Evidence

I. Introduction to evidence (08/20/20)

 How heavily the jury weighs the witness’ credibility usually depends upon:
o Perception
o Memory
o Logic/Clarity
o Veracity
 The attorney is the mechanism for how the evidence gets admitted and questioning is done by:
- Direct Examination:
o Performed by the party that puts the witness on the stan
o Focuses on the witness’s personal knowledge as to the issues in the case
 What did they hear, see, know?
 Cannot ask “just tell up about the case” that is narration
 Instead ask questions that breakdown the story in individual digestible
pieces of evidence that bolster the side of the question
 Questions cannot be leading
 Leading questions are not allowed because essentially the attorney would
be testifying
 Occasionally a leading question gets in so long as it is not in controversy
meaning the other side most likely will not object
 No leading questions on redirect either
- Cross Examination
o Performed by the opposing attorney against the other side’s witness
o Questions are leading- prompting yes or no answers
 Trying to poke holes in the other side’s case and to call into question the
witness’ credibility
 Tangible Physical Evidence
- Is able to be looked at by the jury
 Testimonial evidence is not available to the jury
- The jury does not get a copy of the record and most judges don’t allow the jury to take knots
 Direct vs. Circumstantial evidence
- Direct evidence is evidence where the jury does not have to prove any inference
o Eyewitnesses
o Confessions
- Circumstantial evidence that which requires the jury to draw an inference
o DNA evidence
o I was there but didn’t see it
II. The Role of the Judge
 RULE 102
- “These rules should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promise the development of evidence law, to the
end of ascertaining the truth and securing a just determination”
 o Empowers judges to have discretion to move things along swiftly, fairly, and without
wasting time
A. Can a judge comment on a case?
- Federal Judges are allowed to comment on the evidence
- In Texas the judges aren’t allowed to comment because they can unduly influence the jury
- In US v Yates
o The defendant claimed that he did not understand that he was signing a confession
and wanted a physical copy of the alleged confession entered
o Judge agreed with the defendant, but the problem was that the judge said “it is
clear that the defendant confessed in the case
o The court reversed finding that the trial court judge abused his discretion 1
B. Can a judge interact with a witness?
 Rule 614 Court
a. “Calling. The court (judge) may call a witness on its own or at a party’s request. Each party
is entitled to cross examine the witness.
b. Examining. The court may examine (question) a witness regardless of who calls the
witness.
c. Objections. A party may object to the court’s calling or examining a witness either at the
time or at the next opportunity when the jury is not present.” 2
- Crandell v. US
o Plaintiff’s argued on appeal that the judge predetermined the case (decided before
it ever went to trial) and made that predetermination blatantly evident by
o preventing meaningful cross examination by the plaintiff; ridiculing the failure to
settle; and aggressively questioning the expert.
o Appeals court found abuse of discretion 3
C. Can a judge limit the amount of time that an attorney can produce?
- Absolutely yes because attorneys would never stop talking
 Rule 403: When a judge can exclude relevant evidence
- Judges may exclude relevant evidence for prejudice, confusion, waste of time, or other
reasons”
- “The court may exclude relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”4
 Rule 611 Explains how the judge/court can control the courtroom
- Mode and order of examining witnesses and presenting evidence
a. “control by the court: purposes. The court should exercise reasonable control over the
mode and order of examining witnesses and presenting evidence as to:

1
Abuse of discretion is always the standard of review for an appeal based on evidence
2
Normally, you have to object right when something is wrong to preserve it, however, you may object to the judge
calling and questing a witness at the first time the jury is gone so that you don’t look like an ass to the judge.
3
Does not matter if it is a bench trial or a jury trial
4
Cumulative evidences explain that the plaintiff really does not need 20 experts saying all the same time
 (1) Make those procedures effective for determining the truth;5
(2) Avoid wasting time; and 67
(3) Protect witnesses from harassment or under embarrassment.”

