Contracts

I. UCC or Common law:

A. Article 2 UCC - sale of goods
1. Goods are movable things.
B. Common law - all things else (services)
C. Mixed - when contracts involve service and sale of goods, the question is what is the
predominant purpose of the contract.
II. Contract Formation
A. Offer
1. Offers convey an expectation to enter into a binding agreement and are judged
according to objective intent based upon what a reasonable person would believe.
a) no words required
2. Offers require:
a) A manifest commitment to do or refrain from doing something.
(1) Negotiations are not offers.
(2) Ads are viewed as invitations to deal, not offers, unless the ad
limits the number who can accept.
(3) Placing an order is an offer.
(4) Statements made in jest are not offers.
b) Under the UCC:
(1) The Offer must identify the offeree and make the subject matter
reasonably certain, that is, the essential terms must be provided.
(a) The quantity, must be specified
(i) Cannot be “a few”
(ii) Offers with “all the goods you grow” or “all the
carrots I need” are interpreted under good faith.
c) At common law:
(1) Offers for land must have a price and description (need not be
the legal description) of the land.
(2) Contracts for services require a description of service.
B. Termination
1. Revocation is termination by the Offeror
a) When? Any time before acceptance.
(1) Direct
(2) Indirect - offeree gets reliable info from 3rd party indicating the
deal is off.
b) Irrevocable offers:
(1) Option contracts - are promises to hold an offer open for a
period of time in exchange for consideration.
(2) Merchant’s firm offer (for goods) - if a merchant makes an
offer signed in writing, the offer cannot be terminated for the
time stated OR for 3 months, whichever is less
(a) A Merchant is anyone who regularly deals in the goods
sold or has knowledge or skill peculiar to the goods.
(3) Detrimental reliance - Offers cannot be terminated (without
repercussions) where the offeror makes a promise in his offer
and should expect the offeree will rely on that offer to his
detriment.
(a) Usually seen in the subcontractor’s bid.
 (4) unilateral offer - once performance begins under a unilateral
contract, the offer is irrevocable for a reasonable period of time.
(a) A Unilateral contract is one that can be accepted only
by performance.
2. Rejection is termination by Offeree
a) Direct rejection - The effect of the rejection is to immediately kill the
offer.
b) Counter offer - A counter offer is typically a rejection of the first offer
and the institution of a second offer.
(1) Inquiries however do not reject the initial offer.
c) Conditional acceptances.
(1) Common law -
(a) Typically conditional acceptances are treated as counter
offers.
(b) Mirror image rule - under common law an acceptance
must match each and every term of the offer and cannot
be different in any way.
(2) Article 2 - battle of the forms.
(a) A communication that looks like an acceptance will
operate as an acceptance even if it contains new or
different terms, UNLESS acceptance is expressly made
conditional on the new and different terms.
(i) Test: Is the acceptance conditional?
(ii) See analysis below under acceptance section.
3. Termination by Lapse of Time
a) Either by the time stated in the offer
b) Or after a reasonable amt of time
(1) After 30 days = too long.
(2) Adjusted by standard in the industry or a common method of
dealing.
4. Termination by Operation of law
a) Death or incapacity of the offeror - doesn’t matter if you know of the
death
(1) EXCEP Irrevocable offers don’t die with the party, it’s still
irrevocable for the time period.
b) The subj matter of the contract has become illegal.
c) The subj matter of the offer is destroyed.
C. Acceptance - timely manifestation of assent to the terms of the offer (including abiding by
the terms of how to accept).
1. Who?
a) Any person to whom the offer is addressed and persons who know about
the offer.
2. How?
a) The offeror is the master of their offer.
(1) If there is no specified means, acceptance must be by a
reasonable method.
b) Silence is not an acceptable acceptance
(1) UNLESS you knew about performance about to be rendered and
you said nothing
(2) UNLESS this silence for acceptance is customary in your
relationship
 c) Performance is acceptable acceptance.
3. Article 2 Acceptance
a) Nonconforming goods -
(1) Under article 2, buyer is entitled to perfect tender.
