Evidence Attack Outline

Relevance
● Is it relevant?
● Rule 403​?
● Specialized Relevance Rules?

Character Evidence (CE)

● Is it CE?
● Rule 404(b)​ route around propensity box
● Habit?
● EXCEPTION​?
○ 404(a)(1)​ Character of Accused?
○ 404(a)(2)​ Character of Victim? Rape Shield Law (​412​)?
○ 405(b)​ Specific Instance of Conduct as Essential Element?
○ 413-415​ Sexual Assault?
■ Non-character based?
● Contradiction?
● Past inconsistent stmt?
● Bias?
■ Character Based?
● 608(a)​ Character of Truthfulness → Opinion/Rep?
● 608(b)​ Specific Acts on Cross-Examination Bearing on Truthfulness?
● 609(a)(1)​ Conviction > 1yr Bearing on Truthfulness?
● 609(a)(2)​ ANY Conviction w/Element Based on UNtruthfulness?
○ 609(b)​ Less than 10yrs?

Hearsay (HS)
● Is it an assertion?
● Offered to prove the truth of the matter asserted?
○ Effect on person?
○ Verbal act?
○ Impeachment?
● More than 1 level of HS??
● EXCEPTION to HS?
● 807 Catch All? (*don’t use this on essays*)
● Criminal or Civil?
○ Confrontation Clause (CC)?
○ Testimonial?

EXCEPTIONS To Hearsay

801 – Declarant testifies at trial, subject to cross, AND:

● Prior inconsistent statement under oath offered substantively
● Prior consistent statement offered in rebuttal
 ● Prior identification

801 – Statement by party opponent offered against him, AND:

● Party’s own words
● Adoptive admission
● Co-conspirator statement
● Statement of agents

803 – Availability of declarant immaterial, AND:

● Present sense impression
● Excited utterance
● Statement of then existing condition
● Medical diagnosis
● Recorded recollection (or writing used to refresh memory)
● Business records (or absence of business records)
● Public records (or absence of public records)
● Ancient documents

804 – Declarant UNable to testify, AND:

● Former sworn testimony
● Statement against interest
● Dying declarations
● Forfeiture by wrongdoing

807 – Catch All

● Reliability AND trustworthiness
 Evidence Summary

Part 1​: Preliminary Determinations, Relevance/Prejudice, Personal Knowledge, & HS

Prelim Issues:
● 104(a)​: Judge determines evid admissibility/privilege/witness competency. Judge NOT bound by the rules of
evid in making this decision.
● 104(b)​: ​Conditional Relevance​ ~ evid that depends on the existence of other evid is NOT relevant ​UNLESS​ the
proponent can ​ALSO​ prove up the other evid. Proof ​can​ be admitted ​later​ in trial though.

Relevance​:
● 401​: ANY evid tending to make a fact at issue more or less likely is ​relevant​.
○ Needs to place at least one brick in the wall, BUT need NOT build the wall all on its own
● 402​: ALL admissible evid is necessarily relevant evid
● 403​: ​Balancing Test​ ~ Relevant or “probative” evid may nonetheless be EXCLUDED, IF it is ​substantially
more prejudicial/confusing/misleading/waste of time

Personal Knowledge and Competency Req’s:

● 602​: w/ 1 ​EXCEPTION​ (​Expert Testimony​), ALL testimony and evid at trial ​must​ be based on a witness’s
personal knowledge. Guessing or speculating about things is ​prohibited,​ and repeating 2​nd​-hand things other
people have told you (​i.e. HS)​ is ​gen’lly banned​ w/ its own list of exceptions under ​FRE 800 series​.
● 601​: To testify at all, a witness ​must​ be competent. ALL are presumed competent, ​UNLESS​ a rule provides
otherwise.
● 701​: ​Lay Witness Opinions​ ~ ​must​ be rationally based on witness’s own perception, NOT on scientific or
specialized knowledge, AND ​must​ be helpful to a fact at issue.

