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EVIDENCE OUTLINE

“Trials are not about the truth they are about the evidence.” Evidence: (CA defn) testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. • Evidence includes all the information given to the trier of fact during trial, except for the questions and statements made by the attorneys and judges. 6 Types of Courtroom Evidence • 1) Oral Testimony: Oral testimony by witnesses speaking from the witness stand. o 3 Types of Witnesses:  1) Fact Witnesses – People who perceived facts related to the lawsuit and testify about those facts. A fact witness may testify about facts even if they do not fit w/in the colloquial concept of being an “eyewitness.”  2) Expert Witnesses – People who use specialized knowledge to interpret evidence or explain it to the jury. Parties sometimes introduce expert testimony to explain the weight of other evidence. • Expert witnesses to NOT need to have any firsthand knowledge about the controversy in question.  3) Character Witnesses – People who offer information about the good or bad character of a party or witness. Do NOT testify to the facts at issue in the lawsuit. • 2) Real Evidence: any physical evidence that a party claims played a direct role in the controversy. o Real evidence must be authenticated – meaning the proponent must offer some proof that the piece of physical evidence is what he/she claims it to be. o A video, photo or audiotape may be real evidence if it depicts the events of the controversy. • 3) Documentary Evidence: any type of writing or recording of information. o Must be authenticated by the proponent, b/c docs are a subcategory of real (physical) evidence. • 4) Demonstrative Evidence: Not an object that played a role in the disputed events. Evidence created by the parties to illustrate concepts or facts to the jury. o A video, photo or audiotape may be considered demonstrative if used to illustrate an aspect of the dispute. • 5) Stipulations: Facts both parties agree to be true for purposes of the litigation. Both parties must agree to the exact language of the stipulation. • 6) Judicial Notice: The judge can take “judicial notice” of a fact that must either be “generally known” or “capable of accurate and ready determination” by consulting an unimpeachable source. (FRE 201) Circumstantial Evidence: Any evidence that requires the jury to make an inference connecting the evidence w/ a disputed fact. Proof of a chain of facts and circumstances indicating the existence of a fact. Where do the FRE apply? • FRE 101: Scope 1

EVIDENCE OUTLINE
o These rules govern proceedings  In the courts of the United States  and b/f the US bankruptcy judges  and US magistrate judges to the extent and w/ the exceptions stated in FRE 1101. Do not apply to the Supreme Court or to Administrative Agencies. However, the IRC directs the Tax Court to apply the FRE to certain proceedings.

When do the rules apply? • The FRE only applies to the trial. • FRE 1101(d) Rules inapplicable. The rules (other than w/ respect to privileges) do not apply in the following situations: o 1) Preliminary questions of fact - The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104. o 2) Grand Jury - Proceedings b/f grand juries. o 3) Miscellaneous proceedings  Proceedings for extradition or rendition;  Preliminary examinations in criminal cases;  Sentencing, or granting or revoking probation;  Issuance of warrants for arrest, criminal summonses, and search warrants;  and proceedings w/ respect to release on bail or otherwise. • FRE 1101(b) – rules of evidence to not apply when a court exercises its summary contempt power. • FRE 1101(c) Rule of privilege – The rule w/ respect to privileges applies to ALL stages of all actions, cases and proceedings. Structure of a Trial • 1) Pretrial Motions o Motion in limine – Whether or not information is admissible under the FRE.  3 tactical advantages to using MIL • 1) Knowing ahead of time what evidence will be admitted and what will be excluded can help an attorney plan trial strategy. • 2) Allow the attorneys to make more lengthy and sophisticated legal arguments. • 3) Jurors are not aware of the motions. o Motion to suppress – Not that the evidence violates the FRE, but that it was illegally obtained. o Motion for Summary Judgment – There is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. • 2) Jury Selection – voir dire. • 3) Opening Statements (like a movie trailer) o Framing the evidence and give it context. Party w/ the burden of proof goes first. • 4) Plaintiff’s/Prosecutor’s Case-in-Chief o At the close of the Π ’s case, the ∆ will move for judgment as a matter of law. The judge will grant these motions only if, even after considering the Π ’s evidence in the 2

EVIDENCE OUTLINE
• • • • • • • • best possible light, no reasonable jury could find for that side. 5) Defendant’s Case-in-Chief 6) Π ’s Case-in-Rebuttal o Π rebuts evidence introduced by the defense. Π may call new witnesses or introduce new evidence only if the evidence is focused on the issues raised by the defense. 7) ∆ ’s Case-in-Rebuttal 8) Further rebuttal and rejoinder 9) Closing (Argument) Statements - Π can get a rebuttal to the ∆ ’s closing argument 10) Instructing the Jury 11) Deliberation 12) Verdict

OBJECTIONS FRE 103: Rulings on Evidence (a) Effect of Erroneous Ruling – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected... • (1) Objection – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; ... • (2) Offer of Proof – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. o Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal... (c) Hearing of Jury – In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain Error – Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. Disputing and Defending Evidence - 103 Addresses 4 aspects of evidentiary disputes 1) Raising Objections • The process of challenging an opponent’s evidence • Important Points about challenging evidence (FRE 103(a)(1)): o 1) Establishes 2 mechanisms for disputing evidence at trial:  Objection • A lawyer registers an objection BEFORE the opponent introduces a potentially inadmissible item into evidence.  Motion to Strike • Occur AFTER disputed evidence has already entered the record. 3

Putting the Process into Action: o 1) Objection o 2) Motion to Strike (give the portion of testimony you want struck and the reason) o 3) Curative Instruction • 2) Defending Evidence • FRE 103(a)(2) – When one party objects to introduction of evidence. o A formal offer of proof is unnecessary if “the substance of the evidence” is “apparent from the context w/in which questions were asked.  The lawyer must also designate the portion of a document or witness’s testimony to which he/she objects. and the judge has overruled the objection. the issue is preserved for appeal. you must object in a State deposition.EVIDENCE OUTLINE o 2) Requires parties to challenge evidence in a timely manner. • You MUST object to questions regarding privilege otherwise you will waive the privilege. o 3) Requires lawyers to “state a specific ground” for any objection  This gives the Judge and the opponent notice about the basis of the objection. • “Standing” or “Running” objections o Objecting to an entire subject matter or a certain area. You should ask for a “standing” or “running” objection that basically says that you object to all questions on that subject matter. This means you don’t have to object to every single question.” 4 . However. the opponent makes an offer of proof to show the judge what the evidence entails. 4) Shielding the Jury • FRE 103(c) – objections must be conducted in a manner so as to “prevent inadmissible evidence” from being “suggested to the jury.  Failure to promptly object means the appellate court will NOT consider the evidentiary challenge.  Prompt objection also allows the opponents an opportunity to cure any evidentiary defect. • You do NOT need to object in a Federal deposition to preserve your right to appeal. o The opponent must make the offer of proof or he waives any objection on appeal.” • You must get into record what the evidence would have been for preservation on appeal.  Specificity is unnecessary if the basis of the objection is “apparent from the context.  Gives the opponent an opportunity to cure.  Failure to give a specific ground for an objection means the appellate court will not consider the evidentiary challenge. 3) Maintaining Objections • Once the trial counsel has made a specific and timely objection.  Lawyers must object to evidence as soon as the ground for objection is known or reasonably should be known.  Any grounds not asserted are WAIVED. The lawyer must raise ALL specific grounds for objecting if there are multiple reasons.” but the lawyer should always add at least one work or phrase in explanation of the objection.

the jury would have reached a different verdict. • An appellate court may use the “substantial right” standard when reviewing an evidentiary decision “de novo” – when a trial judge misinterprets a Rule of Evidence or applies the wrong legal standard. • The judge may direct attorneys to avoid certain topics and questions. o Limiting Instruction: The judge explains to the jury that the evidence is only to be used for a specific purpose and not another purpose. shall restrict the evidence to its proper scope and instruct the jury accordingly. On Appeal • Appellate courts rarely reverse trial decisions based on evidentiary issues alone for 2 reasons: o 1) appellate courts apply an abuse of discretion standard to most claims of evidentiary error. if the judge had made the correct ruling. affects [a party’s] substantial rights. o 2) An appellate judge is only allowed to reverse a trial decision for evidentiary error if the error affected a “substantial right” of one of the parties.. FRE 105: Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted. while excluding other portions. • “Plain Error” (FRE 103(d)) o An error that is “clear and obvious under current law. . Irrelevant Evidence Inadmissible 5 . • Overrule: when the judge disagrees w/ an evidentiary objection and admits the evidence. integrity or public reputation of judicial proceedings if left uncorrected. The judge will sometimes explain why the evidence is misleading or inappropriate to consider. and . would seriously affect the fairness. Response by the Judge • Sustain: when the judge agrees w/ an evidentiary objection and excludes the evidence.  Meaning there is a reasonable probability that. but not against another. • Redact: the judge may ask the party to eliminate portions of the document which violates an evidentiary rule.. but allow a witness to testify on other matters. • The judge may also admit a portion of the evidence. • • Curative Instruction: If admissible evidence has inadvertently reached the jury the judge tells the jury to disregard the evidence.” RELEVANCE FRE 402: Relevant Evidence Generally Admissible.. o Evidence may be admissible against one party. Admission of Evidence for Limited Purposes (FRE 105) o The rules of evidence may permit parties to introduce evidence for one purpose but not for another..EVIDENCE OUTLINE o If an objection requires further explanation the attorneys will “approach the bench” to discuss the issue w/ the judge. the court upon request.

o Any evidence that could shift a fact finder’s view of the facts even the smallest degree is relevant. the dog did not bark) Hindsight (irrelevant) • We look to the subjective belief of the person rather than on the actual. deadly force) Opening the Door • Irrelevant evidence sometimes becomes relevant to rebut claims made by another party. • Controversy and Consequence • Evidence is relevant even if it addresses a matter that the opponent concedes. (ex. objective threat. Unrelated Misdeeds (irrelevant) • Attempting to influence the jury by introducing evidence that an opposing party engaged in illegal or immoral behavior. 2) Must be a fact “of consequence” o The fact itself must be related to the cause of action. Negative Evidence (irrelevant) • A lack of evidence that becomes evidence itself. will act badly in the future.EVIDENCE OUTLINE • All relevant evidence is admissible. we recognize in the law that there is an overwhelming tendency for juries to conclude that people who have had bad behavior in the past. • 1) “Any Tendency” to make a fact “more probable or less probable” o This establishes a very low threshold for relevance. • Where the evidence is too far removed from the parties’ dispute in time. a fact that matters to someone who is trying to decide the case. except as otherwise provided o by the Constitution of the US o by Act of Congress o by these rules. (ex. but relevance does not mean it will be admitted. place. o An individual piece of evidence can be relevant even if it does not conclusively establish any fact on its own. or other respects. but not Sufficient . 6 . o Under the technical definition of relevance this evidence is relevant.  Necessary. However. or o by other rules prescribed by the Supreme Court pursuant to statutory authority. that is.Evidence must be relevant to be admitted. FRE 401: Definition of “Relevant Evidence” “Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the evidence. Need not be controverted to be relevant.

evidence may be excluded if its probative value is substantially outweighed by the danger of o unfair prejudice. • 4) Whether the advocate can prove the same facts through less prejudicial or confusing means. its unfair prejudice. Case-by-Case Determination • Questions of relevance “are determined in the context of the facts and arguments in a particular case. Important elements of FRE 403: • “May” – Judges possess considerable discretion under 403. or misleading the jury. • “Substantially Outweighed” o For the judge to exclude relevant evidence. waste of time. Common 403 Scenarios: • 1) Damaging Evidence o Evidence that strongly supports the position of one party and damages the other is NOT “unfair. or Waste of Time • Although relevant. o Judges apply 403 on a “case-by-case” basis. or delay must “substantially” outweigh its probative value. or by o considerations of undue delay. Confusion. or needless presentation of cumulative evidence. The rule recognizes a firm tilt toward admissibility.” it is just persuasive.  “Unfairly Prejudicial” Evidence – “lures the factfinder into declaring guilt [or liability] on a ground different from proof specific to the offense charged.”  Evidence that will tempt the jury to decide the case on grounds different from those the law demands. • 2) The extent to which the jury might overvalue the evidence. confusion of the issues. • 3) The strength of the connection b/n the evidence and the elements of the case.” Witnesses can also inadvertently open the door in testimony. • 5) Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. . Five Factors that frequently influence a judge’s decision when applying this rule: • 1) The extent to which the evidence will arouse emotions or irrational prejudices among the jurors. confusion.Appellate courts rarely reverse 403 rulings b/c they are discretionary.” FRE 403 Exclusion of Relevant Evidence on Grounds of Prejudice. • “Unfair” o The most commonly invoked basis for exclusion is that admitting the challenged evidence would cause unfair prejudice.EVIDENCE OUTLINE • • This creates a new “fact of consequence. • 2) Videos and Photos 7 .

3) Socially Undesirable Behavior o Parties sometimes attempt to introduce evidence of an opponent’s unconventional lifestyle.Parties do not invoke the 403 “evidence is unfairly prejudicial or confusing” objection when a judge serves as the fact-finder. giving no indication of how the crime occurred or who was responsible. or o a need for a warning or instruction This rule does NOT require the exclusion of evidence of subsequent remedial measures when offered for another purpose. but have NOT forced the prosecution to accept ∆ ’s stipulations on elements of other crimes. • FRE 407: Subsequent Remedial Measures When. o The judge must decide whether the juror’s emotional reaction to the devastating effects of a crime will push them to blame the ∆ . after an injury or harm allegedly caused by an event. hoping the jurors’ biases will lead them to view the opponent negatively. if taken previously. measures are taken that. o a defect in a product’s design. 5) Stipulations o Old Chief Rule: Trial courts have accepted a ∆ ’s stipulation of felony status in gun possession cases. o a defect in a product. but not necessarily unfair. and Needless Duplication 7) Bench Trials .EVIDENCE OUTLINE o May be damaging. such as o proving ownership. 8 • . excluding other evidence of the prior conviction under Rule 403. 4) Flight . • 2) Evidence targeted by these rules tends to cause a high degree of unfair prejudice. control. if controverted. or o impeachment. would have made the injury or harm less likely to occur. o culpable conduct.Travel has innocent as well as guilty purposes. evidence of the subsequent measures is not admissible to prove o negligence. while contributing little probative value. overlooking any exonerating evidence. o But if a photo or video shows only the effects of the crime. • • • • • Rules that exclude evidence related to five different subjects: • 407 – Subsequent Remedial Measures • 408 – Settlement Negotiations • 409 – Payment of Medical Expenses • 410 – Plea Bargaining • 411 – Insurance Coverage Each of these rules furthers goals of two types: • 1) Each rule promotes a socially valuable activity by protecting those who engage in that activity from evidence that might be used against them. Undue Delay. or feasibility of precautionary measures. the possibility of unfair prejudice is more substantial. 6) Waste of Time.

Admissibility of 407 evidence depends on the purpose for which a party offers the evidence – it may be allowed to prove other facts of consequence.The process of discrediting a witness.”  However. physical or other restraints. that the original condition or practice was unreasonably dangerous. o A judge is most likely to admit the evidence when:  1) a witness makes a specific representation that conflicts w/ the SRM  2) the witness makes an absolute declaration like “the product was perfectly safe. the Π can use the ∆ ’s SRM as strong evidence that the measure was feasible.” and/or  3) the witness making the statement was personally involved in implementing the remedial measure. the change tends to prove a fact of consequence. o Parties injured after the first-injured Π may be able to rely upon evidence that is unavailable to the initial Π . 2 Problems w/ admitting this evidence: o 1) Creates an incentive for the ∆ to postpone fixing a condition that injured the Π . just so that the repair can’t be used as evidence at trial. o 2) Juries may give too much weight to evidence of subsequent remedial measures. Only remedial measures AFTER the Π ’s injury are inadmissible. this evidence causes unfair prejudice that substantially outweighs its probative value. • • Understanding and applying 407 • Timing o Evidence of remedial measures b/n the time the Π purchased the item and when his/her injury occurred ARE admissible. • Only excludes evidence of subsequent remedial measures undertaken by a party to the lawsuit. • Feasibility o When a ∆ disputes feasibility – meaning it claims it could not have remedied a dangerous situation b/c of economic. or amount of a claim that was disputed as to 9 . NOT a third party’s remedial measures. • FRE 408: Compromise and Offers to Compromise (a) Prohibited Uses – Evidence of the following is NOT admissible on behalf of any party. • Impeachment .EVIDENCE OUTLINE • “Evidence that the ∆ made such a change is relevant to prove the Π ’s case. invalidity of. The evidence is only inadmissible if it is offered to prove any of the 5 facts listed. Other Purposes (If the ∆ raising the issue) • Ownership or control o If the ∆ claims he did not own or control the instrument that injured the Π may introduce evidence of SRMs as evidence that the ∆ did own or control the instrument. when offered to prove liability for. • The use of SRM to show these other purpose is only allowed if one of these issues is “controverted” by the opposing party.

 3) Whether attorneys were involved in the discussions. • Policy behind 408 • To ensure that parties are not inhibited from making offers or statements during the settlement negotiation process. investigative. • 2) “offers and acceptances” is broad – offers. promises to accept. • 2) The claim must be “disputed as to validity or amount. • 4) 408 excludes statements and conduct made during compromise negotiations ONLY when offered as evidence for one of three purposes: o to prove liability or non-liability o to establish the amount of damages 10 . promises. acceptances.EVIDENCE OUTLINE validity or amount. and any consideration extended as part of the settlement. Examples of permissible purposes include o proving a witness’s bias or prejudice. Rule 408 doesn’t shield discussions they hold on other matters. offers to accept. or o A party has hired an attorney and threatened to sue. or to impeach through a prior inconsistent statement or contradiction: o (1) furnishing or offering or promising to furnish – or accepting or offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim. Limits on Rule 408: What is still admissible? • 1) For Rule 408 to apply the disagreement b/n parties must have matured into a “claim. and o proving an effort to obstruct a criminal investigation or prosecution.” o A complaint has been filed. and o (2) conduct or statements made in compromise negotiations regarding the claim. except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory. • 3) Statements or conduct must occur during “compromise negotiations. or enforcement authority.” o Factors judges consider when deciding whether a statement occurred during compromise negotiations:  1) Whether the statement was unilateral or occurred during bilateral discussions. The language defines the reach of 408 broadly in three ways: • 1) applies to ALL parties o A party can’t offer as evidence its own settlement offer o This includes settlements w/ 3rd parties or other ∆ s.” o If both parties initially agree that liability exists and also agree on the extent of damages.  2) Whether either party made a concrete offer. • 3) the rule protects ALL “conduct or statements made in compromise negotiations. (b) Permitted Uses – This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). and  4) Whether the parties used phrases that are commonly used during settlement discussions.” not just the operative offers and acceptances. o negating a contention of undue delay.

to repair a car. The rule does NOT include offers to pay lost wages. evidence of the following is not. o 3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either the foregoing please. so he is a liar). o Impeachment – going to show that this particular witness has lied about a particular thing.” Purposes where 408 evidence may be admissible • To counter an argument that they delayed in pursuing their claim • To support a claim that an opposing party engaged in frivolous or vexatious litigation.EVIDENCE OUTLINE o to impeach a witness’s prior inconsistent statement. admissible against the defendant who made the plea or was a participant in the plea discussion: o 1) a plea of guilty which is later withdrawn. in any civil or criminal proceeding. Criminal Cases • 408 allows prosecutors and defendants in criminal cases to introduce evidence from one category of civil settlement negotiations  When the discussions involved a government agency exercising its “regulatory. and Related Statements Except as otherwise provided in this rule. or enforcement authority. 409 only bars admission of evidence when offered to prove liability. or o 4) any statement made in the course of plea discussions w/ an attorney for the 11 . o Rule 408 does NOT allow evidence of statements made in a conference to impeach a witness. • Rule 408 does NOT apply to criminal plea-bargaining. • FRE 410: Inadmissibility of Pleas. o 2) a plea of nolo contendere. investigative. or similar expenses occasioned by an injury is NOT admissible to prove liability for the injury. If the evidence is offered to prove some other fact of consequence. Plea Discussions. • • • 409 does NOT exclude any other statements that were made contemporaneously w/ the offer. It is taking a particular thing the witness has said and show that it is a lie. • To show that a witness is biased o Bias – Witness has a relationship w/ the party. • All courts agree that parties cannot shelter preexisting evidence by discussing it during settlement negotiations.  Impeachment and bias are NOT the same thing. hospital. It may be something at issue in the case or it may just be something you want the jury to see (he lied about this. FRE 409: Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical. the evidence is admissible. or to compensate an injured party for other types of economic or property damage.

