The Rules FRE 401 relevance 1.

. probative value: something tends to demonstrate something else; more or less likely to be true 2. materiality: logically related to the issue requiring proof FRE 401 def: relevant evidence is having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" Evidence is relevant if it could be believed by a reasonable juror FRE 402 relevance all relevant evidence comes in unless otherwise stated in rules all irrelevant evidence stays out FRE 403 relevance and prejudice Evidence excluded when its probative value is: 1. substantially outweighed 2. by danger of unfair prejudice to jury Unfair prejudice: 1. exaggeration: evidence exaggerates the probative value (i.e., if evidence is worth conviction rate of 10%, but gives 25%); the probative value must be substantially outweighed by the danger of unfair prejudice 2. disregard issues: the evidence will cause the jury to disregard the issue (e.g., grizzly photos of dead bodies in cases) when all else has failed (i.e., 401 and 402), then argue 403 FRE 403 balancing test can be done in two ways: 1. view the evidence independently of all other evidence 2. view the evidence in light of full evidentiary context of the case FRE 403 probative value "may be calculated by comparing evidentiary alternatives" TEXT of rule: "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Relevance vs. Sufficiency

-relevant: a single item or group of items may or may not be admitted -sufficiency: do all of the admitted items create enough info to permit the issue to go to the jury doctrine of limited admission: FRE 105: if a piece of evidence will help your case on numerous points, you must find one point for which it is deemed relevant. Then, the evidence will come in for all points, even if for other purposes the evidence is impermissible -evidence is admitted on condition that the evidence is connected up to a proposition at a later period -relevance not readily apparent at the moment of offering -opponent of the evidence has the burden to ask judge to strike evidence if it is not connected up

doctrine of conditional relevance:

"Gatekeeper Question": is this issue of fact a question for the judge or the jury? Preliminary questions of fact: (FRE 104) 1. whether a proffered piece of evidence is admissible? (judge) 2. when evidence to resolve an issue of fact is such that a reasonable person may decide either way (jury) 104(a) 104(b) if a jury were to hear the evidence and if a jury were to hear the evidence and conclude that the preliminary question of conclude that the preliminary question of fact is not satisfied, but they would then fact was not satisfies, and would then not naturally and rationally disregard the naturally and rationally disregard the evidence, then the judge should make the evidence, then it should be left for a jury to determination. decide. NB: judge not bound by the rules of evidence when making this ruling; judge is permitted to bootstrap evidence (that is, let the evidence speak for itself and be true at face value without any corroboration) judge determines preliminary questions of the judge still has a role: determine that the fact using a preponderance of the evidence proffered evidence could be believed by a standard reasonable juror (i.e., it is not total bullshit evidence). Therefore, the judge should let the jury decide even if he does not think the evidence meets the preponderance standard of 104(a) but does meet a rational basis standard [crime-fraud exception issue: 104(a) does not flatly prohibit in camera review of information claimed to be privileged,

Zolin] credibility of witnesses is for the jury to decide weight of evidence is also a jury question HEARSAY 1. hearsay problem: must create a reliable chain of inference between the person not speaking under oath or in court to an event the utterance is supposed to reflect. in other words, hearsay is simply not trusted (despite any potential probative value) because the statement can't be explored by lawyers for the four testimonial infirmities: ambiguity, insincerity, faulty perception and erroneous memory. (B) belief of actor responsible for A 1. insincerity 2. ambiguity (A) action or utterance 3. erroneous memory 4. faulty perception (C) conclusion

Two main types of hearsay: 1. assertion-centered: an out-of-court statement is hearsay when it is offered in evidence to prove the truth of the matter asserted 2. declarant-centered: an out-of-court statement is hearsay when it depends for value upon the credibility of the declarant FRE 801(c) Hearsay is an out-of-court statement1 used to prove the truth of the matter asserted therein. -that is, the evidence is deemed so unreliable that it lacks probative value -evidence is or isn't hearsay depending on why the statement is relevant -e.g., a statement that can be used inferentially to prove something other than what is stated is likely not going to be hearsay Policy: Why do we prohibit hearsay? Lawyers want the witness/declarant to testify at trial: 1. under oath 2. where jury can see him (demeanor evidence) 3. where cross-examination is possible
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801(a) : "A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion."

