Evidence Outline

TAKING EVIDENCE
PERSONAL KNOWLEDGE / LAY OPINION / COMPETENCE-WITNESSES 121;25;28
Preconditions to Testimony
1. Oath – (603) – (NO special verbal formula req. – just promise tell truth)
2. Competence
3. Personal knowledge / lay opinion (602)

601: KSA 60-407: General Rule of Competency

EVERY person is competent to be witness except as otherwise provided in these rules/ state law
o No general incompetency (fed. ? cases) BUT defer to state law IF diversity
 Eliminates ALL grounds of incompetency NOT specifically recognized (no specified mental/moral qual.)
o Case Law: ALL questions prev. treated as competency now= matters of credibility for fact finders
 Discretion exercised in favor of allowing testimony
Exceptions:
 605: Judge may NOT testify @ trial over which he presides
 606(a): Juror may NOT testify in a case in which he is sitting---(see KSA 60-444; 60-441)
 Dead Man Statutes (only real witness qualification) N/A KS or FRE
o Prohibits a witness from testifying about transactions w/ a now-deceased person
Judge discretion keep out
 603: Oath or Affirmation to Testify Truthfully: form NOT capability
o judge determine whether witness understands meaning of promise & has capacity to keep it
(similar 60-417)
 KSA 60-417- ONLY 2 grounds declare witness incompetent testify as witness
1. Witness incapable express self
2. Witness incapable understand duty to tell truth
 403***(relevance): a judge can exclude testimony from an “incompetent” witness b/c judge has authority
to exclude evidence IF its probative value is substantially outweighed by the danger of unfair
prejudice, confusion, or waste of time

602: KSA 60-419: Lack of personal knowledge

Witness ONLY testify IF personal knowledge of matter (unless expert)
KSA 60-419: Judge may reject testimony if judge finds NO trier of fact could believe witness perceived the matter
 Evidence to prove personal knowledge may be witness' own testimony (I was there…I saw)
o enough witness claims to have personal knowledge (prima facie std.)
 Does NOT have to be100% certain: I think/ I believe= OK (credibility NOT admissibility issue)
 Witness can ONLY testify to what he saw, heard, or perceived----if Opinion -> see 701
Exceptions:
 Admissions
 Does NOT apply to experts (see 703)
 701: lay witnesses are also allowed to express opinions IF 1 st based on personal knowledge
 704 & ultimate issue for expert opinion on mental state of a criminal ∆
o Judges almost never allow a witness to express an opinion about the credibility of the testimony of
another witness (this is reserved for the trier of fact to decide)

1: D charged w/ arson for a fire at 3 PM on July 4th in NYC. D’s 8 year old son testifies that he called his
dad on July 4th around 4 PM long-distance to Chicago and that his uncle told him his dad was out
 Boy has personal knowledge of phone call & conversation taking place b/c testifying to what HEARD
(recognized voice/ participant in convo.)
o Not merely testifying dad was in Chicago, but that his uncle told him his dad was in Chicago
Objections
 Speculation, Conjecture, Just guessing
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Evidence Outline
 hearsay IF offered to prove where dad was at the time of fire
 No personal knowledge made long-distance call ---ONLY testify talked to

Lack of Personal Knowledge vs. Hearsay

 Lack of personal knowledge = Witness asserts a fact he really doesn’t know (can wait to obj. until cross)
 Hearsay = Witness repeats someone else’s statement (offered for its truth)

701: KSA 60-456(a): Opinion Testimony by Lay Witnesses

Witness NOT testifying as expert, testimony is limited to opinions or inferences which are
(a) Rationally based on witness’s own perception, (satisfy 602 b/f eliciting opinion) AND
(b) Helpful to a understanding witness testimony/ determination of a fact in issue, AND
(c) NOT based on scientific, technical, or specialized knowledge w/in scope of 702 (expert testimony)
 Test is helpfulness ----------Typically: admit opinions when helpful to trier of fact (judge’s discretion)
o Shorthand summary of observations difficult to describe may be helpful (intoxication, sanity, speed)
o Testimony RE: D demeanor can be helpful
CANNOT
 Base opinion on conjecture or speculation beyond perception
o NO bright line b/t fact & opinion-----Fact just more specific statement of opinion
 Testify to another’s state of mind / intent / unspoken words
EX: (Tellez) ask a witness what D (other person) saw / why D did something
 BUT Can have a reliable basis for inferring what another person’s emotional state was
o EX- Can give opinion someone was “angry” based on words, body language

14: P calls third party witness who testifies that she was sitting on her front porch 75 yds from where
D’s car left the road. She did not see the car, but heard tires squealing and car hit some trees.
Can TP estimate the speed of the car?
 NOT 602 problem b/c witness perceived the sound of the car
 701 problem b/c speed = conclusion – argue opinion of car’s speed would be helpful, normally can’t
estimate speed based on sound (argue may still be possible)
o KS- Stafford vs. Karaman (125) - could estimate if SAW vs. heard

15: Witness from around corner testifies he heard gun shots -> saw D 20 yds from house running as fast as he
could away from house b/c just shot murder victim. Is testimony objectionable?
 Gun shots w/in 20 yds- SAW = satisfy 602 b/c witness’s perception
o BUT 701 implicated b/c opinion is conclusion RE: distance being exactly 20 yds
 701 b/c opinions (conclusion)
o D @ scene & running away from house
 602- around corner= no basis for perception
o exactly 20 yds from house;
 conclusion RE: distance w/o actual measurement (obj. probably not sustained)
o running as fast as could
 no foundation – seen run b/f? (probably permissible to describe running fast)

NO witness may express opinion of what law is OR use undefined legal terms of art (KS-128)-

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Evidence Outline

DIRECT & CROSS EXAMINATION

611: KSA:60-243(b): Mode & Order of Examining Witnesses & Presenting Evidence
a) Judge’s Plenary Control judge broad (unreviewable) discretion on how evidence presented
 can require specific questioning vs. narrative (open ended -allow witness to answer freely)

c): Direct Examination (Party questioning someone it called as a witness)

MAY NOT use leading questions (suggests answer) on direct examination UNLESS
 Necessary to develop witness testimony (refresh recollection/ diff. comm. / kid)
 Preliminary matters (undisputed matters)
 611(c)2: party is hostile witness/ adverse party/ witness ID’d w/ (closely connected to) adverse party .

3 common situations leading questions are permitted on direct:

1. one party in a civil case calls the opposing party as a hostile witness
2. a party calls an employee, relative, or other person “identified” with the opposing (adverse) party
3. witness hostile to direct examiner: being evasive, changing story, or giving damaging evidence

b): Scope of Cross Examination

 CAN use leading questions
 limited to subject matter of direct examination AND matters affecting credibility
o BUT IF open the door on direct-> other side entitled to explore topic opened up EVEN IF not
originally permitted
 EXCEPT- Everett (KS 72(b)- consequences should be equivalent w/ degree door opened
 Probation evidence essential to defense CANNOT be used as damaging
o Judge’s discretion to allow go beyond subject matter on direct
KSA 60-243(b) Scope of Examination
 Unlimited Leading ?s @ anytime IF unwilling / adverse party
 NO extension to parties ID’d w/ adverse party

3: P Testify up to moment of accident direct – D (on cross) wants to ask what happened AFTER accident (b/c
fled scene)
 Objection – beyond scope of direct – witness ONLY testified b/f NOT post-accident
 D argue- part of subject matter b/c circumstances surrounding impact / argue court use discretion

 EX: State v. Bagby (KS case) D, charged w/ burglary and fingerprints were found in home,
testified working in that general neighborhood for a pest control company. PA asked if t records
showing D in home -> KS said he raised issue of employment on examination ? question w/in
subject matter

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Evidence Outline

MAKING & MEETING OBJECTIONS

Types of Objections
1. Content-based: Evidence NOT admissible at all (*most important)
a. Relevance, Hearsay, Undue prejudice, privileged, improper opinion, inadmissible settlement
negotiation
2. Foundation: Must show something else FIRST b/f presenting evidence
a. Lack of: authentication, expert qualifications, evidence on fact necessary to make evidence relevant
2. Form of question: Testimony may be admissible, but wrong form (wrong ? Asked)
a. Leading question on direct, Narrative response question, question that is confusing/compound
2. Timing and sequence (evidence coming at the wrong time)
a. Question in cross-examination about material not covered in direct examination
 
103: RULINGS ON EVIDENCE
a) Cannot bring error on appeal UNLESS: (objection & offer of proof) a substantial right of the party is
affected, AND Error was called to the attention of the judge by Objection OR Offer of proof
 Error must have had substantial influence on the outcome of the trial- in context of WHOLE
 Whether considering everything else that happened, the error itself had substantial influence
(a) YES – judgment must be reversed
(b) NO – error harmless (if constitutional -> must be harmless beyond reasonable doubt)
 KSA 60-2105 (technical / inadvertent error) No reversal if substantial justice done
IF NO objection & ruling on -> error WAIVED on appeal UNLESS
(d): Plain Error Doctrine: Appellate court will still consider claim IF: (under U.S. v. Olano)
(1) error; (2) plain- well settled law; (3) error affects party’s substantial rights; AND (4) injustice result -RARE
NOT in KS only if prosecutorial misconduct (77)

(a) 1. OBJECTION (If ruling admitted evidence- > You object to someone’s evidence) KSA 60-404
MUST
 be timely AND specific (not too general ex-relevance w/o grounds for obj.)
o made @ earliest opportunity- When question asked & before answer given
o Question asks for inadmissible testimony – Object immediately
o Unanticipated inadmissible answer – Object and move to strike
 Motion to strike proper IF:
 Witness too fast/ said too much not in scope of ? = non-
responsive
 ?ing lawyer makes obj. NOT opponent w/o add. grounds
 object every time UNLESS 103(b) Judge allows continuing obj. (must raise other grounds if not same)
o NOT IN KS -check w/ judge on whether necessary renew objection/offer of proof
 Could waive objection by “opening the door” to inadmissible evidence
 Multiple-party cases, 2nd party excused from making SAME objection as co-party IF same interest (team)
o IF obj. not made on behalf of other co-D -> error not preserved for co-D ---KS varies (75)

(a) 2. OFFER OF PROOF (If someone objected to your evidence-> trying to get yours in) KSA 60-405
 Must include substance (content- what the evidence is) AND relevance (purpose-what trying to prove)
 Get ON RECORD (exhibit or if permitted to testify witness state….)
 Conducted outside hearing of jury
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Evidence Outline
 KSA 60-243(c) (offer of proof when objection is to question) obj. sustained -> offer witness answer proved

Motion in Limine
 Make objection, asking for exclusion/ inclusion of evidence BEFORE trial & outside presence of jury
 Discretionary (TEMPORARY) ruling = judge can reconsider & reverse @ any time (rare)
o MUST clarify if ruling definitive OR not (ex- based on heard so far I’ll deny= NOT)
o Question of law easier to argue definitive
 If court declines to rule pre-trial -> present @ trial & object to preserve for appeal

Motion in Limine
Granted   Denied
For you Against you  

 Court enter Order both  argue to change ruling @ trial  Must object @ trial
sides evidence CANNOT  Must object that ?/answer IF violate ruling in
be considered @ trial limine to preserve issue for appeal or deemed
w/o court approval waived
 Mistrial is not automatic if violation of a motion in limine @ trial
o Trial judge has discretion order a mistrial or simply admonish jury to disregard—look @ intent
 105: Admonish jury disregard under limiting instruction
 Luce Rule: CANNOT appeal trial court’s refusal to grant motion in limine IF evidence which
was the subject of the motion is never admitted at trial
 Ohler Rule: ‘drawing the sting’ – D volunteers info. On direct instead of revealing on cross -> D CAN’T
o Argue ruling in limine incorrect & forced to bring out - volunteer info. -> waive obj. raised in
motion in limine

CONDITIONAL RELEVANCE 177

104: KSA 60-408 Preliminary Questions
a. Judge decides preliminary questions concerning:
1) qualification of a person to be witness 2) existence of a privilege, 3) admissibility of evidence
o NOT bound by evidence rules in deciding except when dealing w/ privilege
o determines burden of proof for admissibility evidence (EX- preponderance of evidence)
o admissibility NOT determined by jury
o if conditionally relevant evidence Judge determines if foundation evidence suff. To support
fulfilment of condition
o IF issue goes to admissibility coincides with ultimate issue judge decides
o by preponderance of evidence std.
b. Conditional Relevance: when evidence admitted ONLY IF other fact is established Jury determines
whether preliminary fact established
 Prima facie evidence std. - proof must be 'sufficient' (just enough for jury to consider)
 Party seeking to admit evidence bears burden – Bourjaly
 1 – does the evidence of the conditioning fact greatly increase probative value of item of
evidence offered?
 2 – is good evidence of factual condition likely to be available?
EX- whether D aware beneficiary of life insurance -> offer enough for evidence jury decide if
D Aware he was life insurance beneficiary even if D Denies awareness
c. Hearings on preliminary questions can be outside of the presence of the jury
d. A criminal ∆ can testify on an issue related to admissibility w/o waiving 5A right to remain silent at trial
AND doesn’t become subject to cross-ex as to other issues in the case”
 BUT IF ∆’s testimony extends beyond preliminary matter ∆ may have opened door to cross-ex on
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Evidence Outline
new issue, even if jury is absent
e. Even if a judge decides to admit evidence, objecting party can still attack evidence’s weight and credibility
by ANY permissible means, and THEN argue that the evidence in question is not worthy of belief.

RELEVANCE 101
401: KSA 60-401(b): Test for Relevance
Evidence is relevant if
a. Has ANY tendency make fact more/ less probable than w/o the evidence AND
b. Fact is of consequence in determining action (look @ type of action- help prove
civil/criminal)
Evidence ------------> FACT
 Combines 2 basic ideas
o 1. - Materiality – bears on the outcome of case (fact of “consequence” in determining action)
 Look @ substantive law  @ provable facts & see if evidence proves 1 or more
 Material –relationship b/t offered evidence & legal issue in case
 Immaterial – evidence may bear on a fact that is of no consequence to a legal action
o 2 – Logical Inference – evidence alters likelihood fact party is trying to prove is true or false
III- 222 attempted blackmail pay or sell story about illegitimate kid. Present DNA match evidence prove who is
father.
 401(b) criminal case- look @ criminal code to see if relevant to blackmail prosecution
 Wouldn't matter if father - blackmail by threatening to reveal true
 Fact of maternity NOT fact of consequence to action
II-12 mail fraud how get evidence in claim sold non-working devise- fraud need false stmt/intent to deceive-
testimony 2 witnesses used & device worked allowed?
o  Relevant didn't know stmt false/ negates intent 401(b)
o ANY tendency = low bar ---even slight alternation is enough – 401(a)

III-3- pipe fitter bank robbery torch used - same torch in garage - admit torch evidence?
o 401(a) admit evidence b/c know device used to get into vault fact had torch in garage puts in
smaller group = more probable D Committed crime

402: KSA 60-407(f) Relevant Evidence Generally Admissible / Irrelevant Evidence Inadmissible*
Relevant evidence admissible unless something else excludes
 Minimum threshold for admitting evidence- ALWAYS START HERE
 ALL other rules are exceptions / conditions to FRE 401 and 402

105: KSA 60-406: Limited Admissibility

If piece of evidence admissible AND inadmissible -> must admit for proper purpose & deal w/ inadmissible part
via jury instruction on scope / use of evidence
 Evidence admissible for 1 purpose will not be excluded simply b/c inadmissible for other purposes

106: Rule of Completeness

IF all or part of writing / recorded statement introduced, adverse party may require introduction of any other part
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Evidence Outline
or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it

403 KSA 60-445 Exclusion of Relevant Evidence

Judge MAY exclude relevant evidence IF
 probative value is substantially outweighed by the danger of unfair prejudice,
 confusion of the issues, or misleading the jury, or by
 undue delay, waste of time, or needless presentation of cumulative evidence
 1st look @ relevance of evidence -> weigh w/ probative value
o articulate why the probative value is low and the risk of unfair prejudice overcomes (or vice versa)
 Prejudice: harmful result when evidence influential b/c it appeals to biases/emotions of fact finder
 3P rule – Marsh- limits offering circumstantial evidence to show D not perp. b/c prejudice/confuse (102)

CONT. 403 KSA 60-445 Exclusion of Relevant Evidence

I-6 burglary charge prove there b/c arrested 3 doors away selling narcotics
 401A obj. - likely overruled b/c makes more likely he's in neighborhood
 403-shows deft. Engage other criminal conduct could persuade jury
 Can't exclude altogether b/c partially high probative value
 ONLY object to witness ability to refer to arrest on narcotics b/c unfair prejudice
OR argue stipulate @ house
 Old Chief requires court to exclude evidence & force PA to stipulate
o IF alternative evidence has same/ greater probative value BUT lower danger of unfair
prejudice -judge's discretion
o Narrow exception to general rule PA not required to stipulate IF doesn't give PA full benefit of
challenged evidence based on narrative relevance –
 PA controls mode of proof b/c right to meet jury’s expectation

KSA 60-445 risk that admission will unfairly and harmfully surprise a party w/o opportunity to anticipate
evidence
o Doesn’t list FRE 403 factors, but judge can still exclude evidence for those reasons

I-14 charged w/ murder - have eyewitnesses/victim wallet/kitchen knife PA wants to intro. Gruesome Photos
 Argue Old Chief stipulate b/c unfair prejudice BUT typically allow in if true reproductions rel. facts

Curative Admissibility cure inadmissible evidence ONLY IF necessary to cure

o 1 side offers evidence would've been excluded b/c inadmissible BUT NO objection -> can other side respond
with OTHER INADMISSIBLE EVIDENCE on ground come in b/c 1st side did it
a. Invoked ONLY by opposing party NOT party who elicited improper info
b. EX- complaining witness paternity suit says virgin on direct w/o objection --> D offer evidence
outside period of conception allowed

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Evidence Outline

RELEVANT BUT INADMISSIBLE

 Rules ID prohibited inference & makes evidence inadmissible only for certain purposes – IF offered for
non-prohibited purpose  evidence NOT automatically excluded  apply 403 balancing (Erie=407)
 ALL apply 105 limited admissibility rule
o If ID other fact evidence relevant to -> rule of exclusion won't apply & admissibility determined
exclusively by applying 401, 402, 403

407: KSA 60-451; 60-453: SUBSEQUENT REMEDIAL MEASURES

After injury / harm caused by an event, evidence of subsequent measures which if taken previously, would have
made injury / harm less likely to occur
CANNOT offer to show CAN offer to show (NOT an all-inclusive list)
 Negligence  Ownership/ Control
 Culpable conduct  Feasibility of precautionary measures (IF disputed)
 Defect in a product o Exception to proving neg.-not neg. if doing was NOT
 Defect in product’s design feasible
 Need for warning or instruction  Impeachment
 Condition

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Evidence Outline
 NOT excluded if measure taken by someone other than ∆ (EX- allows 3 rd party repairs)
 Applies to: Lowered speed limits; revised practices; safety devices/ warnings/ firing employees (Bullock)

IV-1 Man brings suit after wife and child are hit by a train and killed at a railroad crossing which
had only a flashing red light. Can he admit the following?
 Photo of intersection taken 2 weeks AFTER accident showing wooden barrier now in place prove
negligence
o Could offer to show condition, but D probably object 403 probative value outweighed by unfair
prejudice
 407- CANNOT offer to prove negligence
 RR alleges Hwy Commission in charge of tracks not RR P offer evidence constructed barrier?
o inadmissible prove negligence BUT under 105 can be admitted other purpose w/ limiting
instruction & showing RR controlled intersection NOT county highway & 407 allows evidence for
proof of control
 Testimony from RR employee re: how determine speeds tracks & speed limit on track now reduced
 P’s theory of negligence is that the train was going over 70 mph
o 70-> 90 ----evidence barred 407 b/c only purpose show lowered speed limit after accident =
makes less likely occur + offered prove negligent b/c higher speed limit earlier
 If witness says excessive speed proper, can impeach w/ changing speed from 90 to 70
 To impeach, what a witness says and what a D did must be inconsistent
EX: If expert claims safety features were reasonable or that machine was “the
safest of its kind on market at the time,” it is insufficient to impeach him w/
subsequent remedial measures which altered safety features see feasibility

KSA 60-3307: Specific to product liability claims (104)

 bars evidence of post-production changes EVEN IF occurred BEFORE P injured UNLIKE 407
 Exceptions:
o Feasibility- show manuf. Subsequently incorporated design after expert testified change NOT
feasible
o Will-Rich- if change after manuf. b/f injury IF claim manuf. Breach post-sale duty to warn

RELEVANT BUT INADMISSIBLE

408: KSA 60-552-3; 60-2801COMPROMISE & OFFERS TO COMPROMISE
Prohibits evidence person offered to make payment in compromise of claim when offered to prove offeror liable
Exception: When offered in criminal case & negotiations related to claim by a public office or govt. agency in
exercise of regulatory, investigative, or enforcement authority
CANNOT offer to show CAN offer to show (NOT an all-inclusive list)
 Liability  Witness’s bias / prejudice
 Invalidity of claim  Negate contention of due delay
 Amount of claim  Proving effort to obstruct a criminal
o IF validity or amount disputed investigation / prosecution
 Impeachment by prior inconsistent statement / contradiction  Debtor’s promise to repay existing debt
 Claim must be disputed as to validity OR amount (no requirement of both)
 Applies even if compromise w/ 3P
o Paying / offering to pay part of a claim w/o questioning its validity is admissible
EX: Negotiation between P and vehicle Owner. P says, “You and I both know it’s Driver’s fault, but he
and I have already settled and you’re going to lose this case.”
o Allowed in b/c validity of claim is not disputed since both know it was driver’s fault NOT

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Evidence Outline
owner’s
 Rule does NOT apply to a suit to enforce / rescind a settlement agreement
o Issue is no longer liability for the claim, but liability for a contract
 Rule Purpose is NOT to encourage extortion / threats – should involve “mutual concessions”

Impeachment for Bias / Prejudice

EX: 3-way accident in which one D pays off another D so that she will testify on his behalf
 Ratteree: settlement ALONE does NOT mandate admitting evidence to show bias/prejudice
249B- SEC (civil case) investigate Martha Stewart & enter into compromise negotiations- during admits had
illegal knowledge-> PA wants to introduce stmt from compromise negotiations in criminal trial 410 or 408
exclude?
 410 - not stmt made during plea negotiations w/ prosecuting authority so won't exclude

 408 - exception - parties negotiating w/ civil arm of govt. stmts will NOT be protected

 Compromise in private party negotiations WILL exclude ??

