Evidence Law and the System

 Rule for relevance  FRE 401

 3 Questions that apply on every appeal
o Did you preserve the record? Was the objection timely and stated properly? Was there
an offer of proof?
o Did the trial court err? (abuse of discretion standard)
o Did that ruling affect the outcome of the case? (prejudicial reversible error)
 FRE 611(b)  Scope of direct rule
o Cross questioning is limited to matters explored on direct
o May not affect the witness’s credibility
o How do you define the scope of the direct?
 General objections
o When overruled, does not preserve any particular ground for appeal
o FRE 103(a)(1)(B)  a claim of error must state a specific ground, unless it was apparent
from the context, to be properly preserved
o FRE 103(e)  a court may take notice of a plain error even if it wasn’t properly
preserved
 Double standard of appeals
o Appellate courts prefer to save the trial court’s judgment
o A party seeking to overturn the judgment must have properly preserved the claim of
error under FRE 103(a)
 Limited to what the party seeking to overturn SPECIFICALLY preserved in trial
court
o A party seeking to save a judgment has much more leeway
 If there is a way for the appellate court to save the judgment, they will
 Interlocutory appeal
o Final judgment rule applies to evidentiary rulings

Relevance
 FRE 401 is a liberal rule
o 1. Any tendency
 Relevance vs sufficiency (burden of proof)
 Relevance  doesn’t have to be enough to convict
 “A brick is not a wall”
 Very low threshold
 Only has to “move the needle”
o 2. Consequence
 Materiality
o Judge determines if the evidence is logically AND legally relevant
 There must be sufficient evidence to meet the burden of proof
o But it can be aggregate (weight)
o Each individual evidence doesn’t need to meet the burden of proof on its own
  FRE 401  Relevance
 FRE 403  Probative value (how important is the evidence?)
o Standard is in favor of admitting the evidence
o Unfair prejudice must substantially outweigh the probative value; balancing test
 Emotional evidence that might incite passion or inflame the jury (the danger) is
generally unfair
o In a lot of cases, we never get to 403 because the evidence was exclude by some other
rule
 Evidence that seems perfect to prove one point also tends to prove another, on which it is
incompetent
 FRE 105  Admit the evidence if it has a legitimate use, but give limiting instructions to prevent
misuse
 FRE 106 Rule of completeness
o Court has discretion to prevent parties from cherry picking certain parts of a
writing/record by requiring them to introduce the entire thing
o Can sometimes trump hearsay objections to provide context (Ranney)
 Most of the time, the judge makes all the evidence calls
 FRE 104(b)  Relevance that depends on a fact
o Conditional relevance  did they actually say it? Did that gun really belong to him?
 Judge decides of an evidence is legally relevant (consequential) to a case
 But the jury decides the facts
 Burden of Proof in civil cases is 51% (more likely than not; preponderance of the evidence)

Old Chief v. US
 Charges
o 1. Felon with firearm
o 2. Assault with a deadly weapon
o 3. Using firearm for violence
 Old Chief had an earlier conviction for assault causing serious bodily injury
o He does not want this evidence admitted
o FRE 401  Directly relevant to 1; not directly relevant to 2 and 3 but has a tendency to
move the needle
 Admissible under FRE 401
 Relevant vs Competent
o Evidence is incompetent to counts 2 and 3
 FRE 404 and 405  prohibits the introduction of bad character evidence
 FRE 403  the court may exclude relevant evidence; balancing test of probative value
o Evidence was relevant for count 1
o But it was excluded for unfair prejudice, danger of jury misuse
 Jury might misuse relevant evidence for count 1 improperly for counts 2 and 3
o Diminished probative value because there was another way to prove the point for count
1
 Old Chief was willing to stipulate that he was a qualifying felon
Hearsay
 US v. Check  no hearsay exception even when a witness declarant repeats his own words
made out-of-court
o Even judges can get the rules of evidence wrong
o It’s hearsay even if you’re repeating your own previously made statements
 Rule 801(c)
 3 Requirements for hearsay
o 801(a)  “Statement”
 An “assertion”
o 801(b)  “Declarant”
 A person
 Animals and machines are not “persons”
 803(17)  Market report exception
o 801(c)(2)  Offered for its truth
 “A”  “A”
 801(d) Statements that are not hearsay  Different from “non-hearsay”
o Statutory magic, they are still technically hearsay
 “Out-of-court” statement = previously made statement
 801(c)(2) analysis is linked to 401
o Relevance
o p 3-4 of the Hearsay Handout
 “A”  “A” is hearsay
o Offered for its truth
o ex) “My bf assaulted me” to prove that the bf assaulted the declarant
o ex) “Keep him away from me” to prove that the bf assaulted the declarant
 Is the statement relevant to prove what it is offered for if it is substantively
true?
 Indirect proof
 Is there a logical link to the real world?
 Who’s the declarant? Who’s the witness? What’s the statement? What is it offered to prove?

