HAIDAR: RULE TABLE

EVIDENCE 2017

Note: On top is a rule table I stole and updated a little from another older outline. Below are some charts I found
to be helpful.

Table of Contents
RELEVANCE.....................................................................................................................................................1
CHARACTER EVIDENCE..............................................................................................................................2
IMPEACHMENT..............................................................................................................................................4
HEARSAY..........................................................................................................................................................4
HEARSAY - UNAVAILABILITY EXCEPTIONS:.......................................................................................5
HEARSAY - EXCEPTIONS REGARDLESS OF UNAVAILABILITY:....................................................6
CONFRONTATION CLAUSE........................................................................................................................7
RULES................................................................................................................................................................7
EXPERTS...........................................................................................................................................................7
PRIVILEGES.....................................................................................................................................................8
Flowcharts.........................................................................................................................................................10
801(d)(1).........................................................................................................................................................10
801(d)(1)(A) Inconsistent Statements..........................................................................................................................................10
801(d)(1)(B) Consistent Statements.............................................................................................................................................10
801(d)(1)(C) Identifications.........................................................................................................................................................11
801(d)(2).........................................................................................................................................................11
801(d)(2)(A) Statements or Actions of Party-Opponent..............................................................................................................11
801(d)(2)(B) Adoptive Admissions..............................................................................................................................................12
801(d)(2)(C-E) Statements or Actions of Third Person...............................................................................................................12

RELEVANCE
104 The court will determine privilege, qualifications, and relevance.  
Evidence that is relevant only if another fact is proven
Cox was convicted of murder, and the prosecutor introduced
will be admitted if the court concludes a reasonable
Cox v. State evidence that his motive was revenge for a friend, whose bail was not
jury could make the required finding of fact with the
reduced.
evidence before it
James claimed she acted in self-defense when she handed her Evidence that directly corroborates a witness’s
US v. James daughter a gun that was used to kill Ogden, who bragged about his credibility is admissible, even if the evidence relates
past violent conduct. to facts unknown to the witness.
Relevant Evidence = possesses a tendency to make a fact more or
401 less probable, and that specific fact is of consequence to the instant Don’t want to exclude relevant evidence.  
matter
To be excluded, relevant evidence must have a prejudicial effect,  Balances low threshold for relevant evidence; allows
403 potential to mislead juries, or potential to waste time that for some exclusion (but must deal with substantial
substantially outweighs the relevant evidence’s probative value. presumption)
Relevant evidence should not be admitted if the only
At Bocharski’s trial for murder, very gruesome photographs of the
State v. Bocharski effect of the evidence would be to otherwise inflame
victim’s body and head were introduced.
the jury
CGA is admissible as demonstrative evidence if it is
Commonwealth v. The prosecution introduced a CGA of the crime scene that illustrated
fair and accurate, it is relevant, and its probative value
Serge forensic and physical evidence.
is not outweighed by prejudicial value.
Dissent of Judge Kleinfeld…not an abuse of discretion for a judge to disallow evidence which might otherwise be technically
US v. James
admissible.
Myers was convicted of a bank robbery after the judge instructed the Evidence of flight is admissible to show a guilty
US v. Myers jury that it could consider evidence of flight as a sign of a guilty conscience only when a specific set of inferences are
conscience. satisfied. SEE THE BRIEF.
US v. Jackson Jackson was accused of bank robbery; he moved to exclude evidence
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EVIDENCE 2017

that after the robbery, he was arrested in a different state while using
a false name.
Subsequent remedial measures may not be admitted to prove or
disprove negligence, culpable conduct, a defet, or a need for a
Encourages parties to improve and secure their spaces
407 warning. The court MAY admit this evidence for another purpose,
without further legal consequences.
such as impeachment, ownership, control, or feasibility of remedial
measure taken.
Evidence of remedial measures taken after an
Tuer claimed it was error to exclude evidence of a change in medical
Tuer v. McDonald allegedly wrongful or negligent act is NOT
protocol change after her husband died due to a delayed surgery.
admissible to prove negligence or wrongful acts.
Offers to compromise/settle on a claim is generally not admissible;
Encourages parties to settle, and to speak freely
408 minor exceptions allowed to show bias or cooperation (in response to
during the settlement process.
an "undue delay" claim)
Bankcard America Evidence regarding a proposed settlement is
Bankcard America sued Universal for breach of contract; Universal
v. Universal admissible only for purposes other than to show
tried to show BA almost settled.
Banckard liability.
409 Promises to pay medical expenses entirely inadmissible. Encourages people to be Good Samaritans!
Plea bargains generally may not be admitted aside from two minor Encourages government and Def. to resolve before
410
exceptions: general fairness, and showing perjury. trial begins.

