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Other Crimes Evidence - Permissible Uses

K - Knowledge
I - Intent
P - Plan
P - Preparation
O - Opportunity
M - Motive
I - Identity
A - Absence of Mistake

CHARACTER evidence, 3 Categories of

I = Impeachment character evidence
C = Conformity character evidence
E = Element character evidence

Character evidence, 5 claims in which it is an element:

D = Defamation
N = Negligent hiring, supervision or entrustment
I = Immigration
C = Child custody
E = Entrapment defense

Character evidence, 3 methods of proving

R = Reputation
O = Opinion
C = Conduct (Specific Instances of Conduct)

Impeachment, 6 methods of

I = Interest and bias
I = Inconsistent statement/conduct
C = Contradiction (by other witness or evidence)
C = Conviction of crime
C = Character (for truthfulness)
C = Capacity (to observe, recall, relate)

Non-hearsay, 6 types

I = Impeachment
S = State of Mind
L = Legally operative facts
A = Verbal acts
C = Capacity
E = Effect on hearer
"I See LACE"

HOW can silence be a statement or

When can SILENCE be a "statement" for hearsay purposes?
When can SILENCE be "inconsistent" for prior inconsistent statement?
H = Witness Heard and understood what was said by another about witness
O = Witness had the Opportunity to respond
W = Witness Would have responded if the statement were not true

Unavailability, Causes of (6)

P = Privilege
E = Exhaustion of memory
R = Refusal to testify
I = Inability to procure witness' attendance despite due diligence
S = Sick (physical or mental)
H = History (as in dead!)

Hearsay exceptions that REQUIRE UNAVAILABILITY of Declarant (5)

D = Dying Declarations (civil and homicide related cases)
A = Statement Against interest (proprietary, pecuniary, or penal)
F = Former Testimony
F = Forfeiture by wrongdoing
Y = Family HistorY

SPOT expert issues

Issues involving expert testimony:
S = Proper Subject (subject requires scientific, technical or specialized knowledge)
P = Proper Person (witness has special knowledge, training, education, experience, or skill)
O = Proper Opinion (witness has sufficient factual basis to support the opinion)
T = Proper Testimony (expert opinion is stated properly, not a legal conclusion)

4 Q's to ask



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


(a) Admission w/out a sponsoring witness
(b) certified business & public records
(c) newspapers, magazines, trademarks, etc.

FRE Handwritings

Judge or jury may authenticate by comparison with document already authenticated [FRE 901(b)(3)]

Character Evidence - 4 Q's

(1) Is the evidence character evidence? (What is the evidence?)
(2) Why is it being offered?
(3) Is it admissible for the purpose offered?
(4) How is it being offered? - If admissible, is the proposed method of proving it permitted?


Character evidence offered to show a witness should not be believed
Permitted Methods?
i) Reputation, Opinion
ii) Specific instances of conduct - Very limited


(a.k.a propensity evidence)
Character evidence offered to show a person acted in conformity with the character trait; to infer conduct in present case from character or similar acts in unrelated prior instances

Admissible? No, with limited exceptions.
Permitted Methods?
i) Reputation, Opinion - YES.
ii) Specific instances of conduct - Very limited.


(a.k.a character at issue)
Character evidence offered because it is relevant to an element of a cause of action, crime or defense

Admissible? YES.
Permitted Methods?
i) Reputation, Opinion - YES.
ii) Specific instances of conduct - YES

Why is Impeachment Evidence being offered

(1) Evidence of a personality trait that shows untruthfulness or truthfulness only.
(2) Admissible for this purpose? YES
(3) Permitted Methods? Reputation and Opinion - YES; Conduct - Very limited.

Why is Element Character Evidence being offered

Character is at issue - Relevant to an essential element of a cause of action, crime, defense or damages.

EXAMPLE. In defamation action, the plaintiff's reputation in the community is an element, so character evidence is admissible; in an entrapment defense, the defendant's predisposition to commit the crime is an element, so character evidence is admissible.

Is it admissible for this purpose? Yes, but in very limited causes of action where character is an "essential element" of a claim or defense. Mnemonic: "She has a Darn NICE character".

