Evidence

Megan OKeefe
A. THREE OVERARCHING CONCEPTS

1.

2.
3.

4.
5.
6.

FRAMEWORK OF ANALYSIS
Is the evidence relevant? PDC? yes, what type of evidence?
a. character evidence accused, victim, other witness?
* competency and impeachment of witness
b. Sex hx or offense victim vs. accused 412 & 413
c. Habit person or institution
d. Subsequent Remedial Measure
e. offer to pay med expenses
f. Settlement offer, plea bargain, liability insurance
Is the relevant evidence prejudicial? 403 DAB balancing test
Is the relevant evidence hearsay?
a. No just not hearsay
b. By definition, NOT hearsay 801
c. Yes, it is hearsay but meets a hearsay exception
d. Yes, but it is reliable preliminary fact for other evidence 104(b)
e. Any constitutional limits of letting it in?
Is it Privileged? Atty-Client, Psycho-therapist, Spousal
Proper Foundation? Best Evidence?
Has party satisfied their burden do they get the benefit of a
presumption or judicial notice?

Format for final:

Part I: identify whether
it is hearsay
Part II: Objections or
evidentiary issues
Part III: IRAC
o Identify issues
o Identify if there are
2 sides to the issue
An A answer
o Answers the
questions!!
o Ability to write
clearly

1. Evidence Rules Statement of Purpose - 102

a. Rules construed to:
Secure fairness in administration
Elimination of unjustifiable expense and delay
Promotion of growth and development of the law of evidence
Ascertain truth and have proceedings justly determined
2. Questions to Ask regarding evidence
a. What is the evidence coming in for? Is it relevant? 401 analysis
b. Is it fair, just, right to let in this relevant evidence? 403 analysis
c. Should I make an objection?
Way for party to alert the court that something is wrong opportunity to fix
State proper basis for objectionex: hearsay, propensity, leading questions
State what is wrong with the evidence
d. Can I introduce counter evidence relevant to the weight or credibility of this evidence?
3. Court Admissibility Determinations - 104
a. Ct is NOT bound by rules of evidence (except those with respect to privileges) 104(a)
b. Ct can consider inadmissible evidence if it is reliable to determine if other evidence is admissible 104(b)
Ex: if trying to get in an excited utterance, someone can come in and talk about contents of this utterance
4. Doctrine of Limited Admissibility 105
a. Opposing party is entitled to a limiting instruction to the jury
b. Evidence only coming in for a limited purpose confines the impact of the proof
c. Limiting instructions are PRESUMED to do their job
d. RED FLAG raises 403 problems
Possibility that jury is incapable of compartmentalizing this evidence

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Jury may misuse this evidence risk that jury may not understand or comply w/ instructions
e. Ex: 30 people have slipped and fallen in the same spot at a funeral home. falls and seeks to offer in
evidence of the complaints of these 30 people. objects as hearsay. Ct admits evidence for the limited nonhearsay purpose to show that business should have been on notice (effect on the listener) and did not do
anything about it. The actual complaints of the 30 people do not come in to show the truth of the matter.
5. The Rule of Completeness 106
a. If a party extracts a part of a written or recorded statement, that would be misleading and unfair
b. Therefore, opposing party is entitled at the time the doc is offered, that remainder is read to the trier or fact.
B. RELEVANCE RULE 401
1. Definition of Relevant Evidence
a. Evidence having any tendency to make the existence of any fact that is a matter of consequence more or less
probable that it would be without that evidence
b. Rule of admissibility!! very slight standard (402)
Just a part of the case that does not need to decide the whole case just a brick in the wall. (PINK

FLOYD DOCTRINE)

Does not matter if the fact is in dispute or not to make it relevant

2. PRETTY DARN CLEAR what is ALWAYS relevant
P is it part of the Pleadings
D is it part of the defense
C is it an issue of credibility of the witness
Bias is ALWAYS relevant, never collateral - if witness denies bias, can prove it up w/ other proof
3. 3 Questions to determine if relevant
a. What is the evidence used to prove? What is it coming in for???
b. Is that something that can be proved in this case?
pleadings, substantive law
c. Does the evidence improve that proposition? tendency to make a fact of consequence more or less
probable
4. Issue Spotting Tips:
a. Chains of inferences
More inferences the jury has to make, the less likely the evidence is going to be relevant
b. If the evidence is involving some other place, other person, other events (time) that are not in this lawsuit
What does it have to do with this case?
What is the relevance of this evidence?
It is less likely to be found relevant
c. flight by accused can be evidence of consciousness of guilt

The Rest of the Class is Limitations on Relevant Evidence!!

C. UNFAIR PREJUDICE (403) (1st limitation on relevant evidence)
1. Only RELEVANT evidence is subject to the 403 test
2. RULE 403: relevant evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of issues, or misleading the jury, or by consideration of undue delay, waste of time, or
needless presentation of cumulative evidence
3. Balancing Test: A little DAB will do you (greasy kids stuff)
a. Danger of unfair prejudice

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Megan OKeefe

4.
5.

6.

7.

b. Alternative ways to prove this point

c. Balance the alternatives
the rule FAVORS admissibility the standard is very high
Method of 403 Analysis
a. Evidence is deemed relevant
b. Is there danger of unfair prejudice ex: propensity
c. Is there an alternative that is less prejudicial ex: stipulation
d. How important is the evidence to the offering party? Greater the need for the evidence, greater the risk of 403
CASE: Old Chief prosecution is entitled to prove its case free from s option to stipulate evidence of a prior
conviction away. BUT, the unfair prejudice of this relevant evidence substantially outweighs its probative value.
a. RULES:
Undisputed evidence can still be relevant. Prior record of felony shows propensity, proves an element of
the charge (govt has to prove he was a prior felon) under the pleadings
Relevant evidence is limited by 403
Examples of Evidence deemed NOT admissible under 403
a. Gruesome photos of autopsy
If cause of death is not disputed
b. Appeals to pure emotions sympathy, bigotry, hatred (State v. Chapple)

D. HEARSAY (800 SERIES) (2nd limitation on relevant evidence)

1. General Hearsay Rule 802
aa Hearsay is NOT admissible unless provided by these rules
aa Even if the declarant is on the stand, it is still hearsay if offered for the truth of the matter asserted
aa Policy: ability to cross-exam the statement when it is first made test the declarant for perception, memory,
sincerity. 6th Amend right to confront your accuser.
2. Hearsay Definition 801
aa Out of court put it in quotes and see if it was said outside of court
aa Statement spoken, written, and conduct intended as an assertion
Assertive Conduct? Burden on party opposing the evidence as hearsay to show
CASE: Wright v. Doe d. Thatham only if the declarant intended to say that Marsden was
competent by writing him a letter, than it is hearsay and cannot be admitted. (under old rule, ct held
letters were inadmissible hearsay since letter-writers were out of court declarants)
Kenworth/Maserati truck drivers intention when he pulled forward to say that light was green
Ex: Sticking your left hand out of the window of your car asserting that you are making a left turn
aa Offered in to prove the truth of the matter asserted
3. NON-hearsay uses What is just NOT considered hearsay
aa Absence of a complaint to prove the non-occurrence of an event
CASE: Cain v. George testimony that there was no complaint about motel heaters is NOT hearsay and
admissible. But you must show that the non-complaining individuals were similarly-situated as the
complaining party, had motive and opportunity to complain. Policy paying customers would normally
complain if service was not good.
aa Declarant must be a person in order for it to be hearsay

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Machines issue of authentication, not hearsay. Ex: if cop catches you speeding w/ a radar gun, that
speed limit offered into evidence is NOT hearsay
Animals evidence from bloodhounds and drug dogs is NOT hearsay.
aa Offered for impeachment purpose only
Prior inconsistent statement that is NOT sworn Bystander in a car collision switched is story to
prove he is not a credible witness
aa Offered for the LIE of the matter asserted
Wife says, my husband was in Denver she was lying b/c he was not in Denver
Man who is importing marijuana - offer in that he said to his friends that he was storing a plane not
true
aa Verbal Act
words with an independent legal significance The statement itself is an operative fact that gives rise to
legal consequences.
Examples: Words of a contract I will buy your car for $100, defamation, solicitation at a massage
parlor, offer to marry I will marry you
aa Verbal Part of an Act
Words that accompany an otherwise ambiguous physical act these words give this act some definition
Examples:
Handing cars keys to someone and saying will you park my car
Saying that you are own a piece of land adverse possession if you have been there for 20 years
aa Statement offered for the effect on the Listener or Reader did they act reasonably??
Statement not offered for the truth of the matter asserted, but offered to prove the effect the statement had
or should have had on the listener/reader
Ex: to show that the party assumed some risk, was put on notice, had a certain emotion/reaction, behaved
reasonably or unreasonably, acted under duress, coercion or harassment, to show lack of companionship
aa Verbal Object (label)
Words as labels or markers (logos) being used to ID a person/agent/thing
Ex: license plate is not hearsay or the back of the car that says buick
Eagles Restaurant Bar & Grill on matchbook offered to show that went to that restaurant
aa Verbal Marker
Testimony of 2 or more people talking outside of court - used to mark a time, event or identify a person
Ex: 1st witness says I saw this man with Nichols. 2nd witness identifies that the person the bar maid
pointed to was the defendant.
aa Circumstantial evidence offered for persons state of mind (evidence of memory/belief)
Ex: Anna Sofers will as proof (saying that her husband was no good) that her husband could not prove
damages for a loss of companionship action
Offered for persons state of mind - NOT for the truth of the matter asserted
Circumstantially indicates state of mind regardless of their truth (not because of their truth)
aa Circumstantial Evidence of Special Knowledge by a person
Circumstantial evidence offered in to show the declarants special knowledge not for truth of the matter
Declarants knowledge of unique facts (w/ no other readily apparent source) to show that that
declarant was at a certain event/place.
Ex: Paper Mache Man girl had personal knowledge of a unique figure in a particular room offered to
show that she was in this room before.
la Non-Assertive Mix Statements & Conduct: person did not intend the assertion

