MASTER EVIDENCE OUTLINE For the record, there’s another outline out there that follows the class

more closely. This one is (I think) better ordered for exam studying. Evidence, Generally I. Definition a. Evidence is a body of law that dictates the manner in which facts are presented to the trier of fact. i. The rules are designed to permit evidence, but with safeguards so they don’t have to guess. ii. The rules are far more relaxed at bench trial. iii. Judge is the gatekeeper. He must assume all proffered evidence is true, however, b/c only jury can judge believability. iv. It is only evidence if the jury is going to decide something about it. v. Standard for evidence: could reasonable jurors reach the conclusion for which the fact was offered to prove. Who admits evidence? a. FRE 104(a) – The judge handles all preliminary questions of admissibility, qualifications of witnesses, and existence of privileges. He is allowed to look at the evidence itself to determine admissibility, called bootstrapping. b. FRE 104(b) – If the relevancy of evidence depends on fulfillment of a condition of fact, the court must submit it to the jury, so long as evidence passes part (a). Substantive v. Impeachment a. See page 10 for thorough definitions. Relevancy I. FRE 401 a. “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 without the evidence” b. FRE 402 – All relevant evidence is assumed admissible c. Three questions to determine relevancy i. What is the evidence being used to prove? ii. Is that proposition provable in this case? iii. Does the evidence help in proving that proposition? d. Look at all pleadings & motions as well as common sense, general knowledge, etc. e. Most judges err on the side of admissibility f. What is relevant at one point may not be relevant at another point. FRE 403 a. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by i. The danger of unfair prejudice,




some tort actions. Sex Offenses – An Exception to Prohibited Propensity Inference i. (3) Character of Witness – FRE 607-609 discuss how the character for truthfulness of the witness may be introduced (these rules are discussed below). Usually. (2) Character of the Victim – Defense can introduce character of victim in his case-in-chief a. Definition i. Character is general. etc. but the second one is this. Person other than accused was source of semen/injury ii. (1) Character of the Accused – evidence is introduced to rebut character evidence given by defense a. ii. Specific instances of sexual behavior between victim and accused can show consent . Prosecution can rebut by cross or calling rebuttal witness 2. a. Needless presentation of cumulative evidence. v. but relevancy is rare.III. or for civil trials with a “criminal nature” – i. FRE 404 only prohibits evidence of character offered to prove an action. Prohibited Propensity Inference i. c. (b)(1) – Criminal case – evidence can be introduced if: i. Character is defined as the traits that comprise one’s personality. or vi. Character Evidence a.” b.e. Generally. Also. NOTE: FRE 404(a) is generally only good for criminal trials. whereas habit is specific b. or iv. Misleading the jury. ii. Waste of time. this cannot be offered substantively. Only for homicide 3. Confusion or issues. but in Kentucky it can. Habit is the repeated response to specific stimulus and has nothing to do with character iii. By considerations of undue delay. Victim’s previous sexual behavior 1. FRE 412(a) – In a civil or criminal sex offense case. the first objection is relevancy. Evidence of character that is just supposed to prove character is ok when relevant. Remember that all evidence is prejudicial. evidence to prove a victim’s sexual predisposition or previous sexual behavior is inadmissible unless: a. defamation and negligent hiring are two examples. FRE 404(a) – Character evidence is inadmissible for substantive proof unless: 1. c. or iii. 1. It’s “what you do when no one’s looking”. so it must be unfairly prejudicial to fall under this rule. ii.

