EVIDENCE

Relevance
Logical Relevance
Logical Relevance → evidence w/ any tendency to make a material fact more or less probable
 When it might be an issue → when the evidence involves some other:
o Time
o Event
o Person
than one involved directly in the litigation

Situations where evidence involving some OTHER time/event/person IS admissible:

(1) Causation → to prove cause and effect (e.g., others that got sick from the same food)
(2) Prior accidents or claims
o Involving Π → generally not admissible, UNLESS
(a) To show common plan/scheme of fraud (i.e., prior claims were all fraudulent)
(b) Where prior accidents are relevant to Π’s damages (i.e., something else caused
Π’s injury)
o Involving Δ → generally admissible re: similar circumstances to show notice or
knowledge (that there was danger)
(3) Intent or state of mind at issue → infer intent from prior conduct (e.g., pattern of discrimination)
(4) Rebuttal evidence → to rebut defense of impossibility (e.g., Δ claims it’s impossible for mouse to
be in cola)
(5) Comparable sales to establish value → sale price of other chattel/real property admissible if:
(i) Other chattel are of same general description
(ii) Made @ same time period
(iii) Sales took place in same general geographic area
(6) Habit evidence → relevant to show that a person acted in the same way on this occasion
o Definition → specificity and recurrence (“always” “instinctively” “invariably”
“automatically”
(7) Business routine → routine practice of organization (just like habit)
(8) Industrial trade or custom → looking at what others in the same industry have done to infer
what party did or should have done
o NON-conclusive evidence of standard of care (e.g.., all others could have been too
careful or not careful enough)

Discretionary/Policy-Based Relevance
FRE 403 → even relevant evidence may be excluded if its probative value is substantially outweighed by
the danger of
 Unfair prejudice

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  Confusion of issues
 Misleading the jury
 Undue delay
 Waste of time
 Cumulative evidence

Unfair Surprise → note that this is NOT on the list!!! Evidence will NOT be excluded
due to unfair surprise

Areas of Importance:
(1) Liability Insurance → not admissible to show that person acted negligently/wrongfully or to
show ability to pay (not casualty insurance!)
o Exceptions: admissible to
 Show ownership or control (when in dispute)
 Impeach credibility thru interest/bias (e.g., W works for Δ’s ins. co.)
(2) Subsequent Remedial Measures → not admissible to show negligence, culpable conduct, defect,
or need for warning
o Exception: admissible to
 Show ownership or control (when in dispute)
 Impeachment (e.g., Δ claims precautionary measures weren’t feasible)
o Measures include: checking into rehab; firing employee, etc.
(3) Settlements
o Inadmissible:
Made in the course of
 Admissions of fact settlement…IF there is (1) claim,
 Admissions of liability (2) dispute as to liability/damages
 Admissions of damage
o Not admissible to prove (i) fault, (ii) liability, or (iii) amount of damage
o “settlements” includes → actual compromises, offers to compromise, offers to plead
guilty, withdrawals of guilty pleas, pleas of nolo contendre
o Exceptions:
(i) MUST be a claim (e.g., situation where Δ approaches Π and says “let’s settle”
before Π even sues”) → litigation must be threatened (e.g., lawyers involved)
(ii) MUST be a dispute as to liability/damages!!
(4) Offer to Pay Medical Expenses (“humanitarian”)
o BUT admissions of fact accompanying this offer ARE admissible!!

Character Evidence
General Rule → character evidence NOT admissible to prove conduct

(A) CIVIL CASES → only admissible when character is directly in issue

o Examples → defamation actions, negligent entrustment, wrongful death (to prove
damages)
o Methods → opinion, reputation, specific instances

(B) CRIMINAL CASES

o Rule #1: Prosecution can’t lead w/ character evidence → prosecution cannot lead w/

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 character evidence in case-in-chief

o Rule #2: Δ can open the door → accused is permitted to offer good character evidence
for pertinent trait…REPUTATION or OPINION
 NOTE → if Δ takes stand but no character evidence offered, this does not open
the door for prosecution to bring in character evidence (but prior convictions re:
felonies or crimes of dishonesty may come in to impeach for truthfulness if not
more than 10 yrs old)

o Rule #3: Prosecution may rebut → if accused introduces character evidence,

prosecution may:
 Cross w/ SPECIFIC INSTANCES → “have you heard” or “did you know”
 But NO extrinsic evidence re: specific instances
 May call REPUTATION & OPINION Ws

o Rule #4: Self-Defense, Character of Victim → Δ may claim that victim was 1st
aggressor by showing victim’s character for violence thru reputation/opinion
 Prosecutor can then bring reputation/opinion to show:
 Peacefulness of victim
 Violence of Δ
 Neither Δ nor prosecution can use specific acts to prove character here → BUT Δ
could have someone testify to victim’s specific acts to show Δ’s state of mind
(e.g., to show that Δ feared reasonable harm due to victim’s past violent acts)