Two-Step Inference
 Conduct  Belief  Real world condition
o Allowed on non-verbal, non-assertive conduct
o Counts as non-hearsay
 NOT allowed on state of mind
o Not allowed to prove beyond belief
o Can ONLY prove state of mind, NO real world inference allowed
o For state of mind Rule 803 unfair prejudice must be considered
o ex) “My wife is a great cook” to prove the declarant loves his wife is acceptable; but not
acceptable to prove that the wife is actually a good cook
 Conduct must be intended
Non-hearsay (“A” for “B”)
 A statement is not hearsay when it is not offered to prove the truth of the matter asserted

State of mind
 Rule 803(3)  Exception for statements for then-existing mental, emotional or physical
condition
o Then-existing state of mind of the declarant
o ex) “I love my wife” to prove the declarant loves his wife is acceptable under the
exception
 Declarant’s state of mind must be a legitimate issue or it will be excluded under Rule 403 unfair
prejudice

Effect on the listener

 State of mind of the listener
 If the statement is offered to explain the listener’s conduct, then it is admissible as long as it was
truly stated

Impeachment (of a witness by their prior inconsistent statement)

 Prior inconsistent statement by a witness
 Only admissible if it offers to make a point about the witness’ credibility

Verbal Act (“A”  “B”) or a verbal part of an act

 If it’s “A”  “A”, that’s hearsay and you need a hearsay exception
 Only admissible if it offered to prove that it was truly said
o NOT to prove the substantive truth
 The words have independent significance in law, custom, or logic REGARDLESS of the underlying
substantive truth
o Some acts can only be performed with words
o “Magic person” speaking “magic words” in a particular context
 “Magic person” must be the declarant for this to be non-hearsay
 Context is critical
o Someone says something, and that makes it so

Verbal Object
 Words don’t get put on objects by themselves; someone puts them on there
 But if those words are not offered to prove their substantive proof, they are admissible
o ex) identifying someone by something written on their shirt
o CANNOT be used to prove the substantive truth of the content of the words
 BUT insignias put on for business is self-authenticating  gets rid of the hearsay problem

Hearsay Exceptions
 FRE 801(d); 803
o Statutory magic “not hearsay”
o In NJ, they’re all in 803
o All statements come in as “A”  “A”
  801(d)(1)(A) ~ (C)
o Declarant must testify in the case (declarant must be the witness)

Prior Statements
FRE 801(d)(1)(A)
 Prior inconsistent statements
o All PIS can come in “A”  “B”
 But only a small subset of them can come in “A”  “A”
 Requirements:
o 1. Declarant must testify in the case (declarant must be the witness)
o 2. Declarant must be subject to cross-ex about the statement
o 3. Prior statement must be inconsistent with declarant’s testimony
o 4. Prior statement must have been made under oath/penalty of perjury
o 5. Prior statement must have been given under a trial, hearing, deposition, or other
proceeding
 NJ Rule ends after Req. 3

FRE 801(d)(1)(B)(i)
 Prior Consistent Statement - rebut
 Requirements
o 1. Declarant must testify in the case (declarant must be the witness)
o 2. Declarant must be subject to cross-ex about the statement
o 3. Prior statement is consistent with declarant’s testimony
o 4. Statement must be offered to rebut
 Can’t be offered in case-in-chief
 Introduced in redirect
 Can’t admit until the witness’ credibility has been attacked first
o 5. Rebuts an express or implied charge that the declarant recently fabricated or acted
from a recent improper influence or motive
 Declarant was called a “dirty liar”
o 6. Prior statement must be made pre-motive (Smith; not in FRE)

FRE 801(d)(1)(B)(ii)
 Prior Consistent Statement - rehabilitate
 Requirements
o 1. Declarant must testify in the case (declarant must be the witness)
o 2. Declarant must be subject to cross-ex about the statement
o 3. Prior statement is consistent with declarant’s testimony
o 4. Offered to rehabilitate
 Can’t be offered in case-in-chief
 Introduced in redirect
 Can’t admit until the witness’ credibility has been attacked first
o 5. Rehabilitates the declarant’s credibility when attacked on another ground
 Another ground  Inconsistent statements or faulty memory (ACN)
  Workaround for things that don’t fall under (B)(i)
 Argue against the witness’ credibility on summation, not direct, so the opponent can’t
rebut/rehabilitate
o Don’t “open the door”

FRE 801(d)(1)(C)
 Prior Statements of Identification
 Requirements
o 1. Declarant must testify in the case (declarant must be the witness)
o 2. Declarant must be subject to cross-ex about the statement
o 3. Statement identifies a person
o 4. Declarant must have perceived the person earlier