Problems with hearsay evidence are the same issues that a good lawyer tries to bring out in a cross: 1. ambiguity 2. insincerity 3. faulty perception 4. erroneous memory In other words, if testimony requires us to assume about these four issues, then it is certainly hearsay. legally operative language. when the making of an utterance is the matter asserted, then deeming the testimony hearsay is highly unlikely; "utterance as operative conduct"; legally operative conduct; res gestae; verbal part of an act implied assertions 801(a) takes care of the problem by expressly exempting implied assertions from the hearsay rule while express assertions remain subject to it: "A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion." Reasons to exclude implied assertions from the hearsay rule: 1. when a person acts in a way consistent with his beliefs but without intending the act to communicate a belief, the rationale of excluding declarations whose veracity cannot be tested by cross does not apply because the declarant's sincerity is not involved 2. the underlying belief is often self-verifying: the actor has based his actions on the correctness of his belief HEARSAY EXCEPTION "If a statement is hearsay, but it fits an exception, it can be used for its TRUTH" (its truth depends on the particular relevance of the evidence). FRE 805: Hearsay within hearsay is not excluded if an exception can be found for each level of hearsay. NB: the evidence let in under 803 is the best because under 804, the evidence admitted under 804 is so bad that the declarant must be unavailable in order for the evidence to be admitted; whereas under 803, the declarant is immaterial to the admissibility of the evidence. 804 declarant unavailable Dying Declarations: FRE 804(b)(2) Former Testimony: FRE 804(b)(1) 803 declarant available Present Sense Impression: FRE 803(1) Excited Utterance: FRE 803(2)

Declarations Against Interest: FRE 804(b) (3)

Prior Felony Conviction: FRE 803(22) State of Mind, Physical Condition: FRE 803(3) Statements for Medical Diagnosis/ Treatment: FRE 803(4)

FRE 804 rules

Dying Declarations (FRE 804(b)(2)) 1. homicide or any civil action or proceeding 2. statement made with consciousness of impending death 3. about cause/circumstances of the impending death Former Testimony 804(b)(1) [cf 801(d)(1)] 1. testimony given at another hearing [same or different proceeding] 2. or testimony given in deposition [same or different proceeding] 3. testimony must be offered against a party who: a) either himself had an opportunity or similar motive to develop the testimony by direct, cross, or redirect; or [protects 6th Amend] [Salerno] b) such opportunity and similar motive was had by a predecessor in interest -predecessor in interest: a party against whom testimony was offered in a previous action and who has similar interests in a second action and a similar motive to cross-examine in the second action -troubling because it can bind a lawyer to the prior work of a different lawyer [argue: hey, I would have developed my cross in a totally different manner] Declarations Against Interest 804(b)(3) 1. At the time of its making, statement was: either so far contrary to the declarant's pecuniary or proprietary interest;2 or so far tended to subject declarant to civil or criminal liability; or to render invalid a claim by the declarant against another; 2. that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

NB: a confession or a declaration can be made IN the declarant's interest even when it seems to be against interest, and therefore would not be admissible under this exception: e.g., "If you confess to the crimes, we'll give you a reduced sentence" (even if person did not do the crimes, he might confess to them).

[3. Statements tending to expose the declarant to criminal liability3 e.g. confession and offered to exculpate the accused are not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.] Part 3 is a remnant of the Donnelly rule which only permitted non-criminal confessions/declarations to be admitted. This was done because of fear that the guilty would go free when another party confessed. Thus, FRE requires corroboration in order to prevent false confessions.

FRE 803 rules

Present Sense Impression: FRE 803(1) i. a narrower exception: "statement must describe or explain" ii. made while declarant is perceiving event or condition, or immediately thereafter Excited Utterance: FRE 803(2)4 i. a statement relating to startling event or condition; and ii. made while under stress of excitement caused by the event or condition iii. immediacy iv. must be speaking from personal knowledge -no need to prove, unlike CL, that event or condition giving rise to statement actually occurred. FRE permits bootstrapping by judge to assume the event -this is a much broader exception than 803(1) because the statement only has to relate to the event rather than describe (implying contemporaneity) it -considered more trustworthy than 803(1) because the shock/excitement implies that one can't fabricate the way one could with deliberation State of Mind 803(3) 1. then existing state of mind, emotion, physical condition 2. not a statement of memory/belief to prove a fact remembered [unless relates to declarant's will] Hillmon doctrine: a stated intention can be used to prove the actions of the declarant, but not anyone else Medical Diagnosis or Treatment 803(4) Test for admission under this rule: 1. declarant's motive must be consistant with purposes of obtaining medical treatment and
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that is, self-inculpatory, not non-self-inculpatory [Williamson] NB: CL is a bit different. Review right before EXAM: Michling

