AN OVERVIEW OF EVIDENCE

INTRODUCTION

Evidence lies at the heart of making your client’s case, whether you are a prosecutor or plaintiff’s
attorney, or defending your client if you are a defense attorney. The rules of evidence govern what
evidence may or may not be admissible for consideration by the trier of fact in your case. The rules of
Evidence will be of vital importance to you as a lawyer. In practice, some of the rules are complicated and
will have you pulling you hair out. The good news is that for purposes of the bar exam, the rules are
relatively straightforward – especially for the Multistate (MBE). But, the way to prove that is to begin our
discussion.

WHAT LAW APPLIES

Prior to the 1970s, most of the rules of evidence came from cases, i.e., were judge-made. However, since
then, rules have been codified and adopted widely. The Federal Rules of Evidence, the rules that you will
learn in a law school Evidence class and in your BARBRI course for the bar exam, were originally
developed by the United States Supreme Court for use in the federal court system. Later, these rules were
revised and adopted by Congress. Most states have adopted codes that use the Federal Rules as a model.
The Federal Rules of Evidence are applicable in all civil and criminal cases in the United States courts of
appeal, district courts, Court of Claims and in proceedings before U.S. magistrates.

UNDERSTANDING EVIDENCE

You will encounter a variety of evidence questions in class (if you take evidence), on the bar exam, and in
practice. When looking at issues, you are first asking if the evidence is relevant and then how the
evidence is being used or for what purpose it is being offered. The questions you will ask yourself to
determine the answer include the following:

(1) Is the evidence relevant?

The purpose of a trial is get at the truth of what has happened. In order to do that, both sides of a
case offer evidence and the trial court, rather than admitting everything, acts as a gatekeeper. The
court will only admit evidence that bears a sufficient relationship to the matters central to the
case. In other words, the evidence must be relevant. Relevance is a threshold issue and it has to
the do with the tendency of the evidence to prove or disprove a material issue (probativeness) or
to render the issue more probably true or untrue, than it would have been without that particular
piece of evidence. Relevance is concerned with the content of the evidence and not the form or
manner in which the evidence is presented (which is covered by our additional questions below).

You will be asking yourself a series of questions when trying to determine if evidence is relevant:

a) Is this evidence relevant?

In most cases, evidence must relate to the time, event, or person involved in the present
litigation to be relevant or material. There are exceptions of course, such as evidence that a
person has previously filed a tort claim regarding injury to the same part of the body (which
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may be relevant to show the injury is not new) or evidence that shows habit (which may be
used as circumstantial evidence to show a regular response to a specific situation).

b) If relevant, should it nonetheless be excluded?

Relevant evidence may still be excluded based on judicial discretion or for public policy
reasons. A trial judge in the U.S. has broad discretion to exclude relevant evidence if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. For example, while photos of a crime scene
may have probative value, they may be excluded if particularly grisly or shocking to the
average juror (unfair prejudice); similarly, a judge may disallow an excessive number of
witnesses who would testify to the same set of facts or observances (cumulative).

Certain evidence may also be excluded by the Federal Rules because public policy favors the
behavior involved. Common examples of this would be subsequent remedial measures
(repairs to dangerous conditions on property), which are not admissible to show negligence
but may be admissible to show ownership of the property or to rebut a claim that repairs were
not possible. Similarly, offers to pay or actual payment of medical expenses are also
inadmissible to prove fault, but any admissions of facts made would be admissible. Note that
this is a common theme in evidence – you will need to take a look at what evidence is being
offered and for what purpose.

c) Are we dealing with character evidence?

Character evidence is one area where the judge’s discretion in weighing the probative value
versus the prejudicial effect of particular evidence has been sharply circumscribed. The rule
is simple – Character evidence may be offered as substantive evidence, rather than
impeachment evidence (which will be covered shortly), to prove character when it is the
ultimate issue of the case or to serve as circumstantial evidence of how a person probably
acted.

