Evidence Richman

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					                             Evidence Outline
                       Prof. Steinbock; Spring 2005

I.   Introduction:
     a. Three general issues governed by the law of evidence
             i. The types of information the fact finder may consider
            ii. The way in which this information may be communicated
           iii. Set forth the respective roles of the judge and the jury where there
                is a jury
     b. History
             i. Several hundred years ago, there was a common law of evidence –
                still exists to some extent in most states
            ii. In the 1970’s the Supreme Court decided it was going to appoint
                an advisory committee to purpose some Federal Rules of Evidence
           iii. Congress said it was unlawful for the Supreme Court to create
                Federal Rules and made their own statutory codification of the
                Federal Rules of Evidence
                     1. Congress and the Supreme Court have both amended the
                         rules over time
                     2. Lots of case law under these Federal rules
           iv. Where the rules do not answer a particular question, we still look
                to common law
     c. Relation to constitutional Law - 6th amendment includes defenses rights to
        present evidence in their defense
     d. Scope of the Federal Rules
             i. Federal rules apply only in Federal Cases, but have been very
                influential on the states
            ii. Rule 11-01- exceptions in criminal cases (federal judicial
                proceedings where the rules do not apply):the grand jury,
                preliminary examinations or hearings, sentencing, bail proceeding,
                revocation of probation
     e. Stages of a trial (jury trial)
             i. Selection of the jury – does not concern the rules of evidence
            ii. Opening statements
           iii. Presentation of evidence
                     1. Plaintiff’s case in chief – party with the burden of proof
                         attempts to meet the elements of the crime – can consist of
                         testimony by several witnesses and exhibits
                     2. Evidence usually falls into two categories
                              a. Testimony - party presenting the witness is referred
                                  to as the proponent, the other party is the opponent
                                       i. direct examination is done by the proponent
                                      ii. cross examination done by the opponent(s)
                                     iii. proponent can come back and do a redirect
                                     iv. then the other side can re-cross
                              b. Exhibits

                                 i. Real – tangible items involved in the
                                    litigated event (ie. Documents, weapons,
                                    bodies, etc.)
                                ii. Demonstrative – items not used in the
                                    litigated event, but used to illustrate or
                                    explain testimony (ie. Graphs, maps,
                                    photographs, etc.)
                3. Defendant’s direct Case – defendant does not have to
                   present any evidence if it feels the Plaintiff did not meet its
                4. Plaintiff can present a rebuttal case – meant to rebut
                   anything the defense offered during its direct case
                5. Rarely, there will be a defendant’s surrebuttal/ rejoinder
                6. Jury will determine from the evidence presented what the
                   facts are – sometimes the juries decision ends here,
                   sometimes, they must also evaluate those facts in light of
                   the law given to the jury by the judge in the jury
      iv. Closing Arguments - Party with the burden of proof goes first and
       v. Jury Instructions
                1. define and describe the substantive law
                2. three kinds of jury instructions about the evidence
                       a. cautionary instruction – an instruction advising the
                            jury that certain evidence should be weighed with
                            care (often comes in with accomplice testimony)
                       b. limiting instruction – concerns the use of certain
                            evidence; should be considered only in regard to
                            certain issues or parties; governed by rule 105
                       c. Peremptory instruction – direction to the jury that if
                            certain evidence is believed, then something else
                            must follow (if you find Y, then X must follow)
      vi. Jury’s Verdict
f. Motion in limine – motion for the court to rule on the admissibility of
   evidence prior to trial
        i. Not obligated to make motions prior to trial
       ii. Often advantageous to the party trying to exclude the evidence
           because the jury never hears about it
      iii. Can also make a motion in limine for the court to rule that
           something is admissible, so you know how to plan your case
g. Three things that could be done to remedy the error when the jury hears
   inadmissible evidence :
        i. give a corrective instruction
       ii. defense council retracts the statement
      iii. mistrial – trial is ended, but there can be a new one

              iv. plaintiff’s counsel could rebut
       h. If one side introduces inadmissible evidence, the other side can introduce
          otherwise inadmissible evidence to refute it (“fighting fire with fire”)
II.    Preserving and Making the Record
       a. Rule 103: Ruling on Evidence
                i. Effect of Erroneous ruling – not every erroneous ruling by a trial
                   judge will result in a reversal of the judgment below
                        1. some error is unlikely to effect the outcome of the trial –
                            harmless error
                        2. for reversal there must be:
                                a. harmful error (103(a)) and;
                                b. a timely objection on the record (103(a)(1))
               ii. What is a timely objection? (103(a)(1))
                        1. One made before there is an answer to the question object
                            to the question (“objection [heresay]”); or
                        2. if it is not evident from the question that objectionable
                            material will come in, (“motion to strike, [heresay]”) right
                            after it is said
                                a. judge will tell the jury to disregard it; and
                                b. it is not on the record; and
                                c. no one can refer to it in the rest of the trial
              iii. If the ruling is one excluding evidence
                        1. defense must make an offer of proof (103(a)(2)) – two
                            ways to make an offer of proof:
                                a. the lawyer for the proponent of the evidence says,
                                     “your honor I’d like to make an offer of proof” and
                                     he describes, out of the hearing of the jury, the
                                     evidence which would have been presented
                                b. judge can describe on the record the evidence that
                                     would have been given (103(b))
                                c. (103(b)) the court, outside the hearing of the jury,
                                     hears the evidence that would have been given at
                        2. important because helps the appeals court decide whether it
                            was harmless error or not
III.   Relevance
       a. Introduction
                i. General Rule - Rule 402: Relevant Evidence Generally
                   Admissible; Irrelevant Evidence Inadmissible
               ii. Exceptions to the General Rule:
                        1. The Constitution of the United States sometimes excludes
                            relevant evidence
                                a. if the evidence is gathered in a way that violates the
                                     fourth amendment
                                b. privilege – the fifth amendment’s right to avoid

              2. Sometimes the rules of evidence also exclude relevant
              3. Other federal rules such as civil procedure sometimes
                   excludes relevant evidence
              4. No exception to the rule that irrelevant evidence will be
                   kept out
b. What is Relevant Evidence?
      i. The principle of relevance embodies two distinct relationships:
              1. Materiality (a.k.a consequential); AND
              2. Logical Relevance
     ii. Materiality – does the evidence go to a material element/ issue of
          the case?
              1. relates to the issue that the evidence is going to prove
              2. Example: Employer wants to introduce evidence at
                   worker’s compensation trial showing that person was
                   eating pizza while operating a fork life
                       a. Its true that this evidence goes to show contributory
                       b. However, the issue – contributory negligence – is
                           not material because it is not a defense in workers’
                           compensation cases
              3. look to the statute to determine the elements of the crime
                   (usually consists of actus reus and mens rea)
    iii. Logical relevance - Rule 401: Definition of Relevant Evidence:
          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.
              1. evidence must increase the probability or likelihood than it
                   would be without the evidence
              2. does NOT have to show that something is more likely than
              3. Example: man is on trial for killing his wife; prosecution
                   wants to admit evidence that he had a mistress
                       a. Evidence does not show that it is more probable
                           than not that he killed his wife because most
                           married men who have affairs do not kill their
                       b. However, it is logically relevant because it makes it
                           more probable that he killed his wife than it was
                           without the evidence – it is more probable that a
                           man with a mistress would kill his wife than a man
                           without a mistress
              4. all that rule 401 requires is that the evidence moves the
                   needle on the “guilt-o-meter”
              5. Rule says “relevant evidence” is that having any tendency
                   to make the existence of any fact that is of consequence to

                    the determination of the action more probable or less
c. Admissibility of the Refusal to take tests
        i. It is relevant in a criminal case that the accused knows he is guilty
           – this is why evidence of refusal to take a test (like neutron
           activation test or breathalyzer) is relevant
       ii. The defendant will still have the opportunity to present other
           explanations for his refusal
      iii. If the test itself would not be admissible (like a polygraph test), the
           refusal is not admissible
d. Direct/Circumstantial Evidence
        i. Direct – you need only one inference from the evidence to the
           proposition for which it is entered
                1. Example: witness says, “I saw the defendant stab the
                    victim” – the proposition is that the defendant stabbed the
                    victim, the one inference is that the witness is telling truth
                    (if the witness is telling the truth, the defendant stabbed the
                2. Relevance Rule: where direct evidence is offered, the
                    judge need only inquire whether the factual proposition to
                    which the evidence relates is material
       ii. Circumstantial – more than one inference must be made to reach
           the proposition
                1. Example: witness says, “I saw the defendant running from
                    the scene with a knife in hand.” – the proposition is still
                    that the defendant stabbed the victim, but you must infer
                    that the witness is telling the truth AND that the defendant
                    used the knife he was carrying to stab the victim
                2. Relevance Rule: when circumstantial evidence is offered,
                    the judge must determine whether the ultimate proposition
                    to which the evidence is directed is material AND whether
                    the evidence affects the probability of the existence of that
                    proposition (logical relevance).
                3. Flight as Circumstantial Evidence
                         a. Probative value: goes to prove consciousness of
                         b. Inference: the defendant took this action because he
                             wanted to avoid being held accountable for a crime
                             he was conscious of having committed and the
                             reason he was conscious of having committed it is
                             because he actually committed it
                4. Other circumstantial evidence used to prove consciousness
                    of guilt:
                         a. changing ones appearance
                         b. attempting to bribe the arresting officer
                         c. escape from custody

                        d. attempting to bribe or kill witnesses
                        e. false exculpatory statement – e.g. false alibi
                        f. destruction of evidence (“spoliation”)
e. Conditional relevance
        i. some evidence is only relevant if some other fact is proven
       ii. example: a rim to a headlight is found near an auto accident. An
           expert testifies that the only way the rim could be damaged in the
           way this one is, is if the defendant hit the victim. The rim is only
           relevant if it can also be shown that the rim came from the
           defendant’s car.
      iii. Rule 104(b) Preliminary Questions – Relevancy Conditioned
           on Fact: When the relevancy of evidence depends upon the
           fulfillment of a condition of fact, the court shall admit it upon, or
           subject to, the introduction of evidence sufficient to support a
           finding of the fulfillment of the condition
      iv. Three ways to get conditional evidence admitted:
                1. Can wait to introduce the evidence after the second witness
                    testifies to the conditional fact (e.g. that it’s a rim from a
                    1986 Chevy)
                2. Introduce it at the first witnesses testimony but subject to
                    the introduction of the second witnesses testimony
                3. Judge screens the evidence to make sure that there is
                    enough to allow a reasonable jury to conclude that the
                    conditional fact is present (e.g. that the rim is from a 1986
       v. If there is a dispute over the conditional fact, then the evidence
           should be admitted and the jury should be allowed to decide
f. Counterweights to Relevance – Rule 403 (pneumonic: MUCWUC)
   i. Introduction
           1. Rule 403. Exclusion of Relevant Evidence on Grounds of
                Prejudice, Confusion, or Waste of Time: Although 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, or by considerations of undue
                delay, waste of time, or needless presentation of cumulative
           2. Don’t get to rule 403 unless evidence is relevant – “although
           3. “May be excluded” – highly discretionary
           4. Balancing test: relevant evidence can be prohibited if probative
                value is substantially outweighed by danger of:
                    a. unfair prejudice
                    b. confusion of the issues
                    c. misleading the jury
                    d. undue delay
                    e. waste of time

