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EVIDENCE OUTLINE
INTRODUCTION
 The law of evidence controls:
o What is presented to the fact finder so we can make an informed decision
o Procedure of presenting evidence in court
 The law of evidence regulates the process of proof
o To establish the truth of a factual proposition
 The law of evidence regulates the process of inference
o The inferential process we use to get from A to Z
o How we process information
 Burden of proof – determines how close we can get to the truth (determines how much certainty)
o Preponderance of the evidence = more likely than not (50.1%)
o Beyond a reasonable doubt = probabilities
 The law of evidence works primarily at TRIAL (where civil procedure left off)
 We only go to trial if:
o 1) There is a dispute over a material fact
o 2) Trying to discover the TRUTH of why you are in litigation
 Rule 102. Purpose
o These rules should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the end of
ascertaining the truth and securing a just determination.
 Purpose of 102  to ascertain the truth
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
 (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to:
o (1) make those procedures effective for determining the truth;
o (2) avoid wasting time; and
o (3) protect witnesses from harassment or undue embarrassment
 (b) Scope of Cross Examination. Cross-examination should not go beyond the subject matter of the
direct examination and matters affecting the witness’s credibility. The court may allow inquiry into
additional matters as if on direct examination.
 (c) Leading Questions. Leading questions should not be used on direct examination except as
necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
o (1) on cross-examination; and
o (2) when a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party.
 The rules of evidence serves 2 purposes:
o 1) Discover the truth
o 2) Promote other social policies
 Deter law enforcement
 Keep irrelevant evidence out (this makes for an efficient trial)
 Controls how P & D are cross-examined
 Issues you are able to examine
 No cumulative evidence (you cannot introduce the same evidence over
again)
 Evidence must be:
o Accurate, reliable, & trustworthy information
o Efficient
o Limit the quantity of evidence 10/22/2015 12
EVIDENCE OUTLINE
INTRODUCTION
 The law of evidence controls:
 o What is presented to the fact finder so we can make an informed decision
o Procedure of presenting evidence in court
 The law of evidence regulates the process of proof
o To establish the truth of a factual proposition
 The law of evidence regulates the process of inference
o The inferential process we use to get from A to Z
o How we process information
 Burden of proof – determines how close we can get to the truth (determines how much certainty)
o Preponderance of the evidence = more likely than not (50.1%)
o Beyond a reasonable doubt = probabilities
 The law of evidence works primarily at TRIAL (where civil procedure left off)
 We only go to trial if:
o 1) There is a dispute over a material fact
o 2) Trying to discover the TRUTH of why you are in litigation
 Rule 102. Purpose
o These rules should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the end of
ascertaining the truth and securing a just determination.
 Purpose of 102  to ascertain the truth
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
 (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to:
o (1) make those procedures effective for determining the truth;
o (2) avoid wasting time; and
o (3) protect witnesses from harassment or undue embarrassment
 (b) Scope of Cross Examination. Cross-examination should not go beyond the subject matter of the
direct examination and matters affecting the witness’s credibility. The court may allow inquiry into
additional matters as if on direct examination.
 (c) Leading Questions. Leading questions should not be used on direct examination except as
necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
o (1) on cross-examination; and
o (2) when a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party.
 The rules of evidence serves 2 purposes:
o 1) Discover the truth
o 2) Promote other social policies
 Deter law enforcement
 Keep irrelevant evidence out (this makes for an efficient trial)
 Controls how P & D are cross-examined
 Issues you are able to examine
 No cumulative evidence (you cannot introduce the same evidence over
again)
 Evidence must be:
o Accurate, reliable, & trustworthy information
o Efficient
o Limit the quantity of evidence
o Fair (not embarrassing/prejudicial)  The judge has a lot of digression (allowing/disallowing
certain evidence)  might keep evidence out even if its trustworthy
 Exclusionary rule (to deter police misconduct)

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  Spouse immunity (protects honesty in relationship)
 Doctor/patient relationship (protects honesty in relationship)
 *This keeps out information that could be accurate/reliable/trustworthy  this
hampers the discovery of truth. We must find a balance*
 Three FORMS of Evidence:
o 1) Physical – tangible  the gun used, the drugs that were seized
o 2) Testimony – perception  what they know first hand
o 3) Documents – the K, written statements, pictures, maps, reports
 Two TYPES of Evidence:
o 1) Circumstantial: must make inferences from A to Z; need some evidence to be drawn to
the fact  from past experience; common sense; logic; reason; probabilities
 Motive leads you to act
 Bloody fingerprints at crime
 Shows his presence at the crime
 Allows you to infer he committed the crime
 J is angry at L  creates an inference at J had a motive to kill L and he acted upon it
 If he had the opportunity to commit the crime, this creates the possibility that he
committed the crime.
 Several states dictate that circumstantial evidence is second best
 Juries tend to put too much weight on direct evidence and not enough on
circumstantial evidence
 Many studies show that direct evidence is wrong
 There is a chance that circumstantial evidence could be wrong
 If you had a case that was too circumstantial:
 This leaves a lot of room to convince the fact finder to draw inferences
 Your case isn’t weaker, it is just harder to prove your side
o 2) Direct: without the need to make inferences, the evidence (e.g., testimony) by itself
establishes the fact you are trying to figure it out
 E.g., Brooke testified the crime occurred at 10 PM
 Even direct eye witness testimony requires some inference to be made  the jury
has to believe the witness.
 Everything requires inference (no such thing as direct evidence) – the jury has to
infer that the witness is reliable and trustworthy
 Ex: you walk into a room. Your spouse has their back to you. You walk up
and give them a hug. But it wasn’t your spouse.
 You drew an inference based on prior knowledge and
experience…but your inference was wrong.
 Witness testimony is based on perception
o Based on conclusions of what I saw
o Knowledge, experience, and common sense
 All thought processes involve some degree of inferences
 Two SYSTEMS of proof taking:
o 1) Inquisitorial (civil law): judge controls the process
 Based on court’s evidence
 Series of hearing in front of a judge; less live testimony
 Judge gathers the information (acts as fact finder) and ultimately makes the decision
 No jury
 No strict Rules of Evidence; its case by case; little exclusion
o 2) Adversary (common law): driven by the parties

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  Based on party’s evidence
 Each party will present its best case
 To weaken the other side’s case
 With the collision of the sides the truth will prevail
 Jury is the fact finder
 Party’s evidence: challenge other side’s witnesses
 Illicit favorable information from witnesses
 Rule 611(a): the court shall exercise reasonable control over the mode & order of
interrogating witnesses and presenting evidence
 A lot of rules designed to regulate what evidence the jury is allowed to hear
 Some evidence will be too prejudiced/emotional (inadmissible evidence)
 Judge + evidence rules dictate what evidence is excluded from the jury
 *Paradox: we love juries, but we don’t trust juries.
 Not all trials have juries  a lot of civil + criminal cases have a bench trial.
 Bench trial  a lot more lenient when submitting evidence b/c there is no
jury. Formally, all evidence rules apply
 Critical aspect of the adversarial system:
o Cross-examination  you impeach the other witnesses, you want to discredit the witness
and then you can infer that the witness is not reliable.
o You can ask the witness questions that are favorable to your case.
 Rule 611(c): in cross examinations, you can ask leading questions:
o Properly formed leading question is always answered with yes or no because the information
is already in the question.
o Leading question is not the evidence – the only evidence is the response to the question; so if
the witness says “no” – there is no evidence
o Leading question is the question that suggests the answer or contains the information the
examiner is looking for
 I.e.: “When did you stop beating your wife?”
 I.e.: “Isn’t it true you did not like Joe?”
 Answer: No
 This provides NO evidence that Brooke did not like Joe.
 Rule 611(b): court may allow you to go beyond the scope
 In cross-examination:
o Attacking the credibility of the witness  we are trying to expose doubt to the fact-finder
 Trying to expose small inconsistencies from the witness
 This can hurt your case too b/c the jury may wonder why you are focusing on the
small inconsistencies
 How hard do you want to push on a small inconsistency? – you could look like a
bully; witness can become less cooperative; can seem like you don’t have more than
that small mistake; if you keep poking at each other’s small mistakes it will seem
like everyone’s lying
 The system does a reasonably good job at exposing deliberate lies
 The law of evidence applies to civil and criminal cases
 The court may apply rules differently in a civil and criminal case  evidence that is prejudicial may
apply different in civil and criminal cases
o Civil (preponderance of evidence, 51%) v. criminal (beyond a reasonable doubt, 80-90%) 
who bears the burden of persuasion / standard of proof.
 The law of evidence is about probability and explanation (the quality of explanation)

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 o What the best explanation for what occurred in the real world?

INTRODUCTION TO RELEVANCE
 Fundamental concept in evidence is RELEVANCE
 Rules Enabling Act – SCOTUS has the power to enact the rules of evidence
o 28 U.S.C. 2072 (b) – shall not abridge, enlarge or modify any substantive right
 Rules of evidence are treated the same way as the rules of Civil procedure. They take
affect on Dec. 1 if Congress does not act.
 Except for privileges  28 USC 2074 – evidentiary privilege rules must be
approved by an Act of Congress.
o If there are any gaps in the rules, we fill in the gap with common law evidence rules.
 Rule 401. Test for Relevant Evidence
o Evidence is relevant if:
 (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (this is logical relevancy)
 (b) the fact is of consequence in determining the action. (this is materiality)

 Burden of persuasion under 401 is on the party presenting the evidence (the proponent of the evidence)
 Rule 401(a) – pushes us in one direction but it does not have to establish that X is true.
o Some fact is more or less likely to be true
o This does not mean more likely than not (50.1%) [preponderance of the evidence]
 More likely than not means that it is more likely that X is true than X is false
 You can never argue in relevancy that just because X is true does not necessarily mean Y is true.
 Analogy in 401(a)  “a brick is not a wall”
o Each brick alone does not constitute a wall  all the bricks together make the wall
 The wall = fact
 The brick = the evidence
o If it rationally moves the fact-finder in the slightest way then it satisfies 401(a). This is a very
low threshold (the language states “has any tendency..”)
 Rule 401(b)  it is important in light of the applicable substantive law in the case
o We know the substantive law from the complaint, pleadings, indictment, and jury instructions
o The fact does not need to go an element of the charge in order to be of consequence; the fact
will allow an inference (e.g., J did not like B – this is not of consequence but it will allow an
inference to something)
 E.g., Motive – not an element but its logically relevant/material b/c it allows the
inference that someone acted on that motive
 Relevancy depends on the theory of the case (the charges the prosecution presents, how the case is
pleaded)
 When you object on the grounds of relevancy: you can argue the lack of logical relevancy OR you can
object on lack of materiality (that the fact has nothing to do with this case)
 There are 2 types of relevancy:
o 1) Substantive: substantive elements of the claim  what happened in the real world
o 2) Impeachment/Credibility: if the witness is believable

 Rule 402. General Admissibility of Relevant Evidence

o Relevant evidence is admissible unless any of the following provides otherwise:
 The United State Constitution;
 a federal statute;
 these rules; or

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  other rules prescribed by the Supreme Court
o Irrelevant evidence is not admissible

 If the evidence is relevant and admissible then we look if the evidence can be excluded  Rule 403.

 Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons
o The court may exclude relevant evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

 When you are arguing evidence  it is easier to argue that a rule of evidence is not satisfied
o Easier to say its irrelevant (doesn’t satisfy FRE 104) rather than its relevant but it should be
excluded.
o Reasons for excluding evidence:
 1) To improve the accuracy of the truth finding process
 2) To serve certain substantive public concern (protect doctor/patient relationship)
 3) Combination of 1 and 2
 Rule 403 is discretionary  “the court may”  the court can still let the evidence in even if its
probative value is substantially outweighed
o There is an inherent balancing test – the default is admissibility
 There must probative value
 Must be substantially outweighed (high threshold)
 Burden of persuasion is on the opposing party – must show that the probative value
is substantially outweighed
o All evidence is prejudicial – mean that it disadvantages one side. But under 403 it has to be
UNFAIRLY prejudicial to be excluded
o 403 tries to keep evidence based on emotion out – evidence appeals to the jury’s emotion but
we want the jury to make their decision based on logic
 You are going to lose almost every 403 argument you present because probative value is usually really
high  its very hard to win a 403 argument.
 A piece of evidence can have multiple relevancies.
o But, if you can’ t point to legitimate/valid use of evidence – you will not be able to bring it in.
 This evidence can prove X, Y, and Z
o X is legitimate in this case, but Y and Z aren’t.
 This can cause unfair prejudice and confusion – the jury is going to use the evidence
for Y & Z when Y & Z aren’t legitimate.
 The evidence for X may be substantially outweighed.
 Evidence is admissible to find X but not for Y – Court instructs the jury that they
must follow this  comes from Rule 105.
 Relevancy of the evidence depends on who is bringing it in and what it is offered for – maybe to prove
one fact but not the other
o In order to ensure that the jury does not misuse evidence we use FRE 105.

 Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes
o If the court admits evidence that is admissible against a party or for a purpose – but not
against another party or for another purpose – the court, on timely request, must restrict the

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 evidence to its proper scope and instruct the jury accordingly.

 Will a 105 jury instruction be effective regarding a 403? – Court can limit the jury instruction - will
make 403 more difficult to apply. 403 objections will take into account whether the jury can follow the
instructions.
6. Argue the relevance of Porter’s hearing brakes screeching outside her window after 10pm?
 P argues shows Joe was in a hurry to get back from the crime scene
 D argues it was raining and that's why there was screeching breaks
o Circumstantial evid  inferring it was Joe’s car
o D will also point out gaps
 Could have been someone else
 There was a hidden stop sign that lots of ppl miss
 If it was Joe  don't know where he was going
 It was raining  could have been anyone skidding
 How did Joe even get out of the apt?
 Admissibility v. Weight – the weight the jury gives the evidence
o Weight – you can draw out the specifics on cross-examination – you can weaken the weight
of evidence
 You can also weaken the weight of evidence on closing arguments by pointing out
the gaps in the opposing side’s argument
3. Consider the relevance, under any theory of prosecution or defense, of the testimony that Leslie left her key
on her bedroom table. What are you doing when you so consider?
 D argues Brooke had an opportunity to kill Leslie or have her killed  knew where she was  this
makes it less probable that Joe did it (if it is more probable that Brooke did it then it is less probable
Joe did it  evid. of Third Party Guilt)
 Third Party Guilt:
o Tending to prove another person committed the crime
o Inconsistent with Δ’s own guilt
o More than suspicion/conjecture
o Must specify a particular person
7. Argue the relevance of Slyviak’s observation of “a mark on the door post where the bullet might have
struck and then dropped to the step.”
 P argues it shows it is more probable the shot fired came from the street and therefore Joe shot Leslie
 D argues it doesn't mean it was Joe bc more probable that the shot was fired from the street
o The officer is not a bullistic expert
o There may be other causes for the mark
o Or Brooke could have hired someone to shoot Leslie from the street
14. Prosecutors argue the relevance of each of the pictures in the Mitchell file. Def counsel argue the
irrelevance of each of the pics. What material proposition (“fact that is of consequence to the determination
of the action”) does each pic make more or less probable than it would be without the picture? Why?
 P- the photos of Leslie’s dead body establish Leslie was shot, which must be proven
 There are other ways that the P can prove this
o The D can stipulate that Jesse was dead  photos are unnecessary, may make the jury more
emotional
 Relevancy includes – an emotional and moral component
 Photographs create this emotional and moral component
 In State v. Mitchell – the photographs put a face to Leslie
o Show she was a real person
 We want evidence to be rational but not cold

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  There is room to impress on the jury that Leslie was murdered  Leslie is a real person  the pictures
show that a real person was murdered
 We want to give the jury the fullest picture  you do not want to stipulate everything
 In the Mitchell case, we would let the photographs in
o Prosecution: argues that Leslie was shot from the street
o Defense: argues Leslie was shot from the door  this speaks to the weight of the evidence 
this casts doubt on the prosecution’s argument  influences what you can argue with
evidence
 Evidence can be offered for one fact, one claim, one charge, or one defense.
 Precise Relevancy:
o 1) Whether it can come in
o 2) What you can argue with that evidence
o 3) What the judge/jury uses the evidence for
o 4) Influences what the Court of Appeals can do with it / how they can rule on the sufficiency
of the evidence
 Opponent of Evidence argues:
o 1) How can I keep this out?
o 2) How can I attack the weight of the evidence?
o 3) The evidence comes in, what can I argue for this evidence?
10. For each of the following pieces of evid. argue the relevance if offered by your side and the irrelevance if
offered by your opponent:
(a) the “first thought that flashed” through Brooke’s mind after the shooting was that Joe had shot Leslie.”
 P argues Brooke is certain, immediately sure and that she didn't have time to fabricate
 D argues Brooke already had this idea in her head, she is lying, she is predisposed  already hated
him and is biased (first thought should have been is Leslie okay?)
(b) Joe’s drinking and blood alcohol level.
 P argues makes Joe less rational and lowers his inhibitions  makes it more probable Joe killed Leslie
 D argues Joe is less likely to have shot Leslie bc he wouldn't be able to physically complete the act bc
he was drunk
(c) Brooke’s owning the .38 and its disappearance.
 P argues Joe knew where she kept her gun and Joe had access to the gun and used the gun to shoot
Leslie
 D argues Brooke had access to the .38 and shot Leslie
(d) Brooke’s having seen Joe hundreds of times before at the time and place.
 P argues shows that Brooke could identify Joe bc she has personal experience of seeing him there
 D argues this is why Brooke assume it was Joe  Brooke was predisposed to think it was Joe
o Personal experience and knowledge can cloud perception
13. Consider the relevance of such “background facts” as Joe’s service in the Marines and Leslie’s schooling
and employment history. Such facts would normally be admitted simply to fill in the background of the
story, though careful trial lawyers know how important they may be to some jurors.
 Joe’s military history  shows that he is comfortable around guns
 Leslie’s employment and education history  shows her earning potential
o Background facts come in even if not relevant  only way wont be let in if goes too far and
bleeds over too character evid.
 Background facts of victim/Δ  marital status, job, financial status, children, etc.,  this helps the
jury weave a narrative/broad picture for the jury. Helps the jury see that this was a real life situation
etc.
o These background facts do not necessarily prove a fact  just help paint a picture
 Relevancy  permissible reasonable inference under 401 as long as its allowed by 403 standards.

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  What the lawyers say is NOT evidence
CHARACTER EVIDENCE AND PRIOR ACTS
 Character evidence is NOT allowed:
o It could be relevant but it will be excluded on other grounds:
 1) Character Evidence Rule 404
 Character: disposition/propensity to engage or not engage in certain forms
of behavior or conduct
o Character evidence is concerned with action in conformity
o Character evidence is prohibited
 Character evidence/prior acts will likely show:
o 1) A person is ____ person / ___ person is more likely to do X / more probable that A did X
 excluded
o 2) A did X in past / A is the type of person who would do X / more probable that A did X now
 excluded
 We make character judgments all the time in our everyday lives / make judgments about people’s past
conduct
 Character evidence is prohibited because the jury is trying to figure out what the Δ has done.
o Don’t want the jury to decide what type of person the Δ is.
o Jury would give too much weight to past acts and not evaluate what the Δ did in this instance.
 Don’t want the judicial system to take the risk of evaluating someone’s character
 Evidence of a character trait could come in  if you can find a relevancy for the evidence of character
the trait that is not in accordance with that particular trait
 If we did not have 404, you could do a 403 balancing test.
o Ex Ante balancing
o Categorical balancing
 Any character/trait is NOT admissible to show action in accordance
11. Argue the relevance of Brooke’s negative opinion of Joe if offered by the prosecution. Argue the
relevance if offered by the D. Put aside for now the opinion’s admissibility under Rule 701.
 Joe’s character “lazy and a no good to be living off his wife’s income”  this is Brooke’s testimony.
o This is character evidence but it is not being used with action in accordance with that
character/trait.
o Defense is trying to bring in the evidence stating that this characterization of Joe shows
Brooke’s motive to frame and shows her biased could have led her to misidentify Joe
 Rule 404. Character Evidence; Crimes or Other Acts
o (a) Character Evidence.
 (1) Prohibited Uses.
 Evidence of a person’s character or character trait is not admissible to prove
that on a particular occasion the person acted in accordance with the
character or trait.
 (2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
 (A) a Δ may offer evidence of the Δ’s pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to rebut it;
 (B) subject to the limitations in Rule 412, a Δ may offer evidence of an
alleged victim’s pertinent trait, and if the evidence is admitted, the
prosecutor may:
 (i) offer evidence to rebut it; and
 (ii) offer evidence of the Δ’s same trait; and

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  (C) in a homicide case, the prosecutor may offer evidence of the alleged
victim’s trait of peacefulness to rebut evidence that the victim is the first
aggressor
 (3) Exceptions for a Witness.
 Evidence of a witness’s character may be admitted under Rules 607, 608,
and 609.
o (b) Crimes, Wrongs, or Other Acts.
 (1) Prohibited Uses.
 Evidence of a crime, wrong or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.
 (2) Permitted Uses; Notice in a Criminal Case.
 This evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident. On request by a Δ in a criminal case, the
prosecutor must:
 (A) provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial; and
 (B) do so before trial – or during trial if the court, for good cause,
excuses lack of pretrial notice.

 Under Rule 404 – the Δ can offer evidence of his own character to show he acted in accordance with
that character – then the prosecutor can rebut it.
o Δ has to offer evidence first – the Δ has opened the door  this does not mean the Δ has
brought his “character in issue”
o Δ can offer evidence of the victim’s alleged trait (i.e., V is violent)
 Prosecution can rebut:
 i) V is not violent (rebut it)
 ii) D is violent (offer evidence of the Δ’s same trait
 404(a)(1) - prohibits character evidence but 404(b)(2) allows evidence if you can prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
 404(b)(1) – prohibits the showing of “A did X in the past/therefore he is the type of person who would
do X/thus, A did X now
o Can be committed before or after the act in issue
o Cannot be admissible for character evidence
o Can be admissible even if you weren’t convicted or if you were acquitted
o Doesn’t have to be a bad act; doesn’t have to be criminal
o 404(b) deals with past acts
 404(b)(2) – can find admissibility of evidence for the purposes enumerated in (b)(2): [a lot of evidence
of prior acts are admitted under this FRE]
o Motive: did the other act show motive? Ex: past domestic violence acts
o Opportunity: doing something in the past  shows Δ had the opportunity to do something at
the time in question
o Intent: must be related/must be in the same scheme – connection in time/something that links
the prior act with the current act
o Preparation/plan: other acts are done as preparation for the act in question
o Knowledge: past instances of knowing X to commit Y
 Past instances of doing X to show that Δ committed Y [you shot someone in past,
you know how to use a firearm]  courts are guarded with this because it can be

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 abused. Courts will allow knowledge: 1) of highly specialized instances; 2) if it used
in rebuttal [e.g., if Joe says he doesn’t know how to use a gun  then the
prosecution will rebut -- but you used a gun to shoot someone in the past]
o Mistake/Lack of accident: rebuts the assumption. Only if you are saying a defense to a
mistake – if you did not know they were drugs and they were
o Identity: Identity of the actor who did X. Courts use this test for identity:
 There must be a high degree of substantial similarity
 Trademark
 Finger print
 Modus operandi (habits, mode of operating)
 Before you even try to bring in identity under 404(b) – it must be true that the
identity is a fact of consequence (identity must be in issue/dispute)
 E.g., Identity is a fact of consequence in State v. Mitchell b/c we are trying
to figure out the identity of the murderer of Leslie
 Someone did X at some other time
 Y (conduct at issue) is substantially similar to X
 You can logically infer the same person did X & Y
 A did X  must have evidence that A did in fact do X
 Therefore infer that same person (A) did Y
 If you do not have anything linking the identity of the Δ to the prior act (X) then it is
not relevant prove that A did Y.
 403(b) – unfair prejudice  if Brooke is a racist and Joe is black. Prosecution will argue that the jury
will use this as character evidence – it will usually be let in with a limited jury instruction
 What is the difference between 404(a)(2)(B)(ii) and 404(a)(2)(C)?
o 404(a)(2)(B)(ii) – only character evidence is allowed
o 404(a)(2)(C) – gives the prosecutor flexibility but it is only relevant when you are talking
about self-defense
 The defense brings in non-character evidence and the prosecution rebuts this
evidence with character evidence (only allowed in a homicide case/criminal case)
 What is the key limitation on character evidence?
o The character trait must be relevant and pertinent (satisfy 401)
 When you say a person is a certain type of person – therefore he is more likely to act a certain way and
therefore he did the act in question. This is character evidence! (404(a)(1) prohibition)
 You can’t rely on evidence that goes from the trait of being angry/violent to the fact that he committed
the crime in question.
 We don’t want juries to judge what type of person the  is
 “I saw Joe on Sept. 10th, he looked really mad.”
o This is not character evidence
 “Joe gets mad easily and is violent”
o This is character evidence
 If  is worried a/b character evid.  do not open the door b/c the prosec. will rebut it with neg.
charac. evid.
 Character trait of honesty is pertinent in a perjury case but not necessarily in a homicide case.
 Rule 405. Methods of Proving Character
o (a) By Reputation or Opinion.
 When evidence of a person’s character or character trait is admissible, it may be
proved by testimony in the form of an opinion. On cross-examination of the
character witness, the court may allow an inquiry into relevant specific instances of

11
 the person’s conduct. (about the def, victim, or whoever the witness has spoken
about)
o (b) By Specific Instances of Conduct.
 When a person’s character or character trait is an essential element of a charge,
claim, or defense, the character or trait may also be proved by relevant specific
instances of the person’s conduct.

