Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

EVIDENCE

VIEWS: 28 PAGES: 29

									                                    SPRING 2002 EVIDENCE - BAKER

I.        TRIAL STRUCTURE AND STRATEGY .........................................................................................4
     A.     OVER-RULED V. SUSTAINED ................................................................................................................4
     B.     REAL V. DEMONSTRATIVE EVIDENCE .................................................................................................4
     C.     DIRECT V. CIRCUMSTANTIAL EVIDENCE .............................................................................................4
     D.     TRIAL CONTENTS ................................................................................................................................4
          1. Pre Trial Hearings  ....................................................................................................................4
          2. Trial Contents ............................................................................................................................4
II.            RELEVANCE AND PREJUDICE .................................................................................................5
     A.  RELEVANCY – THE BASIC CONCEPT ...................................................................................................5
           Direct vs. Circumstantial Evidence: ..............................................................................................5
          1.
           FRE 401. Definition of Relevant Evidence. ..................................................................................5
          2.
           FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. ..............5
          3.
           2 Aspects of Relevance: ..................................................................................................................5
          4.
     B. PROBATIVE VALUE .............................................................................................................................6
       1. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of
       Time. .......................................................................................................................................................6
       2. Probative Value: 1st STEP .............................................................................................................6
       3. Estimating the 403 Dangers: 2nd STEP.........................................................................................6
       4. Probative Value Substantially Outweighed by One of the 403 Dangers: 3rd STEP. ....................7
     C. THE PROBLEM OF CONDITIONAL RELEVANCY ....................................................................................7
       1. FRE 104(b). ....................................................................................................................................7
III.           FOUNDATION AND AUTHENTICATION ................................................................................7
     A.  LAYING THE FOUNDATION FOR WITNESS ............................................................................................7
       1. FRE 601. General Rule of Competency. Is about People and their Competence ........................7
       2. FRE 602. Lack of Personal Knowledge. Is about People and their Qualifications ....................8
     B. THE AUTHENTICATION AND IDENTIFICATION OF EXHIBITS .................................................................8
       1. FRE 901. Requirement of Authentication or Identification. .........................................................8
       2. Real and Demonstrative Evidence .................................................................................................8
       3. FRE 902. Self-Authentication. ......................................................................................................8
     C. JUDICIAL DETERMINATION OF PRELIMINARY QUESTIONS UNDER FRE 104 ........................................9
       1. FRE 104. Preliminary Questions. .................................................................................................9
     D. BEST EVIDENCE RULE .........................................................................................................................9
       1. 3 Parts to BER..............................................................................................................................10
     E. STANDARDS OF PROOF CHART ............................................................................................................9
IV.            RELEVANCE: THE RULES ......................................................................................................10
     A.  EVIDENCE OF A PERSON’S CHARACTER TO SHOW ACTION IN CONFORMITY WITH THAT CHARACTER
         10
       1. FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. .10
     B. EVIDENCE OF A PERSON’S CHARACTER WHEN CHARACTER IS AN EE OF A CLAIM OR DEFENSE .......11
       1. FRE 405. Methods of Proving Character. ..................................................................................11
       2. 3 Different Types of Character Evidence Which May or May Not Be Able to Be Used:.............11
       3. Doctrine of Chances (Absence of Mistake):.................................................................................11
     C. EVIDENCE OF SPECIFIC (BAD) ACTS NOT OFFERED TO PROVE A PERSON’S CHARACTER .................12
       1. FRE 404(b) Other crimes, wrongs or acts. ..................................................................................12
                                                                                                                                                                   1
       2. Permissible Purposes – McCormick’s Handbook........................................................................12
       3. Admissibility of Specific Acts for Non-Character Purposes Requires the Proponent to do 3
       Things: .................................................................................................................................................12
     D. EVIDENCE OF SEXUAL ASSAULT AND CHILD MOLESTATION ............................................................12
       1. FRE 413. Evidence of Similar Crimes in Sexual Assault Cases. ................................................13
       2. FRE 414. Evidence of Similar Crimes in Child Molestation Cases............................................13
       3. FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
       Molestation...........................................................................................................................................13
     E. EVIDENCE OF AN ALLEGED VICTIM’S PAST SEXUAL BEHAVIOR OR DISPOSITION IN SEX OFFENSE
     CASES .......................................................................................................................................................13
       1. FRE 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged
       Sexual Disposition................................................................................................................................13
     F. HABIT AND ROUTINE PRACTICE ........................................................................................................14
       1. FRE 406. Habit; Routine Practice. .............................................................................................14
     G. SIMILAR HAPPENINGS .......................................................................................................................14
     H. INADMISSIBLE TO PROVE “NEGLIGENCE, CULPABLE CONDUCT OR LIABILITY” ................................14
       1. FRE 407. Subsequent Remedial Measures..................................................................................14
       2. FRE 408. Compromise and Offers of Compromise. ...................................................................14
       3. FRE 409. Payment of Medical and Similar Expenses.................................................................15
       4. FRE 410. Pleas and Plea Discussions. .......................................................................................15
       5. FRE 411. Liability Insurance. .....................................................................................................15
V.        HEARSAY ..........................................................................................................................................15
     A.  BASIC PRINCIPLES .............................................................................................................................15
       1. Defined: ........................................................................................................................................15
       2. Four-Step Hearsay Matrix: ..........................................................................................................15
       3. Hearsay Dangers .........................................................................................................................16
       4. Safeguards of Witnesses ...............................................................................................................16
       5. Types of Statements ......................................................................................................................16
       6. State of Mind ................................................................................................................................17
       7. Multiple Hearsay..........................................................................................................................17
     B. NON-HEARSAY PURPOSES ................................................................................................................17
       1. To show knowledge or belief on the part of the speaker ..............................................................17
       2. Effect on listener ..........................................................................................................................17
       3. Legally operative facts. ................................................................................................................17
       4. Impeachment ................................................................................................................................17
     C. EXEMPTIONS .....................................................................................................................................18
       1. FRE 801. Definitions...................................................................................................................18
       2. FRE 802. Hearsay Rules. ............................................................................................................18
       3. Witnesses’ Prior Statements – FRE 801(d)(1). NOT HEARSAY ................................................18
       4. Admissions by Party-Opponent – FRE 801(d)(2). NOT HEARSAY ...........................................19
     D. EXCEPTIONS ......................................................................................................................................21
       1. Rule 803 Exceptions: Availability of Declarant Immaterial. Is HEARSAY, but ADMISSIBLE.21
       2. Rule 804 Exceptions: Declarant Unavailable.............................................................................23
     E. RESIDUAL HEARSAY AND THE CONFRONTATION CLAUSE .................................................................24
       1. Rule 807: Residual Exception .....................................................................................................24
       2. Confrontation Clause ...................................................................................................................25
VI.          CROSS-EXAMINATION, IMPEACHMENT AND REHABILITATION..............................25
     A.     CROSS-EXAMINATION .......................................................................................................................25
          1. FRE 611. Mode and Order of Interrogation and Presentation. ..................................................25
                                                                                                                                                                  2
  B.  IMPEACHMENT ..................................................................................................................................25
    1. Rule 607. Who May Impeach. .....................................................................................................25
    2. Impeachment Methods .................................................................................................................26
  C. REHABILITATION...............................................................................................................................26
    1. Explanation on Redirect ...............................................................................................................26
    2. Good Reputation for Truth ...........................................................................................................26
    3. Prior Consistent Statements .........................................................................................................26
VII.        LAY OPINION, SCIENTIFIC EVIDENCE AND EXPERTISE ..............................................27
  A.  LAY OPINION ....................................................................................................................................27
        FRE 701. Opinions Testimony by Law Witnesses. ......................................................................27
       1.
        When Admissible ..........................................................................................................................27
       2.
        Situations Where Opinions of Lay Witnesses Are Admissible .....................................................27
       3.
        Situations Where Opinions of Lay Witnesses Are NOT Admissible.............................................27
       4.
  B. SCIENTIFIC OR SPECIALIZED EVIDENCE.............................................................................................27
    1. FRE 702. Testimony by Experts. .................................................................................................27
    2. Daubert Test .................................................................................................................................27
    3. “Fit” Test .....................................................................................................................................28
  C. EXPERT WITNESSES ..........................................................................................................................28
    1. FRE 705. Disclosure of Facts or Data Underlying Expert Opinion...........................................28
    2. FRE 703. Bases of Opinion Testimony by Experts. ....................................................................28
    3. FRE 706. Court Appointed Experts. ...........................................................................................28
  D. OPINIONS ON AN ULTIMATE ISSUE ....................................................................................................28
    1. FRE 704. Opinion on Ultimate Issue. .........................................................................................28
VIII.         PRIVILEGE ...............................................................................................................................28
  A.  GENERAL STRUCTURE OF PRIVILEGES ..............................................................................................28
  B.  ATTORNEY-CLIENT PRIVILEGE .........................................................................................................29
    1. Work Product vs. Attorney-Client ................................................................................................29
    2. Exceptions to the Privilege...........................................................................................................29
  C. MARITAL PRIVILEGE .........................................................................................................................29
    1. 2 Kinds: ........................................................................................................................................29
  D. OTHER PRIVILEGE .............................................................................................................................29
    1. Psychotherapist – Patient ............................................................................................................29
    2. Doctor – Patient ...........................................................................................................................29




                                                                                                                                                        3
I.   Trial Structure and Strategy
     A. Over-ruled v. Sustained
           OVER RULED  if an objection is over-ruled, the trial judge disagrees with the objecting party.
           SUSTAINED  if an objection is sustained, the trail judge agrees with the objecting party.
     B. Real v. Demonstrative Evidence
           REAL EVIDENCE  evidence historically connected to the facts of the case; foundational
           requirements much more strict for real evidence than for demonstrative evidence.
           DEMONSTRATIVE EVIDENCE  evidence which demonstrates a point; helps a jury better
           understand the issues, but not a piece of evidence which historically came from facts of a case.
     C. Direct v. Circumstantial Evidence
           DIRECT EVIDENCE  Evidence if believed establishes an essential element (or fact of
           consequence); does not require an inference to be drawn from it to be relevant; it proves a fact
           without requiring any inferences.

