Impeachment efforts by D ≠ exclusion of witness by judge

 Female is suing coach for gender discrimination. Female can introduce testimony by football player on team claiming that head coach told him
that female candidate “does not belong on football field unless wearing cheerleading uniform”. This is RELEVANT EVIDENCE b/c it addresses
why the head coach may have chosen the male candidate over the female candidate. NOT HEARSAY b/c not being admitted to prove the truth of
the matter asserted (i.e., that women do not belong on the football field unless they are cheerleaders), but rather to demonstrate the head coach’s
discrimination against the female candidate.
 Q. what is trying to be proved at trial ??그다음에 see if the evidence is being offered for that reason or not. If so, then
hearsay if it was made out of court.
o Not hearsay if it was made by opponent party to the litigation

<EVIDENCE>
1. PRESENTATION: FRE does NOT apply to preliminary Q of fact governing admissibility, grand jury proceedings, criminal proceedings.
FIRST, Judge decides preliminary q of competency of evidence (whether a privilege exists, whether someone is qualified to be a witness/ expert,
admissibility of evidence. Can consider inadmissible evidence), Then, jury decides weight & credibility of evidence.
 A party can challenge ruling if affects substantial right + notifies judge of an error through 1. Objection (if evidence admitted) or 2. Offer of
proof (if evidence excluded); plain error (rare); completeness rule (if adverse party only introduces partial evidence, can ask to provide whole for
fairness reasons. However, but not for irrelevant portions of statement)
 Judicial notice: court can accept fact as true w/out formal proof IF not subject to reasonable dispute b/c generally known in community + can
be accurately determined from reliable sources. In civil case, instruct jury to accept fact as conclusive, but in criminal case, jury must be instructed
that it may/may not accept as conclusive. Can be made at any stage during trial. Judge not required to provide notice to D before making judicial
notice.
 Examination of witness: has 5th A against self-incriination from being compelled to testify. If unresponsive to Q, can make motion to strike
the answer as inadmissible.
 Leading questions against witness disallowed unless hostile witness, witness struggles w/communication or cross-examination (no limit).
 On cross-examination, questions limited to scope of what was testified at preliminary question.
 Improper questions: assumes facts not in evidence, calls for conclusion, etc. Witnesses must be excluded from courtroom so that they do not
hear testimony of other witnesses, except for parties of case, essential to case, or permitted by statute (victim).
 Burden of proof: 1) production (must produce legally sufficient evidence. In some cases, “rebuttal presumption” shifts burden of production
to opposing party and 2) persuasion: civil) preponderance of evidence; criminal) beyond reasonable doubt. If evidence destroyed, rebuttable
presumption that it was unfavorable to destroying party if other party establishes it was intentional, evidence relevant, and victim acted w/DD to
destroyed evidence
2. RELEVANCE: generally, all RELEVANT evidence is admissible. Relevant: 1) tendency to make a fact more or less probable than
without it (relevant even if single brick in the wall) AND 2) fact is of consequence in determining action (“material”).
 Rule 403: court may exclude relevant evidence if probative value substantially outweighed by danger of 1. Unfair prejudice, 2. Confusing
issues, 3. Misleading jury, 4. Undue delay, 5. Wasting time, or 6. Needlessly cumulative.
 Proof of character must be in form of reputation or opinion testimony, which cannot be established by specific events (ex. Ask 3rd party to
testify how D acted on a previous specific occasion), unless character directly at issue (ex. defamation case)
 In civil, character evidence disallowed unless 1) for non-propensity purposes and character is ultimate issue in case ex. defamation, In
criminal, D can offer evidence of own character if relevant to crime charged, and if does so “opens the door” for prosecution to rebut. D can also
offer evidence of victim’s character for non-rape, but opens door for prosecutor to show evidence of victim’s good character or D’s bad character.
(ex. can bring in co-worker’s testimony for D’s habit that she always waits at stop sign to prove that she didn’t jaywalk, even if co-worker was not
present on day of accident). Cannot introduce “honesty” reputation for murder since not relevant, but can show evidence of “peacefulness”.
 Evidence of Habit admissible (“always”, “every time” does X) to prove D acted in accordance with the habit or routine on a particular
occasion.
