EVIDENCE OUTLINE

GENERAL PROVISIONS
Admissibility
104(a) - COURT determines ADMISSIBILITY of evidence (JURY
determines weight/credibility)
106 - Rule of completeness
If part of writing/recorded stmt entered, rest of it --> IN if requested by
opp party
The questions to ask:
WHAT is the evidence?
Testimony? --> privileges (V), lay/expert opinion (VII), hearsay (VIII)
Writing/recording/photo? --> authentication (IX), orig. writing rule (X)
WHO wants to introduce it?
Opposing party? --> admissions (801(d)(2))
Prosecution/plaintiff or defendant? --> character evidence (IV), public
records (803(8))
On direct or cross? --> witness credibility, extrinsic evidence (VI)
Witness w/ personal knowledge? --> (602)
For what PURPOSE (relevance)?
Truth of the matter asserted? --> hearsay (VIII)
To prove the contents of document? --> orig. writing rule (X)
Credibility? --> declarants (806), witnesses (607), character (IV/VI),
impeachment (VI), criminal convictions (609)
But unfairly prejudicial? --> (403)
Remember, evidence must always:
Be AUTHENTICATED
Condition precedent!
Be RELEVANT
PURPOSE controls ADMISSIBILITY!
Meet 403 balancing test (except convictions)
Have FOUNDATION laid for personal knowledge
RELEVANCY & ITS LIMITS
General relevance?
401 - Evidence having ANY tendency to make the existence of ANY fact of
consequence more or less probable than w/o the evidence --> relevant -->
IN under 402
Includes "any evidence that affects the assessment of probability of a
past occurrence" related the to dispute (Walsh v. Chan - other driver
injuries - p. 2)
 402 - Evidence otherwise illegal --> OUT
403 - Even if relevant, probative value substantially outweighed by danger
of unfair prejudice (etc) --> OUT
Unfair prejudice = risk that jury will use kind of negative info that is
beyond the boundaries of our legal doctrines:
Forbidden chains of inferences
Conclusion about some derogatory additional fact that doesn't have
legit relationship to the dispute
Giving undue probative weight
Remember: "A brick is not a wall."
Character evidence (any person)?
404 - What TYPE:
(a) - Propensity evidence --> generally OUT:
Civil --> OUT
Criminal --> OUT except:
(1) - Character of the ACCUSED offered by the accused, or by
prosecution if accused opens door, or by prosecution if accused
offers character evidence of the victim --> IN
Only def himself can open door, not one of def's witnesses
(State v. Gowan - chatty gf - p. 264)
Under old version of FRE/many state rules, prosecution
would NOT be able to offer character evidence of accused if
accused only offered character evidence of victim (US v.
Taken Alive - p. 269)
(2) - Character of alleged VICTIM offered by the accused, or by
the prosecution once door opened, or by prosecution (of
peacefulness) to rebut evidence offered by accused that victim
was aggressor in self-def case --> IN
(3) - Character of (testifying) WITNESSES pursuant to 607, 608,
609 (see WITNESSES)
(b) - Other crimes, wrongs, or acts:
If only relevance is propensity --> OUT
If any other (nonpropensity) purpose --> IN
405 - What FORM allowed once admissible under 404:
(1) - Opinion/reputation testimony
ANYtime when character evidence admissible
EXCEPT victim's sexual behavior/predisposition in sexual
assault case (412)
Remember, no HEARSAY problem under 803(21)
(2) - Specific instances of conduct
 ONLY when character/trait is essential element of
charge/claim/defense
Negligent entrustment, entrapment, fraud, defamation, etc.
Including def's sex-related traits in sexual assault/child
molestation case (413, 414, 415)
406 - Habit
"A regularly repeated response to similar factual situations" --> IN
(Alexander v. Willard - little girl biking - p. 288)
Distinguishable from evidence of character trait!
BUT if bringing in character evidence in a sexual violence case:
412 - Rape shield rule
(a) - Victim's sexual behavior/predisposition --> generally OUT
(b) - Exceptions:
(1) - Criminal cases --> IN only if:
(A) - Specific instances (not reputation/opinion) to prove
person other than accused was source of semen
(B) - Specific instances (not reputation/opinion) to prove
consent
(C) - Exclusion violates def's con'l rights
(2) - Civil cases: if probative value substantially outweighs
danger of harm to victim or danger of unfair prejudice --> IN
413(a) - Sexual assault (criminal): def's priors --> IN
414(a) - Child molestation (criminal): def's priors --> IN
415(a) - Sexual assault or child molestation (civil): def's priors --> IN
Specialized exceptions?