Hearsay​ (2​nd​-hand, rather than 1​st​-hand personal, knowledge)

● 801​: ​HS​ is ​(1)​ a statement, ​(2)​ made out of Ct, ​(3)​ offered to prove the truth of the statements content (i.e. truth
of the matter asserted)
● “​Statement​” means an actual ​claim​ that has truth of falsity value
○ Ex. “what’s the weather today?” has NO truth or falsity value & canNOT be HS
● Non-verbal conduct​ ​can​ b​ e a statement IF it was ​intended​ ​to claim something,​ such as tucking your cap’s bill
to warn your fellow bank-robbers that the cops are on their way
● Anything ​“said”​ by a non-human (​Ex. a dog)​ or mechanically produced object (​Ex. a road sign)​ is by def’n
NOT​ a HS statement
● “Out-of-Court”​ means ANY statement NOT said under oath by a witness ​at this specific trial​. A previous
trial for the same case is still “out of court” for HS purposes
● “To prove the truth of the matter asserted”
○ Ex. a crazy guy comes up to you on the streets and yells “I’m Jesus!”
■ Truth of the matter asserted: he’s literally Jesus (i.e. that’s the ​content​ of the statement)
■ canNOT​ use it to prove he’s Jesus, ​UNLESS​ he shows up in court to say he is
■ BUT you ​can​ use it for a non-truth-of-the-matter-asserted purpose … such as the fact that he’s
crazy
● 802​: HS is INadmissible
What is by def’n NOT HS​ (i.e. EXEMPTIONS” rather than Exceptions to HS)
● 801(d)(1)(A​) ​Prior Inconsistent Statement​: a statement made out of court that is inconsistent with
something the same declarant just said as a witness in court
● 801(d)(1)(B)​ ​Prior Consistent Statement​ IF: it is offered to rehabilitate or rebut an an attack on that same
witness's credibility
● 801(d)(2)​ ​Admission by Party Opponent​. 5 different situations where statements by the opposing party
come in IF offered by the other party, IF:
○ (A) made by party in individual or representative capacity (through a lawyer)
○ (B) party adopted truth of the statement (​ex. signing a document​)
○ (C) made by someone authorized to speak for the party (​spokesman)​
○ (D) admission by agent of party acting in scope of agent relationship
○ (E) admission by criminal defendant's co-conspirator, provided (1) prosecution can prove to judge a
conspiracy existed by preponderance of evidence, and (2) the statement was made in furtherance of
the conspiracy

HS EXCEPTIONS, w/out caring if Declarant can testify or not:

● 803(1)​: ​Present Sense Impression​ Something said during or immediately after the declarant's perceiving it
happening.
● 803(2)​: ​Excited Utterance​. While still suffering under startlement from an event, recalling information about
that startling event.
● 803(3)​: ​Statement of Mind​. Then-existent physical/emotional condition, or statement of intent, plan or
scheme.
● 803(4)​: ​Statement for purpose of medical treatment​. A statement from patient to doctor/staff designed to
influence treatment/diagnosis.
● 803(5)​ ​Past recollection recorded​. Witness canNOT remember an event but earlier recorded their
recollection of that event when it was fresh in memory. Proponent ​can​ ONLY ​read​ the recording into
evidence as a supplement; opponent ​can​ introduce the document itself as evidence.
● 803(6)​ ​Record of regular business activity​. (A) record was made by someone with personal knowledge of
the information inside of it (B) kept in course of regular activity at business (C) regular practice is to make
record of it (D) as proved either by a testifying custodian of document or a written certification by the same,
and (E) opponent does not show source of info or method of record-keeping lacks trustworthiness.
● 803(7)​: ​Absence of record of regular activity​. Missing evidence, if normally kept in the course of business,
can be used as evidence that something did not occur. (Absence of evidence ​can​ be used as evidence of
absence!)
● 803(8)​: ​Public records​. Record or statement of public office that (A) sets out office's activities, or is a matter
observed under legal duty to report (but not in criminal cases), or is a factual finding used in a civil case or
against the gov in a criminal case, and (B) opponent does not show source of info or record-keeping methods
lack trustworthiness.
● 803(10): Absence of Public Record. More or less same logic of 803(7), BUT with a complicated rule