 Ex. identity= note left at crime scene saying “hello”. Prosectuor can show evidence that D left note saying “hello” 5 years ago to
establish his identity only if value > prejudice. Not allowed if value = prejudice.
 past sexual behavior not admissible for case involving sexual misconduct but in criminal case: specific acts admissible to prove D not
source of physical evidence; in civil: only if value> prejudice.
 If relevance dependent on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. Court may
admit the proposed evidence on condition that the proof is introduced later. court must examine all of the evidence and decide whether the jury could
reasonably find the conditional fact by a preponderance of the evidence. [ex. In trial for D making threatening phone calls to woman, another woman
in same bldg. can testify she also received threatening phone calls while D lived in her apt. Whether the phone calls were actually from D can be
proved later].
 Witness competent if (1) personal knowledge, (2) present recollection, (3) can communicate, (4) makes oath. No age req. for child and can
testify if can differentiate truth from falsehood. (some) dead man’s statute: interested party prohibited as being witness against decedent unless there
is waiver. Judge prohibited. Juror cannot testify about what happened in the courtroom & can only testify after trial, unless extraneous prejudicial
info brought to jury’s attention or improper outside influence.
 Impeach witness: via
1) Bias (ex. friendship, that she is member of org when org is being sued )
2) sensory incompetence,
3) bad character for dishonesty via other witness’s testimony, but not directly via prior acts unless during cross-examine,
4) witness’s inconsistent statements as long as witness has opportunity to explain or deny the statement, and opposing party has opportunity to
examine the witness
May be impeached by evidence that contradicts witness’s testimony (ex. D testifies he always waits to cross signals. P can introduce
evidence of prior ticket for jaywalking that directly contradicts D’s testimony). However, this evidence cannot be used to show that the
person acted in accordance with that character on a particular occasion
 specific instances of conduct NOT admissible to attack or support the witness’s character for truthfulness, but on cross-examination,
witness may be ASKED about specific instances of conduct if it is probative of the truthfulness or untruthfulness of the witness, but cannot
be INTRODUCED to prove propensity. If witness denies a specific instance of conduct on cross-examination, extrinsic evidence is not
admissible to prove that instance in order to attack or support the witness’s character for truthfulness.
5) hearsay declarant
6) Prior convictions (not for mere arrests or if acquitted): prior felony/ misdemeanor involving dishonesty (but NOT juvenile conviction)
admissible to impeach, but if dishonesty not involved, only for crimes punishable by 1+ year. Regardless of whether dishonesty crime, if
conviction/release was 10 years+ ago, only if probative value subst > prejudicial effect + written notice. Not admissible if pardon based on a
finding of innocence.
Even if not allowed by above, prior bad act can be used to show NON-propensity MIMIC (motive, intent, absence of mistake, identity or
common plan) if probative value > danger of unfair prejudice.
 If impeached, “rehab” allowed via 1. Explanation/ clarification, 2. Reputation or evidence of character for truthfulness, 3. Prior consistent
statement
 Lay witness allowed to testify if based on 1) his perception 2) helpful to clear understanding, 3) not based on expert knowledge.
 Ex. friend cannot testify about what he believes is likely to have occurred on the day of the accident if he was not present that day.
 Expert permitted if 1) qualified, 2) helpful to jury 3) believes in opinion to reasonable certainty, 4) opinion supported by sufficient facts/
reliable principles. Expert cannot testify on whether criminal had requisite mens rea. Can base opinion on inadmissible facts if experts in field would
reasonably rely on it.
 Juror as a witness: may not testify as a witness during trial. But after trial, can testify about extraneous prejudicial information that brought to
jury’s attention (e.g., newspaper article not introduced into evidence about the trial and the defendant’s guilt;  information the juror learned from a
court clerk). If so --> supports motion for a new trial.
 ALL tangible evidence must first be authenticated before admitted. (can authenticate via witness testimony with personal knowledge that
the object accurately depicts what its proponent claims it does: owner of stolen necklace can authenticate picture of it being on other’s neck).
 1) physical evidence via personal knowledge) / distinctive characteristics/ evidence of unbroken chain of custody 2) documentary evidence via
stipulation, eyewitness testimony, handwriting verification (even lay witness may testify about claimed author’s handwriting, but must not have
become familar with the handwriting for purposes of the current litigation) 3) oral statements: anyone who heard the person speak + identified the
recorded person as the speaker.