Permitted methods? All methods - Reputation, Opinion and specific instances of Conduct

Why Conformity of Character evidence being offered?

As circumstantial evidence; to infer conduct in present case from character or similar acts in unrelated prior instances - to show a person acted in conformity with the character trait. "S/he did it before, so s/he probably did it again."

Personality trait other than truthfulness.
Is it admissible for this purpose? General Rule - NO.

Conformity of Character evidence Admissibility Exceptions

Good Criminals Go First
Criminals Attack Victims
V's Sexual Character - Rape Shield Laws
D's Sexual Predatory Character

Good Criminals Go First

Criminal cases, offered by Def. - evidence of Def's own relevant character trait; govt. can rebut.

Criminal D's Evidence
Robbery case; D can offer evidence of own character to show he's an upstanding citizen who would not rob.

MD/FRE Gov't can rebut with character evidence that D is not an upstanding citizen.

Criminals Attack Victims

Criminal cases, offered by Def. - evidence of Victim's ("V") relevant character trait, particularly V's violent nature to support self-defense; govt. can rebut.

Criminal assault case; D can offer character evidence of V's "violent" character / personality to show V started fight.

FRE ONLY (NOT MD): Gov't can also offer character evidence about D on the same character trait on which D attacked V.

MD/FRE Gov't can rebut with character evidence of V's "non-violent" personality.

FRE - Gov't can offer character evidence of D's "violent" personality.
MD -Gov't can NOT offer character evidence of D's "violent" personality.

V's Sexual Character - Rape Shield Laws

Very complex; see materials for detail.

Basic idea: In cases involving sexual misconduct, the victim's prior sexual conduct is NOT admissible, with very limited exceptions.

D's Sexual Predatory Character

FRE: In criminal or civil sex-related cases (sexual assault, child molesting or sexual child abuse), specific instances of D's prior sexual predatory conduct is admissible to show conforming behavior. FRE 413-415.

Permitted Methods for "Conformity" Character Evidence

(1) Reputation and Opinion - Yes
(2) Specific instances of conduct - Cross Exam ONLY
(3) Sex case exceptions - different rules re: permitted methods.

Public Policy Exclusions - Generally

Frequently, this evidence is logically relevant, but its prejudicial effect outweighs its probative value

Beware. Such statements almost always involve hearsay, and an exception applies, particularly Statement of a Party Opponent. However, the evidence still is NOT admissible because of these public policy rules

Subsequent Remedial Measures

Generally, inadmissible to show party acted wrongfully (to show liability, fault or defect in a product)

b. Exception - IF at issue:
(1) ownership
(2) control
(3) feasibility of precautionary measures


An offer to settle a civil matter and statements made in connection with the offer are inadmissible to prove validity or amount of a disputed civil claim or to impeach by prior inconsistent statement

(1) EXAMPLE. After an auto accident, one driver said to the other, "Let's settle this. I shouldn't have been drinking, but you were drunk, too."

(2) Offer to settle ("Let's settle this.") and related statements - admissions of fact ("I shouldn't have been drinking....') - generally, are NOT admissible.

(3) The claim or amount must be disputed at time of statement. If party admits liability, the admission of fact that proves liability, IS admissible.

Mere admission of harmful facts does NOT make the claim undisputed.

Exceptions - admissible to show bias, laches (delay in bringing action)

MD - Settlement w / party in hospital within 15 days of the injury is unenforceable and statements are unusable

Offer to Pay Medical Expenses

Statements made in connection with an offer to pay medical expenses are NOT admissible to prove liability, BUT, admissions of fact made in connection with those statements ARE admissible

EXAMPLE. After an auto accident, one driver said to the other, "Let me pay your hospital bills. I shouldn't have been drinking, even though you were drunk, too."

The offer to pay medical expenses ("Let me pay your hospital bills") is NOT admissible to show liability

The admission of fact (" I shouldn't have been drinking." IS admissible as an admission of fact made in connection with an offer to pay medical bills, whether or not the speaker disputes the claim.

Plea Discussions

Guilty plea offer and related statements are inadmissible to prove guilt or fault, if not accepted or plea withdrawn, with limited exceptions.

Nolo contendre plea not admissible, with limited exceptions.