 Rule 405(a) – is not an independent rule of admissibility  cannot say that evidence is admissible
under 405(a)
o Reputation is what the community thinks of Δ
o Opinion is what “I” think of Δ
 Rule 404  cannot use character evidence to show action in accordance  exceptions are enumerated
in 404(a)(2)
 Rule 405(b)  very narrow. Essential elem. is part of the substantive law that must be proven for the
prosecution to win.
o The character does not rely on the propensity issue – character is an essential element, it is the
fact of consequence
o So RARE for character evidence to be an essential element in a case. You are NOT trying to
prove conduct, you are trying to prove character.
o 405(b) is rarely invoked. Comes in during: negligent entrustment, entrapment, child custody
(in these types of cases charac. is an essential element)
15. Argue the relevance of Brooke’s racial attitudes.
 D argues that they want this evid. in so the jury will dislike Brooke
o No. cant offer evid. solely for purpose of getting jury to dislike Brooke
o Character Evid. Prohibition  prevents admission of evid. that X is a certain type of person
 Would your answer chg if Joe was black?
o Yes. Using evid to show motive or bias against blacks  Brooke was predisposed to
believing Joe killed Leslie  shows Brooke’s testimony lacks credibility
o Racist = motive  can infer conduct based on motive
 404(a)(1) limited to only situations when just trying to get the jury to dislike a person, if can give
another reason to break the chain of inferences then not character evid.
 D argue Relevancy 401? Yes makes it more probable Brooke framed Joe bc he is black
 P argues 403 against D’s relevancy argument
o the evid. will be misused by the jury  unfair prejudice  jury will use the evid as character
evid
o the ct will probable find that the probative value is substantially outweighed by the unfair
prejudice  D can ask for a limiting jury instruction
FACT PATTERN for 18 to 27:
 Assume that Joe claims self-defense. He claims that when he pulled up to the Thompson
residence, Leslie spun around on the porch, pointed a .38 at him and fired 2 shots. Only then did
he reach for his gun and fire back, killing her. Apparently she missed so widely that the bullets
were not found, and he claims that Brooke must have disposed of her gun in order to frame him.
Brooke denies these allegations and claims Joe shot Leslie out of anger bc Leslie wanted a
divorce. The police and District Attorney’s office do not believe Joe, and Joe is now on trial for
murder.
18. During the Prosecution’s case-in-chief, the Prosecutor calls Brooke as a witness. Brooke will testify that
“Joe gets mad easily and is as violent as the day is long.” Joe objects that this testimony is barred by Rule
404. What ruling should the Court make?
 This is 404(a)(1) character evid. – not admissible

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 o Makes the inference from anger to conduct
 Would be admissible if made inference from anger to motive then to conduct  breaks the chain of
inference
 If it was testimony of what Brooke saw the night of the shooting then it would be admissible (if saw
Joe looking very mad that night of the killing then goes to motive and is not character evid.)
19. During the D’s case-in-chief, Joe’s first witness is Porter, who testifies that Joe is “a peaceful man. He
would never be the first person to point a gun at or threaten someone.” This time the prosecution objects
that this testimony is barred by Rule 404. What ruling should the Court make?
 404(a)(2)(A)  pertinent trait  peacefulness
o this is character evid. but is allowed in bc the “D can offer evid of the D’s pertinent trait, and
if the evid. is admitted, the prosecutor may offer evid to rebut it.”
o The D is offering the evid. and the evid. goes to a pertinent trait (self-defense so violence or
nonviolence is a pertinent trait)
o P can rebut this evid. w/ evid that Joe is violent
20. Assume that Porter’s testimony was admitted. During the Prosecution’s rebuttal case, the Prosecution
again offers Brooke’s testimony from Problem 18. Same objection by Joe. What ruing should the Court
make?
 P offers evid. to rebut that Joe gets mad easily
 Yes. P can offer evid. of a character trait to rebut 404(a)(2)(a) if D’s evid is admitted
o D opened the door
o Violence is a pertinent character trait
21. During the D’s case-in-chief, Porter, as the first def. witness, also testifies that Joe “is the most honest
person I know.” Again, the prosecution objects that the testimony is barred by Rule 404. What ruling should
the Court make?
 D cant bring in this evid. bc not evid of the D’s pertinent trait
 D will argue that it is about a pertinent trait  honest person = law abiding person
o But judge prolly wont accept this
 If Joe was charged with perjury then honesty would be a pertinent trait (depends on the type of case)
22. During the Def’s case-in chief, Joe calls Chris. Chris testifies that Leslie was an “angry, violent, and
aggressive” person. The prosecution again objects that the testimony is barred by Rule 404. What ruling
should the Court make?
 Yes admissible under 404(a)(2)(B)  D is offering evid of the victim’s pertinent trait (Leslie is
violent)
23. Assume the Court admits Chris’s testimony. The prosecution calls Brooke to testify that (a) Leslie was a
“peaceable person” and that (b) Joe is a “violent person.” Joe objects to both statements. What ruling
should the ct make?
 404(a)(2)(B)(i)  P can rebut victim’s pertinent trait by arguing peacefulness
 404(a)(2)(B)(ii)  P can offer evid. of D’s same trait (Joe is a violent person)
24. Assume that instead of calling Chris to testify as in Problem 22, Joe calls someone who saw the event and
will testify that Leslie shot at Joe first and that Joe did nothing to incite her. Can the prosecutor introduce
evid. that Leslie was a peaceful person?
 Yes under 404(a)(2)(c) in a homicide case P may offer evid. of a victim’s trait of peacefulness to rebut
evid. that the victim was the first aggressor
o In 404(a)(2)(B) P can only rebut the character evid. (why this section doesn't apply here)
o But in 404(a)(2)(C) P can rebut ANY evid. (not just character evid.)
 Brooke is testifying that Leslie is peaceful in response to testimony of violence
o Testimony is inferring that Leslie is the first aggressor and P can rebut evid that victim was
the first aggressor
 Sometimes allowed to use both (B) OR (C) to get the evid. in

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26. During the D’s case-in-chief in a criminal case, assume that Chris also testifies that he had seen Leslie in 5
diff. fights, 3 of which involved loaded guns. The prosecution objects. What ruling should the ct make?
 This is character evid. of the victim under 404(a)(2)(B)
o But the evid. is not admissible under 405(a) (what form the evid. must be in) the evid. cant go
to specific conduct  must be opinion/reputation evid. not evid. of a specific instance of
conduct.
 Only can use evid. of specific conduct on cross
27. During the D’s case-in-chief, Porter is on the witness stand and has just testified as described in Problem
19 (Porter testifies Joe is a peaceful man). During the cross-examination of Porter, can the prosecutor ask
her about previous violent acts by Joe—specifically about Joe’s prior barroom fights?
 (problem 19) used 404(a)(2)(A) to get in evid. of pertinent trait
 (problem 27) P on cross of Porter wants to ask about Joe’s previous violent acts (barroom flights)
o Yes this is admissible to rebut under 404(a)(2)(A) and 405(a) on cross allows specific
instances of conduct as long as they are relevant
 Rule 405(b):
 If porter is not on cross then this specific instance of conduct can come in under 405(b) but the
character trait must be an essential element of the charge
o The person’s character trait must be an essential element of the charge, claim, or defense
o The fact must be prove as substantive law or will lose case  called “character in issue”
o Jury must find that has this character trait in order to decide the case
o If character is an essential element then character is the fact in consequence
 This is a very narrow exception:
o Ex. negligent in hiring (element of case is the character of the person hired)
o Ex. negligent entrustment (lent your care so someone you shouldn't have trusted)
o Ex. entrapment (when police set you up to commit crime  police argue you're the type of
person that would have committed that crime anyways)
o Ex. child custody (which parent is more fit to care for the child)
 What fact of consequence are we proving? (applying 405(b) to #27)
o Porter knows of an instance of Joe’s violent behavior (barroom fight) then it will lessen
Porter’s credibility for testifying earlier that Joe is a peaceful man
o Doesn't go to an essential element of the case, goes to impeaching the credibility of Porter’s
statement and goes to the character of Joe
 What about defamation? Does defamation try to prove character or conduct?
 In the MacIntyre case – there are 3 statements of alleged defamation:
o Statement to Mr. Marlow
o Statement to Mrs. Easterfield
o Statement to ABC Employers
 Affirmative defense by Mr. Easterfield (this shifts the burden to Easterfield to show that these
statements were true and they were protected by a qualified privilege)
o Easterfield must show that he was not reckless or malicious in making these statements / must
show that he reasonably thought the statements were true – this causes us to inquire into his
state of mind
 Is character an essential element in defamation?
o It depends  depends on whether the statement speaks about a specific act or a person’s
character.
o Ex: “Jesse stole from me” – this is a specific act
 vs.
 “Jesse is a thief” – this is about character/specific character trait
 Can prove character by reputation/opinion or by 405(b).

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  Character is an essential element here
o Most of the statements in MacIntyre are dealing with a specific act
 Membership of organization/group as admissible evidence
o 1. Probative beliefs?
 Does your membership to this group make it more likely that you adopt these
beliefs?
o 2. Relevant
 Does this membership make it more or less probable that a fact is of consequence?
 Cannot rely on character/propensity
 Beliefs are not character; beliefs cause relevant conduct
 Beliefs trigger motive
o 3. FRE 403
 Will the jury use it for character evidence?
 Does it create an unfair prejudice?
 You can argue that membership in a group does not mean you adhere to all those principles
o This speaks to the weight of the evidence – let the jury work this out themselves provided that
the adherence to the belief make the conduct more likely/more probable than without it
 Ex: If you say that Joe is part of “Men Angry about Divorce” b/c he is mad  cannot use this
argument because of 404(a)(1) – it is character evidence

 U.S. v. Bell case – 6th Circuit guides us through a 404(b) analysis (which is highly discretionary)
o 1. Is there sufficient evidence that other acts occurred and A committed them?
o 2. Admissible for a legitimate purpose? “Any tendency to make a fact more or less
probable…”
o 3. FRE 403 [worried the jury is going to use the evidence improperly … b/c “he did it before,
he will do it again]
 a) Adequate proof of prior conduct
 b) Probative force for its non-character relevancy
 c) How important/central to the case
 d) How inflammatory/unfairly prejudicial [how much of a risk is there that the jury
will use this evidence incorrectly]
 e) Will limiting instruction reasonably work

CONDITIONAL RELEVANCE
 Rule 104. Preliminary Questions
o (a) In General.
 The court must decide any preliminary question about whether a witness is qualified,
a privilege exists, or evidence d admissible. In so deciding, the court is not bound by
evidence rules, except those on privilege.
o (b) Relevance That Depends on a Fact.
 When the relevance of evidence depends on whether a fact exists, proof must be
sufficient to support a finding that the fact does exist. The court may admit the
proposed evidence on the condition that the proof be introduced later.
o (c) Conducting a Hearing so That the Jury Cannot Hear It.
 The court must conduct any hearing on a preliminary question so that the jury cannot
hear it if:
 (1) the hearing involving the admissibility of a confession;
 (2) a defendant in a criminal case is a witness and so requests; or
 (3) jusice so requires.

15
 o (d) Cross-Examining a Defendant in a Criminal Case.
 By testing on a preliminary question, a defendant in a criminal case does not become
subject to cross-examination on other issues in the case.
o (e) Evidence Relevant to Weight and Credibility.
 This rule does not limit a party’s right to introduce before the jury evidence that is
relevant to the weight or credibility of other evidence.
 Under 104(a) – whether evidence is admissible / sometimes fact finding is involved
o 404(b)(2): identity – is the prior act substantially similar? This question must be resolved.
o In deciding whether this piece of evidence is admissible under 104(a) – the ct is not bound by
the FRE – ct can look at evidence that would not usually be admissible (can use character
evidence)
 Under 104(b) – relevance depends on whether a fact exists – trying to draw a chain of inference from
A to B
o The inferential chain works when the chain is condition on the underlying fact
o “proof must be introduced sufficient to support a finding that the fact exists” – this std. is
when a reasonable jury could find this underlying fact to be true. Very low std. – lower
than the prep. Of evid std. you can offer the evid. At the time or later
 Comparing 104(a) + 104(b) – in 104(b) the ct is bound by FRE. The laying foundation must be evid
that is admissible. 104(a) is ct controlled
 Std in 104(b) is just REASONABLE – very low std – if the jury can reasonably make a conclusion
[i.e., that Joe did read the letter from the writing studio] then the evid will be admitted
 Defense will attack the weight of the evid on cross by asking Slyviak if he saw that the was letter was
open
 Under 104, evidence is only relevant if some other fact is true (ask: what has to be true for this fact to
be relevant?) / enough that a reasonable jury can find the conditioned fact
 How does 104 interact with 404(b)?
 3 Step Approach from Bell case:
o (1) Is there sufficient evidence that other acts occurred and A committed them? Must satisfy
104(b)
 Conditional relevance – if the prior act occurred and Joe did that prior act – this is
proof suff. to support a finding that a fact does exist
 To satisfy 104(b): SCOTUS in U.S. v. Hudson – if using prior acts – it does not
matter if he was acquitted b/c for acquitted it means that the jury could not find
beyond a reasonable doubt that Δ was guilty – for 104(b) we only need to show there
is suff. proof for a reasonable jury to find that the fact exists
o (2) Admissible for a legitimate 404 (b) purpose? “Any tendency to make a fact more or less
probable…”  must satisfy 104(a)
 Does it fit within the requirements of 404(b)(2)?
o (3) FRE 403 [worried the jury is going to use the evidence improperly … b/c “he did it
before, he will do it again]
 a) Adequate proof of prior conduct
 b) Probative force for its non-character relevancy
 c) How important/central to the case
 d) How inflammatory/unfairly prejudicial [how much of a risk is there that the jury
will use this evidence incorrectly]
 e) Will limiting instruction reasonably work

16
35. Argue the relevance of the death of Joe’s first wife. Are there Rule 104 issues? Assume for the moment
that Joe had pled guilty to the shooting death of his first wife after a heated argument during their walk in
the woods in Wisconsin and served 8 yrs in prison. Now argue admissibility.
 Prob 35(b) – suppose Joe pled guilty to his 1st wife’s death – how would this effect FRE 104(b) – is
this suff evid?
o Yes! – pleading guilty meets the same std at conviction (byd reason dbt)
o Joe could offer explanation that he pled guilty to get a lighter sentence
o Joe could argue that the jury got the conviction wrong – this attacks the weight of the evid –
this attacks the conditioning fact – that the conditioning fact has not been satisfied – the
conditioning fact must be suff to prove a finding
36. Argue the relevance of Brooke’s statement to Leslie: “That man’s a loser. I’d rather die than see you
back with him”; and of Joe’s “reaction.” Consider Rule 104 issues.
 P argues relevant bc shows why Joe doesn't like Brooke  it makes it more probable than not that Joe
is angry at Brooke  Joe blames Brooke for why he is not with Leslie and this anger gives him a
motive to kill Leslie (chain of inferences)
o This is relevant only if the conditioning fact is met  that Joe hear Brooke’s statement to
Leslie
o 104(b) fact  need proof sufficient to support a finding that the fact does exist
 what is the evid to prove this 104(b) fact? Joe was in a close physical proximity
and he looked mad  yes the suff. Evid to meet 104(b) std (low std)
HABIT, CUSTOM, CHARACTER
Rule 406. Habit; Routine Practice
 Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a
particular occasion the person or organization acted in accordance with the habit or routine practice.
The court may admit this evidence regardless of whether it is corroborated or whether there was an
eyewitness.
 FRE 406 is an exception to the prohibition in 404(b)
 Habit/routine is NOT character evid
o Ex: A has habit/routine of X / more probable A did X
 Habit describes particular behavior in a specific setting – thus, it has more probative value in proving a
conduct on a particular occasion
 Advisory committee states that:
o Character is: generalized disposition/tendency
o Habit is: regular/ritualized/specific responses to repeated situations
 Semi-automatic/non-volitional
 Uniformity/regularity
 Consistency
 Specificity
 Nature of act
 3 criteria to distinguish character from habit:
o Specific behavior
o Regularity
o Degree to which it is automatic or unreflective
 Cts are allowing more things to come in as habit – allowing a person’s routine prac. To come in – i.e.,
person stops at the same bar everyday
 Ex: violent behavior – when it reflects anger or happens repeatedly in relationships – cannot be called
unreflective or non-volitional – should not be viewed as habit!
4 Step Test to Admit Evidence under FRE 406:
 (1) Is this a habitual act? – FRE 104(a)

17
 o Ex: Joe watching The Shadow can be admissible that it is consistent and uniform – cts can
ignore whether it is volitional
 (2) Can you infer action in accordance? FRE 104(a) – Relevant? It must be relevant
 (3) Sufficient evidence to establish A’s habit? FRE 104(b) – Conditioning fact
o Method of proof – habit or routine practice may be proved by testimony in the form of an
opinion or by specific instances of conduct sufficient in number to warrant a finding that the
habit existed or that the practice was routine  the std is the same as 104(b) [conditional
finding] – the std is sufficient
 (4) FRE 403

 If an act is not habitual – it cannot come in under 404(b)(2) – you only need evid suff to prove a
finding that  did something in the past – can bring it in under 404(b)(2) as a prior act to show
opportunity [that Joe drove fast in the past]
 You can use specific instances of conduct to show habit
 One prior act to show something in the list of 404(b)(2) is permissible – does not need to come in
under habit – can show it under knowledge
 There is no limitation in civil/criminal cases – evidence is admissible under 404(b)(2)
 Religious observations are too volitional to be a habit
 Prove habit by:
o Witness testifying to prior specific instances of conduct;
o Witness testifying by opinion generally not admissible – must be witness with knowledge; not
a lay person
 Routine practice is mostly used to litigate claims against a big corporation (organizations) – routine
practice is used much more than habit
o Must be conveyed by a witness familiar w/ the organization practice but not engaged in such
practice
39. Defense offers to prove Joe’s practice of listening to The Shadow regularly. D should conduct the
segment of Joe’s direct examination that would support admissibility (the “foundation”). Prosecution
objects. Argue the admissibility.
 D argument for Relevancy? Alibi  where Joe was at  can infer Joe was in his room without
having him testify (wouldn't have him testify bc his character is suspect)
o Even if Joe does testify will still want to bring in this evid. bc it will be corroborating evid.
that will make this inference even stronger
 P argument against this evid. coming in?
o (1) Habit?  argue this is not a habitual act  non-volitional  like a religion to watch the
show must think about it
 in US v. Levin: man argued that his religion required him to be home on Friday
night  the ct held that the evid was inadmissible bc the practice of religion is a
choice and not a habit
 **cts lately have been ignoring the semi-automatic factor  there is a trend to
greater admissibility
o (2) Relevant? Yes  shows he was at home watching the show  alibi
o (3) Sufficient evidence to establish A’s habit? Yes. Testimony that for 3 yrs has been
watching that show
40. Prosecution offers to prove through Chris that Joe is a fast driver. Argue the admissibility.
 P argues shows Joe could have drove from his house to Leslies and back in time  goes to prove his
opportunity
 D argues against this evid. coming in

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 o (1) Habit? Not a habit. This is a volitional act and this is not specifically defined  too
general of a habit
o (2) Relevant? Yes goes to Joe’s opportunity to kill Leslie  more probable was able to get
there in time
o (3) Sufficient evidence to establish A’s habit? Not suff. Evid. bc Chris only drove 1 or 2
times w/ Joe
 Could P still use the evid. if doesn't show habit?
o Yes could be testifying to prior acts for character
o 404(b)(2) can bring in prior acts for opportunity  proof must be suff. To support a finding
that Joe drove fast w/ Chris (even if it was only one time it is suff. To let in)
42.  in MacIntyre seeks to prove Kerry’s habit of misplacing jewelry through the general testimony of
Kelly. Any objection? Consider whether the P may ask Kelly to describe the incident recounted in Kelly’s
disposition testimony in order to prove the “habit.”
 403 objection  misleading the jury/unfair prejudice -- this is hard to win
 offered for legitimate purpose (habit) but jury could take it and run with it
 Prior acts evid – 404(b) keep it out but let it in for foundation for proving habit
 Not going to let it in as habit
o Too close to character
 Argue to let it in under prior acts
o 404 – bring it in to show Mrs. E’s knows of these previous instances
o 1 prior act can show more probable than w/out that shouldn’t have jumped to conclusions or
was unreasonable
o only need 1 instance to show knowledge or unreasonable when making conclusion
 This could rebut Ross’ qualified immunity defense if he knew of her habit
43. P in MacIntyre seeks to prove that the letter from Taylor to Ross was sent. First, argue relevance.
44. Easterfield denies receiving it. Taylor says that the church secretary sent the letter. Assume the
secretary has no specific recollection of sending the letter. Consider whether the P is stuck. (did #43 and #44
together in class)
 Std is more probable than w/out
 Mr. E knew she was sensitive and then Mr. E’s statement to Marlow and the loan company was
malicious and unreasonable – but its likely this sensitivity is not relevant
o Maybe relevant for damages.
 Under 406 (routine practice use more than habit prong) – argue routine practice of sending letter is
more probable than not sending this letter:
o 1. Written;
o 2. Sent
o 3. Infer received and read
SPECIFIC EXCLUSIONS
 Rules 407 - 411  policy based exclusions – there is evidence that has a relevance to a material fact
but it is excluded due to policy based rationales:
o 1) Excluded b/c the truth-finding process gets us to the truth without this evidence
(truthfinding process functions better)
o 2) Social & public policy – are being served want to encourage some primary and real world
conduct even though you are losing some truthful information
 Rule 407. Subsequent Remedial Measures
o When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
 Negligence;
 Culpable conduct;

19
  A defect in a product or its design; or
 A need for a warning or instruction
o But the court may admit this evidence for another purpose, such as impeachment – or if
disputed – proving ownership, control, or the feasibility of precautionary measures.
 Rule 407 addresses evidence of remedial measures taken after an event that has caused harm or injury.
 Policy argument for Rule 407 is that admitting evidence of subsequent remedial measures would
discourage potential s from taking precautions that are in the public interest
 Ex. of remedial measures: repairs, design changes, new or amended safety regulations, warnings to
users, product recalls, new or amended instructions, disciplinary action against the employee causing
the harm, closing the particular geographic area which was the site of injury
 Business enterprises are aware of the principle embodied in 407 and are likely to act in reliance upon it
 Public policy rationale is countered by the fact that there will probably be an incentive to make
changes after an accident/injury occurs because failing to do so could lead to serious consequences
should another accident or injury occur – ex: punitive damages may be assessed for failing to correct a
condition of which the party is now aware
 Assumption that s would not make changes w/o 407 is doubtful – they are likely to make them
anyway
 Whether or not Rule 407 makes it more likely that safety measures will be taken – the rule finds other
support in the fact that the probative force of evidence of post-accident remedial measures is usually
weak
o Proponent of remedial-measure evidence is attempting to raise the inference that subsequent
remedial steps were taken because the actor thought the prior condition was hazardous or
harmful
 Changing the model of a car does not mean this is an admission that the car was bad before
o “World getting wiser does not mean it was foolish before”
 The possibility exists that the person taking remedial steps was exercising extraordinary caution to
avoid any possibility of future injuries – this would not necessarily mean that their action is a
recognition that the prior condition was a dangerous one
 407  not allowed to prove liability  “if disputed”  B can dispute this in his testimony and the ct
may admit the evidence as long as it is relevant and doesn’t have unfair prejudice (403)
 407 is used a lot in products liability cases
o The change/measures cannot occur after the accident  this is what is prohibited
 407 is not consistently used – not all states have adopted this federal rule
45. Assume that Ross had a serious discussion w/ his wife in the presence of Kelly a week after Jesse left their
employ. During that discussion he said, “From now on under no circumstances are you to discuss missing
jewelry or anything else you cannot find w/ the house staff. No accusations…no questions…nothing. Come
to me and me alone about such problems.” P offers to prove the conversation. Argue the objection.
 This is excluded by 407 – this remedial measure does not make it less likely that the event would not
have occurred b/c Mrs. E did go to Mr. E the morning of and he still accused Jesse
 Made the change – it is relevant – goes to Ross’ knowledge
 Excluded b/c trying to prove culpable conduct
o Has to be a remedial measure if in place at that time would have changed something – this has
change has nothing to do w/ those events b/c exactly what did on date of event
46. Assume that Joe made bail while awaiting his trial. During the time he was out of jail (without telling his
lawyer, who was not pleased) he began attending a weekly support group at a local community center called
“Controlling Your Rage: Practical Techniques.” Argue admissibility.
 Would be excluded bc this is a subsequent remedial measure – that would have made it less like that
Joe killed Leslie (Cts would ques whether going to anger management makes it less likely that he
would kill wife)

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 o Not alleging that Joe was negligent; alleging killed wife  this speaks to culpable conduct
 This is a 104(a) question  admissibility  if it fits win rule
Rule 409. Offers to Pay Medical and Similar Expenses
 Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury.
 409 incentivize ppl to help ppl out (incentives for humane acts)  narrowed to medical & hospital
bills, and similar acts
 Collateral statements – “the accident was all my fault, I will pay your medical bills”  409 excludes
that I will pay your medical bills, allows the accident was my fault
Rule 411. Liability Insurance
 Evidence that a person was or was not insured against liability is not admissible to prove whether the
person acted negligently or otherwise wrongfully. But the court may admit this evidence for another
purse, such as proving a witness’s bias for prejudice or proving agency, ownership, or control.
 411 – not having insurance doesn’t make you more careful – moral hazard, whoever pays insurance
has an incentive (this is not a good inference)
 Inference: the person who has insurance acts less careful
 Purpose: just b/c you have insurance doesn’t mean that you are not avoiding the risk (your premium
will go up)
 Policy: ppl who have insurance will insure that ppl who are harmed and made whole
 Rule doesn’t apply when offered for: proof of agency, ownership control, bias/prejudice of a witness
o We don’t like the moral hazard
o Trying to prevent the inference that can’t bring in insuredness to show negligence
o There is an exception in 411 to prove a witnesses’ bias
 You can use 411 to show other things such as motive
51. (a) consider the admissibility under Rule 411 of the insurance policy that Brooke had on Leslie.
(b) Assume that the homeowner’s insurance policy that Easterfields had in effect on July 17, excluded
intentional torts. Defamation is an intentional tort. Consider the admissibility.
 (a) the evid. is not excluded by Rule 411
o 411 prohibits evid if a person was/not insured against liability
o life insurance is not being insured against liability
o can admit this evid for another purpose- under exception- to prove Brooke’s motive (“such
as” wording means list of other purposes is not complete)
 (b) can bring in evid. that the homeowner’s insurance didn't cover intentional torts- cant bring in evid
that had insurance or DIDN'T HAVE insurance (to show not neg.)
52. Assume that the homeowner’s policy does cover intentional torts, and Paul Pirro, the investigator who
obtained the statement of Reeve Winsor, testifies that Winsor carefully went over the statement to make sure
it was accurate before signing it. Winsor tells a rather different story. P seeks to reveal the existence of the
liability policy on cross-examination of Pirro. Permissible?
 Can you cross-examine Pirro to reveal the existence of the policy?
 This is not a coverage question- of has insurance or not
 Pirro (insurance co. agent)- the insurance company has an int. in the case bc they don't want to pay out
the insurance proceeds
o If Ross isn’t liable then the co. wont have to pay
 Pirro- works for the insurance co. therefore he has a bias as a witness
o Exception of 411- ct may admit this evid. for another purpose- witness’s bias
 Motivated to testify a certain way and act a certain way
Rule 408. Compromise Offers and Negotiations

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(a) Prohibited Uses. Evidence of the following is not admissible – on behalf of any party – either to prove or
disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction:
 (1) furnishing, promising, or offering – or accepting, promising to accept, or offering to accept – a
valuable consideration in compromising or attempting to compromise the claim; and
 (2) conduct or a statement made during compromise negotiations about the claim – except when
offered in a criminal case and when the negotiations related to a claim by a public office in the exercise
of its regulatory, investigative, or enforcement authority
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.

