I.

Rules for the Rules

A. Rule 101 – Scope and definitions
B. Rule 102 – construed to administer proceeding fairly and secure a just determination
C. Three common definitions of evidence
1. Proof – of cause of action- offered by parties at trial to meet legal requirements
to show elements of a claim, COA, or defense
2. Rules – governing admissibility of proof – guides how judges conduct trial
3. Items of proof entered into evidence – met requirements of the Rules and may
be taken to jury
D. Evidence Rules may be sorted by functions
1. Traffic – operation of trial – each side offering their version of truth – decision
maker finds the legally operative truth
2. Accuracy – promoting the truthfulness of verdicts
3. Policy – external – rules protect those who are more likely to be found against
for socioeconomic / political reasons
E. Trial judges – Gate keeper for evidence in trial – jury may still disregard
1. Rule 103 – preserving a claim of error
a. if ruling admits evidence opposing party on record
i. Timely objects or moves to strike and
ii. States the specific ground unless it was apparent from context
b. If the ruling exceeds evidence – the opposing party gives court
substance through offer of proof unless apparent from context
c. Need not renew objection once court ruled
F. Rule 104 – (a)the court must decide preliminary questions on witness credibility,
existence of privilege and admissibility
1. (b)Conditional relevance – relevancy of evidence depends on fulfilling a factual
condition – could a reasonable jury find that the fact exists
2. (e)Jury – fact finder – weighs evidence
G. Rule 105 – if a court admits evidence for one reason it may not be used for any other
purpose – restricts admissibility
H. Preserving evidence issues
1. Object in a timely manner
2. Make an offer of proof
3. State all specific grounds of objection
4. Abuse of discretion standard (not simply disagreement)
5. Harmless error – error is not always reversable
II. Relevance  Flow of Rule of Evidence
A. Considerations for Rule 401 – looks for the link to the case

Rule 401: Information is relevant if:
(a) Any tendency to make a fact
more or less probable and;
(b) The fact is of consequence
(material) in the current case
Rule 402: Relevant information is
admissible unless excluded by:
 the rest of these rules (blocking
rules)
Rule 403: balancing analysis if not
excluded by Rest of Rules may
exclude if:
probative value is substantially
outweighed by prejudicial value

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 1. Does the fact make a difference in the case?
2. What does the party offering the fact want it in front of the jury?
3. What is the purpose of offering the fact?
4. What case related proposition does the fact advance or detract?
5. Probative and of consequence:
a. Element of cause of action, claim or defense
b. Credibility of witness
c. Background facts
6. Relevant information must still pass “Rest of Rules” and 403 balancing
B. Rule 403 – unfairly prejudicial evidence – credibility of 401 links
1. Probative value – how much does it advance reason presented
2. Extent of prejudicial risk
3. It the probative value substantially outweighed by the unfair prejudice – deep
bias towards admissibility
4. What was the first thought is it inadmissible; how long did it take to get to an
admissible thought  longer it takes to get to admissibility more likely it isn’t
admissible
5. Consider alternate evidence to get same probative value
III. Conditional Relevance – whether a reasonable jury could find the preliminary foundational facts
by a preponderance of the evidence
A. Relevance of evidence depends on the existence of a fact proof must be introduced
sufficient to support a finding the fact does exist
B. The court may admit the proposed evidence in the condition that the proof be
introduced later
IV. Quasi Privilege Rules – 407-411 evidence excluded to promote public policy – look to the text
of the Rules
A. Rule 407 – subsequent remedial measures taken to make a previous injury less likely in
the future are not admissible to prove:
1. Negligence, culpable conduct, defect in product/design, need for warning
2. May be admitted for alternate purpose such as:
a. Impeachment or
b. If disputed – ownership control or feasibility
3. Law wants to encourage correcting dangerous condition
B. Rule 408 – settlement and negotiations – evidence of conduct or statements made
during negotiations and offer or acceptance are not admissible
1. either to prove or disprove the validity or amount of a disputed claim or
2. to impeach by a prior inconsistent statement or a contradiction
3. there must be a dispute at the time of the statement to block
4. May be admitted for another purpose
C. Rule 409 – Payment of medical expenses, or offer of, is not admissible to prove liability –
any other reason is implicitly admissible
D. Rule 410 – Guilty plea negotiations in prior criminal proceedings that was later
withdrawn cannot be admitted in civil or criminal cases
1. Criminal version of 408