III.. Relevancy (08/25/2020)

 Relevancy is the first step/question to determining if something is Admissible

 RULE 401 Defines Relevance stating “evidence is relevant if:
- a. if it has any tendency to make a fact more or less probable than it would be without the
evidence: and (Logical Relevance) 8 9
- b. the fact is of consequence in determining the action” (Materiality)
- Logical relevance analysis
o If a red Ferrari hits a silver Honda and drives off; the Honda hires and investigator
that takes a picture of the red Ferrari with the silver paint; could it be admissible;
the evidence would have a tendency to prove a fact (low bar)
- Materiality relevance analysis requires you look to the actual law 10
o If a Bicycle manufacturer is sued for a design defect and the person who built the
bike was negligent, then it is logically relevant but not material because it only
shows negligence and the person is suing on a design defect
o If a defendant is charged with murder and his wife starts screaming over and over
again, “where is the body, I challenge you to show me where the body is,” and the
prosecutor wants to introduce the wife’s comments. Can the Defense attorney
object? The defense attorney will likely object that there is no relevancy the wife
was just shocked and raising a defense.
- People v. Adamson:
o Fingerprints and tops of stockings were found in Defendants apartment; but the
stocking tops didn’t match the stocking bottoms found at the crime scene
o Meets 401 a tends to prove a fact and is thus logically relevant
o Trial court allows it in and the appellate court agrees because it is logically relevant;
it links
 Rule 402 General Admissibility of Relevant Evidence
- Relevant evidence is admissible unless any of the following provides otherwise:
o The United States Constitution 11
o A federal statute12
o Other rules prescribed by the Supreme Court

5
Judge could let a witness testify early because he is having a baby
6
Judge can make tight time limit ton cases unless it is an extreme limits; like an hour per side in a very complex
case to which it would be reviewed on an abuse of discretion standard
7
Strict time limits pressure people to settle
8
Most arguments are made over prong A the logical relevance
9
Doesn’t have to be a good or strong tendency just it is more or less probable to show a fact; don’t worry about
how much weight the jury will give something just if it will in itself get in front of the jury
10
Character witness are always material and logically relevant
11
Ex: Exclusionary rule forbids evidence illegally seized by the police
12
Ex: A statute protecting relevant trade secrets, prevent it from being entered
 o The federal rules of evidence themselves13
 Rule 403 Excluding relevant evidence (even though it is relevant) for prejudice, confusion,
waste of time, or other reasons
- The court may exclude relevant evidence if its “probative value is substantially
outweighed by a danger” of one or more of the following (counterweight):
o Unfair prejudice 14
o Confusing the issues 15
o Misleading the jury
o Undue delay
o Wasting time
o Needlessly presenting cumulative evidence16
- 403 is a balancing test between the probative value and the counterweights
o There is a favor of admissibility unless the counterweight is so prejudicial,
misleading, etc.
o Meaning the more probative the evidence, the more extreme the counterweight
has to be.
o Often subjective to the judge 17
- Aaron Hernandez Case
o Prosecutor wants to admit selfie of Aaron with a gun to prove that he had access to
a gun in the crime he committed
 Probative value of the gun is low because the gun used in the crime was
different and taken years before the crime
 The prejudicial risk is high
 Judge found the gun inadmissible 18
- Carter v. Hewitt
o Inmate sued the prison guards claiming that the prison guards violated his rights by
using excessive force.
 There was a letter written by another inmate conspiring to make up these
claims
 Does it get in under 401? Yes, because it is relevant both logically and
materially relevant
 Plaintiff argues that it was written six month after the beating, so it is not
relevant
 Court finds that is relevant because it tends to prove that he falsifies claims