 Truth-finding process: when you settle or try to settle and you aren’t admitting anything
 Public policy: if we didn’t encourage settlement – the dockets will be overflowed
o We want to encourage ppl to settle disputes before they go to court
 408(a) – there needs to be a dispute a/b the amount in question – if there is no dispute then 408(a) does
not apply
o “The accident was my fault, send me the bill and I’ll pay” – not excluded by 408(a)
o Can’t use 408(a) to prove liability, validity or invalidity of the claim or impeachment by prior
inconsistent statements / can’t use for the fact that you rejected b/c you are not liable / can’t
use for statements made in the course of negotiations (except when offered in criminal cases
and the negotiations related to a claim by a public officer or agency in the enforcement
authority)
o Can’t
 408(a)(2)  when we talk a/b negotiations it is referring to any claims/any settlement
o (1) A v. X -- settles before trial  this info cannot be brought in as evidence
o (2) A/B v. X – A claims settle  A’s settlement w/ X cannot be brought in as evid. w/ B v.
X
o (3) A v. X settles – B v. X  can’t use A v. X settlement in B v. X
o (4) Exception in 408(a)(2)  SEC v. Corp  settlement negotiations the CEO was involved
 Then U.S. v. CEO – statement of negotiations from before is admissible
 In criminal case – exception negotiation from agency (SEC) – public office
 Offers of settlement and statements made during compromise negotiations a/b the claim are excluded
by 408(a)(2)  look at problem #47 [can get it in as exception to show witness bias/prejudice]
 408 does not require the exclusion of any evidence that was otherwise discoverable b/c it was
presented in the course of compromise negotiations (but it could become a 403 argument)
 #48  you can ask the loan company if Mr. E told them to prosecute Jesse criminally
o 408 – does not bar you to use info you find during negotiations
 408(b) the protective provisions of the rule do not apply when evidence concerning a compromise is
offered for purposes other than to show that a claim or defense is weak -- such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
o Ex: P sues A, a truck driver, and B, the truck company. Prior to trial, P and A settle P’s claim
against A, and A agrees to testify for P in his trial against B. After A testifies, B could
disclose A’s possible bias by introducing evidence of his (A’s) compromise (i.e., his financial
relationship) with P. See LCS pg. 125 for example.
47. In ultimately unsuccessful settlement negotiations in MacIntyre, the D’s attorney said: “So, Easterfield
despises your client and would like to see her suffer over this. That’s why he contacted the loan co… so
what?” Easterfield then made an offer of $60,000, which was rejected. Assume that Easterfield’s lawyer has

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the authority to make admission of liability? Is the statement admissible if offered by the P to show malice?
Any other theory of admissibility?
 Does it matter that first made comment then made settlement offer? NO bc 408(2) states conduct or
statements made during compromise negotiations
o This statement happened during the negotiations therefore it is prohibited
o Just needs to be an attempt to compromise
o The common law used to required that the statement be intertwined with the neg. offer- but
this is no longer required
 This info could get in as an exception to show witness bias or prejudice
o Bias- show Ross disliked Jesse- this would give him a motive to lie on the stand to discredit
Jesse
o His testimony is questionable
48. P seeks to inquire on Easterfield’s cross-examination into his attempt to convince the loan company to
prosecute Jesse criminally, contending that it provides evid. of malice, which is relevant both to the qualified
immunity defense and to punitive damages. Defense objects under Rule 408, asserting that during settlement
negotiations Easterfield offered to drop those efforts if she would accept $10,000 to dismiss the case.
 Could you ask Ross on stand if tried to convince the loan co to prosecute Jesse?
 408 does not bar info that you learned in negotiations provided that you are not using their statement
from neg.- you would have to find a diff source for the info
o call loan co. and ask to get this info. directly
o if also got info from somewhere else then allowed in
SEXUAL ASSAULT
 412 – 415 – these FRE makes it easier for the prosecution to win – increase the use of evidence against

Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition.
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged
sexual misconduct:
 (1) Evidence offered to prove that a victim engaged in other sexual behavior; or
 (2) Evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
 (1) Criminal Cases. The court may admit the following evidence in a criminal case:
o (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that
someone other than the  was the source of semen, injury, or other physical evidence;
o (B) evidence of specific instances of a victim’s sexual behavior with respect to the person
accused of the sexual misconduct if offered by the  to prove consent or if offered by the
prosecutor; and
o (C) evidence whose exclusion would violate the ’s constitutional rights.
 (2) Civil Cases. In a civil case, the ct may admit evidence offered to prove a victim’s 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. The ct may admit evidence of a victim’s reputation only if the
victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
 (1) Motion. If a party intends to offer evidence under 412(b), the party must:
o (A) file a motion that specifically describes the evidence and states the purpose for which it is
to be offered;
o (B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
o (C) serve the motion on all parties; and
o (D) notify the victim or, when appropriate, the victim’s guardian or representative.

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  (2) Hearing. Before admitting evidence under this rule, the ct must conduct an in camera hearing and
give the V and parties a right to attend and be heard. Unless the ct orders otherwise, the motion, related
materials, and the record of the hearing must be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim’ includes an alleged victim.
 412(a)(1) & (a)(2) EXCLUDES THIS TYPE OF EVIDENCE:
o Promiscuity
o Pregnancy
o Using contraceptives
o Having children
o How the V dresses/lifestyle
o Chastity
o Venereal disease
 Under 412(a)(1) & (a)(2) – the case must “reasonably characterized” for alleged sexual misconduct
(sexual assault, rape, sexual harassment)
 A statement “she is promiscuous” – IS ADMISSIBLE b/c it is relevant to the truthfinding process
 412(b)(1) – exceptions to the above exclusions in criminal cases
o Victims prior acts w/ someone else to show  isn’t guilty; OR
o Victims prior acts w/  to show consent
 412(b)(1)(c) – very narrow  ensures that evidence of sexual conduct/predisposition can be
admissible if the s constitutional right is in question
o  has the constitutional right to put on a defense
 412(b)(2) – in a civil case
o Default here is that evid is more likely admissible (opposed to 403 which assumes the evid is
inadmissible
o Truth based rationale – by keeping this evidence out we only allow the jury to form a decision
NOT based on a stereotype!
 We don’t want juries to make decisions off of stereotypes – victims should be
afforded protection of the law
o Public policy – we want victims to bring their stories and to know the law will protect them
 413  you only need to show that it is relevant
o If  committed a prior sexual assault, the prosecution can offer this for evidence
o 1. The prosecution must prove that  committed the prior act; and
o 2. That the prior act actually occurred
o The std for this is – sufficient proof to support a finding [104(b) conditional relevancy]
o Defense side will try to defeat the evidence that he did the crime with evid that he didn’t do it
o If you have a prior unconvicted act, the prosecution will want to bring the victim of the prior
act on the stand and cross-examine – BUT the cross-examination will be limited by 412(a).
 412(a) – protects any alleged victim from evidence a/b her behavior/past sexual
behavior (not just the victim in the current case)
o Then you can argue under 403 if you can’t win under that it is irrelevant
o 403 gives  a chance to keep out prejudicial evidence
o Evidence can be excluded under 403 if the acts are too dissimilar/20 yrs apart/not closing
related and therefore will create unfair prejudice that substantially outweighs the probate
value
o If you rely too heavily on prior acts it will be hard to prove your current case b/c the jury will
think that you do not have enough evidence to prove your current case
Rule 413. Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a  is accused of a sexual assault, the ct may admit evidence that
the  committed any other sexual assault. The evidence may be considered on any mater to which it is relevant.

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(b) Disclosure to the . If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the ,
including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days
before trial or at a later time that the ct allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or
under state law (as “state” is defined in 18 U.S.C. § 513) involving:
 (1) any conduct prohibited by 18 U.S.C. chapter 109 A;
 (2) contact, without consent, between any part of the ’s body – or an object – and another person’s
genitals or anus;
 (3) contact, without consent, between the ’s genitals or anus and any part of another person’s body;
 (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on
another person; or
 (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)-(4).
Rule 414. Similar Crimes in Child-Molestation Cases.
(a) Permitted Uses.
 In a criminal case in which a  is accused of child molestation, the ct may admit evidence that the 
committed any other child molestation. The evidence may be considered on any mater to which it is
relevant.
(b) Disclosure to the .
 If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the , including
witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15
days before trial or at a later time that the ct allows for good cause.
(c) Effect on Other Rules.
 This rule does not limit the admission or consideration of evidence under any other rule.
(d) Definition of “Child” and “Child Molestation”. In this rule and Rule 415:
 (1) “child” means a person below the age of 14; and
 (2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18
U.S.C. § 513) involving:
o (A) any conduct prohibited by 18 U.S.C. chapter 109 A and committed with a child;
o (B) any conduct prohibited by 18 U.S.C. chapter 110;
o (C) contact between any part of the ’s body – or an object – and a child’s genitals or anus;
o (D) contact between the ’s genitals or anus and any part of a child’s body;
o (E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical
pain on a child; or
o (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)---(E).
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation.
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child
molestation, the ct may admit evidence that the party committed any other sexual assault or child molestation. The
evidence may be considered as provided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party
against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party
must do so at least 15 days before trial or at a later time that the ct allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

RELEVANCY REVIEWED
 Relevancy is always the starting point in any evidence question – then you think about it if it is
excluded/or allowed under other rules
57. In MacIntyre, argue the relevance of Jesse’s attempts to borrow $ in June and July YR-2. (116-117)
 Yes its relevant to Ross’ truth defense b/c it makes it more probable that Jesse did steal the brooch

25
 o 104(b) – sufficient to support a finding std. as long as Ross was aware of Jesse’s $ issues
59. Argue the relevance of Easterfield’s encounter with Kelly Emerson at the time Kelly was eavesdropping
outside the Easterfield’s bedroom. Each side should argue its relevance for its case and its irrelevance for the
other side’s case. How can the same piece of evidence be arguably relevant for both sides? (125)
 Kelly was eavesdropped on the morning of July 17 – can you use prior acts of Kelly eavesdropping
before to show that she eavesdropped now?
o This would be excluded b/c its propensity (she was an eavesdropper before so shes an
eavesdropper now)
o Can be admissible under 404(b)(2) as knowledge b/c it can show that the Easterfields should
have known Kelly was listening
o Defense: Mr. E was not unreasonable in making his statement b/c Mr. E scorned her before
and told her not to do it again so he was reasonable in making his statement
61. Argue the relevance of the fact that Ross Easterfield is one of the richest men in the city. Argue the
relevance of the fact he is rumored to be one of the richest men. (107, 117, 160)
 a) Relevance of the fact that Ross is one of the richest men in the city
o It is relevant for punitive damages b/c we must know how much he has to determine how
much will punish him
 b) Relevance of the fact that Ross is rumored to be one of the richest men in the city
o Ross can show Jesse’s motive to bring a law suit against him
o Jesse can show that Marlow & ABC employment and the loan company actually listened to
Ross b/c he is rumored to be rich
o Can also affect Marlow & Winsor’s testimony b/c Ross will have influence on them
WITNESSES
Rule 601. Competency to Testify in General
 Every person is competent to be a witness unless these rules provide otherwise. But in a civil case,
state law governs the witness’s competency regarding a claim or defense for which state law supplies
the rule of decision.

 Witness competency is governed by state law in Federal cases due to Erie (diversity case)
 How to Evaluate Witness Testimony
o 1. Perception – 1st hand knowledge
o 2. Memory – how well they remember the story
o 3. Narration – how well they tell the story
o 4. Sincerity
 Adversary Testing / How Witnesses Testify
o 1. Demeanor – observe/comfort
o 2. Oath/affirmation  603 witness must give oath [an oath is to God or higher
power/affirmation is a promise to tell the truth]
o 3. Cross-examination  expose biases/imperfections/inconsistencies
o FRE 603 – solemnizes the proceeding
Rule 603. Oath or Affirmation to Testify Truthfully
 Before testifying a witness must give an oath or affirmation to testify truthfully. It mist be in a form
designed to impress that duty on the witness’s conscience.
Rule 602. Need for Personal Knowledge
 A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of
the witness’s own testimony. This rule does not apply to witness’s expert testimony under Rule 703.

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  FRE 602 – witness can prove they had personal knowledge through testimony by testifying that she
was there/what she saw etc
o The std is 104(b) – sufficient to support a finding
o But the witness’ personal knowledge can be attacked and this will go to the weight of the
evidence
o Can only testify a/b 1st hand knowledge – sufficient info that the witness has personal
knowledge (where she was; what did she see)
o Can’t use derivative knowledge – don’t speculate – don’t repeat what someone told you or
what you read  “I know it b/c I hear it from someone else” – only what witness knows first
hand is admissible
Rule 701. Opinion Testimony by Lay Witnesses
 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to on that is:
o (a) rationally based on the witness’s perception;
o (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;
and
o (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule
702.

 Limitation (a) is the familiar requirement of first-hand knowledge or observation

 Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues
 Testifying must be a rationally based perception
 You can question the inference that the witness has – whether it is accurate or not
 Inferences are OK as long as they are based on perception of a witness
Rule 704. Opinion on an Ultimate Issue
 (a) In General – Not Automatically Objectionable.
o An opinion is not objectionable just because it embraces an ultimate issue.
 (b) Exception.
o In a criminal case, an expert witness must not state an opinion about whether the  did or did
not have a mental state or condition that constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.

 Limits on witness’ ability to testify on the ultimate issue

 701 must be satisfied before going to 704 – it must be rationally based and helpful to satisfy 701
 If the evidence is not opinion – can use 403
 704(a) – ordinarily you can’t object if a lay person is testifying about the ultimate question of fact
 704(b) – exception in criminal cases – expert opinions cannot testify a/b the  is or is not insane /
whether the  had the requisite intent/mental state
o Cannot take the next step to testify on the requisite mental state
o You can give the condition for the diagnoses but the expert cannot vouch for the veracity
(accuracy/legitimacy) of V’s testimony (whether the  has state of mind)
255. Pat Slyviak: “Yes, I did tell Bradley that my gut told me that Mitchell didn’t do it. Frankly, I suspected
the old lady, but that’s not the way the momentum of the investigation went, and Bradley was calling the
shots by then. I just think Michelle was sincere about his having nothing to hide” (20)
 Should be excluded b/c it does not satisfy 701  Slyviak just telling the jury what to think
242. Quinn Washington: She [Leslie] said she had received a letter from him that day and that he made
terrible threats against her and her mother in the letter. She seemed to be frightened of Joe.” [Ignore, for the
present, the hearsay problem of Quinn’s report what Leslie said] (44)
 Should be admitted under 701 b/c Quinn could have seen the threats or Leslie could have told her
 Leslie told Quinn “I’m frightened of Joe” [this is hearsay which is a derivative fact]

27
  Asking Quinn to testify about Leslie’s metal state – that would be excluded
243. Pat Slyviak: “As I exited our room I saw Mitchell walking very fast toward the front door of the station.
He was looking around furtively like he was trying to sneak out. This was before we had told him he was
under arrest. I’m sure he was making a run for it; you have a sense about these things after being on the
street as long as I have” (20)
 “Walking very fast” – This is rationally based on Slyviak’s perception
 “Toward the door” – defense counsel will say we don’t know where Joe was walking – he could have
been walking toward the water fountain/bathroom – then the prosecution will have Slyviak testify what
is around the door
o Must have Slyviak testify how close Joe was to the door
 “Making a run for it” – inquire into Joe’s mental state – excluded
 “You have a sense of things after being on the streets as long as I have” – this is excluded by 701 b/c
you can’t bring in expert testimony – you have to bring it under 702
250. Quinn Washington: “I’m sure if Mrs. Thompson objected to Leslie’s marrying Joe, she did this out of a
sense of conscience and duty to warn Leslie and to advise her for her own good (43)
 Excluded b/c this is character of Mrs. Thompson and this is speculation – Quinn doesn’t know
251. Chris Ravenna: “I think she [Brooke Thompson] had such a hatred of Joe that, in her highly emotional
state, she wanted to see Joe kill his wife. Her identification springs from her emotional bias toward him. She
saw what her emotions wanted her to see” (55)
 Not admissible b/c Chris doesn’t know Brooke’s mental state
247. Brooke Thompson: “The he said to me: you are an evil person. You turned Leslie against me. You broke
up this marriage, and I’ll see that you pay for this. You’ll be to blame for whatever happens now.” I cannot
swear to the exact words used that night, but I do remember the substance of what each said”
 Under 701 this is permissible b/c it is rationally based on Brooke’s perception
o It is okay not to use precise/exact words here but in a defamation/oral K case the exact words
to matter
254. Jesse MacIntyre: “I’ve tried to get other jobs, at least ten or twenty, and nobody will hire me with Mr.
Easterfield’s bad character reference” (113)
 Not permissible b/c Jess does not know this firs hand
 She does not have proof that Mr. Easterfield gave a bad reference to 10 or 20 ppl
WITNESS CANNOT TESTIFY ABOUT SOMEONE ELSE’S MENTAL STATE!!
Fundamental distinctions
 Inferences are made by the JURY
o Jury is allowed to speculate (they have to)
o Factfinder = jury/judge
 Arguments are made by the ATTORNEYS
 Testimony is made by the WITNESSES
o Limited by what the witness knows first-hand
o Attys can help the arguments then persuade the jury to draw inferences
 The flipside for non-witness testimony (documents etc) are governed under 902 (Evidence that is
Self-Authenticating)
o Self-authentication means that the thing is authentic to be admissible – if a reasonable jury
can find that this is authentic. The opponent may bring the evid contesting authenticity but it
doesn’t keep it out (it is for the jury to decide)
 When we start getting into the presentation of evidence:
o 1.  presents case/chief:
 Witnesses: direct/cross/re-direct/[re-cross]/[sur-direct]
o 2.  present case/chief
o 3.  rebuttal

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  Discovery of truth
o Live witnesses
o Oath
o Cross-examination
 Rule 611(c) – allows for leading questions
o Leading questions should not be used on direct examination except as necessary to develop
the witness’s testimony. Ordinarily, the court should allow leading questions:
 (1) on cross-examination; and
 (2) when a party calls a hostile witness, an adverse party, or a witness identified with
an adverse party

IMPEACHMENT
Rule 607. Who May Impeach a Witness
 Any party, including the party that called the witness, may attack the witness’s credibility.

14 Aspects of Credibility You May Attack [** # 1-9 = non-collateral categories – can use extrinsic or non-
extrinsic evidence to impeach**]
 1. Perception (non collateral)
o The way you perceive real world events
 2. Oath (non collateral)
o Witness’ ability to understand the obligation to testify truthfully
 3. Communication (non collateral)
o Communication b/w witness and parties/witness & atty
o About being coached before trial – but this isn’t brought up b/c we know they’ve been
coached
 4. Recollection (non collateral)
o When you are at trial – 5 yrs after the event occurred – how do you recall what you saw
 5. Mental Illness (non collateral)
o Mental illness cases interference with the above 4
 6. Bias [for] (non collateral)
o Witness has an emotional disposition for one party
o Bias is NEVER COLLATERAL – always allowed extrinsic/non-extrinsic
o Always key area to cross-examination
 7. Prejudice [against] (non collateral)
o Witness has an emotional disposition against a party
o Usually goes together with bias
 8. Interest (non collateral)
o Witness has an interest in the outcome of a case (witness is  or )
o When someone has entered in a plea agreement with gov’t – testifying against  to get their
sentence reduced
 9. Corruption (non collateral) REQUIRED
o Takes interest + communication to extreme
o Witness has been bribed or threatened in a certain way
o Extrinsic evidence is almost always required
 10. Prior inconsistent statements (either)
o Witness testified to X on stand, but said Y at some other point in time
o She’s saying inconsistent statements – we don’t know / don’t care which one is true – all we
want to show is that the witness is not reliable, not a credible witness
 11. Contradiction (either)

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 o Similar to # 10 – witness said X on stand but here is contradictory evidence showing Y (not
witness’ statement)
o How do we decide if #10 or #11 are collateral or non-collateral?
 What is the prior inconsistency/contradiction about? (can be collateral or non-
collateral)
 If its central to the case comes in under non-collateral
 If its not central to the case comes in under collateral
o Difference b/w prior inconsistent statements & contradiction:
 Contradiction is anything that contradicts testimony/prior statements/documents by
documents/other witness’ testimony…it contradicts by anything that is not said by
the witness
 Prior inconsistent statements only occurs by statements made by witness
 12. Character: Conviction (FRE 609) (either)
o The fact that someone has been convicted of a crime in the past can be used to show that the
witness is not credible/does not tell truth
o Can prove by extrinsic evidence – non-collateral
 13. Character: Reputation/Opinion (FRE 608(a)) (non collateral)
o 608(a)(1) - Can attack or bolster character for truthfulness only thru reputation or opinion
(extrinsic by definition)
o 608(a)(2) - Cannot accredit for truthfulness unless that witness has already been attacked
 14. Character: Specific instance of conduct (FRE 608(b)) (ALWAYS collateral)
o No extrinsic evidence of prior acts of truthfulness/untruthfulness to show character but on
cross-examination – untruthful acts that are probative can be inquired into (no extrinsic evid)
o Specific instances of conduct/act to show the witness’s character for truthfulness or
untruthfulness
o 608(b)(1) – ask the witness on cross about specific instances of truthful or untruthful conduct
by him (lies or truths he has told)
o 608(b)(2) – specific instances of conduct by someone else to show truthfulness or
untruthfulness of someone else whose character the this witness has testified about
 When a witness has been impeached their testimony is seen as more negative (attack) or positive
(accredited)
 Way to impeach witness on matters 1-14 above:
o Non-collateral (within the issue, central to the case):
 Extrinsic; or
 Non-extrinsic
o Collateral (not central to the case):
 Non-extrinsic evidence only (cannot use extrinsic evidence)
 Anything the witness says while sitting on the stand = non-extrinsic
 Anything that witness says while not sitting on the stand = extrinsic (e.g., documents), another
witness (X) talking a/b other witness (Y), affidavits
 Extrinsic evidence is only evidence that is not said by the witness while on the stand/anything that
does not come out of witness’ mouth while on stand
Examples
 Tom (target) for 
o Direct: testimony
o Cross examination: Tom untruthful act [FRE 608(b)(1)]
 Tom can be asked about specific instances of his untruthfulness under 608(b)(1) on
cross only – if T denies it – you can’t complete the impeachment (cant use extrinsic)
 Ira (impeachment) for 

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 o Direct: Tom rep/opinion for untruthful -- FRE 608(a)
o Cross examination:
 Ira untruthful acts – FRE 608(b)(1)   can ask Ira about Ira’s untruthful acts
 Tom truthful acts -- FRE 608 (b)(2) – can ask specific instances of conduct of
Tom’s truthful acts
 Andrew (accrediting) for 
o Direct: Tom rep/opinion for truthfulness
 Accredit Tom’s character for truthfulness; in order for Andrew to testify, Tom’s
charac has to be called into Q; can ask Andrew’s opinion that Tom is a truthful
person
o Cross examination:
 FRE 608(b)(1) – ask about Andrew’s untruthful acts; lies he has told (specific
instances of untruthful conduct)
 FRE 608(b)(2) – ask Andrew about specific instances of Tom’s untruthful conduct
 FRE 608(b)
o No extrinsic evidence allowed
o You are stuck with the answer the witness gives
o Cannot bring in other evidence
o Can inquire into the issue if probative but cannot bring in affirmative evid
o Cannot accredit for truthfulness/untruthfulness unless the witness has testified first
o Cannot attack for truthfulness unless character for truthfulness has been attacked first
 608(b) – only allows specific instances of conduct for truthfulness v. untruthfulness [use the same test
for 404(b)]
o (1) Acts probative of truth – FRE 104(a)
 Is the act probative of truthfulness or untruthfulness?
 If no, then not admissible under 608(b)
 Is there a difference b/w stealing and being dishonest? If someone stole smth doesn’t
mean they lied about it – usually dishonest acts (stealing) are included to show
untruthfulness (lying a/b stealing)
o (2) Acts actually occurred – FRE 104(b)
 Did the person commit the act?
 104 – evid sufficient to support the finding (intent to steal?)
o (3) FRE 403 balancing
 Dishonest v. False acts
o Are acts probative of truth? 104(a)
 1. Any bad act?
 Too broad
 2. Clearly probative
 Affirmative lies / false acts
 3. Middle
 Dishonest acts
 Omission
 Failure to provide some information
 Infidelity
 Illegal immigration
 Perjury
 Fraud
o Shoplifting is a dishonest act b/c she did not affirmatively lie about it
 If she responded there is nothing in the bag – this is a false act

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  Stole but never said anything about it
o Depends if the ct. holds 608(b) means dishonest acts or just false acts
 Depends if it is probative of the truth
 Impeachment generally
o In non collateral category - can impeach by extrinsic or non extrinsic evid  only
requirement is that the witness you want to impeached HAS TESTIFIED ALREADY!
o Impeachment is determined by relevancy – anything that has a tendency to make that witness
more or less credible (little mistakes that might not have been intentional can add up)
o If an issue is collateral and the witness denies it on the stand – then you can’t complete the
impeachment
o Can only ask about the specific instances of conduct for truthfulness/untruthfulness – only on
cross (not re-direct) and the conduct has to be attacked on truthfulness in order to accredit
(can accredit on bias etc but not truthfulness until its being attacked)
o How do you deal with if evidence is allowed for impeachment purposes but not substantive
issues?
 You make a jury instruction
65. Argue the admissibility of Chris Ravenna’s testimony in Mitchell concerning his ability to see Joe Mitchell
as Joe left the gun shop on September 10. [54) / 66. Consider the admissibility of Slyviak’s testimony in
Mitchell concerning his ability to see his partner from the porch of the Thompson home on Sept. 10 [21]
 This is impeachment for perception
 Argue relevancy: it is extrinsic evidence on a non-collateral matter
 In order for Slyviak’s testimony to be admitted the defense would have to question Brooke’s
perception or they could put Chris on the stand
 Objection: the circumstances in 65 and 66 were different – raining weather; Brooke was emotionally
charged b/c her daughter was just shot – the evid will still be admitted this just speaks to the weight of
the evidence
 If Brooke’s perception is not questioned – Slyviak’s testimony would be excluded b/c Brooke’s
perception was not attacked
 If your theory is that Brooke is the killer, then her perception will not be relevant
67. Mrs. Easterfield will not testify for the  in MacIntyre. Argue whether Kelly Emerson may testify that
Mrs. Easterifled had an alcoholic beverage on July 17. [127] / 68. Assume now that Mrs. Easterfield does
testify. Argue whether she may be asked on cross-examination whether she had an alcoholic beverage for
breakfast. If she denies having the drink, may Kelly Emerson testify that she did indeed have he drink? [127]
 This speaks to credibility – Mrs. E’s recollection/perception if she was intoxicated will be less credible
 : this may explain why she lost the brooch
 : but it doesn't matter why she lost the brooch, not central to case
 403 argument to exclude evid = unfair prejudice – but the probative value is not outweighed here
 If Mrs. E does not testify – it cannot come in
69. In Mitchell, assume Raleigh Porter gives testimony favorable to Mitchell. Consider the admissibility of
her having allowed Joe to fall behind on his rent while still living at the boarding house. [47]
 This is bias – Porter has a bias toward Joe
 This will cause her to shade her testimony and this will question her credibility as a witness
 Bias is never collateral – therefore you can introduce extrinsic evidence (e.g., call the bookkeeper of
Porter’s financial records)
70. In MacIntyre, assume that Lee Marlow gives testimony favorable to Ross Easterfield. Argue the
admissibility, on cross-examination, of Marlow’s deposition testimony concerning the fate of the previous
executive director of the club. [163]
 This is bias – Marlow will be scared of getting fired so he would testify favorably toward Mr.
Easterfield