           CIRCUMSTANTIAL EVIDENCE  Requires jury inferences additional to what facts have
           been presented; used indirectly; proof of one fact from which is a reasonable inference(s) of
           another fact may be drawn; does not make a case weaker.
     D. Trial Contents
           1. Pre Trial Hearings 
                 MOTIONS IN LIMINE (at the threshold): pretrial rulings on most evidentiary questions
                 (b/w judge and attorneys), other side can still object during trial.
           2. Trial Contents 
                  OPENING INSTRUCTIONS: by Judge. Arguments from attorneys are not evidence;
                  don’t pay attention to off-the-record evidence; don’t speculate about objected to questions;
                  don’t infer anything from leading questions.

                   OPENING ARGUMENTS: Attorneys state the facts he/she expects to produce at trial,
                   present facts in framework of story/theme, personalize client.

                   PRESENTING THE CASE: Attorneys present witnesses & exhibits.
                        Percipient Witness: witness who was present at the incident.
                        Direct Examination: one side first examines their own witnesses/exhibits, often
                        “who, what, where , when, how, why” questions.
                                 Leading Questions NOT allowed.
                        Cross Examination: other attorney questions the first side’s witness.
                                 Leading Questions ARE allowed.
                        Rebuttal or Redirect Examination: after cross first side can question again, limited
                        to issues raised by cross-examination.
                                 Recross Examination: Opposing attorney, limited to issues of Rebuttal.
                        Rebuttal Evidence: prosecution can present evidence after defense evidence.
                        Limited to evidence made necessary by defense case otherwise Object. Outside
                        the Scope – not evidence included in the case-in-chief.
                        Stipulate: parties agree (stipulate) that certain facts shall be taken as true for
                        purposes of deciding their case (relieves party of burden of proof for this fact).
                        Objections:
                                 Specific Objection: States the rule/reason for the objection, explains trial
                                 record for Appellate Court.


                                                                                                              4
                                     General Objection: If overruled at trial, Appellate Court will allow
                                     evidence in if ANY rule to allow it in. If sustained at trial, Appellate
                                     Court will exclude evidence for ANY rule(reason) due to efficiency.
                            Motion to Dismiss: Can be entered after first side has presented their case, must be
                            insufficient evidence.
                            Motion to Amend: add a charge, allowed at the beginning or “Timely Fashion.”
                            For the Record: attorney can describe spelling, numbers, gestures etc. that might
                            appear incorrectly or not at all in the trial manuscript.

                    CLOSING ARGUMENTS: Argument regarding inferences to be drawn from evidence,
                    reiterate their side of the story, often contain summations of evidence.

                    CLOSING INSTRUCTIONS: by Judge – more specific instructions as to what evidence
                    should be applied to what law, cites and explains the law in full.

II.   Relevance and Prejudice
      A. Relevancy – The Basic Concept
           **ALWAYS apply FRE 403 Prejudicial Value after all other Federal Rules of Evidence.
           When evidence is relevant, the evidence is also said to have “probative value” on the issue to
            which it is addressed.
            1. Direct vs. Circumstantial Evidence:
                  DIRECT EVIDENCE  Evidence if believed establishes an essential element (or fact of
                  consequence); does not require an inference to be drawn from it to be relevant; it proves a
                  fact without requiring any inferences. *Always has a probative value.
                        Resolves the matter in issue if believed.

                    CIRCUMSTANTIAL EVIDENCE  Requires jury inferences additional to what facts
                    have been presented; used indirectly; proof of one fact from which is a reasonable
                    inference(s) of another fact may be drawn; does not make a case weaker.
                         Does not resolve the matter at issue unless additional reasoning is used to reach the
                            proposition to which the evidence is directed.

            2. FRE 401. Definition of Relevant Evidence.
            Evidence is relevant if it has “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
            evidence.”
                  The evidentiary fact (EF) must make a fact of consequence (FOC) more or less probable.
                     The judge decides this issue under the “any tendency” standard by examining the necessary
                     inferences and the reasonableness of the generalizations underlying them.

            3. FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence
            Inadmissible.
            Says “all relevant evidence comes in.” Evidence which is not relevant is not admissible.

            4. 2 Aspects of Relevance:
                    a) Probative Relationship
                            There must be a probative relationship between the piece of evidence and the
                            factual proposition to which the evidence is addressed. The evidence must make
                            the factual proposition more or less likely than it would be without the evidence.


                                                                                                                 5
             b) Materiality
                     The evidence must be material. There must be a link between the factual
                     proposition which the evidence tends to establish, and the substantive law.

B. Probative Value
     1. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion
     or Waste of Time.
           The judge can exclude relevant evidence “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
           evidence.”

             ** Asks us to weight the strength of:
                    the underlying inferences, certainty of the starting point and length of reasoning
                    VS.
                    unfair prejudice, confusion, misleading the jury, delay/waste of time.
     2. Probative Value: 1st STEP
           The judge must determine what proposition the evidence is being offered to establish. He
           must follow the “chain of inference” b/w the evidence and the proposition.
             a) Strength of the Underlying Inferences
                    Primary measure of probative value.
                    Connects the EF to the FOC and then to an EE in the case.
                    Strength depends on the rough probabilities of the generalizations underlying those
                     inferences.
             b) Certainty of the Starting Point
                    If witnesses themselves are uncertain about what facts they actually perceived.
                    If an expert voices a speculative opinion.
                    If a document contains ambiguous language.
                    A judge may discount the evidence for purposes of FRE 403.
             c) Length of the Chain of Reasoning
                    The length of the chain is not as important as the strength of the reasoning.
                    The longer the chain the more opportunity for the inferences not to be as strong.
     3. Estimating the 403 Dangers: 2nd STEP.
           For a 403 objection the judge has to estimate the danger the item of evidence poses to the
           jury’s rationale decision making process and to the judicial system’s interest in efficient
           decision-making.
             a) Classes of Countervailing Considerations:
                        Unfair Prejudice  2 main ways to think about prejudice (1) bad guy; (2)
                         Evokes an emotive response. It is unfair prejudice if used improperly
                         (unfairly) to decide a case.
                             “Unfair” means – any tendency to suggest decision on an improper basis,
                             commonly, though not necessarily, an emotional one.
                             Past convictions – unfairly prejudicial b/c it may lead a juror to think since
                             the D already has a criminal record, an erroneous conviction would not be
                             quite as serous as would otherwise be the case.

                              Bad Guy – predisposing the jruy to think someone is “bad in a way
                              irrelevant/unrelated to the case (if only D is bad in present case is it ok).
                                      Good Guy – allowed generally except in rape cases.
                                                                                                              6
                                      Emotive Response – jury reacts emotionally to evidence, jury gives too
                                      much weight b/c of emotions. (ie: graphic photos of the dead)

                                Confusion  That the evidence is unnecessarily complex and the jury is going
                                 to spend too much time trying to figure it out. Evidence confuses the issue
                                 when it focuses the jury’s attention too closely on a factual issue that is not
                                 central to the outcome of the case.
                                     Past convictions – may distract the jury from the fact that there is only
                                     weak evidence that the accused did the act charged with.

                                Misleading the Jury  Involves the risk that the jury will have a particular
                                 problem in estimating the persuasive force of an item of evidence. Pictures
                                 can be misleading as well as statistics.

                                Waste of Time  if the piece of evidence is repetitive w/something that has
                                 already been offered.
                                     Cumulative evidence – likely to be said to be a waste of time.
             4. Probative Value Substantially Outweighed by One of the 403 Dangers: 3rd STEP.
                The judge balances the FRE 401 probative value against the possible FRE 403 prejudicial
                value.

                    The trial judge has to weigh the probative value of the offered item of evidence against he
                     danger that the item poses under FRE 403.
                    There is not a scale that is used – the judge predicts the overall effect an item of evidence
                     would have on the jury.
                        o If the judge thinks the evidence is all the jury is going to focus on the evidence
                             should be left out.
                        o If the judge is confused to the extent which the prejudicial evidence will confuse it
                             will be let in. It has to SUBSTANTIALLY outweigh to be left out.