Encompass both the out-of-court bargaining process and any in-court discussion or acceptance of the plea. • 410 precludes some evidence of offers to plead guilty. This is done to advance the social interest in plea bargains and the policy concerns of protecting ∆ s who participate in the bargaining process. b/c these yield a conviction and are of public record. as well as statements made during plea bargaining. 410 Policy and Practice • Primarily concerned w/ the case where the conversation happens.EVIDENCE OUTLINE • prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn However. but does not admit guilt for any other purpose. o All statements that the ∆ made as part of the plea negotiation process or during the 12 . but he does not admit guilt. but the plea doesn’t become finalized. • 410 does NOT exclude evidence of FINAL guilty please entered as a result of a plea bargain. such a statement is admissible o i) in any proceeding wherein  another statement made in the course of the same plea or plea discussions has been introduced and  the statement ought in fairness be considered contemporaneously with it. o NOT admissible • 3) protects statements made during a plea bargaining process if that process produced either a withdrawn guilty plea or a plea of nolo contendere. o ∆ allows himself to be criminally punished as if he were guilty. as a criminal ∆ . o A nolo contendere plea cannot be used to establish liability by issue preclusion (collateral estoppel) in a civil lawsuit. • 2) “No Contest” plea (“I will not contest the charge”) – the ∆ allows the court to assume guilt for purposes of sentencing. or o ii) in a criminal proceeding for perjury or false statement if  the statement was made by the defendant under oath. A ∆ can also withdraw a guilty plea after acceptance but b/f sentencing if a “fair and just reason” exists for withdrawal. participated in the plea bargaining process. but other parties can not introduce this evidence against the ∆ The Prohibitions • 1) A criminal ∆ who agrees to plead guilty retains complete discretion to withdraw that plea at any time b/f the court accepts it.  on the record and  in the presence of counsel. This allows the ∆ to introduce evidence from that process against others. • The ∆ may introduce protected plea-related evidence. • Prevents juries form hearing unfairly prejudicial information. b/c they are likely to assume that someone willing to plea bargain is guilty. The Opening Language • Excludes evidence from BOTH civil and criminal trials • 410 precludes this evidence ONLY when introduced against the person who.

• Two-tiered approach to analyze if a “plea discussion” has occurred: o 1) the ∆ displayed “an actual subjective expectation to negotiate a plea” and o 2) that expectation was “reasonable given the totality of the objective circumstances. another party may introduce additional statements from the same session when fairness requires consideration of those additional statements.” Only when the bargaining produces a withdrawn plea or no plea.” • Ask: If you were in this situation would you think this person had the authority to make a deal. FRE 411: Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. o 2) The government may introduce some statements otherwise protected by the rule when necessary to prosecute a ∆ for perjury or false statement. This rule does NOT require the exclusion of evidence of insurance against liability when offered for another purpose such as o proof of agency. Sentencing • FRE do not apply to sentencing! Prosecutors can introduced statements from plea-bargaining sessions during the sentencing phase. o 1) If a party introduces one statement from a plea bargaining session. Once a plea is accepted the ∆ no longer faces trial on those charges. Exceptions •  410 does NOT preclude introducing evidence of a plea bargain that has been entered and finalized. Limits its protection to plea discussions that occur “with an attorney for the prosecuting authority. Waiver • Some prosecutors refuse to engage in plea-bargaining unless the ∆ agrees to waive his rights under 410 .EVIDENCE OUTLINE • aborted court appearance are also inadmissible against the ∆ . Protection is no longer necessary. • Many waivers allow the government to introduce statements made during plea-bargaining even if the ∆ does not take the stand at trial. What are Plea Discussions? • “Plea discussions” are defined as those that occur “with an attorney for the prosecuting authority. However 410 does have 2 exceptions. • Evidence relating to a plea bargain is inadmissible regardless of the purpose for which it is offered. 13 • • .if the negotiations break down the statements are admissible. 4) shields statements made during plea bargaining when no guilty plea results.” o Sometimes there can be enough indicia that the person is speaking w/ authority to make the discussion a plea discussion. or o bias or prejudice of a witness. ownership or control.

• Rule 605 similarly prohibits judges from reporting evidence related to experiments they have conducted or visits they have made to a site related to the case. a witness must o 1) be competent (601. o Many states maintain a few exceptions to the modern presumption of competence:  Children under a certain age  “Dead Man’s Statutes” FRE 605: Competency of Judge as Witness The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.EVIDENCE OUTLINE For what purpose if the evidence offered? • Rule 411 only precludes evidence of liability insurance if it is offered to prove fault. whether those claims are based on state law (as in diversity cases) or federal law (as in federal question cases). and o 3) take an oath or affirmation (603). However. FRE 606: Competency of Juror as Witness 14 . w/ respect to an element of a claim or defense as to which State law supplies the rule of decision. o This rule carves out a narrow exception to that general principle and acknowledges that competency rules are sometimes interwoven w/ liability principles. 605.. the competency of a witness shall be determined in accordance w/ State law.. The second part of the rule: State law and Federalism o The FRE apply to all civil trials in federal court. 606) o 2) have personal knowledge (602). • Interpreter (604) • • FRE 601: General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules. o This is also extended to the judge’s law clerks and employees. in civil actions and proceedings. PUTTING A WITNESS ON THE STAND: Qualifying a Witness to Testify • To testify in court. • • • Analyzing Rule 605 • Rule 605 also prohibits the judge from offering commentary from the bench that amounts to testimony. • ANY purpose other than proof of liability is permissible under Rule 411 as long as the purpose is relevant to the dispute.

or the opposing counsel might call the lawyer to the stand. You must “Lay the Foundation” to show that the witness has personal knowledge. If the juror is called so to testify. • Rule 606 does not bar a party asking a juror to appear at a subsequent trial and testify as a witness about something he or she observed in the previous trial. a witness’s own testimony provides the necessary foundation to establish personal knowledge. They cannot speculate about matters beyond their knowledge. consist of the witness’ own testimony. Sometimes a judge will add commonly known facts to a witness’s testimony to find that the witness has sufficient personal knowledge to testify. • A member of the actual trial team cannot be a witness.. PERSONAL KNOWLEDGE: FRE 602: Lack of Personal Knowledge • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Witnesses can only testify about matters they have seen. Sometimes lawyers just assume that b/c a witness is competent. that they have personal knowledge. ethical rules limit what the lawyer can testify to. However.EVIDENCE OUTLINE • • (a) At the trial – A member of the jury may NOT testify as a witness before the jury in the trial of the case in which the juror is sitting. 15 . • This rule is subject to the provisions of rule 703. but need not. Capacity to perceive the event and memory or ability to draw upon that information. Analyzing Rule 606 • Can witness outside of the presence of other jurors. the opposing party shall be afforded an opportunity to object out of the presence of the jury. • Evidence to prove personal knowledge may.. or otherwise sensed themselves. (This is the core concept of hearsay). relating to opinion testimony by expert witnesses. but someone else in the same law firm can act as a witness. Can Counsel Testify? • A lawyer might testify on behalf of the party she represents. Much of the time. you want to avoid it and you need a waiver. heard. Expert witnesses are allowed to offer opinions related to a controversy even if they lack personal knowledge of the underlying facts.. Rule 602 prevents witnesses from testifying to matters that they heard about form others but did not observe firsthand (hearsay).. However. The single most effective objection is “Objection – Lack of Foundation. • • • • • • • • • • The single most important rule of competency is Rule 602: A witness is required and restricted to that which is of their own personal knowledge.

 Goal in direct is to get a clear and complete story from the witness.  If a lawyer leads a witness by asking him questions that suggest a particular answer. o 2) avoid needless consumption of time. by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind w/ the duty to do so. EXAMINING EYEWITNESSES: The process of examining a witness • 1) Direct Exam • 2) Cross-Exam • 3) Redirect Exam • 4) Recross Exam • 5) Additional Rounds of Redirect and Recross DIRECT EXAMINATION FRE 611: Mode and Order of Interrogation and Presentation (a) Control by court – The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to • 1) make the interrogation and presentation effective for the ascertainment of truth. every witness shall be required to declare that the witness will testify truthfully. (c) Leading Questions – Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. an adverse party. and o 3) protect witnesses from harassment or undue embarrassment.EVIDENCE OUTLINE FRE 603: Oath or Affirmation Before testifying. FRE 604: Interpreters An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. We want to control the flow in which the witness delivers the story through questioning. the witness may give those answers out of deference or confusion. or a witness identified w/ an adverse party. • 1) Leading Questions o A leading question is one that suggests a certain answer to the witness. always ask: In this context. o To identify a leading question. does the question suggest a specific answer? • 2) Permissible Leading on Direct o 611 gives judges discretion to allow leading questions when that “may be necessary to 16 . interrogation may be by leading questions. When a party calls a hostile witness.

confused. in the exercise of discretion. o Ex. 17 . Cannot ask a question “beyond the scope” of the direct. Other Rule 611 Objections • Any objection to the form of a question is an objection based on Rule 611(a).EVIDENCE OUTLINE develop the witness’s testimony. • • Beyond the Scope • This provision makes 3 important points: o 1) Lawyers conducting cross usually cannot ask a witness about topics or incidents that were not addressed during direct. The court may. or has trouble recalling • Used to get the witness who is embarrassed. the other side will have very few witnesses to put on. (c) Leading Questions – Ordinarily leading questions should be permitted on cross-examination. • Different than Direct in 2 ways: o 1) leading questions are allowed. but o 2) the cross-examiner may ask questions only about issues covered during the direct examination. The purpose of cross-exam is not to construct a story. but to limit or discredit the story told by the witness. This creates the appearance that the defense doesn’t really have a case. 611 qualifies leading questions w/ “ordinarily” b/c there are instances when leading questions are not allowed on cross. to get back on track.  2) If you call the other side’s witnesses in your case-in-chief. as in direct. CROSS EXAMINATION FRE 611: Mode and Order of Interrogation and Presentation (b) Scope of cross-examination – Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. nervous. If the Π calls the ∆ as a witness. the judge will not allow the ∆ ’s lawyer to use leading questions as freely on cross. etc.” o Four contexts in which judges allow attorneys to lead witnesses on direct examination:  1) To establish pedigree information • Educational background and occupation  2) To direct a witness’s attention to a relevant place and time • used to shift a witness’s attention to a new chapter of testimony  3) To help a witness who is hesitant. o Why would you want to call a hostile witness?  1) If you call the witness first you get to lead the witness b/f the other side can put the witness on the stand to take the sting out of any bad information.  4) Hostile Witnesses • Any witness who is evading questions or otherwise being uncooperative to such an extent that it is interfering w/ the eliciting of testimony. permit inquiry into additional matters as if on direct examination.

Recross Examination • Same rules apply as during cross-examination o the lawyer may use leading questions. whether called by itself or by a party (c) Objections – Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. and it may make the order of its own motion. or • 4) a person authorized by statute to be present. and all parties are entitled to cross-examine witnesses thus called.” Questions related to impeachment are always fair game on cross. Rehabilitation may include eliciting exonerating details or otherwise combating the negative information. or • 2) an officer or employee of a party which is not a natural person designated as its representative by its attorney. This rule does not authorize exclusion of (they must be included) • 1) a party who is a natural person.EVIDENCE OUTLINE o 2) The rule gives the judge discretion to expand the scope of cross. Redirect Examination • Redirect may also be used to “rehabilitate” the witness whose credibility was called into question on cross. • Redirect must focus on matters raised during cross. the cross-examiner must inquire about the new matters “as if on direct examination” – meaning NO leading questions. but are allowed. • Leading questions should be avoided. But under these circumstances. regardless of the subject matter of the direct testimony or the number of questions the witness was asked on direct. FRE 615: Exclusion of Witnesses At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. FRE 614: Calling and Interrogation of Witnesses by Court (a) Calling by court – The court may. (b) Interrogation by court – The court may interrogate witnesses. on its own motion or at the suggestion of a party. or • 3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause. call witnesses. 18 . • Only use if something came up in redirect that you did not address in your cross. o 3) Parties are allowed on cross to ask questions affecting the witness’s credibility – known as “impeaching. Only use if something came up in Cross that you did not address in your direct. but must stay within the scope of the redirect.

DEFINITION The attorney is drawing inferences or making conclusions that should be reserved for closing argument. The lawyer is asking the same question repeatedly in different ways. Cross-examination topic is beyond the scope of direct. The question tries to elicit more than one fact at a time. The question does not give enough detail to allow the witness to respond properly OR a term in the question has an unclear meaning. the judge must exclude them from the courtroom. The attorney who asked the question can object to the witness’s answer as non-responsive. ask the judge to strike that answer. and force the witness to answer the question posed. The question is too broad. This usually occurs on cross. These Q’s may also constitute harassing the witness. This danger is especially acute when: o 1) witnesses offer conflicting accounts of an event or o 2) when a party’s position depends on persuasive corroborating testimony. but not necessarily. the witness will tell a story instead of answering a specific questions. The attorney has already asked the question and the witness has already answered.EVIDENCE OUTLINE • • • “I wish to invoke THE rule” – this is the only procedural rule. The judge has NO discretion. Common 611 Objections OBJECTION Argumentative Asked and Answered Assumes a Fact Not in Evidence Beyond the Scope Calls for Narrative Calls for Speculation Compound Question Harassing/Badgering the Witness Improper Characterization of Testimony/Misstates the Testimony Leading Question Non-Responsive Answer Vague 19 . That means if either party makes a request to exclude witnesses. The attorney is asking a question that suggests a specific answer. The attorney is pretending to repeat testimony back to the witness as the basis for the next question. OR redirect is beyond the scope of cross. or arguing w/ the witness about his answer. These questions include a factual assertion that is imbedded into the question. insulting the witness for no purpose. The question asks the witness what other people may have been thinking or what might have been happening beyond the realm of the witness’s perception. but is altering the testimony.

. The witness must first state: o 1) He/she does not remember the answer to the question being asked. • • • • • • • • 612 Procedural Issues • 1) Procedures for determining which portions of a writing to admit when only part of the document relates to a witness’s testimony: o FRE 612: If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera. or o 2) before testifying. o The jury cannot use the document to establish substantive matters referred to in the document. but only if the writing is already admissible under the rules. the court shall make any order justice requires except that in criminal cases when the 20 . If the witness made no written record of her own the attorney can use a writing made by someone else. the judge may allow the lawyer to “lead” the witness even on direct examination. and o 2) Seeing the writing will “refresh her recollection. as long as the witness states that it will help him or her remember the necessary information. o Introduced for the limited purpose of assessing the witness’s credibility. and o introduce in evidence those portions which relate to the testimony of the witness. If the adverse party does choose to admit the writing into evidence. o inspect it. and order delivery of the remainder to the party entitled thereto. If a witness recalls the general outlines of an incident but is having trouble reciting details. courts have held – unless the writing is admissible on other grounds – the jury may use the writing only to assess the witness’s credibility.EVIDENCE OUTLINE REFRESHING A WITNESS’S MEMORY: • FRE 612: Writing Used to Refresh Memory If a witness uses a writing to refresh memory for the purpose of testifying. Any document can be used.. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. o cross-examine the witness thereon. if the court in its discretion determines it is necessary in the interests of justice An adverse party is entitled to o have the writing produced at the hearing. The lawyer can refresh the witness’s recollection with a document or other item. • 2) Remedies if a party refuses to produce a writing used to refresh recollection: o FRE 612: If a writing is not produced or delivered pursuant to order under this rule. The “refreshing” party may also introduce the writing into evidence. either o 1) while testifying. excise any portions not so related. o 612 trumps other rules of evidence when an adverse party invokes it.” The adverse party may introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible.

• Four Steps for refreshing a witness’s recollection • 1) Establish that the witness does not recall the answer to a question. The witness will examine the writing.. if the court in its discretion determines that the interests of justice so require. Ten Tactics to Combat Damaging Testimony • Klein’s Tactics o 1) Exclude the evidence o 2) Undercut the other side’s evidence – contradict or explain it away o 3) Co-opt – say that it’s correct. • Offensive o 1) Rebut the evidence o 2) Complete the story  Sometimes counsel can use cross to elicit positive information form a witness. IMPEACHING A WITNESS: Federal Rules • 607 – Allows parties to impeach any witness – including their own. Voir dire • The opposing counsel can ask to “voir dire” (examine) the witness on her recollection if it appears he/she is just reciting from the document. 3) The rule is subject to the Jencks Act. but useful for you too o 4) Attack the Messenger – instead of focusing on the message. o 3) Clarify the ambiguous testimony o 4) Introduce expert testimony about evidence • Defensive 21 . if a witness uses a writing. • Opposing counsel will try to show the judge that the witness does not independently recall the events recorded in the writing. • A witness w/ no independent recollection lacks the personal knowledge required by Rule 602. United States Code. • 609 – When a witness’s prior criminal convictions are admissible to impeach him/her. • 610 – Forbids an attorney from impeaching a witness b/c of his/her religious beliefs or opinions. • 3) Show the writing to the witness. o FRE 612: Except as otherwise provided in criminal proceedings by section 3500 of title 18. • 2) Describe the writing she wishes to use to refresh the witness’s recollection and ask if that writing would refresh the witness’s recollection. which governs discovery in federal criminal trials. completing the story in a way that helps her client. the order shall be one striking the testimony or. put it aside (usually giving it back to the attorney). focus on the messenger. • 4) Either before or during this process.. declaring a mistrial.EVIDENCE OUTLINE prosecution elects not to comply. • 608 – How to attack a witness’s character for credibility. and testify from her refreshed recollection. the attorney must be sure to give the opposing counsel a copy of the writing.

o Perception o Memory  Focus on what is missing and demonstrably inaccurate. • However. so they can’t reply. A party may not introduce evidence of a witness’s truthful character until that character has been challenged. including the party calling the witness.” Counter Moves • The opposing counsel can use all of the same techniques to “rehabilitate” his/her witness. o Ex. This is “attacking the messenger. • Impeachment and confronting a witness on cross are different o Impeachment is just one of the many means for confronting a witness on cross. Highlight this imperfection for the jury. confusion or delay (Rule 403) • FRE 607: Who May Impeach The credibility of a witness may be attacked by any party. If one of more of these is imperfect = impeachment. these counter-moves may be limited by the rules. but nothing that is helpful to this side.” • A witness must have four basic competencies. Then ask “doesn’t it seem that you remember all the things that are helpful to that side. o Narration o Sincerity (this is the key to impeaching the witness)  How to attack Sincerity  Show: • Bias • Prejudice • A witness’s testimony is improbable • Inconsistency • Contradict witness’s testimony w/ other evidence from other sources (not their testimony). USING PRIOR INCONSISTENT STATEMENTS TO IMPEACH: 22 . You want to bring this evidence up when the witness is not on the stand. o 10) Exclude the evidence by demonstrating unfair prejudice. • Their general character for truthfulness. The tool primarily used on cross is IMPEACHMENT.  Ask about all of the details they did not testify about.EVIDENCE OUTLINE o 5) Show impairment of perception or recollection o 6) Demonstrate inconsistencies o 7) Show bias o 8) Attack the witness’s character for truthfulness Appeal to judge or “referee” o 9) Exclude the evidence under a specific rule.