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 2. Statements about pleas or made during plea negotiations with an attorney if
plea was not made are not admissible
a. Statements to police are not protected
3. Intended to encourage plea negotiations between prosecution and defense
4. Does not extend protection to guilty pleas that ate never withdrawn and
become a basis for a conviction
5. Nolo contendre – no contest – not admitting guilt – cannot be entered into
evidence in a civil proceeding
6. Colloquy – proceeding on pleas under FRCP 11 or comparable statutory
procedure with an attorney – not admissible once plea withdrawn
E. Rule 411 – evidence of insurance against liability is not admissible to prove negligence
or other wrongful action
1. Prohibited only when admitted for guilt or innocence determination
2. “such as” – most common examples – not extensive list – not only if
V. Character and Habit – Can this possibly be used for character evidence?
A. Description of a person’s nature
1. Generally, only by reputation or opinion evidence not specific – exception
habitual crime or motive
2. Three ways to use character evidence
a. Predictive character – act in conformity with trait
b. Non-predictive character – establish individual has particular trait
c. Non-character – always conduct or act
B. Two purposes for offering
1. Propensity Uses – past acts make it likely someone acted or thought that way
again
a. Act propensity evidence – prohibited – when character trait is an
essential element, specific evidence allowed – may be used for
impeachment
b. Cross examiner must have good faith basis to believe specific acts
happened
2. Non-propensity uses – any other reason – to prove existence of character trait
(element)
C. Policy – want decision to be made based on facts not on character evidence
D. Character – Who a person is
E. Credibility – What do we know about a person’s believability
F. Different terms that indicate character:
1. Character, Character trait, propensity, predisposition, tendency, who is he, what
is he like
G. Forms of Character evidence
1. Opinion – as to character
2. Reputation as to Character
3. Acts from which one can infer character

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 Charicter
evidence

Predictive Charicter as an Non-Charicter

Charicter Element Purpose

Sexual
Charicter Credibility 405 404(b)
charicter

404(a)(1) of Truthtelling
412-415
accused Charicter

404(a)(2) of Rape Shield Contextual

victim Law Truthtelling

VI. Predictive Character Evidence – what do we know about the witness to predict how a person
acted on a particular occasion – who a person is
A. Rule 404 (a) character evidence
1. Not admissible to prove on a particular occasion the person acted in accordance
with character trait
2. In a criminal case (not civil) defendant or victim may “open the door” and
prosecutor may rebut
3. Subject to 412 limitations – defendant may offer evidence of a victim’s pertinent
trait – prosecutor may rebut and offer evidence of defendant’s same trait
4. In a homicide case – prosecutor may offer evidence of alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor
B. Rule 404 (b) Non-Character Evidence – conduct evidence – doesn’t mean non-predictive
1. Not admissible to prove a person’s character of show on a particular occasion
person acted in accordance with the character
2. May be admissible for another purpose – non-character
a. In request of defendant prosecutor must
i. Provide reasonable notice of any such evidence
ii. Do so before trial
C. Rule 406 habit, routine, practice – may be admitted to prove that on a particular
occasion the person or organization acted in accordance with habit, routine or practice
1. Regular response to repeated event
2. Hyper specific character evidence – actually predictable
VII. Non-predictive Character Evidence – relevant and not blocked – admissible in any form
A. Non-character propensity use – showing of prior act helps to prove current conduct
without inferring that the act shows the person’s character