       C. The Problem of Conditional Relevancy
             Attorneys must provide a conditional fact (CF) that sufficiently establishes a link from the item
             offered as evidence to the probative value or essential element (EE).
             1. FRE 104(b).
                Standard  “Sufficient to Support a Finding.” Could a reasonable juror believe the
                Conditional Fact (CF) to be more probable true than not true.
                 Sufficient to Support a Finding  means evidence upon which the judge thinks a jury
                    could reasonably find a fact to be more likely true than not.
                 104(b) higher standard than FRE 401 “any tendency” standard.
                 If the proponent fails to prove the CF, then the EF should be excluded.
                 CR and EF must be proven by evidence.

III.   Foundation and Authentication
       A. Laying the Foundation for Witness
             1. FRE 601. General Rule of Competency. Is about People and their Competence
             “Every person is competent to be a witness except as otherwise provided in these rules.”

                FRE 601 makes it clear, apart from the judge and jury, people who witnessed relevant events
                 cannot be prevented from testifying solely b/c of their status or their interest in the case.
                Can use FRE 403 to get the evidence out.


                                                                                                                 7
      2. FRE 602. Lack of Personal Knowledge. Is about People and their Qualifications
      “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding
      that the witness has personal knowledge.”

         Someone can only testify if they are qualified to talk about what they are going to talk about.
         The witness must have personal knowledge of the matters about which they testify.
              o The witness must have first hand knowledge – saw, heard or otherwise perceived the
                 matters.
         Standard  same as FRE 104(b).

B. The Authentication and Identification of Exhibits
      1. FRE 901. Requirement of Authentication or Identification.
      General Provision –“ the requirement of authentication or identification as a condition precedent
      to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is
      what the proponent claims it to be.”

             Is a separate inquiry from probative value FRE 401 – still need to satisfy relevance and
              FRE 403 balancing.
             Standard  Same as FRE 104(b), FRE 602… “reasonable juror could believe.”
             901(b) Illustrations – a long list of things that would be good enough to admit.
      2. Real and Demonstrative Evidence
              a) Real Evidence
                      Tangible items that played some role in the litigation event and from which the
                       jury may draw inferences.
                      Readily identifiable characteristics or through a chain of custody.
                      Standard  sufficient to support a finding 104(b).
                      Subject to exclusion under FRE 403.
              b) Demonstrative Evidence
                      An exhibit that reproduces the likeness of some tangible item or scene that played
                       some role in the events that are in dispute at trial.
                      Map, Chart, Drawing – makes it easier for the jury to understand.
                      Subject to exclusion under FRE 403.
              c) Written Documents & Recordings
                      Written Documents – usually identified pursuant to FRE 901 by testimony that
                       identifies the author or the source of the document. FRE 902 provides some
                       written documents can be authenticated by their appearance alone w/o the
                       testimony of a foundational witness.
                      Recordings of Events – may be authenticated pursuant to FRE 901 if a percipient
                       witness can testify that the recording is a fair and accurate record of the real world
                       event. FRE 901 may require proof of the recording process and chain of custody
                       of the recording itself if it is functioning like a “silent” witness.
      3. FRE 902. Self-Authentication.
      FRE 902 provides that some written documents can be authenticated by their appearance alone,
      w/o the testimony of a foundation witness.
           Ex: certification copies of public records, official publications, newspapers/periodicals,
              trade inscriptions, documents w/certifications of acknowledgements, commercial paper,
              business records.




                                                                                                             8
     C. Judicial Determination of Preliminary Questions under FRE 104
             1. FRE 104. Preliminary Questions.
                     a) FRE 104(a) Questions of Admissibility Generally.
                            Most preliminary questions of fact are for the judge to decide pursuant to 104(a).
                            Standard  Preponderance of the evidence – by the party asserting the truth of
                             the preliminary fact.
                                 o Preponderance of the evidence means evidence that actually persuades the
                                      judge that the preliminary fact is more probable than not.
                            May not consider privileged evidence.
                     b) FRE 104(b) Relevancy Conditioned on Fact.
                            Standard  Sufficient to support a finding – could a reasonable juror believe.
                             (FRE 602 & 901 are governed by the same standard).
                                  o Sufficiency Standard means evidence from which a jury could reasonably
                                      find the preliminary fact to be more probable than not.
                            If relevance of offered evidence depends on question of fact, judge screens
                             questions under 104(b) and allows jury to decide.

     D. Standards of Proof Chart

                           104(a)                               104(b)                            401
Standard      Preponderance of the Evidence:     Sufficient to Support a Finding:       Any Tendency: EF
              “Could I believe the EF beyond     “Could a reasonable juror believe      makes FOC more or less
              a reasonable doubt.”               EF.”                                   probable
Applied To     Hearsay (except prior acts)       Conditional Relevance                 Non-Preliminary
               Best Evidence Rule                602 – Personal Competence                Facts
               Prior Acts (some states)          901 – Authentification of
               Everything Else                      Things
                                                  Privilege
                                                  Prior Acts (Federal)
Used For      Questions that don’t go to         Questions that go to relevance
              relevance
Outcome       Judge has final say                Jude makes initial determination,      Jury decides
                                                 Jury has final say

     E. Best Evidence Rule (“Original Document Rule”)
     RULE  “In proving the terms of a writing, where the terms are material, the original writing must be
     produced unless it is shown to be unavailable for some reason other than the serious fault of the
     proponent.”
     If what you care about is what the document or the object itself says or does than you need that document
     or object itself. K is the best example of the kind of thing when you are going to need the paper. This is
     more true for contract cases than torts.

            Applies ONLY to writings (recorded communications) NOT to evidence generally.
            To prove a Writing, Recording or Photograph it must be the original FRE 1001-1008.
            Standard  Preponderance of the evidence for FRE 1002-1008 (not 401). Judge will decide “Do
             I believe this evidence is original.”
            Duplicates are admissible FRE 1003. The harder the original is to copy the less likely a duplicate
             will be allowed.
            The Original has to be produced if possible, oral testimony cannot be given about the original if it
             can be produced.


                                                                                                                  9
            1. 3 Parts to BER
                ORIGINAL DOCUMENT  The original document must be produced, rather than using
                  a copy or oral testimony about the document.
                PROVE TERMS OF WRITING  The rule applies only where what is to be proved is the
                  terms of the writing (or w/the modern approach, an equivalent recorded communication
                  such as an audio tape of the conversation); and
                EXCUSE  The rule does not apply if the original is unavailable b/c it has been
                  destroyed, is in the possession of a 3rd party, or cannot be conveniently obtained, and the
                  unavailability is not due to the serious fault of the proponent.
            2. Rules
                FRE 1002 – oral testimony
                FRE 1005 – public records
                FRE 1006 – summaries


IV.   Relevance: The Rules
      A. Evidence of a Person’s Character to Show Action in Conformity with that
      Character
            1. FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions;
            Other Crimes.
            FRE 404(a) Character generally. Evidence of a person’s character or trait of character is not
            admissible for purpose of proving action in conformity therewith on a particular occasion except:
            (1) Character of the Accused. Evidence of a pertinent trait of character offered by an accused, or
            by the prosecution to rebut the same, or 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;
            (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 aggressor;
            (3) Character of Witness. Evidence of the character of a witness, as provided in rules 607, 608,
            and 609.
                    a) General Principles:
                    PROPENSITY USES  arguing that, because someone acted or thought a certain way in
                    the past, they have a character that makes it likely that they acted or thought that way
                    again. Generally cannot use character to show this.
                         Exceptions to show propensity – 404(a)(1) and 404(a)(2).
                         If character evidence is offered to prove that a person acted in a certain way, the
                             person’s character may be shown only by reputation or opinion evidence, not by
                             evidence of specific acts.

                    NON-PROPENSITY USES  offering character evidence or similar evidence for any
                    other reason; direct use of character evidence when character is an element of a charge,
                    claim, or defense.
                    b) How to Get Character Evidence In:
                           Criminal Δ may open the door to Δ’s own character, then prosecution may rebut
                            with evidence of Δ’s character.
                           Criminal Δ may open the door to character of the victim, then prosecution may
                            rebut with evidence of victim’s character.
                           Homicide case: prosecution may open the door to victim’s character for
                            peacefulness to rebut claim of victim as first aggressor.
                                                                                                               10
                     Any party may introduce character evidence of witness for impeachment purposes,
                      (goes to truthfulness of witness’s testimony) and rehabilitation FRE 607-609.

B. Evidence of a Person’s Character when Character is an EE of a Claim or
Defense

      1. FRE 405. Methods of Proving Character.
      When character is an EE of a claim or a defense, FRE 405(b) permits proof of character with
      specific acts of evidence. In addition, it is always permissible to prove character w/reputation or
      opinion evidence pursuant to FRE 405(a).
           FRE 405(b) – When character is in issue  any of the types of evidence may be used
               (reputation, opinion or specific acts).