Mariotta claimed it was error for the court to exclude evidence that A rejected offer of immunity is admissible to show a
US v. Biaggi
he refused an immunity offer. defendant’s innocent state of mind.
Showing of liability insurance may not be used to prove wrongful or
411 negligent behavior, but may be used to show bias, ownership, Encourages people to own liability insurance.
agency, or control.
McCoy’s attorneys asked illiams why she saw a chiropractor, and the Evidence of liability insurance is inadmissible only
Williams v.
judge did not allow Williams to explain that she did so after an when the evidence is offered to show that the insured
McCoy
insurance adjuster spoke to her. acted negligently or wrongfully.
Cannot impeach a jury's verdict unless: (A) extraneous prejudicial
info was introduced to jury, (B) an outside influence affected jury, Allows jurors to tell the truth about undue, outside
606(b)
and/or (C) there was a mistake entering the verdict into the verdict influences.
form.
Juror testimony may not be used to impeach a verdict
Tanner was convicted of fraud and attempted to challenge his verdict
Tanner v. US UNLESS the testimony relates to an outside influence
by showing jury misconduct.
that affected the jury.

CHARACTER EVIDENCE
Don’t want to rely on someone’s supposed
404(a)(1) Prohibited use of character.
“propensity” to do something.
Evidence of a particular character trait is
People v. Zackowitz was charged with murder, and at trial the prosecution
inadmissible to show that a person acted in
Zackowitz introduced evidence that he possessed several guns.
conformity with that trait.

404(b) Prohibited use of past crimes, wrongs, or past acts (some exceptions) Can use past incidents to show motive, for example.

Evidence of similar ACTS may be admitted if there

Huddleston v. Huddleston was charged with selling stolen videotapes, and at trial, the
US prosecution introduced evidence of his other sales of stolen property.
Stevens was accused of robbery and assault and sought to introduce
US v. Stevens
evidence at his trial that someone else had committed a similar crime.
Trenkler was charged with building a bomb; at trial the prosecution
US v. Trenkler
introduced evidence of another bomb Trenkler had constructed.
Old Chief v. Prosecution refused Old Chief’s stipulation to a prior felony prior
US because they wanted to say what he did specifically.
US v. DeGeorge engaged in a series of transactions that artificially inflated the
2
is sufficient evidence to support a finding by the jury
that the defendant committed the similar acts.
Evidence that a defendant did NOT commit similar
crimes may be used to show that a defendant did not
commit the crime as charged.
Evidence of other criminal acts is admissible to show
identity of the person who committed the acts ONLY
if there is a high degree of similarity between the past
criminal acts and the charged crime.
A court abuses its discretion if it rejects an offer to
stipulate to a prior conviction when a prior conviction
is an element of the offense charged.
Evidence of prior acts is “inextricably intertwined”
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EVIDENCE 2017

with a charged offense, and therefore may be

market value of a yacht prior intentionally sinking the yacht and
DeGeorge
collecting insurance money.
Rape Shield: completely disallows reputation or opinion evidence
412 concerning the victim’s past sexual behavior. Only exception is
examples of past consensual sex between victim and alleged assailant.
People v. Abbot was accused of rape and assault with intent to rape; sought to
Abbott introduce evidence that prosecutor had engaged in prostitution.
Smith was tried for attempting idecent behavior with a juvenile; he tried
State v. Smith
to introduce evidence that the victim made false allegations in the past.
Olden v. Olden was accused of rape and was denied permission to cross-examine
Kentucky the victim regarding her cohabitation with another man.
Stephens claimed that an attempted rape accusation against him was
Stephens v.
fabricated because the victim was angry that he asked her about her
Miller
sexual activity with another man.
Knox was accused of rape and attempted to introduce evidence about the
US v. Knox victim’s prior sexual history to show that he was reasonably mistake as
to her consent.
admitted if it constitutes a part of the transaction that
serves as the basis for the crime charged, or when it
was necessary to do so in order to permit the
prosecutor to offer a coherent and comprehensive
story regarding the crime’s commission.
Evidence that a prosecutrix in a rape action had prior
sexual activities with men is relevant to show
consent.
Evidence that a victim has made prior false
allegations of sexual assault is not barred by the rape
shield law.
Shield laws are subject to the defendant’s Sixth
Amendment rights to cross-examine the accuser for
bias.
A defendant’s right to testify in his or her own
defense is NOT absolute and may be limited in order
to protect other legitimate interests.
Evidence of prior sexual behavior is not admissible to
show mistake regarding consent if there is no real
possibility that there was such a mistake.