                    f. needless presentation of cumulative evidence
           5. Must substantially outweigh the probative value – if the
                probative value and the danger are equal, the evidence must be
                allowed in
   ii. Unfair Prejudice
           1. United States v. Yahweh Ben Yahweh 1992
                    a. Rule: Rule 403 does not require the prosecution to use
                        the most antiseptic or least prejudicial means of proving
                        their case; Prosecution is entitled to present the story as
                        it exists
                    b. Conclusion: prosecution allowed to admit gruesome
                        crime scene photos even though less prejudicial means
                        of conveying the evidence existed because the unfair
                        prejudice did not substantially outweigh the probative
           2. What effect does the offer to stipulate have on the probative
                value of the evidence?
                    a. General rule: prosecution does not need to accept
                        defense’s offer to stipulate - Court says the prosecution
                        can prove its case however it wants, it does not have to
                        choose the least prejudicial means
                    b. Exception to the General Rule: when the only issue for
                        which the evidence is offered is the proof of someone’s
                        legal status and that fact is completely separate from the
                        events of the charge, then the offer to stipulate must be
                    c. Example: when someone is arrested for selling obscene
                        videos across states lines, defense will often try to
                        stipulate the videos are obscene, so the jury does not
                        have to see them – prosecution does not have to accept
                    d. Example (the exception): Old Chief v. United States
                        (1997) Defendant charged with being a felon in
                        possession of a firearm; the Prosecution was required to
                        accept Old Chief's offer to stipulate to his legal status
                        as a felon rather than admitting his conviction as
g. Statistical proof
        i. Is it admissible?
                1. No iron clad rule about when statistical information is
                    admissible, it is up to the judge's discretion
                2. People v. Collins is an extreme example of when it should
                    not be admissible
                        a. There was no foundation for the probabilities
                        b. Variables have to be independent for the product to
                             work – here the variables were not mutually

                            independent (example: women with ponytails and
                            women with blonde hair overlap)
                        c. Misleads the jury
                                 i. assumes the witnesses are accurate in their
                                    descriptions of the suspects
                                ii. might be difficult for the jury to understand
      ii. If it is admissible, when is it sufficient to get to the jury? Court is
          unlikely to allow the case to go to the jury if statistics are the only
          evidence of the defendant's guilt
h. Categorical Rules of Exclusion (pneumonic: SMOGI)
       i. Subsequent remedial measure
               1. Rule 407: when, after an injury or harm allegedly caused
                    by an event, measures are take that, if take previously,
                    would have made the injury or harm less likely to occur,
                    evidence of the subsequent measures is not admissible to
                    prove negligence, culpable conduct, a defect in a product, a
                    defect in a product's design, or a need for a warning or
                    instruction. This rule does not require the exclusion of
                    evidence of subsequent measures when offered for another
                    purpose, such as proving ownership, control, or feasibility
                    of precautionary measures, if controverted, or
               2. Only applies to measure taken after the injury takes place –
                    remedial measures taken prior to the injury are admissible
               3. Discharging an employee counts as a remedial measure
                    which means that the evidence is not admissible
               4. Third Party repairs are admissible because third parties
                    won’t be discouraged from making repairs because it
                    cannot be used as evidence against them
               5. Even if the evidence is not excluded by Rule 407, can still
                    make a rule 403 challenge
               6. This rule does not require the exclusion of evidence of
                    subsequent measures when offered for another purpose,
                    such as proving ownership, control, or feasibility of
                    precautionary measures, if controverted, or impeachment
                        a. Defense can concede to the issue to keep the
                            evidence out – it is not longer controverted
                        b. Jury might receive a limiting instruction that the
                            evidence is to be used only for the purposes of
                            determining feasibility and not the liability of the
                            defendant – the opposing side has to ask for a
                            limiting instruction if they want it, but there are
                            many reasons not to ask for one
                        c. Summary: if there is evidence of a subsequent
                            remedial measure, it is not allowed in UNLESS
                            there is a reason besides proving liability; if it is let

                     in, the opposing party will be entitled to a limiting
 ii. Settlements/ Offers (R408)
         1. First sentence: Settlement offers are not admissible to prove
            liability – Evidence of (1) furnishing or offering or
            promising to furnish , or (2) accepting or offering or
            promising to accept, a valuable consideration in
            compromising or attempting to compromise a claim which
            was disputed as to either validity or amount, is not
            admissible to prove liability for or invalidity of the claim or
            its amount
         2. Second sentence: not only is the offer not admissible, but
            statements, including statements that are otherwise highly
            relevant and admissible, are barred when made in
            compromise negotiations - Evidence of conduct or
            statements made in compromise negotiations is likewise not
         3. Even vague language can be considered a settlement offer
         4. Third sentence: you cannot immunize evidence and facts
            from proof at trial just because you talked about them in
            settlement negotiations – This rule does not require the
            exclusion of any evidence otherwise discoverable merely
            because it is presented in the course of compromise
         5. Fourth sentence: If there is an issue as to why the case took
            so long to go to trial, evidence of the existence of a
            settlement negotiation can come in; attempts to buy off
            witnesses are not barred by this rule – This rule also does
            not require exclusion when the evidence is offered for
            another purpose, such as proving bias or prejudice of a
            witness, negativing a contention of undue delay, or proving
            an effort to obstruct a criminal investigation or
         6. Evidence of the settlement with someone who is not a party
            to the current action is still not admissible
iii. Medical payments - Rule 409
         1. Evidence of furnishing or offering or promising to pay
            medical, hospital, or similar expenses occasioned by an
            injury is not admissible to prove liability for the injury.
         2. Distinguish from Rule 408: admissions or statements made
            in the course of offering to pay medical expenses are not
                 a. Example:
                          i. get out of the car and say, “I’d like to settle.
                              I’m sorry I ran the light.” - not admissible

                       ii. get out of the car and say, “I’d like to pay
                            your medical expenses. I’m sorry I ran the
                            light.” – admissible
               b. You get more powerful protection in the course of
                   settlement negotiations
iv. Guilty Pleas, Discussions – Rule 410
       1. Rule 410 excludes:
               a. a plea of guilty which was later withdrawn
               b. a plea of nolo contendere (no contest)
               c. any statement made in the course of any
                   proceedings under Rule 11 of the Federal Rules of
                   Criminal Procedure or comparable state procedure
                   regarding either of the foregoing pleas - ie. If there
                   is a withdrawn guilty plea or a plea of nolo
                   contendere, if statements were made, they are also
               d. any statement made in the course of plea
                   discussions with an attorney for the prosecuting
                   authority which do not result in a plea of guilty or
                   which resulted in a plea of guilty later withdrawn
                        i. if defendant says something during plea
                            bargaining which is relevant to the case, but
                            a plea does not result, these statement are
                       ii. the only statements barred are those made to
                            the prosecutors, if defendant says something
                            to police, even in an effort to make a deal, it
                            is still admissible
       2. Effect of conviction: collateral estoppel will attach to the
           issue of whether D was guilty of the crime - there is
           collateral estoppel on the less strict standard of proof:
           during the criminal trial, the prosecution had to prove D’s
           guilt beyond a reasonable doubt, in the civil trial P will
           only have to prove more likely than not
       3. If D had plead guilty rather than going to trial: In most
           jurisdictions, this will not have collateral estoppel effect,
               a. But the guilty plea will be admissible as evidence
                   during the civil trial
               b. When a D makes a guilty plea, the judge will ask
                   him to make a statement about what he is guilty of,
                   these statements will also be admissible
               c. The prosecutor can make waiver of rule 410 a
                   condition of their agreement to enter plea
                   negotiations United States v. Mezzanatto
 v. Proof of Liability Insurance – Rule 411

                     1. Inadmissible uses: Evidence that a person was or was not
                          insured against liability is not admissible upon the issue
                          whether the person acted negligently or otherwise
                     2. Admissible uses: This rules does not require the exclusion
                          of evidence of insurance against liability when offered for
                          another purpose, such as proof of agency, ownership, or
                          control, or bias or prejudice of a witness.
IV.   Rule of Completeness – Rule 106 and 410
      a. Rule 106. Remainder of or Related Writing or Recorded Statements: When
         a writing or recorded statement or part thereof is introduced by a party,
         an adverse party may require the introduction at that time of any other
         part or any other writing or recorded statement which ought in fairness to
         be considered contemporaneously with it.
      b. Can’t take statements out of context and make them misleading; if for
         some reason parts of a writing or statement comes in, the whole thing must
         come in
      c. Same principle in the last paragraph of Rule 410
V.    Character Evidence
      a. Introduction
              i. Three types of character evidence:
                     1. prior (or “other”) acts
                     2. reputation – what the community says about a person
                     3. opinion – what an individual says about a person
             ii. In all three, we are getting information about a character trait
            iii. Propensity rule: you cannot prove propensity in order to prove
                 that someone acted in accordance with that propensity on the
                 occasion of the present crime; bars evidence about propensity
                 by any means: prior acts, reputation, or opinion People v.
      b. Other Acts
              i. Rule 404(b). Character Evidence Not Admissible to Prove
                 Conduct –Other crimes, wrongs, or acts: Evidence of other crimes,
                 wrongs, or acts is not admissible to prove the character of person
                 in order to show action in conformity therewith. – first sentence is
                 the propensity rule.
             ii. Propensity evidence is usually relevant, but it can’t be admitted
                 because it is prejudicial
            iii. Character is never an issue in a criminal prosecution unless the
                 defendant chooses to make it one
            iv. Other Purposes – Exceptions to prohibition of other acts
                     1. Second sentence of Rule 404(b) – It may, however, be
                          admissible for other purposes such as proof of motive,
                          opportunity, intent, preparation, plan, knowledge, identity,
                          or absence of mistake or accident, ...
                     2. Evidence of prior acts can be admitted to show:(MIMIC)

               a.   motive
               b.   intent
               c.   absence of mistake or accident
               d.   the identity of the person charged with the
                    commission of the crime at trial
                e. a common scheme or plan embracing the
                    commission of two or more crimes so related to
                    each other that proof of the one tends to establish
                    the other
        3. If evidence is offered for another purpose, we keep the jury
            from considering it for propensity purposes with a limiting
        4. Another Other Purpose: Res Gestae – it tells the whole
            story of the transaction; it is part of what happened
        5. Other Purpose: Identity, Knowledge, Skill - Sufficient
            similarity standard: there must be a high degree of
            similarity between the other act and the charged crime.
            Proponent must demonstrate that the two acts exhibit a
            commonality of distinguishing features sufficient to
            earmark them as the handiwork of the same individual.
            (United States v. Trenkler – the two bombings)
        6. Other Purpose: absence of Mistake or Accident - Doctrine
            of Chances: evidence that might be marginally probative in
            isolation can become highly probative when considered in
            conjunction. When the same apparent accident occurs
            repeatedly, the likelihood is that it is being caused to
            happen. (Rex v. Smith – “the Brides in the Bath Case”)
        7. Even if evidence passes rule 404(b), the defendant can still
            make a rule 403 argument that the evidence should be kept
            out because its probative value is outweighed by the risk of
            unfair prejudice - Usual response of the court is to give a
            limiting instruction rather than prohibiting the evidence
 v. Degree of certainty with which the commission of the collateral
    crime must be shown (when it is admissible for an other purpose)
        1. No written rule on the subject
        1. A judge should look at all of the evidence and determine
            whether a jury could reasonably find the conditional fact
            (that the collateral crime occurred and that the defendant
            committed it) by a preponderance of the evidence
            (Huddleston v. United States – stolen appliances). Applies
            conditional relevance rule 104(b)
        2. Other acts don’t have to be the subject of a criminal
vi. Effect of acquittal - other acts can be admitted even if the
    defendant has been acquitted of the other acts (Dowling v. United
    States – two robberies, same get-way car)