Exceptions - doctrine of completeness, perjury or false statement prosecution, prior inconsistent statement in subsequent civil proceeding

Insurance Coverage

Generally, inadmissible to show party acted wrongfully

Exception - admissible to show ownership, agency, control or bias of a witness

Collateral Source Rule

Can't show that someone else, like an insurance company, will pay the civil judgement

Competency of a witness

Competence = whether a person is permitted to testify

General rule - Every person is presumed competent

Competency Exceptions

Don't Understand the Oath - Youth, Mental Infirmaty

MD - Competency Exceptions

Convicted perjurer - incompetent to testify
Dead Man's Rule

Dead Mans Rule

Statements or transactions of decedent in cases involving someone acting as successor of decedent's interest (PR, heir, devisee, etc.) that will effect $ of the estate if offered by the party is excluded

Not in FRE but may be in federal court if applying state law

Exceptions to dead mans rule

if party is called by the opposite party
if disinterested party, or
if the statements or transactions are already admitted in evidence

Requirement of Personal Knowledge

Generally, testimony can only be about facts Witness learned through Witnesses' own senses

Refreshing Memory

When a witness has a diminished memory, something may be used to refresh the witness' recollection, and if successful, the witness testifies from present memory / personal knowledge."

Nearly anything can be used to refresh!

The "thing" used to refresh is NOT the evidence; the evidence is the testimony from present memory

If a document is used to refresh, there is no hearsay or other document-related issue, because, the document is not being offered as evidence but the opponent can introduce item.

Lay opinion Evidence

Lay opinions are not admissible (because testimony can only be about facts within the witness' personal knowledge)

Exception Lay opinion Evidence

Exception: Permitted if:
Rationally related to witness' perception and assist trier of fact to understand evidence or determine issues. Examples: speeding, intoxication, upset, etc.

Common shorthand summaries of perception (e.g., X was "upset.")

NOT permitted if expertise required (lay witness can't offer opinion of blood type)

Specific Objection

Complaint to testimony/evidence with reason stated
FRE - Specific objections required

Offer of Proof - a.k.a. Proffer

When evidence is excluded, lawyer should state [oral, written or Q & A] what the excluded evidence is, so an appellate court can determine if it was error to exclude

Harmless Error Rule

Appellate court finds error, but not significant enough to justify remedy

Plain Error Rule

Appellate court considers error, even though no objection at trial, usually because fundamental to fair trial right

Judicial Notice

Evidence considered without formal offering of evidence to prove the fact
Court can take judicial notice of a fact at any stage of litigation, including on appeal
A Court can take judicial notice of a fact not reasonably subject to dispute because they are:
a. Notorious Facts - ; OR
b. Easily Verified Facts
Conclusive Proof? Yes in Civil Cases; NOT in criminal cases - Due Process requires the burden of proof on government.

Notorious Facts

Facts "generally known in the territorial jurisdiction . . . of the court" (Everybody around here knows that type facts!)

Easily Verified Facts

Facts "capable of accurate and ready determination" from sources "whose accuracy cannot reasonably be questioned." (Easy to look up type facts)


an attack upon the believability (credibility) of a witness

If a person has NOT testified, the person can NOT be impeached (with one rare exception)


Evidence which detracts an attack upon the believability (credibility) of a witness [MRE 5-616 (c)]

If a witness was NOT impeached, the witness can NOT be rehabilitated

Two Ways To Impeach

"Intrinsic" evidence - Witness' own answers on the stand.
"Extrinsic" evidence - Everything else [other witnesses, documents, photos, etc.]

How to introduce prior inconsistent statements - extrinsic evidence

Not admissible unless
Non-collateral Matter

How to introduce prior inconsistent statements - intrinsic evidence

Questions on examination

PIS - Denial

Witness denies, equivocates about or feigns lack of memory about having made the PIS

PIS - Non-collateral Matter

The PIS involves a non-collateral matter

PIS - Collateral Matter

the PIS is NOT relevant to the cause of action, except to show the witness answered a question untruthfully
The lawyer may question Witness about it (intrinsic evidence), but even if Mr. Witness denies having made the PIS, the loan application itself (the extrinsic evidence) will NOT be admissible to impeach

Foundation Required for Impeachment by PIS

Pre-impeachment disclosure is NOT required, but Wit must be given the chance to explain or deny the statement.