(C) SEXUAL ASSAULT CASES

o Accusation of sexual assault or child molestation → civil or criminal
 Δ’s prior acts of sexual assault or child molestation CAN be shown
 Doesn’t matter whether or not Δ opens door
 Specific ACTS → charges or convictions not required (e.g., “Δ did same
to me and I never said anything until now”)
o Victim’s Past Sexual History/Disposition
 No opinion/reputation evidence
 Specific instances ONLY:
(i) To show someone else was source of semen, injury, etc.
(ii) To show consent
(iii) If exclusion would violate Δ’s 6A rights

(D) PRIOR BAD ACTS (not necessarily convictions) → civil & criminal
o Must have SUFFICIENT EVIDENCE TO SUPPORT JURY FINDING that Δ did it
 Don’t need clear & convincing evidence
o Admissible only to prove MIMIC KOP:
 M—Motive
 I—Intent
 M—Mistake (or absence of) Subject to 403 analysis
 I—Identity (modus operandi)
 C—Common plan or scheme
 K—Knowledge
 O—Opportunity
 P—Preparation
o NO EXTRINSIC EVIDENCE ALLOWED → must take W’s answer

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 Writings
Authentication
Authentication Requirement → writing is not admissible unless it’s been authenticated, testimonial
foundation is required
 Quantum of Proof → foundation must be “sufficient evidence to justify a jury finding of
genuineness”
o JURY makes determination

METHODS OF AUTHENTICATION
(1) Admission → party/witness admits it’s his signature
(2) Eyewitness Testimony → someone who watched party signs testifies to it
(3) Handwriting Proof → 3 ways
(a) lay witness → anyone familiar w/ signature can testify (e.g., seen it before and
recognize)
 Note → lay witness CANNOT compare signature w/ known sample and
CANNOT become familiar w/ signature purely for litigation purposes
 But fact that familiarity happened after arrest is ok → just as long as it
wasn’t done for trial purpose (same w/ voice)
(b) expert → compare signature w/ known sample
(c) jury comparison → same as expert, compare signature w/ known sample
(4) Circumstantial Evidence
(a) Ancient Document Rule → (i) 20+ yrs old; (ii) regular on its face (no obvious
alterations); and (iii) found in place of natural custody
(b) Solicited Reply Doctrine → if document came in response to prior
communication (unlikely for someone to intercept and forge a response)
(5) Chain of Custody → for fungible items, must show chain of custody
(6) Voice Recognition → self-identification of speaker is not enough; also need, e.g.:
 Speaker answered at number listed in directory, or
 Radio transmission came at time of crash and contained corroborating details

SELF-AUTHENTICATING DOCUMENTS
(1) Certified copies of public or business records
(2) Official publications (e.g., pamphlets)
(3) Newspapers and periodicals
(4) Trade inscriptions or labels (e.g., label on can of peas)
(5) Acknowledged docs (e.g., attached affidavit stating signature is genuine)
(6) Signatures on certain commercial docs (per U.C.C. rules)

AUTHENTICATION OF PHOTOS
o Any W can testify that it’s a fair and accurate representation of scene/person at the
time of the incident
o Photo as witness → authentication requires showing (i) that camera was operating
properly, (ii) time that it was operating, and (iii) that it was handled properly up until
time of court

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Best Evidence Rule (Original Document Rule)
Best Evidence Rule
 Party seeking to prove the content of a writing (“writing” = docs, photos, x-rays, recordings)
o Applies ONLY when party testifying does not have knowledge INDEPENDENT of the
writing!!! (e.g., does NOT apply when W w/ personal knowledge is testifying re:
defamatory statement made to require tape of broadcast)
 Usually comes into play on exam re: contract, deed, will or trust
 Must either:
(1) produce the original document, or
(2) account for the original’s absence

Applies:
(1) To legally-operative documents → e.g., deeds, divorce decree, wills, written Ks
(2) When W’s sole knowledge comes from the document
Does NOT apply:
(1) When witness has personal knowledge of facts independent of the writing
(2) Collateral documents (e.g., expert says he’s licensed, no need to produce license)

Situations Where Something OTHER than the Original May be Produced:

(1) Public Records → certified copy is ok
(2) Voluminous Docs → can produce summaries, charts, etc., so long as:
o Originals would be admissible if offered, and
o Originals are made accessible to opposing parties
(3) Duplicates
o “duplicate” → anything that accurately reproduces the original (no handwritten copies)
o Duplicates are admissible w/out explanation of original’s absence, UNLESS:
(i) Genuine issue raised as to original’s authenticity (e.g., claim there was never a K)
(ii) It would be unfair to admit duplicate in lieu of original

Witnesses
Competency
4 Requirements:
(1) Perception
(2) Memory
(3) Communication
(4) Sincerity (oath or affirmation) → appreciation for obligation to tell truth
o If translator—oath to make true translation

Common Law DQs Abandoned:

 Lack of religious belief
 Infancy

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  Mental incompetency
 Prior convictions
 Interest in case

Dead Man Acts → ½ of states still have these, MIGHT apply in federal court sometimes (see below)
 Elements (so many to satisfy that it’s unlikely statute will apply on exam)
(1) W must be “interested” → have a direct stake
(2) W must be testifying for his own interest
(3) W must be testifying against decedent (i.e., decedent or estate is a party to case)
(4) Can’t testify re: transactions/communications w/ decedent (w/ anyone else is ok)
(5) Only civil cases
(6) There can be a waiver (e.g., if decedent’s testimony is brought before court in deposition)
 Won’t be correct answer on exam unless question tells you there is such a statute

Jurors → jurors are incompetent to testify:

(1) Before the jury on which they are sitting, and
(2) In postverdict proceedings as to certain matters occurring during jury deliberations

Form of Examination of Witnesses

Objectionable Questions
 Questions that call for a narrative
 Misleading questions
 Compound questions
 Argumentative questions → assume as true something which is still in dispute

Leading Questions → permitted in certain situations

(1) Cross-examination of opponent’s witness
(2) Preliminary matters on direct exam of own witness
(3) When W is handicapped in some way (e.g., age, loss of memory, mental disability)
(4) Hostile W, or W w/in opponent’s control

Witness Response → Unresponsive

Unresponsive → when W volunteers info that bears no connection to the question posed and is totally
unresponsive to that question or any other question asked
 Subject to MOTION TO STRIKE by EXAMINING COUNSEL (not opposing counsel)
 So examining counsel can let it stand if it’s helpful

Objections
Timely
 Objection to Question → must be made if question is objectionable, BEFORE witness answers
 Motion to Strike → appropriate when the question was not objectionable, but the ANSWER was

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Use of Writings
Two Situations: (1) Refreshing Recollection, and (2) Recorded Recollection

(1) Refreshing recollection

o When W’s memory fails, ANYTHING can be used to jog memory, even someone else’s
statement
o Document will NOT be admitted into evidence
o But opposing counsel can see, use or request admission of anything you use to refresh
(2) Recorded recollection
o Foundation:
(1) W must have, at one time, had personal knowledge of contents of doc
(2) Writing must have been made or adopted (at time made) by W
(3) Writing must have been timely made at time when W’s memory was fresh
(4) Writing must be accurate/reliable—ask if W thought it accurate then and now
(5) Necessity—W is unable to remember part/all of details now
o Writing can be read into evidence if foundational requirements met—does NOT go to
jury
o Falls w/in hearsay exception

Opinion Testimony & Expert Witnesses

Lay Witness → opinions are admissible if
(1) Rationally based on perception of W (personal knowledge)
(2) Helpful to trier of fact (e.g., opinion that makes legal conclusion or does no more than state who
should win is not helpful to jury)

Expert Opinion → must be offered when the subject is scientific, technical, or specialized
4 REQUIREMENTS:
(1) Appropriate subject matter
o Opinion must assist the trier of fact → two requirements
(a) Reliability → methodology must be reliable
 Note → most jurisdictions have concluded Proponent must convince
that the probative value of polygraph tests judge by preponderance
is slight due to the significant rate of error of the evidence that these
two conditions have been
(b) Relevance → opinion must be relevant (“fit” case fact) met.
Note → NO prohibition on opinion which embraces the
ultimate issue in the case!!!
(2) Qualifications
o Can be qualified by experience
(3) Expert must possess reasonable certainty or probability re: the opinion
o Opinion must be in a form that alerts judge that this is more than mere guesswork
(4) Proper factual basis → 3 possibilities
(a) Facts w/in expert’s knowledge (e.g., did an examination)
(b) Hypothetical questions (facts in hypo must be based on evidence in case)

