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Evidence Outline

Relevant: 2 prongs that must be satisfied for offered evidence to be relevant: 1. General relevance: 1) Offered evidence must prove or disprove some fact or matter of consequence in the case; 2) The evidence must be probative of a matter in issue in the case; 3) Must pass FRE 403 balancing test if raised by opponent of offered evidence i. 1ST prong: Look to pleadings and substantive law of the case to determine whether a matter or fact is of consequence to the case for first prong of test ii. 2nd prong: Any tendency suggests slight relevance is enough to satisfy FRE 401 and the 2nd prong of general relevance 1. Conditional relevance: Evidence that standing by itself is not relevant to any issue in a trial but would be relevant if the trier of fact also had some other information (FRE 104 B) iii. 3RD Prong: Highly prejudicial objection raised by opponent to offered evidence. 2 grounds you can object on under FRE 403: 1. Relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." 2. According to FRE 403, relevant evidence may be excluded if "its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." a. Concerned w/ judicial efficiency 3. Process for determining FRE 403 rulings a. Judge weighs admissibility vs. exclusion. On the admissibility side of the scale, judge considers relevance and whether proponent can prove the fact any other way. On the exclusion side, judge considers the impact evidence would have on an untrained jury. 4. Judges discretion is considerable but not limitless; SC overturned conviction of defendant because of prejudicial evidence allowed in that should ve been excluded under 403 2. Special Relevance: Special relevance prong is a way to keep generally relevant evidence out. The reason behind this prong is because the unfair prejudice from particular types of evidence is considered so extreme that it cannot be risked. a. Character trait rules (404a + 405): i. Rule 404(a): Generally cannot introduce character evidence for the purpose of proving action in conformity with EXCEPT: 1. Essential element rule (405 B): When character or a trait of character is an essential element of a charge, claim, or defense it is admissible in both criminal and civil cases a. Child custody cases, knowingly hiring someone w/ a certain character type, wrongful termination cases i. Have to prove the person hired has that character type b. Mostly applies to civil cases

Evidence Outline c. This exception is rarely used only applicable when charges require character traits to be proven d. Can use reputation, opinion, or specific instances of conduct to prove character under this exception 2. Circumstantial Evidence Rule (405 B): Exception that allows character evidence in, as circumstantial proof that a person acted consistently with his character at the time in issue in the case a. Can only be used in criminal cases b. Evidence concerning a sex offense victim s character should be excluded if it is required by FRE 412 c. Only reputation & opinion are permissible ways to introduce character evidence under this exception d. Defendant decides whether character evidence will be admissible. If defense does not introduce character evidence, prosecution may not do so either. e. CE procedure: i. Prosecution may admit character evidence of victim s good character for peacefulness in a homicide case where the defendant introduces evidence that the victim was the first aggressor (arguing self defense) ii. Defendant claim s peaceful character P can rebut w/ violent character of D iii. Defense attacks victim s character (they re violent) Prosecution can rebut w/ peaceful character of victim iv. Defense attacks victim s character (they re vilent) Can rebut w/ defendant s violent character 1. AZ has not adopted this v. Offer specific acts to relating to character to impeach character witness f. Character evidence may be admissible against a defendant to prove propensity or conformity in sexual assault and child molestation cases in both criminal and civil cases under FRE 413-415 i. Only can use specific instances of conduct b. Other Acts Rule (Rule 404 B): i. Can t offer other acts to show propensity or bad character (specific instances of conduct) ii. 404 (B) is a rule of inclusion iii. Applies to both civil & criminal cases iv. Non-propensity purposes of other acts under 404 (b): 1. Identity a. Requires striking similarity b/w 2 acts

situation-specific repetitive behavior 1. Knowledge a. D purchased gun week before the murder 6. The following evidence is not admissible in criminal or civil cases: 1. Other act to show reason for committing crime 5. Motive a. Different from character evidence in the sense that CE is a general personality characteristic that is not situation-specific ii. 404 (b) analysis must be confined to other crimes. Evidence offered to prove that any alleged victim engaged in other sexual behavior . Important to not let character evidence in under the guise of habit 1. Evidence of a person s habit or an organization s routine practice is admissible as circumstantial evidence of conduct at a particular time 1. not contained in it. Intent 3. Habit evidence is more probative than character evidence because habit evidence is automatic and more reliable v. For example. Habit Rule (FRE 406): Offer habit to show propensity & its ok i. a company had a procedure to ALWAYS place a warning manual in their products iii. State of mind 8. or a part of it 1. If habit is very generalized more likely to be character evidence a. hence others acts not other crimes (Dowling v. Routine practice is typically offered in commercial and product liability cases. I always stop at stop signs too general basicall saying you are careful driver b. Person ran stop sign b4 so they knew it was there if they deny knowing 4. Rule applies to criminal + civil cases iv. 404 (b) is not implicated. Sexual Assault Rule (Rule 412): Known as the rape shield rule and precludes specific acts involving sexual history of the victim of the offense i. I always stop at THIS stop sign proper habit evidence d. Consciousness of guilt 7. Courts allow enough other acts evidence into the trial to show that the defendant was the one who did it by a preponderance of the evidence 1. Habit is reflexive. Planning a. General relevancy standard would apply vi. The conduct must be extrinsic to the matter being tried. Dislike of or attitude toward victim v. The previous conduct did not have to result in an arrest or a conviction to be used. If the other act/crime is part of the crime on trial. AZ uses clear & convincing standard for admissibility c. or acts. United States) vii. wrongs.Evidence Outline 2.