HS EXCEPTIONS that req witness be UNavail 1​st

● 804(a)​: ​Defining UNavailable​ ~ ​5​ TYPES ~ Witness is:
○ (1) exempted from testifying because of privilege
○ (2) refuses to testify in spite of court order
○ (3) testifies to NOT remembering subject matter
○ (4) dead or has then-existing physical or mental impediment
 ○ (5) absent from trial because party could not reasonably procure:
■ (i) their attendance [for ​804(b)(1)​ or (​ 6)​]; ​OR
■ (ii) their attendance or testimony [for ​(b)(2)​, ​(3)​, or ​(4)​].
● Applicable ​EXCEPTIONS​:
○ (1) Former testimony given by witness at trial/hearing/depo, offered against party whose predecessor
in interest had opportunity and similar motive to examine that witness
○ (2) Statement under belief of imminent death. In ALL civil cases, BUT ​ONLY​ in criminal
prosecutions that are over a ​homicide​, if witness made statement while believing his death to be
imminent and the statement was about its cause or circumstances.
○ (3) Statement against Interest. (A) Reasonable person in dec's position would only make if they
believe it true and it was so contrary to his proprietary or pecuniary interests. AND (B) IT WAS
CORROBORATED by trustworthy evidence.
○ (4) statement about dec's own birth, adoption, legitimacy, marriage, divorce or such, or about another
person if dec was related by blood/adoption/marriage or so intimately familiar that they'd know this
○ (5) Statement offered against party that wrongfully procured Wit/Dec's unavailability. Provided
opposing party intentionally made person unavailable, proponent ​can​ offer unavailable person's
statement against the opposing party.

Part 2​: Random HS Tips, CE, Impeachment w/ Past Crimes/Acts of Dishonesty

Random HS Rules to Know:

● 805​: ​HS w/ HS​ ~ Each layer of HS ​must​ have an applicable exception for the deepest level to be admissible
● 806​: HS declarants are treated as witnesses for impeachment purposes. You ​can​ impeach the person who made
an out-of-court statement, EVEN IF they do NOT testify, by offering inconsistent statements against them OR
using their crim record against them
● 807​: ​Residual HS EXCEPTION​ ~ you ​can​ argue to the judge to invent a new HS exception IF statement has
circumstantial guarantees of trustworthiness, is ​more​ probative than non-HS evid of the same fact, AND IF the
statement is NOT specifically covered by a diff exception that it could NOT satisfy
● *​Remember ​801(d)(2)​ Admission by Party Opponent is NOT the same thing as ​804(b)(3)​ Unavailable
Witness’s Statement against Interest
● Co-conspirator admissions offered under ​801(d)(2)(E)​ ​can​ violate the ​Confrontation Clause​ according to the
Bruton​ case

Character Evidence:
● 404(a):​ ​Def’n​ ~ ​Character​ is a tendency to do something, as demonstrated by specific acts of conduct or by
reputation. ​Ex: Violent character, law-abiding character, honesty, or dishonesty.
● 404(a)(1)​: ​The Prohibition ~​ NOT admissible to show a person acted in accordance with character trait on a
specific occasion. ​Ex: You murdered in 1981, so you must have committed the 2015 murder. Or: You're a
violent person, so you must be the bank robber.
● 404(b)(1):​ Specifically ​precludes​ offering past crimes or wrongs to show character.
● 2 Rules:
○ 404(a)​ is gen’l to ANY character, helpful or hurtful
○ 404(b)​ more specific to past crimes and wrongs

Character Evidence EXCEPTIONS:

● 404(a)(3)​: Impeachment with qualifying character evidence against the ​testifying​ witness under ​607​, ​608​,
 609​ is ​allowed​.
● 404(a)(2)​: ​Defense Opens Door in Criminal Case​ ~ ∆ can ​either​ bolster his own character as a defense, OR
he can attack the victim's character, BUT the prosecution gets to rebut him with the same kind of
otherwise-inadmissible character evidence.
○ (A) ∆ offers evidence of his own good character, and prosecutor ​may​ rebut with evidence of his bad
character. ​(Ex. Molestation trial. ∆ offers testimony that he is attracted to his adult wife; prosecutor
rebuts with his Google search history to show he is in fact a pedophile.)
○ (B) ∆ attacks victim's character (​Ex: Self defense shooting. ∆ says victim is the violent one of the two
and was the aggressor) ​Prosecutor gets to rebut with defendant's violent criminal history.
● 404(b):​ ​Evidence for Non-Character Purposes​ ~ Evidence proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, lack of accident, are ALL ​fair game.
● 404(b)(2)(A)​: In criminal case, prosecutor ​must​ give reasonable notice of any ​404(b)​ offer.
● 406:​ ​Habit, Routine Practice​ ~ Evidence of habit or organization's routine practice admissible to prove on
particular time it acted in accordance. Basically has to be conduct that occurs so often it is said to be
"automatic or semi-automatic" (​Ex. Church has John mow the grass every goddamn Saturday at sundown​)