Bring in damages as evidence?
 408(a)2- settlement discussions NOT exception - will allow in criminal case NOT civil

KSA 60-452- Evidence of offer for compromise or from humanitarian motives inadmissible to prove liability

KSA 60-453- ONLY OFFER of compromise is excluded

 Does not bar evidence that D offered to settle to diminish punitive damages IF offered by D
o Possible exclusion because of low probative value

 I-5 offer $100s ---admits fault been meaning to fix breaks- admissible?

o KS state court

 YES ----KS ONLY excludes offer NOT associated statements --- comes in

o 408

 Excludes offer AND stmt

 BUT Owner saying brakes are lousy = Validity of claim probably NOT in dispute may get
in

RELEVANT BUT INADMISSIBLE

410: PLEA NEGOTIATIONS
Evidence of:
(1) Plea of guilty later withdrawn
(2) Plea of nolo contendere (no contest)
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(3) Any statement made in Fed. R. of Crim. Pro. R. 11 proceedings regarding such a plea
(4) Any statement made in plea discussions w/ attorney for the prosecuting authority which results in NOT a plea of
guilty or plea of guilty later withdrawn
Not admissible Admissible
(i) In any proceeding where another statement made in the
same plea discussion has been introduced & stmt should
in fairness be considered contemporaneously with it
In any criminal or civil trial against the D who (rule of completeness-106)
made the plea / participated in plea discussions
(ii) In a criminal proceeding for perjury or false
statement if statement was made by D 1) under oath
2) on the record 3) in presence of counsel
** No KS counterpart, BUT same result as 410 under KS case law
 Exclude stmts to police officer? No ---miranda governs - 410 ONLY covers negotiations w/ prosecuting
authority
o courts may extend rule to protect stmts made during plea discussions w/ non-lawyer government
agents acting on behalf of government lawyers (prosecution)
 KS: State v. Downs – D w/draw guilty plea available in evidence @ subsequent trial

IV-6 D offer evidence from plea negotiations that PA offered a misdemeanor- PA 410 objection successful?
 410 doesn't provide basis for PA ---ONLY D object under 410 NOT PA------subject 403 balance
 BUT IF ∆ introduces evidence of stmts made during plea negotiations PA may introduce
other stmts to put ∆ evidence in context (opens door)

IV-7 If D agree to waive 410 objections can PA admit stmts of D for impeachment or case in chief?
 Agt. To waive 410 objections can be enforced for PA to impeach @ trial --if testify in diff. way
than negotiations or in case in chief

If D says during plea negotiations that she was at home in bed at the time of the burglary, but at trial says she
was at the movies, can the prosecutor introduce plea evidence to contradict?
 NO-410 expressly excludes stmts made during plea negotiations – if perjury -> meet req.
409: Payment of Medical and Similar Expenses
EXCLUDES Evidence of furnishing or offering or promising to pay medical, hospital, similar expenses for injury
to prove liability for injury
 Does NOT protect associated stmts / conduct (unlike 408, 410)
o START W/ 408: b/c Broader rule of exclusion (excludes offer AND any associated statements)
o FALL BACK ON 409: To keep out offer to pay expenses
 Has NO 'exceptions ' but excludes evidence ONLY WHEN offered to prove liability of payer/offeror
o NOT excluded if offered other purposes ----responsibility for condition
 KSA 60-452- requires humanitarian motives RE: compromise AND payment offer to prove liability or
damages
 Evidence excluded for the purpose of showing liability for the injury may still be admissible for other
purposes

I-8 If after an accident, party at fault told P to go to the “nicest hospital in town” b/c pay for it – admit?
o offer to pay excluded by 409 if used to show liability
o 408 may allow to show control of vehicle
o Could use 105 limiting instruction & admit to show reasonableness incurring damages

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Evidence Outline
RELEVANT BUT INADMISSIBLE
X= exclude Compromise   Plea Bargain   Medical Etc.  
  Offer Stmt Offer Stmt Offer Stmt
FED X X X X X  
408-prove 410 409
validity or  Plead guilty
invalidity  Assoc. stmts
 Unless 410(b) perjury/open door
KS X   X X X  
60-452; 60-453 Doesn't specify if w/drawn plea could be Protects 60-452
introduced later ---ALL CL stmts
during
 

411: KSA: 60-454 LIABILITY INSURANCE

evidence party did/didn’t have liability insurance may NOT be introduced to show party was/wasn’t negligent
Not Admissible: Admissible: (list is not all inclusive)
 Proof of agency
 Ownership / Control (insured -> probably own)
Show person DID act negligently (carelessly or
 Witness’s bias / prejudice (employee of insurer)
wrongfully) OR person did NOT act negligently
 Punitive damages calculation
o KS-court hears post jury finding 60-3701

 Rule includes contributory negligence or other fault of P as well as the fault of D

 Lack of insurance inadmissible to prove LACK of negligence
 Rule ONLY applies to liability insurance (coverage in the event you are held liable to third parties), NOT
first party insurance-----BUT probably inadmissible under FRE 401 or 403

EX: P sues D for negligently causing a car wreck. P wants to testify that right after accident, D said, “My
insurance company will cover your damages.” Can D object under FRE 411?
o Not trying to prove D was negligent because of his insurance, but negligent b/c admitted liability &
happened to mention his insurance
o Argue - Reference to insurance company inextricably linked to admission of fault
o Probably allow prove person was in control of car & maybe try to get in on personal knowledge of
what heard

NO FRE: SIMILAR HAPPENINGS- CIVIL CASES

 Evidence of an event offered to show another event occurred in a particular way (ex- traffic violations
inadmissible to show neg. speeding) could admit for other disputed issue
o Defective Product/ condition / Causation/ Notice of foreseeability of risk of harm/ Dangerousness
 Absence of similar happenings can show
o Lack of notice of danger / foreseeability or Lack of danger
 Need proof events are substantially similar before admitting ----ex- time & place similar

V-11 P falls and breaks her ankle in theater stairway and sues theater for negligence.
 P put on witnesses testify 4 days pre fall foot caught same spot P did
o P can use similar accidents to prove liability - shows dangerous condition
 Can manager say no one else has ever fallen on stairs?
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Evidence Outline
o 602 issue - ? Whether manager have personal knowledge whether no one had fallen overtime
 Further from where P fell = less value evidence has -----need to show similarity that conditions other
witnesses faced were same

[13]
Evidence Outline
CHARACTER & CREDIBILITY
404 (a)(1) PROPENSITY RULE
Propensity Inference Excludes evidence offered for propensity inference: IF shows witness has
o trait of character &
o person w/ trait acted in accord @ x of incident &
o conduct is fact in issue of case---> evidence is presumptively inadmissible
 Evidence NOT excluded for OTHER purpose (Admissibility determined under 401/402/403)
 Exceptions for criminal cases NOT civil cases
Can PA introduce evidence past crimes for propensity robbery of bank accused robbery quick shop
 NO --404(a)- prior bank robbery evidence shows D not law abiding & propensity to commit
V-52 Witness testimony that a victim identified D from a “mug shot”
 Object- 401(a) Forbidden Propensity inference D has been charged w/ other crimes & he more likely
commit crime
 Argue - not using propensity inference but ID inference (non-propensity)  403 balancing ID high
probative value BUT risk prejudice propensity inference (majority deems admissible b/c so important)

404(a)(2): KSA 60-447;448 EXCEPTIONS: Permissible Propensity Uses- CRIMINAL cases

 FRE- civil case – evidence of person’s character NEVER admissible prove person acted in conformity w/
character
 KS – either party to civil case MAY offer evidence of pertinent traits of any person show how
person acted

(A)(B) Character Traits offered for show acted IN ACCORD w/ trait (not impeachment) allowed IF:
WHO PA Criminal D
introduced?
WHAT 1. D bad character trait 1. D good character trait
introduced? 2. V good character trait 2. V bad character trait
 See 412 prior
sexual conduct
WHEN AFTER D introduces (diff. if 608 impeachment) 1. Case-in chief IF
introduce? 1.Rebut D's character trait pertinent* trait
 MUST be based on trait D offers  
NOT other trait  
2. Rebut V's trait
 See Homicide exception
3. Show D has SAME (bad) trait as V
EX D offered evidence: D charged theft offer evidence honest
 D Honest or character
 V dishonest  
-------------------------------------------> D self-defense claim show V violent
PA offer evidence: character start fight
 D dishonest  
 rebut V dishonesty
WAY Direct Exam Case -in Chief/ Direct
introduce?  Opinion  Opinion

[14]
Evidence Outline
 Reputation  Reputation
   
OR IF Cross exam -> OR IF Cross exam ->
 (also) Specific instances  (also) Specific instances
*pertinent = Relevant to crime charged (ex-honesty non-thief)
 Background info. / testimony doing good deed @ time NOT character
 PA - cannot introduce GOOD V trait or BAD D trait UNLESS D offers 1st
404(a)(2)(C) – HOMICIDE- PA may offer evidence V’s trait of peacefulness to rebut D evidence V 1st
aggressor
404(a)(2): KSA 60-447;448 EXCEPTIONS: Permissible Propensity Uses- CRIMINAL cases
 KSA- 60-448: person's traits RE: care/ skill NOT admissible prove person NOT conduct on
occasion
 KA- 60-447- CANNOT use specific instances to prove character trait UNLESS criminal
conviction
 KSA- 60-455(e) conviction/ crimes/ wrongs/other acts PA required give 10 day notice (no matter
what)
V-23 hit over head w/ whiskey bottle - victim character evidence
1. Civil Case: Can P as part of P case in chief give opinion D violent person?
YES no requirement in CIVIL cases D 1st offer evidence
2. Self-defense claim - fear about to be hit = justify force- D allowed intro. V opinion/reputation
violence
YES – NOT proving character/ conduct in accord BUT D state of mind –401/402
3. Criminal – PA call bartender say V gentle /peaceful person unlikely to harm -non-homicide case
PA can offer good character evidence about V ONLY IF D offers bad 1st
4. Criminal Homicide D NOT arguing V 1st aggressor- PA offer evidence V gentle/peaceful?
PA CANNOT present V peaceful UNLESS D make claim V 1st aggressor

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Evidence Outline

404: NON-PROPESNITY USES

 IF evidence NOT introduced for the propensity purpose, it is admissible if relevant

405: KSA 40-446 CHARACTER IN ISSUE

 Tells TYPES of evidence admissible when character evidence allowed
 404(a)2(A) character trait IS admissible in criminal (KS-allow civil) case when:
 Trait is element of D’s claim or defense (see substantive law)  intro. character by
405 :60-446
o Specific instances of conduct
o Opinion
o Reputation
 EX- D’s lack of predisposition to commit crime is ‘essential element’ of entrapment
defense
 EX- respondeat superior case- employee careless & boss knew or should’ve known ->
boss liable employee’s actions ---prove knew/should’ve known by reputation
evidence of employee’s carelessness (if in KS not FRE)
Conduct 405(a) CANNOT use specific instance testimony to prove character trait

Essential to element of 405(b) MAY prove character/trait by relevant specific instance of person's
charge/claim/defense conduct

404(b) KSA: 60-455 CRIMES (don’t need conviction); WRONGS; OTHER ACTS
o Main ? - is there something in case that allows inference OTHER than character trait propensity to
act?
o Proponent MUST lay foundation for introduction
o Compare current incident w/ prior incident & ask WHAT about former incident proves element of
charge in CURRENT case

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Evidence Outline
INADMISSIBLE ADMISSIBLE
(b)1: (b)2: To show proof of: (not exclusive list)
Prove acted in accord w/  Motive
character trait  Opportunity
 Intent
(e.g., CANNOT  Preparation
introduce evidence D  Plan-------common plan/scheme
robbed 1 store to show D  Knowledge
robbed gas station)  Identity
 Absence of mistake or accident
 Committed as part of act charged
 Integral part of evidence spec. relevant to case
 Similar prior acts b/c D & victim (relationship/cont. conduct)
Also permits evidence of any “acts” not at issue in the trial for any non-
propensity purposes*
 Intrinsic evidence - if inexplicable part of other evidence -> allow in under 404(b)2
o If intrinsic PA NOT required give advance notice -------BUT still must be relevant & not excluded
by FRE
o TC may not be req. give limiting instruction b/c intrinsic to crime charged
o EX- Evidence agent said “you better pay up D most violent guy in business”
 NOT offered propensity purpose b/c reference to reputation for violence = part of act of
extortion
 Mere temporal proximity of crime to crime charged is insufficient - crime MUST be logically related
to crime charged -----------Such as…explaining WHY crime charged occurred or WAY of facilitating
crime charged

404(b)2- PA required disclose ANY other crimes/wrongs 60-455(3) KSUPP 23- requires PA give notice in ALL
evidence on request by D cases w/ notice unlike FRE

404: NON-PROPESNITY USES

404(b) KSA: 60-455 CRIMES (don’t need conviction); WRONGS; OTHER ACTS
V-7 Motive: murdering store clerk during robbery - evidence- 1.homeless 2.had expensive morphine – allow show
D motive to murder store clerk?
1. Homeless- draw inference people in category (perceived characteristic of group) have trait of
stealing/need $ = this acted w/ accord on occasion ---w/o more won't let in
a. Likely exclude evidence D gang member b/c inference b/c group character NOT individual
2. Morphine addiction – 404(b)2 use- motive + intent to steal
a. Case specific – show lacked resources to support habit – KS allow addiction only IF steal drugs
NOT $
b. more case/victim specific more non-propensity side of line

V-8: Common Scheme/Plan: lack accident & mistake: rob bank w/ snub nosed revolver --2 owners ID as robber
allow in?
 Nothing unique about robbing at gunpoint (Identity issue)
O ONLY admit if VERY unusual way commit robbery – case specific strikingly similar (pink
tutu)
O PA must show distinctive connection b/t 2 crimes 104(b) issue: Huddleston
 Don’t have to prove connection beyond reasonable doubt/ prep. Evidence ONLY offer
enough evidence reasonable jury infer D robber on other occasions --> issue goes

[17]
Evidence Outline
to jury to determine if D committed other crimes as well by preponderance of
evidence std.

V-9 officer see kidboy w/ mj & smoking it - where officer testify?

 PA rebuttal call officer as witness after D said planted by another officer
Argue ONLY relevant through specific instances analysis = probably exclude
i. had mj 1x (specific instance)
ii. 1x= mj smoker (person has trait of character)
iii. infer have mj this time (person acted in accord w/ character)
iv. Est. if person had mj (issue in case)
 Claims had mj BUT didn't know it was there b/c friend planted in purse
 Knowledge - smoked before = know it's in your purse = non propensity other relevant
use

V-10 Intent: D rape and beat -> shock victim -> allow testimony of other witnesses met same bar same thing
happened
 Doctrine of Chances ---probability theory – non-propensity use
o Could happen ONCE & mistake consent BUT (here 3x) = probable D intended to
happen

406: KSA 60-449 HABIT

Evidence of the habit freely admissible to prove conduct in accord w/ habit (particularized response to particular
stimulus)
 NEED SAME consistent stimulus as subject of habit (specific situation----pavlov dog +bell)
Character (general) Habit (specific)
General description of disposition RE: general person's particularized response to particularized stimulus
trait (specific situation)
 Peaceful/honest etc. (moral overtone)  Involve non-volitional conduct (reflex/ semi-automatic--
pavlov dog/bell)
 104(a) issue trial judge determination if sufficient number to conclude habit on whether to admit/ not
 Customs and routine practices of individual businesses / organizations = ok
 Industry custom admissible to prove conduct in conformity w/ custom
V-56: poss. Drunk driving head on collision accident
 Witness testify reputation as drunk/ reckless driver
o 406 allow? -404(b) evidence NOT response to stimulus -general approach to things in life =
character
 Witness testify 15 occasions stagger to car drunk & drive off
o NO- better record if say seen leaving for car exactly 15x & all 15x was staggering drunk
PREVIOUS CRIMES OF SEXUAL ASSAULT / CHILD MOLESTATION
 ONLY prior specific acts of sexual assault or child molestation ARE admissible as part of PA case in chief
 412(b)1C---can't violate D right to confrontation
 Allows propensity inference ----w/o having conviction just attempts work
 Federal prosecutions for sexual assault and child molestation are rare
 Does NOT overcome hearsay rule ONLY propensity
 IF ONLY charges are burglary/kidnapping/murder EVEN w/ 413 -CANNOT bring sexual assault
evidence in
 Caselaw suggests subject 403 balancing BUT ----KSA 60-455(d)- automatic balancing test

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Evidence Outline
413: Evidence of Similar Crimes in Sexual Assault Cases
(a) Criminal case where D accused of sexual assault, evidence of D’s prior offenses of sexual assault is
admissible
 Need NOT be conviction ---- includes attempted prior offenses
 Every federal court has held FRE 403 balancing applies
(b) PA MUST disclose evidence it intends to use to D at least 15 days before trial
(d) Defines “sexual assault”

414: Evidence of Similar Crimes in Child Molestation Cases

Same as FRE 413, but defines “child” and “child molestation” in (d)

Kansas- past molestation evidence (KSUPP- 95-97)

D admits intercourse Smith (94 striking similarities LESS necessary IF intercourse
supp) undisputed
D Denies act & no Jones (94 prohibited propensity evidence (other instances)
physical evidence supp) UNLESS PA can show striking similarities b/t
victims

415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (CIVIL)
(a) IF damages or other relief is predicated upon a party’s alleged commission of a sexual assault/ child
molestation, evidence of party’s prior commission of sexual assault or child molestation is admissible
(b) MUST disclose evidence to other party at least 15 days before trial

RAPE SHIELD STATUTES

412: KSA: 21-5502: Sex-Offense Cases – Victim Behavior
(a) Evidence of the victim’s (1) past sexual behavior & (2) sexual predisposition are generally inadmissible in
civil/criminal
(a)(2) Absolute bar on proving victim’s sexual predisposition unless there is a constitutional requirement
o only allows specific instances of victim’s behavior for non-propensity purposes

[19]
Evidence Outline
(b) Exceptions
(1) Criminal case:
(A) Specific instances offered to prove someone else source of semen, injury or other physical evidence
[D’s defense: no sex occurred]
(B) Specific instances of sex w/ accused show consent [D’s defense: consent]
(C) Exclusion violate D’s constitutional rights

(2) Civil case: Admit evidence IF admissible under rules AND probative value substantially outweighs danger
of harm to any victim / unfair prejudice to any party [FRE 403 balancing weighs in favor of
inadmissibility]
(c) Procedure To Determine Admissibility – Mandatory motion in limine w/ private hearing

In the states where consent is a defense to rape  argue that ∆ had a reasonable belief the victim consented 
admissible b/c this is showing the ∆’s state of mind

 ALL evidence prima facie excluded by 412(a) and does NOT come in UNLESS fits exception
o Reputation / opinion could come in under 412(c) IF excluding would violate D’s 6A constitutional
rights
 To be convicted of a rape, must show that (1) the victim did not consent and (2) D intended rape victim w/o
consent
o Can counter rape charge w/ victim’s consent or mistakenly thinking she consented (NOT in KS)
 413 – 415: Make ANY evidence of prior similar offenses admissible for all purposes in rape and child
molestation cases
 Sexual Behavior vs. Sexual Predisposition
o Behavior – activities that only imply or are consequences of sex (birth control, STDs, children, etc.)
o Predisposition – manner of speech, dress, lifestyle, etc.
 Evidence of victim’s reputation is admissible if prosecution places it in controversy
KSA 21-3525 Evidence of previous sexual conduct w/ any person is inadmissible
 ONLY exception is when PA opens door to evidence of previous sexual conduct

V- 38 CL - rape w/o consent - evidence consensual sex 3 others in dorm pre-incident

 Propensity inference 404(a)1 - bars character prove conduct in accord
 404(a)2(B) – Allows in evidence subject to 412
 Cross about prior sexual intercourse -405(b) show untruthful character
o Curative admissibility - IF volunteered on direct - 608(b)1- credibility ltd. specific instance of
untruthfulness
 NO constitutional right to offer propensity evidence
 Evidence of specific instances – NOT reputation
 412(a) – Basic prohibition of allowing in evidence based on

3 other men sex w/ N 412(a)1- doesn't permit specific instances of V sexual behavior
608(b)1 – wouldn’t allow in because not the type of testimony that goes towards truthfulness

Consensual sex N 412(b)1(B) (not auto. Admissible – Subject to 403 balancing)

freshmen in college  low probative value b/c too remote/ isolated for relevance & no intervening relationship--
 KSUPP 116 Stellwagen - injury
o Violent assault + remoteness= IREEL. Doesn’t imply consent
V longstanding Y (probably ALWAYS allow in)
sexual relationship 412(b)1C---------Allow in for bias/prejudice of eyewitness for impeachment
w/ eyewitness Right to allow D to question as to bias from his relationship with P

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Evidence Outline

Olden v. KY - Motivation to preserve relationship = case-specific reason to falsely accuse

 SC bias part of constitutional right of confrontation under 6A (case-specific)

Sex w/ D 3 years M 412 prohibits jury use other incidents for propensity inference of consent BUT should be allowed to
b/f rape (no consent use b/c KNEW to draw propensity inference consent on THIS occasion
in fact - reasonable  Constitutional req. to present defense applies b/c of element of defense 412(b)1C
belief consent juris.) o PA - no violation UNLESS more specific -argue 403 not too remote
V-40 15 y/o accuses D of rape. D wants to put on:
NOT 412(a)1 or 2-- look @ other rules
No consent defense to statutory rape
V lied had sex  M 608(b)1
w/ 3 men Cross - exam - specific instances BUT NO extrinsic evidence to prove
404(b)(2) - on merits
permitted b/c so distinctive b/c common plan / scheme of falsely accusing adult men
of having sex w/ victim
o so much like conduct in case if happened 3 other times of IDENTICAL
conduct could be false
412(b)1B – Consent is not a defense with a 15-year-old
412(a)1 – Only excludes evidence that victim engaged in sexual behavior with others,
so it does not apply when not trying to apply previous sexual behavior
Same 3 men N 608(b)1
testify never  CANNOT introduce extrinsic evidence to prove if V denies stmt
had sex w/ 404(b) – this would be a propensity inference that 15yo has a tendency to lie

413 – 415 – Reject the cornerstone principles of propensity evidence

Very few states have implemented and very
413 – Only have to prove act/charged with act of sexual assault

V-41 10 y/o girl body found no DNA person charged D doesn’t testify- charged burglary/ robbery/kidnapping
W testify murdered 18 y/o girl w/ Don’t need conviction JUST put on proof of act hinge on what D offers?
D NO - case in chief PA can offer - doesn't have to offer good character
1st (404)
Conviction for kidnapping Allowed in 414 CM –
609(a)2- same elements must admit
W man drunk tried to rape 37 y/o 413----So dissimilar not admissible
lady 10 years prior limiting instruction would be needed to prevent jury using evidence for
propensity inference on non-sexual assault charges of burglary, murder, &
kidnapping.

