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General Procedure

FRE 105: When a court admits evidence that is admissible for one purpose (but not for another
purpose), the court must upon request, restrict and instruct jury of scope
FRE 104(a): Court must decide any preliminary question about whether a witness is qualified, a
privilege exists, or evidence is admissible
Preponderance of evidence
Not bound by rules of evidence, except those on privilege
FRE 104(b): When relevance depends on whether a fact exists [Conditional Relevance]
Proof must be introduced sufficient to support a finding that the fact does exist (by
preponderance)
o Sufficient evidence to allow the jury to find necessary fact
McNeely: physical changes in D plus testimony matching crime enough for
reasonable jury to believe D was person W spoke to in jail despite inability to
identify at trial
Court may admit on condition that the proof be introduced later
FRE 103: Rulings on Evidence:
Trial judge has a lot of discretion
Objection raised: Error only if affects a substantial right of the party
o Bandera: Basis must be obvious or stated, otherwise failure to preserve error.
No objection raised: Is error plain? Affects substantial rights? Seriously affects fairness?

Relevance and Probative Value


FRE 401: Relevance
Tendency to make a fact more or less probable
o Knapp: no bruises on man makes less likely D heard victim injured man
o Dominguez: Owning gun more likely shot V. Required ownership goes to weight.
o Larson: Driving BAC limit helps jury evaluate level of intoxication
Fact is of consequence in determining the action
FRE 402: Irrelevant evidence is not admissible
FRE 403: Court may exclude evidence it its probative value is substantially outweighed by danger
of:
Unfair prejudice
o McRae: photos of death scene not unfair, substantially outweighing
Relevant evidence is inherently prejudicial
o Mehanna: same with terrorist materials
Confusion of issues
o Noriega: intelligence work, geopolitical intrigue
Misleading jury
o Flitcraft: jury might think law unsettled
o Abernathy
Undue delay
o Abernathy: low reliability of video sound, low probative value
Wasting time
Needlessly presenting cumulative evidence
Remember: Prosecution needs evidentiary depth to persuade, but in context, depending on relevant issue,
extra narrative info may have very low/zero probative value (Old Chief, legal status)

Hearsay
FRE 801: Hearsay
Out of court statement
o Out of this current proceeding
o Statements can be written, recorded, etc.
o Must have some assertive content (but may be implied)
Introduced to prove the truth of the matter asserted
o Matter asserted is matter asserted by declarant
o Introduced to prove if anywhere in chain of inferences
Sir Walter Raleigh: serious hearsay, unjust historical example.
Leake v. Hagert: W testified Ds son told him red lens had been out. Classic hearsay.
Not offered for the truth of the matter asserted if:
Demonstrably false:
o Morris Costumes: Duffy is Barney shows likelihood of confusion
Verbal acts (committed with words themselves, offered for the fact that they were said):
o Saavedra: I am law enforcement to get credit cards, fraud
o Hanson v. Johnson: this is your corn performative utterance was giving corn.
o Creaghie: said he wanted insurance cancelled, shows oral agreement
o Montana: its going to be $10K was effectively give me (demand/verbal act)
Offered to show mental state of the listener
o Subramaniam: bandits told D they would kill him, evinces D fear
o Southerland: rumor of relationship to show district on notice
o Parry: sons statement he was working with agent to show sons knowledge.
o Johnson: stop writing prescriptions like that, shows D knowledge
*Likely to need 105 limiting instruction
Implied Assertions
Might be a statement for hearsay if its an implied assertion:
Nonverbal conduct with intent to assert: always statement (hearsay)
o E.g. Pointing to identify
Nonverbal conduct no intent to assert: Zenni: not hearsay (no matter asserted), Dullard: hearsay
o Wright v. Tatum: taking family on ship voyage
Verbal conduct, no intent to assert: Zenni: not hearsay, Dullard: hearsay
o Zenni: search house, answer phone, people place bets not hearsay under FRE
o Dullard: note saying black+white facing our direction hearsay common law
*Potentially more dangerous than classic hearsay

Confrontation Clause
Sixth Amendment, applies to Ws against Ds in criminal prosecution, Crawford test overrules Roberts
which equated CC rules with hearsay rules (let in exceptions)
Confrontation satisfied with:
Live testimony and opportunity to cross-ex, OR
o (Not a cross-ex that goes how D wants (Owens, failed to refresh memory))
W unavailable and D had prior opportunity to cross-ex
Confrontation Clause Violation when:
Statement is hearsay
Statement is testimonial:
o Primary purpose test (Clark)
Establishing events for later prosecution OR
Responding to ongoing emergency
Including other potential victims
Examine:
Interrogators and declarants:
o Purpose
o Identity (kids (Clark), cops, teachers)
Informality (Clark, formal means testimonial)
Exceptions No CC violation when:
Dying declaration (most courts like Lewis (TN), unanswered at federal level post-Crawford)
Forfeiture by wrongdoing (Giles, domestic violence)
o If D acted with specific purpose of making W unavailable at trial
[Majority of justices find purpose inherent in classic dv case, victim isolation is
inherent in dv]
Hard cases Maybe CC violation when:
Joint trial and statement of non-testifying co-D (admitted as admission for co-D):
o Bruton:
When admitting a prior statement by co-D admitted as admission (and co-D not
testifying, so not subject to cross-ex)
Govt must redact statement so it no longer implicated the D (or sever trials)
Redaction must be sufficient:
o In linkages of putting facts together required for incrimination,
admit (Richardson) BUT
o If statement reveals name has been redacted and obviously Ds
name, thats insufficient (Gray)
Minority rule: Bruton applies to all statements made by non-testifying co-D that
implicate D
Majority rule: Bruton applies only to statements that are testimonial under
Crawford
Scientific test/records:

Prohibited as testimonial: affidavits that set forth forensic analysis of drugs (unless
analyst testifies and available for cross-ex) (Melendez-Diaz)
Not allowed (testimonial):
Surrogate testimony by analyst not involved with testing (Bullcoming)
Open question (Bullcoming concurrence):
Analysists supervisor or someone who participated obliquely in report
Could argue no CC violation because non-confronted statements are
being relied upon, not communicated (cite Lewis)
Allowed as non-testimonial:
Reports on which expert W relies, when not offered for TOMA and not
created for purposes of a specific prosecution (Williams)
Sex-offense cases:
o Olden: Violation if D prohibited from engaging in otherwise appropriate cross-ex to show
witness bias to shed light on witness reliability
o Smith: CC only guarantees what is important for impeachment purposes, in this case, that
does not include sexual nature of indiscretion
o

Exclusions and Exceptions to Hearsay


FRE 801(d): Exclusions
FRE 801(d)(1): Declarant-witnesss Prior Statement
Requires:
Declarant testifies
Declarant is subject to cross-ex about a prior statement
o No guarantee of effectiveness (Owens)
Prior statement is one of the following:
o Inconsistent with declarants testimony: AND
given under oath at another proceeding (trial, hearing, depo)
(without oath, try 613 to use just for impeachment purposes)
o Consistent with declarants testimony: AND EITHER
offered to rebut charge that declarant has recently fabricated testimony or acted
from recent improper motive in testifying
to rehabilitate declarants credibility as W when attacked on other ground
o Identifies a person as someone the declarant perceived earlier
613 attaches conditions to cross-ex for all types of prior statements and a condition on extrinsic
evidence for prior inconsistent statements.
FRE 613: Witnesss Prior Statement:
During examination: party need not show it or disclose its contents to witness. But must on
request show adverse partys attorney
Extrinsic evidence of Prior Inconsistent Statement: Extrinsic evidence of a witnesss prior
inconsistent statement is admissible only if the W is given an opportunity to explain or deny and
adverse party can examine W about it, or if justice requires.
o (extrinsic evidence stuff doesnt apply to admissions)
FRE 801(d)(2): Admissions
Must be offered against an opposing party (Phelps, not something incriminating against yourself) and fit
into one of the following categories:

Direct Admission (by party in an individual or representative capacity)


o No personal knowledge requirement (Salvitti)(just lowers weight)
o Statement need not be inculpatory (McGee)
Adopted Admission (party manifested that it adopted or believed to be true)
o Affirmative adoption: (Sea-Land Service, pasted into email)
o Silent adoption if:
Circumstances warrant inference that party would naturally have contradicted
if he did not asset to its truth (Fortes, but not Southern Stone)
Authorized Admission (by person whom the party authorized to make a statement on the
subject)
o Statement can be considered, but does not by itself establish authority
o Doesnt have to be to 3rd party: can be books or records adopter authorized to make
(AC)
o Hanson: Attorney authorized when directly related to management of litigation

Agent Admission (by partys agent or employee on matter within scope of relationship while it
existed)
o Statement can be considered, but does not by itself establish relationship or scope
o Can be related to matter within scope and still good (AC)
Sea-Land: Email in scope of employment
Co-conspirator Admission (by co-conspirator during and in furtherance of conspiracy)
o Statement can be considered, but does not by itself establish conspiracy or participation
(Bourjaily)
o Based on agency theory (sketchtastic)

*Rule of completeness (FRE 106, Beech Aircraft): When one party has made use of a portion of a
document, such that misunderstanding or distortion can be averted only through admitting another
portion, allow that portion.
*In joint trials, Bruton dangers
FRE 803: Exceptions that apply regardless of unavailability
All of these require personal knowledge. Supposedly they are especially reliable.
FRE 803(1): Present Sense Impression
Subject matter:
o Describes or explains what was perceived
Must actually perceive (Bemis, 911 call)
But need not participate
Time:
o While or immediately after
Construed broadly (Obayagbona, near contemporaneity is fine when immediate
not possible)
Elem: self-interest could not have been brought to bear
FRE 803(2): Excited Utterance
Subject matter:
o Relates to startling event/condition
Must actually perceive (Bemis)
Time:
o While under stress of excitement caused by startling event/condition
It can last (Obayagbona)
It can reoccur
Elem: Self-interest could not have been brought fully to bear
Restricts self-serving statements
*Proof of startling event may be made by statement itself (some courts)