FRE 415: Applies Rules 414 & 415 to civil cases 1. a defect in a product. For 412 to apply there does not have to be a charge of a sexual crime. Evidence of prior and probably false rape allegations against others is not excluded by Rule 412 e. Consent iii. Remedial Actions (FRE 407): Evidence of subsequent repairs or product recalls is not admissible to prove negligence. or a need for a warning instruction 1. so long as the charge involves sexual misconduct 1. Rule 404 (c): 1. 3rd party responsible 2. Doesn t require defendant to be charged or convicted for the evidence to get in iv. Applies to federal courts and some states. Sex Assault Rules (413-415): These rules are designed to allow specific acts of the defendant to show propensity in certain situations i. evidence of the defendant s commission of other offenses of child molestation iii. Applies only to Arizona in lieu of FRE 413-415 2. culpable conduct. Permits the admission of other acts if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged f. FRE 414: Makes admissible in criminal child molestation cases. warning inadequacies. Applies mostly in civil negligence cases and strict liability. etc. Exceptions to the above rules in criminal cases: 1. a. Evidence offered to prove any alleged victim s sexual predisposition ii. a defect in a product s design. including AZ . FRE 413: Provides that in criminal sexual assault cases evidence of the defendant s commission of other sexual assaults is admissible ii. 2. Rule 412 prevents the defense from using FRE 404 (a)(2) to prove a character trait/past acts of the victim in a sexual assault case iv. Courts are still required to apply the FRE 403 balancing test to evidence of sexual misconduct under FRE 412-415. AZ uses clear & convincing standard 3. Preponderance standard a. Ex: A defendant takes a hostage for the purpose of a sexual attack. Typically the evidence still gets in under the assumption that Congress intended that evidence of a defendant's propensity to commit sexual assaults under FRE 413 or FRE 414 is not outweighed by any risk of prejudice or other adverse effects 2.Evidence Outline 2. the rule applies even though the actual charge is kidnapping v. Policy Exclusions (407-415): i.

Payment of Medical Expenses (FRE 409): 1. owned by state.Evidence Outline 3. such as proof of agency. Can be admitted if offered to prove ownership. but the jury will believe it shows fault 3. Rationale behind the rule is such offers or payments may be motivated by reasons other than fault. Evidence of furnishing or offering or promising to pay medical. Does not bar offers to pay or payments of car repairs. ownership. control or feasibility of precautionary measures. Ex: Slip and fall case. Typically lawyers will admit to ownership & control to keep remedial action evidence out ii. Lack of liability insurance can be admitted if offered for proper purpose. At trial settled defendant becomes witness. hospital or similar expenses is inadmissible to prove liability 2. Nor does it bar statements of fault associated w/ an offer iii. Can rebut by asking then why do your employees clean up spills in the parking lot? b. this opens the door to evidence that the gun's safety mechanism was changed within weeks of the accident ii. Rationale behind the rule is to encourage settlements 3. Liability Insurance (FRE 411): Evidence that a person had liability insurance or doesn t is not admissible to prove negligence or fault 1. Existence or non-existence of prior accidents involving the products can be admitted 4. agreement isn t brought up . Rule is very limited in scope does not exclude other factual statements or conduct of the person making the offer just the offer itself 4. Compromise and Offers of Compromise (FRE 408): Evidence of settlement or offers to settle are not admissible to prove liability or amount of damages 1. Reason being is the fear that jurors who know a party has insurance may find that party liable only because they the liability will be cost-free to the party or increase the damages 2. If settled defendant doesn t testify. control or witness bias iv. Exceptions: a. the fact that D1 settled w/ plaintiff is admissible to show bias b. Applies mostly to civil cases while 410 deals w/ criminal 2. i. So if a gun expert testifies that the gun in issue is not only safe but also is the standard for guns. Remedial evidence can also be used to impeach a witness. Store owner says part of parking lot is not owned by me. Exception: A Mary Carter agreement is a partial settlement b/w a plaintiff and one of multiple defendants a.

Due to Erie doctrine 3. then inter-spousal communications d. Most states uphold the agreements v. Whenever a co-defendant enters into a plea agreement and later becomes a witness at trial of remaining codefendant. Most plea discussions involve the defendant s lawyer and rule covers his statements 5. State courts State privilege law applies ii. Federal courts: i. A few states have held that such agreements are void on public policy grounds d. Defendant must be seeking a guilty plea deal 6. Specific Privileges: 1. A plea of guilty later withdrawn may not be used against the defendant who made the plea 7. Spousal Bar Privilege (broader than communciations priv): a. Federal criminal and civil-federal question cases FRE 501 2. General: 1. Allows one spouse to bar the other from testifying completely b. Only applies to events during marriage iv. If plea discussions fail. Most states don t like the rule which is why it terminates upon dissolution of marriage c. The witness spouse is the holder of the privilege iii. Privileges: Promotes candid conversations between certain people without fear of details being exposed in court one day i. nothing in those discussions is admissible 4. Negotiations must be with the prosecuting attorney for statements to be barred 2. Privilege terminates upon dissolution of the marriage . the witness may be examined about his plea agreement with prosecution in order to show bias g. Privilege only applies in criminal cases ii. If the defendant is the one engaging in plea discussions. Plea Agreements and Discussions (FRE 410): 1. If plea discussion are made w/ prosecuting attorney statements/conduct made during plea bargaining are inadmissible against defendant 3. the defendant must intend to engage in plea negotiations in order for the statements to be barred a. Consider this privilege first. Federal civil-diversity cases State privilege law applies a.Evidence Outline c. Exception to the general rule barring plea discussions: a.