For many, however, the application is a bit confusing. Character evidence is generally not
admissible in civil cases unless a person’s character is the ultimate issue in the case, such as
in defamation or negligent hiring cases. So, when we talk about character evidence, for
purposes of the bar exam, we are almost always dealing with criminal cases. Looking at how
the evidence is used makes understanding character evidence easier.

In a criminal case, the prosecution cannot introduce any evidence of the defendant's bad
character if the purpose of that evidence is to show that the defendant likely acted in
conformity with that bad character (i.e., you cannot show the defendant was likely to have
done this bad thing because he did these specific bad things in the past). However, the
defendant is allowed to present evidence of relevant good character traits, using character
witnesses, to try to establish that he acted in conformity with the good character that was
testified to and, therefore, that he did not commit the crime charged. But, if he does that, he is
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limited to reputation evidence (e.g., “Defendant has a good reputation for peacefulness in the
community”) or opinion evidence (e.g., “In my opinion, Defendant is a peaceful person”) on
direct examination, not evidence of specific acts or specific instances of good conduct (e.g.,
“I saw Defendant break up a fight last week”).

If the defendant does do this, we say the defendant has “opened the door” to character
evidence. This allows the prosecution to put their foot in that door and rebut with evidence of
the defendant's bad character. The prosecution can do one of two things. First, they can cross-
examine the character witness regarding the basis for her testimony. That means that the
prosecution is trying to challenge the witness’s credibility and how well they knew the
witness. Second, they can call their own witness to testify to the defendant’s bad reputation or
character.

While talking about the defendant, note that evidence of other crimes or acts of misconduct
committed by the defendant may be admissible when offered to show something other than
character. Many people will refer to this as the “MIMIC” rule –You can use prior acts of
misconduct when trying to establish motive, intent, mistake (absence of), identity, or
common plan/scheme. So, if the defendant is charged with killing her husband with an
antique gun, evidence that she stole the gun from a friend’s gun collection would be
admissible (common plan/scheme).

In addition to presenting evidence of the defendant’s character, the defense can also introduce
reputation or opinion evidence of the bad character trait of an alleged crime’s victim when it
is relevant to show the defendant’s innocence. One of the common ways this comes up is
when the defendant claims to have killed in self-defense; in this situation the character of the
homicide victim would be an issue (if the victim was a violent person, it would tend to show
that the defendant was not the one who started the fight). An area where such evidence of a
victim’s character is not admissible is in rape cases, due to “rape shield” legislation.

(2) How is the evidence being presented?

As an attorney you will make your case through the presentation of evidence to the trier of fact,
whether that is the judge or a jury. Evidence will generally take one of three forms – presenting
evidence through witness testimony, documentary evidence, or real evidence. In each case, the
evidence will need to be authenticated (proven to be genuine) before allowed in. However, some
evidence does not need to be authenticated with a formal presentation. Instead this evidence is
recognized through the process of judicial notice. You will also run into circumstances where
relevant evidence will be excluded because it is privileged.

a) Witness Testimony

Witness testimony involves using people to transmit information necessary to your case.
When dealing with witnesses, they are presumed to be competent unless it is proven
otherwise. The four basic attributes that every witness should have are the capacity to
observe, recollect, communicate, and appreciate the obligation to be truthful. That makes
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sense, right? They are the ones telling your client’s story so you want to make sure they are at
least minimally equipped to do so. Almost anyone can testify as a witness, including children
and those adjudicated insane, so long as they can do the above four things.

As the attorney, you will conduct the questioning, but the judge will exercise control over the
examination of the witnesses. You are trying to elicit facts from each witness, but the way in
which you will do that is limited. For example, leading questions (questions that suggest the
desired answer or can be answered with a “yes” or “no”) are generally not allowed on direct
examination (questioning the witness you called to the stand). They may be permitted on
cross-examination (questioning the witness the opposition called to the stand), if the witness
needs help in responding (like a very young witness) or the witness is hostile/uncooperative.
Other types of questions that are not allowed are misleading questions (e.g., “Do you still
beat your wife?”), compound questions requiring a single answer to more than one question
(e.g., “Did you see and hear the accident?”), cumulative questions (i.e., questions on the
same point that have already been asked and answered), or questions that harass the witness.