(2) A shipment of nonconforming goods is both acceptance and
breach of contract unless the buyer notifies the buyer that the
nonconforming goods is offered as an accommodation (at this
point, it’s not a breach but a counteroffer)
(a) Breach is avoided by: Performance + Note (at the same
time)
b) Battle of the forms - When dealing with goods (Article 2), mirror image
rule is not required for acceptance.
(1) If either party is nonmerchant - additional terms do not
automatically add on.
(a) There is offer + acceptance but no conditional terms are
added.
(2) If both are merchants - additional terms automatically become
part of the contract unless new terms:
(a) materially alter orig terms - includes major risk changes
like disclaimers of warranty,
(b) the offer expressly limits acceptance to the terms of the
offer
(c) the offeror has already objected to the terms or objects
in a reasonable time.
(3) If parties have different terms:
(a) Knock out rule - conflicting terms knock each other out
and the UCC will substitute a reasonable rule. The
remainder of the contract stands.
4. Mailbox Rule - rejections and revocations are effective when received but
acceptances are effective upon dispatch, when properly posted.
a) Estoppel - when accepted then reject, technically, the acceptance is
enforceable and creates a contract.
(1) But if I rely on rejection and sell to someone else, estoppel
prevents the contract’s enforcement.
b) When someone rejects then accepts, whichever is received first governs.
c) Can be waived
d) Mailbox rule doesn’t apply to option contracts
D. Consideration - a bargained for exchange of something of legal value (a benefit of the
promisor or a detriment to the promisee)
1. Cannot be gift
2. Must have legal value
a) the promise to do something or actually doing something one is not
already legally obligated to do. OR a promise to refrain from doing
something that someone is legally allowed to do.
3. Sham consideration =/= not consideration
4. The possibility of value = consideration
5. Something done before the formation of the contract =/= consideration
6. Land and services (Common law) Preexisting duty rule - promise to perform
what you’re already legally obligated to do is not consideration.
a) Contracts cannot be modified without consideration
b) EXCEPTIONS
 (1) If there is a promise to do anything new or different from the
original promise (no matter how slight) there is consideration.
(2) Lowering debt - If you agree to lower your debt you can later
legally sue for the full amount as long as you didn’t agree to any
changes in your contract.
(a) But if you agreed to even the slightest change, you can’t
sue for the full amt later .
(3) Unanticipated circumstances - Rule: no consideration needed if
you change contract for unanticipated circumstances, so long as
the contract is not yet fully performed on both sides.
7. Goods (UCC Article 2) - no preexisting duty rule: sellers and buyers can modify
a contract as long as both parties agree.
8. Illusory promises =/= consideration
a) Satisfaction clauses are acceptable because the law implies good faith
into the agreement.
b) Promise to use an exclusive agents - the law will imply best efforts based
on good faith.
III. Contract breach
A. Although contracts are breached when a party fails to perform, contracts cannot be
canceled unless the breach is material.
B. Courts consider:
1. the amount of benefit the nonbreaching party received,
2. adequacy of damages remedy,
3. extent of part performance by breaching party,
4. hardship to the breaching party, (v) whether the breaching party’s behavior was
negligent or willful, and
5. likelihood of the breaching party’s completing performance.
IV. Contract Defenses
A. Terms:
1. Void - A void contract is when neither party can force the other to abide by it.
2. A voidable contract can be voided if the aggrieved party wants it to be.
B. Missing any of the above formation elements
C. Lack of capacity
1. Minors - if one enters into a contract with a minor (individual younger than 18),
the minor can void the contract by disaffirming it, unless the contract is for
necessities (food, clothing, shelter, medical care).
a) The minor still must pay for the value of services received.
b) A minor can disaffirm within a reasonable time after turning 18 (a month
or two) after which the contract solidifies.
2. Lack of mental capacity - contract is voidable if a person’s mental capacity is so
deficient they cannot understand the nature or significance of the agreement.
a) Individual or guardian can void the contract.
3. Voluntary intoxication - makes the contract voidable if the other party had
reason to know of the intoxication.
a) Involuntary intoxication is treated like lack of mental capacity.