    vii. Exceptions to the Propensity Rule
             1. Sexual assault cases
                     a. Rule 413 – allows propensity evidence in sexual
                        assault cases; person does not have to have been
                        convicted of other offenses for them to be
                     b. Most rape cases are tried in state courts where this
                        rule does not apply; ie. This rule does not change
                        the prosecution of most rape trials
                     c. Can still make a rule 403 argument saying this
                        evidence is too prejudicial - see subsection c of rule
                        413: “this rule shall not be construed to limit the
                        admission or consideration of evidence under any
                        other rule”
             2. Rule 414 – allows propensity evidence in child molestation
             3. Rule 415 – allows propensity evidence in civil cases
                 concerning sexual assault or child molestation
c. Reputation
       i. Generally
             1. Rule 404 tells us WHEN character evidence can come in
             2. Rule 405 tells us HOW character evidence can come in
       i. When Offered by the Defense:
             1. Defendant can introduce evidence about their good
                 propensity even though the prosecution cannot introduce
                 evidence about his bad character Michalson
             2. Prosecutions Cross Examination
                     a. Prosecution can ask the defense witnesses whether
                        they have heard of defendant’s prior arrests, but
                        they cannot offer other evidence of the arrests if the
                        witnesses say no
                     b. Implication: if the defense puts on character
                        witnesses, they can be asked by the prosecution
                        about prior instances of conduct even if the
                        defendant was not convicted of those incidents
                     c. The prosecution must have a good faith basis for
                        believing the defendant committed the bad acts
      ii. Rule 404 Character Evidence Not Admissible to Prove
          Conduct; Exceptions; Other Crimes
             1. First Sentence: propensity rule – Evidence of a person’s
                 character or a trait of character is not admissible for the
                 purpose of proving action in conformity therewith on a
                 particular occassion
             2. Exceptions (N.B.: these only apply to reputation evidence,
                 not other acts)

                     a. Evidence offered by the accused (Michaelson) –
                         Evidence of a pertinent trait of character offered by
                         an accused, or by the prosecution to rebut the
                              i. must be pertinent to the charge;
                             ii. or by the prosecution to rebut the evidence
                                 offered by the defense
     iii. Rule 405 Methods of Proving Character
             1. Defense witnesses cannot include specific instances of
             2. However, on cross-examination, prosecution may ask about
                 relevant specific instances of conduct
     iv. How can prosecution rebut evidence of good character:
             1. Impeach the witness by asking about their knowledge of
                 past bad acts
             2. Introduce their own witnesses who will testify to
                 defendant’s bad reputation
      v. Character at issue
             1. There are some cases in which a character trait is actually
                 an element of the crime or the defense
             2. Rule 405(b) In cases in which character or trait of character
                 of a person is an essential element of a charge, claim, or
                 defense, proof may also be made of specific instances of
                 the person’s conduct
             3. When character is an issue, either party can use reputation,
                 opinion, and evidence of specific instances of that person’s
             4. Examples:
                     a. negligent entrustment, negligent hiring, negligent
                         retention and supervision, etc. – allowing someone
                         with a bad reputation to use your vehicle or hiring
                         someone who is unqualified; the character of the
                         employee is at issue
                     b. entrapment – if defendant claims entrapment, ie.
                         That he would not have done the crime if he hadn’t
                         been entrapped, the prosecution can offer evidence
                         of past crimes to show this is not true
                     c. child custody
                     d. defamation
d. Victim’s Character
       i. Generally
             1. Rule 404(a)(2): Character of Alleged Victim. Evidence of
                 a pertinent trait of character of the alleged victim of the
                 crime offered by an accused, or by the prosecution to rebut
                 the same, or evidence of a character trait of peacefulness of
                 the alleged victim offered by the prosecution in a homicide

           case to rebut evidence that the alleged victim was the first
       2. Same restrictions that apply to other character evidence
           (405) apply to evidence of victim’s character
       3. In most instances there is no pertinent trait of the victim;
           most common time this evidence can come in is when there
           is a self-defense argument made
       4. General Rule: Defendant must bring in the evidence, then
           the prosecution can rebut it; exception:
       5. Exception: prosecution can bring in the peacefulness of the
           alleged victim offered by the prosecution in a homicide
           case to rebut evidence that the alleged victim was the first
           aggressor without waiting for the defense to introduce
           contrary evidence
       6. Rule 404(a)(1); …if evidence of a trait of character of the
           alleged victim of the crime is offered by an accused and
           admitted under Rule 404(a)(2), evidence of the same trait
           of character of the accused offered by the prosecution
       7. There is an instance in which the character of the alleged
           victim is not being used circumstantially (to show action in
           conformance therewith): where it is being used to prove the
           subjective belief of the accused as an element of the self-
           defense argument
                a. Example: “when I saw Big Bully coming at me, I
                    was in fear for my life because I had heard that he
                    always carries a big machete.”
                b. To the extent that the reputation of the victim is
                    known to the accused, it is being used to prove the
                    reasonableness of the accused being in fear for his
                c. Only comes into play when the reputation of the
                    victim was known to the accused at the time of the
                d. Using it to prove the state of mind of the accused at
                    the time he took the action he did
ii. Sexual Misconduct Cases
       1. Rule 412 Sex Offense Cases; Relevance of Alleged
           Victim’s Past Sexual Behavior or Alleged Sexual
                a. Evidence generally inadmissible. The following
                    evidence is not admissible in any civil or criminal
                    proceeding involving alleged sexual misconduct
                    except as provided in subdivisions (b) and (c):
                         i. Evidence offered to prove that any alleged
                            victim engaged in other sexual behavior

      ii. Evidence offered to prove any alleged
          victim’s sexual predisposition
b. Exceptions:
       i. In a criminal case, the following evidence is
          admissible, if otherwise admissible under
          these rules:
               1. evidence of specific instances of
                   sexual behavior by the alleged victim
                   offered to prove that a person other
                   than the accused was the source of
                   semen, injury or other physical
               2. evidence of specific instances of
                   sexual behavior by the alleged victim
                   with respect to the person accused of
                   the sexual misconduct offered by the
                   accused to prove consent or by the
                   prosecution; and
               3. evidence the exclusion of which
                   would violate the constitutional
                   rights of the defendant.
      ii. In a civil case, evidence offered to prove the
          sexual behavior or sexual predisposition of
          any alleged victim is admissible if it is
          otherwise admissible under these rules and
          its probative value substantially outweighs
          the danger of harm to any victim and of
          unfair prejudice to any party. Evidence of
          an alleged victim’s reputation is admissible
          only if it has been placed in controversy by
          the alleged victim
c. Procedure to determine admissibility
       i. A party intending to offer evidence under
          subdivision (b) must –
               1. File a written motion at least 14 days
                   before trial specifically describing
                   the evidence and stating the purpose
                   for which it is offered unless the
                   court, for good cause requires a
                   different time for filing or permits
                   filing during trial; and
               2. Serve the motion on all parties and
                   notify the alleged victim or, when
                   appropriate, the alleged victim’s
                   guardian or representative

                                    ii. Before admitting the evidence under this
                                        rule the court must conduct a hearing in
                                        camera (in chambers with only the parties
                                        and their counsel) and afford the victim and
                                        parties a right to attend and be heard. The
                                        motion, related papers, and the record of the
                                        hearing must be sealed and remain under
                                        seal unless the court orders otherwise.
      e. Civil Cases
             i. General rule: Character evidence not allowed. Defendants in civil
                cases cannot introduce evidence of their good character – rule
                404(a)(1) talks about the “accused” being allowed to introduce
                such evidence, defendant in a civil case is not the “accused”
            ii. Common Exception: assault and battery case where D claims he
                acted in self defense and wants to admit evidence of P’s violent
                character to show why it was reasonable for D to act to defend
      f. Habit
             i. Evidence of habit and routine practice are admissible
            ii. Rule 406. Habit; Routine Practice: evidence of the habit of a
                person or of the routine practice of an organization, whether
                corroborated or not and regardless of the presence of
                eyewitnesses, is relevant to prove that the conduct of the person or
                organization on a particular occasion was in conformity with the
                habit or routine practice.
           iii. Habit and routine practice are not barred by rule 404 and the
                method of proof is not governed by rule 405
           iv. Distinguish between character and habit (Advisory committee
                    1. habit is more specific than character
                    2. habit is a person’s regular practice of meeting a particular
                        kind of situation with a specific type of conduct
                    3. character may be the sum of one’s habit
                    4. habit is more consistent and unreflected – don’t have to
                        think about it, you just do it
            v. A strong propensity is not necessarily a habit
VI.   Examination of Witnesses
      a. Witness Competency
             i. Rule 601: General Rule of Competency – every person is
                competent to be a witness
            ii. Personal Knowledge Requirement
                    1. Rule 602: Lack of personal knowledge - A witness may not
                        testify to a matter unless evidence is introduced sufficient to
                        support a finding that the witness has personal knowledge
                        of the matter