Non-Collateral Matter Non-Extrinsic Evidence Allowed Non-extrinsic evidence of PIS seeking to impeach on a noncollateral issues is ALWAYS admissible. or the interests of justice otherwise require. If a piece of evidence is used for both. the confronting attorney doesn’t have get the explanation if the witness is subject to recall. whether written or not. Allowed Subject to some outer limits under Rules 403 and 611 Extrinsic Evidence Allowed Subject to procedures in Rule 613 Collateral Matter Prohibited Under Rules 403 and 611. etc. it is non-collateral. • Another piece of evidence that needs to come in to impeach a witness. • Relevant to credibility ONLY – not relevant to the substantive issues at trial. used solely to impeach the witness’s testimony. This is just impeachment. • • FRE 613: Prior Statements of Witnesses (a) Examining witnesses concerning prior statement o In examining a witness concerning a prior statement made by the witness. Only admitted for purposes 23 . It is only used to attack the witness’s sincerity. evidence in the form of testimony or documents. o ex. • A non-collateral matter proves a fact in consequence other than impeachment.  but on request the same shall be shown or disclosed to opposing counsel (b) Extrinsic evidence of prior inconsistent statement of witness o Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless  the witness is afforded an opportunity to explain or deny the same (but it doesn’t say when. Collateral Matter • relevant to the case solely b/c it impeaches a witness.  the statement need not be shown nor its contents disclosed to the witness at that time. • Relationship b/n the evidence and the things that are at issue at trial.EVIDENCE OUTLINE Extrinsic Evidence (or non-extrinsic) • any evidence other than testimony from the witness currently on the stand.)  and the opposite party is afforded an opportunity to interrogate the witness thereon. Extrinsic evidence of PIS seeking to impeach on a collateral issues is NEVER admissible.

The opposing attorney will have to recall the witness to rehabilitate. the witness who made the prior statement must have:  1) an opportunity to explain the inconsistency. The lawyer need only disclose the statement to opposing counsel immediately b/f the lawyer brings up the statement on cross. Exceptions. If you need the evidence for a substantive issue you will have to get it admitted in a different way. but judges are more restrictive about introducing extrinsic evidence or PIS. • Substantive constraints on using extrinsic evidence o Judges give parties considerable freedom to ask witnesses about prior inconsistent statements. • “The Interests of Justice” o This exception is designed for the case in which a witness becomes unavailable after testifying but b/f introduction of the PIS. A judge will do this when the cross might otherwise create an unfair or inaccurate impression. REVEALING A CHARACTER FOR UNTRUTHFULNESS ON CROSS: FRE 404: Character Evidence Not Admissible to Prove Conduct. b/c an individual has a particular character trait. Judges are reluctant to apply this exception. but not to prove the content of the statement. the attorney can’t introduce extrinsic evidence that is merely collateral.  Exception: character for telling the truth. 24 . and  2) opposing counsel must have a chance to question the witness about that inconsistency. as well as to prepare to rehabilitate the witness. the person was likely to have acted in a particular way during a specific incident. o The FRE generally exclude character evidence. 608. except • (3) Character of witness – Evidence of the character of a witness. o Disclosure to the opposing counsel gives that lawyer a chance to raise any evidentiary objections. • Showing the Statement to the Witness o Judges sometimes exercise their general authority under Rule 611 to require a crossexamining attorney to show the statement to the witness. and 609. • Character Evidence – suggests that. • Limiting Instruction o Sometimes a statement is admissible to discredit a witness by showing an inconsistency. so it is better to confront the witness w/ the PIS when the witness is on the stand. • Procedural Constraints (613(b)) o If a party offers extrinsic evidence of a prior inconsistent statement. Other Crimes (a) Character evidence generally – Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. • Witness Denials  Even if the witness lies or denies the prior statement. as provide in rules 607. • Extrinsic Evidence and Rule 613(b) o An attorney can impeach a witness w/ a PIS after the witness has left the stand. • Disclosing the prior statement (613(a)) o Lawyers may surprise a witness by asking them without warning about prior inconsistent statements.EVIDENCE OUTLINE of impeachment.

o 2) Attorneys MUST limit these questions to actions that are “probative of truthfulness or untruthfulness. for the purpose of attacking or supporting the witness’s character for truthfulness. an attorney must have a good faith belief that the incident occurred. whichever is the later date. FRE 609: Impeachment by Evidence of Conviction of Crime (a) General Rule – For the purpose of attacking the character for truthfulness of a witness. Good Faith Belief o Before asking a witness about a specific incident suggesting untruthfulness. even if the evidence would not be admissible in court. • 1) evidence that a witness other than an accused has been convicted of a crime shall be admitted. • 2) evidence that any witness has been convicted of a crime shall be admitted regardless of punishment... but they may no introduce other evidence of those acts. however..” o 4) Bars proof of these specific instances by extrinsic evidence. evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. in the interest of justice.... unless the court determines.may not be proved by extrinsic evidence. if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. • 4 important points o 1) A party MAY ask a witness about “specific instances of conduct” on crossexamination to suggest that the witness has an untruthful character. other than conviction of crime as provided in rule 609.” (Relevancy) o 3) This type of cross-examination is in the “discretion of the court. may not be proved by extrinsic evidence. o .  Attorneys may cross witnesses about acts that suggest an untruthful character.EVIDENCE OUTLINE FRE 608: Evidence of Character and Conduct of Witness (b) Specific instances of conduct – Specific instances of the conduct of a witness.. that the probative value of the conviction supported by specific facts and circumstances 25 . subject to Rule 403.. if probative of truthfulness or untruthfulness. (b) Time limit – Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction.. if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. for the purpose of attacking or supporting the witness’s character for truthfulness. They may.. o A good faith belief is one that rests on some evidence. in the discretion of the court. be inquired into on cross-examination of the witness • (1) concerning the witness’s character for truthfulness or untruthfulness.. • USING CRIMINAL CONVICTIONS TO IMPEACH A WITNESS: • FRE 608: Evidence of Character and Conduct of Witness (b) Specific instances of conduct – Specific instances of the conduct of a witness..

and that person has not been convicted of a subsequent creim that was punishable by death or imprisonment in excess of one year. o Jury is limited to only considering the conviction to assess the witness’s character for truthfulness. certificate of rehabilitation.. or other equivalent procedure based on a finding of the rehabilitation of the person convicted... • The court may.. Rule 609 applies in civil cases as well. (d) Juvenile adjudications – Evidence of juvenile adjudications is generally NOT admissible under this rule. Three Rules for Three Categories of Witnesses and Prior Convictions • a) The first rule governs prior felony convictions used to impeach any witness other than the accused in a criminal case. however. or • 2) the conviction has been the subject of a pardon. o Burden on the prosecutor to show probative value outweighs prejudicial effect. Is less than probative value Rule 403 Admits the evidence Rule 609(a)(1) Admits the evidence 26 . not only when prejudicial effect substantially outweighs probative value. • • • We are only talking about convictions Extrinsic evidence OK . annulment.EVIDENCE OUTLINE substantially outweighs its prejudicial effect. (c) Effect of pardon. is NOT admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party w/ a fair opportunity to contest the use of such evidence. evidence of a conviction more than 10 years old as calculated herein. or other equivalent procedure based on a finding of innocence. and o The judge must make a distinctive finding that probative value outweighs prejudicial effects. (e) Pendency of appeal – The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. annulment. annulment. • b) The second applies to prior felony convictions used to impeach an accused. in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. Applies ONLY when a party uses a criminal conviction for a particular purpose: to suggest that a witness has an untruthful character. When Prejudicial Effect. used to impeach any witness. or certificate of rehabilitation – Evidence of a conviction is not admissible under this rule if • 1) the conviction has been the subject of a pardon. o Judge has NO discretion (even under 403). • However..You can bring in the document of conviction. Evidence of the pendency of an appeal is admissible.. o 609 excludes evidence whenever prejudicial effect equals or exceeds probative value. • c) The third addresses prior convictions for any crime of dishonesty or false statement. whether a felony or misdemeanor.

. and 2) Admitting is necessary for justice. • 4) Importance of the ∆ ’s Testimony • 5) Centrality of Credibility Three barriers to using convictions that are more than 10 years old • 1) The party seeking to use the conviction must give the adverse party advance written notice. unless 1) Witness is not the criminal ∆ .. EXCLUDE. • 3) The judge must determine “in the interests of justice.. unless 1) Probative value (as shown by specific facts) substantially outweighs prejudice (reverse 403 presumption). substantially outweighs its prejudicial effect. Is substantially less than probable value Is somewhat less than probative value Equals probative value Somewhat outweighs probative value Substantially outweighs probative value Rule 403 Rule 609(a)(1) Conviction LESS than 10 years old Admits the evidence Admits the evidence Rule 609(b) Any conviction MORE than 10 years old Admits the evidence Excludes the evidence Admits the evidence Admits the evidence Admits the evidence Admits the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Questions to ask (in order) 1) Has the witness received a pardon.EVIDENCE OUTLINE Equals probative value Somewhat outweighs probative value Substantially outweighs probative value Admits the evidence Admits the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Balancing Test Factors (affecting the probative value of the prior conviction) • 1) Impeachment Value of the Former Crime • 2) Timing of the Prior Conviction and Subsequent Criminality • 3) Similarity b/n the Prior Crime and the Charged One. AND 2) Prior was not “actual innocence” finding. that the probative value of the conviction. or certificate of rehabilitation? 2) Is the prior crime a juvenile conviction? 3) Is the crime over 10 years old? 4) Is the crime one of falsity? Applicable Rule 609(c) 609(d) 609(b) 609(a)(2) Applicable Action EXCLUDE..” When Prejudicial Effect. ADMIT 27 . annulment. unless 1) There has been a subsequent felony. EXCLUDE. • 2) judge must find specific facts supporting the conviction’s probative value.

Summary of one’s own personal experiences w/ an individual. o 3) A party may introduce evidence of a witness’s truthful character only AFTER that character has been attacked. “Character Witness” – Parties present “character witnesses” to offer evidence about the truthful or untruthful character of a fact witness. • The rule does NOT allow parties to ask character witnesses questions on direct examination that focus on specific examples of a fact witness’s untruthfulness. unless substantially prejudicial). not testimony giving specific instances of conduct related to a witness’s truthfulness or deceit. • • • • Opinion or Reputation Evidence • The Attorney must first lay a foundation by showing that the character witness knows the fact witness well enough to have formed an opinion about the fact witness’s truthful or untruthful nature. • Parties ARE allowed to cross-examine fact witnesses about incidents that might reveal untruthfulness.. Character: Based on many experiences w/ the person. “Fact Witness” – Parties present “fact witnesses” to establish facts related to the underlying legal dispute. ADMIT. but they may NOT elicit specific details from 28 . a “character witness” who testifies that the original witness has an untrustworthy character AND/OR presenting a character witness who opines that the original witness is a truthful person. but subject to these limitations: • 1) the evidence may refer only to character for truthfulness or untruthfulness. and they may present character witnesses who offer opinion or reputation evidence about the fact witness’s truthfulness. 3 caveats to this rule o 1) The rule only allows general opinion or reputation evidence of character. Reputation: What you’ve heard from others. and • 2) evidence of truthful character is admissible only AFTER the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.EVIDENCE OUTLINE 5) Is the crime a misdemeanor? 6) Is the witness the defendant? 7) Has the answer to every question so far been “No”? 609(a)(1) 609(a)(1) 609(a)(1) EXCLUDE. • • Presenting a separate witness.  NO SPECIFIC INSTANCES! o 2) A character witness may only offer opinion or reputation evidence about another witness’s character for truthfulness or untruthfulness. 403 analysis (presumptively admitted. • The Attorney will then ask the witness to give his/her opinion or the state the reputation.. OPINION OR REPUTATION EVIDENCE OF UNTRUTHFUL CHARACTER: FRE 608: Evidence of Character and Conduct of Witness (a) Opinion and Reputation evidence of character – The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation. if its probative value outweighs its prejudicial effect to the ∆ . Summary of a lot of people’s experiences w/ an individual.

RELIGIOUS BELIEFS AND IMPEACHMENT: FRE 610: Religious Beliefs or Opinions Evidence of the beliefs or opinions of a witness on matters of religion is NOT admissible for the purpose of showing that by reason of their nature the witness’s credibility is impaired or enhanced.” o On cross the attorney can ask questions about specific incidents. • “have you heard?” “are you aware. parties cannot rely upon this rule to attack that person’s credibility. o Impeaching credibility on cross is NOT focused on character.. • FOCUS on the difference b/n a witness’s character for truthfulness and the witness’s credibility when testifying about a particular matter.EVIDENCE OUTLINE the character witness on direct examination. • The judge can still exclude the evidence under Rule 403. she is stuck w/ the character witness’s answer on cross. the opponent has attacked the fact witness’s character for truthfulness. • The cross-examiner cannot ask these questions on cross unless: o She has a good faith basis for believing that the specific acts occurred. • An attorney who cross-examines a negative character witness can ask that witness whether he/she knows about various truthful acts committed by the fact witness. in spite of them. • The judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their probative value. • If the opponent conducts a cross of the fact witness and asks questions about specific acts of dishonesty under 608(b). and o She cannot offer extrinsic evidence of the specific act. CROSS-EXAMINING THE CHARACTER WITNESS • Rule 608(b)(2) allows parties to ask character witnesses on cross-examination about specific incidents of a fact witness’s behavior. The evidence is NOT admissible for other purposes. If the CW has heard of these truthful acts. she still believes that the fact witness has an untruthful character. When has Character been attacked? • If an opponent presents a character witness who testifies about the fact witness’s lack of truthful character. she has to explain why. or if the opponent introduces evidence of a conviction under 609. • Although the party who calls a character witness may not ask the witness questions about specific incidents on direct examination. if the evidence is more prejudicial than probative.. an opposing party may ask about specifics on crossexamination. Limited Purpose • This evidence is only admissible to assess the credibility of the witness’s courtroom testimony. such as establishing guilt or innocence. then character has clearly been attacked. Applicable only to witnesses • If an individual does not testify in court. 29 .

EVIDENCE OUTLINE • The rule bars evidence of religious beliefs only when offered to attack or buttress a witness’s credibility.. damages. such as bias. does NOT preclude evidence of religious beliefs when they are relevant to other matters.Gives the judge discretion CHARACTER EVIDENCE: Four Categories of “Character Evidence” • 1) Proof of a Witness’s Propensity to Lie or Tell the Truth • 2) Proof of Conduct by Propensity • 3) Proof of Character or Reputation by Elements • 4) Proof of Other Acts for Non-Propensity Purposes 3) EVIDENCE TO PROVE CHARACTER AS AN ELEMENT • Evidence used to prove character as an element of a crime. When character is an element of a crime. proof may be made by testimony as to reputation or by testimony in the form of an opinion. injury is allowable into relevant specific instances of conduct.. • Parties may prove character w/ reputation and opinion evidence and may introduce evidence of specific acts to show character as an element. 30 .. an adverse party may require the introduction at the time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. claim. RULE OF COMPLETENESS: FRE 106: Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party.. then ALL evidence related to that character is central to the case. There are 4 important aspects to this rule: • 1) qualifying portions of a writing or recorded statement may be introduced as soon as the opponent offers the first portion. (b) Specific instances of conduct – In cases in which character or a trait of character of a person is an essential element of a charge. The rule. however. or motive. • 3) May introduce whole writings or recordings when necessary to understand another document offered by the opponent. • On cross-examination. • 2) Only applies to writings and recorded statements. claim or defense. proof may be made of specific instances of that person’s conduct. • 4) Fairness principle . civil claim or defense. or defense. some oral statements are allowed. • The main question w/ this type of evidence is the method of proving the relevant character trait – how may a litigant present this evidence? FRE 405: Methods of Proving Character (a) Reputation or opinion – In all cases in which evidence of character or a trait of character of a person is admissible.

• 3) Criminal Entrapment o Defenses – lacked a predisposition to commit the crime. • 4) Negligent Entrustment o ∆ knew something about a third party’s character and negligently ignored that knowledge. then the parties will dispute whether those statements were true.. • Prosecution can only use propensity evidence in responding to the ∆ ’s use of propensity evidence. CHARACTER EVIDENCE TO SHOW PROPENSITY IN CRIMINAL PROSECUTIONS • The 2 exceptions to the “no propensity” rule apply only to criminal prosecutions. Exceptions 31 . Analyzing 404 • Key elements: The “purpose” for which the evidence is offered. FRE 404: Character Evidence Not Admissible to Prove Conduct. Exceptions: Other Crimes (a) Character Evidence Generally – Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.. • NO discretion unless it fits into an exception. a judge might hear evidence about the character of each parent. FRE 404: Character Evidence Not Admissible to Prove Conduct. USING CHARACTER EVIDENCE TO PROVE PROPENSITY • “Propensity” – The evidence suggests that.  If you know that the suspect has a propensity to do something and the police dangle it in front of the suspect. Give the ∆ every chance. • Not distinction b/n Civil and Criminal under 404(a). b/c a person had a tendency to act in a particular way.EVIDENCE OUTLINE • Evidence of specific conduct offered under 405(b) must satisfy the other rules of evidence. • Applies to “any” person – even to people who never appear in the courtroom. • “Mercy Rule” Policy: Both constitutional doctrine and C/L support the principle that criminal ∆ s should have as much latitude as possible to present a defense. When is Character an “element?” • 1) Defamation o If the allegedly defamatory statements concern the Π ’s character. A party cannot prove specific instances of conduct through a witness who lacks personal knowledge. that may be entrapment. • 2) Child Custody o Because the court must determine the best interest of the child. the person was more likely to have committed a particular act on a specific occasion.

Four KEY POINTS • 1) These exceptions to the no-propensity rule apply ONLY in criminal cases. • 2) The exceptions allow only proof of “pertinent” character traits.  The ∆ ’s honest character in a prosecution for fraud. o P has to speak for the homicide victim b/c they can’t speak for themselves. EXCEPT: • (1) Character of Accused – In a criminal case. • 4) The subsections distinguish b/n when the ∆ may introduce these types of evidence and when the prosecutor may do so. evidence of a pertinent trait of character offered o by an accused. and subject to the limitations imposed by Rule 412 o evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused. o Examples of pertinent character traits:  Violent nature of the victim in a self-defense case. • 3) These subsections of Rule 404(a) allow proof about both the ∆ ’s character and the alleged victim’s character. o ∆ can admit evidence of his good character and the victim’s bad character..  The ∆ ’s peaceful character in a prosecution charging assault. or o evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.EVIDENCE OUTLINE (a) Character Evidence Generally: Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. • The general rule applies to the prosecutor unless the ∆ opens the door by introducing evidence about the ∆ ’s own character or the victim’s character.  The ∆ ’s aversion to risk and gambling in a gambling prosecution. battery.. • (2) Character of Alleged Victim – In a criminal case. • The Prosecutor can introduce the victim’s character first in this instance: o For a charge of murder o Where the ∆ will argue that the Victim was the aggressor o P can show the victim’s character as a peaceful person. homicide or other violent acts. or o if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2). Character Evidence Admissible to Prove Propensity in Criminal Trials – Rule 404(a)(1) and (2) Type of Character When may the accused When may the prosecution offer this Evidence offer this evidence? evidence? 32 . or o by the prosecution to rebut the same. or o by the prosecution to rebut the same. • Prosecutor is only allowed to “stay w/in the frame of the door that has been opened” – meaning they can only speak to the traits the ∆ has already introduced. evidence of the same trait of character of the accused offered by the prosecution.