D. Absence of mutual assent
1. Mistake - Mistake as a defense in contract is a factual errors regarding a
fundamental matter with material effect on the contract. It goes to the heart
of the deal, not some ancillary matter.
a) Mutual - both mistaken about same material fact
(1) Mutual mistake is a defense.
 (2) No defense if a party assumes the risk.
(a) you assume the risk when:
(i) A party knows it doesn’t know the facts
(ii) A party is in a superior position to know the
facts.
(b) Typically both parties assume the risk when they mis-
assume the value.
b) Unilateral - one party makes mistake
(1) Unilateral mistake is NOT a defense.
(a) EXCEPT parties can’t take advantage of an obvious
error.
2. Misunderstanding - misunderstandings are ambiguities in the contract.
a) IF neither party were aware of ambiguity OR both parties were aware of
ambiguity, there is no contract UNLESS both parties meant the same
thing.
b) IF one party knew of the ambiguity, the contract is based on the
understanding of party who is unaware of ambiguity .
3. Misrepresentation - misrepresentation is an assertion of a fact that is untrue or
nondisclosure. The defense of misrepresentation requires an untrue assertion of a
material fact, that induces the other party to justifiably rely. Misrepresentations
can be innocent or intentional (fraudulent). Misrepresentations can make a
contract voidable.
a) Misrepresentations are NOT opinions or predictions
b) Misrepresentations are judged on a reasonable person POV.
c) Misrepresentations cause a contract to become voidable.
E. Public Policy - illegality.
F. Statute of Frauds - spot telephone calls
1. Contracts that fall within the statute of frauds are not enforceable unless they are
evidenced by a writing signed by the party to be bound.
a) Writing - anything written (a check or a note). Need not be written
contract.
b) Signed - any mark or symbol with the intent to authenticate.
2. 6 types of contracts fall within statute of frauds
a) Marriage - (prenups)
b) Contracts that definitively can’t be performed in less than a year
c) Land - contracts for interests in land (not rentals unless the rental is for
longer than a year)
(1) EXCEPTION
(a) Full performance by seller takes the contract out of
statute of frauds.
(b) Part performance by buyer takes the contract out of
statute of frauds
(c) Usu. required 2 of the 3
(i) Payment -in whole or part
(ii) Possession
(iii) Valuable improvements on the land.
(2) Mortgages and liens are covered.
d) Executor - contracts for an executor to pay out an estate out of their own
fund.
e) Goods - sale of goods for $500 or more.
(1) 4 Exceptions (SWAP)
 (a) Specially manufactured goods - goods that are custom
ordered, and are not suitable for sale to anyone but the
buyer are exempt from the statute of frauds.
(i) Once manufacturer starts, contracts are
enforceable without agreement
(b) Written confirmatory memo by a merchant
(i) merchant/merchant transaction
(ii) After oral agreement, one party sends written
confirmation of agreement.
(iii) Recipient has 10 days to object
(c) Admission - admission in pleadings or discovery will
bind you without a writing.
(d) Performance
(i) If you already accepted the goods, you must pay.
f) Suretyship - contract to answer for the debts of others.
G. Illegality - subject matter is illegal (marijuana or gambling)
H. Undue Influence
1. Person must be susceptible to pressure
2. Confidante or caregiver uses power to pressure the susceptible person
I. Unconscionability -
1. Determined by circumstances at the time contract was formed.
a) Unfair surprise
b) Unequal bargaining power. (contracts of adhesion) - note, price alone
does not make contract unconscionable.
V. Contract Remedy
A. Principle: The goal of contract remedies is to put the nonbreaching party in the position
he or she would have been in had there been no breach.
B. Monetary Damages
1. Compensatory damages
a) Expectation damages
(1) money damages to put the injured party back where he expected
to be
b) Reliance damages
(1) when expectation damages are too speculative, reliance damages
are the cost of any detriment that was incurred in reasonable
reliance on the promise.
c) Incidental damages
(1) costs reasonably incurred as a natural consequence of a breach
d) Consequential damages
(1) losses resulting from particular circumstances are recoverable
only if the breaching party knew or should have known
about the circumstances at the time the contract was made.