2. content of statement must be such as is reasonably relied upon by physicisans in providing medical treatment or diagnosis "Statements5 made for purposes of medical diagnosis6 or treatment and describing medical history, or past7 or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible under the exception because when they are made, the patient has a "strong motivation to be truthful." NB: split of authority on whether the identity of a person who caused the injury (e.g., parent who hits a child) is admissible as reasonably pertinent to diagnosis or treatment. Past Recollection Recorded 803(5) 1. memorandum/record concerning matter about which witness once had knowledge 2. cannot now recall well enough to testify fully 3. shown to have been made or adopted by witness when matter was fresh in his memory and reflects that knowledge accurately -if admitted, may be read into evidence [i.e., as a substitute for testimony] but not entered into evidence unless offered by adverse party [present recollection revivd FRE 612: show witness anything necessary to jog memory, and then ask if memory is refreshed enough to testify. Adverse party may cross witness on the object and introduce into evidence parts related to the testimony i.e., to prove it could not have possible refreshed memory or that there are some inconsistencies with the testimony] Business Records 803(6) 1. regularity of recordation: record must be made in the course of regular business activity; 2. at or near the time of event, condition, act 3. by a person with knowledge [i.e., can't have Johnson v. Lutz problem] 4. unless source of information [Johnson v. Lutz] or the method or circumstances of preparation [Palmer v. Hoffman] indicate lack of trustworthiness Johnson v. Lutz: a person speaks in business record who lacks the business duty Palmer v. Hoffman: report cannot be prepared in anticipation of litigation; this makes its trustworthiness questionable. After all, the policy behind this hearsay

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could be a statement made by a parent to a doctor describing what is happening with a child i.e., permits testimony of expert witnesses, not just a treating physician 7 Therefore, admissible even though a statement of memory

exception is that regularly kept records that reflect day-to-day operations create a probability of trustworthiness. NB: police reports and factual findings can't come in under this exception due to policy behind 803(8) see Oates 803(7) - Absence of Entry in Records kept in accordance with 803(6) if a matter that normally would be recorded does not appear, this can be used to show that the event did not occur or the matter did not exist at that time. Public Records and Reports 803(8)

FRE 801 Rules

Admissions and Declarations Against Interest Admissions Declarations Against Interest need not be against interest when made only admissible if at the time it was made it was against interest and subjects declarant to liability such that no reasonable person would have uttered it unless true exception usable even when declarant is declarant must be unavailable available admissible only when offered by a party may be offered by any party opponent Party Admissions 801(d)(2)(A) 1. statement made by party 2. offered into evidence by party opponent policy: -this sort of evidence is considered so bad, that it is not among the exceptions, but rather is considered an exemption, for the reasoning that: 1. a party can't really deny a statement on the grounds that they are generally untrustworthy; and 2. the party is always available to be cross-examined should they wish to dispute the statement -admissions need not be based on person knowledge; it is opinion testimony that received facts are true

Adoptive Admissions 801(d)(2)(B) known as "adoptive admissions"; it is assumed that if it wasn't true, the party would have said something or indicated to the contrary; lawyers' term to counter objection is "made in the presence", which means that the statement was made in the presence of the party to the party's detriment. NB: "adoptive admissions" and "notice" in tort case for negligence are the only two times when the identity person hearing/seeing a statement does not matter. known State v. Carlson Authorized Agent Admissions 801(d)(2)(C) -authorized by party to make a statement about the subject Agent/Servant in Scope of Employment Admissions 801(d)(2)(D) -statement made about matter within scope of employment/agency -made during existence of agent/servant relationship Statement by Co-conspirator Admissions 801(d)(2)(E) -made is furtherance of conspiracy -made during the course of the conspiracy -statements can be used against a conspirator who joined the conspiracy after the statements were made! bootstrapping: statement itself can be used, but is not sufficient, to establish agency relationship or conspiracy existed -conspiracy must be shown to exist before statements can come in

Prior Identification 801(d)(1)(C) 1. declarant testifies at trial or hearing 2. subject to cross concerning the statement 3. statement is one of identification NB: no time limit as to when the statement needs to be made