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 1. 404(b)(2) – specific acts may be used for non-character purpose  most
common justifications – intent, knowledge, or identity
a. Motive  narrow and case specific
i. Reason why a suspect acted is offered to prove action was done
with a particular mental state, not that he committed the crime
ii. Act propensity – risk of unfair prejudice varies inversely with the
specificity of the of the evidence
2. Subject to 403 balancing – what use first came to mind and how long did it take
to get to a non-character use – may still bar non-character
B. Rule 405 Character as an element
1. (a) reputation or opinion – may be proved by testimony of a person’s reputation
of testimony in form of opinion
a. Not specific act or conduct (conduct on cross only)
2. (b) by specific instances of conduct when the trait is an essential element of a
charge or trait may also be proven by relevant specific instances of persons
conduct – non-predictive
3. Form question – is the character evidence in the proper form
a. Reputation, opinion or act
4. Criminal – Character as an element
a. Repeat offender statutes – felon as a character trait
b. Entrapment – not otherwise disposed to commit
c. Insanity (is a character trait) – clear and convincing
5. Civil – Character as an element
a. Defamation – if libel statement is a character trait
b. Negligent entrustment – conditionally relevant and admissible
c. Child custody – is the parent fit
d. Wrongful death – not in liability – in damages  how much is victim
worth
VIII.Rape shield laws – Sexual Character Evidence
A. Rule 412 – sexual character not admissible in civil or criminal proceedings involving
alleged sexual misconduct to prove a victim engaged in other sexual behavior (conduct)
OR prove a victim’s sexual predisposition (opinion / reputation)
1. Criminal Exception – offered to prove someone else provided physical evidence
(semen) offered by defendant to prove consent and evidence whose exclusion
would violate defendants Constitutional Rights
2. Civil Exception – if probative value substantially outweighs the danger of harm
to any victim of any unfair prejudice – victim reputation only when victim brings
into controversy
B. Rule 413 – similar crimes in a sexual assault – criminal – not in NH
1. Court may admit evidence that defendant committed any other sexual assault
 prosecutor must disclose to defendant
2. Evidence may be considered in any matter to which it is relevant – conduct
evidence – not opinion / reputation

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 C. Rule 414 – criminal child molestation cases – court may admit evidence that defendant
committed any other child molestation for any relevant purpose
D. Rule 415 Civil cases of sexual assault / child molestation
1. Court may admit evidence of defendant committed any other sexual assault or
child molestation – for any relevant reason
IX. Credibility of witness – Impeachment and rehabilitation

Credibility of
witness

Character for Contextual

Truth-telling truth-telling

Rule 608
Self-
Character & Bias Prejudice Contradiction Personal Interest
contradiction
Conduct

Rule 609
Criminal
Conviction Rule 403
Rule 403 analysis
Analysis

A. Credibility – what do we know about the persons character for truth telling
1. Honesty
2. Perception
3. Memory
4. Narrative Ability
B. Extrinsic evidence – evidence that is presented to the jury in any way other than from
the character for truth-telling is under attack
1. Barred by 608 – to impeach by specific acts
2. Allowed under 609 – prior conviction
C. Rule 608 – Witness character for truthfulness or falsity – must be a witness
1. (a) reputation or opinion – credibility may be attacked / supported by testimony
about witness reputation for being (un)truthful
a. Must involve evidence that refers only to character of untruthfulness
b. Extrinsic impeachment expressly allowed – specific acts not permitted
2. (b) specific incident –changes the 404/405 specific act prohibition for evidence
used to impeach
a. except for criminal conviction under 609
b. extrinsic evidence is not admissible to prove witness character for
truthfulness – prohibition of extrinsic evidence does not apply when
offered for a non-character purpose
c. On cross court may allow inquiry if probative to the (un)Truthfulness of:
i. Witness
ii. Another witness who’s character the witness who is being
crossed has testified about