      2. 3 Different Types of Character Evidence Which May or May Not Be Able to Be
      Used:
         REPUTATION  If EE (charge or defense) or if accused offers.
             Witness will testify to Δ’s or Victim’s (or another Witness’s) reputation in the
                 community.
             “I have personal knowledge that X has a reputation for Y.”
             Requires Foundation – i.e. how/where have you heard of reputation.

          OPINION 
              “This is what I felt.”
              Witness opinion of Δ, victim or other witness.
              Requires Foundation – i.e. how long have you known this person.
              If character witness offers opinion testimony, specific acts may NOT be explored on
               direct examination (but could be on rebuttal or redirect)

          SPECIFIC ACTS 
              **Cannot come in to show propensity, but can come in to prove motive, opportunity,
                intent, etc.
              To rebut legitimate character evidence (by defense or prosecution).
              To prove actions in conformity if character is EE.
              Other purposes exceptions in 404(b):
                    o Proponent must convince judge of legitimate non-character purpose of
                         evidence.
                    o Judge decides 404(b) questions – pretrial, uses 104(b) standard.
                    o Apply 403 balancing after finding that specific acts are probative enough to
                         meet 104(b) standard.
              Double jeopardy does not make prior specific act evidence excludable.

      3. Doctrine of Chances (Absence of Mistake):
          Anti-coincidence is almost the same as absence of mistake.
          What are the chances that this could be a mistake – an innocent action this many times.
          If an event happened many time before, it s likely that the similar event charged did not
            occur by coincidence.
          Allows prior specific acts when pattern cannot be established.
                o I.e. Mother of 4 children who suffocated, maybe no direct link of her to the deaths
                    (no distinctive pattern) just the same class of crimes.
          Requires more than 1 previous specific act.
          Timing – makes a difference in how coincidental or random prior acts might be, longer
            time = more likely random. (i.e. children died 15 years apart).
                                                                                                            11
C. Evidence of Specific (Bad) Acts Not Offered to Prove a Person’s Character
        1. FRE 404(b) Other crimes, wrongs or acts.
        Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in
        order to show action in conformity therewith. It my, however, be admissible for other purposes,
        such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident…

       Insert the word “DISTINCTIVE” before each thing it can be used to show. You need to show that
        the specific act evidence that makes us think that this particular Δ had a motive, intent, knowledge,
        etc – that is different than the general population.
       Standard  104(b) “reasonable juror could believe this ______ actually happened..”

        2. Permissible Purposes – McCormick’s Handbook
            To complete the story of the crime on trial by placing it in the context of nearby and nearly
              contemporaneous happenings.
            To prove the existence of a larger plan, scheme or conspiracy of which the crime on trial is
              a part. This will be relevant as showing motive, and hence the doing of the criminal act,
              the identity of the actor, or his intention.
            To prove other crimes by the accused so nearly identical in method as to earmark them as
              the handiwork of the accused. The pattern of the crime has to be so unusual and distinctive
              as to be like a signature. It cannot be the mere repeated commission of crimes of the same
              class, such as repeated murders, robberies or rapes.
            To show a passion or propensity for unusual and abnormal sexual relations.
            To show, by similar acts or incidents, that the act in question was not performed
              inadvertently, accidentally, involuntarily, or w/o guilty knowledge.
            To establish motive. The evidence of motive may be probative of the identity of the
              criminal or of malice or specific intent.
            To establish opportunity, in the sense of access to or presence at the scene of the crime or
              the sense of possessing distinctive or unusual skills or abilities employed in the
              commission of the crime charged.
            To show, w/o considering motive, that the Δ acted with malice, deliberation or the requisite
              specific intent.
            To prove identity.

        3. Admissibility of Specific Acts for Non-Character Purposes Requires the
        Proponent to do 3 Things:
              (1) Convince the judge that there is a legit non-character purpose for the evidence;
              (2) Satisfy the preliminary fact standard w/respect to the culpable involvement of the
              person who allegedly committed the act (that the person who allegedly committed the act
              did in fact commit the act); and
              (3) Respond to an FRE 403 objections.

D. Evidence of Sexual Assault and Child Molestation
FRE 413-415 remove the FRE 404 impediments to the admissibility of relevant sexual assault evidence.
There is no requirement that the sexual assault resulted in a conviction or even a criminal charge. The
probative value of this evidence is not likely to be outweighed by its prejudicial value.

       Standard  104(b) “Sufficient to support a finding” that the Δ was culpably involved in the act.
       FRE 412-415 written for policy reasons.

                                                                                                           12
          o   FRE 414 – Pedophiles have high repeat rates (proven by psychological studies justify the
              rule), although other sexual offenses may not.
          o   FRE 415 – applies to civil cases (works just like FRE 413.

      1. FRE 413. Evidence of Similar Crimes in Sexual Assault Cases.
          (a) In a criminal case in which the Δ is accused of an offense of sexual assault, evidence of
           the Δ’s commission of another offense of offenses of sexual assault is admissible, and may
           be considered for its bearing on any matter to which it is relevant.
          Standard – 104(b) “Could a reasonable juror believe the evidence to be true.”
          Evidence admitted still requires FRE 403 balancing.
          Evidence let in by FRE 413 – is highly prejudicial: Bad Guy Prejudice, Action in
           Conformity, Prior Specific Acts uncharged or acquitted can still come in, and Prior Acts
           makes bad guy and confusing prejudice more likely.

      2. FRE 414. Evidence of Similar Crimes in Child Molestation Cases.
          (a) In a criminal case in which the Δ is accused of an offense of child molestation, evidence
           of the Δ’s commission of another offense or offenses of child molestation is admissible,
           and may be considered for its bearing on any matter to which it is relevant.
          Defines a child as a person below the age of 14 and removes the “w/o consent” phrase in
           FRE 413.

      3. FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or
      Child Molestation.
          Makes FRE 413 & FRE 414, including notice requirement, applicable to civil cases in
             which a claim is based on a party’s alleged sexual assault or child molestation.
          415 allows you to bring in prior evidence of sexual assault.

E. Evidence of an Alleged Victim’s Past Sexual Behavior or Disposition in Sex
Offense Cases
      1. FRE 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual
      Behavior or Alleged Sexual Disposition.
              a) Character Evidence NOT admissible unless one of the 3 exceptions apply:
                     FRE 412(b)(1)(A) – To show source of semen from someone other than Δ.
                     FRE 412(b)(1)(B) – Evidence of specific instances of sleeping with the person she
                      is now accusing.
                     FRE 412 (b)(1)(C) – B/c the constitution demands it. It would be unfair to the Δ.
                      The 6th Amend may demand that he may be able to bring the evidence.

             Prevents evidence used by Δ to accuse victim of causing the rape. Prevents evidence of
              other sexual behavior – clothing, flirtation, dancing, lewd jokes, etc. Prevents evidence of
              sexual predisposition – sex w/Δ or others.
             Scope – it excludes MOST evidence of alleged victim’s prior sexual behavior and sexual
              predisposition, even when it is relevant under the above-described propensity theory.
             Balancing Test – Inverse 403  “We are going to assume it was excluded unless the
              probative value substantially outweighs the prejudicial value.”
                  o FRE 403 – favors admissibility; FRE 412(b)(2) favors exclusion.




                                                                                                        13
F. Habit and Routine Practice
       1. FRE 406. Habit; Routine Practice.
            Evidence of the habit of a person or of the routine practice of an organization, whether
            corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that
            the conduct of the person or organization on a particular occasion was in conformity with
            the habit or routine practice.

              Habit evidence is more specific and routine than character evidence.
              Habit evidence is so consistent that it isn’t very prejudicial – it is highly & heavily
               probative.
              Examples  (1) 9 driving infractions over 29 years – NOT enough to establish a routine
               (not admissible as habit); (2) bartender saw driver drink 3 drinks every Friday for last 3
               years – more routine, likely habit.

G. Similar Happenings
      No Specific Federal Rule for Similar Happenings – ex: evidence of other people slipping and
       falling on the same allegedly slippery floor where P fell, or evidence that other people did not fall.
      Questions to Ask to Approach Similar Happenings:
            o Why is the evidence arguably relevant?
            o If the evidence is relevant does some specific exclusionary rule like FRE 404 or the
                hearsay rule make the evidence inadmissible?
            o If the evidence is relevant and not inadmissible pursuant to some specific exclusionary
                rule, is the evidence inadmissible b/c its probative value is substantially outweighed by
                FRE 403 factors?
      ** To show institutional policy or practice.
      Prior Acts of THINGS – treated different than people. People = character. Things = not character.
            o FRE 404-406 for human evidence.
            o FRE 401-403 for things

      FRE 403 – Balancing test favors admissibility:
         o ONLY barrier is when evidence is offered to show Notice of a possible defect.
         o Notice issue – probative value of the evidence depends primarily on whether the D was or
             should have known of the other incidents and not on how similar they are to the incident
             that gave rise to the situation.