EVIDENCE OUTLINE
Pertinent trait of the accused Trait of Peacefulness of alleged victim Other pertinent trait of alleged victim Any time Not applicable: Accused would not introduce this evidence Any time, unless barred by Rule 412 (the rape shield law) To rebut evidence of the same trait offered by the accused, OR to match character evidence that the accused offers about the alleged victim In a homicide case: To rebut any evidence that the alleged victim was the first aggressor In other cases: To rebut character evidence that the victim was not peaceful. Only to rebut evidence of the same trait offered by the accused

Character Evidence Admissible to Prove Propensity in Criminal Trials – How the Prosecutor Can Respond: If the accused... Then the prosecutor can: Introduces evidence of his own good character... Introduce evidence of the ∆ ’s bad character for the same character trait. Introduces evidence of the victim’s bad Introduce evidence of the victim’s good character character... for the same character trait AND evidence of the ∆ ’s bad character for the same character trait. Introduces evidence that the victim in a homicide Introduce evidence of the victim’s peaceful case was the first aggressor... character.

Analysis Whenever you’re looking at evidence that appears to be character evidence, other than truthfulness, you the following judgment tree: • 1) Is this character evidence, other than character for truthfulness, being used to prove propensity? • 2) If so, is it allowed under 404(a)(1)-(2)? • 3) If so, is it offered in a form approved by 405(a)? METHODS OF PROVING PROPENSITY IN CRIMINAL CASES  This is the “how” of using propensity evidence other than to tell the truth. We have already looked at criminal instances. FRE 405: Methods of Proving Character (a) Reputation or opinion – In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct... • • Rule 608(a) controls proof of a witness’s propensity to lie or tell the truth, while Rule 405(a) governs situations in which Rule 404(a)(1) and (2) allow parties to make other propensity arguments in criminal trials. Testimony about the absence of specific facts, just like evidence of their presence, violates 33

EVIDENCE OUTLINE
• Rule 405. . Relevant Acts o Although 405 allows attorneys to cross-examine character witnesses about specific acts, the examiners may ask only about acts that are relevant to the character trait described by the witness. Good Faith Belief o The attorney must have a good faith belief that the incidents occurred in order to ask a witness a questions on cross. Extrinsic Evidence o If the witness denies knowledge of the conduct, the cross-examiner cannot introduce evidence that the conduct really occurred. o Under unusual circumstances, when a mistaken inference of bad behavior would be highly prejudicial, the judge might allow the affected party to introduce extrinsic evidence disproving the incident. Rebuttal Witnesses o In addition to cross-examining a character witness, the parties in a criminal case may present rebuttal character witnesses. o These character witnesses testify that the ∆ or victim has a character trait contrary to one presented by another character witness.

• •

OTHER CRIMES, WRONGS, OR ACTS • This evidence is NOT offered to prove character. Instead, parties present this evidence to prove some other fact relevant to the case. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (b) Other crimes, wrongs, or acts – Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that • upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. The rule allows parties to introduce evidence that delivers two separate blows: • 1) the evidence accomplishes its stated purpose, to prove identity, intent, motive, or a similar fact; • 2) assuming that the evidence shows a prior act that is bad or immoral, the jury may develop a negative view of the person.

Purposes the courts have recognized to support admission of other crimes, wrongs, and acts: • Motive  A prosecutor sometimes argues that a previous crime or other bad act is admissible b/c it motivated the charged crime. • Plan  Evidence showing a common plan or scheme. 34

EVIDENCE OUTLINE
• Identity  Admit evidence of prior bad acts b/c participants in those acts were able to identify the ∆ and link him to the charged crime. o “Signature Elements” of a crime may also allow the P to prove identity by introducing evidence of the ∆ ’s other crimes or bad acts.  If a charged crime has an unusual feature, and if the ∆ has engaged in other acts incorporating that feature, then these common characteristics tend to show the ∆ ’s identity as the perpetrator of the charged crime. o The identity prong of Rule 404(b) only works if two conditions are met:  1) Identity must be at issue; and  2) there must be strong similarities b/n the charged and other crimes. Opportunity  To prove that the ∆ had the opportunity to commit a crime like this, the P may offer evidence that the ∆ enjoyed access to the protected place or special tools on another occasion. Knowledge  P’s often cite “knowledge” as a purpose for introducing evidence of other crimes or bad acts when knowledge of a particular fact is an element of the crime. o As long as the other act evidence proves a relevant facts w/o using the propensity inference, the evidence is admissible regardless of what it is called. Intent  Evidence of other crimes, wrongs, or acts may also be admissible to prove that a ∆ possessed the intent necessary to commit a crime. “Preparation” overlaps w/ plan, knowledge and opportunity. “Absence of mistake” and “absence of accident” overlap w/ intent, motive, and knowledge.

• •

• • •

HABIT FRE 406: Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ the habit or routine practice. • • Habit refers to “specific, repeated responses to a particular situation or stimulus.” o An individual who is placed in a particular situation will respond over and over again w/ the same specific behavior. Reasons why habit evidence is admissible: o 1) habit evidence tends to be morally neutral, so there is less chance of unfair prejudice resulting from its admission. o 2) habit evidence has a higher probative value than propensity evidence. 3 factors to distinguish habit evidence from propensity evidence: o 1) The specificity of the conduct. o 2) The distinctiveness of the situation producing the conduct. o 3) The regularity of the conduct.

Not just admissible, but possibly sufficient • Where the only information about what happened on a particular occasion is evidence of habit. 35

EVIDENCE OUTLINE
In these situations, judges and juries routinely conclude that the habit evidence is sufficient to establish that the witness performed the disputed action in accordance w/ long-standing habit. Routine Practice of an Organization • Corporations and other institutions often have standard procedures for dealing w/ particular situations. This evidence can be used both as a sword and as a shield.

RAPE SHIELD LAWS: FRE 412: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition. • (a) Evidence Generally Inadmissible – The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): o (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. o (2) Evidence offered to prove any alleged victim’s sexual predisposition. • (b) Exceptions o (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:  (A) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;  (B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct • offered by the accused to prove consent or • by the prosecution; AND  (C) Evidence the exclusion of which would violate the constitutional rights of the defendant... o (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger  of harm to any victim and  of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim... • (c) Procedure o A party intending to offer this evidence must give notice to the court, opposing counsel, and the alleged victim fourteen days before the trial. o The court must hold a secret, sealed proceeding involving both parties and the alleged victim in order to determine whether the evidence is admissible. • 4 important points re: section A o 1) Rule applies to BOTH civil and criminal proceedings; o 2) Rule applies ONLY to trials “involving sexual misconduct.”  This is generally broadly interpreted and can include kidnapping if there is 36

EVIDENCE OUTLINE
intent to molest, sexual battery or sexual harassment claims. o 3) Rule bars both types of evidence:  “Other Sexual Behavior”  Evidence of Specific Acts  “Sexual Predisposition”  Evidence of reputation and general character o 4) Rule broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which the litigant offers that evidence.  bars designated types of evidence when offered for ANY purpose EXCEPT those outlined in a few narrow exceptions. EXCEPTIONS • Criminal o None of the exceptions admit evidence if a rule other than Rule 412 bars the evidence. o Evidence of prior sexual encounters b/n the alleged victim and the ∆ may be offered by the ∆ ONLY for the purpose of proving consent.  However, the Prosecutor may offer this evidence for any purpose. • The P can offer evidence of other non-consensual encounters b/n the ∆ and the V in order to show a ∆ ’s motive, intent, identity, or any other relevant fact recognized by Rule 404(b).  “Sexual Behavior” has been liberally interpreted by courts to include: • Any kind of intimate contact b/n the complainant and the ∆ • “Statements in which the alleged victim expresses an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused.” o “Catchall” Exception (412(b)(1)(C)) is most often invoked to show that the alleged victim has made prior false claims of sexual assault.  Also used to argue that the complainant manufactured a rape claim to protect an existing intimate relationship.  Most courts reject the ∆ ’s use of the catchall exception to offer evidence of the victim’s “promiscuous” reputation to prove that the ∆ reasonably believed that she consented to sexual contact w/ him. • Civil – 4 key points o 1) Subject to all other rules of evidence o 2) “Reverse 403” Test – The evidence is admissible ONLY if its probative value substantially outweighs the unfair prejudice to any party. o 3) Ensures that the court weighs the danger to the alleged victim, whether or not she is a party to the litigation. o 4) Reputation evidence is only admissible if the alleged victim has “opened the door” by presenting evidence of his/her own reputation.

PROPENSITY IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES • Rules 413, 414, and 415 are exceptions to the general rule barring propensity evidence under Rule 404(a). • 413 – allows P to introduce evidence of other sexual assaults committed by the ∆ and to use that evidence for any purpose, including to suggest that the ∆ has a propensity to commit 37

evidence of the ∆ ’s commission of another offense or offenses of sexual assault [child molestation] is admissible... FRE 413 [414]: Evidence of Similar Crimes in Sexual Assault [Child Molestation] Cases (a) In a criminal case in which the ∆ is accused of an offense of sexual assault [child molestation].Do not override other rules such as hearsay and privilege. o 3) Admissible for any relevant purpose. including propensity. • FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicted on a party’s alleged commission of conduct constitution an offense of sexual assault or child molestation. 403 Analysis is difficult b/c the rule tells the court this type of evidence is probative. • • • These rules do NOT require that the prior act resulted in a criminal charge or conviction. 414 – P may introduce evidence of other child molestations and argue that the ∆ has a propensity to molest children. • 3 point to note about Rules 413(a) and 414(a) o 1) Apply only to criminal cases of sexual assault or child molestation o 2) Allows admission of a single type of evidence – other acts of SA or CM.EVIDENCE OUTLINE • • sexual assaults. regardless of whether formal charges were ever brought for the prior conduct. There is NO time limit under these rules. although a judge may exclude conduct that occurred many years ago under Rule 403. and may be considered for its bearing on any matter to which it is relevant. evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible an may be considered as provide in Rule 413 and Rule 414 of these rules. Any conduct that constitutes an “offense” of SA or CM is admissible under these rules. (b) Special disclosure procedure – P must give the ∆ notice of the evidence it plans to present. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. 415 – Allows the same evidence and propensity reasoning in civil cases involving sexual assault or child molestation. (d) Defines “Sexual Assault” or “Child Molestation” • SA – physical. 413(c) and 414(c) . In a 403 analysis the courts will consider: o The length of time that has passed since the other acts o Reliability of the witness testifying about the other acts o Similarity of the other acts to those charged PRELIMINARY DETERMINATIONS • The evidence comes in IF. rather than verbal conduct • CM – child defined as a person below the age of fourteen. 38 .

or subject to. or when an accused is a witness and so requests. the trial judge performs only a screening function on the sufficiency of the evidence. but not if the factual predicate is false.. lawyers call this conditional relevance.  104 gives the jury authority to resolve this type of factual dispute. the judge decides all preliminary questions related to the admissibility of evidence. o Under these circumstances.... by testifying upon a preliminary matter. subject to the provisions of subdivision (b). the existence of a privilege. • The rules of evidence do not apply to preliminary determinations – the judge may consider any evidence. the introduction of evidence sufficient to support a finding of the fulfillment of the condition. In making its determination it is not bound by the rules of evidence except those with respect to privileges. Hearings on other preliminary matters shall be so conducted when the interests of justice require. (d) Testimony by accused – • The accused does not. the trial judge decides the factual issue w/o any deference to the jury. (b) Relevancy conditioned on fact – • When the relevancy of evidence depends upon the fulfillment of a condition of fact. when resolution of the factual issue does not affect relevance. (e) Weight and Credibility – • This rule does not limit the right of a party to introduce b/f the jury evidence relevant to weight or credibility.. become subject to crossexamination as to other issues in the case. For questions of conditional relevancy. (c) Hearing of jury – • Hearings on the admissibility of confessions shall in ALL cases be conducted out of the hearing of the jury. the court shall admit it upon. FRE 104: Preliminary Questions (a) Questions of admissibility generally – • Preliminary questions concerning the qualification of a person to be a witness. 39 . • The judge will ask whether enough evidence exists that a reasonable jury could resolve the factual dispute in a manner that fulfills the condition and makes the evidence relevant..  The evidence is relevant if a factual predicate turns out to be true.. • 2) The factual disagreement affects existence of a policy concern that would bar admission of admittedly relevant evidence.. Rule 104 divides preliminary determinations into two categories • 1) Whether evidence is relevant? o When a factual dispute affects the relevance of evidence.EVIDENCE OUTLINE General Rule – Except for issues of conditional relevance. or the admissibility of evidence shall be determined by the court.

o ex. the parties may dispute the evidence’s weight at trial. (Including a 5th A protection) • 4) The judge decides issues of law on her own. The jury then determines both whether the factual condition is met and. • 3) Except privileges. and the ∆ denies those assaults. o c) Factual Determinations under Rule 412  The exceptions to 412 that allow the ∆ to introduce evidence generally lead to a factual dispute. how the evidence affects its decision in the case. • 2) Rule 104(a): Questions of Admissibility Unrelated to Relevance o a) Timing of Remedial Measures under Rule 407 o b) Whether repeated conduct is propensity or habit under Rule 406 o c) Other 401(a) Determinations  408 – Existence of a dispute or compromise negotiations 40 . Even if the judge admits evidence. meaning the judge will have to decide whether the predicate falls under 104(a) or (b). the conflict affects the relevance of the proffered testimony. Policy based restraints on letting evidence in. Could a reasonable jury find the predicate? • 9) Rule 104(a) – governs all other preliminary factual disputes. • 10) 403 Still applies Analyzing Rule 104 • 1) Rule 104(b): Relevance Depending upon the Fulfillment of a Condition of Fact. if it is. o a) Personal Knowledge under Rule 602 o b) Evidence of Other Acts under 404(b)  Trial judges admit “other act” evidence as long as a reasonable jury could find the factual condition that makes the evidence relevant. • 6) The person offering the evidence has the burden of proving the predicate by a preponderance of the evidence. w/o any reference to what the jury might think. does it meet the threshold to get to the jury? • 2) The Rules of Evidence do NOT apply to PDs. • 7) 2 types of preliminary factual determinations • 8) Rule 104(b) – governs factual disputes that bear on the relevance of evidence – conditional relevance. These disputes center on whether the facts invoke a policy-based restraint on the admissibility of otherwise relevant evidence.EVIDENCE OUTLINE • • The rules of privilege DO apply to preliminary determinations. o d) Other sexual assaults by ∆ under Rules 413-415  If a P or Π offers evidence of other SAs committed by the ∆ . the judge decides whether a particular crime is a crime of “dishonesty or false statement” under Rule 609(a)(2) • 5) Preponderance of the Evidence standard governs all PDs of fact (even if it is a criminal trial). 10 Things to Keep in Mind: • 1) All preliminary determinations are made by the judge. And if under (b). o Judge allows the jury to decide matters of conditional relevance.

3) Standard of Proof o The Supreme Court has held that a simple preponderance standard applies to all preliminary factual issues resolved under Rule 104.    • • • Will the relevance turn on the fact? If no  B to the Jury. hospital. the judge usually resolves the factual issue at the same time that he applies Rule 403. 5) Rule 403 o If a preliminary factual dispute falls w/in Rule 104(a). o The judge will ask: “Whether the fact governing admissibility has been established by a preponderance of the evidence. or similar expenses” 410 – Whether a plea discussion occurred that would shield statements 608 or 405 – Whether a questioner has a good faith belief for questions posed on cross. AFTER MIDTERM  HEARSAY WHAT IS HEARSAY AND WHY DON’T WE LIKE IT? • Firsthand reports are more reliable than secondhand ones.” 4) Burden of Proof o Judges usually place the burden of proof on the party offering evidence. (802) o 3) Is this really “hearsay” or a 801(d) exclusion/exemption to the definition of hearsay?  Prior Statement by Witness  Admission by party-opponent o 4) Does an exception apply? (803) o 5) Is there a 6th Amendment problem? FRE 801: Definitions 41 . • 4 reasons to be suspicious of a person’s information: o Perception o Memory o Clarity o Sincerity • Analysis: o 1) Define what we know is hearsay  1) Does the evidence contain a statement?  2) Did that statement occur outside the courtroom?  3) Is the party offering the statement to prove the truth of the matter asserted? o 2) Start with the general rule that Hearsay not allowed.EVIDENCE OUTLINE 409 – Whether a ∆ offered to pay “medical.

ALL out-of-court statements are hearsay! Even if a witness quotes her own out-of-court statement! FRE 802: Hearsay Rule Hearsay is NOT admissible except • • • as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress • • THE “TRUTH OF THE MATTER ASSERTED • What do we mean when we say “for the truth of the matter asserted”? o Ask “if I assume the content of this statement is a lie. it is hearsay. o If the declarant makes a statement reporting the information outside the courtroom. • Common Purposes for out-of-court statements that do not depend on the truth of the matter asserted. even if it’s a lie. the truth of the statement is irrelevant to the party’s purpose. • The statement is only w/in 801(c) if the witness is offering the statement for the TRUTH of the matter asserted. 42 . Under these circumstances.EVIDENCE OUTLINE (c) Hearsay – “Hearsay” is a statement. the statement is NOT hearsay. the statement is not hearsay. not the FALSITY. • other than one made by the declarant while testifying at the trial or hearing. offered in evidence to prove the truth of the matter asserted. then you are not using it for truth of the matter asserted. an out-of-court statement is admissible to prove any fact that does not depend on the truth of the matter asserted. do I still want that evidence in?”  If you still want the evidence.. and someone repeats the statement at trial. Statements like these are not hearsay if offered for the purposes identified below: o Knowledge o Notice o Publication o Effect o Legally Binding Statements • As long as the other purpose is relevant to the dispute. If the declarant offers that information while testifying at trial. • Important parts of the definition o 1) Hearsay requires a statement (oral or written) o 2) Where was the statement made? (out of court) o 3) Why is the statement being put into evidence? (for the truth of the matter asserted) A declarant (the person who makes the statement) is a person who has firsthand information about a fact relevant to the lawsuit.. o If a party introduces an out-of-court statement only to demonstrate that the statement was made.

o Admissibility depends on what they portray. the judge will explore whether that information incorporates a human assertion. o Assertive behaviors  Nodding your head = Yes  Pointing = “I want that” “look at that”  These actions are statements b/c a party could offer them to prove the truth of the matter they assert. o Non-assertive behaviors – are not meant to assert a fact  ex. o The declarant is not in the courtroom. not can adverse parties cross-examine the recorded declarants. • Declarants can also make statements through actions. the tape is analogous to a witness who repeats out-ofcourt assertions. wearing a coat is not meant to communicate a fact to someone else. The key is whether the declarant intended to communicate a fact through her conduct. then the assertion is a statement subject to the hearsay rule. o When evidence consists of information conveyed by a machine. FRE 801: Definitions The following definitions apply under this article: • (a) Statement – A “statement” is o (1) an oral or written assertion or o (2) nonverbal conduct of a person. o Even if a videotape or photo includes spoken or written words. the proponent rarely introduces the evidence for the truth of the matter asserted. o The form in which the statement is made doesn’t matter so long as it is communicative. then the machine’s output is not an assertion by a person. If a person communicated a fact through a machine. • An assertion is any action undertaken by the declarant that is intended to communicate a fact. then those assertions are statements subject to the hearsay rule. Audiotapes o Those assertions are statements. offered for the truth of the matter asserted.  Picking someone out of a lineup is assertive and therefore hearsay. Machine Readouts o Information conveyed by a machine usually is not a statement.Assertions hidden within some actions. Most photos and videotapes shown in the courtroom do not portray human assertions. if it is intended by the person as an assertion. Photographs and Videotapes o If a photo or videotape does convey verbal assertions or assertive behavior. Implicit Assertions . • • • If a statement is “ambiguous” the court will look at the context to see if the declarant intended to assert a fact through her actions.EVIDENCE OUTLINE WHAT IS A STATEMENT? • The hearsay rule applies to BOTH written and oral communications. o If the machine generated information according to its own internal processes. Jurors cannot fully assess the declarant’s demeanor. o Inadmissible only if a litigant offers them for the truth of the matter asserted. 43 • • .

or in a deposition • (B) Consistent w/ the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or 44 . HEARSAY EXEMPTION – PRIOR STATEMENTS BY WITNESSES • Usually when a party attempts to introduce a witness’s prior statement instead of asking the witness to testify directly. and  2. o 3) Rule 803 exceptions depend substantially on reliability rather than the need for the evidence. o 2) Some hearsay statements are more needed than others.. Prior statements by witnesses. • 4 Categories of Exceptions: o 1) Rule 801(d) defines two types of out-of-court statements as “not hearsay. • The person who made the PIS must be a witness at trial. FRE 801: Definitions The following definitions apply under this article: • (d) Statements which are not hearsay – A statement is not hearsay if o (1) Prior Statement by Witness  The declarant testifies at the trial or hearing  and is subject to cross-examination concerning the statement. 801(d) categories are a distinct class of admissible hearsay.EVIDENCE OUTLINE ADMISSIBLE HEARSAY • All of the hearsay exceptions rest on two axioms: o 1) Some hearsay statements are more reliable than others. hearing. • Many hearsay exceptions strike this balance in favor of admissibility.  High indicia of reliability allow admission of these statements regardless of the declarant’s availability.  and the statement is • (A) Inconsistent with the declarant’s testimony. • If the PIS was made in a serious setting we will let the jury hear both. so that they can decide.”  1. Statements made by opposing parties.  Apply whether or not the declarant is available to testify. b/c they are still hearsay. it is b/c the witness cannot – or will not – make the same statement on the stand. or other proceeding.  It is best to understand these two statements as “exemptions” to the general hearsay rule. o 2) Rule 804 recognizes five exceptions to the hearsay rule that apply only if the declarant is unavailable to testify in court.. especially if circumstances suggest that the needed statement is more reliable than other types of hearsay. rather than exceptions. o 4) Rule 807 creates a residual exception that allows courts to admit some statements that fall outside the other 30 exceptions but have similar guarantees of truthworthiness. and was given under oath subject to the penalty of perjury at a trial.