W that D said dirty things to 9 y/o 414(a) allows accusation 414(d)5 attempt BUT inadmissible b/c hearsay
daughter Doesn’t override hearsay ONLY propensity
413 only admits evidence that “defendant committed any other sexual
assault.” 

Landlady =reputation sexual fiend 608(a) - reputation allowed in BUT 413 only admits evidence of specific
instances. 

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Evidence Outline

Evidence in the form of reputation or opinion still limited by 404(a)(2)(A)

– NO bad character for propensity inference UNLESS criminal D offers
good character evidence 1st

IMPEACHMENT
 IF evidence inadmissible for propensity inference (404(a)(1) & doesn’t meet exception -> look @ 608-609
 Impeachment rules (600’s) apply ONLY IF person takes witness stand & become a witness (or hearsay
declarant)
 Typically only way allow inconsistent stmts – impeachment not hearsay purpose
 2 ways to impeach
1. Attack testimony
i. ex: person lacked adequate perception
2. Attack witness (propensity inference RE: credibility)

Character evidence Impeachment

Past conduct in accord w/ merits Current conduct of witness
404(a) 607-609- impeachment
D must present 1st PA can present 1st

607: KSA 60-420 Impeachment of Own Witness

Allows any party to impeach witness EVEN IF party called witness party
 Courts usually do not let a prosecutor call a witness solely to impeach them

608: KSA: 60-422 IMPEACHMENT: CHARACTER BY REPUTATION & OPINION EVIDENCE

 Applies to civil AND criminal trials – may be invoked by ALL parties
 Allows evidence witness’s propensity to lie/ tell truth as basis for inference witness dishonest (or honest)
on stand
 does NOT matter if party/non-party or civil/criminal - IF testify -> truthfulness relevant
 IF criminal D testifies -> PA may offer evidence of D’s dishonesty in reputation/ opinion form even if D
doesn’t offer good character evidence on his behalf

608(a) Evidence RE: witness's reputation for truthfulness or untruthfulness

WHAT Untruthfulness Truthfulness
WHEN Attack @ ANY time Offer ONLY AFTER character for truthfulness
 Diff. 404 (see attacked
[22]
Evidence Outline
chart)
HOW- on direct Reputation / opinion Reputation/ opinion
608(b)- on CROSS-EXAM- may inquire about specific instances if probative of truthfulness/untruthfulness of:
- 1) witness testifying OR 2) or witness person testifying on behalf of
- BUT extrinsic evidence is NOT allowed to prove specific instances of a witness’s conduct
 extrinsic evidence = calling another witness/ introducing
exhibits----also excluded if witness denies
- ‘probative’ = judge has broader discretion than 403 – admit if just
probative of character
UNLIKE KSA 60-422
c): specific instances of conduct relevant ONLY to prove character / trait inadmissible (only rep/op.)
d): Cannot introduce specific instances of conduct relevant only to prove a trait of character

V-65 perjury trial - D takes stand says didn't lie @ earlier trial on direct -> PA put on reputation witness D
untruthful?
i. Under 404 = inadmissible-D testify on merits= D NOT offering good character evidence 1 st
a. HOWEVER 608(a) allows reputation witness testify b/c can attack character untruthfulness ANY
time

V-25 Proton suing Electron for Breach of Contract. Can Proton put on Neutron to testify that in the past 2 years,
Electron has borrowed his lawnmower 3 times and then denied it?
 Under 608(b), can only inquire about specific instances on cross-examination-Otherwise, it’s extrinsic
evidence

609: KSA 60-421 IMPEACHMENT BY PRIOR CONVICTIONS (propensity inference)

RULE WITNESS CONVICTION RULE
609(a)1(A) ALL witnesses Felony ADMIT UNLESS
civil or criminal Non-dishonesty Probative value < prejudice (403)
NOT criminal D subject to 609 (b)-e
609(a)1(B) Criminal D as Felony EXCLUDE UNLESS
witness Non-dishonesty Probative value > prejudice (403)
  subject to 609 (b)-e
609(a)2 ALL witnesses Crime of dishonesty or false stmt ADMIT-
civil or criminal NO balancing
including BUT subject to 609 (b)-e
criminal D
609(b) ALL witnesses ALL convictions exceeding 10 EXCLUDE UNLESS
civil or criminal year limit Probative value substantially outweighs prejudice
including (later of conviction or release) subject to 609 (c)-e AND
criminal D proponent provides reasonable notice
KSA 60-421: Evidence NOT involving dishonesty false statement shall be INADMISSIBLE for impeachment
- IF criminal D -> Conviction evidence INADMISSIBLE for impeachment UNLESS D offers good character
1st
- KS – other crimes evidence introduce in state’s case-in-chief OR rebuttal NOT cross exam

Dishonesty Crimes

[23]
Evidence Outline
KS (broad def.)
Larceny/ robbery/ burglary/ rec. stolen property
o Juvenile adjudication counts as conviction
o If offense expunged -> doesn’t count
FRE 609
Perjury/ fraud/ embezzlement etc.
o (d) Juvenile adjudications only when nec. To
determine guilt in criminal case

LIMITS ON ADMISSIBILITY OF PRIOR CONVICTIONS

Pardon, annulment, certificate of rehabilitation, etc. based on a finding of rehabilitation and that
609(c) person has not been convicted of a subsequent felony
(pardon, anullment) OR
Pardon, annulment, etc. based on a finding of innocence
Juvenile conviction, BUT court can allow when:
609(d) (1) Witness is NOT the accused
(juvenile convictions) (2) If evidence of the conviction would be admissible against an adult
(3) Court thinks the admission is necessary for a fair determination on the issue of guilt or innocence
NOT INADMISSIBLE if pending appeal
609(e) (pending
appeal)
Pendency of the appeal is admissible

V-27 Armed robbery of a hot dog vendor. D wants to testify not him b/c visiting dying aunt, who now dead &
cannot vouch for his whereabouts. He was convicted of armed robbery 5 years earlier. Should you advise
him to testify?
 609(a)(1)B probably not b/c could impeach w/ prior crime which is same as the current crime
 K.S.A 60-421 yes b/c testify on the merits w/o risk of impeachment IF he doesn’t introduce evidence solely
to support his credibility

 PA must ID facts & circumstances suggesting prior conviction has high probative value for impeachment
and/or low risk of prejudice
Defense must ID facts & circumstances suggesting low probative value for impeachment & high risk of prejudice.
609: KSA 60-421 IMPEACHMENT BY PRIOR CONVICTIONS (propensity inference)
V-65: Three prior charges of receiving stolen goods. Current civil suit for stealing billfold from neighbor.
Admit?
 NO 609(a)(2): Most federal courts agree rec. stolen goods NOT false/ dishonesty crime
 609(a)(1) IF felony: should be admitted UNLESS probative value is substantially outweighed by risk of
prejudice
o Defense: Prior crime and current crime = Theft crimes, jury will use evidence for propensity
purpose
o Plaintiff: 3 convictions for same crime (enhances value of the convictions’ on credibility)
Kansas civil court?
[24]
Evidence Outline
 Receiving stolen property fits w/in definition of dishonesty crimes (broader definition) = admissible
Kansas criminal court?
 Not unless D had already entered evidence solely in support of his credibility
V-70: Allow impeachment evidence of petit larceny in a trial for conspiracy to violate the Food Stamp Act by
lying?
 NOT a felony, so NOT FRE 609(a)(1)
 Misdemeanor  look @ 609(a)(2) IF PA shows conspiracy elements require proof of act of dishonesty /
false statement of witness- ----------------------------Starting point look @ elements of crime
609(a)2 doesn’t allow in for impeachment purposes?
 SEE 608(b)(1): Can cross examine about a specific instance of bad conduct if has to do w/ truthfulness w/o
referring to conviction
 COUNTERARGUMENT: 608(b)(1) cross-references to 609 & meant to apply only to non-conviction
acts

Conviction of a crime after a plea of nolo contendere that is barred under FRE 410 / Can it be admitted under
FRE 609?
 410 only bars evidence of plea bargains, NOT convictions----609 admissible IF plea bargain NOT
mentioned

NO FRE: IMPEACHMENT FOR BIAS, PREJUDICE, INTEREST, MOTIVE

[25]
Evidence Outline
*** NON-PROPENSITY ways of impeaching a witness ***
 Case-specific reason why witness might be lying (NOT a general disposition to lie)
 Governed by FRE 403 prejudice vs. probative value balance
 Done on cross-examination OR by extrinsic evidence (if denied by the witness)—KS lay foundation
1st
 Criminal D has a 6th Amendment right to impeach by bias on cross-examination (right to confrontation)
o NO auto. Right to cross PA witness about pending charges (KSUPP 255A)

Olden v. Kentucky: ∆ can bring out fact female complaining witness involved in relationship w/ 3P as potential
reason to falsely accuse D of rape rather than admit consensual sexual relations when 3P may have seen them. 6A
right to impeach overrode state’s interest in avoid prejudicial testimony about sexual activity of alleged rape victim

Davis v. Alaska: 6A right of confrontation gives D right to bring out fact PA witness was on probation for a
juvenile offense. The cross-examination for bias is protected – Overrode state statute that said juvenile records
were confidential/not disclose

Abel case: PA can bring out evidence D & witness were part of same prison gang “lie, cheat, steal” to protect
members
 Demonstrates witness’s reason for lying on stand ------ CAN be shown by admitting extrinsic evidence
 D didn’t take stand= PA CAN’T admit evidence impeaching D, BUT being in a prison gang implies
conviction
 Bias in this case, is NOT propensity, b/c so case specific to reason witness lie & important enough to let
in

Loveland : OK for PA in drug possession case to asks D’s witness about doing drugs w/ D to show witness’s bias

Civil lawsuit against GM for faulty brakes. Witness was permanently laid off by Ford?
 Not compelling evidence of (case-specific) bias- could argue general bias against auto. Manuf.
o Alters the probability even slightly that the witness has such a prejudice (all that is required for
relevance)
Witness was permanently laid off by GM?
 Jury reasonably conclude witness hates GM & would give false testimony to get even------allow for
impeachment

What if prosecutor assures judge no understanding between witness & PA his testimony will not affect his
sentence?
 Key ? is what the effect is on the witness / Still may believe chance of lighter sentence in exchange
testimony
o Allowed to show potential sentence PA witness faced b/f plea bargain to prove bias (except 255A)

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Evidence Outline

NO FRE: IMPEACHMENT BY CONTRADICTION / COLLATERAL MATTER RULE

 Testimony differs so substantially from accurate accounts of what happened witness MUST lack
ability or desire to tell the truth---------NOT trying to show a general disposition to be untruthful
 Trial court has discretion limit inquiry which is cumulative/ misleading/ prejudicial
 Most common way is to introduce contradictory evidence that’s more convincing
Ex: X who testifies how car accident occurred. ∆ offers eyewitness Y w/ different more detailed version internally
consistent, & delivered w/ more confidence.
o Y’s testimony is relevant and admissible on question of what happened AND on ? of X’s
credibility
 Convincing contradiction by Y can lead jury to be skeptical about everything X reported

Collateral Matter Rule:

Extrinsic evidence offered for sole purpose of contradicting prior witness is INADMISSIBLE if NOT
indep. Rel.
 NO problem if contradictory evidence is directly relevant to facts @ issue
 Issue IF NO indep. relevance in case except impeachment value b/c NO longer relevant jury to hear
o Can't introduce separate witness for sole purpose of showing contradiction from witness's
testimony
 Evidence of a witness’s bias, motive, or inopportunity to observe and report coherently NOT considered
“collateral”
o Ex: Witness #1, it was a red light. Witness #2 it was a green light. = collateral.
o Witness #1, it was a red shirt. Witness #2 it was a blue shirt – not collateral.
 Witnesses don’t need to be accurate about all unimportant details.
 Collateral matter rule in no way limits cross-examination.  this is only against extrinsic evidence
EXCEPTION:
o Doctrine of Curative Admissibility: Allow extrinsic evidence to contradict on a collateral matter when:
(1) The matter was volunteered by witness on direct (opened door) AND
(2) Refusing contradiction would result in unfair prejudice (Dewy v. Funk- KSUPP 86)

Illegally Obtained contradictory / prior inconsistent statement evidence

 Reference to illegally obtained evidence IS proper when ? suggested by direct examination to reasonable
crosser
 May be admissible even if evidence obtained b/c constitutional violation so long as other side volunteered
info. on direct examination or in non-responsive answer on cross
EX: Witness says “I’ve never possessed cocaine before,” -
o can cross examine RE: cocaine possession arrest even if charges dismissed b/c illegal
arrest

Witness charged w/ robbery w/ knife, but never been convicted. Ask witness (accused) if committed robbery w/
knife?
 KS: Inadmissible b/c NO conviction/ can’t impeach D w/ prior convictions UNLESS D 1 st offer evidence
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Evidence Outline
solely to support credibility
 Does NOT fall under FRE 609 (no prior conviction) or 608(b)(1) b/c robbery w/ knife not RE:
untruthfulness

What if PA asks & D answers No? Can PA on rebuttal call detective testify D admitted robbing someone using
knife?
 Defense argue collateral matter- no indep. Relevance EXCEPT impeachment – prohibited
 PA argue not allowed to contradict will prejudice prosecution (curative admissibility- D opened door
answering)
o BUT Allowing prosecutor to offer contradiction evidence lets them benefit from their own
improper question
Contradiction supposed to allow contradict information the other side has brought out

613:KSA: 60-422(A)(B) IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

Notice Extrinsic Evidence
(b) NOT ADMISSIBLE unless:
(a) Do NOT have to disclose
(1) Witness has a chance to explain / deny it AND opposing
statement or contents
party has an opportunity to examine
to examining witness
OR
613 whom you are
(2) The interests of justice otherse require
impeaching
Opportunity to explain need NOT occur prior to intro. of
BUT MUST show opposing counsel on request
extrinsic evidence IF opportunity available later
 IF deny inconsistent stmt -> can put on extrinsic evidence ONLY to impeach (negate witness testimony)
BUT inadmissible hearsay to prove issue of case
o Can’t remember making stmt AFTER knows time & place  may admit extrinsic evidence
 IF admit making inconsistent stmt  extrinsic evidence may be unnecessary
 Silence of criminal deft. May NOT be used to impeach POST Miranda warnings BUT
o Jenkins v. Anderson (KS Supp. 140)
 Fact D fled scene w/o asserting self -defense is admissible b/c silence inconsistent w/ self-
defense claim
 I don’t remember is NOT inconsistent stmt & doesn’t allow impeach
 Cannot impeach w/ prior involuntary statement
 Improper to call witness IF by time of trial counsel KNEW witness wouldn't give favorable testimony
 Can't put witness on stand ONLY to impeach IF already know adversely testify

613 KSA 60-422 (a), (b

Extrinsic evidence admissible ONLY IF witness Judge's discretion to prevent extrinsic
given opp. Explain/ deny & if justice requires evidence UNLESS D raised on cross 1st

[28]
Evidence Outline
Officer chasing robber comes across couple counting money on stoop. He asks where got it, but say nothing
and he arrests them. Direct witness says money froa disability check. Cross-examination, can PA impeach
with...?
Witness’s prior silence:
 Can impeach someone w/ prior silence b/c still inconsistent w/ testimony on direct examination
 D argue: (not inconsistent enough) No duty to respond & only allow impeachment if silence is inconsistent
w/ direct
 PA argue: (sufficiently inconsistent) didn’t come forward w/ evidence b/f trial
Can PA call officer to give testimony about witness’s silence if witness states on cross-examination doesn’t
remember what he said to the officer at the time of the event?
 D argue NO inconsistency b/c two statements NOT based on different beliefs about the truth------prob. win
 PA argue opportunity to admit / deny / explain away the statement and chose to say he did not remember

NO FRE: IMPEACHMENT BY DEFECTS IN PERCEPTION, MEMORY, DESCRIPTION

 Case-specific attacks- CAN show by extrinsic evidence -----BUT NOT general characteristic (absent-
minded)
 Evidence can be in the form of: Reputation, Opinion, Specific Instances
 Attack on the quality of the testimony
 Done on cross-examination OR can be done w/ extrinsic evidence
 Lay testimony is preferred, but expert testimony may be necessary---if ongoing disability/ condition
Alcoholism / Drug use
 Evidence of alcoholism / drug addiction generally NOT permitted as basis inferring witness “under the
influence” BUT generally permit specific evidence of alcohol / drug use at the time of the event or
while testifying

V-33 conspiracy distribute heroin 2 govt. informants watched delivery cross examine informants
Heroin addicts N General characteristic gives propensity inference
Use heroin 48-hours prior to time Maybe More case specific - goes to actual use impair
saw w/ other Ds perception @ time witness perceived
Use heroin in 3 days since trial began Y Goes to memory
Drug agents supply w/ heroin/ $ to Maybe Bias theory ---poss. Conditional relevance
purchase

[29]
Evidence Outline
610: KSA 60-430 IMPEACHMENT BY RELIGIOUS BELIEFS
A witness’s religious beliefs or opinions are INADMISSIBLE for the purpose of attacking or supporting
credibility
o BUT could show for alibis - not character/credibility or need to show relationship (members same
church)
EX: Can’t impeach witness b/c athiest. Can’t support witness credibility b/c Christian (admissible OTHER
purpose?)

