ARTICLE I: GENERAL PROVISIONS

 FRE 104: Preliminary Questions (Preliminary question hearing/Sidebar)

o 104(a): Questions of Admissibility Generally:
 Covers qualification of person to be a witness, existence of a privilege, or
admissibility of evidence
 Rules of evidence do not apply, except privilege
 Preliminary questions of fact are determined by the court by a
preponderance of the evidence, see, e.g., Bourjaily
o 104(b): Relevancy Conditioned on Fact:
 When relevancy of evidence depends on fulfillment of condition of fact:
 Court shall admit it upon, or subject to, introduction of evidence
sufficient to support finding of fulfillment of condition
o FRE 104(e): Weight and credibility
 FRE 105: Limited Admissibility (Limiting Instruction)

ARTICLE II: JUDICIAL NOTICE

 FRE 201: Judicial Notice of Adjudicative Facts
o FRE 201(b): Kinds of facts: not subject to reasonable dispute
 FRE 201(b)(1) generally known within the territorial jurisdiction of the
trial court OR
 FRE 201(b)(2) capable of accurate and ready determination
o FRE 201(g): Instructing jury:
 In a civil action or proceeding:
 Court shall instruct the jury to accept as conclusive any fact
judicially noticed
 In a criminal case:
 Court shall instruct jury that it may, but is not required to, accept
as conclusive any fact judicially noticed

ARTICLE III: RELEVANCY AND ITS LIMITS

 FRE 401: Definition of “Relevant Evidence”
 FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
 FRE 403: Prejudice substantially outweighs probative value
o Chapple: error to admit gory pictures of charred body of skull and victim, when
cause of death not contested
 FRE 404: Substantive Character Evidence
o FRE 404(a): Character evidence not admissible for the purpose of proving action
in conformity therewith on a particular occasion, except:
 FRE 404(a)(1): Character of the accused:
 Crim case:
o Offered by the accused OR
o By the prosecution to rebut the same OR
o If evidence of trait of victim is admitted for accused,
evidence of same trait of accused for prosecution
 FRE 404(a)(2): Character of victim:
 Crim case

1
  Subject to limits of FRE 412 (victim’s past sexual behavior/sexual
predisposition in a sex offense case)
o Offered by the accused OR
o By the prosecution to rebut the same OR
o Homicide case:
 Evidence of peacefulness of victim, offered by
prosecution to rebut evidence that victim was first
aggressor
 FRE 404(a)(3): Character of witness (character for credibility) governed
by FRE 607/608/609
o FRE 404(b): Other crimes, wrongs, or acts*:
 Evidence of other crimes, wrongs, or acts not admissible to prove
character of person in order to show action in conformity therewith
 It may be admissible for other purposes:
o Motive
o Opportunity
o Intent
o Preparation
o Plan
o Knowledge
o Identity (may be based on M.O.) OR
o Absence of mistake or accident
 Prosecution shall provide rxable notice of general
nature of any such evidence it intends to introduce
in advance of trial or during trial
 Huddleston: When there is a question as to whether D really committed
the prior act: (See p. 4 of outline)
 FRE 405: Methods of Proving Character
o FRE 405(a): Reputation or Opinion:
 Inquire into relevant specific instances on cross
o FRE 405(b): Specific Instances of Conduct
 In cases in which character/trait of character an essential element of
charge, claim, defense
 FRE 406: Habit; Routine Practice
o Relevant to prove conduct in conformity
 FRE 407-411: Forbidden Evidence
 FRE 407: Subsequent Remedial Measure
 FRE 408: Compromise and Offers to Compromise (civil)
o FRE 408(a): Prohibited uses
o FRE 408(b): Permitted uses
 FRE 409: Payment of Medical and Similar Expenses
 FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements (Guilty
pleas admissible)
 FRE 411: Liability Insurance:
o Not admissible to prove N.
o Admissible to prove agency/ownership/control/bias

2
 FRE 412: Relevance of Victim’s Past Sexual Behavior/Sexual Predisposition in Sex
Offense Cases (see p. 5-6 of outline)