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  It does not matter if the rumor is actually true; it only matters that Marlow thinks it is true – therefore
he will testify favorably for Mr. E
 If Marlow denies thinking the rumor is true – you can bring in extrinsic evidence b/c bias is never
collateral
 Does this have substantive relevancy in the real world drama as well?
o Yes, Marlow does not want to hire Jesse b/c he didn’t want to get fired by Mr. E
o If evidence is admissible for both purposes [impeachment/substantive relevancy]  then in
closing arguments you can persuade the jury
Problems # 74, 75, 76, 77
 74) Cross examine Kelly to say that Mrs. E is a good person
o 608(a) objection b/c Mrs. E’s character has to be attacked for truthfulness first
o On direct – Kelly never talked about Mrs. E’s character for truthfulness therefore cannot
testify about Mrs. E’s character for truthfulness
 Kerry does testify in  case/chief – but nothing about truthfulness was attacked
o Simply being cross-examined a/b untruthfulness will not allow untruthfulness incident to be
questioned
o 608(b) – specific instances of conduct cannot be testified a/b on direct or re-direct – only on
cross-examination!
 Jesse calls Kelly to stand. Jesse wants to ask Kelly that the other help staff thinks Mrs. E is an
untruthful person
o This is permissible under 608(a) b/c you are questioning on direct
 Jesse’s rebuttal case – recall Kelly – testify that the staff thought Kerry was something of a liar.
Jesse wants to ask Kelly isn’t it true that Kerry is a liar
o This is admissible under 608(a) as reputation/opinion
o First hand knowledge / establishes Kelly knows reputation
o Kerry is the target witness (Tom) – she already testified so we can impeach her on
truthfulness
o Kelly testifies for the impeaching witness (Ira)
 Kelly still on stand, Ross wants to cross-examine about Kerry’s truthful conduct a/b the lobster
incident (specific instances)
o This could be admissible under 608(b)(2); but then objection would be that under 608(b)(2) it
is not admissible b/c it is not probative of Kerry’s truthfulness – it actually shows the opposite
b/c it shows she was untruthful b/c she covered up for the help staff. This speak to her
character which would show she is a nice person (charac. is excluded)
 Ct can ask about instances – Kelly denies that Kerry took the blame for the lobster incident?
o 608(b) you are stuck with the answer Kelly said on the stand, you can’t bring in extrinsic
evidence
 What if Kelly denies that she lied to Ross about knowing about the lobster incident?
o Specific instance of her untruthful contact 608(b)(1)
 What if Kelly denies that she lied to Ross about knowing about the lobster incident but her
deposition admits that she lied?
o If deposition admits to it – can you offer this evidence in?
 This will come in under prior inconsistent statement
 Doesn't mater which one is true
 Just ask isn’t it true you said this – don't show her the deposition
 If Kelly admits that she lied -this is non-extrinsic evidence (allowed)
 But if she continue to deny it – we cant introduce the actual deposition as evidence
b/c it is extrinsic evidence on a collateral issue.

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76. A) May Reverand Taylor testify that Jesse’s reputation for honesty and veracity is good? B) IF so, on
cross-examination may the  ask Taylor about (1) the incident in which the two $20 bills disappeared from
the collection and (2) her encounter with the T-Mart security official? Argue the propriety of the cross-
examination. [115,140]
 a) Taylor can give this testimony under 608(a) b/c it is about Jesse’s character for truthfulness but
procedurally 2 things must occur first: 1. Jesse must have testified already; 2. Jesse’s truthful
character must have already been attacked
 b) (1) not enough evidence for proof sufficient to support a finding that the money was stolen b/c we
don't know if the $ was actually stolen; (2) we know the act occurred but we don't know if Jesse had
the mental state to steal – therefore this is not probative of truthfulness
Rule 609. Impeachment by Evidence of a Criminal Conviction [Look in pamphlet for 609(c) – (e)]
 (a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
o (1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year (felony), the evidence:
 (A) must be admitted, subjected to Rule 403, in a civil case or in a criminal case in
which the witness is not a defendant; and
 (B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant; and
o (2) for any crime regardless of the punishment, the evidence must be admitted if the court can
readily determine that establishing the elements of the crime required proving – or the
witness’s admitting – a dishonest or false statement.
 (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years
have passed since the witness’s conviction or release from confinement for it, which is later. Evidence
of the conviction is admissible only if:
o (1) its probative value, supported by specific facts and circumstances, substantially outweighs
its prejudicial effect; and
o (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that
the party has a fair opportunity to consent its use.
 How do we get from a criminal conviction to impeachment?
 There is a strong inference w/ 609  that b/c  committed the crime before then he must be untruthful
about the current crime now
 Provable by extrinsic evid – non-collateral
 This usually deters  from testifying b/c they don’t want this information to come out and the jury to
use it against them
o But these past convictions usually come in under 404(b) anyway to show past conduct
o Under 104(b) to satisfy 609:
 Must be true that you pleaded guilty or that you were convicted
  can rebut this by saying they were convinced to plead guilty or that they can still
maintain their innocence
 Under 609  only the conviction comes in, not the underlying facts
o 609 must satisfy 401 (relevancy)
 609(1)(a)(2)  applies to all witnesses, not limited to felonies  all witnesses get treated the same
regardless of the crime
 Crime itself is not a falsity – but the way the person ended up committing the crime is a dishonest or
false act
o Ex: obstruction of justice is not defined by a false act (E.g., lying to the police)
 609(a)(1) -- involves all other crimes provided they were felonies

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 o There is a balancing test but the balance you do is different for criminal  than for all other
witnesses
 609(a)(1)(A) – subject to 403 balancing
 If you can’t get it in under 609(a)(2) then you can get it in under 609(a)(1)(A) [provided it's a felony]
and then it is subject to 403 balancing
 It is better to try to get it in under 609(a)(2) b/c then you are not subject to the 403 balancing in
609(a)(1)(A)
 609(a)(1)(B)  probative value doesn’t have to substantially outweigh, just outweigh. Less restrictive
 609(b)  applies if more than 10 years have passed since witnesses’ conviction
o If you want use an old conviction:
 1) must be admissible under 609(a); AND
 2) must satisfy 609(b)(1) balancing (the default is not to admit past convictions)
 609(a)(2)  dishonest and false acts – no underlying details can be admitted unless contested
o Crime within itself involves dishonesty: theft by fault, perjury – you have to prove that you
lied)
o Could be interpreted that in the course of committing the crime – the  lied or was dishonest
(e.g., lying to the police – obstruction of justice)
 608(b)  allows us to get into the details of the underlying acts  but you can’t mention the
conviction
o If more than 10 yrs has passed – its not admissible unless interest of justice substantially
outweighs the prejudicial effect
 What do you do if you have a specific instance that resulted in a conviction?
o You must pick 609 or 608; cant use both!
 609(a)(1)  can use convictions to impeach as long as it's a felony
80. In Mitchell, Porter testifies for Joe Mitchell. Argue the admissibility of her criminal conviction (receiving
stolen property). [51]
 1st step: must look at 609(2)  is this a crime that involves dishonest acts or false statement? (doesn’t
have to be a felony – 609(a)(1) = “for more than 1 yr” = felony)
o If yes, then it is admissible and you do not need to do 403 balancing
 2nd step: if its not admissible, look under 609(a)(1)(A)  do 403 balancing.
79. Argue the admissibility on Easterfield’s cross of (1) Easterfield’s criminal conviction, (2) the details of the
crime to which he pled guilty, and (3) the circumstances surrounding the reception of the guilty plea.
[MacIntyre, 126 153-54]
 (1) Easterfield’s criminal conviction  can be admissible under 609(a)(2) because fraud is a
dishonest or false statement  do not need to do 403 balancing
 Now look at 609(b)  conviction happened 12 years ago but more than 10 years have not passed since
his probation.
 We must see if probation is confinement under 609(b).
o The courts say that probation is not confinement
 After you do 609(b)  look at 609(b)(1) for the balancing test
o Evidence can only come in under 609(b) ONLY IF you do the balancing in 609(b)(1)
 (2) Can Jesse inquire about the details of the plea deal?
o Under 609 you can only introduce the conviction, not details – therefore, not admissible!
o BUT if Ross contests this issue by saying he did not commit the underlying conviction  this
is a contradiction and it can become admissible and Jesse can inquire  only if this is non-
collateral [central] to the case (which it is not). You can’t bring in extrinsic evidence on
collateral issue.  Can’t bring in the police officer/documents to get info about the plea deal
 You are stuck w/ Ross’ answer about the details of the crime to which he pled guilty

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  But – if Ross denied the conviction entirely, you can introduce the conviction order
under category #12 of ways to impeach and you can use extrinsic evidence.
83.  in MacIntyre is permitted to testify that she was innocent of the attempted armed robbery with which
she was charged. In rebuttal,  seeks to admit the stipulation of Mr. Johnson, MacIntyre’s lawyer during the
robbery prosecution. Argue admissibility. [183]
 Jesse can contest her conviction (testify she was innocent)  Jesse’s conviction will still come in
under 608 but when Jesse contests her conviction it will lessen the weight of the conviction evid.
 Rebuttal  Ross seeks to admit the stipulation of Jesse’s lawyer during the armed robbery
prosecution when Jesse pled guilty “lawyer said that is the evid.”
o attorney said it, but he was speaking on Jesse’s behalf so goes to PIS/contradiction
 Collateral or non-collateral? What is the subject to the PIS?  Whether or not she was innocent to
the armed robbery crime?
o Collateral evid.  no extrinsic evid.
o if just asking Jesse about the statement her lawyer made then its not extrinsic evid.
 Argument not admissible as a PIS
o Her prior statement is not inconsistent w/ Jesse saying she is not guilty?
 Lawyer was not admitting the truth of the evid.  just said this is what the evid. says
85. Argue the admissibility in MacIntyre of Mrs. Easterfield’s abortion offered by :
 a) if Mrs. E has said nothing about the Easterfields not having children on direct;
o This is specific instances under 608(b)  abortion does not speak to truthfulness or
untruthfulness so you can’t ask her about it.
 b) if Mrs. E has testified during introductory testimony that “God hasn’t blessed us” with
children and
o 1)  seeks to cross-examine Mrs. E about the abortion;
 This is a contradiction -- ask about abortion on the stand b/c it is non-extrinsic
evidence
 To argue against the contradiction – use 403 argument – highly prejudicial / this
evidence is not worth it b/c it will be more prejudicial for the jury than probative
 How important is the witnesses’ testimony to the case?
 This will speak to the probate value of the testimony
o 2) after Mrs. E denies the abortion on cross, π seeks to call the doctor who performed
the procedure; [ignore privilege issues]
 Not allowed b/c this is extrinsic evidence on a collateral issue
o 3) Mrs. E indignantly denies the abortion on cross, and  seeks to confront her with her
statements to her husband [ignore privilege issues]
 This is allowed b/c it is a prior inconsistent statement that Kerry made, you can
confront Kerry about this on the stand.
o 4)  wants to bring doctor on stand to show Mrs. E’s prior inconsistent statement to her
husband through contradiction
 Can’t bring it in because it is non-extrinsic evidence on a collateral issue
87. Rev. Taylor is the witness. Argue the admissibility of the conversation b/w Rev Taylor and Ross
Easterfield in which Easterfield told Taylor that he was not willing to employ another young woman from the
St. James Home. For now, ignore privilege issues [138]
 Can’t admit this because it is character evidence
88. Assume that Ross Easterfield is asked on direct why he hired Jesse, and he answers, “My only motive was
pure Christian charity. No good deed goes unpunished, I guess.” Now argue the admissibility of the
conversation as testified to by Rev taylor during ’s rebuttal cases. [138]
 This is admissible b/c it is a prior inconsistent statement while Ross is on the stand

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  Defense argues: they aren’t inconsistent because they are not mutually exclusive – you can say that
Ross wanted credit for hiring Jesse and you can say that he did it out of the goodness of his heart
 You can ask Ross about the prior inconsistent statement on the stand b/c this is non-extrinsic evidence
 If Rev. Taylor is on the stand, can you ask him about this?
o No, because that will be extrinsic evidence on a collateral issue which is excluded
 Gilmore
o Q: Are you a drug dealer?
o A: No
o Q: Weren’t you convicted 14 years ago of drug distribution?
 14yrs ago conviction > 10yrs
 and confinement > 10yrs
 609(b) “if more than 10 yrs have passed since the witness’s conviction or release
form confinement, whichever is later”
o Ct: admits the evidence  applies 609(b)
o The court made 3 mistakes in admitting the evid.:
o (1) ct didn't balance  “its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect” 609(b)
o (2) ct didn't give reasonable written notice of the intent to use it so that the party has a fair
opportunity to contest its use 609(b)(2)
o (3) not crime involving a dishonest act or false statement 609(a)(2)
 so then the ct would be under 609(a)(1) if felony
 ct would have to balance under 609(a)(1)(B) bc witness is a D
o How evid. could have come in another way?
 Contradiction?
 A conviction for drug dealer suggests that he is a drug dealer, however
earlier he said he wasn't a drug dealer
 This evid. makes it more probable than w/out that he is a drug dealer
 Hypo
o  is on trial; testifies on cross and denies that he is a drug dealer. Prosec is trying to bring in
evid of 12 yr conviction of selling drugs:
 Brings it in under 609(a)(1) b/c it's a felony and b/c its not a crime required for proof
of dishonesty
 609(b) – probative value has to subst outweigh prejudicial effect
 Can’t bring it in under 608(b) b/c it doesn’t involve an untruthful act
 But can bring it in for contradiction – if you ask  if he is a drug dealer and he
denied – then could bring it in (its non collateral) – he is lying on the stand now b/c
what he said before contradicts what he is saying now
89. In MacIntyre, Marlow testifies that it was the settled policy of the club not to hire ex-convicts. Argue the
admissibility on Marlow’s cross of Rev Taylors conversation w/ Marlow. Consider 104. Issues. May the 
examine Taylor concerning the conversation w/ Marlow w/o raising it on the cross-examination of Marlow?
[140]
 This is relevant b/c it is a piece of evidence that rebuts Jesse’s claims
 Yes -  can examine Taylor concerning the convo w/ Marlow w/o raising it on cross of Marlow
because he is saying we don’t hire ex-convicts but then he tells Taylor that we want to hire ppl from
the home who are ex-cons
 104(b) – Marlow must know that some of the ppl in the home were ex-cons. This would show a prior
inconsistent statement
 How would you show that Marlow knew?
o Non-extrinsic  you can ask Marlow on the stand

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 o Extrinsic  Bring Taylor on the stand – this is extrinsic which is allowed b/c it is non-
collateral (goes to the fact of consequence of why Jesse wasn’t hired)
94. After Joe testifies in his defense, Chris Ravenna testifies that it his opinion that Joe has a good character
for truthfulness and should be trusted as a witness. May the prosecution cross-examine using any of the
incidents described pgs 29 and 30 of the Mitchell file? [29-30]
 On direct 608(a) evidence – Chris is giving reputation/opinion a/b Joe only if Joe’s good charac. has
been attacked
 608(b)(2) – must be probative of truthfulness  prosecution can’t cross-examine a/b bar room fight
 Chris testifies that Joe is a peaceful guy to show that Joe didn’t kill Leslie
o Under 404(a)(2)(a) – show s pertinent trait  but Joe’s character does not need to be
attacked but the  must have opened the door. NOW the prosec. can rebut the evid w/ Joe’s
barroom fight.
o This charac evid is admissible under 404(a) but it is NOT admissible under 608(a) for
credibility b/c evid for 608(a) is only admissible for truthful/untruthfulness.
 Joe is acquitted. Prosec is angry  prosecutes Joe for perjury. Chris testifies that Joe has a truthful
charac.
o Under 404(a)  Chris can give this testimony b/c it is a pertinent trait in a perjury case
o Under 608(a)  charac. for truthfulness is admissible if Joe’s charac. has been attacked/and if
Joe has testified
 Violent acts are not probative of truthfulness
 Credibility: in order for you to attack/accredit a witness  the person must be a witness and must
have testified
91. Ross Easterfield has testified. Argue the admissibility of Winsor’s testimony concerning Easterfield’s
reputation in the real estate world of Nita City (“a very aggressive deal-maker and a very hard even slicker
bargainer … Willing to conceal material information and even misrepresent facts”) as described by Winsor.
[153]
 Winsor is on the stand  this testimony is relevant under 608(a) through reputation/opinion
 Admissible if: Winsor must know Ross and Ross must have testified
 Winsor = impeaching witness
 Ross = target witness
  counsel – Ross concealing info a/b real estate deals does not affect his untruthfulness as a witness / it
is not probative of his truthfulness b/c in the real estate world concealing facts is customary.
PROCESS, BURDENS OF PROOF, AND PRESUMPTIONS
How to put all of this in the context of a TRIAL (procedurally)
 Survived the motion to dismiss/summ. Judg.
 (1) Motion in limine (beginning of trial)
o Evidentiary issues (exclude or admit certain evid)
 (2) Opening Statements
o To jury
o Telling jury a story
o None of what you say is evid
 (3)  case/chief
o Witnesses (direct/CREX/Re)
 (4)  FRCP 50(a) [civil] or FRCrP 29(a) [crim]
 (5)  case/chief
o Witnesses (direct/CREX/Re)
 (6)  or  FRCP 50(a) [civil] or FRCrP 29(a) [crim]
 (7)  rebuttal (b/c  has B/proof); maybe  rebuttal in civil is mult. cross claims
 (8)  or  FRCP 50(a) [civil] or FRCrP 29(a) [crim]

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 (9) Closing Arguments
o Tell fact finder what inferences should be made
o Help the jury piece it together
 (10) Instruct Jury charge
o Instructed on what law is applicable
 (11) Jury Deliberation  verdict/hung
o Verdict – agrees
o Hung – can’t agree
 (12)  or  FRCP 50(a) [civil] or FRCrP 29(b) – new trial
 (13) Judgment  final word / makes an order
 (14) Appeal – final judgment § 1291

 Judge is the gatekeeper

o Judge decides what evid comes in
o Judge instructs the jury on the law
o Judge decides whether case is strong enough to go to a jury
 FRCP 50(a)
o Both  and  can move on the issue
 Party must be fully heard on the issue
 Can enact 50(a) as early as after  case/chief // as late as before it goes to trial jury
o “No reasonable jury would have legally sufficient evidentiary basis”  this means no
reasonable could find for that party on that issue
 The issue you are dealing w/ is an essential element  50(a)(1)(B)
 Ct could deny 50(b) motion or could defer (this means to revisit the motion at any pt)
o Under 50(b) – party makes the same argument as a renewed motion
 Party can ask for judgment as a matter of law
 3 options under 50(b)
o 1. Deny judg. as matter of law
o 2. Grant 59 rule  new trial
o 3. Grant 50(b) motion
 Can’t make 50(b) motion unless you made a 50(a) motion first
 Can’t make insufficiency of evidence of appeal unless you made a 50(a) motion to the trial ct
 FRCrP 29(a)
o ONLY  can move
 FRCrP 29(b)
o Only if guilty or hung jury can decide a reserved method
 What is the difference b/w FRCP 50 and Fed. Crim P. 29?
o 29 is only for 
o FRCP 50 is for both parties
o Whether the evidence is insuff to sustain a conviction  this means that no reasonable jury
could find byd a reasonable dbt that a  is guilty
 What arguments am I making on a FRCP 50 motion/Rule 29 as opposed to Rule 59/Rule 33?
o Rule 50/29 = insufficient evidence – there is not enough evid to get to the jury
o Rule 59/33 = this jury while reasonable – just got the judgment incorrect – we need a new
trial (against the weight of evid)
 Rule § 1291
o Final judgment rule – you can only appeal to the appellate ct
o A judgment has legal force and effect

39
 o When a decision has fully disposed everything – that is when you have a final judg by the trial
ct
o Interlocutory order/appeals
o Merger
 Every decision the ct has made up to the final judg can be appealed
 All of the evidentiary rulings are deemed merged
 If you win in the district ct – you do not appeal
 Rule 29 only goes in one direction
o Gov’t cannot appeal a judg for acquittal (fear of double jeopardy – 5th amendment / 6th
amendment right to criminal prosecutions)
 § 3731 – limited times when gov’t can appeal
o Cannot appeal jury’s verdict but the gov’t can appeal a granted 29 or 33 motion
o When the trial judge steps in – the gov’t can appeal.
o If the ct makes evidentiary ruling against the gov’t – the gov’t can appeal
 This is the only chance the gov’t has to argue evidentiary issues to the ct of appeal
b/c if gov’t loses it can’t appeal judg of acquittal
BURDEN OF PROOF

Burden of Persuasion Burden of Production

Burden of Persuasion [burden to persuade/convince the jury]

 Each party is giving an explanation of what happened in the real world (who has a better version of
events?)
 Risk of non-persuasion
 Whichever party has the burden if they can’t meet it – they lose
 Std. of persuasion:
o Beyond a reasonable doubt  criminal cases
o Clear and convincing evid  limited to special facts in certain cases (higher than prepond.
of evid.)
o Preponderance of the evidence  civil cases - more likely than not / more likely something is
true than it is not true  50.1%
 B/persuasion NEVER shifts
o (1) /prosec. bears b/persuasion on:
 All elements / claims / charges
o (2) /defense bears b/persuasion on:
 All affirmative defenses
 Initial party with B/persuasion has the initial B/production

Burden of Production [going forward]

 Burden of presenting affirm. Evid to the ct
 Will support its claims / defenses
 Will rebut the other sides’ claims / defenses
 Judge is concerned with B/production
 Whether the party has proferred enough evid to bring it to trial

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 o If not – then the ct keep it from trial by:
 1. Directed verdict; or
 2. Judg. As a matter of law - 50(a); or
 3. Judg of acquittal - 29(a)
 A party can:
o (1) Meet: its burden that a reasonable jury could find….
 (must factor the std. of proof – opposing party does not have to do anything but they
should put on rebuttal evid)
o (2) Shift: reasonable jury must find, unless…. the other party can meet its burden (come fwd
w/ evid)
 When the burden is shifted – the opposing party can:
 (1) Meet: its burden – then it goes to the jury
 (2) Shift: it back to the 1st party
 (3) Not Meet: not meet its burden  then no case to jury = 29(a) for crim
cases & 50(a) for civil
 What tells us the B/production has been shifted?
o Depends on the law (substantive law – default is that it doesn’t shift)
o B/produc on element in a criminal case NEVER shifts
o B/persuasion NEVER shifts
o Ex: In an employment discrimination cases – Title 7 – 4 elements required  if  proves this
then the B/produc shifts to  to prove that a reasonable jury could find that  was not fired
discriminatorily  then it shifts back to  to prove this is false.
What can’t the prosecution do its in case/chief? (criminal cases)
 Cant call the  to the stand
In ’s case/chief in civil case   can call anyone to stand and ask leading questions under 611(c)(2)

103. At the end of the prosecution case in Mitchell the judge concludes that no reasonable person could
conclude beyond a reasonable doubt that Joe received the retraction letter from his publisher nor that he was
trying to escape from custody at the police station. Must he or she direct a verdict of acquittal? For the
prosecution, argue the direct verdict motion. [20, 25]
 Is whether he read the letter / escape from the police station an essential element?
o No – neither are essential elements to the crime – but the ct needs to determine if the gov’t
can establish the elements byd a reasonable dbt under rule 29 w/ other evid
o Under rule 29 – ct looks to whether there is enough evid as a whole to sustain a conviction?
(does not look to each piece of evid on its own)
 If no other evid would support conviction – then Joe is acquitted.
104. The Nita Criminal Code places the burden of proof, by a preponderance of the evidence, of sanity on the
prosecution and the burden of going forward on that issues on the defense. Nita courts often say that Nita
recognizes the “presumption of sanity.” The prosecution puts on its case in Mitchell w/o any direct evidence of
sanity. At the end of the prosecution case, the defense moves to dismiss on the ground that the prosecution
has not carried its burden of proving sanity by a preponderance of the evidence. For the prosecution,
respond.
 Prosec must convince the jury that  is sane and prosuc has B/persuasion. But Joe has B/produc to
show insanity.
 Posec never put evid showing sanity therefore the  is insane  the  bears the B/produc to show  is
insane and now the prosec bears the B/produc to show that  is sane (B/produc shifted)
  bears initial B/produc to show insanity – that is the only way it will shift
 Joe will need to put on enough evid to show that a reasonable jury could find he was insane  then the
state has the B/produc that a reasonable jury could find he is sane