But must "Show & Tell"
(1) Written PIS - Wit. must be shown the statement
(2) Oral PIS - must tell Witness the circumstances under which PIS was made and to whom.

Impeachment with PIS is NOT substantive evidence

Impeachment by Contradiction

Can contradict Witness' testimony with other witness' testimony or tangible evidence (or Witness' own conduct or statements)

Can NOT use extrinsic evidence to contradict a witness on a collateral matter (a matter that is NOT relevant to the cause of action, except to show the witness answered a question untruthfully)

Impeachment by Capacity To Observe, Recall, Relate

Witness can / can't see; Witness can / can't recall accurately due to head injury, Witness can / can't speak / understand English, etc.

Impeachment by character evidence for untruthfulness

"Impeachment Character Evidence"
ONLY character trait here - TRUTHFULNESS

Methods of proof - Impeachment by character evidence for untruthfulness

Reputation and Opinion
Specific Instances of Conduct Showing Untruthfulness

Reputation and Opinion

Generally, admissible
But, can't say "Wit lied in their testimony"

Specific Instances of Conduct Showing Untruthfulness

(1) Conduct must reflect on believability
(2) Conviction NOT required
(3) Limited admissibility

(a) Can question Witness about own conduct only; not another's conduct
(b) Cross examination questions ONLY; NO direct examination questions; NO extrinsic evidence.

How to introduce - Impeachment by prior conviction of a crime

(1) "Elicited from the witness" - intrinsic evidence
(2) Public record of conviction - extrinsic evidence

Impeachment by prior conviction - 4 step analysis

(1) Prior - Age of Conviction (< 10 yrs)
(2) Conviction - Final Conviction
(3) Crime - Honesty crimes and felonies
(4) Balancing - Balancing Required?

Balancing Factors - for Impeachment (4)

(1) Impeachment value
(2) Subsequent criminal history of Witness and age of the crime
(3) Similarity between the prior crime and present charge
(4) Importance of the witness' testimony and credibility

Similarity between the prior crime and present charge

If the witness is the defendant, the similarity of the past crime and present charge increases the likelihood the trier of fact will use the conviction improperly - as propensity evidence - rendering it less likely to be admissible

Impeachment of Hearsay Declarants

Can impeach hearsay declarant as if the declarant had been on the witness stand herself
Example. If impeachment is offered through the former testimony exception -reading from a transcript, you can impeach the witness from the transcript as if s/he had testified in the courtroom.


Evidence which DETRACTS from an attack on a witness' credibility
Only rehabilitate AFTER impeachment
Once impeached, can rehab by any method, not just same method used to impeach. (e.g, if impeached with a PIS, can rehab with character evidence showing truthfulness.)

Rehabilitation by allowing witness to explain or deny the impeaching evidence

Can't deny guilt of Impeachment by Prior Conviction of Crime

Rehabilitation by Character Evidence for Truthfulness

Rules same as for Impeachment by Character Evidence for Untruthfulness

What is the hearsay evidence?

Statement in quotation marks, a document

What's not hearsay

Usually because not offered for its truth

Statements of Capacity
Legally Operative Facts
Verbal Acts
Effect on Hearer or Reader
Circumstantial Evidence of Declarant's State of Mind

Statements of Capacity to Observe, Understand or Speak

Statements not offered for their truth, but to show that a person could see, hear, smell, understand, communicate, etc

Legally Operative Facts

Statements that have some legal effect, regardless of their truth.

Law attaches some liability or obligation simply by saying the words

EXAMPLE - Words of warning, slander, contract

Verbal Acts

Statements accompanying and clarifying ambiguous conduct

Parent threw car keys to the 14-year-old and said, "Here, have a great time."

Words explaining whether a transfer of money is a gift or payment of a debt. Joe hands Jane $10 and says, "Happy Birthday!"