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D. Rule 609 impeachment in criminal conviction  must have been convicted – arrests do
not count – for any witness in a civil or criminal trial
1. Allows extrinsic evidence – if a contextual attack where 608 doesn’t apply –
subject to relevance and 403 analysis
2. Felony conviction rule – in criminal or civil trials – character evidence
a. Must be admitted in criminal or civil cases in which witness is not a
defendant – subject to 403 analysis
b. Must be admitted in a criminal case where the defendant is a witness if
the probative value outweighs prejudicial effect – reverses 403
3. For any crime (includes misdemeanors) evidence must be admitted if court can
determine that establishing elements of the crime required proving – or witness
admitting a dishonest act or false statement – no balancing test required
a. Not every crime is a dishonest act – case law by jurisdiction
4. (b) Limit on admitting such evidence after 10 years – admitted only if:
a. Probative value substantially outweighs prejudicial effect and
b. proponent gives an adverse party reasonable written notice of evidence
c. Balancing reverses 403 and requires “substantially outweigh”
i. Remoteness and particularities of conviction (plea/verdict) bear
on admissibility
5. (c) conviction is not admissible if subject of a pardon based on rehabilitation or
finding of innocence
6. (d) juvenile adjudications admissible only if
a. Offered in criminal case
b. Adjudication was of witness other than defendant
c. An adult’s conviction for that offence would be admissible to attack the
adult’s credibility and
d. Necessary to fairly determine guilt or innocence
E. Witness examination and testimony
1. Rule 611 – judge has discretion to decide whether to allow witness testimony
2. Direct examination – prohibition on leading unless under Rule 611 (c) court
decided necessary
3. Cross examination – short simple answers
F. Competency
1. Rule 601 State laws govern competency in federal civil action or when state law
provides Rule of decision
a. All witnesses are presumptively competent
b. Must understand what it means to be truthful (child witnesses)
2. Rule 602 Requires lay witnesses to possess personal knowledge  lack of
personal knowledge violates two ways
a. Testimony based on hearsay
b. Probably speculation
3. Rule 701 Lay witness may offer opinions / inferences of
a. Rationally based on perception of witness
b. Helpful to clearly understand of witness testimony

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 G. Impeachment – attack on credibility – character or contextual attack
1. Cannot impeach the character of a person who is not a witness
a. Exception – when hearsay is allowed than the person who said the
statement is treated as a witness
2. Rule 404(a)(3) – impeachment – evidence of a witness’s character may be
admitted under rules 607 through 609  apply when impeaching witnesses
3. Contextual truth-telling
a. Can use extrinsic evidence – subject to 403 analysis
b. Motive to lie in testimony
4. Types of impeachment
a. Contradiction – disputes testimony
b. Bias – influenced, prejudicial, or predisposed towards or against party
personal interest
c. Convictions of certain crimes – dishonesty  felony convictions
d. Prior acts relating to truthfulness – capacity for truthfulness
e. Testimonial capacity – perception, memory, narration, sincerity
f. Prior inconsistent statements – allowed only if subject matter is
important to case
i. Extrinsic impeachment only
5. Collateral Issue Rule – impeachment by contradiction - prohibits extrinsic
evidence on a collateral matter – substantially similar to 403 analysis
a. Evidence that will only show a mistake or false statement in something
in a witness has said about a collateral topic is prohibited from being
introduced extrinsically
b. If W1 testifies the attacking party cannot call W2 to contradict the
truthfulness of W1 said if W2’s testimony relates only to W1’s credibility
c. W2’s testimony must bear directly on a substantive issue of the case
d. W2’s testimony / evidence must bear some independently provable
item  bias or general untruthfulness
H. Rehabilitation of a witness – can only occur after a direct attack on a witness’s character
contextual truth-telling attack does not count as a character attack
X. Hearsay – witnesses testify about what they saw, did, felt, touched, said and heard outside court
room  hearsay issues arise with said and heard testimony – four level analysis
A. Form rule – how is the substance being entered – forces witnesses to be brought into
court – if the truth of the statement is not relevant to evidence than not hearsay
B. Knowledge of a statement is not hearsay – does not test substance of statement

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 Definition Does not fit Fits definition
out of court statement definition Move to exemptions
for the truth of the Admissable
matter

Exemptions Fits exemptions Does not fit

statement by a testifying admissable unless CC exemptions
witness move to execptions
statemetn by a party

Execptions Fits an execption Does not fit an

Rule 803 admissable unless CC execption
Rule 804 Inadmissaable

Confrontation Crawford v.
Davis and Hammon
Clause Washington

C. Level 1: does it meet the Definitions – Rule 801

1. Statement – oral or written assertation or non-verbal conduct intended as an
assertation
2. Declarant – person who made the statement
3. Hearsay – a statement that
a. The declarant does not make while testifying (out of court statement)
b. A party enters into evidence to prove the truth of the matter asserted in
the statement
i. What is the purpose?
ii. What is the truth? If true, what proposition would it be putting
forth?
iii. Given the purpose, does the substance need to be true to
accomplish that purpose?
4. Rule 802 – hearsay is not admissible unless these rule state otherwise
a. Protects the right to cross examination
b. Our of court statements for non-hearsay purposes – can’t argue the
truth of the statement – relevant without regard to accuracy
i. Subject to 403 analysis
5. Refreshed recollection – use of document – out of court statement
a. Not testifying to statement restating memory
b. Witness need not have authored document
c. Must show some uncertainty before recollection of memory could occur
D. Level 2: does it meet Non-hearsay exemptions Rules 801(d) and 802

