I. GENERAL PROVISIONS A. Introduction 1. Approach for MBE Issues a. Underline the Cause of Action (Civil or Criminal?) b. Situate the Proceeding (where are we in the proceeding? Party or Witness? If a Witness, what side? c. Determine the Purpose for which the evidence is offered. Character or Credibility? Substantive or impeachment? 2. 3 Main Substantive Areas a. Character Evidence b. Impeachment c. Hearsay 3. Essay Tip First issue is always relevancy The Federal Rules of Evidence


2.There are two ways rules come into being: a. Codification of Rules from the common law b. Rules passed by Congress Congress 3.The Federal Rules govern all civil and criminal trials and proceedings in federal courts, and also
include: Bankruptcy and admiralty Cases 4. Certain proceedings where the Rules do not apply include:

a. b. c. d. e. f.

Preliminary Questions of act Grand Jury Proceedings Preliminary Hearings (except for hearsay exceptions) Sentencing and Probation Hearings Obtaining a Warrant Stale Proceedings???

Rulings on Evidence (Rule 103) (OL I.C) 1. Sets forth the requirements for an Appellate Court to reverse a trial court’s decision. Where a ruling _admits_____ evidence, a timely and specific objection must be made to preserve the issue for appeal If the answer has already been heard, then a motion to strike is required

a.Effect of a general objection (i.e., “I object”) if overruled – The issue is not preserved for appeal 2.If the evidence is excluded, where a ruling _excludes___ evidence, an offer of proof is required a.EXCEPTION i. Unless the substance of the evidence was apparent from the context


3.When dealing with an offer of Proof, it is made
outside the presence of the jury

a. Motions in Limine are pretrial rulings on the admissibility of evidence b. If the error is not prejudicial to the outcome, then the harmless error rule applies
Error is harmless if the jury would have reached the same verdict even if the error did not occur

c. If no objection is made, the evidence will be admitted even if objectionable. d. The only time a reversal will result from the admission of evidence despite an objection not
being raised is when: there is “plain error.” A serious mistake that affects the outcome of the case. D. Preliminary Facts (Rule 104(a) (OL I.D) Preliminary Questions of Admissibility shall be determined by the court. 1. Preliminary facts: (CAP Rule) 1. Competency – Witness Qualifications Is the lay witness qualified? Does he have proper knowledge? Is he helpful? Does the expert witness have special expertise that makes him helpful? Did the witness swear under oath? 2. Admissibility Judge determines application of technical evidentiary rules such as whether or not a hearsay exception applies 3. Privilege Whether or not a privilege exists EXAMPLE: Dying Declaration

a.The burden on the judge when determining admissibility of evidence: (1)Hearings on admissibility held outside the presence of the jury (2) Standard used: PotE (preponderance of the evidence) (3) Decisions are final and binding on the jury (4) A judge is not bound by the rules of evidence when determining preliminary facts except
2. with regard to privilege Conditional relevancy: FRE 104(b) Where admissibility of one item of evidence is conditioned on the relevancy of another item of evidence, once that condition is met, the judge shall admit the evidence


Limited Admissibility (Rule 105) (OL I.E) 1. If evidence is admitted as to one party or for one purpose, but is inadmissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.


EXAMPLE: If a defendant is being impeached with his former convictions, we allow the jury to decide whether it believes the defendant. The prior convictions are admissible to challenge defendant’s credibility, but not as substantive evidence of defendant’s guilt. The jury is not allowed to use those prior convictions to determine the defendant’s criminal disposition. 2. 3. Counsel must request a limiting instruction. Related area: An accused may decide to testify on a preliminary matter without waiving his 5th Amendment privilege against self-incrimination as to other subsequent issues. Cross-examination is then limited to the scope of the preliminary issues.


Remainder of or Related Writings or Recorded Statements (Rule 106) (OL I.F)

1. Rule of Completeness
a. If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other part or any other writing that ought, in complete fairness, to be considered contemporaneously with it. (1) Purpose: To Prevent a party from misleading the jury about the content or writings or recorded statements by someone taking something out of context b. Caveat: Rule 106 N/A to conversations – only to writings Completeness rule will not apply to conversations – only writings or recorded statements c. EXAMPLE: Police reports: plaintiff sues defendant for personal injuries after a car accident. Plaintiff offers officer’s testimony regarding his personal observation of skid marks to show defendant was speeding. Defendant then wants to offer eyewitness statement to the police officer recorded in the police report that “plaintiff was crossing a red light at the time” (to show plaintiff was Contributorily Negligent). Defendant cites Rule 106 to admit the statement. Result: Hearsay rule will trump the completeness doctrine EXAMPLE: Prosecution offers defendant’s statement “I killed the victim.” Defendant’s attorney may now offer defendant’s later statement in the same confession, “I killed the victim in self-defense.” Result: Completeness rule would apply, statement would be admitted


II. JUDICIAL NOTICE (JN) RULE 201 A. Judicial Notice (JN) is a substitute for proof where the court accepts certain adjudicative facts as true without requiring formal presentation of evidence.


The first kind of judicial notice is commonly known facts, which are: facts not subject to reasonable dispute. They are generally known and accepted within the jurisdiction of the court. EXAMPLES:

(a) Water boils at 212ºF. (b) Austin is the capital of Texas. (c) The sun rises in the east. (d) Taking judicial notice that a street runs one way.
2. The second kind of judicial notice is facts which are capable of accurate and ready determination by resort to sources of unquestionable accuracy, which are: (1) readily ascertainable; AND (2) cannot be disputed.

a.These include accuracy of radar, blood tests, dna profiling, historical records, prevailing interest
or mortgage rates, father’s day 1984 was June 19th b. BUT NOT: “The US supreme court is very conservative” - “Second hand smoke causes lung cancer.” The judge may not take judicial notice of a fact merely because it is within her knowledge. a. Example: Judge in Boston who grew up in LA knows that Haight St runs East to West this is not commonly known in Boston. FRE 201(d) judicial notice is MANDATORY if: 1) Requested by a party and 2) supplied with the necessary information a. Issues of judicial notice may be raised: For the first time either pre-trial, during trial, or on appeal b. Opposing party does not need notice, but can dispute the taking of judicial notice. As a general rule, once a fact is judicially noticed: no contradictory evidence is permitted on that issue Most highly tested area: FRE 201(g) re: the effect of a jury instruction on judicial notice. a. A civil jury must accept a judicially noticed fact as conclusive






b. A criminal jury may but is not required to accept a judicially noticed fact as conclusive
HYPOTHETICAL: Dirk is accused of burglary, defined by statute as “the breaking and entering of a dwelling at night with the intent to commit a felony therein.” The prosecution requests that the judge take judicial notice of the following facts: That the sun set at 7:52 p.m. on the day of the burglary, that all of the buildings on the block with that address that was burglarized are zoned residential, and that most people lock their doors when leaving their


homes. Must the judge take judicial notice of each fact? May he? What instructions should the jury be given regarding facts judicially noticed? Judge does not have to take judicial notice of these facts. Judge may take judicial notice of the first two facts; however, the third fact (that people lock their doors) is not an indisputible fact and judge may not take judicial notice. Jury should be instructed that they “may, but are not required to” accept the judicially noticed facts


III. PRESUMPTIONS A. Presumptions in General and Civil Actions and Proceedings (Rule 301) (OL III.A) 1. Burden of Production a. Burden of “going forward” or burden of producing evidence. Placed on the plaintiff. EXAMPLE: Plaintiff presents a prima face case for negligence but fails to prove the element of damages. Plaintiff did not meet his burden of production. 2. Burden of Persuasion a. Degree to which evidence must be proven. EXAMPLE: Murder Case Prosecution has the burden of production and persuasion to prove every element of murder beyond a reasonable doubt that defendant committed the murder. Then in most jurisdictions and in federal courts, if the defense raises an insanity defense, the burden of production shifts to the defendant to prove insanity by a POTE (Model Penal Code and most state courts) or by clear and convincing evidence (federal court. standard) 3. Burden of Proof a. 2 main ways to shift a burden of production: 1) affirmative defenses, and 2 ) A Presumption b. There are three levels to the burden of persuasion: (1) PotE - Civil Standard & certain issues in criminal (venue, voluntariness) (2) Clear & Convincing - Criminally related civil cases (fraud, validity of deed/will) (3) Beyond a Reasonable Doubt - Criminal Cases 4. Presumptions function as a shortcut in evidence: A presumption arises where one set of facts (basic facts), once established, give rise to another set of facts (presumed facts) “Bursting Bubble” Theory (Thayer Theory): Majority posisition - Once the opponent presents sufficient evidence that the presumed fact is not true, then the presumption disappears from the case and the “bubble bursts” a. Most presumptions are rebuttable. EXAMPLES:


If a party can prove that a letter was mailed, the court will allow the jury to presume that it was received. If a party says he mailed a letter, but the opponent claims he never received the letter, the opponent can rebut the presumption that a letter mailed has been received. b. There are some presumptions that are irrebuttable: (1) Generally created by statute or common law

a. Caveat: When dealing with presumptions under Article 3, most presumptions will be
in civil cases. Presumptions against a defendant are disfavored EXAMPLE: In a negligence action, if the defendant is age 7, some states have statutes that say a child age 7 or below is incapable of negligence. As a matter of law, there is an irrebuttable presumption that no matter how mature the 7 year old, there can be no finding of negligence.


IV. RELEVANCY AND ITS LIMITS A. Admissibility Generally (OL IV.A) 1. Definition of “Relevant Evidence” (Rule 401) a. Relevant evidence means: Evidence which tends to make the existence of any fact more probable or less probable then it would be without the evidence (1) Logical relevance (a) Probative Value - Evidence that has some logical tendency to prove or disprove a fact of cause or consequence (2) Legal relevance (a) Evidence must be helpful in deciding the case Public policy considerations are balanced

2. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible (Rule 402) a. All relevant evidence is admissible, unless excluded by the Constitution of the United States,
by Act of Congress, by the Federal Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority.

b. Evidence that is not relevant is not admissible. 3. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403) a. Although relevant, evidence may be excluded if any of 6 considerations exist. If the probative
value is substantially outweighed by (1) Danger of unfair prejudice (2) Confusion of the issues (3) Misleading the jury (4) Considerations of undue delay (5) Waste of time (6) Needless presentation of cumulative evidence (7) Note: Not unfair surprise. Caveat: All evidence presented against a defendant will prejudice a jury. Remember that Rule 403 is concerned only with unfair evidence

b. MBE Tips:
(1) Most Rule 403 objections are properly overruled (2) Rule 403 balancing test favors admission c. Some Common Relevancy Problems (involving specific acts): (1) Similar accidents – In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove: a dangerous condition existed, a


product was defective, the cause of an accident, or Notice that a dangerous condition existed provided the other accidents occurred under “substantially similar conditions” -Look for “substantial identity of material circumstances” EXAMPLE: Railroad crossing; low-lying stretch of highway. Plaintiff would need to prove that, at this particular crossing, it was difficult to show that, at the same time of day and in the same conditions, the lighting was poor. (2) Absence of similar accidents - To rebut a claim of negligence, the defendant could show an absence of similar accidents. E.g., the stairwell in the landlord’s hallway has been the same for 10 years and there have been accidents in that time. (3) Consciousness of guilt – relevant to show a guilty mind. EXAMPLES: (a) Fleeing the scene (b) Threats by defendant against the witness (c) hiding from the police (d) using an alias (e) failure to submit to a blood alcohol test HYPOTHETICAL: Victor is killed when the car that he is driving is hit by a tractor-trailer owned by Long Haul Trucking Co., driven by Arthur, who is also killed in the car accident. Victor’s family sues Long Haul, and seeks to have evidence admitted that Arthur’s blood alcohol was 0.24% (more than twice the legal limit) at the time of the accident. Should the judge exclude the evidence under Rule 403? No. the evidence should be admitted. It is relevant to show that the employee (Arthur) was negligent/fault and gives a basis for the vicarious liability of employer 4. Other types of evidence include: a. Direct evidence (1) No inference is required Witness testifies “I saw defendant shoot victim.” b. Circumstantial evidence (1) Inference is required Witness testifies “I didn’t actually see defendant shoot victim, but I heard the immediately turned around, and saw defendant running down the alley.” c. Real evidence (1) gunshot,