Admissions
 At common law, this was called “Admissions Doctrine”
 Used to be called “Admissions by a party opponent”
 Now called “Admissions by an opposing party’s statement”
 No guarantee of trustworthiness is required
 No firsthand knowledge requirement (Mahlandt; ACN)
o Only needs to have come out of the opposing party declarant’s mouth
 No “against interest” requirement

FRE 801(d)(2)(A)
 Individual Admissions
 Statement came out my mouth or out of the mouth of someone who is chargeable to me
 It allows me to introduce YOUR words against YOU

FRE 801(d)(2)(B)
 Adoptive admissions
 Someone said it in my presence and I didn’t deny/ I adopted the statement as my own
o I should have denied it if it wasn’t true
o Mere presence isn’t enough  more support is needed
o Totality of the circumstances + probable human behavior
 Hoosier
o Facts
 Witness: Robert Rogers
 Declarant: the girlfriend
 Statement: “There’s money back in the hotel” implies that they robbed the bank
because they earlier told the witness that they were going to rob the bank
 Trying to prove: They robbed the bank
o Statement is 801(d)(2)(A) as to the girlfriend because it came out of her mouth
o Statement is not 801(d)(2)(E) because it doesn’t further the conspiracy (not chargeable
to Hoosier)
FRE 801(d)(2)(C)
 Admissions by authorized spokesmen
 I didn’t make the statement, but my authorized spokesman did and those words are chargeable
to me
o Authorized spokesman is an agent/employee
o Narrower than (D)

FRE 801(d)(2)(D)
 Admissions by employees and agents
 My employee/agent made the statement about a matter in the scope of their employment and
those words are chargeable to me
o Subject matter of the admission only has to match the subject matter of the employee’s
job description

FRE 801(d)(2)(E)
 I didn’t make the statement, but my co-conspirator did in furtherance of the conspiracy and
those words are chargeable to me
 Predicate facts only need to be proved by a preponderance of the evidence
o 1. Coventurer requirement
o 2. Pendency requirement
o 3. Furtherance requirement
 Judge decides the predicate facts under 104(a)
 Applies in both criminal and civil cases
o Can apply even if there are no conspiracy charges/claims

FRE 803 Unrestricted Exceptions

 Non-application of hearsay rule
 Can still be excluded on other grounds
 “Regardless of whether the declarant is available as a witness”

FRE 803(1) Present Sense Impressions

 Requirements:
o 1. Statement describing or explaining
o 2. An event or condition
o 3. Made while or immediately after its perception
o 4. Without opportunity to deliberate or fabricate (ACN; Nuttall)
 Meeting 803(1)  goes to world at large
o Acts, events, conditions in the world at large

FRE 803(2) Excited Utterance

 Requirements:
o 1. Statement relating
 Broader application than (1); deliberate word choice
o 2. Startling event or condition
o 3. Made while under stress/excitement caused by event
 o 4. Without opportunity to deliberate or fabricate (ACN; Arnold)
 Meeting 803(2)  goes to world at large
o Acts, events, conditions in the world at large

FRE 803(3) Then-Existing Mental, Emotional, or Physical Condition

 Requirements:
o 1. Statement of declarant’s then-existing mental, emotional, or physical condition
 Meeting 803(3) stays in the declarant’s mind
o Can’t go to the real world
o 2-step inference never applies
o The “A”  “A” is state of mind
 “A” for “A” only reaches the mind, does not reach the world at large
 Potential for jury misuse

Hillmon
 Statement of intention (“A” for “A”)  Can reach the world at large under 803(3)
o “I plan to go to Chicago next week with my wife” can be used to show that you intended
to go to Chicago AND that you actually went to Chicago
o Some courts also accept that your wife went with you (broadest interpretation of
Hillmon)

Pheaster
 Statement of intention (“A” for “A”)  Can reach the world at large under 803(3)
o Hillmon doctrine
 Under the broadest interpretation of the Hillmon doctrine, Larry’s statement is admissible to
prove:
o Larry intended to go to the parking lot
o Larry actually went to the parking lot (he acted on the intention)
o Larry met Angelo at the parking lot
 Not all courts accept the broadest interpretation Hillmon doctrine

FRE 803(4) Statements Made for Medical Diagnosis or Treatment

 Requirements
o 1. Declarant must make the statement for purposes of medical diagnosis or treatment
(subjective)
 Credibility
o 2. Statement must be reasonably pertinent to medical diagnosis or treatment
(objective)
o 3. Statement may describe medical history, past or present symptoms or sensations,
their inception, or their general cause
 Can reach the past (unlike 803(3))
 Statements can qualify under both 803(3) and 803(4)
 Fault doesn’t normally apply
o But there is an exception for cases of sexual or physical abuse of children
FRE 803(5) Recorded Recollection
 Requirements:
o 1. A Record
o 2. On a matter that witness once knew about
o 3. Witness cannot now testify fully and accurately from present memory
o 4. Record was made or adopted by witness
o 5. When the matter was fresh in witness’s memory
o 6. Record accurately reflects witness’s knowledge at the time
o 7. If admitted, Record may only be orally read into evidence by proponent
o 8. Record may be received as written exhibit only if so requested by the opponent
 Live, testifying witness required
o But the witness isn’t able to testify without using the record
o FRE 612 (refreshing recollection) is more likely to be used
 Your opponent is allowed to see anything you give to your witness
 There may be undue weight given by the jury to written records
 FRE 101(b)(4)  “Record” includes a memorandum, report, or data compilation