13
Ex: the evidence is not allowed in because it is hearsay or privilege
14
All evidence is prejudicial; only excluded if unfairly prejudicial; ex: extremely gruesome photograph of victim
15
Ex: If expert testimony would confuse the jury of the issues
16
Logically relevant but not that probative only wasting time; ex: witness with duplicative or not very probative
testimony that would take three months to get back..
17
Know the test (probative value substantially outweighs the danger) and know that it weighs in favor of
admissibility
18
On the exam it will be completely obvious, and she will give the standard. The question will be like: The evidence
is inadmissible because a. the probative value does not substantially outweighed the prejudicial effect (not the
standard) or b.) the prejudicial effect substantially outweighs the probative value. B is correct because that is the
standard.
  Under the 403 analysis the court evaluates the prejudicial effect (the
tendency to provoke the jury’s emotions)19 and finds that that the evidence
is not barred because the prejudicial effect does not outweigh the probative
value
- Old Chief v. United States
o Defendant is charged with illegal possession of a weapon by a felon
o The Defendant had a prior felony conviction for aggravated assault
o Prosecution has to prove that he has a prior conviction
o Defendant want to say that he had a prior conviction but not bring up the name and
nature of the crime because he is concerned about prejudice
o The Supreme Court found that the trial court abused it discretion in allowing the
Prosecution to bring up the exact nature of the crime 20
 Rule 105: Limiting Evidence that is not admissible against other parties or for other purposes
- If the court admits evidence that is admissible against another party or for a purpose- but
not against another party or for another purpose- the court, on timely request, must
restrict the evidence to its proper scope and instruct the jury accordingly.
o This means that if evidence is admissible for one reason but not another then the
judge must tell the jury to only consider it for its relevant nature
o In the previous example: the evidence that the D had a previous conviction of
aggravated assault served the purpose and was admissible to proving that the
Defendant met the statute’s requirement of proving he is a bad guy, however, it is
not admissible to just prove that he is a bad person. Therefore, if the judge admits it
then the judge must tell the jury this is only considerable for the purpose of meeting
the statute and for no other reason (like proving he is violent, etc.)
 This is problematic because the jury has heard prejudicial evidence and you
cannot just tell them – just do not be prejudice
 Unfair Prejudice Analysis;
- Does the evidence have an undue tendency to suggest a decision on an improper basis?
- Does the evidence appeal to the jury’s sympathies, arouse its sense of horror, provoke its
instinct to punish?
- Does it cause the jury to base its decision on something other than established proposition
in the case?
- Is any of that enough to make evidence inadmissible? 21
o Some cases involve simulations that show the POV of the D and all the steps
necessary to pulling the trigger or committing the crime; and the immediate harm to
the victims. These are sometimes allowed; however, the more lifelike the more
likely that it could invoke the jury’s sense to punish.
 Rule 104 Preliminary Questions

19
A classic example of unfair prejudice is a history of criminal activity
20
Typically, the defendant does not get to stipulate how the Prosecution brings his case it only worked in this case
because the statute specifically allowed for it; in another example, the prosecution wants to bring up that he found
15 assault weapons in the defendant’s house, the D cannot stipulate just that “he had weapons in his house”.
21
Example: Overly prejudicial to admit the video of a stained victim which showed videos of the victim as a child
and on the first day of school
 a. In general, the court {the judge} will decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court
tis not bound by evidence rules., except those on privilege. 2223
b. Relevance that depends on a fact. When the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a finding that the fact does
exist. The court may admit the proposed evidence on the condition that the proof be
introduced later. 2425
- Example: D previously sold stolen merchandized and claimed on trial that he did not know it
was stolen, they admitted the previous evidence that he had knowingly sold stolen goods. 26
 Relevance limits based on policy even though it is admissible on 401 and 403
 Rule 407 Subsequent Remedial Measures
- When measures are taken that would have made an earlier injury or harm less likely to
occur, evidence of the subsequent measures are not admissible to prove:
o Negligence;
o Culpable conduct;
o A defect in a product or its design; or
o A need for a warning or instruction.
- But the court ay admit this evidence for another purpose, such as impeachment or—if
disputed- proving ownership, control, or the feasibility of precautionary measures. 27
- Ownership, control, or feasibility MUST BE CONTESTED!
- If used to impeach a witness on the stand, it does not have to be contested to be
admissible, but not to show liability just to show that they are lying
- Policy: encouraging companies to enact safety measures to prevent future harms
- Anderson v. Malloy:
o Three motel owners are sued because a lady who rented a hotel room was raped.
She sues them for negligence and breach of implied warranty.
o P wants to admit that they had peep holes and chain locks on the door after the
rape.
o D argues that they did everything officers recommended and that 407 makes it
inadmissible and trial court agrees
o Appellate reverses saying it was abuse of discretion because the P was questioning
feasibility because P’s attorney question if it was “infeasible” for him to put in the