Character Evidence (OL IV.B) 1. Civil Cases a. FRE 404(a): Character evidence is inadmissible to prove conduct in conformity therewith (1) Exception Where character is an issue (where character is an essential element of a cause of action, claim or defense) (2) All 3 forms of character may be admitted: 1) Reputation , 2) Opinion and 3) Specific Acts (a) When dealing with methods of proving character under Rule 405(a), the evidence may be made in the form of opinion or reputation. If reputation, the witness must establish: that he is aware of the relevant community (b) If opinion, the witness (proponent) must establish that: that he has sufficient knowledge to form an opinion (c) When character is an essential element of the trait: specific acts of that persons conduct may be offered as well (3) Specific causes of action where character is an issue: (a) Defamation - Plaintiff’s character is in issue (b) Child Custody - Parent’s character is in issue (c) Negligent entrustment - Character of entrustee is in issue (d) Negligent Hiring - Character of employee is in issue (e) Civil Fraud or Misrepresentation - Character of Defendant for honesty is in issue (f) Caveat: when the defendant claims self-defense, the victim’s character is not in issue in the strict sense. Defendant’s reasonable belief has nothing to do with the victim (and defendant’s reasonable belief is the focus) (g) Note: criminal cases it is rare that a criminal defendant’s character is an essential element (except criminal fraud or perjury) EXAMPLE: Plaintiff sues defendant for slander. Plaintiff claims defendant called him a thief. Defendant may offer Reputation, Opinion, Specific Acts of plaintiff’s character for dishonesty. Defendant’s witness: “Plaintiff was fired from a previous job for embezzling money from his employer.” Result: The evidence is admissible not just to impeach - also as substantive evidence to prove that plaintiff was a thief



Criminal Cases a. FRE 404(a)(1), The prosecution may not initially introduce evidence of defendant’s bad character: (1) Testimony about a pertinent trait of the defendant (good character): (2) “Mercy Rule” Defendant may “open the door” in two ways (1) reputation or (2) opinion evidence of his good character to prove his innocence and prosecution may so rebut. EXAMPLE: Murder Defendant’s Witness: “I’ve been defendant’s neighbor for 15 years, and in my opinion, defendant is a good neighbor.” This will not open the door. The trait being offered does not go to prove innocence on a charge of murder. EXAMPLE: Murder Defendant’s Witness: “I’ve been defendant’s neighbor for 15 years, and in my opinion, defendant is a peaceful man.” This will open the door. “Peaceful man” goes to prove innocence on a charage of murder. EXAMPLE: Murder Defendant charged with criminal fraud. Defendant witness testifies “Defendant is a nonviolent person.” This is permissible and opens the door EXAMPLE: Criminal Fraud Defendant witness testifies “Defendant is a non violent person.” Does not open the door because it doesn’t go to prove innocence (3) Once the door to character evidence has been opened (rebuttal), the prosecution may rebut with reputation or opinion. Prosecutor is also limited to opinion or reputation EXAMPLE: Defendant is on trial for murder. Neighbor testifies that “I’ve been his neighbor for 15 years and in my opinion, defendant is a peaceful person.” Prosecution can call a witness who says that “I’ve lived in the neighborhood for 15 years and defendant has a reputation as a violent mother fucker (4) Cross-examination: Procedurally, rather than call an extrinsic witness, the prosecution may intrinsically cross-examine the defendant’s witness who just opened the door. Prosecutor can ask “did you know that defendant committed three robberies in the last year” - This is a proper question because it will challenge the credibility of the defense witness (not as a means of impeaching defendant). IMPORTANT POINT: Specific Acts of defendant may be inquired into on the crossexamination of the defense witness who is testifying as to Defendant’s character b. FRE 404(a)(2): Testimony about a pertinent trait or character of a victim (bad character):


Defendant may offer evidence about the bad character of the victim to show that he acted in self defense (reputation or opinion evidence - NOT specific acts) and the prosecution can then rebut in the same way. (1) EXAMPLE: Defendant offers evidence of victim’s character for violence, the prosecution may rebut with evidence of evidence of victim’s good character for nonviolence (2) Also, by attacking victim’s character for violence, the defendant opens the door to an attack on his own character for that same character trait. Prosecutor could now offer opinion or reputation evidence of defendant’s bad character for violence. NOTE: If all the Defendant says is that he acted in self defense, the prosecution MAY NOT offer evidence of Defendant’s character for violence, ONLY can offer evidence of Victim’s character for non-violence.

(3) EXAMPLE: Defendant on trial for murder. Defendant testifies he acted in self-defense. Prosecution witness called to testify, “Defendant has a reputation as a violent person.” Not proper, Defendant merely said he acted in self defense, that is not enough to open the door. (4) Finally, in a homicide case, if the defendant suggests the victim was the first aggressor: the Defendant may offer reputation or opinion evidence of the victim’s bad character to open the door. -If the defendant offers specific acts (“last month victim pulled a gun on me”), the specific acts WILL BE admissible because they are not character evidence. This evidence goes to show that Defendant was afraid of the victim, not that victim had a specific character trait. - Prosecution can then offer specific acts evidence about defendant (e.g. “Defendant recently threatened victim”) c. FRE 404(b) MIMIC Rule: Evidence of character may be admissible when offered for a purpose other than to show conduct in conformity with one’s character. (1) Circumstantial evidence of other crimes, wrongs or acts is generally inadmissible, but may be offered to prove: (MIAMI KOPPS) (a) Motive (b) Intent (c) Absence of Mistake (d) Identity (e) Knowledge (f) Opportunity (g) Preparation


(h) Plan or Scheme (2) Exam Tips (a) This exception is often simplified and referred to as the MIMIC Rule: Motive, Intent, absence of Mistake, Identity, or Common plan or scheme (b) Independently relevant circumstantial evidence generally offered: (i) In a criminal case (ii) By the prosecution (iii) During Rebuttal (c) Caveat MIMIC evidence is never admissible to show criminal disposition or propensity (d) MIMIC evidence (i.e., other acts) may have occurred: before, during or after the date of the offense EXAMPLES: The theft of a key creates an opportunity to break into someone’s home. If this evidence is offered to show that the accused had the propensity to commit a crime, it would be inadmissible. If it is offered to show that the accused had special access to the apartment because of the key, then it is being offered to prove a specific piece of the crime (opportunity). A witness cannot identify the defendant but does know that the person who broke into his home was wearing a clown outfit and singing God Bless America. Another witness can identify the defendant and also experienced someone breaking into his house wearing a clown outfit and singing God Bless America. This evidence is being offered to show that because of the common plan or scheme, it is highly likely that this defendant is the same one as named previously. 3. Habit: Routine Practice (Rule 406) a. Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity of the habit. b. Habit is: A repeated response to a particular situation. c. Admissible in the form of _Opinion_________ or _Specific Acts ---- NOT Reputation. d. Exam Tip: Look for these kinds of words: Always, Automatically, Regularly, Instinctively, Without Fail, Habitually. But generally not: Usually, often, frequently MBE: Most Recent MBE had question where witness said “Every time I stop by his house, he is usually drunk.” NOT habit evidence - “usually” is not enough.


EXAMPLES: (1) Always stopping at a stop sign at a particular intersection or always turning off the coffee pot before leaving the house. (2) The receptionist for a company may testify that it was routine practice for all mail placed in the outgoing mail basket to be taken to the post office each day between 2 p.m. and 3 p m. (3) Plaintiff always goes down the stairs two at a time. Negative habit evidence: “X doesn’t smoke” - Admissible Evidence f. Issue: May a party testify to his own particular trait? Yes, defendant can say “I always drive within speed limit” g. MBE Example: Driver with 3 passengers has an accident. 1 passenger sues driver for personal injury. Defendant’s witnesses (2 other passengers) allege “Plaintiff wasn’t wearing his seat belt (contributory negligence).” Plaintiff calls neighbor (plaintiff witness) to testify, “Plaintiff invariably wears his seat belt.” Result: “Invariably” is habit evidence and will be admissible in spite of contrary specific testimony and without corroborating evidence 4. Legal Relevancy – FRE 407-411: Evidence that is barred due to public policy, even though relevant. a. Subsequent Remedial Measures (SRM) (Rule 407). (1) Evidence of SRM is inadmissible to prove negligence, culpable conduct, design defect, or the need for a warning. (2) Exceptions: to show ownership or control, to impeach, to show feasibility of precautions e.

(a) Timing: Remedial measures must be subsequent (b) Public policy: To encourage persons to fix dangerous conditions and make products safe EXAMPLES: Toyota recalls cars on June 2nd due to failure of the brakes. An accident occurred on June 1st. This is a subsequent remedial measure and the accident victim cannot use the recall to prove that Toyota was at fault.


Same facts as above, but this time on June 1st there is a recall and on June 2nd the accident occurs. This is not a subsequent remedial measure and the plaintiff can use the recall as evidence that Toyota was at fault. (c) Feasibility of precautions If defendant claims “a different accelerator design was not feasible” to prevent such accidents, evidence that defendant did make subsequent changes to make the design of the accelerator safer is admissible__ to refute defendant’s claim: in negligence and product liability cases to show feasibility of precautions (d) To show ownership or control Plaintiff is hit by a truck, after which the truck company fixes the vehicle so that the accident would be prevented in the future. If the defendant claims it did not own the truck that injured the plaintiff, the plaintiff can introduce evidence that the defendant paid for repairs for the truck to suggest ownership. (e) To impeach Defendant is being sued for a problem with an accelerate sticking. A company witness says it was not the company’s fault because nothing could have been done to make the accelerator safer. If, in fact, the defendant did make some changes, the plaintiff may use evidence of the changes for impeachment purposes. b. Compromise and Offer to Compromise (Rule 408) (1) Evidence of an offer to settle a claim, which is disputed either as to validity or amount, is inadmissible to prove liability. (a) Public policy: to encourage out of court settlement (b) Evidence of an offer to compromise may not be used to impeach with a prior inconsistent statement. (2) Key points: (a) Offer is admissible as an admission if both fault and damages are admitted (b) Variation: Baby goat bites little girl on the hand at a petting zoo. Immediately the owner comes forward and says, “I’m terribly sorry. I’ll pay you $100.” (c) Judge determines whether compromise negotiations exist (3) Exceptions: (a) Offers to settle can be admitted to show bias or prejudice, to negate a contention of undue delay, or to show efforts to obstruct a criminal investigation. (4) Main MBE area: SEVERANCE - of Admission from settlement offer EXAMPLE: X & Y have a car accident. Assume the facts state there’s a dispute as to fault between the 2 parties. X says to Y, “I may have been driving a little too fast (admission), but you went through the red light. Anyway, I’m willing to settle this matter with you.”


Result: We have an admission and an offer to settle. We cannot sever admission from the settlement offer; therefore, admission is not admissible. c.


