EVIDENCE

If given a writing on an exam to determine if it is admissible it needs to make it through the following 4
hoops: (1) Relevant; (2) Authentication; (3) Best Evidence Doctrine; and (4) Hearsay.

A. General Background Information

1. Purposes of Rules of Evidence
a. Lack of trust in juries (ensure accurate factfinding)
b. Ensure efficiency in the system (reasonable speed)
c. Set substantive policies intrinsic to the litigation
i. Achieves goals of legal system in order to affect outcomes
d. Set extrinsic goals (ex: spousal privilege affects relationships outside the law)
2. Federal Rules of Evidence
a. First attempt that was successful in codifying the rules of evidence
b. Successful because they were accessible
3. Purposes of voir dire
a. Find out whether you can strike any jurors for cause
b. Get information to use in peremptory challenges
c. Try and develop a rapport with jury
4. Audiences to be Aware Of
a. Judge & Jury
b. Record (on appeal)
i. Pleadings
ii. Filed documents
iii. Record of the proceedings
iv. Exhibits
v. Docket Entries
5. Pitfalls to Avoid
a. Don’t echo yourself (repeat what has just been said)
b. Don’t overlap (talk over another person)
c. Numbers, names, and big words must be clarified
d. Don’t pantomime, use gestures, etc.
e. Unambiguously refer to exhibits
f. Going off the record
i. You should explicitly agree with opposing counsel to go off the record;
afterward, tell the reporter that you’re back on the record

B. Types of Evidence
1. Direct Examination
a. Three Categories of Questions
i. Background facts (humanizes the witness)
ii. Foundational Questions (gives credibility)
iii. Substantive questions
b. No leading questions (FRE 611(c))
i. Questions that suggest the answer
ii. Rationale:
a. Information should come from the witness
b. More credibility if the testimony comes from the witness herself
2. Cross Examination
a. Reasons for Cross Examination
i. Impeach (challenge a witness’ statement)
ii. Limiting (reduce scope or impact of testimony from direct)
iii. Hitchhiking (extract information that is helpful to your case)
b. Use leading questions
i. Relationship is adversarial
ii. Witness is necessarily hostile

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 iii. Attempts to stimulate or awaken witness’ memory
3. Scope of Direct Rule (FRE 611(b))
a. Cross examination is limited to matters addressed on direct
i. The order of presentation is selected through direct examination, so this helps
control the order
b. PROBLEM 1A: Car accident. One party sues the other. The plaintiff’s passenger is
called as a witness, testifying that the defendant ran a red light.
i. On Cross:
a. Credibility of a witness can always be addressed
b. Subject matter of direct that is permissible includes:
i. Majority view: points raised (ex: color of the light)
ii. Minority view: transaction described (what happened at light)
iii. Rare view: issue affected (ex: defendant’s negligence)
1. Few judges will ever go with this
c. Testimony that interrupts the flow and is about the event prior to the
transaction
c. Interpretations
i. Points Raised
a. Narrow reading
b. Most Common
c. Standard: Color of the Light
ii. Transaction Described
a. More broad reading
b. Commonly followed
c. Standard: what occurred at the transaction
iii. Issue Affected
a. Most broad reading
b. Rarely followed
c. Standard: does it directly go to the legal issues in the case
4. Real Evidence & Demonstrative Evidence
a. Real Evidence
i. Evidence that was directly involved in the case (ex: the gun used to shoot a
decedent)
b. Demonstrative Evidence
i. Evidence that helps demonstrate or illustrate the point, but played no role
in the transaction (ex: diagram of intersection)

C. Objections
1. NOTE: STEPS IN OBJECTING
a. Object  State the grounds as to why you are objecting/why the evidence is
admissible  state the rule
2. Rule 103: Rulings on Evidence
a. (a) Preserving a Claim of Error
i. A party may claim error in a ruling to admit or exclude evidence only if it
affects a substantial right of a party and:
a. (1) if the court’s ruling admits the evidence, a party may either (i)
timely object to the ruling or (ii) move to strike and state the
specific grounds [unless apparent from the context]
b. (2) if the court’s ruling excludes the evidence, a party may submit
an offer of proof, [unless apparent from the context]
i. Four ways to offer proof:
1. Not in the presence of the jury
2. Written statement by examining counsel
3. Statement made by counsel
4. Written statement of witness testimony signed by the
witness and offered as part of the record

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 b. (b) Needing not to renew an Objection or Offer of Proof
i. Once a court makes a definitive ruling on the record, a party need not to object
to preserve the claim of error on appeal
c. (c) Court’s Statement of a Ruling: Directing an Offer of Proof
i. The judge is at liberty to do anything with the objection
d. (d) Preventing the Jury from hearing inadmissible evidence
i. The jury should be shielded by inadmissible evidence
e. (e) Taking Notice of Plain Error
i. Court of appeals may find plain error and still reverse even if the objection is not
on the record
3. Background
a. Major Purposes of Objections
i. Help the judge make good decisions
a. Points out flaws
ii. Help opponent figure out what must be done to get evidence in
a. Effectively, helps get to the right answer
b. Major Aspects
i. Must be timely (immediate objections during testimony)
ii. Must be specific; must state grounds (state rule number if possible)
4. Formal Objections
a. Asked & Answered
i. We’ve already gone over that point
b. Assumes facts not in evidence
i. Question assumes evidence that is not in the record
c. Argumentative
i. Attorney is badgering or trying to beat up the witness
d. Compound
i. Question apparently seeks more than one answer, or suggests alternative
responses, while being framed in a way that invites a ‘yes’ or ‘no’ response
e. Leading
i. Suggesting the answer
f. Misleading
i. Question misstates the evidence
g. Speculation or conjecture
i. Witnesses are only to say what they know, not what they think or guess
h. Ambiguous, uncertain, and unintelligible
i. Question makes no sense
i. Nonresponsive to the question
i. Witness dodges the question

D. Admission/Exclusion
1. Motion in Limine
a. This motion is done before the trial
b. It tends to take everything out of context because it takes the evidence
c. Very important to determining whether past crimes (in the criminal context) will be
allowed in and therefore whether the client should testify.
d. Problem: Must figure out whether one needs to object once more within the trial, to
preserve the objection
e. FRE 103(a)(2): If the judge has made a definitive ruling, objections are preserved
2. Offer of Proof
a. The counterpart to the objection
b. Shows exactly what evidence you would out in if you are allowed to do so. If you don’t
get this on the record, you do not have the issue preserved for appeal.
3. Conditional Relevance (FRE 104(a)-(b))
a. Involves judge’s role in screening evidence