POST IMPEACHMENT
608: KSA 60-420 REHABILITATION
 Evidence admissible solely to support credibility may ONLY be offered AFTER credibility attacked
 Rehabilitation must be responsive to the FORM of impeachment
o EX: Witness impeached w/ poor vision may rehabilitate w/ evidence wearing contacts NOT good
memory
 Specific instances may NOT be proved to support ‘general credibility’

Three ways to rehabilitate:

(1) Re-direct: Explain away the impeachment (2) Good character evidence for truthfulness (3) Prior consistent
stmts

608(a) character for truthfulness requirement (constitute attack)

Attack on character for truthfulness justify introducing character evidence NOT attack on truthfulness
609 prior conviction Bias

[30]
Evidence Outline
Opinion/reputation untruthfulness Memory
Perception
Ability to communicate
 Contradiction depends on whether evidence suggests lying instead of honest mistake

Good Character Evidence

 608(a) and (b) limit good character evidence to: reputation/ opinion RE: honesty
 Specific instances of honest behavior CAN be brought out:
o On cross-of witness who provides unfavorable reputation or opinion evidence
o On re-direct of favorable witness who was impeached on cross w/ specific instances of witness’s
dishonesty

801(d)(1)(B):
 admits prior consistent stmt if doesn’t fit another HS exception ONLY when rehabs witness credibility
 NOT substantive evidence
KS- 60-460(a) admit prior consistent stmt EVEN IF not used rehabilitate –use as substantive evidence

V-36 Rhombus testifies about events and then a second witness testifies that Rhombus is “as honest as they come”
 608(a) - truthful character ONLY admissible AFTER character for truthfulness attacked - NO attack yet =
can't do
What if on cross, D’s counsel brought out that Rhombus is P’s brother in law?
 Attack on bias = NOT attack on truthfulness (can't intro. Evid. Truthful unless attacked- 608(a)
On cross D’s brought out P paid Rhombus’s travel expenses to testify? Can P now call another witness to
rehabilitate?
 D argue solely impeachment by bias evidence & P argue dishonest, like bribe to testify-----argue corruption
inference
Impeach Rhombus w/ a prior inconsistent statement that he did not see how the accident happened. Can you
rehabilitate?
 ONLY good character when character actually attacked ----NOT attack on character
Question witness on cross-examination about understating his income on his tax returns?
 608(b)(1) attack – Prior specific instance of untruthfulness---court MAY allow witness testify to R’s
honesty
NO cross of R and D puts on a witness testifies events occurred in different way? Can P put on character witness
now?
 Testimony on the merits, BUT impeaches Rhombus’ testimony by contradiction
 P argue implication is one of the witnesses is lying because both testified to extremely different set of facts
 Not as strong of a contradiction / impeachment of truthful character as prior inconsistent statement

V-90 PA asks witness about prior crimes on direct to “remove the sting,”  presents witnesses to testify to good
character.
 Object b/c D never attacked character of witness for truthfulness under 608
 Not brought out to attack character for truthfulness= PA shouldn't get benefit of diminishing
impeachment value -> benefit offer good character witness

[31]
Evidence Outline
801 HEARSAY
801: KSA 60-459; 60-460
 Hearsay prohibits evidence of out of court statement asserted for the truth of the matter
o ALWAYS hinges on WHAT evidence offered to prove
o Look @ what statement intends to say, not just what it actually says
 Exclude evidence used in certain way--- limited admissibility
o Identical civil and criminal cases & state/FRE
o Does not include Out of court assertion that fact is True  Out of court assertion was made 
Issue of Consequence in Case (NOT HEARSAY)
o HEARSAY – Out of court assertion that fact is true  fact asserted in out of court assertion is true
because declarant’s perception/memory were accurate  issue of consequence in case (Not
admissible/Okay)
 Have to conclude fact asserted in statement is true?----YES= HS ---NO =NOT HS
 Burden on person offering evidence (proponent) to ID non-hearsay purpose of evidence
 CAN BE BOTH HS & non-HS purpose-turns on what offered for
o IF stmnt used for BOTH HS AND non-HS purpose  stmt generally admitted regardless of
probability jurors (despite 105 instructions) may treat stmt as support for forbidden hearsay
inference
  IF embedded (multiple out of court) stmts -> MUST do HS analysis separately - find ALL HS/
non-HS uses
o Each level must be non-HS OR qualify under HS exception to admit (doesn’t have to be same
exception)
 Rule does NOT exclude self-serving stmts
 Ambiguous cases decided in favor of admissibility
 Not Hearsay – Being offered for a non-_____ purpose

801c Analysis
i. Statement by a person (NOT animal or machine)
o Oral / Written
o Non-verbal conduct intended as assertion (pointing to a person in a lineup, nodding in response
to ?)
 Silence- Most courts say IS stmt – still HS if accused doesn’t respond claim innocence
 Non-assertive Conduct- act w/ no intent = NOT HS
ii. Made out of court
o NOT in current proceedings
o Not automatically binding
iii. Offered for truth of matter asserted in the statement
o What are facts asserted in stmt (b/t quotation marks)?
o What issue necessary to prove in case? –
 HOW prove it?
o Doesn’t matter stmt helps prove party’s case- Must ask HOW supports party’s case
 Requires stmt be true o (HS)
 Mere FACT stmt made (NH)
Still Confused? WHOSE credibility MUST jury rely on (witness testifying OR out of court dec.)
 ONLY rely on IN COURT witness  NOT hearsay
 Req. rely on declarant  hearsay
 
Relevance ONLY determined by substantive law - HOW IS EVIDENCE OFFERED ---still 403
1. ID elements of claims / defenses
2. Ask what is relevant of out of court assertion that acts to prove element of claim (use)

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Evidence Outline
 Facts in b/t quotation marks accurate OR
 Fact stmt made
3. Do we care whether facts asserted in out of court stmt true or not
 NO --> NOT hearsay --------YES---> HS

EX - Issue whether light was green or red when car went through intersection W testifies B told me light was green
 HS b/c out of court stmt offered for the truth of the matter- have to believe what B said was
true but B isn’t on witness stand – credibility issues
whether D struck P, Ws testimony that X told her that he HS Have to rely on credibility of witness AND credibility
saw D strike P. of X -D actually struck

whether D struck P, W reads entry that she made in her
diary on day of the alleged fight, "Today I saw D strike P."
801 HEARSAY
W testimony X stood @ cash register & heard cashier ask
are you one who downed whole fifth whiskey whether
drank 1/5 whiskey (you're the one who drank 1/5 of
whiskey?)- goes to whether X drank 1/5 whiskey
HS Offered prove whether D struck P = HS b/c req. to take
out-of-court stmt for the truth of the matter asserted
HS Most ?s NOT HS b/c provide evidence of response BUT
diff. here ------------Think of as cashier asserting D
downed 5th (diff. 9 b/c speaker intended inference)

NOT Hearsay (Purposes) b/c NOT offered for the Truth of the Matter Asserted:
Verbal Acts: Very fact that they were spoken or written  Evidence person said pledge of allegiance to
carries legal consequences prove loyalty to U.S.
 Substantive law gives legal significance  Two people saying, “I do” = marriage
Verbal Parts Clarifying statements treated as part of an act  Give $20 and say, “Sure, I’ll loan you the money.”
of Acts they accompany → Shows lack of donative intent
 Point a gun at someone and say, “This is a robbery" -
tells WHY robbery
Stmts Statements that show an individual  Mechanic telling guy his brakes need repair shows
Manifesting was/should have been aware of a particular guy knew brakes were even though it cannot be
Awareness fact offered to show brakes in fact bad
(notice) /  Self-Defense: Show person’s belief that  Newspaper articles HS to prove truth of facts
Effect on he needs to defend himself reported NOT HS to prove public knowledge of facts
listener   reported
 case for libel, stmt to article author that prior to
printing, someone told him it wasn’t true → Shows
awareness story is false (element of tort)
Does NOT actually matter if story untrue
States of Statements which reflect a person’s mental  Evidence person said, “Little green martians are
Mind outlook following me” is admitted to show insanity/
 Issue is WHAT stmts imply RE: symptom of mental condition, NOT that little green
speaker’s belief, NOT whether reflect martians are actually following
actual belief(are true)
 If asserts state of mind @ issue ->
admit w/ limiting instruction
Impeachment Prior inconsistent stmts suggest witness  
[33]
Evidence Outline
should not be believed, NOT b/c prior stmt
true BUT b/c said 2 different things about
same event
Catch All Other ways relevant Ex- Show received something needed to lay
reasonable basis for doing other act
- Show D’s motive to commit crime (regardless of
actual intent)

HEARSAY 801
Other Hearsay-Related Problems:
(1) Hearsay vs. Lack of Personal Knowledge
 Wtness is testifying from personal knowledge if he says that someone told him something (“She
told me the car was red”) Knows firsthand what person said and is testifying to nothing more than
person’s statement
 HEARSAY IF witness testifies to stmt as if it were his own (“The car was red”)
o Have to rely on OTHER person’s credibility
 602-Personal knowledge requirement applies to hearsay speakers
(2) Multiple Hearsay
EX: P sues D for fraudulently selling him a barren cow. P calls W who will testify, “D’ s neighbor told me he
had been w/ D and vet when vet told D the cow was barren.”
 What’s P have to prove in case to recover?
(a) Cow NOT pregnant AND
(b) D knew cow NOT pregnant
TWO out of court assertions
(1) Neighbor told W what the vet told D
 Hearsay b/c offered for TOMA – That neighbor overheard vet tell D that the cow was
barren
(2) Vet told neighbor / D cow was barren
 NOT Hearsay if offered to show D’s state of mind (intent to defraud)
 Hearsay if offered to prove cow was barren

(3) Machine or Animal “Statements”

EX: Woman claims robbery took place in home before 5 AM testifies she heard someone in house
fifteen minutes before her rooster crowed and the rooster always crows at 5AM → Rooster crow cannot
be hearsay
EX: Speed measuring device’s reading is a type of out of court declaration BUT report of reading is NOT HS

EX: Animals, injured watchdog growls when walking by 1 out of 5 men in a lineup

1. What is the evidence (specifically and exactly)?

[34]
Evidence Outline
a. Make a list for each piece of evidence, is it a statement, a document, or a piece of physical
evidence?
2. What is the evidence offered to prove?
a. Look at the evidence against the backdrop of elements of the crime, cause of action, or defense.
Does the evidence help to prove one of these elements?
3. Does the evidence help prove the fact for which it was offered?
a. FRE 401, Evidence is relevant if it has any tendency to make a fact more or less probable
b. And it is a fact that matters in determining the action
4. Is the evidence, though logically relevant, inadmissible?
a. FRE 403, If 403 balancing applies, the prejudicial harm of the evidence usually must substantially
outweigh its probative value for it to be excluded. Further, the correct ground from FRE 403 must
be articulated.
5. Is the evidence a statement? (If the evidence is not a statement it is not hearsay)
a. An out of court statement, declaration, writing or action intended to be an assertion.
b. FRE 801.a.1-3 A Statement is either verbal, written, or by action, Intended by the person who made
the statement to be an assertion.
6. If so, is the evidence of the statement offered for the truth of the matter asserted (or, alternatively,
does the statement have to be true to be probative)? (801c)
7. If so, is the statement either within an exemption from or an exception to the hearsay rule?
a. FRE 801.d
b. FRE 803.1-23 (whether the witness is available does not matter)
8. If the statement is not admissible under the traditional exemptions or exceptions, is it admissible
under FRE 804 (Declarant must be unavailable)?
9. In a criminal prosecution, is the admission of the hearsay statement forbidden by the confrontation
clause, or required by the due process clause?

HEARSAY EXCEPTIONS
Exception doesn't make 'not hearsay' ---just makes admissible
801(d)(2): KSA 60-460 G-I PARTY ADMISSIONS *** Concannon says treat admissions as exceptions
although FRE treat as an exemption to the definition of hearsay ***
Not hearsay IF the statement is offered against a party and is:
A Personal admission Party's own statement, in either an individual or a representative capacity
B Adoptive admission Statement of which the party adopts/ believes in its truth
C Authorized admission Statement by a person authorized by party to make a stmt concerning the subject
D Vicarious Admission Statement by party's agent or servant concerning matter w/in scope of agency or
employment, made during relationship
E Conspiracy Statement by party’s co-conspirator during the course AND in furtherance of
the conspiracy
 801 exceptions are based on responsibility  people responsible for their actions/statements
 Call it hearsay, then look for an exception to make it “admissible hearsay”
 If determining if stmt by person authorized to make/ co-conspirator/ in scope of employment – 104(a)
determination
o FRE allows hearsay stmts to prove ---KS requires evidence wholly independent of stmt
 Statement must be offered AGAINST A PARTY ------Party CANNOT use its OWN admission
EX: 801(d)2, GM cannot offer its OWN business records to show how product was
designed / manufactured if sued for a defective automobile
Opposing party cannot be used by a party to get own stmt into the record
 Applicable to criminal and civil trials
[35]
Evidence Outline
 Stmt admissible even if, at time party made the stmt, the party did not think it’d be against his/her interest
 CANNOT exclude for lack of personal knowledge IF it is admissible under FRE 802(d)(2)
VI-18: Child being bitten by dog while mother getting hair done
 Even though it is HS it would come in under 801(d)2
o “I’m so sorry” would adopt the action as her fault – interpreting as accepting Sara’s version of
events (noting agreement)
o “I’m so sorry” could also be taken as ambiguous and not allowed in under 801(a) because it was
made under the stress of excitement
 Party admission under 801(d)2A the party ought to have to explain away the stmt but it would come in
VI-25: Driver hits child and passenger admits they were all at a party where they had been drinking
 Triggers 801d2 – passenger made the statement in drivers presence – if driver was silent it is accepting it as
true
 Argument 801d2 is not triggered because it is commonly known that the right to remain silent in the
presence of police
 “We” is kind of ambiguous – who does “we” encompass?
VI-20: Employee of utility Co. told a bystander who happened to be the mayor that the fix was not good enough
 801d2D – admissible since agent/employee of co.
 Telling her husband – (marital privilege aside) no longer ‘on the clock’ so probably doesn’t not apply
o Argument against that she still has inside knowledge even if she is not on the job
802(d)(2)(A): KSA 60-460(g) PERSONAL ADMISSIONS
VI-35: Testimony of senator’s aide who overheard Senator say he took a bribe from Bill. Trial for Senator takin
g bribe
 HS b/c offered for truth senator took a bribe (what the statement asserts)
 Testimony admissible against senator under FRE 801(d)(2)(A) b/c it’s senator’s OWN statement
o Senator = PARTY  stmt AGAINST party  stmt made BY PARTY
 Unlikely evidence can be admitted against Bill
o Could argue conspiracy under FRE 801(d)(2)(D), but most likely not in furtherance
 Split trials – could then allow split instructions for each def.
801(d)(2)(B): KSA 60-460(h)(2): ADOPTIVE ADMISSIONS
 Anything said in presence of party admissible if party doesn't deny accuracy of stmt?
 NO only applies when conclude silence intended as adoption of 3P stmt (Assertive silence)
 Elements
i. One person normally would respond given surrounding circumstances
ii. Party heard stmt; capable understand stmt’s incriminatory meaning; at liberty to reply/ deny
stmt
iii. Party had sufficient knowledge of facts to reply Ritson (KS)
 Party MUST be around when stmt made to adopt it
EX: Would expect the executor of an estate to respond to a statement that the amount of money in a safe is actually
$5,000 and NOT merely $500 given her fiduciary duty
EX: Might NOT expect passenger in accident to respond to a stmt by passenger that “all at a party had been
drinking”
 Shock/ not want to incriminate himself in front of an officer, even if officer flat accuses him of causing
accident
 NOT adoptive admission IF not made in driver’s presence
801(D)2(D) & E= NOT stmt of party BUT of person associated w/ party

HEARSAY EXCEPTIONS: PARTY ADMISSIONS

[36]
Evidence Outline
801(d)(2)(C): KSA 60-460(h)(1) AUTHORIZED ADMISSIONS
EX: Company hires a consulting firm to make report on viability of dam site asking frim to make stmts on subject

report would probably be admissible against company as authorized admission
EX: if company’s president made stmt
Note: If the report is offered only for punitive damages, it is NOT HS b/c offered to show knowledge of the
company
 Don’t have to be authorized to make the specific statement

801(d)(2)(D): KSA 60-460(i)(1) VICARIOUS ADMISSIONS

 NOT EVERY stmt by employee admissible - where merely bystander/observant witness agent/ employee
stmt NOT admissible against principal b/c not part of job responsibilities
 Use federal definitions of “agent” and “servant”------Independent contractor IS NOT an “agent” or
“servant”
o BUT under FREs, e.g. – Fed courts have admitted statement of a corporate underling as an agent of a
higher level executive even though he was technically an employee of the corporation

EX: Engineer sent to fix a dam tells a 3P dam was bad to begin with-----Even though probably not authorized by
company to make stmts it’s a stmt made by an employee w/in scope of employment NOT terminated under facts

KSA 60-460(i)- requires speaker to have personal knowledge UNLIKE FRE (only need be w/in scope of
employment)

801(d)(2)(E): KSA 60-460(i)(2) CO-CONSPIRATOR ADMISSIONS

 Provides an exception for statements of conspirators that are hearsay
 Exception for co-conspirator’s admissions is not limited to cases in which conspiracy is charged
 D’s own stmt can prove
 Typically stmts allowed in IF – describe past occurrences for future strategy; stmts recruiting others; try to start
transaction
o EX- “If you don’t fill this sack I’ll…” = don’t need 801(d) b/c extortion NOT HS purpose – mere
speaking = legal significance
“In the furtherance of”
 Must be a statement that advances aims of the conspiracy
 Mere narrative of past events doesn’t satisfy requirement if doesn’t serve conspiratorial purpose
Eubanks: D telling his wife that he is going to Tucson to buy heroin for D is NOT in furtherance b/c
not trying to enlist her help
“During the course of” Requirement – When does the conspiracy end?
 US Supreme Court: Include statements up until main objective accomplished
EX: In robbery, main objective is to get away w/ money so it might not be a completed if money not yet divied up
 KS rules extend the exception to the brief concealment phase- FRE only allows if nature of crime req.
conceal
VI-15 – Problem where daughter tells mom “I didn’t tell them anything about you”
 Used to tell the jury the relationship between the two – Okay
 Statement used to manifest knowledge – words would not have been uttered if daughter did not have
knowledge
 Words would not have been uttered unless both were involved in criminal conduct
 Stmt could be taken as HS because if meant to exonerate mother
 HS bc probative value depends on an assumed fact implied by situation
Preliminary Facts Must be Established PRIOR to Admission of Evidence
 Burden is on the proponent of HS stmt to prove preliminary facts necessary to invoke a HS exception
[37]
Evidence Outline
 Judge decides whether preliminary facts have been established under FRE 104(a) by a preponderance of
evidence
o Content of stmt can be considered BUT is insufficient by itself
 Must have some independent proof of participation ---in addition to stmt
 usually D’s own statement about his involvement in conspiracy under 801(d)(2)(A)
 Possibility of admitting evidence on a conditional basis under FRE 104(b)- prima facie std.
o BUT if the statement ends up being inadmissible because you cannot prove conspiracy, too much
damage will have been done and might result in a mistrial (risk inherent in complexity of rules)
KSA 60-460(i)(2)---Only requires stmt “relevant to” plan to commit a crime
“Maybe we shouldn’t go through with it because...”
 Could argue NOT in furtherance of conspiracy b/c talking about NOT doing it

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

 Most 803 exceptions available regardless whether declarant is/is not available or is/is not available to
testify
o Balance in favor of admissibility when declarant is unavailable to testify

Rationale of 803(1) & (2): Stmts so contemporaneous w/ event speaker has NO time to reflect & fabricate
 circumstances surrounding making of stmts enhance it’s trustworthiness & circumstantial probability of
reliability
 Some statements can fit BOTH 801(1) & (2): EX: “oh my god, the car is going through the red light!”