How to Acceptably Prove Character When It’s Allowed:

● 405​. When character and action in accordance is necessarily at issue because of the particular kind of case, or
when a criminal ∆ opens the door to it, it only be proved in the following ways:
● 405(a)​ by ​Reputation or Opinion​. On direct examination, only reputation and opinion of character are
allowed. On cross, specific instances are allowed to rebut the general rep/op.
● 405(b)​ When character is an ​essential element​ of a charge, claim or defense, then it can be proved by specific
instances of conduct. (​Ex. Felon in Possession of Firearm. Prosecution has to actually prove that ∆ is a felon,
which is a specific instance of conduct.)​
● 609​ Impeaching a witness with specific instances of criminal convictions under ​609​ is allowed provided that
rule is satisfied for its requirements.
● 608​ Impeaching a witness with specific instances of dishonesty under ​608​ also allowed, also provided rule is
satisfied.

Impeachment: Defined
● Definition​: Showing a witness is less credible by offering inconsistent past statements, evidence of bias, or
evidence of past crimes, wrongs or acts.
● 607:​ Who may Impeach:​ Everyone. Even the party calling their own witness may impeach that witness.

Impeaching w/ Past Conduct:

● 609​ ​Impeaching with Criminal Convictions
○ 609(a)(1)​ ​Crimes Not About Truthfulness.​ A felony -- any crime punishable by death or more than
1 year prison -- ​MUST​ be admitted: (A) subject to ​Balancing Test​ ​FRE​ ​403​, in any case where
witness is not a defendant, OR (B) in a criminal case where witness is ∆, IF reverse ​403​ is true:
probative value outweighs prejudicial effect
○ 609(a)(2)​ ​Crimes Affecting Truthfulness.​ Any crime, regardless of felony or punishment status,
MUST​ be admitted without any ​403​ balancing analysis, IF elements of crime require proving a
dishonest act or statement.
○ 609(b)​ ​10 Year "Limit"​. Ten years after conviction or confinement, whichever is later, make it
harder to offer a crime. Reverse ​403​ must be true: Probative value substantially outweighs prejudice,
and party gives reasonable written notice of impeachment.
○ 609(c)-(e)​. ​Advanced rules for effects of pardons, rehabilitation, juvenile convictions and
 ongoing appeals
● 608​ ​Impeaching with Non-Conviction Past Bad Acts and Reputation of Untruthfulness
○ 608(a)​ ​Reputation/Opinion Evidence​. Character for truthfulness ​may​ be attacked or rehabilitated
by evidence of a person's reputation for (un)truthfulness or by opinion testimony. Truthful reputation
admissible ONLY ​after​ being attacked.
○ 608(b)​ ​Specific Instances of Conduct​. EXCEPT for convictions under ​609​, extrinsic evidence NOT
admissible to prove specific instances of witness's character for truthfulness. ONLY reputation
evidence or an admission by the witness himself will be allowed.

Part 3​: Confrontation Clause

Exclusion Req’d because of Confrontation Clause

● Confrontation Clause of Constitution says ​"in all crim prosecutions, accused shall enjoy right to be
confronted with witnesses against him."​ Generally means that prosecutions in criminal cases canNOT offer
second-hand statements (HS) against a criminal ∆ ​UNLESS​ the declarant shows up in court with an
opportunity to be cross-examined.
● There are a few important EXCEPTIONS to this rule.
○ Testimonial Evidence​, from ​Crawford v. Washington​: CC applies ​ONLY​ to ​"​testimonial" hearsay
~ ​hearsay statements by a declarant that were not given with the understanding that the declarant was
essentially giving testimony against a person are not subject to the CC. Typically, this involves
statements by a person to law enforcement, which a person would understand will or could be used
against a ∆.
○ Availability of Witness:
■ IF statements are testimonial, THEN the witness ​must​ usually be available.
■ IF testimonial AND witness is UNavailable, THEN ∆ ​MUST​ have had prior opportunity to
confront with cross exam.
■ Look for ​804(a) ​when defining availability.
● Defining ​sufficient opportunity for cross​: Being present at a former hearing where witness testified usually
suffices as opportunity to cross-examine. The ∆ need NOT have actually chosen to cross them.