Otherwise admissible and ii. Under FRE 413. or that D did them. Extrinsic evidence is never allowed. 4. 6th Amendment Confrontation Clause has been read to permit. then judge lets them in under FRE 104(a) b. and 415. then it’s for the jury to decide under FRE 104(b). because there is a greater chance for jury misuse. If clear D actually did them. 3. FRE 404(b) – evidence of prior crimes. FRE 405 – If character evidence is admissible. If unclear that they actually occurred. Absence of Mistake or i. FRE 405 tells how it can come in. Exclusion of evidence would violate accused Constitutional right b. Opportunity c. FRE 404 tells what can come in. i. it’s either a big mistake under 404(a). wrongs. d. Motive b. ii. Intent d. Knowledge g. are not permissible under the Prohibited Propensity Inference. Absence of Accident 2. Preparation e.iii. . ii. (b)(2) – Civil case – can introduce evidence of victim’s sexual behavior/reputation if i. Defendant’s previous sexual offenses or child molestation is admissible and substantive where relevant. e. The greater the similarity between the previous crime and the current charge. Who decides admissibility of prior bad acts? a. or it’s being offered under 404(b). On Exam: If you see prosecution offering character evidence in his case-in-chief. Identity h. for all civil and criminal trials. in very rare circumstances. etc. the less likely that it will be admitted. cross of victim on sexual behavior in order to establish a motive to lie. and only where character is an essential element. This has very limited utility. Prior Bad Acts i. Plan f. unless it is to show proof of: a. Specific Instances of Conduct are allowed only on cross. 414. Defendant’s previous sex offenses 1. Probative value “substantially outweighs” prejudicial c. only testimony is allowable for proof. so long as judge feels a reasonable juror could decide either way.

Habit is to individuals as routine practice is to organizations. and a. 2. iii. Statements made in course of plea bargaining that don’t result in a guilty plea iv. or proving an effort to obstruct a criminal investigation/prosecution. denying a charge of undue delay. ii. b/c the latter doesn’t deal with character evidence Habit & Routine Practice a. This makes sense for public policy reasons. 4. but do not admit liability. unless they are withdrawn ii. b/c we want the correction to take place immediately. Must be attempting to show someone’s lying b. You can use such evidence to prove bias of a witness. b. rather than just one instance of the behavior. the judge uses a preponderance test for admissibility. Courts look at similarity of time & conditions. FRE 407 – evidence of subsequent remedial measures cannot be used to prove negligence. This is for civil trials.IV. Control. This is where you admit prosecution has a prima facie case and has evidence to get conviction. Subsequent Remedial Measures a. i. Feasibility of precautionary measures (if controverted). i. or need for warning/instruction. V. VI. ii. b. judge admits if reasonable juror could believe the witness. Must show there was a regular. 3. Exceptions to FRE 410: . Covers only felonies. except for facts presented during the negotiations that were discoverable anyway. FRE 410 – determines admissibility of the following i. 2. Impeachment a. FRE 408 – any part of the compromise negotiations is inadmissible to prove liability. culpability. It can be used to show 1. and the volume of similar conditions. Ownership. If FRE 104(b). Offers of Compromise and Admissibility of Prior Pleas a. No federal rule. Guilty pleas are always admissible. FRE 406 – Evidence of habits is admissible if used to show conformity of habit and action that led to suit. Similar Occurrences a. defect in production/design. not after years of trial. Nolo Contendre pleas are inadmissible 1. FRE 405 has nothing to do with FRE 404(b). i. VII. If FRE 104(a). Must show proof that it could or could not be done. not misdemeanors iii. not just that it was advisable. specific response to stimulus. Pay attention to whether this is a FRE 104(a) or (b) situation.

Like if speaker knew of a dangerous condition c. Such as: a. This happens when words come in to explain. Introduction a. i. This focuses on the assertion and intent. In the presence of counsel Hearsay I. This is an outdated rule designed to make the actual speaker of a statement testify and be crossed in court. 1. c. is it non-hearsay under FRE 803 or 804? iv. Look to the timing of out of court statements and who made them. In a criminal proceeding for perjury. try to fit it into an exception. Defining Hearsay a. There are about two rules and 29 exceptions. or the nonverbal conduct of that person if intended by that person to be an assertion. FRE 801(a) – A statement is an oral or written assertion. b. If so. ii. and c. Test for determining hearsay i. Must have strict scrutiny into whether nonverbal conduct and silence is intended as an assertion. On record. is the statement relevant at this time? iii.Hearsay is a statement. If another statement from the same plea bargain is introduced. II. not on declarant himself. so this doesn’t keep much out. If it is offered to prove truth of contents.1. offered in evidence to prove the truth of the matter asserted. and in the interest of fairness another statement must be introduced to explain it. ii. other than one made by the declarant while testifying at the trial or hearing. but FRE uses an Assertion Oriented approach. give character to. . we used a Declarant Oriented approach. Merely showing the statement was made b. and it is hearsay. Historically. Showing the state of mind of the speaker i. FRE 801(c) . FRE 801(b) – A declarant is any person that makes a statement. Statements were made under oath b. Showing the state of mind of the hearer d. b. ii. i. If all else fails. 2. or show the legal effect of otherwise equivocal conduct. Showing statement has independent legal significance i. Is the evidence being offered for any reason other than proving the truth of its contents? 1. if a.