FRE 803(6) Records of a Regularly Conducted Activity

 Requirements:
o 1. A Record
o 2. Of an act, event, opinion, or diagnosis
o 3. The Record was made at or near the time (discrete requirement)
o 4. The person who makes the record or supplies the information must have knowledge
o 5. The Record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit
 If not a regular business activity, the Record does not qualify
o 6. Making the Record was a regular practice of that activity
 Distinct from 5
 Reliability
 Record-keeping is a business practice that is relied on in the course of business
 ACN  “Sources of information presented no substantial problem with ordinary
business records. All participants, including the observer or participant
furnishing the information to be recorded, were acting routinely, under a duty
of accuracy, with employer reliance on the result, or in short “in the regular
course of business”
 Source cannot come from outside the business  reliability problem
o 7. All these conditions are shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
permitting certification
 You need a foundation witness to authenticate the records
 And then you would move the records into evidence
 FRE 101(b)(4)  “Record” includes a memorandum, report, or data compilation
 Does not apply to personal records
o Use 803(5) for these
FRE 803(8) Public Records
 Public offices
o Must be government entities (public agencies)
 Cannot be offered in criminal cases – clause (ii)
 Observations are clause (ii)
 Showing a mere routine activity – clause (i)

Baker
 Factually based conclusions count as factual finds under clause (iii)
o Doesn’t exist in NJ
 801(d)(2)(A) – statement must be offered against the party
o Why Slabach’s statements can’t come in under 801(d)(2)(A)
o Can’t come in for Slabach’s side

FRE 803(18) Learned Treatises

 Similar to 803(5)
 Requirements:
o 1. An expert on the stand
o 2. “Read into evidence”
 Cannot offer the treatise itself as evidence (“received as an exhibit”)
o 3. Needs to be called to the attention of the expert on cross-ex or relied on by the
expert on direct-ex
o 4. Publication is established as a reliable authority by the expert’s admission or
testimony, by another expert’s testimony, or by judicial notice

Minor exceptions
FRE 803(17) Market Reports
 Doesn’t matter if it’s “not human” non-hearsay or it is “human” hearsay  it comes in anyway

FRE 803(22) Felony Convictions

 This is why the Rules provide a separate hearsay exception for prior criminal convictions when
you want to prove not just the fact of a conviction, but the facts underlying the conviction, i.e.
that the defendant did in fact rob the bank. Such an “A” for “A” offer needs a hearsay exception
and it is contained in 803(22)

FRE 803(21) Reputation Concerning Character

 A person’s reputation is what people in the community “say” about him/her. Thus, a person’s
reputation is a “statement” with the community as the “declarant.” Here, because the offer is to
prove that W is a violent man by showing that the people in his community “say” he is a violent
man, the offer is “A” for “A”. That is why we need a separate hearsay exception to admit
reputation evidence.
FRE 805  Hearsay Within Hearsay
 If all aspects of the statement meet a hearsay exception, it can come in

Petrocelli v. Gallison
 803(6) gets the business record in
o But Dr. Swartz wasn’t an employee of the hospital
o Can be combined with 803(4) and come under 805
 But Petrocelli didn’t argue 803(4)

Baker
 Police reports come under 803(8) public records
o Slabach’s interview records, embedded in the report, had to come under 801(d)(1)(B)(ii)
prior consistent statement to rehabilitate an inconsistency
o Use 805 to get both in

Norcon
 Ford memo is hearsay
 What the people who work from Norcon said to the people who work for Purcell cannot come in
under 803(6)
 But 805 used to allow it to come in by combing 803(6) and 801(d)(2)(D)