(It had to have been known at the time it impacted the price).
e) Liquidated damages - when damages are listed out in advance. What’s
required:
(1) Actual damages hard to predict
(2) The amount must be reasonable forecast of the actual damages
(they cannot be punitive.)
2. Damages under Article 2
a) Cover - after seller’s breach, buyer purchases replacement. Seller
recovers the difference between the agree upon price and market price.
 (1) This is the most common damages agreed upon.
(2) If you’re a dealer in the goods of that kind, cover won’t do it
because he has endless inventory and he could have sold 2 as
opposed to 1 in replacement.
b) Warranty damages - buyer keeps the product, collects damages from you
for what it should have been worth.
3. Limitations to monetary damages
a) Certainty - damages cannot be speculative
b) Foreseeable - damages must be foreseeable.
c) Unavoidable - we have a duty to mitigate damages (duty to mitigate is
not required by article 2).
C. Specific Performance - monetary damages are preferred over specific performance. To
demand specific performance, the injured party must show that money can’t make you
whole, the specific performance cannot be unduly burdensome, and the contract terms
must be certain and definite.
1. 3 places of specific performance:
a) Land sales
b) Sale of unique goods, goods of sentimental value.
c) No specific performance in services.
D. Reformation - when written contract doesn’t reflect what parties thought.
1. Requirements:
a) Original agreement was oral
b) Written memorandum of agreement.
c) Must contain mistake or fraudulent misrepresentation
E. Restitution - separate and apart from contract law. This applies when a contract remedy
isn’t available.
1. Prevents unjust enrichment. Protects against wrongful gain.
2. Quasi contract - no contract but the court will read a contract into the facts
a) Requirement:
(1) One party conferred a benefit on another
(2) The party had reasonable expectation of compensation
(3) The other party had reasonable expectation to know of the
benefit
(4) And there would be unjust enrichment if the party is not paid.

Evidence
Hearsay
I. Definition: an out of court statement of a person offered prove the truth of the matter asserted
A. Statement - person’s assertion (a date stamp, a radar gun, a record). Can be written, oral,
or nonverbal conduct
1. Declarant - person making the statement
B. Out of court - a statement not made on the witness stand at this hearing.
1. Includes - statements made in court documents, affidavits, hearing responses,
statements in depositions,
2. Witnesses can testify to their memories but not statements they previously made
out of court.
C. Truth of the matter asserted
1. “Do we ask if the declarant is telling the truth?”
2. If the purpose is to prove the effect on the reader/listener, then it’s not hearsay.
 II. Hearsay Exclusions:
A. Certain prior statements of testifying witnesses.
1. Prior statements of identification
2. Prior inconsistent statement
a) Can be used to impeach the witness (can’t be used for its truth)
b) Can be used for its truth only if it was made under oath at a trial,
hearing, deposition, or other proceeding.. (not in conversation)
(1) Can be used for both impeachment or for its truth)
3. Witness’ prior consistent statement - can be used to rehabilitate an impeached
witness.
a) Improper motive or influence/fabrication - the prior consistent statement
can be used to prove their story stayed the same after improper motive
arose.
b) Other grounds - (faulty memory perhaps) (trickier to rehabilitate)
B. Statements made by a party opponent.
1. Any statement by a party, offered against that party. Includes:
a) Adoptive statements
(1) Admission by silence - when faced with an accusation that they
heard and understood, were capable of denying, and a reasonable
person who would have denied it, but the party failed to
response to the accusatory statement.
(a) Adoptive statements exclude questioning by police.
b) Vicarious statement of an opposing party.
(1) Statements by party’s employee/agent are admissible against
their employer if it concerns a matter within the scope of the
employment.
(a) The employee need not be clocked in but their statement
has to fall within the scope of the employee’s job.
(b) Must establish the employee relationship
(2) Statement of party coconspirator - made during or in
furtherance of the conspiracy (not afterwards or to thwart it)
(a) Must establish existence of conspiracy
III. Hearsay within hearsay
A. Defined - one out of court statement being offered for its truth, that repeats or otherwise
contains another out of court statement being offered for its truth.
B. Hearsay within hearsay is admissible if all statements fall within exceptions or
exclusions.