FRE 803(3): Then-Existing Mental, Emotional, or Physical Condition


State of mind includes:
o Motive, intent, plan, knowledge (Harris, informant), future intention (Hillmon)
Some courts require evidence outside statement itself to prove anothers future
conduct, while others do not (Houlihan, Im going to meet Billy)
Emotional, sensory, or physical condition includes:
o Mental feeling, pain, bodily health
NOT:
o Facts that cause state of mind (Duran Samaniego, brother sorry, but cant admit facts
about why)
o Statement of memory or belief (used to prove the fact believed/remembered) (Shepard)
Unless it related to the validity or terms of the declarants will
FRE 803(4): Statement made for Medical Diagnosis or Treatment
Made for and reasonably pertinent to medical diagnosis or treatment
o Can be made by or to anyone, including a social worker or doctor hired for purposes of
litigation
o Pertinent is strict (Rock v. Huffco Gas & Oil, doctors didnt need to know stair was
rusted or grease on ground)
Describes: medical history, past or present symptoms or sensations, their inception, or their
general cause.
FRE 803(5): Recorded Recollection
Record is:
o On matter the W once knew about, but now cannot recall
o Made or adopted by W when matter was fresh in memory
o Accurately reflects Ws knowledge
This allows it to be read into evidence, but only received as an exhibit if offered by adverse party
(MA does allow it to be entered, Fisher)
Two ways to use this type of evidence:
o Past recollection recorded: Statement read to jury for proof of matter asserted
o Present recollection revived (Riccardi): Statement red to testifying witness to revive
memory, and then they testify based on present recollection of the past events.
Writing does not go back to jury room

FRE 803(6): Records of a Regularly Conducted Activity (probably any organization)


Record of an act, event, condition, opinion, or diagnosis if:
Record of a business/organization:
o Broadly defined (Gibson, drug transactions) (Keogh, personal diary)
o Doesnt have to be final document (Acquisto)
Regularly maintained:
o Not one-off records (Palmer, but Lewis)
Based on knowledge:
o Everyone who contributed must be doing so in regular course of business (or other
hearsay exception)
o If source of info is outsider NOT acting in course of business, 803(6) does not by itself
permit the admission of the record (Wilson v. Zapata Off-shore)
All these conditions show by testimony of custodian or other qualified witness (or certification
902)
Neither the source nor methods nor circumstances indicate lack of trustworthiness:
o Not trustworthy if made for litigation (Palmer)
o Trustworthy if based upon objective observations (Lewis)
FRE 803(7): Absence of a Record (Gentry, pins in M&Ms)
Evidence that a matter is not included in a record described in 803(6) if:
Evidence is admitted to prove the matter did not occur or exist
Record was regularly kept for a matter of that kind
Neither the possible source of info or other circumstances indicate a lack of trustworthiness
FRE 803(8): Public Records
Public office cant use 803(6) if they fail here
Record or statement of public office if:
Sets out one of these:
o Offices activities
o A matter observed while under a legal duty to report, but NOT including a matter
observed by law-enforcement in a criminal case
o In a civil case or against the govt in a criminal case, factual findings from a legally
authorized investigation
Beech: that includes conclusions/opinions based on facts
Opponent does not show source or other circumstances indicate lack of trust worthiness
*Watch out for Confrontation Clause!!! (Melendez-Diaz, Bullcoming)

FRE 804: When Declarant Unavailable as a Witness


Threshold requirement of unavailability:
Only unavailable under 804 if:
Privilege (declarant exempt from testifying)
Contempt (refuses to testify despite order)
No memory whatsoever (declarant testifies to that)
Death or then-existing illness
Hasnt show up despite use of process and reasonable means (complicated, look at rule)
o Burden of showing reasonable means on party seeking 804 exception (Kirk)
o Mere inability to reach with subpoena insufficient (Kirk)
Unavailability not caused by proponent in order to prevent declarant from testifying:
o Applies if Declarant-D causes his/her own unavailability (Bollin, pled 5th)
FRE 804(b)(1): Former Testimony
Testimony given as W at a trial, hearing, or depo (past or current, under oath)
In a criminal case: Party against whom testimony is offered had a similar opportunity and motive
to develop it by direct, cross, or redirect ex
o What types of proceedings give Prosecutor opportunity and motive to cross-ex?
Grand jury: fact-dependent inquiry, was Prosecutor trying to prove same thing at
investigatory stage and trial stage? (Salerno)
Important whether cross-ex actually happened
Plea allocution: no
In a civil case: Party against whom testimony is offered, or predecessor interest, had similar
opportunity and motive to develop it by direct, cross, or redirect ex
o Predecessor in interest = similarly situated (Clay)
*Note: even if rules didnt have similar motive requirement, CC would impose that restriction when
relevant
FRE 804(b)(2): Dying Declaration Statement Under the Belief of Imminent Death
In a prosecution for homicide or civil case
Statement made by declarant:
o Believing his/her death to be imminent (Shepard, no hope of recovery)
o About deaths cause or circumstances
o Personal knowledge not conjecture (Shepard)
*Confrontation Clause: Testimonial, but exception to Crawford in State v. Lewis (TN 2007)
FRE 804(b)(3): Statement Against Interest
A reasonable person [objective standard] in the declarants position would have made only if
they believed it to be true because, when made, it was/had:
o Contrary to declarants proprietary or pecuniary interest (money + property)
o Tendency to invalidate declarants claim against someone else

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o Tendency to expose the declarant to civil or criminal liability (Duran Samaniego)