            2. The question of lack of personal knowledge is a conditional
                 relevance question
            3. Judge will decide if a reasonable jury could find that the
                 witness has personal knowledge of the matter
 iii.   Rule 603: Oath or Affirmation – Before testifying, every witness
        shall be required to declare that the witness will testify truthfully,
        by oath or affirmation… (N.B.: Rule 610: Religious beliefs or
        Opinions – can’t impeach a witness by asking about their religious
 iv.    Rule 604: Interpreters – an interpreter must be sworn to interpret
        accurately; an interpreter is subject to the provisions of these rules
        relating to qualification as an expert and the administration of an
        oath or affirmation to make a true translation.
  v.    Rule 605: Competency of Judge as Witness – the judge
        presiding at the trial may not testify in that trial as a witness. No
        objection need be made in order to preserve the point.
 vi.    Rule 606: Competency of Juror as witness
            1. At the trial. A member of the jury may not testify as a
                 witness before that jury in the trial of the case in which the
                 juror is sitting….
            2. Inquiry into Validity of Verdict or Indictment.
                     a. Jurors can’t testify about anything that goes on
                         internally including deliberations, thought
                         processes, any statements made
                     b. Exception for external matters including: (jurors are
                         competent to testify about these things)
                               i. Extraneous prejudicial information
                                  (examples: hearing about the defendant’s
                                  criminal record on the news, bribes, threats,
                                  private investigation by the jurors)
                              ii. Influences on jurors
                             iii. Outside investigations
vii.    Drug Use by Witness
            1. History of drug use may not be enough to make the witness
            2. If he was on drugs at the time of the incident he witnessed,
                 this might make him incompetent
            3. If he is on drugs when he is testifying, he has already been
                 found competent to testify, but other side may impeach his
viii.   Testimonial Capacities of a Witness
            1. Narration (communication)
            2. Appreciate the oath (honesty)
            3. Memory
            4. Perception

     ix. Questions concerning the qualification of a person to be a witness
          are preliminary questions to be determined by the court subject to
          Rule 104(b) (see above)
      x. Hypnotically Refreshed Testimony
              1. Problems with hypnosis:
                       a. Suggestibility
                       b. Memory hardening – increased confidence in what
                           you think you remember
                       c. Confabulation – fill in the gaps of your memory
                           with things that didn’t really happen
              2. Trial court can only exclude unreliable hypnotically
                  refreshed testimony when offered by the accused
              3. Cannot have a per se rule banning all hypnotically
                  refreshed testimony
     xi. Dead man’s Rules
              1. State statutes designed to equalize the adversarial posture
                  of litigants in cases where one party represents the interests
                  of someone deceased or otherwise incapacitated.
              2. Four types:
                       a. witness incompetencey
                       b. witness not competent to testify to conversations
                           with the decedent
                       c. require corroboration
                       d. offset survivor’s testimony by admitting relevant
                           hearsay statements of decedent
              3. There is no federal Dead Man’s rule
              4. BUT: Rule 601 General Rule of Competency – in diversity
                  actions, competency is determined in accordance with state
b. Direct Examination
       i. Form of direct examination is by question and answer – assumed
          by the rule though not explicitly stated; prevents inadmissible
      ii. Rule 611 (a) Mode and Order of Interrogation and Presentation –
          Control by Court: The court shall exercise reasonable control over
          the mode and order of interrogating witnesses and presenting
          evidence so as to (1) make the interrogation and presentation
          effective for the ascertainment of the truth, (2) avoid needless
          consumption of time, and (3) protect witnesses from harassment or
          undue embarrassment
     iii. Leading questions are barred on direct examination (advisory note
          to Rule 611 (c)) - After an objection to a leading question is
          sustained, the lawyer simply rephrases the question
     iv. Exceptions to the ban on leading questions (can ask the judge for
          permission to use leading questions):

               1. Forgetful witnesses, children, and some adults with trouble
               2. Hostile witnesses – adverse parties, witnesses identified
                  with an adverse party
      v. Leading questions are allowed on cross-examination
     vi. Rule 614. Calling and Interrogation of Witnesses by Court
               1. Very rare
               2. Gives the court the authority to call witness it believes are
                  necessary to the determination of the case which neither
                  side has called
               3. Most commonly used for court appointed experts
               4. Also allows the judge to ask questions of witnesses called
                  by either party
               5. Most judges do not do this
               6. Can object outside the hearing of the jury to preserve the
                  right to raise the issue on appeal without making yourself
                  look bad in front of the jury
    vii. Rule 615. Exclusion of Witnesses
               1. Either party can request that the witnesses be excluded
                  from the courtroom so that they cannot hear the testimony
                  of other witnesses
               2. Cannot exclude the parties to the case
c. Cross-Examination
       i. Purposes
               1. To clarify the witnesses narration
               2. Bring out useful information for your side that the opposing
                  counsel didn’t bring out on direct examination
               3. Impeaching the witness/ attacking one or more of the
                  testimonial capacities of the witness (perception, memory,
                  sincerity, and narration)
      ii. Rule 611(b). Scope of Cross-Examination: Cross-examination
          should be limited to the subject matter of the direct examination
          and matters affecting the credibility of the witness. The court may,
          in the exercise of discretion, permit inquiry into additional matters
          as if on direct examination.
     iii. These are common law or “trial objections” implied by Rule
          611(a): argumentative, calls for speculation, invades the purview
          of the jury, assumes the facts at issue, witness is non-responsive
     iv. What does the second sentence of R611(b) mean? if there are
          exigent circumstances (like the witness has to leave town), then the
          counsel may be allowed to ask the witness questions as though on
          direct examination (meaning no leading questions)
      v. Attacking the credibility of a witness is never barred
     vi. Scope of the cross is limited by the scope of the direct and
          credibility; Scope of the redirect is limited by the cross

               1. redirect is not a second chance at direct
               2. you can control the scope of the redirect by what you ask
                  on cross
     vii. If there is a recross, it is limited by the scope of the redirect
d. Impeachment
       i. Overview
               1. Can impeach a witness’…
                       a. perception (not wearing glasses, too far away,
                           something obstructing their view, etc.)
                       b. memory
                       c. narration (inconsistencies)
                       d. sincerity (honesty)
               2. Bias
                       a. prejudice – either in favor of or against one of the
                       b. interest – having a financial or other stake in the
                           outcome of the litigation; a party in a civil suit is
                           always interested
                       c. corruption – the person has been paid for their
               3. Bad character for truthfulness; several ways you are
                  allowed to show (exception to the propensity rule;
                       a. opinion/reputation - allowed
                       b. specific instances – allowed if pertinent
                       c. prior inconsistent statements – statements made
                           prior to trial that are inconsistent with the trial
                       d. contradiction – contradicting the witness’
                           testimony with other evidence
      ii. Rule 607. Who May Impeach – the credibility of a witness may
          be attacked by any party, including the party calling the witness
     iii. Character for Truthfulness
               1. Overview
                       a. Rule 608 covers opinion and Reputation
                       b. Rule 609 covers convictions
               2. Rule 608. Evidence of Character and Conduct of
                  a. Opinion and Reputation Evidence of character
                            i. General Rule: the credibility of a witness may be
                               attacked or supported by evidence in the form of
                               opinion or reputations,
                           ii. Limitations:
                                    1. The evidence may refer only to character
                                         for truthfulness or untruthfulness, AND

                           2. Evidence of truthful character is
                               admissible only after the character of the
                               witness for truthfulness has been
           b. Specific instances of conduct (not convictions)
                    i. Can introduce intrinsic evidence of specific
                       instances of conduct to show witness’
                       propensity to lie - example: Q: didn’t you call in
                       sick last week when you were really at a
                       baseball game? A: yes, I did. - This is intrinsic
                       evidence – comes from the witness himself.
                   ii. Cannot be proved by extrinsic evidence
                  iii. Must be probative of truthfulness – can’t ask,
                       “didn’t you beat your dog?”
iv. Responding to impeachment of your witness
       1. On cross examination, can ask about specific instances of
           conduct that are inconsistent with the reputation testimony
           (608(b)(2)); ie. Ask about specific instances which show
           the witness was truthful
       2. Call a good character witness (608(a)(2)) – can’t bring in a
           good character witness unless the bad character of that
           witness has been attacked; cannot accredit a witness until
           his character for truthfulness has been discredited
       3. Can’t ask the witness how they got their opinion about the
           good character of the other witness
 v. Rule 609. Impeachment by Evidence of Conviction of Crime
       1. Rule 609 divides witnesses into two categories:
               a. The accused; and
               b. Everybody else
       2. Rule 609 divides offenses into two categories:
               a. Felonies; and
               b. Crimes of dishonesty or false statement
       3. a) (1) Felony
               a. witness other than the accused: admitted unless
                   prejudice substantially outweighs probative value
               b. accused: admitted only if probative value outweighs
                   prejudice to accused
       4. a ) (2) Any crime of dishonesty or false statement
               a. always admitted regardless of degree (misdemeanor
                   or felony) or who the witness is (accused or other)
               b. only restriction: b) conviction greater than 10 years
                   old: admitted only if probative value substantially
                   outweighs prejudice
       5. b trumps a – if the conviction is more than 10 years old,
           always use the balancing test of b

           6. Advisory committee notes make clear that you can
              introduce extrinsic evidence to prove a conviction – usually
              a document stating that X has been convicted of a crime
           7. Juvenile adjudications – can never be used to impeach the
              accused; may be used to impeach prosecution witnesses
              under certain circumstances (609(d)
           8. 5 factor test the court applies to the balancing test required
              by 609 (United States v. Alexander United):
                   a. The impeachment value of the prior crimes - do the
                      prior convictions tell us anything about the
                      defendant’s truthtelling propensity?
                   b. The point in time of the conviction and the
                      defendant’s subsequent history
                   c. Similarity between the past crime and the charged
                           i. Similarity cuts against allowing the evidence
                          ii. The more similar the crime, the more likely
                               it is to be prejudicial - the more similar the
                               crime, the more likely the jury will use it as
                               propensity evidence
                   d. The importance of the defendant’s testimony
                           i. Weighs against admission
                          ii. The more important the testimony, the less
                               likely the court is to allow the impeachment
                   e. The centrality of the defendant’s credibility –
                      weighs against admission
  vi. Ruling that evidence is inadmissible under rule 404(b) does not bar
      it from being found admissible under 609 United States v. Valencia
 vii. Supreme Court held that a criminal defendant cannot appeal if he
      did not take the stand after the motion in limine was denied Luce v.
      United States; example: Valencia made a motion in limine to keep
      out the evidence of his prior conviction; it was denied; therefore, if
      Valencia would either have to take the stand and get impeached
      with evidence of his prior crime or not take the stand and forego
      his right to appeal
viii. Supreme Court said that if the defendant brings out evidence of a
      prior conviction on direct, he cannot claim on appeal that the
      government should not have been allowed to ask about it on appeal
      Ohler v. U.S.
           1. If you have been convicted of a prior crime, you probably
              want to bring it out on direct so that it is not sprung on you
              in cross making it look like you were trying to hide it;
           2. After Ohler, if defendant wants to raise the issue of
              inadmissibility of prior conviction on appeal, he will have
              to wait and be impeached with it on cross

             ix. 609(a)(2) – only crimes of dishonesty are admissible (United
                  States v. Amaechi - Court says that shoplifting is not a crime of
                  dishonesty and therefore cannot be admitted)
       e. Impeachment by prior inconsistent statement
               i. Generally - prior refers to prior to trial
              ii. Rule 613: Prior Statements of Witnesses
                       1. rule for impeachment by prior inconsistent statements
                       2. rule assumes it can be done
                       3. 613 (a) – overturns the common law rule that you could not
                           impeach someone with a prior writing unless you showed it
                           to them first; now you can try to get her lie about it before
                           you show it to her; requirement that it be shown to counsel
                           prevents you from implying that there is a writing when
                           there is not
                       4. 613 (b) – also meant to overturn common law rule;
                           proponent of evidence is not required to allow the witness
                           to explain; as long as W is available to explain at a later
                           point, she does not need to be confronted right then;
                           however, most judges prefer that she is allowed to explain
                           right then
       f. Contradiction - Hitchcock Rule: Can’t use extrinsic evidence to
          contradict details of a witness’s testimony to impeach a witness on a
          collateral issue
       g. Bias – Can use extrinsic evidence on issue of bias to impeach witness
          because not a collateral issue US v. Abel
VII.   Real and Demonstrative Evidence
       a. Real Evidence: Tangible evidence involved in litigated event itself;
          foundation: item is the very same item involved
       b. Demonstrative Evidence: Evidence not involved in litigated event, but
          used to illustrate factual contentions or help jury understand case;
          foundation: item is fair representation of what it purports to be and it aids
          witness in giving his/her testimony
       c. Rule 901. Requirement of Authentication or Identification
               i. Standard for admissibility of evidence: evidence sufficient to
                  support a finding that the matter in question is what its proponent
              ii. Applies to real and demonstrative evidence
             iii. “sufficient to support a finding”= conditional relevance
       d. Identification for Submission
               i. Laying the Foundation for Demonstrative Evidence – Do you
                  recognize exhibit X? What is it? When did you encounter it? Has
                  there been any substantial change in it since?
                       1. In criminal case can stipulate that it is the original/ same
                           one involved
                       2. In civil case, use request for admission
              ii. Evidence Taken into Custody by the Police