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Megan OKeefe

Police go to a certain house to search for gambling the phone rings and a person says, Taylor, I bet
$500 on Georgetown inference that a person would not call and say this unless he had a gambling
ring
CASE: US v. Singer landlord sent letter to s address starting the eviction process. When landlord
wrote the letter, the intention was to end the tenancy, not to say that lived at that address.
Nonassertive conduct not hearsay admissible: 2 stop process
Prove the actors belief in a fact, hence the fact itself is not hearsay
Assertion = picking someone out of a line-up to prove that he is guilty that conduct is an assertion and
is hearsay not admissible.
ma Implied assertions not intended to say anything not hearsay
First determine what the evidence is being offered for and then look to the intent of the declarant.
If the declarant did not intend to express the belief for which the evidence is offered for not
hearsay
If declarant had the intention hearsay risk, particularly in a criminal case see below
CASE: US v. Pacelli (borderline case) (Pre-804(b)(6) Rule) - family gather and talk about getting rid
of one the witnesses to prevent him for testifying against . Was gathering of family intended to show
that Pacelli was guilty?
Ct held that this gathering of family and talking about getting rid of witness was an assertion and
therefore, hearsay and inadmissible.
Argue both ways on this!! When it doubt the 6th Amend trumps the fed rules.
New Rule after this case if you make a formerly available declarant unavailable whatever that
declarant said will auto admitted against you.
4. What is BY DEFINITION NOT hearsay 801 (2 categories of this)
aa WHEN DECLARANT IS ON THE STAND AND TESTIFIES- 801(d)(1) 3 exceptions
Prior INCONSISTENT Statement made under OATH in a prior proceeding 801(d)(1)(A)
Witness is on the stand now and cross-examinable concerning prior statement
Prior statement is inconsistent with his present testimony
o Direct contradiction, omission or addition of a detail, or failure to recall what you should
remember
Under oath in a prior proceeding or deposition
o Formal setting, with the penalty of perjury under oath needs to be reliable!!
o CASE: State v. Smith prior proceeding does NOT mean a jail house confession
o Ex: Grand jury testimony, pre-trial testimony, previous trial, hearing, motion
Prior CONSISTENT Statement 801(d)(1)(B)
Witness is on the stand now and cross-examinable concerning prior statement
Statement is consistent with present testimony prior statement does NOT have to be sworn and
does NOT have to be recent to the trial
Offered to rebut an allegation of improper motive or undue influence (when other side is trying to
impeach your declarant witness, you show a prior consistent statement to rehabilitate your witness)
o Limitation prior consistent statement needs to be BEFORE the time of the undue influence
Analysis
o Fix the time in which the improper motive or undue influence occurred
o Did the prior consistent statement occur BEFORE this time of improper motive?
o If prior consistent statement made before the undue influence that it is admissible

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CASE: Tome v. United States declarant says sexually assaulted her BEFORE her mothers
influence not hearsay and is admissible.
Prior statement of IDENTIFICATION made upon perceiving 801(d)(1)(C)
Prior statement does NOT have to be sworn or made close in time to the trial
o CASE: US v. Owens prior statement is admissible even if declarant on the stand cannot
remember making the ID before or the underlying events of his statement.
Statement has to be made AFTER perceiving the person identified
o Perceiving = seeing or hearing or police artist sketch
o CASE: State v. Motta police artist sketch is admissible b/c it is a representation of what the
declarant told the police to draw prior statement of identification
Policy: In court ID is inherently suspect, therefore, pre-trial, out of court identification may be far
more reliable comes in as substantive evidence

aa ADMISSIONS BY A PARTY OPPONENT (fact, legal conclusion, or opinion) 801(d)(2) 5 Kinds

REMEMBER
Personal admission 801(d)(2)(A)
said I did it anything you say can or will be used against you
o guilty please in a criminal suit are usually admitted in later civil damage suits arising from same
incident exception in is traffic court admissions.
there are almost no limits on individual admissions
o in criminal trials, involuntary confessions are barred under the 5 th Amend only where an agent of
the state plays some active role
o statements when you are talking in your sleep are NOT admissible (but they are admissible if you
are just drunk)
o admissions by a minor depends on how old the child is
if you make a statement of fact, you dont need personal knowledge even a statement of opinion,
like I was at fault can be admissible as a personal admission.
FRCP 36(a) request to admit averments are used against you
Problems of multi-party situations spillover confessions
o CASE: Bruton v. US 1 makes statement incriminating himself and 2 and 1 does not
testify. Can only allow the admission of 1 against himself, NOT against 2 b/c 2 cant
confront the person who accused him. (unless you can establish that they were co-conspirators)
o Possible solutions severance of case, get 2 juries, redact parts of 1s statements
Adoptive Admission 801(d)(2)(B)
Manifest some agreement under the conditions.
HURT (under US v. Hoosier armed robbery, Roger adopted statement by girlfriend)
o Heard
o Understood
o Reasonable person under the circumstances would
o Take exception
POST-custodial silence is irresolvably ambiguous never admissible as adoptive admission
o CASE: Doyle v. Ohio has the right to remain silent after being taken into custody cannot
interpret that silence as an admission
o CASE: Jenkins v. Anderson your right to remain silent occurs post-Miranda warning
o CASE: Fletcher v. Weir only POST-Miranda, POST-custodial silence after questioning is NOT
admissible.
Admission by an Authorized Spokesman 801(d)(2)(C)

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Typical scenario lawyer speaking on behalf of his client

Policy when a person hires another to speak for him, it is fair to allow the words of the latter to
establish facts at trial against the former
Admissions in judicial proceeding
o Pleadings from prior lawsuits, written interrogatories, admissions filed in request to admit
Admission by an Employee or Agent 801(d)(2)(D)
Statement must be made during the COURSE of employment and
Statement must be regarding a matter within the SCOPE of employment
o Doesnt matter if agent speaks at work place or not, and doesnt matter if has authority to speak
Independent contractors are generally NOT agents
Can use statement itself to establish agency relationship, but you need independent evidence also
CASE: Mahlandt v. Wild Candid Survival & Res Ctr admission of Poo (employee)- wolf bit the
HYPO: truck driver of Best Buy gets into a crash, admits his brakes failed used against Best Buy
Admission by a Co-Conspirator (civil OR criminal cases) 801(d)(2)(E)
Co-conspirator statements are admissible if:
o Need a conspiracy (need not be charged)
Statement itself can be used to prove the conspiracy relationship BUT you need some other
evidence also
Conspiracy = agree, planning, and a step in furtherance of committing a crime
o Statement made during the course of the conspiracy
Conspiracy ends after the arrest or upon abandonment or the criminal enterprise
Undercover cop statement is not a statement by a co-conspirator
o In the furtherance of the conspiracy (easy requirement almost any act is in furtherance)
CASE: Bourjaily v. US need to first prove the conspiracy by preponderance of the evidence. The
co-conspirators statement itself plus some other evidence used to prove conspiracy.