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 (c) Facts that wouldn’t even be admissible in the case as long as they are of the type that
experts in the field would reasonably rely upon in making out-of-court professional
decisions
NOTE → examining counsel may also ask the expert for an opinion and then immediately
allow opponent to cross-examine, w/out any disclosure of the data underling the opinion
(unless trial court requires advance disclosure)

Learned Treatises:
 Learned treatise is admissible if established as reliable by:
(a) Reliance by your expert on direct examination
(b) Admission on cross by opposing expert
(c) Testimony of any expert
(d) Judicial notice
 Text of treatise comes in FOR ITS TRUTH (hearsay exception)
 Treatise is admitted by being read to the jury → book doesn’t go into the jury room

Cross-Examination → Credibility & Impeachment

Cross-Examination
 Parties have an absolute right to cross a W who testifies live (otherwise, direct can be stricken)
 Scope of direct → cross should not exceed the scope of direct
o Can cross on any issues that were raised, impliedly or expressly, on direct
 Collateral matters doctrine → can try to impeach W based on collateral matters, but CANNOT
bring in extrinsic evidence to contradict W on collateral matters (must take W’s answer)
o “collateral matter” → one which is relevant to showing the contradiction only, no
relevance to any material issue
o Ask → would the evidence be admissible absent the contrary assertion by the witness?

Judicial Discretion
 Judge may exercise reasonable control over the examination of Ws to:
o Aid effective ascertainment of truth
o Avoid wasting time
o Protect from harassment or undue embarrassment of W
 Cut off cross → judge can cut off cross when he determines there’s been an adequate opportunity
for meaningful cross
o E.g., three day cross after ½ hour direct is excessive → even if it’s a criminal trial

Accrediting/Impeaching Your Own Witness

Bolstering → can’t bolster your own W until there has first been an appropriate impeachment
 E.g., can’t call someone to testify to your W’s reputation for truth if no impeachment
 Exception → prior statement OF IDENTIFICATION
o Prior out-of-court statement of identification that was made by W who testifies and is
crossed at trial falls w/in a hearsay exception and can come in for truth
 E.g., W (or cop who was there) can testify that W formerly picked Δ out of a
line-up

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 o Statement doesn’t even have to be consistent → admissible even if W doesn’t recognize
Δ at trial (e.g., cop could testify that W ID’d Δ)
o But W MUST testify at the trial! → statement of prior ID must be by a witness

Impeachment → a party MAY impeach his own witness; credibility may be attacked by any party
 Judge might find that the witness is now a hostile witness (distinction from when your witness
just can’t remember)

Impeaching Opponent’s Witness

Five Available Impeachment Techniques → REMEMBER these are to IMPEACH!!!
Note → extrinsic evidence admissible for all but #4
(1) Prior Inconsistent Statements
o Generally admissible only to impeach, not for truth
 If under oath, at trial/hearing/proceeding/deposition (including grand jury!!!)
→ statement admissible for truth
o EXTRINSIC EVIDENCE → admissible to prove PIS
o FOUNDATION → W must be afforded the opportunity to explain/deny the PIS (doesn’t
matter when W gets to explain, could be after

Note → admission by party opponent

 PIS of party can come in for truth if inconsistent w/ current position at
trial, no foundation needed

(2) Showing bias, interest, motive to fabricate/exaggerate

o EXTRINSIC EVIDENCE → admissible (bias, interest, etc. is never collateral)
 But note → rebuttal evidence must be relevant to the issue of bias, interest, etc.
(NOT just general reputation for truthfulness)
o FOUNDATION → must by laid by inquiry on cross of target W, give W chance to
explain before bringing in extrinsic evidence
 E.g., intro evidence that expert is getting paid if first ask expert on cross about it

(3) Prior criminal conviction → can impeach with:

(a) ANY crime if it involves deceit or false statement
 Judge has no discretion to exclude these, no FRE 403 analysis
(b) A felony
 Judge has discretion to exclude under FRE 403
o EXTRINSIC EVIDENCE → of RECORD OF CONVICTION, admissible
o FOUNDATION → unnecessary, W doesn’t get chance to explain
o Remoteness of conviction → 10 yrs from later of date of conviction or release
Character
(4) Specific acts to show untruthfulness may be inquired into on cross attacks
o Acts do NOT have to have resulted in convictions
o Ask “did you do this” → not “were you arrested” or “were you indicted”
o Good faith requirement → must have reasonable basis for believing W did it
o Act must involve deceit or lying
o EXTRINSIC EVIDENCE → not admissible