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 i. FRE 104(a) – judge has final say on whether evidence is admissible,
privilege exists, or if witness is qualified
ii. FRE 104(b) – Conditional Relevance
a. Instead of deciding whether evidence is relevant to the point, the
judge merely screens the evidence to see if it is plausible, and then
it is admitted to the jury to decide if it is relevant or not
b. Judge plays screening role
i. Authentication is the most common use of FRE 104(b)
1. Jury Authenticates

E. Consequences of Evidential Error

1. Reasons for Error
a. Rules are hard to apply
b. Some are vague (relevance, hearsay, etc.)
c. Parties must live with mistakes of counsel
2. Managing Error
a. Divide Error into Categories
i. Reversible error
a. Error that probably affected the result
b. Must have been preserved for appeal through an objection
ii. Harmless error
a. Probably did not affect the judgment
iii. Plain error
a. Mistake that warrants relief on appeal even though appellant failed to
take the steps usually necessary to preserve its rights
i. Incredibly rare
iv. Constitutional error
a. Mistake in admitting evidence for the prosecution that should have
been excluded under the Constitution
i. ONLY used in criminal cases
ii. Usually evidence admitted for the prosecutor that should not
have been admitted
iii. 4th & 5th Amendment
b. Three Doctrines for deciding between Reversible & Harmless Error [the following
turns reversible errors into harmless errors]
i. Cumulative evidence
a. Though a judge erred in admitting or excluding evidence, there is so
much evidence on that point that it didn’t actually make a difference
ii. Curative Instruction
a. Jury instruction judge gives to fix error
iii. Overwhelming evidence
a. Mistake or not, the other evidence is so strong (not necessarily on one
point) that the mistake is immaterial

F. Relevance
1. Overarching Analysis:
a. First, determine simple relevance
b. Next, determine pragmatic relevance under Rule 403 to see if the evidence can actually
come in
i. Balancing test: probative value v. dangers & considerations
a. Probative value is small if the fact is not in dispute
b. If there’s an alternative to a given piece of evidence, its probative value
is reduced
c. In order to exclude, probative value must be substantially outweighed
by the dangers and/or considerations
2. General Provisions

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 a. FRE 401: Relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequences to the determination of the action
more probable or less probable than it would be without the evidence
b. FRE 402: Relevant evidence is admissible; irrelevant evidence is inadmissible
c. FRE 403: Some relevant evidence may be excluded
i. Simple Relevance: it just is relevant
a. Case Example: Old Chief v. United States (evidence that a person
being charged with being a felon in possession of a firearm was a felon
was simply relevant because the evidence was directly related
(although not in dispute) and because the party in charge can present
evidence as he or she sees fit (narrative richness – hearing full details
of what happened allows a jury to be willing to make a decision that it
has to make)
ii. Pragmatic relevance: it is relevant, but may be kept out
d. Relevance is a relational concept
3. Simple Relevance – FRE 401 & 402
a. Standard for Relevant Evidence: evidence that has any tendency to make a fact
more or less probable
i. Common Law: Relevant & Material
a. Relevant if it tends to establish the point for which it’s offered (makes
the fact more or less likely)
b. Material if the fact has some legal significance
b. Direct v. Circumstantial
i. Direct
a. Evidence that, if believed, necessarily establishes the point for which
it’s offered
ii. Circumstantial
a. Evidence, even if fully credited, may nevertheless fail to support the
point in question, simply because and alternative explanation seems as
probable or more so
i. If a jury distrusts a witness who is offering direct evidence,
circumstantial evidence can actually be stronger
c. Evidential Hypothesis
i. Fighting for a way to get evidence in that makes the case stronger
a. Contains one or more general premises
b. Contains at least one specific premise linking the proof to the general
premise
c. Finally, sets out the conclusion toward which the evidence points
ii. Essentially a chain of inferences
a. Example:
i. People who get appropriately dressed and enter buildings,
staying there for some time, usually work there
ii. Professor does these things
iii. Therefore, professor works there
iii. Reasoning
a. Deductive Reasoning
i. If a major premise is true, the minor premise necessarily leads
to the conclusion
b. Inductive Reasoning
i. Conclusion doesn’t follow automatically from the premises
d. Four Standards for Relevance
i. More probably true
a. Each piece of evidence has to meet the preponderance standard
i. NOT USED because it excludes too much
ii. More probable than any other
a. Sliding scale depending on when evidence is admitted

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 iii. More than minimally probative
a. NOT USED because it’s vague
iv. FRE 401: More probable than it would be without the evidence
e. Specific Evidence Examples
i. Evidence of Flight
a. Generally, evidence of flight is relevant and admissible
b. The foundation needed to get flight in requires it to be relevant:
i. Behavior of flight must be equivalent to flight (actual flight)
ii. This flight must come from consciousness of guilt
iii. Consciousness of guilt must be for this crime
ii. Evidence of Other Similar Instances
a. Circumstances must be shown to have been substantially similar
i. Details, circumstances, etc. must be shown by the profferor to
be similar; opponent can counter with an opposite showing
under substantially similar circumstances
4. Pragmatic Relevance – FRE 403
a. FRE 401 giveth but FRE 403 taketh away
b. Relevant evidence may be excluded if its probative value is substantially
outweighed by:
i. the danger of unfair prejudice
ii. confusion of the issues,
iii. misleading the jury,
iv. by considerations of undue delay,
v. waste of time,
vi. or needless presentation of cumulative evidence
5. 2-Step Relevance Analysis
a. Simple (logical) Relevance – FRE 401 & 402
i. IF NOT relevant, evidence is out and you’re done
ii. IF it IS relevant, then do 403 analysis
b. Pragmatic Relevance – FRE 403
i. 2 Categories [Look at ALL evidence when making determinations of probative
value and prejudice]
a. Dangers – fairness issue
i. Unfair prejudice (most important danger)
ii. Confusion of issues
iii. Misleading jury
b. Considerations – efficiency issues
i. Undue delay
ii. Waste of time
iii. Needless or cumulative evidence
c. Biased towards including evidence b/c the evidence must be
substantially outweighed by the harm to be excluded
d. Weighing Probative Value vs. Danger/Consideration
e. Probative Value:
i. If the fact trying to be proved is NOT in dispute, that will
significantly reduce the probative value of the evidence
ii. Always compare evidence to alternative means of proof that
are available
iii. If alternative means are available, the probative value is
significantly diminished
6. Limited Admissibility – FRE 105
a. Rule 105: Limiting Evidence That Is Not Admissible Against Other Parties or
Other Purposes
i. If the court admits evidence that is admissible against one party and is not
admissible against another party, the court, on a timely request, must limit
the evidence to its proper scope and instruct the jury accordingly