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  If prosuc on rebuttal doesn’t show enough evid that Joe is sane – then J can move for acquittal
 If Joe doesn’t introduce his insanity then he is presumed sane
Presumptions
 Instructed inferences takes us from basic facts to facts of consequences (rule of law requires certain
inferences)
 A particular fact will be established as a matter of law
Ex 1:
 Basic Facts Presumed Fact
 Child born
 300 days Husband is Father
 Legally married
 Living together as H/W
 we want the child to be the product of the marriage
Ex 2:
 Basic Facts Presumed Fact
 Person disappeared
 Person gone for 7+ yrs Person Dead
 No tidings (news/info) from immediate family
 Diligent efforts to find person were made – unsuccessful
 we want people to move on (get the will probated; get insurance)
 Some facts are very difficult to prove – this is why we need instructed inferences
o These inferences are strong / the probability is high that they are true  therefore we put the
force of law behind it
 We want to protect certain social structures
o There are substantive benefits
o The legislature favors certain outcomes
Rule 302. Applying State Law to Presumptions in Civil Cases
 In a civil case, state law governs the effect of a presumption regarding a claim or defense for which
state law supplies the rule of decision.
 Based on Erie – state law controls the presumption over federal in civil cases
Presumptions:
 (1) Enable party to carry B/persuasion on different issue;
 (2) Enable to carry B/produc to get to jury at first instance
 (3) Jury instructions  how the jury gets charged on issues/facts
Rule 301. Presumptions in Civil Cases Generally
 In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a
presumption is direct has the burden of producing evid to rebut the presumption. But this rule does not
shift the burden of persuasion, which remains on the party who had it originally.
 Applies to civil cases only
  = B/persuasion for claims
  = affirmative defenses
 B/persuasion does not shift
 Rebut the presumption
 Party at whom the presumption is directed  the party its against has the B/produc to rebut the
presumption enough for a reasonable jury could find but first the party must establish that a reasonable
jury could find the basic facts are true  if the 2nd jury doesn’t meet its burden to rebut the basic facts
 the 1st party can get judg as a matter of law just on that fact (e.g., that H is the father)
 If 1st party doesn’t carry enough evid to meet B/produc for the basic facts  then maybe the 2nd party
can get judg as a matter of law

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 o Sometimes there are other ways to prove the presumed fact
 The legal force of the presumption can fall away but the reasonable inference may still be there  if
H/W aren’t legally married but they had a child born and they live together  based on
logic/experience we can infer that H is the father
 2nd party to meet its B/produc has 2 options:
o (1) attack one of the basic facts
o (2) attack the presumed fact Enough for a reasonable jury to find

 Irrebuttable presumption:
o Party can only attack the basic facts  can’t bring evid to the non-existence of the presumed
fact
o Enough that a reasonable juror could find in his favor on one of the basic facts
o If 1st party produces enough evid to show H/W were living together and then 2nd party did
meet its B/produc to rebut the presumption  then this is a jury instruction of the basic fact as
to whether they were living together
o If 1st party met burden and 2nd party didn’t do anything to rebut  then judg as a matter of
law
o If presumption is irrebuttable then 2nd party can’t bring forth evid to rebut the presumed fact
o Goes to the jury to resovle the dispute as to the basic fact, and if they find in favor of W, then
they must find that H was the father as a matter of law
 Rebuttable presumption:
o Most presumptions are rebuttable
o Can bring in evid for both basic and presumed fact
o For presumed fact: DNA testing; that he is sterile; that she had an affair; that he was on a
business trip
 If he does that, then the presumption is destroyed  legal force of the presumption
falls away and we have a jury Q
 So  presumption is weighed against whatever H brings to rebut the
presumed fact (e.g., DNA test)
o CL  followed the idea of bursting bubble which means that offering evid to rebut the
presumption completely rebuts the presumption  then the 2nd party would be entitled to a
judg as a matter of law
 FRE rejects the bursting bubble  if a presumption is rebutted then we have a jury
Q  jury will weigh the evid
 If 2nd party attacks the presumed fact  we have a jury Q (unlike CL)
 Procedurally
o W offers evid to her case/chief to meet her B/produc; then
o H offers evid to show his B/produc in his case/chief and on cross-examination
105. Jerry Young’s widow has filed a civil action to require payment on his life insurance policy. Nita
recognizes a presumption that a person is dead upon proof that he had disappeared from his home, was
absent for a period of seven year during which time no tidings were received from him by his immediate
family, and diligent efforts to establish his whereabouts were made and were unsuccessful. The death of the
covered individual is an element in Mrs. Young’s action against the insurance company. Nita has adopted
rules 301 and 302. Assume you are the judge. How should you direct the jury on the element of the death of
the covered individual in each of the following situations:
 Widow is going to try to take adv. Of the presumption
 Widow offers evid that Mr. Young disappeared / 7+ yrs / no tidings. Widow doesn’t evid that diligent
efforts were unsuccessful

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 o  counsel (insur. Company) will argue that widow didn’t meet her B/produc  ask for 50(a)
judg as matter of law  didn’t meet burden as to presumed fact (only met 3 elements, not 4
elements)
o Insur. Co will argue  if could a reasonably find that he is dead from the 3 basic facts
 Depending on which element you fail on will determine whether a reasonable jury could find that he is
dead ….
  if a reasonable jury does find that he is dead (fact of conseq) based on 3 elements (not 4)
  the  does not have to produce evid to rebut it b/c the B/produc did not shift (but they should offer
evid)
105 (a) Mrs. Young testifies that she is the only member of Young’s immediate family, that he disappeared
from their house nine years ago, and that she had not heard anything from him for al those nine years, and
that she searched ceaselessly for Jerry. No evidence to the contrary is presented.
 What is your jury instruction?
 Young testifies to all 4 elements   offers no evid
 Young is a competent witness in this instance
 If you bear the B/produc  you can’t rely on that the fact that the jury will believe the witnesses’
testimony  you must present other evid
o In this ex. The defense (insur comp) did not offer any contrary evid  therefore the jury
instruction will be that you shall find that H is dead.
 On a 50(a) motion  if the judge says he doesn’t believe the  -- it doesn’t mater what the judge says
– he doesn’t determine credibility
105 (b) Mrs. Young testifies as in (A), but admits on cross that she did not attempt o contact members of any
NY organized crime family to inquire as to Jerry’s whereabouts. Given the large scope of Mrs. Young’s other
efforts, you do not believe that this omission would permit a reasonable juror to conclude that Mrs. Young’s
efforts had not been “diligent”.
 This evid shows Young didn’t make diligent efforts to find H
 Judge/ct must determine if the insur co. carried their B/produc to establish the non-existence of a basic
fact (diligent efforts elements)
 Insur co. tried to rebut the diligent efforts but didn’t meet their B/proudc  therefore the 4th element
was not rebutted and the 4 basic elements are established = presumed fact he is dead
105 (c) Mrs. Young testifies as in (A) and (B), but also testifies that she made no attempt to contact Jerry’s
cousins and aunts. You regard this omission as being sufficiently important to permit a reasonable juror to
conclude that Mrs. Young’s efforts were not “diligent”.
 Trying to prove Young didn’t meet diligent efforts
o Whether reasonable jury could conclude that failing to call aunts/cousins amounted to
Young’s efforts not being diligent
o If judge finds that it is true that Young’s efforts were not diligent  then insur. Co. carried
their B/produc and it is now a jury Q (jury will take everything else and determine if he is
dead)
o If the judge finds that Young did make diligent efforts then the jury will conclude that he is
dead
105 (d) Mrs. Young testifies as in (A). The defense calls George Watson, a man who was an acquaintance of
Jerry’s in Nita City. He testifies that while vacationing in Miami three years ago, he saw a man who “bore
some resemblance to Young.” He never approached the man, who was within his sight for perhaps five
seconds. You regard this evidence as insufficient to permit a reasonable juror to conduct that Young is still
alive.
  is trying to show evid against the presumed fact  but failed B/produc
 Judge will instruct: “you shall find Jerry is dead”
 What if you find that this testimony is sufficient?

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 o Jury Q as to whether he is dead
o Jury instruction: “If you find by prep. Of evid. w/ the 4 elements and Watson’s testimony that
Jerry is dead”
o **If there was an irrebuttable presumption then the defense could not offer evid to rebut it**
105 (e) Mrs. Young testifies as in (A). The insurance company calls Peg Parker, who had met Jerry in Nita
City once before he disappeared and whose son works for the  insurance company. Parker testifies that she
met Jerry Young in a bar in Orlando three years ago. Parker had been engaged in small talk with this fellow
for about 15 minutes when Parker exclaimed, “You’re Jerry Young, aren’t you?” Parker’s conversation
partner smiled, winked, and said, “Keep a lid on it”. He then left the bar. You regard this testimony as
sufficient evidence to permit, though not require, a reasonable juror to find that Young is still alive.
 Defense is trying to rebut the presumed fact
o If suff. For B/produc  then jury Q and balance all inferences and all evid to decide if dead
 Parker’s son works for insur co.
o Mrs. Young can have Mr. Parker cross-examined and bring out his bias
 What if the jury is split down the middle?
o  bears B/persuasion
o 301 says B/persuasion does not shift
o  will lose if jury is split down the middle
105 (f) Mrs. Young testifies as in (A) and (B), but also testifies that she received an unsigned handwritten
letter four years ago that said only, “I will always love you.” She testified that the handwriting “looked like
Jerry’s, but I couldn’t be sure.” You regard this as evidence sufficient to permit, but not require, a
reasonable juror to conclude that Mrs. Young received tidings from Jerry and/or that he is still alive.
 Defense rebutted the basic and presumed fact
 Now it's a jury Q on the basic and presumed fact
 Jury instruction – “if you find by prep of evid that he is dead, then Jerry is dead”
RULINGS ON EVIDENCE
Rule 103. Rulings on Evidence
 (a) Preserving a Claim of Error. A party may claim error in an ruling to admit or exclude evidence
only if the error affects a substantial right of the party and:
o (1) if the ruling admits evidence, a party, on the record:
 (A) timely objects or moves to strike.; and
 (B) states the specific ground, unless it was apparent from the court of its substance
by an offer of proof, unless the substance was apparent from the context.
 (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the
record – either before or at trial – a party need not renew an objection or offer or poof to preserve a
claim of error for appeal.
 (c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any
statement about the character or form of evidence, the objection made, and the ruling. The court may
direct that an offer of proof be made in question-and-answer form.
 (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court
must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
 (e) Taking Notice of Plain error. A court may take notice of a plain error affecting a substantial right,
even if the claim of error was not property preserved.
Opponent:
 What is an objection?
o Made before evid comes in
o Oral motion to exclude evid
o Objection to the Q presented
 What is motion to strike?

45
 o After evid comes in
o You object to the answer of the ques
Proponent:
 103(a)(2) offer of proof (can make it before or after the ct makes a ruling on an objection)
o For proponent of evidence
o Shows the substance
 Offer of proof can be formal or informal
o Formal: ques/answer form
o Informal: inform the ct that this is what the evid is / atty will tell the ct what the evid is a/b
during sidebar  witness can’t testify
 103(c) – doesn’t need to be in Q/A form
 103(d) – offers of proof  the jury is not present
 Proponent of the evid must be concerned with the Offer of Proof
What is the purpose for this?
 Ct of appeals – needs to see if the trial ct erred in sustaining or overruling an objection – ct of appeals
needs to see what evid you wanted to admit
 Purpose is to create a record – testimony, exhibits, objections, etc
o Anything that went into trial judges’ decision must be in the record
 You can only claim error in the ct of appeals if you preserved the error
 Final judgment – all the individ errors the ct made are merged
 Issues on appeal:
o Whether there was in fact an error?
o Should the ct of appeals reverse b/c of the error?
108. The following dialogue occurs on cross-examination of Joe in the trial ct:
Q. Tell the jury how your first wife met her death.
Mr. Jones: Objection.
The Ct: Overruled. Answer the question.
A. She was shot in the chest by a rifle.
Joe is convicted. May he raise the issue of the introduction of this evid on appeal, based on the above
dialogue?
 Make 403 objection / irrelevancy argument
 This would be prior bad acts  charac evid / improper inference
 Can this be introduced on appeal?
o If you don’t state the grounds for objections to be introduced for appeal it must be so apparent
 What happens if you object and its overruled?
o You weren’t allowed to state the grounds as required in 103(a)(1)  you asked permission to
state the grounds and the judge said no.
You still preserved the error b/c you can look to the transcript.
114. Defense counsel is cross-examining Brooke. Defense asks: “What did you do w/ Leslie’s possessions after
her death?” The relevancy objection is sustained. Do what is necessary to preserve the error. [45]
 It is relevant b/c by Brooke selling Leslie’s stuff it suggests that she didn’t care that Leslie died 
motive to kill
o Objection sustained
o  counsel must give offer of proof and give the subs of evid & give the legal arg for the
response to the obj (we want it in the record)
 Under doctrine of merger:
o Can raise individ rulings provided you preserved them on the record
 Appellate ct is reviewing for error
 2 steps for evidentiary issues:

46
 o 1. Was there an error?
o 2. Should the judg be reversed b/c of that error?  must show the error affected the
judg
o *This is why preserving error is so important – the ct needs to know the substance of the
evid
Standard of Review:
 1. De Novo (Law):
o No deference to lower ct
o Appellate ct looks at it new
o All legal quest reviewed de novo
 2. Clear error (clearly erroneous):
o Give little deference to trial ct
o Applies to factual findings – errors made on facts
 3. Abuse of discretion:
o Trial ct had wide discretion and abused her discretion
o Most used in evidentiary rulings
o What the trial ct did and how the ct of appeals deals w/ an issue of:
 Law (de novo) – wrong on the law
 Fact (unreasonable) – facts applied = unreasonable
 Application (unreasonable) – application of law to fact was wrong
 If the legal rule and facts were understood but the application was
unreasonable
 If you apply the wrong legal rule -- it is abuse of discretion
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error.
 A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial
right of the party and:
 (1) if the ruling admits evidence, a party, on the record:
o (A) timely objects or moves to strike; and
o (B) states the specific ground, unless it was apparent from the context; or
 (2) if the ruling excludes evidence, a party informs the ct of its substance by an offer of proof, unless
the substance was apparent from the context
(b) Not Needing to Renew an Objection or Offer of Proof.
 Once the ct rules definitely on the record – either before or at trial – a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof.
 The ct may make any statement about the character or form of evidence, the objection made, and the
ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence.
 To the extent practicable, the ct must conduct a jury trial so that inadmissible evid is not suggested to
the jury by any means.
(e) Taking Notice of Plain Error.
 A ct may take notice of a plain error affecting a substantial right, even if the claim of error was not
properly preserved.
 103(a)  only if error affects a subs. right of a party
o Affects the substance
o Harmless error: high probability error affect judgment
 Burden on the appellant (person who wants reversal)
 Evidentiary rulings – if they don’t affect the final judg then no reason to reverse

47
 o What is the problem w/ harmless error?
 How does the ct of appeals decides if there was error w/o reweighing evid? (this
invades the province of the jury)
 Ct of appeals is not supposed to re-weigh evid
o Harmless error – will consider if the party had the opportunity to “cure” the error
 Undo the facts/evid
 Give limited jury instruction
 Attack the weight of the evid
 Bring in contrary/rebutting evid
 Impeach witness if she brought in unfavorable evid
 If party had the opportunity to “cure” the error = probable it was harmless error
 103(e)
o “court” – refers to trial and ct of appeals
o party can raise plain error even if it was not properly preserved
 Plain error is:
o Affected substantial rights
o Obvious/egregious/serious/grave/highly prejud
o Trial cut should have noticed the plain error w/o the party’s objection
 This is a check on the adversary system (safety valve)
 Giving ct of appeals the opportunity to review
o To figure out that the trial ct erred – what needs to have happened?
 Trial ct must have made a ruling
 Which is dependent on the party raising the error w/ the exception of plain
error
109. The prosecution in Mitchell calls an usher at the Palace Theater. He testifies w/o objection to
Washington’s words to Joe on the night Leslie was killed: “Joe, what have you done to Leslie? Why don’t you
leave her alone? She’s afraid of you, Joe.” The prosecution then calls Ms. Washington and asks her what she
said to Joe on the night of the killing. This time there is a hearsay objection that is overruled. Assume that the
hearsay objection was valid. Consider whether the defense may obtain reversal predicated on the admission
of Washington’s testimony.
 Want to challenge Quinn’s admission to ct of appeals
o Will prob not be reversed b/c it is harmless error
 This is cumulative evid that was admitted after similar evid was admitted w/o
objection
 But – you can argue that the usher’s testimony is plain error therefore Quinn’s
testimony should have been excluded
110. The defense in MacIntyre offers lay opinion evid that Jesse had a strong propensity to steal and
manipulate her benefactors. The  does not object, but seeks to offer evid from a worker at the St. James
Home that Jesse has often had the opportunity to seal while living and working there and has never taken a
penny. Should the rebuttal evid be permitted?
  failed to object but should be allowed to bring this in b/c Ross opened the door by bringing in evid
that Jesse steals and Jesse can accredit herself
  counsel  rebuttal evid should not be admitted b/c Jesse had the opportunity to object
o You can’t try to rebut evid w/ inadmissible evid
“Sandbagging” – we don’t want parties to try to let eachother bring in charac evid
 You can’t not object to inadmissible evid and then try to rebut w/ inadmissible evid
 Evid you offer to cure to rebut evid – MUST be admissible evid
118/119. Jesse’s lawyer objects to the introduction of her criminal conviction to impeach her under Rule 609.
His objections are overruled. In closing argument, he argues extensively that Easterfied’s accusations were

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especially cruel given Jesse’s previous conviction and incarceration, justifying a higher award of punitive
damages. Assume that the use of the conviction to impeach would be reversible error. May the  urge that
error on appeal? // Make the same assumption as prob 118, but assume that Jessue offers evid only that she
did not, in fact, know bout Holman’s intention to commit the robbery. May she urge the trial cts admission of
the conviction as error?
 Jesse says the ct erred in letting in conviction  rebutting testimony  by bringing in evid that she
didn’t know Holman was going to commit robbery
o Attempt to cure and she did not waive the objection
o But – by her trying to cure it, makes it more likely that it was a harmless error
Same evid comes in. instead of offering curing testimony – Jesse’s atty is closing argument states Jesse has
been wrongfully accused 2x. Therefore, her punitive damages should be higher. Did Jesse waive the error?
 Yes b/c this isn’t rebutting evid
 This is evid that you are trying to further your case – strategically trying to further your case
o You waive your objection
 Its obvious if the evid is admitted and you are using it to your advantage , its obvious the ct did err so
much – by putting the evid to your own use, you waive the objection
 By offering rebuttal evid – you don’t waive your objection
If evid comes in that is unfavorable:
 (1) Don’t use it to your advantage
o Bring it up on appeal
 (2) Try to cure the evid
o Use to your advantage
o Win case/don’t need appeal
o But then you can’t bring error on appeal
111.  in Mitchell seeks to elicit testimony from Brooke that she shot and killed one of her tenants. There is
an objection as to relevancy and improper character evid. When asked for his response, the proponent tells
the ct that the vid is being introduced in order to show Brooke is a violent person. The objection is then
sustained. Assume that under the law of jurisdiction, the evid should have been received to show Brooke’s
knowledge of the use of firearms. May the  urge the ct’s failure to receive the evid as error on appeal?
 Brooke violent person = charac evid
 May be able to make knowledge arg. – that Brooke knows how to use a gun
 Made an incorrect arg as to why the evid was admissible  can you make the correct arg to the ct of
appeals?
o No b/c you waived it in the trial ct
o You didn’t give the trial ct the correct issue and you waived it on appeal
 Proponent of evid in face of objection – you must state why evid should be admitted since you’ve
waived it
  can say trial ct erred due to plain error on appeal b/c trial ct should have seen it was obvious the evid
should be admitted for knowledge
113. Jesse is on the stand. She seeks to testify that Kelly Emerson told her that she, Kelly, had just found the
brooch in the library.  objects that the evid violates the Best Evid Rule since Kelly would offer better evid on
the subject. The objection is erroneously sustained. The proper objection is hearsay, although the proponent
might be able to lay a foundation for a present sense impression exception to the hearsay rule. May the
proponent urge error on appeal?
 Argument that Jessie didn’t waive the objection:
o Jesse doesn’t have an obligation to respond to a diff obj
o Only obligated to respond to the argument made (even if they made an incorrect argument)
 Didn’t waive b/c the correct arg was never made and plain error can be urged on
appeal

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116. Slyviak is describing the trip from the boarding house to the station. The prosec asks Slyviak, “What
happened next?” Slyviak testifies, “Well, Joe said that he hoped that we wouldn't hold the shooting death of
his first wife against him.” What should the defense do? Proseuc argues on appeal that whatever the defense
did was untimely, b/c the defense did not object to the question. Respond.
 Contemporaneous objection rule
o Must object at the time the inadmissible evid comes in
 Defense did not waive their objection b/c the ques was not leading to the inadmissible evid
o Then the defense makes a motion to strike and states the ground for motion to strike and jury
instruction for jury to disregard the evid (motion to strike = preserve the error)
o Jury inst could make the evid harmless
o Ask for mistrial
 Limiting instruction won’t work
 Must be so prejudicial
 So rare
117. Jesse’s lawyers lose a motion in limine to exclude her school records, which are clearly inadmissible.
However, they fail to object when those records are offered at trial, relying on the earlier ruling. May  urge
error on appeal?
 Has Jesse waived the objection?
o 1st situation: ct said records are inadmissible
o 2nd situation: Jesse didn’t object when offered at trial
 Must figure out if the ct definitively ruled
o If judge ruled conditionally or provisionally / or definitively
 Must raise obj again
 103(b) – don’t need to make an objection on a definitive ruling
o Burden on counsel to ask the ct whether it is a definitive or provisional ruling
o Burden is on counsel to call to the ct the attention if they are making a ruling that is
inconsistent w/ a prior ruling.
HEARSAY
 Hearsay is derivative proof
 Evaluating testimony
o 1. Perception – firsthand knowledge
o 2. Memory
o 3. Narration – story
o 4. Sincerity/credibility
 Adversary Testing
o 1. Oath
o 2. Demeanor/confrontation
o 3. Cross-examination – “greatest legal engine to find truth”
 In hearsay – you can’t evaluate perception b/c the person isn’t on the stand.
o Y doesn’t know what X saw  only knows what X said he saw
 Can’t cross-examine X
 Person who made statement isn’t under oath
 Jury can’t see X and can’t evaluate declarant’s demeanor
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person
intended it as an assertion. [questions are not statements  questions are not hearsay] [assertion = something that
states a verifiable trust about the state of the world]
(b) Declarant. “Declarant” means the person who made the statement. [person making out of ct statement]
(c) Hearsay. “Hearsay” means a statement that:

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  (1) the declarant does not make while testifying at the current trial or hearing; and
 (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
 (1) A Declarant – Witness’s Prior Statement. The declarant testifies and is subject to cross-
examination about a prior statement, and the statement:
o (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a
trial, hearing, or other proceedings or in a deposition;
o (B) is consistent with the declarant’s testimony and is offered to rebut an express or implied
charge that the declarant recently fabricated it or acted from a recent improper influence or
motive in so testifying; so
o (C) identifies a person as someone the declarant perceived earlier.
 (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
o (A) was made by the party in an individual or representative capacity;
o (B) is one the party manifested that it adopted or believed to be true;
o (C) was made by a person whom the party authorized to make a statement on the subject;
o (D) was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed; or
o (E) was made by the party’s coconspirator during and in furtherance of the conspiracy
 The statement must be considered but does not by itself establish the declarant’s authority under (C);
the existence or scope of the relationship (D); or the existence of the conspiracy or participation in it
under (E).
Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
 A federal statute;
 These rules; or
 Other rules prescribed by the Supreme Ct
 801(d) – exclusions – not hearsay
o Therefore, not admissible under 802
Rule 803. Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a
Witness
 The following are not excluded by the rule against hearsay, regardless of the whether the declarant is
available as a witness:
o 24 exceptions (look in book)
o These statement are hearsay but will admit it anyway regardless whether the person can
come into to testify or not
o Declarant doesn’t need to be available
o Sufficient guarantees of trustworthiness – based on circumstances
Rule 804. Exceptions to the Rule Against Hearsay – When the Declarant is Unavailable Witness
 Look in pamphlet
 Exceptions to hearsay 802
 Must show that the declarant is unavailable
Rule 807. Residual Exception
 (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
o (1) the statement has equivalent circumstantial guarantees of trustworthiness;
o (2) it is offered as evidence of a material fact;
o (3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
o (4) admitting it will best serve the purposes of these rules and the interests of justice.