Payment of Medical and Similar Expenses (Rule 409) (1) Evidence of offering to pay medical bills is inadmissible to prove liability for an injury. EXAMPLE: “Redaction Rule” same hypothetical as above with a slight change. This time defendant says, “I may have been driving a little too fast (admission), but you went through the red light. Anyway, I’m willing to pay your medical bills Result: Admission can be severed from offer to pay medical bills

d. Inadmissibility of Pleas, Plea Discussions, and Related Statements (Rule 410) (1) General Rule A plea and any statements made during plea negotiations by a defendant in either a civil or criminal proceeding will be inadmissible against the defendant in a later proceeding (2) This rule applies to: (a) Pleas of guilty later withdrawn (b) pleas of nolo contendere (no contest) (c) Offers to plead guilty - Statements made during plea negotiations (3) It does not apply to: (a) Statements made to the police - Only those made to the Prosecutor EXAMPLE: A felon asks a police officer what kind of deal he can get. This is not a plea negotiation because it is not made to a prosecuting attorney. (b) Variation: If the defendant pleads guilty, the guilty plea may be admitted substantively as an admission in any subsequent civil or criminal case e. Liability Insurance (Rule 411) (1) General Rule Evidence that a person was or was not insured is inadmissible to prove negligence or Fault EXAMPLE: Following an accident, defendant says, “It was my fault (admission), but don’t worry, I have plenty of insurance.” Result: Statement of insurance is inadmissible; however, SEVERANCE of admission from statement regarding insurance is possible and admission may be admitted into evidence.


(2) Exceptions: Evidence of insurance against liability may be admitted for another purpose, such as: Proof of agency, ownership or control, bias or prejudice of a witness EXAMPLE: Defendant denies his car was involved in an accident. Defendant has insurance on the car. Evidence of insurance is admissible to show ownership of the vehicle, but not that defendant was negligent EXAMPLE: If a claims adjuster testifies at trial, evidence that he is employed by defendant’s insurance company is admissible to show bias (3) Note: (a) The limits of insurance coverage are NEVER admissible (b) Pretrial discovery of insurance coverage is usually allowed 5. Sexual Conduct a. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412) (1) Rape Shield law: In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history IS excluded. Reputation and Opinion evidence of alleged victim’s character or sexual predisposition is inadmissible (a) Evidence will not be admissible unless: (i) Notice is given to opposing party (ii) Unless evidence is reviewed in chambers by Judge (iii) Unless evidence alleges sexual misconduct (b) Sexual behavior includes: Actual sexual physical conduct as well as use of contraceptives, sexual fantasies, and any activities that include sexual activity. (i) Predisposition includes: how a person dresses, lifestyle choices, and speech - it is Inadmissible (2) Exceptions: (a) In a criminal case, specific acts are admissible in 2 cases: (i) Past acts with the defendant which tend to show consent (ii) Past acts with other men to show defendant was not the source of semen (iii) Also, evidence is permitted if exclusion would violate any constitutional right of the defendant. (b) A balancing test is used in civil cases, where evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible (absent other


reasons for inadmissibility) if the probative value substantially outweighs the harm to the victim or the danger of unfair prejudice to any party. (3) This rule doesn’t protect just the alleged victim in a particular case. It can be any witness who is an alleged victim of sexual misconduct. 6. Rule 413-415 (Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases) a. In a criminal case in which the defendant is accused of child molestation or sexual assault: Specific Acts by the defendant are admissible and may be considered as they bear on any relevant matter including propensity or disposition to commit sexual crimes. b. In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of sexual assault or child molestation: Same rule as above, specific acts may be admitted. c. Note that these prior acts used in criminal cases: Need not have been tried - prior conviction/arrest need not be proved. They can simply be allegations that meet the PotE standard. The specific acts need not be prior to these allegations d. 2 Limitations under all 3 Rules: (1) Specific acts are admissible subject to the discretion of the judge (2) Advanced notice must be given to the defendant EXAMPLE: Defendant is on trial for child molestation. Prosecution offers the testimony of 3 young boys that within the 2 previous years they were sexually molested (specific acts) by the defendant. Result: Specific acts will be admitted.


V. PRIVILEGES A. Privilege Generally (Rule 501) (OL V.A) Only common law privileges are recognized as interpreted by the federal courts. The federal rules of evidence do not contain a list of recognized privileges because of disagreements in congress. 1. Absent contrary provision by the Constitution, Congress, or the US Supreme Court, the law of privilege is governed by the principles of the Common Law, subject to the superseding state law. Here’s how it works under the FRE: a. Application 1: In civil cases, the privilege of a witness is determined by state law. Issues that arise are PCP - Privilege, Competency, and Presumptions. Application 2: In federal question cases and criminal cases, the privilege of a witness is determined by common law.

EXAMPLE: In a diversity action, the issue is whether the doctor-patient privilege should be recognized. Although doctor-patient privilege is not recognized at common law, the federal court will apply state substantive law under Erie and if the particular state has a doctor-patient privilege, the federal court will apply it. 2. Privilege Under Common Law (OL V.B) a. Except as otherwise provided by the constitution or statute or by these or other rules promulgated by the State, no person has a privilege to: (1) Refuse to be a witness. (2) Refuse to disclose any matter. (3) Refuse to produce any object or writing. b. There are 4 Confidential Communication privileges recognized in federal courts and in all 50 states: (1) Attorney/Client (2) Psychotherapist/Patient (3) Priest/Penitent (4) Husband/Wife c. 6 Key Privilege Issues: (1) Protected Relationship - Did it exist? (2) Communication - Was there a communication? (3) Confidentiality - Was the communication confidential? (4) Holder - Who was the holder of the privilege?


(5) Waiver - Was the privilege or a part thereof waived? (6) Exceptions - Is this a situation where there is no privilege? d. Lawyer-Client Privilege (1) The client is the holder of the privilege and may refuse to disclose confidential communications made for the purpose of obtaining professional legal advice or services. Client can prevent other persons from disclosing that information as well. (2) Confidential Communications: (a) Communications are protected. Observations are not protected. Communications include oral/written statements and conduct that is intended to be confidential. EXAMPLE: client arrives at attorney’s office in blood-soaked clothing (not privileged) and confesses to killing victim (confession is privileged). (b) Preexisting document are not protected by the privilege (c) Work product is privileged (material prepared by attorney in anticipation of litigation (3) Third parties (a) Essential third parties are included in attorney/client privilege. These are persons who are “furthering some purpose” of the relationship. (b) Attorney representatives is a person hired by the attorney to assist in the rendition of legal services (accountant, investigator, translator, doctor, jury consultant, secretary, stenographer). Privilege Attaches. (c) Eavesdroppers unknown eavesdroppers do not destroy confidentiality or the privilege. Known or anticipated eavesdroppers do destroy the privilege. (4) Client includes: Any person who is seeking professional legal services or consulting with the possibility of obtaining such legal services. Can be public officer or corporation. (5) Lawyer includes: Any person authorized or reasonably believed by client to be authorized to engage in the practice of law in any state or nation. (6) Holder: The privilege may be claimed by the holder and the client is the holder. The lawyer can assert the privilege on the client’s behalf. (a) MBE note: Confidential communications survive the client’s death and they may be asserted by executor or attorney (7) Waiver (Rule 502) (a) Failure to assert a privilege in a timely manner usually results in a waiver.


(b) Waiver of a privilege generally operates as a partial waiver. The privilege is waived only to the extent to permit reasonable scrutiny by the opposing party. (c) A “blanket” or total waiver results only if: (i) The waiver was intentional AND (ii) Both disclosed and undisclosed information concerns the same subject matter (d) Inadvertent Waiver (i) Court will find it was not a waiver if: a) The client did not intend to waive the privilege b) The client took reasonable steps to protect the information. c) The client took timely steps to remedy the waiver (8) Exceptions: Situation where there is no privilege: (a) Future Crime or fraud (statement regarding such to attorney) (b) Suits between attorney and client (c) Joint Client Exception: Two clients hire the same attorney and are involved in litigation between each other. Result is that earlier communications are not privileged unless they agree otherwise. (d) Caveats: (i) Client identity generally is not privileged unless: disclosure will disclose additional or other privileged matters (ii) Fee arrangements are not privileged. Billing records: are not privileged (iii) The duration of the privilege is: Starts from initial contact through the client’s death. HYPOTHETICAL Before a hearing in his divorce from Martha Elm, Donnie Tramp meets with his attorney, who has been hired by him by, and is being paid by, Donnie’s rich girlfriend, Ivana Spendanova. At the meeting, Donnie brings copies of the deed to the couple’s homes, and Donnie and his attorney together draw up a list of all of Donnie’s assets which Martha might ask for in the divorce. At the hearing, Martha’s attorney requests that Donnie’s attorney produce the deed, the list of assets, and reveal who has paid Donnie’s legal fees. Which (if any) of these pieces of evidence will be protected under attorneyclient privilege? Deed - Is a pre-existing document and is not privileged. List of Assets - Was prepared by attorney and is protected “work product” Name of person paying legal fees - Name of person is not protected e. Physician and Psychotherapist-Patient Privilege (1) Doctor-patient privilege: A Statutory Privilege - Not common law (a) The federal rules never recognized a physician-patient privilege. Where such a privilege exists, it must be created by a state law. (2) However, there is a federal psychotherapist-patient privilege that can be asserted through common law.


(a) Very broad: Extends to: Licensed Social Workers, Psychologists, Mental Health Specialists, Psychiatrists, Marriage counselors. DOES NOT apply to educational or vocational counselors (b) The privilege applies to protect: Confidential communications between a licensed psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition (mental or emotional condition) EXAMPLES: X-Ray, Lab Report, but NOT an autopsy report (c) Exceptions: (i) Statements made regarding commitment proceedings (ii) Statements dealing with court-ordered examinations (iii) When medical condition is part of the claim (iv) Future crime or fraud f. Husband-Wife Privileges (1) Spousal Privilege (Testimonial) (a) Protects all communications regardless of confidentiality both during and before marriage. Includes testimony, observations, and impressions. (b) The privilege is held by: Common Law - The Party Spouse FRE - The Witness Spouse (APPLY THIS) (c) Key characteristics of Spousal Privilege: (i) This is much broader than the marital communications privilege. (ii) Under this rule, a testifying spouse may refuse to testify against her spouse. (iii) It only applies in the following circumstances: a) Criminal Cases b) During and Before Marriage but LOST upon Divorce (d) Exceptions: (i) Suits between the spouses. (ii) Suits involving a child of either spouse (e.g. abuse of step-child) (2) Marital Communications Privilege (MCP) (a) The privilege can be asserted by (i) either spouse - both parties are holders (b) The privilege applies in: both civil and criminal cases (c) It only protects particular kinds of communications: (i) Confidential communications - communications intended by the parties to be confidential. Applies only during marriage. Observations are not protected. Divorce has no effect on confidential communications, they remain protected.