FRE 804 Unavailability Requirement

 Legally, not necessarily physically, unavailable
 FRE 804(a) + FRE 804(b)
o Need both parts (a) AND (b)
 What makes someone legally unavailable? 804(a)
o 1. Claim of privilege
o 2. Refusal to testify
o 3. Lack of memory
o 4. Death, illness, infirmity
o 5. Absent from the trial and unable to procure
 Wrongdoer penalty (If you wrongfully cause the person to be unavailable)
o Can’t use 804
o 804 Can be used against you
 FRE 804(b)(1) Formal Testimony
o Criminal case  This defendant
o Civil case  This defendant OR a predecessor in interest to party (privity)
 p 343
 FRE 804(b)(2) Dying Declaration
o note 2, p 411
o Only a statement about cause or circumstances
 FRE 804(b)(3) Declarations Against Interest
o Williamson
o Analyzed statement by statement
 o Only statements that are truly self-inculpatory can make it through the first part of the
analysis
 Statements must be against declarant’s pecuniary interests
 People wouldn’t be speaking against their interests unless it was true
o Spillover on a third party? (X and I did it – does statement implicate X also?)
 Yes, provided the statement is truly self-inculpatory
 Look at the circumstances!
 When made in custody, the statement may be made to curry favor to law
enforcement  no spillover effect because not truly self-inculpatory
 Statements made by co-defendants are viewed with more suspicion
o Statements made in private settings are almost never testimonial
 Admissibility depends on whether they fit the against-interest exception

FRE 807 Residual Exception

 NOT ON EXAM
 Catch all
 Extremely rarely invoked
 Doesn’t exist in NJ

Confrontation Clause
 Crawford
 Just because you solve the CC clause problem, doesn’t mean that that a statement automatically
comes in
o There still needs to be a hearsay exception
 Davis
o Emergency doctrine
 Bryant
o Dying declaration
o Statement was not testimonial
 But per Crawford, even testimonial dying declarations are historically admissible
under the CC

Character Evidence
 FRE 401 Relevance
 FRE 402 Irrelevant evidence not admissible
o Irrelevant character evidence never makes it past 402
 FRE 403
o Catch all for unfair prejudice
 FRE 404 Character Evidence
o Blanket prohibition for character evidence
 Not allowed to prove propensity
o Applies at trial, not sentencing (FRE doesn’t apply in sentencing, except for privileges)
o FRE 404(a)(2) exceptions
  Criminal cases only
 Defendant must “open the door” on character first
 D can offer a character witness to offer evidence for a pertinent trait
about himself or about the victim
 In a homicide case, if the D offers evidence that victim was the first aggressor,
then Prosecutor may offer evidence of victim’s peacefulness
 ONLY in homicide cases
 No “opening the door” needed
o FRE 404(b)(2) Specific instances of conduct as circumstantial evidence
 Applies in BOTH civil and criminal cases
 Notice requirement for criminal cases
 No “opening the door” required
 Huddleston test (p 436)
 Can only be used to show something OTHER than character (e.g., motive, intent,
knowledge etc.)
 FRE 405 Methods of Proving Character
o FRE 405(a) Reputation or Opinion
 Provable by testimony
 This is NOT allowed for specific instances
 ONLY allowed to give the opinion; NOT allowed to back it up
 Inquiry into relevant specific instance came come in on cross-ex of the character
witness
 And you are stuck with the witness’ answer
o FRE 405(b) Specific Instances of Conduct (Direct Evidence)
 When a character trait is an essential element, it may also be proved by relevant
specific instances
 Merge with 405(a)
 Character traits are almost never an essential element in criminal cases
 Character traits are often essential elements in civil cases
 Character itself is the essential element for the claim
 Essential =/= Relevant
 Must be something I need to prove
 Propensity  Character evidence to prove propensity (behavioral disposition) DOES move the
needle (is relevant)
o 3 forms:
 Reputation
 Opinion
 Specific Instances of Conduct

Habit and Routine Practice – FRE 406

 Propensity evidence
 Doesn’t need to be corroborated (doesn’t need an eye witness)
Subsequent Remedial Measure – FRE 407
 Remedial measure
 Subsequent to the injury
 Want to encourage people to take remedial measures

Tuer v. McDonald
 Can’t introduce remedial measures to say that someone didn’t do something that was, in fact,
feasible, unless they actually said it wasn’t feasible before
 Subsequent remedial measures can’t be used to impeach a defendant about having taken all
reasonable precautions
o Trap question; not allowed on cross-ex unless defendant opened the door

Settlement Negotiations
 FRE 408 – Compromise Offers and Negotiations
o Bars proof of settlements/offers of settlement/collateral statements
o Even if there is a hearsay exception, it is inadmissible
o But doesn’t bar something that can be discovered in the course of normal discovery
o 408(b) exceptions to provide bias
 FRE 409 – Offers to Pay Medical and Similar Expenses
o Not admissible to prove liability
o Payment of medical expenses generally comes out of insurance regardless of liability
 FRE 410 – Pleas
o Guilty pleas from innocent defendants are technically committed perjury
 If the guilty plea is later withdrawn, it can’t be used against the defendant to
impeach
o But there is an exception for subsequent perjury claims
 FRE 411 – Liability Insurance

