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Questions: 1. modus operandi exception to bar against evidence of character: applicable only to crim cases or also civil.

D only or W as well? Believe no, pg 198, plus 404b nocrim id 2. Do federal rules take bubble bursting or mccormik approach? 3. Foundation for extrinsic evidence of bias: if W denies statement/expression of bias during cross-exam is it still within the discretion of the judge to admit? 4. Where¶s rule requiring µgood faith¶ questioning (ex ± cross exam of W abt µbad acts¶ to impeach) + Must accept answer W on cross gives, cannot offer extrinsic ev. 5. Instances when a party may bring forth specific instances of conduct 6. Evidence of character available in civil, criminal (flow chart) 7. Important cases mentioned 8. If D raises good character evidence under 404(1)«and P wants to rebut by asking questions about specific instances, must she do it by questioning the same W or may she ask other W abt specific instances? 9. 609(a)(1) ± bringing previous convictions of W, when do 403 assessment is judge assessing whether conviction is probative or whether W actually committed the crime in question? 10. Notes: R. 401, parts 1&2 are strategic, 3 is legal«what does that mean!?!? 11. 404(b) ± must judge first do a 104(a) analysis abt legitimacy of admission (where you argue why it should be entered) before jury does 104(b) process of whether event actually occurred? 12. Pg 199 how could prosecution avoid use of extrinsic evidence to bring prior misconduct and instead cross examine D? Why would defense broach topic of past crimes«don¶t have to stay in general scope of direct testimony?

EVIDENCE OUTLINE I. TYPES OF EVIDENCE A. Physical Types of Evidence i. Real Evidence ± gun, paper, etc.; an object that played a role in the events at issue, produced for inspection at trial. Type of demonstrative a) Exception to admittance: if particularly disgusting, like an amputated leg but also depends on how presented. ii. Demonstrative±object that played no role in events at issue but illustrates something abt those events a) Ex ± maps, diagram, model, etc. iii. Documentary (special type) iv. Viva Voche ± from the mouths of witnesses [201] v. Judicial Notice ± a) substitute for other types, when highest ct. takes notice of efficacy of form of evidence (e.g. radar, DNA) b) Must be: 1. Adjudicative fact

n. 403 :PREJUDICIAL RELEVANT ± even if relevant. Only: adjudicative facts 2. ..n. Legislative facts (pre-nuptual agreements deter divorce) 2. If unsure no j. c) R.g. What can P do? Can request j. not judge¶s own experience c) Scope: 1. [201(e)] 1. 401 :RELEVANT ± if has ³any tendency to make the existence of any fact that is of consequence to the determination of action more probable or less probable than would be without the evidence´ 1.g. 402. as conclusive h) Practice Question 1.n«available at any time. must show item stolen worth $1. forgot to show item worth $1k. Judge may look at inadmissible ev (e. ± relevant evidence is admissible except as otherwise provided by statute or constitution. Rules a) R.n. may take notice of existence of docs in system. ³Logically Relevant´ ± evidence that has any tendency in logic to establish a proposition b) R. 4.: 1.n. confusion of issues. evidence may be excluded if its probative value is substantially outweighed by considerations of unfair prejudice. If civil conclusive to jury«so anything to the contrary is inadmissible. 402 :ADMISSIBILITY OF RELEVANT EV. Assume for felony. ³subjective´ points (Shaq is tall vs. 403] i. ii. Criminal  Jury not required to acceptj.Capable of being known to a veritable certainty/ µnot subject to reasonable dispute¶ [³capable of accurate determination thru sources not reasonably questioned´] [201(b)] 3. Criminal 1. waste of time. If by preponderance of ev permitted 2. ** «is applicable to the facts in way P stipulates (judicial notice Marines trained in guns. but likely not their contents (e. B. dispute that D trained to clean gun quickly)** g) Civil vs. but not the facts or allegations contained within) 2. Civil  Jury must accept j. even during appeal f) P may controvert j. Prosecution puts on case and rests. 2. Only before judicial notice ruled on and implemented [201(g)] 3. study that controverts study j. Based on general knowledge. based on). even on appeal. as conclusive«even if D asks for it  Past criminal conduct: ct.n.n. Shaq is 6¶10´) e) Timing ± any time. indictment for previous assault. d) Not eligible for j. Relevancy of Evidence [401.000.