803(1): KSA 60-460(d)(1) PRESENT SENSE IMPRESSION (aka - Present tense impression)
Statement describing / explaining an event / condition made while the declarant was perceiving the event or
condition, or immediately after
 Play-by-play described as perceived (events so contemporaneous – think sports commentators)
 MUST BE a description of the event / condition-----Cannot just “relate to” the event
Characteristics
1. described event/condition need not have caused excitement;
2. declaration need not directly relate to the principle litigated event;
3. speaker need not have been a participant in the perceived event;
4. speaker must have been a percipient witness;
5. speaker need not be identified
o Could be a problem if stmt itself is only evidence declarant perceived the event
6. speaker need not be shown to have been oath-worthy
7. subject matter is restricted to a description of the observed event
8. minimal time lapse b/t stmt & event perceived
9. present sense impressions NOT cumulative
10. impression in opinion form are admissible (
a. “That boy’s going to kill someone one of these days”-prove driving fast= HS ---803(1)
gets in

V-42 Operator’s testimony anonymous person called 911 & reported guy in bulls sweatshirt committing robbery-
admit?
 Most likely admissible b/c describing events as they are occurring - small time lapse b/t event & 911 call
 Fit under 803(2) as an excited utterance but calm demeanor of caller and the fact he is in his apartment is
probably evidence that is not likely
 More likely to be 803(1) since he is perceiving it in real time – not enough lapse in time to fabricate a
story/facts
[38]
Evidence Outline
 NOT required to call declarant as witness---BUT cases indicate hesitancy use stmt ALONE by unidentified
bystander
If caller calls back to report police arrested one robber, but other robber is still on roof...admit?
 Implies event OVER ---no longer present sense impression (call play in 2nd quarter vs. 1st) -arguable
 Argue - NOT offering stmt to prove robber was arrested (as asserted) – we already know he was arrested. 
It would be non-hearsay to prove caller in fact was perceiving what was going on.
 803(1) still in play since the event is still on-going since white guy is still on the roof (seeing in real time –
no lapse in time)

803(2): KSA 60-460(d)(2) EXCITED UTTERANCES

Stmt relating to a startling event / condition made while declarant was under stress of excitement caused by event /
condition
 Stmt ONLY needs to relate to event, NOT describe it like 803(1)
 Stmt made by someone participant in event / in danger -> use excited utterance—803(2)
 May be in response to question IF excitement continues to prevent conscious reflection
 Longer time lapse-- varies  the more riveting the event is… the longer the stress will last (major vs.
minor trauma)
o Ex: Child abuse. Child stmts may last for days under exception b/c:
 Child waits a week and then bursts out with a confession--- “enduring excitement”
 Child answers the door a month later, sees the perpetrator, and freaks out---“reawakened
excitement”
(1) Event must be startling enough to still reflection (do away w/ any chance to deceive)
o Show w/ accidents, injuries, assaults, etc.
o Issue when ONLY evidence of startling event is stmt of excited speaker--------most courts admit
EX: Dying man claims he fell down an open manhole, so his heirs sue city
Stmt + open manhole near where he died = Admit; Stmt + no evidence of open manhole =
Admit

(2) Speaker must be under the influence of the event when he makes his statement
o Shorter lapse in time b/t event & statement= more likely it is to be admitted---duration=
circumstantial
EX: Event creating painful condition (injury) interfere w/ reflection over time & therefore excitement
persists
HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL
803(1): KSA 60-460(d)(1) PRESENT SENSE IMPRESSION / 803(2): KSA 60-460(d)(2) EXCITED
UTTERANCES
V-49 Officer testify to victim's testimony - he did it ---james did it + answer officer ?'s RE: D's address (evidence
woman intoxicated /has knife in back)
 803(1) stabbed @ police station = NOT present description while stabbed/ immed. After -too much
time lapse
 803(2) excited utterance- can probably get it in. Can be in the past. Doesn’t have to be
immediately after the happening. Depends on how long the stress of the situation lasts
 D argue – response to question = NOT excited utterance/ unreliable b/c drunk & time reflect
o Courts suspicious of excited utterances when they are responses to questions (like
“spontaneous” stmts)
o Questions call for you to reflect in order to give an answer, which is what exception is designed to
avoid
 BUT PA argue
 open-ended questions are less likely to call for reflection

[39]
Evidence Outline
Injured/ asking help = ongoing stress
 104(a) determination – court can look @ stmt b/c not ltd. to permissible
evidence
 Argue lack of knowledge [602] stmt doesn’t show by preponderance of evidence who assailant was
[104(a)]

803(3): KSA 60-460(1) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION

Stmt of declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health), Internal
 BUT NOT stmt of memory or belief to prove the fact remembered or believed
o UNLESS it relates to execution, revocation, identification, or terms of the declarant’s will
 AKA – ‘State of Mind’ exception
 Same as 803(1) BUT describing internal (mental/ physical) present sense impression
 State of mind may be in issue (intend live forever-domicile) & relevant to predict conduct (FRE split if
allow)
 Inference NOT literal truth = NOT HS = don't need exception
 Stmts of memory / belief are inadmissible to prove truth of fact remembered/believed
o EX: I believe my husband tried to poison me= HS prove husband tried poison BUT admissible if
mere fact/belief relevant (explain change of insurance beneficiary)
 Assertion of mental state IS HS to prove intent BUT 803(3) exception
o EX- my leg hurts today = HS to prove hurt on 9/1 BUT exception 803(3)
 On 9/1 - witness say heard say depressed = HS prove depression BUT 803(3) exception
 KSA 60-460(1) - stmt of then existing mental/emotional/physical condition MUST be made in good faith

1. Existing physical condition

 Usually stmts about pain or other bodily feelings
o EX- “My kidneys are infected” /“My appendix is inflamed” = exclude b/c lack of personal
knowledge, BUT admissible to show speaker’s pain
Requirements:
(1) Statement must reflect a condition that exists when statement is spoken
EX: “I have a terrible headache” = Admissible NOT “I had a terrible headache yesterday”
(2) Statement must be spontaneous
 Statement + Condition = Spontaneity, unless circumstances suggest otherwise

2. Existing State of Mind

 Statements that circumstantially suggest speaker’s state of mind are NOT hearsay
EX: “Hawaii is such a beautiful place. I can think of no place nicer”
o NOT hearsay – Infer domiciliary intent from statement
EX: Personal injury case for mental pain & anguish, victim’s stmt @ time of accident won’t see child grow
up
o Words NOT offered for proof, BUT to show that victim experiencing mental anguish at the time
 Stmt IS hearsay IF it asserts the very state of mind in question
EX: “Because I love Hawaii so much, I intend to live here forever”
o BUT meets the 803(3) exception b/c then existing intent

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

803(3): KSA 60-460(1) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION
2. Existing State of Mind (continued)
a. To show feelings: Must describe declarant’s state of mind when he speaks
[40]
 Evidence Outline
EX: “I am happy now” = Admissible NOT “I was happy yesterday”
i. Whether a state of mind at one time tends to prove a state of mind at another time is a relevance
issue, NOT a hearsay issue
o Relevance - doesn't have to conclusively prove - just has to alter probabilities
EX: Issue whether speaker had domiciliary intent on Oct.10th & speaker said, “I intend
to live here forever” = Admissible IF made on Oct. 10th
o Statement made on August 15th: Good argument that the speaker’s state of mind
persists
ii. Can admit evidence of past feelings w/ regard to a will
EX: “When I ripped up my will, I didn’t want Bob to inherit a cent” = Admissible b/c will +
past tense
 Courts often admit statements that assert both a feeling and the circumstances giving rise to
the feeling
EX: “I don’t want Bob to inherit a cent from my will because he is an alcoholic”
o Such background info sheds light on the strength of the statement
o Judge has discretion to admit only part of a statement if the rest would be too prejudicial
i. Statements that imply a feeling are also admissible
EX: “Bob cannot be trusted w/ money because of his drinking problem”
o Not technically hearsay
o No way to eliminate prejudicial parts of the statement, so could end up being excluded
under 403

b. To show behavior: Stmts asserting / implying a state of mind are offered to est. behavior consistent w/
s.o.m.
(1) Can prove speaker has taken some action consistent w/ state of mind (State of mind →
Action)
EX: Murder trial, testimony of victim’s friend that day b/f death, she said, “I am going to commit
suicide”
o Hearsay IF offered to show she killed herself
o 803(3) exception - Stmt about present intent at time she made it-(if persist day later=
relevance issue)
Inferring what OTHER party did – HS prove 3P conduct
 Hillmon (SC): Hillmon’s stmt RE: traveling w/ another man made it likely he left AND
traveled w/ man
 Allowed in to show future conduct via 803(3) exception
 Advisory committee – limit ONLY to Hillmon’s future conduct NOT 3P’s
 Alcalde: Victim’s statement, “I am going to dinner w/ Frank” to show that Frank murdered her
 Implies she is going to go to dinner w/ Frank or not at all
o Feaster: Victim’s stmt, “I am going to buy drugs from Angelo” to show Angelo kidnapped
victim
FEDERAL RULES: split / Some courts don’t allow / Other courts will allow as long as there is some corroboration

(2) State of mind is offered to show the behavior that caused it. (Action → State of mind)
EX: “I am afraid of Bill because he threatened to kill me”
 Courts ordinarily do not admit statements of memory / belief to prove the fact remembered or
believed (unless re: will)
Shepard – patient said doctor poisoned them b/f dying
 HS? – YES-PA offering out of court stmt to prove Shepard poisoned = guilty murder
 Argue assertion believe Shepard poison- stmt of then existing belief let in 803(3) BUT
 Exception - 803(3)- does NOT apply to belief
KSUPP- Homicide case - Self-defense b/c V started fight------V said next time see D beat D up

[41]
Evidence Outline
1. HS- YES asserted for truth of matter V started fight
2. Exception - 803(3) - then existing state of mind of D
3. Relevance- 3 days later - assume intent persisted overtime & alleged victim acted
in accord by beating D

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

803(4): KSA 60-460(2): STATEMENT MADE FOR MEDICAL DIAGNOSIS / TREATMENT
Stmt made for purposes of medical diagnosis / treatment
 describing medical history, or
 past or present symptoms,
 pain, or sensations, or
 the inception or general character of cause or external source thereof
o insofar as reasonably pertinent to diagnosis or treatment

803(4) broader KSA 60-460(1)(2)

Stmt could be made to non-physician
- nurse/ med. Student/ ambulance driver
Can have stmts to hired experts come in
- diagnosis alone for purpose of testifying is
sufficient to allow doctor’s testimony in
Applies ONLY to stmts made to a physician
 If stmt to ambulance driver/nurse argue to = info. Meant
for physician
treatment has to be objective for doctor in order for doctor’s
testimony to be admitted

NOT limited to stmts of declarants own symptoms
NO bad faith req. (403 argument)
Includes stmts of causation IF pertinent to treatment
 EX- child abuse victim stating abusive parent-
reasonably pertinent to treatment
 I was hit by car= ok
 I was hit by car ran red light = NOT
Limited to stmts of declarant's (OWN) previous symptoms
 Hard intro. Parent stmts to doctor RE: child
Precludes history of medical history / conditions IF made in bad
faith
Does NOT include stmts of causation / identification of
perpetrator (Todd)

BOTH - preclude stmts by doctor to patient explaining  

diagnosis
 BUT FRE may allow general practitioner
description of patient symptoms to specialist
(argue stmt made for purposes of treatment)

Note: Statements introduced to show basis for doctor’s opinion are NOT hearsay
 Includes backward looking medical history stmts
 FRE- allows stmt be made just for medical diagnosis - don't need contemplate treatment
 Patient’s belief that provides the basis for reliability

[42]
Evidence Outline

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

803(5): KSA: 60-460(A) PAST RECOLLECTION RECORDED
Memo or record concerning matter witness once had knowledge BUT now has insufficient recollection to enable
witness to testify fully and accurately,
 shown made/ adopted by witness when matter was fresh in witness' memory & to reflect that knowledge
correctly
 If admitted, the memorandum or record may be read into evidence but may not itself be received as an
exhibit
 UNLESS offered by an adverse party

(witness basically unavailable b/c introducing past recollection as replacement for testimony BUT has to 1st testify
can’t remember)
 HS applies EVEN IF declarant is quoting own self
o EX- V-3 in court reading diary of words written by person who wrote

Requirements:
(1) Record must relate to something the witness once knew firsthand
(2) Witness’s memory of event must have faded to point they can no longer testify fully & accurately
about event
 Doesn’t have to be exhausted
(3) Record must have been made or adopted by the witness when the matter was fresh in his memory
 No requirement that record have been made at or near the time of the event
 Fresh -Allows larger time gap b/t perception & making of stmt
 Can adopt a statement made by someone else
o Two Party Voucher Principle
 If individual dictates to tape recorder and secretary types up dictation  Past
recollection recorded if person who dictated did NOT review for accuracy?
 Simultaneous reproduction good enough
(4) Record must accurately reflect the witness’s knowledge at time it was written
 Must remember making recording EVEN IF doesn't remember facts recorded
 Best evidence rule requires record be original unless proponent can show original is unavailable (FRE
1002)
 Speaker must be both present and unavailable
o Must be in court to testify to the circumstances that qualify the declaration for admissibility as a
recorded recollection, BUT
o Must also lack a clear memory of the event
 Only allows stmt to be READ to jury NOT received as exhibit (unless adverse party offers)

612: Refresh witness memory KS has not adopted this

 judge has discretion allow witness look @ any documents used B/F trial to refresh witness recollection
[43]
Evidence Outline
o Using privileged document to prepare non-privileged witness can waive privilege
 Thing used to refresh memory cannot be entered into evidence by proponent
 IF didn’t refresh in 612  testimony may be barred/ struck from record
 Opposing counsel has right to see any writings used to refresh witness’s recollection in private before he
takes stand
o

KS does not have a direct counterpart to FRE 803(5)

 KSA 60-460(a)- ability cross examine by person present @ hearing RE: stmt good enough

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

803(6): KSA: 60-460(M)(N) BUSINESS RECORDS (Records of regularly conducted activity)
(1)Memo, report, record, or data compilation (in any form)
(2)of acts, events, conditions, opinions, or diagnoses
(3)made at or near the time
(4)by (or from information transmitted by) a person with knowledge, IF
(A) kept in the course of a regularly conducted business activity, AND
(B) it was the regular practice of that business activity to make the business record
(frequently record)
as shown by: (Authentication)
(1) testimony of custodian or other qualified witness, OR
 Person who knows record making process/ how records are made/kept
(2) by certification that complies with Rule 902(11), Rule 902(12) (self-authentication), OR
 Must give advance notice of this type of authentication
 If opposing party wants to challenge  burden on opponent to subpoena record
maker
(3) statute permitting certification
UNLESS source of information or the method or circumstances of preparation indicate lack of trustworthiness

P suing general motors- introduce GM NO- Offering party's business records against party -> get in under
business records RE: design of car -P satisfy 801(d)2----BUT
803(6) to admit records?  
803(6) ONLY applies if party wants to get in OWN records OR 3P’s

 MUST BE WRITTEN (no oral testimony about record’s content)

 Overlap 803(5)---but may want in under 803(6) as business record tactically advantageous b/c?
o 803(6)  offered as exhibit - not allowed under 803(5)
 Has effect of bringing business person to life and putting them on witness stand
o If they cannot testify about what they wrote in person, then the business record cannot be admitted
 Business broadly defined to include institutions, associations, businesses, occupations, professions, and
callings
TRUSTWORTHINESS
Palmer v. Hoffman: Court refused to admit train engineer’s report prepared POST train accident
[44]
Evidence Outline
 b/c NOT in regular course of business for RR to make report ---made in preparation for litigation w/
MOTIVE to lie = Not reliable to satisfy 803(6)E - trustworthiness
FREs: Absence of routine renders records inadmissible ONLY IF non-routine indicates a lack of trustworthiness
FRE: Burden is on objecting party to show why it should NOT be admitted
KS: Burden on proponent to show trustworthiness
OPINION IN BUSINESS RECORD
 The court must examine it to determine admissibility
EX: Diagnosis in a hospital record → Admissible IF based on reasonably objective criteria /but Rarely
admit cause
 More speculative it is, the greater the chance of exclusion (EX- highly speculative diagnoses drs. Disagree=
no go)
 If it would be inadmissible under 702(expert testimony), it is probably inadmissible under 803(6)
BUSINESS PERSON & BUSINESS DUTY TO REPORT
 Source of info & recorder of info ARE same person acting in regular course of business = Exception
satisfied
 Source of info & recorder of info NOT same person & NOT acting in regular course of business =
Exception NOT satisfied (Hearsay upon hearsay)
 If source and recorder NOT same, but they ARE acting in the regular course of business= Exception
satisfied
EX: Informant’s stmt to a police officer who records it in a report is inadmissible b/c informant has
no duty to report and statement not given as part of regular business activity (Johnson v. Lutz)
CUSTODIAN / QUALIFIED PERSON
 Person who made entry does NOT have to testify / Can be someone familiar w/ record-keeping system
 Must ID which business the record is from in order to call a custodian / qualified person
EX: Phone record of county clerk’s office is actually the business record of the phone company and NOT
clerk’s office = Have to call authenticating witness from the phone company
HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL
803(6): KSA: 60-460(M)(N) BUSINESS RECORDS (Records of regularly conducted activity)
Multiple Hearsay ---------803(6) - brings to life/puts on stand business observer who observed the fact
 Would business observer as live witness be permitted to testify about fact recorded in business record?
o NO - doesn't come into evidence
o YES- ex- could testify D told me his breaks bad b/c party admission (801(d)2(A)-against party by
party)
V-70 Car accident  driver takes girl he hit to hospital. Nurse writes reason for visit is little girl hit when she
darted out in front of driver’s car & he could not stop b/c his brakes were bad.
Driver offer HIS copy of hospital report - to show girl jumped in front of car?
 Need records from business - NOT D's OWN copy
 Multiple hearsay - Driver (non-business person) relays info to nurse (business person) who writes it down
allow in?
o 803(6) ONLY good to prove truth of fact observed by business person (Johnson v. Lutz)
o Cannot fit within party admissions because the driver is offering it in his defense (must be against a
party)
What if parents want to introduce evidence that brakes were bad?
 Still stmt by non-business person to business person- exception ONLY applies to fact business person
observed
o BUT stmt BY D AGAINST D = party admission 801(d)2(A) from business record
 If the nurse testifies that “these are merely the words D uttered” = NO hearsay problem
o that D uttered words NOT to prove breaks bad
Note: 106: Rule of completeness
[45]
Evidence Outline
 if part of document/stmt is admitted into evidence  opposing side can put in any additional parts of
document or stmt if necessary to explain context of stmt

V-71 ER treatment @ hospital - introduce extracts hospital chart prove injuries (For Monday)
Doctor record “Patient complains of numbness in right leg”
 803(6) - gets in to prove what patient said b/c observation by dr. BUT NOT to prove pt. experiencing
numbness
 803(3) - gets in to prove experiencing numbness b/c then existing physical condition for treatment
Nurse writes, “Mary said she didn’t think she ever wanted to go home”
 Probably a routine record – How the patient is doing physically and mentally
 Probably not hearsay – Can infer state of mind she’s not suffering from mental anguish
Physical therapist says, “Numbness not serious. Won't walk normal for 2 years. Only outpatient care needed
 If phys. Therapist come to life & be on stand -> valid objection to testimony b/c opinion requires expertise
physical therapist doesn’t have RE: walking normally ---beyond special knowledge scope – 701 & cannot
get it in under the business exception either
Doctor says, “Walk w/ limp forever. Nerve damage caused when she was thrown on her back”
 Walk w/ limp forever Argue opinions are / not w/in scope of special knowledge of Dr. under 701
o Could look to 803(6) trustworthiness requirement- need sources of info. For opinion
o More speculative the opinion, less likely business exception applies---doesn’t extend to speculative
opionions
 602 personal knowledge issue - obj. b/c doesn’t know girl was thrown down on back

803(7): KSA 60-460(n) ABSENCE OF ENTRY IN RECORDS

Evidence that a matter is NOT INCLUDED in business records (kept in accord w/ 803(6)) is admissible IF:
A. Admitted to prove the nonoccurrence or nonexistence of matter;
B. Record was regularly kept for matter of that kind; AND
C. Opponent does NOT show possible source of info. OR circumstances indicate lack of trustworthiness

Absence of a record doesn’t seem to be hearsay at all since failure to record typically NOT intended as assertion

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

803(8): KSA 60-460(O)(KIND OF) PUBLIC RECORDS & REPORTS
Records, reports, statements, or data compilations, in any form, of (ANY) public offices or agencies
(A) setting forth:
i. Activities of office / agency
ii. Matters observed while under legal duty to report  ii- Exception:
iii. Factual findings from legally authorized investigation NOT matters observed by police officers
a. Includes opinions / conclusions drawn from and “other law enforcement personnel”
disputed facts by govt. officials even if lack in criminal cases
personal knowledge/ conduct private  IF officer not testifying to report
(legislative history)
investigations/ hearings (Rainey)
Applies to:
(1) Civil actions / proceedings
(2) Actions / proceedings against govt. in criminal case
UNLESS source or other circumstances indicate lack of trustworthiness
 MUST BE WRITTEN
[46]
Evidence Outline
 Observations of public officials are admissible so long as there was a duty to report them
EX: Duty for building inspector to report crack in a foundation, BUT NO duty to report mj
growing @ home
 Factual finding = Opinion based on what facts imply
 If report is based on stmts by those w/ NO duty to talk to govt.  stmts are likely excluded from report as
hearsay
o To determine admissibility of such bystander stmts, courts look to totality of evidence relied on in
finding
 If the person carrying out duties related to a particular prosecution  likely “other law enforcement
personnel,”
o BUT IF documents produced from duties could be used in ANY prosecution  probably NOT
admit
EX: Border patrol records of license plate numbers of cars passing through = Not for specific case
 Although 803(8)(B) appears as though no one can offer evidence in a criminal trial, generally D can
offer evidence against the government, BUT government CANNOT offer such evidence against D
 Evidence offered 1 exception doesn’t keep from offering under another
o Except If excluded by 803(8) & try to admit under 803(6) - don't allow govt. go to 803(6) to get
around limit on official records Congress explicitly proposed (Oates)
Trustworthiness Factors (Non-exclusive list)
i. Timeliness
o Officer @ scene & can conduct investigation RIGHT after accident occurred
ii. Special skill / experience of government official
iii. Motivation (e.g., Palmer)
o + factor if govt. official neutral w/ NO motive go 1 way / other
o Negative - if agency has policy axe to grind to further in making findings
o Maker of report testify?  plus factor
i. Whether hearing held
o Can have official report admissible under -if findings by officer where NO official knowledge
 BUT Johnson v. Lutz - still applies - can't use to admit hearsay stmts by non-govt. officials
BUT govt. official can consider HS when determining factual findings/evaluative
conclusions
KS has NO 803(8) counterpart BUT KSA 60-460(o): Admits authenticated copy of official record to prove OG
contents
 KSA 22a-235: Public coroner record admissible; KSA 20-910a: District court official transcript admissible
 KSA 65-2416: Death certificates prima facie evidence of facts contained therein

HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

803(8): KSA 60-460(O)(KIND OF) PUBLIC RECORDS & REPORTS
V-76: Fingerprint evidence offered against D in burglary case. D claims fingerprint planted 2 months after
burglary & govt. wants to introduce evidence RE: date stamping fingerprints admitted in crime lab via FBI lab
clerk – 803(6) or (8)?
PA introduce:
 Admit under 803(6) business records b/c Meets all required elements
 Admit under 803(8)A(ii)?
[47]
Evidence Outline
 D- argue- matter observed under legal duty to report in criminal case offered against D by LE
personnel = keep out
 Oates- govt. offered lab analysis --prepared by chemist ----chemist = LE personnel- didn’t
admit
 LE personnel = Not everyone on payroll of agency
 IF clerical employee w/o aim advancing prosecution - duties NOT involved enough in LE
D- offer finger print - what extent criminal D offer against prosecution stmt under 803(8)A(ii)
 If factual finding from legally auth. Investigation- D get in against govt. even though can't come in against
D
A. Smith – legislative history- argue ii doesn’t exclude in ALL criminal cases JUST if offered against
D
____________________________________________________________________________________________
________