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 ii. Limiting Instruction:
a. Evidence used for a limited purpose
b. Two situations in which this works
i. Evidence is relevant and admissible on one point, but not on another
ii. Evidence is relevant and admissible for one party, but not for the other
c. Three options
i. Admit
ii. Exclude
iii. Admit with limiting instruction
d. Example: Two women get into a small accident. One proposes that “whoever screwed
up, her insurance pays. I’m sure my insurance will pay for what happened to your car.”
This is an admission of guilt, but the admission is tied with evidence of insurance,
which is inadmissible under FRE 411. The likely outcome is that the evidence comes
in notwithstanding FRE 411. To prevent any problems, it would probably have to be
accompanied by a limiting instruction on insurance.
i. Rule 411: Liability Insurance
a. Evidence that a person was or was not insured against liability is not
admissible to prove whether a person acted negligently or otherwise
wrongfully. But the court may admit the evidence for another purpose
such as proving:
i. Witness bias
ii. Agency
iii. Control; or
iv. Ownership
b. NOTE: Cannot use insurance in a civil case
7. Completeness Doctrine – FRE 106
a. Comes up in the context of a written document
b. If counsel believes a misleading portrait is being drawn by a particular document,
he can get other writings or recordings in at that time that should be considered
contemporaneously with it [in fairness]
c. Two ways to view this
i. Rule of Interruption
a. FRE 106 allows parts of a report to be read at the same time the
other parts are coming out
ii. Rebuttal Theory
a. You are allowed to bring this up on cross or re-call the witnesses as
adverse witnesses on direct
d. NOTE: Application to Hearsay
i. In some situations, although evidence is hearsay, it may be admitted because
excluding it will tend to mislead the jury
a. Example: During a navy training exercise where a plane lands and
immediately takes off, there was a crash that killed a flight commander
and a trainee. The commander’s husband wrote a report concluding that
power rollback caused the failure, but other points in the report indicate
that the commander’s error may have been the cause. The hearsay rule
precludes the conclusion from being read, but if it isn’t read, the jury
will likely be misled.
8. Conditional Relevancy
a. FRE 104(a) – the judge usually makes the call on admissibility, but the jury
weighs the evidence
b. FRE 104(b) – Conditional Relevance
i. Admissibility conditioned on a matter of fact (as long as there’s sufficient
evidence)
ii. Example: Document, one party says forged. Judge must see if there’s enough
evidence for jury to determine whether it’s forged or not.
a. If jury thinks it’s forged, it won’t put any weight on it (no prejudice)

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 b. Contra: a coerced confession would prejudice the jury
c. Deciding Between 104(a) and (b)
i. Typical standard for admission: Preponderance
a. Some states use clear and convincing, but most use preponderance
ii. Juries should decide admissibility when it’s closely related to the merits and
the matters are of common familiarity to jurors
iii. Judges should decide admissibility when it’s distant on the merits and/or
highly technical
iv. Things that are almost always FRE 104(b)
a. Authentication
b. Whether a witness has personal knowledge
c. If a warning is spoken, did someone hear it?
d. If a letter is written, did the purported author actually write or
authorize it?

G. Probabilistic Proof
1. People v. Collins (where a prosecution witness –a mathematician- made up factors and presented
probabilities for them, the defendant was improperly convicted)
a. Problems with the evidence presented in Collins:
i. No foundation
ii. No proof of independence
a. “Product Rule” requires mutually independent events. There was no
evidence that the factors were independent here
2. Problems with mathematical proof, generally
a. Just proves possibility of a theoretical existence; it doesn’t prove anything about the
people or things directly at issue in a given case
b. Distracts the jury
i. Bypasses factfinding purpose of jury by assuming facts (usurps the role of the
jury)
ii. Undermines the “beyond a reasonable doubt standard”
3. Rule: Mathematical proof is generally not allowed except in 2 cases:
a. DNA Evidence
b. Paternity Evidence
4. NOTE: Statistics
a. We don’t use naked statistics, without more, to determine actual fault

H. Authentication—901 & 902

1. FRE 901(a) – Must produce evidence sufficient to support a finding that the matter in
question is what its proponent claims it is
2. Steps to Authenticate Something
a. Get the court reporter to mark the exhibit for identification
b. Have it authenticated by the Witness
c. Offer it into evidence
d. As needed, let opponent see it
e. Give opponent a chance to object
f. If the court wants to see it, let them see it
g. Ruling on admissibility
h. Publish it to the jury
3. NOTE: Authentication in Civil Cases
a. Usually easier to authenticate in a civil case, particularly due to the automatic
disclosure process (objections tend to have to come before trial; if not made, often
waived)
4. Tangible Objects
a. Untied States v. Johnson (trial court admitted into evidence an ax allegedly used in an
attempted ax murder; affirmed because all the judge had to do under FRE 104(b) was
conclude that a reasonable jury could determine that it was the ax)

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 b. Chain of Custody Rule
i. Each link generally must be followed, ideally accounting for every second
since a good was seized
a. This is usually more important with fungible goods because their
identities are not immediately apparent
ii. Missing Link in the Chain
a. A missing link in a chain is generally okay for admissibility
purposes unless that missing person is significant (e.g. a person
who tested a substance to determine that it was cocaine who is
absent is probably not okay)
c. Writings
i. FRE 901(b)(4): Appearance, contents, substance, internal patterns, or other
distinct characteristics, taken in conjunction with circumstances, can be
used to authenticate a letter
ii. Examples:
a. Letterhead
b. Consistent spelling errors
c. The way a person writes
5. Examples of ways by which something can be authenticated (FRE 901(b))
a. Testimony by a witness with knowledge
i. Testimony that a matter is what it is claimed to be
b. Nonexpert opinion on handwriting
i. Signature on a contract, etc.
c. Comparison by trier or expert witness
i. Give a contract to a jury along with a separately authenticated writing
ii. Get handwriting analysis expert
d. Distinctive Characteristics
i. Appearance, contents, etc.
e. Voice Identification
i. Typically, the identifying person must have heard the other’s voice at least once
before
f. Telephone Conversations
i. Identification by self-identification of a caller is usually insufficient for this
ii. Alternatively, phone records are generally sufficient
iii. Phone records can be used as well (this applies to IP Addresses also)
g. Public Records or Reports
i. For example, a contract can be found recorded in a public office somewhere
h. Ancient documents
i. Those documents at least 20 years old
i. Process or system
i. Evidence describing a process or system used to produce a result and showing
that the process or system produces an accurate result
6. Self-Authenticating Exhibits
a. FRE 902: Self-authenticating exhibits that require no extrinsic evidence
i. Official publications, newspapers, etc.
a. Sealed and Signed/Signed and Certified
ii. Trade inscriptions and the like (e.g. Coke product with Coke label)
b. Self-authentication doesn’t bar counterproof against the evidence
7. Demonstrative Evidence
a. Authentication is different from real evidence; demonstrative must be a fair and
accurate description of the thing in question