evidence of defects in bullets at other plants«some probative but time of investigating differences in plants. it¶s in. prejudice or confusion that is involved in considering it. expense. direct W to avoid inflammatory characterizations  *Testimony as accurate and truthful. 2. 4. Logical Relevance a) Question: is the information PROBATIVE?.1. Circumstantial Evidence ± Requires some inference musts show relevance a) Most facts require some level of inference ± even eye-witness¶ testimony. stipulation. so find way to argue its relevance). pros wants bring ev of V claim before died that D poisoned to show V¶s state of mind not to show D murdered but unlikely jurors wld be able to ignore for that purpose..  Ineffectiveness of limiting instructions: D facing murder of V via poison. Examples:  Emotional appeal: personal injury plaintiff day in the life video featuring emotional scenes of P w/ fam. confusion:p. still illustrations (not computer animation). y Verbal testimony. whose probative is great enough to justify the delay. case for defective bullets at D manufacturing plant 1.. pre (not post) autopsy photos. Objecting to:  Analyzing (1) §401  what is probative value?  (2) § 403  what is unfairly prejudicial aspect?  (3) How is V substantially outweighed by P? Defending: minimize prejudicial facts/impact + max probative iii. etc. c) iv. outweighs. does it make proposition more or less likely (very low standard) b) But«may be admissible for one purpose but not another (but once in. 5. 6. ³Legally Relevant´ ± Ev. Court Should Consider:  Available substitutes for that evidence (prob value & risk of prejudice) [Old Chief case]. 3. incidents.requires the inference that the witness is telling the truth b) FACT + INFERENCE = LEGAL PROPOSITION . cannot dismiss b/c unreliable W* Applies to:  Criminal + Civil  Both P + D  Exception ±Rule 609(a)(2) impeachment of witness for µdishonesty crime¶ w/o balance test.  Admissible for one purpose but not another and danger jury won¶t follow limiting instruction. cld remove prejudicial portions  Waste of time.i..

II. in fact. previous assault conviction. the fact is not at issue (may have been removed b/c of ADMISSION in the pleading. ³Can you identify?´ (ref. v. Direct Evidence ± requires only the inference that the evidence is true vi. bringextrinsic evidence . Ask Ct. Relevancy Objections a) Evidence is Immaterial ± materiality can be confused with relevance. 403 ³Waste of Time´ b) Evidence is Irrelevant ³Objection.Ex ± Officer states he saw Joe¶s wet jacket on the floor. Exhibit to W 3. vii. Ct. D moved to STIPULATE to the offense if P agreed not to mention details of previous crime. P rejected. leading to idea he cld have been the shooter  Fibers. although it has logical tendency to establish fact its offered to prove. other physical ev. Generally i. Standard for Admissibility i. P cannot claim that it will suggest to jurors that P doesn¶t have evidence to support the claim) 2. CONCEDED POINT) R. Makes the inference is that Joe was outside in the rain around time Leslie was shot ³more likely´. United States ± D charged w/ being felon in possession of firearm. for appeal) b) Show to opposing attorney c) Witness testimony 1. relevancy?´ Irrelevant if has no tendency in logic to establish the fact that the proponent asserts the evidence will help prove. Leave no µgap¶ in the legal story (if it doesn¶t. INTRODUCING EVIDENCE A. # for record clarity) d) Lay the Foundation (for Authentication if 901) 1. may ask leading questions b/c otherwise difficult if µunfriendly witness¶ [only when unfriendly or all?] 2. ³authentic´ ³authentic´ ii. 403 issue then. B. Types: a) Judge decided = sufficient for item to be admitted into evidence. looking only at proponent¶s evidence ³authentication´ b) Jury decided = whether sufficient to be. Removing Relevance: D may stipulate a fact/issue (essentially admitting to it) so the issue is no longer in contention  R. found evidence no longer held any probative value but details of the assault cld prejudice jurors against the D. Process: * cannot reveal contents * a) Must be marked (even if not admitted. 1. in order to block evidence offered to prove admitted facts. to approach 2. Cover issue in its entirety ‡ Old Chief v. evidence to show fact is no longer probative and may be unfairly damaging to D = UNFAIRLY PREJUDICIAL a) Stipulation. fluids. must: 1.