Credibility / Impeachment
 Impeaching the credibility of witnesses
 Make a witness less credible in this particular case
o Bias
o Sensory/mental capacity
o Prior inconsistent statement
o Contradictions
 Make a witness less credible in all cases  reflective of character for truthfulness
o 608(a)
o 608(b)
o 609
 We don’t like character evidence (404(a)(1)), but it is admitted under 607, 608, and 609 (404(a)
(3)  evidence of a witness’s character)
o Door must be opened by witness taking the stand
o ONLY places character for truthfulness at issue!!
Credibility
 1. Bias
 2. Sensory capacity
 3. Prior Inconsistent Statement
 4. Contradiction
 Character for Truthfulness
o 1. 608(a)
o 2. 608(b)
o 3. 609

Abel
 Can be both Bias and 608(b)
 608(b)  Extrinsic evidence not admissible; you are stuck with whatever answer you’re given
o But the court may allow inquiry on cross if it’s “reflective of the person’s character for
truthfulness/untruthfulness”

FRE 608
 Evidence of truthful character is admissible only after door is opened by an attack on the
witness’s character for truthfulness
o But evidence of UN-truthful character only needs the witness to take the stand
 Rule 608(b)  specific instances of conduct to attack character for truthfulness not allowed
o But can be inquired into during cross-ex
o Limited to questions of character for truthfulness
o Extrinsic evidence not allowed

FRE 609
 Criminal conviction can be used to attack character for truthfulness
 609(a)(1)
o Covers convictions for crimes “punishable by death or by imprisonment for more than 1
year”
 Covers felonies
 Favors excluding prior convictions
 609(a)(1)(A)
o Danger of unfair prejudice must substantially outweigh probative value to come in
 609(a)(1)(B)
o Flips 403
o Probative value must outweigh danger of unfair prejudice to defendant to come in
 6 factors from Gordon for court discretion:
o 1. The nature of the conviction
o 2. Its recency or remoteness
o 3. Whether it is similar to the charged offense
 The more closely a prior crime resembles the charged offense, the greater the
risk of unfair prejudice
o 4. Whether defendant’s record is otherwise clean
  Convictions are more probative if they show a continuing pattern rather than
isolated instances
o 5. The importance of credibility issues, and
o 6. The importance of getting the defendant’s own testimony
o 1 and 3 are the most important
 609(a)(2)
o Covers crimes involving “a dishonest act or false statement” (or an admission of such
points)
o Dishonest act was required as part of the proofs (dishonesty must be an element of the
crime)
 No 403 balancing

Prior Inconsistent Statement

 “A”  “B”
 “A”  “A” 801(d)(1)(A)
 Extrinsic Evidence allowed, provided that it is considered a non-collateral point (material and
important in the case)
o Subject to 403

Contradiction
 Dual relevance
o Substantive Point
 Or proves bias/sensory perception/etc.
 There are times when the witness has “opened the door” to something you
would otherwise not hear
o Impeachment
 Lowers credibility
 Dual relevance  just has to move the needle on more than one point
o NOT dual competence
 All contradicting counterproof has some impeaching effect but is only allowed in if it has
ADDITIONAL relevance INDEPENDENT of its contradicting effect
 3 kinds of counterproof:
o 1. Counterproof that not only contradicts but also tends to prove a substantive point
 Ordinarily gets in
o 2. Counterproof that not only contradicts but tends to prove some other impeaching
point
 Usually gets in
o 3. Counterproof that ONLY contradicts
 Usually excluded
 But sometimes admitted where it seems that a witness could not be innocently
mistaken
 Courts generally exclude counterproof that contradicts only on a collateral point
o Require a dual relevancy of evidence offered to contradict a witness
 Such proof must tend not only to prove that he lied or erred
  Must also prove some other point that could make a difference in the case
 Not allowed to “open your own door” for otherwise-excludable counterproof, contradicting a
denial that you yourself elicit
o No trap questions allowed to open the door either
 FRE 608 does not apply
o FRE 608(b) ONLY regulates attacks on “character for truthfulness”
o Only affects impeachment by contradiction  blocks use of “extrinsic evidence” to
prove nonconviction misconduct to suggest untruthfulness
 608(b) CAN NEVER BE THE VEHICLE FOR INTRODUCING EVIDENCE
o CAN ONLY BE USED TO QUESTION CHARACTER FOR TRUTHFULNESS

Repairing Credibility
 Character witness (by 608(a), 608(b), 609)
o Can only rehabilitate after character has been attacked
o 608(a)(2) second sentence
 608(b)
o Questions in Reverse
 801(d)(1)(B)
o (i) Fabrication
o (ii) Faulty memory/Inconsistent statement
 Can introduce prior consistent statements for rehab after an attack
 Evidence that simply contradicts or refutes testimony given by a witness does not invite
rehabilitation or repair
o Mere contradiction of truthfulness does not open the door to character evidence
 Prior Consistent Statement only admissible to rehabilitate after an attack