EXCEPTIONS to Confrontation Clause Req’s

● 1) ​Emergency Exception​, from ​Davis v. Washington​:
○ Non-"testimonial" statements​ are any statements to law enforcement officers made during an
ongoing emergency, when the primary purpose is to help law enforcement resolve the emergency
rather than establish or prove past events.
○ "Testimonial" statements​ to law enforcement are the opposite: when there is NO ongoing
emergency and the primary purpose is to establish or prove past events potentially relevant to later
criminal prosecution.
○ Factors determining if Emergency Exception exists: Consider ​(1)​ whether statement describes past
events or events that are still unfolding, ​(2)​ its purpose is to assist investigation of crime or provide
info for some other purpose, ​(3)​ the formality of exchange when statement is given (more formal the
questioning, then the more obviously testimonial it is).
○ Ex 1: A 911 call about an ongoing domestic assault is not "testimonial" because purpose of call is
informal and to resolve a crisis, not help law enforcement prosecute the abuser. But it depends what
the caller is saying. If she's describing an assault that is occurring at her house but also adds that the
abuser lives at a different address, then that statement in particular is made for purposes of a more
 investigatory and "testimonial" nature. On the other hand, if the abuser has left her house, say, to go
get a gun from his place and come back, then that is a fact that would actually make it more of an
ongoing emergency situation even though the instant assault itself is over-with. ​TLDR: This analysis
is very fact-specific.
○ Ex 2: If an armed perpetrator shoots someone and leaves the scene of the crime, then details about
that armed prep are similarly going to tend to be about resolving the emergency of an armed perp
being out there and dangerous.
● 2) ​Forfeiture by Wrongdoing Exception​: IF ∆ ​makes​ the witness unavailable ​for the purpose of preventing
them from testifying​, THEN he forfeits his right to confront the witness.
○ NOTE, however, that it requires specific purpose of wanting to prevent them from testifying. A
regular old murder for money would NOT satisfying this rule. Prosecution ​must​ prove this exception
by a preponderance of evidence.
● Dying declarations​ have NOT been explicitly acknowledged by Supreme Court as exception to CC, though
they are an ​804​ unavailability HS exception that USED to be applied to CC IN OLDER TIMES.

Bruton​, Confrontation, and 801(d)(2)(E) Co-Conspirator Exemption from HS:

● Bruton v. US​ held ∆s CC rights are violated when non-testifying co-∆s confession naming ∆ as participant in
conspiracy are introduced at their JOINT trial, even when jury is instructed to only consider the
co-conspirator's confession against that co-∆ and not the other ∆.
● Why is ​Bruton​ an issue?​ Essentially, what happened in this case is that two ∆s were tried in the same trial
for the same crime as co-conspirators. Prosecutor used ∆ A's admissions under ​801(d)(2)(E)​ to count as an
admission of guilt against ∆B. Defense objected, and judge instructed jury to only consider the statements for
A's guilt, and ignore the fact that B was implicated in the inadmission. Problem is that the implicated ∆
wanted to confront and cross-examine the veracity of the confession by questioning his co-defendant on the
stand, but his co-∆ chose not to testify. Quite the bind! The Court said it's unfair and unconstitutional to allow
801(d)(2)(E)​ to be used even with the trial court's instructions to the jury in this super narrow fact pattern.

Part 4​: Policy Rules & Authentication

Policy Rules
● 407​ ​Subsequent Remedial Measures​. ​canNOT​ let π’s prove negligence or culpability with corrective
actions the ∆ took ​after​ the π’s harm occurred, or else that would instill a chilling effect on correct measures
by corporations.
● 408​ ​Compromise Offers and Negotiations.​ ​None​ of the substance or results of these are admissible to prove
fault, liability or damages. If we let this shit in at trial, then parties would never have negotiations out of fear
that everything they say could be shown to the jury later.
● 409​ ​Offers to Pay Medical and Similar Expenses.​ ​NOT​ allowed to use to prove liability for an injury or
else nobody would ever offer to pay someone's medical expenses out of fear of getting later sued for their
generosity.
● 410​ ​Pleas, Plea Discussions, and Related Stmnts​. ​NOT​ admissible in both civil and crim cases against a ∆,
AS LONG AS the plea did NOT occur OR it was later withdrawn. However, a court ​may​ let in statements
from pleas and plea hearings to impeach a witness IF they are lying about it, OR in a criminal prosecution for
perjury involving the plea.
● 411​ ​Liability insurance.​ NOT admissible to prove liability. ​Can​ be offered to prove bias or prejudice,
agency, ownership, control.
● 610​ ​Impeachment of Religious Beliefs.​ NOT allowed. ​canNOT​ attack credibility because witness subscribes
 to any religious belief. Religious beliefs ​may​ be relevant for other purposes though.