Effect on Hearer or Reader

Statement offered to show information communicated to someone to explain the person's actions or show their knowledge

EXAMPLE: D is charged with murder of V. Wit can testify that D's spouse told D, "I'm pregnant with V's child," to show why D killed V. Doesn't matter if it's true

Circumstantial Evidence of Declarant's State of Mind

Statement of declarant offered as circumstantial evidence of what declarant was thinking, feeling or knew

EXAMPLE. "I am Napoleon, Emperor of France" - offered to prove a mental disorder

Assertion of Patient Client Privilege

Only patient can assert privilege

Prior Statements by witness - requirements

(1) Witness must testify and
(2) be subject to cross about the statement

Summary of - Prior Statements by witness

(1) FRE & MRE
(a) Prior Inconsistent Statement [PIS] Under Oath
(b) Prior Consistent Statement [PCS] Made Before Motive to Fabricate
(c) Identification
(d) Past Recollection Recorded - [hearsay exception under MRE & FRE]

(2) MRE ONLY; not in FRE
(a) Nance statement [MRE only; not in FRE]
(b) Recorded Verbatim [MRE only; not in FRE]
(c) Prompt Report of Sexual Assault [MRE only; not in FRE]

Prior inconsistent statements under oath at a trial, deposition, before grand jury etc., offered substantively

FRE: not hearsay; MRE - hearsay exception, grand jury testimony excluded

Prior consistent statement [PCS] made before motive to fabricate arose

FRE non-hearsay; MD - hearsay exception

WHY IS THE EVIDENCE BEING OFFERED? - To rebut allegation of recent fabrication.

Requirements: To be admissible substantively:
(1) Out of court statement must be consistent with initial trial testimony
(2) Out of court statement must be made before motive to fabricate arose

Prior Witness Identification

Evidence of a statement of a prior eyewitness identification made after perception, if identifying witness also testifies.

FRE: non-hearsay; MD - hearsay exception.

Example - V and Police Officer each testify that V identified D in a pre-trial line up. Admissible, so long as V testifies and is subject to cross about the ID

MD - Nance Rule

Prior inconsistent statement written and signed by the witness or recorded.

MD - Prompt report of sexual assault reported by Victim

Out of court statement by witness that is admissable

Statement of a Party Opponent - generally

Statement of a party opponent

Important distinction for the MBE: FRE - NOT hearsay; MD - hearsay exception


Statement Inconsistent with party's interest at trial

(1) Need not have been against the party's interest at the time the statement was made by the party.

(2) Contrast with the statement against interest hearsay exception, to be discussed shortly.

of a party

Of a Party
a. Named Party

Vicarious Admissions/Adopted Statement [MRE 5-803 (a)(2)]
Authorized Statement [ MRE 5-803 (a)(3)]
Statement of Agent / Employee [MRE 5-803 (a)(4)]
Co-conspirator [ MRE 5-803 (a)(5)]

Vicarious Admission/Adopted Statement

Vicarious Admissions
a.k.a. Adoptive admission ([MRE 5-803 (a)(2)])or admission by association

Statement was not actually made by a named party, but it is treated as if made by the party

Adopted Statement
A statement of which the party has manifested an adoption of or belief in its truth; can adopt by silence.

EXAMPLE. W says to X, in D's presence, "D just robbed the store." D smiles and says, "Yup, I'm da man!"

Authorized Statement

"Speaking Authority" required.
EXAMPLE. D, after accident, tells brother to tell P that D is sorry, and that it was all his [D's] fault.

Statement of Agent / Employee

By agent or employee of party.
Speaking during and concerning matter within scope of employment.

EXAMPLE. In suit versus Trucking Co., Truck Driver, employee of D, says "I knew those brakes needed repair."


By co-conspirator speaking during and in furtherance of conspiracy

Not confession to police - because confession is not in furtherance of the conspiracy and / or the conspiracy is over


Only party opponent can offer; Party can't offer own statement

Hearsay w/in Hearsay

An out of court statement that contains another out of court statement

Hearsay exception must apply to each level

EXAMPLE - A police officer investigating a horrific auto accident includes in the police report the statement of an hysterical eyewitness who described what happened. The report is offered in a civil case.

Levels of hearsay?
Document - Public Records exception
Contents - Excited Utterance

Testimonial Hearsay

Statement the declarant would reasonably expect to be used later in court.