H. Inadmissible to Prove “Negligence, Culpable Conduct or Liability”
       FRE 407-411 exclude evidence which might be admissible for impeachment purposes. If so, judge
       must apply FRE 403 balancing.

       1. FRE 407. Subsequent Remedial Measures.
            When, after an event, measures are taken which, if taken previously, would have made the
            event less likely to occur, evidence of subsequent measures is not admissible to prove
            negligence or culpable conduct in connection with the event.

              Excludible to show negligence BUT NOT feasibility or control.

       2. FRE 408. Compromise and Offers of Compromise.
            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.
                                                                                                            14
                    Society wants to encourage settlements.
                    Prejudice – jury should not infer guilt from a settlement.

             3. FRE 409. Payment of Medical and Similar Expenses.
                  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.

             4. FRE 410. Pleas and Plea Discussions.
                  Except as otherwise provided in this rule, evidence of the following is not, in any civil or
                  criminal proceeding, admissible against the Δ who made the plea or was a participant in the
                  plea discussion…

                    ONLY applies to pleas w/the Prosecuting Attorney.
                    Ex: Δ read Miranda Rights – Δ offers to cooperate if lighter sentence. FRE 401 does not
                     apply b/c NOT the Prosecuting Attorney. (would apply if not read your rights.)

             5. FRE 411. Liability Insurance.
                  Evidence that a person was or was not insured against liability is not admissible upon the
                  issue whether the person acted negligently or otherwise wrongfully.

                    Excludible to show negligence BUT not bias or something else.
                    Ex: Expert was hired by insurance company. FRE 411/403 balancing – ok for
                     impeachment/bias purposes.


V.   Hearsay
     A. Basic Principles
     The primary purpose of the hearsay rule is to exclude testimony about out-of-court statements unless the
     adverse party has the opportunity for meaningful cross examination.
             1. Defined:
             “Hearsay” is a statement or assertive conduct, other than one made by the declarant while
             testifying at the trail or hearing, offered in evidence to prove the truth of the matter asserted.
             Start each answer off with the traditional definition of hearsay in final – if looking to prove if it is
             hearsay or not.
             THREE COMPONENTS: if ANY of the 3 are missing – then it cannot be hearsay
                  STATEMENT  an (1) oral or written assertion or (2) nonverbal conduct of a person, if it
                      is intended by the person as an assertion.
                  DECLARANT MAKES OUT-OF-COURT  assertion made other than when declarant
                      is testifying; declarant is a person who makes a statement; machines evidence in most
                      instances is not considered to be hearsay, but if machine is dependent on human being
                      regularly, then there is a hearsay problem. Even if a statement was given under oath and in
                      a courtroom proceeding, for purposes of hearsay rule it is an out of court statement if it was
                      not made during the trial in which it is offered.
                  OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED 
                      if the assertion is admitted to prove it’s truthfulness, you have a hearsay problem.
             2. Four-Step Hearsay Matrix:
                 Does evidence constitute an out-of-court statement?
                 If so, what is the statement offered to prove?
                 If the statement is offered for a non-hearsay purpose, is that purpose relevant?

                                                                                                                  15
     If the statement is offered for its truth, are any of the numerous exceptions to the hearsay
      rule available?
3. Hearsay Dangers
A meaningful cross-examination generally consists of the opportunity to test the reliability of
adverse testimony according to the four hearsay dangers. Cross-examination tests a witness’
ability to remember (memory), observe (perception), tell the truth (sincerity), and narration.
        a) Narration
                 Is the person actually using the right words?
                 The words may be ambiguous.
        b) Sincerity
                 Joking, lying.
        c) Perception
                 How well is the person actually able to perceive the issue.
                 Foundational Rules – have to give the jury some reasonable belief that you
                  were actually there and able to see it.
        d) Memory
                 Does the speaker accurately remember the subject of the statement.

4. Safeguards of Witnesses
       Oath  protects against sincerity.
       Observation  jury and judge watch the W so narration problems lessened; belief that
         will be able to determine sincerity, perception and memory.
       Cross-examination  gets at all the dangers, can question W to find out what W
         doesn’t know as well as what W does know.
5. Types of Statements
        a) Direct Verbal Assertions
                 HEARSAY
                 Ex: C says W said “I did it.”
                 B yelling the boat is navigable. Excludible as hearsay.
        b) Nonverbal Conduct Indented as an Assertion
                   HEARSAY
                   Ex: C says W nodded, statement by W “yes” or pointed, statement “it’s him.”
                   There is intent here – not w/(c).
                   B putting his thumb up. Excludible as hearsay.

               The following 3 are typically NOT hearsay. If you can turn the conduct into a n
                intended verbal statement than it is likely hearsay (ex: pointing, nodding, putting
                your thumb up).
               Non-assertive conduct does not have sincerity danger.
               The less intent to make an Assertion, more likely admissible.
        c) Nonassertive Nonverbal Conduct
                 NOT HEARSAY
                 Ex: A saw B running for train, statement by B “I’m late.”
                 B looking around boat, boarding his family and taking off. Probably not
                  excluded as hearsay.
        d) Nonassertive Verbal Conduct
                 Ex: A hears B say “I wish I had a blanket.” Statement by B “I’m cold.”
                                                                                                     16
                          Less likely describing an event relevant to trial, likely sincere but also low
                           probative value so excluded on 403 grounds.
                 e) Verbal Assertion Not Offered for Truth
                          Ex: A hears B say “X is strong” when B is all bloodied, statement by B “X
                           beat me up.”
        6. State of Mind
        Statements by a declarant that serve as circumstantial evidence of the declarant’s state of mind are
        not hearsay. Such statements are not offered to prove the truth of the matters asserted but only tat
        the declarant believed them to be true. The most common examples of this type of non-hearsay are
        evidence of insanity and evidence of knowledge.
        7. Multiple Hearsay
        An out-of-court declaration that refers to another out-of-court statement poses the problem of
        “multiple hearsay.” Each level of hearsay must be checked for admissibility (if ANY level is
        hearsay not w/n an exception, the entire statement is excluded).
             EX: A police or business record quotes an oral statement of fact made by X. Even if the
                “business records” exception applies, the document is hearsay if X’s statement is hearsay.

B. Non-Hearsay Purposes – 801(c)
If the purpose of the statement is not to prove truthfulness, it is admitted b/c it is not hearsay. If you have
to believe the assertion in order for the statement to be relevant, than it is hearsay. If it’s relevant even if
you don’t care about truthfulness of assertion then it’s not being admitted to prove it’s truthfulness and it’s
not hearsay.
          If come to conclusion on exam that statement is not hearsay b/c it is offered for some other
             purposes than for truthfulness, then have to say what it is offered to prove.
          Non-Hearsay is not looking at narration, sincerity, perception or memory.

        1. To show knowledge or belief on the part of the speaker
        An assertion may be admissible as non-hearsay when offered as circumstantial evidence of the
        declarant’s subjective belief. A declarant’s subjective belief can be relevant in two common
        circumstances: when the declarant’s belief is itself a material fact and when the declarant’s belief
        is circumstantial evidence of the declarant’s behavior.
              Motive/intent – always a red flag of non-hearsay use.
              “Kling is bastard” – being offered to prove thought process, circumstantial evidence of
                state of mind.
        2. Effect on listener (801)
        An out-of-court statement offered to prove the relevant state of mind of a listener is non-hearsay.
        Relevance does not depend on truthfulness of what was said, but rather the fact that it affected the
        listener (relying on teacher’s assertion that there would be no final.) Effect on listener is valid non-
        hearsay use only if the effect on the listener is relevant.
        3. Legally operative facts.
        The words are themselves the event to be proved (contracts). No memory or perception problem.
        4. Impeachment
        Evidence of a witness’ out-of-court assertion that is inconsistent w/the same witness’ in-court
        testimony is admissible as non-hearsay. Regardless of whether the out-of-court assertion was
        accurate, the mere fact of inconsistency may cast doubt on a witness’ credibility. The out of court
        statement is admissible only for the limited purpose of impeachment.
        5. Examples:
            2 Theories of Negligence:

                                                                                                              17
                     One is leaving the sponge inside is negligent. The nurse is the declarant b/c it is
                      offered for the truth of the matter asserted it is hearsay.
                     2nd is doctor had duty to check up on things b/c she heard that things might not be
                      going smoothly. The declarant is the nurse and the statement is the same. Not
                      hearsay b/c we don’t really care that there was a sponge inside just that the doctor
                      thought something might be going aflute.

C. Exemptions
     1. FRE 801. Definitions.
     The following definitions apply under this article:
     (a) Statement. A “statement is (1) an oral or written assertion or (2) nonverbal conduct of a person,
     if it is intended by the person as an assertion.

     (b) Declarant. A “declarant: is a person who makes a statement.

     (c)Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the
     trial or hearing, offered in evidence to prove the truth of the matter asserted.