IV. Hearsay Exceptions
A. Rule 804 Exceptions (applied only if declarant is UNAVAILABLE)
1. Unavailable meaning death, sickness, privilege, lack of memory, refusal to
testify, absent from hearing or trial despite reasonable efforts
2. Former testimony
a) Former testimony (of now unavailable declarant) at trial or hearing or
deposition is admissible if a party who had an opposite and similar
motive to develop the testimony by direct, cross, or redirect examination.
(1) Party must have been in similar case
(2) Issue must be essentially the same (can have diff cause of action)
(3) Grand jury trials don’t count. (no duty to examine witnesses)
3. Statements against interest
 a) A statement of a person, now unavailable as a witness, is admissible if it
was against their pecuniary, proprietary, or penal interest when made.
(note: social interest =/= good enough) .
b) Requires:
(1) Declarant unavailable
(2) Reasonable person wouldn’t have said it unless they believed its
truth
(3) Must have been against their interest at that moment
(4) In criminal case, it must be corroborated
4. Dying Declaration
a) In prosecution for a homicide (Exclusively homicide in criminal case) or
a civil action, a dying declaration is a
(1) Statement made by an now unavailable declarant,
(2) While believe death was imminent
(3) And concerns the cause or circumstances of what he thought was
his impending death.
B. Rule 803 Exceptions (Spontaneous utterances)
1. Excited utterances
a) are statements made under the stress or excitement of the event.
(1) Check for continuous statement
2. Present sense IMpression
a) Statements made while an event is taking place or immediately after.
(overlap with excited utterance.
3. Present mental, emotional or physical condition
a) Statements made about how someone is feeling at the time they made the
statement.
(1) Includes FUTURE motives, plans, and intent.
(2) Doesn’t include memories or beliefs of what already happened.
4. Statements made for medical diagnosis:
a) Including past/present condition, causes of the condition, statements
made about another person’s condition, that are pertinent to the
diagnosis or treatment.
C. Records or documents exceptions
1. Business records: This exception applies to business records, kept in the ordinary
course of business, that are a regular practice of the business. The record must
have been made at or near the time of the event in question and the record must
have been made by an employees with personal knowledge with a personal duty
to record.
(1) Outsider statements - hearsay w/in hearsay
b) Business records have to be authenticated by:
(1) Live testimony of the custodian/record keeper/ familiar
employee
(2) Written certification - under oath by the custodian/record keeper.
c) This can be defeated when the records’ source indicates lack of
trustworthiness
d) Absence of record can be used to prove absence of happenings.
2. Public Records;
a) Records showing activities of a public office or agency
b) Matters must have been observed pursuant to a legal duty.
c) Includes findings of fact/opinion from authorized investigations.
d) Police records do not count under the public records exception.
 e) This can be defeated when the records’ source indicates lack of
trustworthiness
f) Lack of record can show something didn’t happen.
3. Recorded recollection
a) Step 1 - can be introduced when a witness’s memory fails them.
b) Step 2 - first use the document to refresh the witness’s memory
c) Step 3 - if the witness still cannot testify, you can read the doc and
substitute it for their memory. (you don’t enter it into evidence)
(1) Req -
(a) you must try to refresh their memory first
(b) The record must be adopted by the witness
(c) The record must have been fresh on their mind when
made
(d) The record must have been accurate when made (witness
must vouch for it).
D. Learned Treatises
1. Can be “read into evidence” (not offered to the jury) when used in conjunction
with direct or cross examination of experts.
a) Can be used to impeach expert’s opinion
b) Can also be used for its truth.
2. The treatise must be established as reliable by an expert or by the judge.
V. Confrontation Clause
A. Criminal defendants have a right to confront witnesses against them.
1. Regardless of hearsay exceptions, the 6th amendment prohibits the use of
testimonial hearsay if the declarant is unavailable and the defendant had no prior
opportunity to cross examine.
a) Testimonial - statements made for the purpose of accusing the defendant.
(1) Statements before grant jury
(2) Statements made to law enforcement
(a) Most police testimonies
(b) Calls for help 911 is not testimonial (unless its after the
event)
(3) Forensic analysis reports - are testimonial if the point is to
accuse the defendant. (the declarant who wrote the report must
testify.