22
This means that the judge is allowed to consider inadmissible evidence in determining if another piece of
evidence is admissible. However, a judge cannot force you to brake privilege.
23
403 only applies to jury trials. In a bench trial, the judge has to see the evidence anyway.
24
Example: Car accident; P is claiming negligence, an investigator goes to the scene and finds a rim of the car. The
investigator finds based on the rim that the D was going over 100 miles per hour. In order to prove the relevance;
the investigator and P has to prove that it is from the D’s vehicle. Therefore, the relevance of the rim is dependent
on the evidence that the rim belongs to the D. Judge can conditionally admit it with a condition that they only
consider it if they also find that it came from the car. Therefore, if it did not come from the car, do not consider it.
25
Rarely see these issues brough up because most evidence is conditions on some other aspect of evidence.
26
Evidence of habit is typically relevant
27
If P trips and falls on a crack on D’s sidewalk and D repairs it the next day; P cannot introduce that to prove
culpable conduct.
 peephole. Because D did not answer the feasibility question directly, P could raise it
on stand.
-
o Most courts agree with the Dissent which states that they read too in depth on D’s
response; feasibility means that they cannot do something; P raised was it necessary
not feasible.
- Limitation on 407
- If the repair was made before the accident it does not count as a subsequent remedial
measure
- If a non-party makes the improvement; then is does not apply to the rule
- Harrison v. Sears,
o P used a saw jointer and got a finger cut off in an opening in the device and then
sued for a defective design
o D said that they design made it impossible for him to have had his fingers cut
because the was no hazardous area that his hand could have unintentionally got his
hand caught in but the testimony must directly bring up the remedial measure and
so was inadmissible
- Rule 408
o Summary: Offers to settle or things that are furnished, produced, or offered, in the
process of trying to settle
o Exception: court may admit evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an
effort to obstruct criminal investigation or prosecution
- Pierce v. F.R. Tripler
o P was fired and is now claiming age discrimination. D contacted P’s lawyer offering a
financial position in a subsidiary if he drops the lawsuit, but said it was not a
settlement agreement but an act to mitigate damages
o Court holds that it was a settlement agreement that should not get in because it was
in exchange for dropping the lawsuit
 Immunizing Admissible Evidence
- Just because someone refers to something in a settlement agreement that is otherwise
admissible, it does not lose its admissibility because it was offered during settlement
- The rule only refers to discussion as evidence
- McShain v. Cessna
o A corporation purchased a claim manufactured by the D that had mechanical issues.
First time it broke, they took it to an unaffiliated company. After the third time it
broke, they filed suit against D, but released the first mechanic for $10 to use their
company’s employee as a witness. D raises that the mechanic has a reason to lie
because he got out of liability. The court holds that it is allowed because it proves
the witness’s bias or prejudice qualifies as an exception.
 Rule 409 Offers to Pay medical and Similar Expenses
 - Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury. 28
- All the other statements like “it was my fault” do get in.
 Rule 410 Please, pleas discussions, and related statements (09/01/2020)
a. Prohibited Uses. In a civil or criminal cases, evidence of the following is not admissible against
the defendant29 who made the plea or participated in the plea discussions:
i. A guilty plea that was later withdrawn;
ii. A nolo contendere plea (a no contest plea);
iii. A statement made during a proceeding on either of those pleas under Federal Rule of
criminal procedure 11 or a comparable state procedure; or
iv. A statement made during please discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a later-
withdrawn guilty plea.
b. Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): 30
i. In any proceeding in which another statement made during the same plea or plea
discussion has been introduced, if in fairness the statements ought to be considered
together; or
ii. In a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath ,on the record, and with counsel present
- United States v. Menazzanatto
o D charged with possession of meth w/ intent to deliver; D is offered a plea deal
conditioning that he will recommend a lesser sentence so long as the D was
completely truthful and if he does lie then anything different said at trial can be
used to impeach him
o D agrees but then lies; plea deal is dropped; D argues that 410 cannot be waived
o Supreme Court states that the D can waive protection under 410 but only for the
portion allowing it to be used against then at trial when they take the stand 31
 Rule 411 Liability Insurance32
- Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully. But the court may admit
this evidence for another purpose, such as proving a witness’s bias or prejudice or proving
agency, ownership, or control.
- Charter v. Chleborad
- Malpractice suit where P claim his legs were amputated due to the doctor’s negligence.