407 - Subsequent remedial measures (would have made injury less likely):
If only relevance is proof of negligence/culpable conduct/product
defect --> OUT
Many states still have old version that allow to show strict liability
elements
If any other purpose --> IN
408 - Compromises/offers to compromise: when amt of claim is disputed
as to validity or amt --> OUT
(a) - If only relevance is proof of liability --> OUT
(b) - If any other purpose --> IN
409 - Payment of med expenses (to prove liability) --> OUT
411 - Liability insurance:
If only relevance is for purpose of showing person acted
negligently/wrongfully --> OUT
If any other purpose --> IN
 RELATED: Conditional relevance?
104(b) - if relevancy depends on fulfillment of condition of fact, have
evidence sufficient to support condition --> IN
POLICY
Reducing admissible evidence to relevant evidence makes them shorter
and provides confidence that results were reached on legit bases
PRIVILEGES
Under common law?
Atty-client
Actual client (or seeks to be) and actual lawyer (member of bar)
For corporations, confidential communications from ANY
employee as long as acting w/in scope of employment and needed
to effectuate legal representation for corp. (Upjohn - p. 435) --> OUT
Subject matter test: concerns performance of employee of
employment duties
Modified subject matter test: made for the purpose of obtaining
legal services/advice
Reasonable expectation of privacy
Client preserved confidentiality (no third parties, not waived)
Connected with obtaining legal counsel/advice
Not involving planning a crime
Spousal competency (unable to testify about ANYthing)
Usually only during marriage
POLICY: preserving marital harmony
Confidential marital communications (unable to testify to conversations
only)
Intentions test: Conduct intended to be a communication --> OUT
Expectations test: Conduct done w/ the expectation of privacy in the
context of the marital relationship --> OUT
Dr-/psychotherapist-patient
But when the patient makes the harm relevant to the claim, considered
waiver
Priest-pentient/clergy-communicant
Exceptions:
Waiver (express or implied)
Conspiracy between privileged parties
One spouse commits criminal act against other
WITNESSES
Competency?
 601 - EVERYONE is competent
But 18 USC § 3509 allows ct to conduct CHILD competency hearing
(need compelling proof of incompetency)
602 - Personal knowledge
603 - Oath/affirmation
605 - Judge --> CANNOT testify at current trial
606 - Jurors:
(a) - At current trial --> CANNOT
(b) - For inquiry into validity of verdict/indictiment:
Matters during deliberations or effect on mind/emotions in cxn
therewith --> CANNOT
Extraneous prejudicial info or outside influences or mistake in
entering verdict on form --> CAN
Character evidence?
608 - Character for un/truthfulness (only) --> IN in the form of either:
(a) - Opinion/reputation (but evidence of truthfulness only AFTER
character for truthfulness attacked)
Remember, no HEARSAY problem under 803(21)
(b) - Specific instances of conduct on CROSS only (no extrinsic
evidence)
Showing truthfulness only AFTER character for truthfulness
attacked (by either evidence of opinion/reputation or specific acts)
Actual convictions pursuant to 609
609 - Criminal convictions:
(a) - For purpose of attacking character for truthfulness (only):
(1) - Non-truthtelling crimes (punishable by death/>1 yr
imprisonment):
Witness other than accused: PROBATIVE VALUE
SUBSTANTIALLY OUTWEIGHS DANGER OF UNFAIR
PREJUDICE --> IN
Accused: PROBATIVE VALUE OUTWEIGHS DANGER OF
UNFAIR PREJUDICE --> IN
(2) - Truthtelling crimes (whose elements req'd proof/admission of
act of dishonesty or false stmt):
Any witness: REGARDLESS OF PREJUDICIAL EFFECT --> IN
Remember, def doesn't have to testify...
Lying does not = deceit (only crimes like fraud, embezzlement,
perjury count)
(b) - Time limit:
More than 10 years since date of conviction OR release from
 confinement imposed --> OUT
But if ct determines PROBATIVE VALUE SUBSTANTIALLY
OUTWEIGHS PREJUDICIAL EFFECT TO ACCUSED & notice
--> IN
Considerations when assessing probative value of prior crime
(Jones/Alexis factors, p. 335):
Type and nature
Remoteness
Similarity to current charge
Age/circumstances of def when convicted
Whether def testified at past trial
Length of def's criminal record
Credibility (impeachment)?