Admitting Prior Statements under Rule 801(d)(1) Prior statement must have been made by a witness at the current proceeding Witness must be subject to cross-examination • Witnesses w/ real or feigned memory loss are “subject to cross. o IF an opposing party accuses the witness of lying.” Prior Inconsistent Statement: Prior Consistent Statement: Identification: 801(d)(1)(A) 801(d)(1)(B) 801(d)(1)(C)  Memory failure constitutes  Must be offered to rebut  Must be an identification of a inconsistency. express or implied charge of person. counsel may rebut that accusation by introducing prior consistent statements that corroborate the witness’s testimony. and o C) Pre-trial identification of a person. o B) Statements that are inconsistent w/ that testimony. 801(d)(1)(C) – Out-of-Court identifications are more reliable than in-court identifications. o These requirements enhance the prior statement’s reliability. statements to police and  Do NOT have to be in a 45 . o A) Statements that are inconsistent w/ the witness’s courtroom testimony. and o 3) It occurred at a deposition or during a trial. testimony count as proceedings. hearing or other proceeding..” • Witnesses who claim privilege selectively may be “subject to cross. (C) one of identification of a person made after perceiving the person. o 2) It was made under oath.  If the Witness invokes his/her 5th Amendment privilege then he/she is NOT available for cross. been made b/f the motive to fabricate or improper influence  Grand jury and deposition began.EVIDENCE OUTLINE • • improper influence or motive. the rule recognizes three types of prior witness statements that are admissible.. 801(d)(1)(A) thus exempts a witness’s prior statement if the statement satisfies three conditions: o 1) It is inconsistent w/ the witness’s current testimony.. • • • • 801(d) established two conditions that must be met to admit any statement under that section: o 1) The declarant must testify at the trial. given under oath subject to penalty of perjury at a hearing  Prior statement must have or other proceeding.” • Witnesses who assert a blanket privilege are not “subject to cross. 801(d)(1)(B) maintains the hearsay ban when a prior consistent statement would merely repeat the witness’s testimony. recent fabrication or improper  Statement must have been influence or motive.. If these conditions are met. and o 2) the declarant must be subject to cross-examination on the statement.

or immediately thereafter. • The standard is subjective rather than objective: the particular declarant must have been excited by the event. even though the declarant is available as a witness: • • (1) Present Sense Impression – A statement describing or explaining an even or condition made while the declarant was perceiving the event or condition. o No qualitative analysis.  2) An excited utterance must “relate to” the startling event. o 803(2) contains a different set of prerequisites:  1) The declarant must speak while excited by a startling event. not merely to impeach a witness. HEARSAY EXCEPTIONS – PRESENT SENSE IMPRESSIONS AND EXCITED UTTERANCES • Declarant does NOT need to be available to testify! • These statements have special indicia of reliability. Statements are admitted for the truth of the matter asserted. as a class. Present Sense Impressions o Statements that describe an event as it unfolds (ex. 46 • • .EVIDENCE OUTLINE investigators do NOT count. FRE 803: Hearsay Exceptions. the declarant must make it while perceiving the event or “immediately thereafter.  2) For a statement to qualify as a PSI. (2) Excited Utterance – A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. not to more complex analyses or interpretations. o These rules are based on the assumption that b/c there is a limited amount of time b/n the event and the statement.. proceeding under oath. • Unrelated comments are not admissible under this exception. sports commentator) o 803(1) imposes two conditions that define present sense impressions:  1) The exception applies only to descriptions or explanations of an event.. each type of statement is more reliable than the usual out-of-court statement. Availability of Declarant Immaterial The following are not excluded by the hearsay rule.  Only have to be consistent w/ trial testimony that is under attack.” Excited Utterances o Come from excited people responding to a startling event. even if the declarant makes them while still excited. • When this evidence is admitted it becomes a question of fact for the jury to determine if the evidence is credible. the declarant does not have the opportunity to formulate a lie.

and if it is offered to prove the truth of the matter asserted. even though the declarant is available as a witness: • (3) Then existing mental. o but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. or physical condition – A statement of the declarant’s then existing o State of mind. Or if evaluative terms are used in the comments does it bar the statements. FRE 803: Hearsay Exceptions. We use a 104 hearing to determine if EU or PSI are admissible. mental feeling. These exceptions really matter in terms of 911 calls. o Exception to the Exception: An out-of-court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity 47 • • • • .. plan motive. pain. o Sensation.. revocation.  MUST be Contemporaneous and Forward Looking! CAN’T look backward in time. or terms of declarant’s will. emotional.  The statement is some evidence that the person actually acted in the manner they intended. State of Mind o One’s state of mind is an intention to do something. identification. Exceptions o Statements of memory or belief are not admissible under this exception when they are offered to prove the fact remembered or believed. and bodily health). then the exception lets this statement in. Availability of Declarant Immaterial The following are not excluded by the hearsay rule. Judge decides outside the presence of the jury. o Emotion.EVIDENCE OUTLINE • • o If your excitement winds down then you have time to formulate a response. Broad Application – it is hard to imagine any mental state that Rule 803(3) overlooks. HEARSAY EXCEPTION – STATE OF MIND • The contemporaneous expression of an internal state is analogous to the immediate reporting of an external event. design. or o Physical condition (such as intent. 104(a) not turning on relevancy b/c these statements are likely relevant.

as circumstantial evidence of the declarant’s mental condition.” o Backward looking so not admissible. • D said “I plan to rob the 7-11” o Is this admissible if D actually robbed the 7-11. instead. the statement isn’t hearsay. o You can parse out the statement “I’m really excited. Hillmon Case & Implicating 3rd parties with your State of Mind Statements • Your present statement of your intention may used to prove some evidence that you acted in accordance with your statement. If a party introduces a statement.” • “My leg started hurting yesterday. it is admissible? Yes. It is relevant to the question that her leg was injured on Monday. • If you mention someone else the evidence may be used against them as well b/c it is relevant and it shows your state of mind. it would be admissible. if it hurt on Tuesday. Courts redact out-of-court statements to admit the phrases in which a declarant expresses a state of mind and exclude others falling outside any hearsay exception. It goes to the person’s plan. then it is inadmissible. Out-of-court declarations are hearsay only when a party offers them to prove the truth of the matter asserted.” o If it is being offered to prove that he did go to work for the US attorney’s office.  Admissible b/c it is a description of their state of mind and current intention. Direct evidence of the intention and circumstantial evidence of the act.” If she made the statement on Tuesday.EVIDENCE OUTLINE • • of the declarant’s will. o Focus on the purpose for which a party offers the statement in evidence. even though the declarant is available as a witness: • (4) Statements for purposes of medical diagnosis or treatment – Statements made for purposes of medical diagnosis or treatment and 48 . o But what if the law suit turns on whether G’s leg hurt on Monday. Statements: • “Jerry and I are going to rob the First National Bank next Thursday.” o Is this admissible against Jerry? Yes under Hillmon • “I’m really excited b/c I will be starting my new job with the US attorney’s office. FRE 803: Hearsay Exceptions. HEARSAY EXCEPTION – MEDICAL TREATMENT • This provision admits out-of-court statements made to obtain medical diagnosis or treatment. Availability of Declarant Immaterial The following are not excluded by the hearsay rule. • Almost any statement made by a patient that appears in a medical record is admissible under 803(4). o If the statement is used to determine his state of mind in determining if he was suicidal or not.

The rule allows parties to admit statements made to doctors who they consulted purely to prepare for litigation. and thus admissible under 803(4). or o past or present symptoms. Child Abuse Cases o Some courts have found the perpetrator’s identity pertinent to treatment. Statements blaming specific individuals for the cause. ongoing abuse may include separation of the patient form the abuser. • • • • • • • • • HEARSAY EXCEPTION – RECORDED RECOLLECTION • 803(5) allows admission of “recorded recollection. in one of two ways. o 2) Who can they be speaking to? Does it have to be a Dr. o 4) Applies to both treatment and diagnosis. or o the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. when you are incapacitated. 4 things to keep in mind o 1) Who can make the statement falling w/in the medical exception?  You OR a person that takes you to the Dr. o 3) What scope of information is covered?  That which is necessary for medical treatment.” (ex. o 2) The statements must be reasonably pertinent to diagnosis or treatment. or attributing a particular degree of fault to those individuals.  2) Effective psychological treatment of an abuse victim may require the doctor to know who caused the abuse. Thus. and 49 . No time limit  this exception does not limit the declarant’s statements to contemporaneous expressions. Most courts extend 803(4) to psychological conditions too. o Be aware of the line b/n cause and fault buried in the statement. Anyone you are speaking to when you have the intent to convey medical information to get treatment. when you write down a license plate number) • Recorded Recollections are considered reliable b/c o 1) they were made when the declarant’s memory was fresh. or sensations.EVIDENCE OUTLINE o describing medical history. pain.  1) Treatment of a patient suffering regular. Making a statement to a non-doctor may be admissible if it was to enlist the person’s help in securing medical care for you. Any speaker in the shoes of the person who need medical treatment or diagnosis. usually are NOT relevant to medical care. and o 3) The statements must fit w/in one of the three categories listed by the rule. the identity of the abuser is pertinent to formulating the appropriate treatment. 3 requirements o 1) Declarant must make the statement for the purposes of getting a medical diagnosis or treatment. or a Nurse?  No.

the party presenting the evidence must ask the witness to read the document into the record. under oath. o 2) Witness testifying must either be the declarant or a person who saw the record and agreed that it was true. o 3) Witness must testify that she once had knowledge about the information contained in the record. 50 • • • • . Unlike the other Rule 803 exceptions.” o 5) Testify that at the time the record was made she knew it accurately reflected the knowledge that she had. may choose to introduce the document as an exhibit. This satisfies 602’s personal knowledge requirement. 803(5) does NOT allow the party offering a recorded recollection to introduce the document directly into evidence as an exhibit. o An adverse party. Refreshing Recollection Compared to Recorded Recollection Rule 612: Refreshing Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge. FRE 803(5) – Recorded Recollection The following are not excluded by the hearsay rule. Instead. Six requirements for admissibility o 1) The declarant must have memorialized the recollection in some way. (5) requires that the declarant actually be available. and that she made or adopted the record at the time when she had knowledge. even though the declarant is available as a witness: • (5) Recorded Recollection – A memorandum or record concerning a matter o about which a witness once had knowledge o but now has insufficient recollection to enable the witness to testify fully and accurately. o 4) Made or adopted the record when the memory was “fresh. Rule 803(5): Recorded Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge. however. and subject to cross-examination. The exception only applies when the witness can no longer recall the information that was recorded. o 6) Witness must have no recollection about the information contained in the record.EVIDENCE OUTLINE • o 2) the declarant is available to testify in the courtroom. o shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory o and to reflect that knowledge correctly. the memorandum or record o may be read into evidence o but may NOT itself be received as an exhibit unless offered by an adverse party. If admitted. b/c the rule applies ONLY when the declarant testifies as a witness.

For the jury to consider the writing for the truth of the matter asserted.” FRE 803(5): Business Records The following are not excluded by the hearsay rule. Recording must correctly reflect witness’s personal knowledge at time it was recorded. so there is no hearsay issue. the witness need not have created or adopted the material. then testifies orally w/o referring further to evidence. If adverse party introduces writing into evidence. Relationship to Hearsay: Witness testifies directly from memory after refreshment. HEARSAY EXCEPTION – BUSINESS RECORDS • Two reasons to believe that business records are more reliable than other kinds of hearsay: o 1) Most documents are generated as “routine practice. even though the declarant is available as a witness: 51 . • The exception admits nearly every document that an organization generates in the ordinary “course of business.” o 2) Documents are used to make important company wide decisions that can cost a lot of money. Relationship to Hearsay: Statements contained in the record are admitted as an exception to the hearsay rule.e.. Who May Introduce Evidence Used to Refresh: Only adverse party (i.. it is admissible only on the issue of credibility. FRE 805: Hearsay Within Hearsay Hearsay included within hearsay is NOT excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. it must fall w/in a hearsay exception.e. The jury may consider the content of document or other recording. What Type of Document or Recording: One that the witness “made or adopted” when the matter was “fresh” in the witness’s memory. party that did not call witness). Who May Introduce Recorded Recollection: Only adverse party (i. What Type of Evidence: Any writing or other evidence that will help witness remember.EVIDENCE OUTLINE What Witness Does: Looks at evidence (usually a writing) to jog memory. party that did not call witness). as read into record by witness. What Witness Does: Reads into record information from a document or other recording. for the truth of the matter asserted. RULE 805 – HEARSAY WITHIN HEARSAY • Rule 805 allows hearsay within hearsay to be admitted as long as each out-of-court statement is admissible under an exception.

or data compilation. report. or by certification that complies with Rule 902(11). • 2) The record was kept in the regular practice of business. HEARSAY EXCEPTION – PUBLIC RECORDS FRE 803(8): Public Records & Reports The following are not excluded by the hearsay rule. whether or not conducted for profit. opinions. of acts. in any form. and calling of every kind. o 4) A qualified witness must introduce the record into evidence.  The witness lays a foundation for the documents by testifying that: • 1) The record was kept in the course of a regularly conducted business activity. report. association. information admitted under this exception must have been recorded by  a) a person w/ personal knowledge of the data. or diagnoses o made at or near the time by. and if it was the regular practice of that business activity to make the memorandum. a person with knowledge. events. and • 3) The record was made by a person with personal knowledge of the recorded information or from information transmitted by a person with personal knowledge. or  b) a person who received that information from someone else in the organization w/ personal knowledge. o 803(6) has six major parts o 1) Includes almost any kind of information that an organization documents. o 5) Records are not admissible if “the source of the information or the method or circumstance of preparation indicate lack of trustworthiness. Rule 902(12). or from information transmitted by. and the organization must have a regular practice of keeping such records. o all as shown by the testimony of the custodian or other qualified witness. The term “business” as used in this paragraph includes business. regardless of format. o if kept in the course of a regularly conducted business activity.EVIDENCE OUTLINE • (6) Records of regularly conducted activity – A memorandum. occupation. o unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. o 2) To meet 602’s personal knowledge requirement. Any person with the necessary knowledge to lay a proper foundation for admission of a document is qualified to introduce the document. even though the declarant is available as a 52 .  “Custodian” – the person who maintains the record for the organization. conditions.” o 6) The term “business” is interpreted very broadly. institution. profession. or a statute permitting certification. record or data compilation. record. o 3) The organization must have made the record in the course of regularly conducted business activity.

or o (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report. not just 803(6). o Information from 3rd party outsiders reported to the agency is excluded. Subsection B o Applies only to matters that the agency has a DUTY to observe and report. excluding. unless the sources of information or other circumstances indicate lack of trustworthiness. o 2) The special skill or experience of the official conducting the investigation. statements. or o (C) in civil actions and proceedings and against the Government in criminal cases. even if they are made by law enforcement. 53 • • • • • • . o 3) Ensures that the investigator was performing an official function and t/f acting in the public interest in preparing the report. whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation. (Branches of the government) o 2) If you do have a public record.” o “routine non-adversarial matters” are admissible. however. o 4) Results of a government investigation are not admissible if a trial judge finds a “lack of trustworthiness. in criminal cases matters observed by police officers and other law enforcement personnel. and o 4) Whether the motivation of the public agency is suspect – for example. or data compilations. factual findings resulting from an investigation made pursuant to authority granted by law. The ∆ may use public records and reports. o 3) Whether a hearing was held by the public agency prior to the report being made. o Reports that exceed an agency’s authority do not fall w/in the exception. o 2) “Factual Findings” include the opinions and conclusions of the investigator. in any form. o This exception only limits the Prosecutor. it MUST satisfy 803(8). The Courts have narrowed B to only prevent prosecutors from introducing records of law enforcement observations when they are “made in an adversarial setting. of public offices or agencies. setting forth: o (A) the activities of the office or agency. as well as the underlying facts. o “ministerial law” enforcement records are generally admissible. o 3) Records of the agency’s activities generally are admissible.EVIDENCE OUTLINE witness: • (8) Public Records and Reports – Records. reports. Subsection C – 4 significant aspects o 1) Results of government investigations are NOT admissible against a ∆ in a criminal case.” B & C prevent the Prosecutor from using any public record that constitutes “factual findings” resulting from an investigation. Top 10 points on Public Records o 1) Make sure you have a public record. Four Factors that a court should consider in determining whether a public records of an investigation is trustworthy: o 1) The timeliness of the investigation.

etc. HEARSAY EXCEPTIONS: OTHER 803 EXCEPTIONS Rule 803(7) & (10): Absence of Records The following are not excluded by the hearsay rule. even though the declarant is available as a witness: • (7) Absence of entry in records kept in accordance with the provisions of paragraph (6) – 54 . o 7) Results of an investigation by ANY public agency are not admissible against a criminal ∆ . o 8) “Factual findings” resulting form an investigation include opinions and conclusions. unless If Yes If No go through the chart again.e. whether to ADMIT or EXCLUDE will turn on other rules of evidence. (ex.  (i. If “NO” then go to the next question. unless ther is a trustworthiness concern under 803(8) If yes. watch out for hearsay w/in hearsay) Rule 803(8) Logic Tree: First ask: Is this record a hearsay use? Questions to Ask 1) Is the record generated by a NON-public entity? 2) Has the public entity exceeded its powers or authority in generating the record? 3) Is the record setting forth the activities of the public entity? (ex. then ADMIT the evidence pursuant to 803(8)(A).) 4) Is this a civil case? 5) Is the record an observation of law enforcement personnel? 6) Is the record offered against the government? (who is the proponent?) 7) Is the record a finding from an investigation? Response If “yes. Census) o 5) EXCEPT matter observed by law enforcement personnel are not admissible against a criminal ∆ . housekeeping records. o 6) UNLESS the observation was ministerial.EVIDENCE OUTLINE o 4) Observations pursuant to duty are generally admissible. o 10) Statements by third parties require a separate hearsay exceptions. legislative vote. then ADMiT the evidence pursuant to 803(8)(B) or (C) I yes.” then 803(8) does not apply.) If yes. If “yes” then EXCLUE the evidence (and do not seek to apply any other hearsay exception/exclusion. unless the record is “ministerial” (and do not seek to apply other hearsay If Yes. official decisions of a government unit. o 9) Results of government investigations are not admissible if they lack trustworthiness.. then EXCLUDE the evidence pursuant to 803(8)(B). then ADMIT the evidence pursuant to 803(B)(C).