Joint spousal torts and crimes a. Client is the holder of privilege only he can waive it iii. Each spouse is the holder of the privilege to their communications made to the other iv. Not all communications are privileged ii. AZ Rule (civil +criminal): i. The key inquiry is to look at the circumstances under which the communication was made 2. Only covers events occurring during the marriage in criminal cases iii. Does not terminate upon dissolution of relationship . Inter-spousal torts and crimes a. Privilege protects 1) confidential 2) communications 3) between legally married spouses 4) made during the marriage ii. Privilege terminates upon dissolution of the marriage v. Interspousal crimes + torts 3. AZ Rule: i. Basically the same as federal rule ii. Both civil + criminal iii. If husband assaults wife 2. Spousal communications privilege: a. Joint torts + crimes 2. Federal: i. Covers events all time in civil cases iv. between an attorney and client relating to the rendering of legal services 1. They commit a crime together 2.Evidence Outline e. phone calls) made during time frame of marriage b. emails. Never terminates v. Both civil and criminal cases iii. Privilege never terminates c. oral and written. Only applies to communications (letters. Attorney-Client Privilege: a. Federal: i. Each spouse is holder of privilege and can assert the privilege to his or her communications to the other iv. Exceptions to the privilege: 1. Exceptions: Privilege doesn t apply to: 1. Party spouse is the holder of the privilege ii. Protects confidential communications.

If federal law applies (federal criminal + fed ?): i. Doctor/Patient privilege: a. AZ Rule: i. Federal courts & AZ follow Upjohn test 1. Most states follow Control test: 1. or calling the physician to testify to them 1. Protects not only confidential communications between doctor & patients but also examination results from disclosure in civil cases ii. they are joint clients. Privilege survives death of the client c. Multiple clients issue: Where two or more individuals have consulted a lawyer for advice on a matter that concerned both individuals. If the joint clients sue each other. AZ Approach: i.Evidence Outline b. their communications to the lawyer will not be privileged 4. No doctor/patient privilege ii. Only communications between corporate counsel and the control group (officers. by filing a lawsuit which puts in issue his physical condition. Basically follows federal rules ii. Protects any communication from any corporate employee to corporate counsel which was necessary to develop information needed to inform corporate counsel so that it could competently represent the corporate client ii. Plaintiff holds the privilege iii. A plaintiff. Patient waives the privilege by testifying to these communications or facts. impliedly waives the privilege as to the medical records relevant to his condition (ex: personal injury case) as well as earlier medical records that relate to the particular medical condition (to perhaps show plaintiff had pre-existing condition) . Only plaintiff can waive the privilege doesn t terminate upon end of relationship iv. Means privilege issues are uncommon v. Atty/Client privilege Corporate setting: i. directors and managerial employees with legal decision making authority) are protected under the privilege d. Only recognizes privilege for psychotherapistpatient communication b.

since the parties can now avoid effects of inadvertent waivers on the attorney client privilege and workproduct Reliability I. Requires you just to prove that the words were said 2. 2) written assertion or 3) assertive conduct (intended to be an assertion) i. Assertive conduct is a statement only if clearly intended as the functional equivalent of an assertion a. the disclosure does not operate as a waiver in a federal or state proceeding if the disclosure is inadvertent. Statements here are not hearsay since they are being offered for their falsity (aka misrepresentation) . Is the out of court statement being offered to prove a matter in issue? b. and the holder promptly took reasonable steps to rectify the error c. Gift 4. the holder of the privilege or protection took reasonable steps to prevent disclosure. repeats any statement either he. Common categories of non-hearsay (out of court statements offered for proper purpose proponent of evidence will argue these): i. Basically the rule limits the cost of discovery process. FRE 502: Deals w/ advertent and inadvertent waivers of the attorney client privilege and work product doctrine in fed and state litigation a. A statement is an 1) oral assertion. Hearsay: 1) statement 2) made out of court 3) offered to prove the truth of the matter asserted in the statement a. First prong: 1. Intentional Misrepresentation a.Evidence Outline 5. Most conduct is not a statement ii. Independent Legal significance: Applies when the applicable substantive law gives legal significance to words merely because they have been said (they aren t being offered for the truth) 1. When an inadvertent disclosure is made in a federal proceeding. made at any other time or place iii. Contract 3. while on the stand. Second prong: 1. or another person. Third prong: 1. Gives effect to non-waiver agreements b. Satisfied whenever a witness. Defamation a.