or 3. Non-Hearsay Rules under FRE 801(d) i. and the statement is 1. so be sure to determine where one ends and another begins. scientific equipment are not sources of hearsay. or 2. that’s enough b. (C) One of identification of a person made after perceiving the person a. then it’s probably hearsay. There is a Need to show evidence ii. then it’s probably non-hearsay. I.e. c. he is “subject to cross-examination” ii. If it only proves by inference. If witness remembers the identification and nothing else. or a. animals. which was given under oath. (1) Prior Statements by Witness – If the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement. requiring you to jump through even the most minor mental hoop. There are Circumstantial Guarantees of Trustworthiness b. conspiracy to rob a bank and another to cover it up. (A) Inconsistent with the declarant’s prior testimony. or 2. b/c they can’t be declarants. or 3. (B) A statement of which the party has manifested an adoption or belief in its truth. made during the existence of that relationship. (2) Admission by Party Opponent – non-hearsay when a statement is offered against a party and it is 1. you can use this exception 5. b. (C) A statement by a person authorized by the party to make a statement concerning the subject. Two premises are behind all of these: i. Hearsay Exceptions and Exemptions a.III. If a statement directly proves the point for which it is offered. Many conspiracies have sub-conspiracies. d. (D) A statement by the party’s agent/servant concerning a matter within the scope of the agency/employment. or 4. General Rule – a conspirator takes the conspiracy as he finds it. Inanimate objects. (E) A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy a. i. . (A) The party’s own statement in either an individual or representative capacity. “In furtherance of” means mere statements about a conspiracy are not enough to use this exception c. NOTE: If declarant is alive and capable of taking the stand. If you could find Respondeat Superior in tort law. (B) Consistent with the declarant’s prior testimony and being used to rebut a charge that declarant is lying.

against a declarant’s interest at the time it occurred. FRE 803 – Hearsay Exceptions when the Availability of the Declarant is Immaterial – Each of the following is an exception i. (2) Excited Utterance – Statement made under stress of a startling event/condition. must be inconsistent with that party’s current position at trial. 2. c. and a direct inference based on such a statement is excepted under this rule. There is a difference between the criteria for admissibility for Admissions and Declarations Against Interest (discussed later) 1. v. (4) Statements for Purpose of Medical Diagnosis/Treatment – These statements are allowed because it is assumed one doesn’t lie to the doctor about such things. Only opposing party can have the memorandum made an exhibit 2. the witness must have personal knowledge. in any form. or Physical Condition – Any statement relating to these is ok. unless it relates to a will 2. But can’t make a statement of memory or belief to prove the fact remembered or believed. parallel or immediately after that happening ii. (6) Records of a Regularly Conducted Activity – basically any regularly recorded business record. State of Mind evidence is always admissible if relevant. iii. because an indirect inference based on such a statement is nonhearsay. This is used when something is read into the record. but not admitted. 4. Doesn’t have to be direct. and can be either fact or opinion. while the jury is free to disbelieve Evidentiary Admissions if they choose. Present Memory Refresher – you can refresh a witness’s memory with anything. 1. 1. you may read from a memorandum made or adopted by the witness when the situation was fresh in his mind. that’s ok.iii. iv. Judicial Admissions are binding when made. but the item used does not come in as evidence vi. and it must be fact. (1) Present Sense Impression – Whenever something is said to describe an event/condition. Need not be immediately afterwards. iv. (3) Then Existing Mental. Declarations Against Interest are made by non-party witnesses. The test here is whether the statement looks to the present or future (admissible) or to the past (inadmissible) 3. Emotional. 1. You need a witness to submit these files . is admissible 1. Admissions must be made by a party. have no requirement of personal knowledge. If child tells mother who then tells doctor. (5) Recorded Recollection – if witness used to know something but can’t remember now.