B. WAIVER - defendants waive 6th amendment rights If the def intimidates, murdered, or
harmed a witness to prevent their testimony,

Character Evidence
I. Definition - Character evidence is evidence that refers to a person’s general disposition for a trait.
As a general rule, character evidence is disfavored because it’s too prejudicial, but in certain
cases it can come in.
II. 3 methods of proving character
A. Reputation -
1. testimony as to a person’s general reputation in the community. This is a hearsay
exception
B. Opinion -
1. testimony by a character witness saying their opinion of a person.
C. Specific acts
1. Testimony as to specific deeds of a person.
III. Character in Criminal cases
A. Generally, character evidence is not allowed to show conduct in conformity.
1. EXCEPTION -
a) A defendant can initiate the use of character evidence to prove his own
good character if its relevant to the charge.
(1) Reputation or opinion testimony is allowed (no specific acts)
b) Once the defendant opens the door, the prosecution can rebut the trait
through its own witnesses. (testifying about oneself does NOT open the
door)
(1) Reputation or opinion testimony is allowed
(2) The prosecution can cross examine the def’s witnesses about
specific acts but cannot bring in evidence to prove anything.
(a) Questions about specific acts aren’t allowed to show
conduct in conformity but to impeach a character
witness.
B. Victim’s character to can come in to show conduct in conformity in self defense cases
1. Requirements:
a) Defendant must initiate
b) The trait of victim must be pertinent (difficult standard)
(1) For ex: in self defense, who struck first issue. If the victim is
known to be violent, the defendant’s self defense claim is more
likely to be true.
c) Reputation and opinion evidence only.
2. Prosecution can
a) Offer rebuttal evidence
(1) Offer witnesses testifying by reputation and opinion that the
victim is peaceful
b) Cross examine witnesses with specific acts about the victim’s peaceful
character
c) Rebut with evidence of the defendant's bad character
3. In HOMICIDE CASES when defendant claims self defense.
a) The Prosecution can introduce evidence of defendant’s peacefulness
even if the defendant never introduces character evidence.
(1) Rationale: the victim died so prosecution is deprived of witness
IV. Character in Civil Cases
A. Conduct in conformity is NEVER allowed in civil cases
1. HABIT EVIDENCE - generally allowed. Habit evidence is a person’s regular
response to a specific set of circumstances.
B. Character as an essential element of a case
1. Defamation - when the plaintiff’s character is necessary to establish the truth
defense.
2. Negligent entrustment, retention, and hiring -
3. Child custody
4. These cases can be proved by:
a) Reputation, opinion, evidence of specific acts.
V. Evidence of Independently relevant misconduct can come in not to show conduct in conformity
but to show other matters. (check if the purpose is to show “once a thief, always a thief) MIMIC
1. Motive,
2. Intent
3. Absence of Mistake or accident
4. Identity
 5. Common scheme or plan
B. Mimic applies in CRIMINAL and CIVIL cases.
1. It can only come in about something the defendant contests.
C. How:
1. Record of conviction
2. Other evidence of misconduct (witness or other docs)
3. With criminal cases, must give pretrial notice of using MIMIC evidence
4. Must prove the misconduct actually happened
a) Standard: proof sufficient to support a jury finding - judge rules)
5. Must pass 403 balancing test
VI. Rape Shield rules for sexual assault victims.
A. CRIMINAL - opinion or reputation testimony about sexual predisposition = inadmissible
1. Exceptions:
a) Proof that another person was source of injury (victim’s specific sexual
behavior can come in)
b) If defendant asserts defense of consent (specific instances of injury with
defendant can come in)
c) Evidence can be allowed if excluding it will violate constitutional rights.
B. CIVIL - court may admit evidence of sexual predisposition or behavior if the probative
value outweight the dnager of harm to any victim and of unfair prejudice.
C. Defendant’s other acts of sexual misconduct or child molestation
1. Applies to defendant in criminal case or any party in a civil case
a) In sexual assault or child molestation cases, Court may admit any other
specific sexual misconduct of def for any relevant purpose.