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 (5) Bad reputation/opinion testimony
o EXTRINSIC EVIDENCE → admissible
o Can’t ask about specific acts though → because this is extrinsic evidence

Post-Impeachment Rehabilitation
If there has been a CHARACTER attack (#3-5 above) → can rehabilitate w/ reputation or opinion
 CANNOT do this if the attack was through prior inconsistent statements or showing of bias,
motive, etc. (#1-2 above)

If express/implied charge of recent fabrication or improper influence/motive → may use prior

consistent statements to rehabilitate
 Statement must have been before the alleged improper motive or influence arose
 Admissible for TRUTH (hearsay exception)

Privileges
Attorney-Client Privilege

Rule:
(1) Confidential communications
o No privilege for physical evidence or preexisting docs
o No privilege for statement shouted in crowded elevator
(2) Between attorney and client (or representative) OR one who is employed to assist in the
rendition of legal services
o E.g., doc who examines client at attorney’s request to assess extent of injury
(3) Made during a professional legal consultation
o Intake interview included → as long as there is an intent by client to establish
professional legal relationship
o Predominantly legal advice must be sought
(4) Are privileged from disclosure unless waived by client or deceased client’s representative
o Privilege survives death UNLESS it’s a communication relevant to an issue between
parties, all of whom claim through the same deceased client (testate, intestate sucession
or inter vivos transaction)

Attorney may invoke privilege on client’s behalf!!

Exceptions → Privilege does NOT apply re:

(1) Future crime or fraud
o No privilege allowed to facilitate future crime/fraud
(2) Waiver
o When content of the communication is put at issue → e.g., if client says “I just followed
my lawyer’s advice”
o When communication is in front of a 3d party who is NOT necessary for the
representation (e.g., parent of minor child is necessary so no waiver)

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 (3) Disputes between parties as to the professional relationship
o E.g., actions for fees or malpractice
(4) Joint client exception
o Where 2+ clients communicate w/ attorney re: matter of common interest → no privilege
between them (so if they eventually sue each other, can bring it all in)
o 3d parties → BUT the privilege still exists re: outside parties

Physician/Psychiatrist-Patient Privilege
Rule → PATIENT (not doc) has privilege against disclosure of confidential info acquired by doc
(including psychiatrist) in professional relationship entered into for purpose of obtaining treatment
 Patient must be seeking treatment → i.e., no privilege for statement made to doc who is an
expert hired to give testimony or to doc who is examining for insurance purposes
 Info acquired must be confidential and necessary to facilitate professional treatment → if
patient volunteers something that has nothing to do w/ treatment (e.g., statement re: taxes), not
covered
 Reasonable belief → patient must have reasonable belief that it’s really a physician
o If patient knows doc is not REALLY a doc (e.g., license revoked) → NO PRIVILEGE!!!
 Privilege is patient’s → so even if doc has disclosed the info before in violation of the privilege,
patient can still claim it

Exceptions
(1) Future crime or fraud
o No privilege allowed to facilitate future crime/fraud
(2) Waiver → when content of the communication is put at issue
o E.g., if patient sues or defends by putting physical or mental condition at issue (personal
injury claim)
(3) Disputes between parties as to the professional relationship
o E.g., actions for fees or malpractice

NOTE → SC has never actually validated this privilege for normal doctors, only for psychiatrists and
psychotherapists
 SO IN FEDERAL COURT → NO SUCH THING AS DOCTOR/PATIENT PRIVILEGE!!!

Husband/Wife Spousal Privileges (2)

(1) Spousal Immunity Privilege → one spouse can’t be forced to give adverse testimony against the
other in a criminal case
(a) Valid marriage at trial → there must be a valid marriage at the time of trial
(b) All testimony protected → any facts, events, communications, including testimony
about pre-marriage facts
(c) Witness spouse holds the privilege → NOT the party spouse, so witness can choose to
waive and testify against spouse
(d) Criminal cases only → not civil

(2) Confidential Marital Communications Privilege → ♂ or ♀ shall not be required or, w/out
consent of the other, shall not be allowed to disclose confidential communication made by one to
the other during marriage

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 (a) Valid marriage at time of communication → even if ♂ and ♀ are divorced by time of
trial, privilege still exists
(b) Protects only confidences → not all testimony
(c) Either spouse holds privilege → so party spouse can keep other from testifying re:
confidences (but can’t keep her off the stand completely)
 Witness spouse can’t be forced to testify (both spouses hold privilege)
(d) Criminal AND civil cases