607 - Witness credibility can be attacked by any party
611(b) - Scope of cross
Matters of direct AND matters affecting credibility --> IN on cross
So collateral topics/other extrinsic evidence only allowed on cross
for CREDIBILITY purposes (but not CHARACTER)
612 - Refreshing (present) recollection (DIFF from past recollection
recorded, 803(5))
Can use writing to refesh memory of witness for purpose of testifying
Adverse party can inspect/cross about/intro writing
613 - Prior statements by witnesses
(b) - Extrinsic evidence of prior INconsistent stmt (non-admissions
only) --> OUT unless witness afforded opportunity to explain/deny
that stmt
Remember, foundation must be laid but cts are split as to timing
Bias
Because credibility is always RELEVANT under 401 (US v. Abel (USSC)
- prison gang - p. 308)
OPINIONS & EXPERT TESTIMONY
Lay opinion?
701 - Lay witnesses' testimony must be:
Rationally based on perception AND
Helpful to understanding/determination of fact AND
Not based on scientific/technical/other specialized knowledge
Expert opinion?
702 - Expert testimony of witnesses qualified by scientific/technical/other
specialized knowledge, skill, experience, training, or education must be:
 Helpful to trier of fact AND
Based on sufficient facts/data AND
Product of reliable principles/methods AND
Frye ("general acceptance") test: scientific procedures generally
accepted in their field
Daubert test: factors when considering validity of procedures
include whether been tested, been subject to peer
review/publication, known/potential rate of error, control
standards, and general acceptance by scientific community
Kumho Tire expanded to non-science experts
Applies those principles/methods to facts of case
703 - Bases of opinion testimony need not be admissible if reasonably
relied upon by experts in the same field
704 - Opinion on ultimate issue/mental state that is element of crime -->
OUT
CanNOT testify about witness credibility, but can testify about common
characteristics if qualified to do so (Hobgood v. State - p. 411)
HEARSAY
Hearsay?
801 - Definition:
(a) - Stmt = oral/written assertion or nonverbal conduct intended as an
assertion
Verbal --> IN if assertive, even if using as basis for inteferring
something other than matter asserted (State v. Dullard - note to B -
p. 61)
Nonverbal --> Must be the assertion/inference actually/reasonably
intended (sea cap'n, polar bear)
(b) - Declarant = person (NOT animals or machines)
(c) - Hearsay = Out-of-ct stmt made by declarant offered for the truth
of the matter asserted --> OUT unless fits exemption/exception
Words were said? --> IN
Includes "legally operative words" (like k language)
Words were true? --> OUT
805 - Hearsay w/in hearsay: if each part is admissible --> IN
Exemption that is NON-hearsay?
801(d)(1) - Prior stmt by witness:
(A) - INconsistent stmt given under oath at prior
trial/hearing/proceeding/depo (impeachment only, not substantive) -->
IN
 (B) - Consistent stmt only if offered to rebut charge of recent
fabrication or improper influence/motive
Common law temporal req't: prior stmt made BEFORE
motive/fabrication arose/made (Tome v. US (USSC) - lie to stay w/
mom - p. 106) --> IN (after --> OUT)
(C) - ID person after perceiving person
Out-of-ct ID given more weight/credence than in-ct ID (US v. Lewis
- p. 116)
801(d)(2) - Admission by party OPPONENT:
(A) - Own stmt
(B) - Adoptive admission
Must be intended by party
An accusatory/incriminating stmt made during presence and
hearing of accused that is not denied --> IN (State v. Lambert - bum
beating - p. 74)
(C) - Stmt by person authorized by party
(D) - Stmt by party's agent/employee w/in scope of
agency/employment (concerning matter, during existence)
(E) - Stmt by co-conspirator (during course of and in furtherance of
conspiracy)
Exception to hearsay?
803 - Availability of declarant immaterial (23 total):
(1) - Present sense impression (during or immediately after)
(2) - Excited utterance
Generally needs to be w/in 10-20 min of startling event; can't be
answer to Q (State v. Owens - p. 125)
(3) - Then existing emotional/mental/physical condition
If to prove memory/belief is true --> OUT
UNLESS memory/belief relates to declarant's will --> IN
True that person had memory/belief --> IN
Victim's state of mind usually only RELEVANT in cases of suicide,
self-defense, and accidental death
(4) - For purposes of med diagnosis/treatment
Stmt can describe history/symptoms/causes if reasonably pertinent
to diagnosis/treatment
(5) - Past recollection recorded (DIFF from refreshing present
recollection, 612)
Memo or record about something witness once had knowledge
about but now has insufficient recollection and was made/adopted
when recollection had been fresh
 Can be read into record, but only entered as exhibit by opp party
(6) - Business record made at or near the time by/from a person w/
knowledge kept in the course of regularly conducted business and was
regular practice of business to do so
Made in anticipation of litigation --> OUT (Scheerer v. Hardee's -
slick shoes - p. 184)
Look at how much records are relied on for business --> third party
records can count (Air Land Forwarders v. US - service estimates - p.