Hearsay Exception - Rational Reminder

reliability & necessity; every exception involves a statement given under circumstances that make it more likely to be true

5 Broad Categories of Hearsay Exceptions

(1) Observational / State of Mind Exceptions
(2) Document Exceptions
(3) Reputation Exceptions
(4) Unavailability Required Exceptions
(5) Catch-All (Residual) Exception

Present Sense Impression

a. "Sayin' it while they're seein' it."
b. Statement
c. Describing or explaining event
d. Made contemporaneous to event (immediately after probably OK)

Excited Utterance

a. Statement
b. Describing or explaining a startling event
c. Made while under the effects of the startling event (longer time permitted than with present sense impression)

Statements of Present Condition

Mental, emotional or physical condition

Two Admissible Varieties
1) Present State of Mind Statements
2) Forward Looking Statements

Present State of Mind Statements

(a) Statement of then existing state of mind, feelings, etc.
(b) offered to show directly how person is feeling at that moment.

EXAMPLE: "I'm in pain" - offered to show declarant was in pain at the time.

Forward Looking Statements

Statement of then existing state of mind, feelings, etc.

offered to show or explain future conduct consistent with that state of mind, etc.
Offered to show intent, motive, plan or design

EXAMPLE. "I'm in pain. Call the nurse." offered to show declarant subsequently asked for pain medication.

NOT backward looking statements [statements regarding memory]

Except statement of declarant's memory regarding declarant's will

Statements for Medical Diagnosis / Treatment

Statement made relating to a past or present physical condition or cause of the condition that is pathologically germane - related to treatment or diagnosis

Pathologically germane

Pathologically germane "refers to facts commonly considered relevant to treatment or diagnosis of the patient's condition"

Statements for Medical Diagnosis / Treatment - MD v. FRE

FRE - diagnosis OR treatment
If statement made to doctor only as expert witness, with no plans that this doctor will prescribe treatment or that this doctor's diagnosis will be used by other doctors to prescribe treatment - admissible under FRE, but NOT MD

MD - diagnosis AND treatment
"Treatment or diagnosis in contemplation of treatment"
If the only reason Doctor saw P was so Dr. could testify - NOT admissible in MD

Past Recollection Recorded

Witness has insufficient recollection (usually after unsuccessful attempt to refresh recollection)

Evidence is the document itself

Personal knowledge
Made when fresh
written, signed or adopted

Read into record; document not introduced, except by opponent

Beware - hearsay within hearsay, authentication

Elements of Business Records Exception to Hearsay

(1) Writing concerning an event (acts, conditions, opinions or diagnoses)
(2) contemporaneously made (at or near the time of the event)
(3) by or from one with personal knowledge
(4) where such a writing is regularly made and kept in the ordinary course of business
(5) where it is the regular course of the business to make and keep such records - record related to the business of the business
(6) and it is trustworthy - not made in anticipation of litigation



Sponsoring witness to authenticate - custodian of records

Self-authentication - need certifying letter

Negative Evidence

Absence of records to show event didn't happen [FRE 803(b)(7); MRE 5-803(b)(7)]

Example. Custodian / certified letter saying business searched and found no record of P notifying D, to show P did NOT give some required notice.

Elements of Public Records and Reports

(1) Writing of a public agency
(2) concerning its public function
(a) Recording ordinary activities
(b) Recording of facts where duty to observe and report
(c) Trustworthy reports of authorized investigations

Absence of records to show event didn't happen [FRE 803(b)(10); MRE 5-803(b)(10)]

FRE and MRE - Reports of police observations are not admissible as public records against an accused in a criminal case because of Confrontation Clause

Judgment of Previous Convictions


(1) Record of a criminal conviction
(2) for a felony [greater than 1 year]
(3) is admissible in subsequent civil action (and criminal cases in limited circumstances),
(4) if relevant to an element of the cause of action.

Acquittal NOT admissible.