cocaine. etc. decides if have met) 2. Types requiring authentication: a) Real Evidence ± gen involves action in transaction or occurrence which gave rise to lit (guns. Rebuttable Presumption: general proposition assumed to be true (ex ± letters which contain stamps and addresses and are put in mail are delivered) 3. Must show:  Actual item from transaction or event  Has not undergone significant change 2. Original Document Rule III.) FOUNDATIONAL FACTS + (2) REBUTTABLE PRESUMPTION = (3) PRESUMABLE FACT 1.)«make sure jurors aware of contents now C. Self-Authenticating [902] iv. 902] i. Basic Equation: a) (1. BURDENS & PRESUMPTIONS A. CONCLUSIVE EFFECT (unless either presumption or facts challenged/rebutted) . Burden [301] i. Presumable Fact: conclusion due to existence of foundational and rebuttable (ex ± D received the letter) b) Effect: if rebutted they will require a factual finding even if that finding is contrary to reality (assuming not rebutted by opponent of) 1. Methods  Distinctive characteristics [901(b)]  Chain of Custody (from event -> ct) ± each person who touched exhibit must describe how and from whom received. Authentication by Identification [901] D. Presumption i. Foundational Facts: from situation before the court (ex -P added stamp and address to a letter) 2. Authenticating Documents[R 901. put on screen. tangible product for jury (make copies. proponent must offer evidence sufficient to meet a burden of production at to each foundational fact (trial ct. how handled ii.e) If permitted. jury decision whether facts are true 3. etc.) 1. Requirements a) Authentication and identification as condition precedent to admissibility b) Evidence to support finding matter in question is what claims to be c) Standard: reasonable jury cld find item to be what proponent claims iii. Types a) Production b) Persuasion B.

rule of law that change the nature of the facts needed to be proven (ex ± except otherwise provided by another stat. Facilitation of litigation process ± by resolving matters in accordance /w high probability. based on everyday logic (ex ± someone whose usual practice is to fasten seatbelt did so on relevant occasion) 2. 4. if yes then given conclusive effect. d) Distinguished from: 1. Challenge to foundational facts  jury determination as to existence  If jury says yes  MUST find that the presumed fact exists/is true  If no  view facts normally using civil standard of preponderance c) Presumed Facts Challenge . 3. behavior (ex ± that after missing for number of years. Fairness ± correct imbalance b/c of parties¶ unequal access to proof (ex ± between connecting carriers of goods. No challenge to underlying/ foundational ct. rules of substantive law. judge may enter directed verdict for element of case or binding jury instruction b) Foundational Fact Challenge 1. facts exist MUST find presumable facts exist. to jury to decide if believes facts presented.c) Reasoning: 1. If sufficient facts brought jury instructed: yes. burden of persuasion then on D to demonstrate lack of unlawful discrimination). instructions to jury: if foundational found true  it MUST find presumed fact is true (P retains burden of persuasion as to underlying facts UNLESS so strong judge directs verdict) 3. facts don¶t exist view facts normally and under normal civil standard 2. 2. Challenging Presumption.two ways: foundational or presumed a) Nothing ± 1. Substantive policy ± encourage/discourage certain types of out-of-ct. child of wife cohabitating w/ a non-sterile husband child assumed to be child of the marriage «and no conflicting evidence may be presented). ii. Permissive inference ± factual conclusion that the factfinder MAY draw from another fact or group of facts but does not have to. damage occurred while the goods were in the possession of the last carrier) 2. person is deceased so can settle wills) 3. Irrebuttable presumption± not evidentiary devices. once P proved firms failure to promote was motivated by her gender. Resolve issues ± otherwise diff b/c of absence of proof (ex ± title vii case. no. If weight of evidence supporting facts so strong. streamlines process and avoids factual distortions by juries deciding fact is not true. Conclusive presumption ± not presumption at all.