     (d) Statements which are NOT hearsay. A statement is not hearsay if – HEARSAY
     EXCLUSIONS
              (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject
              and is subject to cross-examination concerning the statement and the statement is (A)
              inconsistent w/the declarant’s testimony, and was given under oath subject to the penalty
              of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent w/the
              declarant’s testimony and is offered to rebut an express or implied charge against the
              declarant of recent fabrication or improper influence or motive, or (C) one of identification
              of a person made after perceiving the person; or

             (2) Admission by party-opponent. The statement is offered against a party and is (A) the
             party’s own statement, in either an individual or a representative capacity, or (B) a
             statement of which the party has manifested an adoption or belief in its truth, or (C) a
             statement by a person authorized by the party to make a statement concerning the subject,
             or (D) a statement by the party’s agent or servant concerning a matter w/n the scope of the
             agency or employment, made during the existence of the relationship, or (E) a statement by
             a coconspirator of a party during the course and in furtherance of the conspiracy. The
             contents of the statement shall be considered but are not alone sufficient to establish the
             declarant’s authority under subdivision (C), the agency or employment relationship and
             scope thereof under subdivision (D), or the existence of the conspiracy and the
             participation therein of the declarant and the party against whom the statement is offered
             under subdivision (E).

     2. FRE 802. Hearsay Rules.
     Hearsay is not admissible except as provided by these rules or by other rules prescribed by the SC
     pursuant to statutory authority or by Act of Congress.

     3. Witnesses’ Prior Statements – FRE 801(d)(1). NOT HEARSAY
     Certain statements by a person who testifies at the trial or hearing, and is subject to cross-
     examination about the statements, are not hearsay:

     FOUNDATIONAL REQUIREMENTS THAT APPLY TO ALL:
        Statement was made by a declarant who is now testifying in court as a witness;
        The declarant is subject to cross examination

                                                                                                           18
        a) Prior Inconsistent Statement
        FRE 801(d)(1)(A)  A witness’s prior inconsistent statement is not hearsay if it was made
        under oath at a prior proceeding or deposition.
                Ex: A statement made by the witness during grand jury testimony, if
                   inconsistent w/her in court testimony, would be admissible not only to
                   impeach her credibility but also as substantive proof.
                FOUNDATIONAL REQUIREMENTS:
                         Contents of statement are inconsistent w/testimony given at trial;
                         Statement made under oath;
                         Made at trial, hearing or deposition.

        b) Prior Consistent Statement
        FRE 801(d)(1)(B)  a prior consistent statement, regardless of whether made under oath,
        is not hearsay if it is offered to rebut an express or implied charge of recent fabrication or
        improper influence or motive.
                  A consistent statement offered for this purpose is admissible ONLY when
                     made before the alleged fabrication, influence or motive came into being; i.e.
                     prior consistent statements made after the motive to lie arose are not
                     admissible.
                  FOUNDATIONAL REQUIREMENTS:
                           Prior statement is consistent w/earlier testimony;
                           Offered to rebut express/implied charge of fabrication/improper
                               influence/motive.
                           Prior statement DOES NOT have to made under oath.

        c) Prior Statement of Identification
        FRE 801(d)(1)(C)  a witness’s prior statement identifying a person after perceiving him
        is not hearsay. Photo identifications are in the scope of this rule.
                  The prior identification need not have been made at a formal proceeding or
                     under oath, and its admissibility is not limited to rehabilitation of the witness.
                  FOUNDATIONAL REQUIREMENTS:
                          Statement identifies a person;
                          Statement made shortly after perceiving person identified.

4. Admissions by Party-Opponent – FRE 801(d)(2). NOT HEARSAY
An admission is a statement made or act done that amounts to a prior acknowledgment by one of
the parties to an action of one of the relevant facts. If the party said or did something that now
turns out to be inconsistent w/his contentions at trial, the law simply regards him as estopped from
preventing its admission into evidence. Any statement by a party that is offered against that
party/declarant.

To be an admission the statement need not have been against interest at the time it was made. The
statement may even be in the form of an opinion.
**Know who is doing the examining and pretty much anything that comes out of the other
parties mouth comes in. (party opponent)

TYPES OF PARTY-OPPONENT STATEMENTS
   Party’s Own Admission 801(d)(2)(A).
        o Ex: Partners tried together this applies to party that made statement, but if tried
            separately only w/declarant partner is statement admitted.
   Statement Manifesting Belief that Statement is True 801(d)(2)(B).
        o Ex: IRS agent says speak up – silence = manifested belief.
                                                                                                     19
           o Criminal Cases – silence does NOT mean Yes/No statement; 5th Amend
           o Civil Cases – silence more likely let in as a statement of manifested belief.
      Person Authorized by Party to Make Statement Concerning the Subject 801(d)(2)(C).
           o Ex: Usually attorney or spokesperson
      Agent/Principal 801(d)(2)(D).
           o Independent contractors – agency/principal does not apply.
      Co-Conspirator 801(d)(2)(E).

STANDARD  Preliminary Question – 104(a).
FOUNDATIONAL REQUIREMENT  ONLY to establish relationship.

          PERSONAL KNOWLEDGE NOT REQUIRED  lack of personal knowledge
           does not necessarily exclude a party’s admission.
               o Ex: President of company says: “My company has investigated the matter
                   thoroughly and the reports indicate that we were negligent.”
               o Admission may be predicated on hearsay.
          JUDICIAL AND EXTRAJUDICIAL ADMISSIONS  Formal judicial admissions
           (pleadings, RTA, stipulations) are conclusive; informal judicial admissions made
           during testimony can be explained; Extrajudicial (evidentiary) admissions are not
           conclusive and can be explained. FRE 410.
          ADOPTIVE ADMISSIONS  FRE 801(d)(2)(B) A party may expressly or
           impliedly adopt someone else’s statement as his own – giving rise to an “adoptive
           admission.”
               o SILENCE – if a party fails to respond to accusatory statements where a
                   reasonable person would have spoken up, his silence may be considered an
                   implied admission. Requirements have to be met:
                         The party must have heard and understood the statement;
                         The party must have been physically and mentally capable of
                           denying the statement; and
                         A reasonable person would have denied the accusation under the
                           same circumstances.
               o CRIMNAL – Failure to reply to an accusation or statement made by policy in
                   a criminal case can almost never be used as an implied assertion of a criminal
                   act.
       a) Vicarious Admissions
       An admission is frequently not the statement or act of the party against whom the
       admission is offered at trial. What relationship must exist b/w the declarant and the party
       to make the party’s statement admissible against the declarant?
               (1) Co-Parties
               Admissions of a party are not receivable against her co-P or co-Δ merely b/c
               they happen to be joined as parties to the action. If there are 2 or more parties, the
               admission of the one is receivable against her but, in the absence of authority, not
               against her co-party.
               (2) Principal-Agent
               FRE 801(d)(2)(D) – statements made by an agent concerning any matter w/n the
               scope of her agency, made during the existence of the employment relationship,
               are NOT HEARSAY and are admissible against the principal.
               (3) Partners
               After a partnership is shown to exist, ad admission of one partner, relating to
               matters w/n the scope of the business partnership, is binding upon her copartners
               since, as to such matters, each partner is deemed the agent of the others.
               (4) Co-Conspirators
                                                                                                   20
                   FRE 801(d)(2)(E) – Admissions of one conspirator, made to a 3rd party in
                   furtherance of a conspiracy to commit a crime or a civil wrong, at a time when
                   the declarant was participating in the conspiracy, are admissible against co-
                   conspirators. “Partners in crime.”

D. Exceptions
     1. Rule 803 Exceptions: Availability of Declarant Immaterial. Is HEARSAY, but
     ADMISSIBLE.
           a) Present Sense Impression – 803(1)
           A statement describing or explaining an event or condition made while the declarant was
           perceiving the event or condition, or immediately thereafter.
                   FOUNDATIONAL REQUIREMENTS
                    Occurrence of an Event or Condition;
                    Contents of the statement describe or explain the event or condition; and
                    The declarant made the statement while perceiving the event or condition, or
                       immediately thereafter
           b) Excited Utterance – 803(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.
                    FOUNDATIONAL REQUIREMENTS
                     Occurrence of a startling event or condition;
                     Contents of the statement relate to a startling event or condition;
                     Statement was made by the declarant while under stress of excitement; and
                     Stress of excitement was caused by the startling event or condition.
           c) State of Mind – 803(3)
           A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical
           condition is admissible.
                   FOUNDATIONAL REQUIRMENTS
                    Contents of the statement must express the declarant’s currently existing state
                        of mind at the time of the statement;
                    State of mind may include emotion, sensation, physical condition, intent, plan,
                        motive, design, mental feeling, pain, and bodily health; and
                    State of mind of memory or belief may not be used to prove the fact
                        remembered or believed unless it relates to the declarant’s will.