FRE 610
 No impeaching attempts that attack credibility on the basis of religion

Opinion and Expert Testimony

 701-705 vs 405(a) 2nd sentence, 608(a)
o When is a witness allowed to give an opinion?
o Do not trump other rules
 e.g., 404, 405
 If character evidence is not admissible under 404(a), 404(b), 405, it does not
then magically become admissible because of 701, 702

Lay Witnesses
 Rule 701  Lay opinion testimony is admissible if:
o 1. “rationally based” on “perception” and
o 2. “Helpful” to the trier of fact in understanding his testimony or determining a fact in
issue, provided that it does not reflect “scientific, technical, or other specialized
knowledge” covered by FRE 702
Expert Witnesses
 FRE 702  the basic provision
o Ensuing four provisions deal with important aspects of expert testimony
o Judge as gatekeeper
 Qualified expert
o A witness must qualify as an expert to be able to testify as such
o FRE 702  a witness is “qualified as an expert” though “knowledge, skill, experience,
training, or education”
 Standard is lenient, ANYONE can be an “expert”
 A person with suitable training or education can qualify
 Embraces people with practical experience but no formal training
 ACN refers to “skilled” witnesses
o Only such persons can give “opinion” testimony on scientific or technical matters or
offer specialized knowledge
 Helpfulness standard
o An expert may provide opinion testimony under FRE 702 only if her scientific, technical,
or other specialized knowledge will “help the trier of fact” understand the evidence or
determine a fact
o Judge’s call, not the jury’s

Rule 703
 Expert witnesses don’t need personal knowledge
 If people in the particular field rely on inadmissible data, an opinion based on the data may be
admitted
o Subject to Rule 702
 NOT an exception to the hearsay rule
o The inadmissible data is still inadmissible
o But if the jury needs to hear it to properly consider the expert’s opinion, then the jury
can hear it on limited instruction
 ONLY if probative value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect
 Burden does not apply to the opponent of the evidence

Rule 704
 Does not lower the bar to admit ALL opinions
o Under Rule 701 and 702, opinions must be helpful to the trier of fact
o Rule 403 balancing

Rule 705
 Not an exception to character opinion testimony (CANNOT rely underlying facts to support
character opinion testimony)

Daubert v. Merrell Dow Pharmaceuticals

 Expert testimony from a qualified expert is admissible if it will assist the jury in comprehending
the evidence and determining issues of fact
Burdens of Proofs and Presumptions
Burden of proof
 Preponderance of the evidence
o 51%
o Standard for most civil cases
o “More likely than not”
 Clear and convincing evidence
o Also in civil cases, for certain types of claims
o Disciplinary charges in NJ must be charged with clear and convincing evidence
 Beyond a reasonable doubt
o Constitutionally required for a guilty conviction
o Prosecutor has burden of proof

Burden of Production
 Burden of producing evidence
 Can shift to burden of producing counterproof

Burden of Persuasion
 This is when the jury weighs the evidence

Presumptions in Civil Cases

 Types:
o 1. Predicate Facts
 (AKA Basic facts)
 Conditions/requirements
o 2. Presumed Fact(s)
 Triggered by predicate facts
 3 kinds of basic presumptions:
o 1. Conclusive/irrebuttable presumption
 Only goes to predicate facts
 There can be NO evidence on the presumed fact
 Presumed fact cannot be rebutted
 Ex) if you fail a properly administered breathalyzer test, and the test says 0.08 or
above, it is conclusively presumed that you were driving while intoxicated. You
cannot rebut it. You cannot introduce any evidence to contradict the conclusive
presumption
 But opponent can introduce counterproof on the predicate facts
o 2. Mandatory/rebuttable presumption
 Mandatory on the fact finder
 Person invoking must establish, by a preponderance of the evidence, the
predicate facts
 Rule 301  Opponent can attempt to rebut it
 Opponent can introduce counterproof on the predicate facts AND the
presumed fact
  Ex) if I establish the predicate facts of posting mail, then the law presumes that
you received it within 3 business days. Burden of proof shifts to you to prove
that you didn’t get it (rebuttable presumption). But I still have the burden of
persuasion
o 3. Permissive presumption/inference
 Res ipsa loquitur  make an inference from the predicate facts
 Jury may infer something happened or not
 In between situation  “Cogent + Compelling”
o 1. If I submit cogent and compelling evidence that the predicate facts happened, unless
you refute this is some way, then I win
o 2. If you introduce cogent and compelling evidence that the predicate facts or presumed
fact did not happen, then the presumption is gone
o 3. If I submit evidence that my predicate facts happened, and you submit evidence that
the predicate facts or presumed fact didn’t happen, and the jury could go EITHER WAY
 NJ rule  Default to an inference; jury gets to inference whatever it wants

Rule 301
 The party against whom a presumption is directed has the burden of producing evidence to
rebut the presumption
o Shifts burden of production
 Does NOT shift the burden of persuasion