                     1. Must establish Chain of Custody (US v Mahecha-Onofre):
                             a. Government must establish that the evidence taken
                                  from def. at the crime scene is the same thing that is
                                  being introduced in court; And
                             b. That there has been no substantial change in item
                                  from time seized
                     2. To establish that it is the same thing, tag it or mark it upon
           iii. Views – a visit by a fact-finder to the place that is relevant to the
                     1. Rule: a view is generally not evidence on the record
                     2. How do you get in evidence that want jury to observe?
                         Lawyer describes it.
                     3. Not regulated by FRE, but by either statute and/or CL
                     4. Court must give permission.
                     5. Nobody can talk to jury w/out permission while they are on
                         their little trip
            iv. Pictorial Evidence
                     1. To satisfy Rule 901, need a Testimonial Sponsor: person w/
                         knowledge to testify that it is what it purports to be
                     2. Two theories on admissibility of photos
                     3. Hidden Cameras or Surveillance Cameras:
                             a. Problem: no testimonial sponsor
                             b. How can foundation be laid to verify it is an
                                  accurate representation? Rule 901 (b)(9)-Process or
                                  system: Evidence describing a process or system
                                  used to produce a result and showing that the
                                  process or system produces an accurate result
                             c. Someone will have to describe system set-up. Then,
                                  photo can fall w/in 901(b)(9)
VIII. Hearsay and Its Exceptions
      a. Out of Court Statements
              i. Hearsay – when someone is testifying to what someone else said
             ii. Declarant – person who says “I saw D do X”
           iii. Out of Court Declarant – makes the above statement out of court
            iv. Hearsay witness – testifies to what declarant said out of court; “I
                 heard Jones say, ‘I saw D do X.’”
             v. Generally hearsay statements are excluded
            vi. When you have an affidavit made out-of-court, you have an out-of-
                 court declarant – the person who made the affidavit
           vii. Rule 801 Definitions
          viii. Rule 802 Hearsay Rule – general bar on hearsay: hearsay is not
                 admissible except as provided by these rules or by other rules
                 prescribed by the Supreme Court pursuant to statutory authority or
                 by Act of Congress
            ix. R801(a)(2) Definition of Statement:

              1. an oral or written assertion; or
              2. nonverbal conduct of a person, if it is intended by the
                   person as an assertion
      x. R801(c) Hearsay – a statement, other than one made by the
          declarant while testify at the trial or hearing, offered in evidence to
          prove the truth of the matter asserted; can be hearsay even though
          the person testifying is the one who made the statement
b. “For the Truth of the Matters Asserted”
       i. There is a hearsay problem only when the validity of the statement
          depends on the testimonial capacities of the declarant – the only
          time that the validity of the statement depends on the testimonial
          capacities of the declarant is when it is being offered to prove the
          matters asserted in the statement
      ii. Example:
              1. D is testifying to the out-of-court statements of J- “I bought
                   earrings for my wife”; if offered to prove that J bought the
                   earrings, then it is hearsay
              2. If offered to show that D believed the earrings were
                   purchased rather than stolen, it is not hearsay
c. Conduct as Hearsay
       i. Non-verbal conduct is only treated as hearsay when it is intended
          as an assertion
      ii. Example: politician wanting to show that it was safe to test nuclear
          bombs in Alaska took his family on vacation in the vicinity of the
          test sites – this is hearsay
     iii. When it is debatable, the advisory committee notes says to air on
          the side of admission
d. Not Hearsay (pneumonic: WIPPE)
       i. Words of Independent Legal Significance: a statement is not
          hearsay if the very saying of the words has legal consequences.
      ii. Implied Assertions
              1. Example: Mike Tyson Rape Trial Hypo - witness testifies
                   that the victim said to her, “Tyson is rich is dumb”
                       a. the implied assertion is that the victim thought
                            Tyson was a good/ easy catch and therefore had
                            consensual sex with him
                       b. not being offered to prove that Tyson is actually
                            rich and dumb
                       c. not hearsay
              2. Federal Rules treat implied assertions as non-hearsay
                   because they are not trying to prove the statement but used
                   a circumstantial evidence to prove another theory
      ii. Admission of Party Opponents (pneumonic: SAC)
              1. Party’s own:
                       a. Rule 801(d)(2) – a statement is not hearsay if the
                            statement is offered against a party and is the

          party’s own statement in either an individual or a
          representative capacity
      b. Applies in both criminal and civil cases
      c. To be admissible under 801(d), evidence must be
          offered as evidence of an admission against the
          maker of the statement
      d. Evidence is not admissible if it is being offered by
          the party who made it, not against the party who
          made it
2. Adoptive Admission
      a. Rule 801(d)(2)(B) – the statement is offered against
          a party and is a statement of which the party has
          manifested an adoption or belief in its truth
      b. Silence
                i. In certain circumstances silence is treated as
                   an adoption of the statement (called tacit or
                   passive admission or admission by silence)
               ii. When do we assume that silence is a tacit
                   adoption? In circumstances where a
                   reasonable person would be expected to
                   respond if he disagreed; Elements:
                       1. must be made in the presence of
                           opposing party
                       2. must be heard and understood by the
                           opposing party
                       3. the opposing party must be at liberty
                           to respond and
                       4. the circumstances would naturally
                           call for a response
              iii. in most states, can’t use someone’s silence
                   against them if they are been mirandized
3. Agent/ Servant Statement
      a. Rule 801(d)(2)(C)or(D): A statement is not hearsay
          if the statement is offered against the party and:
                i. (C) is a statement by a person authorized by
                   the party to make a statement concerning
                   the subject, or
               ii. (D) a statement by the party’s agent or
                   servant concerning a matter within the
                   scope of the agency or employment, made
                   during the existence of the relationship
      b. Authorization is not an element of vicarious
          admission; as long as they are talking about their
          job and they are still employed, it is a vicarious

      c. The judge decides whether the statements are
         admissible 104(a); in making those decisions, it is
         not bound by the rules of evidence except those
         concerning privilege
              i. the judge must decide whether elements of
                 801(d)(2)(D) are met – judge gets to decide
                 if C is an agent or employee of D
             ii. He can consider C’s out-of-court statement
                 in making this decision because he is not
                 bound by the rules of evidence
            iii. BUT 801(d)(2) – The contents of the
                 statements shall be considered but are not
                 alone sufficient to establish the declarant’s
                 authority under (C), the agency or
                 employment relationship and scope thereof
                 under subdivision (D) – (ie. The judge can
                 consider the out-of-court statement, but it
                 cannot alone be enough to decide that C is
                 D’s employee)
      d. There is no requirement that the statement be made
         to someone outside of the employment relationship;
         “in house” statements are still admissible against
         both the employee and employer (Mahlandt v. Wild
         Canid Survival and Research Center, Inc. – Sophie
         the Wolf)
      e. Party admissions have not historically required
         personal knowledge. Wild Canid
      f. The agent can speak for the principle, but the
         principle cannot speak for the agent. Wild Canid
4. Co-conspirator Statement
      a. 801(d)(2)(E) – A statement is not hearsay if the
         statement is offered against a party and is:
              i. a statement by a coconspirator of a party
             ii. during the course and in furtherance of the
      b. There may be a preliminary question of fact
         (104(a)) – whether there was a conspiracy
              i. Judge must find there is a preponderance of
                 evidence to support the finding that there
                 was a conspiracy
             ii. The judge can consider the out-of-court
                 statements in determining whether there was
                 a conspiracy
      c. The rule can apply even when there is no charge of
         conspiracy; can even come in civil cases

                     5. What does it mean for a statement to be made in the course
                         of the conspiracy?
                             a. Ask: have the central purposes of the conspiracy
                                 been achieved?
                             b. Generally, a conspiracy continues up to the time
                                 one of the conspirators is arrested; so, once a
                                 conspirator is arrested and starts confessing, these
                                 statements cannot be used against the co-conspirator
                             c. Usually, if one of the co-conspirators said it and it
                                 was during the course of the conspiracy, it will be
                     6. Can be many co-conspirators: if there are fifty co-
                         conspirators, a statement made by one of them is
                         admissible against all fifty
      b. Prior Statements of Witness Now Testifying
              i. General principle: an out of court statement by a witness, even one
                 who is on the stand, is not admissible for the truth of the matter
                 asserted in the statement
             ii. Exception: R801(d)(1) Prior Statements by Witness
                     1. Where the statement is inconsistent with the declarant’s
                         testimony - To be admissible, statement must have been
                         given under oath subject to the penalty of perjury at a trial,
                         hearing, or other proceeding (includes grand-jury
                         hearings), or in a deposition, or
                     2. Where the statement is consistent with the declarant’s
                             a. Statement is admissible if offered to rebut an
                                 express or implied charge against the delcarant of
                                 recent fabrication or improper influence or motive,
                             b. Statements must be made prior to the motive to
                                 fabricate (Tome v. United States – abused girl)
                     3. Where statement is one of identification of a person made
                         after perceiving the person, statement is admissible - it is
                         not necessary that the out of court identification be
                         inconsistent with the in court statement
      c. Attacking and Supporting Credibility of Declarant – Rule 806:
         credibility of declarant may be attacked and if attacked may be supported
         by any evidence which would be admissible for those purposes had
         delcarant been a witness (ie. even though the declarant is not a witness,
         his credibility may be attacked as if he was on the stand)
IX.    Hearsay Exceptions
      a. Generally
              i. Roadmap
                     1. Exceptions only allowed when Declarant unavailable –
                         Rule 804
                             a. Former testimony – (b)(1)