In a criminal case as statement tending to expose declarant to criminal liability:
o Must be supported by corroborating circumstances that clearly indicate trustworthiness.
Must parse broader piece of evidence and only allow admission of the statements actually against
interest (Jackson)

FRE 804(b)(6): Statement Offered Against a Party that Wrongfully Caused the Declarants
Unavailability
Statement offered against party that intentionally caused unavailability of declarant
o Must act with specific purpose of making W unavailable at trial (Giles)
Most justices in Giles would find this intent inherent in a domestic violence case
FRE 807 Residual Exception
Admissible as exception even if statement not specifically covered in 803 or 804 when the following
requirements are met:
Equivalent guarantees of trustworthiness
o Analogize things that supposedly guarantee trustworthiness for other exceptions
(spontaneity, formality in recordkeeping)
Offered as evidence of a material fact
o More than merely relevant
More probative on the point for which it is offered than any other evidence that proponent could
obtain through reasonable means
Admitting will best serve the interests of justice
Proponent gives opponent pretrial/prehearing notice
Not specifically covered
o Majority rule: Close-enough theory (consider under 807 if not admissible under
803/804) (Laster)
o Minority rule: Near-miss theory: Only consider admitting if evidence falls totally
outside the scope of 803/804 exceptions
Due Process and Hearsay

Due process can require the admission of some evidence offered by a criminal defendant, even if
the hearsay rule would otherwise prohibit use of the statements
Hearsay rules may not be applied mechanistically to defeat the ends of justice (Chambers)
Rarely applies, consider (Fortini):
o Weight of interest of D
o Strength and reliability
o Countervailing reasons for exclusion

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Character Evidence
FRE 404(a): Character Evidence
Cannot use evidence of a persons character/character trait in order to show conformity on a particular
occasion.
Exceptions:
Character at issue as an element of the claim, or essential to nature of claim:
o Negligent hiring (Cleghorn)
o Child custody (Berryhill)
o Damage to reputation (Larson)
Exceptions for D or V in criminal case:
o D can offer about himself (low bar, Roldan)
Prosecutor can rebut
o D can offer about V (except 412)
Prosecutor can rebut
Prosecutor can offer evidence of Ds same trait**
o Homicide case and D shows evidence V was first aggressor:
Prosecutor can offer evidence of Vs peacefulness
Ws under 607, 608, and 609
*D in a criminal case that takes the stand is a W under 607-609 (Lollar)
FRE 404(b): Crimes, wrongs or other acts (superfluous with (a))
Cannot use evidence of a crime, wrong, or other act to prove persons character to show conformity on
particular occasion.
Exceptions (Other purposes): - must actually be at issue (Wright)
In a criminal case, all of these require notice to D on request
Motive
o Boyd: evidence D uses pot, motive to traffic
Opportunity:
o DeJohn: evidence of Ds stolen checks from behind YMCA desk shows he had access to
behind desk
Intent:
o Beechum: evidence D stole credit cards and still had them shows intent to keep stolen
silver dollar
o Close in time indicates intent (Lewis, Beechum)
Preparation
Plan or method or modus operandi
o Dossey: W says she robbed diff bank with D who wore blond wig and rose glasses (same
description in robber at issue)
Knowledge:
o Crocker: prior arrest with same guy for counterfeit checks
Identity:
o Wright: do not admit Ds prior convo talking about drugs because they didnt show they
got the right person (identity at issue)
Absence of mistake
Lack of accident

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*No requirement that prosecution prove misconduct actually occurred. 104(b) applies (Huddleston, not
preponderance but reasonable jury could find)
FRE 405: Methods of Proving Character
Generally:
o Character may only be proved by reputation or opinion testimony
o Specific instances are allowed on cross-ex of the character W
Must be in good faith (Krapp)
If D opens door on his cross-ex of prosecutions W, prosecution can inquire into
specific instances of conduct on redirect (Roldan)
(Generally not on direct ex)
Exception:
o When character is essential element off a claim/charge/defense, may prove character
using specific instances of conduct
*FRE 803(21) allows reputation concerning character as a hearsay exception
FRE 406: Habit
A persons habit or an organizations routine practice may be admitted to prove that on a particular
occasion the person or org acted in accordance.
Two theories of habit:
Regular, specific practice (probability theory)
o Loughan:
Adequacy of sampling
Uniformity of response
Psychological/non-volitional:
o Adds element of non-voluntariness
*Some juridcitions reject habit because its straight propensity reasoning (Burchett, Ky., pot smoker)
*Two theories allow flexibility for courts
FRE 412: Character of Victim in Sex-Offense Cases
Sex-Offense Cases: The Victims Sexual Behavior or Predisposition
Prohibited uses: In a civil or criminal proceeding with alleged sexual misconduct:
Evidence to prove a victim engaged in other sexual behavior
Evidence to prove a victims sexual predisposition
o Interpreted broadly: thoughts, fantasies, contraceptive use, dress
Might require court to sanitize (Smith)
Exceptions:
Criminal cases:
o Evidence of specific instances of Vs sexual behavior if offered to prove someone other
than D was source of semen, injury, or other physical evidence
Must have plausibility of proving (Pablo, injuries from violent sex, consensual
encounter not admitted)
o Evidence of specific instances of Vs sexual behavior with respect to person accused of
sexual misconduct if:
Offered by D to prove consent