Preliminary questions ii. iii. JUDGE DECIDED [104(a)] a) Test: more probably true than not (civil standard) b) Types of issues governed 1. credibility of witnesses . Usually jury instruction issued. if opponent produces sufficient evidence to meet the burden of production. the presumption disappears entirely and jury is not informed of (functions as matter of permissive inference/may find either way) 2.  P meets production and persuasive burden for foundational facts > J. Expert witness. Permissive 1. JURY DECIDED B. Morgan McCormick theory: burden of persuasion shifts to the opponent to show non-existence of the presumed facts. qualifications to be (more likely an expert than not) 2. Two ways  P produces sufficient foundational ± D produces sufficient against foundational (neither meets persuasive burden) > J.I. = presumed facts are true unless D convinces you they¶re not. Even when jury will decide same question. Concerning: a) Qualifications to be W b) Existence of privilege c) Admissibility of evidence iv. Preliminary Question ± i. Standard i. = if foundational facts are true  presumed facts are true unless D persuades that more likely than not presumed facts are untrue.I. Applicability of hearsay exception 3. OBJECTIONS + PROTECTING THE RECORD A.Bursting Bubble Theory ± after proponent puts forth facts to support the presumption. Why incl judge? B/c if find evidence excludable wld likely be difficult for jury to not incorporate into thinking iii. Civil standard (even in crim trials) ii. Voluntariness of confession 5. First: whether preliminary fact exists/more likely than not fact exists a) Judge Considers: 1. Existence of privilege 4. even inadmissible evidence 2. Mandatory ± NOT ALLOWED as jury must make all findings regarding all elements of alleged crime 2. In Criminal Cases a) Two types of presumptions 1. IV.

CHARACTER EVIDENCE [404(a)] i.honesty. discretion) [608] b) Propensity Exceptions . of which jurors assumed to have insufficient knowledge iii. Conditional Relevance i. a) Reasoning: ³ct. Defendants. Arising from: one¶s morals ±this is not settled tho²over which one has substantial element of choice and ppl view person more or less favorably as a result.´ b) ³Character´ ± generalized descrip of disposition or general trait ex . Exclusion against. Only admissible evidence (otherwise jury cldn¶t hear) 2. Civil Trials a) Character of the W for truthfulness or lack of (at ct.C. any party on stand) general deposition. not only judge deciding a) Fact finder Considers: 1. V.¶ minus limitations under 412 in sex offense cases d) P bringing positive character evidence of V to rebut D character claims against the victim (Note: objectionable if P raises before D does) e) P bringing negative character evidence against D pertaining to the same trait which D brought against V (Note: objectionable if P raises before D does) f) Homicide case ± D claims victim was original aggressor. when relevance depends upon existence of some other fact. temperance. when that evidence is offered to show action in conformity with that disposition on a particular occasion. peacefulness (not stroke victim¶s forgetfulness«medical condition) 1. evidence of victim¶s peaceful character [404(a)(2)] g) Witnesses ± for truthfulness or untruthfulness (at discretion of the ct. Criminal Trials a) If D raises his own character which he raises and is relevant b) P rebutting D¶s claims of good character ± may use specific instances when questioning same W [404(a)(1)] c) Accused offering evidence of pertinent trait of µvictim. WITNESSES A. encourages rigorous logic exercise about event. ii. unlessjudge decides µno reasonable jury cld reach such a conclusion¶ iv.)[608] h) Propensity Exceptions ± not being used to show conformity but for some other purpose [404(b)] i) Habit is freely permitted ii. Exceptions to the Exclusion i. generally: prohibits reception of evidence illuminating a person¶s (Witnesses. not required to choose between evidence rules. B. not whether W good/bad person.