I. Best Evidence Doctrine FRE 1002

1. Applicability: The best evidence doctrine applies to original writings, recordings and
photographs
2. Generally

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 a. When trying to prove the contents of a writing, the original writing itself generally
needs to be introduced
i. “Original” means the document that had a direct role in the ensuing events
ii. When not trying to prove the contents, the original doesn’t necessarily have to
be introduced
3. FRE 1001-02
a. Writing includes photos and videos
4. FRE 1003 – Duplicates
a. Duplicates can be used unless:
i. There is a genuine question as to the authenticity of the original, or
ii. The circumstances make it unfair to admit the duplicate in lieu of the
original
b. NOTE: Duplicate as Original
i. If a duplicate of a document is functionally an original for purposes of any given
litigation, the Best Evidence Rule is satisfied if the original duplicate is
introduced
5. FRE 1004 – Exceptions to Providing the Original; Secondary evidence is used which may be
notes about the original
i. 1004(a) when all the originals are lost or destroyed, and was not done in bad faith
ii. 1004(b) beyond the process of the court to get the original
iii. 1004(c) if your opponent had control over the evidence and did not bring it in
iv. 1004(d) the original is not closely related to a controlling issue—collateral matters
doctrine

6. FRE 1005 – Public Records

a. Certified copy can be considered as an original but only applies to things that are
recorded
b. Photocopies of public records can be admitted
7. FRE 1008 – It is a function of the trier of fact to determine authenticity
8. NOTE: Digital Original
a. For purposes of the Best Evidence Rule, any new printout of a digital file constitutes an
original

J. Hearsay Analysis
1. Is it hearsay?
a. Hearsay 801(c): An out-of-court statement offered to prove the truth of the matter
asserted
i. Lawyer offers testimony; Out of Court Statement offered to prove the truth of
the matter asserted.
ii. Hearsay includes both “I told him [X]” and “He said [X]”
iii. Reasons for the Hearsay Rule
a. Four Major Risks of Hearsay
i. Risk of Misperception
1. Physical limitations
2. Mental Limitations
3. Circumstances (situational)
4. Psychological condition (emotions etc.)
ii. Faulty Memory
iii. Faulty Narrative
1. Not communicating story properly
iv. Risk of Distortion
1. People who skew what they know to be the truth for
personal reasons

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 2. If dealing with non-assertive conduct, distortion is
NOT a risk
b. In-Court Activity Minimizes these risks
i. Cross-examination gets information out
ii. Oath, at least for some people, will be taken seriously, and
makes them concentrate
iii. Demeanor evidence – seeing someone talk allows the jury to
determine whether they are being honest
b. Hearsay 801(a)
i. What counts as a Statement
a. An oral or written assertion, or
b. Nonverbal conduct of a person, if it is intended by the person as an
assertion (assertive conduct)
c. Ex: painting, sheet music, nodding, pointing
ii. What doesn’t count as a Statement?
a. Nonassertive conduct is not hearsay because people don’t distort what
they’re doing
b. Lack of Complaints
i. Cain v. George (testimony that no one had complained about a
CO leak in a hotel room was not hearsay because non-
statements means that nothing is being asserted)
c. Machines
i. A person can testify that a clock says what time it is because if
it’s a simple machine, it isn’t a risk (no person recently
involved)
ii. Some machines (insta-quote for stock market, for instance)
require a foundation (complicated machines that had recent
human involvement)
d. Animal Behavior
i. Usually not hearsay because there isn’t a person directly
involved in the conduct
c. Hearsay 801(b): Declarant offered to prove the truth of the matter asserted
i. Two things must line up:
a. Proponent’s purpose in offering evidence, and
b. Declarant’s expressive intent
d. Go through Non-Hearsay Exceptions first:
i. Impeachment
a. Used to highlight prior inconsistent statements to foster mistrust of
witness
ii. Verbal Act
a. The words themselves must have some independent legal
significance that has some effect in the world
iii. Effect on Listener
a. Prove that your conduct was reasonable because you were acting based
on another’s statement/actions.
iv. Verbal Object
a. Using words as a mere description
i. Ex: The guy drove away in a Ford. Most likely, you’re trying
to prove that the guy drove away, so the fact that he did so in a
Ford is irrelevant. That makes it nonhearsay. If, however, the
fact that he drove away in a Ford (as opposed to a Porche) is
relevant, it is hearsay.
ii. NOTE: Written Words
1. Written words can be hearsay or nonhearsay. If used
as an assertion (the word itself is saying something),

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 it’s hearsay. If used solely as a description, it’s
nonhearsay.
v. Circumstantial Evidence of State of Mind
a. EX: Robinette walks into class and says “I’m Thor.” If we’re trying to
show that Robinette is not fit to write a will, it does not matter whether
he actually thinks that he is Thor. It is an odd statement either way.
vi. BORDERLANDS—Statements with Performative Aspects
a. If performative aspect > assertion, it’s nonhearsay
i. Ex: Evidence that guy with stolen plane on his landing strip is
telling people about it. Although he is making a statement, the
performative aspect (the act of telling people he has a stolen
plane) trumps the assertion
ii. When doing the borderlands analysis look from the
perspective of the party making the statement; what is their
intent? To make a statement or to perform an act?
b. NOTE: Questions
i. Questions may contain assertions (ex: did you dump the body
in the river? Assertion that there is a body and that “you” are
involved)
c. NOTE: Lying
i. Lying is nonhearsay because:It is not offered for the truth of
the matter asserted
d. NOTE: Statements as Either Hearsay or Nonhearsay
i. A statement can be either in some cases, depending on what’s
being shown.
ii. Ex: Betts v. Betts (in trying to show that a girl’s step-father
was an unfit parent, evidence that she said that he killed her
brother was not hearsay because, whether it was true or not, it
showed that they had a bad relationship (either she was lying
about him, or he really did kill her brother; both indicate bad
relationship)
e. NOTE: Drug-Seeking Phone Calls
i. Courts routinely hold that drug-seekers who call a dealer’s cell
phone when the phone is in police custody are not making an
assertion, so the calls are not hearsay because the performative
aspect dominates over the assertive aspect
f. NOTE: Jury Verdict
i. A jury verdict is always hearsay; b/c the statement of the jury
is always an assertion