ARTICLE V: PRIVILEGES (SUPER OBJECTION—ALL STAGES, ALL

PROCEEDINGS)
 FRE 501: General rule (for federal criminal and federal question cases)
o Privilege governed by principles of common law, as they may be interpreted
in light of reason and experience
 However, in diversity cases, privilege determined in accordance with
state law
 Background info on privilege, esp. attorney-client privilege:
o Swidler & Berlin: Attorney-client privilege survives the death of the privilege
holder (client)
o Confidential information must be treated by privilege holder as such
 Cabbie/murderer
 Suburban Sew ‘N Sweep v. Swiss Bernina: If company does not take
precautions to destroy privileged docs, cannot claim that info is
protected by A-C privilege when gotten by dumpster divers
 Privilege holder can tell multiple people with whom talks are
privileged
o Privilege holder must have rxable expectation of confidentiality under the
circumstances
o Non-communicative observations/actions are not privileged
 E.g. person shows up at attorney’s office covered in blood
 Proposed but Rejected FRE on Privilege
o Required reports privileged by statute
o Attorney-Client (p.7)/FRE 502 (p.11-12):
 A-C Privilege and Work Product Protection
 Upjohn:
o A-C privilege attaches to lawyers’ convos with EEs
o WPP attaches to notes/memos of interviews
 Exceptions: Crime/Fraud: In re Francis Carter: If services of lawyer
were sought/obtained to enable anyone to commit/plan to commit what
client KoSHK to be crime/fraud
 Joint Clients: Communication relevant to matter of common interest
between two or more clients
 Etc. (p.7-8)
o Psychotherapist-Patient
 Jaffee v. Redmond: Federal courts recognize a psychotherapist-patient
privilege under FRE 501 (p.9)
 Patient holds
o Husband-Wife
 Testimonial Privilege: Blocks all testimony by one spouse against the
other, including testimony about pre-marital events or acts
 Applies only if spouses are married when testimony is sough
 Trammel: Witness spouse is privilege holder

3
 o D spouse cannot claim privilege to stop spouse from
testifying against him
 Spousal Confidences Privilege: Blocks testimony about private
communications between spouses while they were married
 Applies forever to protect communications during marriage
 Montgomery: Spouses are co-privilege holders
o D spouse can claim privilege to stop spouse from
testifying about confidential communications between
spouses
o Clergy-Penitent
o Political Vote
o Trade Secrets
o Secrets of state and other official information
o Identity of informer

ARTICLE VI: WITNESSES:

 FRE 607: Who May Impeach
o Five types of impeachment
 Bias: Witness’ like/dislike or fear of party, or witness’ self interest
 Basically always relevant
 Abel: Witness’ and party’s common membership in organization
probative of bias
o Type of organization relevant to show source and strength
of bias
o No limit on use of extrinsic evidence to show bias
 Manske:
o Self-interest: D claims Pszeniczka fabricated testimony to
frame him
o Fear: D claims Coburn and Cambell corroborated P’s false
story because he had threatened them
o Sensory perception: Physical/mental condition of witness that leads to inability to
perceive accurately/to provide credible testimony based on something perceived
o Character for credibility: FRE 608/609
o Prior inconsistent statement: FRE 613
o Contradiction: something that witness said in testimony is not true
 Generally proved by extrinsic evidence
 Can be prior inconsistent statements—but if they are offered for
contradiction, they are offered for TOMA and require HS
exceptions
 Can be other evidence, e.g. OJ is impeached by receipt after saying
he wouldn’t buy BM shoes
 No contradiction on collateral matters: Contradicting evidence should
have relevance aside from its impeaching effect
 Tends to prove a substantive point
o e.g. the shoes were O.J.’s
 Tends to contradict and to prove another impeaching point

4
 o e.g. bias: Witness said he met driver for first time after
accident but they had been dating for a year
 Collateral/not allowed: Witness said he saw
accident when returning from drugstore, but
drugstore was not open that day
 FRE 608: Evidence of Character and Conduct of Witness (Character for credibility)
o FRE 608(a): Opinion and Reputation evidence of character:
 FRE 608(a)(1): Evidence may refer only to character for
truthfulness/untruthfulness AND
 FRE 608(a)(2): Evidence of truthful character admissible only after
character of witness for truthfulness has been attacked by
opinion/reputation evidence or otherwise (e.g. bias)
o FRE 608(b): Specific Instance of (Non-Conviction) Conduct:
 Other than conviction of crime (FRE 609), may not be proved by extrinsic
evidence
 Extrinsic evidence: anything other than acknowledgment/denial of
witness himself
 But may, if probative of (un)truthfulness*, and in discretion of court, be
inquired into on cross
 *Manske: Behavior taking advantage of others in violation of their
rights is probative of (un)truthfulness e.g. threatening witnesses
o e.g. “Isn’t it true that you lied to get into law school?”
 Can cross on specific acts concerning character of (un)truthfulness of
another witness as to whose character witness being crossed has testified
 E.g. “Did you know that A lied to get into law school?”
 FRE 609: Impeachment by (Specific) Evidence of Conviction of a Crime:
o FRE 609(a)(1):
 Evidence that a witness other than an accused has been convicted of a
crime (felony): FRE 403
 Evidence that an accused has been convicted of a crime (felony): Reverse
FRE 403 (probative value outweighs prejudicial effect)
 Lipscomb: “All felony convictions are probative of credibility to
some degree”
o FRE 609(a)(2): Evidence that any witness has been convicted of a crime
(misdemeanor/felony): if readily can be determined that was crime of dishonesty
or false statement
 Not subject to FRE 403 limitation
 Much narrower than “probative of (un)truthfulness” that comes in under
608(b)
o FRE 609(b): 10 year time limit, unless reverse 403, requires notice to adverse
party
 FRE 611(b): Scope Rule: Cross limited to subject matter of direct and matters affecting
credibility of witness
 FRE 611(c): Leading Questions: Not on direct except as necessary to develop witness’
testimony, should be permitted on cross, permitted for hostile witness, adverse party (on
direct), witness closely identified with adverse party