5. Hearsay EXCEPTIONS Rules 803 & 804 All fit into the defn of hearsay but are exceptions to the rule
aa DOESNT MATTER IF DECLARANT IS AVAILABLE TO TESTIFY OR NOT 803 23 of them
Present Sense Impression - 803(1)
Play by play
If declarant is making the statement as the event transpires, cts will let it in b/c very reliable, declarant
doesnt have chance to make it up
Time element is impt, virtually simultaneous
CASE: Nuttal v. Reading Co offer in husbands side of phone call I guess Ill have to go
Excited utterance - 803(2)
oh my God! statement made while declarant still is under impression of startling event no
time to reflect
time element is a bit more relaxed than under present sense impression
If you renew the startling event (see a picture of assaulter), what you say after that is admissible
The statement itself can be sufficient to proof of the startling event (dont need independence
corroborating evidence) based on circumstances of the event
CASE: US v. Iron Shell questioning of 9yr old victim an hour after she was attacked
Then existing state of mind to prove future conduct 803(3)
BIG need to get this evidence if declarant is unavailable!!
Then existing physical condition owie exception how you feel when poked
Then existing mental/emotional condition

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o

In a murder case, victim (declarants) statement on its own cannot prove what someone beside the
declarant did. (cannot show what the assaulter did to the victim)
o In a coercion case, victim (declarants) statement is admissible to show what did.
Hillmon doctrine declarants statements (Walters letters) of his intention to do something w/
another person (go to Kansas) the trier of fact should infer from his state of mind the probability of
the particular act, not only by the declarant, but also about the other person
GENERAL RULE TODAY: Dont look back, but where there is a will, there is a way!!
o Shepard v. US statements of intent by a declarant is admissible only to prove HIS future
conduct, NOT the future conduct of another person (unless you have other independent
corroborating evidence to prove the conduct of the other person)
o Exceptions:
Wills - Can look back at someones will to show their intention at the time they wrote it
US v. Annunziato there is a limited rear view mirror to look back when you have a
declarants statement that predominately describes future acts and MAY also refer to
something in the immediate past to put the declarants actions in context.
Corp president said to son Annunziato called and requested some $ on the project
1. comes in to prove his future conduct of sending $$ to Annunziato even though it talks
about the past (that Annunziato had called him)

Statement for Purposes of Medical Dx or Treatment 803(4)

RULE: Statement admissible to show why you are soar but NOTHING more - why you are
LAME but not whos to BLAME -(cant be admissible to assign fault).
o Exception: CASE: Blake v. State declarant, sexual assault victim, tells Dr. she was assaulted
by her father statement admissible b/c it is part of the treatment of the Dr. to understand the
emotional state of the declarant. (ct here is stretching the rule)
Child Outcry exceptions states have admitted childs statements of fault to the Dr.
Declarant = person who is seeking med treatment, bystander, mother/father (person standing in the
place of the patient), one med personnel to another med personnel relating to tx or dx of the patient,
dx by an expert witness
Policy = statements to Dr. are reliable b/c declarant wants them Dr. to help him get better

Past Recollection Recorded 803(5)

Admit a record or memo concerning a matter about which a witness once had knowledge but has
insufficient recollection to enable the witness to testify fully and accurately
Elements of the memo/record
o Accurate record that declarant made OR adopted
o About an event when they fresh in his mind (twinkie fresh 1 year)
o That witness can no longer recall
o Memo can be read into evidence, but may itself no be received as an exhibit unless offered by an
adverse party (too prejudicial for offering party to offer it as an exhibit b/c than it would always
coach its witnesss to fail to recall stuff)
CASE: Ohio v. Scott if witness cant recall eve after trying to refresh must at least say that record
was accurate and fresh at the time it was made.
Insert chart on how to refresh a witnesss memory (Rule 612) Examples and Explanations book

Business Record 803(6) BIGGEST HEARSAY EXCEPTION!!

4 elements
o regularly conducts business, kept record in ordinary course of business

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business = any calling (construed liberally). It need not generate a profit (church, charity)
regularly = regularly conducted activity that is regular to that particular business (Rule 406
allows you to include business habits
o personal knowledge of the source
creator of record is someone w/ knowledge of events described and the declarant works for
the business organization
CASE: Petrocelli v. Gallison Ct does not admit Drs postoperative report b/c dont know
source of this report and whether Dr. has personal knowledge when writing it.
CASE: Norcon v. Kotowski liberal interpretation of employee a security subcontractors
record was admitted as a business record (regarding sex harrasment of a corp)
o contemporaneity
record made at or about the time of the events occurred
o Foundation testimony
Must be testimony by the custodian of the records or other qualified witness and they must
testify the manner in which the records are prepared and kept
Exception: if author of business record can anticipate that she may be hailed into court as a , than
the reliability of the record is not good inherently suspect
Policy business have motivation to keep accurate business records and rule of convenience
Absence of Regularly Kept Business Record to prove nonoccurrence of an event 803(7)
Lack of regularly kept business record (referred to in 803(6)) to prove the nonexistence or
nonoccurrence of a matter. Unless the source of info or other circ indicate lack of trustworthiness.

Public Records and Reports 803(8), 803(9), 803(10), 803(14)

3 kinds of records and reports 803(8) (A-C)
o the activities of office or agency that they are required to record (library record)
o matters observed, pursuant to legal duty (excluding matters observed by police in a criminal case)
o in civil actions and against Govt in criminal cases, factual findings resulting from official
investigations
Civil vs. Criminal case use of public records
o CIVIL CASE: Baker v. Elcona Homes Corp Investigative findings of a govt agency can be
admitted for and against in a civil case determining who is at fault for accident. Factors
examined: timeliness of investigation (6 min after accident), special skill of cop, hearing held,
motivation issues.
o CRIMINAL: cant offer investigative findings of a govt agency AGAINST the criminal . But
criminal can use the record to help him.
o Records of a public library not adversarial and can be admitted in a criminal or civil case
Comparison of Business Record (803(6)) and Public Record (803(8))
Business Record
Public Record
Regularly conducted business
Can be a one-time disaster/investigation
At or about time the event occurred
Ongoing when reached what matters is when the
conclusion is made
Declarant is employee of the business Statements by anyone agency decides. BUT if public record
quotes people who dont work for the agency, it is NOT
admissible for the truth of the matter asserted. ONLY
admissible for the basis of the agencys conclusions
Policy = reliability is high b/c public agency has a legal duty to keep accurate records
Other public records that fit into hearsay exceptions

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o
o
o

Records of vital stats (birth, fetal, death, marriage records) 809(9)

Absence of regularly kept public record after diligent search to prove nonoccurrence of a matter
809(10)
Records of docs affecting an interest in property 803(14)

Learned Treatises 803(18)

If shown to be reliable authority establish this by using the witness, judge takes judicial notice, or
you can call your own expert to show it is a learned treatise
Used to impeach an expert witness
Statements in learned treatises can be read into evidence but not admitted as an exhibit

Reputation Statements 803(19), 803(20), 803(21)

Reputation among members of a persons family or associates, or in the community concerning
birth, adoption, marriage, divorce, death, legitimacy or other family history
Reputation in community concerning boundaries of or customs affecting lands in a community or
reputation as to events of general history
Reputation as to a persons character

Certified copes of previous convictions 803(22)

Conviction of crime punishable by death or imprisonment over 1 year
Cant be offered by govt in criminal case for purposes OTHER than to impeach or
Cant be conviction against other persons other than accused

aa DECLARANT UNAVAILABLE TO TESTIFY 804 (narrower set of 5 exceptions than 803)

Definition of Unavailability 804(a) PRISM
Privilege asserted by declarant
Refuses to testify despite an order of the court
Ill or incapacitated or dead
Subpoena is ineffective cant procure declarants attendance
o Civil case need to show due diligence to serve person, but declarant is outside juris power of ct
o Criminal case must show service plus other acts for govt witness, must be more than subpoena
Cant let a material witness go if you have found him
Memory on the subject matter is not available
Former Testimony 804(b)(1)
Declarant is unavailable,
testimony in another hearing/deposition that occurred before trial,
where the party against whom now the testimony is offered is the one against whom the testimony
was offered before OR where the party against whom now the testimony is offered is the one by
whom the testimony was offered previously
o BUT the party against whom it is offered now (or a person with motive and interest similar to
his) has had an opportunity to examine the witness before (not necessarily on cross-exam)
exception in a civil action, the partys predecessor in interest (some who had the case
before) had an opportunity and similar motive to examine the witness

Dying Declaration 804(b)(2)

Statement can be offered in ANY CIVIL case, but only HOMICIDE criminal cases
Declarant does not have to be dead, just unavailable

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Statement was made upon belief that death was imminent
Regarding the cause or circumstances of death
Declarant must have PERSONAL knowledge

Statement Against Financial/Criminal Interests 804(b)(3) NOT firmly rooted exception

Policy = Reasonable person in declarants position wouldnt have made statement unless it was true
o BUT CASE: Lilly v. VA 804(3) is not a firmly rooted hearsay exception
Statement against financial interest
o At the time declarant made the statement, it was predominately against his financial interest that
declarant would not have said it unless it was true
o Examples
Assume financial obligations
Discharge a debt (or give away $$)
Statement against criminal interest
o Analysis:
Is it self-serving or does it shift blame? yes, than inherently unreliable
Under what circumstances is the statement Me and Todd did it reliable
Scene of crime highly reliable
During flight still reliable
When hanging out w/ friends still reliable
When arrested statement becomes unreliable b/c declarant has motive to lie
When in custody very unreliable
Day of trial highly reliable (admission at trial)
o 3 Scenarios of against criminal interest:
Statement implicates declarant and is being offered against the too
Post-custodial statements against interest which also implicate someone else are
considered inherently unreliable people in custody are motivated to shift blame
(testimonial statement under Crawford)
Statements against interest but also contain a collateral statement implicating another:
1. CASE: Williamson v. US 804(3) does not reach associated comments, only those
that reach to against-interest statements. I did it part allowed, but not the part with
Johnny
SODDI defense (some other dude did it) are inherently unreliable
offers in a statement by unavailable declarant saying that he did it instead of the
Statements by declarant exonerating the accused
These statement REQUIRE corroboration independent evidence that directly or
circumstancially tends to prove the same points on which the statement is offered
He had nothing to do with it

Family History 804(b)(4)

Statement concerning declarants own birth, adoption, marriage, divorce even though declarant
had no means of acquiring personal knowledge of the matter stated
Statement concerning the death of the declarants family member so intimately related to have
accurate info