Exception: permitted use of past sex assault (413) and child molestation Allowable exceptions for propensity arguments.
413+414
(414) Sexual assault def.  18 USC §513

Mound was tried for CSC of a child; prosecutor introduced evidence that FRE 413 does not violate the due process or Equal
US v. Mound
he had plead guilty to previous CSC that also involved a child. Protection clauses.

There is a belief, though perhaps not well founded,

Exception: permitted use of past alleged sexual assault and child
415 that sexual predators are more likely to repeat than
molestation, including in civil trials
other criminals.
Lannan v. Lannan was convicted of molesting a child after the jury heard evidence Evidence of prior CSC is inadmissible to prove a
State that he had molested other girls. defendant had a tendency to commit a sexual assault.
Evidence of other acts or crimes is NOT admissible
Kirsch was charged with molesting three girls; testimony that he had
State v. Kirsch to show a predilection for committing a certain kind
molested other girls was admitted.
of crime.
Evidence of a defendant’s other CSC will be
Guardia was accused of sexually assaulting two women during a medical admitted only if the probative value of the evidence
US v. Guardia exam; the prosecutor moved to admit evidence of similar allegations outweighs danger of undue prejudice, jury confusion,
made by other women. undue delay, waste of time, and needless presentation
of cumulative evidence.
Exception: permitted use of character evidence when entered by the See also 404(a)(2)(C) which allows prosecution to
405
defendant enter evidence to defend victim’s character.
Michelson called character witness to testify on his behalf, and four of Character evidence is evidence of a witness’s
Michelson v.
them were asked if they had heard about Michelson’s arrest for receiving knowledge of a defendant’s reputation, not evidence
US
stolen goods. regarding specific acts.
 Considers three factors: specificity, regularity, and
Exception: permitted use of habit, NOT character, to show a consistent unreflective/automatic. The more the behavior is
406
pattern any of those things, the more likely it is to be
admitted.
Halloran v. Evidence of a person’s habit is admissible to show
Halloran was injured when a can of Freon exploded; Virginia Chemicals
Virginia that he or she acted according to that habit on a
claimed Halloran regularly heated those cans.
Chemicals particular occasion.

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IMPEACHMENT
Five ways to impeach:
Any party may attack a witness's credibility, including the party who (1) character (2) inconsistent statement (3) bias (4)
607
called the witness. sensory or mental defect (5) other evidence which
contradicts what the witness claimed.
Character evidence MAY be used to support or attack credibility, but
Otherwise, everyone would enter this sort of
608(a) evidence of truthful character may only be entered once that character
evidence…all the time!
has been attacked
Can impeach, just can’t use new evidence extrinsic to
"Extrinsic evidence" is not admissible to prove specific instance of the case when trying to prove specific acts. Only
608(b)
witness's conduct to attack or support character for truthfulness exception: if the extrinsic evidence proves material
element of the case.  
Under 606(a), a party may introduce reputation or
Whitmore was convicted after the court refused to allow him to
US v. opinion evidence of a witness’s character for
introduce character witnesses to challenge the credibility of the
Whitmore truthfulness only if the character is acquainted with
prosecution’s primary witness.
the witness and the circles in which he has moved.
ONLY applies to impeachment. Gets around 404(b)
609 Rules for attacking credibility (see Prof. Ortman's logic map)
this way. 
Before evidence of past felonies may be admitted for
US v. Brewer was charged with kidnapping and transporting a stolen car; he impeachment, the court must determine whether the
Brewer moved to suppress the evidence of past prior felony convictions. probative value of admitting the convictions
outweighs the prejudicial effect on the defendant.
613 Prior inconsistent statement.