Waiver → individual spouse waives the privilege IF:

o Makes the communication made in the presence of a stranger, OR
o Spouse reveals the communication to others
Note → each action waives the privilege to him/herself (other can still assert)

NOTE → neither privilege applies in an intra-family case (e.g., assault of spouse, child abuse, incest, etc.)
 Joint participant exception → when ♂ and ♀ are engaged in a crime/fraud, the confidential
marital communications privilege is inapplicable to protect against statement made to aid the
commission of or plan the crime/fraud

Applicability of STATE Law in FEDERAL Court

Generally, Federal Law Applies → re: matters of evidence in federal court, federal law generally
applies
 3 Exceptions → where state evidence law applies IF state substantive law applies (e.g.,
diversity jurisdiction case)
(1) Presumptions & Burdens of Proof
(2) Competency of Witnesses → this is why a state’s dead man’s statute might apply
(3) Privileges

Federal Privilege Law in Federal Question or Federal Criminal Cases → GOVERNED BY

FEDERAL COMMON LAW, not federal statutory law
 FRE says that privileges are determined by common law
 Wrong answer → will say that “there is no such thing as federal common law”

Hearsay
Hearsay
Definition → out-of-court statement by a person offered to prove the truth of the matter asserted
 Rationale for exclusion of hearsay → opponent lacks opportunity to cross-exam, statement
lacks circumstantial guarantee of truthfulness (CGT)

Specific Non-Hearsay Situations

(1) Verbal acts or legally operative facts
o Where words spoken/written have relevant legal significance → by speaking the words,
you’ve committed a legal act

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 o In other words, doesn’t matter whether or not the words were true → just matters,
legally, that they were spoken
o E.g., words of offer, acceptance, defamation, conspiracy, bribery, cancellation,
misrepresentation, waiver, permission, GIVING A GIFT
(2) Statement offered to show its effect on the person who heard/read it Not offered to
o E.g., to show notice, good faith, reason for action prove TMA
(3) Statement offered as circumstantial evidence of declarant’s state of mind

Witness’s OWN prior statements → are STILL hearsay if offered to prove TMA!!!
 Exceptions:
(a) Prior, inconsistent statements given under oath, at trial/hearing/proceeding/deposition
(b) Prior consistent statements to rebut charge of recent fabrication or improper motive
(c) Prior statement of ID made by W

Hearsay Exclusions & Exceptions

EXCLUSIONS:

(1) Admission of Party Opponent

o Statement must be inconsistent w/ party’s present position at trial
 Doesn’t necessarily have to be against party’s interest when it was made
o Need NOT be based upon personal knowledge (e.g., “It must have been my fault”)
o Can be in the form of a legal conclusion (e.g., “I was negligent”)
o Guilty plea of party-opponent qualifies as an admission
o Adoption of another’s statement as own → if party opponent (or agent) adopts another’s
statement as their own, it can be admitted (regardless if hearsay)

SILENCE → can be deemed an admission in a situation where a reasonable person would

have responded to an accusation

(2) Vicarious Admission by Party’s Agent/Servant

o Statement made concerning scope of agency made during existence of the relationship
o E.g., post-accident admission of employee, post-accident REPORT written by employee

EXCEPTIONS: (unavailability required for #1-3)

(1) Former Testimony under Oath

Two Requirements:
(a) Meaningful Opportunity for Cross in Prior Proceeding when W gave live testimony
(i) Need same issue and motive to cross
 Charges don’t have to be exactly the same, just similar
 E.g., testimony of declarant at grand jury proceeding does NOT qualify
because party gets no chance to cross
 DEPOSITIONS DO COUNT as a “prior proceeding”
- Grand jury testimony does NOT count (no opportunity for cross)
 Does not need to be in court
(ii) Identity of party

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  Criminal case → same party
 Civil case → same party or party in privity (e.g., successor in interest)
(b) Unavailability of Declarant
 Due to → privilege, refusal to testify, failure of memory, death, illness, etc.