 Self-authenticating documents, don’t need to give notice of intent to introduce document: 1) Certified copies of public records; 2) Official
publications issued by a public authority; 3) Newspapers 4) Trade inscriptions (labels affixed in the course of business that indicate origin etc) (4)
Notarized (acknowledged) documents; (5) commercial paper & related documents (6) any document declared by federal statute to be authentic and
(7) records of a regularly conducted activity (ex. business) certified by a custodian of the records.
 Best evidence rule: [only applicable when contents of document at issue or witness relying on document when testifying. original / reliable
duplicate (photocopy) of writing, recording, or photograph is required to be shown to prove content all are lost or destroyed in bad faith, original
cannot be obtained by judicial process, not produces after proper notice given to party in control and against whom it would be offered against OR
it’s not closely related to a controlling issue (ex. witness’s knowledge of the date of murder comes from the receipt. B/c date has already been
established, it’s collateral so the recipet is not subject to the best evidence rule).
o X-ray, electrocardiograms (physical representations of things that cannot otherwise be seen): must be authenticated via accurate process ,
machine used was working properly, and operator of the machine was qualified to operate it. Expert’s testimony insufficient.
 Parole evidence rule: excludes contradictory evidence that would change written K unless “partial integration” K, unless prove custom/ fraud/
clarify ambiguity, show presence/ absence of consideration.
3. PRIVILEGES & POLICY EXCLUSIONS
 Attorney-client: intended to be confidential +communication (not underlying facts)+ made to secure legal services. Client can waive by
disclosure to a 3rd party (but not by inadvertent disclosure if took reasonable steps to prevent disclosure and promptly tried to rectify error). Doesn’t
apply: legal services sought to further crime; litigation related to breach of duty between attorney-client. If client is org, then extends to “non-control”
employees. Privilege extends beyond death
 Dr-patient: if 1. Confidential patient communication 2. To a physician 3. For diagnosis/ treatment. Doesn’t apply if patient puts physical
condition in issue, physician’s services sought to aid crime, case about breach of duty medical out of relationship. (doesn’t protect communication
merely because made to his doctor).
 Spouses: (1) confidential marital communications: privileged if during valid marriage + intended to be confidential (applies after divorce, but
not in case between spouse or 1 spouse commits crime against another/child). For both criminal + civil case. (2) spousal immunity: spouse in valid
marriage may refuse to testify against spouse in a criminal case, for any communication, privilege ends after divorce.
 Public policy exclusions:
1. subsequent remedial measures (actions after accident ,ex. A sues B for PL on defective boat. A cannot produce evidence that B started to issue
warnings about boat 1 year after he sold to A) can’t be use to prove negligence, culpable conduct, defective product/design but only for
impeachment, ownership or control of the cause of harm (can be used to show ownership of the disputed knocked off tree on the land)
2. Statements during compromise offers/ negotiations / plea bargain can’t be used to prove validity or amount of disputed claim, but evidence
of settlement offers and negotiations is admissible to prove bias or prejudice of a witness (can be used to impeach). i plea negotiation
unsuccessful, generally not admissible in a subsequent civil or criminal proceeding
3. payment/ offer to promise to pay medical $ not be used to prove liability for injury
4. Liability insurance inadmissible to prove culpable conduct, but can be used to establish bias
5. Sexual conduct generally not admissible in civil proceeding involving sexual harassment, unless court determines at an in camera hearing that
probative value substantially outweighs prejudice. In criminal case, evidence of specific sexual behavior admissible to prove that someone other
than D was source of semen, injury, or physical evidence/ or to prove consent. sexual reputation only allowed if victim brought it up first
4. HEARSAY: 1) any out of court statement 2) offered to prove the truth of the matter asserted. Generally inadmissible, even if the declarant
is available to be cross-examined on the witness stand[only evidence generated by humans is hearsay, not evidence generated by animals (dog barking in
reaction to a closed package) or machines (printout of results of telephone tracing equipment, results of blood test)
 Ex. of hearsay: using what someone else has said as evidence (ex. My mom told me she saw the accused at 3PM), judgment of civil trial (not
criminal), even though relevant to issue at question.