Forfeiture by wrongdoing 804(b)(5)

declarant statement is offered against a criminal and that was the one how made the declarant
unavailable by killing, injuring, threatening, or bribing the declarant

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Then, anything the declarant said automatically becomes admissible against the when the was the
one who made the declarant unavailable
Easy way to remember these 5 exceptions:
Take out the Fire by calling the San Fran Fire Dept

6. Catchall Exception 807

aa Doesnt matter if declarant is available or unavailable
aa When to let in catchall hearsay: if it is trustworthy and necessary
Must go to a material, probative issue of the case
There is no other way to prove it (high need)
It must be reliable sufficient indicia of reliability
It would serve the ends of justice
Must provide notice to the other side if you are going to use catchall hearsay exception
7. Constitutional limits on Hearsay:
aa 6th Amend = accused shall enjoy the right to be confronted with a witness against him
aa Hearsay being offered against criminal under an exception
Before Crawford: CASE: Ohio v. Roberts hearsay against criminal must be firmly rooted. If not,
then ct can only look to circumstances surrounding the making of the statement itself to determine its
reliability. (still good law for non-testimonial statements!!)
CASE: Crawford v. Washington testimonial statements of a wife (now unavailable declarant) against
her husband, criminal , were not allowed b/c there was no prior opportunity to cross-exam her.
Current Hearsay analysis in a criminal case when offered against (after Crawford v. Washington)
Is it
testimonial?

Prior opp to
cross-exam if
declarant is
unavailable
now?

Yes

Yes

Admit

No

Not allowed
(Crawford)

No
Firmly rooted
exception?

Yes

Admit

No

court can only consider circumstances

surrounding the making of the statement
itself to determine its reliability

Is it testimonial? Open for interpretation

o Can anticipate that statement will be used in court when you make the statement
o Ex: Statement made in front of the police after Miranda warning and some courts have held that
statements made to 911 operator
Yes, testimonial statement
o Is declarant unavailable now?
Yes was there a prior opportunity to cross-exam the now unavailable declarant ?
Cross-exam is also open for interpretation: deposition is ok, prelim hearing?
No no prior opportunity to cross-exam the declarant statement NOT admissible under
Crawford

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No, not testimonial statement (follows Ohio v. Roberts)

o Is it a firmly rooted hearsay exception (have some indicia or reliability) ?
o Yes firmly rooted if:
Present sense impression no time to reflect
Excited utterance no time to reflect
Then-existing state of mind as proof of future conduct if say going to do something, than
best evidence that you did it
Statement to Dr. for purpose of Dx or Tx
Past Recollection recorded
Business records
Public records
Admissions
Statement of Identifications
Dying Declarations
Anything NOT hearsay by definition (801)
o No not firmly rooted, than the court can only consider circumstances surrounding the making
of the statement itself to determine its reliability
Statements against interest are not firmly rooted nor reliable Lilly v. VA
Catchall exception is not firmly rooted 807 Idaho v. Wright
Hearsay being offered in support of the criminal but against the Govt
CASE: Green v. Georgia Hearsay (does not fit into any exceptions) may be admissible if there this
is the only way the can confront the Govts case only under the circumstances where is facing
death penalty or life sentence.

E. CHARACTER EVIDENCE (jump back to relevant evidence 400 series)

1. Misuse by Jury always have 403 risks
2. 3 main ways to prove character - 405 (see pg 39-40 of notes to see HYPOS)
aa reputation no personal knowledge needed just know their reputation in the community
on cross can allow specific instances of conduct to rebut the basis of reputation, but if witness denies,
than not allowed to prove it up with extrinsic evidence
aa opinion requires personal knowledge foundation
on cross can allow specific instances of conduct to rebut the basis of opinion, but if witness denies,
than not allowed to prove it up with extrinsic evidence
aa specific instances of prior conduct generally disfavored. Used in limited circumstances such as:
only use it if character trait of a or victim is an essential element of a charge, claim, or defense
defamation case
negligent entrustment
negligent hiring
usually used to impeach any character witness (not accused or victim) 608(b)
404(b) purposes MIAMI KOPPS
if the makes his character an issue
habit/routine practice evidence is specific instances of conduct
3. General Rule 404(a)

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aa Definition of character evidence persons disposition or propensity to engage or not engage in a certain
type of conduct
aa Character evidence relevant BUT is not admissible for the purpose of propensity (proving action in
conformity therewith on a particular occasion)
Character evidence, when offered to prove specific behavior is NEVER admissible in CIVIL cases except
under 415 when claimant is seeking damages for sexual assault or child molestation.
aa The exceptions to this rule are 404(a)(1-3) and 404(b) below!!
Can let in propensity evidence (you did it before, you will do it once more)
Accused offers in evidence of himself
Accused offers evidence of victim (reputation/opinion only) but govt can rebut this against
4. Character of Accused (Criminal setting) 404(a)(1)
aa Mercy Rule: accused offers character evidence about herself (peacefulness, law abiding, truthful) (pertinent
trait) through opinion, reputation or examples in which case the prosecution can rebut it by impeaching s
credibility (609(a)(1)) using specific prior acts!!
Usually when exerting a defense defense of entrapment.
says I did the crime b/c my will was overwhelmed by the cop, but I lack predisposition
when puts his propensity/pre-disposition directly at issue, the prosecution may rebut with evidence of
bad character
HYPO: on trial for dishonesty charge. brings in a character witness to testify that he is an honest
person. The govt can rebut that testimony by asking the character witness, did you know that the
used to write bad checks 27 years ago? whatever that character witness answers, the govt has to
accept cant prove it up.
Cost of the Mercy Rule: If accused offers propensity evidence of bad character of a victim, that trait is
auto admissible against the without the doing anything else rule favors the prosecution
aa reputation or opinion witness called on behalf of accused
aa limitation only pertinent character traits evidence is admissible
if charged w/ crime of violence known for being non-violent
if charged w/ crime of dishonesty known for honesty
in any criminal case known as being law-abiding
aa Policy = propensity evidence is improper as a basis for conviction. The inferences are too strong and the jury
may misuse the information.
5. Character of Alleged Victim (Criminal setting) 404(a)(2)
aa Pertinent character trait can be proven by reputation/opinion ONLY
Must be a criminal trial
is entitled to prove a pertinent character trait of victim through character witness that are familiar w/
victims reputation or have an opinion
aa Accused can offer in propensity evidence (reputation/opinion only) of alleged victim as part of his selfdefense defense
Accused offers in evidence that alleged victim is violent to show that the alleged victim was the first
aggressor
BUT whatever trait accused offers against victim, automatically can be used against accused (victim is
rubber and is glue)
aa Use of specific instances of misconduct of victim for s self defense case:
Can NOT be used

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But if the knew of specific instances of aggression, they can be admissible as they tend to show the s
state of mind why he acted the way he did - non hearsay use of effect on the listener
need not know about the specific instances of aggression for this to be admissible.

6. Character of Any Witness (Criminal OR Civil case!!) 404(a)(3)

aa Rule 607 - anyone can impeach a witness who testifies (person who calls the witness or the opposing party)
BUT you cant call a witness only to impeach them just so you can get in otherwise inadmissible evidence
must be some other purpose for calling the witness (Morlang case)
aa Rule 608 credibility of witness can be supported or attacked with opinion or reputation testimony
(extrinsic evidence), but only pertaining to the truthfulness or untruthfulness of the witness only after
character has been attacked
608(b) SPECIFIC INSTANCES OF CONDUCT of the witness can be used to support or attack the
witnesss credibility relating to dishonesty only!!
but has to be uncharged cant be a conviction of a crime
can NOT be proved up w/ extrinsic evidence
aa Rule 609 evidence of prior conviction
Who is on the stand?
If Accused in a criminal case rule favors exclusion when witness is the accused
o Apply the Gordon factors (see below in Impeachment section)
When near or remote
What is criminal history rehabilitated himself since?
How similar is this charge to prior conviction
How impt is for the defenses case for the to testify
How impt for the jury to hear about the prior conviction to assess his credibility
What type of conviction?
Garden variety felony (death or imprisonment of 1 year or more) do 403 balancing test
Crime of dishonesty either felony or misdemeanor no balancing test, auto comes in 403 does
NOT apply!!
o Fraud, perjury, embezzlement, tax evasion. Theft is not a crime of dishonesty but look at
underlying circumstances
Can look at underlying facts to determine if it was predominately a crime of dishonesty!!
o CASE: US v. Lipscomb dist ct has discretion to inquire into underlying circumstances and
background facts of the prior conviction to show that it is a crime of dishonesty.
Juvenile convictions NEVER admissible!! 609(d)
Time Limit NOT admissible if it has been more than 10 years from date of release or date of conviction
(whichever is more recent)
Disallows use of convictions to impeach where formal procedures indicate that the witness has been
rehabilitated (pardoned, annulled, certification) or witness is innocent.
7. Exception 404(b) Propensity Evidence allowed for MIAMI KOPPS purpose civil or criminal cases
aa Evidence of other crimes, wrongs, or acts (need not be charged) is admissible to prove character (not to show
propensity) of any person - must give advance notice to other side - for limited purposes (non-exclusive
list!!): Question ask is, does the other crime or bad act evidence tightly link to some element of the crime?
Motive
Intent entrapment defense
Absence ofmistake or accident
Identity (modus operendi unique and specific signature)