(ii) Communications in presence of friends, relatives, or older children will not be privileged (d) Exceptions: (i) Crimes committed by one spouse against the other or against the children. (ii) Divorce proceedings or any suits between the spouses. (iii) Joint Participant Exception: If the spouses jointly participated in criminal activity, the witness spouse cannot claim the privilege. g. Religious Privilege (1) Privilege protects confidential communications made from penitent to clergyman in his capacity as spiritual advisor. Note: (a) Both parties are holders and both can assert the privilege. (b) There are no generally recognized exceptions. (2) The statement needs to have been made under conditions of confidentiality. h. Political Vote (1) Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws. i. Trade Secrets (1) A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice. j. Secrets of State and Other Official Information (1) A secret of state is a government secret relating to national security or international relations. (2) The privilege applies to intergovernmental opinions and policy decisions, investigatory files, and other government materials. k. Identity of Informer (1) Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement. (2) Only the government can assert this privilege, not the informant . (3) MBE note: A newsperson has no first amendment privilege to refuse to disclose the identity of his sources. If had to argue against - Say it produces a chilling effect on freedom of the press because informants are less likely to disclose. NOTE: States generally give informants greater protection through shield laws that allow newspersons to refuse to identify his sources. l. Executive Privilege (1) A court-created privilege for the president to refuse to disclose matters of national security. (2) Absolute privilege (3) Only exception: a showing of special need that requires disclosure


m. Fifth Amendment Privilege Against Self-Incrimination (1) Constitutional privilege (a) This privilege applies only to: evidence that is testimonial in nature - Not Tangible Evidence. (b) Presentation of real and demonstrative forms of evidence are not protected. (i) Examples where 5th Amendment privilege does NOT apply: To attack admissibility of blood, hair, handwriting samples, fingerprints, lineups, photo IDs, showing scars/tattoos, trying on clothing, (2) The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the stand. (a) Prosecutorial comment: Prosecutor may not comment on this refusal. (b) Witnesses or parties in civil cases: Can assert 5th amendment privilege but must do it on the stand. (c) Testimony given at a preliminary hearing does not waive the privilege of the accused not to take the stand at trial. Defendant can move to suppress evidence at preliminary hearing. Prosecutor cannot comment on this motion at trial. (d) The Fifth Amendment does not apply when: the witness waives the privilege (i) When a witness waives: cross examination is limited to the subject matter about which the privilege was waived.

(e) Immunity
(i) Use immunity a) Waives the 5th amendment privilege. Cannot assert 5th amendment privilege where immunity has been granted. The Gov’t cannot use the actual testimony of the witness and any evidence derived therefrom against that witness. (ii) Transactional Immunity a) Prevents a witness from being prosecuted for any crime referred to in that transaction/testimony (iii) The witness may still be prosecuted for perjury. n. Waiver of Privilege (1) Waiver can occur expressly whenever the holder voluntarily discloses the privileged information. (2) Waiver can occur impliedly by failure to timely object to revealed privileged information

o.Commenting on the Privilege
(1) Criminal case: Commenting on the assertion of the 5th amendment privilege is not allowed by the prosecution. No adverse inference may be drawn from a parties failure to take the stand.


(2) Civil case: Opposing party can comment and thus create a negative inference. EXAMPLE: In a custody case, if an attorney asked a parent whether she sold heroin, the parent could assert the Fifth Amendment privilege. However, the opposing party could then draw attention to the fact that the privilege had been asserted with regard to the question of heroin selling.


VI. WITNESSES A. Witnesses Generally (OL VI.A) 1. General Rule of Competency (Rule 601) a. Every person is competent to be a witness. b. Special Witness Examples: (1) A child witness (2) An insane witness (3) An attorney (4) An alcoholic or drug addict (5) all of these can testify but not the Judge c. A court may excuse a witness if the probative value of the witness’ testimony is outweighed by unfair prejudice. d. Dead Man’s Statutes There is no federal dead man statute. A dead man’s statute disables or disqualifies any witness from testifying about a transaction involving the decedent. Rationale: Dead man can’t respond. (1) MBE caveat: In federal court where state has a dead man statute, the court would apply the dead man’s statute. Lack of Personal Knowledge (Rule 602) a. A witness can only testify to matters about which he has personal knowledge. (1) Lay witness Must have personal knowledge (2) Expert witness Personal knowledge is not required


Oath or Affirmation (Rule 603) a. Witness must declare to testify truthfully by oath or affirmation in a form calculated to awaken his conscience. EXAMPLE: If a witness refuses to take an oath for religious reason, the judge shall not allow witness’ testimony. 4. Interpreters (Rule 604) a. Interpreter is qualified the same way as an expert witness and must take an oath or affirmation. EXAMPLE: Plaintiff sues Defendant for personal injuries. A foreign visitor is the only eyewitness to the hit and run accident. This is unknown to plaintiff who has testified “defendant ran the red light.” May the witness, who speaks no English, be called to testify? Yes, through the use of an interpreter 5. Competency of Judge as Witness (Rule 605) a. Presiding judge may not testify in that trial as a witness. b. Objections: (1) Are Automatic.



Example: Judge overhears defendant say to his lawyer during a recess out in the hallway, “So what if I killed him? Big deal.” May the prosecutor call the judge to testify? No. Variation: If a witness overheard the statement? Prosecutor can call the witness back. Note - Hallway is public area so no attorney/client privilege. 6. Competency of Juror as Witness [Rule 606(a)] a. A juror may not testify as a witness before the jury of which he is a member. b. Objections to a juror’s testimony shall be heard once again outside the presence of the jury. c. Inquiry into the validity of a verdict or indictment [Rule 606(b)] (1) A juror may not testify as to the manner in which the jury reached its decision. Affidavits by jurors are also excluded. (2) This Rule includes: (a) Any statements made during deliberations (b) Thought processes by which jurors reached their decisions (c) Votes taken to reach the verdict d. Examples where a juror’s testimony will be excluded: (1) Juror misunderstood the evidence or instructions (2) Jury reached its verdict improperly (e.g. drawing lots) (3) Jurors drank alcohol and smoked marijuana during deliberation (4) One juror physically bullied another juror during his vote (5) One juror fell asleep during deliberations e. A juror may, however, testify as to: (1) Extraneous prejudicial information improperly brought to the jurors attention (2) Whether any outside influence was improperly brought to bear on any juror. (3) Any clerical or secretarial error (a mistake in the verdict form) f. Examples where a juror’s affidavit will be admitted: (1) A juror may be questioned regarding whether or not someone brought in a newspaper article about the case. (2) A juror made an unauthorized visit to the scene (3) A juror accepted a bribe (4) A juror conducted his own out of court experiments regarding evidence at trial (5) Threats of harm made against the juror’s family members (6) Communication by the juror with court personnel (7) A juror brought a bible into the courtroom and read passages to other jurors suggesting defendant’s guilt. B. Impeachment (OL VI.B) 1. Who May Impeach (Rule 607)



The credibility of a witness may be attacked by any party, including the party calling him. e.g., where the witness’ testimony surprises and damages the examining party.


Collateral Matter Rule a. Extrinsic evidence on collateral matters is inadmissible to impeach. Generally applies to “bad act” impeachment and to “prior inconsistent statements” (1) Extrinsic v. Intrinsic: Intrinsic means questioning from the mouth of the witness on the stand. All other impeachment is extrinsic (most common is calling in someone else to discredit the testifying witness). (2) Example: Witness states, “I was driving home from a movie when I saw the accident.” On cross-exam witness is asked, “Isn’t it true you were really coming home from a strip club? Improper question - will be excluded as collateral 3. Methods of Impeachment a. Bias or prejudice – no specific federal rule. Always material and never collateral collateral matter rule will not apply. It will be admissible. (1) Examples: (a) Personal or family hostility or relationship (b) Business relationship (c) Financial interest (d) Fee arrangements (fee to expert or informant) b. Sensory defects: Inability to observe, to communicate, to remember. Evidence is always relevant and never collateral. Generally, it is not allowed as to: whether witness is addicted to drugs (unless immediately connected to credibility) c. Prior Inconsistent Statements FRE 613 d. Character – 4 categories under Rule 608 & 609 (1) Reputation or opinion – Rule 608(a) (2) Bad acts – Rule 608(b) (3) Felony convictions – Rule 609(a)(1) (4) Convictions of crimes involving dishonesty or false statement – Rule 609(a)(2) 4. Evidence of Character and Conduct of Witness (Rule 608) a. Rule 608(a): A witness’ character for untruthfulness is always material and may be attacked by using Reputation or Opinion evidence. (1) Either party may call a witness in both civil and criminal cases. (2) Example: Plaintiff testifies on direct. Defendant then calls an extrinsic witness to testify, “Plaintiff has a bad reputation in the community for truthfulness.” (3) Note: A witness’ character for truthfulness can be shown by reputation or opinion evidence only if the witness’ credibility for truthfulness has first been attacked.


b. Rule 608(b) – Bad Act Impeachment: Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness’ credibility. (1) 3 elements: (a) Question (b) On cross examination (c) Inquires into prior unconvicted acts that bear on truthfulness or untruthfullness (2) Form of Question: (a) Opinion witness: Did you know? (b) Reputation witness: Have you heard? (3) Examples of proper types of bad acts: Filing a false tax return. Putting incorrect information on an employment application. Forgery. Using a false name. Falsifying a resume or academic record. Lying about age, marital status, or employment. Cheating at cards. (4) Examples of improper types of bad acts: Use of drugs or alcohol. Failure to pay debts. Gambling or prostitution. Sexual misconduct. (5) Limitations: (a) Questions must be probative of truthfullness (b) Questions must be asked in good faith (c) Bad acts cannot be too remote in time (d) Only questions of fact are allowed - not rumors or arrests (e) Judge has discretion to exclude (6) If the witness lies about the specific instance: Extrinsic evidence is inadmissible to prove the prior dishonest act. 5. Impeachment by Evidence of Conviction of Crime (Rule 609) Applies in both civil and criminal cases. Applies to all witnesses. a. 2 categories: (1) Felony convictions and (2)_Crimes that involve dishonesty or false statement (1) Felonies – FRE 609(a)(1) (a) Felonies are crimes punishable by death or imprisonment in excess of one year. (b) For impeachment of a witness other than the accused. (i) A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice) -- Favors Admission (ii) Discretionary EXAMPLE:


A witness is on the stand testifying who had been convicted of felony child molestation in the past. The prejudicial effect of impeaching with this type of prior felony might be unfair. (c) If a conviction is used to impeach the defendant, the conviction will be admitted if the prosecution shows the probative value outweighs the prejudicial effect. (more difficult to satisfy than test for witness) (2) Crimes involving Dishonesty – FRE 609(a)(2) (a) Crimes involving dishonesty or false statement include both felonies and misdemeanors. (b) This type of conviction is admissible as a matter of right (no discretion) as long as it is less than or equal to 10 years old EXAMPLES (Admissible) Perjury. Counterfeiting. Forgery. Larceny by trick. Tax Evasion. False Pretenses. Criminal Fraud. Embezzlement. Any other crimes that involve Deceit, Untruthfulness, or Falsification EXAMPLES (Inadmissible) Assault. Battery. Prostitution. Gambling. DUI. Possession of Drugs Criminal Trespass Related MBE Issue: Burglary conviction: Does not involve dishonesty. Is a crime against property. Use to impeach would be discretionary. b. FRE 609(b) 10-Year Rule Convictions more than 10 years old are inadmissible to impeach UNLESS he probative value substantially outweighs the prejudicial effect. Notice to the opponent is required. (look for “inadmissible unless”) c. Time limit: How the 10 years is measured: Impeachment with a conviction that is not more than 10 years old is based on either: (1) the date of conviction; OR (2) the date of release from confinement **Use whichever is most recent EXAMPLE: A grand theft case is being prosecuted in 2010. The defendant was previously convicted of a crime that occurred in 1999, so the conviction is over 10 years old. If the defendant was convicted in 1999 and only served three years in prison, the defendant would have been released in 2002. That release date would be the date from which the crime is measured. Therefore, the conviction is only eight years old as of 2010, and thus would not be timebarred. The rule is favoring the party favoring the conviction.