190)
(7) - Absence of entry in business record to prove
nonoccurrence/nonexistence of matter
(8) - Public records:
(A) - Activities of office/agency
(B) - Matters observed pursuant to duty imposed by law
But observations by police/law enforcement in criminal cases -->
OUT
(C) - Factual findings from investigations:
In civil cases --> IN
In criminal: by prosecution --> OUT, by def --> IN
(10) - Absence of entry in public record to prove
nonoccurrence/nonexistence of matter
(16) - Ancient documents (over 20 years old)
(17) - Market reports/commercial publications
(21) - Reputation as to character (among associates or in the
community)
804 - UNavailable declarant:
(a) - Can be UNavailable if:
(1) - Privileged subject matter
(2) - Refuses to testify despite ct order
(3) - Testifies to lack of memory
(4) - Death or physical/mental illness
(5) - Attendance unable to be procured by process/reasonable
means
(b) - Exceptions:
(1) - Former testimony
Civil: In proceeding/depo involving opp party OR precedessor
in interest to opp party --> IN
Criminal: In proceeding/depo if opp party had chance to
examine witness --> IN
(2) - Dying declaration while believing death imminent &
 concerning cause/circumstances of impending death
Civil --> IN
Criminal: homicide --> IN, all others --> OUT
(3) - Stmt against pecuniary/proprietary/penal interest (reasonable
person standard)
(6) - Forfeiture by wrongdoing (that intended to and did make
declarant unavailable)
807 - Residual exception
5 req'ts:
Circumstantial guarantees of trustworthiness = to the other
exceptions
Concerns material fact
More probative that other procurable evidence
Admission best serves purposes of rules and interest of justice
Opponent had notice
Credibility of declarant?
806 - Can attack credibility of declarant by any means that would have
been admissible if declarant was witness (see WITNESSES)
Constitutional limitations?
Can't admit evidence that violates Constitution pursuant to 402
Confrontation Clause (6th Amendment): criminal defs have right to
be confronted w/ witnesses against them
TESTIMONIAL stmt --> OUT if declarant was available, but IN if
testifies OR unavailable & opp had chance to cross (Davis v.
Washington (USSC) - p. 220)
For the purpose of figuring out facts of crime (describing past
events) --> TESTIMONIAL
NONtestimonial stmt (Confrontation Clause doesn't apply) --> IN
Stmt in course of police interrogation for the purpose of
assisting an ongoing emergency (describing events as
happening) --> NONtestimonial
POLICY
3 stages of analysis:
Speaker's words about past event --(based on)--> speaker's belief about
past event --(based on)--> reality of past event
Testimonial infirmities (obstacles):
Between words and belief: Ambiguity/narration +
Sincerity/truth-telling
Between belief and past reality: Perception + Memory
Usually willing to let hearsay in if some (but not all) of testimonial
 infirmaties are gone
Generally don't like out-of-ct stmts because they're unreliable and lead to
untrustworthy decisions
Preference for first-hand info
Opp for clarification and reliability checks lost when quoting out-of-ct
stmt
For admissions, however, party obviously available to for cross and
able to explain self
AUTHENTICATION & IDENTIFICATION
Authenticated?
901(a) - Authentication/identification is a condition precedent of
admissibility (sufficient evidence that it is what it is)
901(b) - Examples of ways to authenticate/id
CONTENTS OF WRITINGS, RECORDINGS, &
PHOTOGRAPHS (aka original writing/best evidence rule)
To prove contents of document?
1001 - Definitions:
(1) - Writings or recordings = letters, words, numbers, or their
equivalent
(2) - Photographs = pictures, x-rays, videos, and movies
1002 - Original --> IN, or
1003 - Duplicate --> IN, or
1004 - Don't have original --> IN if:
(1) - Lost or destroyed
(2) - Not obtainable
(3) - Opponent has it
(4) - Collateral matters (not closely related to controlling issue)