Modus Operandi ± distinctively similar method admitted to show (a) IDENTITY. Motive ± may be the ³ultimate issue´ in a criminal case to show intent or in civil to support award for punitive damages.  Ct. and µmisconduct¶ shows that the act need not be a criminal one. although both may show anger over interference w/ . ii. joint wills. judge must determine if a reasonable jury cld believe D committed act by preponderance of the evidence. Standard for admission: to be allowed. i. have allowed in for variety of reasons (nurse addiction as reason replaced patients¶ demerol shots w/ saline. but significantly undermines 404(a)¶s denunciation of character evidence as distinction is so slight. Preparation ± uncharged crimes may be used. Some claim evidence of modus operandi must be extremely distinct = signature. wife soon found drown in bath tub«P wanted to incl two other similar instances  admitted to go to identity  DOCTRINE OF CHANCES: addresses relevance of similar misconduct and describes mental process of considering the likelihood that an unusual or unexpected element would occur«and the likelihood the unique factor would be coincidentally replicated in linked instances (i. a) May include: evidence of crimes/misconduct which did not result in conviction.  ³Brides in the Bath´ case where man assumed fake name. supposedly not being used to show individual in question acted in a consistent manner. Prior Bad Acts404(b) ± (available in both civ and crim).  Racially motivated past crimes show motive/enmity against group  Previous assaults against same person (show dislike as well as µlack of mistake¶) 2. Uncharged misconduct evidence is the term often used to describe what may be admitted to prove the µpropensity exception¶ b/c µuncharged¶ implies the act is not the crime currently being charged in ct. D prior imprisonment as evidence selling cocaine to support family) (but another did not allow evidence of alderman¶s gambling to show motive for stealing money from city«said wld be allowed if pressing gambling debt).C. stole car to use as getaway vehible for robbery. married wealthier woman. The act may be admitted not to show conformity but may be used to show a) Circumstantial support for ultimate issues 1. e. often that of the defendant as perpetrator or also (b) LACK OF MISTAKE.g. broke into store to take tools used for bank robbery.) 3.e. etc. acquittal (sometimes) iii. how many times can one dude¶s wives drown in the bath accidentally?)  Defending against: the situations differ in some manner (Joe previously punching guy who hit on girlfriend not same as Leslie being shot.

c) Must also withstand: 1. 3. Also. Opportunity ± shows that D had chance or ability or means to commit the act in question. more directly (ex ± D attempting to bribe juror suggests he is guilty and has something to hide). If solid case already. undermines that defense.  Defense: if info being used is overly prejudicial (ex ± broke out of prison in area of robbery) should object due to existence of less prejudicial methods b) Ultimate Issues: 1. like if son trying to reconstitute father¶s gun collection. undermines claim). Also. etc) &b) the ultimate fact it tends to prove(is it circumstantially showing something or does it go to an ultimate fact/element?) 2. makes additional evidence less probative and more vulnerable to 403 objection  Alternative methods available to prove same point  if in blurry range btwn µgeneral bad character¶ evidence and µpropensity¶  argue it is unlikely jurors cld consider ev only to element of motive. must ask if«arouses horror or sympathy? Invoke desire to punish? Remoteness in time of crime or other bad act?  Strength of evidence of case before the court. must bring sufficient evidence to show that a reasonable jury could find by a preponderance of the evidence that W did commit the act in question d) New York Rule: the list of exceptions is exhaustive and evidence of µcharacter¶ may be brought in ONLY for those purposes listed. bar incident was heat of the moment and Lelsie incident on g. Can also be used to disprove D claims (if attributes bank robbery he committed w/ B but next day committed another crime w/ B but was not under duress. not interferer. Identity ± uncharged misconduct may be offered to show identity of person who committed certain act. 5. 403 determination. 2. Intent/Absence of Mistake ± shows existence of a state of mind that is a prerequisite of commission of the crime. murderous temper) 3. . fact stole one missing piece may be used in case following son¶s second theft of gun from collection. evidence stood trial for shooting L will only serve to prove the D has a violent. 104(b) determination.females.  Be careful! Close to being simply character evidence²which is barred (if on trial for shooting A. Relevance scrutiny: proponent must put forth evidence showing both a) the immediate purpose for the evidence offered(what does it go to prove? Move. an absence of mistake. Common plan or scheme ± underlying multiple crimes. etc etc. Commonly through modus operandi. showing of D was not acting under false impression. opportunity. Knowledge± previous warnings abt illegality of certain activity may be used to undermine D claims of ignorance.f. 4.