(2) Statement Against Interest

o Statement of declarant made against pecuniary, proprietary or penal interest at time
statement was made
Requirements:
(a) Statement against interest at time it was made
(b) Personal knowledge requirement
(c) Unavailability of declarant required

LIMITATION → if the statement exposes declarant to criminal liability and is offered to

exculpate the accused, the statement is not admissible unless there are corroborating
circumstances clearly indicating the trustworthiness of the statement (e.g., 3d party
confessions)
 E.g., wrongful death action → Δ wants to intro statement by decedent (“It was
my fault”); this is admissible as a statement against interest; NOT an admission
since decedent is NOT a party in a wrongful death action (next of kin is)

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(3) Dying Declaration

o Statement made under sense of impending death
Requirements:
(a) State of Mind → sense of impending death
(b) Unavailability of declarant → although he need not actually die
(c) Homicide or civil case only
 NOT attempted murder!
(d) Must concern cause or circumstances of impending death
 Not mere opinion of who might have done it or had motive
 MORE THAN MERE SUSPICION—need actual knowledge

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(4) Spontaneous Statements → unavailability NOT required

(rationale: out-of-court statement is as reliable as in-court testimony)

(a) Present State of Mind

 Must be made under circumstances of apparent sincerity
 When existing state of mind is in issue (e.g., insanity defense)
(b) Present State of Mind—Statement of Existing Intent to Prove Intended Act
 E.g., “I gotta run—I’m headed to X’s house”
(c) Excited Utterance
i—Startling event (consider nature of event; witnessing an accident qualifies)
ii—Statement made under stress of excitement → time lag ok, but excitement can’t

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 wear off (e.g., declarant was in coma and made statement upon waking)
iii—Statement concerns facts of the startling event
note → look for language of excitement (“My God!” “Good
Heavens”…shouted screamed, etc.)
(d) Present Sense Impression
 Statement decribing/explaining event/condition while declarant was perceiving
the event/condition or immediately thereafter
 NO TIME LAPSE (unlike excited utterance)
 No startling event or excitement necessary
(e) Declaration of Present Physical Condition
 Statements of symptoms being experienced, including the existence of pain are
admissible even if not made to doctor (e.g., “This hurts!” or “My left arm is
numb and I have chest pains. I think I’m having a heart attack!”
 This is basically just a specific kind of present sense impression
 Admissible to prove “extent of injury” or that declarant was in pain
(f) Declaration of Past Physical Condition
i—Statement made for purposes of diagnosis or treatment
ii—Describing medical history or past symptoms or general character of cause/source
of symptoms
iii—Made to medical personnel
iv—Pertinent either to diagnosis or treatment, even if diagnosis is only for purpose of
giving testimony!!!

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(5) Business Records

i—Records made at or near time
ii—By person with personal knowledge
iii—Made/kept in regular course of business (i.e., NOT for litigation purpose)
iv—Unless source/circumstances of preparation indicate lack of trustworthiness
v—Entry must be “germane” to the business (e.g., statement of guilt made to hospital
employee and recorded in hospital record is NOT germane to purpose for such record;
note that Nurse COULD testify live re: this statement as admission)
vi—statement in business record must be something that record maker would have been
able to testify to if called to the stand

rationale → employees have a business duty to be accurate, incentive not to get fired (no
incentive to be accurate if not re: germane issue)

function → allows the record to substitute for in-court testimony of employee

multiple hearsay problem → what if business record contains a statement made by someone
else outside the business?
 Can come in if (a) it’s germane to purpose for record and (b) person making the
record could have testified live re: what was said (i.e., it falls w/in another
hearsay exception)
 i.e., hearsay statement in police report does not fall w/in business record
because maker of statement was not under business duty to convey info
to police

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 (6) Public Records
o Records, statements, data compilations of public offices/agencies are admissible IF they
set forth:
(i) The activities of the office/agency
(ii) Matters observed pursuant to duty imposed by law
 EXCEPT for police observations in criminal cases
~OR~

(iii) Factual findings resulting from investigation made pursuant to authority granted
by law; allowed in
 Civil actions
 Proceedings against govt. in criminal cases
o Source of info must not indicate lack of trustworthiness

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(7) Judgments of felony convictions

o Admissible on both CRIMINAL and CIVIL actions to prove ANY FACT ESSENTIAL
TO THE JUDGMENT
o Felonies only → regardless of whether they come from guilty plea or trial
o E.g., Δ’s conviction can be admitted in later civil case if whether or not Δ did it is at issue

Impeachment of Hearsay Declarant

Rule → when a hearsay statement has been admitted, the credibility of the declarant MAY be attacked by
ANY evidence which would be admissible for that purpose if declarant had testified in court!

 i.e., you can impeach the credibility of a hearsay declarant, even if he’s not there!
 Note → if impeachment is done through prior inconsistent statement, there is obviously no
foundational requirement that declarant be given a chance to explain the statement (since he’s not
there to testify)

Mixing Hearsay and Writings

Fave fact pattern → where victim is found shot dead, next to him is Dictaphone, replay of recording
shows victim’s last statement was “Δ, it’s you”
 Cop who listened to the statement could testify to it as a present sense impression
 But best evidence rule applies → absence of recording would have to be explained, otherwise
recording would have to be produced