Doesn't work the other way - Can't use civil judgment in subsequent criminal prosecution

Dying Declarations

Statement under belief of impending death

(1) Declarant Unavailable
(2) Admissible in any civil action and criminal homicide related prosecution
(a) FRE - Homicide
(b) MRE - Homicide or attempted homicide
(3) Belief of imminent death - Declarant believed death was "near and certain," but need not actually die
(4) Relates to cause of death

Statements Against Interest

(1) Declarant unavailable
(2) A statement
(3) against proprietary, pecuniary or penal interest - Cost 'em money, property or jail time!

If Declarant's statement was against penal interest, and offered to exculpate accused, unless there is corroboration to show trustworthiness, it is NOT admissible

Example. A defense witness testifies that Declarant told her, "I did it, not Defendant."

If Declarant's statement was against penal interest, and offered to inculpate accused, it is NOT admissible in hearsay form because of the Confrontation Clause. (Of course, Declarant could testify to the fact that D did it!)

Statements Against Interest - When Made

At time Declarant made the statement, Declarant knew she was admitting to something that could cost her!

Forfeiture for Wrongdoing

FRE 804(b)(6) - If party procured witness' unavailability [e.g., paid witness to leave town], that witness' hearsay statement will be admitted against the procuring party.

MD - [CJP 10-901, 5-804(b)(5)] - More limited
(1) Admissible only in felony CDS or crime of violence (MRS BAKER Plus) prosecutions
(2) Statement must be under oath at court type proceeding or written and signed or recorded
(3) Notice and hearing required

Former Testimony; Depositions

(1) Declarant unavailable
(2) Testimony under oath
(3) At a prior proceeding or deposition
(4) Where the party against whom the statement is offered had:

(a) Same Motive and Opportunity, AND
(b) Right Party

i) Identity of Parties; OR
ii) Identity of Interests (Civil Case Only)

Same Motive and Opportunity

An opportunity and similar motive to develop testimony of the now unavailable witness in the prior proceeding on direct, cross or re-direct, etc.

Identity of Parties

Same parties in earlier and current proceedings - Party in the current proceeding had the opportunity to cross examine the now unavailable witness in the earlier proceeding

Example. Retrial of a case after a hung jury

Identity of Interests (Civil Case Only)

Predecessor / successor relationship. Not the same parties in current and earlier proceeding, but had "same interests"

Example. Boundary dispute, A v. B ends in a mistrial. Before retrial, A sells her land to C. A and C have an identity of interest, permitting former testimony against C, even though C wasn't able to cross examine the now unavailable witness

Residual / Catch All Exception

For new exception, not covered by traditional exceptions.

Hearsay with enhanced reliability.
Pre-trial notice required

Illegally Recorded Evidence

MD - Evidence illegally recorded in MD is NOT admissible for any purpose in any type of proceeding. CJP 10-405.

MD requires consent of both / all parties to a conversation for recording to be admissible, with limited exceptions.

Property SUBJECT of Expert Testimony

Testimony involves scientific, technical or specialized knowledge

Science and expert's opinion will assist the fact finder to understand the evidence or determine the issues.

EXAMPLE. Serologist, a blood expert, is needed to identify the red stuff on the clothing as blood and identify the blood type to help the jury to understand the blood evidence

Science and the procedure must be sufficiently reliable

FRE - Scientific Evidence Test

FRE - 702 / Daubert / Kuhmo Tire Rule.

Applies to ALL expert testimony.
Court makes preliminary determination that:
Methods and procedures are "reliable" and Methods and procedures were reliably applied.

MD - Scientific Evidence Test

MD - Frye / Reed Rule
(1) Applies to only novel science.
(2) Court makes preliminary determination that:

Science and procedure that is the subject of the testimony is "generally accepted in scientific / medical community"

Proper Person - Qualification of Expert Witness

Witness has special knowledge, training, education, experience or skill

Qualifications must go to subject of the testimony. (E.g, Radiologist not an expert about psychiatry.)

Proper Opinion - Basis of Opinion

Expert must have a sufficient factual basis to form opinion.

FRE and MRE - Ct. makes preliminary determination.

Source of Factual Basis
Personal knowledge - test run, interviews conducted, etc. by expert witness.

Hearsay - test run, interviews conducted, reports, etc. by ANOTHER expert witness if information reasonably relied upon by experts in the field

EXAMPLE: Doctor can read the notes, reports, X-rays, etc. of other doctors and nurses; learned texts, etc.