(1) Including a propensity to commit sex crimes.
b) In this situation, general rules may go out of the window.
(1) Must supply pretrial notice
(2) Has same burden of proof as MIMIC evidence.

Impeachment
I. Impeaching evidence is evidence offered to attack the credibility of a witness.
A. Who:
1. Any party can impeach any witness (including hearsay declarants), regardless of
who calls the witness.
B. How:
1. Impeachment can happen by direct examination and also by extrinsic evidence.
II. Witnesses can be impeached by:
A. Prior inconsistent statement - any witness can be impeached for prior inconsistent
statements, (though the statements cannot automatically be brought in for its truth).
1. Extrinsic evidence: However, in order to bring in extrinsic evidence to show a
prior inconsistent statement, the statement must be a noncollateral matter, and
there must be a proper foundation.
a) Noncollateral matter means something that is meaningful and relevant
to the case.
b) Foundation - means that the witness must have the opportunity to
confirm or deny.
c) Additionally, the opposing party must still have the opportunity to
examine the witness. UNLESS
(1) The prior inconsistent statement is a “statement by party
opponent” (either vicarious or personal)
 (2) Justice so requires.
(3) The person being impeached is a hearsay declarant who is out of
court.
B. Bias and Interest - evidence that a witness had a motive or interest in the outcome or that
the witness was biased because of a certain relationship.
1. Extrinsic evidence : is usually permitted but it requires that there is proper
foundation.
a) Extrinsic evidence being allowed to show bias/interest is up to the
discretion of the judge but frequently permitted
C. Sensory Deficiencies - evidence that a witness has inability to observe, remember, or
relate something accurately.
1. Impeachment for sensory deficiencies can be through direct questioning or
extrinsic evidence, this is also up to the judge’s discretion.
D. Contradiction - impeachment based on contradiction is the proving of a fact that
contradicts what the witness said on the stand.
1. EXTRINSIC EVIDENCE: While direct examination is permitted to show
contradiction, a party can only bring in extrinsic evidence if it’s a noncollateral
matter.
E. Bad Character for Truthfulness. 3 methods:
1. reputation/opinion evidence of untruthfulness.
a) There is no restriction on extrinsic evidence,
b) no foundation or opportunity to deny required.
2. Impeachment by prior criminal convictions can only come in two instances:
a) For a crime or misdemeanor or felony that involves dishonesty or a
false statement.
(1) Perjury, forgery, fraud, embezzlement
(2) Judge has no discretion to exclude these
b) For a felony conviction
(1) The judge has discretion to exclude.
(a) If the def is of a criminal case, the judge is less likely to
allow it to come in.
(b) The standard; the probative value must outweigh the
prejudicial effect.
c) Time limits of 10 years for the above 2 crimes. Can be brought in even
if the appeal is pending (you need to tell the jury)
d) For these, no restrictions on extrinsic evidence, no need to confront the
witness.
3. Prior Bad Acts
a) Witnesses can be impeached on prior bad acts that are probative of
truthfulness.
(1) Look for lying, dishonesty, bad checks, plagiarizing thesis, lying
on job application.
(2) First, the party must have a good faith basis for believing that the
witness did it,
(3) The judge has discretion to allow it or stop it.
(4) EXTRINSIC EVIDENCE is never allowed.
(a) You cannot ask if they were arrested, punished, fired
for the act because that’s extrinsic evidence.
(b) You can only ask if they did the act itself.
III. Rehabilitation
A. Bolstering - strengthening a witness’ credibility before they’ve been attached is not
permitted prior to impeachment.
B. Witnesses can be rehabilitated in 2 ways:
1. Allowing the impeached witness to clarify or explain
2. Show the witness’s good character for truthfulness.
a) Must be related to the same reason they were impeached:
(1) reputation /opinion of untruthfulness or prior criminal
convictions, etc.
3. Introducing a prior consistent statement
a) This isn’t allowed for bolstering, but it is allowed for actual rehabilitation
to prove:
(1) Witness said the same thing even before the bias came in
(2) You can also say, the witness doesn’t have a bad memory
because he consistently said this…