                      b. Statements against interest – (b)(2)
                      c. Dying declarations – (b)(2)
              2. Exceptions where it is not necessary that the Declarant be
                  unavailable – Rule 803
      ii. When hearsay is offered under an exception to the hearsay rule, the
          declarant must have personal knowledge - Compare to things that
          make a statement non-hearsay, like party admissions, which do not
          require that the declarant have personal knowledge (e.g. Sophie the
          wolf case)
b. Declarant Unavailable – R804 (pneumonic: DIFF)
       i. What is unavailable? 804(a) Definition of unavailability
              1. witness is exempted on the ground of privilege (such as 5th
                  amendment right to avoid self-incrimination)
              2. witness refuses to testify
              3. witness testifies to lack of memory
              4. death or then existing physical or mental illness or infirmity
              5. witness is absent from the hearing and cannot be found
      ii. Unavailability is the threshold issue, but it is not the only issue –
          just because a declarant is unavailable does not mean that all of
          their out of court statements are available, must still look to 801(b)
     iii. Former Testimony – 804(b)(1) where declarant is unavailable,
          former testimony is not excluded as hearsay
              1. Former Testimony: testimony given as a witness at another
                  hearing of the same or a different proceeding, or in a
                  deposition taken in compliance with law in the course of
                  the same or another proceeding, if the party against whom
                  the testimony is now offered, or, in a civil action or
                  proceeding, a predecessor in interest, had an opportunity
                  and similar motive to develop the testimony by direct,
                  cross, or redirect
              2. The evidence must be offered against the same person to be
              3. D must have had an adequate motive to cross examine W in
                  the first trial
                      a. from criminal to civil trial - it is presumed that the
                           motive to avoid conviction is at least as strong as
                           the motive to avoid being found responsible in the
                           civil trial
                      b. therefore, testimony presented against D in criminal
                           trial is admissible against D in civil trial
              4. A predecessor in interest is the person from whom one
                  inherits the right to bring a claim (e.g. assignor/assignee,
                  seller/buyer, deceased/estate, etc.)
              5. If the prior proceeding is a Grand Jury Hearing, the
                  testimony cannot be used because there is no opportunity to
                  cross examine

iv. Statements Against Interest – 804 (b)(3) A statement which was
    at the time of its making so far contrary to the declarant’s
    pecuniary or proprietary interest, or so far tended to subject the
    declarant to civil or criminal liability, or to render invalid a claim
    by the decalrant against another, that a reasonable person in the
    declarant’s position would not have made the statement unless
    believing it to be true.
        1. Distinguish from Party Admissions
                 a. Some party admissions are statements against
                 b. But you do not get to this exception if it is a party
                     admission because it is not hearsay
                 c. This only applies to non-party admissions
        2. Last sentence of 804(b)(3) – A statement tending to expose
             the declarant to criminal liability and offered to exculpate
             the accused is not admissible unless corroborating
             circumstances clearly indicate the trustworthiness of the
                 a. You need other evidence to corroborate the out of
                     court statement
                 b. e.g. an eyewitness that saw Joe committing the
                     crime, a murder weapon owned by Joe, a letter
                     written by Joe saying he killed V, Joe’s motive,
                     subsequent conduct – like Joe leaving the country
                 c. whether the last sentence of 804(b)(3) is a question
                     to be decided by the judge
        3. When some of what a person says is against their interest
             and some is not: (adopted by the Supreme Court) take it on
             a statement by statement basis and only the statements that
             are truly against interest come in
 v. Dying Declaration – 804 (b)(2)
        1. Applies to both criminal and civil case
        2. The statement must concern the cause or circumstances
             about of the impending death
        3. To make a dying declaration a person must have a settled,
             hopeless, expectation that death is close at hand Shepard v.
             United States
        4. The judge decides whether the statement was made under a
             belief of impending death
        5. One way to prove that someone is making a statement
             under a belief of impending death is to offer proof that
             someone (usually a doctor) told them that they were about
             to die – these statement will be admissible because not
             offered to prove the truth of the matter asserted, but to
             show the affect on the mind of the hearer
vi. Forfeiture by Wrongdoing - 804 (b)(6)

              1. If the judge determines that D had a hand in preventing H
                  from testifying, he can allow the evidence even though it
                  would otherwise be hearsay
              2. Standard of proof judge applies – preponderance of the
c. Rule 803 – Exceptions that Apply whether or not the Declarant is
   Unavailable (Pneumonic: MR. B. PEPP)
       i. Present Sense impressions (1) – a statement describing or
          explaining an event or condition made while the declarant was
          perceiving the event or condition, or immediately thereafter
      ii. Excited Utterances (2) – a statement relating to a startling event
          or condition made while the declarant was under the stress of
          excitement caused by the event or condition
     iii. Present Mental, Physical Condition, State of Mind (3) – a
          statement of the declarant’s then existing state of mind, emotion,
          sensations, or physical condition (such as intent, plan, motive,
          design, mental feeling, pain, and bodily health), but not including a
          statement of memory or belief to prove the act remembered or
          believed unless it relates to the execution, revocation
          identification, or terms of delcarant’s will
              1. Napoleon hypo:
                      a. Out of court declarant says, “I am Napoleon.” –
                          admissible because not hearsay because not being
                          offered to prove the truth of the matter asserted
                      b. Out of court declarant says, “I believe I am
                          Napoleon.” – is hearsay but still admissible because
                          falls under 803(3) exception
              2. Present Statements of Future Intent
                      a. Present statements of future intent fall within the
                          existing mental conditions exception Mutual Life
                          Insurance Co. v. Hillmon – letters from the dead
                      b. When the Hillmon rule was adopted into the Federal
                          Rules, the Advisory Committee notes said statement
                          of intent and plan can be used to prove the behavior
                          of the declarant, but not the behavior of anyone else
     iv. Statements for Medical Diagnosis/Treatment (4) –
              1. Elements of the rule:
                      a. Statement must be made to some medical personal –
                          (i.e. nurse, doctor, emt)
                      b. Statements must be used by the doctor in reaching
                          his medical opinion
                      c. Statements must be made by the patient
              2. Anyone can testify, so long as the statements were made to
                  a doctor - Example: patient is in hospital bed; spouse is

             sitting next to him; patient tells doctor he was run over by a
             snow mobile – spouse can testify to this statement
        3. These statements are admissible both to explain his
             diagnosis and substantively to prove the truth of the matter
        4. Statements of cause are acceptable because they are
             pertinent in reaching a diagnosis – (e.g. “ was run over by a
        5. Statements of fault are not admissible – (e.g. “it was D that
             ran me over.)
        6. Rule extended the admissibility of this evidence beyond
             treating physicians to now include the diagnosis of non-
             treating physicians even if his services were obtained
             purely for the purpose of establishing evidence at trial
 v. Recorded Recollections – Rule 803(5) a memorandum or record
    concerning a matter about which a witness once had knowledge
    but now has insufficient recollection to enable the witness to testify
    fully and accurately, shown to have been made or adopted by the
    witness when the matter was fresh in the witness’ memory and to
    reflect that knowledge correctly.
        1. If admitted, the memorandum or record may be read into
             evidence but may not itself be received as an exhibit unless
             offered by an adverse party.
        2. Do NOT have to first try to refresh recollection under Rule
             612 - Rule 612.Writing Used to Refresh Memory – not
             about hearsay; can ask about it and if they say that it would
             be helpful in refreshing their memory, they should be
             allowed to use it to refresh your memory
vi. Records of Regularly Conducted Activity (“Business Records”)
    803(6) - a memorandum, report, record, or data compilation, in
    any form, of acts, events, conditions, opinions, or diagnoses, made
    at or near the time by, or from information transmitted by, a
    person with knowledge, if kept in the course of regularly conducted
    business activity, and if it was the regular practice of that business
    activity to make the memorandum, report, record, or data
        1. Must put the records custodian on the stand (a person with
             knowledge) to say this is how they keep records; or
        2. R902(11) – can send the account along with a certification
             by the custodian that satisfies the requirements
        3. You don’t need business records exception if the evidence
             at issue is the records of the opponent of that evidence
             because it comes in as a party admission
        4. Accident reports are generally kept out when offered by the
             party who made them because they have a motive to lie

          5. What is a regularly conducted business activity? Not
             something made in preparation of trial Palmer v. Hoffman
          6. Last line: UNLESS the source of information or the method
             or circumstances of preparation indicate lack of
             trustworthiness – a motive to lie might indicate lack of
 vii. Public Record (803(8)) – records, reports, statements, or data
      compilations, in any form, or public offices or agencies, setting
          1. the activities of the office or agency, or
          2. matters observed pursuant to duty imposed by law as to
             which matters there was a duty to report, excluding,
             however, in criminal cases matters observed by police
             officers and other law enforcement person, or
          3. in civil actions and proceedings and against the
             government in criminal cases, factual findings resulting
             from an investigation made pursuant to authority granted
             by law, unless the sources of information or other
             circumstances indicate lack of trustworthiness
          4. There is no clear line between factual findings and opinions
             Beech Aircraft Corp. v. Rainey
          5. Factual findings must result from an investigation
          6. Certain things make a statement untrustworthy:
                 a. Timeliness
                 b. Investigator’s skill or experience
                 c. Whether hearing was held
                 d. Possible bias when reports are prepared
                 e. Other
          7. Be alert to whether case is civil or criminal because the rule
             applies differently
          8. Everyone in the chain has to have a duty to report to come
             under 803(8) Johnson v. Lutz
          9. Lab reports
                 a. Lap report is on the stand; out of court declarant is
                      the lab tech; the report says, the white powder is
                 b. Does it come is under 803(8)? No – offends the
                      confrontation clause
viii. Residual Exception 807 – catch all exception
          1. If you cannot get hearsay in under any other exceptions, try
             rule 807 as a last resort
          2. When there is great necessity to evidence and it is
             trustworthy, then the judge can let it in
          3. As trustworthy as the standard exceptions – “having
             equivalent circumstantial guarantees of trustworthiness”
          4. Court must determine that:

                            a. statement is offered as evidence of material fact;
                            b. is more probative on that point than any other
                                 evidence that proponent could get through
                                 reasonable efforts; and
                            c. general purposes of these rules and justice are best
                                 served by admitting the evidence
                    5. Not limited to when the declarant is unavailable, but
                        usually used when the declarant is unavailable because this
                        makes it more likely to be more probative than any other
                    6. Proponent must give other side notice so that opponent has
                        fair opportunity to prepare
           ix. Other Exceptions
                    1. 803(21) Reputation as to character – reputation of a
                        person's character among associates or in the community;
                        this is how character evidence gets in for impeachment
                    2. Religious/family records
                    3. Statement in ancient documents
                    4. State exceptions (ex. child's prior statements in child abuse
     d. Double Hearsay
             i. Rule 805. Hearsay within Hearsay – hearsay included within
                hearsay is not excluded under the hearsay rule if each part of the
                combined statements conforms with an exception to the hearsay
                rule provided in these rules. - i.e. if you can bridge each gap, then
                the statement comes in
X.   Confrontation Clause
     a. Introduction
             i. Sixth amendment: In all criminal prosecutions, the accused shall
                enjoy the right…to be confronted with the witnesses against him.
            ii. One sided provision – only applies to the defendant in a criminal
                case; the prosecution has no rights under the confrontation clause
           iii. No such right in a civil case – might be statutory rights, but not
                under the constitution
     b. Testimony in Presence of the Defendant
             i. There is a constitutional right to have the witness testify face to
                face with the defendant
            ii. This is not an absolute right - Defendant has the right to see the
                witness, to cross-examine, to confer on what questions to ask on
           iii. Closed Circuit Televisions in Child Abuse Cases Maryland v.
                    1. Can’t use television in all cases - Must be found on a case
                        by case basis that the victim would be psychologically
                        traumatized such that the child could not communicate (a