1. or will not voluntarily attend the trial and cannot be reached by compulsory process Specific Exceptions I. . or unfavorable. Witness Availability requirement categories: i. is dead or too sick to testify.Evidence Outline ii. FRE characterize party admissions as non-hearsay states consider it hearsay exception vi. not that it is true. or in any other way) sought to be introduced against that party at trial.Any words or acts by a criminal defendant before arrest are admissible as admissions. 804: Exceptions that require witness to be subject to cross unless they are unavailable 1. Fear: Offering an out of court statement to show that someone is afraid of another after hearing a threat iii. 801 (D)(2) do not require declarant to be subject to cross ii. 801(D)(1) requires declarant to be subject to cross 2. Notice: Tort law cases where you have to show defendant or someone was aware of a fact 2. A party s own admission [801 (d)(2)(a)][ non-hearsay ] a. Rule is very generous and no guarantees of trustworthiness is required iv. Note . The party s own statement oral written or non verbal conduct before or during trial b. Admissions by party opponent [801 (D)(2)] i. under the Miranda holding. Prior Statements Category: a. but a properly admonished defendant may. II. Impeachment with a prior inconsistent statement: Prior inconsistent statement is being offered to show contradiction (impeachment) not that the prior statement made was true Hearsay Exceptions General: a. refuses to testify. has a lack of memory. A party cannot offer its OWN prior statement as a party admission statement can only qualify if offered by the opposing party v. A witness is unavailable when he asserts a privilege. Considered fair to use whatever an opposing party says against him at trial iii. An admission is anything an adverse party has ever communicated (in speech. Types of admissions by party opponent: 1. The statement could have been favorable to some interest of the party. 801(d): Classifies as non-hearsay both admissions of a party opponent and certain prior statements by witnesses 1. or neutral ii. Meaning it is offered to show the statement was made. 803: Exceptions that don t require declarant to be subject to cross iii. Effect on listener s state of mind: A statement is non-hearsay if it is being introduced merely to show that it affected the listener. writing.

Co-Conspirator statement as party admission [801 (D)(2)(E)] a. Not admissible because defendant has 5th Amendment right to remain silent iii. Can be used against a party if: 1) Evidence exists there was an ongoing conspiracy involving the declarant and the person the statement is offered against. Someone who admits something and is authorized to do so on behalf of a party i. Silence can be considered an adoptive admission if most people would have spoken to contradict something like a statement just made to the party.Evidence Outline waive his 5th amendment and 6th amendment rights and make admissions as well 2. Adoptive Admissions [801(D)(2)(B)]: a. "You're right. A statement of which the party has manifested an adoption or belief in its truth i. Ex: A lawyer b. Can prove conspiracy by using the declarant's own statement. agents and employees a. Civil cases silence is allowed in as party admission as long as party heard the statement/understand English ii. it is not enough standing alone.Silence as an adoptive admission is not favored by judges because silence can mean any number of things 3. but it was the only way you and I could get the money. Ex: A says to B "I am sorry i had to shoot the bank teller. In criminal cases 5th Amendment privilege issues D has right to remain silent 1. Note . to establish the existence of the conspiracy and the participation in it of the declarant and the party against whom the statement is offered (Bourjaily v. . however.). i." B has adopted A's statement as his own and can be admitted against B b. U. An agent statement made on behalf of a party if the statement 1) concerned a matter within scope of the agency relationship or employment 2) and was made during existence of the relationship 4. Admissions by authorized persons.S." and B says. Cop says to defendant why did you shoot the guy? D says nothing. 2) The statement was made "during the course and in furtherance of the conspiracy i.

Arizona has modified 801 (D)(1) so that ALL prior inconsistent statements used to impeach are non-hearsay and substantive evidence (truth) ii. Prior statement is not hearsay if it is one of identification of a person made after perceiving the person 2. for its truth b.Evidence Outline b. 4. Prior Inconsistent Statement [801(D)(1)(A): 1. Declarant must be unavailable . The charge of recent fabrication or improper influence or motive can be "express or implied" during cross 5. Reason for this Exception is that in-court identification testimony is weak and subject to suggestion an out-of-court identification is fresher in time and opportunities for exerting influence is less c. A statement consistent with the declarant's testimony. that is. a. Statements against interest [804(b)(3)]: Exception is based on the assumption that people do not make statements damaging to themselves unless they believe for good reason that their statements are true i. Deals w/ rehabilitation iii. Prior consistent statement must be made before the event giving rise to the charge of recent fabrication. A statement of identification of a person made after perceiving the person [FRE 801 (d)(1)(c)] 1. for its truth. these prior consistent statements would not be admissible 2. Prior Statements by Witnesses [801(D)(1)] [ non-hearsay ] i. that is. etc. The rule treats such prior consistent statements as nonhearsay. A prior statement used to impeach a witness during a trial or hearing is not hearsay if the statement is 1) inconsistent with the declarant's testimony and 2) was given under oath subject to the penalty of perjury at a trial or hearing/proceeding a. If prior inconsistent statement wasn t made under oath it can only be offered to impeach but not offered for its truth (613) 2. Test for exception to apply: 1. offered to rebut an express or implied charge against the declarant of recent fabrication or of improper influence or motive [FRE 801(d)(1)(B)] 1. Means that the statement is admissible as substantive evidence. So if on cross these implication of bias/interest/lying isn t made. admissible as substantive evidence. Prior consistent statement can be oral or written under oath or not 3.