d. Juvenile Adjudications (1) Generally inadmissible to impeach (a) Inadmissible against the accused. (b) For all other witnesses, they are discretionary. e. When a judge chooses to use a conviction that otherwise would be precluded by the rule, there must be: (1) A finding that use of the conviction is necessary for the interest of justice. (2) Notice must be given to the opposing party. f. A conviction under appeal is admissible, but evidence that the conviction is under appeal is also admissible. g. If a defendant has been pardoned from a conviction, it is no longer admissible to impeach. h. Arrest records, indictments, and other charges: all inadmissible to impeach i. Guilty pleas and no contest pleas: are both admissible to impeach j. Defendant can hide prior convictions by not testifying, but such convictions may be admissible at sentencing k. Can you ask a character witness if his opinion would change if he knew defendant was guilty? No. Improper as a form of impeachment 6. Religious Beliefs or Opinions (Rule 610) a. General Rule: Evidence of a witness’ religious beliefs are inadmissible to impair or increase their credibility. C. Examination of Witnesses (OL VI.C) 1. Mode and Order of Interrogation and Prosecution (Rule 611) [611(a)] a. Judge shall control the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses. b. The court also determines: (1) what type of technology may be used. (2) whether jurors can ask questions. c. Leading Questions – Rule 611(c) (1) Direct examination: Leading questions are generally not allowed (2) Compare: scope of cross-examination [Rule 611(b)] limited to the scope of direct and matters affecting credibility (impeachment) (3) 5 circumstances in which leading questions may be appropriate on direct examination include: (a) Where there is a hostile or adverse witness (b) Child witness (c) To gain preliminary background information (where do you live, etc) (d) To refresh recollection


(e) On cross examination (4) MBE caveat Where the examiner and the witness are on the same side, leading questions are not allowed. Example: Plaintiff calls defendant to testify as an adverse witness. Leading questions will be allowed on direct. But then leading questions are not allowed on cross examination where the defense attorney is questioning is own client. The judge would probably say that the defense attorney is biased. 2. Writing Used to Refresh Memory (Rule 612) a. On direct, the examiner may jog the witness’ memory (i.e., the “forgetful witness”). b. Key points: (1) The proponent may not introduce the writing into evidence (2) Neither the hearsay rule nor the best evidence rule applies to refreshing. (3) Authentication of that writing is not required. (4) Any writing, photograph, further questioning, or other form of evidence will suffice. c. Rights of adverse party (opposing counsel): (1) Inspect the document (2) Cross examine with the document (3) Show the writing to the jury for comparison (4) Opposing counsel may introduce relevant portions into evidence to impeach d. Steps of refreshing (procedurally): (1) Give a copy of the writing to the judge and to opposing counsel (2) mark it as an exhibit (3) hand it to the witness and tell him to silently read it (4) take back the writing (5) ask him to testify independently of the writing (in his own words) e. Where privileged material is used to refresh: Court will rule that a waiver has occurred and will allow the adverse party to inspect the document. f. Caveat: Do not confuse with past recollection recorded. 3. Prior Statement of Witness (Rule 613) a. Under this rule, a prior inconsistent statement (PINS) is not “sworn” and is admissible only to impeach. b. PINS may be oral or written. Its contents need not be shown to the witness at the time, but on request, the contents must be shown to opposing counsel. c. Foundation requirement: Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided the witness is afforded an opportunity to explain or deny the evidence. Need not be before introduction or immediately after - must be done at some point


during the trial. Opposing counsel must be afforded an opportunity to interrogate the witness UNLESS the interests of justice require otherwise. (1) If the witness denies making the PINS, extrinsic evidence is generally admitted (2) If the witness admits making the PINS, extrinsic evidence is inadmissible but the witness must be given an opportunity to explain his answer. (3) If the PINS relates to a collateral matter, extrinsic evidence is inadmissible under the collateral evidence rule - so you will be bound by witnesses answer. d. If the prior statement was not given under oath, it may only be used for impeachment. (1) However, a prior inconsistent statement can be offered substantively in 3 cases: (a) If a party makes the inconsistent statement (comes in as admission) (b) If it is sworn come in substantively and to impeach (c) If the prior inconsistent statement is contained in a hearsay exception e. Note: A party cannot call a witness solely to impeach that witness with a prior inconsistent statement. 4. Calling and Interrogation of Witness by Court (Rule 614) a. Court (judge) on its own motion may call witnesses and all parties may examine any witnesses called by the court. b. Court itself may also interrogate any witness called by a party. 5. Exclusion of Witnesses (Rule 615) a. At the request of a party, the court shall order witnesses excluded so that they cannot hear testimony of other witnesses Purpose: Prevent fabrication or collusion. b. This rule does not authorize exclusion of: (1) A party or a parties representatives (2) Any person whose presence is deemed essential (e.g. an expert, or attorney) (3) Any persons exempted by statute (e.g. victims of crime) c. It is error if the court fails to exclude. d. Remedy: Mistrial or hold the witness in contempt. Complaining party must show more than harmless error.


VII. OPINIONS AND EXPERT TESTIMONY A. Acceptable Testimony (OL VII.A) 1. Opinion Testimony by Lay Witnesses (Rule 701) a. If the witness is not testifying as an expert, any testimony he gives that is an opinion or an inference must be: (1) Rationally based on the perception of the witness

(a) The testimony must be based on personal knowledge.
(2) The opinion has to be helpful to a clear understanding of the witnesses testimony or a key issue of fact (it must be relevant) b. The proper scope of non-expert opinion includes: VEMPSS (1) V - Value (2) E - Emotional state of others (3) M - Measurements (speed of a vehicle, height, distance) (4) P - Physical states (intoxicated, healthy, short, happy) (5) S - Sensory Descriptions (smell, sound, taste, color) (6) S - Sanity of a testator Improper scope: Opinions stated in conclusory terms are not appropriate. EXAMPLE: Plaintiff was contributorily negligent, a Contract existed, Defendant assaulted victim (1) Legal conclusions must be avoided.Can’t say that someone was an addict, an alcoholic, a schizophrenic, etc 2. Testimony by Experts (Rule 702) a. The requirements for testimony by experts are: SKEET (1) S - Special skills K - Knowledge E - Education E - Experience T - Training (a) Note: The judge determines qualifications by POTE (Rule 104). The opponent may voire dire the expert witness (outside the presence of the jury) (2) Expert Opinion’s Subject Matter must be appropriate and opinion must be helpful or relevant to assist jury c.

(a) Note: Experts may not speculate (b) “Appropriate” subject matter includes: Scientific, Technical, or other specialized


(3) The opinion must be reliable b. The opinion must be based on reliable methods, devices, or techniques to determine reliability of scientific tests, 4 methods: (1) Other expert testimony that establishes reliability (e.g. lays a foundation as to viability of battered wife syndrome) (2) Stipulation of the parties that they will allow a polygraph, etc (3) Judicial Notice - Court takes note of scientific methods (4) General Acceptance in the community c. Reliability of Scientific Tests – The trial court acts as a “gatekeeper”. The MBE follows Daubert v. Merrill Dow (1993). Mnemonic TAPE Daubert factors include: (1) T - Testing (2) A - Acceptance (general acceptance in relevant community) (3) P - Peer Review of that device or method in scientific community (4) E - Error (degree or rate of error)

d. Frye test – requires general acceptance in the scientific community (i.e. global warming; second hand smoke causes cancer). (1) Otherwise inadmissible; followed by 12 states (CA, NY, FL, IL, PA, NJ, MI, MD). B. Basis of Opinion Testimony by Experts (Rule 703) (OL VII.B) 1. There are three bases for opinion testimony: a. Personal Knowledge at or before the trial b. Facts presented to the expert at the trial (hypothetical questions at trial) c. Facts presented to the expert outside of court (1) “Reasonable Reliance rule” these out-of-court facts must be of the type reasonably relied upon by other experts in the particular field and include: (a) Assumed Facts (b) Facts not in evidence (c) Inadmissible hearsay EXAMPLE: An arson expert might rely on conversations with other people, including firefighters, as the basis for his testimony. This would typically be hearsay. 2. Rule 703 Balancing Test a. Underlying data that is otherwise inadmissible at trial cannot be revealed unless (1) the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect (a) A limiting instruction may be required (FRE 105).


(2)The 703 balancing test is used anytime the expert’s opinion is based on inadmissible hearsay - Burden is on the proponent. FAVORS EXCLUSION (3) burden is on proponent C. Opinion on Ultimate Issue (Rule 704) (OL VII.C) 1. Generally an expert may express an opinion or give an inference that touches on an ultimate issue Examples (permissible): 1)Expert can testify as to the cause of an accident, illness, death, etc. 2) Expert can testify as to wehther a product is unreasonably dangerous 3) Whether a document is forged or legitimate 4) Whether defendant was insane or mentally ill 5) Standard of care in malpractice action 6) DNA evidence in a paternity action Examples (impermissible): 1) Expert cannot testify that plaintiff was contributorily negligent or that defendant intended to sell heroin 2) legal conclusions regarding content of law are impermissible 2. Limitation in criminal cases [Rule 704(b)] Expert may not give an opinion as to whether defendant did or did not possess the mental state which constitutes an element of the crime charged. EXAMPLE (Improper expert opinion): Defendant is charged with possession of narcotics with intent to distribute. An expert witness may not give an opinion on the ultimate issue that defendant “intended to distribute” narcotics. Compare: EXAMPLES (proper expert opinion):___Civil Context ______________ (1) Testator was of sound mind and knew the natural objects of her bounty (2) Mental state of third parties



Disclosure of Facts or Data Underlying Expert Opinion (Rule 705) (OL VII.D) 1. An expert may testify and give reasons without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may, however, be required to disclose these facts on cross-examination. This rule serves to avoid using an expert as a conduit for inadmissible evidence and helps to limit the use of hypothetical questions.



Court-Appointed Experts (Rule 706) (OL VII.E) 1. 2. The court may, on its own, or at the request of either party, appoint expert witnesses. An appointed expert witness must advise the parties of his findings and must allow either party to depose him__. An appointed expert may be called to testify__ and _be cross examined_ by either party.


VIII. HEARSAY A. Definitions (Rule 801) (OL VIII.A) 1. Hearsay is: an out of court statement other than one made by declarant while testifying at trial offered to prove the truth a. Caveat: I testify at trial, “I told the police officer at the scene, defendant drove through the red light.” Hearsay. Beware of situation where testifying party recites their OWN prior out of court statement.


A statement [Rule 801(a)] is either: a. an oral or written assertion OR b. conduct intended as an assertion EXAMPLE: There is a bank robbery. A man runs from the bank into a bar and sits down onto a bar stool. Police ask the bartender if he has seen anyone in a blue windbreaker. Bartender points at the man on the bar stool and the man jumps up and runs away. Bartender intends to communicate that the man he pointed to is the bank robber (statement), but the jumping up and running away is not intended to indicate guilt (no statement). c. Assertive conduct is hearsay. conduct intended to communicate as a substitute for words EXAMPLES: (1) Pointing a finger to give directions (2) Shaking head yes or no (3) Smiling or winking (4) Sketch made by police artist d. Non-assertive conduct is non-hearsay. conduct not intended to communicate EXAMPLES: (1) video tape showing defendants demeanor (2) defendant walking with a limp or gait (3) Defendant fleeing the scene (4) Defendant hiding drugs e. A statement must be a human statement, not one made by an animal or machine. EXAMPLES: (1) alarm clock (2) church bell chiming (3) Radar measuring speed of a car (4) print out of windspeed (but not if processing human input) (5) time or temperature display


(6) talking parrot or barking dog

EXAMPLE: Boyfriend is shot to death and his girlfriend goes to his house the next day to retrieve her belongings. She is apprehensive and sees a neighbor in the street and asks a neighbor to accompany her in the house. The boyfriend’s parrot, upon seeing the neighbor, squawks “he did it.” Can the girlfriend testify to what the parrot said? No – inadmissible as irrelevant because animals do not make statements. EXAMPLE: Same facts as above except the dead boyfriend has a pet dog. The boyfriend’s dog, upon seeing the neighbor, and runs into the corner and cowers in fear. Can the girlfriend testify to the dog’s behavior? Yes – admissible as circumstantial evidence of defendant’s guilt. f. B. A declarant is the person who makes the out of court statement

Analysis of Hearsay Issues: Hearsay Approach 1. 2. 3. Isolate the statement. Determine who is the declarant. Determine the purpose for which the evidence is being offered. a. For its truth = hearsay (go to step 4) b. Not for its truth = not hearsay (1) To impeach (2) Rule 801(d) (3) Verbal acts (4) State of mind Apply the hearsay exceptions: EXAMPLE: The fact the party is trying to prove is whether or not a ship is seaworthy. If a captain says that it is the best ship and it is seaworthy, and someone reports that statement, it is hearsay because we have to believe the captain in order to find the information to be true. If the captain takes his family, gets on the ship and sails away, we can imply from the conduct that it is seaworthy. This is not hearsay because he is not intending to assert anything with his conduct.