Preliminary Facts

Determined by COURT → whether offered evidence is competent to be admitted at all, BOTH parties
may present evidence

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  Preliminary questions concerning:
o Witness (expert) qualifications
o Unavailability of witness
o Dying declaration → sense of impending death
o Applicability of hearsay exception
o Whether a document is “unavailable” under best evidence rule
o Existence of privilege
o Admissibility of evidence

 NOT bound by FRE in this determination

o i.e., hearsay, unauthenticated docs, etc. can be considered
 Hearing of jury → judge has discretion re: whether or not decision is made in hearing of a jury,
re: something technical or innocuous
o Exception → situations where it would prejudice the jury (e.g., hearing testimony of a
witness that, if ultimately excluded, will taint their verdict)

Determined by JURY → whether offered evidence is relevant to issues in the case

 Preliminary questions concerning:
o Matters of conditional relevance
o Authenticity of documents
o Whether agency relationship exists

Presumptions
Rebuttable Presumption → statutory presumption (will be mentioned in question) that if certain things
are shown, a particular finding must follow
 Jury MUST find in accordance w/ the presumption if no evidence is introduced to rebut
 Burden of persuasion → burden of party to persuade the jury to decide issue in its favor
o If evidence is equally balanced after all proof is in → party w/ burden of persuasion loses
o Does NOT shift from party to party—Π always has it
 Burden of going forward w/ the evidence → burden of producing sufficient evidence to create a
fact question of the issue involved
o If Π makes prima facie case, burden shifts to Δ
o If party raises a rebuttable presumption—burden shifts to other party

NOTE → presumptions are PROCEDURAL but they affect the SUBSTANTIVE outcome of the case
 Thus, in federal court, should apply state-law presumptions if they would affect the outcome

Fifth Amendment
5A Right against Self-Incrimination
Fifth Amendment → provides that a witness cannot be compelled to testify against himself
 Testimony only → i.e., not to showing of body parts or production of documents

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  W may refuse to answer ANY question the answer to which might incriminate him (ties him to
crime or would lead to evidence tying him to the crime)
 Privilege can be claimed at any proceeding → CIVIL or CRIMINAL
 NO hearing held by judge to determine if fear of self-incrimination is reasonable
 Standard → judge believes there is some REASONABLE POSSIBILITY that W will
incriminate self

Sixth Amendment
6A Right of Confrontation
Crawford v. Washington → out-of-court statements, even if w/in a hearsay exception, will NOT be
admitted if:

(1) The out-of-court statement is offered for TMA against accused in CRIMINAL case
(2) Declarant is UNAVAILABLE at trial
(3) Out-of-court statement is TESTIMONIAL
 “testimonial” → statement that declarant anticipates will be used in prosecution
or investigation of crime (e.g., statement to police, statement at formal
proceeding, forensic lab reports, etc.)
 911 phone calls → SC has ruled that statements made to 911 operators are NOT
testimonial, since they are not made during course of investigation, but are
simply to enable police assistance re: an emergency
(4) Accused had no opportunity to cross the statement when it was made
UNLESS…
(5) Prosecution demonstrates that Δ has forfeited 6A objection by wrongdoing that
prevented declarant from being present at trial

NOTE → problem when two Δs are tried together and one has given confession implicating the other
 Confrontation problem → Δs can’t be forced to take the stand due to 5A so no confrontation
possible
o Limiting instruction (i.e., jury can only consider co-Δ’s confession re: co-Δ and not Δ) is
not enough to provide CC protection
 Implicating confession may STILL be admitted if:
(1) All portions of statement referring to other Δ are eliminated
(2) Δ who made implicating confession takes stand, OR
(3) Implicating confession is being used merely to rebut claim of COERCION by other Δ—
but jury must be instructed as to purpose of admission

Judicial Notice
Judicial Notice → if taken, means that prosecutor’s BOP is satisfied
CRIMINAL CASES → not conclusive, jury may but doesn’t have to accept it
CIVIL CASES → IS conclusive, jury should accept as such

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  Judges typically take notice of:
o “Notorious facts” → facts of common knowledge w/in the community
o “Manifest facts” → fact capable of certain verification by resort to easily accessible
sources of unquestionable accuracy
 They do NOT take notice of
o The law of a foreign country
o Facts known solely to the judge

NOTE → judge doesn’t have to resort to reference materials in order to take judicial notice of a fact

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