5
  FRE 612: Writing Used to Refresh Memory (Present Recollection Refreshed): Witness
uses writing to refresh memory for purpose of testifying either:
o While testifying OR
o Before testifying
 Baker: Defense should have been allowed to refresh present recollection
of policeman testifying by showing him report written by fellow officer
regarding fact that victim did not ID D as robber/attacker
 Witness looks at memo to refresh memory but testifies on basis of
present, indep. knowledge
 Memory aid not received or read into evidence
 Memory aid can be ANYTHING
 FRE 613: Prior Statements of Witnesses: Prior Inconsistent Statement
o FRE 613(a): Examining witness concerning prior (un)written statement: need not
show statement to witness/disclose contents at that time
o FRE 613(b): Extrinsic evidence of Prior Inconsistent Statement: not
admissible unless:
 Witness afforded opportunity to explain/deny AND
 Opposite party afforded opportunity to interrogate witness on OR
 Interests of justice otherwise require
o DOES NOT APPLY TO PARTY ADMISSIONS
 N.B. You can introduce the extrinsic evidence
without first asking witness about it but other side
must have opportunity to recall/question about it
 Webster: R: impeachment by prior inconsistent statement not permitted
when employed as mere subterfuge to get inadmissible evidence before
jury (but ok here)
 Harris: Majority allows impeachment by use of un-Mirandized post-arrest
statements that he was selling heroin that are inadmissible for substantive
purposes
 Jenkins: Use of prearrest silence to impeach accused’s credibility when he
takes the stand is acceptable
 E.g. D stabbed victim, did not wait for police/report, claimed self-
defense, and was impeached by failure to report

ARTICLE VII: OPINIONS AND EXPERT TESTIMONY:

 FRE 701: Lay Opinion: Limited to opinions/inferences:
o (a): Rationally based on perception of witness AND
o (b): Helpful to a clear understanding of witness’ testimony or determination of
fact in issue AND
o (c) Not based on scientific, technical, or other specialized knowledge
 FRE 702: Expert Testimony: If scientific, technical, or other specialized knowledge will
assist trier of fact to understand evidence/determine fact in issue, witness qualified as
expert by:
o Knowledge
o Skill
o Experience

6
 o Training OR
o Education
 May testify in form of opinion or otherwise IF:
 (1) test. based upon sufficient facts or data
 (2) test. product of reliable principles and methods AND
 (3) witness has applied principles and methods reliably to facts of
case*
 Daubert: Key factors in court’s determination of whether scientific
evidence is reliable
 Can it be tested?/Has it been tested?
 Has it been subjected to peer review and publication?
 What is the known or potential rate of error?
 Is it generally accepted in the field?
 Kumho Tire: Court MAY consider Daubert factors in determining whether
expert testimony in a field other than science is reliable (ct. has
considerable leeway in deciding how to determine reliability of expert
test.)
 FRE 703: Bases of Opinion Test. by Experts: May be perceived by/made known to expert
at or before hearing
o Need not be admissible for opinion to be admissible if of type rxably reliable
upon by experts in field
 Otherwise inadmissible facts/data shall not be disclosed to jury by
proponent of opinion
 Unless Reverse 403
 FRE 704: Opinion on Ultimate Issue:
o FRE 704(a): OK except:
o FRE 704(b): in crim case, NOT as to whether D did/did not have mental
state/condition constituting element of crime charged or of defense thereto
 FRE 705: Disclosure of Facts/Data Underlying Expert Opinion: Can give
opinion/inference without first testifying to facts/data, unless court requires otherwise
o May be required to disclose underlying facts/data on cross
 FRE 706: Court Appointed Experts

ARTICLE VIII: HEARSAY:

 FRE 801: Definitions
o FRE 801(a): Statement:
 (1) an oral or written statement OR
 (2) non-verbal conduct of a person, if it is intended by the person as an
assertion
o FRE 801(b): Declarant: Person who makes a statement
 Animals not HS declarants
 Machines not HS declarants
o FRE 801(c): Hearsay is:
 A statement
 Made out of court
 Offered into evidence

7
  To prove the truth of the matter asserted
 Pacelli: Cannot admit HS statements that imply TOMA, even if
they do not state it directly e.g. “The murder was bungled by
leaving the body where it could be found.”
 FRE 801(d): Statements which are NOT HEARSAY (HS Exclusions): A
statement is NOT HS if:
o FRE 801(d)(1): Prior statement by witness: Declarant testifies at trial AND
 Is subject to cross concerning the statement AND
 The statement is:
 FRE 801(d)(1)(A): Inconsistent with the declarant’s testimony
AND was given under oath subject to a penalty of perjury at a
trial/hearing/other proceeding*/depo OR
o *Smith: Sworn affidavit signed by hooker at station
naming pimp as attacker was made in other proceeding
(minority rule) (see p. 20 for specifics)
o N.B. Forgetfulness/Evasive Answers/Silence: If court
believes you are feigning, prior inconsistent statement
will come in under FRE 801(d)(1)(A)
 If court believes you have a genuine medical
reason to forget, prior inconsistent statement
will not come in under this rule
 FRE 801(d)(1)(B): Consistent with the declarant’s testimony
AND offered to rebut express/implied charge against declarant
of recent fabrication/improper influence or motive OR
o Tome: Prior consistent statements of abused child to six
witnesses naming father as abuser admitted in error
because not made before recent fabrication/improper
influence or motive came into being
 FRE 801(d)(1)(c): One of Identification of person made after
perceiving person
o Motta: Composite sketch of robbery suspect based on
witness’ description admissible under this exception
 Res gestae: ID should be done close in time to
perception (no express limit)
o FRE 801(d)(2): Admission by party-opponent: Statement offered against a
party* AND is
 FRE 801(d)(2)(A): Party’s own statement
 *Victim is party represented by state, so her admissions come
in against prosecution
 Bruton: Joint Ds. Error to admit Evans’ statement, “Bruton
and I committed the robbery.”
 FRE 801(d)(2)(B): Adoptive admission: party manifested
adoption/belief in truth
 Hoosier: Tacit admission because did not deny girlfriend’s
statement in situation in which person would be expected to

8
 deny that statement if untrue (see p. 21-22 for reqs of tacit
admission)
 See p. 22 for silence/statements/Miranda
 FRE 801(d)(2)(C): Speaking Agent: statement by person authorized
by party to make statement concerning subject
 FRE 801(d)(2)(D): Agent in SOE: statement by agent re: matter in
SOE, during existence of agency relationship
 Mahlandt: “Sophie bit a child”
 FRE 801(d)(2)(E): Coconspirator: of party during and in furtherance
of conspiracy
 Bourjaily: Existence of conspiracy and D’s participation in it
are preliminary questions of fact under FRE 104(a) (see p.23)
 CL HS Exclusions (NOT HEARSAY):
o Imperatives: no TOMA
 But cannot use “Look at the red barn” to prove there was a red barn.
o Interrogatives: no TOMA
o Impeachment by prior inconsistent statement: not offered to prove TOMA
o Verbal Act: Words of independent legal significance, offered to prove the act
o Effect on the Hearer: Hearer’s reaction must be at issue
o Verbal Object/Chattel: Words on object that are integral part of object itself;
not separate statements
 Generally affixed in the course of business
 But see Duffy
o Circumstantial Evidence of State of Mind: Offered to support inference re:
person’s state of mind when at issue
o Circumstantial Evidence of Memory: Offered to support inference re:
person’s memory of event/place, which could not exist unless they actually
saw event/place
o Non-complaint/non-reporting: Cain v. George: Not complaining about
heater is act/omission, not HS statement
 FRE 803: HS EXCEPTIONS, AVAILABILITY IMMATERIAL:
o FRE 803(1): Present sense impression: Describing/explaining
event/condition while perceiving or immediately thereafter
 Nuttall: Admissible: statements on phone and immediately after “I am
sick/I will have to go in” to prove was forced to go in
o FRE 803(2): Excited utterance: Re: startling event/condition while declarant
under stress of excitement caused by event/condition
o FRE 803(3): Then existing, mental, emotional, physical condition:
 State of mind
 Victims’ statement of fear not admissible because victim’s
state of mind not at issue
 But see: The Hillmon Doctrine: present intention admissible
to prove subsequent conduct of declarant
o Pheaster: MAJORITY RULE: present intention of
declarant INADMISSIBLE to prove conduct of
someone other than declarant (Pheaster ruled contrary)