                 showing that you could not get the testimony from the child
                 if he was in the presence of the accused)
              2. How does the prosecution show this? Expert testimony
              3. Rules that are not done on a case by case basis, such as an
                 across the board rule that in all child sexual assault case a
                 screen will be used, are unconstitutional
              4. This issue does not arise if the child is found incompetent
                 to testify because he will be unvavailable
c. Scope of Cross-Examination
       i. The right to cross examination is an essential aspect of the right to
      ii. Asking about Juvenile Records Davis v. Alaska
              1. While a the opponent may ask about a juvenile conviction
                 for the purposes of showing bias or prejudice, they may not
                 do so simply for the purpose of establishing bad character
                 for truthfulness
              2. Rule 609 (d) Impeachment by Evidence of Conviction of
                 Crime; Juvenile Adjudications – if W is not criminal
                 accused AND the evidence of crime would be admissible if
                 W were an adult, the court has the discretion to balance and
                 decide whether admitting the evidence is necessary for fair
d. Relation to Hearsay
       i. The witness to which the confrontation clause applies is the out of
          court declarant, not the witness on the stand
      ii. Three categories of evidence Ohio v. Roberts:
              1. Firmly rooted hearsay exception – if a hearsay exception
                 has been around and used for a long time, then cross
                 examination is not necessary; this hearsay can come in
                 without violating the confrontation clause
              2. Not firmly rooted, ask does the individual statement bear
                 indicia of reliability? – look at this statement and the
                 circumstances surrounding the making of the statement;
                 this evidence can come in
              3. If the evidence does not fall under category 1 or two, then it
                 is inadmissible
     iii. Recently the court distinguished between testimonial and non-
          testimonial statements: Crawford v. Washington
              1. Testimonial statements can only be admitted where the
                 declarant is unavailable AND the defendant has had a prior
                 opportunity to cross examine
              2. Now the admission of hearsay turns on a determination of
                 whether the statements are testimonial or non-testimonial:
              3. What is testimonial and thus not generally admissible?
                 Things that a reasonable person would know might be used
                 in litigation, for example:

                                     i.   A formal statement to government officers
                                    ii.   Statements against interest
                                   iii.   Accomplice statements to the police
                                   iv.    Grand jury testimony
                                    v.    Other former testimony that was not cross-
                                     vi. Statement that declarant would reasonably
                                          expect to be used prosecutorially (ie.
                                          structured police questioning)
                                    vii. Other
                      4. What is non-testimonial and thus generally admissible?
                                       i. Business records
                                      ii. Co-conspirator statements
                      5. Testimonial, but admissible:
                             a. Former testimony that has been cross examined
                             b. Dying declarations
                      6. Gray areas:
                             a. Excited utterances made to state actors
                             b. Present sense impressions and other hearsay
                                 exceptions made to state actors
                             c. Argument for admission: a reasonable objective
                                 witness is not making the statement knowing it will
                                 be used in a future trial, but to get help
                             d. Argument against admission: most people know
                                 that these statements can be used in trial and the
                                 operator asks a structured set of questions
            iv. Bruton Problem: Confession of one defendant that implicates
                      1. Rule: a limiting instruction is insufficient protection
                         against a confession by one accused implicating the
                         other(s) which is only admissible against one
                      1. What should the court do instead?
                             a. redact the part of the statement which implicates co-
                             b. separate the trials
                             c. have two juries (the one for the defendant against
                                 whom the evidence is inadmissible will leave the
                                 courtroom while it is being presented)
                             d. Convict the confessor first and then make him
                                 testify against the other(s)
XI.   Opinion/ Expert Testimony
      a. Lay opinion R701
              i. If the witness is a lay-person, he must testify from personal
             ii. Even if a witness has personal knowledge, the evidence is limited
                 by the provision of 701 – If the witness is not testifying as an

           expert, the witness' testimony in the form of opinions or inferences
           is limited to those opinions or inferences which are:
                1. rationally based on the perception of the witness, and
                2. helpful to a clear understanding of the witness' testimony
                    or the determination of a fact in issue, and
                3. not based on scientific, technical or other specialized
                    knowledge within the scope of Rule 702
      iii. This is a rule of preference – we want the witness to give the best
           possible evidence – so, if it is impossible to give better testimony,
           an objection to opinion evidence will be overruled; if the witness
           can do better, the objection will be sustained
      iv. Rule 701 does not apply to hearsay statements because the witness
           is not there to give better testimony
b. Expert Opinion R702
        i. If scientific, technical, or other specialized knowledge will assist
           the trier of fact to understand the evidence or to determine a fact in
           issue, a witness qualified as an expert by knowledge, skill,
           experience, training, or education, may testify thereto in the form
           of an opinion or otherwise, if (1) the testimony is based upon
           sufficient facts or date, (2) the testimony is the product of reliable
           principles and methods and (3)the witness has applied the
           principles and methods reliably to the facts of the case
       ii. Elements: (need all 3)
                1. helpfulness to the trier of fact
                2. qualification – the witness must be qualified to give the
                3. reliability of methods
      iii. If all 3 elements are met, the witness can testify even if they do not
           have any personal knowledge concerning the facts of the present
      iv. Experts can give their opinion on this case or describe the way
           things work in general
       v. Judge determines whether a witness is qualified as an expert
c. Scientific Proof
        i. The Frye Test: For scientific evidence to be admissible, “the thing
           from which the deduction is made must be sufficiently established
           to have gained general acceptance in the particular field in which it
           belongs.” Frye v. United States
                1. Basically requires that most scientists believe in the
                    accuracy of a method
                2. A new scientific principle must gain general acceptance in
                    the scientific field before it will be admissible at trial
                3. Examples of scientific methods which have passed the Frye
                        a. DNA analysis
                        b. bite mark comparisons

                  c. gun shot residue tests
         4. Some states still use the Frye Test
         5. Frye is dead in the Federal Courts
 ii. Daubert/ FRE 702 Test
         1. Relation of 702 to Scientific Evidence: Daubert v. Merrell
             Dow Pharmaceuticals, Inc.
                  a. To determine whether the evidence is consistent
                      with 702, look at whether there is a reliable
                      methodology used to develop the scientific principle
                  b. What is a reliable methodology?
                            i. Empirically tested
                           ii. Low potential rate of error
                         iii. Subjected to peer review
                          iv. General acceptance in the field
         2. Judge determines whether the scientific evidence was
             derived by a reliable methodology by applying the Daubert
             test above
         3. The scientific evidence must also “fit”with the case
         4. Doesn’t matter that the study was done in anticipation of
         5. S.C. held that on appeal, the trial judges finding on whether
             a particular piece of evidence is reliable is reviewed only
             for abuse of discretion; effect: insulates the trial judge’s
             finding on this issue quite a bit GE v. Jorner (1997)
         6. Supreme court extended Daubert to technical theories as
             well as scientific evidence Kumho Tire (1999)
         7. Rule 702. Testimony by Experts
                  a. After Daubert, GE, and Kumho, the drafters added
                      “if (1) the testimony is based upon sufficient facts
                      or date, (2) the testimony is the product of reliable
                      principles and methods, and (3) the witness has
                      applied the principles and methods reliably to the
                      facts of the case.” - Reliability
                  b. Other Requirements
                            i. “will assist the trier of fact” – helpfulness
                           ii. “qualified as an expert” – qualification
         8. The Daubert court recognized that some scientific
             principles are so widely accepted that they are subject to
             judicial notice (do not have to re-litigate whether it is
             reliable; e.g. DNA analysis)
iii. Lie Detector Tests: Supreme Court said jury determines credibility,
     not a lie detector
iv. Proper Subject
         1. Can’t give your opinion on how the case should be decided;
             jury evaluates the evidence, not witnesses
         2. Compare:

             a. At the original trial, the expert was allowed to give
                her opinion that the alleged victim in this case had
                been raped – not admissilbe State v. Saldana
             b. The witness gave an opinion on the reliability of
                eye witness identification; she did not testify to her
                opinion on whether these eye-witnesses were
                correct - admissible State v. Chapple
v. Examining Experts
      1. Qualification
             a. Purpose of having witness state qualifications
                      i. Fulfill the requirement of the rule
                     ii. To give weight to the testimony of the
                         witness – opposing side may stipulate to the
                         qualifications of the witness to try to avoid
             b. If there is a dispute as to the qualification of the
                witness, the opposing side may ask for a voir dire of
                the qualifications of the witness; may be done in the
                hearing of the jury or outside the hearing of the
                jury; can even call your own witnesses to dispute
                the qualifications of the witness (very rare)
             c. The advisory committee notes to the rule say it is
                better for the judge not to “certify” the witness as an
                expert in front of the jury because it gives the
                witness too much weight
      2. Bases for Opinion
             a. In addition to being qualified as an expert, the
                witness must have a permissible basis for his
             b. Permissible bases for expert opinion:
                      i. Personal observation - The facts or data
                         perceived by the expert
                     ii. Hypothetical question based on other
                         admitted evidence
                    iii. Unadmitted / inadmissible evidence that is
                         the type that other experts in their field rely
                         on in their everyday work – e.g. even if I.Q.
                         tests are not admissible at trial, if
                         psychologists usually rely on them in
                         forming an opinion
      3. Last sentence of Rule 703 – Facts or data that are
         otherwise inadmissilbe shall not be disclosed to the jury by
         the proponent of the opinion or inference unless the court
         determines that their probative value in assisting the jury to
         evaluate the expert's opinion substantially outweighs their
         prejudicial effect. Burden is on the proponent of the

                            evidence to show that the need for the evidence outweighs
                            the prejudice
                        4. Rule 705. Disclosure of Facts or Data Underlying Expert
                            Opinion – The expert may testify in terms of opinion or
                            inference and give reasons therefor without first testifying
                            to the underlying facts or data, unless the court requires
                            otherwise. The expert may in any event be required to
                            disclose the underlying facts or data on cross-examination.
             vi.    Learned Treatises Rule 803(18)
                        1. Expert can lay foundation for leanred treatise by saying it is
                            a standard reference in the field – read section for jury, but
                            can't be offered as an exhibit
                        2. On cross of EW, can ask whether he's familiar w/ the
                            treatise, if conceded it is relied on in field/ authoritative,
                            then can read it either to impeach or as substantive proof
                            later; can be used as substantive proof by either party
                        3. can also get judge to take judicial notice if so well
            vii.    Ultimate Issue
                        1. Common law – rule that experts could not testify to their
                            opinion on the ultimate issue of the case because this
                            invaded the purview of the jury
                        2. Rule 704 originally - abolished the ultimate issue rule
                        3. Rue 704 amendment – added (b) to revive the ultimate
                            issue rule for the purposes testifying to the mental state or
                            condition of a defendant in a criminal case
            viii.   “Law” Opinions - Expert Witness testimony concerning the law is
                    not admissible at trial because the jury does not need to know it,
                    they are instructed on the law by the judge Marx and Co., Inc. v.
                    Diners Club, Inc.
             ix.    Rule 706 Court Appointed Experts – court can, on its own or
                    upon motion of a party, appoint neutral expert (costs assessed to
XII.   Writings
       a. Authentication
              i. Rule 901. Requirement of authentication or identification
             ii. Two ways to authenticate
                    1. Evidence extrinsic to the writing
                            a. testimony of witness with knowledge (e.g. someone
                               who saw him write the confession, someone who he
                               told that the wrote it, the signatory himself,
                               someone familiar with his handwriting)
                            b. Expert opinion (901(b)(3)) (ie. handwriting expert)
                            c. Comparison by the trier of fact
                            d. circumstantial proof (e.g. symbol that defendant
                               always uses)