P offered evidence that sold stolen/apparently stolen goods before to show guilty knowledge.Crim Case: D offers ev of good character about D (³opens door´) P may offer contradictory ev. . United States (1988) ± D accused of selling stolen goods based on his selling at below the cost of manufacture. Relevant to crime charged with ÌP method of rebuttal: a. admitted for that purpose NOT for saying anything abt character 1. Burden: showing of evidence sufficient to allow a reasonable jury to conclude that D had committed the prior acts  CONDITIONAL RELEVANCY THEORY ([104b] jury obligation to consider evidence only if it decides by a preponderance of the evidence that the fact at issue is true) 2. prejudicial f) Quantum of Proof: Uncharged Misconduct ± must show not whether person was guilty of the uncharged offense beyond a reasonable doubt«but whether the uncharged offense demonstrates proof of the charged offense beyond a reasonable doubt. Must include: ³pertinent trait of character´ (specific traits ± honesty. 404(a)(1) 405(b) 405(a) Crim 404(a)(2) Crim 404(a)(2) Civ/Crim 608 . against may incl. denied knowing they were stolen.ok. Must be in form of: Opinion or Reputation by knowledgeable W c. general statement of µgood character¶ ± not ok) d. Not allowed: specific acts ± minus basic background b. Call own W ± in form of reputation or opinion b. ex ± Brook¶s racial attitutdes Not Excluded (Character Ev not barred by rule) ‡Direct Conclusion Evidence ± leads directly to  conclusion X more or less likely to have occurred = not banned 1. against Victim character  P may attack D characon same attribute 3. [note: may also act as witness and treated as such] Ì Limits a. Balance: full flavor vs. against Victim character  P may support character 2(b) Crim: D offers relevant ev. 1.(a) Crim: D offers relevant ev.prior convictions of D . Cross D¶s W ± allows P to ask of specific instances of D conduct re: traits W testified to on direct 2.e) Res Gesta/Complete Story± W permitted to tell story in a natural fashion.Any P. attack W character for truthfulness other side may then support W character ÌW may incl : D if takes stand as W. 3. nonviolence. ev. ‡ Huddleston v.W on D character for truthfulness/credibility as W source Not w/i scope Crim.

For Admission: no requirement habit or routine be corroborated by other evidence. but decided by judge [104(a) ± by a preponderance of the evidence. 413. Notice P must give if intent to offer uncharged misconduct in crim trial [404(b)] a) Motion in Limine ± D may offer in response to possibility of uncharged misconduct  may influence his decision to take the stand. Habit i. iii. 414. whether is habit is not a question for the jury] a) To argue against: not sufficiently regular « depends on how great the need is for inclusion b) Must meet § 701 test ± Opinion of lay witness E. Procedural i.4. In Business: to show processes iv. . if offered to show general disposition Source D. 415 Civ/crim 404(b) 404 ± not showing conformit iv. Prior bad act  if showing something other than character. Evidence of habit is freely admissible ii. Distinction from character: habit is semi-authomatic/reflex response to particular situations. character is not used to speculate D behavior. do not need eyewitnesses. Limiting Instruction (uncharged mis) ± inform jury that only purpose of evidence is to shed light on D¶s possible motive/intent/etc and not to show D had a bad character and was likely to commit crimes of they nature charged. but end in itself. like motive. ii. opportunity. Excludes: Excluded (Character bar applies) ‡Two steps of inference: Evidence via W testimony: General Disposition  Conclusion act more or less likely = Barred Evidence used to ³circumstantially´ prove out-of-ct behavior Reputation (way of showing character but may be undeserved) Specific instances of conduct. Sexual Assault/Child Molestation: similar conduct of Too narrow and specific to be character trait = TENDENCIES or MODUS OPERANDI (µidentity¶ example) When character is element of cause of action.

iv. To refresh recollection (can use not only verbal prompts) 4. must be evasive b) Beyond Scope ± on cross-examination. Take item away ii. just b/c in discovery does not mean in evidence d) Calls for Narrative Response ± witness could reveal inadmissible evidence if prompt not sufficiently narrow. if wrong anger judge) e) Compound Question ± incl. request limiting instruction or that information be µneutered. F. except 1. it preserves for appeal. bring as own W c) c iii. Once W memory sufficiently refreshed 5. Hostile witness 2. common) 3.a) Purpose: even if unlikely to effectively separate in mind of jurors. Transitional questions (v. W must demonstrate cannot remember facts asked to recall 2. To get in. To get in«invite as own W c) Assumes fact not in the record ± can¶t do on direct. On Direct a) May not use leading questions (which suggest answer in question). Partial exclusion/ Redaction/ Limiting Instruction (dual purpose)±when evidence admissible for one purpose but not another.¶ In part to avoid prejudice. iii. Stipulation ± to avoid evidence which may be legally admissible for a purpose. Defending: not prejudicial and will not involve hearsay or inadmissible evidence (careful. 1. To discuss things/facts/matters not controverted b) REFRESHING RECOLLECTION [612] 1. May bring anything OR use leading questions ± does not need to be admissible into evidence (however may redact irrelevant points and furnish to opposing counsel if so request) 4. W identifies w/ adverse party ± merely being friends is insufficient. Adverse party 3. On Cross a) May use leading questions b) Content is restricted to matters raised on direct 1. may not as any questions of witness dealing with topic not addressed during direct 1. Form of Question Objections a) Leading ± on direct not allowed unless« [611(c)] 1. . Approach judge to seek permission 3. stipulate that point if less damaging than details being offered (P wanting to present evidence of Joe¶s shooting at motorist to show he knows how to operate a gun/´ability or knowledge´«just stipulate knows how to operate gun). multiple questions in one and cld confuse W or give inaccurate impression. QUESTIONING WITNESSES i. Preliminary questions 2.