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  (b) Notice. The statement is admissible, only if, before the trial or hearing, the proponent gives an adverse
party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s
name and address, so that the party has a fair opportunity to meet it.
 807 – catch all exception
o does not fall in 803; 804 exception, it is hearsay but something a/b this statement is sufficient
guarantees the trust worthiness of the circumstances
 If you are proponent of evid – do this order – 802  801(d)  803  804  807
o Is this hearsay?
 If it is not hearsay, you don’t need to argue an exception
 It is easier to argue a general rule, than an exception
o First – argue that it is not within the definition of hearsay; then if it is hearsay – argue an
exception.
 801(d) – all turn on the identity of the person who made the statement
 801(c) -defines hearsay
o Asserting the truth of something/state of the world
 Any statement the declarant makes OFF the stand is an out of the court statement
 Hearsay – anything that the witness is talking about other than what the witness is saying on the
stand (something that he said at some other time or something that somebody else said]
o Prove the truth of the matter asserted – the truth of those words is important to the case
 If the jury must believe the substance of the statement – then it’s being offered
to prove the truth of the matter asserted!!
 Ex: Chris is on stand.  counsel wants to show Joe was at boarding house @ 10. Chris wants to testify
he called Joe and Joe said “I’m in the boarding house”
o Is this sufficient to prove the truth of the matter asserted?
 Yes.
 Ex: Joe & Chris on phone. Joe says “it’s pitch dark in here” [this makes it more probable than not than
he was in the boarding house]. We know power went out only on the boarding house street.
o Is this sufficient to prove the truth of the matter asserted?
 Yes.
 This evid is only relevant if it is true
 Relevancy of the evid depends on the fact finder believing it
 Jury believes the substance of what its being asserted
 Does the relevancy of the statement pass through the truth of the assertion?  “passing through the
truth”
 What fact of consequence you are trying to prove influences if the statement is hearsay
 What is the purpose of adversary testing?
o Ensure the testimony is truthful/reliable
 If the substance of the statement is the key to its probative value – we want adversary testing
 If the evid works to establish fact of conseq regardless whether the jury believes whether it is true or
not – we don’t need adversary testing
149. Marlow testifies for the defense. On cross-examination, the  seeks to inquire into the “rumor” that
Marlow described in Marlow’s deposition a/b the firing of the previous executive director b/c he had relation
with Mrs. E.  objects on hearsay grounds. Argue the objection.
 Influenced by Easterfield
 Marlow was scared of Ross – effected his real world behavior
 Are the rumors statements?
o Yes, oral asesrtions
o Yes – assertion that Ross did something in the real world
 Declarants – ppl saying the rumors (they aren’t on the stand)

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 o Not made at current trial
 Is it offered to prove the matter asserted in the statement? (does the relevancy of the statement depend
on its truth?)
o No! it doesn’t matter whether Ross actually did this – it doesn’t matter whether the jury
believes the truth of the statement about the rumors - it only matters whether Marlow knew
a/b these rumors so it is not hearsay.
o BUT – if someone was saying that Marlow told them that – then it is hearsay
 If it doesn’t tell us anything a/b the state of the world – it is not hearsay
 If it doesn't go to the truth of the matter asserted – it is not hearsay
Rule 805. Hearsay within Hearsay
 Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
 1. Single utterance which contains statements
 2. Multiple layers of declarants and you need to unpack each layer of declarants which need to confirm
142. Prosec seeks to admit Quinn Washington’s testimony that Leslie appeared “frightened and nervous.” 
counsel objects that the “nonverbal conduct” of Leslie is hearsay. Respond for prosec.
 Prosec – Quinn is describing Leslie’s real world conduct
o Quinn is observing conduct (non-verbal conduct)
 Leslie acting frightened/nervous does not assert that she is actually nervous
o Quinn is making an inference
 Assertion v. inferences
o Non-verbal conduct = has to be intended as an assertion – based on common knowledge [treat
it the same way as someone uttering words]
o Burden/persuasion is on the party that is trying to keep the hearsay out (arguing that it is
hearsay, therefore inadmissible)
o If it is doubtful/ambiguous – it is revolved against being hearsay
o If its not a statement (but a question) then its not hearsay (however – question could be a
hidden statement)
o If the statement is not offered for TMA, then its not hearsay
o Conduct is hearsay only when intended as a matter asserted
o The key: Is this assertive conduct?
 If not clearly asserted, then treat it as non-assertive.
143. Proseuc seeks to admit Slyviak’s testimony that Joe was walking furtively toward the stationhouse back
door. Defense objects on hearsay grounds to the “nonverbal conduct” described. Respond for prosec.
 Not an assertion / not hearsay
 Slyviak testifying a/b observation
144. Jesse seeks to testify that Emerson rolled her eyes after Mrs. Easterfield asked Jesse to go look for the
brooch. Defense objects on hearsay grounds. Argue the objection.
 Through experience + common sense we know that rolling your eyes has a meaning
 Arg of why hearsay:
o Could be direct response to what was said
 Ex: Shaking your hear, nodding, shrugging = assertions
o Flicking off = not assertion
 Its expressive / does not say anything true a/b the real world
 Is rolling your eyes an assertion?
 Must understand it in the context it was made
o Rolling your eyes after a statement was made – makes it very likely that it is an assertion
(based on our experience/common knowledge)

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  If rolling her eyes is non-verbal conduct – we must do the hearsay analysis b/c this is asserting “what
an idiot”
 Who decides if the eye rolling fits in?
o Judges decides if this is admissible under 104(a)  by the prep of evid. Then you look to
hearsay rules
 Does it matter whether or not Kelly is trying to communicate something to Jesse?
o No – the assertion simply needs to be made.
 SOMETIHNG NEED NOT BE READ, SEEN, or HEARD TO BE AN ASSERTION
 If we don’t have something that is saying something about the real world  then we don’t have
statements and we don’t have hearsay
 If it is not evid offered to prove the truth of the matter asserted – then it is not hearsay
 We need a HUMAN to say the statement for hearsay
o The declarant must be a human
 If it doesn’t say something true about the state of the world – then it is not a statement
o Examples of not statements [there is a declarant here, but there are not statements – we
can only make inferences here]
 Saying hello to someone – social pleasantry
 Questions
 Exclamations
 Commands, orders  “do this, get this”
 Respond to commands
 Inquiries
 The statement must be voluntary  assertive intent
o “ow” – not voluntary
o talking in your sleep – not voluntary
145. Reverand Taylor seeks to testify that Mr. E never complained about Jesse’s demeanor at work. Argue
the hearsay objection.
 As Ross – why is this relevant?
o This assumes Jesse’s work was satisfactory
o So for her to be fired – she stole the brooch – which means there is no defamation b/c Ross’
statements would be true then
 Argue the hearsay objection:
o Not hearsay b/c there is no statement here
 No assertion that they were happy with her work  silence is not an assertion,
you are drawing an inference about the silence that the Easterfield’s were
satisfied with Jesse’s work

 Truth of the matter asserted

o If the statement proves what you want it to prove / the jury doesn’t believe it -- then it is not
offered to prove the truth of the matter asserted
 Counsel will argue:
 “Not offered to show the TMA asserted, but to show __X__” BUT an
assertion can be phrased as a question – hidden assertion
 X must be:
 1. Credible;
 2. Relevant;
 3. FRE 403 (what is the unfair prejud? The jury will actually try to
use it for the truth of the matter asserted, not for what it is being
offered for)

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  Most common thing X is used to show: State of Mind!
 Declarant’s state of mind; reader’s; listener’s
o 801(d) exclusion – could be used to prove TMA
 Example: Rumors that Ross fired previous exec director.
o This will be offered to show Marlow’s state of mind
o  counsel: 403 arg  jruy won’t use for Marlow’s state of mind but rather that Ross is sleezy
149. Marlow testifies for the defense. On cross-examination, the  seeks to inquire into the “rumor” that
Marlow described in Marlow’s deposition about the firing of the previous exec director.  objects on hearsay
grounds. Argue the objection.
 Is there a hearsay problem? To show Ross fires ppl for personal reasons?
o Yes – using prior acts to show the truth of the matter asserted instead of showing state of
mind
When else are words offered NOT for the truth of the matter asserted?
 1. Verbal markers/objects
o Logos, brand names, company names on trucks, symbols, labels  using words but not
asserting anything a/b the real
 2. Verbal acts having independent logical significance
 3. Verbal acts having independent legal significance
o Words themselves affect the legal significance  perjury/fraud cases/statements in
harassment/discrim cases
o The words are the facts of consequence here
o It matters if these words were spoken regardless if they are asserting the truth; regardless if
the substance is true
o Don’t overuse this doctrine – only use this to define the legal relationship
 A testifies that he ran over to the car and X said “I’m alive”
o The act of speaking shows that X is actually alive b/c X spoke. It doesn’t matter what X
actually said. The substance isn’t relevant here. The fact is that X spoke and it shows X is
alive.
 “Here is the key to my car; fill it up and bring it back to me in the afternoon” – words explain the
conduct – not hearsay
151. Kelly Emerson is asked to state her name for the ct and jury.  objects on hearsay grounds and offers to
conduct voir dire of the witness to show that she is relying on hearsay from her mother. Respond for defense.
 : This is ridiculous - her name doesn’t say anything about the world – it is a verbal marker
 Name is used to mark/identify someone/label/symbol. It is not an assertion
 This uses words but only for how we identify an object/person
Ex: Marlow on stand  Ross said: “She stole from me”
 Ross is the declarant, “She stole from me” = statement
 This statement IS the operative legal event
 This is the exact defamatory statement
 Not offered for the truth of the matter asserted b/c Jesse is actually trying to prove that she didn’t steal
 This statement is not being used to prove some other fact of consequence  it is proving the operative
legal event of the case
 These words were spoken and are actionable
 The words violate a legal right
147. Easterfield is testifying. He is describing the events of July 17 and says “I told her she could stay …” 
objects and moves to strike as hearsay. For the defense, respond the objection.
 If you had been sitting in the room w/ Ross – you would have heard Ross say “stay”
 Want to bring this in – you are Ross’s lawyer
o Jesse objects that this is hearsay.

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 o Argue the objection of why it is not hearsay.
o By saying “stay” – this shows he didn’t think she stole the brooch – which then shows he
didn’t make the statements she stole.
 “stay” is not a statement, it is a command
 “stay” is an offer for Jesse to stay
 These words show Jesse was not fired
 Declarant and testifying can be the same person
148. Easterfield then testifies that Jesse responded “No!” to his invitation for her to stay.  moves to strike on
hearsay grounds. Respond for the defense.
 Defense objecting hearsay
o Jesse declined the offer
o Jesse quit as a voluntary act and didn’t leave the job b/c Ross falsely accused her
o This speaks to Jesse’s state of mind
152.  in Macintyre offers an edition of the Nita City Tribune containing the ad placed by the Nita Athletic
Club.  objects on hearsay grounds. For the , respond.
 What fact of conseq is shown by the ad?
o That there was a job opening
 Response to hearsay objection:
o ’s side: its an invitation to the world to apply for the job – it has independent legal
significance
o The ad determines the legal relationship b/w the country club and the rest of the world
o You can argue that it is independent logical significance
 That there was a job opening
 Doesn’t matter what was said – all it matters is that they were asserting there was a
job opening
 Jesse could try to argue that the ad didn’t say “ex-convicts cant apply” (which Marlow said was the
basis of not hiring her)
o Then  will argue that omission is not an assertion – silence is not hearsay
 What is the indep legal significance?
o What does the silence do?
o This establishes the terms of the offer
150. Jesse testifies that Marlow told her that she is “exceptionally well qualified for the job.” Defense objects
and moves to strike on hearsay grounds. For the , argue the objection. For the defense, respond.
 If you were sitting in the room w/ them – you would have heard “you’re exceptionally well qualified”
o This is a statement
o Marlow is the declarant, Jesse is the witness
o  tries to object on hearsay grounds
o  argues against hearsay – can you argue that it is not offered for the truth of the matter
assert?
 Offered to show Marlow’s state of mind
 Marlow believed to have though that Jesse was qualified  this makes it more
probable that she wasn’t hired b/c Ross’ defamation
  response that it shows Marlow’s state of mind  403 arg that jury would use it for
the truth of the matter asserted
   403 arg fails b/c the probative value is high here. Prejud is not subs outweighed
o Why in this situation does it matter that we can’t evaluated Marlow’s demeanor?
 B/c we don’t care if its true that Jesse is actually qualified  all it matter is that
Marlow said the statement

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 o As  is there a different argument you can make before you do 403 to keep out the evid? (not
offered for truth, but to show ____)
 Relevance argument  is it relevant that Marlow thinks Jesse is well qualified? 
the inferential chain only works here for the  if Marlow is the decision maker in the
hiring. Then 104(b) – suff to support a finding. It is only relevant if Marlow is the
decision maker and then the inferential chain works.
o Not offered for the truth of the matter asserted, but to show Jesse’s state of mind
 : Why is Jesse’s state/mind relevant?
 : damages for her
 : 403 arg is stronger
164. Emerson seeks to testify to the words the Easterfields exchanged in the argument recounted Kelly
Emerson’s deposition.  objects on hearsay grounds. Argue the objection.
  hearsay objection: not offered for the truth of the matter asserted  but for Mr. and Mrs. E’s
state/mind  Mr. E thinks Mrs. E is dumb and Mrs. E thinks Mr. E is philandering trash.  will then
the argument that its not relevant.
156.  offers Reverand Taylor’s March 12 letter to Easterfield. The only objection is hearsay. Respond to the
objection for the .
 Rev. Tay = declarant
 Letter = assertions
 Not offered for truth/matter/asserted, but to show Ross’ state/mind
o B/c Ross reads the letter which said that Jesse is sensitive/needs compliments  which shows
that Ross acted w/ malice when firing her. He loses his immunity defense/now liable for
punitive damages.
o It doesn’t matter whether Jesse actually is sensitive/needs compliments (that would be the
substance of the assertion)
HEARSAY EXCLUSIONS – 801(d); 805
 801(d)(1) – A Declarant – Witness’s Prior Statement.  3 exclusions to the hearsay (declarant
takes the stand and is subject to cross-exam about a prior statement and the statement:
o 801(d)(1)(A) – prior statement is inconsistent with instant one, and prior statement had to be
given under oath. Judge will decide whether its inconsistent with 104(a) b/c it's a prelimin
ques concerning inadmissibility. If not inconsistent - then admissible
 Exclusion – that it is not hearsay – now you can use the letter for TMA – but in this
example the letter can’t be used b/c it was not made under penalty of perjury/oath.
o 801(d)(1)(B) – consistent with the declarant’s testimony and is offered to rebut an express or
implied charge that the declarant recently fabricated it or acted from a recent important
influence or motive in so testifying:
 When witness said “X” on the stand indicates that statement “X” was recently
fabricated. So on re-direct ask for a prior statement that is consistent with “X” – it
corroborates my testimony; it’s coming to prove “X” (the truth of the matter
asserted). Can only use it after you have been attacked (need an attack of fabrication
or improper motive or influence). It has to be a recent fabrication about the statement
on the stand. Need something to indicate that when witness said “X” that it was
fabricated.
o 801(d)(1)(C) -- identifies a person as someone the declarant perceived earlier:
 Brooke :“I saw Joe killed Leslie” – offered for the truth of the matter asserted but it’s
→ identification of a person made after perceiving the person (often used in line
ups). If S testifies that B told him that she saw J killed L – it’s ok as long as B
testifies at some point and be subject to cross (b/c under 801(d)(1)(C) declarant
testifies at trial. If B does not testify, then use 803 (1) or (2)

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  801(d)(2) – An Opposing Party’s Statement. - Exclusions – out of ct statements and not treated as
hearsay = statements by a party and offered by the opposing party will be allowed in!
o (C) - agent/manager/lawyer : person authorized by the party to make a statement; (D) – by
agent concerning the scope of agency or employment; (E) – coconspirator.
o The person offering evid = person asking the question
o Why do treat this as not hearsay and allow it in?
 B/c its reliable/trustworthy/truthful
 If you make a statement that is adverse to your interest it is likely true. You
wouldn’t say it knowing its true.
 Anything you say can and will be used against you  801(d)(1)(2)(A)
 And your silence can’t be used against you
153. Taylor testifies consistently with his deposition as to Jesse’s fine qualifies for the job at the club.  seeks
to introduce the letter he wrote to Nita Transit Authority to impeach his testimony. Argue the objection.
 Rev. Talyor = declarant and witness
 There are out of ct statements and assertions
 Declarant is testifying but a/b a statement that wasn’t made on the stand
 Declarant is subject to cross-examination/he is under oath
 What do we do w/ the out of ct statement?
o 1. Declarant can confirm that “yes I said that”  then this becomes a statement that is made
in ct  therefore it becomes his testimony and no more hearsay issue OR
o 2. Declarant cant deny the statement and also then says it isn’t true – now we have a hearsay
issue
 801(d)(1) – the declarant’s statement is a prior inconsistent statement.
 Response to hearsay obj: as Ross’ lawyer argue why this should come in 
PSI impeachment
 Argue its not hearsay b/c its not offered for TMA. Offered for inconsistency
of statement.
 Jury only needs to believe that rev. Taylor wrote the letter
159. Kelly Emerson is testifying for the . She recounts her telephone call to Jesse after the brooch was
found. She testifies that Jesse told her that “she [Jesse] couldn’t get a job and that everywhere she turned Mr.
E had ruined her chances for the job.” Respond to the hearsay objection.
 Kelly = witness
 Jesse = declarant
 Jesse = made statements/assertions
 Is this admissible under 801(d)(2)(A)?
o NO  The statement must be offered by the opposing party! – Kelly is testifying for the .
Ross could use these statements b/c he is opposing party.
o  could argue its not hearsay bc its not offered for truth/matter/asserted, BUT for Jesse’s
state/mind – she was sad, upset, etc
o  response  its not relevant, Jesse’s sadness is not relevant and 403  probative value of
her sadness is low. Jury could the statement “Mr. E had ruined her chances for the job” 
really strong 403 arg – Jury would use it for the truth of the statement.  would win 403 arg.
165. Ross Easterfield testifies for the defense. He seeks to testify to the conversation he had w/ Peter Zanoni
(deceased gardener) on July 17. Argue the hearsay objection.
 Ross = witness
 Jesse = declarant #1, Zanoni = declarant #2
 Need to understand the context of the statement
o Jesse saying “nothing” = “I have nothing to hide”
 This is an example of layers of hearsay  each chain of hearsay must fit the hearsay rules (805)

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  Argue that its not hearsay and should come in (Jesse’s statement):
o Its not for the truth/matter/asserted  but that Jesse was actually in the bedroom (a verbal act)
or it was a social pleasantry
 Or it can come in under 801(d)(2)(A) b/c Ross is offering statement of opposing
party.
 Argue why Zanoni’s statements can come in:
o Can’t show for truth/matter/asserted bc its asserting the whole encounter actually occurred 
the jury has to believe this and the substance of the event
 We can’t cross-ex the gardener b/c he is dead
 It doesn’t matter whether what Zanoni said is true – what is important is that Ross
heard it.
  response: 403 arg.  jury will use it for the truth that b/c she was acting
suspiciously and therefore she did steal the brooch
 Suppose Zanoni is alive and you can put him on the stand.
o Can Zanoni testify a/b this event?
 Yes
 Can he testify a/b Jesse’s behavior?
 Yes – it can be a pleasantry
 Not for the truth/matter/asserted
 OR it can come in under 801(d)(2)(A)
 NO MORE HEARSAY ISSUE !
168.  calls Kelly Emerson and questions her concerning Mr. E’s conversation w/ his wife concerning an
earlier “missing” piece of jewelry. (“She looked down…”). Consider the admissibility of each of the sentence
in Emerson’s description of that exchange.
 If you are Jesse argue to bringing it in and that its not hearsay.
 First - why is this relevant?
o This shows Ross was aware/had knowledge that Mrs. E loses jewelry/she did in the past
o Can be used to show habit – way to get around prior acts. This rebuts Ross’ truth defense
o “who took my engagement ring?”
 Under 801(c) – it's a question but has a HIDDEN ASSERTION
 Hidden assertions – within asking the question of “who took my
engagement ring”  Mrs. E is asserting that someone took her engagement
ring
 Ex: Is it raining? Not hearsay
 Ex: Has it stopped raining? Hearsay issue b/c of hidden assertion
o This can come in b/c it shows Kerry’s state of mind, not truth/matter/asserted
 Jury doesn’t have to believe she jumped to conclusions
 Substance of the statement
 Could be a verbal act
 Show Kerry freaks out when she thinks she lost something – precise words
don’t matter!
Ross asks Qs  “where did you last see it?”
 Ross = declarant
 Kelly = witness
 Hearsay objection  Reply
 Argue not hearsay – b/c they are Qs – not assertions/there is no hidden assertion
Ross slams paper and walks out
  argument  why hearsay?
o Non-verbal conduct – intended to be an assertion

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   argue not an act associated w/ asserting something
o draw inference to get to “im mad”
 Not asserting im angry but drawing inference from act
 If its close then resolved against it being assertive/hearsay
o 104(a)  determination of admissibility – judge decides
 If said yes it is assertive
 Then go to 801(d)(2)(a)
  is offering evidence
 Statement of a party – Ross offered by the other party
176.  calls Reeve Winsor. During Winsor’s testimony, he says that he negatively evaluated Jesse before he
spoke with Ross.  seeks to confront him w/ his depo testimony: “After I had spoken with Mr. E, I negatively
evaluated her file..” Permissible? At the end of ’s evid,  moves for a partial directed verdict, arguing that
there is no evid of casuality b/w E’s statements and ABC Employment agency’s negative evaluation. Ruling?
 Winsor  whatever Ross said didn’t affect Winsor’s decision
o Have a prior inconsistent statement
 How is this admissible?
 Impeachment purpose
 Show inconsistent/changing story
o If you get hearsay objection what do you argue?
 Not offered for the truth/matter/asserted
 Also can be brought in for substantive purposes – negatively evaluated
 801(b)(1)(A)
 Declarant testifies (Winsor) & on stand & subject to cross
 Inconsistent
 Under oath
o  moves for 50(a) motion
 argue no evid of causation
 Jesse has no causation testimony – why do you argue motion should be denied?
 B/c it can come in as both TMA and substance
 So can come in for TMA  so Jesse has offered evid  its for
jury to decide if they want to believe Winsor  Jesse carried
B/produc
 Survive judgment as a matter of law
180. Jesse has testified. On cross,  asks her “Isn’t it true that you testified at your depo that Mr. E ‘ never
seemed to take any of Mrs. E’s raving seriously’?”  objects on best evid and hearsay grounds and that the
statement is improper lay witness opinion testimony. Respond for .
 Relevancy  must have been something more going on
 801(d)(2)(a)
o Jesse = declarant
o  offered evid in
o TMA  dose jury need to belive what Jesse said is true? YES b/c it is for TMA
155. Marlow testifies that the club had a firm policy against the hiring of ex-cons when Jesse applied. Rev
Talyor then seeks to testify that Marlow had previously offered to hire ex-cons. This alleged convo had not
been mentioned to Marlow on cross. Argue obj.
 Marlow on stand. Testifies that club has a policy of not hiring convicts.
o Jesse wants to offer PIS – want to hire more ppl from the Reverand
o Afraid of Ross
o Re-direct – ask about policy
 Ross wants to ask Marlow about statement made to Kerry about policy

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  Marlow = declarant
 Marlow = witness
o 801(d)(1)(B)
 Prior consistent statement w/ the declarant’s testimony
 Not PIS
 Offered to rebut recently implied charges
 Marlow is influenced by that
 Improper influence
 Comes in TMA  club did have policy against hiring ex-cons
 Comes in to corroborate
 What originally said on stand was fabricated  only can corroborate if need
to collaborate in response to recent evid for fabrication
 PIS – must have been made before Marlow knew that he needed to suck up
to Ross
 pre-date improper motive/influence
 Rule 803 - Exceptions – are hearsay proving TMA / out of ct statement.
o But still let in b/c circumstances of the statements give the suff guarantees of truthworthiness
 Don’t need cross
 Availability of declarant doesn’t matter for purposes of satisfying rule
 (1-3)  Spontaneous statements
 1. Why sufficiency guarantees of truthworthiness? (SGT)
 No time to fabricate
 Not going to lie about what your seeing while seeing it
 Rule 803 - The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
o 803(1) Present Sense Impression. A statement describing or explaining an event or condition,
made while or immediately after the declarant perceived it.
 Who will testify  assumption is person that heard it must have been right next to
someone that said it – probably also heard even – could collaborate evid
o 803(2) Excited Utterance. A statement relating to a startling event or condition made while
the declarant was under the stress of excitement that it caused.
 SGT?
 No time to fabricate
 Too excited to fabricate
 Don’t have that thought process to make lie
o 803(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory,
or physical condition (such as mental feeling, pain, or bodily health), but not including a
statement of memory or belief to prove the fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.
 SGT?
 Not going to lie about how your feeling
 Motive/intent – good indicator of subsequent acts
 Good inference acted in accordance w/ intent/motive
 If say you want to do X – good inference that you did in fact do X
o 1 & 2 = factual determination
 404(a) – who makes judgment? Goes to admissibility if falls into exception
o 803(1) – fact Q to know if comes in?
 When did the event happen?