OTHER HS: 803 EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL

Learned Treatise
 High risk of confusing the jury
 In neither rule does the witness need to rely upon treatise, which eliminates possibility of blocking cross-
examination
803(18)
 Treatise can only be read aloud, but NOT entered into evidence
 Must be an expert testifying
KSA 60-460(cc)
 Treatise can be entered into evidence
 No need for an expert so long as authoritativeness can be established
 Judge must find by notice/ expert testimony work is reliable authority----mere publication doesn’t make it
admissible

Other FRE 803 exceptions

(8) Public records and reports
(9) Records of vital statistics
(10) Absence of public record or entry
(11) Records of religious organizations
(12) Marriage, baptismal, and similar certificates
(13) Family records
(14) Records of documents affecting an interest in property
(15) Statements in documents affecting an interest in property
(16) Statements in ancient documents
(17) Market reports, commercial publications
(18) Learned treatises
(19) Reputation concerning personal or family history
(20) Reputation concerning boundaries or general history
(21) Reputation as to character
(22) Judgment of previous conviction : KSA 60-460(r)
Felony conviction after trial/ plea of guilty IS admissible to prove fact essential to sustain judgment
KS – misdemeanor convictions NOT included in KS BUT plea of guilty to misdemeanor is admissible to
prove -----------------essential facts as party admission
(23) Judgment as to personal, family, or general history, or boundaries

[48]
 Evidence Outline
HS: 804 EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE
Under 804 declarant unavailable limited to stmt concerning cause / circumstances of death & admissible ONLY
in civil/ homicide prosecutions
804(a): KSA 60-459(g) Definition of Unavailable – must meet 1st
“Unavailability as a witness” includes situations in which the declarant—
(1) Exempt from testifying (b/c privilege) re: subject matter of the declarant's statement
(2) Refusal to testify despite court order
(3) Testifies to not remembering subject matter
(4) Death or then existing physical or mental illness or infirmity
(5) Proponent of a statement been unable to procure declarant's attendance by process or other means
 Not an exception – more of a prerequisite to get to 804(b)
(a) doesn’t apply (NOT unavailable) IF absence due to proponent’s efforts to prevent witness from attending /
testifying
 NOT ALL HS unavailable gets in ---NEED satisfy (a)- unavailable AND something else
 804(b) in civil case or against the govt. in a criminal case, proponent need only est. ground of
unavailability listed in 804(a)
o BUT criminal case -> IF 'testimonial' HS -> PA show unavailability under 804(a) or 6A std. std.
(stricter)
 Witness can be physically present in court & be technically “unavailable” - (a)(1)privilege ,(2)refuse (3)no
memory
 Not enough to be unavailable if you are simply NOT present in the courtroom - (a)(5)- not present +
something else
UNAVAILABILITY IN CRIMINAL CASE / CONFRONTATION CLAUSE
 Under Confrontation Clause, ONLY allow former testimony when constitutional standard of
unavailability met
 PA must satisfy more stringent “unavailability” requirement (constitutional vs. rule/statute)

OUTSIDE OF JURISDICTION– KS VS. FRES

 KS rules treat a witness as unavailable when the outside the reach of the court’s process
o Federal courts have nationwide ability to serve people
o Therefore, PA in a federal case must show more than witness is outside of the state- good faith
effort
 By process or “other reasonable means”
 Whether the “good faith” requirement was satisfied is fact-specific to prosecution’s actions
 EX: PA helped witness leave town after testifying by paying for it = Probably not good faith
 EX: PA had illegal immigrant testify at a preliminary hearing  did not protest his deportation even
though
common practice for immigration office to NOT deport someone who was trial witness= NOT good
faith

1. court may find good faith even though subpoena could've but wasn't issued (EX: W repeatedly assured PA
appear)
2. sometimes (e.g. Mitchell) issuance of a subpoena is insufficient to meet good faith test
 EX-subpoena issued only on eve of trial AND PA didn't timely begin to search to locate the declarant
3. sometimes (Steward case),D's request for continuance MUST be granted IF continuance enable declarant to
testify

Barber: (KS) Hearsay speaker outside of jdx is unavailable for Confrontation Clause purposes ONLY IF state
makes good faith effort to secure attendance and fails.
1. search w/ reasonable diligence to locate declarant, whether w/in or outside state AND
2. use govt. means to produce declarant at trial, such as a subpoena if declarant is in state or, if declarant is
out of state
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 Evidence Outline
Mancusi: Unavailability allows introducing prior testimony = State fails in good faith effort (Barber) OR
Speaker cannot be compelled to attend AND prior testimony was thoroughly tested by cross-
examination
 No 6A requirement for PA to make informal request to a U.S. citizen residing abroad to voluntarily return
o Argue according to 804(a), must show cannot procure attendance by process or other reasonable
means

HS: 804 EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE

804(b)(1): KSA 60-460c FORMER TESTIMONY
Testimony given as a witness at another hearing of
i. same or different proceeding, OR
ii. in a deposition OR
iii. another proceeding (preliminary hearing, etc.)
IF party against whom the testimony is now offered, OR in a civil case/ proceeding, a predecessor in interest, had
opportunity AND similar motive to develop testimony by direct, cross, or redirect examination
 Statements that are former testimony often fit another exception or won’t be hearsay at all
o EX: If impeaching a witness w/ a prior inconsistent statement made in earlier proceeding, it’s NOT hearsay
o EX: P offers D’s deposition in the case → Party admission
 IF former testimony offered AGAINST defendant in case -> will come in under 801(d)2
o Under 801(d)2- don't have to show D unavailable as witness
 Predecessor in interest = 2nd party asserting rights derived from predecessor
o EX- 25 passengers in airplane crash NOT in privity merely b/c on same plane
 KSA 60-460©2(b)- (less restrictive) enough to get in so long as meet motive & opportunity for cross by adverse
party with interest similar to which (current) adverse party has in action where testimony now offered
o FRE requires person to have been party to prior proceeding OR successor in interest
 Focus on party AGAINST whom party being offered - don't care WHO is offering ONLY care about
whether party AGAINST whom evidence being offered had opp. & motive to develop unavailable declarant's
testimony by cross
 ANALYSIS
1. Declarant unavailable
2. Gave testimony @ prior proceeding
3. Party who witness's testimony is being offered AGAINST had opp/motive to develop witness's
testimony OR
4. civil case- party testimony offered AGAINST in current case was predecessor in interest w/ prev.
party who had opp. & motive to develop testimony
 EX- V1 v. D ----> V1 v. Company =
V1 had opp. Develop testimony if company using D's stmts against V1 = admissible
OPPORTUNITY TO CROSS-EXAMINE
ii. Doesn’t require actual earlier examination, but merely opportunity to cross-examine/ develop testimony on
direct/re-direct
EX: Initial lawsuit in which Fisher sues Horner (driver) for hitting him & another pedestrian & Horner
testifies men were wearing dark clothes / not walking on the sidewalk. 1 st case ends in a hung jury and Horner
dies. Fisher then sues Royalle (employer) and Royalle wants to offer Horner’s testimony from the prior trial.
[50]
Evidence Outline
Case 1 Case 2__________
Fisher v. Horner Fisher v. Royalle
Case 1 Fisher = Case 2 Fisher
 Evidence is being offered AGAINST Fisher (Victim) in Case 2
 Same party had same opportunity / motive to cross in Case 1 as he does in Case 2
 FREs don’t care WHO is offering the testimony so long as the party against whom the testimony is
NOW offered was in the first case and therefore had an opportunity / motive to cross

HS: 804 EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE

804(b)(1): KSA 60-460c FORMER TESTIMONY
Cont. What if the employer in Case 2 wants to offer Horner’s testimony against a new P (other victim)?
Case 1 Case 2__________
Fisher v. Horner Bunter v. Royalle
KS rules: Admissible 60-460(c)(2)(B):
- adverse party on former occasion (Fisher) had right/ opp. To cross w/ similar interest to 1 st suing
victim in his case
 Even though different party & NO privity admissible so long as person against whom it WAS offered
had same motive & interest to cross as person against whom it is NOW being offered (Ps have ID
interests in discrediting Horner’s testimony)
FREs: Inadmissible
 Fisher is NOT a “predecessor in interest” of Bunter
o No privity b/c Bunter will not derive any rights from Fisher
o No interest in Fisher’s claim / cause of action
 FREs do not think it is fair to impose upon current party against whom evidence is being offered
responsibility for manner in which witness was previously cross-examined by a different attorney
EX: Fisher sues Horner, calls him as a hostile witness and elicits testimony Horner was speeding and acting in
scope of his employment. Second lawsuit by a different P against Horner’s employer. Bunter wants to offer
Horner’s testimony against Royalle.

Case 1 Case 2__________

Fisher v. Horner Bunter v. Royalle

Assume SAME attorney for Horner and Royalle

 Under FREs, you can be a “predecessor in interest” when you controlled previous action by
supplying atty.
o Not if private lawyer
 In KS, Royalle would be a predecessor in interest even if it had not supplied the attorney
 BUT...NOT all of Horner’s testimony would come in---keep out scope of employment
o b/c D had NO motive to develop testimony b/c scope of employment wasn't material issue in
negligence case against D
 OTHER way to get in?

[51]
Evidence Outline
o D = employee of current party talking about matter in scope of employment - get in under
801(d)2(D) -admission by employee

MOTIVE & OPPORTUNITY REQUIREMENT – CRIMINAL CASES

 CANNOT rely on someone else’s cross-examination of witness in an earlier case b/c 6A
 D’s opp. to cross in earlier case keeps from violating 6A b/c satisfied by cross at any stage of the
proceeding
 Salerno case FRE argument - unexercised cross. w/o motive is insuff. To satisfy 804(b)1(B) b/c no motive
OR opp.
POINT: Criminal D’s under the FREs could argue that the tactical lack of incentive to cross examine at the
preliminary hearing might mean that such testimony should not be admitted at trial even though
there may NOT be a constitutional issue

HS: 804 EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE

804(b)(2): KSA 60-460(e) DYING DECLARATIONS
i. Speaker unavailable ANY reason (not required be dead)
ii. Declarant made stmt b/c believed death was imminent
iii. Limited to stmts about what person believes to be cause of impending death

 Most civil cases = wrongful death suits – stmt about cause/circumstance of death =what ind. Thought cause
was
 Admission must concern the cause / circumstances of what the speaker believed was his impending death
 Speaker’s statement may be offered even if he is not dead so long as he is unavailable under 804(a)
 EX- miraculous recovery from coma but made stmt when thought dying from coma
o KS: Speaker must be dead
 Belief of imminent death is 104(a) preliminary fact to be decided by the judge
EX: Just because someone is terminally ill does not mean every statement makes is a dying
declaration
 Death must be imminent-( When stmt made declarant saw chariots swinging low)
 “Homicide” interpreted broadly to include all types (e.g., manslaughter)
o BUT If charged w/ assault and battery, even though declarant has died  exception doesn’t apply

KSA 60-460e- witness does NOT have to be dead to make dying declaration
 ALL civil & criminal NOT just homicide
 Stmt doesn’t have to be RE: cause of death

VI-103 woman dying cancer knew week to live -told nurse asking if needed medicine sister gave pills ->
cause of death poison
 Declarant died in DIFFERENT way thought die
 Death wasn NOT imminent ---thought die in week
 Other way get in?

[52]
 Evidence Outline
 803(4) - Stmt to nurse - for purpose of medical treatment of past / present symptom
 Cause limited to purpose for treatment
 IF identifying cause  can make argument pertinent to treatment

HS: 804 Exceptions: Declarant Must Be Unavailable

804(b)(3): KSA 60-460(j) DECLARATIONS AGAINST INTEREST
Statement which was at the time of its making:
(1) so far contrary to the declarant's pecuniary or proprietary interest, or
(2) so far tended to subject the declarant to civil or criminal liability, or
(3) so far tended to render invalid a claim by the declarant against another, that a reasonable person in the
declarant's position would not have made the statement unless believing it to be true
A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not
admissible UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement

KSA 60-460(j)- does NOT require declarant be unavailable

804(b)3 Analysis
i. Is stmt pro or against interest? - look @ circumstances stated
 Objective test- reasonable person think about stmt AND
 Subjective test - what reasonable person in declarant's position would do
 If doubt  judge has discretion to weigh other factors & judge could reject as against
interest if court determines person objectively not aware of against interest feature of stmt
i. Used for criminal or civil liability?
Criminal
 (b)-MUST be supported by corroborating circumstances indicating trustworthiness
 Chambers v. Mississippi 3P ADMIT COMMIT CRIME D CHARGED
 Timing - made spontaneously
 Party to whom made - close acquaintance
 Motive to falsify
[53]
Evidence Outline
 Nature & character of stmt
 Rare PA get co-participant’s statements to police officers in as a declaration against interest
(Williamson)
Civil
iii. ONLY parts of stmt against person's interest allowed in (Williamson)
a. NOT neutral/ self-serving parts of stmt
 Statement can be made by a third party
 Courts don’t generally admit stmts against social interest, but may IF legal implications
EX: A man’s statement he fathered a child out of wedlock exposes him to a suit for child support Payments
 Requires personal knowledge

804(b)(3): Declarations
Against Interest (rare) 801(d)(2): Party Admissions
Personal knowledge
YES NO
required?
Witness unavailability
YES NO
required?

When statement is required At the time of trial

to actually be against When it is made
interest Party could think the statement was NOT
against interest when made

NO
Can a third party make the
YES
statement? Must be the party or someone for whom the
party is responsible (authorized person /
employee)

HS: 804 Exceptions: Declarant Must Be Unavailable

804(b)(3): KSA 60-460(j) DECLARATIONS AGAINST INTEREST
Criminal (against Penal Interest)
 What is corroborating evidence? U.S. v. Hall gives several factors which might indicate corroboration
o Relationship between declarent and person who the statement is made against
o Did the person repeat the statement? (If yes, positive factor)
o Was there motive for making the statement or to lie?
o A statement that is made to a close acquaintance is a positive factor
o So is the fact that the statement was made close to when it occurred

266(1) Drugs in 18 wheeler w/ 2 drivers never driven together b/f. 1 driver claims know nothing & other driver
solely responsible. D offers stmt other driver now unavailable made "I did it alone. D had no part of it" (offered by
D against PA- declarant making stmt NOT on trial)
i. Corroborating circumstances indicating trustworthiness
 Relationship: Never met b/f & randomly assigned
ii. "I did it alone. D had no part of it"
 PA argue Williamson keep out b/c neutral to D - argue stmts not against other driver's interest
only "I did it"- exoneration other driver not against interest
 Argue ALL of stmt comes in b/c stmt IS against declarant's interest
 Increases declarant's blameworthiness
 Driver (declarant) making stmt taking full responsibility - no blame shifting or attempt
[54]
Evidence Outline
implicate another

804(b)(4): STATEMENT OF PERSONAL FAMILY HISTORY

(A) A statement concerning declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood,
adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had
no means of acquiring personal knowledge of the matter stated
OR
(B) A statement concerning the foregoing matters, and death also, of another person, if declarant related other
by blood, adoption, or marriage or was so intimately associated with other's family likely to have accurate
information RE:matter

 Statement does not need to be made before the beginning of the controversy giving rise to the litigation
 Speaker can be someone who has been intimately associated w/ the person’s family
 No firsthand knowledge required
 Overlaps FRE 803(19)
o If statements of family history are numerous enough to be a reputation in some community,
unavailability is unnecessary and anyone familiar w/ the history can make the statement

804(b)(5): FORFEITURE BY WRONGDOING

Statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness

 Judge will probably have to decide if the party is responsible for the witness’s unavailability by a
preponderance of the evidence under FRE 104(a)

HEARSAY
806: KSA 60-462 IMPEACHING A HEARSAY DECLARANT
 Can attack / support (only after attack) credibility of declarant using any evidence admissible to impeach a
testifying witness
 No requirement declarant have chance to explain / deny evidence of statement / conduct inconsistent w/
hearsay
 If party against whom a hearsay statement has been admitted calls declarant as witness  party is entitled
to examine declarant on statement as if under cross-examination

BASICALLY: Impeach HS declarant as if impeach actual witness

IMPEACHMENT BY EXTRINSIC EVIDENCE OF SPECIFIC BAD ACTS
 if witness on stand -> 608(b)1- court discretion allow cross about specific instances untruthfulness
o ONLY on cross- NO extrinsic evidence (608(b)1)
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS
 Judge has discretion to exclude prior inconsistent stmt IF declarant NOT given opp. To explain away
(613(b))

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Evidence Outline
o BUT if no opportunity declarant admit/deny -> 806 allows in w/o satisfying foundation of 613(b)
 A hearsay speaker can be impeached w/ statements made before or after the admitted hearsay

807: KSA: 60-460(dd); d(3)CATCH-ALL / RESIDUAL EXCEPTION

 Test: are there equivalent guarantees of trustworthiness as the codified hearsay exceptions?
 Fact specific - case by case determination NOT new categories of exceptions

KS has NO direct counterpart applicable to ALL cases - (NOT in FRE)

 KSA- 60-460(dd) - for stmts by unavailable child victims if stmt judge finds 'apparently reliable'
o Child not induced make stmt by threats/promises
 KSA 60-460(d)3- admits prior stmt of unavailable witness made when matter i) recently perceived & ii)
declarant recollection clear in iii) good faith prior to action commencement iv) w/ no incentive to falsify
o Unavailable & doesn't have to be recorded

1. EQUIVALENT CIRCUMSTANTIAL GUARANTEE OF TRUSTWORTHINESS

2. CORROBORATING EVIDENCE
3. HEARSAY EVIDENCE MUST BE MORE PROBATIVE THAN OTHER EVIDENCE
 More probative “on the point for which it is offered”
4. MUST PROVIDE ADVANCE NOTICE TO USE EXCEPTION

Important not to admit hearsay evidence that Congress meant to exclude

EX: Could admit a dying declaration in a robbery case because it is likely to be as trustworthy as the exception
BUT the dying declaration exception specifically limits the evidence to criminal homicide cases
 Illustrates that it was not Congress’s intention to include criminal robbery and it should not be undermined
w/ a catch-all exception

HEARSAY 801
801(d)(1): KSA 60-460(a) PRIOR STATEMENTS OF AVAILABLE WITNESSES
Can admit stmt of a declarant if he testifies at a trial / hearing AND is subject to cross-examination concerning
stmt & stmt:
801(d)(1)(A): Inconsistent w/ declarant's testimony, and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a deposition
 Unlike KS - not ANY stmt ONLY stmt given in deposition / trial / hearing
 “Other proceeding” does NOT require previous opportunity to cross-examine
(includes grand jury testimony, testimony at an immigration hearing)
 “Inconsistent w/ declarant’s testimony” is similar to impeachment w/ prior
inconsistent statements
OR

[56]
Evidence Outline
801(d)(1)(B): Consistent w/ declarant's testimony & is offered to rebut an express or implied charge
against D
of recent fabrication or improper influence or motive
 Statement is NOT admissible under (B) UNLESS made b/f witness’s motive to
falsify arose
 Admits for HS purpose ANY prior consistent stmt AFTER credibility attacked in
way consistent stmt rehabilitates
 Get in under 804(b)1 as former testimony IF declarant unavailable
 Requires opp. To cross
OR
801(d)(1)(C): One of identification of a person made after perceiving the person

 Other prior inconsistent stmts admissible ONLY for impeachment

 Only limit is whether the statement is needless cumulative evidence
 Declarant is only “available” if he testifies
o For (A) and (B) inconsistent / consistent statements, someone HAS TO testify
o No requirement for (B) and (C) to be made while under oath

KSA 60-460(a) LESS limited than FRE

 stmt previously made by person
 present (in courtroom) @ hearing &
 available cross examination
 Lomax - PA calls someone whose response 'I know nothing'  person is NOT available
for cross IF denies both event & stmt
 Owens - Enough witness admits stmt BUT repudiates/ admits making/ can't remember why
= enough to challenge w/ cross requirement
 so long as would be admissible if person testifying @ trial ---current ability to cross good enough
 Only prior CONSISTENT stmt limit is if needlessly cumulative evidence
 Permissible ANY party call witness SOLELY to get prior stmt in even IF proponent know witness
repudiated stmt to get case to jury
o EX- cases where out of court stmt ONLY evidence going to essential element