Inculpates (says someone is guilty) Statement is generally trusted a. Key inquiry is the length of time between event & statement 2. Ex: "I owe Johnson $100. AZ does not require unavailability if the transcript is introduced in a civil case 2. proprietary interest. Who says that? 2. Rationale behind the exception is declarant doesn t have time to forget the event or distort it 3. The transcript of the out-of-court. Statement must be against the declarant's pecuniary. Exculpates (says someone is innocent) Distrusted a. The out-of-court declarant must be unavailable (see above) a.Evidence Outline 2. . I robbed the bank i.declarant must be offered against a party that was present at the earlier hearing 3. 1) Statement must be made during or immediately after perceiving the event and 2) describe what they saw 1. Statement was so far contrary to the declarant s interest that a reasonable person would not have made the statement unless it believes it to be true a." b. 2 kinds of statements against penal interest: 1. Not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement b. Just needed a witness to testify about the statement II. Proprietary interest is an interest in property i. 3 prongs must be satisfied b4 transcript of a witness' earlier testimony is admissible: 1. Ex: "I gave Mary the diamond ring as a present. Focus on relationship b/w person making statement and person exculpated 3. Penal interest subjects someone (including declarant) to criminal or civil liability i. Present Sense Impressions [803(1)]: i. Prior Testimony [804 (B)(1)]: i." c. Pecuniary interest is a financial interest i. Statements have to be disserving d. The party must have an opportunity and similar motive to develop the witness' testimony in the earlier hearing Spontaneous statements a. or subject the person to civil or criminal liability a. Look at context/situation where statement was made b.

Statements made by patient (or representative of patient like parent) for purpose of receiving treatment / diagnosis are admissible 1. Only limits on the rule are statements of pure fault and medical history not reasonably pertinent to the present medical condition d. Ex: Mary says I m going to a party with Joel. Excited Utterances [803(2)] i. Can allow statement to show past conduct when a person s will is in issue 1. Most states allow present state of mind statements to apply to declarant & 3rd person i. Factual assertions included in statement r excluded . Testator is in best position to know what he intended to accomplish in his will b. Can admit statements about physical condition 1. No distinction b/w treating/non-treating physicians 4. 1) Statement must be made under the stress of excitement and 2) statement must relate to a startling event 1. Cannot offer statement by declarant against a 3rd party under FRE c. Allowed in as circumstantial proof of conduct if: a. Allowing past conduct would gut hearsay rule could be making up a lie about what u did b4 ii. Can also admit statements regarding State of mind in limited situations ( I m frightened ) ( I d like to kill Joe ) 1. Can apply statement to Mary but not joel d. Present Mental and Physical Condition [803(3)] i. Both doctors and related parties (such as nurses/healthcare providers) can testify about the statements made to them 3. Allowed in w/o exception because people won t lie about their present physical condition ii. Statements of present or past conditions for diagnosis [803(4)] i. Statement is present state of mind about future conduct i. Covers prior history + present symptoms 2. Intent to create domicile b. Issue w/ this exception is psychologists say people under excited state aren t good observers c. Intentional torts and crimes 2. Mental suffering element of damages c.Evidence Outline b. Statements are reliable because the declarant has no time to fabricate 2. Allowed in as direct evidence if it proves an element of the case a. Excited standard is subjective meaning the length of time between statement and event can fluctuate 3. My back hurts right now 2. Malice d.

Business records whose creation lack trustworthiness i. 2) belief in certainty of imminent death. Record includes a memo. Applies to homicide & civil cases 4. Issue w/ this exception is whether declarant believed they were dying imminently 3. Records made in anticipation of litigation are not automatically excluded. Proponent of offered evidence has burden of proving declarant believed death was imminent a. Rationale behind the rule is people who are about to die are unlikely to lie III. Dying Declarations (804(B)(2) i. Self-serving records d. Words such as I m about to die will suffice 2. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the . 3) statement must be about circumstances of injury/cause of imminent death 1." e. Business Records [803(6 & 7)] i. but can be excluded if the record indicates lack of trustworthiness c. Records a. events. report. Good argument to keep them out cuz u don t know who made the notes or when they were made ii. "I am afraid of Arthur because he uses a baseball bat to collect debts. Issues w/ exception: a. Record may contain acts. Allowed in to evidence if custodian or other qualified witness can testify that the exhibit is: 1. Margin notes/hand written changes on the record: i.Evidence Outline i. Requires 1) declarant to be unavailable. Double hearsay issue (805): i. 3) by a person who had knowledge of the facts recorded or made from information transmitted by a person having knowledge of the facts. record or data compilation in any form b. 5) kept in the course of a regularly conducted business activity a. Subjective standard b. 1) Record of the business. 4) made as party of the regular practice of that business . conditions or opinions 2. 2) made at or near the events recorded on it. If u want the margin notes in argue the notes were made by employee of company and should be party admission b.