was regularly made and preserved by a public office or agency. FRE 803(18): Learned Treatises 55 • . so an exception for these absences is not necessary. that diligent search failed to disclose the record. would constitute an assertion falling w/in the hearsay rules. record. records. FRE 803(16): Ancient Documents The following are not excluded by the hearsay rule. o kept in accordance w/ the provisions of paragraph (6). or data compilation. statement. or data compilation. statement. report. directories. • Watch out for hearsay-within-hearsay in ancient documents. lists. report. The exception encompasses only lists or compilations of data. or data compilations. FRE 803(17): Market Reports The following are not excluded by the hearsay rule. Commercial Publications – market quotations.EVIDENCE OUTLINE Evidence that a matter is NOT included in the memoranda reports. or the nonoccurrence or nonexistence of a matter o of which a record. to prove the nonoccurrence or nonexistence of the matter. in any form. generally used and relied upon by the public or by persons in particular occupations. or data compilation was regularly made and preserved. or data compilation. or testimony. Evidence in the form of a certification in accordance w/ rule 902. o if the matter was of a kind of which a memorandum. in any form. but it does not encompass hearsay reported within the document. or entry. o Sometimes the absence of a record is as significant as the presence of one. even though the declarant is available as a witness: • (16) Statements in ancient documents – Statements in a document in existence twenty years or more the authenticity of which is established. • (10) Absence of public record or entry – To prove the absence of a record. not more discursive or evaluative material. or other published compilations. even though the declarant is available as a witness: • (17) Market Reports. if ever. statement. (16) admits the writing. tabulations. report. o unless the sources of information or other circumstances indicate lack of trustworthiness. in any form. • Absence of records rarely constitutes a statement. report. • Absence of a record rarely.

w/o an expert’s guidance. the rule prohibits introduction of the treatise itself into evidence. o 2) To prevent the jury from examining portions of the treatise on their own. or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. or other science or art. or  (c) the judge may take judicial notice of the treatise’s authoritativeness. or (4). • Four points on this rule: o 1) Treatises can only be introduced in connection w/ an expert’s testimony. Declarant Unavailable (a) Definition of unavailability – “Unavailability as a witness” includes situations in which the declarant: (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement. even though the declarant is available as a witness: • (18) Learned Treatises – to the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination. the declarant’s attendance or testimony) by process or other reasonable means. or • (3) testifies to a lack of memory of the subject matter of the declarant’s statement. This type of unavailability most commonly arises when o (a) the party cannot find the declarant after making a diligent search. o 3) The proponent must establish the treatise is a reliable authority. The rule offers 3 routes to foundation:  (a) The expert witness who relies upon or acknowledges the treatise may confirm that the treatise is a reliable authority in the field. o established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. a learned treatise is always connected to an expert witness in the courtroom. or • (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.EVIDENCE OUTLINE The following are not excluded by the hearsay rule. (3).WHAT IS UNAVAILABILITY? • Different category of exceptions that apply only if the declarant is “unavailable as a witness. the statements may be read into evidence but may not be received as exhibits. medicine. claim of lack of memory. o statements contained in published treatises. inability. o 4) Rule encompasses learned treatises in almost any field of stud. RULE 804 . t/f. periodicals.  (b) another expert witness may establish that fact.” • How does an advocate prove that a declarant is unavailable? FRE 804: Hearsay Exceptions. refusal. cannot simply introduce the treatise itself. A party. or • (4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity. or 56 • . • (5) – Absence. or pamphlets o on a subject of history. or • (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2). A declarant is not available as a witness if exemption. If admitted.

• HEARSAY EXCEPTION – FORMER TESTIMONY FRE 804: Hearsay Exceptions. Rule 804(b)(1) supports admission of prior testimony ONLY if the opposing party personally had the opportunity to cross-examine the witness at the prior proceeding. to persuade the declarant to attend the trial. The proponent of a hearsay statement offered under 804 has the burden of proving that the declarant is unavailable. o had an opportunity o and similar motive to develop the testimony by direct. or redirect examination. in a civil action or proceeding. cross. In criminal cases. 4 Factors courts use when determining whether an opposing party had a similar motive to develop a witness’s testimony in the prior proceeding: o 1) The type of proceeding in which the testimony was given. o 1) the party must use any “reasonable means. o 2) trail strategy. o 3) the potential penalties or financial stakes.EVIDENCE OUTLINE • o (b) the declarant refuses to come to court and is currently outside the court’s jurisdiction. or. o if the party against whom the testimony is now offered. o NO “predecessors in interest” or other substitute cross-examiners in criminal cases.” in addition to serving a subpoena. 804(5) imposes 2 additional obligations on a party attempting to introduce the declarant’s statement. o 2) The proponent must use reasonable means to take the declarant’s deposition if the declarant will not attend the trial. and o 4) the number of issues and parties. This may mean paying travel expenses. Declarant Unavailable (b) Hearsay exceptions – The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: • (1) Former Testimony – Testimony o given as a witness at another hearing of the same or a different proceeding. or in a deposition taken in compliance with law in the course of the same or another proceeding. Prior Inconsistent Statements by Witness 801(d)(1)(A) Declarant:  Must testify at current hearing Former Testimony 804(b)(1)  Must be unavailable 57 • • • . Foundation requirement: The party offering the former testimony must show that the declarant is unavailable. a predecessor in interest.

in a civil case. o 3) The declarant must believe that death is imminent when he makes the statement. it does not apply to most criminal prosecutions. FRE 804(b)(2): Dying Declarations (b) Hearsay exceptions – The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: • (2) Statement under belief of impending death – In a prosecution for homicide or in a civil action or proceeding. Four important facets of this rule o 1) Applies only if the declarant is unavailable. concerning the cause or circumstances of what the declarant believed to be impending death. as well as policy concerns with convicting ∆ s based on secondhand statements. o 2) This exception applies only in homicide prosecutions and civil proceedings. b/c they cannot gain anything from deception. a predecessor in interest) had the opportunity to cross-examine or develop testimony on direct. 58 • . o 3) Intuitive appeal to heeding a dying person’s last words. or grand jury presentation  Any content  Must have been under oath  Made at a prior proceeding at which the opposing party (or.” o 2) Secular – Dying people have little incentive to lie.  This limit recognizes the criminal ∆ ’s constitutional right to confront witnesses. deposition.EVIDENCE OUTLINE or trial  Must be subject to crossexamination concerning the statement Content of Statement: Context of Prior Statement:  Inconsistent with current testimony  Must have been under oath  Made at any prior proceeding. and had a similar motive as in the current proceeding HEARSAY EXCEPTION – DYING DECLARATIONS • The assumption that dying declarations are truthful rests on three rationales: o 1) Religious – A person does not want to meet his/her maker “with a lie upon his/her lips. a statement made by a declarant while believing that the declarant’s death was imminent.

so long as the person truly believed he would die when he made the statement. • Analysis: o 1) Is X unavailable? o 2) Was X’s statement against his/her interest? o 3) Was it against his/her interest at the time it was made? o 4) Is corroboration necessary. and forfeiture. o 4) The admissible portion of the statement is limited to that concerning the cause or circumstances of death. Six things to remember about 804(b)(2) – Dying Declarations o 1) The starting point is that all 804 hearsay exceptions – the statement must be hearsay (an out of court statement offered for the truth of the matter asserted) and the declarant must be unavailable. assuming it is against his/her interest? FRE 804(b)(3): Statements Against Interest (b) Hearsay exceptions – the following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 59 . Many dying declarations are also admissible under other hearsay exceptions. dying declarations are from an unavailable declarant. o 5) The exception is not exclusive – other exceptions might apply. but not all. o 6) The exception only applies to civil cases or homicide cases   • • • • • HEARSAY EXCEPTION – STATEMENTS AGAINST INTEREST • The assumption underlying this rule is that self-inculpatory statements are true. statements to obtain medical treatment. o 2) The declaration must be made when the declarant had a subjective belief that death was imminent. such as excited utterance.  The statement is still admissible if the person recovers. The proponent can rely on any type of evidence to prove this belief. The party offering the dying declaration must prove this belief by a preponderance of the evidence. but courts most often consider: o Statements by the declarant o Statements made by medical personnel and others to the declarant o The nature and extent of the wounds or illness o The length of time b/n the statements and the declarant’s death o The opinion of medical personnel who treated the declarant about the declarant’s death. o 4) The content of the statement must concern the cause or circumstances of the declarant’s death. Under Rule 104(a).EVIDENCE OUTLINE This is a subjective requirement. state of mind. The person must believe that death will happen very soon (w/in a few hours) and that it is inevitable. the trial judge will determine whether the declarant sincerely believed death was imminent when the statement was made. o 3) Thus. most.

that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.  2) The declarant’s motive in making the statement and whether there was a reason for the declarant to lie. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. o May not be sufficiently against the person’s interest to qualify under the rule. and  6) The nature and strength of independent evidence relevant to the conduct in question. o 6 factors in determining whether this type of statement is sufficiently trustworthy to admit under 804(b)(3):  1) Whether the declarant had plead guilty b/f making the statement or was still exposed to prosecution (that is. how far against the declarant’s interest the statement was at the time).  5) The relationship of the declarant w/ the accused. Trustworthiness when exculpating a criminal ∆ o Courts are suspicious when a criminal ∆ attempts to exculpate himself by using a third party’s alleged confession. the court must decide whether the statement was really against the declarant’s interest.  Pecuniary or proprietary interest  Civil or criminal liability  Render invalid a claim o 4) Any statement that exposes the declarant to criminal liability is admissible to exculpate a criminal ∆ only when corroborating circumstances clearly indicate the statement’s trustworthiness.  Witness testifies she heard someone else confess to the crime. Under these circumstances.”  Most courts require corroboration both of the declarant’s trustworthiness and of the statement’s trustworthiness. o A statement against interest exculpating a criminal ∆ is admissible only if “corroborating circumstances clearly indicate the trustworthiness of the statement.  4) The party or parties to whom the statement was made. • Four parts to this rule o 1) Declarant must be unavailable for the exception to apply o 2) Statement must be against the declarant’s interest at the time it was made. or o to render invalid a claim by the declarant against another.EVIDENCE OUTLINE • (3) Statement against interest – A statement which was at the time of its making o so far contrary to the declarant’s pecuniary or proprietary interest. or o so far tended to subject the declarant to civil or criminal liability. o 3) Three ways that a statement can be against a declarant’s interest. Statements offered to minimize guilt o A declarant sometimes makes a statement that admits wrongdoing but minimizes her role while blaming others.  3) Whether the declarant repeated the statement and did so consistently. o Under 104(a) the judge determines trustworthiness and the standard is by the 60 • • .

the opposing party waives the right to object to the witness’s prior statements as hearsay. • Forfeiture o 1) Declarant unavailable o 2) Opposing party engaged or acquiesced in wrongdoing o 3) Intended to cause unavailability o 4) Wrongdoing caused unavailability FRE 804(b)(6): Forfeiture (b) Hearsay Exceptions – the following are not excluded by the hearsay rule if the declarant is unavailable as a witness: • (6) Forfeiture by wrongdoing – A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to. • Implied Waiver – by causing the unavailability of a witness. • Derives from the concept of estoppel – The adversarial nature of the judicial system suggests that a party should be held accountable for any statements that he/she makes. o 3) The wrongdoing must have caused the declarant to become unavailable. 3 requirements o 1) The opposing party must have engaged or acquiesced in “wrongdoing. beat. kidnap. the exception does not apply. and did.EVIDENCE OUTLINE preponderance of the evidence. o 2) The opposing party must have intended to make the declarant unavailable. the victim’s out-ofcourt statements may be admissible under the forfeiture exception. FRE 801(d)(2): Statements by Party-Opponents (d) Statements which are not hearsay – A statement is not hearsay if 61 .”  The rule does not apply to legitimate means. undue influence.” o Merely persuading a witness to claim a privilege or forego testifying does not fall w/in the rule. or pressure to silence testimony and impede the truth-finding function of trials. If the declarant’s absence was an unintended consequence of the party’s wrongdoing. Courts have interpreted the “wrongdoing” language to mean “coercion. HEARSAY EXCEPTION – FORFEITURE • This rule deals with the case when an opposing party causes a declarant’s unavailability. procure the unavailability of the declarant as a witness. intending to prevent her testimony (ex. • • • HEARSAY EXEMPTION – STATEMENTS BY PARTY-OPPONENTS • Allows a party to introduce any out-of-court statement made by the opposing party. Mixed Intent o As long as one of the abuser’s intentions is to silence the victim. murder).

o The rule authorizes any litigant to introduce a party’s statement “against a party. but is not authorized to be used against anyone else. a party’s statement must be offered against that party. Statements do not require the party be available. • Spillover Effects in Civil Cases o What effect do those statements have on other parties on the same side of the litigation? A “party’s own statement” only allowed against that own party.. o Parties cannot introduce evidence of their own statements under this rule. or o (D) a statement by the party’s agent or servant concerning a matter w/in the scope of the agency or employment. Rule 801(d)(2) authorizes introduction of an out-of-court statement against the party who made the statement. The statement can be signing a document An individual’s silence can constitute an adoptive admission if the circumstances are such that a reasonable person would speak up rather than remain silent. o So how does a judge admit evidence said by one ∆ against him. or o (C) a statement by a person authorized by the party to make a statement concerning the subject. in either an individual or a representative capacity or o (B) a statement of which the party has manifested an adoption or belief in its truth. • The Confrontation Clause o A limiting instruction often is insufficient if a court admits an out-of-court statement against one ∆ that also incriminates other codefendants. to be confronted with the witnesses against him. Rule 801(d)(2) supports admitting the statement.. o In civil case. made during the existence of the relationship. o Brunton offers these options to a prosecutor who obtains an out-of-court admission from one of several ∆ s:  1) The prosecutor can redact the ∆ ’s admission so that it does not implicate any other ∆ s. o Sixth Amendment – “In all criminal prosecutions. but not in evaluating the other codefendant’s behavior. the accused shall enjoy the right .. A party seeking to preclude his/her own statements can object under 403.. but not against his codefendants?  The judge will give the jury a limiting instruction telling them that they may consider the content of the statement in assessing the speaker’s liability. as long as one ∆ offers a codefendant’s out-of-court statement “against” that codefendant. they can only offer evidence of an opponent’s statements..EVIDENCE OUTLINE • (2) Admission by party-opponent – The statement is offered against a party and is o (A) the party’s own statement. The redacted statement will be admissible under Rule 801(d)(2) 62 .”  Thus. as long as the ∆ introducing the statement offers it against the codefendant. The rule imposes one significant limit: To qualify for this exemption.. • • • • • STATEMENTS BY PARTY-OPPONENTS IN THE CONTEXT OF MULTIPLE PARTIES • Same-side Statements o the rule allows one ∆ to introduce out-of-court statements made by another ∆ . but not against other parties.

681) • • HEARSAY EXEMPTION – STATEMENTS OF COCONSPIRATORS • Extrajudicial statements by one member of a conspiracy. Richardson and Gray o Guidelines governing the redaction of out-of-court statements implicating a codefendant:  1) A statement that explicitly names a codefendant and implicates that codefendant on its face violates Bruton. relying on other evidence instead. 63 . These statements still are admissible only against the ∆ who made the out-of-court statement. Adoptions. o In some cases involving multiple ∆ s. Redacted Statements o Bruton. resolving the 6th Amendment concerns raised by Bruton. satisfies Bruton. But the form of the statement makes it plausible that the jury will follow those instructions. and will not infringe the Confrontation Clause rights of other ∆ s. o (See Chart on pg. prosecutors need to introduce statements against ALL participants in the illegal scheme.  3) A statement that does not refer explicitly to a codefendant.  3) The prosecutor can forego use of the statement. as long as the statement was made during the course of the conpirarcy and to further the joint enterprise.EVIDENCE OUTLINE against the ∆ who made it. Agents & Authorized Speakers o 801(d)(2)(B) allows introduction of statements adopted by a party. The prosecutor can admit statements that satisfy this condition in their initial form or that can be redacted to reach this form. and the judge will instruct the jury not to consider these statements in connection with any codefendants. • Allows a litigant to introduce the statement of one coconspirator against any other member of the conspiracy. and o 801(d)(2)(D) admits statements made by a party’s agent or employee. o 801(d)(2)(C) permits introduction of statements made by a person that the party authorized to speak on that subject. and that contains no obvious omissions tempting the jury to fill in the gaps. A statement in this form inevitably will tempt the jury to fill in the blanks w/ the codefendant’s name. including statements endorsed through silence. introducing the out-of-court admission against the ∆ who made the statement at that ∆ ’s trail. The statement cannot be admitted in this form.  2) A statement that simply replaces the codefendant’s name w/ blanks or other obvious marks of deletion also violates Bruton. these provision allow the Π to introduce one ∆ ’s statement against all of the ∆ s.  2) The prosecutor can sever the trial and try each of the ∆ s separately. • To prosecute these crimes effectively.

• Key points o Conspiracy = Joint Venture. Must satisfy 6 conditions to gain admission o 1) The statement must not be “specifically covered by Rule 803 or 804. • (2) Admission by party-opponent – The statement is offered against a party and is. including the name and address of the declarant.. o 3) A statement must offer evidence of a “material fact.” o 2) A statement admitted under Rule 807 must have “circumstantial guarantees of trustworthiness” that are “equivalent” to those found in the enumerated exceptions of 803 and 804.EVIDENCE OUTLINE FRE 801(d)(2)(E): Statements of Coconspirators (d) Statements which are not hearsay – A statement is not hearsay if. • • Gives judges flexibility by allowing them to admit hearsay that falls outside the standing exceptions.” o 6) Must give notice. However. partnership o Statement must occur during the course of the conspiracy and in furtherance of it  Arrest usually ends the conspiracy  Boasting doesn’t count as “furtherance. and • (C) the general purposes of these rules and the interests of justice will be served by admission of the statement into evidence. FRE 807: Residual Exception A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness. the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. Hearsay Policies Residual Exception Out-of-court statement is more reliable than most. as long as the evidence has sufficient “guarantees of trustworthiness” and is the best available way to prove a needed fact.” o 5) The trial judge must find that admission of the statement is consistent with the “general purposes of these rules and the interests of justice. o (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. is not excluded by the hearsay rule..” o Another avenue for attributing statement to co-∆ . the proponent’s intention to offer the statement and the particulars of it.” o 4) The proffered hearsay must be “more probative” of the information it conveys than any other evidence that the proponent “could procure through reasonable efforts. so avoids Sixth Amendment issues. a statement may NOT be admitted under this exception UNLESS.. • (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.. if the court determines that: • (A) the statement is offered as evidence of a material fact. Out-of court statement has guarantees of trusthworthiness Out-of-court statement is more necessary than Out-of-court statement satisfies important need 64 .