2. Does it fall into any exceptions?

a. Statements by declarants who testify
i. Rule 801(d)(1) - Three Exceptions
a. Prior Inconsistent Statements (FRE 801(d)(1)(a))
i. Declarant testifies at the trial or hearing
ii. Declarant is subject to cross examination concerning the
statement
iii. The statement is inconsistent with the declarant’s
testimony
iv. The prior statement must have been given under oath,
subject to penalty of perjury
v. At trial, hearing, or other proceeding, as in a deposition
1. NOTE: Lack of Memory
a. Feigned memory loss, if proven to be
feigned, is always inconsistent; memory loss
is also usually inconsistent if genuine

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 b. Prior Consistent Statements (FRE 801(d)(1)(b))
i. Declarant Testifies at the Trial or Hearing
ii. Is subject to cross concerning the statement
iii. Statement is consistent with declarant’s testimony
iv. Offered to rebut express or implied charge against
declarant of recent fabrication or improper influence or
motive
1. Major Use
a. Rehabilitate credibility of a witness, and get
substance premotive requirement for prior
consistent statements
b. Premotive Requirement
i. To rebut a charge of improper
motive, a statement must have
come before the motive existed
ii. Example: Tome v. U.S.: Daughter
in father’s custody who allegedly
wanted to live with her mother had
a motive to accuse him of abuse
since she wanted to leave before
making the accusations
c. Statements of Identification (FRE 801(d)(1)(c))
i. Declarant testifies at the trial or hearing
ii. Declarant is subject to cross concerning the statement
iii. Statement is one of identification after perceiving the
person
1. Example: State v. Motta: A police sketch artist’s
drawing based on eyewitness description fell under
exception because the drawing was a vicarious
statement of the declarant
b. Admissions
i. Rule 801(d)(2) - Five Exceptions
a. Individual Admissions (FRE 801(d)(2)(A))
i. Statement offered agaisnt opposing party; and
ii. Made by the party in an individual or represented
capacity.
iii. Almost anything one says as a party is subject to come in
iv. Rationale: Autonomy; the party must make its case both inside
and outside the courtroom
v. Drunk Declarant: Statement can still come in as long as
declarant can make some quasi-coherent statement
vi. Injured Declarant on Painkillers: Statement is likely to come
in
vii. NOTE: Admissibility of Criminal Plea in Civil Suit
1. Generally, a plea to a criminal case is admissible
in a subsequent civil action on the same facts.
2. A jury verdict is NOT an admission
3. A nolo contendre plea cannot be used civilly
a. The elements of the crime and the elements
of the civil cause of action must be basically
the same
b. If the elements of the crime are so different
from the civil cause of action that the guilty
plea is rendered irrelevant, the plea cannot
come in
4. Bruton Doctrine

13
 a. A guilty plea is not admissible against a
codefendant in the same trial
b. The D.A. can either find an exception or
split the trials to use a confession
c. Redaction doesn’t work because the jury
will just fill in the blanks
b. Adoptive Admissions (FRE 801(d)(2)(B))
i. A statement is not hearsay if it is offered against the
opposing party and is a statement of which the party has
manifested an adoption or belief in its truth
ii. Example: Cop: “Were you speeding?” Defendant: “Yes” –
defendant adopts the language of the officer as his own
iii. Silence:
1. Party heard and understood the statement
2. Defendant must have personal knowledge of the
matter asserted
3. Occasion and nature of the statement were such that
he would likely have replied if he did not mean to
accept what was said
4. Speaker was not someone who the party would likely
ignore
iv. Post-Mirandized Silence
1. Once you’re mirandized, silence could simply be an
exercise of the right to remain silent, so after being
mirandized, adoptive admissions are no longer
applicable for silence
c. Admissions by Speaking Agents (FRE 801(d)(2)(C))
i. Usually applies to things said by a party’s attorney
ii. Anything the agent says is linked to the principal
iii. Pleadings
1. Pleadings are generally admissions by speaking
agents unless:
a. Pleading in the alternative
b. Inconsistent causes of action are not
admissions
2. Request for admissions from other case
3. Generally, pleadings from other cases or discovery in
the present case are admissions by speaking agents
d. Admissions by Employees and Agents (FRE 801(d)(2)(D))
i. Government Admissions
ii. Government employees are not able to bind the government to
their statements because the government is the “sovereign”
and must remain consistent
iii. Generally
1. A statement is not hearsay if the statement is
offered against a party;
2. A statement by the party’s agent or servant;
3. Concerning a matter within the scope of agency or
employment; and
4. Made during the existence of the relationship
iv. It doesn’t matter if statements are made in-house or to
outsiders
v. Personal knowledge isn’t required because by admitting the
source, you’re adopting the statement as your own
e. Coconspirator Statements (FRE 801(d)(2)(E))
i. Coventurer: Declarant and defendant conspired