Evidence Offered for Non-Hearsay Purposes 1. State of mind circumstantial evidence offered to show: (1) knowledge; (2) intent; (3) attitude; or (4) belief of either declarant or the listener. a. Fallback position where hearsay exceptions fail EXAMPLE: Plaintiff slips on the steps of a business, because the steps were icy. Plaintiff then sues the business. A witness overheard someone mentioning to the business owner that he should take care of the slippery steps. Declarant’s statements would be admissible to show that the owner had notice of the dangerous condition. 2. Verbal Acts: The words themselves can give rise to a cause of action. Words that have independent legal significance EXAMPLES: a. Transactional words - words of a contract = offer, acceptance, etc b. Tortious words - the actual defamatory words themselves c. Other examples: - social greetings; signs (“keep of the grass”); license plate; policeman’s badge; luggage tags; Statements which are not hearsay. Rule 801(d) a. “CA PPP Rule” (1) C - Co-conspirator’s statements (2) A - Admissions (3) P - Prior sworn inconsistent statements (4) P - Prior consistent statements (5) P - Prior identifications b. Co-conspirator’s statements: (1) Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists. (2) Requirements: (a) Existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence. (b) Whether the declarant was a member of the conspiracy (c) Whether the statement was made in furtherance of the conspiracy (d) Whether the statement was made during the existence of the conspiracy c. Admissions (1) There are 4 other types of admissions. (a) Direct admission (b) Adoptive admission – either by conduct or silence



(c) Authorized admission (d) Vicarious admission (2) Direct admission: A statement of a party offered against him by his opponent. (a) Characteristics: (i) Can be statement of fact or opinion (ii) Personal knowledge is not required - “I guess it was my fault” (iii) Party need not be available

Civil: defendant testifies “I was speeding” at plaintiff’s personal injury trial. Criminal: defendant confesses and testifies, “I robbed the bank.” (3) Adoptive admissions: there must be evidence sufficient to show the party heard and understood the statement and adopted it as her own. EXAMPLE (Adoptive admission) Distributor says, “I want you to sell these drugs for me.” Defendant reaches out his hand and takes the drugs

(a) Characteristics: (i) an admission by silence requires that a reasonable person would have denied
the statement .

(ii) Caveat: Admission by silence does not apply where defendant has been
given Miranda warnings (4) Authorized admission: a statement by a party’s agent or representative. EXAMPLES: A client authorizes her lawyer to make certain statements. A principal authorizes agents or servants to make statements or representations to third parties. (a) Agency can be express or implied. (5) Employee Admissions (Vicarious Admissions) A statement of a party’s employee offered against the party by the opponent. The statement must be made 1) during the existence of the relationship and must concern a matter 2) must concern matter within the scope of employment EXAMPLE: Employee is driving employer’s truck while making a delivery and he has an accident with plaintiff. Plaintiff sues employer for personal injury under theory of respondeat superior. Eyewitness (plaintiff witness) offers employee’s statement made at the scene. “Gee, I guess I had too many beers at lunch.” Result: Admissible as vicarious admission


(6) MBE tips: (a) “Admissible as non-hearsay” can mean the same thing as “admission” (b) Admissions are preferred over hearsay exceptions (c) Admissions can be contained in a question (with a question mark)? (d) MBE example: Defendant steals expensive wrist watch. The next day friend comes by and says, “That’s a really nice watch you’ve got. You must have stolen it.” Defendant remains silent. Defendant’s silence will be (A) admissible as an admission, or (B) inadmissible because a reasonable person would have taken friend’s statement as a joke Answer:_Reasonable person would not have responded - it is not an admission by silence. d. 3 Types of prior statements defined as hearsay exemptions. (1) For all 3 statements, there are 2 key requirements: (a) Declarant must testify at the trial or hearing. (b) Declarant must be subject to cross examination concerning the statement. (2) Prior inconsistent statement – FRE 801(d)(1)(A) (a) A prior inconsistent statement is permitted to be offered for its truth if: it is “sworn” - sworn means - subject to penalty of perjury at a trial, deposition, or other proceeding (if not sworn - only to impeach) (i) Grand Jury: sworn - impeach or substantively (ii) Coroner’s inquest: sworn - impeach or substantively (iii) Affidavit: not sworn - can only be used to impeach (3) Prior consistent statements – FRE 801(d)(1)(B) Rare - primarily offered on redirect

(a) A prior consistent statement is permitted to be offered for its truth if:
offered to rebut a charge of recent fabrication or improper influence subject to the 2 above-mentioned requirements (declarant must testify and be subject to cross), PLUS: 3) Prior consistent statement must predate the alleged motive to fabricate EXAMPLE: The prosecution is charging a father with sexual abuse of his stepdaughter. On direct examination, step is testifying. On cross, defense contends that the daughter disliked her stepfather even before he was arrested and she fabricated the whole story. On redirect, the prosecutor calls two teachers to testify about a statement the daughter


made to them after the stepfather was arrested but before the trial. Statements made to the teachers did not predate the victim’s motive to fabricate, which existed before the father was arrested. (4) Prior identifications – FRE 801(d)(1)(C)


A prior statement of identification of a person made after perceiving him. (i) The declarant: must testify at trial and be subject to cross-examination (ii) Identification of the defendant in a lineup, show-up, photo ID; sketch. EXAMPLES Declarant identifies defendant in a lineup but fails to appear at trial to testify. May police officer who was present at the lineup testify to declarant’s prior ID? No - the declarant (ID’ing party) must be present to testify

MBE EXAMPLE: Defendant is on trial for bank robbery and the eyewitness to the crime says that the bank robbery was committed by a man with red hair. Defendant shows up at trial with shaved head. Proescutor calls jailer to testify that when defendant was first brought to jail he had red hair. NO --- A) admissible as prior identification; YES --- B) admissible to explain the discrepancy . D. Hearsay Exceptions (OL VIII.C) 1. Hearsay Rule (Rule 802) a. Hearsay is not admissible except as provided by the Federal Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. Hearsay Exceptions; Availability of Declarant Immaterial (Rule 803) a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present Sense Impression Rule 803 (1)


(a) A statement describing or explaining an event or condition made while or
immediately after perceiving it

(b) Characteristics:
(i) Spontaneity (ii) Personal Knowledge (iii) Declarant need not be known or available (iv) Nothing more than an unexcited utterance - explanation (v) Can be oral or in writing


EXAMPLES: Someone on the phone saying “Joe just walked in.” “The sky is so bright. You can see a million stars.” Statement that does NOT qualify: 30 min. after the accident, declarant told the police officer, “Defendant ran the red light.” (2) Excited Utterance Rule 803 (2)

(a) A statement relating to a startling event made while the declarant was under the
stress of excitement caused by the event or condition.

(b) Characteristics:
(i) Must be a startling event (ii) Personal knowledge is required (iii) Unlike present sense impression, statement does not have to be immediate EXAMPLE: Statement by rape victim to her mother 90 minutes after assault. “My husband just tried to strangle me.” “My husband is so mad, I think he might try to kill me.” (3) Then-Existing Mental, Emotional, or Physical Condition Rule 803 (3) (a) A statement of declarant’s then-existing physical, emotional, or mental condition is admissible if relevant to show declarant’s state of mind. (b) Includes statements to prove intent, plan, motive, design, mental feeling, pain, or bodily health. (c) Characteristics: (i) Statement need not be made to a medical person (ii) Look for statements of intent - “I’m going to Colorado” - admissible substantively to improve intent (d) This exception does not include: (i) Past sensation - Only use for present tense verbs - not “I didn’t get any sleep last night” (ii) Statements of memory or belief are generally inadmissible. Witness says “I believe defendant embezzled money from the company” Will Exception: Statement by testator is admissible. E.g. Testator says, “Yesterday I revoked my will so my ex-husband will get nothing.” (4) Statements for Purposes of Medical Diagnosis or Treatment Rule 803 (4) (a) Includes statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or the cause thereof as reasonably pertinent to diagnosis or treatment.


(b) Characteristics: (i) Statement can be made to any medical personnel or family member (ii) Caveat: only goes one way - not both ways. Statements from doctor to patient are NOT included

(c) The statement must be one which is useful for diagnosis and treatment.
(i) Caveat: statements that admit fault are not included EXAMPLES: (i) After a car accident, “I was hit from behind.” OKAY (ii) “I was hit from behind by guy in blue car, license plate XJU187.” NOT OKAY (iii) “The car ran the red light and hit me as I was ridding my bike.” NOT OKAY - ADMITS FAULT BY OTHER PARTY (iv) “I was stabbed with a knife.” OKAY (v) “Defendant stabbed me.” NOT OKAY (5) Recorded Recollection Rule 803 (5) - “Past Recollection Recorded” (a) Used where the witness has a present memory problem. Prerequisite: Refreshing (Rule 612) by a Leading Question or a Writing must have been attempted and failed. Witness must lack recollection of the event (b) Requirements: (i) Memorandum must have been made while the matter was “fresh” in the witnesses mind (ii) Authentication – Witness must testify the Writing accurately reflects the witness’ prior knowledge, i.e., Witness made or adopted the statement. MBE Cooperative Report: Declarant makes a statement to a second declarant who makes the statement to a third declarant. EXAMPLE: Husband sees a man who commits a crime running to his vehicle. Husband tells his wife to call 911. Husband yells to his wife the license plate number, the wife tells the license plate number to the 911 operator, who then recites it back to the wife, who then recites it back to the husband for verification. First, you show the witness the recordation. If witness still doesn’t remember, you can use the cooperative report as past recollection recorded THIS IS AN ADMISSIBLE COOPERATIVE REPORT


(iii) Writing/record is READ into evidence by the proponent but the writing itself is NOT received as an exhibit unless offered by the adverse party. (c) Rights of the adverse party: (i) Inspect the writing (ii) Cross examine with the writing (iii) Show the writing to the jury for comparison purposes (iv) Can introduce relevant portions into evidence substantively **** (6) Records of Regularly Conducted Activity FRE 803 (6) “Business Records Exception” (BRE) (a) A memorandum, record, report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such a record or report, as shown by the testimony of the custodian or other qualified witness, provided the information does not lack trustworthiness. (b) Mnemonic: RRAP R - Regular course of business R - Routine practice A - At or near the time P - Personal knowledge of employee with business duty to record (c) Requirements: (i) Made in the regular course of business. Not: a personal diary; a calendar; a personal checking statement (ii) Foundation witness: Need not have personal knowledge of the contents (iii) Trustworthiness determined: by the judge (iv) Caveat: The records in question may not be made solely in anticipation of litigation. (v) EXAMPLES that satisfy “routine practice”: - Police accident Report; sales receipt; hospital records - Payroll records (vi) Authentication: record must be made or transmitted by a person with knowledge (usually the custodian or some other qualified witness) e.g. if custodian makes records and gives them to manager, the manager would be a qualified witness for authentication (vii) Caveat: Melendez-Diaz v. Mass (2009) In a criminal case dealing with a lab report offered against the defendant, the person who prepared the lab report must be able to appear and be cross-examined by defense in court