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1. Rule 801(d)(1) declarant’s statements are not hearsay if declarant testifies at
trial which statement is offered and is subject to cross examination and:
a. Prior inconsistent statement by witness/ declarant or
i. Narrowing factor – prior statement was given under oath
subject to penalty of perjury
ii. If all elements met – can argue for the truth of the inconsistent
statement
iii. Can be brought in extrinsically
b. Prior consistent statement offered to rebut express or implied charge
declarant fabricated or the result of improper influence or motive
i. Can also be offered to rehabilitate declarant’s credibility
ii. Statement predates onset of fabrication or improper motive
iii. No requirement to be under oath for the prior statement
c. Prior statement of identification
i. Statement was made after the declarant had perceived the
person after the crime statement
ii. Need not be under oath
2. Rule 801(d)(2) admissibility of opposing party statement
a. Three factors to consider:
i. who are the parties
ii. who is the statement being offered against
iii. whose statement is it – who is the declarant
b. admissible if the statement is made against opposing party and:
i. Is the party’s own statement – made by individual or
representative
(1) Declarant is party to lawsuit
(2) Declarants adversary offers statement into evidence
ii. Adoptive admission – one the party manifested/ adopted or
believed to be true
(1) Declarant party adopted by words or deeds manifested
belief in the truth of statement
(2) Advisory offers statement into evidence
(3) Silence as admission – must establish
1. Party heard statement
2. The matter asserted is within party’s knowledge
3. The occasion and nature were such that the
party would have replied if did not mean to
accept
iii. Party authorized statement/ press or spokesperson exception
(1) Non-party hearsay declarant was expressly or impliedly
a party’s authorized agent
(2) Advisory offers statement into evidence
iv. Agents statements – made by agent/ employee within scope of
relationship

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 (1) Non-party declarant is a party’s agent or employs
(2) Declarants hearsay statement concerned a matter
within the scope of the agency or employment
(3) Statement was made during the existence of the agent/
employment relationship
(4) Advisory offers statement into evidence
v. Co-conspirators statement – made by party’s co-conspirator
and in furtherance of the conspiracy
(1) Declarant is a party’s co-conspirator
1. Co-conspirator – two or more people who
knowingly join together to commit an illegal act
2. Does not have to be a charged conspiracy
(2) Statement was made in furtherance of conspiracy
(3) Advisory offers statement into evidence
E. Level 3: Hearsay exceptions – Rule 803 and 804
1. Present sense impression
a. Statement relating to – describing or explaining an event
b. Made during or immediately after the declarant perceived it
i. No time to allow for brain to adjust memory
c. No need for startling event
2. Excited utterance
a. Statement relating to a startling event or condition
b. Made while declarant was under the stress of excitement caused
i. Can last longer than 803(1)
ii. Not necessarily during the event under the stress – timing
dependent on the person under stress of event
3. Then existing mental emotional or physical condition
a. Statements of declarants
i. State of mind
ii. Emotion
iii. Sensation
iv. Physical condition
b. Statement is contemporaneous with state of mind
c. Admissible to prove the fact that produced declarants state of mind
only if relevant to issues surrounding declarants will
i. Not to prove memory or belief
4. Statements for the purpose of medical diagnosis or treatment
a. Statement made for the purposes of obtaining medical treatment or
diagnosis
b. Information in statement is reasonably pertinent to diagnosis
c. Statement concerns declarants medical history, symptoms, inception or
cause/ source of declarants medical condition
5. Recorded recollection  this is not refreshing recollection
a. Memorandum or record