3. nor is the final judgment of a trial. When exempted by privilege from testifying 2. If any of the above five are true due to some wrongdoing of proponent. When is a witness unavailable? 1. and factual findings resulting from an investigation (unless it’s a criminal case not against the Government). 3. even after court orders him to do so. (18) Learned Treatises – admissible substantively 1. This often leads to Multiple Hearsay issues. 1. No need for a sponsoring witness. it’s under this. depending on type of trial before this one 1. (22) Judgment of Prior Conviction – when judgments are deemed relevant under FRE 410 (above). for the same reasons. Read into evidence. ON EXAM – anytime someone’s trying to get in a report. Covers all records pertaining to activities of a business. When he persists in refusing to testify on a subject. but not submitted as an exhibit. The predecessor in interest requirement is simply that this prior party had a chance to develop the testimony . but cannot affect admissibility d. ii. There’s a fairness aspect here. 3. A predecessor in interest is the party in the prior trial that was asking the same questions. 2. When he is unable to be present because of death or physical/mental illness 5. FRE 804 – Hearsay Exceptions – When Declarant is Unavailable ONLY i. but nolo contendre pleas are. All government officials are considered trustworthy 4. Criminal to Civil – testimony from a criminal case may be admissible in a civil case as long as predecessor in interest requirement is satisfied a. Only requires an expert witness to rely upon it. a guilty plea is not hearsay. but FRE 805 says hearsay within hearsay is acceptable.2. that you are. When he testifies to a lack of memory on the subject 4. matters observed pursuant to a duty to report imposed by law. b. (8) Public Records and Reports – this covers matters not reported regularly. ix. (1) Former Testimony – can be admissible. the same way that 803(6) covers regularly reported matters. so long as each instance of hearsay can be justified individually. When he is absent from the hearing and the proponent of a statement has been unable to get him there by process or other reasonable means a. Pending appeals may be shown. 1. then the witness will not be declared unavailable. Can’t introduce law enforcement reports as evidence in a criminal trial viii. 2. vii.

by direct. his statement concerning the cause of that death is admissible 1. and can be either fact or opinion. 4. Civil to Criminal – Defense can use Prior Testimony. Contradicts a claim declarant is making now. Declarations Against Interest are made by non-party witnesses. Adequate indicia of reliability – this is shown whenever something is within a “firmly rooted” hearsay exception a. (4). Who is the party against whom the testimony was originally offered? b. or criminal risk to declarant. Who is the party against whom the testimony is now offered? c. or 3. have no requirement of personal knowledge. FRE 801 is firmly rooted b. 14 Amendment Due Process Clause . This last one must have some corroborating circumstances to vouch for it. proprietary. Only used by prosecution for homicide or civil equivalent iv. (8). Did party #1 have an opportunity and motive to test the testimony when first offered? d. Is the motive of party #1 in testing the evidence similar to the motive part #2 has if allowed to test the evidence? iii. a. must be inconsistent with that party’s current position at trial. but the prosecution cannot 4. cross. Constitutional Issues i. Prior Testimony Test a. There is a difference between the criteria for admissibility for Admissions and Declarations Against Interest a. and had the same motives you do. Unavailability of a witness 2. against a declarant’s interest at the time it occurred. and it must be fact. at the time of its making it: 1. Exposes declarant to criminal liability while at the same time exculpates the accused. or re-direct. 2. e. & (22) are not firmly rooted th ii. FRE 803(1). (3) Statement Against Interest – any statement is admissible if. Admissions must be made by a party. b. Civil to Civil – same as above 3. 6th Amendment Confrontation Clause – requires two elements to be present to admit hearsay evidence against a criminal defendant 1. Creates a pecuniary. (2) Dying Declaration – If declarant has personal knowledge and a belief of impending death. 2. (18). the witness must have personal knowledge.