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Offered by Prosecutor
o Evidence whose exclusion would violate Ds constitutional rights:
Olden: CC requires D be able to impeach/discredit W by exposing Ws
motivation for testifying when there is clear reason for bias.
These things must be fundamental to case.
Court can limit ability to inquire into above if reasonable to do so due to
harassment, prejudice, confusion of issues, Ws safety, marginal
relevance
Civil cases:
o Court may admit evidence offered to prove a Vs sexual behavior or sexual predisposition
if its probative value substantially outweighs the danger of harm to any victim and
of unfair prejudice to any party.
o Court may admit evidence of Vs reputation only if V placed it in controversy

FRE 413-415: Character of the Defendant in Sex-Offense Cases


413/414: In a criminal case where the D is accused of sexual assault/child molestation
The court may admit evidence that D committed any other sexual assault/child molestation
415: In a civil case involving a claim for relief based on a partys alleged assault or child molestation
The court may admit evidence that the party committed any other sexual assault or child
molestation
*403 must be applied to allow 414 [and others] its intended effect (LeCompte)
*D must get notice
FRE 407: Subsequent Remedial Measures
Subject Matter:
o Measures taken that would have made an earlier injury less likely to occur
Cannot Use for proving:
o Negligence
o Culpable conduct
o A defect in a product or its design
o Need for warning or instruction
Can Use for:
o Impeachment
o If disputed (In re Asbestos), proving:
Ownership
Control (Clausen, ramp)
Feasibility of precautionary measures
Against Parties only:
o Doesnt exclude evidence of measures taken by nonparty (Diehl, road widener)
*Do a 403 analysis (high risk of jury confusion when state of art at issue, temporal distance, jury might
misinterpret purpose of redesign)
FRE 408: Compromise Offers and Negotiations
Subject matter:
o Offering/accepting a compromise (Davis, frat)
o Statements made during compromise negotiations (Ramada, report)

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Uses:
o

Except in criminal case (read rule)

Cannot use for:


Prove/disprove validity or amount of a disputed claim
(But see Polo)
Impeach by a prior inconsistent statement
Can use for other purposes:
Ws bias or prejudice
Negating contention of undue delay
Prove obstruction of criminal investigation/prosecution
Prove independent violation unrelated to underlying claim that is subject of
negotiations (American University, retaliation claim)
Focuses on different issues than elements of primary claim even though
proving invalidity of claim (Polo, estoppel from acts during negotiations)

FRE 410: Pleas, Plea Discussions, and Related Statements


Prohibited uses: In a civil or criminal case, evidence of the following not admissible against the
D who made the plea or participated in plea discussions:
o Guilty plea later withdrawn
o Nolo contendere plea
o Statement made during proceeding on plea
o Statement made during plea discussions (if didnt end in unwithdrawn guilty plea)
Exceptions: The court may admit a statement during plea proceedings or plea discussions if:
o Completeness for fairness
o In subsequent perjury prosecution, if statement was made under oath
Waivers:
o Can be waived by defendant (Mezzanato)
o Three types of waivers:
Mezzanato: Can use statements from plea discussion for impeachment
(inconsistent statements)
Usually: Can use when D presents evidence at trial that suggests fact in conflict
with proffer
Sometimes: If D revokes plea, govt can automatically use anything against
them, in case-in-chief, regardless of what D does
FRE 409: Offers to Pay Medical and Similar Expenses
Evidence of furnishing/promising/offering to pay medical/hospital/similar expenses resulting
from injury, not admissible to prove liability for the injury
*Narrower scope than 408. Doesnt cover conduct/statements in bargaining process (no Ramada)
FRE 411: Liability Insurance:
Prohibited:
o Evidence that a person was or was not insured against liability
o To prove whether person acted negligently or otherwise wrongfully
Exception:
o For another purpose:
Proving a Ws bias (Chleborad, W works for Ds insurance)
Proving agency, owernship, or control

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But not:
To show D (South Dakota) has insurance so that jury (citizens of SD)
wont be afraid of ruling against them (Higgins v. Hicks)

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Impeachment (FRE 607)


Mode of Impeachment #1: Dishonesty (608 and 609)
FRE 608: Witnesss Character for Truthfulness or Untruthfulness
Two methods:
Reputation or Opinion Evidence:
o Ws credibility may be attacked or supported by testimony about Ws reputation for
character of truthfulness/untruthfulness
o Or testimony in form of opinion about that character
o But evidence of truthful character admissible only after Ws character for truthfulness has
been attacked
Specific Instances of Conduct:
o No extrinsic evidence of specific instances of Ws conduct to show
truthfulness/untruthfulness (White, truthfulness, Aponte, untruthfulness)
Except 609
o Yes on cross-ex, inquiry into specific instances if probative of character [specific instance
must include dishonesty, Rosa] for truthfulness/untruthfulness of:
W
Another W whose character the W being cross-exed has testified about
*Remember, once a D testifies, their credibility is in issue and can be attacked like any other witness
(Lollar)
FRE 609: Criminal Convictions
The following applies to attack a Ws character for truthfulness with a criminal convictions:

Crime for which an element was a dishonest act or false statement (not Amaechi, shoplifting):
o Admit not subject to 403 (Wong)
Non-dishonesty crime punishable by more than 1 year and either civil case or criminal case where
W is not the D:
o Admit subject to 403
Non-dishonesty crime punishable by more than 1 year and criminal case where W is the D:
o Admit if probative value of evidence outweighs its prejudicial effect to that D (weak
flipped 403)
BUT:
o If more than 10 years since Ws conviction or release from confinement (whichever
later), admit only if:
Probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect (flipped 403) + notice
Note:
o Consider importance of credibility in trial, admit if important (Hernandez)
o When it involves the same conduct thats on trial, extremely prejudicial (Sanders, but
Oaxaca: not per se inadmissible)
o Challenging admission of prior conviction on appeal:
D must actually testify and get impeached (Luce, not testifying destroys)
If D brings up prior conviction on direct, D waives right to challenge admission
(Ohler)

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*Add limiting instruction, just for W truthfulness


Mode of Impeachment #2: Inconsistency (Self-contradiction)
FRE 613: Witnesss Prior Statement, 801(d)(1) not hearsay when under oath
During examination: party need not show it or disclose its contents to witness. But must on
request show adverse partys attorney
Extrinsic evidence of Prior Inconsistent Statement: Extrinsic evidence of a witnesss prior
inconsistent statement is admissible only if the W is given an opportunity to explain or deny and
adverse party can examine W about it, or if justice requires.
o (extrinsic evidence stuff doesnt apply to admissions)
o Some courts will only allow this for a significant issue
Like to protect against the turncoat witness who changes story on the stand
(Truman)
Notes:
o Inconsistent is broad (Dennis):
diametrically opposed answers, evasive answers, inability to recall, silence,
changes of position
o Morlang Rule (Ince, look out for when no need to attack credibility, like when W
doesnt remember and govt knows it but calls W anyway):
In a criminal trial, when govt is proponent of hearsay impeachment, if govt was
merely setting up a straw man, hoping jury will use impeachment evidence
substantively: exclude.
If govt acted in good faith (genuinely surprised by Ws testimony):
admit (Webster)
CEC 1235 does not have this limit (Freeman)
o When you ask about a prior inconsistent statement (during examination), W could:
W admits and attempt to explain:
Dont need extrinsic evidence
W refuses to admit:
Can call another W to present extrinsic evidence
Must allow W to explain/deny prior statement this can be before or
after the statement is admitted (Lebel)
o Impeaching a hearsay declarant:
FRE 806: When a hearsay statement has been admitted, the declarants credibility
may be attacked/supported as if s/he was a witness
Not going to need to give opportunity to explain/deny

Mode of Impeachment #3: Bias


Bias is anything that would tend to show W had reason to lie or slant testimony
Difference from character for untruthfulness: bias is specific to this case
Can use extrinsic evidence (Abel, secret prison org)
403 analysis: consider probative value as relates to source and strength of bias (allowed type of
gang to be described in Abel)

Two types of incapacity:

Mode of Impeachment #4: Incapacity

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At time of witnessing
Must show ability to perceive events effected (Sasso, not with depression)
Must be clearly probative of perception at time of event:
Henderson: not general drug use
At time of trial
Must show difficulties in memory (Sasso)

Mode of Impeachment #5: Specific Contradiction (by others)


Specific contradiction: evidence that all or part of Ws testimony is incorrect (either because W
lied or was mistaken)
o If collateral, you can only use cross-ex (Simmons)
o If not collateral, you can use extrinsic evidence (and cross-ex)
Collateral Evidence Rule:
o Collateral if proponent would not be allowed to introduce the evidence for some nonimpeaching purpose

*Can allow evidence of other crimes or wrongs (probably only on cross-ex, and subject to 403) (Copelin)
*Collateral evidence rule avoids risk that trial will be derailed by inquiry into side issues.
Rehabilitation
FRE 608: Character for Truthfulness and Prior Consistent Statements (and specific instances)
+801(d)(1)
No limits on other kinds of rehab (like bias can use extrinsic evidence once attacked, thats not
rehabilitating truthful character, thats rehabilitating bias, Lindemann). (402 and 403 limits)

Character for Truthfulness (608):


o Methods:
Extrinsic: just opinion + reputation
Murray: We have used W as WI can lay foundation for opinion, but
We have made 65 cases is specific instance and cant be brought
extrinsically.
Cross ex: specific instances as well
o Truthfulness must be attacked to rehab for truthfulness:
Attacked when:
Truthfulness attacked (608, 609)
Case-specific: prior inconsistent statements and specific contradiction:
o Beard: prior inconsistent was attack on truthfulness
o Danehy: noting discrepancies not attack on character
o Drury: just point out inconsistencies is not attack on truthfulness
o Murray: cross-ex exposing illegal/sordid activities was attack
Not attacked when:
Bias or Incapacity:
o Not governed by 608 (can rehab against bias, but not character)
(Lindemann)
Prior Consistent Statements 801(d)(1):

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If recent bias/fabrication implied/alleged:


Can be used to rebut (not for truth)
Pre-motive requirement (Tome): prior consistent to rebut charge of
recent bias/fabrication only admissible if made after alleged
bias/fabrication arose
Can be used to rehab credibility when attacked on another ground