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Knowledge knows what marijuana is
Opportunity
Preparation
Plan
Scheme
aa Standard of Proof of prior acts
US v. Huddleston evidence sufficient that a reasonable jury could find this person committed this act
(less than preponderance of the evidence). Lots of states have a higher standard though
8. Rape Shield Victims Sexual History - Rule of Exclusion 412
aa Prior sex history of alleged victim in a sex assault case (criminal or civil) is NOT admissible as matter of
public policy (regardless if relevant or not)
aa Exceptions sex history of alleged victim CAN be offered in if:
In Criminal case:
To show consent in the sexual activity in camera hearing
To show the source of semen or injury was someone other than the accused in camera hearing
Exclusion would violate the constitutional rights of the - in camera hearing
In a civil case do 403 balancing test
aa What constitutes sexual history?
Prior false accusations of sexual abuse (victim lied) is NOT considered sexual history and can be
admissible
9. Prior Sex Offenses by Accused in Sexual Assault Cases Rule of Admissibility 413
aa In a criminal case, if is accused of an sexual assault offense evidence of s commission of prior sexual
assault offense is admissible
aa RAIN COAT RULE anything you have done in the past can be shown for propensity
10. Habit Routine Practice Rule of Admissibility 406
aa Proof of habit of a person is freely admitted whether it is corroborated or not and regardless of presence of an
eyewitness. The same liberality extends to proof of the routine of an organization.
aa Habit = automatic, systematic, do it w/o thinking about it, routine/ritual
Ex: safe driving is NOT a habit need to show specific habitual evidence to show his is safe
Wears his seatbelt
Drive 5mph under speed limit all the time
More than 2 and less than 20 times is good enough to be a habit
Habit of an org sends out mail at 5pm everyday
11. Subsequent Remedial Measures Rule of Exclusion 407
aa Dont let in the fact that fixed something after the injury occurred to prove that was negligent or that
product was improperly designed
Cant come in to show fault
May come in to show ownership, impeach, control, or contradict feasibility (FICO)
aa Remedial = fixed it voluntarily
aa Subsequent = fixed it after s complaint of injury
aa Measure = any step to make a product or place safe. Ex: firing an employee, creating an employee manual,
changing a design of a product
aa Public Policy = dont want to penalize for making something safer

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aa CASE: Tuer v. McDonald (narrowly construed) 407 favors - evidence not admissible on the issue of
feasibility EXCEPT:
When the s expert/witness speaks in absolutes (there was no safer or better way to do this) issue of
feasibility is raised and subsequent remedial measure is used to impeach a witness why did you fix it if
it was the safest?
12. Offers for settlement Rule of Exclusion 408
aa Evidence of settlement negotiations is NOT admissible to prove liability or invalidity of claim or amount
as long as you can show there was a genuine dispute as to the validity of claim or amount parties were
negotiating those negotiations and anything said in the negotiations are NOT admissible
aa Exception:
the fact that negotiation settlements have occurred can be let in to show to negate a claim of undue delay
can admit proof for the purpose of showing bias or prejudice of a witness
aa Policy = promote candor btw parties to settle claim
13. Offer to pay med expenses Rule of Exclusion 409
aa Good Samaritan rule the actual offer to pay med expenses is NOT admissible to prove liability for the injury
aa BUT any accompanying statements of admissions of fault IS admissible
14. Plea negotiations in a criminal setting Rule of Exclusion 410
aa Plea negotiations btw prosecution and are NOT admissible to prove guilt (includes plea negotiations with
police)
aa EXCEPT you have a meza note agreement with defendant if anything said was a lie during the plea
negotiations, it will come in as evidence at trial
15. Evidence of Liability Insurance Rule of Exclusion 411
aa Evidence that a person was or was not insured against liability is NOT admissible to prove whether the person
acted negligently or otherwise wrongfully
aa BUT can be offered for the purpose of showing ownership or control, or bias/prejudice of a witness (the fact
that witness works for the s insurance co.)
F. COMPETENCY OF WITNESSES (600 series)
1. General Rule 601 - Witness presumed to be competent except otherwise provided in the rules
aa CASE: US v. Lightly rules favor competence (big break from common law)
aa Competent if : has personal knowledge, understands the seriousness of an oath, and has the ability to
communicate
2. Lack of Personal Knowledge 602
aa Witness may not testify to matter unless evidence is introduced sufficient to support a finding that witness has
personal knowledge on the matter. (this can include witnesss own testimony). Subject to Rule 703 opinion
testimony
3. Ability to Take Oath and Understand it 603
aa CASE: US v. Fowler oath requirement is a 2 prong rule
Solemnity of the oath seriousness of it guarantees of reliability
Understand the consequences can be prosecuted for perjury
aa Can testify only after taking an oath can do it in your own culture
4. Different Types of Witnesses:
aa Child Witness to qualify a child witness

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aa
aa

aa

aa

Can child understand the difference btw right and wrong and a truth and a lie
Child has personal knowledge
Child can communicate
Can ask child leading questions in direct exam danger is that child has tendency to want to please adult
Previously Hypnotized Witness
CASE: Rock v. Arkansas AR cts has a per se rule prohibiting hypnotically refreshed testimony by
Lawyer as Witness
If you are representing a party in the case, generally not allowed to be a witness and testify in front of the
same jury. There are exceptions in the book pg 467 (ABA Model Rules)
Jurors as Witness 606
Pre-verdict testimony - Jury cannot give testimony before the jury panel on which he serves 606(a)
Post verdict testimony of juror
CASE: Tanner v. US cannot examine what is going on in jury room, jurors cant testify about it
Exception: jurors can testify on the question of whether extraneous prejudicial info or outside
influence was improperly brought to the jurys attention
Public policy want to free and open candor in the jury deliberation room
Judges as Witness 607
No judge presiding at the trial can testify in that trial as a witness

G. METHODS OF DIRECT/CROSS EXAMINATION

1. Direct Exam witness on stand telling her own story
aa Open ended questions only
Exception: leading questions allowed
when you have a child witness
identify hostile witnesses
witness fails to remember something impt Refresh recollection of witness (612)
o ask witness if recollection is exhausted
o ask witness if looking at some evidence (movie, letter) would refresh their memory
o mark the exhibit and show it to the witness
exhibit is NOT admitted into evidence unless opposing party put it in
dont use atty work-product to refresh recollection!!
o CASE: Baker v. State witness does NOT need to be the author of something to be used to
refresh their memory. (Not the same as Past Recollection Recorded 803(5) where it is adopted
or made by witness)
You can refresh w/ anything song, doesnt have to be true, just something that will trigger
their memory
2. Cross Exam lawyer is telling the jury the story and the witness agrees/disagrees
aa Ask leading questions questions that suggest yes/no answers
aa Matters that you can cross-exam on:
Anything suggested by the direct exam
Issues of credibility, pleadings, and defenses (PDC relevant evidence)
aa CASE: James Julian v. Raytheon Co anything you use to prepare a witness is discoverable. If used to
prepare or refresh a witness no longer privileged under atty work-product
3. Excluding Witnesses from Courtroom 615
aa Witnesses that are testifying are not allowed in the courtroom when other witnesss are testifying wont
shape their testimony

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aa Exception: if the testifying witness is the party or an expert witness
H. IMPEACHMENT OF WITNESS
1. Non-Specific Methods of Impeachment
aa Bias or Interest 608(a)
Bias is ALWAYS relevant, never collateral, can prove up w/ extrinsic evidence
Criminal CASE: US v. Abel if a witness b/c of association (Aryan Brotherhood) or friendship will lie,
the jury is entitled to hear about the relationship
Even w/o proof that witness adopted the tenets of that association there mere membership is
probative of bias
Civil Case show that an expert is paid ask him what % of his salary comes from testifying in this
case show interest in outcome of case.
aa Lack of Sensory or Mental Capacity
Must link witnesss capacity to their ability to perceive (hear or see), recall, or communicate
If witness is drunk or insane is it affecting their ability to perceive, recall, or communicate
Limitation cant harass or embarrass the witness
aa Character for Truth or Veracity 3 ways
Cross-exam on non-conviction misconduct 608(b)
Specific instances of misconduct relating to dishonesty of witness
If evidence comes in solely to discredit witness must take answer
If evidence comes in for any other purpose can prove it up
Cross-exam on conviction 609(a) (see above at Character of Witness)
If prior crime is (a) felony or (b) a misdemeanor involving dishonesty, it is admissible to
impeach.
Who is the witness
What type of conviction
Timing of conviction
Use other character witnesses
2. Specific Methods of Impeachment
aa Prior Inconsistent Statement (UNSWORN statements) - 613
It has to be inconsistent and it does NOT come in for the truth of the matter asserted (different from
801(d)(1)(A) NOT hearsay defn this is when you have a prior inconsistent SWORN statement)
Extrinsic evidence of a prior inconsistent statement is NOT admissible UNLESS the witness is afforded
an opportunity to explain, deny. But dont need to show witness the evidence before you impeach.
Can impeach by using a statement that is in violation of 5th amend
CASE: Harris v. NY generally, if police violated s 5th amend right by questioning after custody
but before he was given his Miranda rights (not coercive statement though) - s statements cannot be
used in prosecution s case in chief. EXCEPT if testifies inconsistently with this otherwise
inadmissible evidence, that his prior inconsistent statements can be used by prosecution to IMPEACH
ONLY.
CASE: Jenkins v. Anderson can use s pre-arrest silence is ok to impeach the witness
CASE: Weir v. Fletcher s post arrest, but pre-Miranda silence is admissible to impeach the
witness if had an opportunity to explain to the police as to why he was acting in self-defense (a
reasonable person would have said something at that time)
Can impeach by using a statement that is in violation of 4th amend