HEARSAY
(“a statement / made by a declarant / outside a current trial or hearing / to prove truth of matter asserted”)
Five Main Groups of Exceptions
1. Statements by declarants who testify (FRE 801(d)(1)) [3].
2. Admissions (FRE 801(d)(2)) [5].
3. Unrestricted exceptions (FRE 803) [23]. (applies whether declarant is testifying or not)
4. Statements by unavailable declarants (FRE 804(a)) [5].
5. Catchall (FRE 807).

"Statement" (intended written, oral, or non-verbal assertion),

"Declarant" (the person who made the statement), and
801
"Hearsay" (statement declarant does not make while testifying at current trial AND is offered in evidence to prove truth of
the matter asserted).
Statements made by an agent or employee that
Mahlandt v. Wild Mahlandt claimed he was injured by a wolf kept by Poos, and he concern a matter within the scope of the agency or
Canid Survival & attempted to intro evidence of statements made by Poos that employment AND are made during the existence of
Res. Center confirm the wolf injured him. the relationship are admissible, even if those
statements are not made to third parties.
Exception: an adverse party may "refresh" a witness's memory
The document can be just about anything; doesn’t
612 with a writing; court may require the writing or document be shown
even have to be admissible.
to the other party. FRE 612(a)(2).
Exception: opposing party's own statements; (A) express
admissions made by the party; (B) adoptive admissions manifested
801(d)(2)
by the party and believed to be true; (C) authorized admissions by A party is responsible for his or her own statements!
(A)-(D)
someone authorized; (D) vicarious admissions made by a party’s
agent within scope of agency relationship;
Exception: statement made by the party's co-conspirator in
801(d)(2)(E) A party is responsible for his or her own statements!
furtherance of the conspiracy.
Statements made by co-conspirators during a
Statements made by alleged co-conspirator were admitted in B’s
conspiracy are admissible if the existence of the
Bourjaily v US trial for conspiracy; B claimed there was insufficient proof the
conspiracy is proven by the preponderance of the
statements were made in furtherance of any conspiracy.
evidence, including the statements.
613 Exceptions: statements of past witnesses don’t have to be disclosed Must be made under oath. In MI the witness can
to witness (exception in MI), but must upon request be shown to request the see the statement first.

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adverse party’s attorney,

Barrett was not allowed to into evidence that a witness who
Prior inconsistent statements of a witness are
US v. Barrett implicated him had said earlier that B was not involved in the
admissible to impeach the credibility of that witness.
crime.
Prior inconsistent statements may not be introduced if
The prosecution intro’d a statement from a witness that said that
US v. Ince their only purpose is to circumvent hearsay rules and
Ince confessed to the crime.
admit an otherwise inadmissible confession.
801(d)(1) Exceptions: (A) inconsistent, (B) consistent, and (C) identifying (B) must be offered to rebut charges of recent
(A), (B), (C) statements about a party or person related to the instant matter. dishonesty
Tome claimed that sexual abuse charges against him were
Prior consistent statements are admissible to rebut a
fabricated, and that the prosecution introduced consistent
Tome v. US charge of fabrication only if the consistent statements
statements made after the motive to fabricate those statements
were made before the motive to fabricate arose.
arose.
Commonwealth v. Weichell was tried for 1-D murder, and a composite sketch The record of a witness’s out-of-court description of
Weichel prepared from a witness’s description was admitted into evidence. a person IS admissible.
Owens was charged with attacking Foster, who could not A witness is subject to cross-examination concerning
US v. Owens remember who attacked him but could recall identifying Owens in a statement if he or she is placed on the witness
a lineup some weeks after the attack. stand, under oath,, and responds willingly.
Hearsay, though not as reliable as other evidence, is
Exception: witness is unavailable (privilege, refuses, forgot, dead,
804 still preferable to a complete loss of the declarant’s
absent).
evidence.  
Former testimony is NOT hearsay if a declarant is
Duenas sought to suppress a confession he gave to the police in
unavailable at trial, but ONLY if it is offered against
US v. Duenas violation of his Miranda rights. The officer who oversaw the
a party who had an opportunity and similar motive to
confession died before the trial and could not be cross-examined.
develop it be direct, cross, or redirect examination.
Testimony at a prior trial or hearing will be
Lloyd did not appear in his action, and his testimony at a prior
Lloyd v. American admissible if a party with like motive to cross-
admin hearing arising out of the same incident was admitted at
Export Lines examine the witness would have been given enough
trial.
time to do so.
Exception: a GENERAL exception that may allow for the
807 Dallas County 
inclusion of certain material evidence (very rare!)
Hearsay evidence may be admissible if there is NO
Dallas County v.
other way of proving facts in the hearsay statement
Commercial CU introduced evidence of an old newspaper articile to show that
AND if there are circumstances that show the
Union Assurance DC’s courthouse had been damaged by fire over fifty years earlier.
evidence is trustworthy enough without the need for
Company
cross-exam.