EXAMPLES: In a hospital, a doctor does dictation about a patient’s progress. Someone else records the dictation and puts it into the medical records. Such a record will be admissible. If a person keeps a stamp collection and every time she gets a new stamp, she records it, this practice will constitute a business record. (7) Absence of Entry in Records FRE 803 (7) and (10) (a) Evidence that a matter is not included in records or data compilations kept in accordance with the business or public records Rules, may be admitted to prove the non-occurrence of the event or the non-existence of the matter. (b) Foundation: Witness must testify he is familiar with the records, that he diligently searched, and that he found no record of the event. (c) MBE EXAMPLE: Defendant claims he registered with the county as a sex offender. County records official called to testify. Official needs to testify he is familiar with records, diligently searched and there is no record of registration. EXAMPLE: Plaintiff claims he ordered a briefcase from a company, while the company claims it did not receive the order. The company can offer into evidence the list it keeps of all orders received to prove that plaintiff’s order was not there. (8) Public records and reports FRE 803 (8) (a) Similar foundation as business records, except proponent need not show the record was routinely made at or near the time. (b) Includes records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: (i) Activities of a public office or agency e.g., records of a weather bureau (ii) matters observed pursuant to duties imposed by law as to which there was a duty to report e.g., certified tax record; w-2 form a) This category does not include (in criminal cases) police reports - UNLESS offered by accused against prosecution (iii) in civil cases, factual findings from an official investigation pursuant to authority granted by law, provided the findings are trustworthy


MBE Example: report by the Federal Bureau of Mines as to the cause of a gas tank explosion. (9) Records of Vital Statistics FRE 803 (9) (a) Records or data compilations of births, deaths, marriages are admissible if the report was made to a public office pursuant to requirements of the law (10) Records of Religious Organizations FRE 803 (11) (11) Marriage, Baptismal, and Similar Certificates FRE 803 (12) (12) Family Records FRE 803 (13) (a) Statements of fact concerning personal or family history contained in family bibles, genealogy charts, inscriptions on family portraits, engravings on a tombstone/urn/crypt, (13) Records of Documents Affecting an Interest in Property FRE 803 (14) (14) Statements in Ancient Documents FRE 803 (16) (a) Includes statements in a document in existence 20 years or more whose authenticity is established. (15) Market Reports, Commercial Publications FRE 803 (17) (a) Includes statements of objective facts, not opinions (b) Examples: Telephone directory, credit reports, retail sales catalogue, kelly blue book, yellow pages, wall street journal MBE Example: the price of a particular stock (IBM) on May 12, 2010 (16) Learned Treatises FRE 803 (18) “Expert Exception” (a) Includes statements made in “Treatises” - READ into evidence e.g., Any type of textbook, journal, periodical, legal hornbook (b) Requirements: (i) Foundation Authoritativeness must be established through: Judicial notice, expert testimony, by stipulation of the parties (ii) Subject area: MASH: Medicine, Art, Science, or History (c) Learned treatises are often offered to contradict or impeach an expert witness on cross-examination. (d) Caveat: The treatise being used must be read to the jury. the writing is not actually put into evidence (17) Reputation Among Associates, Family Members Concerning Personal or Family History FRE 803 (19) EXAMPLE: A witness may testify as to his name or date of birth without having to rely on his birth certificate.


(18) Reputation Concerning Boundaries or General History FRE 803 (20) (19) Reputation as to Character FRE 803 (21) (20) Judgment of Previous Conviction FRE 803 (22) (a) Final judgments of previous convictions for felonies are admissible. (b) A certified copy of the final judgment is needed. (c) The judgment cannot be used except as to the accused. (21) Judgment as to Personal, Family, or General History, or Boundaries (a) Final judgments, if essential to a particular case, are admissible. 3. Hearsay Exceptions; Declarant Unavailable (Rule 804) EXAM Tip: To recall what constitutes unavailability, remember PRISM: Privilege Refusal Incapability Subpoena Memory a. Unavailability as a witness FRE 804(a) (1) Privilege (a) Assertion of a privilege (and judge rules that privilege applies) (2) Refusal (a) Refusal to testify despite a court order (3) Memory (a) Witness testifies as to a lack of memory (4) Incapability (a) Incapability or incapacity due to death or then existing physical or mental illness (5) Subpoena (a) Absence, despite a good faith attempt, to procure the witnesses attendance (6) Other points: (a) The proponent of the testimony: bears the burden to prove the witness is unavailable (b) Proponent cannot act wrongfully to cause the witness to become unavailable b. Rule 804(b): The following 5 areas are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony Rule 804(b)(1) (a) May be used for its truth if:


(i) declarant made the statement under oath (ii) given by a witness in the same or a different proceeding or in a deposition Note: The former action must involve the same subject matter, not necessarily the same cause of action. EXAMPLE: In the first case, Plaintiff (whistle blower) sues former employer for wrongful termination. Employer deposes Plaintiff who states, “Defendant covered up structural defects” in its jet engines. In the second case, Plaintiff (pilot) sues same defendant for products liability when defective engine malfunctioned. Pilot wants to offer the whistle blower’s deposition testimony in Pilot’s case. Result: former testimony exception would apply (iii) the party against whom the evidence is being offered must have had an opportunity and similar motive to examine the witness and develop the testimony, on direct, cross-examination, or redirect. (b) A deposition of a witness taken in a civil case may be admissible in a criminal case arising out of the earlier civil case. (c) Note: Preliminary hearing: Testimony against the accused from a preliminary hearing MAY be admitted as former testimony at trial if: the plaintiff witness is unavailable Grand Jury testimony: No opportunity to confront witnesses before a grant jury; therefore, testimony against accused from grand jury testimony can not be admitted. (2) Statements Under Belief of Impending Death Rule 804(b)(2), “Dying Declaration” (a) Cause of death, Unavailable declarant, Belief of death, Admissible only in a homicide or civil case. (b) Requirements: Mnemonic: CUBA (i) C - Cause of death (ii) U - Unavailable declarant (iii) B - Belief death is imminent (iv) A - Admissible only in a criminal homicide case or any civil case (c) FRE 104 - Judge determines if declarant believed that death was imminent MBE EXAMPLE: Sketch Victim shot, bleeding profusely, coughing up blood ( B ); police arrive and ask “Who did this? Victim grabs pen and paper and draws sketch of man with crooked nose and scar on this face ( C ). Then victim dies ( U ). Defendant is charged with murder. ( A ) Result: Admissible as dying declaration


(3) Statements Against Interest FRE 804(b)(3) (a) Do not confuse this with an admission = For an admission, personal knowledge is required. For a statement against interest, personal knowledge IS required.

(b) Requirements: Statement of
(i) Unavailable (ii) Non-Party (iii) Against interest when made (penal, pecuniary, or proprietary interest) EXAMPLES: (i) A statement against pecuniary interest: “I owe you $10,000.” (ii) A statement against propriety interest: “I wasn’t sure of the boundary line of my property when you built the dividing wall.” (iii)Where the defendant offers an exculpatory statement against the declarant’s penal interest in order to prove his innocence, the additional element of corroboration is required to insure trustworthiness. (iv) Defendant is on trial for bank robbery, but the bank’s video camera appears to show X committed the crime. X is called to testify but asserts his 5th Amendment privilege and refuses to testify. Defendant then calls Witness to testify X told him that he did in fact commit the crime. Witness’ testimony will be admitted as an exculpatory declaration against interest. Where’s the element of corroboration? Video camera (4) Statement of Personal or Family History FRE 804(b)(4) “Pedigree Exception” (a) Statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history. MBE EXAMPLE: A woman finally tracks down her biological father after years of searching. Father says to her, “I’ve been waiting 30 years for this day. Here’s my girl.” Father dies. The Estate refuses to recognize the daughter as an heir. Result: Statement is admissible (5) Forfeiture by Wrongdoing FRE 804(b)(5)

(a) A statement offered against a party who has engaged in wrongdoing that was
intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the Hearsay Rule). EXAMPLE: Eyewitness gives statement to police. Accused then causes witness to disappear; witness’ statement will be admissible.


(b) This rule does double duty in criminal cases:
Defendant’s forfeits BOTH confrontation rights and hearsay rights 4. Confrontation Clause Crawford v. Washington (2004): US Supreme Court substantially modified confrontation clause analysis when spouse’s statements are offered against an accused. Facts: Wife gave police a recorded statement at the police station incriminating her husband. Then she refused to testify against him at trial claiming spousal privilege. USSC held her hearsay statements were “testimonial” and thus inadmissible, since husband had no opportunity to crossexamine her.

a. Under the Sixth Amendment’s Confrontation Clause:
In a criminal case where the declarant is unavailable, “testimonial” hearsay statements will be inadmissible unless the defendant is given an opportunity to cross-examine the declarant. (1) Hammon v. Indiana (2006). “Testimonial evidence” in this context refers to situations where the primary purpose of the police interrogation is to prove past events relevant to later prosecution EXAMPLE: Police interview victim in a separate room as they prepare to build their case against defendant. This is testimonial. (a) Testimonial evidence may include: (i) Public Records used against defendant (ii) Statements during police interrogation (iii) Collecting information from an information (iv) Lab reports (v) Prior Testimony at a preliminary hearing before a grant jury or at a former trial (2) Davis v. Washington (2006). “Non-testimonial evidence” includes situations where the primary purpose of the statement is to aid police during an ongoing emergency EXAMPLE: Defendant throws beer bottle at victim’s (declarant’s) car on the highway and is swerving erratically. Victim calls 911. Defendant is apprehended and charged with DUI. At defendant’s trial, victim fails to appear. The 911 tape is offered. The tape will be admitted as a present sense impression. (3) If the hearsay turns out to be “testimonial,” defendant must be given an opportunity to cross examine the declarant absent forfeiture. (4) Hint: Look for ongoing emergency v. police-building their case.


b. Remember: A criminal defendant forfeits his Confrontation Clause rights if he causes the
unavailability of the declarant with the intent to prevent that declarant from testifying. 5. Hearsay within Hearsay (Rule 805) Multiple Hearsay a. When faced with 2 (or more) out-of-court statements, both the primary statement and the included statement must have a separate basis for admissibility. Otherwise, the entire statement is inadmissible. b. Common situations: business records; medical records or charts. EXAMPLE: Plaintiff is suing an auto shop for personal injury after a hydraulic pump burst. Plaintiff and defendant’s employee are injured. Plaintiff offers an official OSHA report wherein defendant’s employee (also injured) is quoted as to the cause of the accident. OSHA report (primary statement) is admissible as a public report exception. Employees statement (included statement) is included as vicarious admission - statement of employee offered against defendant (bodyshop) 6. Attacking and Supporting Credibility of Declarant (Rule 806) a. Impeachment of a hearsay (out-of-court) declarant. b. A hearsay declarant’s credibility may be attacked and the declarant may be impeached through bias, prior conviction, PINS, etc. c. MBE EXAMPLE: Girlfriend calls 911 and says, “My boyfriend just pulled a gun on me.” Defendant (boyfriend) is later charged with assault. Girlfriend does not attend the trial. Her 911 tape is admitted as a present sense impression. Then defendant calls neighbor to testify that girlfriend (declarant) told him one month after the incident, “Boyfriend never had a gun that day.” Witnesses hearsay testimony is admissible to impeach the (out of court) hearsay as a prior inconsistent statement Residual Exception (Rule 807) Catch-all (Equivalency) a. A statement not otherwise covered by an exception to the hearsay rule is nevertheless not excluded by the hearsay rule under certain circumstances: (1) Statement must be more probative (on point) than any other evidence (2) Statement must contain circumstantial guarantees of trustworthiness equivalent to the other exceptions (3) The party must give notice to the opposing party. (4) The statement must concern a material issue. (5) The judge ultimately determines whether, in the interest of justice, the statement should be admitted.



b. EXAMPLE: A statement made by a child victim to an adult regarding an act of sexual abuse/ molestation/rape may be admissible if the child (declarant) is unavailable and the statement is necessary and trustworthy.