Sex History/Predisposition Rules

● 412​ ​Victim's sexual predisposition​. Gen’lly ​NOT​ allowed.
○ 412(b)(1)​ ​Criminal EXCEPTIONS.​ Allowed to show someone other than ∆ is source of
semen/injury, or to prove consent, or anything offered by the prosecutor. Still won't come in unless
excluding it would violate ∆s constitutional rights.
○ 412(b)(2)​ ​Civil EXCEPTION.​ Admissible to prove victim's predisposition or behavior if probative
value substantially outweighs danger to victim and unfair prejudice (reverse ​403​). Also victim may
place this topic at issue by choice.
● 413-415.​ ​∆’s sexual history.​ In criminal and civil cases, prosecution/π ​can​ offer evidence that ∆ committed
similar sexual misconduct in the past, PROVIDED they fully disclose all the info on those past cases to
defense and give written notice of intent to offer them.

Authentication
● 901​ ​Authentication​ Defined​. Any item of evidence m​ ust​ be authenticated to sufficiency of evidence,
meaning evidence supporting finding that item is what proponent claims it is.
○ 901(b)​ ​Examples, an Inclusive (not Exhaustive) list.​ ​Testimony of witness with knowledge,
non-experts about handwriting, distinctive characteristics of the item of evidence, opinion about a
voice, opinion about telephone speaker, and public records can all be authenticated by a witness
saying they appear sufficiently familiar.
● 902​ ​Self Authenticating Evidence​. Sealed and signed domestic public docs, and certified copies of public
records. Official publications, newspapers, trade inscriptions, commercial paper -- all self-authenticating, but
still subject to HS of course!

Part 5​: Experts

Threshold Expert Testimony Qualification

● Under ​Daubert​ and other cases, Court ​must​ making finding that qualifications listed under ​Rule 702​ have
been met ​before​ allowing a jury to hear testimony of expert nature.
● 702​ ​Testimony by Expert Witnesses​. Witness canNOT offer expert conclusion U ​ NLESS:​
○ (a) he is qualified as expert by specialized training, education or experience in scientific, technical or
other such field.
○ (b) testimony based on sufficient facts or data
○ (c) principles and methods used are "reliable" as defined by ​Daubert​. Reliable can but need not
include peer reviewed, testable, known error rate, accepted in the scientific community, or anything
else relevant.
○ (d) expert reliably applied principles and methods to this case
EXCEPTIONS to Personal Knowledge of Testimony by Expert
● 703​ ​Bases of Expert.​ May base opinion on facts or data the expert has not been personally made aware of,
provided experts in his field would reasonably rely on them. The opinion can even be based on inadmissible
evidence such as character evidence or hearsay, provided it's reliable for expert to rely on it.
● 703​ ​Offering Inadmissible Underlying Evidence.​ Proponent can even offer the inadmissible underlying
evidence for an expert conclusion, provided it is reverse ​403​ substantially more probative than prejudicial and
is helpful (i.e. necessary) to trier of fact in understanding expert's conclusion.
● 705​ ​Disclosing Underlying Facts and Data​. Proponent need not first offer underlying facts and data before
offering conclusion, but the court can order it if it wishes. And opponent can always delve into underlying
 facts and data on cross examination to challenge credibility of expert's conclusion, even if underlying info is
otherwise inadmissible.

Expert Opinion on Ultimate Issue

● Definition​: When a witness opines on existence of an element of crime or tort. ​Ex: "In my opinion, John was
criminally negligent."​ Old rule always prohibited this.
● 704(a)​ Generally IS admissible today!
● 704(b)​ The 1 EXCEPTION: In a criminal case, an expert MUST NOT state opinion about whether ∆ did or
did not have required mental state/condition for a crime or a defense to crime. ​Ex: Expert cannot say ∆ had
mens rea or intent. Or: Expert cannot say ∆ was criminally insane at the time of the murder; rather, he can
only say ∆ demonstrated insanity at times before and after the murder.