HEARSAY - UNAVAILABILITY EXCEPTIONS:

Exception: statement given at a legal hearing/trial/deposition and is

804(b)(1) now offered against a party who had an opportunity to develop that  
statement by cross-examine or redirect.
A person who is going to die “will not go to
804(b)(2) Exception: "death statements" (belief in imminent death) death with a lie on his lips.” They have
nothing to gain or lose by lying.
A dying declaration must have been while
Shephard v. Shephard’s wife asked her nurse about having a bottle of whiskey
defendant had NO hope of recovery and
US tested for poison, and then claimed Shephard poisoned her.
knew death was imminent.
Exception: statements made against declarant's best interests (under Pay attention to definition of “against
804(b)(3)
the circumstances). interest”
Harris made a statement incriminating both himself and Williamson, The parts of an out-of-court statement that
Williamson
but he refused to testify at trial and his statement was admitted into do not inculpate the declarant are NOT
v. US
evidence. admissible as statements against interest.
Exception: statements made against the party who cause declarant's Wrongdoer should not benefit from making
804(b)(6)
unavailability. a witness unavailable!
US v. Gray Prosecution sought to introduce statements made by defendant’s late A defendant who wrongfully and
husband, how had been murdered by defendant, in a trial for mail and intentionally renders a declarant unavailable
wire fraud. as a witness forfeits the rights to exclude, on

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hearsay grounds, that declarant’s testimony

at any proceeding.
Exception: an absent declarant's credibility may be attacked, then
806 supported, by an evidence that would be admissible for those  
purposes had the declarant testified as a witness.

HEARSAY - EXCEPTIONS REGARDLESS OF UNAVAILABILITY:

Exception: "present sense impression" requires three elements:

803(1) Basically, no time to lie!
(1) subject matter, (2) perception, and (3) simultaneousness
Exception: “excited utterance” requires four elements: (1)
803(2) startling occurrence, (2) subject matter statement, (3) immediate Same as 803(1).
perception, (4) and spontaneity..
Exception: statement of declarant's "then-existing state of mind"
803(3) (motive, plan) OR "emotional, sensory, physical condition" Not an inference; must be stated or recorded.
(feeling, pain), but NOT statement of memory
Mutual Life Hillmon brought suit to recover on three life insurance policies; Out-of-court statements that express a
Insurance v. Mutual attempted to introduce letters from a man they claimed declarant’s present intention are admissible to
Hillmon was the ACTUAL decedent. prove what that intention was.
803(4) Exception: statement about med diagnosis or med history Must be intended to promote treatment.
Medical diagnosis exceptions depend on
whether the declarant’s motive in making the
The defendant was prosecuted for assault with intent to commit
US v. Iron statement was consistent with the purpose of
rape; victim’s doctor was allowed to testify about what the victim
Shell the exception (diagnosis) and on whether it
told him had happened.
was reasonable for the MD to rely on the
statement for diagnosis.
Exception: A record that (A) the witness knew about yet forgot,
Very trustworthy if record as defined here;
803(5) (B) was made by the witness while fresh in his memory, and (C)
fresh in memory.
accurately reflects witness's knowledge
Taylor witnessed Johnson’s murder, and shortly after he gave For a recording of a past recollection to be
Johnson v. police a statement. He later testified that he could not recall the admissible, the witness whose recollection is
State crime. Said after seeing his statement that he “guessed” the refreshed must testify that the recording is
incident was fresher in his mind when he made the statement. accurate.
Pay attention to the five elements (time, in
Exception: Records of regularly conducted activity, or the course of business or org, regular process,
803(6)+(7)
absence of such a record. affirmed by testimony or 902(11), and appears
trustworthy)
Hoffman and his wife were involved in an accident with a train; A report of an accident not made in the regular
Palmer v.
the railroad sought to introduce evidence of a report of the course of business cannot be admitted as a
Hoffman
accident as a business record. business record to exempt hearsay. Duh.
Must (A) set out office activities, must involve
a matter observed while under legal duty to
803(8) Exception: PUBLIC records, or the absence of one.
report, the facts come from an authorized
investigation, and (B) it is trustworthy.
Beech
Rainey sued Beech for his wife’s death in an airplane crash, and Investigatory reports are NOT admissible
Aircraft
Beech introduced the report of an official investigation that said solely because they set out a conclusion or
Corp. v.
the pilot error caused the crash. opinion.
Rainey