Lay Opinions and Expert Testimony


FRE 704: Expert or Lay Opinion can go to ultimate issue:
Except in criminal cases, where expert must not state opinion on whether D had requisite mental
state/condition for crime charged or defense asserted
FRE 701: Opinion testimony by a lay witness:
Testimony is limited to offering opinion only if:
o Rationally based upon Ws perception
Requires first-hand knowledge (Knight)
Opinions are cool (Robinson, truck control)
o Helpful to clearly understanding Ws testimony or determining a fact at issue (Meling)
Not Freeman, when expert left scope, became lay, didnt lay foundation and gave
personal interpretations didnt help determine anything
o NOT based on scientific, technical, or other specialized knowledge within scope of 702:
Particularized knowledge is not specialized knowledge
Meling, 911 operator
Ayala-Pizarro, cop how heroin is packaged
BUT Freeman, when expert left scope, became lay, and didnt lay
foundation, just gave personal interpretations
FRE 702: Testimony by an Expert Witness
A witness qualified as expert by knowledge/skill/experience/training/education may testify in form of
opinion or otherwise if:
Experts scientific/technical/specialized knowledge will help trier of fact
o to understand the evidence or determine a fact in issue
Expert cannot leave scope (State Farm, Freeman)
Testimony based on sufficient facts or data
Testimony is product of reliable principles and methods
Expert has reliably applied the principles and methods to the facts of the case (Kumho Tire)
Federal test for reliability of testimony: Daubert Rule (not just for scientific experts, but all, Kumho
Tire)
Fit: Will it assist the trier of fact?
Reliability: Is the evidence scientifically valid?
o Factors (non-exhaustive, Kumho Tire):
Tested/testable
Peer review/publication
Potential rate of error
Existence and maintenance of accepted standards

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General acceptance

Common law rule: Frye (still in some states): General acceptance of theories in scientific community
Courts skeptical of animal studies (Joiner)

FRE 703: Bases of an Experts Opinion Testimony


Expert can base opinion on inadmissible evidence, if experts in that particular field would
reasonably rely upon those kinds of facts in forming an opinion:
o The underlying facts will not be admitted unless probative value (in helping jury
evaluate opinion) would substantially outweigh prejudicial effect (and even then, not
admitted for truth)
No confrontation clause issue because the basis evidence is offered to explain the opinion, not for
the truth. (Williams)
*Limiting instruction please
FRE 706: Court-Appointed Expert Witnesses
Reserved for exceptional cases (Leblanc). Request must demonstrate necessity.

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Privileges
FRE 501: Common law governs privileges
Attorney-Client Privilege
Elements
Communication:
o Doesnt include:
Fact that communication happened (Kendrick)
Observations anyone could make (like demeanor or sobriety) (Kendrick)
Fee information (Tornay)
Exception: Baird, when revealing identity of client is tantamount to
revealing a confidential communication
In Confidence:
o Third Party rule: Not in confidence when proponent knew or should have known third
parties were present (Gann)
Exception: when third party is:
Necessary to make conference possible
Assists attorney in rendering legal services (Evans)
o Expectation of Maintained in Confidence: when client transmits info to attorney with
intent that attorney will disclose to third party, not in confidence (Lawless, tax)
Exception: if attorney is doing legal analysis before transmitting (SmithKline,
patent)
Between attorney and client:
o Person included on attorney side when working at direction of attorney (Kovel,
accountant)
Mere possibility that statement to non-attorney will end up being used in lit does
not suffice (Pasteris, statement to insurance co. that would provide counsel)
o Common-defense rule:
If info related to any common defense purpose of Ds, that sufficient (McPartlin)
Usually operates through joint defense agreement
Covers: client A to Bs attorney and As attorney to Bs attorney
o Corporate client:
Factors that show privilege applies (Upjohn, rejects control group test, internal
investigation)
Communications made by employees to corporate counsel
At direction of corporate superiors
For purpose of obtaining legal advice
Regarding matters within employees duties
Employees knew purpose of communication
Warned they were confidential
Corporation (not employee) holds privilege
o Work-product doctrine (see 3.2)
To facilitate legal services:
o Must be service traditionally rendered by attorney

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Rowe: fact-finding for legal advice, but not Hughes: returning stolen typewriter
or Davis: tax returns thats accounting

Waiver
Only client can waive:
o Exception: If reasonably appears lawyer had authorization (In re Von Bulow)
Occurs when:
o Client makes voluntary disclosure
Even if lying, Bernard: client tells victim attorney verified loan
Claims ineffective assistance of counsel (Tasby)
o Implied waiver (no affirmative actions taken in a In re Von Bulow scenario)
o NOT:
If forced to testify in depo if objections raised (Hollins)
Inadvertently disclosed communication if reasonable steps taken to prevent
Disclosure pursuant to court order or party agreement
Scope of waiver:
o In court waiver:
Fairness Doctrine: You waive for all communication on the subject matter that in
fairness should be considered together with disclosed info
o Extrajudicial waiver:
Only waive the actually disclosed info itself (In re Von Bulow)
Crime-fraud Exception
No privilege if client seeking advice on future wrongdoing (Zolin)
In camera review by judge is permissible on showing of factual basis adequate to support a good
faith belief by reasonable person that in camera review may reveal exception applies
*Survives death (Swidler & Berlin)
*Fiduciary exception only applies when legal advice obtained as a mere representative (not in a
personal capacity) and some other beneficiary is the real client. (Jicarilla Apache)
Spousal Privilege
Confidential Spousal Communications
Requirements:
o Communication
o Confidential
o During the marriage (still applied to during-marriage communications after divorce)
Either party may invoke
Doesnt apply
o When spouses are adverse (includes in criminal case, spouse is victim)
o When children are involved in proceeding
o To exculpatory evidence in a criminal case (one spouse is D can exculpate self)
o In competency/commitment hearings
o Crime-fraud
Adverse Spousal Testimony
Requirements:
o Criminal case
o Married at time of testimony