When dealing with witnesses, one of the areas that can cause confusion for students is
opinion testimony. As stated earlier, witnesses should testify to facts that are within their
personal knowledge. That means that, generally, opinion evidence is not allowed except in
cases where the court is sure it will be necessary or helpful. The rules are a bit different for
laymen and expert witnesses. Opinion testimony by laymen is generally inadmissible, unless
it is a case where no better evidence can be obtained. In such an instance, opinion testimony
is allowable if it is rationally based on the witness’s perception, it is helpful to either
understand his testimony or determine a fact in the case, and it is not based on scientific,
technical, or other specialized knowledge. Some of the common things within the realm of
opinion that you can have a lay witness testify to include the general appearance of a person,
voice recognition, the speed of a car, or whether someone was intoxicated.

Expert witnesses, who are usually compensated for their testimony, can also be called on to
give their opinion. The expert may give an opinion if they have specialized knowledge, the
witness is qualified as an expert (by skill, education, training, etc.), he possesses a reasonable
probability regarding his opinion (it’s more than a guess), and the opinion is supported by a
proper factual basis. Because of the nature of what experts are called upon to testify about,
they can be cross-examined with materials contained in scientific or technical publications
that are considered reliable sources.
b) Documentary Evidence

Documentary evidence is a writing or other document the law treats like a writing, which can
include things like photographs, x-rays, and recordings. As a general rule, a writing or any
other evidence of its contents will not be received into evidence unless it both relevant and
has been authenticated by proof that shows the writing is what it claims to be. The Federal
Rules do not limit the methods of authentication, but rather list examples of appropriate
authentication. For example:

 A witness can testify to seeing a document executed,

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 A lay (non-expert) witness who has personal knowledge of someone’s handwriting

can give his opinion as to whether a document is in that person’s writing.
 Some documents can be authenticated by proof that it is over 20 years old, there is no
suspicion it is not authentic, and it was found where such a document would be kept
if authentic. (e.g., A signed and witnessed will in a safe or a box with other important
documents.)
 Other documents can be self-authenticating, such certified copies of public records or
printed newspapers.

When dealing with written evidence, you may run into the best evidence rule. It does not
have to do with the quality of the evidence, but rather the availability of evidence. In proving
the terms of a writing, the original writing must be produced if the terms of the writing are
material. Why? It’s presumed to be the most reliable form of the evidence. Note, however,
that there is some flexibility because “original” is interpreted to mean the actual original
version of the document or any copy that the person executing the document intended to act
as an original. If the original is unavailable, secondary evidence (e.g., oral testimony) is
admissible, but only after proper explanation of why the original cannot be produced. For
example, it may not be persuasive that the original would be difficult to obtain, but it would
be persuasive if the original was destroyed in a fire.

c) Real Evidence

While real evidence may be crucial to you in practice, it is rarely tested in on the bar exam.
Real evidence is the actual physical evidence (something you can see and inspect) that was
present at the incident in question or helps explain the incident in question. For example, it’s
the gun or bloody clothing in a homicide trial. In order to be admitted for consideration, it
must be both relevant and identified as what you claim it to be by either the testimony of a
witness that she recognizes the object as what the proponent claims it to be (e.g., witness says
that was the photo he took of the corner as the accident happened) or that the object has been
held in a substantially unbroken chain of possession (e.g., a gun removed from a scene).