v. FRE 611(c) – prohibited during direct. c. Mechanics of Cross-Examination a. case law allows all prior inconsistent statements to be substantive. you cannot move for a new trial or a j. FRE 607 – any party may attack the credibility of a witness.” ii.n. Impeachment Evidence – evidence introduced solely for the purpose of attacking a witness’s credibility or character for truthfulness. Any witness can be impeached – even your own Impeachment and Cross I. b. ii. FRE 611(a) – the court exerts reasonable control over the order and method of all interrogation and presentation Collateral Fact Rule II. FRE 801(d) allows prior inconsistent statements under oath to be substantive. a child. If yes. It may not be used for denying or supporting a Motion for D. If no.v. so long as it’s relevant c. 2. the Wide Open Rule allows for questioning about anything in cross. Substantive v. In KY & OH. Requires that a hostile witness be elderly. Testimony given on cross may be substantive b. This is what is used for a Motion for Directed Verdict at the end of a party’s presentation to the jury. ii.1. iv. Impeachment evidence always requires a limiting instruction! 1. then impeachment a. Scope of Cross i. III. Substantive Evidence – evidence which the jury may consider in evaluating a party’s case-in-chief i. b/c it’s being offered “to show the statement was made. iii.V. and must find an exception. Impeachment Evidence a. Is it being offered to prove the truth of its contents? 1. This would be hearsay. . In KY. but permissible on cross. Court will not allow a party to introduce hearsay under the mere guise of impeachment evidence. FRE 611(b) – in federal court. This contention must have substance. iii. Without this. This non-hearsay.o. including the party that called that witness. ii. Leading Questions i. How do you know if evidence is substantive or impeachment? i. or that you’re just going through the preliminary matters. Court also has discretion to allow leading questions where necessary. cross can only cover issues brought up on direct ii. then substantive a. i. Has a separate set of rules from the substantive evidence rules. Rule 105 Limiting Instruction – not really effective.

i. Extrinsic Evidence includes anything not from the witness’s own mouth. or by the testimony of another. The witness can plead the 5th. Impeachment by Contradiction – occurs whenever a witness is impeached by his own prior statement. If the witness being attacked is a criminal defendant. 3. Extrinsic evidence regarding bias. For the accused. FRE 609(a)(2) – convictions of crimes involving dishonesty or false statements must be allowed in. and b. 2. Prior Convictions 1. Character of the Witness i. The evidence refs only to character for truthfulness or untruthfulness. but an affidavit should be considered as being from the witnesses own mouth. FRE 608 and 609 all limited use of character evidence for impeachment. a. b. FRE 609(b) – any crime more than 10 years old doesn’t come in unless the judge decides the probative value is greater than the prejudicial effect 4. Difference between 609 and 404 . FRE 608(a) – a witness’s character & reputation may be attacked if: a. Can be 51%-49%. the court should give the limiting instruction sua sponte. Evidence of truthful character is admitted only after the character of the witness has been attacked by the adverse party 2. Extrinsic Evidence of a fact which is purely collateral is not allowed to impeach a witness b. Court allows it on cross. ii. unless: a. Collateral Fact Rule applies here. 4. even when prior inconsistent testimony is brought up. interest. due to probative quality of the truthfulness or untruthfulness. Remember FRE 404 prohibited all use of character evidence in substantive evidence. Methods of Impeachment a. FRE 608(b) – Can’t use extrinsic evidence to attack/support witness’s credibility in instances of specific conduct.IV. mental incapacity or a defect in perception is always admissible 3. Prior Bad Acts 1. the prejudicial value just has to outweigh the probative effects. Can’t just be 51%-49% b. ii. the prejudicial value must substantially outweigh the probative effect. b. FRE 609(a)(1) – allows you to prove criminal convictions by use of extrinsic evidence a. For a normal witness.