CONFRONTATION CLAUSE
RULES
Two parts: (1) does the hearsay statement have an indicia of reliability, and (2) does it fit firimly within
Ohio v. Roberts common law exceptions? If it is firmly rooted” in an exception, then the statement will come in without a
confrontation issue.

(1) Ex Parte statements, (2) formalized testimonial documents, and (3) an objective witness’s reasonable belief
Crawford v. Washington
that the statements would be used in a legal proceeding against the object of the statement.

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Non-testimonial = statements made in the course of a police investigation under circumstances objectively
indicating the primary purpose of the interrogation is to enable police to assist in that emergency (rather than
Washington v. Davis preparing for trial).

Testimonial = primary purpose is to aid officers in an investigation.

Bullcoming and
Testimonial if the “primary purpose” is to establish past events relevant to the prosecution.
Ohio v. Clark

Justice Thomas “Formal and solemn”

Bullcoming dissent,
“indicia of reliability” / look at both the declarant and interrogator’s perspective
Michigan v. Bryant

CASES
Crawford was convicted of assault and
Crawford v. attempted murder after his non-testifying wife’s
?? / 58
Washington tape-recorded statement was admitted against
him.
When police officers were dispatched to the
scene of a shooting, they questioned the victim,
Michigan v.Bryant ?? / 59 who identified the shooter and died shortly
thereafter; the victim’s statements were admitted
in court.
Bullcoming’s BAC level was analyzed and
certified by a different analyst than the one who
Bullcoming v. New testified about the analysis at trial; defense
?? / 61
Mexico argued that the admission of the missing
analyst’s testimony violated the Confrontation
Clause.
The Sixth Amendment’s Confrontation Clause
demands that, in order for an out-of-court
statement to be admitted, the witness must be
unavailable AND the defendant must have had a
prior opportunity to cross-examine the declarant.
Out-of-court statements made to police by an
unavailable witness are admissible at trial when
the primary purpose of the police interrogation
eliciting the statements was to enable police to
meet an ongoing emergency.
The accused in a criminal case has a right to be
confronted with the analyst who certified a
forensic lab report used against him UNLESS
that analyst is unavailable and the accused had
an opportunity, pre-trial, to cross-examine him
or her.

EXPERTS

Opinion testimony by a lay witness is limited: (a) rationally-based on

the witness's perception, (b) helpful to understand witness's testimony Narrow allowance for opinion testimony by
701
or determine a fact at issue, AND (c) not based on scientific, non-experts.
technical, or other specialized knowledge

Experts are QUALIFIED by knowledge, skill, experience, training,

The old Frye test is just a factor in the 702
702 and/or education; they may testify so long as their testimony is
elements.
sufficiently and reliably based on their expertise.

At his trial for murder, Frye offered the testimony of an expert on the An expert opinion based on science will only be
Frye v. US results of a lie detector test Frye took that showed he was telling the admitted if the science is sufficiently established
truth. and gained acceptance in its field of work.

Jinro America
Expert testimony must be confined to witness’s
Inc v. Secure Pelham testified about Korean culture; basically stereotyped…
expertise.
Investments Inc

State v. An expert witness testified that Batangan’s daughter behaved in a An expert may not offer an opinion that a
Batangan manner consistent with being sexually assaulted. witness is telling the truth.

Expert testimony must be based on opinion or facts the expert has

Don’t want to mislead jury about the witness’s
703 observed or been made aware of, even if those opinions or facts would
expertise.  
otherwise be inadmissible.