Listen to in-court testimony.
Hypotheticals OK.

Proper Testimony - Proper Expression of the Opinion

Opinion stated "to a reasonable degree of scientific or medical probability / certainty."

Opinion based on expertise, not a legal conclusion

"Was Doctor negligent?" - maybe NOT proper opinion.

"Did Doctor provide reasonable degree of medical care?" - OK

Privileges - Generally

A privilege means that a witness or lawyer can refuse to disclose or prevent another from disclosing privileged information

Waiver of Privilege

by intentional disclosure by holder of privilege

EXAMPLE: Testifying about privileged information waives a privilege; being overheard by unanticipated eavesdropper does not

EXAMPLE: Husband's disclosure does NOT waive privilege for wife

Spousal Immunity Privilege

"A witness-spouse of a criminal defendant to whom the witness is married at the time of the trial may refuse to testify against the defendant-spouse".

Witness-spouse's right to refuse to testify, not criminal defendant right to prevent spouse's testifying

Applies in criminal case only - not civil cases

Marriage - at the time of trial

Witness-spouse can refuse to testify, not limited to refusing to disclose "communications"

MD - spouse can only assert this privilege one time in life in case involving domestic assault

Marital Communications Privilege

"One spouse may not disclose any confidential communications between the spouses made during the marriage."

Both spouses hold this privilege.
Refuse or prevent.
Marriage - at time of communication (not at the time of trial).

Doesn't matter whether married at the time of the trial.

(1) MBE - Suit between spouses.
(2) MD - only exception to commit drug-addicted spouse for treatment.


privately communicated.

Communication - MCP

words or assertive conduct (conduct intended to send information); NOT mere conduct or events.

Attorney - Client Privilege

A lawyer may not disclose confidential communications concerning legal representation from the client without the client's consent

Elements of Attorney - Client Privilege


(1) A Lawyer - includes staff and those retained by lawyer to assist in case.
(2) May not disclose
(a) Lawyer must refuse to disclose
(b) Client holds privilege
(c) Forever
(3) Confidential - Client had no intent to disclose
(4) Communications
(a) Includes statement by Client to lawyer & from lawyer to client.
(b) Client's identity and fee arrangements not included.
(c) Material physical evidence of crime, even if received from client, must be disclosed - turned over to police.
(5) Concerning legal representation - consults lawyer in professional capacity.
(6) From the client - not statements of witnesses.

Exceptions to Attorney-Client Privilege

(1) Future fraud / crimes.
(2) Past fraud / crimes, if lawyer was unwittingly used in the fraud or crime
(3) Suit concerning breach of duty between lawyer & client

Work Product Doctrine

Discovery Rule - Not really part of the privilege - Documents created by the lawyer reflecting legal theories, thought processes, etc., made in connection with legal representation are protected from disclosure by the work product doctrine



Accountant Client


Best Evidence Rule/Original Document Rule

Rule of Exclusion excludes testimony about what is in a document, if exact words of the document are what counts. Also, excludes some copies because they're too easy to doctor

The Best Evidence Rule provides that if the content of a document is central to litigation, to prove the contents of the document, the original is required, unless it is excused

BER - Document

Writings, photos, tape recordings, CD and other recordings

BER - Central to Litigation

The words on the document itself, not the substance that the document records, is important. (e.g., the written contract in a contract action, the will in an heir's suit challenging a devise; the check in a suit involving payment by check.)

The BER does NOT apply if the document is collateral or incidental to the litigation.

BER - To prove content

Legally Operative Fact
no personal knowledge

BER - Legally Operative Fact

Document at issue has some legally operative effect; it's what's in the document that counts, not what someone did or thought about it. (e.g., will, contract, negotiable instrument.)

BER - Personal Knowledge

Witness has no personal knowledge (either never did or no longer recalls) of the subject of the testimony; knows or recalls only what s/he read / heard / saw in the document (e.g., Witness is to testify about events at Woodstock, but only knows about Woodstock from the movie / books, etc.; s/he was not there.)

BER - Original

Duplicates are admissible as originals, unless genuine authenticity is in dispute or it's unfair to admit the duplicate.

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