28
P and D get in a barroom brawl; D says if you sign a release, I will pay your bills, because I know this is my fault.
408 does not apply because no claim yet.
29
This rule only bars the prosecutor to use against the defendant; the Defendant is allowed to raise these issues
30
If D represents statements from the plea and the prosecutor wants to introduce other statements from that
same plea then it ought to be considered in fairness; meaning once he opens the door of the plea evidence is fair
game to provide clarity
31
Under the same facts, except the D did not agree to a waiver, but later brought up in court that there was deal
offered but he did not take it; the Prosecutor can still bring up other statements made during the negotiation.
32
Only applies to liability insurance; casual insurance is not barred especially if it proves motive in say an arson
case
 - P brings expert that says the doctor was negligent; defendant’s witness calls him a liar and
claims that he works for the insurance company and has bad motive;
- Witness claims that it is proof of liability insurance and thus should not get in;
- Trial court agrees; Appeals court reverses stating that this is an exception to the rule
because it is offered up to show prejudice and bias of the witness
III. Witness testimony (Article 6)
 Rule 601 Competency to testify in General
- Every person is competent to be a witness unless these rules provide otherwise. But in a
civil case, state law governs33 the witness’s competency regarding a claim or defense for
which state law supplies the rule of decision.
- Example: is a witness was on drugs; you cannot object that they are not competent; you
instead just question them on stand to prove that they are unreliable
- United States v. Roach
o D robs the bank. The girlfriend is called to testify at trial. Defendants object that she
was known to be mentally unstable and a drug user. Judge gave her a psychological
evaluation and found her competent. D’s appeal and the appeal court finds no
abuse of discretion finding that the judge did not even need to order a psych
evaluation. 34
 Child Witnesses
- Really the only time competency comes up; the rule typically calls children three years of
age or under, as not competent
- Over four, is typically a case by case determination
- Wheeler v. United States
o D was charged with murder and sentenced to be hanged; D objected to his four or
five old son testifying in order.
o Voir dior- questions the child to see if he is competent
- The test is subject to the judge’s discretion
- There are statutes that mandate the presumption of competency for a child
- There are availibity of the child to testify on camera via close circuit tv’s when the child is a
victim
 Previously hypnotized witnesses
- Example: Person who testifies makes some statements that are inconsistent; after being
hypnotize the person remembers everything
- There can be no bright line rule preventing a criminal defendants from being able to testify
because they have a constitutional right to testify
- There are certain safeguards that allow
 Rule 605 Role of the Judge
- The presiding judge may not testify as a witness at the trial; a party need not object to
preserve the issue.
- Judge is considered not to be competent to testify
 Rule 606