Recording must 1) be made or adopted by a declarant who ONCE had personal knowledge of the recorded facts. Qualifies if: 1) Activities of office. Rationale: Allow the document in as public record exception because of assumption public officials will perform duty properly c. Witness statement = excited utterance iii. Watch out for double hearsay issues iv. 3) factual finding made pursuant to law 1. Doesn t apply to routine police stuff like license numbers or weather the day of the accident iii. Comes up when computers organize business records into different arrangements and are printed out ii. Fall back option for written statements that don t qualify as public records or business records 2. 2) deals w/ matters observed w/ duty to report. Each level of hearsay must qualify as an exception for statement to get in 1. Ex: Police report contains statement from witness that the car sped right thru the redlight 2. Policy is that it is preferable to admit the record than lose the evidence altogether . summaries: i. Includes police reports however police reports are barred in criminal cases unless offered by the defendant (confrontation clause issue) 1. Allows the recorded statement (writing) into court as evidence asserted for its truth when the witness no longer has a recollection of the events 3. 2) be made or adopted by the declarant at a time when the matter was fresh in his memory. Police report = public record exception 3. Factual findings includes conclusions & opinions BUT the findings has to be from a public entity that is directed by law to make public findings a. Business record v. and 3) accurately reflect the declarant's firsthand knowledge 1. Public records & reports [803(8) & (10)] i.Evidence Outline combined statements conforms with an exception to the hearsay rule provided in these rules ii. National Transportation Safety Board investigates cause of all plane crashes directed by statute to determine cause of plane accidents ii. Comes up a lot w/ written documents e. Still a business record? Likely a summary under FRE 1006 b. Recorded Recollection [803(5)] i. Doesn t happen very often b.

AZ will allow the testimony in if the testimony is corroborated or a manifest injustice would otherwise result i. the statement bears little or no trustworthiness 3. Basically anyone can testify ii. Offered as evidence to a material fact iii. Used as last resort to admit a statement that doesn t fall into any of the hearsay exceptions b.Evidence Outline 4. FRE has eliminated common law disqualifications such as parties. Residual Exception (807) a. Deadman Act (ARS 12-2251): a. Competency Rules: Threshold issue is whether witness is competent to testify i. Judge/Jurors may not serve as a witness . prior consistent statements that do not fit within FRE 801 (d)(1)(b). Most probative available proof iv. and children under 10 who are incapable of receiving just impressions or relating them fully 2. Basically anyone can testify 3. proponent must demonstrate: i. former testimony where the lack of opportunity and motive to cross keeps it outside FRE 804(b)(1). The record is read to the jury but not admitted into evidence unless opponent wants it admitted IV. Witnesses: a. In order to be admitted. Character of declarant for honesty ii. General competency notes: 1. Equivalent trustworthiness 1. Give notice to opponent c. Serves interests of justice v. Every witness is given an oath to testify truthfully 2. felons. retaining only in civil cases the bar to witnesses of unsound mind. and records that are not quite business or public rd prong deals w/ evidence being presented the right way Right: 3 1. This barred the testimony of interested parties to transactions with the deceased in litigation involving the estate of the deceased b. Been applied to such matters as prior inconsistent statements of a witness that lack the oath requirement of FRE 801 (d)(1)(a). Did the declarant speak from personal knowledge? If not. infants because those issues can be raised on cross 2. Most times this allows testimony in iii. AZ has eliminated most competency disqualifications. Was statement made under oath? 2. AZ rule in state case or federal diversity: 1. FRE apply if federal criminal or federal question civil case (601-606) 1.

Will the expert testimony help the jury resolve the case and solve issues b. they must qualify as an expert under 702 v. Item used to refresh memory does not have to be admissible iv. Opinion rules for lay witnesses have been relaxed permitted to give opinions if 1) rationally based on perception of the witness and 2) helpful to clear understanding of the witness testimony of a fact in issue 3. Is expert qualified? a. lawyers. Refreshing recollection of witness (FRE 612): 1. Parties to the case cannot be excluded b. Those that become experts thru education (doctors. Leading questions (FRE 611) 1. Leading questions are also allowed when establishing a foundation for an exhibit or when proving up (FRE 611 (C)) ii. Witnesses must be excluded from the courtroom during testimony of other witnesses 5. Lay Witness Opinion (701) 1. truck drivers. Leading questions are barred because you want the witness to give the answer & not be suggested one by the lawyer 4. etc. technical or other specialized knowledge. either from its content or the way its articulated. Experts thru work experience (farm workers. Lay witnesses are typically allowed to testify about FACTS not to draw conclusions from the facts 2. Called witness must have personal knowledge about the matter testifying about (FRE 602) iii. economists) OR b. Expert Opinion Rules (702-706) 1. 2) cross witness about it.) . Is subject matter appropriate? a. If a writing is used to refresh memory of a witness for purpose of testifying (during or before) an adverse party is entitled to 1) have the writing produced at the hearing to inspect it. miners. Leading question is one which. Leading questions are permitted on preliminary or undisputed matters 5. Direct Examination General i.Evidence Outline 3. BUT. Generally not allowed on direct but allowed on cross 2. if opinion is based on scientific. If the stuff is obvious it s a waste of time for expert to testify 2. accountants. Judge can call and question witnesses 4. 3) and introduce into evidence portions which relate to testimony of the witness 2. suggests a preferred answer to the witness 3.