6TH AMENDMENT RIGHT OF CONFRONTATION

 Exclusive right of criminal defendant- barrier to admissibility of TESTIMONIAL hearsay of NON-
TESTIFYING declarants (includes those who refuse to testify)
o KS - 60-460(a) admits all prior stmts
o FRE - keeps out where constitutionally could come in if subject to full & effective cross
 Testimonial hearsay is NOT admissible (Crawford v. Washington) UNLESS
(1) the declarant is available for cross-examination
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Evidence Outline
(2) the declarant was previously cross-examined, or
 EVEN IF prior cross MUST show declarant unavailable (good faith/ due diligence to find)
(3) D forfeits the right by wrongdoing in procuring the absence of a witness from trial
(4) dying declaration applies
 Sometimes 6A keeps out evidence otherwise admissible under HS rule & may not admit evidence
constitutionally admissible
Crawford: Wife’s statements to officer undercutting her husband’s defense were against her interest
because she was an accomplice (Admissible under 804(b)(3), but violates 6th Amendment)
CA v. Green: No 6A issue if declarant is present & available for cross, but 801(d)(1)(A) does not admit ALL
statements of testifying witnesses even though they are constitutionally permissible
 If goes to bias or interest or needed to test direct examination can invoke 6A to override state & FRE
law
WHAT IS “TESTIMONIAL”?
Testimonial Circumstances indicate NO ongoing emergency & primary Need V to testify Davis
D wants interrogation purpose to est. / prove past events relevant to criminal or prior chance to
prosecution cross
 Narrative report of past crime COULD be testimonial
Test
 Would an objective declarant have thought that his statement
would be used for prosecution purposes? (Melendez-Diaz) OR
 primary purpose of the interrogator / questioner
 
Nontestimonia circumstances objectively indicate primary interrogation purpose is Excited utterance/ Hammon
l to enable police assist ongoing emergency present sense d
PA wants  911 DV responses to operator = NOT impression use
 Casual stmt to a bystander not testimonial w/o violating

 Can evolve non-testimonial to testimonial

NOTE: Supreme Court has never dealt w/ a statement from a NON-VICTIM

Michigan v. Bryant GUN SHOT PERP. @ LARGE THREAT TO POLICE/PUBLIC

 Totality of the circumstances approach determine if testimonial
 Ongoing emergency can extend for period of time & can move to diff. location
 Factors non-testimonial
 During/ after ongoing emergency
 Existence ongoing emergency MOST important
 Threat to public v. private dispute
 Formality / lack of in questioning
 Severity of victim wounds
 Victim @ or near scene
 Type of weapon / threat to public (whether private dispute)
Clark TEACHER - STMTS MADE NOT ASSOC. W/ LE
 Non-LE testimonial or non-testimonial - stmts to school teachers NOT testimonial - not sufficient
Affiliated w/ LE to be recipients of testimonial HS
 KS - stmts made to people w/ relationship to LE could be testimonial (Bennington - SANE qnr-LE enough
relation)
 3 & 4 y/o - can't make testimonial stmt
6TH AMENDMENT RIGHT OF CONFRONTATION

[58]
Evidence Outline
V-49 charged stabbing & killing walked to police station & told officer officer - he did it ---james did it + address-
evidence woman intoxicated when staying / injuries
i. Not dying declaration but would be exception
PA argue like Bryant non-testimonial NOT like Hammond b/c dealing with imminent injury & threat to
public/police b/c perp. Not in custody - left scene of injury -ongoing emergency; severity of injuries -
objective test - medical attn. vs. creating PA evidence
D argue testimonial b/c @ police station asking address of perp.; describing past events; chose to go to police
station NOT hospital - mental state assist PA; no longer ongoing emergency - clearly protected @ police
station; type of weapon HERE knife NOT gun less risk to public;

LAB REPORTS
EX: Fingerprint analysis; identification of illegal substance
 Testimonial because it is done for use in a particular prosecution
 Inadmissible UNLESS (Melendez-Diaz)
(1) Technician is unavailable, and
(2) D had an opportunity to cross-examine THAT technician
Melendez-Diaz- lab report in as certified report w/o calling ANY witness
Bullcoming- person prepared not testifying BUT call surrogate witness =NOT OK
Williams DIFF - lab report NEVER offered into evidence as exhibit
 Used ONLY by expert to form opinion testified to DNA of D matched DNA in report prepared by
Cellmark
 Expert CAN consider inadmissible info. To form opinion- enough not testimonial
V-75 possession heroin govt. call chemist -> sub in other chemist b/c main ill & testifies to procedures and
EXHIBITS - confrontation clause objection?
 Official records exception did NOT admit stmts - (Oates under 803(8)(a)(ii) - inadmissible
 Lab report as testimonial -
 objective chemist knows primary purpose is to use @ criminal trial to prove D's guilt
 MUST call testing witness or violation right to confrontation
JOINT CRIMINAL TRIALS (Bruton – U.S. S. Ct.)
If D1 gives a statement that implicates BOTH D1 and D2 but does not testify, there is a confrontation clause issue
 Must have separate trials or redact D1’s confession so that it only implicates D1
 P v. D1 + D2. D1 gives a confession implicating D1 and D2. Offer D1 confession against D2; D2 doesn’t
testify. Not permitted under Burton; confession would be given too much weight by the jury; would have
to sever trials, can’t just limit or redact. Assume the inadmissibility, as against the accused, of the
implicating confession of his codefendant, and centered upon the question of the effectiveness of a limiting
instruction

Defendant's rights for witnesses who ACTUALLY testify

Right to face-to-face confrontation even when a witness is testifying
 TC can exclude from courtroom & have D watch by closed circuit TV IF D disruptive- waiver 6A right
to confrontation
 BUT eliminate face to face confrontation w/o waiver? - use video YES - can
 EX- child witnesses traumatized having to testify 1) courtroom 2) testify in front of D
rendering witness unable communicate (KSA 22-3434 - clear & convincing
evidence)
 Coy- TV violated confrontation clause
 Craig - TV does NOT violate confrontation clause
 Need individualized determination RE: child & what's troubling child

D has the right to ask questions on cross-examination that the evidence rules might bar in other cases
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Evidence Outline
EX: Davis v. Alaska – Alaska statutes prohibited disclosure of juvenile probationary status, but criminal D
is entitled to cross-examine IF goes to impeachment for bias/ interest
EX: Specific exception in rape shield statute for criminal D’s right to confrontation- KS – Barber can cross
on false

FRE 702 – 706: EXPERT EVIDENCE/TESTIMONY

702: Testimony by Expert Witness

IF qualified as expert by knowledge/ skill/ experience/ training/ education  MAY testify in opinion OR otherwise
IF:
(1) testimony based upon sufficient facts or data;
(2) testimony is product of reliable principles and methods; AND
(3) witness has applied principles and methods reliably to facts of case

 Expert does NOT need personal knowledge

 “or otherwise” = can give dissertation & educate jury about particular area of knowledge
 KEY: helpfulness – IF jury has SAME knowledge & experience as witness  witness may not testify as
expert

703: KSA:60-456(b)(1) Basis of Expert Testimony

Expert may base opinion on facts/ date expert aware of / personally observed IF experts in field would reasonably
rely on such facts/ data to form opinion & if facts / data otherwise inadmissible proponent may disclose to jury IF
probative value substantially outweighs prejudicial effect
 Reasonable Reliance
o Gives trial judge ability to 2nd guess expert's basis of opinion
o 104(a) determination - court can look @ extra info. To see what experts in field reasonably rely on
o Can base on experiments
 Expert CANNOT
o supply missing data about facts of case necessary to form ‘helpful opinion’
o Determine credibility of witnesses (jury can do on own)
o Express opinion in undefined legal terms of art
o Base opinion on assumption / speculation (not speculation if > 1 cause of injury & inference =
opinion)
 IF expert testimony RE: damages/causation  must base on reasonable certainty/probability NOT mere
possibility
 Can be expert solely based on experience (occupation etc.----expert heroin addict)

IX-2 expert testify woman shouldn't be committed to mental hospital by state - expert has personal knowledge b/c
neighbors 15 yrs + Degree in history 20 years ago; newspaper advice columnist - knows people. Admit testimony
on D's mental health?
 Background/history do not give her “expert” status under 702
 NO - writing advice column doesn't give special knowledge helpful to jur
 ALLOW IN as lay opinion 701- opinion rationally based on perception & helpful to jury
 Won’t be able to testify as to mental condition because not an expert under 702

IX- 1 auto. Accident 2 injured sue damages 1 element inability do housework present economist testify cost of
hiring housework?
 D - best objection - NOT helpful to jury under 702(a) to understand evidence/ understand fact @ issue -
jury doesn't need assistance b/c jury familiar w/ housework - not proper subject: Admit ONLY IF helpful
to jury under 702(a)
 Economist couldn’t testify as to what limitations should apply – to what extent they will be able to do
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Evidence Outline
housework/household services in wheelchairs
 Expert testimony will not come in if it fails the HELPFULNESS requirement – if jury would be able to
figure it out on their own, expert testimony will not come in unless it will add depth or help analyze
situation

IX- 3 murder D not guilty b/c insane 3 psychiatrist experts - testify psychotic/ episodes lacked mental capacity
know what's wrong couldn't resist impulse to kill- objections?
 Expert witness MUST NOT give opinion whether criminal D had ANY requisite mental state for
offense 704(b)
 Testimony as to not the ultimate mental state constituting element of crime would be appropriate –
knowing right from wrong or resisting impulse to kill
 704(b) reaches to all cases – not just insanity cases

IX-4:
 Not sufficient to allow in – only allow

704: Opinion of Ultimate Issue

Expert not automatically objectionable just because it goes to ultimate issue of the case.
 704(b) – Expert cannot give opinion about defendant’s state or condition that constitutes an element
 Bars awareness of surrounding fact (mental state) but not ultimate issue

705: KSA: 60-457-8 Disclosing Facts/ Data Underlying Expert’s Opinion

Expert may testify in terms of opinion or inference and give reasons w/o 1 st testifying to underlying facts or data,
unless court requires otherwise. Expert may in any event be required to disclose the underlying facts or data on
cross-examination
 Cross-examination of an expert witness is much broader
o Can be asked about tests he did not conduct, data he did not review
o Can be asked about published authority on the subject of his expert opinion (learned treatise)

706: No KS counterpart Court Appointed Experts

 Expert can be called by both or either party/ Rarely invoked rule
 Does not affect parties’ ability to call their own experts

Objections to expert testimony

1. Expertise
 Lack of special knowledge
 Beyond scope of special knowledge
2. Not proper subject
 Not helpful
 Undefined legal terms of art
 Ultimate issue? - 704(b)
 No objection JUST b/c goes to ultimate issue BUT could exclude if NOT helpful
3. Basis of Opinion
 Insufficient basis
 Inadmissible basis -703
4. Unreliable principles/ method
5. Inadmissible form of presentation (direct/cross)

RELIABILITY OF EXPERT TESTIMONY

To what extent can a trial judge exclude expert opinion on the ground that the opinion is unreliable?
A. Frye test:
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a. Expert testimony allowed if deduced from well-recognized, generally accepted scientific principle.
If theory/technique has “gained general acceptance” in its own field  admissible.
i. If it is not generally accepted  excluded ----battle of the experts
o KS retains this rule/adopted Frye (at least 12 states still follow it) although not expressly laid
o “Pure opinion” testimony does not have to meet Frye test or any other test of reliability (Kuhn v.
Sandoz)
B. Kuhn v. Sandoz –
a. Court concluded Frye test does not have to be satisfied to admit testimony of P’s experts on
causation issue
 Frye only applicable if testimony based on deductive reasoning using a test/scientific principle
developed by others
C. Daubert Test:
a. Judge must assure any and all scientific testimony is relevant & reliable – in federal court, judges
now gatekeeper= makes independent judgment about admissibility of evidence (702 incorporated)
 Applies to ALL scientific testimony, novel or not
 Admissibility 104(a) determination made by a judge by a preponderance of evidence
o 4 factors to consider (not an exhaustive list according to Kumho Tire and other factors have been
added by case law)
1. Has the theory been tested / is it testable?
2. Has it been subject to peer review and publication?
3. What is the known potential error rate?
4. Is it generally accepted? 104(a) preliminary factual issues
o Appellate courts’ standard of review of Daubert determinations is abuse of discretion
o Can lead to an expansion – increase the use of expert testimony in some cases
D. Hollander v. Sandoz – An inconsistent holding won’t necessarily constitute an abuse of discretion
E. Joiner – discretion of the trial court in deciding reliability of both scientific method and reliability of
result

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AUTHENTICATION
901: (KSA 60-464-6;8) Authentication & Identification
(a): minimum requirement: must produce evidence sufficient to support finding item is what proponent claims it is
 Doesn’t impose requirement – only tells you what kind of evidence satisfies 401
(b): list of examples of evidence satisfying requirement – based in case law (not exclusive----KS does NOT have)
 Allows circumstantial evidence to authenticate
 KSA 60-464 – imposes an authentication requirement in writing before it can be admitted into evidence
(but not limited to only writings)
o KS does not limit or give list of examples (based in Case law)
 Authentication is similar to conditional relevance under 104(b)
o Judge must decide if sufficient admissible evidence to support authenticity finding (prima
facie std.)
o NOT 104(a) preponderance of evidence std.
901(b)
(1) Testimony of a witness with knowledge that a matter is what it is claimed to be
EX: In a dispute over existence of a contract, witness who saw someone sign a contract authenticates
(2) Nonexpert opinion as to genuineness of handwriting, based on familiarity NOT acquired for litigation
EX: D’s secretary who is familiar w/ his handwriting testifies that it is his signature on a credit card slip
(3) Comparison if proof another writing by D -> introduce questioned writing & proven writing & let jury
decide
Or use expert (e.g., handwriting exemplar)
(4) Distinctive characteristics: Appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
EX- Peculiarities in spelling, unusual punctuation, paragraph structure, tweets
 Reply doctrine: Disputed writing comes back to you in response to a prior solicitation
o Very common extrinsic evidence to authenticate a writing
o Only the purported writer had knowledge of particular facts that were disclosed in the writing
 Possible, but very unlikely someone intercepted the writing and forged a response
o Authenticate a document based on its contents as a reply to a correspondence
EX: Can authenticate a letter from a customer protesting his bill based on the fact that it
references the bill he was sent. & Can admit evidence against the principal if his agent
signed it
(5) ID voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion
based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
(6) Telephone conversations, by evidence call was made to the number assigned at time by telephone company to
a particular person or business, IF
(A) RE: a person, circumstances (including self-identification) show person answering to be one called, OR
(B) RE: business, call was made to a place of business & conversation related to business transacted over
telephone
EX- Extortion prosecution - phone call received (witness on stand) answered phone & person said
were D pay or suffer (NO recording)- adequate authentication?
NO admission UNLESS further evidence est. defendant made call
 Could use 901(b)5-ID voice by hearing voice @ ANY time
(7) Public records or reports: Evidence writing authorized by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is
from the public office where items of this nature are kept
 A witness from clerk’s office testifying that she gave you a copy is sufficient
(8) Ancient documents or data compilation: Evidence that a document or data compilation, in any form,
(A) is in such condition as to create no suspicion concerning its authenticity (e.g., regular on its face w/ no
markings or white outs)

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(B) was in a place where it, if authentic, would likely be, and (e.g., safe deposit box)
(C) 20 years old or more (KS req. 30)
(9) Evidence describing a process or system used to produce a result and showing that the process or system
produces an accurate result
KS- business records certification procedure ONLY available to non-party
(10) Any method of authentication or identification provided by Act of Congress/ other rules prescribed by
Supreme Court

Courts vary KS- Hollis - Civil case name/ identity ALONE is enough to get journal entry into evidence

Criminal same thing enough BUT let in IF just lack of foundation objection BUT IF D actually
contests identity (that's not me) --> PA needs additional evidence showing same D
AUTHENTICATION
902: Self-authentication (exclusive document list)
 Presumptively authentic so it shifts burden to the opponent to show that the document is NOT genuine
(1) Domestic public documents under seal
 If offering a KS official record in KS state court No requirement there be a seal BUT KS fed. NEED
seal
(2) Domestic public documents NOT under seal
(3) Foreign public documents
(4) Certified copies of public records
Copy of birth certificate show not deportable 902(4) - self-authenticating certified copies public records
alien-how authenticate?  Lets in certified copies
Similar KS- 60-465- BUT don't need seal for official records
(5) Official publications (docs from government)
EX: State DMV driving rules
(6) Newspapers and periodicals
CAN be HS – ck what admitting/ what for
(7) Trade inscriptions and the like
EX: Label on a can of peas w/ stone authenticates can as coming from defendant corporation
(8) Acknowledged documents: Documents accompanied by a certificate of acknowledgement executed in
manner provided by law by notary public or other officer authorized
 Presumption signature is authentic
 Certificate on writing stating author has acknowledged to notary that it is his document
(9) Commercial paper and related documents
EX: Promissory note
(10) Presumptions under acts of Congress
(11) Certified domestic records of regularly conducted activity
(12) Certified foreign records of regularly conducted activity

X-17: Store sues customer for unpaid bill. Wants to introduce signed credit card slip and a letter from the
customer sent to the store protesting his bill.
 Can probably authenticate the letter under 901(b)(4) (distinctive characteristics / reply doctrine)
 Can then let the jury compare the signatures under 901(b)(3)
 Could get his secretary to testify that she has seen his signature on many occasions and that the two match
901(b)(2)
X-18: Same facts as 17, but trying to get previous charge slip with the same account used with a similar
signature
 Could probably get in under 901(a)(3) because Jones never challenged the earlier slip as being a false
charge
 Also paid earlier charge by check with a signature – and evidence that actually paid previous charge slip
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X-5: Examples of Authentication - What evidence would you present to authenticate the following exhibits:
(A)Video offered by insurance company to show that a policy-holder is not in fact injured because he is able
to change a tire.
 Whether the person in the video is him
o Could rely on 901(b)(3) if video is exceptionally clear and the jury can make the comparison on its
own
o 901(b)(1): Call person who made the video / other witnesses who were present at the time of
recording/accident
 Whether the time frame is after the accident and not before
o 901(b)(1): Call person who made the video or other witnesses

(B) X-ray of plaintiff’s knee to prove damage/injury after car accident.

 Some courts treat x-rays as a business record
 Some courts view as and need to show qualifications and that equipment was in proper working order
 Technology has almost eliminated the need for identifying information to be on x-ray
 Original writings/best___ and x-ray is a photograph and witness would be required to produce original
(C) Can of Green Midget vegetables had a stone that caused a chipped tooth
 Prove this was the can that contained the stone – and that can was not tampered with
 901(b)(1) – call cook who prepared peas (establish chain of custody to go about authenticating can that had
stone)
 901b4 – not necessarily (extrinsic evidence may be required to prove)
 Plaintiff could offer another can as demonstrative evidence so jury knows what can looked like that caused
injuries – to help identify that it was the Green Midget brand (demonstrative evidence should be used as
fallback)
(H) Police told person over the phone they did not need to file a written report
 Call record that shows that call was placed to the police dispatcher
 Not offering an exhibit – but still requires 901 authentication
 901(b)(6) – telephone conversations it is sufficient to show that a telephone call was placed at the time in
question
o It is sufficient that number was called, and it is assumed that what is claimed was talked about
(D) Telephone call extorting $100k or “suffer the consequences”
 901(b)(6) the witness would be the one verifying that an outgoing phone call and participant (problem deals
with an incoming call)
 Authentication of incoming calls is not sufficient evidence and additional evidence of ID is required – need
more to get conversation in from the person who received the call
 Could get phone records to show call occurred to establish that a call was made from D’s number to
witness’s number
 901(b)(5) could also be used if witness was well acquainted to the D and knew voice
 Could use recording excerpt, from out of court, of D’s voice to ID the voice to match to phone call
(F) A copy of the D’s birth certificate to show she is not a deportable alien
 Able to use self-authentication
 902(1-4) a certificate accompanied by custodian’s seal verifying that the document is real would be
sufficient
X-4: Auto accident printed in local newspaper and tried to get into trial
 Hearsay – not allow article into record
 Objection as to newspaper authentication – not relevant because it is Hearsay
Authentication of D’s voice on a recorded phone call
 901(b)(5): Someone who knows D well and can identify his voice
 901(b)(1): Witness present at the time D spoke the words
 901(b)(3): Voice exemplar (comparison by jury or expert witness)
 901(b)(9): Process or machine was accurate (shows that D actually made the phone call)

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ADDITIONAL REQUIREMENT: CHAIN OF CUSTODY

 Requirement in addition to authentication in criminal cases
 Requires a high degree of care in handling of evidence to avoid damage and tampering
 Evidence can be excluded despite relevance if chain of custody was not preserved
o Not generally required for items w/ distinctive characteristics (e.g., serial number) when witness
can recognize

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AUTHENTICATION: MISCELLANEOUS TANGIBLE EVIDENCE
View: Judge or jury leaves the courtroom to observe places or objects that cannot be admitted as
exhibits because they are too big or they are places (In the court’s discretion)
 Judge’s presence is optional in civil cases, but generally required by statute in criminal cases
 Most jdxs say a view is not evidence but is something to assist the jurors in evaluating other evidence

KSA 60-248(b): View of property / place

KSA 22-3418: View of crime scene

Demonstrations and experiments

 Generally injuries and parts of human anatomy may be displayed to court even though can’t be made part
of record
 Judge has discretion to allow party to demonstrate a process (e.g., how difficult it is to tie shoes w/ three
fingers after an injury), but most courts are reluctant to do so because they think the injury will be
exaggerated
 Simple experiments are usually allowed, but ones that cause considerable confusion and delay are not

Photos
 Admissible whenever a witness can testify from personal knowledge they accurately portray relevant facts
o Sufficient authentication under 901(b)(1): Testimony of a witness w/ knowledge
o Person who authenticates need not be the person who took the pictures