There is some judicial discretion here as well iii. The opposing party can cross thereon 3. Prior Consistent Statements i. video tapes and motion pictures . Writings I.” i. the more likely the prior one can come in. FRE 613 – If not under oath. If not. Writings/Recordings – letters. printing. 2. look to Best Evidence Rule d. ii. it doesn’t come in under FRE 613. and b. Little to no application for this rule in modern times. If the prior statement was made under oath. Photographs – still photographs. This is substantive. b. Instead it is an admission under FRE 801(d)(2). then it’s non-hearsay under FRE 801(d)(1)(A). Ask yourself: i. but not for substantive 1. but do not have to show it to the witness 2. mechanical or electronic recording. and it is harder to get them into evidence. the failure to produce must be “satisfactorily explained. c. Best Evidence Rule a. x-ray films. ii. 609 allows evidence of other crimes to be used for impeachment only. FRE 1001 – Provides the following definitions i. or their equivalent. If a party made the prior inconsistent statement. If so. b. d. words. the original of the writing must be produced. photostating. It can be substantive or impeachment. you can still use the prior statement for impeachment purposes. Will testimony alone allow conclusion to be reached? 1. The witness gets to defend against the evidence. This is FRE 1002. If not produced. When the contents of a writing are in issue or sought to be proved (like the contents of an out-of-court statement with hearsay). Prior Inconsistent Statements Made to Impeach or Rehabilitate i. set down by handwriting. c.a. (b) Says extrinsic evidence is admissible if: a. don’t use the Best Evidence Rule. or numbers. typewriting. 404 allows evidence of other crimes to be used substantively. (a) Says you must show the contents of the prior statement to opposing counsel. and the greater the similarity between the prior and current crime. Might as well say everything other than spoken word. magnetic impulse. FRE 801(d)(1)(B) – a statement is not hearsay if it’s consistent and given prior to the declarant’s acquisition of a motive to lie. b/c there is a greater chance that the jury will misuse it. regardless of whether it was made under oath. or other form of data compilation 1. ii.

Call was made to a place of business. iv. once proved to be this . Testimony of Witness with Knowledge 2. if: a. Distinctive Characteristics (in conjunction with circumstances) 5. iii. No original can be had by judicial process or procedure iii. Just make sure the testimony leads straight to the conclusion. you should never have to worry about this.II. The contents of the original are a collateral issue g. then the judge must let it in. Authentication a. sidestepping this rule entirely. or from the same matrix. i. Judge cannot make a decision based on his personal belief. Generally. NonExpert Opinion on Handwriting 3. Duplicate – any counterpart produced by the same impression as the original. and under FRE 703 – these documents need not be admissible into evidence. and was reasonably related to business transacted over the phone 7. chemical reproductions. FRE 901 – Requirement of Authentication or Identification i. FRE 1003 – allows duplicates along with originals unless a genuine question is raised as to the authenticity of the original or admitting the duplicate would be unfair. Self-identification or circumstances show the testifier is the one who was called. Telephone Conversations. Comparison by Trier or Expert Witness (between the new items and one that has already been authenticated 4. This rule is to keep jury from speculating on irrelevant evidence. including enlargements and miniatures. Public Records or Reports evidence is automatically in. (b) There are several examples of proper authentication listed 1. or other equivalent techniques. i. Original – an original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect. Party opponent has possession of the original & won’t produce it iv. Note that experts can rely on documents used in their field. a party seeking to introduce evidence must make a threshold showing to the judge that the item is what it appears to be. ii. If a “reasonable juror could conclude that the item is what it purports to be”. (a) To authenticate. A printout from a computer that is readable and accurate is an original. you should show some evidence that the item is what you claim ii. Voice Identification 6. If you prepare your witness properly. All originals are lost or destroyed (w/ no bad faith on proponent) ii. e. FRE 1004 – extrinsic evidence of the contents of an original are admissible in place of the original if: i. or by mechanical or electronic re-recordings. f. A photographic original is the negative or any print therefrom. b. or by means of photography. or b.

and what significance it holds for them to tell the truth ii. General Rules a. Official Publications vi. if: a. Commercial Paper and Related Documents x. Newspapers and Periodicals vii. most jurisdictions allow hypnotically refreshed recollection for use in police investigations. Domestic Public documents not under seal. and c. and authentication a. Methods provided by rule or statute c. FRE 601 – everyone is competent until proven incompetent b. if certified by an appropriate public officer iii. Ancient documents or data compilation. Interpreters are ok. Majority. Presumptions under Acts of Congress Possible Exam Question will involve hearsay. even if this is inadmissible as testimony ii. say a witness can only testify to the events demonstrably recalled prior to hypnosis 1. No bright line age limit b. Certified Copies of Public Records v. “Did you hear from defendant after that? What did his letter say?” Competency I. including KY & OH. Foreign Public Documents. FRE 902 Some documents self-authenticate i. Acknowledged Documents ix. Was in a place where it would likely be if it were authentic. Simply tapping once for yes. Infants/Minors i. twice for no doesn’t cut it. c. FRE 603 – everyone takes an oath or affirmation before testifying Special Circumstances a. and count it as a jury credibility issue . In criminal cases.III. 8. best evidence rule. A few jurisdictions allow all hypnotically refreshed testimony. Evidence describing a process or system 10. At least 20 years old 9. and all cross impossible. Not under suspicion b. because all direct would be leading. Disability i. Domestic Public documents under seal ii. ii. All witnesses must have ability to communicate. Hypnotically Refreshed Testimony i. II. if certified by appropriate officer iv. Trade Inscriptions viii. They can testify if they are old enough to know what truth is.