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 b. Concerns a matter of which the witness has personal knowledge
c. Witness has insufficient recollection to testify about the matter fully and
accurately
d. Declarant made or adopted memo/ record concerning matter
e. Memo/ record created when matter was fresh in memory
f. Witness testifies that the report is accurate
6. Business records exception – 803(6) and (7)
a. Memo report or data compilation in any form
b. Of acts events conditions or opinions
c. Made at or near the time of the acts
d. By a person with the knowledge of the acts or from info transmitted by
one with knowledge
i. Allows records to be admitted without having to bring the
person who input info as long as person in court knows how
records are kept
e. The memo was kept in the course of regularly conducted business
activity
f. Regular practice to keep such a memo
g. Above established through memo’s custodian or other qualified witness
h. No lack of trustworthiness
i. Definition of what counts as a business is expansive – does not have to
be legal
7. Rule 804 declarants unavailability – must first show unavailability then show
declarant meets 804 exceptions
a. Criteria for unavailability – must be in good faith
i. Exempted from testifying on subject matter because of privilege
ii. Refusal to testify despite court order
iii. Testifies to not remembering – must say they don’t remember
iv. Not present due to death, physical or mental illness or infirmity
v. Absent and statement’s proponent unable to procure
b. If unavailable the following statements are not excluded
i. Former testimony
(1) Testimony was given as a witness at another hearing or
deposition
(2) Offered against a party or predecessor in interest of the
party
(3) Who had the opportunity and similar motive to develop
former testimony by direct, cross or redirect
(4) Civil v criminal cases/ testimony – admissibility not
conclusive – different standards of proof
1. Which came first
2. How important was it to the case
3. Elements of the case
4. Standard of proof

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 ii. Dying declaration – statement under belief of imminent death
(1) Declarant must believe they are about to die
(2) In a homicide prosecution or civil action or proceeding
(3) Made about cause or circumstances of what declarant
believes to be his impending death
(4) Assumes that when someone is about to die they are
honest
iii. Statement against interest at the time the statement was made
(1) Was so far contrary to pecuniary or proprietary
interests
(2) OR so far tendered to subject to civil/ criminal liability
(3) OR rendered invalid claim by declarant or against other
(4) AND if offered in criminal case and tends to expose
criminal liability is supported by corroborating
circumstances that clearly indicate trustworthiness
F. Level 4: Confrontation clause – 6th amendment
1. In all criminal prosecutions the accused shall enjoy the right to be confronted
with the witness against him
2. Crawford v. Washington –USSC determined that Confrontation Clause applies
only to testimonial out-of-court statements
a. Testimonial hearsay statements must be excluded unless
i. The declarant is available at the trial for cross examination
ii. OR the declarant is unavailable and there has been an
opportunity for cross examination
b. Testimonial statements
i. Statements made under circumstances which would lead an
objective witness to reasonably believe that the statement
would be available for cross later at trial
ii. Statements to government officials or police officers in the
course of investigation
iii. Ex parte examinations without a cross or functional equivalent
iv. Pretrial statements that declarants would expect to be used
prosecutorially
(1) Affidavits
(2) Depositions
(3) Prior testimony
(4) Confessions
c. Non-testimonial statements
i. Off-hand remarks
ii. Statements not offered for the truth
iii. Forfeiture by wring doing
iv. Testimonial statements when declarant testifies at trial and is
available for cross
3. Post Crawford Confrontation Clause

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 a. Davis v. Washington – statements to 911 operator
i. Declarants primary purpose was to enable police assistance to
meet an ongoing emergency
(1) Not acting as a witness
(2) Not testifying
ii. A conversation that begins as in interrogation to determine the
need for emergency assistance can evolve into testimonial
statements once that purpose has been achieved
iii. Specific facts that make this case non-testimonial
(1) Speaking of events as they were happening
(2) Facing an ongoing emergency
(3) Questioning was to resolve an ongoing emergency
iv. Questioning was investigative – not determinative – look to
primary purpose
b. Hammon v. Indiana – statements made to police on scene
i. When viewed objectively the primary purpose of the
interrogation was to investigate a possible crime – testimonial
c. Davis/ Hammon Testimonial
i. The circumstances objectively indicate that there is no such
ongoing emergency and
ii. The primary purpose is to establish or prove past events
potentially relevant to later criminal prosecution
d. Davis/ Hammon Non-Testimonial
i. When made in the course of police investigation
ii. Under circumstances objectively indicating that the primary
purpose is to enable police to meet an ongoing emergency
e. Forfeiture by wrongdoing
i. Defendants have a duty to refrain from acting in ways that
destroy the integrity of the criminal-trial system  coercing
silence from victim and resting on 6th amendment
ii. One who obtains absence of a witness by wrongdoing forfeits
the constitutional right to confrontation
iii. Applies only when defendant engaged in conduct designed to
prevent the witness from testifying
XI. Privileges
A. Spousal privilege – two kinds
1. Testimonial – only applies to criminal proceedings
a. Spouse is on the stand at the time of marriage and testifying against
b. Complete protection from adverse testimony by other spouse
c. Privilege held by the witness
2. Communications – civil and criminal cases
a. Covers only communications – not observations- while married
B. Attorney Client Privilege
1. Communications privilege