Ex. must be: y Relevant y Reliable: a. Daubert v. Inc. ³Helpful to´«not helpful if:  too general  too specific  merely concludes element at issue (despite R. 701 ± LAY TESTIMONY a) Basic Elements 1. ³may give opinion´ [703]  Not based on speculation. ³W qualified as an expert´ 4. Product of reliable principles and methods c. or specialized knowledge´ b) Argument for Excluding 1. generally is not helpful) ii. ³not based on scientific. 1999) 2. R. 3. may base on« 1. technical.f) Non-Responsive ± W not answering question asked of him/her 1. Carmichael (S. technical. LAY & EXPERT WITNESSES i. Kumho Tire v. 602 ± Personal Knowledge 2. [704] c) Exclusion 1. W MAY NOT testify to:  Criminal case + whether D possessed mensrearequrd iii. R. 704 ±EXPERT TESTIMONY a) Basic Elements 1. may be based on« b) Cases 1. Facts garnered from own observation . ³will assist trier of fact´  To assist. specialized knowledge´ 2. Reliably applied principles to facts 3. R. Ct. Move to strike from record to preserve for appeal G. ³Rationally based´ ± have collected underlying facts but did not reach a logical conclusion. ³rationally based´ 2. Subject matter: ³scientific. Bases of Opinion Testimony (by Experts) [703] a) May not base opinion on speculation. ³helpful to´ 3. Merrell Dow Pharmaceuticals. Opinion based on sufficient facts or data b. 704 removing ban on Opinions on Ultimate Issue.

Facts not in evidence but expert learned out of ct. W qualified to testify to the particular knowledge (on direct) 2. If opinion based on ev. Test of methods: general acceptability in field 4.Facts presented in evidence at the trial.)«often only 55 users and was considered ok. Experts: scientific.. specialized b. Current applicability:  NY 5. is the gatekeeper  encourages thorough logical analysis  Foundation y 104(a) judge preliminary question: subject matter appropriate for expert testimony? see 702 ³reliable principles and methods´ a. and are a type reasonably relied upon by experts in the particular field in forming opinions on the subject b) Disclosure of factual basis [705] 1. posed to expert usually thru hypothetical question 3. must NOT reveal those facts/ basis of opinion unless«  Ct. technological. Criticism:  Junk science admitted b/c those who use it obvi consider it acceptable even if incorrect (divining rods e. derived from trial  does not have to be revealed by direct attny using hypos (as was pre-FRE practice) 3. not scientists. Gave opinion on substantive issue 3.  Lag b/c takes time for group to catch-on to  Field has diff standards than ct. 2. If facts learned out of ct. ruling overturned for failing to meet general acceptability test b/c manner in which scientists conducted tests to determine if med was carcinogenic was not gen used«reversed Frye. Facts: lower ct.  See text d) Daubert Admissibility of Methodology [702] 1. . may be lower as not being used to incarcerate or penalize person gen.g. Non-experts: testimony based on SPECIALIZED EXPERIENCE rather than formal scientific training (Kumho tire)  subject to gatekeeping examination and use demonstrably valid 2. Ex.W does not have to reveal basis for opinion on direct but may be questioned abt on cross 2. determines probative valuesubstantially outweighs prejudicial effect c) Pre-Daubert: Frye Test Admissibility of Methodology 1. Rule:  Judge.