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CASE: United State v. Haven suppressed evidence found as a fruit of an unlawful search and
seizure may be used to impeach s false inconsistent trial testimony, given in response to crossexam. (cannot be used by prosecutor as substantive evidence in its case-in-chief)
aa Contradiction
When you have outside (extrinsic) evidence (not the witnesss prior statements) that contradicts the
witnesss statements on the stand
That outside (extrinsic) evidence must come in for another purpose than just contradiction in order to be
used for impeachment purposes
Other purposes other than just contradiction: bias, ability to perceive, recall, for merits of case
Rule of judicial economy dont want to let in extrinsic evidence just for one purpose of showing
contradiction
Must be an impt inconsistency must go to something material to the case
This is an area of advocacy produce arguments for either side.
3. Appellate Remedies for Criminal
aa Scenario 1: if trial ct allows the prosecution to impeach your client w/ a prior garden variety felony
conviction then you decide NOT to call your client testify
This issue is NOT appeallable if the does NOT testify
aa Scenario 2: lawyer decides to take the sting and allows the to testify, loses the motion in limine about s
prior conviction, atty brings in during direct exam that his client was a prior convict (fronting bad
evidence)
can NOT appeal evidence he introduced himself
aa Scenario 3: lose motion in limine to keep out prior conviction evidence, elects to testify (does NOT front
evidence of prior conviction). On cross, prosecution brings out s prior conviction
CAN appeal trial courts motion in limine if loses the case ONLY appellate remedy
4. Rehab Credibility of a Witness (repair)
aa Rebut impeaching attacks
Bring evidence out on direct if anticipating impeachment chance to present it in a better light
BUT cant repair your witness UNTIL the attack occurs
Exception: Mercy Rule only the witness can have witnesses tell the jury that he is a good person
BEFORE he takes the stand
aa Evidence of good character
Opinion or reputation testimony allowed to support that the character of the witness is truthful
CASE: US v. Medical Therapy Services can bring behavioral syndrome evidence to prove truthfulness
aa Prior Consistent statements
801(d)(1)(B) hearsay exception offered to refute claims of improper motive or undue influence if made
BEFORE the undue influence/motive arose.
Hearsay that does not come in for the truth of the matter asserted just comes in to show witnesss
ability to recall or proof that witness is telling the truth
aa Procedure for rehabilitating
Can only rehab if been impeached
If impeached w/ prior inconsistent statement rehab w/ prior consistent statement
5. Forbidden Method of Impeachment 610
aa Cannot impeach on the basis of belief or opinionson the matter of religion
I. OPINION AND EXPERT TESTIMONY (700 series)
1. Lay Opinion Testimony 701 (see of 54 of notes for hypo)
aa Lay witness can testify in the form of opinions or inferences that

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are rationally based on his perception (personal knowledge) AND

must have some experience of observing this before (has seen a drunk person before)
are helpful to the trier of fact in understanding of witnesss testimony or the determination of a specific
fact in the case cant ask lay witness about hypotheticals, but only facts in this case
picking sides opinion does not help jury
aa Lay witness can NOT testify to scientific or technical evidence or other specialized knowledge 701(c)
liberal standard
2. Expert Witnesses 702 -706
aa Who is an expert?
Someone with specialized knowledge that will assist the trier of fact (lenient standard)
Dont have to have a certain level of education as long as has a suitable training
aa When can experts testify? When testimony is GRREAT!!
Gatekeeper trial ct is gatekeeper before jury hears expert testimony
Reliable reproduces results with use of this methodology see Reliability Standard below
Relevant must fit to the facts of the case
Evidence that will
Assist the
Trier of fact
aa Basis for Expert Testimony 703
Experts can base their testimony on 3 sorts of facts/data
Learns from firsthand observation BEFORE hearing/trial
o Question is whether he has sufficient data to support an opinion
Facts or data that he learns DURING trial/hearing
o Info perceived or make known to expert at trial based on what others expert say and hypos
Outside data gleans before trial by consulting other sources
o Allowed to rely on facts/data reasonably relied upon other experts in the field (broad rule)
o Blocked from disclosing to the jury otherwise inadmissible facts or data underlying the expert
testimony unless it passes the 403 test.
aa Expert Testimony toward ultimate issues - 704
Expert testimony opinion can go to ultimate facts in the case
Exception: prevents expert in a criminal prosecution from stating an opinion that had or lacked the
mental state constituting an element of the crime. (This mens rea is an ultimate issue the trier of fact
decides)
HYPO: psychiatric cant testify as to s requisite mental state at the time was performing the act,
but can testify about whether had a mental disease at the time he did the act.
aa Procedure to Present Expert Testimony - 705
Establish that matter hand would benefit from expert testimony
Lay foundation for the expert: education, experience, familiarity w/ subject
Qualify the witness calling party asks the ct to request to qualify witness as an expert
Bring out testimony 705 allows calling to ask directly for the opinion or inference of the expert w/
prior disclosure of the basis
Cross-exam critical to test the experts opinions challenge methodology, facts not considered,
challenge qualifications of expert, how much getting paid to testify
aa Court-Appointed Experts 706 permits cts to appoint independent experts that will advise parties rarely
used
3. Reliability Standard for Scientific and Other Technical Evidence

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aa Old Test: Frye whether methodology of expert is generally accepted by others in scientific community
(very conservative test not good for novel ideas)
aa New Test: Daubert factors test that judge must consider
Whether theory/ method has been tested
Has it been subjected to peer review and published
Whether methodology has a high error rate
Known standards controlling its operation
Is it generally accepted by scientific community
Novel ideas can come in but limited
aa CASE: Kumho Tires Daubert test applies to any expert testimony not just scientific expert
J. BURDENS OF PROOF AND PRESUMPTIONS
1. Burdens:
aa Production - burden of going forward
State or has the burden of production SOME positive proof (direct or circumstantial) of each
essential element prima facie evidence
can make motion for directed verdict if state does not meet their burden of production no reasonable
jury viewing the evidence in the light most favorable to the non-moving party, could find for the state.
Policy cts dont act on their own need or state to bring them evidence
aa Proof/Persuasion 3 levels
Beyond a reasonable doubt (highest burden)
Criminal cases loss of life, liberty
In IL beyond a reasonable doubt NOT defined
Clear and Convincing evidence
Child custody cases, immigration/naturalization deportation, fraud, involuntary commitment
Preponderance of the evidence more likely than not
Civil cases where the issue is $$
2. Presumptions
aa If you demonstrate a basic fact state/ is entitled to a presumption which lessens their burden of
production (policy decision at law for something we attach a value to)
aa Common Law Presumptions
Presumption of innocence
Presumption that bd of directors have a legitimate business reason for their decisions
Mailbox Rule when you place something in the mailbox w/ appropriate postage, presume that it will be
delivered
Presumed that when you gave something to a bailee and it was returned damage the last bailee who
had the it is one who is liable for the damages (now in the UCC)
Presumption that if your spouse is missing for 7 years they are dead
When a person dies b/c of an accident presumption AGAINST suicide
Criminal case presumed to be sane
Child that is born to married person both are his parents
aa Statutory Presumptions: (legislatively created dont disappear even if counterproof offered)
If work in a coal mine and Dr. takes x-ray of lung and finds black lung disease presumed that the lung
disease was a result of working in the coal mines
Discriminatory presumption McDonnell Douglass Test