                    2. Intrinsic evidence (“Self-authenticating documents”) Rule
                            a. Example: producing a copy of the Blade to show
                                that show that the Blade printed certain slanderous
                            b. The likliehood that the identification of the writer is
                                false is so small, that it can be admitted without
                                further proof
                            c. letterhead is not enough to be self-authenticating
          iii. If there is evidence sufficient to support a finding of authenticity in
               competing theories of the case, they are both admitted and the jury
               decides which is correct
          iv. Voices – Identifying the Voice of Caller
               1. 901(b)(5) recognize voice
               2. 901(b)(4) circumstances of conversation; example: C has a
                    private conversation with S in his office earlier that day; when
                    the caller calls he makes reference to the conversation they’d
                    had earlier – this is circumstantial evidence that the caller is S
               3. 901(b)(6) called # assigned to person + circumstances,
                    including self identification
               4. 901(b)(6) call to business and conversation related to that
b. Best Evidence Rule
       i. When does it apply? when you are trying to prove the contents of a
           writing, recording, or photo
      ii. Rule contemplates doing it one of three ways:
               1. Original: the thing itself of counterpart intended to have the
                    same effect
               2. Duplicate: accurate reproduction (ie. photocopy)
               3. Secondary Evidence: all other methods of proof...copies that
                    aren't duplicates, drafts, notes, testimony
     iii. To prove the contents...
               1. Rule 1002: the original is required
               2. BUT Rule 1003: Duplicate is presumptively admissible
                        a. genuine question as to its authenticity or
                        b. it would be unfair to admit it under the circumstances
                        c. jury would then decide if duplicate accurately
                            represents the contents of original
               3. AND Rule 1004: Secondary evidence is admissible if you have
                    a good excuse for absence of the original (judge decides by
                    preponderance standard):
                        a. original lost or destroyed: unless proponent
                            lost/destroyed in bad faith - the proponent has the
                            burden of showing that the destruction of the evidence
                            was not in bad faith

                           b. Habit/ routine business practice is to destroy - use rule
                               406 to show habit to show destruction was in good faith
                           c. original not obtainable: can't get it by available process/
                           d. Original in possession of opponent
                                    i. party with it was put on notice that contents
                                       would be subject of proof at hearing (by
                                       pleadings or otherwise) AND
                                   ii. Party does not produce the original at the
                           e. Collateral Matters: writing, recording or photo is not
                               closely related to controlling issue
         iv. Original not required if...
                   1. Public Record (Rule 1005): preferred secondary evidence is
                       certified copy; only if a certified copy or such testimony is not
                       available, may the proponent admit evidence by other means
                   2. Voluminous Records (Rule 1006) – may be summarized; the
                       summary, if in written form, will itself be covered by the best
                       evidence rule
          v. Proving a negative: Testimony that you’ve examined evidence and
              there is no record of something, the best evidence rule does not apply
XIII. Judicial Notice
      a. Rule 201. Judicial Notice of Adjudicative Facts – creates an exception to
          the requirement that facts be adjudicated
               i. Two kinds of facts that can be subject to judicial notice:
                       1. those not subject to reasonable dispute
                       2. those that are capable of accurate and ready determination
                           by resort to sources whose accuracy cannot reasonably be
              ii. When something is taken under judicial notice, it does not need to
                   be proved – it is presumed true
      b. Matters of Law
      c. Judges are required to take judicial notice of matters of law if requested to
          do so
      d. Ie. you don’t have to prove the law to the judge
      e. Not regulated by rule 201
      f. Criminal Cases 201(g): In a criminal case, the court shall instruct the jury
          that it may, but is not required to, accept as conclusive any fact judicially
XIV. Burdens and Presumptions
      a. Burdens of Proof is made up of two components.
               i. Burden of Production; and
              ii. Burden of Persuasion
      b. Burdens are allocated by issue/ elements and not by party
      c. Burden of Production - obligation to come forward with the evidence
          needed to avoid adverse ruling

        i. Party with the burden of production must put on enough evidence
           on all issues to allow a reasonable jury to find for him under the
           applicable standard
       ii. Civil Case: if plaintiff meets its burden of production and
           defendant presents no evidence, there can be a directed verdict
     iii. Criminal Case: cannot have a directed verdict or summary
d. Burden of Persuasion
        i. Concerns the degree to which the trier of fact must be persuaded
       ii. Civil case – preponderance of the evidence; burden of persuasion
           acts as a tie breaker; the party with the burden of persuasion loses
           if the evidence is equal
     iii. Criminal case – beyond a reasonable doubt
e. Operation of Presumptions
        i. A presumption shifts the burden – it creates a compulsory finding
           in favor of the proponent which remains obligatory until the
           presumed fact is rebutted; ie. a presumption shifts the burden of
           production on the issue
       ii. Two ways to rebut:
                1. nonoccurrence of the basic fact (here – P didn’t mail the
                2. nonoccurrence of the presumed fact (here – D didn’t
                    receive the letter)
     iii. If there is adequate rebuttal, the burden shifts back
      iv. Presumptions come from statutes, case law, regulations, etc.
       v. What effect does a presumption have on the burden of persuasion?
           Two theories:
                1. The burden of persuasion also ought to shift (Morgan
                2. Bursting bubble theory - the burden of persuasion stays on
                    the party that started with it (Thayer Theory)
      vi. Rule 301. Presumptions in General in Civil Actions and
           Proceedings – in all civil actions and proceedings not otherwise
           provided for by Act of Congress or by these rules, a presumption
           imposes on the party against whom it is directed the burden of
           going forward with evidence to rebut or meet the presumption, but
           does not shift to such party the burden of proof in the sense of the
           risk of nonpersuasion, which remains throughout the trial upon the
           party on whom it was originally cast - burden of persuasion never
           shifts (Bursting Bubble Theory)
     vii. Rule 302 – in a state diversity action where there is a state law
           presumption, follow the state law presumption regardless of rule
    viii. Examples:
                1. Predicate fact: letter regularly addressed and mailed/
                    Presumed fact: letter received by addressee

                      2. Predicate fact: vehicle lawfully stopped is struck from rear/
                          Presumed fact: drive of 2nd car is negligent
                      3. Predicate fact: absence for 7 years w/o communications to
                          family and friends/ Presumed fact: absentee dead
                      4. Predicate fact: Will can't be found/ Presumed fact: will
                          revoked by testator
      f. Irrebuttable Presumptions – rules of law; Example: some states have an
         irrebutable presumption that a child born to a married woman is the child
         of her husband – not really a presumption; it is a rule of law
      g. How to know if something is a presumption - Look at treatise or digest on
         the area of law
XV.   Privileges
      a. Introduction
               i. Methods:
                      1. Identify protected relationships
                      2. If such a relationship exists, then the communications
                          within that relationship are privileged – that means that
                          neither party can be compelled to reveal the confidential
              ii. Privilege is one of the few rules of evidence that can be invoked
                  during discovery
             iii. If you do not invoke a privilege at the first proceeding, it is waived
                  forever - example: if you reveal a confidential communication in
                  discovery, you cannot later invoke the privilege and refuse to
             iv. Where do privileges come from?
                      1. law and statute
                      2. at the federal level, they are a matter of common law
                      3. Only one Federal Rule on Privilege – Rule 501 which says
                          that on the Federal Level, privileges are a matter of
                          common law; in diversity actions, state laws of privilege
      b. In General
               i. What does it mean for a communication to be confidential?
                      1. Some courts use a standard of actual confidentially, “was it
                          overheard or not?” and if it was overheard, it is not
                          confidential. Hoy v. Morris
                      2. Proposed Federal rule uses a subjective standard – did the
                          client intend for the communication to be confidential?
                      3. In application, courts often apply an objective test – would
                          a reasonable person expect the communication to be
                      4. Should make reasonable efforts to keep the conversation
                      5. Hypo: Client tells attorney, “I did it.” Later Client tells
                          friend, “ I did it.”

                      a. Communication between client and friend is not
                      b. The confidential communication between the client
                          and the attorney still exists
                      c. BUT: if the client goes to the friend and says, “I
                          told my attorney I did it,” by revealing the
                          communication to a third person, it is no longer
                      d. Similarly, if a third party is present during the
                          attorney/client conversation, it is not confidential
c. Attorney – Client Privilege
       i. Individual
              1. The privilege belongs to the client because only the client
                 can waive it, but the attorney is obligated to invoke it on
                 behalf of the client
              2. The communication is privileged whether it took place in
                 the courtroom or not
              3. It is only the communications that are privileged, not the
                 subject of the communications – if you can obtain evidence
                 on the subject by some other manner, it is admissible
              4. Exceptions to attorney/client privilege
                      a. The crime/fraud exception
                      b. Where there has been an alleged breach of duty on
                          the part of the lawyer or the client
                               i. Lawyer can testify to the confidential
                                  communications because in order to defend
                                  himself he must do so
                              ii. By suing for malpractice, the client brings
                                  herself within the exception
                             iii. client’s duty is to pay the attorney, so by not
                                  paying a client brings themselves within this
                      c. In litigation over a claim of Ineffective assistance of
              5. The identity of the client:
                      a. Generally, not privileged
                      b. Rationale: not necessary to foster open
                          communication between lawyer and client
                      c. Exceptions: when disclosure of the client’s name
                          would reveal the client’s purpose in consulting with
                          the attorney
      ii. Corporations - Who is the client when the counsel is working for a
              1. Privilege covers both the giving of legal advice and the
                 investigation on which that legal advice depends; does not
                 cover just the control group

             2. As long as the communications are part of a corporate
                 matter concerning matters within the scope of the
                 employment of the employee and he or she knew they were
                 making a confidential communication and is otherwise kept
                 confidential, all employees are covered by attorney/client
                 privilege Upjohn Co. v. United States
d. Spousal Privilege
      i. Confidential Communications
             1. If conversations are between spouses are confidential, then
                 they are privileged
             2. Anything they say in the presence of a third person is not
             3. Applies to both civil and criminal cases
             4. Both spouses are the holder of the privilege
             5. Privilege survives divorce
      i. Adverse Spousal Testimony
             1. Can’t be compelled to testify against your spouse
             2. Applies to everything, not just communications
             3. Proposed Rule 505 says the privilege is held by both
                 witness spouse and defendant spouse
             4. Current Rule: Only the witness spouse holds the privilege
                 (Trammel) - Witness spouse does not have to testify against
                 defendant spouse, but if witness spouse wants to testify, the
                 defendant spouse cannot stop them
             5. Must be presently married for the privilege to attach
             6. Under both Trammel and proposed Rule 505 there is an
                 exception if the wife or the children are the victims of the
             7. In many jurisdictions, statements exonerating the defendant
                 spouse are exempt from spousal privilege
g. Others: About 3 states have parent/child privileges – only confidential
   communications privileges, not adverse testimony privileges


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