                   WHEN ADMISSIBLE  (1) to show state of mind directly in issue and material
                   to controversy; (2) offered to show subsequent acts of declarant ex: intent to do
                   something in the future; (3) when has to do w/regard to wills.
           d) Statement for Purposes of Medical Diagnosis/Treatment – 803(4)
           Statements made for purposes of medical diagnosis or treatment and describing medical
           history, or past or present symptoms, pain, or sensations, or the inception or general
           character of the cause or external source thereof insofar as reasonably pertinent to
           diagnosis or treatment.
                    FOUNDATIONAL REQUIREMENTS
                     Statement must describe medical history, past or present symptoms, pain,
                        sensations, or the inception or the general cause or external sources of
                        symptoms;
                     A statement about the cause or source must be reasonably pertinent to
                        diagnosis or treatment; and
                     The statement must be made for the purpose of medical diagnosis or treatment.

                                                                                                       21
e) Past Recorded Recollection – 803(5)
If the foundational requirements are met, the document is read into the record, not received
as evidence for jury to take back in deliberations.
         FOUNDATIONAL REQUIREMENTS
          The declarant is testifying as a witness;
          The statement is in the form of a memorandum or record;
          The statement concerns a matter about which the witness cannot remember
            sufficiently to testify fully and accurately;
          The witness once had personal knowledge of the matter;
          The statement was made or adopted when the matter was fresh in the witness’s
            memory; and
          The statement correctly reflects the witness’s knowledge.

FRE 612 – look at document and say – “yes, I remember and then you talk.”
FRE 803(5) – if you remember at all you are not allowed to use the document.
f) Business Records – 803(6)
Allows organizations to prove facts by introducing its records into evidence, whether those
records consist of traditional paper documents or data stored in computers. Business
records are inadmissible if the source of information or the method or circumstances of
preparation indicate lack of trustworthiness.
        FOUNDATIONAL REQUIREMENTS
         Written or recorded form;
         Record concerns acts, events, conditions, opinions, or diagnoses;
         Record was made at or near time of the matter recorded;
         Source of the information had personal knowledge of the matter;
         Record was kept in the course of regular business activity; and
         It was the regular practice of business activity to make the record.

        Two objections regarding business records:
         AUTHENTICATION  proponent of evidence has introduced enough
           evidence to believe that these really are the business records of the company.
         FOUNDATION  assuming we’ve proven that it’s a business record, there
           are requirements that we have to establish for admissibility; have to establish
           foundation.
g) Absence of Business Records – 803(7)
If you expect the information to be in the record but they are not there, then that is proof of
the non-existence of the facts.
h) Public Records – 803(8)
Exception is necessary to avoid having public officers leave their jobs constantly to appear
in court and testify to acts done in their official capacity, especially since the entrant could
probably add nothing to the record. Assumed trustworthy b/c officials are under a duty to
record properly that which they do.
         FOUNDATIONAL REQUIREMENTS
          The statement is in the form of a record or report from a public office or
             agency.
          The contents of the record involve:
                  The activities of that office or agency;
                  Matters observed and reported pursuant to a duty imposed by law, but
                      not matters observed by police or law enforcement in criminal cases;
                      or
                  Factual findings resulting from an investigation authorized by law, but
                      not against the Δ in a criminal trial.

                                                                                             22
      i) Absence of Public Record or Entry – 803(10)
      A certificate from the custodian of public records that she has diligently searched and
      failed to find a record is admissible to prove that the matter was not recorded, or,
      inferentially, that the matter did not occur.
      j) Other:
              (1) Records of Vital Statistics – 803(9)
              (2) Records of Religious Organizations – 803(11)
              (3) Marriage, baptismal, and similar certificates – 803(12)
              (4) Family Records – 803(13)
              (5) Records of documents affecting an interest in property – 803(14)
              (6) Statements in documents affecting an interest in property – 803(15)
              (7) Statements in Ancient Documents – 803(16)
              (8) Market reports, commercial publications – 803(17)
              (9) Learned Treatises – 803(18)
              (10)    Reputation concerning personal or family history – 803(19)
              (11)    Reputation concerning boundaries or general history – 803(20)
              (12)    Reputation as to character – 803(21)
              (13)    Judgment of previous conviction – 803(22)
              (14)    Judgment as to personal, family, or general history boundaries –
              803(23)


2. Rule 804 Exceptions: Declarant Unavailable
      a) Unavailable
          A declarant is “unavailable” if:

           He is exempted from testifying by court ruling on the ground of privilege
            804(a)(1).
           He persists, despite a court order, in refusing to testify concerning the statement;
            804(a)(2).
           He testifies lack of memory of the subject matter of the statement; 804(a)(3).
           He is unable to be present or testify b/c of death or physical or mental illness; or
            803(a)(4).
           He is absent and the statement’s proponent has been unable to procure his
            attendance or testimony by process or other reasonable means. 804(a)(5).
      b) Former Testimony – 804(b)(1).
      Testimony of a now unavailable witness given at another hearing or in a deposition taken
      in accordance w/law is admissible in a subsequent trial as long as there is a sufficient
      similarity of parties and issues so that the opportunity to develop testimony or cross-
      examine at the prior hearing was meaningful.
               FOUNDATIONAL REQUIREMENTS
                Statement must be given in the form of testimony given at a hearing or in a
                   deposition.
                CRIMINAL CASE – the party against whom the statement is being offered
                   must have had an opportunity and similar motive to develop the testimony at
                   the prior hearing or deposition by direct, cross or redirect examination.

                                                                                                23
                      CIVIL CASE – either the party against whom the statement is being offered,
                       or a predecessor in interest to that party, must have had an opportunity and
                       similar motive to develop testimony at the prior hearing, deposition, cross, etc.
             c) Dying Declarations – 804(b)(2).
             In a prosecution for homicide or in a civil action or proceeding, a statement made by a
             declarant while believing that the declarant’s death was imminent, concerning the cause or
             circumstances of what the declarant believed to be impeding death.
                     FOUNDATIONAL REQUIREMENTS
                      Statement concerns the cause or circumstances of what the declarant believes
                         is impending death.
                      Statement is made while the declarant believes death to be imminent; and
                      Statement is offered in a homicide prosecution or a civil case.
             d) Statements Against Interest – 804(b)(3).
                     FOUNDATIONAL REQUIREMENTS
                      Content of statement, at the time the statement was made, was:
                             Against the pecuniary or proprietary interest of the declarant;
                             Could subject the declarant to civil or criminal liability;
                             Could render invalid a claim held by the declarant;
                      The statement was against any of the above interests of the declarant to an
                       extent great enough such that a reasonable person, in declarant’s position,
                       would not have made such a statement unless it were true; (no sincerity
                       problem) and
                      If the statement exposes the declarant to criminal liability and is offered to
                       exculpate the accused, evidence of corroborating circumstances that clearly
                       indicate the trustworthiness of the statement must be offered.
             e) Statements of Personal or Family History – 804(b)(4).
                     FOUNDATIONAL REQUIREMENTS
                      The content must concern the declarant’s own person or family history; or
                      Statement concerns the personal or family history of one to whom the
                       declarant is related or was intimately associated.


E. Residual Hearsay and the Confrontation Clause
     1. Rule 807: Residual Exception
     A statement not specifically covered by FRE 803 or FRE 804 but having equivalent circumstantial
     guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that:
     (A) the statement is offered as evidence of a material fact
     (B) the statement is more probative on the point for which it is offered than any other evidence
     which the proponent can procure through reasonable efforts;
     (C) the general purposes of these rules and the interests of justice will best be served by admission
     of the statement into evidence.

             3 REQUIREMENTS:
              Trustworthiness Factor.
              Necessity Factor.
              Notice to Adversary.

             FOUNDATIONAL REQUIREMENTS
              The statement must have circumstantial guarantees of trustworthiness;
              These guarantees should be “equivalent” to the exceptions in 803 & 804;
              The statement is offered to prove a material fact.


                                                                                                        24
                       The statement is more probative on the point for which it is offered than any other
                        evidence that can be secured through reasonable efforts;
                       Admission will serve the general purposes of the rules and the interests of justice; and
                       Notice is given to the opponent.
              2. Confrontation Clause
              In criminal cases, it may be argued that the use of hearsay evidence violates the accused’s right to
              confront and cross-examine the witnesses against him. SC indicated that the requirements of the
              CC may be met where circumstances indicate the reliability of the hearsay.


VI.   Cross-Examination, Impeachment and Rehabilitation
      A. Cross-Examination
      Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact. It is
      recognized as the most efficacious truth-discovering device. The principal basis for excluding hearsay is
      that the declarant whose testimony is offered cannot be subjected to the test of cross-examination.

      Cross-examination does not have as many rules as direct examination. On cross-examination leading
      questions are permissible, as are efforts at impeachment. The SCOPE CANNOT range beyond the subject
      matter of direct examination.
              1. FRE 611. Mode and Order of Interrogation and Presentation.
              Cross-examination is limited to (i) matters brought out on direct examination and the inferences
              naturally drawn from those matters, and (ii) matters affecting the credibility of the witness.
      B. Impeachment
      Impeachment means the casting of an adverse reflection on the veracity of the witness. The primary
      method is by cross-examination. In terms of relevance – any matter that tends to prove or disprove the
      credibility of the witness should be admitted here.
              1. Rule 607. Who May Impeach.
              The credibility of a witness may be attacked by any party, including the party calling the witness.
              2. Rule 608. Evidence of Character and Conduct of Witness.
              (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or
              supported by evidence in the form of opinion or reputation, but subject to these 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 attacked by
              opinion or reputation evidence or otherwise.
              (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of
              attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule
              609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if
              probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1)
              concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character
              for truthfulness or untruthfulness of another witness as to which character the witness being cross-
              examined has testified.