Sound Recordings
 Courts are more strict in their admission, especially in criminal cases

Mechanical & Electronic Surveillance

 Surveillance audio tapes or photos are usually admitted under silent witness theory of authentication
[901(b)(9)]
 Foundation must include how machine works
 Proponent can enhance evidence to make relevant content more apparent (e.g., enlargement of photos,
electronic filters to screen out background noise)
o Must be an accurately enhanced version of the original
 Proponent can use aids to help jury understand evidence (e.g., transcript of recorded conversation, lay or
expert testimony)

Computer-Generated Exhibits
 Generally it does not matter that exhibits (especially illustrative ones) were created by a computer
 Can be a dispute of genuineness w/ real exhibits
 If computer generated data is used as the basis for expert testimony, must satisfy FRE 703 and be a type
“reasonably relied upon by experts in the particular field in forming opinions”
 Most common computer generated exhibits are business records
o Must pass FRE 803(6) because they are usually used to prove that statements contained in them are
true
o Process by which records are made must be authenticated under FRE 901(b)(9)

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1002 – 1008: ORIGINAL WRITINGS RULE
 Not really any such thing as the “best evidence rule”
o Party does not have to prove facts by most persuasive/best evidence that could be gathered and
exclude all other, less persuasive evidence
o No “second best evidence” requirement proponent use the next most probative evidence when OG
unavailable
 Exception: 1005 requires a certified copy of a public document in lieu of OG
 FRE 1004(4) is an exception when the writing is collateral to the main issue
 FRE 1001 definition of “writing” is somewhat ambiguous
 KSA 60-401(m) is clearer: “writing” means “any other means of recording upon any tangible thing

3 questions that arise regarding this rule:

1. When does it apply? (this is usually the most complicated)
 To prove CONTENTS of a document OR
 Prove fact via contents of a document 
 MUST produce document itself & NOT a copy (FRE 1002) (Applies to writings, records, photos)
2. What is the original?
3. What are the excuses that you might have for not having to produce the original?
DOES NOT apply to:
 Proof of existence of writings, their location, physical structure, etc. (not content of the writing)
EX: Can ask witness if a report was made & filed w/o having to produce OG, BUT CANNOT ask
who signed report and what was in it
 Testimony that a writing, record, photo DOES NOT contain something (absence from writing, record)
 Record of an event, even if one is available
EX: If PA recorded confession of criminal D,  NOT required to use it AND can prove
confession through witness testimony of someone who was present
 Fact exists independently of any writing / witness testify to OWN personal knowledge
BUT cannot produce a transcript in lieu of an audio recording (considered the original) /
CAN introduce transcript as illustrative evidence so jury can follow along
 Objects
EX: Can introduce a photograph of a car w/o having to produce the car itself as an original
 Probably does NOT apply to writing on objects if it is just a simple word or phrase
EX: Testimony identifying a truck based on “Chevrolet” embossed on the back OR RE: shirt
emblem
DUPLICATES
 Duplicates are admissible unless there is a good reason not to admit them (FRE 1003)
o (1) Genuine question as to the authenticity of the original or
o (2) It would be unfair to admit the duplicate in lieu of the original
 If there are multiple originals (several signed copies of a contract), the rule is satisfied by producing any
one of the originals
o BUT if you want to rely on a 1004 exception, have to account for non-production of all other
originals
o If photocopy but it was not executed as an original, 1003 treats it as a duplicate
o KS does not have a rule like FRE 1003 (duplicate)

Secondary evidence to prove the contents of the writing. (1004-1006)

1004: Situations in which production of the original is not required (only satisfy 1003 to admit don’t need
situation)
(1) Originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith- diligent search
(2) No original can be obtained by any available judicial process or procedure
o Includes taking a deposition w/ a subpoena ducus tecum to try to get document from 3rd party

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(3) Original in possession of opponent who did not produce it
o Does not require opponent to produce the original
o Says IF the opponent doesn’t produce the original, you can offer a copy
(4) The writing, recording, or photograph is not closely related to a controlling issue
 Party admissions is an exception to the best evidence rule

X-21: Looking to set aside a lien that Plaintiff claims was paid in full
 Hearsay exceptions might apply -
 No because 803(6) it is a business record – covers the whole thing to the extent that the EM paid
 803(6) would get it in to show payment
 801(d)(2)(A) would get it in against Stiles
 Just want hours worked – could use co-workers’ testimony which would not be about contents of work only
amount of work
 Not about what words or amounts that may have been written – only that there are time sheets that were
prepared but not what words were contained in the time sheets (simply that the document exists)
 Claiming worked more hours
 Don’t need best evidence to show that he worked more hours (can use any evidence that would
show it)
 Not purporting about what is in timesheet, but instead that he worked more hours than what is
reflected in time sheet (fact exists wholly independently of what is on time sheet) and D would not
be testifying as to what is on timesheet, only testifying to personal knowledge he had
 Doesn’t change if Stiles submitted the timesheet himself

1002 – 1008: ORIGINAL WRITINGS RULE

1005: Public records
Contents of an official record, if otherwise admissible, may be proved by copy, certified in accordance w/ 902 or
testified to by a witness who has compared it w/ original. If a copy complies can’t be obtained by reasonable
diligence,  other evidence of the contents may be given
 Exception to “next best evidence” rule: HAVE TO produce a certified copy

1006: Summary of Voluminous Writings

Can produce a summary of voluminous writings, but originals or duplicates shall be made available for
examination
Court may order they be produced in court
 If an underlying problem w/ the writings (inadmissible hearsay), then the summary is objectionable on the
same basis

1007: Written Admission

 Written admission may be offered to prove contents of a writing w/o OG (NOT in KS)

1008: Functions of Court & Jury

 Judge usually determines most preliminary issues of fact under 104 (a)/ conditional relevance under 104(b)
EX: If proponent claims right to use secondary evidence b/c OG lost  judge MUST decide by
P of E whether OG was lost (Factual issue that goes to admissibility)
 Issues for the JURY:
(a) whether the asserted writing ever existed
(b) whether another writing, recording, or photograph produced at the trial is the original
(c) whether other evidence of contents correctly reflects the contents
EX: If P introduces secondary evidence after claiming original K was lost and D claims no K ever existed,
the jury must decide existence / If the judge decided that the K never existed, the case would end

X-23: Person is given Miranda warnings for a murder, signed a waiver of rights and gives audio recording
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of confession.
 Audio recording would be better evidence than LE’s memory, but not enough to “best evidence”
trigger rule
 1002

X-22: Person steals car, and witness is asked to look at photograph if that is the car he saw stollen.
 No violation of 1002 because it would be impractical to prove the automobile into the courtroom to
prove
 Car exists independently of photo
Variation: If asked to describe car when there is a photograph, then
Variation: Witness admits he cannot describe one car from another (make/model) must be able to say saw that
it clearly said CHEVY
 1002 would be implicated because chattel has inscription on it so the court has discretion as to if treat it
as a writing or such

EX: In a wrongful death action, defendant hospital produces admitting record which indicates pt. ate 9
hours b/f
given anesthesia. P produces a photocopy of admitting record made by a nurse who testifies told to
change 1 to 9
o 1003 says a duplicate admissible only if there is NO genuine dispute as to authenticity
o BUT 1008(b) says jury decide whether another writing is OG so long as IF prima facie writing
existed
o Even if nurse had not produced the photocopy but testified hospital’s document was not OG
1008(c) says this is OK b/c evidence of whether “other evidence of contents correctly reflects
contents”
When an original has been admitted into evidence, sometimes proponent will ask witness to read a certain
selection from the document
 Opponent will object that “document speaks for itself” = NOT a best evidence rule objection
o Question of whether this can occur is up to the trial court’s discretion in whether it will assist the
jury (purely discretionary – 403)
KANSAS RULES
KSA 60-467: Only says “writing,” but it is interpreted broadly to include photos and tape recordings
 Fax is an original
 Incorporates most of FREs
o FRE 1002 = KSA 60-467(a)
o FRE 1004 = KSA 60-467(a)(2)(A) – (D)
o FRE 1005 = KSA 60-467(a)(2)(E)
o FRE 1006 = KSA 60-467(a)(2)(F)
o FRE 1008 = KSA 60-467(b)
KSA 60-469: Copies of routine business records or public records are admissible
KSA 60-401(m) “Writing” means handwriting, typewriting, printing, photostating, photographing and every other
means of recording upon any tangible thing any form or communication or representation, including letters,
words, pictures, sounds, or symbols, or combinations thereof

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PRIVILEGES
PFRE 501 Privileges Recognized
Federal question cases (federal substantive law): Defer to CL
Federal diversity cases (state substantive law): Defer to state privilege statutes
 Also applies to state law claims w/ supplemental jurisdiction in federal question cases (main view let in)
o BUT if federal rules / CL does not recognize a privilege that a state does  federal law
governs
 KS courts do not have authority to recognize CL privileges other than those recognized under the
Constitution

PFRE 503: ATTORNEY-CLIENT PRIVILEGE

1. ID who holder of privilege is -----CLIENT
1. Don’t have to actually retain atty.

HYPO- disciplinary complaint hearing NO - client holds privilege NOT atty.

can atty. assert atty. / client privilege? (professional person)

2. Privilege limited to communication b/t parties

1. Communication IS
i. ONLY writing or oral statements to / from attorney
ii. Intended to be confidential by client
2. Communication NOT
i. “public facts” observable by public (such as client drunkenness/ what wearing NOT
comm.)
ii. Rendering non-legal services (doing client’s taxes (not giving legal advice about them))
iii. lawyer is a mere conduit for information from the client to a third party OR from a third
party to the client

KSA 60-426: Confidential communications b/t lawyer & client in course of relationship are privileged & client
holds priv.to:
(1) refuse to disclose any such communication, and
(2) prevent lawyer from disclosing it, and
 Can even extend to other professionals for gaining specialized knowledge of a subject that is key to
the case – extends to those needed for phycological support as well, including close friends and
relatives
(3) prevent any other witness from disclosing such communication if it came to the knowledge of such
witness
(i) in the course of its transmittal between the client and the lawyer, or
(ii) in a manner not reasonably to be anticipated by the client, or
(iii) as a result of an intentional breach of the lawyer-client relationship
 If someone wiretapping lawyer/clients’ conversation, this privilege prohibits eavesdropper to testify
about confidential communications, but only to extent it is an unanticipated eavesdropper
o Communications made in front of 3rd parties is acceptable to maintain the privilege, so long as 3rd
parties’ presences is necessary to facilitate legal advice for client/facilitate communication
VIII-11: A person sees attorney for taxes and 10 minutes later gets into a car accident and breaths a hot BAC
 Since it was about taxes, privilege probably won’t attach
 Even if a/c privilege could attach, it would only count towards confidential communication towards
obtaining legal advice – it would not attach to generally observable facts
 Smelling is not communication – asking an attorney if she could smell alcohol is more akin to the fact of
the clients hair color or some other observable factor
 Can ask if served any alcohol during consultation, not a confidential communication
 If attorney is representing person in the tort action – privilege would not attach regardless because it is

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about the intent of the client to seek legal advice, and here there was no intent to seek legal advice, only tax
advice
(b) EXCEPTIONS – NO privilege for:
(1) legal service was sought / obtained to enable / aid the commission or planning of crime/ tort (FRE:
fraud in 503(d)(1))
 OK so long as client is NOT asking lawyer to pursue unlawful means in the future in order to
assist client
(3) Communication relevant to issue of breach of duty by lawyer to his client, or by client to his lawyer
(e.g., attorney must file suit to collect fee; client brings ethical complaint against attorney)
(4) relates to a document for which the lawyer is an attesting witness
(5) relevant to a matter of common interest b/t two or more clients if made by any of them to a lawyer whom
they have retained in common when offered in an action between any of such clients (Joint clients)
 Both clients must waive privilege
 Disclosure by one client does not give privilege – attorney can freely share with other/joint client
without breaking privilege
Exception ONLY applies when clients become adverse
(c) Definitions
(1) Client = Person or corporation or other association that, directly or through an authorized
representative,
consults a lawyer or lawyer's representative for the purpose of retaining the lawyer or securing legal
service
or advice from the lawyer in his or her professional capacity
(2) Communication = Advice given lawyer in course of representing client / Includes disclosures
of client to a representative, associate or employee of the lawyer incidental to professional
relationship
(3) Lawyer = A person authorized, or reasonably believed by the client to be authorized to practice law
in any
state or nation the law of which recognizes an attorney-client privilege
KSA 60-440- Only holder can appeal when the trial court refuses to recognize privilege or other if erroneously
recognized

PRIVILEGES: ATTY. / CLIENT

ASSERTION & WAIVER OF THE PRIVILEGE
 Holder is usually non-professional person one that can invoke / waive privilege
o Someone NOT party to relationship CANNOT assert privilege
o Holder can prevent any witness if it came as a result of the a/c relationship (KS)
 Lawyer can assert privilege on behalf of a client (and should), BUT CANNOT waive it on behalf of a client
VIII-6: If a lawyer talks about matters discussed w/ a client at a cocktail party, privilege NOT lost
b/c a cocktail party is not a legal proceeding (probably ethical violations)
ALSO would not affect client’s ability to claim privilege since you look at it from client pov
 Waiver (KSA 60-437)
o Waiver occurs if holder w/o coercion and w/ knowledge of privilege made disclosure of any part of
the matter or consented to a disclosure made by anyone
o What is “the matter”?
 Normally client does not waive the privilege merely by testifying about the same
incident / discussing same facts w/ others if you do not actually mention
communications w/ the lawyer
o Client has to say, “When I spoke to my lawyer, I said...” in order to waive the
privilege

502 FRE- ONLY when non-litigation/ non-government office disclosure

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o Limits scope of waiver when have type of disclosure in judicial proceedings
Voluntary subject matter waived NOT blanket waiver of all comm.
Involuntary privilege STILL protects IF
(inadvertent) 1. Took sufficient steps to prevent disclosure of privileged material
2. Prompt steps once learned privileged materials disclosed to get back
(claw it back)
Court Order blanket protection against waiver of privilege for ANY disclosure (voluntary/
involuntary --even if haven't taken steps)
 KS HAS adopted 502- (court issues order) --> binding in lawsuit in federal court/ later lawsuit any 50
states

CORPORATION AS A CLIENT : Upjohn (U.S. S. Ct.): Privilege extends to mere employees when directed to speak to
lawyer for purpose of obtaining legal service / advice so long as matter is treated as confidential within the
corporation
o No KS cases re: Upjohn KSA 60-426(c)(1): Defines client as a corporation...or authorized
representative

PRIVILEGES: PHYSICIAN-PATIENT PRIVILEGE

FED KSA 60-427
NO protection Protects
(under CL) i. Patient is holder
ii. Includes facts learned from patient during exam
a. But public facts issue Reiner
b. Must be in view of treatment
c. Must be helpful to medical services
-insurance exams and such that are do not go towards getting medical advice/services are not
covered
ii. Criminal: NO physician patient privilege in FELONY case (statutes specifically states civil and
misdemeanor cases)
 NO witness (not even victim) can assert physician/patient privilege
 But misdemeanor (non-dui) --> won't lose privilege by pleading not guilty
. Civil- no privilege if element of claim of patient
 EX- personal injury no privilege if recovering for injuries
. Psychiatrist ---60-427 privilege (still N/A) in felony cases)
 65-5602 doesn't exclude felony cases if @ county mental health centers
. Psychologist 74-5323
a. Confidential relations placed on same basis for atty./client (if actually licensed - not just
reas. Believe licensed)
b. Social Workers ---same 65-6315

Atty. Client Phys. Pt.

Prevents 60-427 doesn’t include---only folks who learned from intentional breach are protected
eavesdroppers Extend protection to communication w/ 3P IF reasonably necessary to rendition of medical services
EX- group therapy

PRFE: 504 PSYCHOTHERAPIST-PATIENT PRIVILEGE

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Evidence Outline
 KSA 74-5323: Places communications w/ a certified psychologist on same plane as attorney-client
privilege
o Means that a communication to a psychologist is more protected than a communication to a
psychiatrist
 Proposed federal rules included a psychotherapist-patient privilege and federal courts recognize it
o Communications to ordinary physicians, psychologists, psychiatrists, and licensed social workers
when engaged in mental health treatment / counseling
o Jaffe (U.S. S. Ct.): Recognized a psychotherapist-patient privilege and extended it to
communications w/ certified social workers engaged in mental health treatment
 Exceptions likely will include instances in which a serious threat of harm to the patient or
others can be averted only by disclosure

PRIVILEGES: HUSBAND & WIFE - SPOUSAL PRIVILEGE

Federal court criminal case ---2 types
i. Confidential communications privilege (KS ONLY has this BUT has 2 of these)
a. KS
i. Criminal D
ii. Civil & Criminal Cases
ii. Independent privilege

1. ADVERSE TESTIMONY PRIVILEGE (KS does NOT recognize) Policy - maintain marital harmony
Bars testimony from one spouse that tends to harm the other- -------Goal is confidence during marriage
o Can be used to keep spouse from testifying as to any fact the spouse observed
  FED KS
Type of Case Criminal Criminal
Holder D's spouse (Trammel) N
Witness D's spouse N
Applicable to matters PRE-marriage YES N
Assertable POST- marriage (divorce) NO N
Joint-Participant Exception Unclear N

Exception
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Evidence Outline
 When D charged w/ crime against child/ spouse or 3P in course of getting @ spouse/ child
o Spouse has no privilege not to give testimony
 Crime/ fraud will NOT protect
o Trammel Case: the reason that she testified against her spouse is she got a really good plea bargain
 If it were otherwise in a criminal case, a spouse couldn’t do anything to protect themselves
or make a plea bargain to save themselves
 If she is willing to waive her Trammel Privilege he can stop her from testifying to what she
had said under the marital communications privilege
 KS does not recognize the adverse testimony privilege
o Neither ∆ nor spouse can invoke privilege
o Spouse who is merely a witness to criminal activity can be forced to testify about it

V-41 + 302?s- federal criminal trial goods on table spouse asks where from says profits made on east end
i. Can D prevent spouse giving any testimony @ all?
a. Stmt RE: east end could be confidential comm. And facts observed
b. KS ONLY confidential comm. Can testify to facts observed
c. If can prove confidential comm. Then he can prevent her from testifying because he holds the privilege
ii. Willing to testify about observations --> keep any out?
a. Fed. CL sep. privilege confidential disclosure- fed. Crim. ANY witness
i. Holder is the comm. Spouse (41 deft)---can D holder in case assert privilege? YES
b. Keep out observations of stolen goods?
i. IF 'come see' what we got = part of communication
ii. Here spouse walking in ---still communication?
 Doesn’t have to be verbal
 Relied on confidentiality of marital relationship - privilege should extend to acts that
are reliance on comm.-----Most reject

PRIVILEGES: HUSBAND & WIFE - SPOUSAL PRIVILEGE

2. MARITAL COMMUNICATIONS PRIVILEGE
  FED FED KSA 60-423(b) KSA 60-428
Privilege prevent disclosure
Type Criminal/ civil- fed. ? Diversity- Criminal Civil/ Criminal
state law
Holder Communicating See 60- Criminal D Communicating spouse
spouse 428  ltd. To what spouse said BUT
could elect 60-428 if dealing w/
3P
Other Defendant's spouse   IF 3P on witness stand reporting what 3P intentional eavesdropper - can
witnesses eavesdropper- NO spouse revealed --> privilege NO assert against
good
 
Who's on stand?
o Wife = use 423 most restrictive
o 3P --> 428 broad

Pre-Marriage NO   NO NO
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Evidence Outline
Post Divorce YES   YES NO
BUT comm.  Doesn't discuss privilege ONLY
during during relationship
marriage
Exception(s) Crime / fraud joint   NO  Crime/ fraud joint
participant participant
 Alienation of affections
 Crime against spouse
 Litigation b/t spouses
(divorce)
Purpose Maintain confidential   Prevent spouse as witness -disclosing Protect against disclosure -
comm. b/t spouses ANY confidential comm. b/t parties DURING relationship
  (not just D's also by spouse)
No child/parent
privilege
 
Federal Civil Case
 Invoke adverse spousal privilege to refuse to testify @ all?
o NO Trammel extends ONLY to CRIMINAL cases NOT civil
 D's spouse can be forced to testify (I was in passenger seat & saw husband run red lt.)
 State law diversity claim (get in based on citizenship)
o No state law privilege
o Federal court in diversity case applies marital privilege as it applies in state law - here use 60-428
 D tried alone can parties invoke privilege not to testify in criminal trial where neither spouse is charged?
o NOOOO b/c not married to D - NO privilege to refuse all testimony against 3P
o Only confidential communications privilege

Judicial Notice - FRE 201: KSA 60-209

 Admissibility of proof - accept facts as est. w/o calling witnesses/ introducing exhibits IF convince court to take
judicial notice
o Court can dispense w/ need of proof for 'indisputable' facts
 Indisputable:
1. Generally known w/in trial court's territorial jurisdiction
a. Ex- where mall located
b. Cure failure of PA to est. venue in criminal case
2. Facts accurately & readily determined from sources whose accuracy cannot be
questioned
o 201(F)- civil case - court must instruct jury to accept noticed fact as conclusive BUT
 in criminal MUST instruct jury may or may not accept fact as conclusive
 KS – if court takes judicial notice, court should instruct jury that jury must take fact as
conclusively established
 

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