts: specific instances of bad conduct are
admissible to prove plan, signature trait, intent,
motive, bias, design, or purpose other than
character; trumps Rule 3 and state can use in casein-chief if you find pigeon hole (i. 403 analysis; ii.
signature trait rule: reasonable inference from
similarity of events); Rule 10: Evidence of habit is
admissible to show that conduct conformed to habit
(regular response to repeated situation; ratios
important, convictions are not).
OPINION (cont.)
(6) Opinion first: Remember for laypersons, you
must establish foundation before you
ask them opinion (actually being
there). But for experts you can ask
them opinion before giving any
foundation (usually dont do, however,
not as effective);
(7) Ultimate issue: testimony for ultimate issue is
generally ok as long as it is generally
admissible
(i. same as for layperson; ii. state of mind of
criminal D: expert cannot testify to the
state of mind of defendant (Word
game: every but: D a psycho?).