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  When was the statement made vs. when the event happened?
 Timing issue (10-15 min)
o 803(2) – factual Q?
 (1) nature of event influences the event occurred and the event was startling
 (2) declarant in state of excitement
 Time lapsed – when statement made & startling event occurred closer in
time  excitement
 (3) event caused the startling statement
o Additional element for 1 & 2
 Specific circumstances – show reliability – something about this particular statement
that makes it reliable/not reliable
o 803(3) – difference b/w statement of state of mind & inference from statement of state of
mind
 Both come in but keep distinct
 (3) – “its hopeless” – infer she is sad – don’t care about TMA
 Infer state of mind from statement – not TMA
 Both not hearsay but came in for 2 diff reasons
150. Jesse testifies that Marlow told her that she is “exceptionally well qualified for the job.”  objects and
moves to strike on hearsay grounds. For , argue the objection. For , respond.
 Marlow – “I intent to hire you” – inference  comes in b/c not TMA
 Marlow actually saying “I intend to hire you”
o TMA
o 803(3) – directly asserts intent & mental state

 (1 to 3) – all expected to be oral rather than written

 written statement – can’t figure out state of excitement or when wrote it
 Now changed  fb/ texting
o Indicates excitement + timing
178. Brooke testifies that she told the police officers who arrived at her home on Sept 10 that she had just
seen Joe kill Leslie.  objects on hearsay grounds. Argue the obj.
 Statement happened 15 min after shooting
o Is this immediately there after?
 Nature of event doesn’t matter
 Long time – fabrication
 15 min is generally outside of immediately thereafter
 Present sense of impression
 803(2) Excited utterance
o prove still under excitement
 time + nature of event matter
 the startling event occurred + caused the excited statement
 yes – infer still excited
o look subjective declarant – but also look to see if event is exciting (objective)
 801(d)(1)(c) – declarant on stand  Brooke
o Subject to cross
o Out of ct statement
o Describing something after you preserved something
 Normal situation allowed to come in under this – statements made in a line up
 Yes – if Brooke on stand – satisfies (D)(1)(c)

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 o If officer takes the stand testifying to what Brooke said? Can it still come in under
801(d)(1)(c)?
 Switched to facts of #179
 No requirement in rule that declarant and witness need to be the same person
o Yes can still come in if officer testifies
 Still identifies a person made after the declarant perceives them
 But Brooke still needs to testify and be subj to cross
 At the same point declarant takes the stand
 Still bring in under 803(1) & (2)
 If it meets the elements
182. Jesse is testifying for , testifies that as she was leaving she said to Mr. E, “after all this time, now you’re
calling me a theif” and that he then said nothing.  objects, argue hearsay obj. [ knows that Mr. E would
testify that he shook his head “No!” to Jesse’s claim that he thought she was a thief and that Jesse would said
“Mr. E was shaking his head violently back and forth during this time.” Should the ct consider these 2 latter
facts in ruling on admissibility? What procedure could the  follow to allow the ct to consider them?
 Declarant = Jesse – describing something she said
  hearsay obj   response – that's the defamatory statement – independ legal significance
  responds – not actual defamatory statement – she is repeating the defamatory statement so not indep
legal significance
 Present sense impression? – not explaining event/condition
o Just repeating what she thinks Ross said
 Offering for TMA of what Ross said
 Could it come in under 801(d)(2)(a)?
o Not offered against Jesse
 Its Jesse’s statement offered for Jesse
 Silence  801(d)(2)(B) – silence indicates that he did in act call her a thief
 Manifested that it adopted or believed it to be true
 Now Ross is declarant
 Now Jesse offering statement against Ross (declarant)
o What does the ct need to figure out?
 Does the silence manifest an adoption or belief
to be true?
 104(a)  goes to admissibility
o RULE: for if silence adopts the accusation “if it is
normal, natural, and possible to response to that
statement/accusation”
 Elements necessary to determine if silence is an adoption:
o (1) Definite/accusatory statement of fact
o (2) if it were untrue a reasonable person would respond
o (3) the listener is able to answer
o (4) is something the listener knows about
 104(a) determination for the ct
 If Ross shook head side to side  not silence – this is non verbal
conduct
o What might it mean?
 Disagreeing with her
 801(d)(2)(B) – didn’t adopt or except statement
o can’t come in then

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  Or shaking head could mean  angry/annoyed – mad at her for
stealing the brooch
o Then he is adopting that she is a thief
184. Reverend Taylor is the witness. He seeks to testify that Kelly Emerson told him that breakfast was
always served at the Easterfield house at 9am weekends and at 7am during the week. The only objection is
hearsay. For the P, respond.
 Why relevant?
o Explains why Jesse was so flustered when asked to look for the brooch. It was bc she had to
be at church soon. This fact sets the time frame
 Is it hearsay?
o 801(c)  TMA? Yes. A jury must find that it must actually be trust that bfast is at 9am to
establish the timeline
 Yes Hearsay. How do you respond to the hearsay objection?
o 801(d)(2)(d) “was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed”
 Statement made by Kelly (employee) and the time of bfast is in the scope of Kelly’s
employment
o 801(d)(2)(c)- “was made by a person whom the party authorized to make a statement on the
subject”
 doesn't really apply, this rule applies more to someone w/ speaking authority (ex.
attorney)
187. The prosecution in Mitchell seeks to elicit from Chris Ravenna the following testimony: “I remember I
said to him (Joe) that he’d better be careful, bc it was loaded, or something like that.” Chris would testify to
saying that immediately after noticing two bullets in the gun, something that surprised Ravenna. Argue the
hearsay objection.
 Argue why should come in?
o 803(2) Excited Utterance Chris was in a state of excitement after noticing 2 bullets in the
gun
o “be careful”  is an instruction/command  not an assertion about the world  not hearsay
189. Jesse is testifying on direct. She testifies that Kerry, on the morning of July 17, asked her to look for the
brooch. She is then asked what she said in response “All right, but I’d rather not. I have to go to church.”
Defense objects on hearsay grounds. Argue the objection.
 Declarant = Jesse (she is responded to Kerry’s command to look for the brooch)
 Is Jesse’s response an assertion? Yes  tells us something about the world
 Why Relevant? Tells us that Jesse wasn't hiding or concealing the brooch- the reason Jesse didn't
want to look for the brooch is bc she had to go to church
o BUT: if Ross doesn't assert truth as a defense then Jesse’s response wouldn't be relevant for
why Jesse was acting weird
 TMA? Yes the jury must believe that Jesse had to go to church to believe that she was acting weird bc
she was in a rush and therefore didn't steal the brooch
 Yes Hearsay. Argue how to get it in?
o 803(3) Then-Existing Mental, Emotional, or Physical Condition
 is an assertion of the declarant’s state of mind (how we know that it is Jesse’s state of
mind is bc Jesse told us), (offered for the TMA)
 There are 2 ways to come in under state of mind (both come in but keep them distinct!!!):
 (1) not offered for the TMA bc shows state of mind, OR
 (2) 803(3)- yes offered for the TMA but still comes in bc declarant’s assertion shows state of mind

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190. Kelly testifies for P that she had a telephone conversion w/ Jesse after the brooch was found. In the
conversation, Jesse said, “I just feel so so bad. There’s nothing for me, just nothing.” Argue the hearsay
objection.
 “I feel so so bad”  comes in under 803(3) bc Jesse is saying how she feels (state of mind)
 “there is nothing for me, just nothing”  is not directly saying that she feels hopeless- need to make
inference so cant come in under 803(3)
o BUT comes in bc it is not offered for the TMA and shows Jesse’s state of mind (jury just
needs to believe that Jesse’s believes that there is nothing for her and is sad  not that there is
actually nothing for her)
226. Jesse seeks to testify: “In early August, Kelly called me and told me that the missing brooch had turned
up in the lib of the Easterfield home. She called me 15 minutes after she found it, she said. I think Kelly told
me that Kerry admitted leaving the brooch in the lib.” Objection is hearsay. Argue the objection.
 Relevant? Shows that Kerry misplaced the brooch and Jesse didn't steal it
 TMA? Yes the jury needs to actual believe that Kerry misplaced it to infer Jesse didn't steal the brooch
 Declarant? Kelly
 Assertion? Yes
 Statement is hearsay. How to get it in?
o 803(1) Present Sense Impression
 statement describes an event (founding brooch)
 made while or immediately after  yes 15 min after is immediately after
 How do we know Kelly made the statement 15 min after?
 How did Jesse know it was 15 min. after? Kelly told her
 Therefore we know this from the hearsay statement itself  this is called
“bootstrapping”
 104(a) ct determination  determines if based on the hearsay statement
itself, the statement was made 15 mins. After
 the ct isn’t limited by the rules and ct can consider a hearsay
statement to determine if a hearsay statement meets the necessary
elements to get the statement in
 In the Supreme Ct case Bourjaily v. US (1987) (conspiracy case) the ct held
that under 104(a) the ct can find elements needed for conspiracy by looking
to at the hearsay statement itself
 The advisory committee later overturned this case and held that
under 104(a) the ct can consider a hearsay statement itself to
determine if it meets necessary elements to come in, but need other
evid. also (hearsay statement by itself is not suff.)
 801(d)(2)(E) “was made by the party’s co-conspirator during and in
furtherance of the conspiracy” (codified Bourjaily case)
 Add on paragraph after: (codified advisory committee holding to overturn
Bourjaily case)
 “the statement must be considered but does not by itself establish the
declarant’s authority under (C); the existence or scope of the relationship
under (D); or the existence of the conspiracy or participation in it under
(E).”
 How does the add on paragraph effect getting Kelly’s statement in in this case?
 The add on paragraph only applies to the 3 exceptions listed
 Doesn’t apply to 803 so the hearsay statement alone is suff. To establish
that the time was immediately after
o 803(2) Excited Utterance

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  Kelly was excited that they found the brooch bc the lost brooch has caused a lot of
stress and a lawsuit
 2nd layer of hearsay: Kelly  Kerry (Kelly later tells Jesse who is on stand- lst layer)  Kerry said
to Kelly that she remembers leaving the brooch in the lib.
o TMA? Yes. Jury must believe the statement to believe that Jesse didn't steal the brooch
o New Declarant = Kerry
o This is hearsay so how do you get it in?
 803(3) Mental State No. bc this exception doesn’t apply to “memory or belief”
and this is a memory
 801(d)(2)(a) No. bc statement was not made by a party to the case (Kerry)
 803(2) Excited Utterance  No. the excitement is related to the brooch being found
not the event of remember that she left it there
 the excitement relate to the event of the statement
192. Kelly has testified only that she found the brooch “in the lib.” There was no cross-examination on that
point. In the defense case, Kerry testified that Kelly told her that she “just found the brooch hidden behind a
book in the lib.” Argue the hearsay objection.
 Why Relevant that found brooch hidden behind a book?
o Statement suggests that Jesse stashed the brooch and thus stole it
 “hidden”  conclusory  suggests an intent to hide
o if it was Kelly testifying and not Kerry the ct may find that Kerry is not allowed to use the
word “hidden” in her testimony bc it is conclusory
 TMA? Yes. Jury would have to believe the Brooch was found behind the book to believe that Jesse
stashed it there and tried to steal it
 Hearsay so how do you get it in?
o 803(2) Excited Utterance  maybe Kelly was excited bc she found the brooch
o 801(1) Present Sense of Impression if immediate? “just found”  bootstapping is okay
can use the hearsay statement itself to prove immediate
230. Kelly testifies for the P. She testifies that Jesse told her, on the morning of July 17, “that she didn't want
to be late that day, since the opening hymn was one of her favorite and always gave her the courage to go on.”
Argue the hearsay objection.
Break down into 3 diff. statements:
 (1) “she didn't want to be late for church”
 Relevant? Explains that Jesse was flustered and in a rush bc she wanted to get to church- not bc she
stole the brooch
 TMA? Yes. The jury must believe the truth of the statement to draw the inference that she was rushed
for other reasons not bc she stole the brooch
 Hearsay so how should it come in?
o 803(3) Yes. statement of the declarant’s then-existing state of mind  “I don't want to be
late”
 (2) “the opening hymn was one of her favorite”
 TMA? Yes. Jury must believe it actually was her favorite hymn bc then it explains why she was
rushed
 Hearsay so why does it come in?
o 803(3) yes. States her mental feeling  what she likes
 (3) “the opening hymn was being played that morning”
o TMA? No. doesn't matter if the hymn was actually played that morning, only matters that
Jesse believed that the hymn would be played that morning (not hearsay)
 (4) “It always gives her the courage to go on”

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 o TMA? No. doesn't matter if hymn actually gives her the courage, just how she feels and if she
believes it gives her courage. (not hearsay)
o OR could argue 803(3) statement of the declarant’s then-existing state of mind
191. Assume that Brooke’s neighbor, John, rushed over to her house after he heard the gunshot. Brooke told
him that Joe had shot her w/ a revolver. John accompanied Leslie to the hospital in the ambulance. When
the paramedic asked him what happened, John said, “Her husband shot her w/ a revolver.” Assume the
paramedic is called to give other occurrence witness testimony and is asked what John told him. The
objection is hearsay. Response?
 2 layers of hearsay:
 (1) neighbor  Brooke (“Joe shot Leslie w/ a revolver”)
o Declarant = Brooke
o Relevant? Yes. Shows the fact of consequence that Joe shot Leslie
o TMA? Yes.
o Hearsay so why does it come in?
 803(1) Present Sense of Impression. Yes bc immediately after and it was a
statement describing the event
 803(2) Excited Utterance. Yes bc Brooke saw the startling even and made the
statement before the paramedics got therefore the statement was made very soon
after and Brooke was prolly under the state of excitement
 (2) paramedic  neighbor
o Declarant = neighbor
o Cant come in under 803(1) Present Sense of Impression bc neighbor didn't perceive the
event that the statement was describing
o 803(2) Excited Utterance? Did the shooting described in the statement cause the
stress/excitement? NO. It would be Brooke’s statement to the neighbor that caused his
excitement, not the actual shooting
 **803(2) presumes the declarant perceived the startling event
o 803(3) Then-Existing Mental, Emotional, or Physical Condition? ”not including a
statement of memory or belief to prove the fact remembered or believed”
 NO. This statement is not how the neighbor is feeling, offered bc Brooke “believes”
Joe shot Leslie
 Relevance? No. Brooke’s state of mind doesn’t make it more or less probable that
Joe shot Leslie (what trying to prove)
o 803(4) Statement Made for Medical Diagnosis or Treatment. A Statement that:
 (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
 (B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
o Yes this exception brings in all parts of the statement except for the part that identifies Joe
o The Paramedic asked a Q that is reasonably pertinent to medical diagnosis or treatment?
 3 parts of the statement:
 (1) “Leslie shot”  yes reasonable pertinent to medical diagnosis or treatment
 (2) “shot w/ a revolver”  yes reasonably pertinent to medical diagnosis or
treatment
 the paramedic need to know that she wasn't shot with a shot gun (creates
different injury)
 “Joe did the shooting”  ID is not relevant unless the ID is show how relevant to
treatment or diagnosis
 ex. if sexual assault and they had AIDS
 ex. child molestation  harm is different if parent does it than stranger

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  here Joe’s ID if not relevant
 New Scenario w/ 804(4):
o ER doc on stand  Paramedic  Neighbor  Brooke (same statement as before)
 Layers of hearsay:
 Neighbor  Brooke (comes in under 803(1) and (2))
 Paramedic  Neighbor (comes in under 803(4) minus Joe’s ID)
 ER Doc  Paramedic
 Exception to 803(4):
 **Doesn't come in under 803(4) bc this exception doesn't apply to one
medical personnel to another medical personal
 **803(4) doesn't matter if the info doesn't come from the actual patient
(here Brooke provides the info for Leslie)
Business Record  803(6)
(A) made at/near time by someone with knowledge
(B) kept in course of regularly conducted activity of bus./org./occupation
(C) regular practice
(D) testimony of custodian or other qualified witness
(E) source/method does not indicate lack of trustworthiness
Recorded Perception  803(5)
(A) on a matter witness once knew, but no cannot recall to testify fully/accurately
(B) made/adopted by witness when fresh in memory
(C) accurately reflects witness’s knowledge
Difference between 803(6) and (5)?
 803(5) is a refresher, ordinarily doesn't come in as exhibit, only read into evid., the actual evid. is the
testimony that reads the evid.
 if the evid. is offered by an adverse party then evid. comes in as an exhibit (party admission exception)
 803(6) not a refresher, record comes in as evid as an exhibit, evid. stands on its own
Always use 803(6) first bc the evid automatically comes in
 Steps if don't remember:
 (1) ask if W remembers  if they answer I don't know/ I don't remember then go to (2)
 (2) refresh recollection (present recollection)  show them the evid. and if they remember then have
the testify, if not then (3)
 (3) if it doesn't refresh recollection then 803(5) (post recollection)
201. D wants Ross’s desk calendar to be physically in evidence as an exhibit. For the D, ask Ross precisely the
questions that would serve as a foundation. For the P, be prepared to object based on the foundation laid and
to argue the admissibility of the desk calendar notes.
 Desk calendar has a note that says “called Winsor and left message”
 Why Jesse wants this calendar brought in? why relevant?
o It shows Ross did call Windsor and that is why Jesse was not hired
 TMA? Yes. Jury must believe that Ross actually called Winsor
 How get in if hearsay?
o 803(6) Records of a Regularly Conducted Activity. (written form, not oral)
o A record of an act, event condition, opinion, or diagnosis if:
o (A) the record was made at or near the time by—or from information transmitted by—
someone with knowledge;
o (B) the record was kept in the course of a regularly conducted activity of a bus., org.,
occupation, or calling, whether or not for profit;
o (C) making the record was a regular practice of that activity;

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 o (D) all these conditions are shown by the testimony of the custodian or another qualified
witness or by a certification that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
o (E) neither the source of information nor the method of preparation indicate a lack of
trustworthiness.
 Jesse’s 803(6) argument:
o (A) the note was recorded at the time of the calling and Ross had knowledge that he called
 How do we establish that it was recorded at or near the time of the event?
 406 Routine Practice: if have a routine practice of recording convo near
the time of a call?
 This is a 104(a) determination  therefore the ct can look at habit
evid that might not be admissible under 406
o (B) record was kept in the course of a bus.
 Argument against: the record was not related to the bus. bc Ross is in the bus of
real estate
 Counter argument: he is an “employer” so within his bus. practice
o (C) making the record was a regular practice of that activity
 evid. comes in as an exhibit, not read into evid.
 Try 803(5) if 803(6) doesn't work:
o 803(5) Recorded Recollection
o A record that:
o (A) is on a matter the witness once knew about but now cannot recall well enough to testify
fully and accurately;
o (B) was made or adopted by the witness when the matter was fresh in the witness’s memory;
and
o (C) accurately reflects the witness’s knowledge
o If admitted, the record may be read into evid. but may be received as an exhibit only if offered
by an adverse party.
 Jesse’s argument for 803(5):
o (A) Ross doesn't remember if actually made call or if he just intended to call and the calendar
shows Ross that he did call “called Winsor”
o (B) made the note when it was fresh in Ross’s memory?
 Prove through 406: show foundation of routine practice to made notation
o (C) yes accurately reflects the W’s knowledge bc when writes notes he writes the accurately
about what happened
 the evid. is offered by an adverse party therefore the evid. comes in as an exhibit and is not read into
evid.
203. Winsor testifies for the P. For the P, ask precisely the Qs necessary to admit the employment
application. For the D, make any objections, requests, and/or argument based on that foundation.
 Is Jesse asserted anything in her employment application?
o no  info like name and address is not asserting anything just info. needed to apply  verbal
act  what she says in application doesn't matter
 Do we need to prove that Jesse applied for the job?
o Yes bc first have to show she actually applied for the job at ABC for Jesse to show that she
was denied the job based on Ross’s defamatory statements  if she didn't apply for the job
the what Ross said doesn’t matter
 The bottom portion of the application that Windsor filled out?
o 803(6) Records of a Regularly Conducted Activity
 what is the act, event , condition, opinion that the record is describing?

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  Windsor was describing what Ross told Winsor in their convo
 (A) How can we tell was the notes of the convo were made?
 Ask Windsor when he wrote down these notes
 If notes are typewritten/if secretary typed them?
 406  establishes foundation of routine practice of secretary
 803(6)(A) requires “made at or near the time by—or from
information transmitted by—someone with knowledge”
 Does the secretary have to have knowledge?
o **No secretary doesn't have to have knowledge --> bc
“OR”
 (B) “record was kept in course of bus”  testify that Windsor always takes notes in
his regularly conducted activity of bus.
o if no problems of trustworthiness then record comes in
o If evid. comes in under 803(6) then Windsor needs to establish a business duty for Ross and
Windsor’s convo
 Who is the declarant?
o The record itself
o Paper/record  Windsor writing “theft” down on appl.  Ross (telling Winsor “Jesse stole”)
 Additional layer of hearsay:
o We got in under 803(6) the lst layer (paper  Windsor)
o How do we get in Windsor  Ross (“Jesse stole”)?
 801(d)(2)(A) An Opposing Party’s Statement
 the statement is offered against an opposing party and:
 (A) was made by the party in an individual or representative capacity
o or argue not hearsay:
 Not offered for the TMA  jury doesn't have to believe that Jesse actually stole,
just that Ross said it
 This is a verbal act of independent legal significance (Ross’s statement is the
defamatory act that have to prove for this case so not hearsay)
194. Argue the admissibility of Jesse’s loan application.
 If use Jesse’s loan app. To show her assets at the time is it hearsay?
o Out of ct statement? Yes  states the amt of her assets
o TMA? Yes, proving amt of money that she has in acct
o Yes hearsay, how do you get it in?
o 803(6) Records of a Regularly Conducted Activity
 no doesn't work bc Jesse provides info. to someone at bank  this is not Jesse’s
Business duty to fill out the loan application
 Jesse either has to be apart of the organization (work for loan co.)
 OR have some bus. duty to report
o 801(d)(2)(A) An Opposing Party Statement
 “if made by a party in an individ. or representative capacity”
 yes can get the evid. in under this if the evid. is offered by Ross
 Can use the appl. To prove that Jesse is a liar bc there are misstatements on the appl.
o Relevant?
 Cant use that she lied to show that she stole  character evid.
 But can use it by showing that info. on appl. Is false so therefore Jesse had a Motive
to steal (desperate for money), which goes to Ross’s truth def.  404(B)(2) Prior
Act  but admissible bc goes to motive
o TMA? No, just showing desperate for money/that she lied

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 o Not hearsay, evid. can come in
 Can use the appl. To show the verbal act  that she filled out the appl.
o Filling out the appl.  shows she needed money  money likely to steal if needs money 
Ross’s truth def.
o TMA? No. don't actually care what the form says. Just cares about the act of seeking money
by filling out the form
o Not hearsay, comes in
o Ross could use this for his reasonable def.  Ross reasonably believed Jesse stole bc she
needed money  conditioning fact  that Ross knew Jesse filled out the form
 Use the appl. w/ false statement for impeachment?
o Yes under 608(B)  use appl. w/ false statement to show a specific instance of untruthful
conduct
 But cant bring appl. in bc the appl. is extrinsic evid. that cant be brought in under
608(b), but can inquiry about
196. For this problem only, assume that Sergeant John Pierce testifies at Mitchell’s second trial. Argue the
admissibility of the certified copy of the crime lab report.
 How comes in ?
o 803(8) Public Record.
o A record or statement of a public office if:
o (A) it sets out:
 (i) the office’s activities;
 (ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
 (iii) in a civil case or against the govt. in a criminal case, factual findings from a
legally authorized investigation; and
o (B) neither the source of information nor other circumstances indicate a lack of trust
worthiness
 public office = ran by the govt.
 What comes in under 803(8)(A)(ii)?  what matters qualify as observed?
o Ex. description of the skid marks
o Ex. description of the sluge
o Ex. caliber of the gun
 Things observed while doing job
 Can P get this in?
 Exception  cant bring in matters observed by law enforcement personnel in a criminal case
o Is a lab technician = law enforcement personnel? Cts say yes
 Can D get this in?
o Based on the language of the rule this evid cant come in
o But some cts said this is an oversight and the framers of the rule only meant to limit the
prosecution from bringing in this evid. and not the Def.
 Counter argument: the framers knew how to be explicit bc they were explicit in
803(8)(A)(iii)  exception only applies to prosecution in that rule
 What comes in under 803(8)(A)(iii)? Investigation?
o Ex. paraffin test results
o Ex. bullistic test
o Ex. a closer investigation of the gun
 Can P get this in under (iii)?
o No. only D can bring in this evid. for a criminal case
 Can P try to bring in the crime lab report under 803(6) Records of a Regularly Conducted Activity?

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 o Majority view: 803(8) controls bc it is more specific than 803(6)  it wouldn't make sense
to write into 803(8) all the rt to confrontation exceptions for criminal cases if P could just
bring it in under 803(6)
o Minority view: just need any exception
 Can the lab technician to the stand and testify:
o (1) if remembers results then have him testify
o (2) if doesn't remember then can refresh his recollection and he can testify
o (3) if still doesn't remember then 803(5) recorded recollection
198. Argue the admissibility of the St. James Paris schedule of services.
 Relevant? Shows why Jesse was rushing/flustered to leave bc had to be at church
 Not for TMA b/c jury doesn’t have to believe it, just that Jesse believe that mass started at 830.
o Goes to Jesse’s state of mind  but conditioning fact  is that Jesse must have actually seen
the schedule
 But if for TMA - to show that church was actually at that time  803(6) Records of a Regularly
Conducted Activity does not formally work b/c the argument is that event recorded was not at or near
time of the event. (presumption post-event)
 803(3) Then Existing Mental, Emotional, or Physical Condition will fit better b/c organization
(church) can have plans/intent  statement of intent
o Organization’s intent to hold mass
205. Defense in Macintyre seeks to introduce a certified copy of Jesse’s theft conviction to impeach her. 
objects on hearsay grounds. For the defense, respond.
 Why is this relevant?
o B/c you want to impeach her under 609(a) Impeachment by Evid of a Crim Conviction
 This is an out of ct statement
 Is it offered for TMA?
o Yes, it is being offered to show her charac  it asserts she was convicted
o Thus, it is hearsay bc it is TMA.
 How do you get it in?
o 803(8)(A)(i) Public Records. “A record or statement of a public office if:
 (A) it sets it out:
 (i) the office’s activities.
o Can get it in under 803(8)(A)(i) b/c it is public record.
 Suppose you want to show that she was convicted of armed robbery& that she did commit the
underlying conduct when its admissible under 404(b).
o This is out of ct statement.
o Is it being offered for TMA?
 Yes.
o How do you get it in?
 803(22). Judgment of a Previous Conviction. Evidence of a final judgment of
conviction if;
 (A) the judgment was entered after a trial or guilty plea, but not nolo
contendere plea;
 (B) the conviction was for a crime punishable by death or by imprisonment
for more than a year;
 (C) the evidence is admitted to prove any fact essential to the judgment; and
 (D) when offered by the prosec in crim case for purpose other than
impeachment, the judgment was against .
 The pendency of an appeal may be shown but does not affect admissibility.

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  Whatever facts were necessary to establish the elements of armed robbery is what is
being asserted
209. Mrs. E has testified.  calls Kelly Emerson to testify that Mrs. E’s reputation for truthfulness is bad. For
, respond to hearsay objection.
 Why is Mrs. E charac for truthfulness relevant?
o Under 608(a) can come in
 What can you only do after the person’s charac for truthfulness has been attacked?
 Can rehabilitate it, accredit it
 Kelly is testifying to the household staff’s opinion of Kerry
o This is an out of ct statement
o Is it offered for TMA?
 Yes, the jury has to believe what the staff said a/b Mrs. E in order for them to believe
that Mrs. E does have a reputation for truthfulness that is bad.
 It is hearsay.
o How do you get it in?
 Under 803(21). Reputation Concerning Character. A reputation among a person’s
associates or in the community concerning the person’s character.
HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE
Rule 804. Exceptions to the Rule Against Hearsay – When the Declarant Is Unavailable Witness
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
 (1) is exempted from testifying a/b the subject matter of the declarant’s statement b/c the ct rules that a
privilege applies;
 (2) refuses to testify a/b the subject matter despite a ct order to do so;
 (3) testifies to not remembering the subject matter;
 (4) cannot be present or testify at the trial or hearing b/c of death or a then-existing infirmity, physical
illness, or mental illness; OR
 (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or
other reasonable means, to procure:
o (A) the declarant’s attendance, in the case of a hearsay exception under 804(b)(1) OR (b)(5)
o (B) the declarants attendance OR testimony, in the case of a hearsay exception under
804(b)(2), (3), OR (4).
 But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a
witness:
 (1) Former Testimony. Testimony that:
o (A) was given as a WITNESS at a trial, hearing, or lawful deposition, whether given during
the current proceeding or a diff one; AND
o (B) is now offered against a party who had – or in a civil case, whose predecessor in interest
had – an opportunity and similar motive to develop it by direct, cross, or redirect examination.
 (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in civil case, a
statement that the declarant, while believing the declarant’s death to be imminent made a/b its cause or
circumstances.
 (3) Statement Against Interest. A statement that:
o (A) a reasonable person the declarant’s position would have made only if the person believed
it to be true b/c, when made, it was so contrary to the declarant’s proprietary
(ownership/property) or pecuniary (monetary) or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the declarant to civil or criminal liability;
AND

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 o (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it
is offered in a criminal case as one that tends to expose the declarant to criminal liability.
 (4) Statement of Personal or Family History. A statement about:
o (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship
by blood, adoption, or marriage, or similar facts of personal or family history, even though the
declarant had no way of acquiring person knowledge a/b that fact; OR
o (B) another person concerning any of these facts, as well as death, if the declarant was related
to the person by blood, adoption, or marriage or was so intimately associated w/ the person’s
family that the declarant’s info if likely to be accurate.
 (5) Other exceptions transferred to Rule 807.
 (6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A
statement offered against a party that wrongfully caused – or acquiesced in wrongfully causing – the
declarant’s unavailability as a witness, and did so intending that result.