AZ (Old 702): Is the witness an expert? Some form of education or expert thru experience 1. Determination of reliability is made by the judge ii. Judge considers whether 1) technique used has been tested. Medical doctor can base an opinion on what he observes about the patient and what patient tells him b. Firsthand observation of the witness (703) i. Proper Bases for Expert Opinions (FRE 703): a. Is testimony based on relevant and reliable principles and methods? a. Deals w/ whether basis for expert opinion is reliable whether admissible or not. No one factor is determinative 2. Shortcomings of Expert observations will be brought out on cross ii. Test used to reach conclusion must be sufficiently established to have gained general acceptance in the particular expert community c. Expert must have greater knowledge than a lay person to make his testimony "helpful" to a jury 3. Judges can also look at the conclusion reached from the technique (joyner) d. Daubert Test: i. If expert is a scientific one (used tests to reach conclusion) Apply Frye for AZ & Daubert for FRE b. Training & Experience Expert (no tests just personal observation to form opinion) i. 703 deals w/ whether the expert can rely on inadmissible evidence 4. The trial or hearing itself (703) i.Evidence Outline i. 2) technique has been subject to peer review and publication. Can give an opinion based on what he hears from sitting in court during trial c. FRE: Judge decides if expert observation is reliable (use Daubert factors) e. Frye Test: i. 4) the technique has been generally accepted in the relevant scientific community 1. 3) technique has a high error rate. Facts or data not admissible in evidence if the probative value of inadmissible evidence in helping the jury evaluate the expert s opinion substantially outweighs their prejudicial effect .

Leading questions are allowed 1. Can t testify defendant was legally insane when crime was committed c. Common Objections to Questions i. Argumentative iii. Couldn t do this under FRE 5. or a defense to it i. Opinion on Ultimate Issue (FRE 704) a. Non-responsive: . Can t ask a witness to comment on the truth of another witness testimony v. Experts are NOT allowed to testify in a CRIMINAL case as to their opinion on whether defendant had mental state required under the charge. Ex: You re just a low-down scum of the earth. Defendant is a paranoid schizo (proper) b. Confusing and misleading: vii. Ex: A doctor can testify that he based his opinions in part on consulting w/ other specialists. not ok 1. If expert testimony is something jury couldn t figure out on their own. embarrassing or personally attacking a witness 1. Expert testimony on ultimate issue (factual matters or legal conclusions) is okay so long as it is helpful to jury i. Impeachment is the only other area cross can cover that direct didn t d. Compound: vi. witness can only cover topics asked about on direct and credibility issues of the witness 1. aren t you? viii. 701) i. Defendant was at fault and negligent (improper) 2.Evidence Outline i. AZ court Witness may be crossed on any relevant matter (regardless of it was brought up on direct) iv. Narrative: ix. In federal court. its ok ii. Commenting on other witnesses 1. AZ allows the inadmissible evidence for the expert opinion so long as it is reasonably relied on by experts in the field 1. Harassing. Cross examiner can call the witness on direct to question them on new subjects iii. and tell the jury what the other specialists told him (despite being hearsay) a. If jury can figure it out on their own. Adverse witnesses aren t as likely to follow a suggested answer contained in the question ii. Asked and Answered iv. Cross Examination (611-615. Leading ii.

Any party can impeach any witness. motive. Methods of Impeachment: i. Non-collateral categories: a. Can be anything about the relationship of the witness to any of the parties or the lawsuit that might cause a witness. Bias. including their own witness 1. . then depends on importance of the matter to determine whether issue can be proved up (see below) v. If witness denies impeaching matter. This question gives the witness an opportunity to admit. but the answer does not respond to it 2. Conduct probative of untruthfulness/prior bad acts 5. interest. can t raise it during cross 2. deny. Impeachment General i. Prior inconsistent statements and contradictory facts f. Proving up a denial of impeachment matter: If witness denies or equivocates impeachment matter 1. Good faith requirement 1. Examiner must accept the witness answer 3. Rationale behind the rule is judicial efficiency. Requires lawyer to believe the question is 1) relevant and 2) can be backed up by evidence if not admitted by witness iv. or explain the impeaching matter before allowing extrinsic evidence in a.Evidence Outline 1. Typically happens on cross w/ adverse witness x. Warning Question Requirement: 1. Collateral categories: a. If non-collateral and witness denies it and you can t prove it up. Some impeachment methods require a witness to be asked about the impeachment matter before it is brought out 2. If witness admits the impeaching matter. When the question is appropriate. Bias/Interest/Motive: 1. Would also want to impeach own witness to lessen the sting when its brought out on cross iii. Collateral (unimportant) matter CANT be proven w/ extrinsic evidence a. and prior convictions must be proven up w/ extrinsic evidence 4. Impeachment is cross examination that attacks a witness' credibility ii. Noncollateral (important) matter Must be proven w/ extrinsic evidence a. Case by case categories: a. no need to call another witness to prove up the impeachment 3. Collateral = only offered to contradict testimony or nonimportant issue b. Speculation and Conjecture: e.