Burdens, Presumption, and Inferences in Criminal Cases

 Prosecutor must prove beyond a reasonable doubt every element in the charged crime
 Court cannot instruct the jury to find a fact against the accused, no matter how powerful the
evidence may be
o The jury can do whatever they want
o In a civil case, the judge can through out a jury verdict (JNOV, AKA Judgment as a matter
of law). BUT NOT in a criminal case!
o But the defense can ask the judge to find the defendant not guilty if the prosecution
hasn’t proved the crime beyond a reasonable doubt

Judicial Notice
 A process by which a court determines certain matters without formal proof
o Saves attorneys/courts the time and expense of proving matters that are beyond
reasonable dispute
o Rules of evidence don’t apply
 4 kinds of facts
o 1. Adjudicative facts
 Facts that normally go to the jury in a jury case
 Facts that I would have had to prove otherwise
 When there is judicial notice of an adjudicative fact, then I bypass the
normal proof
o 2. Evaluative facts
  Common knowledge that judges and jurors bring to their deliberations
 Background information
 Things you can argue to the jury, “use your common sense”
o 3. Legislative facts
 Facts that the court considers when they are promulgating a legal rule
 Court can draw on whatever they want to when they’re deciding what
the law is
 Not part of the record
o 4. The law
 All courts take judicial notice of law
 Not something that you have to prove

Rule 201
 201(b)  must be an INDISPUTABLE fact
 201(c)
o Court may take judicial notice on its own
o Court MUST take judicial notice if a party requests it and the court is supplied with the
necessary information
 201(e)
o Predicate fact  this is something that is not subject to dispute
 If the judge is convinced  judicially noticed fact
 201(f)  in a civil case, a judicially noticed fact is automatically conclusive (jury MUST find for it,
no counterproof allowed at trial)
o But opponent can still attack the predicate facts

Privileges
 Not codified in the Rules
 Left to common law
 In a criminal case, the prosecutor CANNOT call the defendant to the stand and have him invoke
the 5th Amendment privilege (no self-incrimination) to the jury; no adverse inference allowed
o You can in a civil case

Assertion, Waiver, and Appellate Review

 As holder of the privilege, the client decides whether to assert or waive it
o ex) Attorney-client privilege is held by the CLIENT ONLY
 Voluntary disclosure = waiver

Rule 502 Attorney-Client Privilege and Work Product Protection

 Voluntary vs inadvertent disclosures

Competency of Witnesses
 Reasons why people could not be witnesses under common law:
o Mental incapacity
o Criminal conviction
  People convicted of infamous crimes were civilly dead
 Persons convicted of felonies or crimen falsi (crimes of falsehood) were
disqualified as witnesses

Rule 601
 Every person is competent to be a witnesses unless the rules provide otherwise
o Criminals are allowed to be a witness, but the jury will know that they are a criminal

Rule 602
 Personal knowledge requirement
 Expert witnesses are an exception

Rule 603
 Oath requirement
 “Oath” =/= “Affirmation” in common law
o Swear is religious, you invoke divine retribution if you swear an oath
 Meant to insure the truth
 Crime of perjury  making a false statement in either an oath or an affirmation
o Both are used interchangeably now
o Affidavits are technically made under oath

Rule 606
 Jurors become incompetent as witnesses post-verdict
o No Juror vs juror
 Exception for racial/religious bigotry in criminal cases
o Juror vs juror is allowed

Foundation Evidence; Authentication

 Authentication has NOTHING TO DO with ultimate admissibility

Rule 901
 901(a)
o Proponent must produce evidence sufficient to support a finding that the item is what
the proponent claims it is
o USED to say: “as a conditioned precedent to admissibility”

Best Evidence Doctrine

 FRE 1001~1008
 Original documents or duplicates are required to prove the contents of a document
o Must be authentic
o “The writing speaks for itself”
 Doctrine applies when “the content” is what a party seeks to prove
o 1. Substantive law forces the content of a writing into prominence
 Ex) Parol Evidence Rule, SoF
o 2. A party chooses to prove content even if they don’t have to
  AKA the party strategy forces the writing into prominence

ON THE EXAM
 Present sense impression 803(1)
o As I am experiencing an event/condition, I make a statement describing that
event/condition
o Statement has to be made contemporaneously to the experience of the
event/condition! No opportunity to deliberate or fabricate
o Declarant is speaking in the present about something that is happening RIGHT NOW as
declarant is speaking
 Testimonial / not testimonial
o Testimonial statements are given formally
 More reliable (hearsay consideration)
o Confrontation Clause is about the witness!
 The right to confront the witness on the stand
 It doesn’t matter how reliable the statement was
 Testimonial is bad for this
 Testimonial statement vs. testifying at court
o Look to when the statement was MADE, not whether it’s being repeated in court
o Business records are not testimonial