 These exceptions only apply if the declarant is unavailable as defined in 804(a)

 Mere unavailability of declarant does not create hearsay exception  need to fit under 804(b)
214.  in Macintyre reports to the ct that Holman is in prison in San Diego and offers Holman’s statement
contained in the transcript of Jesse’s plea. For , respond.
215.  in Macintyre has been unable to procure the attendance of Holman at trial by subpoena.  seeks to
offer through the ct reporter Holman’s statement to the ct in the transcript of Jesse’s plea. Argue hearsay
objection.
 Is Holman unavailable?
o Falls under 804(a)(5)
 Now - must figure out first if Holman falls under the exceptions 804(b)(1);(5) or
(b)(2);(3);(4)
 Under 804(b)(1)(A) – Holman wasn’t a witness; he was not sworn in; he was a
spectator  and doesn't work under (b)(1)(B) b/c Ross is the other party and he
didn’t even know Jesse at that point; Ross is losing the opportunity to cross at
previous hearing
 Thus, 804(b)(1) doesn’t work.
 Try 804(b)(3)
 Statement against interest will fit into the exception b/c Holman can still be
sued in civil or could hurt his appeal (this just wont subject him to more
criminal liability)
 804(b)(3) works so now it fits under 804(a)(5)(B).
 Now – Jesse must prove she procured Holman’s attendance or testimony.
 She can depose him at prison – this is his testimony; Ross will have
opportunity to CREX at prison; and Holman becomes witness b/c he is
sworn in.
 We still can’t get Holman to Nita City.
 Now we can use the exception 804(b)(1)(A) b/c Holman became a witness and now we look to
804(a)(5)(A).
o Holman is unavailable to get to trial (too costly to fly him to Nita City)  this is okay, we
still satisfy 804(a)(5)(A) b/c we tried to get his attendance but we couldn’t but he fits under
the exception of 804(b)(1)(A).
 When can Jesse use the plea colloquy itself?
o Holman may refuse to testify b/c it can hurt his appeal/civil case. He asserts his 5 th
amendment right.

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 o Can still get it in b/c 804(a)(1)  5th amendment is privilege and now Holman is declared
unavailable  statement will come in.
 If he refuses to answer the question go to 804(a)(2)  then he comes unavailable and it can come in
under 804(b)(3)
 Holman’s statement to ct report in transcript of Jesse’s plea.
o Can get it in under 803(6) but then that is governed under 803(8)  cant get it in.
o Can get it in under 803(5) b/c the ct reporter will come to the stand; if she says “I don’t
remember”; then you do the recollection and lay foundation under 803(5) and then she reads it
to the jury and it will be recorded into evid.
234. Brooke testifies that her stepdaughter turned around on the porch of their home, looked out at the white
car that had just pulled up, and then cried out, “Oh, no…oh no, Joe!’ or something like that.” For defense,
argue admissibility. Respond for prosecution.
 Prosec says its not hearsay b/c its not an assertion – not saying anything about the real world – could
be argued it's a hidden assertion (that Joe is outside)
 Defense objects and says 801(d)(1)(C) identifies a person as someone the declarant perceived
earlier  but this cant identify Joe b/c Leslie cant testify it was Joe b/c she is dead
 Prosec tries to get it in under 803(2) Excited Utterance (lay foundation; Leslie was startled when she
saw Joe); also get it in under 803(1) Present Sense Impression (how Leslie reacted when she saw Joe)
o Under 104(a) ct can consider everything e.g. ct’s threats b/c its not bound by rules of evid on
admissibility  ct can assume the “oh no, oh no” – will show that Leslie was scared of Joe
o 403 arg – probative value is high – may not outweigh prejudice
 Defense tries to keep it out: we don’t know Leslie’s state/mind; claiming cant invoke 803(2); Brooke
hates Joe; Brooke has motive to frame Joe – this is hard argument to win
 Can also get it in under 804(b)(2) – statement under belief of imminent death  ct will consider that
he was a/b to kill her (it would have been more obvious if she said “Joe shot me” after she got shot, not
before)  for 804(b)(2) to work must satisfy 804(a)(5)(B)  does satisfy b/c Leslie is dead and
therefore unavailable
o Defense objects: we don’t know whether Leslie saw a gun – can’t assess that it was imminent
fear of death just bc she saw a car
o Prosec response: we can base it on Leslie’s fear of Joe.
 Under 804(b)(2) – declarant doesn’t actually have to be dead – just need to believe
their death was imminent – this exception rarely is used!!
 Why use in homicide cases and not in other criminal cases:
 b/c the ’s cause/circumstances is in question
 This may not necessarily be a hearsay problem – the precise words in this statement matter “‘oh no, oh
no, Joe’ or something like that”
o Leslie saying Joe identifies Joe
 What rule should we use to keep it out? Not hearsay; not 403
o Brooke isn’t sure that Leslie did say “oh no oh no Joe”
o The issue here isn’t hearsay  its that Brooke is characterizing/interpreting the situation.
Look to 701
 701(a)  rationally based
 701(b)  “clearly understanding the witness’ testimony”
 we need to know for sure that it was Joe that was there and the phrase “or
something like that” does not 100% guarantee that Joe was there
 Prosec needs to know 100% that Joe was there in order to ID Joe
 If Leslie didn’t say “oh no, oh no, Joe”  then this statement does not hold
the force that the prosec is seeking.
 This is a strong arg but won’t necessarily keep the evid out

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  801(d)(2)(a)  use whn declarant is a party to the case
 803 – use when anyone who is not party to case
 804(b)(3)  A v. X, Y (on stand)  Y said out of ct statement
o Y’s statement comes in under 801(d)(2)(a)
o X’s statement comes in under 804(b)(3)
 What matters is at the time the statement was made, did it subject him to criminal liability?
o Sandusky: I was hording around in the shower w/ 10 yr old boys”
 This would subject him to criminal liability
216/217. Alice Adams lives in California.  seeks to offer the 1st quest and 1st answer from her depo transcript
(whose authenticity has been stipulated). Argue hearsay obj. // Hearsay obj is overruled. For , urge the
admission of the remaining questions and answers in the deposition.
 Ross wants to introduce statements from the depo transcript
 804(a)(5)(A)  too $$ to get her to come to Nita City  cannot procure her attendance but we have
her testimony.
o Alice’s depo comes in under the exception of 804(b)(1) b/c its former testimony
o Transcript doesn't come in as exhibit
 We would read in just the statement and it would be recorded into evidence.
 Jesse wants to bring the entire deposition into evid
o This will come in under 106:
 Rule 106. Remainder of or Related Writings or Recorded Statements
 If a party introduces all or port of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other part –
or any other writing or recorded statement – that in fairness ought to be
considered at the same time.
 CREX of the depo shows that Alice Adams was unsure as to when she revealed
Holman’s criminal record to Jesse
CONFRONTATION: HEARSAY AND THE CONSITUTION
 804(b)(6) – see above where rule is typed
o How do we stop the victim’s statement of a murder against  from always coming in?
  must have intended for the victim not to be present!!
 Confrontation Clause – 6th Amendment
o “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the
witnesses against him”
o Does not apply to civil cases or prosecutors in criminal cases
 Applies only to CRIMINAL DEFENDANTS
 Witness: (narrowest) – those who bear testimony at trial; CREX while on stand
o (broader) - anybody who provides evidence that is going to be used against you (police
statements/testimony)
 This is exactly what hearsay is!
 Crawford:
o Trial by ex-parte affidavit
  could not CREX witness
  could not be at proceeding where witness provided the statement for affidavit b/c it
was an ex parte proceeding
 SCOTUS criticizes this in Crawford – “historical evil”
 “Conditions the admissibility of all hearsay evid on whether it falls under a firmly
rooted hearsay exception or bears particularized guarantees of trustworthiness”
 This was the OLD rule and Crawford overruled it
 Why aren’t the hearsay rules alone sufficient?

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  Constitution should not depend on CL
 Confrontation isn’t just a/b trustworthiness of the statement
 Confrontation has a higher value
 Davis and Hammon cases:
o How to determine if statement is testimonial?
 Not just about formality of statements made
 It is also about what is the “primary purpose of the interrogation”  if primary
purpose is for criminal prosecution then testimonial.
o (lang. by the ct in Davis and Hammon  to determine primary purpose  look to see if
ongoing emergency)
o Testimonial: circumstances objectively indicate no ongoing emergency and that primary
purpose is to establish/prove past events potentially relevant to later criminal prosecutions
 Formal, solemn declarations or affirmations to establish/asserting a fact (what looks
like testimony!)
 Ex: testimony in ct on stand under oath; police interrogation; preliminary hearing;
grand jury; depositions, affidavits
o Non-testimonial: made in course of police interrogation under circumstances objectively
indicating primary purpose to enable police to meet ongoing emergency
 Is it testimonial?
 If yes, confrontation clause applies  it is inadmissible UNLESS the
declarant is available for CREX or if unavailable, accused had prior
opportunity to CREX
CONFRONTATIONAL FLOWCHART
 1. Admissible under hearsay rules?
o Falls under an exception
 2. Is it testimonial?
o No  admissible, no confrontational issue
o Yes  not admissible, UNLESS
 Declarant testifies; OR
 Declarant unavailable &  had prior opportunity/motive to CREX; OR
 Not T/M/A; OR
 Since not TMA, no hearsay problem, so no confrontation clause problem
either!
 Two exceptions to confrontation (even if: testimonial; declarant unavailable; TMA;
no prior opp to CREX)
 (1) Dying declaration
 (2) Forfeiture by wrongdoing
How to distinguish testimonial v. non-testimonial
 Would this be something we would ask on the stand at trial?
o If yes = testimonial = has to be equivalent to what witness would’ve said at trial
o If no = non-testimonial
 The ct will look to figure out whether its testimonial or not:
o Look to whether statement was describing past events or currently on going circumstances
o Out of ct statement has to be equivalent to what witness would’ve said at trial
o Judge will decide what the primary purpose is
o Statement for purpose of medical diagnosis is never testimonial
o Statement against declarant’s interest cannot be testimonial

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172. After testifying at Joe’s 1st trial, Mary Pietro moved to New Zealand and is unwilling to return to Nita to
testify again. Prosec attempts to introduce a certified copy of Pietro’s testimony from the 1 st trial. Defense
objects based only on the Confrontation Clause. Argue the objection.
 How do you get it in for hearsay exceptions?
o Under 804(a)(5)(A)  then 804(b)(1)(A)
 This is testimonial
  had opportunity to CREX at 1st trial
 This can come in – no confrontational issue
175. Assume that on the night of Leslie’s shooting, Brooke’s neighbor called 911 on her cell phone to report
that she heard gunshots outside. The neighbor also told the 911 operator that when she went to investigate,
the neighbor saw Leslie lying on Brooke’s porch in a pool of blood. 3 mins after the neighbor ended the call to
911, Slyviak arrived and found that the shooter drove away after the firing shots. Neighbor then told Slviyak
that she saw a white car that looked just like the white car she had seen Joe drive up to the house before.
Neighbor testified a/b these facts at a prelim hearing regarding whether the police had probable cause to
arrest Joe.  atty began to CREX neighbor, but the judge stopped the defense atty after 5 mins to find that
the state had presented suff evid to support a “probable cause” finding for Joe’s arrest. After the prelim
hearing, the neighbor died of pancreatic cancer. At Joe’s trial, prosec attemps to introduce the certified
transcript from the prelim hearing. Defense objects that this evid violates the Confrontation Clause. Argue
the obj.
 Prelim hearing = judge determining if there was probable cause
 Witness is on stand + give testimony  then judge determines if there was probable cause
o Not ex parte --  and atty are present at prelim hearing
 Was there an opportunity/motive for defense to CREX?
o At trial = there is always opportunity/motive to CREX
o At prelim hearing = questionable!  may not always have oppor/motive
 At a prelim hearing – the ct can’t make credibility determinations about the witness so it does not give
the defense an incentive to CREX
o Cts are divided on this issue
 Most attys will CREX so they don’t blow their opportunity later if W is unavailable
Michigan v. Bryant
 This case refines the analysis of how to determine if statements are testimonial
 This case emphasizes:
o (1) Primary-Purpose Determination
 Majority: cares about BOTH primary purpose of the declarant’s and interviewer
 Dissent Scalia (wrote Crawford): only cared about the primary purpose of the
declarant
 Objective Analysis: care about the purpose that reasonable participants would have
had, as ascertained from the individual’s statements and actions and the
circumstances in which the encounter occurred
o (2) Reliability of the statements  if find that the primary purpose behind making the
statements was not to make a record for trial then the std rules of hearsay are sufficient to
identify if the statements as reliable (not under C.C.)
 if the statements are made under circumstances that suggest reliability then the C.C.
has little value and CREX is not needed
 Dissent Scalia: wanted to get away from the question of reliability, but majority
brings this goal of the C.C. back
Whether an emergency is ongoing is the most important circumstance that the ct should consider when determining
whether an interrogation is testimonial
 Whether an emergency is ongoing involves a “Context-Dependent Inquiry”:

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o Factors the ct considers in context analysis:
o (1) duration and scope of an emergency depends on the type and scope of danger posed
on the victim, police and public
 (1) type of weapon employed
 if case involves gun- threat to the public = ongoing emergency
 ct in Bryant stated that physical separation that was sufficient in Davis
(assault case no gun) to end the emergency would not be sufficient here bc
there is a gun involved
 (2) motive behind attack
 if lacked motive more likely ongoing emergency (might still be out there
killing ppl)
 if victim and perpetrator knew each other/ had a relationship less likely
ongoing emergency
 (3) type of crime
 Davis and Hammon  domestic violence  targeted victim  narrower
zone of potential victims
 Bryant  involved threats to public safety (involved gun and motive for
shooting was unknown)
 (4) location of victim and perpetrator
 Was the perpetrator still at the scene of the crime?
 Depends on the type of crime:
o In Davis- domestic violence case w/ no deadly weapons ct
held separating victim from assailant was suff. to end
emergency
o However, in Bryant a case if w/ unknown motive for
attack and where perpetrator was armed w/ a gun and his
location was unknown to police  the ct held that even
though the perpetrator wasn't at the scene of the crime that
they were still under an ongoing emergency
 In Bryant, police found victim in public area and perpetrator’s location was
unknown  more likely ongoing emergency
 (5) nature of victim
 Zone of potential Victims: targeted individual (less likely ongoing
emergency) or threat to public at large (more likely ongoing emergency)
 (6) Victim’s medical condition
 severity of victim’s injuries (if very severe injuries more likely statements
are reliable- more concerned with getting help than w/ criminal prosecution
ongoing emergency)
 in Bryant, victim was suffering from a fatal gun shot wound more likely
ongoing emergency
 (7) Timing in relation to crime/event
 how close in time were the statements in relation to the crime/emergency
 after or during  if close in time more likely to be ongoing emergency
o (2) “informality” of an encounter between victim and police
 At or near the scene of the crime vs. at a police station
 In Bryant the ct held that bc questioning was in an exposed, public area, prior to the
arrival of emergency medical services it was more likely to be an ongoing
emergency
o (3) Statements and actions of BOTH the declarant and interrogators-

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  Look at both the questions and answers to determine primary purpose
 The inquiry is still objective- focuses on the understanding and purpose of a
reasonable victim in the circumstances of the actual victim
 Can have mixed motives
 Depends on how frame questions and answers:
 “what happened?” – indicates past event
 “what is happening?”- indicates ongoing emergency
 In Bryant ct state that bc during the questioning the victim was lying on floor
bleeding to death and the convo also consisted of taking about when medical services
will arrive that the police were just asking question to assess the situation and threat
of public safety  ongoing emergency
 This is a balancing test- the existence of one factor is not dispositive
 There can be multiple questioners in the interrogation (like in Bryant) but have to access each
questioner’s purpose
o The interrogators don't have to be police officers, can be paramedics, doc., nurse, social
workers, 911 call dispatcher, technicians at hospital- identity effects their purpose
Bryant held: the statements by the victim to the police officers were nontestimonial bc still under an ongoing
emergency  ct used contextual analysis and balanced factors to determine this. Reasoning: nothing victim said to
the police indicated that the shooting was a purely private dispute and that the threat from the shooter had ended,
Police didn't know motive behind shooting or if it was limited to victim. Scope is more broad than Davis and
Hammon (targeted victim  domestic violence dispute)  here there was a treat to the police and public.
Some out of ct statements are per se non-testimonial: (by nature non-testimonial- falls within hearsay exceptions)
 (1) 803(4) Statement made for medical diagnosis or treatment
 (2) 803(6) Business Records- purpose is to describe bus. conduct, but cant be prepared in anticipation
of litigation
174. Assume that on the night of Leslie’s shooting, Brooke’s neighbor called 911 on her cell phone to report
that she heard gunshots outside. The neighbor also told the 911 operator that when she went to investigate,
the neighbor saw Leslie lying on Brooke’s porch in a pool of blood. Three minutes after the neighbor ended
the call to 911, Officer Slyviak arrived and found out that the shooter drove away after firing the shots. The
neighbor then told Officer Slyviak that she saw a white car that looked just like the white car she had seen
Joe drive up to the house before
 1. Admissible under hearsay rules?
o 803(1) Present Sense Impression  911 call
o 803(2) Excited Utterance  911 call
o neighbor’s convo with officer when he showed up 15 mins after the shooting
 803(1) present sense impression  15 mins = immediately after
 803(2) excited utterance  if neighbor was still under a state of excitement
 2. Is it testimonial?
o Argue like Davis and Hammon (911 calls)  nontestimonial- ongoing emergency
o Argue like Bryant  officer showing up at the scene 15 mins after the shooting
 Contextual Analysis: Factors to balance:
 Joe is no longer at the scene of the crime (depends on type of crime)
 Joe was armed w/ a gun  ongoing emergency
 Leslie target victim? Yes- they were married- could argue domestic
violence  less likely ongoing emergency
 Or could argue Brooke might be another target victim (zone of potential
victims is lrger)  more likely still ongoing emergency
 Could argue that this isn’t an ongoing emergency bc Brooke is surrounded
by police and Joe isn’t there

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 o Could argue both ways based on factors (more factors discussed above that could be
considered)
o If ct finds it is testimonial then inadmissible UNLESS:
 Have Declarant (neighbor) testifies
173. The prosec calls Officer Slyviak to testify that Brooke stated that Joe shot Leslie. Defense objects based
only on the Confrontation Clause. Argue the objection.
 No confrontation clause issue as long as Brooke testifies and she is CREX
 Statement is testimonial
 Prosec says she is under subpoena but that we will not call her to stand. Can Slyviak still give this
testimony?
o Yes, b/c the defense still has the opportunity to CREX her.
o Its  decision if they decide not to call her
 How comes in under hearsay exception?
o 803(1) present sense impression
o 803(2) excited utterance (if still under stress of excitement
o 801(d)(1)(C) “identifies a person as someone the declarant perceived earlier”
 the declarant’s prior statement that identifies someone
 but the declarant needs to testify (Brook has to take stand)
 C.C. Problem?
o If Brooke testifies or is available to testify- no C.C. problem bc have opportunity to CREX
o How to determine if Testimonial?
 Could argue like Bryant  bc this was a 911 call- Officer came to the scene of the
crime 15 mins after the crime occurred, Leslie was shot, Joe was armed, officers
were not sure who did it or what was their motive, officers were unaware when
questioning Brooke if there was still a threat of danger  could argue the contextual
analysis shows ongoing emergency  questions/answers were nontestimonial
 Could also argue that this case is diff. than Bryant  bc Joe had already left the
scene of the crime so there was not ongoing emergency, this was an individualized
threat of danger bc it was between husband and wife, no threat to public safety, a
dying victim answering questions (in Bryant) is different than unharmed Brooke
answer the officers questions  Brooke’s answers would not be as reliable as
someone that was severely wounded- better chance that Brooke was anticipating
criminal prosecution  show no ongoing emergency  testimonial
Giles v. California:
 Giles shot and killed his gf and argued that he acted in self-defense. Prosecuted for murder.
 Prosecutors sought to introduce statements that gf had made to the police officer responding to a
domestic violence report 3 weeks before the shooting (earlier assault chrg)
 1. Admissible under hearsay rules?
o 404(b)(2) evid. of prior a crime/wrong is admissible to show motive
 2. Is it testimonial?
o Yes, when gf’s prior statements about the assault were made there was no on-going
emergency  not admissible, UNLESS
 Declarant testifies; OR
 Gf cant bc she is dead
 Declarant unavailable &  had prior opportunity/motive to CREX; OR
 No gj is unavailable bc she is dead
 Not T/M/A; OR
 2 exceptions: testimonial statements that are admissible

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  (1) declaration made by a speaker who was both on the brink of death and
aware that he was dying
 (2) forfeiture by wrongdoing
 permits the introduction of statements of a witness who was
“detained” or “kept away” by the “means or procurement” of the D
 Giles holds that a D forfeits confrontation rts by killing a witness
only if his conduct is “intended” or “designed” to achieve this
result
 P in Giles argues that the testimonial statements are admissible bc it falls under the forfeiture by
wrongdoing exception
o How does a ct make this determination that killed person so don't take stand (forfeiture by
wrongdoing) when ct doesn’t even know if they killed the person (why on trial)?
 104(a) determination for the ct  ct only has to use a preponderant of the evid.
standard to determine if killed her so doesn't take stand rather than the without
reasonable doubt std in the criminal trial
 Ct in Giles held that Giles didn't murder gf with the intent to cause her unavailability so cant testify
o Need intent/desire/purpose to make the witness unavailable- under forfeiture by
wrongdoing exception
 Same as FRE 804(b)(6) “Forfeiture by wrongdoing”- apply only when the D
engaged or acquiesced in wrongdoing that was intended, and did, procure the
unavailability of the declarant as a witness”
 P then argues that bc Giles is a case about domestic violence it should be included under the forfeiture
of wrongdoing exception based on the nature of the crime itself. “Acts of domestic violence often are
intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent
testimony to policy officers or cooperation in criminal prosecutions”  therefore based on the nature
of domestic violence crimes these crimes should be included under the forfeiture by wrongdoing
exception even without the showing of individualized intent to cause the unavailability of the witness.
 Majority holds: that it is not willing to make this generalization that all domestic violence cases
should be included under the forfeiture by wrongdoing exception
 But the majority does state that the domestic violence context is relevant for a separate reason:
o “Where such an abusive relationship culminates in murder, the evid. may support a finding
that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to
the authorities or cooperating w/ a criminal-prosecution-rendering her prior statements
admissible under the forfeiture doctrine.”
o the ct should consider the D’s purpose/intent of the (1) earlier abuse, (2) treats of abuse,
and (3) any ongoing criminal proceedings that the victim would be expected to testify in--
to determine if the purpose was to dissuade the victim from resorting to outside help  the ct
o says that this intent will be highly relevant when determining if D had the requisite intent to
qualify under the forfeiture by wrongdoing exception.
 The evid. of the prior abuse and the on-going assault trial make it more probable that
Giles killed gf in case #2 to prevent her from testifying in the ongoing case #1.
LAYERED OR MULTIPLE HEARSAY
FRE 805. Hearsay Within Hearsay
 Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule
 (if anyone of the layers of hearsay is inadmissible then the whole statement is inadmissible)
220. Reverend Taylor is testifying for the P. Taylor seeks to testify that Jesse said that she had learned from
Marlow that Ross accused her of stealing the brooch. Argue the hearsay objection
Taylor (on stand)  Jesse  Marlow  Ross (“Jesse stole the brooch”)

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  1st layer: Marlow  Ross (“Jesse stole the brooch”)
o 801(d)(2)(A) An Opposing Party’s Statement.
 The statement is offered against an opposing party and was made by the party in an
individual or representative capacity.
 Jesse is offering the statement against Ross and the statement was made by Ross
o Independent legal significance  this is the defamatory statement that Jesse is trying to
prove that Ross made, not offered for the TMA (Jesse argues its not true), not hearsay 
verbal act
 2nd layer: Jesse  Marlow (“Ross said you stole the brooch”) ** always rephrase the statement how
the next layer would have said it
o TMA? What is Jesse’s purpose for offering this evid? Show Ross made defamatory statement.
Does the jury need to believe that Marlow told Jesse Ross said this? Yes jury needs to believe
that it happened for statement to be relevant (Ross actually made defamatory statement).
o Could you argue it is not offered for the TMA?
 Statement just shows that Jessie believes Ross accused her of stealing the brooch-
not TMA
 But what is wrong w/ this argument? What Jesse believes Ross did is not relevant
 “not offered for the TMA but is offered instead to show:__X___” (whatever goes in
blank must be relevant**)
o So its offered for the TMA  hearsay  so how do we get it in?
 803(3) a statement of the declarant’s then-existing state of mind
 shows Marlow’s state of mind  “motive”  his reason for not hiring
Jesse
 BUT Marlow’s statement would have to be phrased differently “the reason I
didn't hire you was bc Ross told me you stole the brooch”
 Surrounding words can come in as context (ex. I would have done
this except for X  “X” can come in as surrounding
circumstances)
o This statement probably wont be able to come in  if want to get this statement in then put
Marlow on the stand
 3rd layer: Taylor  Jesse (“Marlow told me that Ross said I stole the brooch”)
o 801(d)(2)(A)? No. This statement is not offered against Jesse, this is Jesse’s own statement
o Conclusion: there is nothing to get this statement in, so under 805 if one layer of this
statement cant come in then the whole thing cant come in, can always get the earlier declarant
to testify
219. Reverend Taylor is testifying for the P. Taylor seeks to testify that Jesse said that Marlow had said that
a positive recommendation from Taylor would assure her the job at the club, regardless of anything else in
her background. Argue the hearsay objection.
Taylor (on the stand)  Jesse  Marlow (“a positive recommendation from Taylor would assure her the job at the
club, regardless of anything else in her background.”)
 1st Layer: Jesse Marlow
o Relevant? Goes against Marlow saying that the reason he didn't hire Jesse is bc the club has a
policy not to hire ex-cons and shows that the real reason he didn't hire Jesse is bc of what
Ross said about Jesse
o If Hearsay. How do you get this in?
 803(3) A statement of the declarant’s then-existing state of mind (goes to intent
to hire)

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  BUT must be phrased a certain way to be a statement of intent  “If you
have a positive recommendation from Taylor I will hire you even if you
have a criminal record”)
o Could also argue that this is not an assertion  it is a promise  verbal act  not hearsay
 2nd Layer: Taylor Jesse (“Marlow told me that if I get a positive recommendation from Taylor I
will get the job even if I have a criminal record”)
o TMA? Yes. Jury must believe the substance of the Jesse’s statement (Marlow made me this
promise) in order for the statement to have the relevancy that we say it has
o Could you argue not offered for the TMA?
 Not offered for the TMA but to show that Jessie believed that she would get the job
(goes to Jesse’s state of mind)  No. Doesn't work bc irrelevant.
 This layer fails so whole statement fails  to get in would have to put Jesse on the stand

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