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aa What is the effect of counterproof?
Scenario 1: Common law presumption
Is the moving party entitled to the presumption?
Is there any counterproof?
Yes 2 theories
o Lenient approach favor - gets the permissive presumption anyways
o Hard-line approach presumption disappears, no instruction give to jury and now solely a
question of fact
Scenario 2: Statutory presumption
Look to language of statute to determine what happens if there is counterproof
CASE: Burdine
o Gender discrimination case
must demonstrate a prime facie case
has burden of showing legitimate business reason for not promoting her that was not
discriminatory
can show pretense of discrimination
o Use McDonnell Douglass burden shifting test to determine how to deal w/ counterproof
K. JUDICIAL NOTICE
1. shorthand way of proving something that you dont need to prove with evidence not subject to dispute. The
judge takes judicial notice and instructs the jury
2. for determining a preliminary matter, the rule of evidence do NOT apply 104(a) so can take judicial notice
of hearsay, such as the weather report for a given day
3. 2 types of judicial notice
aa Adjudicated Facts - Rule 201 applies
Adjudicated facts = fact-finder/jury usually decides in a case
201(b) = judicial notice of facts that are not subject to reasonable dispute
o generally known within the territorial jurisdiction of trial ct
o capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned
o Usually a readily ascertainable fact:
April 6th 2005 was a Wednesday
Weather on a given day
Location of a particular building
That patella is the knee cap judicial notice of Greys Anatomy
Discretionary - court may take judicial notice whether requested or not 201(c)
Mandatory - court SHALL take judicial notice if requested by a party and supplied w/ necessary info
201(d)
When can judge take judicial notice? 201(f)
General Rule: judge can take judicial notice at any stage of the proceeding: trial or appellate level
Exception: in a criminal case, judge cant judicial notice of an element of a case on appeal
prevents the jury from having the opportunity to disregard the judicial notice. Also, cant relieve
prosecution of its burden
Instructing jury 201(g)
Civil action instruct the jury to accept as conclusive any fact judicially noticed
Criminal action instruct the jury that it MAY, but it is not required to, accept as conclusive fact

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CASE: Govt of the Virgin Islands v. Gereau judicial notice can NOT be based on judges personal
knowledge must be a fact readily known in the community that is a matter not in dispute
aa Legislative facts no FRE
Legislative facts findings which assist the court in determining the law can look outside the legal
realm to find assistance
Facts does NOT have to be UNdisputed for judge to judicial notice of it
Examples:
Muller v. Oregon judge took judicial notice of the Brandeis brief arguing that women cant work
certain hours because of the physical make-up judge took judicial notice of a legal argument based
on social sciences
Brown v. Board of Ed Sup Ct considered the affects of segregation on education on Af.Am
Houser v. State ct looked to facts of whether underage drinking is dangerous for road safety
L. FOUNDATIONAL EVIDENCE & AUTHENTICATION Rule 901
1. Generally 901(a)
aa Requirement of authentication or identification is a condition precedent to admissibility
Authentication is a subset of relevance exhibit must be relevant
Cant use exhibit unless it fairly and accurately represent how it was when it was found
aa This is satisfied by offering evidence sufficient to support a finding that the matter in question is what its
proponents claim
2. Methods of authentication/identification 901(b) and see notes pgs 70-73 for hypo
aa Testimony of witness w/ personal knowledge
witness identifies exhibit and relates to it
it is in the substantially same condition has not been altered or tampered with
chain of custody continuous care, custody and control
aa nonexpert opinion on handwriting (signature) based upon familiarity of this handwriting before
aa comparison by trier of fact or an expert with specimens that have been authenticated
aa distinctive characteristics in conjunction w/ circumstances
aa voice identification (in person or tape recorded) based upon hearing the voice before in circumstances
connecting the voice with the allege speaker
aa telephone conversations
evidence that a call was made to the number assigned to a particular person/business AND
if person circumstances, including self-identification, show the person answering to be the one
called OR
if business the calls was made to a place of business and the conversation related to business
reasonably transacted over the telephone
aa public records or reports
evidence that a writing authorized by law to be recorded or filed in a public office, public record, report,
statement it is from the public office where items of this nature are kept
aa ancient documents - evidence in any form
is in such condition as to create NO suspicion concerning authenticity
was in a place where, if authentic, would likely be AND
has been in existence 20 years or more at the time it is offered
aa Process or System

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3.

4.

5.

6.

7.
8.

Evidence describing a process system used (DNA matching system) showing that the process produces an
accurate system
aa Methods provided by other statute or rule
aa Authentication can be accomplished by stipulation of parties
Tangible Objects as Exhibits
aa 2 types of tangible exhibits
fungible lots of it that dont make it unique (cocaine, widgets)
unique need to mark the fungible object to make it unique
aa US v. Johnson even when witness gives testimony that he was pretty sure this was the ax that was used,
enough authentication to let the jury weigh reasonable fact-finder could find it authentic
aa US v. Howard Anis dont need every single person in the chain of custody to testify as a witness if it is
fairly reasonable that the evidence was not tampered with.
Writings as Exhibits
aa Follow RAH
Relevance
Authenticity
Hearsay exception
aa Can authenticate who wrote the writing w/ circumstantial evidence who signed it and where it was found
(US v. Bagaric)
aa Authenticating signatures
Compel opposing partys signature and have an expert analyze it (50% error rate)
Have a lay witness who if familiar w/ the signature testify about it
Show it to the trier of fact and let them compare the signatures
Bring in an eyewitness who saw sign the document
Admission by party opponent
aa Business record exhibits
Mark the exhibit
Show opposing counsel the exhibit
Approach the judge
Examine the witness: is it relevant, is it in same/similar condition/is it kept in ordinary course of business
Photographs as exhibits
aa Fair and accurate depiction of what is being shown
Has it been altered? Does it accurately show the condition on the date in question?
aa Generally, it does NOT matter who took the picture unless you have evidence that it was altered
aa Any witness can identify a phone if they have personal knowledge of what it displays
Emails as exhibits
aa Who is the email from? Look at header
aa Establish whose it account it is
aa Show method of how email generated machine accurately calibrated and it was not altered by the time it
was sent call the internet provide who services the email acct as a witness
Computer Generated Record as Exhibit (print out)
aa Call witness from IT dept can testify as to how computer maintained and whether computer was working
fine when record was generated
Tape Recordings as Exhibit
aa Show instruments were working correctly
aa Make sure recording itself is accurate cant have MATERIAL omissions

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aa Would it be unfair or misleading to play this tap to the jury
aa Call witness who can testify to who was speaking like one of the speakers themselves
9. Telephone Conversations as Exhibit
aa See above under 901(b)
aa Reply Doctrine if someone replies to a communication you made (called and left a voicemail at a certain
#), that makes the original phone call authentic
10. Self-Authentication Exhibits Rule 902
aa Exhibits that do NOT require extrinsic evidence of authenticity as a condition precedent to admissibility
aa BUT self-authentication does NOT bar counterproof by opponents
aa Examples of Self-Authentication
Domestic public documents under seal
Official marking certification by public agent
Ex: birth certificate, recorded deed, death record, felony conviction from clerks office, certified copy
of transcript from court reporter
Official publications issued by public author
Newspapers and periodicals
Trade inscriptions indicates ownership tags, labels
M. BEST EVIDENCE RULE REQUIREMENT OF AN ORIGINAL
1. When Best Evidence Doctrine applies
aa Writing/picture/ recording is legally operative or dispositive controls terms btw parties
aa A lay witness on the stand who has no personal knowledge only basis for his knowledge is a doc need to
produce that doc
aa DOES NOT APPLY when:
the fact can be proven independent of the writing (dont need weather report)
writing is collateral
summaries of voluminous records are ok
do not need records of public docs
carbon copies are considered originals
duplicates are admissible in fed court unless authenticity is challenged or unfair
2. Requirement of an original exhibit 1002
aa writing/ recording/ photograph / x-ray and there is genuine dispute as to authenticity
aa are the contents material to this case
central issue in this case get original
ex: to prove defamation need original defamatory letter
if sued for violation of lease original of lease
suit about whether stole my music (intellectual property) need to be original recording of music
if not central can prove w/o original
Duplicates admissible unless there is a genuine issue as to content
aa Produce the original or explain its absence
How do you prove the letter put the original in to evidence
Original from a computer just print it out
Original = what the parties are fighting over (document at dispute) depends on purpose of party
offering the doc/circumstance. The original could be a photocopy of the adoption records
If excuse of its absence is accepted than can prove with secondary evidence

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Oral testimony or photocopy are all secondary proof want to use the most persuasive evidence
3. Admissibility of Duplicate 1003
aa Generally, you can admit a duplicate
aa Exception: when you need the original doc
There is a genuine dispute as to the content of the original letter/photo/recording
It would be unfair to admit the duplicate in lieu of the original
4. When original is NOT required and other evidence of contents of the writing/recording etc is admissible:
aa Original is lost/destroyed
CAN NOT be a BAD FAITH destruction!!
If document was shredded, need to show the document destruction protocol at your business
aa Original not obtainable through judicial process (service of subpeona etc)
aa Original in possession of opponent
aa Writing/recording/photo is collateral not central issue
US v. Duffy writing on the t-shirt was not material to case prove it by admission of police officers
testimony of what he saw on the t-shirt. Writing on t-shirt = inscribed chattel
5. Factors to consider when providing secondary proof
aa Relative importance of communicative content
aa Simplicity or complexity of the content
aa Strength of the proffered evidence
aa Breadth of the margin of error
aa Present/absence of a dispute as to content
aa Ease/difficulty of producing the object itself
aa Reasons why the proponent of other evidence of content does not have or offer the object itself

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Hearsay - Quick Reference: WHAT IS IT COMING IN FOR?!?! (TOMA or something else?!?!)