A. Exemption: admissible b/c NOT hearsay:
1) Declarant-Witness’s Prior Statements: not hearsay if declarant testifies at present trial and subject to cross examination: (1) Prior
inconsistent statement: made under penalty of perjury can be used to impeach declarant’s credibility + can be admitted as substantive evidence. (2)
Prior consistent statement: admissible only rebut charge of lying only if it was made before the declarant had reason to fabricate or rehab the
declarant’s credibility as witness (3) previous out of court ID after perceiving that person (ex. at lineup) – MUST be able to testify, not allowed if
witness dead or unavailable to testify.
2) Opposing party (to current litigation)’s statement admissible as substantive evidence, regardless of whether opposing party has even
testified or whether the statement contradicts that testimony
 Adoptive admission: silence acts as an admission if: party heard and understood, was physically and mentally able to deny, reasonable person
would have denied. Later denial does not matter whether she made adoptive admission at the time. [ex. b/c similar situated RP would not have
felt compelled to answer a seemingly random accusation that she murdered husband by a clown at a street fair, no adoption for failure to deny
 Vicarious statement: made by one person may be imputed to another based on the relationship between them (ex. employer –employee within
the scope of and during the course of the relationship; co-conspirator during and in furtherance of the conspiracy).
B. Exceptions: hearsay but still admissible
1) Requires unavailability of witness: 1. Exempted via grounds of privilege, 2. Refuses to testify despite court order, 3. Lacks memory of subject
matter 4. Absent/ can’t be subpoenaed (abroad) 5. Unavailable b/c death/ disability.
 Former testimony: testimony given as a witness at trial (even previous trial) is not excluded if party against whom testimony being offered
had opportunity and motive to similar motive to develop testimony by direct examination. However, D must have had the opportunity to examine
the declarant during the previous trial.
 Dying declaration: only in civil and homicide cases by one believing he is about to die and describing cause or circumstance leading to injury
(nnt actual death
 Stmt against interest: At time made, was against own’s interest at time made and RP would not have made stmt unless true.
 Personal/ family history: declarant must be family member or close associate. Requires personal knowledge
 Stmt against party that caused declarant’s unavaiability : causation must be willful, not mere death due to medical malpractice
2) Doesn’t require unavailability of witness:
 Excited utterance (statement about startling event/condition wile still under stress of excitement: ex. after seeing bank robbery),
 Present sense impression (statement describing event while/immediately after perceived it ex. hearing startling event being described on phone
call)
 Statement for purpose of medical treatment or diagnosis (statement of then existing state of mind/ emotional /sensory physical condition/
intent at the time when it was said: “saying I’m stressed last year”, v. backward looking)
 Statement made for medical diagnosis/ treatment (when describing medical history or symptoms not excluded if made for purpose of medical
diagnosis or treatment to physicians, medical personnel).
 Business record (record kept in course of regularly conducted biz activity + making record was regular practice + made by someone with
knowledge) Not a business record even if regularly kept memo after each meeting if it was for secretary’s own initative & certified copies of
public records (self-authenticating, don’t need expert)
 Past recollection recorded: A memo or record about a matter that a witness once had knowledge of but now has unable to remember to testify
may be admissible, but may be received as an exhibit only if offered by an adverse party. --> generally admitted into evidence.
 V. Present recollection refreshed: witness must testify from the basis of his current recollection, but he cannot read from a document. Can
examine any item, even if the witness does not create the item. If can remember after reading document, ten testimony inadmissible. Adverse
party can inspect document, cross-examine witness about it and introduce any relevant portion into evidence and can use it to impeach the
witnesses’ credibility. --> generally not admitted into evidence.
 Judgment of conviction for previous felony conviction: admissible in civil and crim case to prove any fact essential to judgment. However,
cannot introduce evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the D did not commit the criminal
act.
 Learned treatises: scientific treatise or authoritative work if relied on by expert in direct or called to attn of expert on cross.
 Catch all: Guarantees of trustworthiness; strictly necessary; and notice given to adversary as to nature of stmt.
A. Constitutional issues: Even if not inadmissible b/c of hearsay, Confrontation clause (court favors face to face) can make statement inadmissible
against D in a crim case. Testimonial stmts are inadmissible unless the declarant is unavailable AND the D had an opportunity to cross the declarant
when the stmt was made.