Real evidence also includes demonstrative evidence, which is evidence that is used to explain
or understand real evidence. For example, it’s a map or diagram that helps the trier of fact
understand the logistics of the scene of the crime or it could be a demonstration that shows
the effect of a bodily injury.
d) Judicial Notice

Judicial notice is the recognition of a fact as true without a formal presentation of evidence.
Some things are seen as so self-evident that we do not have to go through the time or effort of
proving them to be true. The Federal Rules state that the facts that may be judicially noticed
are either matters of common knowledge in the jurisdiction (e.g., the court in any city would
commonly know the numbering system of the streets in that city) or facts that are easily
verifiable through sources that would be not questioned (e.g., any court would accept proof
that a date corresponded to a particular day of the week by looking at a calendar). Included in
this would be scientific tests or principles that would not be disputed (e.g., radar speed
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information or blood typing). One nuance here is in the conclusiveness of facts that are
judicially noticed – A judicially noticed fact is conclusive in a civil case (the jury must accept
the fact as true) but not in a criminal case (the jurors may accept it as true, but are not
required to do so).

e) Testimonial Privileges

Thus far, we have looked at the ways of presenting evidence. You can think of privileges as a
way of not presenting evidence. Testimonial privileges permit a person to refuse to disclose,
or prohibit others from disclosing, certain types of confidential information in judicial
proceedings. Consider it a policy issue. We want to protect certain types of relationships,
even at the risk of losing out on potentially valuable evidence.

The Federal Rules of Evidence do not have a specific provision dealing with testimonial
privileges, but rather state that the privilege of a person shall be governed by common law as
it would be interpreted by the courts. Some common privileges, both in practice and on the
bar exam, are attorney-client, physician-patient, husband-wife, and clergy-penitent. In each
instance, you can see the policy or social reason for upholding the privilege.

How privileges work is relatively straightforward. First, the privilege is personal to the
holder, the party whose interest we are trying to protect. If the privilege is held by more than
one person, each of those people can assert the privilege. Second, the communication must
have been made in confidence. Note that most states will presume that a statement made in
the course of a privileged relationship is privileged, even if someone eavesdropped and heard
the statement. Privileges are not, however, absolute. A privilege can be waived if it is not
claimed by the holder or not objected to when the privileged testimony is offered, if the
privilege content is voluntarily disclosed.

(3) Is the evidence being used for impeachment?

Impeachment, like hearsay (which comes next), is an area that is confusing to students and
lawyers alike. However, it doesn’t need to be confusing. In some situations, you will need to ask
yourself – (1) For what purpose is this particular piece of evidence being introduced and (2) under
what circumstances was the statement made? The answers to those questions will guide you to
the correct answer.

Impeachment is a means of casting doubt on a witness’s testimony and his credibility. Under the
Federal Rules, a witness may be impeached by any party, including the party calling him. A
witness can be impeached either through cross-examination (by getting the witness to state facts
that discredit his own testimony) or through extrinsic evidence, which essentially involves calling
other witnesses who will discredit the first witness’s testimony.

There are several common impeachment techniques. Some are self-evident and can be done
through either cross-examination or extrinsic evidence. You may show that the witness:
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 Has sensory deficiencies, such as having impaired vision or recollection. You are trying
to cast doubt on one of the basic attributes that a witness must have.

 Is biased or has an interest in the outcome of the suit, which would show that the witness
has a motive to lie.

 Made prior inconsistent statements that contradict his current testimony. If you use
extrinsic evidence, however, you must lay the proper foundation, the statement must be
relevant to an issue in the case, and the witness must be given an opportunity to either
explain or deny the inconsistency. Usually, prior inconsistent statements can only be used
for impeachment and would not be admitted as substantive evidence (proof of the facts
contained in the statement), but they can be admitted as substantive evidence if the
statement was made under oath at a prior proceeding. When you see a prior inconsistent
statement, ask for what purpose is this evidence being introduced (impeachment or
substantive) and under what circumstances was the statement made (under oath or not).

Others are a bit more complicated. You may impeach a witness by showing the witness was:

 Convicted for crimes involving dishonesty, whether a felony or misdemeanor, and a

felony not involving dishonesty in certain instances. Note, however, that if the date of
conviction or release from confinement is more than 10 years old at the time of trial, the
conviction will usually be inadmissible. Juvenile convictions are also generally
inadmissible. No foundation is required for convictions and the conviction can be proved
either on cross-examination or through extrinsic evidence.