33
A civil diversity case in a federal court uses state law.
34
601 is a really low standard. Courts will only reverse if the trial judge finds the witness incompetent. Even legally
insane people can testify without being considered incompetent.
 a. At trial. The jury cannot testify as a witness before the other jurors at trial. If a juror is
called the court must give a party an opportunity to object when the party is not present.
b. During an inquiry into the validity of a verdict or indictment.
i. Prohibited testimony or other evidence. During an inquiry into the validity of a
verdict or indictment, a juror may not testify about any statement mode or
indictment that occurred during the jury’s deliberations; the effect of anything ton
that juror’s or another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment. The court may not receive a juror’s affidavit or evidence of a
juror’s statement on these matters.
ii. Exception. A juror may testify about whether:
a. Extraneous prejudicial information that was improperly brought to the jury’s
attention35
b. An outside influence was improperly brought to bear on any juror; or 36
c. A mistake was made in entering the verdict on the verdict form
- Tanner v. United States
o A jury was drinking, snorting coke, smoking marijuana, and falling asleep
o D argues that it violates his right to a fair trial and wants the jury to testify after the
fact
o The trial court does not allow testimony and appellate courts find that it is not an
external influence; it was basically the equivalent of a juror sick or asleep. These are
considered internal matters and not external and thus no testimony allowed. 3738
- Discrimination Case
o Jury made statements that all Latinos are criminals; the supreme court opened up
the rule a little bit finding that explicit evidence of racial discrimination may be a
reason to allow a juror to testify after the fact.
 Rule 602 Need for Personal Knowledge
- A witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness’s own testimony.
- Exception: Experts do not need personal knowledge about the case to be heard.
- Mccrary-El V. Shaw
o P is an inmate suing for excessive force used by a guard. P wants to introduce the
prisoner in the cell next to him who claims he saw the beating through a half-inch
crack in the cell. However, diagrams showed he could not actually see through the
crack.
o The trial court finds that the testimony is excluded under 602 because he could not
see anything of relevance and the appeals court finds no abuse of discretion
because his testimony would be purely speculative. 39
35
Ex: a juror friend tells her something and she tells others in the jury
36
Ex: a bribe
37
Drugs and alcohol are not an external influence
38
The rule only applies to a juror testifying after the case. If during the case, the judge, attorneys, or bailiffs saw
this, a mistrial could have been declaring. Also, a bailiff could have testified.
39
If the witness would have testified that he had heard the beating, then it would have likely been admitted, but
he was only testifying as to what he heard.
  Rule 603 Oath or affirmation to testify truthfully
- Before testifying a witness must give an oath or affirmation to testify truthfully. It must be
in a form designed to impress that duty on the witness’s conscience. 40
- United States v. Fowler
o D not allowed to testify in a case for willful failure to file taxes because he would not
swear to tell the truth, just kept saying things like “I am a truthful man” or “I would
not tell a lie to stay out of jail.”
 Rule 611 Mode and order of examining witnesses and presenting evidence
i. Scope of Cross-Examination. Cross examination should not go beyond the subject matter
of the direct examination and matters effecting the witness’s credibility. The court may
allow inquiries into additional matters as if on direct examination.
ii. Leading Questions. Leading questions should not be used on direct examination except as
necessary to develop the witness’s testimony. Ordinarily, the court should allow leading
questions:
1. On cross-examination; and
2. When a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party.
- Scope of cross examination
o After a witness has testified on direct, you cannot ask them questions beyond what
they have testified on direct (although questions about credibility are always
relevant)
o If you want to ask them other information, you have to call them back during your
case in chief/rebuttal or
o The court may allow you to question as if they are on direct (meaning no leading
questions)
 Rule 611 a witness may use a writing to refresh memory while testifying or before testifying
but
- An adverse party is entitled to have the writing produced, to inspect it, to cross examine
witness about it, and to have it admitted into evidence
- Doty v Elias
o Waitresses read a paper to jog their memory of the hours that they had worked
months ago and then testified without using the paper to remember and answer
when testifying; appeals court said this was fine so long as it was just to remember
and not to read something as hearsay into the record
IV. Hearsay
 Hearsay is an out of court statement offered to prove the truth of the matter asserted in a
statement
 Rule 802
- Hearsay is not admissible unless any of the following provide otherwise:
o A federal statute;
o These rules; or
o Other rules prescribed by the Supreme Court

40
Does not have to be sworn to God or some other holy book, just must be to be truthfully.
 Overview of Rules

I. General Provisions
II. Judicial Notices
III. Presumptions in Civil Cases
IV. Relevancy

Is Evidence admissible

1. 401 Relevancy definition

a. Logically relevant: a tendency to prove a fact
b. Material: relevant to an element of the law
2. 402
- Mandates that irrelevant evidence is inadmissible
3. 403 All evidence has to satisfy:
- Excludes relevant evidence if its probative value is substantially outweighed by:
o Unfair prejudice if substantially outweighs the probative value
o Confusing issue if substantially outweighs the probative value
o Misleading jury if substantially outweighs the probative value
o Undue delay, wasting time, cumulative if substantially outweighs the probative
value
4. For instances of subsequent measures, hospital bills, settlements offers check the exceptions
- 407 Subsequent measures inadmissible unless
a. Not subsequent and done before
b. Done by a third party
- 408 Settlement offers unless
a. Impeach a witness
b. Otherwise admissible
c. Negating contention of undue delay or
d. Proving an effort to obstruct criminal investigation
- 409 offers to pay medical expenses
a. An admission of guilt is admitted
V. Privileges
VI. Witnesses
Rule 601: competency to testify
Rule 602: Personal knowledge
Rule 603: oath or affirmation
Rule 605: judge cannot be a witness
Rule 606: Juror canont be a witness at trial or at inquiry into verdict
 Rule 611: Mode and order of examining witness and presenting evidence
Rule 612: writing used to refresh a witness’s memory
VII. Opinion and Expert testimony
VIII. Hearsay
Rule 801: defines what hearsay is and what is excluded form that definition
Rule 802: declares hearsay inadmissible
Rules 803, 804, 807 provides exceptions
Rule 805 hearsay within hearsay
Rule 806; governs attacking and supporting credibility
IX. Authentication & Identification
X. Content of writing Recording, & Video

Steps for Determining if something is Admissible