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 ii. Pendency: Statement made during the course of the
conspiracy
iii. Furtherance: Statement was in furtherance of the
conspiracy
1. Three Procedural Difficulties with this Exception
a. Proof of conspiracy is invariably
circumstantial and diffuse
2. Coventurer requirement means that you can get
conflicting signals (coincidences)
3. Bootstrapping – Statement about conspiracy proves
the conspiracy itself
a. Bourjaily v. U.S.: Judge decides
admissibility on evidence (FRE 104(a)),
uses the preponderance standard
b. Inquiry here is whether the three elements of
coconspirator statements are satisfied just to
get it to a jury, which then weighs it under
the beyond a reasonable doubt standard
4. Bourjaily Rule
a. A coconspirator’s statements may
themselves be probative of the existence of a
conspiracy and the participation of both the
defendant and the declarant in the
conspiracy under FRE 801(d)(2)(E), but
statements alone, absent extrinsic
corroborating evidence, are insufficient
c. Unrestricted Exceptions
i. Rule 803 - Twenty-Three "Unrestricted" Exceptions (Know 8 discussed in class)
ii. Statement fitting any of these exceptions may be used to prove what it asserts
regardless whether the declarant testifies.
a. Present Sense Impression (FRE 803(1))
i. Statement describing an event or condition made
ii. While the declarant was perceiving the event or condition
or immediately thereafter
b. Excited Utterance (FRE 803(2))
i. A startling event
ii. Statement made before time to contrive or misrepresent
iii. While under stress caused by event. (Factors)
1. Physical behavior of declarant (subjective
manner)
2. Time (how much time has elapsed)
3. Nature of the event (affects time)
4. Age of declarant (also affects time; kids have
longer than adults, generally)
c. State of Mind (FRE 803(3))
i. Declarant’s Then-Existing Physical Condition
1. Declarant says something like “my back hurts”
2. Rationale: pain is subjective; we only have the
person’s statements to go on
ii. Declarant’s Then-Existing Mental or Emotional Condition
1. Generally comes in If facts are admitted to show state
of mind, you may want to:
iii. Facts About a Declarant’s Will
1. Anything the declarant says about his or her own will
that is factual comes in

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 2. Rationale: If we’re arguing over the will, the
declarant’s probably dead
iv. Declarant’s Later (Subsequent) Conduct
1. You can always use a declarant’s statement to prove
his intent and thus his own later conduct
2. Third Party Later Conduct: You can use the intent of
the declarant to prove the later conduct of a third
party so long as it is corroborated by independent
evidence
d. Statements for Purposes of Medical Diagnosis or Treatment (FRE
803(4))
i. Can refer to present or past pain
ii. Theory: patients probably don’t lie to their doctors
iii. Exception: Sexual Assault/Physical Abuse of Children
1. Identity of abuser comes in if:
a. Declarant’s motive in making the statements
is consistent with the purpose of promoting
treatment or diagnosis, and
b. The content of the statement is reasonably
relied on by a physician in treatment or
diagnosis
e. Past Recollection Recorded (FRE 803(5))
i. Witness lacks present recollection
ii. Statement accurately reflects knowledge she once had
iii. She “made or adopted” the statement, and
iv. She did so while the matter was fresh in her mind
v. Before this can be used, you must attempt to refresh the
recollection of the witness on the stand
f. Business Records (FRE 803(6))
i. Business records, regularly kept
1. Almost anything kept regularly in a very broad
definition of business comes in here
ii. Source must have personal knowledge
1. Someone in the business must have personal
knowledge
2. Ex: Petrocelli: the plaintiff failed to establish
personal knowledge for statements that may have
come from himself to the doctor instead of being
generated by the physician in the process of
formulating a medical opinion
iii. Contemporaneous
1. Applied very weakly; you pretty much just can’t go
back and “revise” the record
iv. Foundation Testimony Required
1. The best person to put on the stand is the record
keeper, but as long as the person has knowledge, it
can be established
g. Public Records (FRE 803(8))
i. Activities
1. Often government documents saying what they did
ii. Matters Observed
1. Things investigators see
iii. Factual Findings
1. Investigators’ conclusions
2. Four Trustworthiness Factors
a. Timeliness of investigation

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 b. Special skill and experience of the official
c. Whether a hearing was held
d. Possible motivational problems (often, bias
of the official)
h. Learned Treatises (FRE 803(18))
i. You can always use a treatise to impeach
ii. You may use it substantively if either:
1. The expert relied on it on direct, or
2. It’s called to her attention on cross
a. Rarely used because often ineffective
(confuses the jury), but almost always
admissible anyway

d. Statements by unavailable declarants (Restricted)

i. Rule 804 - Five Exceptions
ii. May be invoked only if the declarant is "unavailable as a witness"
iii. (FRE 804): Declarant Unavailable
a. Two Steps to Apply this Exception
i. Is the Declarant Unavailable? (Actual Testimony not Person)
1. Claim of privilege
a. Someone takes the stand, claims a privilege,
and the court sustains it
b. NOTE: A criminal defendant pleading the
5th Amendment does not need to take the
stand
2. Refusal to Testify
3. Lack of memory on the subject matter
4. Death, illness, or infirmity
5. Unavoidable absence
a. Usually, someone’s beyond the
jurisdiction’s subpoena power
b. Major Unresolved Issue: Should parties
have to go out to them to secure a deposition
6. Procurement or Wrongdoing
a. If you’re responsible somehow for making
the witness unavailable, you don’t get the
benefit of the unavailability
iv. Prove the Specific Elements of one of the following exceptions
a. Former Testimony (trials, depositions, preliminary hearings, etc.)
i. Criminal Cases
1. Testimony by Witness during Trial, Hearing, or
Deposition;
2. Offered agaisnt party who had motive and
opportunity to cross; or
ii. Civil Cases
1. Same Two Above;
2. A predecessor in interest may have developed
testimony instead of the person against whom it’s
directly offered
a. Privity Relationship
b. At the time testimony was taken
b. Dying Declarations
i. If a declarant genuinely believes he’s about to die, any
statement he makes about the cause or circumstances of his
death comes in

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 c. Declarations Against Interest
i. Must be against interest at the time the statement is made
ii. Applies to non-parties and parties alike
iii. Very broad “interest” (just about anything a person has an
interest in, like money or property, is covered here)
iv. Only the statements directly against the declarant’s interest
come in
1. The whole statement does not necessarily come in if
parts of it are not against interest
a. Ex: Williamson v. U.S.: drug courier gave
statements against his interest, which were
admissible, in the context of giving neutral
and pro-interest statements
v. Rule: Statements against interest come in; if intermingled with
neutral or statements in a person’s interest, the latter two must
be extracted so that just the statements against interest come in
1. Exception: if offering statements against interest to
exculpate someone else, it must be coupled with
corroborating evidence to get it in (just being against
interest here is insufficient)
d. Personal/Family History
e. Forfeiture or Misconduct
i. If the accused does something to a witness to avoid the
witness’ testimony, the Confrontation Clause’s protections no
longer apply
1. Intent on the part of the accused to prevent the
witness from testifying is necessary

3. Is this a Confrontation Clause Issue?

a. If not offered in a criminal case agaisnt a criminal defendant, then not at issue.
b. If Civil Case, then apply confrontation rules.