 Engaged in specific acts of misconduct, which are often called prior bad acts. Such acts
need not always be criminal in nature, but must be probative of the witness’s truthfulness
(for example, that the witness embezzled money or lied on a job application). Subject to
the judge’s discretion, during cross-examination a party can inquire about such specific
acts. You cannot use extrinsic evidence to prove the misconduct, so if the witness denies
the act, you cannot bring another witness to tell the trier of fact otherwise. And you must
ask about the conduct (the act itself) and not the result (for example, an arrest or
termination from employment).

Once a witness has been impeached, a party can take steps to rehabilitate (to restore the witness’s
credibility). For example, on redirect (the second direct examination that occurs after cross-
examination), a party may have a witness explain or clarify something they said on cross-
examination. A party may also call other witnesses to testify to the impeached witness’s good
reputation for truthfulness.

(4) Is the evidence hearsay?

The Federal Rules of Evidence define hearsay as “a statement, other than one made by the
declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of
the matter asserted.” As told by students, this short sentence is one of the single most confusing
8 EVIDENCE OVERVIEW

areas in the law of Evidence. You cannot, however, shy away from mastering this area because it
is regularly tested on both the MBE and in essays.

When talking about hearsay, what we are talking about is a witness on the stand (call her W for
witness) testifying to a statement that someone (call her D for declarant) previously made.
(Usually the declarant is a different person than the witness, but this is not always the case! A
testifying witness’s own prior statement can be inadmissible hearsay.) And the statement by D, as
conveyed to the court by W, is being offered as substantive proof. So, for example, if the
statement dealt with the light at an intersection being red, it is being offered as proof that the light
was red. The reason for excluding hearsay is that the adverse party (call her A) is being denied
the opportunity to cross-examine the perception, memory, veracity, etc. of the person who made
the statement (D) – she can only cross-examine the witness (W), who likely doesn’t know much
because she is merely conveying what she heard. (The rationale is similar even if W and D are the
same person—it is contemporaneous cross-examination that is required. Even though W made the
statement, A was not able to cross-examine her perception, memory, etc. at the time the statement
was made.) As a matter of policy, we generally want to exclude such statements when we cannot
test the declarant’s perceptions and trustworthiness.

In approaching a hearsay question, the analysis becomes much more straightforward if you ask
yourself two questions. First, is the statement being offered as proof of the matter asserted? If it
is, it is hearsay. If the statement is not offered to prove the truth of the matter asserted, but instead
for one of the reasons that you will read about shortly (like to show the effect on the person
hearing the statement), the statement is not excluded by the hearsay rule. Second, if the statement
falls within the definition of hearsay, is it still going to be admissible because it falls under one of
the recognized hearsay exclusions or exceptions? There is a long list of exceptions that make
statements admissible. Let’s look at each of these questions in detail:

(a) Is the statement being offered as proof of the matter asserted?

This question really has two parts. First, was there a statement? For purposes of this rule,
“statement” is broadly defined. It includes oral statements, but also written documents and
assertive conduct (conduct intended to act as a substitute for words, like nodding yes or
pointing). On the bar exam, do not be tricked by nonhuman declarations, like a drug-sniffing
dog barking. Only people can make statements. (And, by the way, the barking may be
admitted if it’s relevant and authenticated, but it’s simply not a statement for purposes of the
hearsay rule.)

Second, was the statement being offered for a reason other than as proof of the matter
asserted? The statement may fall within the definition of hearsay because of who is making
the statement, but if it is offered for a different reason it will be deemed nonhearsay and
admissible as substantive evidence. Common nonhearsay includes:

 Statements offered to show their effect on the hearer or reader (e.g., good faith,
duress, notice of a dangerous condition, motive, etc.)
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 Statements offered as circumstantial evidence of the declarant’s state of mind (e.g.,

anger, irrationality/insanity, etc.)

(b) If the statement is being offered as proof of the truth of the matter asserted, is it
admissible because it is specifically excluded from the definition of hearsay under
the Federal Rules of Evidence?