Impeachment by silence applies when a witness testifies to a fact but failed to mention it previously a. Motive is the reason why a person does something or testifies the way they do about their conduct a. Foundation is showing that the witness should have reasonably been expected to speak b. Contradicting Facts: . Warning questions are required c. Bias exists where a witness. The test for inconsistency is whether the prior statement or omission has a reasonable tendency to discredit the testimony of the witness 3. Evidence that the witness once had a dispute with the defendant is admissible to show motive 6. Typically comes up on cross of the defendant b. Prove up if non-collateral (important) 2. Impeachment by omission applies when a witness makes a statement about an event and adds an important fact to their testimony that was previously left out a. Type of impeachment is always non-collateral 3. to slant his testimony for or against a particular party 2. Can t use defendants post-arrest silence against him he has right to remain silent 5. from a particular outcome to the case a. through some relationship to the parties or attitude about the matter in dispute. usually financially. Prior Statement Impeachment (613. Warning question required ii. 801 d(1)): 1. Prior statement must be materially impeaching i. To impeach w/ prior inconsistent statement: a.Evidence Outline consciously or unconsciously. Can impeach by showing a reasonable person would not have left that omitted fact out originally i. Interest exists where a witness's relationship to a party or the lawsuit is such that he stands to gain or lose. but in a previous statement the witness failed to mention a revolver 4. Ex: Business partners 5. has a frame of mind that could color his testimony 4. Ex: Witness testifies at trial that the robber had a revolver in his waistband. Can impeach party under 801(D)(2) as party admission if they don t testify or under 801 (D)(1) prior statement by witness if they testify iii. Major inconsistency between statement on stand and prior statement b.

Felonies i. usually on cross-examination. Rule 609 requires balancing the prior conviction s probative value with its prejudicial effect. Warning questions required 5. 608 (A) Deals w/ direct of character witness (rep or op) . Judge determines whether the unfair prejudice of allowing the conviction substantially outweighs its probative value b. Misdemeanors involving dishonesty or false statement i. Felony convictions of defendants in criminal cases i. Felony = crimes punishable by death or imprisonment over a year b. any crime w/ deceitfulness or untruthfulness 2. Consider 1) nature of prior crime. is asked to admit a fact that is inconsistent w/ what the witness just testified about 2. Admits it impeachment over b. As a result most courts will sanitize the conviction you ll only hear he had a prior conviction but not what for b. Allows impeachment of a testifying witness (including D) credibility by showing the witness was previously convicted of a. Proving up depends on whether issue is collateral or non case by case basis 3. 403 objection can be raised to all prior convictions a. Applies when defendants testify n their own case ii. Prior Convictions (609): 1. 4) importance of defendant s testimony (if important judge will keep prior conviction out). Warning question requirement a.Evidence Outline 1. Character for Untruthfulness (608) 1. Occurs when a witness. 3) similarity b/w prior crime and crime at trial. Judges are reluctant to allow conviction impeachment in civil cases unless conviction relates directly to truthtelling 4. Non-collateral v. 5) centrality of credibility issue 1. Convictions over 10 years old i. No balancing test required ii. Generally these convictions are kept out but allowed in if probative value outweighs the prejudicial effect 3. when: a. 2) age of the prior crime. Denies collateral/non-collateral iv. embezzlement. Perjury.

The treatise is read to the jury but not admitted as evidence vii. Warning question iii. Allowed to test the character witness knowledge of the fact witness character ii. Warning question required d. Purpose of the rule is to prove that the fact witness or character witness is acting in conformity w/ that character and is more likely to be testifying untruthfully 4. Cross of character witness is limited to credibility of that witness 7. Warning question iv. you can present impeachment . Impeach original character witness w/ prior bad untruthful acts i. 4 ways to attack/support (on direct) CHARACTER witness truthtelling character: a. When court gets a statement from an out-of-court declarant (typically 804 exceptions). Impeach FACT witness w/ prior bad untruthful acts (608(b)) i. Collateral 8. Impeaching out-of-court Declarant (806): 1. Impeach original character witness on cross w/ specific instances of the FACT witness conduct relating to FACT witness truth-telling or bad acts in general i. Treatises (803 (18)) 1. Call character witness for character witness opinion c. Applies to any witness including defendant if they testify 6. SA) 3. Collateral vi. Collateral ii. Applies only as a way to impeach an expert witness 2. 608 (B) Cross of fact or character witness (rep.Evidence Outline 2. Filling out false employment application ii. Call character witness direct opinion of FW c. Evidence of a witness TRUTHFULNESS (fact or character) can only be admitted once attacked 5. Treatise must be established as a reliable authority by the testimony or admission of the witness or by other expert testimony 3. op. Call character witness direct . Call character witness for character witness rep b. Filing false income tax returns iii. Only character evidence allowed is truthfulness / untruthfulness a. 3 ways to attack/support (rebut) FACT witness (FW) character under 608: a.reputation of FW b.

Giving witness opportunity to explain. Anything that will reduce the impact of impeachment ii. Rehabilitate after inference of interst/motive/lying under (801(D)(1) by showing prior consistent statement was made b4 event a. Proper redirect includes: 1. Can offer extrinsic evidence if impeachment is non-collateral g. qualify why can inconsistency occurred 2. Rehabilitation (613 & 801(D)(1)): Applies after impeachment i. Note Showing of bias and interest is not considered an attack on truthfulness so not rehabilitation allowed after this 3. No leading questions .Evidence Outline material you would ve presented to the witness had they testified 2. Can rebut any bad character for truthfulness brought out under (608 b) w/ good character for truthfulness a. Just being impeached w/ prior inconsistent statement doesn t trigger (801(D)(1) rehabilitation 4.