If the party against whom a hearsay statement has been admitted calls the declarant as a witness. then you can ask the witness the same question. • and if attacked may be supported. has been admitted in evidence. Put the declarant’s face on the witness’s face. or coconspirator. • The rule allows parties to impeach declarants in the same manner that they impeach witnesses. (D). is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. or (E). • the credibility of the declarant may be attacked. Evidence of a statement or conduct by the declarant at any time. spokesperson. using any of the tools recognized by Article VI of the rules.EVIDENCE OUTLINE most ATTACKING A DECLARANT’S CREDIBILITY • Rule 806 gives parties a way to attack a declarant’s credibility. prejudice or interest in the case  Inconsistent Statements – Rule 613  Lacks Personal Knowledge – Rule 602  Lacks Capacity to testify truthfully – Rule 603  Reputation or opinion for untruthfulness character – Rule 608(a)  Criminal Convictions – Rule 609 o 3) Once a declarant’s credibility has been attacked. Including:  Evidence of the declarant’s bias. o 2) Allows a party to attack a declarant’s credibility by introducing evidence that would be admissible if the declarant had testified as a witness. o 6) Recognizes that parties sometimes use a hearsay exception to avoid cross65 . o Imagine the declarant is in the stand. o 5) Allows a party to impeach a hearsay declarant. by any evidence which would be admissible for those purposes if declarant had testified as a witness. o 4) 806 allows a party to present a declarant’s inconsistent statements w/o giving the declarant an opportunity to “deny or explain” those inconsistencies. (D). o Impeach declarants as if they were witnesses. o If you can ask the declarant the question. the party is entitled to examine the declarant on the statement as if under cross-examination. or a statement defined in Rule 801(d)(2)(C). the other party may rehabilitate the declarant. • Six Key Points o 1) This rule applies to ALL hearsay statements admitted under an exception. as well as to statements governed by 801(d)(2)(C). or (E) – admissions made by a partyopponent’s agent. FRE 806: Attacking and Supporting Credibility of Declarant When a hearsay statement. whether or not the declarant appears as a witness. inconsistent w/ the declarant’s hearsay statement.

the opposing party should be allowed to call the declarant as a witness and cross-examine the declarant about the statement (can use leading Q’s). Thus. Washington o Supreme Court held that the Confrontation Clause guarantees a procedural right – the criminal ∆ ’s right to confront witnesses against him.EVIDENCE OUTLINE examination of a witness. Sixth Amendment In all criminal prosecutions. the accused must have a chance to cross exam the declarant o 5) If the accused doesn’t have that chance at trial.. he must have had the opportunity before. When the Prosecutor offers hearsay against a Criminal ∆ : Question to Ask 1) What is the difference b/n testimonial and nontestimonial statements? The Rule The prosecutor may introduce non-testimonial hearsay as long as those statements comply w/ 66 . o Only some out-of-court statements are testimonial. o ALL of the hearsay exceptions retain full force in civil cases.. o Crawford has significantly affected application of 7 hearsay exceptions o Restricts ONLY a prosecutor’s use of hearsay against a criminal ∆ .. Rule 806 does NOT apply to out-of-court statements made or adopted by a party-opponent. and most remain unchanged in criminal ones. the accused shall enjoy the right. under Crawford. the Sixth Amendment limits admission of testimonial statements but does NOT apply to non-testimonial statements. Rule 806 does NOT apply when the court admits prior statements by a witness that fall w/in Rule 801(d)(1)’s “not hearsay” category. Under these circumstances. Crawford and the 6th Amendment • The Court ruled the term “witnesses” applied to people who provide “testimonial” statements against a criminal ∆ . to be confronted with the witnesses against him. a criminal ∆ ’s sixth Amendment right to “be confronted with the witnesses against him” is a right to cross-examine people who make testimonial statements against him. • • THE SIXTH AMENDMENT AND HEARSAY • Crawford v. th • 6 A: Five Principles o 1) All evidence must satisfy the FRE o 2) 6th A applies only to evidence offered against the accused o 3) If a statement is non testimonial it satisfies 6th A o 4) If testimonial..

in a context where the declarant would be aware that this is what was happening. the prosecutor may offer the statement only if the declarant had a prior opportunity to cross-examine the declarant.  Prior testimony at a grand jury. 2) When is a declarant available? The prosecutor may introduce testimonial hearsay if the statements comply w/ the hearsay rules. deposition) o ∆ had opportunity to question o ∆ had similar motive to question • A “solemn declaration or affirmation made for the purpose of establishing or proving some fact. The 6th A does NOT limit the admission of non-testimonial hearsay.  Prior testimony at a former trial. Under those circumstances. If the hearsay statement is testimonial and the declarant is unavailable at trial.” (think: Sir Walter Raleigh) • When did ∆ have prior opportunity to cross-examine? o Declarant was under oath in formal setting (hearing.  Statements made during police interrogations. the ∆ has a chance to cross-examine the declarant about the testimonial statement and any other matters.” • Three Factors that contribute to the determination of whether a reasonable person would expect his statement to be used prosecutorially: o 1) Statements uttered “solemnly” or under formal circumstances are more likely than casual statements to be testimonial. and the declarant is available as a witness.” o Examples include:  Prior testimony at a preliminary hearing. o Statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. o 3) Statements made to prove a fact are more likely than those made for some other purposes (such as gaining help) to be testimonial.EVIDENCE OUTLINE the hearsay rules. 67 . o 2) Statements to law enforcement agents or other government employees are more likely than those to private parties to be testimonial. 3) What constitutes a prior opportunity to crossexamine the declarant? What is a Testimonial Statement? • Look for: o Formal proceeding/solemnity o Government involvement o Statement made to prove a fact related to a crime o Statement that declarant reasonably would expect to be used prosecutorially • Klein’s Definition of Testimonial  “Evidence collected by the Government.

o Davis v. since in that circumstance he would not believe that his statement would be used later at trial.  801(d)(1) – Prior Statements by Witness  801(d)(2) – Party Opponent Admissions  803(5) – Past Recollection Recorded  803(7) and (10) – Absence of Entries in Business and Public Records  804(b)(1) – Prior Testimony  804(b)(2) – Dying Declarations  804(b)(6) . • No court has extended Crawford to statements made by a declarant to friends or associates. • The Confrontation Clause does NOT bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. • Does not apply to: Dying declarations and Forfeiture.Forfeiture o 2) Those that rarely generate Confrontation Clause issues but might admit evidence violation the clause in unusual cases. o Are statements made to an undercover police officer or to a government informant testimonial?  Courts have held that these statements are NOT testimonial if the declarant does not know that the is speaking to a government informant. and  803(4) – Statements Made for Medical Treatment or Diagnosis  803(6) – Business Records  803(17) – Market Reports and Commercial Publications  803(18) – Learned Treatises o 3) Those that often raise CC issues when a prosecutor relies upon the exception to admit evidence against a ∆ . and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.EVIDENCE OUTLINE • Two Types of statements to law enforcement workers present special problems under Crawford: statements to 911 operators and statements made to police officers when they first arrive at the scene of a crime. Washington the Court held that the purpose of statements made to law enforcement agents may determine whether they are testimonial:  Nontestimonial – Made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.  803(1) and (2) – Present Sense Impressions and Excited Utterances  803(3) – Statements of Mental or Physical Condition  803(8) – Public Records  803(16) – Ancient Documents  804(b)(3) – Statement Against Interest  807 – Residual Exception 68 .  Testimonial – Made under circumstances objectively indicating that there is no such ongoing emergency. • Divide hearsay exceptions into 3 categories: o 1) Those that never raise Confrontation Clause issue b/c the exception itself satisfies the clause.

(g) Instructing Jury – In a civil action or proceeding. the lab states that the substance is cocaine. (c) When Discretionary – A court may take judicial notice. (remember this for the final) JUDICIAL NOTICE FRE 201: Judicial Notice of Adjudicative Facts (a) Scope of Rule – This rule governs only judicial notice of adjudicative facts. whether requested or not. • • What is an adjudicative fact? One that helps prove the elements of a specific case. o Is there a 6th A problem?  Each signature in the chain of custody is a testimony. In the absence of prior notification.Where the factual question is not something that goes to the elements of the case itself. They each must be available. rather there is a law that may or may not apply based on the facts. (f) Time of Taking Notice – Judicial notice may be taken at any stage of the proceeding. • This area of the law is evolving. LAY OPINIONS 69 . Legislative . o No rules guiding Legislative Facts.EVIDENCE OUTLINE • Melendez-Diaz and the Sixth Amendment o ∆ in possession of cocaine. or • (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The lab tech report is used as a declaration and put into trial. (e) Opportunity to be heard – A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor (nature) of the matter noticed. the substance goes to the lab. o The SC saw these reports as 803(8)(B) and ministerial. the court shall instruct the jury to accept as conclusive any fact judicially noticed. BUT once they are on the stand the may be able to use the report as a past recorded recollection. but is not required to. Officers find a white powdery substance on the suspect. the request may be made after judicial notice has been taken. (b) Kinds of Facts – A judicially noticed fact must be one not subject to reasonable dispute in that it is either • (1) generally known within the territorial jurisdiction of the trial court.  The lab tech is likely “unavailable” for lack of memory. accept as conclusive any fact judicially noticed. (d) When Mandatory – A court shall take judicial notice if requested by a party and supplied with the necessary information. In a criminal case. the court shall instruct the jury that it may. the lab checks the substance.

Shifts this gatekeeping role to judges.EVIDENCE OUTLINE FRE 701: Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert. general acceptance. technical. The trial judge now decides whether an expert’s approach is sufficiently reliable to present to the jury. but are not limited to. Before allowing the expert to testify. In making that decision. and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. • What constitutes reliable? Daubert Case o The Court stressed that judges. technical. and (c) not based on scientific. the judge must determine that both the field of expertise and the expert’s application of that knowledge are reliable. not a closed circle of experts. determine the reliability of expert testimony. Lay witness opinion must be: o A) Based on actual perception (personal knowledge) o B) Be helpful (move the case along) o C) NOT based on scientific. Courts admitted expert testimony based on whether the expert’s approach had gained “general acceptance” w/in the field. To decide whether testimony is reliable judges should consider factors such as:  Whether the theory or technique has been tested  Whether it has been subject to peer review and publication  The technique’s error rate  The existence of standards controlling the technique’s application  Whether the theory or technique has been generally accepted in the relevant scientific community Frye Rule: (MIN) Allowed scientists and other experts to set the bounds of reliability w/in their fields. or other specialized knowledge within the scope of Rule 702. or other specialized knowledge WHAT SUBJECTS ARE APPROPRIATE FOR EXPERT TESTIMONY? • The FRE impose a “gatekeeping” function on trial judges. the judge relies upon a variety of factors that include. Daubert Rule: (MAJ) FRE 702: Testimony by Experts 70 . the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are • • • • (a) rationally based on the perception of the witness.

confusion. training. skill. • Three Part Analysis o 1) Is the evidence reliable. a witness qualified as an expert by knowledge. 71 . both in its underlying principles and its application to the case? o 2) Does the evidence fit the case and help the trier of fact? o 3) Even if the evidence satisfies these requirements. • You have to be precise – what is THIS person helpful for. (2) the testimony is the product of reliable principles and methods. experience.EVIDENCE OUTLINE If scientific. technical.” o 2) The witness may establish her qualifications by pointing to a number of different factors:  knowledge. skill. training. or education • Process of Qualifying an Expert o 1) Lay a foundation for the witness’s expertise by asking questions about the witness’s credentials and qualifications. or education. technical.” • Don’t forget strategy! You don’t have to bring a Daubert motion against your opponent’s expert if you don’t want to. may testify thereto in the form of an opinion or otherwise. confusion of the issues. or misleading the jury substantially outweigh the probative value? o A judge will analyze the expert testimony in a pretrial hearing known as a “Daubert hearing. experience. Analyzing 702 • Is the expert: o qualified o helpful o reliable principles and methods o factual basis o reliable application • 702 and 403 o 403 requires the trial judge to exclude any evidence when “the danger of prejudice. or misleading the jury” substantially outweighs the evidence’s probative value. if • • • (1) the testimony is based upon sufficient facts or data. QUALIFYING EXPERTS • Rule 702 clarifies two points about expert witnesses: o 1) A witness must in fact be qualified b/f offering evidence about “scientific. does the danger of unfair prejudice. or other specialized knowledge. and (3) the witness has applied the principles and methods reliably to the facts of the case. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect..  • BASES OF EXPERT OPINION • Three Permissible Factual Bases of Expert Opinions: o 1) Personal Knowledge o 2) Facts or data admitted into evidence o 3) Inadmissible facts or data IF they are the type reasonably relied upon by experts in the particular field.. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. • The rules confer at least four special powers on expert witnesses compared to lay witnesses: o 1) If the expert’s testimony requires knowledge of other trial testimony. FRE 703: Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. the judge will certify almost any witness with specialized training or experience in the field. o 2) Judge allows opposing counsel to “voir dire” the witness. b/c the attorney is eliciting uncontested background information about pedigree. o The parties can stipulate that the witness is an expert to expedite this process. . opposing counsel decides whether to object to the witness’s certification as an expert.  Opposing counsel has a chance to ask the witness questions in order to test his credentials. Once Daubert’s reliability. fit and Rule 403 requirements have been met.If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. 72 . do not have to base their opinions exclusively on personal observations.. unlike lay witnesses. o 4) Experts.EVIDENCE OUTLINE Leading questions are OK (even on direct)... the expert may remain in the courtroom even if the judge excludes other witnesses under Rule 615..  After the voir dire. .  Move that the judge certify the witness as an expert. they may draw inferences from the evidence and state conclusions based on their special training or expertise. o 3) Judge rules on the motion to certify the witness. o 3) Experts may do more than give commonsense opinions. o 2) Experts are the only witnesses who can certify documents as learned treatises under Rule 803(18).

.. Legal Conclusions o Although Rule 704 allows witnesses to testify about ultimate issues. but they allow experts to testify that circumstances were consistent with that state. Such ultimate issues are matters for the trier of fact alone. o However we do allow DNA o Problems  Factual foundation  Technical Flaws  Distract jury from conflicts in testimony  Confuse rarity of event with probability of guilt o Be alert for these types of evidence “sneaking” into trails  Nystagmus – crossed eyes  Fingerprints 73 • • • ... The expert may in any event be required to disclose the underlying facts or data on crossexamination. most judges prefer witnesses to avoid legal terms like “negligent” or “guilty beyond a reasonable doubt.. (b) No expert witness testifying w/ respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto..” Mental States o Courts restrain experts from testifying explicitly that the ∆ possessed a particular mental state. testimony in the form of an opinion or inference otherwise admissible is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact. unless the court requires otherwise. LIMITS ON OPINION AND EXPERT TESTIMONY FRE 704: Opinion on Ultimate Issue • • (a) Except as provided in subdivision (b). . Probabilities o 4 defects  1) Lack proper factual foundation  2) Technical flaws  3) Distract the jury from assessing conflict in the eyewitnesses’ testimony  4) Confuses the rarity of an event with the probability of the ∆ ’s guilt.EVIDENCE OUTLINE FRE 705: Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data.

o A witness so appointed shall advise the parties of the witness’s findings. a copy of which shall be filed with the clerk. and may request the parties to submit nominations. o The witness shall be subject to cross-examination by each party. The “Fuzzy” Line on “Ultimate Issue” Opinions o IN – Court allowed  Expert (Engineer): Machine was unreasonably dangerous. or at a conference in which the parties shall have opportunity to participate. and may appoint expert witnesses of its own selection. o The court may appoint any expert witnesses agreed upon by the parties. if any.  Lay Witness: ∆ ’s investment was a scam  Expert: ∆ had filed 20 false returns o OUT – testifying on the law  “RR crossing was extra-hazardous”  ∆ s were material participants in a fraudulent scheme to manipulate stock  ∆ s owed no taxes for years w/o returns FACTORS o Opinion literally tracks legal standard o Conclusion given w/o detail o Opinion offered by Prosecutor o Opinion offered by criminal ∆ • • • • • COURT-APPOINTED EXPERTS FRE 706: Court Appointed Experts • (a) Appointment – The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed. A witness so appointed shall be informed of the witness’s duties by the court in writing.  2) Most courts allow expert testimony about EW reliability only when circumstances suggest than an EW identification is less reliable than usual. the expert may not offer an opinion about whether a particular eyewitness is reliable. the witness’s deposition may be taken by any party. including a party 74 . o An expert witness shall not be appointed by the court unless the witness consents to act. Experts concluding “negligence” in medical malpractice cases. and the witness may be called to testify by the court or any party.EVIDENCE OUTLINE  DNA  Police officers testifying on the investigation  Damages evidence  The “power” of coincidence Polygraph Tests Eyewitness Testimony o The courts have limited expert testimony in two ways:  1) The expert may only describe general findings about eyewitness testimony.

the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (b) Compensation – Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. • No matter how beneficial the information is to the case. it will not be disclosed. which is otherwise completely admissible. • External policy reason (like Subsequent Remedial Measures) o Policy justifications – privileges are essential to protect certain socially beneficial relationships. therapist). is not coming in for some other reason.  In an absolute privilege (attorney client and state secrets) shiels a communication. • 3) for a specific purpose (seeking legal admvise or with the goal of 75 . Must meet 3 criteria:  1) The relationship must be one that society wants to foster. the opposing party cannot pierce the privilege. (d) Parties’ experts of own selection – Nothing in this rule limits the parties in calling expert witnesses of their own selection. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the 5th Amendment.. • 2) with a certain type of person (attorney..  3) The injury to the relationship from disclosure must be greater than the benefit to the truth-seeking process from that disclosure.  2) Confidential communications must be essential to maintaining the relationship. the information cannot be discloses unless the party who controls the privilege waives it.. • What Purpose? o 1) Protect the jury from misleading information o 2) Eliminate unnecessary delay and promote efficiency o 3) Protect a social interest o 4) Ensure evidence is sufficiently reliable? • A roadmap of Privileges o How Strong? (How deep is the lake?)  Privileges can be absolute or qualified. in other words.  The opposing party can overcome a qualified privilege o What is its scope? – how broad. and thereafter charged in like manner as other costs. • • PRIVILEGES • This piece of evidence.EVIDENCE OUTLINE • calling the witness.. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs. (c) Disclosure of Appointment – In the exercise of its discretion. (How wide is the lake?)  A privilege usually covers: • 1) confidential communications.

government. state law may apply. Federal Privileges o Right against self-incrimination guaranteed by the 5th Amendment o Attorney-Client & Work-Product o Spousal o Psychotheraptist-patient o Executive o Clergy-communicant Privileges NOT recognized by federal law o Physician-patient o Journalists o  However. with respect to an element of a claim or defense as to which State law supplies the rule of decision. in civil actions and proceedings. or political subdivision thereof shall be determined in accordance with State Law. government. they apply. When a state claim and defense are litigated in federal court. the client is the holder in the attorney-client relationship  All privileges can be waived. o 1) Professional Obligation to keep client information confidential. make them take the 5th and then comment on it in your closing. person. the rules of professional responsibility prohibit an attorney from disclosing to any person 76 .. the privilege of a witness.. . FRE 501: General Rule . State. However.  ex. but the rules for waiver Privileged or not? o State Secrets Privilege o Executive Privilege o 5th Amendment  In a criminal case a Prosector is not allowed to comment on in closing in a criminal Trial  Can comment in closing in a civil trial • You can call a witness. person. the privilege of a witness. • • • ATTORNEY-CLIENT PRIVILEGE • Attorneys honor two overlapping commitments to maintain the confidences of their clients. State. or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. o Who is the holder of the privilege? Who can assert or waive? The person in control of the privilege.EVIDENCE OUTLINE receiving diagnosis or treatment).Privilege Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority.

prevents an attorney from offering testimony or other evidence about confidential client communications. NOT information. grand jury. or o (3) Breach of duty by lawyer or client – As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer. pretrial hearings... o This means that a client cannot hide information. Does NOT protect the underlying information. ELEMENTS: o Communication  Communication. His authority to do so is presumed in the absence of evidence to the contrary.. existence of relationship. The Attorney-Client Privilege is absolute o A party may not overcome the privilege by proving a strong need for the protected information.  Oral or written – including gestures  Usually doesn’t’ protect client’s identity. recognized in all state and federal courts.  Stronger than the professional obligation. When does the privilege apply? o The privilege prevents disclosure of privileged information in any context.  Discovery. (c) Who may claim the privilege – The privilege may be claimed by the client . or o (5) Joint Clients – As to a communication relevant to a matter of common interest b/n two or more clients if the communication was made by any of them to a lawyer retained or consulted in common.. trial. and every other stage of litigation. Proposed FRE 503 (not enacted): Lawyer-Client Privilege • • (b) General rule of privilege – A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.  Narrower – covers only confidential communications made to obtain legal services. when offered in an action b/n any of the clients. (d) Exceptions – There is no privilege under this rule: o (1) Furtherance of crime or fraud – If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. or objects by communicating them to an attorney. documents.EVIDENCE OUTLINE information that a client wants to keep confidential.. or fee 77 • • • • • .. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. o Attorneys have an affirmative duty as officers of the court to disclose any contraband or physical evidence of a crime that comes into their possession. o 2) Evidentiary Privilege – this privilege.

and  2) the attorney-client communications are in furtherance of that alleged crime or fraud. o 2) the disclosed and undisclosed communications or information concern the same subject matter. to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. • (a) Scope of a Waiver – When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection. and o 3) they ought in fairness to be considered together. Limitations on Waiver The following provisions apply.  Flows in both directions o Between a client  Or his representative  Includes a preliminary consultation  Corporation or organization o and a lawyer  or his representative  Authorized to practice law in any jurisdiction  Someone client reasonably believes is a lawyer  Includes in-house counsel o that is confidential  Reasonable expectation  Only necessary parties present (or someone with another privilege). but society has no reason to facilitate new crimes.EVIDENCE OUTLINE arrangement. the disclosure does not operate as a waiver in a federal or state proceeding if: o 1) the disclosure is inadvertent. (b) Inadvertent Disclosure – When made in a federal proceeding or to a federal office or agency. o A client needs to be able to disclose prior illegal acts to further his legal representation. o The crime-fraud exception to the attorney-client privilege applies if:  1) the client is committing or intending to commit a fraud or crime. o and concerns legal advice. Crime-Fraud exception strips the attorney of use of the privilege. in the circumstance set out. the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: o 1) the waiver is intentional.  For the purpose of facilitating professional legal services to the client  Not business advice  Not advice for future illegal conduct  Even if the attorney did not know illegal purpose  Even when no duty to report  Discussion about legal implications of past conduct are shielded. FRE 502: Attorney-Client Privilege and Work Product. 78 • • . o Clients cannot use the privilege as a cloak to hide the perpetration of a crime or fraud.