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Only testifying spouse can invoke (Trammel)


Doesnt apply:
o Sham marriages
o Spouses adverse (crim case, spouse victim)
o Competency/commitment hearings
o When children are involved in proceeding

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Physical Evidence
FRE 901-902: Authentication

Authentication
o FRE 901(a): Proponent must produce sufficient evidence to support a finding that the
item is what the proponent claims it is:
Nothing more, Long: didnt need to prove contract was legit, just the one seen
Distinctive characteristic can alone provide circumstantial evidence sufficient
But they didnt in Zhyltsou
o Examples in 3.2
o FRE 902 docs are self-authenticating (some public documents, and publications like
newspapers)
Chain of custody:
o Breaks in chain just go to weight, sufficiency standard still applies (Bruther, lightbulb)
o No need to authenticate testimony of live witness, but chain important for relevance
(Grant)

FRE 1002: Best Evidence Rule


If you want to prove the content of a writing, recording, photograph, or similar, need to produce
the original:
o So no original needed if W testifying to what he hear/saw the contents of the record are
not being proved then (Meyers, Gonzales-Benitez)
o Writing is broad (Lucasfilm, drawings)
Exceptions:
o FRE 1003: Duplicate can be admissible if (Stockton):
No genuine dispute about authenticity
Not unfair to admit duplicates in lieu of original
o FRE 1004: Original not required if one of the following:
Originals lost or destroyed (Standing Soldier)
Not in bad faith (Lucasfilm)
Not closely related to controlling issue
More in rule

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Evidence

General Procedure
o 105: Instructions upon request
o 104(a): Preliminary Questions
o 104(b): Conditional Relevance
o 103: Rulings on Evidence
Relevance and Probative Value:
o 401: Defines
o 402: If irrelevant, inadmissible
o 403: Probative value substantially
outweighed by
Confrontation Clause:
Hearsay:
o 801: Non-Hearsay
o Implied assertions (are statements
that may be hearsay)
Exclusions and Exceptions to Hearsay:
o 801(d)(1): Declarant-witnesss Prior
Statement (subject to 613)
o 801(d)(2): Admissions (opposing
partys statement)
o 803: Exceptions that apply
regardless of availability of
declarant
(1) Present Sense
Impression
(2) Excited Utterance
(3) State of Mind
(4) Statement made for
Medical Diagnosis
(5) Recorded Recollection
(6) Regularly Conducted
Activity
(7) Absence of Record
(8) Public Records
o 804: Exceptions that require
unavailability
Unavailability
(b)(1) Former Testimony
(b)(2) Dying Declarations
(b)(3) Statement against
interest
(b)(6) Offered against a
party that wrongfully
caused the declarants
unavailability
o 807: Residual Exception
o Due Process:
Chambers and Fortini

Character Evidence:
o 404(a): Rule and 3 Exceptions (only
two in this section)
o 405: Methods of Proving Character
o 404(b): Crimes, wrongs, other acts
o 406: Habit
o 412: Victim in sex-offense cases
o 413-415: Defendant in sex-offense
cases
413: Sexual-assault
414: Child-molestation
415: Civil cases with sexual
assault or child molestation
o 407-411: Other forbidden inferences
407: Subsequent Remedial
Measures
408: Compromise Offers
and Negotiations
409: Offers to Pay Medical
and Similar Expenses
410: Pleas, Plea
Discussions, and Related
Statements
411: Liability Insurance
Impeachment: 607
o Methods:
Character for
Untruthfulness:
608: Ws character
for truthfulness or
untruthfulness
609: Criminal
convictions
613: Ws prior statement,
801(d)(1) not hearsay
Bias
Incapacity
Specific Contradiction
o Rehabilitation
608 again
801(d)(1)(B) - not hearsay
(consistent with declarants
testimony) Tome and (ii)
Lay Opinions and Expert Testimony
o 704: Can go to ultimate issue
o 701: Opinion by Law W
o 702: Testimony by Expert W

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o
o

o
o

703: Bases of Experts Opinion


Testimony
704: Can embrace ultimate issue,
but in crim case, expert cant state
opinion on mental state or condition
that constitutes element of crime or
defense.
706: Court-appointed expert
Judicial Screening:
Daubert

Privileges:
o Attorney-client
Elements
Waiver
Crime-Fraud Exception
o Spousal
Physical Evidence:
o 901-902: Authentication
o 1002: Best Evidence Rule

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