and the court hates it. “When can a lay person give opinion testimony?” i. So the question is. experience. the lay opinion shouldn’t come in. FRE 701 – lay opinions are ok when they are 1. (b) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue ii. A juror may not substitute an affidavit or evidence to take the place of his testimony. subjective opinion. This is nonexpert. except a. skill. iii. Courts give experts more flexibility than given to laypeople. training. with criminal defendants that have been hypnotized. hypnotically refreshed testimony MUST be allowed d. this presents a constitutional problem. Anything taking place during deliberations 2. Therefore. iii. The effect any other juror’s mind/emotions had on this juror’s assent or dissent. so long as an opportunity for cross is given Expert Testimony a. FRE 606(a) – A member of the jury may never testify at the trial he is a juror of ii. In criminal cases. Jury Nullification – a jury can choose to ignore all law on a subject. Opinion a. This standard is strict – even alcohol or drug use during deliberation does not count as “outside influence” 3. or education may testify thereto in the form of an opinion or otherwise if: II. FRE 606(b) – An inquiry into the validity of a verdict may allow a juror to take the stand so long as he doesn’t testify to: 1. either. and make it’s own decision if that’s what it wants – we just don’t tell them that Opinion. 2. but there are a lot of rules defining who and what an expert is b. after hearing all the facts. A juror MAY TESTIFY about any extraneous prejudicial information that was improperly used to influence his decision i. If the jury. . Expertise and Experts I. AND 2. FRE 702 – If scientific/technical knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. a witness qualified by expert knowledge. (a) Rationally based on the perception of the witness. b/c criminal defendants have a constitutional right to testify. A few more hold all hypnotically refreshed testimony to be per se inadmissible 1. is just as capable of reaching the opinion given by the lay witness. Competency of Jurors as Witnesses i.iii. The committee notes to this FRE say that generally the lay opinion is ok.

FRE 704(b) – no expert witness can state whether or not a criminal defendant did or did not have the mental state constituting an element of the crime charged. Daubert i. and has it been? 2. Can the opinion be tested. An expert may not base his opinion on the testimony of another witness. 1. FRE 703 – an expert need not state the facts that led to his opinion. This has the same “per se inadmissibility” constitutional problems from above. so long as those facts are the kind normally relied upon by experts in that field. It’s permissible to make experts answer hypotheticals so long as the evidence supporting facts in the hypothetical are in the record. Mens rea is for the trier of fact alone. Testimony embodying the ultimate issue i. c. Judges must be conscious of unfair prejudice in admitting expert testimony. e. and are they maintained? ii. iii. ii. The facts/data that the expert relies upon need not be admissible at trial – only the opinion has to be. iv. so to get around this you have to pose a hypothetical to the expert that uses the other witness’s testimony as if it were true. except 1. These factors apply to all testimony. the other side can cross based upon any particular fact they don’t like. Theory is. d. Four part test for when expert testimony is admissible 1. How expert testimony comes in i. and iii. and are meant to come back to the FRE 702 analysis from above. not just medical. a. Is the expert and/or this type of opinion published for peer review? 3. so why waste time setting all the facts out when most aren’t in contention 2. a limiting instruction should be given ii. What is the potential rate of error? 4.i. FRE 704(a) – experts are allowed to testify to the ultimate issue at trial. The witness has applied the principles and methods reliably to the facts of the case. The testimony is the product of reliable principles and methods. Are controls in existence. but generally the existence of even the smallest amount of relevance will allow the expert to testify . If a fact inadmissible is admitted to show the basis for an opinion. The testimony is based on sufficient facts/information ii. These factors are not all-inclusive.

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