IX. AUTHENTICATION AND IDENTIFICATION A. Requirement of Authentication or Identification (Rule 901) (OL IX.A) 1. Authentication as a condition precedent to admissibility requires evidence sufficient to support a finding that the matter in question is what its proponent claims it to be. a. “Sufficient evidence” – that which a reasonable juror could find “genuine” by a POTE. (1) Judge must admit (2) Jury must determine the proper weight to give the evidence All evidence, whether direct or circumstantial, may be classified as either testimonial or tangible. a. Types of tangible evidence: (1) Real Evidence – physical evidence actually connected to the case. EXAMPLES: Murder weapon, fingerprints, hair samples (a) Documentary evidence writings, records, xrays, photos, computer printouts, and other self-authenticating documents EXAMPLE: sound recording authentication: 1) Identify the speaker 2) Establish a showing that the machine was in proper working condition 3) Show that the recording was accurate and not altered (2) Demonstrative evidence – its relevance depends on its ability to explain or simulate material facts in the case. (a) EXAMPLES: maps, charts, diagrams, scale models, visual aids (b) Foundation: the exhibit must fairly and accurately represent the scene and the witness must be _substantially familiar with the items shown. 3. Real evidence may be authenticated by: a. Testimony from personal knowledge by showing familiarity with the object b. Distinctive characteristics - “the gun with the pearl handle” c. Chain of Custody (required for fungible items - e.g. cocaine, pills) (1) Accounting for an items whereabouts from the time at issue up until trial (2) Account for every single step of the process/handling (3) The party entering the item must account for any change in the evidence. d. The test for a photograph (the crime scene, autopsy) or an x-ray: it must be an accurate portrayal of what it depicts (clarity, are necessary details shown??) Note: authentication by the photographer or xray technician is not required Documents may be authenticated or identified by: a. Someone who had first-hand knowledge of the document, such as: (1) the Custodian (2) one who prepared the document




(3) an eyewitness to the signing of a document (4) an opinion by an expert witness (e.g. handwriting, shoeprints, ballistics) (5) by the jury (upon comparison of samples) b. Circumstantial evidence (1) Reply doctrine: (a) Doctrine can be used to authenticate the fact that a respondent’s reply was written by him. EXAMPLE: I write a letter to you. You (respondent) reply back to me by letter and make reference to my letter in your reply. Such a reply is sufficient to establish that your letter was written by you. c. Ancient documents (AD): (1) A hearsay exception: A writing is sufficiently authenticated as an AD if the proponent shows the judge the writing is more than 20 years old and it must be found in its proper place


Handwriting – 3 ways to authenticate: a. (1) By a lay person with familiarity (2) By an expert (through comparison) (3) Comparison by the trier of fact b. Familiarity is a weight issue. (1) Caveat: Familiarity cannot be acquired for purposes of litigation Voice Identification a. All voices must be identified when a phone conversation or recording is offered in evidence. (1) Generally, direct evidence is offered by testimony of a witness who recognizes the voice. Telephone Calls a. A showing the call was made to the number assigned. The call is assumed to have gone to that person b. A showing the call was made from an assigned number. The call is assumed to have come from the person assigned that number c. The speaker has a knowledge of specific facts known only to him. d. In the case of a business, must show the call was made to the business and the conversation related to business reasonably transacted Experts a. may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate. may authenticate an authentic device under the proper test






Self-Authentication (Rule 902) (OL IX.B) 1. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: a. Certain documents need no foundation witness to prove they are genuine. Rule 902 lists 12 areas, 6 of which are sometimes tested on the MBE. Mnemonic: CONTAC b. C – Certified Documents: (1) documents bearing a seal of the United States, or of any state, district, commonwealth, territory, or possession thereof (public documents under seal) . (2) certified documents bearing no seal, if a public officer certifies under seal that the signer has official capacity to sign and that the signature is genuine. EXAMPLES: Conviction record, official transcript from a university or law school (3) certified foreign documents: genuineness of the signature and the person’s authorized official position is required. (4) certified copies of (official) public records (a) must be filed or recorded in a public office and certified as correct by either the custodian or other qualified person – could include document under Public Records Exception FRE 803 (8). c. O - Official publications (books, pamphlets and other publications issued by a public authority (FAA book on airline safety standards; CDC book on Swine Flu) d. N - Newspapers and periodicals e. T - Trade inscriptions - signs, tags, labels, which are affixed in the ordinary course of business indicating ownership, control, or origin. f. A - ACKNOWLEDGED/NOTARIZED DOCUMENTS Note: The hearsay rule could apply to render a notarized affidavit inadmissible. g. C - Commercial Paper -- Negotiable instruments/bills of lading - signatures are required as provided under the UCC


Subscribing Witness’ Testimony Unnecessary (Rule 903) (OL IX.C) 1. The testimony of the subscribing witness is not necessary to authenticate a writing unless required by the laws of the governing jurisdiction. Summary: When analyzing writings, the issues the proponent must overcome regarding admissibility are included in the following mnemonic: OPRAH 1. O - Original writing rule (does it violate the best evidence rule?) 2. P - Privilege? 3. R - Relevant? 4. A - Authentication? 5. H - Hearsay



X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS A. Original Document Rule/Best Evidence (Rule 1002) (OL X.B) = BER 1. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. a. A rule of preference for the original but with many exceptions. b. Purpose is to reduce risk of fraud, forgery, or mistake c. Broadly defined - covers every tangible process to record words, pictures, etc. It includes the following: letters, words, numbers, facts, emails, xerox copies, carbon copies, video tapes, cds, dvds, mp3s, xrays 2. The “Best Evidence Rule” applies only where: The “contents of a writing are in issue.” 3 areas will be discussed. The BER applies to the first two.

a. Legally operative documents (LOD)
(1) Where the writing has independent legal significance - the writing itself creates or destroys a legal relationship EXAMPLES: Contracts, wills, deed, mortgage, lease, driver’s license, movie (in an obscenity action), photograph in a pornography action, written libel, divorce decree b. Where the testimony is reliant on the writing, not on personal knowledge. EXAMPLES: Victim shot to death. Wrote “my boyfriend threatened to kill me today” in diary that police officer finds during lawful search. Officer may testify he found the diary, but may not testify as to its contents. because the diary itself is the best evidence Doctor testifies, “The x-ray of plaintiff’s lungs shows distension characteristic of emphysema.” No personal knowledge independent of X-ray, BER applies, X-ray must be provided. Contractor in suit against non-paying client. Contractor meticulously records each days work in his notebook. From memory, he testifies as to what was done, time spent, etc. This is personal knowledge independent of the writing and can be admitted. c. Independent Source Rule. BER does not apply.


(1) Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the BER does not apply. (2) EXAMPLES: Plaintiff sues defendant for breach of contract. The issue is the price of a television set. Plaintiff testifies, “I paid $800 for the TV.” Defendant objects claiming the BER required production of the receipt. How should the court rule? Independent source rule applies - Fact that plaintiff purchased the television exists independently of the sales receipt - he has the goddamn tv motherfucker! (a) Sales receipt not required to prove that goods/services were paid for (b) Birth certificate not required to prove your age (c) Death certificate or marriage certificate (d) Caveat: If, however, the witness testifies “my records show that I paid the bill” - the receipt would be required. If a receipt/record is entered into evidence to prove payment, birth, etc - you must produce the original More Examples (BER applies): If you are trying to prove that a film is obscene, the film is the subject matter. It must be seen before the issue can be determined. Whether the terms of the contract said X or Y. The actual language of the contract is at issue. Must produce the contract. Image from a surveillance camera from a bank. In order to tie identification of the thief to the camera, it must become a part of the case. Plagiarism – We must produce the original document and the document as copied. Malpractice – If a doctor misread an X-ray, we must see the X-ray. d. MBE caveat: BER does not apply to “inscribed chattels” --- Examples include a license plate, policeman’s badge, tombstone, sign on a bus, speedlimit sign 3. An original includes either the original itself or a duplicate. a. There are 3 substitutes for an original: (1) Duplicate or xerox copy (2) Certified copy of a public record (3) Summaries of voluminous records b. Admissibility of Duplicates – Rule 1003 (1) A duplicate is admissible to the same extent as an original unless there is a genuine question of authenticity. There are no degrees of secondary evidence under the FRE


(2) A duplicate is any counterpart that accurately reproduces the original. Any negative or print of a photograph is viewed as an original B. Admissibility of Other Evidence of Contents (Rule 1004) (OL XD) 1. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if mnemonic LOCS applies. a. Lost - Where all the originals have been lost or destroyed, the original is not required unless the proponent lost or destroyed them in bad faith b. Opponent - Where opponent has possession of original and refuses to deliver it c. Collateral - Original not required where writing, recording, or photograph is not closely related to a controlling issue. d. Subpoena - Where the original cannot be obtained by any available judicial procedure Secondary Evidence is any alternative to the document. E.g. testimony, handwritten duplication -- allowed once good cause is shown for non-production (LOCS).



Public Records (Rule 1005) (OL X.E) 1. The contents of an official record may be proved by copy, certified as correct in accordance with Rule 902 or by witness testimony upon comparison with the original. Summaries (Rule 1006) (OL X.F) 1. The contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. 2. The originals shall be made available for examination, copying (or both) by other parties at a reasonable time and place. The court may order production in court also. 3. Foundation: a. Showing that the originals themselves would be admissible hearsay - Under Rule 1006, summaries and charts admitted as evidence are admitted substantively b. Opponent must be given reasonable pretrial access c. Summaries must be properly authenticated by the preparer EXAMPLE: Large 500-person law firm was being sued for falsifying billable hours over a ten year period. Judge ordered the office manager to prepare a computer printout of all the names of the attorneys and all the billable hours in the ten-year period. She took the voluminous data and inputted into her computer and gave the judge a printout. That computer printout processed human input. The question asked will it be admissible? A) admissible under the business record exception; B) admissible as summaries of voluminous records. The answer was B.




Testimony or Written Admission of Party (Rule 1007) (OL X.G) 1. Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the nonproduction of the original writing. Functions of Court and Jury (Rule 1008) (OL X.H) 1. Finder of fact (usually the jury) decides a. whether the asserted writing (the original) ever existed b. whether another writing produced at trial is the original c. the accuracy of the writing d. Jury has final decision on whether the item is genuine and how much weight to give it 2. Compare: The judge determines preliminary facts – Rule 104(b) a. whether the BER applies to a writing b. whether a writing is an original or a duplicate c. whether “good cause” exists for nonproduction of the original (LOCS) d. whether summaries are admissible e. whenever admissibility depends upon the fulfillment of a condition of fact



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