Is W qualified to serve as µexpert¶? Has theory/technique been tested Controls and standards established and maintained? Peer review studies published? Known error rate? General acceptance within scientific community?  Considerations y y y y y y H. Not permitted:  To impeach on collateral issue for truthfulness (but if relevant for another reason may bring in extrinsic evidence) ii. Using Character Evidence a) Specific Instances of 1. Modes of Impeachment(The Crazy COP Can Pray) a) COMPETENCY 1. Permitted:  Inconsistent statement  Bias  Mental capacity 2. Permitted at discretion of the judge (!!!) [608(b)] iii. Using:  Extrinsic evidence b) CHARACTER ± Untruthfulness [608] 1.depends on category.y methodology but not need meet same requirements as scientific«. recollect or narrate 2. For truthfulness or untruthfulness 2. IMPEACHMENT i. Using:  Generalities about character (bad reputation or opinion of W)[609] y Must pertain only to truthfulness and be extremely general  Cross examine regarding specific misconduct (that did not result in conviction and reflects on truthfulness) w/ permission of ct. Attacking ability to perceive. cross examiner must accept the answer  Prior criminal conviction that reflects on truthfulness . (ex ± falsifying academic record on employment application) y Must accept W denial of the misconduct. Process/Method a) Must be a good faith basis for factual validity of matters raised by questions b) Extrinsic Evidence 1.

Opposing testimony conflicting content of W testimony 2. Foundation [613(b)] for EXTRINSIC ± do not need to confront w/ the prior inconsistent before bringing in the extrinsic evidence. or perception y EXTRINSIC is permitted (make sure not using for heresay excluded purpose!!!!) 3.  Independently relevant: may be also used to show bias. REHABILITATION . Using:  Cross examination (specific instances)  Use of other previously introduced testimony  Witnesses own prior inconsistent statement  New evidence contradicting W¶s testimony  Extrinsic evidence regardless of whether collateral issue  Note: if it is a collateral issue. y May question W abt (ct. extrinsic evidence used to contradict the W may be kept out by court under 403 waste of time anyway (unless case is close). Methods  Collateral issues: only relevance is fact W prev said something contradictory abt (ie type of food served at work picnic in sex assault case). c) OPPOSING TESTIMONY 1. but common law approach is preferable b/c W may not be available later  Does not apply to party-opponent«extrinsic of prior inconsistent statement admissible whether or not a foundation has been laid by asking p-o abt  Queens Rule minority: if going to question W abt writing or prev statement must first ask foundational questions  If reading from a document  W has right to see and is often most effective if have W read from. a substantive issue of suit. On Cross: may impeach in any mode so long as permission of judge [608] + good faith basis 2. When inconsistence lies in what W originally did not say or left out (admissibility depends on whether it is something wld naturally include) 2. On direct:  May use extrinsic evidence e) CRIME f) PRIOR INCONSISTENT [613] 1. 4. Defending against  Not inconsistent (purpose is to shed light on credibility«does statement offered do that?)  I. d) PARTIALITY/ BIAS 1. has wide discretion to bar or allow) but MUST accept W answer.

³Speaking agent´ ± must be authorized to speak for the principal (regardless of scope of his employment) D. Certain Documents D. EXEMPTIONS B. Scientific expert ± Frye test rather than daubert E. follows Queens rule (foundation: must tell subject. VIII. Consider: a) 1st: Is it Hearsay? 1. to whom statement was made) B. time. Statement concerns the cause or circumstances of death 4. Yes  Does it fall into hearsay exception or exemption?  Is it testimonial? 2. Personal knowledge required iii. Types of interests that qualify: 2. i. place. Medical diagnosis ± must be for treatment. Unavailability 2. Belief death is imminent 3. VII. EXCEPTIONS i. HEARSAY A. C. Declarant is Unavailable [804] a) Former Testimony b) Declaration against interest [(b)(3)] 1.VI. Residual Exception ii. P-O exception rather than exemption to hearsay C. in but not substantively EVIDENCE EXCLUSION± NY A. not diagnoisi F. No  Not hearsay. Dead Man¶s Statute: prohibits an adverse party from testifying a dead person¶s eastate a/b transaction or coversations w/ dead person . Civil case or homicide prosecution 5. Only partially disserving: c) Forfeiture by wrongdoing d) Dying Declaration 1. 613(a) ± must give notice of previous inconsistent statement. CONFRONTATION CLAUSE i.