” and  b) the communications “ought in fairness to be considered together. other privileged communications remain protected unless  a) they “concern the same subject matter.EVIDENCE OUTLINE o 2) the holder of the privilege or protection took reasonable steps to prevent disclosure. • Two important limitations: o 1) the privilege only protects documents or objects prepared in anticipation of litigation. and o 3) the holder promptly took reasonable steps to rectify the error.” and  b) the holder “took reasonable steps to rectify the error.  An opposing party may obtain access to this type of work product by demonstrating that he has “substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” • Codified in the Federal Rules of Civil Procedure – 26 o Prepared in anticipation of litigation 79 • . the privilege is qualified.. 26(b)(5)(B). P. the disclosure does NOT waive the privilege if  a) the holder of the privilege “took reasonable steps to prevent disclosure.. the disclosure does not operate as a waiver in a federal proceeding if the disclosure: o 1) would not be a waiver under this rule if it had been made in a federal proceeding.” o 2) If an attorney or client intentionally discloses some privileged information in a federal proceeding. Protects any documents or other materials prepared by an attorney or client. • The most important sections: o 1) if a client or attorney inadvertently discloses information covered by the attorneyclient privilege during a federal proceeding. WORK PRODUCT • Broader than the attorney-client privilege.” Who qualifies as a “client” in a corporate setting • FACTORS determining if a manager is acting as a client and thus communicates w/ the corporate attorney under privilege (Upjohn) o The managers provided information directly to the company’s counsel to help the company secure legal advice o The managers knew this was the purpose of supply the information o They provided this information in response to a superior’s request o The communications related to matters w/in the scope of the managers’ duties  This is the key factor o Other EEs could not provide this information to counsel o All parties treated the communications as highly confidential. rather than just communications b/n the two. and o 2) when work product consists soley of facts about the dispute. or o 2) is not a waiver under the law of the state where the disclosure occurred. including (if applicable) following Fed. R. (c) Disclosure made in a state proceeding – When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver. Civ.

o Holder is NOT the client. • Shields any information that one spouse might offer against the other. the government can compel the spouses to testify against each other. but overlapping. the testimonial privilege offers no protection to either spouse. o 1) The Spousal Testimonial Privilege  Arises only when a spouse is a criminal defendant or the target of a grand jury investigation.EVIDENCE OUTLINE o By attorney OR client OR their employees o Qualified privilege for facts o Absolute privilege for lawyer’s mental impressions.  This privilege is broader than the testimonial privilege in several ways: • 1.  The witness spouse controls the privilege. o Applies regardless of whether either spouse is a party to the litigation. o No litigant may force a spouse to reveal information protected 80 . • While the spouses remain married. o 2) The Marital Communications Privilege (the “pillow talk” privilege)  Protects confidential communications b/n two spouses. this privilege applies event to information that one of the spouses obtained b/f the marriage. o Doesn’t reach to client work done unless by the attorney • OTHER PRIVILEGES • These rules are not codified in the FRE. spousal privileges. etc. theories. • Once a marriage ends. They may waive the privilege and choose to testify. but the Supreme Court has formally approved. both civil and criminal. o Can be transactional too.  The other spouse may refuse to testify against the ∆ or target spouse  Does NOT apply in civil proceedings. Spousal Privileges • The federal courts recognize two different.  Purpose: • to promote marriage • privacy interests  Applies only during the life of the marriage. • Under these circumstances. Applies to ALL stages of all judicial proceedings. It is also a common law doctrine recognized by courts.  Exceptions • The privilege does not arise if the government suspects one spouse of committing a crime against the other spouse or against a child in their custody. nor does the privilege exist if the government suspects both spouses of jointly committing a crime. Shelters all information that the government might attempt to obtain from a spouse.

o The presence of a third party almost always defeats the marital communications privilege. The privilege protects only communications that occur during the life of the marriage • 2. Who may waive the privilege? Are there exceptions? Yes.EVIDENCE OUTLINE by this privilege. For intra-family crimes and Yes. Only protects communications b/n the spouses. NO Only the witness spouse. The privilege does NOT protect matters that the testifying spouse observed during the marriage. o Neither the government nor any civil litigant may persuade one spouse to testify against the other. • 3. This privilege is narrower than the testimonial privilege in sever ways too: • 1. For intra-family crimes and 81 . Protects marital confidences even after the marriage ends. Just confidential communications Does the privilege apply to communications or events that occurred BEFORE the marriage? Does the privilege survive end of the marriage? YES NO. YES YES NO. YES Both spouses must consent to waive. Just in grand jury investigations or criminal prosecutions of the spouse. Exceptions: Same as above. except the presence of very young children. Both spouses control the communication privilege. The privilege protects only communications that one spouse makes to the other in confidence. 2. o Assumes that spouses will communicate freely only if they know that their confidences can never be used against them. the target spouse may not prevent testimony. (Intra-family crime exception) • Marital Communications Privilege   TWO SPOUSAL PRIVILEGES: FEDERAL LAW Spousal Testimonial Privilege Does the privilege apply in civil proceedings? Does the privilege protect actions and observations? NO. • 3. unless the other spouse also consents.

• Any religion Privilege Against Self-Incrimination • An individual can invoke the 5th Amendment privilege at any stage during a civil or criminal proceeding if she believes her answer could be used against her in a criminal trial.  Absolute privilege  The President must specifically claim the existence of a national security interest and must point to circumstances suggesting the presence of such concerns.  This privilege has not been extended to homosexuals or cohabitating couples. NOT organizations o A company cannot take the 5th • Applies only to criminal liability • Applies to testimony only • Can be waived o Disclosure waives privilege with respect to related details  Scope of cross-examination 82 . • 2 levels of executive privilege: o 1) Shelters military. o 2) President’s “more generalized interest in confidentiality.EVIDENCE OUTLINE jointly committed crimes.. Clergy-Communicant Privilege • Covers o 1) Communications o 2) Made in confidence o 3) By a person seeking spiritual counseling o 4) to a member of the clergy. psychiatrists and psychologists. Executive Privilege • Protects confidential communications b/n the President and his/her close advisors.. and national security secrets. • Applies only to communications that a patient makes to a licensed therapist for the purpose of diagnosis or treatment of a mental or emotional problem. • Available to any witness in any proceeding • Protects people.”  Shields the President’s conversations with top advisors so that these leaders can feel ‘free to explore alternatives .”  Qualified privilege. in a way many would be unwilling to express except privately’. Psychotherapist-Patient Privilege • Broad privilege: o Applies to social workers. jointly committed crimes. • NOT an absolute privilege. • A patient WAIVES the psychotherapist privilege if the puts his mental condition in issue during trial. diplomatic.

(b) Illustrations – By way of illustration only. AUTHENTICATION • Serves 3 important functions o 1) Necessary to establish relevance. it merely offers enough evidence for the jury to make that finding. Help establish relevance Help show genuineness Place evidence in context Authentication does NOT. Authentication DOES.  2) Transactional immunity • prosecutor guarantees that he will not prosecute the witness for any wrongdoing that she mentions in her testimony.. o 2) does not establish compliance with other evidentiary rules. the following are examples of authentication or identification conforming w/ the requirements of this rule: 83 .. o 3) Places the evidence in proper context. • Authentication does not prove that an item is what its proponent claims.EVIDENCE OUTLINE • o Waiver lasts only for that proceeding Immunity o Immunity is a guarantee that information learned from the testimony will not be used against the witness in any future criminal proceeding. • 2 objectives that authentication does NOT serve o 1) does not guarantee the identity or genuineness of any evidence. o 2) Offers the jury some assurance that a piece of evidence is genuine... Foreclose challenges to relevance or genuineness Satisfy other rules of evidence FRE901: Requirement of Authentication and Identification • • (a) General Provision – The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. and not by way of limitation. • As with many other aspects of Evidence. laying the proper foundation is not just a matter of proving the bare minimum to admit the evidence. even if the prosecutor obtains independent evidence of that wrongdoing.. o Immunity overcomes privilege o Two Types:  1) Use immunity • guarantees the witness that the prosecutor will not use anything she says – or any information derived form those statements – in any future prosecution. but also of providing sufficient information to persuade the jury that the evidence is what the lawyer claims it to be..

• 901(b) all requires some type of extrinsic information to authenticate the proffered evidence. o 2) the threshold for establishing identity or authenticity is very low.. • Documents which display their identity in an obvious and trustworthy manner.” so it needs no extrinsic information to establish its authenticity.. each of whom describes how they obtained the item and passed it to the next person in the chain. • A “subscribing witness” is a person who signs a document to indicate that she saw another person execute the document. o 3) Common-sense definition – “it is what its proponent claims. testimony from a witness who provides information to authenticate the evidence.  Only needs to introduce evidence “sufficient to support a finding” of authenticity. Analyzing 901 & 902 • Distinctive Features o If a piece of evidence has distinctive characteristics. o Ex.  2) someone who saw the act of writing may identify the person who wrote or signed the document. • Handwriting o 5 ways to authenticate handwriting  1) the person who authored the note or signature may identify the writing as their own. the party calls a series of witnesses. a witness familiar w/ the item can identify it in court. • Chain of Custody o To demonstrate a chain of custody.  3) an expert witness may identify handwriting by comparing the disputed 84 . FRE 902: Self-Authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following. FRE 903: Subscribing Witness’s Testimony Unnecessary The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.EVIDENCE OUTLINE Analyzing 901 • 3 important concepts o 1) authentication is a “condition precedent” to admitting any document or object. o Parties also use chain of custody testimony to establish that the condition of evidence has not changed in a way that would affect the case.” • Two categories of evidence o 1) Evidence that requires some kind of extrinsic information to be authenticated and o 2) Evidence that is “self-authenticating.  The party must establish the identity of the object b/f it is admitted into evidence.

 • • • • • • • 85 . Voice Identification o Any witness who is familiar with a person’s voice may identify that voice in court.” o 902(3) – Foreign Public Documents  Must carry both: • 1) the signature of a foreign official responsible for verifying the document and • 2) a diplomatic or consular certification. Photographs and Videos o Any witness who is familiar w/ the photographed scene or the videotaped events may authenticate them. substance. or other distinctive characteristics.EVIDENCE OUTLINE writing w/ a sample that has been verified by other means. based on his personal knowledge. internal patterns. a party offering these documents does not need to lay any foundation other than the documents. the photo or video offers a fair and accurate representation of the scene. or other publications purporting to be issued by public authority” as self-authenticating.” Admissions and Stipulations o parties authenticate most pieces of evidence b/f trial.  The signature and seal substitute for live testimony authenticating the document. state or local government unit if that document bears both a signature attesting to the document’s authenticity and the official seal of the government unit. Public records are self-authenticating. o 902(2) – government units that lack their own seals o 902(4) – allows a party to introduce a certified copy of any “official record or report or entry therein. The jurors will compare the writings and draw their own conclusions. 4) A party may introduce both the disputed writing and the admitted samples into evidence. pamphlets.  5) allows a lay person who is familiar with another person’s handwriting to identify that handwriting in court. o The rules allow a witness to develop voice recognition solely in connection w/ litigation. o The witness performing the identification simply testifies that. Newspapers and Periodicals o Self-authenticating under 902(6) Business Records o Self-authenticating under 902(11) and (12) o A certificate satisfying the requirements of the business records exception (Rule 803(6)) also authenticates the document. Circumstantial Evidence o Parties may identify evidence through “appearance. Public Records o Under Rule 902. o 902(1) – a party may introduce an original public document form any federal. o 902(5) – recognizes all “books. taken in conjunction with circumstances. contents. some documents authenticate themselves.

video tapes. or P is more detailed and difficult to describe than most events or objects that witnesses relate in the courtroom. mechanical or electronic recording. or numbers. and P are relatively easy to produce. R. magnetic impulse. and Photographs FRE 1001: Definitions of Best Evidence Rule For the purpose of this article the following definitions are applicable: • (1) Writings and recordings – “Writings” and “recordings” consist of o letters. then the party should produce the document itself. 86 . except as otherwise provided in these rules or by Act of Congress. including enlargements and miniatures. Article X requires the party to introduce the original document. is an “original”. Offered to Prove the Content FRE 1002: Requirement of Original To prove the content of a writing. Writings. the original W. o set down by handwriting..EVIDENCE OUTLINE BEST EVIDENCE • When a party relies upon a writing. or o by other equivalent techniques which accurately reproduces the original. especially since modern rules allow for liberal use of duplicates. recording. o If data are stored in a computer or similar device. and motion pictures. or photograph. or photograph to prove the content of that document.. photostating. o 3) the rule reduces opportunities for fraud or distortion. o an “original” of a photograph includes the negative or any print therefrom. typewriting.R. or o by means of photography. or o by mechanical or electronic re-recording. or their equivalent. R. shown to reflect the data accurately. words. • (3) Original – An “original” of a writing or recording is o the writing or recording itself or o any counterpart intended to have the same effect by a person executing or issuing it.. printing. • The BE rule rests on 3 policies: o 1) the content of a W. or P is required. any printout or other output readable by sight. o 2) W. photography. • If a party wants to prove the content of a document. or o by chemical reproduction. Recordings. • (2) Photographs – “Photographs” include still photographs. • (4) Duplicates – a “duplicate” is a counterpart o produced by the same impression as the original. or other form of data compilation. or o from the same matrix. recording.. X-ray films.

or photograph. or photograph is admissible if: • (1) Original lost or destroyed – All originals are lost or have been destroyed. including data compilations in any form. FRE 1003: Admissibility of Duplicates A duplicate is admissible to the same extent as an original unless • (1) a genuine question is raised as to the authenticity of the original. by the pleadings or otherwise. without accounting for the nonproduction of the original. or P has independent legal significance: the content of the document itself controls some facet of the litigation. recordings. or photographs may be proved • by the testimony or deposition of the party against whom offered or • by that party’s written admissions. or P o 1) W. o 2) A party seeks to prove the content of a WRP.EVIDENCE OUTLINE • Two categories of cases in which parties prove the content of a W. • If an opponent admits the contents of a writing. or • (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. or • (2) Original not obtainable – No original can be obtained by any available judicial process or procedure. the party chooses an item falling in one of those categories as a convenient option for proving some fact. or of a document authorized to be recorded or filed and actually recorded or filed. or • (4) Collateral matters – The WRP is not closely related to a controlling issue. Proof by Admission FRE 1007: Testimony or Written Admission of Party Contents of writings. recording. that the contents would be a subject of proof at the hearing. and other evidence of the contents of a writing. and that party does not produce the original at the hearing. may be proved by • copy. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence. that party was put on notice. Exceptions FRE 1004: Admissibility of Other Evidence of Contents The original is NOT required. certified as correct in accordance with Rule 902 or • testified to be correct by a witness who has compared it with the original. if otherwise admissible. then other evidence of the contents may be given. or • (3) Original in possession of opponent – At a time when an original was under the control of the party against whom offered. 87 . then the party does not have to produce the original document or account for its absence. recording. R. unless the proponent lost or destroyed them in bad faith. R. FRE 1005: Public Records The contents of an official record.

the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. 88 . or • (b) whether another writing. or photograph produced at the trial is the original. the issue is for the trier of fact to determine as in the case of other issues of fact. summary. FRE 1008: Functions of Court and Jury When the admissibility of other evidence of contents of WRP under these rules depends upon the fulfillment of a condition of fact. However. The court may order that they be reproduced in court. .. PRESUMPTIONS • 4 Types o 1) Permissive Inferences  The judge simply instructs the jury that it may infer one fact from another. shall be made available for examination or copying.... or duplicates. by the parties at reasonable time and place. when an issue is raised • (a) whether the asserted writing ever existed.EVIDENCE OUTLINE FRE 1006: Summaries The contents of voluminous writings. or • (c) whether other evidence of contents correctly reflects the contents. or both. The originals.  Burden of Production (producing evidence) • If no one produced any evidence who would win? o 3) Burden-of-Proof-Shifting Presumptions (aka “Rebuttable” or “strong”) o 4) Conclusive Presumptions (aka Irrebuttable Presumptions) FRE 302: Applicability of State Law in Civil Actions and Proceedings In civil actions and proceedings. o 2) Burden-of-Production-Shifting Presumptions (aka “Bubble Bursting” or “weak”)  Burden of Proof (persuasion) • Who wins if it is a tie? The person w/o the burden. recordings. or photographs which cannot conveniently be examined in court may be presented in the form of a chart. or calculation. the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. recording.

o 3) When 301 applies. • Bursting Bubble o A presumption disappears once the opposing party offers some evidence disputing the presumed fact. The opposing party need not persuade the fact finder that she is right. • 3 points about 301 o 1) The rule applies only to civil proceedings  Criminal Law presumptions are not affected by the FRE. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. 89 • • . Identify presumptions carefully Burden of Proof Shifting • If ∆ introduces sufficient evidence to persuade reasonable jury. but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion. which remains throughout the trial upon the party on whom it was originally cast. most court agree that it creates the second type of presumption: burden shifting. or o (3) whether there was a mistake in entering the verdict onto the verdict form. a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. THE ROLE OF THE JURY FRE 606: Competency of Juror as Witness • (b) Inquiry into validity of verdict or indictment – Upon an inquiry into the validity of a verdict or indictment.EVIDENCE OUTLINE FRE 301: Presumptions in General in Civil Actions and Proceedings In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules. o 2) Creates a default principle that applies only when some other provision does not. she only needs to offer evidence that a reasonable jury could accept. But a juror may testify about o (1) whether extraneous prejudicial information was improperly brought to the jury’s attention. o (2) whether any outside influence was improperly brought to bear upon any juror. a juror may not testify as to o any matter or statement occurring during the course of the jury’s deliberations or o to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or o concerning the juror’s mental processes in connection therewith. 301: burden of production shifting (bubble bursting) presumptions are the federal default o 3. • Top 3 points o 1. Rule 302: State rules govern state claims o 2. Constitutional presumptions control. issue goes to jury – and ∆ must prove unreasonable or unnecessary.

EVIDENCE OUTLINE 90 .