Hearsay defn. - 801 out of court statement (verbal, written, conduct) offered for the truth of the matter asserted
NOT Hearsay b/c of non-hearsay purpose, inherently trustworthy, etc.
1. Absence of a complaint to prove the non-occurrence of an event
2. Declarant = person, not machine/animals
3. Offered for impeachment purpose only
4. Offered for the LIE of the matter asserted (LOMA)
5. Effect on the Listener or Reader why did they act?? Put on notice??? act reasonably??
6. Verbal Act or Verbal Part of an Act (ambiguous statement and act give it context)
7. Verbal Object (label, marquee [sometimes], license plate) used mainly for identification purposes
8. Verbal Marker in-court testimony of 2 or more declarants (or 1 declarant an a exhibit) marking a time,
place, event, identify a person
9. Circumstantial evidence offered for Declarants State of Mind (evidence of memory/belief) Sofers will
10. Circumstantial Evidence of declarants Special Knowledge to prove she was somewhere paper mache man
11. Non-Assertive Mix Statements &Conduct: declarant did not intend the assertion gambling ring call
12. Implied assertions (assertive conduct) action or actions with assertion nurses wearing biohazard suits
NOT Hearsay (801) When declarant is AVAILABLE ONLY
1. Prior INCONSISTENT Statement made under OATH in a prior proceeding 801(d)(1)(A)
2. Prior CONSISTENT Statement offered to rebut improper motive/undue influence 801 (d)(1)(B)
3. Prior statement of IDENTIFICATION made upon perceiving 801(d)(1)(C)
NOT Hearsay (801) Admissions by party opponent (this does NOT mean just CONFESSIONS!!)
1. Personal 801(d)(2)(A)
2. Adoptive 801(d)(2)(B)
3. Authorized spokesperson 801(d)(2)(C)
4. Employee or agent 801(d)(2)(D)
5. Co-conspirator 801(d)(2)(E)
Hearsay EXCEPTION - Doesnt matter if declarant available or not non-exclusive list!!
1. Present Sense Impression play by play calmly and quietly 803(1)
2. Excited utterance Startling Event Oh my God!!! 803(2)
3. Then existing state of mind to prove future conduct, but where there is a WILL there is a way 803(3)
4. Statement for Purposes of Medical Diagnosis or Treatment by patient to dr for medical purposes 803(4)
5. Past Recollection Recorded 803(5)
6. Business Record kept in ordinary course of business 803(6)
7. Absence of Regularly Kept Business Record to prove nonoccurrence of an event 803(7)
8. Public Records and Reports 803(8) [absence of public record/entry 803(10)]
9. Learned Treatises 803(18)
10. Reputation as to Character statements 803(21)
11. Certified cpys previous felony convictions not against criminal unless for impeachment purpose 803(22)
Hearsay EXCEPTION Declarant UNAVAILABLE (PRISM) - 804
1. Former Testimony 804(b)(1)
2. Dying declaration about cause of imminent death 804(b)(2)
3. Statement Against Financial/Criminal Interests (not firmly rooted) 804(b)(3)
4. Family History 803(b)(4)
5. Forfeiture by wrongdoing made the declarant unavailable 803(b)(6)
Constitutional Limits 6th Amend (criminal cases)
1. Is it testimonial? Yes prior opp to cross-exam unavailable declarant? Yes admit
2. NOT testimonial firmly rooted ? yes admit
3. NOT firmly rooted ct can only consider circumstances surrounding the making of the statement itself

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Evidence: Let it In or Keep it Out?
LET IT IN (ADMISSIBLE)
Relevant under 401 and passes 403
- tendency to make the existence of a fact that is a matter
of consequence more or less probable
- PDC pleadings, defense, credibility (bias) is ALWAYS
relevant
Not hearsay or meets hearsay exception
- Statement used for other purposes not hearsay
- not hearsay under defn = (prior inconsistent statement,
consistent statement, identification) or (admissions by a
party opponent)
- meets a hearsay exception under 803 (unrestricted) and
804 (declarant unavailable)
Reputation and opinion evidence to show propensity in
criminal cases
Specific instances of conduct allowed:
- MIAMI KOPPS purpose
- put character directly at issue
- character trait is essential element of the charge
- habit or routine practice
- used to impeach any witness under 608(b)
Impeachment by prior conviction - 609
- garden variety felony for any witness (not accused)
allowed in subject to 403 (but favors admissibility)
- Evidence of prior conviction for crime of dishonesty
does not need to be felony. No balancing TEST!! For
accused and for any other witness
- Accused Prior Sex offenses and hx allowed - 413
- Victims sex offenses allowed (in camera) to show
consent, source of semen, if violates Const rights, or if
victim has made prior false accusations of sex abuse.
Habits and Routine practice - 406
When s expert speaks in absolutes (no safer way) -> issue
of feasibility is raised and subsequent remedial measure can
be used to impeach a witness why did you fix it if it was
the safest?
Can admit for proof to show bias or prejudice of witness or
that fact that negotiations occurred to negate a claim of
undue delay
Accompanying statements of admissions are admissible
Except when have an agreement w/ that if they lied
during plea negotiations will come in as evidence
Can be used for purpose of showing ownership or control,
bias prejudice of witness
Methods of impeachment allowed:

KEEP IT OUT (EXCLUSION)

Irrelevant under 401 or does not pass 403
- too far in chain of inferences
- evidence has to do with other place, time, event
- doesnt pass DAB balancing test of 403 (but FAVORS
admissibility
Hearsay 802 out of court statement offered to prove
the truth of the matter.
- It is assertive conduct
- does not meet a hearsay exception
- too prejudicial to let it in - 403
- 6th Amend bar testimonial or not firmly rooted
Generally, Specific instances of conduct NOT allowed to
show propensity 403 risk
Under 608(b) specific instances of conduct NOT allowed if
does NOT go to the truthfulness of witness

Can not impeach with prior conviction if:

- Cant allow evidence of prior conviction for garden
variety felony of accused unless passes Gordon test
- conviction/ released more than 10 years ago
- juvenile conviction not allowed
Victims sexual history not allowed - 412

But not just blanket characteristics like she is a safe

driver must show specific habits!!
Subsequent remedial measures 407 to prove was
negligent
Offers for settlement 408 to prove liability or invalidity
of claim/defense
Offer to pay med expenses 409 to prove liability
Plea negotiations in a criminal setting - 410
Evidence of liability insurance to prove whether the
person acted negligently - 411
- cant harass or embarrass witness

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LET IT IN (ADMISSIBLE)
- bias or interest or association prove it up
- lack of sensory/mental capacity
- character for truth
- prior inconsistent unsworn statement can even impeach
with statements that would be otherwise be inadmissible
(5th amend or 4th amend bar on these statements), pre-arrest
silence
- extrinsic evidence that contradicts the witnesss
statements must come in for some other purpose other
than just to contradict
Methods of Rehab allowed:
- repair only after attack occurred (but can tell the jury he
is a good person BEFORE he is attacked- Mercy Rule)
- opinion and reputation testimony of good character as
truthful
- prior consistent statements that are hearsay (doesnt fit
into the 801(d)(1)(B) exception) just come in to prove that
witness is telling the truth (not for truth of assertion)
Lay opinion testimony allowed - 701
- personal knowledge w/ experience of observing it before
- helpful to trier of fact
Expert Testimony allowed when 702-706 (GRREAT!!)
- reliable passes Daubert test tested, peer review,
published, error rate, known standards, generally accepted
- relevant
-evidence that will assist the trier of fact
- basis of testimony can be on what they learned before
trial, during trial (hypos), and outside data
- can go to ultimate issues in the case generally
Presumption allowed:
- common law presumption w/ no counterproof
- statutory presumption unless otherwise specified in statute
Judicial Notice allowed:
- adjudicated facts when it is a readily ascertainable fact
and not subject to reasonable dispute (201). Conclusive in
civil but jury gets to decide in criminal
- legislative fact and matter not be undisputed
Privileges NOT allowed: let evidence in (privileges
construed narrowly)
- atty-client physical evidence unless last link, crimefraud btw atty-client, not primarily legal advice,
communication made in front of known 3rd party
- psychotherapist Tarasoff (imminent threat but only that
info), patient puts mental state at issue
- spousal for action/communication AFTER marriage,
common criminal enterprise, child victim/spouse , sham
marriage, either spouse victim, divorce proceeding

KEEP IT OUT (EXCLUSION)

- cant admit extrinsic evidence of contradiction just to
bring it in for the purpose of contradiction
- can never impeach on basis of religious beliefs - 610

- cannot rehab if never impeached (exception Mercy Rule)

- cannot testify about scientific or technical evidence

701(c) liberal standard
- cannot go to ultimate issues such as the requisite mental
state of a in a criminal trial if that is an element of the
charge that prosecution has to prove

- Cannot allow common law presumption if there is

counterproof (but there are 2 approaches since fed rules
have not spoken on this)
- statutory presumption - based on statute
- judicial notice adjudicated fact not allowed for an element
of a criminal case during the appellate level

Privileges Allowed: - keep it out

- atty client communications when client is seeking
advice on a legal matter with atty or attys agent and it is
not made in the public square
- psychotherapist conversations, therapy notes, intake
interview, lasts beyond death
- spousal adverse testimonial in criminal case, for
testifying spouse, before and during valid marriage,
communications and action. Confidential communication in
civil/criminal, either spouse, private, during valid marriage

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