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 2. Communication between client and lawyer
3. Made between privileged persons – think corp. as client (representatives)
4. Intended to be confidential
5. For purposes of seeking, obtaining or providing legal assistance for the client
6. Ethical confidentially requirements – cover more
7. Not covered by evidentiary rules:
a. Appointments
b. Identification of client
c. Existence of relationship
d. Terms of agreement
e. Dates of communication
f. Fee arrangements
XII. Authentication
A. Rule 901(a) to satisfy the requirement of authenticating the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it is
1. Foundation/ requirements to admit evidence
a. Relevance
b. Rest of rules
c. Authentication  only one requirement – must also meet other two
foundational thresholds to be admitted
B. Easy to satisfy the authentication requirement – examples include
1. Testimony of a witness with knowledge
2. Non-expert opinion on handwriting – based on familiarity
3. Comparison by expert witness or trier of fact – with an authenticated speciesism
4. Distinctive characteristic and the like
5. Opinion about a voice
6. Evidence about a telephone conversation
XIII. Best Evidence Rule
A. Rule 1002 – an original writing, recording or photograph is required to prove its
contents: activated when  the issue at trial is what the contents of the document
1. Applies in contract disputes  what was in the contract
a. If the dispute was the existence of the contract best evidence does not
apply
b. Best evidence only applies if the issue was the content not the existence
2. Defamation suit – contents of what is in the document with the defamatory
statement
B. Rule 1003 – duplicate can be sufficient unless there is a genuine argument to its
authenticity
1. Genuine argument means showing of fraud or dishonesty
C. Best evidence does not mean
1. If there is a better, more direct, form of evidence that s the one that should be
used
2. An eyewitness if available must be used
3. The object is better than words describing it

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 4. You can never use a copy if the original exists
XIV.Opinion testimony
A. Rule 701 opinion by lay witness – if a witness is not testifying as an expert testimony in
he form of opinion is limited to one that
1. Rationally based on the witness’s perception
a. Lay opinions can only be on what they see/ experience – their
observations
b. Expert witnesses may opine on events that they do not see – drawn on
technical knowledge not on experience of event in question
c. Must lay out what the witness perceived (should be enough to allow the
jury to come to conclusion themselves) then conclusion of the witness
2. Helpful to clearly understanding the witness’s testimony or to determine a fact
in issue; and
3. Not based on scientific technical or other specialized knowledge within the
scope of Rule 702
B. Rule 702 expert opinion – a witness who is qualified as an expert may give opinion if
1. The expert’s specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue
a. Fit problem – causation – is the knowledge base transferrable to the
current issue
2. The testimony is based on sufficient facts or data
3. The testimony is the product of reliable principles and
4. The expert has reliably applied the principles and methods to the facts of the
case
C. Frye standard
1. Is a novel scientific method and theory underlying that scientific method
generally accepted as reliable and valid in the relevant scientific communities
2. Judge decides only if the scientific community believes that the method and
theory is valid  not if the judge believes it is valid
D. Daubert standard – court held that 702 supersedes Frye – not overrule but approach
differently  big difference between Daubert and Frye – all about the trial judge – the
judge decides under the Daubert standard – if judge believes it is valid and scientific
community does not it is still admissible (who is the decision maker and what is the test)
1. Reliability: is the reasoning or methodology underlying the testimony
scientifically valid
a. Can and has the theory/ technique been tested
b. Has the theory been subjected to publication and peer review process
c. Is there a known or potential error rate
d. Are there standards to control the techniques operation – quality
control standards
e. Is the technique generally accepted  carry over from Frye
f. Not exclusive factors – judge has discretion
2. Relevance: can the reasoning or methodology be properly applied to the facts in
issue

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