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At his trial for murder, Frye offered the testimony of an expert on the An expert opinion based on science will only be
Frye v. US results of a lie detector test Frye took that showed he was telling the admitted if the science is sufficiently established
truth. and gained acceptance in its field of work.

Though not generally objectionable, an expert may NOT testify to an Experts can’t testify that a party drove
704 "ultimate" issue in a criminal case (such as someone's mental state) as “recklessly” when recklessness is an element of
those must be left from the trier of fact alone. the charge.  

Expert testimony is not allowed on legal

An expert witness gave testimony that a police officer’s actions
Hygh v. Jacobs conclusions that are to be reached by the fact-
constituted force that was not justified and therefore improper.
finder.

An expert MAY state an opinion without first testifying to underlying

705 facts, though a court may order otherwise, and the expert may be
required to disclose those facts on cross-examination.

General acceptance is NOT a precondition to

Daubert v. D opposed Merrell Dow’s SJ motion with scientific evidence, but the
admissibility so long as an expert’s testimony
Merrell Dow trial court did not consider that evidence on the ground that it was not
rests on a “reliable foundation” and is relevant
Pharm (CIRC) generally accepted by the scientific community.
to the case.

All expert testimony must be evaluated to

Kuhmo Tire An expert witness for Carmichael offered testimony that a defect in
determine if it has a connection to the relevant
Company v. the manufacture or design of a tire was the cause of C’s car tire
inquiry and a reliable basis in the knowledge
Carmichael blowout.
and experience of the relevant discipline.
Expert testimony must be reliable equal to that
of other technical evidence held to be admissible
At K’s trial for rape, prosecution entered evidence regarding rape
State v. Kinney AND the evaluation of other courts allowing
trauma syndrome.
admission of the evidence is complete and
persuasive.

PRIVILEGES
Courts must develop privileges concepts through common law.
501  
Privileges include ATTORNEY CLIENT PRIVILEGE (FRE 502)

Disclosure of attorney-client privileged

communication does not operate as a waiver of
Williams sued her employer for retaliatory discharge, and the employer that privilege if (1) the disclosure is inadvertent,
Williams v. DC claimed to have inadvertently disclosed during discovery certain docs (2) the holder took reasonable steps to prevent
that were subject to attorney-client privilege. the disclosure, and (3) the holder promptly took
reasonable steps to rectify the error, including
FCRP 26(b)(5)(B).
Courts may undertake in camera to determine if
the crime-fraud exception will bar a claim of
Prosecution urged trial court to undertake an in camera review of
ACP only if there is a factual showing adequate
US v. Zolin evidence before making a ruleing that the evidence was protected by
to support a good faith belief that a review of
attorney-client privilege.
the materials may reveal evidence that
establishes the claim that the exception applies.
In Re: Grand
Jury ACP applies to government attorneys to the
George, former counsel for Gov, claimed ACP and refused to testify.
Investigation extent it applies to private attorneys.
[Rowland]
The spousal testimonial privilege (STP) and the marital confidences
505
privilege (MCP)

A witness may be neither barred from

Trammel’s wife voluntarily chose to testify against him at his trial for
Trammel v. US testifying, nor compelled to testify, against his
drug smuggling and conspiracy.
or her spouse.

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Hawkins Read the casebook

In Re Grand
A father was called to testify against his son and his daughter, the latter There is NO testimonial privilege for parent-
Jury
of whom was held in contempt for refusing to testify against her father. child communications.
Proceedings

BEST EVIDENCE RULE

901 Authenticating or Identifying Evidence
901(b)(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that
handwriting is genuine, based on a familiarity with it that was not
acquired for the current litigation.
901(b)(5) Opinion About a Voice. An opinion identifying a person’s voice — Wife may recognize voice and that can be
whether heard firsthand or through mechanical or electronic authentication
transmission or recording — based on hearing the voice at any time
under circumstances that connect it with the alleged speaker.
902 Evidence that is self authenticating

Flowcharts
801(d)(1)
801(d)(1)(A) Inconsistent Statements

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801(d)(1)(B) Consistent Statements

801(d)(1)(C) Identifications

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801(d)(2)
801(d)(2)(A) Statements or Actions of Party-Opponent

801(d)(2)(B) Adoptive Admissions

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801(d)(2)(C-E) Statements or Actions of Third Person

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