9
  Emotion
 Sensation
 Physical condition
 Intent
 Plan
 Motive
 Design
 Mental feeling
 Pain
 Bodily health
 Not including statement of memory/belief to prove fact
remembered/believed unless about declarant’s will
o FRE 803(4): Statements for purpose of medical diagnosis/treatment:
 AND describing medical history OR
 Past/present symptoms, pain, or sensation OR
 Inception or general character of cause/external source thereof
 Insofar as rxably pertinent to diagnosis or treatment
 Backward-looking ok
 Fault statements usually not ok
 But see Blake: special case of child sexual abuse
o FRE 803(5): Recorded recollection/Past recollection recorded:
 Memo re: matter about which witness once had knowledge but now
has insufficient recollection to testify fully and accurately
 Ohio v. Scott: Witness gave handwritten, signed statement to
police day after arrest re: convo with D who told her he
wrecked car and shot guy, but on stand could not remember
D’s statement.
o FRE 803(6): Records of regularly conducted (business) activity: p.26-27
o FRE 803(7): Absence of entry in (business) records: p.27
o FRE 803(8): Public records and reports: p. 27-28
o See others p. 28-30.


ARTICLE IX: AUTHENTICATION AND IDENTIFICATION:

 FRE 901: Requirement of Authentication or Identification:
o FRE 901(a): General Provision: Evidence sufficient to support finding that
matter in question is what proponent claims
 Johnson: ID of ax acceptable even though not entirely free from doubt;
rxable juror could have found that this ax was the one used in the
assault, failure to state particular characteristics of this ax go to weight
and credibility, FRE 104(e)
 Howard-Arias: Do not need every link in chain of custody to testify in
case involving 240 seized bales of mary-J
 Bagaric: Authentication of letter may be based entirely on
circumstantial evidence, including
 Appearance

10
  Contents
 Substance
 Other distinctive characteristics
 Pool: Speaker IDing self by name during phone convo not enough to
authenticate that he is speaker (agent could not compare “Chip”’s
voice with voice of speaker)
o FRE 901(b): Examples of good authentication/ID (p.36)
 FRE 902: Self-authentication: Extrinsic evidence of authenticity not required for
certain things (p. 36-37)

ARTICLE X: CONTENTS OF WRITINGS, RECORDINGS, PHOTOS

 FRE 1001: Definitions
o FRE 1001(1): Writings and recordings: letters, words, numbers, or equivalent, set
down by handwriting, typewriting, printing, photostating, photographing,
magnetic impulse, mechanical/electronic recording, or other forms of data
compilation
o FRE 1001(2): Photographs: include still photographs, x-ray films, video tapes,
and motion pictures
o FRE 1001(3): Original: Writing/recording itself or any counterpart intended to
have same effect by person executing/issuing it
 “Original” of photo includes negative and any print therefrom
 If data stored on computer/similar device, any printout or other output
readable by sight, shown to reflect data accurately, is an “original”
o FRE 1001(4): Duplicate
 FRE 1002: Requirement of Original (Best Evidence Rule): To prove the content of a
writing, recording, or photograph, the original is required
o Except as otherwise provided by FRE or statute
 Duffy: Shirt with laundry mark “DUF” was found in D’s car. Is both a
chattel and a writing, thus could be treated as either. Words merge with
object.
 Meyers: In a trial for perjury, was acceptable to call counsel at original
hearing to testify as to what D said. Transcript of hearing not required
 FRE 1003: Admissibility of Duplicates: Admissible to the same extent as an original
unless:
o FRE 1003(1): genuine question is raised as to authenticity of original
o FRE 1003(2): in circumstances would be unfair to admit duplicate in lieu of
original
 Turnage: Acceptable to admit copies of tapes of phone calls D made out
county workhouse
 See p. 38 for seven foundational elements that must be established
before tape recording can be admitted (as supplement to FRE
1003)
 FRE 1004: Original Not Required, Other Evidence of Contents Admissible if:
o FRE 1004(1): Original lost or destroyed (unless proponent did it in bad faith)
o FRE 1004(2): Original not obtainable by judicial process or procedure
o FRE 1004(3): Original not in possession of opponent who doesn’t produce it

11
 o FRE 1004(4): Writing/recording/photo not closely related to a controlling issue
 FRE 1006: Summaries: Contents of voluminous writings/recordings/photgraphs which
cannot conveniently be examined in court may be presented in form of a:
o Chart
o Summary OR
o Calculation

12