K. Confrontation Clause
1. Always an issue in hearsay cases
2. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right
to be confronted with witnesses against him
3. Roberts Doctrineif there is an exception (firmly rooted) to hearsay rule, then no hearsay
because they have indicia of reliability therefore no confrontational problem
4. Crawford Doctrine
a. If a statement is testimonial
i. A solemn declaration or affirmation made for the purpose of establishing or
proving some fact
a. When it relates to what happened and not what is happening, then
it is testimonial
ii. General notions (Davis)
a. Statements are not testimonial if they are used to handle an
ongoing emergency
b. Statements given where there is no ongoing emergency are
testimonial
iii. It is unresolved as to whose perspective is used
b. To get it into evidence, you must prove unavailability of the declarant and
c. A prior opportunity to cross
i. If the declarant is on the stand, there is no Confrontation issue
5. Exceptions to the Crawford Doctrine
a. If a statement is being used for nonhearsay purposes, the Confrontation Clause does
not apply because the statements are not being used to assert the truth of the matter

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 i. Coconspirator statements are nonhearsay, so confrontation clause cannot be
used to keep such statements out
b. Does not apply to dying declarations
c. Does not apply in forfeiture or misconduct cases (witness intimidation)

L. Character Evidence
1. Generally
a. Character evidence is usually inadmissible absent an exception
b. You cannot use character evidence to show that this person has a propensity to
engage in this sort of conduct
i. Propensity tends to be very general under FRE 404; nonpropensity evidence
(which is often admissible under the exception) is very specific
ii. POLICY: The reason that this is not typically allowed because it may lead the
jury to wrong conclusions about the defendant; Undue prejudice
2. Application
a. Figure out when character is admissible
i. Civil Cases
a. Child sexual assault or molestation
b. Suit where character is an element (defamation, usually)
ii. Criminal
a. The prosecution cannot use character evidence in its case in chief; the
defendant gets to choose whether to have a fight over his character
(open the door to character)
i. If defendant brings in character, the prosecution can bring in
evidence to counter any character evidence brought up by the
defendant
ii. If the defendant brings up the victim’s character, the
prosecution can rebut with either:
1. Evidence of the defendant’s character, or
2. Counterevidence of the victim’s character
b. Figure out what type of character is admissible
i. Generally
a. The trait must be pertinent to the crime charged
b. Three main types: reputation, opinion, & specific acts
ii. A witness called to testify to character may only testify as to:
a. Defendant’s reputation, and
b. Witness’ opinion of the defendant
iii. A witness may not offer specific acts of the defendant to illustrate the trait by
example unless the specific act is an element of the crime or is relevant to a
pertinent trait
a. On cross, however, the cross-examining attorney may bring up specific
acts
i. Ex: “Were you aware that on __(date)__, the defendant did
X?”
3. Exception
a. Generally
i. If you are using character evidence for some other purpose, it may be able to be
used for other purposes (FRE 404(b))
a. If the prosecution is going to do this, he must give the defendant notice
ii. FRE 404(b) lists a number of exceptions, the major ones being Intent, Identity
and Modus Operandi, and certain miscellaneous other purposes
b. To determine whether character evidence comes in for some other purpose under
FRE 404(b), courts use a 4-part test (which entails a use of FRE 403’s balancing
approach)
i. Decide whether the evidence is offered for a proper purpose
a. Proper purposes include, but are not limited to:

19
 i. Proof of motive
ii. Opportunity
iii. Intent
iv. Preparation
v. Plan
vi. Knowledge
vii. Identity
viii. Absence of Mistake or Accident
ii. Decide whether that evidence is relevant for that purpose
iii. Decide whether its probative value is outweighed by the risk of unfair
prejudice
iv. Get a limiting instruction (on request, should always request one)
c. Specifics for major purposes
i. Intent
a. Two issues go with proving a prior bad act to prove intent
i. Jury makes the decision on admissibility (FRE 104(b))
1. Judge screens it (Huddleston)
ii. Preponderance standard is used
ii. Identity and Modus Operandi
a. Often, modus operandi is used to prove identity
i. A consistent method of commission of a crime frequently
makes it likely that the defendant committed the same crime
here
b. Requirements
i. Close resemblance between the prior acts and this occasion,
and
ii. Some kind of distinctiveness
1. Ex: very specific set of facts that other similar crimes
wouldn’t entail if the same person didn’t commit
them
iii. Other Purposes
a. Child Abuse
i. Specificity of prior incidents makes it likely that they will
come in
ii. Judges often stretch the rules to get evidence of prior child
abuse in
4. Habit & Routine Practice (FRE 406)
a. Generally
i. Evidence of the habit of a person or of the routine practice of an
organization
ii. Whether corroborated or not and regardless of the presence of eyewitnesses (to
this particular instance)
iii. Is relevant to prove the conduct of the person or organization on a
particular occasion was in conformity with the habit or routine practice
b. Basic rule is that this evidence is allowed in
c. Differences between character and habit/routine
i. Habit is specific, character is general
ii. Habit has no moralistic overtones; character often does
d. Most often used in medical malpractice cases to show that doctors got informed
consent
e. Witness should have some firsthand knowledge of the routine practice (even if its just
observed) to which he is testifying
i. You don’t have to have an eyewitness to this particular instance as long as it can
be shown to be routine
5. Subsequent Remedial Measures (FRE 407)

20
 a. You can’t use a subsequent act fixing something that caused harm to prove
negligence
i. Police: we don’t want to deter good acts
ii. Relevance: just because you did something after the fact, this doesn’t show
negligence
b. You can use a subsequent act to prove:
i. Feasibility (you obviously could have done it because you did do it)
ii. Ownership or control (because you fixed the problem, this means that you had
the capacity to do so in terms of exercising control over it)
iii. Impeachment (people say they took all the reasonable steps, but did something
else)

M. Impeachment
1. Four applicable ways to impeach
a. Bias
i. Widely understood at common law that bias could be used
ii. Falls under FRE 401-02 by implication
iii. Must balance probative value against prejudice under FRE 403
iv. Normal fact patterns include plea agreements and expert salary
b. Sensory/Mental Capacity
i. Testimony as to what you heard or saw can be impeached with evidence that at
the time, the witness wasn’t processing information correctly
a. Applies to mental illness as well
c. Witness is by disposition untruthful
i. A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. But evidence of
truthful character is admissible only after the witness’s character for
truthfulness has been attacked.
ii. Cross on a prior bad act that reflects on veracity but did not lead to
conviction (FRE 608(b))
a. Differs from FRE 404 because it applies to parties, and 608-09 apply to
witnesses
i. If the defendant takes the stand in his own defense, he
becomes a witness under 608-09 because he has now waived
the protections of FRE 404
b. How FRE 608 is Used
i. Judge requires some factual predicate of prior bad act
ii. Bad act must relate to veracity of the witness
iii. Prior bad act did not lead to a conviction
iv. Even if these are shown, the judge can exclude it or confine or
limit questions at his discretion
v. May not prove it by extrinsic evidence
iii. Cross on certain prior convictions (FRE 609)
a. Serious crimes (felonies)
i. Rule 609 Exam Analysis Simplified: This is dealing with
impeaching a witness based upon prior convictions
1. If the prior crime involves Dishonesty or False
statement, then it MUST come in for impeachment
purposes (Examples: counterfeiting, tampering with
electronic meter)
2. If NOT: Then proceed to 609(a) and it can only be
considered to come in if it is a crime punishable for
more than a year AKA felony.