Some statements are specifically exempted by the Federal Rules of Evidence. They are
considered “nonhearsay” even if the statement is being offered to prove the truth of matter
asserted. These hearsay exclusions include:

 Prior inconsistent statements of a witness if made under oath;

 Prior consistent statements of a witness, whether under oath or not, to rebut a charge
that the witness is lying;
 A witness’s prior identification of a person that the witness earlier perceived; and
 Statements by an opposing party, which are also called admissions by a party-
opponent (i.e., if a party made a statement, it can be offered against him by an
opposing party). The rationale is that the party can hardly complain about not being
able to cross-examine himself—he said it, he is stuck with it, and he can explain it at
trial if he wishes.

(c) If the statement is hearsay, is it still going to be admissible because it falls under one
of the recognized hearsay exceptions?

If you have gone through the analysis above and you are left with a statement that is still
hearsay, the statement may still be admissible under one of the hearsay exceptions. The
rationale for admitting these statements is either (i) the necessity to admit the evidence
because there is no other option (the declarant is unavailable) or (ii) the statement or the
circumstances under which the statement was made are deemed to be trustworthy. There are
24 such enumerated exceptions that you will need to review, but there are a handful you
should know well because they are tested often:

(i) Declarant Unavailable

In some instances, there is a need to admit hearsay evidence because the information is
relevant and the source of the statement is unavailable. A declarant is unavailable if he
can claim a testimonial privilege, he refuses to testify despite a court order compelling
him, he absent or behind the court’s reach, he claims he cannot remember anything, or
he’s dead or incapable of testifying due to mental or physical incapacity. The commonly
tested statements include the following:

 Former testimony: A statement given at a trial, hearing, or deposition is admissible if

the party against whom the statement is offered was a party in that former action, the
former action involved the same subject matter, the testimony was given under oath,
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and there was an opportunity for the party against whom the statement was offered to
examine the declarant (direct, cross, or re-direct) in the prior action.

 Declarations against interest: These statements may be admissible if they are against
the declarant’s pecuniary (monetary), proprietary (ownership), or penal (subject to
criminal prosecution) interest when they are made anda reasonable person would not
have made the statement unless she believed that the statement was true.

 Dying declarations: Some statements are admissible if they are made with a belief
that death is imminent and concern the cause or the circumstances surrounding the
death. Note that this applies only in civil cases and criminal homicide cases, which
means if you see someone charged with attempted murder you cannot have a dying
declaration.

(ii) Declarant’s Availability Irrelevant

In other instances we admit hearsay statements because the statements exhibit an element
of trustworthiness. The commonly tested statements include:

 Excited utterances: Out-of-court statements made relating to a starting event are

admissible if made while under the stress of the event. Exclamation points in the
statement are a tip-off. (e.g., “Oh my God, he shot her!”)

 Present sense impressions: These are essentially unexcited utterances or matter-

of-fact statements, made concurrently with the event, that describe the event.
(e.g., “He looks like he can barely walk.”)

 Statements showing current mental or physical condition: A statement, whether

made to a medical professional or not, can be admissible if it is about a current
medical condition. The statement must be in the present tense. (e.g., A man
whose car has just been hit says, “I can’t feel my leg” to a person who runs up to
the car to offer aid.)

 Statements for medical diagnosis or treatment: A statement made to a medical

professional is admissible if made for the purpose of getting a diagnosis or
treatment, even if made about a past condition. (e.g., When asked what hurts, a
man responds “My leg. I was hit by a car.”)

 Recorded recollection: If a witness’s memory cannot be refreshed, a party may

introduce a writing that the witness made at or near the time of the event. The
writing itself is not admissible unless it is offered by the adverse party, but the
contents can be read to the jury.
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 Business records: A written record is admissible if was made as part of a

regularly conducted business activity and the person making the written entry
either had (i) personal knowledge of the contents or (ii) received the information
for the entry from someone who had personal knowledge and had a business duty
to transmit it. (e.g., A police officer’s notes in a police report of things he
observed would qualify, but the statements made to the officer by bystanders on
the scene would not because the bystanders do not have a business duty to
transmit the information.)