                      CHART FOR 608 PURPOSES
                                             Does testimony show character trait?
                                         YES                                       NO
                               Is it for truthfulness?                     Is it reputation?
                             YES                     NO                 YES              NO (opinion)
                       It is IN – 608.           OUT – 404.         OUT – 802.              It is IN.
                      803(21) you may
                    need it, it may not be

                                                                                                                 25
                   803(21)

       3. Impeachment Methods
           CROSS-EXAMINATION  by eliciting facts from the witness that discredit his own
             testimony.
           EXTRINSIC EVIDENCE  by putting other witnesses on the stand who will introduce
             facts discrediting his testimony.
               a) Prior Inconsistent Statements
               A party may show that the witness, has on other occasions, made statements that are
               inconsistent w/some material party of his present testimony.
                        FRE 613. Prior Statements of Witnesses.
                        Proved by cross-examination or extrinsic evidence.
               b) Bias or Interest
               Evidence that a witness is biased or has an interest in the outcome of a suit tends to show
               that the witness has a motive to lie.
               c) Conviction of a Crime
               FRE 609. Impeachment by Evidence of Conviction of a Crime. A witness may be
               impeached by proof of conviction of a crime.
                Criminal Δ’s who are witnesses – 609 mandates a reverse FRE 403 test – the probative
                  value must outweigh the prejudice to the Δ.
                609(b) – if it happened more than 10 years ago you are subject to the reverse 403 and
                  most likely it would be excluded.
               d) Specific Acts of Misconduct – Bad Acts
               FRE 608. Inquiry into “bad acts” is permitted even though the witness was never
               convicted. Can be interrogated w/respect to things that may affect his character and show
               him to be untrustworthy.
               e) Opinion or Reputation Evidence for Truth
               Modern view is to allow evidence of reputation in business circles as well as in the
               community in which the witness resides.
               f) Sensory Deficiencies – Perceptive Disabilities, Lack of Memory, Mental Disorder
               A witness may be impeached by showing that he had no knowledge of the facts to which
               he testified, or that his faculties of perception and recollection were so impaired as to make
               it doubtful he could have perceived those facts.
C. Rehabilitation
A witness who has been impeached may be rehabilitated on redirect examination or by extrinsic evidence.
       1. Explanation on Redirect
       The witness may explain or clarify facts brought out on cross-examination.
       2. Good Reputation for Truth
       When the witness’s general character for truth and veracity has been attacked, the party for whom
       the impeached witness has testified may call other witnesses to testify to the good reputation for
       truth of the impeached witness or to give their opinion as to the truthfulness of the impeached
       witness.
       3. Prior Consistent Statements
       GENERALLY NOT PERMITTED. Exceptions  Where the opposing counsel has impeached the
       credibility of a witness by making an express or an implied charge that the witness is lying or
       exaggerating b/c of some motive, counsel may introduce into evidence a prior consistent statement
       made by the witness before the time of the alleged motive to lie or exaggerate.
                                                                                                             26
VII.   Lay Opinion, Scientific Evidence and Expertise
       A. Lay Opinion
             1. FRE 701. Opinions Testimony by Lay Witnesses.
             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 (a) rationally based on the
             perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the
             determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
             knowledge w/n the scope of Rule 702.
             2. When Admissible
                 It is rationally based on the perception of the witness.
                 It is helpful to a clear understanding of her testimony or to the determination of a fact in
                  issue; and
                 It is not based on scientific, technical, or other specialized knowledge (if so the
                  witness’s testimony would need to meet the requirements for expert testimony stated in
                  FRE 702.
             3. Situations Where Opinions of Lay Witnesses Are Admissible
                 General Appearance or Condition of a Person
                 State of Emotion
                 Matters Involving Sense Recognition – “heavy”, “red”
                 Voice or Handwriting Identification
                 Speed of a Moving Object – “fast,” “very fast” has been permitted.
                 Value of Own Services
                 Rational or Irrational Nature of Another’s Conduct (Sanity)
                 Intoxication
             4. Situations Where Opinions of Lay Witnesses Are NOT Admissible
                 Agency or Authorization
                 Contract or Agreement


       B. Scientific or Specialized Evidence
             1. FRE 702. Testimony by Experts.
             If scientific, technical, or other specialized knowledge will assist the trier of fact to understand 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) testimony is based
             upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, (3)
             the witness has applied the principles and methods reliably to the facts of this case.

             2 Foundational Requirements:
                  Is the expert testifying about scientific, technical or specialized knowledge? [Daubert]
                  Does the testimony help the trier of fact? [“Fit”]

                  FRE 403 factors – determines whether scientific or specialized evidence should be
                   admitted turns on the relevance of the evidence.
             2. Daubert Test
                     a) Falsifiability (testability the same thing)
                     You have to prove the methodology works both with a null set and a set. No one really
                     knows what this criteria means.
                     b) Publication
                     Methodology has been written about and published in peer review journals.
                                                                                                                    27
                        c) Rates of Error
                        Something that works 60% of the time is not going to be as admissible as something that
                        works 90% of the time.
                        d) General Acceptance
                        Frye test – if a lot of scientists use it, it is enough for us to let it in.
                3. “Fit” Test
                If it can be let in under Daubert – you have to conclude if it really helps. That what it is testing is
                really going to help the jury.
                       Ex: Someone is suing saying chemical X is causing leukemia.
                               Studies show that same chemical creates tumors in stomachs of mice. You can
                                   prove X causes tumors in stomachs of mice.
                               You still have to ask if this is probative of X causing leukemia in people. It is not
                                   always clear as to what that answer is.
                       Ex: You can prove X causes Y, but not that X causes Z.
                               X – full moon.
                               Y – brightness.
                               Z – irrationality.
                       Ex: You can prove X causes Y, but not that X causes Z.
                               Y – chemical.
                               Y – tumors in mice.
                               Z – leukemia.

        C. Expert Witnesses
        Can testify about (1) facts they know b/c of learning, (2) facts they have generated, (3) opinions based on
        what would/could happen given certain conditions, (4) conclusions about what has happened in this case
        based on: examination of subject, other in court evidence, out of court evidence.
                1. FRE 705. Disclosure of Facts or Data Underlying Expert Opinion.
                An expert may give opinion testimony w/o disclosing the basis of the opinion, unless the court
                orders otherwise. The expert may have to disclose such information on cross.
                2. FRE 703. Bases of Opinion Testimony by Experts.
                The expert may base an opinion upon facts not known personally but supplied to him outside the
                courtroom (e.g. technicians, nurses, consultants). Evidence of such facts need not be evidence or
                even of a type admissible in evidence as long as the facts are of a kind reasonably relied upon by
                experts in the particular field.
                3. FRE 706. Court Appointed Experts.
        D. Opinions on an Ultimate Issue
                1. FRE 704. Opinion on Ultimate Issue.
                The expert and the lay person can testify to the ultimate issue. Prevents the expert from taking
                away the jury’s job in determining the outcome.


VIII.   Privilege
        A. General Structure of Privileges

                3 Things to Remember – (1) they apply throughout the process. (2) it can be invoked by either
                parties or witnesses. (3) generally to be construed broadly b/c the injury caused by too narrow of an
                instruction cannot be reversed on appeal.

                                                                                                                      28
       4 Requirements that are applicable to all privilege:
           Originate in Confidence.
           Confidentiality important to the relationship itself.
           Relationship has to be one the community wants to foster.
           Injury from disclosure has to be greater than the benefit gained from the truth.

B. Attorney-Client Privilege
Communication b/w an attorney and client, made during professional consultation, are privileged from
disclosure.
       1. Work Product vs. Attorney-Client
       Work Product protects the lawyer – attorney/client protects the client.
       2. Exceptions to the Privilege
           Breach of Duty by a Lawyer or Client
           Document Attested by a Lawyer – A will is not privileged.
           Identity of a Client, Fee Information, and Related Matters.
           Communication in Furtherance of a Crime or Fraud.

C. Marital Privilege
       1. 2 Kinds:
           Communication – made b/w the parties while married.
                 Holder – person who said the stuff to the other.
                 Scope – has to have been a purposeful communication, made in confidence during
                   the marriage. Cannot be before the marriage.
           Testimonial –
                 Holder – applies to the person testifying who is usually not the person who said or
                   did something. The person who said or did something can take the 5th.
                 Scope – applies during the marriage, but can protect actions prior to the marriage.
                   If you are married you can refuse to testify about things the person did before you
                   were married.
D. Other Privilege
       1. Psychotherapist – Patient
       People are happier if they can divulge things.
       2. Doctor – Patient




                                                                                                       29

								
To top