21
 3. If the crime is a felony, then proceed to a 403
analysis to make the final determination as to if it is
admissible
ii. Balancing test used for admissibility of serious crimes to
impeach
1. For ordinary witnesses, is the probative value
outweighed by prejudice (403)
2. For the criminal defendant, the probative value must
outweigh its unfair prejudice (keeps information out
more than it lets it in) (reverse 403)
iii. Gordon Factors
1. Nature of conviction as to veracity
a. How much does it go toward veracity
2. Recency or remoteness of the crime
3. Similar to charged offense
a. If it is similar, it presumptively stays out
4. Does it establish a pattern
5. Importance of credibility issues
a. How much does the jury need to know about
the credibility of this witness in this trial?
6. Importance of getting defendant’s own testimony
a. If we keep this prior crime out, will it make
him more likely to testify?
b. Only used in reverse 403 analysis
iv. Examples:
1. Murder, rape, prostitution, drugs, gambling, robbery
b. Veracity Crimes
i. No balancing test used; immediately comes in if you must
write the element that makes it a veracity crime in the
indictment; if not, it doesn’t
1. Dishonesty must necessarily be included in the
charging document
ii. Examples:
1. Perjury, fraud, embezzlement, counterfeiting,
forgery, false pretenses
c. Miscellaneous Issues (FRE 609(b))
i. Ten year time limit on prior conviction unless bringing in
older crime is in the interest of justice
ii. Cannot be used if you have been pardoned
iii. Juvenile crimes are generally inadmissible, and absolutely
inadmissible against criminal defendants testifying
iv. Pendency of appeal may be used, so fact of conviction
comes in along with information that appeal is pending
v. Jury gets limited information:
1. Fact of conviction
2. Name of crime
3. Date of crime
4. Sentence
vi. Character witness about a target witness (FRE 608(a))
1. You can call a witness to testify about his opinion
or the general reputation as to truthfulness or
untruthfulness
d. Prior Inconsistent Statements (FRE 613(a))
i. You are entitled to bring out any prior inconsistent statement of the
testifying witness

22
 a. Be prepared to show the adverse attorney the statement if they
want to see it
ii. (FRE 613(b)) Extrinsic Evidence admissible only if witness is given
opportunity to explain or deny and is subject to cross.

N. Lay and Expert Witnesses

1. Lay Witnesses
a. Originally, testimony limited to facts but not opinion
b. FRE 701: As long as a lay witness has knowledge, he may testify in the form of an
opinion if it will make the testimony clear
i. Lay adult witnesses may estimate as to vehicle speed
ii. They may not testify about the law or how a jury should apply a given legal
standard
iii. They cannot testify as to technical matters or diagnose people or things
iv. Cannot estimate the value of someone else’s property
v. Can probably say that a driver couldn’t have stopped in time
vi. Lay witnesses cannot be asked hypothetical questions because they necessarily
call for speculation
2. Expert Witnesses
a. Who can be an expert
i. FRE 702: A person with specialized knowledge, skill, or education
a. Even if a person has complete credentials without practical experience
or vice versa, that person can be an expert
b. When can experts testify
i. FRE 702: When it will assist the trier of fact to understand the evidence or
determine a fact in issue
a. Usually, as long as this expert can help a jury, it’s acceptable
c. Bases for Expert Testimony
i. Three Major Types
a. Personal Knowledge
b. Facts learned at trial
c. Background expertise the expert learned
i. Outside information may not be admissible; this just lets the
expert combine her knowledge with the facts
ii. On cross, you can attack the basis of the opinion
iii. FRE 703: Background knowledge source itself can come in
on direct if the court determines that its probative value in
assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect
ii. You may ask an expert directly about the ultimate issue in the case (FRE
704(a)) unless the ultimate issue is the mental state or condition of a
defendant (FRE 704(b))
d. Presentation of an Expert
i. Qualifications
a. You can voir dire a witness proffered as an expert
b. If the witness is qualified as an expert, he can opine on highly technical
issues
ii. Eliciting Expert Opinion
a. You can, to some extent, lead the expert
b. You can also just ask a few questions and basically let the expert tell
his own story
e. Court-Appointed Experts
i. FRE 706: Court may appoint an expert
ii. Courts almost never do this because we believe in party control of proceedings
and paying court-appointed experts is difficult

23
O. Scientific Evidence
1. Two Steps
a. Is the witness an expert?
b. Is his methodology sound?
2. Frye Standard
a. Scientific evidence comes in if it’s generally accepted
b. Rejected federally, but some states still use this standard
3. Daubert Standard
a. Three factors the judge looks at as a gatekeeper, determined under a
preponderance standard:
i. Reliability of methodology
a. Four Factors for determining reliability
i. Testability of methodology
ii. Peer review (look for publication)
iii. Known or possible rate of error
iv. General acceptance in scientific community
ii. Does the methodology fit, and
iii. FRE 403 more prejudicial than probative analysis
b. The standard for review of a district judge’s determinations under the Daubert
Standard is abuse of discretion
c. Kumho
i. Daubert applies to all expert testimony, including non-scientific
a. It’s too difficult to distinguish between whether something is scientific
or technical
ii. Flexible test
a. Trial judge given discretion as to both how and whether to apply any or
all of the Daubert factors
i. Other factors beyond those articulated in Daubert can be
considered as appropriate
d. Things normally allowed in:
i. Alcohol in blood, breath, or urine
ii. Ballistics tests
iii. Radar measurements of speed
iv. Blood test to determine paternity
v. DNA evidence
vi. Fingerprint analysis

24